Opinion by Justice LANG.
This case arises from a written contract (the "Agreement") under which appellee J. Baxter Brinkmann International Corporation ("JBBI") employed appellant Berryman's South Fork, Inc. ("BSF") for the purpose of "engaging the full-time services" of appellant Richard Berryman ("Berryman") as a "sales and marketing representative." Appellees JBBI and The Brinkmann Corporation ("TBC") filed this lawsuit against appellants asserting claims for, in part, declaratory judgment, breach of contract, and money had and received. Appellants (1) counterclaimed against JBBI for, in part, breach of an alleged contract to pay Berryman's expenses and (2) asserted claims against J. Baxter Brinkmann, individually, ("Brinkmann") as a third party defendant.
In eleven issues on appeal, appellants contend the trial court erred because (1) the evidence raises fact issues as to the parties' claims; (2) the declaratory relief requested by JBBI and TBC was "redundant with" their breach of contract claim and therefore was "barred as a matter of law"; (3) appellees "failed to conclusively prove the reasonableness and necessity of the claimed [attorneys'] fees by not segregating fees"; (4) Brinkmann, individually, did not recover on any cause of action and therefore should not have been awarded damages, attorneys' fees, interest, or costs of court; and (5) the sustaining of appellees' objections to Berryman's affidavit constituted an abuse of discretion.
For the reasons below, on this voluminous summary judgment record, we reverse the trial court's judgment in part, render judgment in part, and otherwise affirm the trial court's judgment.
The Agreement was executed on July 2,
Approximately seven years after the Agreement was executed, an attorney for appellants sent JBBI a letter dated May 20, 2008. In that letter, appellants' attorney stated that as a result of actions taken by JBBI, "including, but not limited to, making defamatory statements" to JBBI employees and others, JBBI had "substantially undermined [Berryman's] ability to perform his job duties and responsibilities" and therefore had "constructively terminated [Berryman] and breached the implied covenant of good faith and fair dealing with respect to the Agreement." Further, appellants' attorney (1) stated JBBI had "failed and refused" to reimburse Berryman for approximately $160,000 in expenses that JBBI was "obligated to pay" pursuant to "Mr. Berryman's contract" with JBBI and (2) requested that JBBI contact him to "negotiate a fair and equitable severance for Mr. Berryman."
On May 23, 2008, JBBI and TBC ("plaintiffs") filed this lawsuit against BSF and Berryman ("defendants"). In their original petition, plaintiffs asserted a claim for "declaratory judgment relief." Specifically, plaintiffs requested in part that the trial court declare (1) "whether [d]efendants have carried on its or their required duties under the terms of the [Agreement]"; (2) that plaintiffs have not violated the terms of their "agreements or obligations, if any," to defendants; and (3) "other declaratory relief as necessary to terminate the controversy and remove uncertainty relating to the [plaintiffs'] alleged remaining rights and obligations to [d]efendants, if any." Further, plaintiffs requested "reasonable and necessary attorneys' fees incurred herein and on any appeal."
In a letter to defendants dated August 29, 2008, counsel for JBBI stated (1) defendants had failed to perform as obligated under the Agreement "for some months now" and (2) JBBI "hereby terminates the Agreement as permitted in Section 3 and as otherwise allowed by law." Subsequent to that letter, plaintiffs filed supplements to their original petition in which they added claims for breach of contract and "money had and received/unjust enrichment." In their breach of contract claim, plaintiffs alleged in part that defendants "failed and refused and continue to fail and refuse to fulfill their obligations under the [Agreement]," thus entitling plaintiffs to damages and attorneys' fees. In their claim for "money had and received/unjust
Defendants filed a general denial answer and asserted several affirmative defenses, including "equitable estoppel." Additionally, defendants asserted (1) a counterclaim against JBBI for "breach of contract relating to reimbursement of expenses," in which defendants contended they were owed $157,600.83 in "expenses not paid" by JBBI; and (2) claims for business disparagement, defamation, and exemplary damages against Brinkmann as a third-party defendant.
JBBI and Brinkmann filed separate general denial answers to defendants' counterclaims. Additionally, JBBI asserted several affirmative defenses, including the statute of frauds. Further, in Brinkmann's prayer for relief in his answer, he requested, in part, that he recover costs of court.
On December 12, 2011, plaintiffs and Brinkmann filed a motion for (1) traditional summary judgment on plaintiffs' breach of contract, money had and received, and declaratory judgment claims and defendants' counterclaims and (2) no-evidence summary judgment on defendants' counterclaims. In their motion, plaintiffs stated in part (1) "[b]ased on [d]efendants' breach of contract, [p]laintiffs are entitled to elect as their remedy the recovery of the largest damage amount suffered due to [d]efendants' breach, such amount being the $291,666,67 paid from May through August 2008, plus attorney's fees totaling $160,948.00"; (2) to "prevent unjust enrichment," defendants must return to plaintiffs "overpayments" of "$291.666.67 for work not performed"
The appendix filed in support of the summary judgment motion included, in part (1) excerpts from depositions of Berryman and Brinkmann; (2) an affidavit of Brinkmann; (3) copies of the Agreement and correspondence described above; and (4) an affidavit of plaintiffs' counsel respecting attorneys' fees.
Berryman stated in part in his deposition that (1) his job responsibilities pursuant to the Agreement included preparing for and attending meetings with retailers'
Brinkmann testified in part in his deposition and affidavit (1) although reimbursement of Berryman's expenses was not part of "the deal," he reimbursed Berryman for various expenses starting in 2001 and continuing until at least 2006; (2) defendants ceased performing their required duties under the Agreement "as early as the first half of May 2008"; (3) after defendants ceased performing under the Agreement, JBBI "hoped [d]efendants would resume performance" and paid BSF $41,999.96 in airplane allowance payments and an additional sum of more than $291,666.67; and (4) BSF and Berryman have not returned those amounts to plaintiffs.
Finally, counsel for plaintiffs testified in part in his affidavit (1) at least 85%, or $127,073, of the attorneys' fees and paralegal fees incurred by plaintiffs so far "are recoverable against the [d]efendants in this lawsuit"; (2) "it is reasonable to conclude that [plaintiffs'] counsel's activities cannot all be segregated by task and as such are dependent on the same or similar sets of facts and circumstances, are part of many of the same tasks, and are therefore so intertwined that they cannot be so separated or segregated"; (3) a fair estimate of additional attorneys' fees likely be incurred by plaintiffs through the hearing on plaintiffs' motion for summary judgment to advance plaintiffs' "affirmative claims" against defendants is at least $33,875; and (4) in the event of appeal of plaintiffs' "affirmative claims," plaintiffs will likely incur at least an additional $35,000 in fees in defense of an appeal to the Dallas Court of Appeals, $20,000 in fees in briefing an appeal to the Texas Supreme Court, and $15,000 in fees if the Texas Supreme Court grants a hearing on such appeal.
