Giannakopulos v. Eris (pdf) (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Brown)
(presentment of claim as condition precedent in attorney's fees claim based on breach of contract)(oral
presentment held sufficient) (argument that amount of attorney's fees was excessive waived for appellate
review by failure to cite legal authority)
AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00566-CV Illas Giannakopulos v. Bill Eris
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher (District Court Judge)[she is not an appellate court judge]
MEMORANDUM OPINION
This is an appeal from the trial court’s award of attorney’s fees on a breach-of-contract claim. Appellant Ilias
Giannakopoulos contends that the trial court erred in awarding attorney’s fees to appellee Bill Eris because (1)
Eris’s attorney failed to properly notice and present a claim for such fees, (2) Giannakopoulos paid the
demanded amount within thirty days after the claim was presented, and (3) the award is excessive in relation to
the actual damages awarded.
We affirm.
I
Giannakopoulos and Eris jointly purchased three adjacent parcels of real estate located at 311, 315, and 319
West Gray in Houston. They operated a business at 315 West Gray and used the other two lots for parking.
In June 2003, Giannakopoulos and Eris transferred their interests in the property to a corporation, H.G.B.E.,
Inc. Giannakopoulos and Eris each owned fifty percent of H.G.B.E.’s shares.
In 2003, Giannakopoulos and Eris entered into an agreement titled “AGREEMENT FOR USE OF 315 WEST
GRAY” (the “contract”). Under the contract, Giannakopoulos agreed to allow Eris to run the business and to
have all the proceeds from the business for three years. Eris agreed to pay all the expenses related to the
business and to pay $1,000 per month to H.G.B.E. to be used to pay real-estate taxes on the property.
Giannakopoulos and Eris further agreed that any additional property taxes owed were to be paid to H.G.B.E.
“on a 50-50 basis.” H.G.B.E.’s only bank account was an account in Eris’s and Giannakopoulos’s names, and
Eris deposited the money for the property taxes on the lots into this account. Eris subsequently paid the full
amount of the property taxes owed on the lots for 2004, 2005, and 2006, even though the taxes for each year
exceeded the amounts he had deposited in the account for this purpose.
In 2005, Eris filed suit against Giannakopoulos, seeking to partition or sell the property, and requesting
reimbursement for property taxes paid. A jury found that Giannakopoulos had breached the parties’ contract
and awarded damages of $3,941.90, representing Giannakopoulos’s share of the property taxes owed. The
jury also awarded to Eris $64,684.94 in attorney’s fees. The trial court reduced the attorney’s fee award to
$32,342.47, the amount Eris’s attorney testified was expended on the breach-of-contract claim. This appeal
followed.[1]
II
In his first issue, Giannakopoulos contends the trial court erred in awarding attorney’s fees to Eris because Eris’
s attorney failed to properly notice and present a claim under Chapter 38 of the Texas Civil Practice and
Remedies Code. Specifically, Giannakopoulos contends Eris’s attorney failed to plead and prove that all
conditions precedent had been met, and his demand letter did not satisfy Chapter 38 because it did not give
Giannakopoulos thirty days to pay the amount demanded. Whether a party is entitled to recover attorney’s
fees is a question of law for the court; the amount to be awarded is a question for the trier of fact. See Holland
v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). In the absence of findings of fact and
conclusions of law, we will imply all findings necessary to the court’s judgment so long as the record supports
them. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251–52 (Tex. App.—Houston [14th Dist.] 1999,
pet. denied).
Section 38.001 provides that a person may recover reasonable attorney’s fees on a claim based on an oral or
written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008). To recover attorney’s fees,
the claimant must comply with the following requirements of section 38.002: (1) the claimant must be
represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly
authorized agent of the opposing party; and (3) payment for the just amount owed must not have been
tendered within thirty days of presentment. Id. § 38.002 (Vernon 2008). Presentment of the claim is required
to provide the other party with an opportunity to pay the claim before incurring an obligation for attorney’s
fees. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). No particular form of presentment is required. France
v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex. 1983); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 719 (Tex.
App.—Houston [1st Dist.] 1998, pet. denied). All that is necessary is that a party show that its assertion of a
debt or claim and a request for compliance was made to the opposing party, and the opposing party refused to
pay the claim. Standard Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex. App.—Houston
[1st Dist.] 2003, pet. denied).
