HUGH SUMLIN, Appellant v. JACK SUMLIN, Appellee

AFFIRMED and Opinion filed on November 10, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00260-CV
............................
HUGH SUMLIN, Appellant
V.
JACK SUMLIN, Appellee
 
.................................................................
On Appeal from 160th Civil District Court
Dallas County, Texas
Trial Court Cause No. 87-10432-H
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O P I N I O N
Before Justices Howell, Rowe and Kinkeade
Opinion By Justice Kinkeade
        In this limited appeal, Hugh Sumlin contests the jury's failure to award him attorney's fees for the prosecution of his breach of contract action. Hugh argues that the jury's findings of "none" as the proper amount of attorney's fees to which he is entitled goes against the great weight and preponderance of the evidence. Further, Hugh argues that the trial court erred in refusing to grant his motion for severance to allow a new trial on the issue of attorney's fees. Because Hugh failed to segregate the amount of time expended by his attorney to manage the joint bank account from the amount of time expended by his attorney to prosecute his breach of contract action, we overrule Hugh's two points of error. Jack Sumlin, Hugh's brother, cross-appeals the denial of his motion for a take-nothing judgment n.o.v. on Hugh's breach of contract action. Jack argues that the trial court erred in rendering judgment for Hugh because Hugh neither requested submission of an issue regarding consideration nor objected to its omission from the court's charge to the jury. Because Jack failed to submit a supplemental statement of facts, we must presume that the parties presented sufficient probative evidence to the jury to support the verdict. We overrule Jack's cross-point of error and affirm the trial court's judgment.
FACTS
        In September 1981, Hugh and Jack's mother gave the brothers an equal undivided interest in certain monies, items of personal property, and the proceeds of a purchase money mortgage secured by real property. The brothers orally agreed to hold the funds and property jointly. The brothers also agreed to use part of these funds, and the income earned thereon, for the care of their mother. In furtherance of these agreements, the brothers set up a joint bank account which required only one of their signatures for withdrawal. Shortly thereafter, their mother moved into a nursing home where she remained until her death in the summer of 1988.
        In 1987, Hugh requested that Jack give him an accounting of the jointly held funds. Jack refused to provide the requested accounting. Hugh later discovered that Jack had removed most of the funds from the joint account. Hugh alleged that Jack converted these funds to his personal use. Seeking to protect the jointly held funds and the income received on behalf of their mother pending trial, the brothers entered into an agreed temporary injunction on September 16, 1987. The temporary injunction specifically authorized and directed Hugh and Jack to establish a joint checking account to receive the funds held or received on behalf of their mother. The court ordered joint consent by the brothers for the release of funds from the checking account for expenses incurred by or on behalf of their mother. By agreement the parties' attorneys continued to sign checks on their behalf.
        At trial, Hugh's attorney testified as to a reasonable hourly rate, reasonable attorney's fees for trial of this matter, and reasonable attorney's fees for any appeals. Hugh's attorney also testified to the services he provided Hugh prior to trial. These services included filing the lawsuit, establishing the joint account, managing the joint account, and participating in pretrial matters. Hugh's attorney failed, however, to segregate the time spent on each of these different services.
        The jury found in favor of Hugh on his breach of contract action. The judgment awarded Hugh damages, court costs, and post-judgment interest. The judgment, however, denied Hugh the recovery of attorney fees. The court based its denial of attorney's fees on the jury's answer of "none" to the special issue asking the amount of attorney's fees Hugh was entitled to recover in this cause.
Attorney's Fees
        In his first point of error, Hugh argues that the failure to award him attorney's fees for the prosecution of his breach of contract action goes against the great weight and preponderance of the evidence. An award for attorney's fees must be based upon some statutory or contractual authority. Republicbank Dallas v. Shook, 653 S.W.2d 278, 282 (Tex. 1983); Southern Concrete Co. v. Metrotec Financial, Inc., 775 S.W.2d 446, 449 (Tex. App.--Dallas 1989, no writ). In Texas a party may recover reasonable attorney's fees from an individual, in addition to a valid claim and costs, if the claim involves an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 1986). If the suit, however, involves more than one claim, a party may only receive attorney's fees for the necessary legal services rendered in connection with the claim for which the statute authorizes recovery, segregated from those services rendered in connection with other claims. Flint & Assocs. v. Intercontinental Pipe & Steel, Inc., 739 S.W.2d 622, 624 (Tex. App.--Dallas 1987, no writ). A corollary to this rule allows recovery of reasonable fees for services rendered in connection with all claims, if the claims arise out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. Id. at 624-25. If the claims involved necessitate the segregation of attorney's services and the party seeking recovery of attorney's fees fails to segregate the unconnected services, the jury may refuse to award any attorney's fees. See Southern Concrete 775 S.W.2d at 450.
        Hugh contends that when the record contains evidence of the necessity and amount of reasonable attorney's fees the jury may only determine the amount of attorney's fees to award, it may not deny an award of attorney's fees altogether citing Elizabeth-Perkins, Inc. v. Morgan Express, Inc., 554 S.W.2d 216, 219 (Tex. App.--Dallas 1977, no writ). In Elizabeth-Perkins, the attorney's fees which the appellant sought were all incurred in connection with the prosecution of the claim. In the present case, Hugh not only seeks recovery of attorney's fees for services rendered in connection with the prosecution of his cause of action, but also for setting up the joint account and day-to-day management of that account.
        Normally for a breach of contract action attorney's fees are statutorily authorized. Hugh's attorney, however, failed to segregate his charge for prosecuting the breach of contract action from his charges for establishing and managing the joint account. Services rendered in connection with establishing and managing the joint account were not necessary to prove Hugh's breach of contract claim. An insufficient nexus exists between the management of the joint account and the prosecution of the breach of contract claim to justify including the charges for the former in the prosecution of the latter. Since Hugh's attorney failed to segregate his charges for these different services, the jury justifiably refused to award attorney's fees. We overrule Hugh's first point of error.
        In his second point of error, Hugh argues that the trial court erred in refusing to grant his motion for severance to allow a new trial on the issue of attorney's fees. Since the jury justifiably refused to award attorney's fees, the trial court properly denied Hugh's motion for severance. We overrule Hugh's second point of error.
Consideration
        In his cross-point of error, Jack argues that the trial court erred in rendering judgment for Hugh, because Hugh neither requested submission of an issue regarding consideration nor objected to its omission for the court's charge to the jury. For this limited appeal, Hugh submitted only a partial statement of facts. When the parties submit only a partial statement of facts, the court presumes that sufficient evidence exists in the missing portion of the statement of facts to support the verdict. Harvey v. State, 389 S.W.2d 692, 694 (Tex. App.--Dallas 1965, writ ref'd n.r.e.). Jack failed to submit a supplemental statement of facts, so we presume that sufficient evidence exists to support the trial court's verdict. We overrule Jack's cross-point of error and affirm the trial court's judgment.
 
 
 
 
 
                                                          
                                                          Ed Kinkeade
                                                          Justice
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
890260OF.U05
 
 
File Date[11-10-89]
File Name[890260OF]