Opinion
No. 04-06-00671-CV
Filed: June 6, 2007.
Appeal from the 45th Judicial District Court, Bexar County, Texas Trial Court No. 2003-CI-14938 Honorable Barbara Nellermoe, Judge Presiding.
Sitting: Catherine Stone, Justice, Karen Angelini, Justice, Sandee Bryan Marion, Justice.
AFFIRMED AS MODIFIED
Appellees Inez Martinez, Sr. ("Inez Sr.") and San Juana Martinez brought suit against appellant Inez Martinez, Jr. ("Inez Jr.") and Rose Marie Martinez, seeking declaratory relief as well as damages for breach of contract, assault, conversion, breach of fiduciary duty, statutory fraud, trespass to real property, intentional infliction of emotional distress, invasion of privacy, and wrongful eviction. With respect to their declaratory judgment action, Inez Sr. and San Juana did not prevail in the trial court. As for their remaining causes of action, San Juana was the only one to prevail on any of her claims against either Inez Jr. or Rose Marie.
The record reflects that San Juana was successful only on her assault cause of action against Inez Jr. and was awarded actual and exemplary damages by the jury. The trial court entered judgment following the jury's verdict and awarded San Juana $1,070 actual damages, $500 exemplary damages, $5,500 for attorney's fees, and $2,671.05 for her costs of court. Inez Jr. appeals the trial court's judgment, claiming: (1) the trial court erred in awarding attorney's fees incurred by San Juana because San Juana is not authorized to recover attorney's fees by statute, by contract, or under principles of equity; (2) the trial court erred by awarding San Juana "duplicative attorney's fees because she received both attorney's fees and exemplary damages, which included compensation for attorney's fees"; (3) trial court erred by denying his request for costs of court because he was a successful party as contemplated by Rule 131 of the Texas Rules of Civil Procedure; and (4) the trial court erred by awarding San Juana her costs of court when she was not a successful party as contemplated by Rule 131 of the Texas Rules of Civil Procedure.
Attorney's Fees
Inez Jr. complains that the trial court erred in awarding attorney's fees incurred by San Juana because San Juana is not authorized to recover attorney's fees by statute, by contract, or under principles of equity. () This argument, however, ignores the fact that San Juana filed suit seeking relief pursuant to the Declaratory Judgment Act regarding the "rights and status of the parties with respect to the ownership, legal or equitable, of . . . [r]eal [p]roperty" located at 2807 Moss Circle, San Antonio, Texas. See Tex. Civ. Prac. Rem. Code §§ 37.001 et seq. (Vernon 1997). Although San Juana did not prevail on her declaratory judgment action, the Declaratory Judgment Act does not limit an award of attorney's fees only to a prevailing party. See Barshop v. Medina County Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996). "[A] trial court may, in its discretion, award attorney's fees to the nonprevailing party in a declaratory judgment action." State Farm Lloyds v. Borum, 53 S.W.3d 877, 894 (Tex.App.-Dallas 2001, pet. denied); see also Tex. A M Univ.-Kingsville v. Lawson, 127 S.W.3d 866, 874-75 (Tex.App.-Austin 2004, pet. denied) (recognizing the Declaratory Judgment Act authorizes a trial court to award attorney's fees to a nonprevailing party); Tejeda v. Garcia, No. 04-02-00263-CV, 2003 WL 21796238, *2 (Tex.App.-San Antonio 2003, no pet.) (mem op.) (same). San Juana was therefore authorized by statute to recover her attorney's fees. Accordingly, Inez Jr.'s complaint is overruled.
San Juana alleges that Inez Jr. failed to preserve his complaint regarding the award of attorney's fees. We disagree. Inez Jr. raised a complaint concerning the award of attorney's fees in his response to San Juana's motion for judgment on the verdict. Inez Jr.'s response to the motion for judgment on the verdict was timely and sufficiently specific to give the trial court an opportunity to resolve the legal issue of whether attorney's fees were recoverable under statute before rendering judgment. See Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999) (per curiam) (defendant' s response to motion for judgment on the verdict was sufficient to give the trial court an opportunity to resolve the legal issue of whether damages were available under statute). The trial court implicitly overruled Inez Jr.'s objection to the award of attorney's fees when it granted San Juana's motion for judgment on the verdict and entered judgment awarding San Juana attorney's fees. See Tex. R. App. P. 33.1(a)(2)(A). Accordingly, we hold Inez Jr. preserved his complaint for our review.
Inez Jr. also complains that the trial court erred by awarding San Juana "duplicative attorney's fees because she received both attorney's fees and exemplary damages, which included compensation for attorney's fees." The rules of appellate procedure require an appellant's brief to contain "a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex. R. App. P. 38.1(h). Inez Jr. has not provided any record cites or authority to support his position, and therefore has waived this argument. See Strange v. Continental Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied) ("An issue on appeal unsupported by argument or citation to any legal authority presents nothing for the court to review."); In re D.S., 76 S.W.3d 512, 516-17 (Tex.App.-Houston [14th Dist.] 2002, no pet.) ("In order to avoid waiver of an issue on appeal, a party must discuss in his brief the facts and the authorities upon which he relies to maintain the issue.").