In their amended response to plaintiff's motion for summary judgment, defendants argued in part (1) the agreement to pay expenses was an enforceable "oral modification" and/or "implied in fact modification" of the "original contract" entered into between the parties on July 2, 2001; (2) Berryman was justified in discontinuing performance under "the written contract and oral modification of the contract" in May 2008 because he was relieved of performance by plaintiffs' "material breach," i.e. plaintiffs' "slanderous statements," hiring of Bush, and failure to pay Berryman's expenses; (3) equitable relief is not warranted because Berryman received and accepted the sums paid to him as part of the damages he is entitled to receive as a
Plaintiffs filed (1) "objections to and motion to strike defendants' `evidence' in support of their amended response" and (2) supplemental objections to defendants' summary judgment evidence. Therein, plaintiffs contended Berryman's affidavit (1) contains irrelevant testimony; (2) lacks necessary attachments; (3) is a "sham affidavit" as to specified statements of Berryman in paragraphs 9, 12, 15, 16, 19, 22, 24, and 28; (4) "fails to set forth actual facts based upon Berryman's personal knowledge"; and (5) "cites Berryman's conclusory personal beliefs based upon conjecture and hearsay." Specifically, in an objection to Berryman's affidavit "as a whole," plaintiffs stated in part
(citation to record omitted).
Additionally, plaintiffs filed a reply to defendants' response to the motion for summary judgment. Plaintiffs asserted in part (1) defendants' election to continue performance after plaintiffs' alleged nonpayment of expenses starting in 2006 precluded any excuse for defendants' terminating performance; (2) defendants' response did not raise a legal claim or fact issue respecting defendants' contentions that plaintiffs "prevented [d]efendants from being able to perform under the [Agreement]" or "`constructively terminated' [d]efendants"; (3) defendants have no damages for breach because plaintiffs "paid the entire value" of the Agreement; (4) the oral agreement alleged by defendants respecting payment of expenses was not performable within one year and therefore is precluded by the statute of frauds and, alternatively, "lacks definitive contract terms"; and (5) while defendants' response "appears to argue" that application of the statute of frauds is precluded by "partial performance," defendants provide "only a footnote citation without analysis" respecting that argument.
In the final judgment described above,
Defendants filed a timely motion for new trial, which was overruled by operation of law. This appeal timely followed.
We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009). We must take evidence favorable to the nonmovant as true and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.2005); Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon, 690 S.W.2d at 549; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex.App.-Dallas 2009, no pet.). "When summary judgment is sought and granted on multiple grounds, we will affirm if any of the grounds is meritorious." Zimmerhanzel v. Green, 346 S.W.3d 721, 724 (Tex.App.-El Paso 2011, pet. denied). Further, with the exception of an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment,
A party seeking a no-evidence motion for summary judgment must assert that no evidence exists as to one or more of the essential elements of the nonmovant's claim on which the nonmovant would have the burden of proof. See TEX.R. CIV. P. 166a(i). The burden then shifts to the nonmovant to produce more than a scintilla of summary judgment evidence that raises a genuine issue of material fact as to each essential element identified in the motion. Id.; Timpte Indus., Inc., 286 S.W.3d at 310. More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to reach the verdict under review. See City of Keller, 168 S.W.3d at 827.
In a traditional summary judgment, the party moving for summary judgment has the burden to establish that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.2003); Nixon, 690 S.W.2d at 548-49. When reviewing a traditional summary judgment granted in favor of the defendant, we determine whether the defendant conclusively disproved at least one element of the plaintiff's claim or conclusively proved every element of an affirmative defense. Kalmus v. Oliver, 390 S.W.3d 586, 588 (Tex.App.-Dallas 2012, no pet.) (citing Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997)). A matter is conclusively established if ordinary minds cannot differ as to the conclusion to be drawn from the evidence. Id. at 588-89. If the movant satisfies its burden, the burden shifts to the nonmovant to preclude summary judgment by presenting evidence that raises a genuine issue of material fact. See Affordable Motor Co., Inc. v. LNA, LLC, 351 S.W.3d 515, 519 (Tex.App.-Dallas 2011, pet. denied).
We begin with appellants' second issue, in which they contend "the trial court erred in granting summary judgment on [a]ppellees' claim for breach of contract because it applied an incorrect measure of damages and there was no evidence of recoverable damages." According to appellants, "the evidence of damages was legally insufficient because the evidence represented overpayments that occurred for approximately three months after the alleged breach and thus caused the trial court to utilize an improper measure of damages (an incorrect time period)." Additionally, appellants assert in their reply brief in this Court that "[appellees'] only damage evidence relates to amounts that are not recoverable, rendering their evidence legally insufficient."
Appellees respond (1) appellants "failed to object or otherwise raise to the trial court any allegation that the measure of damages provided by [a]ppellees was somehow improper" and therefore waived the alleged error, (2) appellants "ignore [a]ppellees' right to elect to continue to perform under the Agreement" and "sue for damages as they accrue when the time for performance under the contract is due," and (3) "[a]ppellants' arguments that [a]ppellees could not `create or increase' their damages are actually arguing a failure to mitigate," an affirmative defense that appellants did not plead.
The record does not show appellants objected to the evidence respecting the measure of damages or otherwise raised that issue in the trial court. However, "a party may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility." Coastal Transp. Co., Inc. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004). Further, an attack on the legal sufficiency of the grounds expressly raised by the movant in his motion for summary judgment is an exception to the general rule that "[i]ssues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal." TEX.R. CIV. P. 166 a(c); see McConnell, 858 S.W.2d at 343; Clear Creek Basin Auth., 589 S.W.2d at 676-77. Therefore, we conclude appellants did not waive error pertaining to the legal sufficiency of the evidence respecting breach of contract damages.
In support of their assertion that the proper measure of damages was applied in this case, appellees state "when one party repudiates a contract, the other party may then elect to `treat the repudiation as inoperative and sue for damages as they accrue when the time for performance under the contract is due.'" (quoting America's Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 626 (Tex.App.-San Antonio 1996, writ denied)). Appellees contend they (1) "elected to continue the Agreement in force in an effort to have [a]ppellants resume performance and therefore continued to make payments" and (2) "are entitled to recover the $291,666.67 paid during the time of [a]ppellants' non-performance under the Agreement."
Appellants cite the following statement of law in support of their position: "A party, while in the performance of a contract, when served with notice of its repudiation by the other party, cannot proceed with the performance of the contract except it be one of which specific performance may be enforced and increase the damages to which he would otherwise be entitled." Osage Oil & Ref. Co. v. Lee Farm Oil Co., 230 S.W. 518, 522 (Tex.Civ. App.-Amarillo 1921, writ ref'd). According to appellants, (1) the Agreement was a contract for services and therefore was not subject to specific performance and (2) appellees were not entitled to recover "overpayments that occurred for approximately three months after the alleged breach."
