Texas Judiciary Online - HTML Opinion

SAP=3Ds fifth issue = contends that the=20 trial court erred in failing to award attorney=3Ds fees against = appellees=20 because: (1) it is mandatory that a plaintiff recovering on a = valid oral=20 contract claim is awarded attorney=3Ds fees; (2) testimony = was given=20 concerning SAP=3Ds reasonable=20 attorney=3Ds fees; and (3) the = fees were=20 especially warranted in this case because of appellees=3D conduct in refusing = to pay the=20 amount due.

The decision to grant = or deny=20 attorney's fees and costs is normally reviewed for abuse of=20 discretion. Comm'rs Ct. of Titus County v. Agan, 940 = S.W.2d=20 77, 81 (Tex. 1997). However, some statutes remove that = discretion=20 from the trial court. Bocquet v. Herring, 972 S.W.2d = 19, 20=20 (Tex. 1998). Statutes stating that a party Amay = recover,@ Ashall be = awarded,@ or Ais entitled = to@ attorney's fees are = not=20 discretionary. Id. For a claim on a sworn = account, the=20 applicable statute provides that A[a] person may = recover=20 reasonable attorney's fees from an individual or corporation, = in=20 addition to the amount of a valid claim and costs . . . = .@ Tex. Civ. = Prac. &=20 Rem. Code Ann. ' 38.001(7) (Vernon = 1997)=20 (emphasis added). Therefore, the award of such = attorney=3Ds fees is not=20 discretionary. Bocquet, 972 S.W.2d at 20.

In addition, to = recover=20 attorney's fees under section 38.001, a party must (1) prevail on = a cause=20 of action for which attorney's fees are recoverable, and (2) = recover=20 damages. Green Int=3Dl Inc. v. = Solis, 951 S.W.2d 384, 390 = (Tex.=20 1997). Here, SAP obtained a judgment and recovery of actual = damages=20 against AAA. Therefore, SAP is entitled to = attorney=3Ds fees, and its fifth = issue is=20 = sustained. &nb= sp;=20

Accordingly, we = reverse, in=20 part, and remand this case to the trial court to determine and = award SAP=20 post-judgment interest, court costs, and attorney=3Ds fees. The = remainder of=20 the trial court's judgment is affirmed.

/s/ =20 Richard H. Edelman

Justice

Judgment rendered and = Memorandum Opinion filed June 5, 2007.

Panel consists of = Justices=20 Yates, Edelman, and Seymore.

^{^[1]} =20 See also Johnson v. Fourth Ct. App., 700 S.W.2d 916, 918 = (Tex.=20 1985) (noting only two recognized instances when a Texas appellate = court=20 has overturned the trial court's grant of a new trial: (1) when = the trial=20 court's order was wholly void; and (2) where the trial court = specified in=20 the written order that the sole ground for granting the motion was = that=20 the jury's answers to special issues were irreconcilably = conflicting).=20

^{^[2]} =20 See Tex. R. Civ. P. 329b(a), (c), (e).

^{^[3]} =20 SAP contends that it would not be improper to have judgment = against both=20 appellees because it pled the equitable theories of unjust = enrichment and=20 quantum meruit. However, unjust enrichment and = quasi‑contract=20 theories are inapplicable where, as in this case, the parties have = an=20 express contract covering the same subject matter. See = Fortune=20 Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 684 (Tex.=20 2000).

^{^[4]} =20 Under the Finance Code, a Acreditor@ is a person who = loans money=20 and an Aobligor@ is a person to whom = money is=20 loaned. Tex. Fin. Code Ann. ' 301.002(a)(3) & = (13)=20 (Vernon 2006). Section 302.002 states:

If a creditor has not = agreed=20 with an obligor to charge the obligor any interest, the creditor = may=20 charge and receive from the obligor legal interest at the rate of = six=20 percent a year on the principal amount of the credit = extended=20 beginning on the 30th day after the date on which the amount is = due. =20 If an obligor has agreed to pay to a creditor any compensation = that=20 constitutes interest, the obligor is considered to have agreed on = the rate=20 produced by the amount of that interest, regardless of whether = that rate=20 is stated in the=20 agreement. =20

See id. = (emphasis=20 added).

^{^[5]} =20 There is a split of authority among Texas Courts of Appeals and = among this=20 court's cases concerning whether an award of pre‑judgment = interest is=20 mandatory. Some courts, including this one, have held that=20 pre-judgment interest should be awarded as a matter of = course. =20 See Apache Corp. v. Dynegy Midstream Servs., Ltd. P'ship, 214 = S.W.3d=20 554, 566 (Tex. App.CHouston [14th Dist.] 2006, no pet.) = (stating a=20 prevailing party is awarded pre-judgment interest as a = matter of=20 course); Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. = Co., 164 S.W.3d 438, 447 (Tex. App.CHouston [14th Dist.] 2005, no pet.) = (holding=20 same). However, the majority of courts, also including this = court,=20 have held that awards of pre‑judgment interest are within = the trial=20 court=3Ds discretion. See, e.g., = Citizens=20 Nat=3Dl Bank v. Allen Rae Invs., = Inc., 142 S.W.3d 459, 487 (Tex. = App.CFort Worth 2004, no pet.) (stating, in a = review of=20 the trial court=3Ds interest calculations, that where no = statute=20 controls the award of pre-judgment interest, the decision to = award=20 pre-judgment interest is left to the sound discretion of the trial = court);=20 Marsh v. Marsh, 949 S.W.2d 734, 744 (Tex. App.CHouston [14th Dist.] 1997, no writ) = (applying, in=20 a review of trial court=3Ds pre-judgment interest calculations, = abuse of=20 discretion standard); Larcon Petroleum, Inc. v. Autotronic = Sys.,=20 Inc., 576 S.W.2d 873, 879 (Tex. Civ. App.CHouston [14th Dist.] 1979, no writ) = (stating, in a=20 review of the trial court=3Ds interest calculation, that a trial = court is=20 permitted, but not required, to award pre-judgment interest under = the=20 authority of a statute, or under an equitable theory, or under=20 both).

^{^[6]} =20 See Tex. Fin. Code Ann. ' 304.001 (Vernon 2006) (AA money judgment of a court in this = state must=20 specify the post-judgment interest rate applicable to that=20 judgment.@).

^{^[7]} =20 See, e.g., Attorney Gen. of Tex. v. Lee, 92 S.W.3d = 526, 528=20 (Tex. 2002); Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d = 21, 25=20 (Tex. App.CHouston [1st Dist.] 1996, writ denied); = Golden=20 v. Murphy, 611 S.W.2d 914, 916 (Tex. Civ. App.CHouston [14th Dist.] 1981, no=20 writ).

^{^[8]} =20 A "successful party" under the rules is one that obtains a = judgment=20 vindicating a civil right. Bayer Corp. v. DX Terminals, = Ltd.,=20 214 S.W.3d 586, 611B12 (Tex. App.CHouston [14th Dist.] 2006, pet. = filed). =20 Whether a party is successful must be based upon success on the = merits,=20 and not on whether or not damages were awarded. Perez v. = Baker=20 Packers, 694 S.W.2d 138, 143 (Tex. App.CHouston [14th Dist.] 1985, writ ref'd = n.r.e.)=20 (interpreting Tex. R. Civ. P.=20 131).