Opinion
No. 05-04-00478-CV
Opinion Filed July 28, 2005.
On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-02-13785-a.
Affirmed.
Before Justices BRIDGES, RICHTER, and LANG.
MEMORANDUM OPINION
Contemporary Contractors, Inc. appeals the trial court's declaratory judgment and award of attorney's fees to Aaron Strauser. In four issues, Contemporary argues Strauser's claims were nothing more than defenses to Contemporary's prior suit and should not have survived Contemporary's non-suit of those former claims, Strauser was therefore not entitled to an award of attorney's fees, and the trial court erred in admitting an exhibit that was not produced during discovery and holding Contemporary liable for attorney's fees incurred by third parties. We affirm the trial court's judgment.
Strauser worked for Contemporary beginning in August 2000. In May 2001, Contemporary's accountant met with Strauser and presented him with a "Confidential Agreement for Employee" containing non-disclosure and non-compete provisions. Any failure to carry out an obligation under the agreement was subject to "preliminary and other injunctive relief," and Strauser consented to the issuance of an injunction and the ordering of specific performance under the agreement's terms. The agreement provided that the prevailing party in any legal proceeding would be awarded its attorney's fees. Strauser was required to sign the agreement in order to remain employed by Contemporary. Strauser signed the agreement.
In September 2002, Strauser left Contemporary and began his own carpet cleaning business. In November 2002, Contemporary sued Strauser, alleging Strauser had engaged in the same type of work for which he was employed by Contemporary, in violation of the non-competition provision of his contract with Contemporary. Strauser answered with a general denial and a request for a declaratory judgment establishing the rights of the parties to the contract "in order to clarify and settle the legal relationship between the parties and their respective rights and obligations, including, but not limited to, a declaration that the non-disclosure and non-competition clauses of the [c]ontract are invalid." Strauser further requested declaratory relief to clarify the legal relationship between the parties and Strauser's right to work in the carpet cleaning and restoration industry in the Dallas area. Strauser also sought attorney's fees under the declaratory judgment act. The parties subsequently agreed that the case would be consolidated with two other cases against former Contemporary employees under a new cause number, and Contemporary non-suited Strauser under the old cause number.
In March 2003, Strauser filed a motion for summary judgment on the grounds that there was no consideration for the confidential agreement, the agreement was not ancillary to an enforceable agreement, and it did not contain necessary limitations on the scope of activity to be restrained. Contemporary responded that it had taken a non-suit against Strauser, and there was no longer any justiciable controversy between the parties. Further, Contemporary argued Strauser's claim for declaratory judgment was no more than a restated defense to Contemporary's right to recover and was therefore not an available remedy, citing BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 1990). Contemporary's response included the affidavit of its attorney, Joe Putnam, stating Strauser's claimed attorney's fees were excessive and unreasonable, and the affidavit of Strauser's attorney was deficient for a variety of reasons. On April 25, 2003, the trial court granted Strauser's motion for summary judgment in part, holding the non-competition and non-disclosure provisions of the agreement unenforceable, and set the issue of attorney's fees for trial. Following trial, the trial court entered judgment holding the confidential agreement in its entirety, along with the non-disclosure and non-competition provisions, unenforceable and void. The judgment awarded Strauser $7303 in attorney's fees and awarded additional amounts in the event of unsuccessful appeals by Contemporary. This appeal followed.
In its first issue, Contemporary argues Strauser's declaratory judgment claim was merely a restatement of his defenses to Contemporary's suit and therefore did not present a justiciable issue following Contemporary's non-suit. Further, Contemporary argues the declaratory judgment action was brought merely as a vehicle to recover attorney's fees. At the outset, we note that Contemporary's non-suit was filed in a cause number other than the one appealed from. In November 2002, Contemporary filed its original petition against Strauser in cause number 02-13784-A. On December 19, 2002, the trial court consolidated all of Contemporary's actions against its former employees into cause number 02-13785-A. Not until March 13, 2003 did Contemporary file its non-suit against Strauser in cause number 02-13784-A, after the action against Strauser had been consolidated in a different cause number. Contemporary did not file a non-suit against Strauser in cause number 02-13785-A. Even if Contemporary's non-suit was effective as to the consolidated action, we conclude the trial court did not err in entering a declaratory judgment in favor of Strauser and awarding him attorney's fees. A plaintiff's right to take a nonsuit is unqualified and absolute as long as the defendant has not made a claim for affirmative relief. BHP, 800 S.W.2d at 840. The use of a creative pleading that merely restates defenses in the form of a declaratory judgment action cannot deprive the plaintiff of this right. Id. at 841. In certain instances, however, a defensive declaratory judgment may present issues beyond those raised by the plaintiff. Id. Here, Contemporary sued Strauser under the non-competition provision of the confidential agreement. Strauser sought a declaratory judgment that was not limited to a disposition of the non-disclosure and non-competition clauses of the agreement. Instead, Strauser sought a clarification of the relationship between the parties, together with their respective rights and obligations in the future, as well as a judicial determination of the agreement's enforceability in its entirety. Thus, Strauser sought an interpretation of the agreement that would have the effect of defining the obligations of the parties under the agreement for the foreseeable future. Id. at 842 (holding such a counterclaim was more than mere denial of plaintiff's causes of action and stated "cause of action" on which defendant could recover benefits, compensation, or relief if plaintiff abandoned its causes of action or failed to establish them). We conclude Strauser's request for declaratory judgment thus stated a cause of action beyond the issues raised by Contemporary, and Contemporary was therefore not entitled to take a nonsuit and dismiss the entire proceeding. See id. We overrule Contemporary's first issue.