During oral argument before this Court, appellees contended (1) the rule quoted above from Osage Oil "has not been followed by a single court" and (2) current case law allows a non-repudiating party to choose to treat the contract as continuing regardless of whether specific performance is available. In support of those arguments, appellees cited three cases. See Bumb v. InterComp Tech., L.L.C., 64 S.W.3d 123 (Tex.App.-Houston [14th Dist.] 2001, no pet.); Avasthi & Assoc., Inc. v.
In C.K. Oil, Hrubetz Operating Company ("HOPCO") contracted to operate certain gas and oil leases. C.K. Oil, 2002 WL 32344609, at *1. Subsequently, a working interest in the leases was conveyed to C.K. Oil Properties, Inc. ("C.K."). Id. C.K. informed HOPCO that HOPCO was terminated as operator and advised HOPCO that C.K. would not reimburse HOPCO for any operating expenses incurred after November 10, 1997. Id. HOPCO continued to operate the leases. Id. Additionally, HOPCO filed suit against C.K. to specifically enforce the terms of its contract and sought damages from C.K. as a result of the attempted termination. Id. at *2. Those damages included expenses for operating the leases from the date of the purported termination through the date of trial. Id. C.K. counterclaimed for trespass, asserting HOPCO was liable to C.K. in tort for refusing to accept C.K.'s breach of the contract. Id. The trial court granted a motion by C.K. for partial summary judgment denying specific performance and the remaining issues were tried before a jury. Id. The jury found in favor of HOPCO and awarded HOPCO damages that included its expenses incurred in operating the leases after the date of the purported termination. Id. On appeal, C.K. argued in part that pursuant to the rule stated in Osage Oil, HOPCO was (1) required to accept C.K.'s repudiation and (2) not entitled to recover any damages for expenses incurred in operating the lease after the date of the purported termination. Id. at *8, *14. The Eleventh District Court of Appeals in Eastland disagreed with C.K. Id. The court stated that the "damage rule" announced in Osage Oil "does not apply to affirmative claims for relief which a repudiating party asserts against the non-breaching party for failing to accept the breach." Id. at *8. Therefore, the court concluded, HOPCO was "not required to accept C.K.'s repudiation." Id. Further, in considering HOPCO's claim for damages, the court stated in part, "For the same reasons that we have rejected the ruling in Osage Oil as serving as a basis for [C.K.'s] counterclaims sounding in tort, we do not find Osage Oil to be controlling on the issue of HOPCO's damages." Id. at *14. The court concluded, "Because the ruling in Osage Oil directly conflicts with the non-breaching party's option of treating the repudiation as inoperative, we decline to apply Osage Oil to the facts of this case." Id.
Unlike the case before us, C.K. Oil involved not only a non-repudiating party claiming damages, but also a repudiating party seeking to use the rule in Osage Oil to profit from its own breach. See id. at *8. We cannot agree with appellees that the C.K. Oil court's conclusion that Osage Oil was not controlling on the facts of that case supports appellees' position that Osage Oil is inapplicable in the case before us.
Bumb involved an employee, John W. Bumb, whose employment contract provided that either he or his employer, InterComp Technologies, L.L.C. ("InterComp"), could terminate their relationship at will by giving ninety days' notice. Bumb, 64 S.W.3d at 124. On August 4, 1995, InterComp notified Bumb that his employment was terminated effective November 3, 1995. Id. On September 25, 1995, InterComp allegedly told Bumb that it would no longer pay his salary or reimburse him for expenses. Id. However, Bumb continued
Appellees assert Bumb demonstrates that the rule of Osage Oil is not currently the law in cases involving contracts for services. However, the court in Bumb did not specifically address the issue of whether, when a contract is repudiated, the non-repudiating party can "increase the damages to which he would otherwise be entitled" by continuing to perform. See Osage Oil, 230 S.W. at 522. We cannot agree with appellees that Bumb supports their position that Osage Oil is inapplicable to the case before us.
Finally, in Avasthi, Sharma Dronamraju contracted with a petroleum consulting company, Avasthi & Associates, Inc. ("A & A"), to provide geological services for a specific project. Avasthi, 2012 WL 6644873 at *1. The contract contained detailed reporting and billing requirements. Id. It was undisputed that Dronamraju "never timely complied" with those requirements during the ten-month time period that he worked for A & A. Id. at *2. Despite such noncompliance, A & A paid Dronamraju on numerous occasions and continued to request him to perform work on the project. Id. at *3-4. After the project was completed, A & A informed Dronamraju that certain bills for his time "had been submitted too late" and would not be paid by A & A. Id. at *3. Dronamraju filed suit against A & A for breach of contract, seeking payment of his unpaid bills. Id. The jury found in favor of Dronamraju. Id. at *4. On appeal, A & A argued that as a matter of law, it was excused from performing under the contract, i.e. paying Dronamraju, because of Dronamraju's prior material breach of the same contract, i.e. the failure to timely bill. Id. at *6. The First District Court of Appeals in Houston disagreed. Id. at *7. The court concluded that by seeking to continue
As described above, the Agreement stated JBBI was employing BSF "for the purpose of engaging the full-time services of [Berryman]." A contract for personal services is not specifically enforceable. See Gage v. Wimberley, 476 S.W.2d 724, 731 (Tex.Civ.App.-Tyler 1972, writ ref'd n.r.e.); Chain v. Pye, 429 S.W.2d 630, 635 (Tex.Civ.App.-Beaumont 1968, writ ref'd n.r.e.). Further, appellees assert in their brief on appeal that "[a]s early as the first half of May of 2008, [a]ppellants altogether ceased performance under the Agreement." The record shows that at that point, the $291,666.67 claimed by appellees as breach of contract damages had not been paid to appellants. Appellees assert they continued to pay appellants in May, June, July, and August of 2008, even though appellants "never resumed performance under the Agreement." Thus, the record shows that absent the continuation of payments by appellees, they would not "otherwise be entitled" to the $291,666.67 they claim as breach of contract damages. See Osage Oil, 230 S.W. at 522. On this record, we conclude those sums are not recoverable as breach of contract damages. See id.; see also Tower Contracting Co., Inc. v. Flores, 294 S.W.2d 266, 273 (Tex.Civ.App.-Galveston 1956), aff'd as modified, 157 Tex. 297, 302 S.W.2d 396 (1957) (except in cases where specific performance is proper, non-repudiating party "cannot afterwards go on, and thereby increase the damages, and then recover such damages from the other party"). The record shows no evidence of other breach of contract damages claimed by appellees. Consequently, we conclude appellees did not meet their summary judgment burden as to their breach of contract claim. See Petras, 248 S.W.3d at 477; Barnett, 123 S.W.3d at 815; see also TEX.R. CIV. P. 166a(c).
