Opinion
No. 05-01-01533-CV
Opinion Filed July 10, 2002. DO NOT PUBLISH. TEX. R. APP. P. 47.
On Appeal from the County Court at Law No. 3, Dallas County, Texas, Trial Court Cause No. 00-08922-C.
Before Justices KINKEADE, JAMES, and MOSELEY. Opinion By Justice JAMES.
OPINION
Marjorie Jackson appeals the trial court's grant of summary judgment on Pamela Knight's breach of contract suit. In two issues, Jackson contends the trial court erred in granting summary judgment and erred in awarding damages, prejudgment interest, and attorney's fees. We affirm in part and reverse and remand in part. In November 1998, Jackson and Knight entered into a written agreement for the "lease/purchase" of Knight's Peterbilt truck. The terms of the agreement required Jackson to assume Knight's monthly payment for the truck and directly pay a third party. In April 2000, Jackson and Knight signed two other agreements: one to restructure the payment terms to require payment directly to Knight and the other a "repayment agreement" where Jackson acknowledged owing Knight $11,923.88 for past fees, missed payments, and repairs. When Jackson ceased making payments in May 2000, Knight repossessed the truck and sued Jackson for breach of all three contracts. Jackson, pro se, filed a general denial. Knight filed a motion for summary judgment for liability and damages, which Jackson failed to respond to. The trial court granted Knight's motion finding Knight should recover $19,877.81 in actual damages, prejudgment interest, attorney's fees, and postjudgment interest. Jackson then obtained counsel and filed a motion for new trial and a motion to modify the summary judgment because the order was "vague and confusing and [did] not clearly denote finality." Jackson asked the court to retitle the judgment to reflect its finality and "unequivocally state that it finally disposes of all claims." The motion to modify also asked the trial court to reform the original judgment because it awarded excessive actual damages. The trial court denied the motion for new trial but granted the motion to modify as to Jackson's request for finality. Thus, the trial court issued a modified final judgment awarding $19,877.81. This appeal ensued. A party is entitled to summary judgment in a breach of contract suit when no material fact issues exist and the movant establishes its right to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Roark v. Stallworth Oil Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); Cadle Co. v. Castle, 913 S.W.2d 627, 631 (Tex.App.-Dallas 1995, writ denied). A contract must be supported by consideration, in other words, mutuality of obligation. Robert L. Crill, Inc. v. Bond, No. 05-98-01796-CV, 2001 WL 1231865, at *4 (Tex.App.-Dallas Oct. 17, 2001). Consideration is a bargained for exchange of promises and consists of benefits and detriments to the contracting parties. Roark, 813 S.W.2d at 496; Bond, 2001 WL 1231865, at *4. Issues not expressly presented to the trial court by written motion, answer or response shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). The burden is on the nonmovant to file a response and evidence at least seven days before the summary judgment hearing. Id.; WTFO, Inc. v. Braithwaite, 899 S.W.2d 709, 721 (Tex.App.-Dallas 1995, no writ). If the nonmovant fails to respond to the summary judgment motion with evidence raising a fact issue precluding summary judgment, the nonmovant may not contend on appeal there is a disputed issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 886 (Tex.App.-Dallas 2000, pet. denied). However, the nonmovant may still complain on appeal the award of attorney's fees is unreasonable, Smith v. Smith, 757 S.W.2d 422, 426 (Tex.App.-Dallas 1988, writ denied), and may challenge the legal sufficiency of the summary judgment motion and the supporting proof. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339-42 (Tex. 1993); Turner, 18 S.W.3d at 886. When reviewing legal sufficiency points, we consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex. 1989); State Farm Lloyds, Inc. v. Williams, 960 S.W.2d 781, 785 (Tex.App.-Dallas 1997, writ dism'd by agr.). We must consider the evidence in the light most favorable to the verdict, Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992), and, when the evidence is uncontroverted, we are entitled to consider evidence that favors the movant's position. Braithwaite, 899 S.W.2d at 721. In her first issue, Jackson contends the trial court erred in granting summary judgment because the repayment agreement was not supported by consideration and, thus, created no enforceable obligations. We disagree. There was mutuality of obligation where Knight's duty was to turn over the truck in return for Jackson's promise to take-over monthly payments. Further, Knight filed an affidavit in support of her motion stating the repayment agreement was executed to commemorate Jackson's failure to make certain payments due on the first agreement and to bind Jackson to a payment schedule. The affidavit is uncontroverted and comports with rule 166a(c). See Tex. R. Civ. P. 166a(c). The affidavit establishes as a matter of law the repayment agreement created enforceable obligations and shows all the agreements were supported by consideration. Because the summary judgment evidence is uncontroverted and because the evidence is legally sufficient to support the judgment, we resolve Jackson's first issue against her. In her second issue, Jackson argues the judgment awarding damages, prejudgment interest, and attorney's fees is improper. It is well settled that upon breach of a contract a party may pursue any remedy which the law affords in addition to the remedy provided in the contract. Accent Builders Co., Inc. v. Southwest Concrete Sys., Inc., 679 S.W.2d 106, 109 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). Thus, the fact that a contract provides a particular remedy does not mean that remedy is exclusive unless it is declared to be or it is clearly indicated. Id.; Tabor v. Ragle, 526 S.W.2d 670, 676 (Tex.Civ.App.