Venture Projects, Inc. D/B/A Concept Services and Matt Hamilton v. Jeff Morrison D/B/A JM Professional Services

• Court: Court of Appeals of Texas
• Decided: March 11, 1999
• Docket: 03-98-00080-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00080-CV

Venture Projects, Inc. d/b/a Concept Services and Matt Hamilton, Appellants

v.

Jeff Morrison d/b/a JM Professional Services, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY

NO. 231,972, HONORABLE ORLINDA L. NARANJO, JUDGE PRESIDING

Appellee Jeff Morrison, doing business as JM Professional Services ("Morrison"), sued Venture Projects, Inc., doing business as Concept Services ("Concept Services"), and Matt Hamilton ("Hamilton"), ⁽¹⁾ asserting several breach of contract claims, promissory estoppel as an alternative to his contract claims, fraud, and tortious interference with existing and prospective contracts. The case was tried to a jury, which found that Concept Services and Hamilton had each breached contracts with Morrison and assessed damages and attorney's fees. The trial court rendered judgment in favor of Morrison. On appeal, appellants assert that the trial court committed reversible error in rendering judgment against them on several of the alleged contracts because the evidence was legally or factually insufficient to support the existence of such contracts. Concept Services also contends that certain contracts were unenforceable under the statute of frauds, ⁽²⁾ and attacks the amount of damages awarded. Both appellants object to the trial court's award of attorney's fees. We will reverse the trial court's judgment regarding two of the contract claims and remand those issues to the trial court to determine Morrison's alternative promissory estoppel claims and to determine the proper amount and allocation of attorney's fees in light of our holding. We will affirm the remaining portion of the judgment.

BACKGROUND

Concept Services, a company that supplies equipment to restaurant franchises throughout the country, hired Morrison in 1992 to install equipment in one of the restaurants it serviced. Concept Services was satisfied with this initial job, and Morrison began to work on a job-to-job basis for Concept Services. Concept Services would pay Morrison a base price for each job, plus any unforseen extras that arose during the project, such as delay or additional equipment. Morrison would generally pay his own expenses and liability insurance. At one point, Morrison attempted to solidify this relationship with a formal written contract, but Concept Services refused.

Morrison first worked with Don Hawkins, one of the sales representatives for Concept Services, installing equipment in Boston Chicken restaurants. In late 1993, Morrison and Hawkins had a disagreement over the Boston Chicken account, ⁽³⁾ and Morrison was approached by Hamilton, another sales representative for Concept Services. Hamilton was looking for an installer to work on his accounts and encouraged Morrison to work with him. Morrison and Hamilton began to work almost exclusively with each other, with Morrison performing approximately 70 installations in 1993 and 53 in 1994. Toward the latter part of 1994, Morrison again sought a commitment from Concept Services in the form of a written contract. Although no written contract was created, Morrison met with Hamilton, who at this time was the exclusive sales representative for Concept Services for the company's Pizzeria Uno and Ground Round accounts. Hamilton assured Morrison that Morrison would do all of the installations for the Pizzeria Uno and Ground Round accounts for 1995. Morrison was later given a schedule, listing the cities where the anticipated jobs would take place and the corresponding installation dates.

Soon, however, Morrison's and Hamilton's friendly relationship began to change. Hamilton engaged in certain activities that angered Morrison, such as placing a poisonous snake in a warehouse with one of Morrison's employees, telling "offensive" jokes, asking Morrison's crew to handle heavy equipment in a manner that Morrison deemed dangerous, and having "unprofessional" t-shirts made for Morrison and some of his crew. Hamilton, on the other hand, felt that Morrison was unjustifiably complaining on the job sites and alienating customers. These conflicts continued to escalate.