We decide in favor of appellants on their second issue.
In their third issue, appellants contend "the trial court erred in granting summary judgment on [a]ppellees' claims for money had and received because recovery is barred by the voluntary payment doctrine." Appellees respond in part that this argument fails because appellants did not plead voluntary payment as an affirmative defense and "did not cite evidence to or raise the issue of voluntary payment" in their summary judgment response in the trial court. In their reply brief in this Court, appellants assert in part (1) "[t]he voluntary payment doctrine is an equitable estoppel-based defense," (2) appellants "pled equitable estoppel" in their answer, and (3) "[b]ecause [plaintiffs] failed to specially except to [defendants'] affirmative defenses, asserting a general equitable estoppel defense was sufficient to plead the sub-defense of voluntary payment."
Under the voluntary payment rule, "`[m]oney voluntarily paid on a claim of right, with full knowledge of all the facts, in the absence of fraud, deception, duress, or compulsion, cannot be recovered back merely because the party at the time of payment was ignorant of or mistook the law as to his liability.'" BMG Direct Mktg., Inc. v. Peake, 178 S.W.3d 763, 768 (Tex.2005) (quoting Pennell v. United Ins. Co., 150 Tex. 541, 243 S.W.2d 572, 576 (1951)). "The rule is a defense to claims asserting unjust enrichment; that is, when a plaintiff sues for restitution claiming a payment constitutes unjust enrichment, a defendant may respond with the voluntary-payment rule as a defense." Id.; see Miga v. Jensen, 299 S.W.3d 98, 103 (Tex. 2009) (voluntary payment rule is "a defense to a restitution claim").
The record shows appellants did not assert the voluntary payment rule as a defense or address voluntary payment in their summary judgment response. See BMG Direct Mktg., Inc., 178 S.W.3d at 768; TEX.R. CIV. P. 166a(c). Further, appellants cite no authority, and we have found none, to support their assertion that the voluntary payment rule is a "sub-defense" of a "general equitable estoppel defense." Cf. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515-16 (Tex.1998) ("[T]he doctrine of equitable estoppel requires: (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations."). We conclude appellants' third issue presents nothing for this Court's review. See TEX.R. CIV. P. 166a(c).
We decide against appellants on their third issue.
Next, we address appellants' ninth issue, in which they assert the trial court "erred in sustaining [a]ppellees' objections to [a]ppellants' summary judgment evidence." Specifically, appellants assert the trial court abused its discretion by sustaining appellees' objections to Berryman's affidavit respecting "improper conclusions and opinions," irrelevant testimony, hearsay testimony, and lack of required attachments.
We review a trial court's ruling that sustains an objection to summary judgment evidence for an abuse of discretion. Cantu v. Horany, 195 S.W.3d 867, 871 (Tex.App.-Dallas 2006, no pet.); Bradford Partners II, L.P. v. Fahning, 231 S.W.3d 513, 521 (Tex.App.-Dallas 2007, no pet.). "[W]hen an appellee urges several objections to a particular piece of evidence and, on appeal, the appellant complains of its exclusion on only one of those bases, the appellant has waived that issue for appeal because he has not challenged all possible grounds for the trial court's ruling that sustained the objection." Cantu, 195 S.W.3d at 871; see Bradford Partners, 231 S.W.3d at 521; Goodenberger v. Ellis, 343 S.W.3d 536, 540 (Tex.App.-Dallas 2011, pet. denied).
As described above, appellants filed an initial brief and a reply brief in this Court. In those briefs, appellants do not address appellees' objections that portions of Berryman's affidavit constituted a "sham affidavit." Therefore, we conclude appellants have presented no challenge in this Court to the trial court's sustaining of appellees' "sham affidavit" objections respecting paragraphs 9, 12, 15, 16, 19, 22, 24, and 28 of Berryman's affidavit. See Cantu, 195 S.W.3d at 871; Bradford Partners, 231 S.W.3d at 521.
As to appellees' objection "to the entirety of Berryman's affidavit for failing to be based on personal knowledge," appellants contend in their reply brief in this Court that they "properly addressed [appellees'] personal knowledge arguments, and therefore, did not waive their right to argue against them on appeal." According to appellants, in their initial appellate brief, they (1) "cite to [Berryman's] testimony that he was present during his conversations with [Brinkmann] and certain JBBI employees, and therefore demonstrated he had the personal knowledge regarding what statements were made during those conversations"; (2) "dedicated an entire section of their brief to explaining how the statements of Brinkmann and his employees were not hearsay because the statements constitute admissions by a party opponent"; and (3) explained "how [appellees'] own internal business records were the source of [Berryman's] personal knowledge."
First, appellants' citations in their initial appellate brief that purportedly show Berryman's "personal knowledge" as to his conversations with Brinkmann and JBBI employees appear in a section of appellants' brief addressing objections to "conclusory statements" of Berryman. The issue of whether Berryman's "personal knowledge" was based on hearsay was not addressed with respect to those statements.
Second, in the portion of appellants' initial appellate brief addressing appellees' hearsay objections, appellants assert appellees are "incorrect" that Berryman's affidavit contained hearsay. Then, appellants contend, "For one, contrary to [appellees'] arguments, the statements of people in [appellees'] accounting department that certain submitted reimbursements had been approved (CR at 712) fall under the hearsay exception for admissions
Finally, in the third portion of appellants' initial brief to which they direct this Court, appellants specifically address appellees' objection that Berryman's affidavit should be struck because Berryman did not attach required documents pursuant to Texas Rule of Civil Procedure 166a(f). See TEX.R. CIV. P. 166a(f) (providing in part that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto"). Appellants cite the following statement of Berryman in his affidavit:
Then, appellants argue that because Berryman "simply identified a source from which his personal knowledge was developed" and "does not refer to documents in this paragraph," he "was not required to attach documents." Appellants do not address hearsay in that argument.
Because the trial court could have granted appellees' objections to Berryman's affidavit on grounds not challenged by appellants, we conclude appellants have waived their complaint that the trial court erred by sustaining appellees' objections to their summary judgment evidence. See Goodenberger, 343 S.W.3d at 540 (citing Cantu, 195 S.W.3d at 871).
We decide appellants' ninth issue against them.
Now, we address together appellants' tenth and eleventh issues, in which they assert error by the trial court in granting summary judgment on their counterclaim for "breach of the agreement to reimburse expenses." Specifically, in their tenth issue,
Appellees respond that "the statute of frauds bars appellants' expense reimbursement breach of contract claim." Further, appellees argue partial performance does not bar application of the statute of frauds in this case because appellants waived that defense.
Under the statute of frauds, certain contracts are not enforceable unless they are in writing and signed by the person against whom enforcement of the contract is sought. See TEX. BUS. COM. CODE ANN. 26.01(a) (West 2009); S & I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 854 (Tex.App.-Dallas 2011, no pet.). The party pleading the statute of frauds bears the burden of establishing its applicability. See Kalmus, 390 S.W.3d at 589.
