Pat Stevens and Cheryl Stevens v. Jon Avent

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-20-00265-CV ________________________

PAT STEVENS AND CHERYL STEVENS, APPELLANTS

V.

JON AVENT, APPELLEE

On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2018-533,023; Honorable Ruben G. Reyes, Presiding

March 15, 2022

MEMORANDUM OPINION ON MOTION FOR REHEARING Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Appellants, Pat Stevens and Cheryl Stevens, appealed the trial court’s judgment

awarding Appellee, Jon Avent, $41,423.23 in economic damages and $15,275.00 in

attorney’s fees in his suit for breach of contract. By Memorandum Opinion dated February 9, 2022, this court affirmed that judgment.1 The Stevenses timely filed a Motion for

Rehearing, re-urging their third issue, on the basis that our original opinion failed to

adequately address whether the evidence presented was legally sufficient to support the

finding that Avent presented his claim for purposes of determining whether he was entitled

to recover his attorney’s fees. The Stevenses maintain that rehearing should be granted

because this court’s prior opinion analyzed pleading sufficiency and not evidentiary

sufficiency. Remaining convinced that our prior opinion reached the proper conclusion,

we write now to address the issues raised by the Stevenses’ Motion for Rehearing. The

Motion for Rehearing is denied.

APPLICABLE LAW

In a breach of contract suit, in addition to the amount of a valid claim, a prevailing

party may recover the amount of reasonable and necessary attorney’s fees incurred in

the prosecution of that claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8). In

order to recover attorney’s fees, the claimant must (1) be represented by an attorney, (2)

have presented 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

before the expiration of the thirtieth day after the claim was presented. Id. at § 38.002.

As such, presentment is a condition precedent to the recovery of attorney’s fees under

section 38.001.

The purpose of presentment is to allow the person against whom the claim is being

asserted an opportunity to pay the claim within thirty days of receiving notice of that claim

1 Stevens v. Avent, No. 07-20-00265-CV, 2022 Tex. App. LEXIS 961 (Tex. App.—Amarillo Feb. 9, 2022, no pet. h.) (mem. op.).

2 without incurring an obligation for attorney’s fees. See Jones v. Kelley, 614 S.W.2d 95,

100 (Tex. 1981). There is no prescribed form for presentment; all that is necessary is

that the claimant assert a valid debt or claim, a request for payment, and the opposing

party’s failure to pay within thirty days. Id.

At trial it is the claimant’s burden to plead and prove presentment of a claim and

failure of performance. Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983) (op. on reh’g).

“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.” Shin-Con Dev. Corp. v. I.P.

Invs. Ltd., 270 S.W.3d 759, 768 (Tex. App.—Dallas 2008, pet. denied) (citing TEX. R. CIV.

P. 54).

When the question of attorney’s fees is submitted to the trial court, the tribunal

may consider the entire case file, including the record of the underlying trial, to determine

whether and when presentment was made. See Transcon. Realty, Inc. v. McGuire,

Craddock, Strother & Hale, P.C., No. 05-09-00884-CV, 2011 Tex. App. LEXIS 2968, at

*8-9 (Tex. App.—Dallas April 20, 2011, pet. denied.); Bethel v. Norman Furniture Co.,

756 S.W.2d 6, 8 (Tex. App.—Houston [1st Dist.] 1988, no writ).

ANALYSIS

In this matter, all questions of fact were submitted to the trial court. As such, the

question of presentment was just one of many fact questions the trial court was called on

to resolve. Relying on Rule 54 of the Texas Rules of Civil Procedure, as well as Beauty

Elite Group, Inc. v. Palchick, No. 14-07-00058-CV, 2008 Tex. App. LEXIS 1918, at *14

3 (Tex. App.—Houston [14th Dist.] March 18, 2008, no pet.), and Pike v. Tex. EMC Mgmt.,

LLC, 579 S.W.3d 390, 422 (Tex. App.—Waco 2017), aff’d in part sub. nom. & rev’d &

remanded in part on other grounds, 610 S.W.3d 763 (Tex. 2020), Avent asserts that he

did not need to prove presentment of his claim because it was “sufficient to aver generally

that all conditions precedent have been performed or have occurred,” thereby shifting the

burden to the Stevenses to specifically deny that this condition precedent had not

occurred. According to his argument, because the Stevenses never specially excepted

to his pleadings, he was not required to produce any evidence of presentment. Avent’s

argument is all well-and-good, with one glaring deficiency—he never averred, generally

or otherwise, that all conditions precedent had been performed.

Avent’s argument notwithstanding, we need not decide whether he was relieved

of the burden to prove presentment under these circumstances because our review of the

record, which consists of the pleadings and the transcript of the proceedings before the

trial court, demonstrate that he presented his claim to the Stevenses more than thirty days

prior to trial and the Stevenses failed to pay that claim. The evidence presented at trial

sufficiently established that the Stevenses were aware that Avent was asserting a breach

of contract claim against them and that he was demanding payment of that claim.

Construing section 38.002 generously, as we must do,2 we conclude the record and the

pleadings sufficiently support the trial court’s finding concerning the presentment of

Avent’s contractual claim and a request for payment. The undisputed facts further show

the Stevenses never paid that claim. We, therefore, further conclude that the pleadings

and the trial testimony satisfy the presentment requirement of section 38.002. See id. at

2 See TEX. CIV. PRAC. & REM. CODE ANN. § 38.005.

4 §§ 38.002(2), 38.005. Accordingly, were we to further address the Stevenses’ third issue

regarding the sufficiency of the evidence supporting the trial court’s finding of

presentment, we would overrule that issue.

CONCLUSION

The Stevenses’ Motion for Rehearing is denied.

Patrick A. Pirtle Justice

Doss, J., dissenting in the denial of the Motion for Rehearing.