presentment of claim as condition precedent for recovery of attorney's fees | conditions precedent | waiver of
conditions precedent by failure to specifically deny averment that all conditions were satisfied |
Tex. Civ. Prac. & Rem. Code Ann. § 38.001(3) (Vernon Supp. 2009) (providing attorney's
fees are recoverable provided "payment for the just amount owed must not have been
tendered before the expiration of the 30th day after the claim is presented").
One of the prerequisites to recovering attorney's fees under chapter 38 is presentment of the underlying claim to
the opposing party. Tex. R. Civ. P. 38.002(2) (Vernon 2008). It is the claimant's burden to plead and prove
presentment. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983). But when a claimant avers in its petition that all
conditions precedent to recovery have occurred or have been performed, it is required to prove only those
conditions precedent that have specifically been denied by the opposing party. See Tex. R. Civ. P. 54
PRESENTMENT OF CLAIM AS CONDITION FOR AWARD OF ATTORNEY'S FEES
Presentment may be made either before or after filing suit, provided it is made at least 30 days before
judgment. Chudleigh, 2002 WL 576092, at *5. In a breach of contract case, presentment is established when a
party presents the contract claim to the opposing party and that party fails to tender performance. Id. The
purpose of presentment is to allow the party against whom the claim is asserted a reasonable opportunity to pay a
claim without incurring an obligation for attorneys' fees. Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809,
818 (Tex. 2006). No particular form of presentment is required; all that is necessary is that a claimant show that a
claim for payment was made to the opposing party and that the opposing party refused to pay the claim. Quality
Infusion Care, Inc. v. Health Care Serv. Corp., 224 S.W.3d 369, 387 (Tex. App.- Houston [1st Dist.] 2006, no
A party who prevails on a breach of contract claim is entitled to recover attorneys' fees for
prosecution of the claim. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 2008). To
recover attorneys' fees, a claimant first must present the claim to the opposing party or his
agent. Id. § 38.002(2) (Vernon 2008). The statute is to be generously construed to promote its
underlying purpose. Id. § 38.005 (Vernon 2008); Chudleigh, 2002 WL 576092, at *5.
Cano v. Nino's Paint and Body Shop (Tex.App.- Houston [14th Dist.] Apr. 16, 2009)(Boyce)
(admission of business records, business records affidavit,
failure to disclose documentary evidence in discovery, attorneys fees on breach of contract, presentment of claim
as condition precedent)
Nino and Cano both testified that Cano had not paid Nino for the labor or supplies used in painting Cano's
airplane. During direct examination, Nino was asked whether he requested payment from Cano for the expenses
shown on Defendant's Exhibit 2; Nino testified that he had, and that Cano responded by filing suit against him for
breach of contract.
Construing section 38.002 generously, we cannot say on this record that the trial court erred in concluding that
presentment had been satisfied so as to allow recovery of attorneys' fees. See Chudleigh, 2002 WL 576092, at
*4-*6; see also Criton Corp. v. Highlands Ins. Co., 809 S.W.2d 355, 358 (Tex. App.- Houston [14th Dist.] 1991, writ
denied) (general contractor's president's testimony that he telephoned subcontractor's president and requested
full performance and that this request was refused established presentment); Robray Offshore Drilling Co. v.
Thomas, 751 S.W.2d 911, 912 (Tex. App.- Houston [14th Dist.] 1988, no writ) (claimant's testimony that he
demanded payment of his medical expenses and disability payments which were indisputably not paid established
We overrule Cano's issue regarding the trial court's submission to the jury of Question No. 9 regarding the
amount of attorneys' fees to which Nino was entitled.
Nonpayment of a bill or invoice for thirty days satisfies the presentment requirement. See De Los Santos v. Sw.
Tex. Methodist Hosp., 802 S.W.2d 749, 757 (Tex. App.—San Antonio 1990, no writ) (evidence that appellant
received bill from hospital sufficiently established presentment of claim); Gensco, Inc. v. Transformaciones
Metalurgicias Especiales, S.A., 666 S.W.2d 549, 554 (Tex. App.—Houston [14th Dist.] 1984, writ dism’d)
(presentation of invoices were probative to show presentment of the claim); Roylex, Inc. v. Avco Cmty.
Developers, Inc., 559 S.W.2d 833, 838 (Tex. Civ. App.—Houston [14th Dist.] 1977, no writ) (sending invoices
constitutes sufficient demand for payment).
An oral request for performance is sufficient to meet the presentment requirement of section 38.002. See
Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (holding
appellant’s trial testimony that, when he informed appellee of his resignation, he told appellee he wanted to
“collect his pay ‘without fail,’” constituted sufficient evidence of presentment); see also Criton Corp. v. Highlands
Ins. Co., 809 S.W.2d 355, 358 (Tex. App.—Houston [14th Dist.] 1991, writ denied) (holding that oral request by
phone to tender full performance under contract was sufficient to establish presentment); King Optical v.
Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213, 217 (Tex. Civ. App.—Waco 1976, writ ref’d n.r.e.)
(oral request for payment and discussion of amount due, how it would be paid, and when, was sufficient
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