The statute of frauds applies to, inter alia, "an agreement which is not to be performed within one year from the date of the making of the agreement." TEX. BUS. COM.CODE ANN. 26.01(b)(6). When a promise or agreement, either by its terms or by the nature of the required acts, cannot be completed within one year, it falls within the statute of frauds and is unenforceable unless it is in writing and signed by the person to be charged. See id. § 26.01(a), (b)(6); Kalmus, 390 S.W.3d at 589. If the agreement is capable of being performed within one year, it is not within the statute of frauds. Kalmus, 390 S.W.3d at 589 (citing Gerstacker v. Blum Consulting Eng'rs., Inc., 884 S.W.2d 845, 849 (Tex.App.-Dallas 1994, writ denied)). The question of whether an agreement falls within the statute of frauds is one of law. See Bratcher v. Dozier, 162 Tex. 319, 346 S.W.2d 795, 796 (1961); Biko v. Siemens Corp., 246 S.W.3d 148, 159 (Tex. App.-Dallas 2007, pet. denied). However, whether the circumstances of a particular case fall within an exception to the statute of frauds is generally a question of fact. See Kalmus, 390 S.W.3d at 589; Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 705 (Tex.App.-Houston [1st Dist.] 1988, writ denied).
In deciding whether an agreement is capable of being performed within one year, we compare the date of the agreement to the date when the performance under the agreement is to be completed. Kalmus, 390 S.W.3d at 590. If there is a year or more between those two reference points, a writing is required to render the agreement enforceable. Id. When the date performance will be completed cannot be readily ascertained, the law provides that if performance could conceivably be completed within one year of the agreement's making, a writing is not required to enforce it. Id.; see also Miller v. Riata Cadillac Co., 517 S.W.2d 773, 775 (Tex.1974) ("If a contract can, from the terms of the agreement, be performed within one year it is not within the Statute of Frauds.").
Under the partial performance exception to the statute of frauds, contracts that have been partly performed, but do not meet the requirements of the statute of frauds, may be enforced in equity if denial of enforcement would amount to a virtual fraud. Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex.App.-Dallas
First, we address appellants' argument in their eleventh issue that the alleged agreement to reimburse expenses "modified only the one year renewals of the Agreement" and therefore was not barred by the statute of frauds. Appellants contend "[e]ven if the statute of frauds initially applied to the expense reimbursement agreement as a modification of the 2001 Agreement, an agreement to reimburse expenses can be implied regarding the one year renewals of the 2001 Agreement that would not be barred by the statute of frauds." According to appellants, (1) "[o]nce the initial term of the 2001 Agreement expired, and it automatically renewed on an annual basis, it was no longer covered by the statute of frauds because it was capable of being performed within a year" and (2) "[l]ikewise, the modification of the 2001 Agreement to allow for expense reimbursement would not be covered by the Statute of Frauds." In support of their argument, appellants cite Garcia v. Karam, 154 Tex. 240, 276 S.W.2d 255, 257 (1955), for the statement that "[i]f neither the portion of the written contract affected by the subsequent modification nor the matter encompassed by the modification itself is required by the Statute of Frauds to be in writing, then the oral modification will not render the contract unenforceable." Additionally, appellants cite Miller for the statement that "contracts that can be performed within one year are not within the Statute of Frauds." Miller, 517 S.W.2d at 775.
Garcia involved a purchaser's action for a seller's alleged breach of a written contract for the sale of realty. Garcia, 276 S.W.2d at 256; see also TEX. BUS. COM.CODE ANN. 26.01(b)(4) (providing contract for sale of real estate is within statute of frauds). The contract provided that $20,000 of the purchase price was to be paid by merchandise. Garcia, 276 S.W.2d at 256. Subsequent to executing the written contract, the parties orally agreed that the seller would accept the merchandise without the necessity of taking inventory. Id. The purchaser later filed and prevailed in a suit to enforce the contract as modified by the oral agreement. Id. On appeal to the supreme court, the seller contended the oral modification of the contract was prohibited by the statute of frauds because it amounted to a "complete change" of the terms of the contract between the parties and was an attempt to "substitute an entirely new consideration" for the one required by the writing. Id. The supreme court reasoned, "Had the [plaintiff] contracted in writing for the sale of his merchandise for `$20,000.00, at invoice', and subsequently agreed orally with the [defendant] to convey without an inventory, the Statute of Frauds would have been wholly inapplicable." Id. at 257. The court stated that the oral modification did not change the "subject matter of the contract," but "only the method of performing it." Id. Therefore, the court concluded, the subsequent oral modification of the written contract was valid. Id.
In Miller, Kenneth F. Miller was employed by Riata Cadillac Co. as a used car manager pursuant to an oral contract.
Unlike the case before us, neither Garcia nor Miller involved a contract with an initial term longer than one year followed by automatic annual renewals. Further, neither case discussed application of the statute of frauds to such a contract. Therefore, we do not find those cases instructive. Appellants cite no other authority, and we have found none, to support their position that "[o]nce the initial term of the 2001 Agreement expired, ... it was no longer covered by the statute of frauds because it was capable of being performed within a year." Cf. Hampton v. Lum, 544 S.W.2d 839, 841 (Tex.Civ.App.-Texarkana 1976, no writ) (construing lease as "demise for twenty-four months" where lease provided for one-year period that automatically renewed for another year in the absence of notice).
As described above, the record shows the Agreement stated it was for "a term of five years starting August 1, 2001 and is to be renewed annually thereafter unless either parties [sic] gives notice in writing 90 days prior to the end of any anniversary date." Additionally, the record shows (1) Berryman testified in part in his deposition that at approximately the same time the Agreement was executed in 2001, he and JBBI entered into an oral agreement that Berryman's business expenses would be reimbursed by JBBI and (2) Brinkmann testified JBBI reimbursed Berryman for various expenses starting in 2001 and continuing until at least 2006. We cannot agree with appellants that there is evidence in the record that the alleged modification of the 2001 Agreement to allow for expense reimbursement was capable of being performed within one year.
Second, we address appellants' assertion in their eleventh issue that the statute of frauds does not bar the modification in question because it was "an immaterial change to the Agreement." According to appellants, the statute of frauds is applicable to the modification in this case only if "the modification materially effects the obligations of the underlying agreement." In support of that position, appellants cite a case involving an oral modification to reduce a real estate brokerage commission in a contract to sell real estate. See Am. Garment Props., Inc. v. CB Richard Ellis-El Paso, L.L.C., 155 S.W.3d 431, 437 (Tex.App.-El Paso 2004, no pet.). However, we concluded above that the alleged modification of the 2001 Agreement to allow for expense reimbursement was not capable of being performed within one year. Appellants cite no authority, and we have found none, to support the position that a modification not capable of being performed within one year falls outside the statute of frauds if it constitutes an "immaterial change" to the original contract. See TEX. BUS. COM.CODE ANN. 26.01(b)(6). We cannot agree with appellants that the materiality of the modification in question has any bearing on the application of the statute of frauds in this case.