It is undisputed that Eris pleaded for recovery of his attorney’s fees pursuant to Texas Civil Practice and
Remedies Code section 38.001. Giannakopoulos complains, however, that Eris is not entitled to attorney’s
fees because he failed to plead that “all conditions precedent have been performed or have occurred.” See
Tex. R. Civ. P. 54. But the failure to plead that all conditions precedent have been met does not preclude an
award of attorney’s fees; it merely requires the claimant to prove the requirements of section 38.002. See
Wingate v. Acree, No. 14-01-00851-CV, 2003 WL 1922569, at *6 (Tex. App.—Houston [14th Dist.] Apr. 24,
2003, no pet.) (mem. op.); Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 138 (Tex. App.—
Houston [14th Dist.] 2000, pet. dism’d); see also Grimm v. Grimm, 864 S.W.2d 160, 162 (Tex. App.—Houston
[14th Dist.] 1993, no writ) (explaining generally that when a plaintiff fails to plead performance of conditions
precedent she may nevertheless obtain judgment on her claim if she proves all essential elements of the claim,
including the performance of any conditions precedent). Therefore, Eris’s failure to plead that all conditions
precedent have been met will not preclude an award of attorney’s fees if he proved that he complied with the
requirements of section 38.002.
Giannakopoulos contends, however, that Eris failed to show that he made a proper demand on him. He also
contends that Eris’s demand letter failed to satisfy the requirements of Chapter 38 because it did not give
Giannakopoulos thirty days to pay the amount demanded, but rather demanded payment in three days. We
disagree.
At trial, Eris testified that he asked Giannakopoulos to pay his fifty percent of the additional property taxes, but
Giannakopoulos refused and told Eris that he would have to pay the taxes. Oral presentment of a claim is
sufficient to satisfy the presentment requirement; it is not necessary for a party to present a claim in writing.
Jones, 614 S.W.2d at 100; Harrison, 982 S.W.2d at 719. Further, on January 26, 2007, Eris’s attorney sent a
letter to Giannakopoulos’s attorney demanding that Giannakopoulos pay his fifty percent of the excess taxes
for 2006 ($3,280.52) as the contract provided. Although the letter demanded payment by January 30, 2007,
we nevertheless conclude it is adequate to show presentment. See Harrison, 981 S.W.2d at 719 (holding
employee’s oral demand for payment “when he got through with his two-week tour” satisfied presentment
requirement); Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex. App.—Austin 1987, writ denied) (holding letter
requesting payment at unspecified time satisfied presentment requirement). Therefore, Eris’s oral and written
requests for payment adequately presented Eris’s claim for purposes of section 38.002. We overrule
Giannakopoulos’s first issue.
III
In his second issue, Giannakopoulos contends the trial court erred in awarding attorney’s fees to Eris because
he paid the demanded amount within thirty days of presentment. See Tex. Civ. Prac. & Rem. Code Ann. §
38.002(3); Staff Indus., Inc. v. Hallmark Contracting, Inc., 846 S.W.2d 542, 548–49 (Tex. App.—Corpus Christi
1993, no writ). Specifically, Giannakopoulos asserts that the January 26 demand letter requested payment of
$3,280.52, representing his share of the property taxes owed for 2006, and “it is undisputed” that he paid the
taxes directly to the Harris County tax assessor by January 31, 2007.[2] Giannakopoulos contends Eris has
failed to prove that he breached any contract by tendering the taxes to the tax assessor’s office instead of Eris,
and furthermore, the contract does not provide for Giannakopoulos to tender payment to Eris.
Giannakopoulos also asserts that “the goal of the contract” was not jeopardized by his timely payment of the
property taxes directly to the tax assessor, and therefore Eris is not entitled to any attorney’s fees.
To the extent Giannakopoulos argues that Eris is not entitled to attorney’s fees because he failed to prove the
contract was breached, this argument is waived because the jury found that Giannakopoulos did breach the
contract, and Giannakopoulos does not challenge this finding. Further, it is undisputed that Eris paid all of the
taxes due on the lots for the years 2004, 2005, and 2006, and Giannakopoulos did not reimburse Eris for any
portion he owed under the contract for those years. And, Giannakopoulos does not contend he ever paid any
part of the 2004 or 2005 taxes to either Eris or the tax assessor’s office.
Further, Giannakopoulos provides no authority to support his contention that his payment of his portion of the
2006 taxes directly to the tax assessor precludes Eris’s recovery of his attorney’s fees.[3] Eris demanded that
the taxes owed be paid to him, not the tax assessor, as Eris had already paid the tax assessor. Moreover, the
purpose of the contract’s provision that “[a]ny additional taxes owed shall be paid to H.G.B.E., Inc. on a 50-50
basis” by Eris and Giannakopoulos was to ensure that any additional tax burden would be shared equally. Eris
testified that he paid the excess taxes for 2006 out of his personal account. Giannakopoulos did not reimburse
Eris for paying his half of that amount, nor did he reimburse Eris for his half of the excess property taxes for
2004 or 2005. Thus, Eris incurred damages that remained unpaid at the time of the judgment. See Tex. Civ.