-Fort Wort 1975, writ ref'd n.r.e.). Prejudgment interest may be supported by a general prayer of relief. Liberty Mut. Ins. Co. v. Gen. Ins. Corp., 517 S.W.2d 791, 799 (Tex.Civ.App.-Tyler 1974, writ ref'd n.r.e.). Prejudgment interest is compensation allowed by law as additional damages for lost use of money due as damages during the lapse of time between the accrual of the claim and the date of judgment. Johnson Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998). When no specified rate of interest is agreed on by the parties, interest at the rate of six percent per year is allowed on all accounts and contracts ascertaining the amount payable, beginning on the thirtieth day after the date on which the amount is due and payable. Tex. Fin. Code Ann. § 302.002 (Vernon Supp. 2002). Section 31.002 of the civil practices and remedies code provides a judgment creditor is entitled to recover reasonable attorney's fees. Tex. Civ. Prac. Rem. Code Ann. § 31.002(e) (Vernon 1997). Further, attorney's fees under section 31.002 are governed by Texas Civil Practices and Remedies Code sections 38.001, 38.003, and 38.004. Tex. Civ. Prac. Rem. Code Ann. §§ 38.001, 38.003, 38.004 (Vernon 1997); Burns v. Miller, Hiersche, Martens Hayward, P.C., 948 S.W.2d 317, 327 (Tex.App.-Dallas 1997, writ denied). Usual and customary attorney's fees for a claim presented under section 38.001 are presumed reasonable unless rebutted. Tex. Civ. Prac. Rem. Code Ann. § 38.003; Allstate Ins. Co. v. Lincoln, 976 S.W.2d 873, 877 (Tex.App.-Waco 1998, no pet.). Section 38.001 is to be liberally construed to effect its underlying purpose of discouraging the unnecessary litigation or defense of a claim. Id. § 38.005; McKinley v. Drozd, 685 S.W.2d 7, 11 (Tex. 1985). Jackson contends repossession, not damages, was Knight's sole remedy because the second agreement provided, "In the event of default by [Jackson] in the payments of the Sums prescribed . . . above, said agreement will become null and void, and may be cancelled by [Knight] immediately. And the vehicle shall be return [sic] at once." Jackson failed to make payments due thereby breaching the contract. Because of Jackson's default, Knight was required to make payments in Jackson's stead. Thus, Knight was entitled to recover the past due payments and to repossess the truck. See Accent Builders, 679 S.W.2d at 109. The trial court properly awarded damages. Jackson also complains the award of prejudgment interest is improper. The contract set-forth payments were due by the eleventh day of each month but the parties failed to include an interest rate in the contract. Because Jackson failed to make any payment to Knight for the month of May, interest could begin accruing on the thirtieth day after payment was due. See Tex. Fin. Code Ann. § 302.002. Thus, interest could accrue beginning June 10, 2000. In her affidavit, Knight testified she was "entitled to interest at the rate of 6% per annum from and after July 30, 2000, to the date of [the] affidavit" (emphasis added). To the extent that Knight failed to follow the statute, it works in Jackson's favor. The trial court properly awarded prejudgment interest. Jackson finally argues the award for attorney's fees is not reasonable because Knight's attorney was required to segregate fees and fees for postjudgment collection are not authorized by section 38.001 of the civil practices and remedies code. We agree the fees are not reasonable but for different reasons. In her original pleadings and motion for summary judgment, Knight broadly pleaded she was entitled to attorney's fees and Knight included her attorney's affidavit as evidence to support her motion. Knight's attorney testified he had "expended and will expend approximately 15 hours through the time of th[e] hearing and for post judgment collection" (emphasis added). Jackson is allowed to argue the reasonableness of attorney's fees for the first time on appeal. See Smith, 757 S.W.2d at 426. The award of attorney's fees for postjudgment collection is premature making the award of postjudgment fees not reasonable. Therefore, the trial court erred in awarding fees for postjudgment collection. As a result, we reverse and remand the attorney's fees award to the trial court for a new trial on the amount of fees for obtaining this judgment only. See id. We affirm the portion of the summary judgment awarding damages and prejudgment interest; however, we reverse and remand that portion awarding postjudgment attorney's fees. Accordingly, we affirm the trial court's judgment in part and reverse and remand in part.
Lack of notice was not an issue in this case. In fact, Jackson does not deny receiving notice; rather, she stated she was "unfamiliar with Texas summary judgment procedure" and "had no idea how important it was that [she] file a response . . . and refute the allegations in [Knight's] motion."