Third, appellants contend in their eleventh issue that "[e]ven if the statute of frauds applies to modifications of the 2001 Agreement, the expense reimbursement agreement alternatively should be viewed
Appellees contend appellants pleaded and argued in the trial court that "there was an oral modification of the written Agreement." (emphasis original). According to appellees, appellants did not assert in the trial court that "the expense reimbursement agreement was a stand alone agreement" and therefore appellants cannot make that contention for the first time on appeal. Further, appellees argue, "even if such an agreement existed, it could not have been performed within one year because it would necessarily correlate to the five (5) year term of the Agreement."
The record shows appellants asserted in their amended response to the motion for summary judgment that the agreement to pay expenses was an "oral modification" of the Agreement and/or an "implied in fact modification." Appellants did not argue in the trial court that "the expense reimbursement agreement is independent of the 2001 Agreement." Consequently, that argument presents nothing for this Court's review. See TEX.R. CIV. P. 166 a(c); McConnell, 858 S.W.2d at 343; Clear Creek Basin Auth., 589 S.W.2d at 676-77.
Fourth, we address appellants' argument that the partial performance exception to the statute of frauds applies in this case. The record shows that in their amended response to appellees' motion for summary judgment in the trial court, appellants asserted "part performance by the parties takes the Agreement outside the statute of frauds." In a footnote to that statement, appellants cited the portion of Breezevale that states the law described above respecting partial performance. See 82 S.W.3d at 439. Appellants' argument as to "part performance" in the trial court contained no other statements, analysis, or citations to authority or to the record.
"[A] party submitting summary judgment evidence `must specifically identify the supporting proof on file that it seeks to have considered by the trial court.'" Bich Ngoc Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex.App.-Dallas 2013, pet. denied) (quoting Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex.App.-San Antonio 2006, no pet.)). On this record, we conclude the trial court did not err by concluding appellants did not satisfy their burden to raise a fact issue as to partial performance. See id. at 777; see also MGA Ins. Co., 358 S.W.3d at 815; TEX.R. CIV. P. 166a(i).
Based on the preceding analysis, we conclude the trial court did not err by concluding the requirements of the statute of frauds apply to the alleged agreement to reimburse expenses. TEX. BUS. COM.CODE ANN. 26.01(a), (b)(6). We decide against appellants on their eleventh issue.
In their tenth issue, appellants assert that even if the trial court properly excluded Berryman's affidavit, the remaining evidence in the record "raises material questions of fact as to the existence, terms, and breach" of the agreement to reimburse expenses. In a footnote to their appellate argument on this issue, appellants contend appellees "err in assuming that the expense reimbursement agreement must have been in writing." However, we concluded above that the trial court did not
We decide appellants' tenth issue against them.
Chapter 37 of the Texas Civil Practice and Remedies Code is titled "Declaratory Judgments." See TEX. CIV. PRAC. REM.CODE ANN. §§ 37.001-37.011 (West 2008). Section 37.004 of that chapter provides in part
Id. § 37.004(a).
We review declaratory judgments under the same standards as other judgments. Id. § 37.010; Lidawi v. Progressive Cnty. Mut. Ins. Co., 112 S.W.3d 725, 730 (Tex.App.-Houston [14th Dist.] 2003, no pet.). We look to the procedure used to resolve the issue at trial to determine the standard of review on appeal. Lidawi, 112 S.W.3d at 730. Thus, in the case before us, we review the propriety of the trial court's declaratory judgment under the same standards we apply to a summary judgment. Id.
In their fourth issue, appellants assert "the trial court erred in granting summary judgment on [a]ppellees' declaratory judgment claim because declaratory relief was redundant with [a]ppellees' breach of contract claim and therefore barred as a matter of law." Appellees respond in part that "[a]ppellants did not object or otherwise argue to the trial court that declaratory relief was `merely redundant or duplicative' of [a]ppellees' other claims" and "cannot do so for the first time on appeal." Appellants argue in their reply brief in this Court that their complaint respecting the redundancy of the declaratory judgment claim was not "waived" by their failure to object at the trial level because (1) "[a] failure to object is not waiver when error is apparent from the face of the record" and (2) "it is apparent from the face of the record that [plaintiffs'] breach of contract and declaratory judgment claims involve the same issues and resolution of one adds nothing to the other."
In support of their argument that their failure to object did not constitute "waiver," appellants cite Coastal Transport Co., Inc. See 136 S.W.3d at 233. However, unlike the case before us, that case involved a no-evidence challenge asserted for the first time on appeal. The supreme court concluded in that case that when such a challenge is "restricted to the face of the record (for example, when expert testimony is speculative or conclusory on its face)," a party "may challenge the legal sufficiency of the evidence even in the absence of any objection to its admissibility." In the case before us, appellants do not explain, and the record does not show, how their complaint respecting redundancy is a challenge to the legal sufficiency of the evidence.
We decide against appellants on their fourth issue.
In their fifth and sixth issues, appellants contend the trial court erred in granting summary judgment on appellees' declaratory judgment claim because fact questions exist (1) "as to the trial court's declarations" and (2) "concerning whether [a]ppellees' conduct excused further performance by [a]ppellants."
First, we consider appellants' assertion in their sixth issue that "any breach by [appellants] was excused by [appellees'] conduct." In support of their argument, appellants cite the general rule that "performance is excused when a party to a contract prevents the other from performing." See O'Shea v. Int'l Bus. Mach. Corp., 578 S.W.2d 844, 846 (Tex.Civ.App.-Houston [1st Dist.] 1979, writ ref'd n.r.e.). Appellants contend that "[u]nder this general rule, actions of [appellees] that undermined or interfered with [appellants'] ability to sell or market products excused any alleged breach of such duties because such actions prevented performance." Additionally, appellants cite O'Shea in support of their position that "[a]ny question of fact as to whether [appellees] interfered with [appellants'] performance would preclude summary judgment."
Appellees respond in part that appellants "cite no authority for the proposition that `undermining' or `interfering' are the equivalent of preventing performance." Further, appellees argue the trial court "properly disposed of appellants' attempt to excuse their breach as a matter of law" because "[a]ppellees presented to the trial court undisputed evidence that [a]ppellants were at all times able to perform despite the actions [a]ppellants want to complain about."