Prac. & Rem. Code Ann. § 38.002(3). On these facts, we are not persuaded that the “goal” of the contract
was fulfilled by Giannakopoulos’s payment to the tax assessor rather than to Eris.
Giannakopoulos also argues that he could not have paid the money to H.G.B.E. because at the time Eris
demanded payment the corporation was inactive, and an “inactive corporation cannot tender payments on its
behalf.” Giannakopoulos cites no authority to support this cursory argument. By failing to brief this issue,
Giannakopoulos has waived it. See Tex. R. App. P. 38.1(i); Nguyen v. Kosnoski, 93 S.W.3d 186, 188 (Tex.
App.—Houston [14th Dist.] 2002, no pet.). In any event, the contract was between Eris and Giannakopoulos
individually, and the Harris County Appraisal District’s account for the lots was in Eris’s and Giannakopoulos’s
names, as was the corporation’s bank account. Thus, H.G.B.E.’s status or ability to tender payment is
irrelevant. We therefore overrule Giannakopoulos’s second issue.
IV
In his third issue, Giannakopoulos contends the trial court erred in awarding $32,342.47 in attorney’s fees to
Eris, because “such an award is disproportionate to and excessive in relation to the $3,941.00 actual damages
awarded.” To support this argument, Giannakopoulos again argues that in awarding attorney’s fees, the trial
court failed to consider his testimony that he had timely tendered his portion of the property taxes to the tax
assessor. He also argues that Eris’s attorney’s fees were “unnecessarily incurred” because Eris failed to bring
forth any other claim that would entitle him to attorney’s fees or reimbursement of maintenance expenses Eris
allegedly paid.[4] Giannakopoulos provides no authority, however, to support his contention that the award of
attorney’s fees was excessive in relation to the amount of the judgment. Therefore, we conclude
Giannakopoulos has waived this argument on appeal. See Tex. R. App. P. 38.1(i); Nguyen, 93 S.W.3d at 188;
see also In re C.Z.B., 151 S.W.3d 627, 635 (Tex. App.—San Antonio 2004, no pet.) (holding party waived
issue on appeal because his brief did not contain any authority in support of his argument regarding
unreasonable and excessive attorney’s fees).
* * *
We overrule Giannakopoulos’s issues and affirm the trial court’s judgment.
/s/ Jeffrey V. Brown
Justice
Panel consists of Justices Yates, Frost, and Brown.
[1] Both parties filed notices of appeal, but Eris did not file a brief urging any issues on his behalf. On January 15, 2010, Eris
moved to dismiss his appeal. We grant the motion.
[2] Although it is undisputed that Giannakopoulos paid some amount directly to the tax assessor, Giannakopoulos does not
direct us to any evidence in the record that he paid the taxes by January 31, 2007, and we have found no testimony or exhibits in
the record supporting this representation.
[3] Giannakopoulos cites Texas Civil Practice and Remedies Code section 38.002(3) and two cases for the general proposition
that payment within thirty days after the claim is presented precludes liability for attorney’s fees. See Ellis v. Waldrop, 656 S.W.
2d 902, 905 (Tex. 1983); Staff Indus., Inc., 846 S.W.2d at 549. Neither case, however, is analogous to this case. In Ellis, the
supreme court held that the defendant in a declaratory-judgment action who had no obligation to act under a right-of-first-refusal
agreement was not liable for attorney’s fees under the predecessor statute to section 38.001 because an essential element to
recovery under the statute was the existence of a duty or obligation the party failed to meet. See 656 S.W.2d at 905. In Staff
Industries, the Corpus Christi court of appeals held that a general contractor’s conditional tender of payment as a settlement
offer did not defeat the subcontractor’s claim for attorney’s fees, explaining that for purposes of section 38.002, a tender must be
an unconditional offer by the debtor to pay a sum not less than that due to the creditor. See 846 S.W.2d at 548–49. Here,
Giannakopoulos does not contend that he had no obligation to pay under the contract or that he made an unconditional tender to
Eris of the full amount owed.
[4] As we have already discussed, Giannakopoulos does not appeal the jury’s finding that he breached the contract with Eris;
therefore, whether Eris asserted other claims that would support an award of attorney’s fees is irrelevant.
,