JAMES R. CAMERON v. WILLIAM BELL D/B/A JFK HOME MOVING--Appeal from 117th District Court of Nueces County

NUMBER 13-01-767-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

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JAMES R. CAMERON, Appellant,

 
v.

WILLIAM BELL D/B/A JFK HOME MOVING, Appellee.

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On appeal from the 117th District Court
of Nueces County, Texas.

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MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Dorsey (1)
Opinion by Justice Rodriguez

Appellant, James Cameron, brings this appeal following the trial court's judgment in favor of appellee, William Bell. By three issues, Cameron contends the trial court erred in: (1) awarding attorney's fees to appellee; (2) granting Bell's trial amendment; and (3) allowing Bell to recover under a quantum merit theory. We affirm.

I. Facts

Cameron hired Bell to move two houses from Corpus Christi to his ranch near Cotulla. Cameron bought the first house (Oak Park house) from Bell and agreed to pay $13,400.00, which included the cost of moving the Oak Park house. This amount was paid in full before the Oak Park house was moved. Around the time Bell was preparing to move the Oak Park house, Bell agreed to move a second house (Up River house) to Cameron's ranch. After both houses had been moved by Bell, Cameron refused to pay Bell for the cost of moving the Up River house until Bell made some repairs to the Oak Park house. Bell made the repairs and demanded payment of $11, 884.00 for the cost of moving the Up River house. Cameron refused to pay the $11,884.00 because he believed the actual agreed upon price for the move of the Up River house was $4,000.00.

Bell asserted a mechanic's lien for $11,884.00 on three acres of real property owned by Cameron. Bell then filed suit on a sworn account for $11,884.00. The suit also sought foreclosure, and alleged fraud. Cameron filed a motion for partial summary judgment that Bell take nothing on his claims for suit on a sworn account and foreclosure of the lien, and demanded reasonable attorney's fees. The trial court granted the partial summary judgment. Bell then filed an amended petition asserting a quantum merit claim against Cameron. Cameron counterclaimed for: breach of contract; breach of implied warranty; negligence; conversion; deceptive trade practices; removal of cloud on title; and fraud.

At the close of the trial on the merits, but prior to the jury receiving the court's charge, Bell filed a supplemental petition with a trial amendment asserting breach of contract as an additional cause of action. Over Cameron's objection, the trial court allowed the amendment. The jury then found:

that Bell and Cameron did agree on the price that Cameron would pay Bell for moving the Up River house, and that the agreed price was $4,000.00;
that Bell did not fail to exercise reasonable care in the move of the Oak Park house;
that Bell did not fail to move the Oak Park house in a good and workmanlike manner;
that Bell's attorney's fees through trial were $20,000.00, and his attorney's fees on appeal would be $3,500.00 to this Court and $12,000.00 to the Supreme Court of Texas; and
that Cameron's reasonable attorney's fees through trial were $20,000.00.

In its final judgment, the trial court granted judgment for Bell in the amount of $4,000.00, plus the attorney's fees found by the jury. The judgment also granted declaratory relief for Cameron, declaring the lien filed by Bell invalid and clearing the cloud on Cameron's property. The trial court's judgment, however, did not grant Cameron his attorney's fees as found by the jury or as requested in Cameron's partial summary judgment. This appeal ensued.

 

III. Attorney's Fees

By his first issue, Cameron contends the trial court erred in awarding attorney's fees to Bell and not to himself because Cameron was the prevailing party, and because Bell's demand for $11,884.00 was excessive.

A. Standard

The granting or denial of attorney's fees is within the trial court's sound discretion, and we will not reverse the court's ruling regarding attorney's fees absent a clear abuse of discretion. Ryan v. Abdel-Salam, 39 S.W.3d 332, 337 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).

B. Prevailing Party

A party may only recover reasonable attorney's fees if he prevails and recovers damages on a cause of action for which attorney's fees are recoverable. See Tex. Civ. Prac. & Rem. Code Ann. 38.001 (Vernon 1997); Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997); Ryan, 39 S.W.3d at 337.

In this instance, the trial court granted Cameron only declaratory relief. Cameron failed to recover damages on any cause of action for which attorney's fees are recoverable. See Tex. Civ. Prac. & Rem. Code Ann. 38.001. Thus, regardless of whether Cameron prevailed on any claim, because he was not awarded any damages, Cameron was not entitled to recover attorney's fees under section 38.001. See Green Int'l, Inc., 951 S.W.2d at 390; Ryan, 39 S.W.3d at 337.

C. Excessive Demand

Cameron next argues that Bell's demand of $11,884.00 was excessive.

Courts have limited the award of attorney's fees by applying the excessive demand doctrine to section 38.001. See, e.g., Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 417 (Tex. App.-Corpus Christi 2001, pet. denied); Pennington v. Gurkoff, 899 S.W.2d 767, 772 (Tex. App.-Fort Worth 1995, writ denied). A demand is not excessive simply because it is greater than what the jury later determines is actually due. See Findlay v. Cave, 611 S.W.2d 57, 58 (Tex. 1981). The dispositive inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably or in bad faith. See id. at 58; Wayne, 52 S.W.3d at 418. However, a party must affirmatively assert excessive demand in their pleadings as a defense to the claim for attorney's fees, and request and obtain findings of facts on the essential elements of excessive demand. See Pratt v. Trinity Projects, Inc., 26 S.W.3d 767, 769 (Tex. App.-Beaumont 2000, pet. denied); Essex Crane Rental Corp. v. Striland Const. Co., Inc., 753 S.W.2d 751, 758 (Tex. App.-Dallas 1988, writ. denied); cf. Wayne, 52 S.W.3d at 418 (excessive demand issue submitted to jury).