The court in O'Shea did not address the question of whether evidence that a party "interfered" with performance constitutes evidence that performance was prevented. See 578 S.W.2d at 846. Appellants cite no other authority, and we have found none, in support of their position that "[a]ny question of fact as to whether [appellees] interfered with [appellants'] performance would preclude summary judgment." In support of their argument that the evidence raises a fact question as to whether appellants' performance of the Agreement was "prevented," appellants cite portions of (1) Berryman's affidavit and (2) the depositions of Berryman and
The record shows Berryman testified in his deposition that he was still able to perform his duties under the Agreement after the negative comments made by Brinkmann in 2006 and 2008. Therefore, we cannot conclude those comments prevented Berryman's performance. In their reply brief in this Court, appellants assert that even if the "defamatory statements" of Brinkmann did not prevent performance, appellees "wholly frustrated [appellants'] ability to perform" because they "effectively eliminated [Berryman's] position" by hiring Bush and "wresting away [Berryman's] authority to act on his accounts." However, the deposition testimony cited by appellants does not show Berryman's performance was prevented by the hiring of Bush. Further, Berryman testified in his deposition that he was not replaced by Bush. On this record, we cannot conclude the evidence raises a fact question as to whether appellants' performance of the Agreement was "excused."
We decide against appellants on their sixth issue.
As to the trial court's four declarations in the judgment, all are challenged by appellants. However, in light of our conclusions above, appellants' arguments respecting the trial court's declaration "c" need not be addressed.
With respect to declaration "a," appellants argue they "presented evidence that the 2001 Agreement had already been constructively terminated by [appellees'] conduct that undermined and interfered with [appellants'] performance of the contract." According to appellants, "[t]his evidence raised a fact question as to whether [appellees] breached the agreement, which should have prevented the trial court from entering summary judgment and making the above declaration."
Appellees respond in part that appellants' argument respecting "constructive termination" is waived because appellants "do not cite or analyze any cases in alleged support of their contention that constructive termination principles apply in non-employment contract cases or, if such did apply, connecting evidence to elements of constructive termination to demonstrate the existence of a fact issue." Additionally, appellees contend "[t]he evidence is uncontroverted that working conditions did not force [a]ppellants to stop performing, and that [a]ppellants did not `resign' or stop performance when the alleged offending incidents occurred, such being requirements of a constructive discharge claim in the employment context."
In their reply brief in this Court, appellants contend appellees' allegations of "waiver" fail for two reasons. First, appellants assert appellees "misunderstand the point" of appellants' argument. Specifically, appellants assert "[t]he `constructive termination' language was loosely used to argue that [appellees] breached before [appellants'] alleged breach, and therefore, the further performance by [appellants] was excused." Appellants contend they "presented summary judgment evidence that [appellees] breached before [May 2008] by engaging in conduct that undermined and interfered with [appellants'] performance of the contract." In support of that assertion, appellants cite the same evidence cited by them in their argument pertaining to prevention of performance in their sixth issue above. To the extent appellants assert an argument distinct from their argument pertaining to their sixth issue, appellants do not provide analysis or authority for such argument. Therefore, such argument presents nothing for this Court's review. See TEX.R.APP. P. 38.1(i). Second, appellants assert in their reply brief that "there is no merit to [appellees'] contention that `constructive termination' is a concept limited to application in the employment context." According to appellants, "constructive termination is a concept that is recognized in many types of relationships." In support of that assertion, appellants cite cases that purportedly relate to constructive termination in the contexts of franchise agreements, licensing agreements, and leases. However, appellants do not address the elements of constructive termination in their briefs in this Court or explain how appellees' alleged conduct in question constituted constructive termination. Consequently, we conclude appellants' argument respecting constructive termination presents nothing for this Court's review.
As to declaration "d," appellants contend that declaration was issued in error because appellants "presented evidence that raised a fact question as to [appellees'] breach of the 2001 Agreement by undermining and interfering with [appellants'] performance." In support of that argument, appellants cite to their analysis pertaining
As to the trial court's declaration "b," appellants contend they presented evidence that raises fact questions as to the termination of the Agreement. Specifically, appellants assert
(citations to record omitted).
Appellees respond in part that because appellants "cite and analyze no cases for their position that the Agreement did not expire in August 2008 as determined," that argument is waived. Additionally, appellees assert (1) "[a]ppellants' Termination Letter sent 72 days prior to renewal when coupled with [a]ppellants' failure to resume performance of the Agreement precluded automatic renewal as [a]ppellees under such circumstances are not obligated to require [a]ppellants to comply with the Agreement's notice provision"; (2)"[a]ppellants' breach precluded the Agreement's renewal"; and (3) "[n]o fact questions could exist on this point in any event" because "[t]he meaning of contract language is a question of law for the court." In support of their argument, appellees cite cases pertaining to waiver of contract provisions and cessation of performance due to breach. See Long Trusts v. Griffin, 222 S.W.3d 412, 415-16 (Tex.2006); Guzman v. Ugly Duckling Car Sales of Tex., L.L.P., 63 S.W.3d 522, 528 (Tex.App.-San Antonio 2001, pet. denied); Roma Indep. Sch. Dist. v. Ewing Constr. Co., No. 04-12-00035-CV, 2012 WL 3025927, at *2 (Tex.App.-San Antonio July 25, 2012, no pet.) (mem. op.); Atkinson v. Saddlewood Partners I, Ltd., No. 04-98-00681-CV, 1999 WL 371285, at *4 (Tex.App.-San Antonio June 9, 1999, pet. denied) (not designated for publication).
In their reply brief in this Court, appellants contend in part that "[n]o case law is necessary" to resolve this issue in their favor because "it is apparent on the face of the record that no evidence supports the trial court's declaration that `the Agreement expired by its own terms on August 1, 2008.'"
Because appellants' argument is based on the language of the Agreement, we cannot agree with appellees that appellants waived this argument by not citing case law. Further, the cases cited by appellees in support of their argument do not involve compliance with a contract provision respecting notice that precludes automatic renewal of the contract. Therefore, we do not find those cases instructive.
The record shows paragraph three of the Agreement stated in part, "This Agreement is for a term of five years starting August 1, 2001 and is to be renewed annually thereafter unless either parties [sic] gives notice in writing 90 days prior to the end of any anniversary date." Berryman's letter alleging he had been "constructively terminated" was dated May 20, 2008, which the parties do not dispute is less than ninety days prior to August 1, 2008. Thus, while the trial court's statement that "Defendants' Agreement Termination Letter was received by
We decide in favor of appellants on the portion of their fifth issue respecting the trial court's declaration "b." Appellants' fifth issue is otherwise decided against them. We reverse declaration "b" of the trial court's judgment and render judgment denying summary judgment as to that declaration.
However, the record shows (1) the summary judgment in question was sought and granted on multiple grounds and (2) declaration "b" is immaterial to summary judgment as prayed for by appellees on the ground of money had and received and declarations "a," "c," and "d." Therefore, the trial court's error respecting declaration "b" does not necessitate reversal of the entirety of the trial court's summary judgment. See Zimmerhanzel, 346 S.W.3d at 724; see also TEX.R.APP. P. 44.1.