In its second issue, Contemporary argues the award of attorney's fees was error because the recovery of fees in this suit is governed exclusively by section 15.51 of the business and commerce code. On the contrary, the provisions of the business and commerce code in question apply only to actions to enforce a covenant not to compete. See Tex. Bus. Com. Code Ann. §§ 15.51, 15.52 (Vernon 2002); Gage Van Horn Assoc., Inc. v. Tatom, 26 S.W.3d 730, 733 (Tex.App.-Eastland 2000, pet. denied per curiam, 87 S.W.3d 536 (Tex. 2002)). Here, Strauser sought a declaratory judgment that the agreement at issue was unenforceable and void in its entirety. Accordingly, the provisions of the business and commerce code had no preemptive effect on Strauser's declaratory judgment action. See Tatom, 26 S.W.3d at 733. We overrule Contemporary's second issue.
In its third issue, Contemporary argues the trial court erred in admitting Strauser's "Exhibit 1," consisting of copies of Strauser's attorney's billing statements. Specifically, Contemporary complains the statements contained additional hours, and Strauser failed to supplement discovery with the additional hours. Thus, Contemporary argues, the records should not have been admitted into evidence. The admission and exclusion of evidence is committed to the trial court's sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A party who fails to supplement discovery in a timely manner may not introduce the material that was not timely disclosed unless the court finds that the failure to supplement will not unfairly surprise or unfairly prejudice the other party. Tex. R. Civ. P. 193.6(a)(2). We review the trial court's determination that evidence presents no unfair surprise for an abuse of discretion. See Gutierrez v. Gutierrez, 86 S.W.3d 729, 736 (Tex.App.-El Paso 2002, no pet.) (no abuse of discretion to permit expert testimony regarding attorney's fees where witness not identified as expert in response to discovery, but witness was identified as fact witness).
Here, trial was set on the sole issue of attorney's fees. Strauser, in response to discovery, provided billing statements through May 2003, a time period which included the trial court's partial summary judgment. At the trial on attorney's fees in January 2004, Strauser's attorney explained that Exhibit 1 included a "small amount of fees since then." The trial court admitted Exhibit 1, concluding there was no showing of surprise, and the parties were aware there were ongoing attorney's fees being incurred. We conclude this was not an abuse of discretion under the circumstances of this case. See Tex. R. Civ. P. 193.6(a)(2); Gutierrez, 86 S.W.3d at 736. We overrule Contemporary's third issue.
In its fourth issue, Contemporary argues the trial court erred in rendering its judgment because Contemporary is "not liable for attorney's fees incurred by other persons." At trial, Strauser testified he had paid his attorney $12,000. However, the record shows that the trial court questioned Strauser's attorney and determined that only $7303 in attorney's fees were incurred following the declaratory judgment action. Contemporary cites to places in the record where Strauser's attorney admits that he filed answers on behalf of two other defendants, Strauser's employees, and sent out discovery before the cases were consolidated. However, Contemporary cites no evidence, and we have found none in the record, controverting the testimony of Strauser's attorney that $7303 was attributable to the declaratory judgment action. Under the Declaratory Judgment Act, the trial court had the authority to award costs and reasonable and necessary attorney's fees as were equitable and just. Tex. Civ. Prac. Rem. Code Ann. § 37.009 (Vernon 1997). We conclude the trial court did not err in awarding Strauser $7303 in attorney's fees in the declaratory judgment action. We overrule Contemporary's fourth issue.
We affirm the trial court's judgment.