In this instance, Cameron never asserted any excessive demand pleading as a defense to the claim for attorney's fees. Moreover, Cameron's argument that he was not able to assert such a pleading because he was surprised by Bell's supplemental trial amendment is unconvincing. Cameron could have asserted an excessive demand claim as a defense to Bell's claim for attorney's fees under his quantum merit cause of action. See Tex. Civ. Prac. & Rem. Code Ann. 38.001(1), (2) (Vernon 1997). Thus, we conclude the trial court did not abuse its discretion in awarding Bell attorney's fees and not Cameron. See Ryan, 39 S.W.3d at 337. Cameron's first issue is overruled.

IV. Trial Amendment

By his second issue, Cameron contends the trial court erred in granting the trial amendment because it is prejudicial on its face.

A. Standard

A trial court shall permit a party to amend its pleading before judgment is entered, unless: (1) the opposing party presents evidence of surprise or prejudice; or (2) the amendment asserts a new cause of action or defense and is, thus, prejudicial on its face. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994). If the trial amendment is not mandatory, then the decision to permit or deny the amendment rests within the sound discretion of the trial court and may be reversed only upon the showing of a clear abuse of discretion. Id.; Myers v. Walker, 61 S.W.3d 722, 727 (Tex. App.-Eastland 2001, pet. denied).

B. Analysis

A proposed trial amendment, which asserts a new cause of action may be prejudicial on its face. Stephenson v. Leboeuf, 16 S.W.3d 829, 839 (Tex. App.-Houston [14th Dist.] 2000, pet. denied); Whole Foods Mkt. Southwest, L.P. v. Tijerina, 979 S.W.2d 768, 777 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). However, merely because an amended pleading asserts a new cause of action does not make it prejudicial to the opposing party as a matter of law. Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777. Rather, the amendment must be evaluated in the context of the entire case. Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777.

There are three defining characteristics ascertainable from an amendment that is prejudicial on its face. First, the amendment must assert a new substantive matter that reshapes the nature of the trial itself. Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777. Second, the new matter asserted must be of such a nature that the opposing party could not have anticipated it in light of the development of the case up to the time the amendment was requested. Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777. "Merely because the opposing party did not anticipate the issues in the amendment is not the test. The question is whether the opposing party could have anticipated the newly asserted matter as revealed by the record of the case." Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777 (quoting Smith Detective Agency & Nightwatch Serv., Inc. v. Stanley Smith Sec., Inc., 938 S.W.2d 743, 749 (Tex. App.-Dallas 1996, writ denied) (emphasis in original)). Third, the opposing party's presentation of the case would be detrimentally affected by the filing of the amendment. Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777.

In this instance, Cameron asserted a breach of contract claim against Bell because of damage to the Oak Park house, and because Bell was asking a higher price than what was agreed to for moving the Up River house. Bell asserted a quantum merit claim for services rendered in moving the Up River house. At the close of evidence, when it was apparent that there was a contract between the two parties as Cameron had claimed, Bell asserted his breach of contract claim. We find Bell's breach of contract claim did not reshape the nature of the trial, or affect Cameron's presentation of his case. See Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777. Moreover, claims for breach of contract and quantum merit are routinely asserted together as alternative theories of recovery. See Centex Corp. v. Dalton, 840 S.W.2d 952, 955 (Tex. 1992). Cameron could have anticipated that Bell would assert a breach of contract claim in his trial amendment as an alternate to his quantum merit claim. See Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777. Based on the context of the entire case, we conclude Bell's trial amendment is not prejudicial on its face. See Leboeuf, 16 S.W.3d at 839; Tijerina, 979 S.W.2d at 777. Thus, the trial court did not abuse its discretion in granting Bell's trial amendment. See Kilpatrick, 874 S.W.2d at 658. Cameron's second issue is overruled.

V. Quantum Merit

By his third issue, Cameron contends the trial court erred in allowing Bell to recover under a quantum merit theory.

As we have already discussed, a claim for breach of contract and quantum merit are routinely asserted together as alternative theories of recovery. See Centex Corp., 840 S.W.2d at 955. Recovery on an express contract and on quantum merit are inconsistent. Sheridan & Son Co., Inc. v. Seminole Pipeline Co., 731 S.W.2d 620, 624 (Tex. 1987). Where there exists a valid express contract covering the subject matter, there can be no implied contract. Id.

In this instance, the jury specifically found that Cameron agreed to pay Bell $4,000.00 for moving the Up River house. Thus, because there was an express contract between the two parties, there was no implied contract. Bell only recovered under his breach of contract theory. Cameron's third issue is overruled.

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

 

Opinion delivered and filed

this 6th day of February, 2003.

1. Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003 (Vernon 1998).