We note that Inez Sr. and San Juana have attempted to raise an appellate complaint concerning the trial court's failure to award them reasonable appellate attorney's fees as found by the jury. This issue is in reality a cross-point, which Inez Sr. and San Juana have failed to preserve for review because they did not file a notice of appeal. See City of San Antonio v. Hernandez, 53 S.W.3d 404, 407 (Tex.App. — San Antonio 2001, pet. denied).
Costs
As for Inez Jr.'s complaint that the trial court erred by denying his request for costs of court, such complaint must be sustained. Inez Sr. brought nine separate claims against Inez Jr., and the jury resolved each of these claims in Inez Jr.'s favor. The jury's verdict thus vindicated Inez Jr. on all of the allegations asserted by Inez Sr., which makes Inez Jr. the successful party at trial as between Inez Jr. and Inez Sr. See Newsome v. Charter Bank Colonial, 940 S.W.2d 157, 168-69 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Scholl v. Home Owners Warranty Corp., 810 S.W.2d 464, 469 (Tex.App.-San Antonio 1991, no writ).
The successful party to a suit is generally entitled to recover all legitimate costs he incurred. Tex. R. Civ. P. 131; see Scholl, 810 S.W.2d at 468. A court may, however, assess costs against the successful party, for good cause stated in the record. Tex. R. Civ. P. 141; see Scholl, 810 S.W.2d at 468. It is an abuse of discretion for a trial court to "`[allot] costs contrary to the provisions of rule 131, without including in the record an explanation of the allotment as required by rule 141.'" Scholl, 810 S.W.2d at 468. Here, the trial court did not state in the record its reasons for assessing costs as it did. In the absence of any explanation for its actions, the trial court abused its discretion by failing to award Inez Jr. his costs of court. We therefore sustain Inez Jr.'s complaint.
Inez Jr.'s final complaint alleges the trial court erred by awarding San Juana her costs of court because she prevailed on only one of her claims against him. We are unpersuaded by this argument because a plaintiff does not have to prevail on every claim against a defendant to be considered successful for purposes of recovering her costs of court. See Williamson v. Roberts, 52 S.W.3d 354, 356 (Tex.App.-Texarkana 2001), aff'd, 111 S.W.3d 113 (Tex. 2003) ("A plaintiff who prevails on one claim but not others in the same suit is a successful party."). The trial court therefore did not err by awarding San Juana her costs of court. ()
San Juana requested the trial court award her $3,474.85 for costs of court. The court, however, awarded San Juana only $2,671.05 for her costs of court, which was the same amount requested by Inez Jr. for his costs of court.
We note that Rose Marie has attempted to raise an appellate complaint concerning the trial court's failure to award her costs of court. The record reflects that Rose Marie did not file a notice of appeal in this case. The only notice of appeal in the record is the one filed on behalf of Inez Jr., which provides:
Now comes Defendant Inez H. Martinez, Jr. (hereinafter "Defendant"), by and through his undersigned attorney of record, and in accordance with the provisions of Tex. R. App. P. 25.1(d), appeals to the Fourth Court of Appeals for relief from [a] judgment rendered by the 45th Judicial District Court. Defendant specifically appeals the District Court's July 5, 2006 judgment granting attorney's fees and costs of court to Plaintiff San Juana Martinez.
As required by Tex. R. App. P. 25.1(d):
1. This is an appeal from a judgment by the 45 District Court in Bexar County, Texas. The case's trial court number and style are as follows: Inez Martinez, Sr. and San Juana Martinez v. Inez H. Martinez, Jr. and Rose Marie Martinez, Cause No. 2003-CI-14938.
2. Defendant appeals the July 5, 2006 judgment of the District Court.
3. Defendant Inez H. Martinez, Jr. desires to appeal this judgment.
4. This case is appealed to the Fourth Court of Appeals in Texas.
(emphasis added). Rule 25.1(c) of the Texas Rules of Appellate Procedure requires any party "who seeks to alter the trial court's judgment or other appealable order" to file a notice of appeal. Tex. R. App. P. 25.1(c). Rule 25.1(c) further states that when a party fails to file a notice of appeal, a showing of "just cause" is required before an appellate court may award more favorable relief than did the trial court. Id. Because Rose Marie failed to file a notice of appeal or show just cause for overlooking her failure to file a notice of appeal, we decline to address her complaint on appeal. See id.; see also Brown v. Johnson, No. 06-05-00015-CV, 2006 WL 1172412, *1 (Tex.App.-Texarkana 2006, no pet.) (mem. op.).
Conclusion
Based on the foregoing, the judgment of the trial court is modified to award Inez Jr. his costs of court. The trial court's judgment, as modified, is affirmed.