Opinion
No. 05-04-00916-CV
Opinion Issued April 20, 2005.
On Appeal from the Dallas County Court at Law No. 3 Dallas County, Texas, Trial Court Cause No. cc-04-3831-c.
Affirmed as modified.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
To recover payment for laboratory services rendered, Laboratory Corporation of America ("Lab Corp") sued Robert Ortiz, Eduardo Garcia, and St. Raphael Medical Clinic, Inc. ("the Clinic"), d/b/a Wilcrest Doctors Center. Lab Corp subsequently non-suited Garcia. No answer was filed on behalf of either Ortiz or the Clinic. As a result, the trial court entered a default judgment against both. The judgment stated, among other things, that Ortiz and the Clinic were jointly and severally liable for the principal amount owed to Lab Corp, pre-judgment interest on the principal amount, and attorney's fees.
Appellants Ortiz and the Clinic now challenge the judgment and claim that the evidence was (1) factually insufficient to support the principal judgment and pre-judgment interest amounts awarded by the trial court and (2) legally insufficient to support the award of attorney's fees. We reform the award of the principal judgment and pre-judgment interest amounts and affirm the trial court's judgment as modified.
I. PRINCIPAL JUDGMENT AND PRE-JUDGMENT INTEREST AMOUNTS
Appellants contend that the evidence is factually insufficient to support the judgment's award of $35,075.04 as principal and $2,104.50 as pre-judgment interest. They claim that the evidence showed that the principal amount was $34,075.04 for the laboratory services and that the pre-judgment interest should be $2,044.50 (applying the rate of six percent per annum to the principal amount of $34,075.04).
We note that appellants are actually asserting a legal sufficiency challenge.
Lab Corp concedes that an error was made in calculating the principal amount, which resulted in the calculation of an incorrect pre-judgment interest amount. Lab Corp agrees with appellants that the correct principal amount is $34,075.04 and that the correct pre-judgment interest amount is $2,044.50.
After reviewing the record, we agree that the trial court's judgment is incorrect with respect to the principal and pre-judgment interest. The judgment should have awarded Lab Corp the principal amount of $34,075.04 and the pre-judgment interest amount of $2,044.50. We sustain appellants' first issue and grant the relief requested by appellants by reforming the judgment to reflect the correct amounts. See Tex.R.App.P. 43.2(b) (the appellate court may modify the trial court's judgment and affirm it as modified).
II. ATTORNEY'S FEES
Appellants claim that the evidence is legally insufficient to support the judgment's award of attorney's fees. We disagree. When reviewing a legal sufficiency challenge, we limit our consideration to the evidence and inferences that support the trial court's finding, disregarding all contrary evidence and inferences. Frazin v. Hanley, 130 S.W.3d 373, 376 (Tex.App.-Dallas 2004, no pet.). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge must fail. Id. When the evidence offered to prove a vital fact is so weak as to do no more than to create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of the fact, then there is more than a scintilla of evidence. Id.
A party may not recover attorney's fees from an opposing party unless recovery is permitted by statute or by agreement of the parties. Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 816 (Tex.App.-Dallas 1999, no pet.). The award of attorney's fees in the case before us is governed by chapter 38 of the Texas Civil Practice and Remedies Code. To recover attorney's fees, (1) the claimant be represented by an attorney; (2) he must have presented the claim to the opposing party or its agent; and (3) the opposing party must have failed to tender the amount owed before the expiration of the thirtieth day after the claim was presented. Tex. Civ. Prac. Rem. Code Ann. § 38.002 (Vernon 1997). Appellants do not dispute that Lab Corp was represented by an attorney.
The affidavit of Lab Corp's attorney was offered and admitted into evidence before the trial court. This affidavit stated that Lab Corp demanded that "Defendant" pay the balance owed. Appellants assert that there is legally insufficient evidence to show that the claim was presented to them because the affidavit refers only to "Defendant." However, the affidavit attached copies of two invoices, which were addressed to Wilcrest Doctors Center, with Robert Ortiz listed as the contact. The record shows that Ortiz was president of the Clinic. One of the attached invoices, dated May 2, 2003, advised that the balance of $25,777.79 was "seriously past due" and subject to collection activity. The other invoice, dated May 31, 2003, advised that charges for that month in the amount of $8,297.25 were due upon receipt of the invoice.
Appellants also contend that there is no evidence their payment was not tendered within thirty days of presentment. On May 19, 2004, Lab Corp's billing manager testified before the trial court that the amounts reflected in the two invoices were still outstanding.
We conclude that the invoices and the testimony of Lab Corp's billing manager constitute more than a scintilla of evidence to show that the claim was presented to appellants and that they tendered no payment within thirty days of presentment. Accordingly, we overrule appellants' second issue.
III. CONCLUSION
We reform the judgment to award Lab Corp the principal amount of $34,075.04 and the pre-judgment interest amount of $2,044.50. All other amounts awarded to Lab Corp will remain as ordered in the judgment of the trial court.
We affirm the trial court's judgment as modified.