Robert Martin, Individually and d/b/a Silverado Aviation v. Wendle W. Williams--Appeal from 82nd District Court of Robertson County

IN THE

TENTH COURT OF APPEALS

No. 10-94-234-CV

ROBERT MARTIN, INDIVIDUALLY AND D/B/A

SILVERADO AVIATION,

Appellant

v.

WENDLE W. WILLIAMS,

Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court # 92-01-14,113-CV

O P I N I O N

Robert Martin appeals from a judgment rendered against him for damages to Wendle Williams' airplane while Martin had possession of the aircraft. The jury found that Martin's negligence was the proximate cause of 100% of the damages. Pursuant to the verdict, the court rendered judgment against Martin for $17,680 cost-of-repair damages, plus $4,698.04 in prejudgment interest. Martin brings one point of error, claiming that the court incorrectly awarded damages based on the jury's cost-of-repair finding instead of its diminution-in-value finding. Williams brings a cross-point of error, complaining that the court improperly disregarded jury findings and refused to grant him attorney's fees. We will affirm the judgment.

After the trial, Williams moved for judgment on the verdict. In the motion, Williams requested that the court award him an amount equal to the jury's finding of the cost of repairs. Although the court set the motion for a hearing, we do not have a statement of facts from that hearing. In fact, Martin failed to bring a statement of facts from any portion of the trial, providing us only with the transcript. See Tex. R. App. P. 50(d). Nothing in the transcript shows that Martin complained to the trial court about the measure of damages used in calculating the judgment. Absent some complaint below, he is prevented from complaining about the measure of damages in this court. See id. 52(a); Werner v. Colwell, 857 S.W.2d 75, 82 (Tex. App. Waco 1993), rev'd in part, aff'd in part, 37 Tex. Sup. Ct. J. 208, 209 (November 24, 1993); D/FW Commercial Roofing Co, Inc. v. Mehra, 854 S.W.2d 182, 188-89 (Tex. App. Dallas 1993, no writ); Winters v. Arm Refining Co., Inc., 830 S.W.2d 737, 738-39 (Tex. App. Corpus Christi 1992, writ denied). Thus, Martin's sole point of error is overruled.

In his cross-point, Williams claims that the court erred in failing to award him attorney's fees. See Tex. Civ. Prac. & Rem. Code Ann. 38.01 (Vernon 1986). The jury was asked to find the amount of reasonable attorney's fees incurred by Williams. After the trial Martin moved to disregard the jury's response to that question, arguing that attorney's fees were not available because Williams' cause of action sounded in tort and there was no evidence of proper presentment of the claim. See id. 38.01, 38.02(2). Williams responded in writing, asserting that his claim was based on a bailment, i.e., a contract theory, and that he had introduced documents into evidence that constituted presentment. See id.

An award of attorney's fees is mandatory if the provisions of the statute are met. See Caldwell & Hurst v. Myers, 714 S.W.2d 63, 65 (Tex. App. Houston [14th Dist.] 1986, writ ref'd n.r.e.). Attorney's fees are not available in a suit sounding in tort, even if the tortfeasor is a bailee who negligently damages the bailed property. See Fowler v. One Seguin Art Center, 617 S.W.2d 763, 765 (Tex. Civ. App. Houston [14th Dist.] 1981, writ ref'd n.r.e.). For this reason, the court did not err in refusing to grant Williams attorney's fees.

Additionally, Williams had the burden of pleading and proving that he had presented the claim to Martin as required by the statute. See Jim Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 904 (Tex. App. Austin 1991, no writ). Martin specifically challenged Williams' compliance with this portion of the statute. We do not have a statement of facts from the trial or any of the exhibits admitted into evidence. Nor do we have a statement of facts from the hearing on Williams' motion for judgment on the verdict. Williams has the burden of providing a record sufficient to show error by the court to support his cross-point. See Tex. R. App. P. 50(d). Because we cannot know if Williams carried his burden of proof on the presentment issue without a statement of facts, we cannot determine if the court erred in refusing to award him attorney's fees. Williams' cross-point is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed November 30, 1994

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