In their seventh issue, appellants assert in part "the trial court erred in awarding [a]ppellees attorneys' fees when [a]ppellees failed to conclusively prove the reasonableness and necessity of the claimed fees by not segregating fees incurred for work on causes of action for which such fees are permitted, from causes of action for which such fees are barred."
Appellees contend appellants "waived any complaint" respecting segregation of attorneys' fees because they "did not object to [a]ppellees' attorneys' fees evidence or provide controverting evidence." Further, appellees argue, counsel for appellees testified to the trial court "in great detail" in his affidavit, "including segregating 15 percent of the attorney's fees incurred."
Texas law does not allow recovery of attorneys' fees unless authorized by statute or contract. See, e.g., Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex.2006). A person may recover reasonable attorneys' fees from an individual or corporation, in addition to the amount of a valid claim and costs, if the claim is for an oral or written contract. TEX. CIV. PRAC. REM.CODE ANN. 38.001(8); see Ashford Partners, Ltd. v. ECO Res., Inc., 401 S.W.3d 35, 40 (Tex.2012) ("[T]o qualify for fees under [section 38.001(8)], a litigant must prevail on a breach of contract claim and recover damages."). Additionally, under section 37.009 of the civil practice and remedies code, the trial court in a declaratory judgment proceeding may award "reasonable and necessary attorney's fees as are equitable and just." TEX. CIV. PRAC. REM.CODE ANN. 37.009; see also Jarvis v. Rocanville Corp., 298 S.W.3d 305, 317 (Tex.App.-Dallas 2009, pet. denied).
If any attorneys' fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees.
We concluded above that the trial court erred by granting summary judgment on plaintiffs' breach of contract claim. Therefore, attorneys' fees based on that cause of action cannot be recovered. See TEX. CIV. PRAC. REM.CODE ANN. 38.001(8). However, as described above, appellants' issues pertaining to declarations "a," "c," and "d" in the final judgment are decided against them in this appeal. Therefore, a basis for recovery of attorneys' fees remains. See TEX. CIV. PRAC. REM.CODE ANN. 37.009.
The record shows that in an affidavit in the appendix to appellees' motion for summary judgment, counsel for appellees testified in part (1) at least 85%, or $127,073, of the attorneys' fees and paralegal fees incurred by plaintiffs so far "are recoverable against the [d]efendants in this lawsuit"; (2) "it is reasonable to conclude that [plaintiffs'] counsel's activities cannot all be segregated by task and as such are dependent on the same or similar sets of facts and circumstances, are part of many of the same tasks, and are therefore so intertwined that they cannot be so separated or segregated" (3) a fair estimate of additional attorneys' fees likely be incurred by plaintiffs through the hearing on plaintiffs' motion for summary judgment to advance plaintiffs' "affirmative claims" against defendants is at least $33,875; and (4) in the event of appeal respecting plaintiffs' "affirmative claims," plaintiffs will likely incur at least an additional $35,000 in fees in defense of an appeal to the Dallas Court of Appeals, $20,000 in fees in briefing an appeal to the Texas Supreme Court, and $15,000 in fees if the Texas Supreme Court grants a hearing on such appeal. Appellants did not object to this evidence or provide controverting evidence respecting segregation of attorneys' fees. On this record, we conclude appellees met their burden as to segregation of attorneys' fees. See Tony Gullo Motors, 212 S.W.3d at 313-14; RM Crowe Prop. Servs. Co., L.P., 348 S.W.3d at 453; see also Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.1997) ("if no one objects to the fact that the attorney's fees are not segregated as to specific claims, then the objection is waived").
We decide against appellants on their seventh issue.
Lastly, in their eighth issue, appellants contend "the trial court erred in entering judgment in favor of [Brinkmann], individually, when he did not recover on any cause of action." Appellants assert that at the time the final judgment was entered, Brinkmann "was not a party to the affirmative causes of action on which judgment was entered." According to appellants, "[t]he trial court's judgment must be reversed because it awarded damages, attorneys' fees, costs and interest to an individual who was not a party to any cause of action on which those amounts were awarded."
Appellees "agree that the final judgment should be modified so Brinkmann individually is removed from the award of damages or fees because he never requested that relief." Specifically, appellees contend in a footnote in their appellate brief
(citations to record omitted).
Under rule 559 of the Texas Rules of Civil Procedure, "[t]he successful party in the suit shall recover his costs, except in cases where it is otherwise expressly provided." See TEX.R. CIV. P. 559. Further, section 304.003(a) of the Texas Finance Code provides in part that "[a] money judgment of a court of this state ..., including court costs awarded in the judgment and prejudgment interest, if any, earns postjudgment interest at the rate determined under this section." TEX. FIN. CODE ANN. 304.003(a) (West 2006); see Dallas Cnty., Tex. v. Crestview Corners Car Wash, 370 S.W.3d 25, 50 (Tex.App.-Dallas 2012, pet. denied) (postjudgment interest accrues on entire amount of final judgment, including court costs and prejudgment interest, from date of judgment until paid).
The record shows that at the time the final judgment in this case was signed, Brinkmann was a third-party defendant as to appellants claims for business disparagement,
We reverse the portions of the trial court's judgment (1) granting summary judgment in favor of Brinkmann on the claims asserted by JBBI and TBC for breach of contract, money had and received, and declaratory judgment and (2) awarding Brinkmann damages, attorneys' fees, prejudgment interest, and postjudgment interest on items other than costs of court. Additionally, we render judgment omitting Brinkmann from (1) the portion of the summary judgment respecting the claims asserted by JBBI and TBC for breach of contract, money had and received, and declaratory judgment and (2) the award of damages, attorneys' fees, prejudgment interest, and postjudgment interest on items other than costs of court. See TEX.R.APP. P. 43.2(c) (providing appellate court may reverse trial court's judgment in part and render judgment trial court should have rendered). Appellants' eighth issue is otherwise decided against them.
We decide in favor of appellants on their second issue and portions of their fifth and eighth issues. We need not reach appellants' first issue. Appellants' remaining issues are decided against them.
We reverse the trial court's judgment, in part, as to (1) declaration "b"; (2) summary judgment on the breach of contract claim asserted by JBBI and TBC; (3) summary judgment in favor of Brinkmann on the claims asserted by JBBI and TBC for money had and received and declaratory judgment; and (4) the award to Brinkmann of damages, attorneys' fees, prejudgment interest, and postjudgment interest on items other than costs of court. We render judgment (1) denying summary judgment as to declaration "b" and the breach of contract claim asserted by JBBI and TBC and (2) modifying the judgment to omit Brinkmann from the parties granted summary judgment on the affirmative claims asserted by JBBI and TBC and from the trial court's award of damages, attorneys' fees, prejudgment interest, and postjudgment interest on items other than costs of court. The trial court's judgment is otherwise affirmed.