In late January 1995, Morrison and his crew traveled overnight to reach a job site in Woburn, Massachusetts, after just completing a job in Pennsylvania. They arrived at the Woburn site in the morning and worked the entire day. Toward the end of the day, Hamilton asked Morrison's crew to move a heavy piece of equipment. Morrison refused. The two argued and Morrison became angry, telling Hamilton how he felt about their recent problems. After the argument, Morrison performed one additional installation for Concept Services. Hamilton then informed Morrison that he did not need his services anymore, ending their relationship.

Morrison sued Concept Services and Hamilton. A jury awarded Morrison damages and attorney's fees, finding that (1) Concept Services failed to comply with agreements it made with Morrison which assured that Morrison would (a) perform all of the installations for the Pizzeria Uno account in 1995, (b) perform all of the installations for the Ground Round accounts in 1995, ⁽⁴⁾ and (c) be paid extra for his work on a Ground Round installation in the Prudential Building in Boston, Massachusetts; and (2) Hamilton failed to comply with the agreement he made with Morrison, specifying that Morrison would perform an installation at a Staples Office Supply Company location and be reimbursed for expenses related to training for that job. ⁽⁵⁾ The trial court rendered final judgment in favor of Morrison: against Concept Services for $69,300 in actual damages and $16,611.38 in pre-judgment interest; against Hamilton for $3000 in actual damages and $849.96 in pre-judgment interest; and against Concept Services and Hamilton, jointly and severally, for attorney's fees of $40,175 through trial and additional amounts on appeal. The judgment also provided that Morrison recover post-judgment interest and costs of court.

On appeal appellants present eleven issues. The first six issues address the contracts related to the Pizzeria Uno and Ground Round accounts; issues seven and eight deal with the Ground Round installation in the Prudential Building; the ninth issue concerns the installation for Staples Office Supply Company; and the final two issues address the trial court's award of attorney's fees.

DISCUSSION

Pizzeria Uno and Ground Round Accounts

Statute of Frauds

In its fifth issue, Concept Services challenges the agreements made between Concept Services and Morrison for the Pizzeria Uno and Ground Round accounts as un-enforceable under the statute of frauds. See Tex. Bus. & Com. Code Ann. § 26.01 (West 1987). We will consider this issue first as it governs the disposition of the first six issues presented. ⁽⁶⁾

Morrison contends that Concept Services did not properly preserve its statute-of- frauds defense for appellate review because it failed to object at trial or request the submission of a jury question on this issue. We disagree. Whether a contract comes within the statute of frauds is a question of law. Bratcher v. Dozier, 346 S.W.2d 795, 796 (Tex. 1961); Maginn v. Norwest Mortgage, 919 S.W.2d 164, 167 (Tex. App.--Austin 1996, no writ). Questions of law are for the courts and should not be submitted to the jury. See Millhouse v. Wiesenthal, 775 S.W.2d 626, 627-28 (Tex. 1989); Knutson v. Ripson, 354 S.W.2d 575, 576 (Tex. 1962) (submission of question of law to the jury was improper). To properly place a statute-of-frauds defense before the trial court, a party must assert such defense in its pleadings. See Tex. R. Civ. P. 94 ("In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of frauds").

Concept Services raised the statute of frauds as a defense in its trial pleadings and in several post-trial motions: its motion for judgment notwithstanding the verdict, motion for new trial, and motion to modify judgment. Therefore, we will consider this issue on appeal.

The statute of frauds requires certain contracts to be in writing and signed by the person to be charged with the promise or agreement. See Tex. Bus. & Com. Code Ann. § 26.01(a) (West 1987). The writing need be in no particular form. However, the instrument must furnish written evidence of its essential terms, be complete within itself in every material detail, and contain all essential elements of the agreement, so that the contract can be ascertained from the writing without resort to oral testimony. See Maginn, 919 S.W.2d at 167 (citing Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978)). An oral agreement that cannot be performed within one year from the date of its making is unenforceable. See Tex. Bus. & Com. Code Ann. § 26.01(b)(6) (West 1987). To determine an agreement's duration for the purposes of the statute of frauds, "the court simply compares the date of the agreement to the date when the performance under the agreement is to be completed and if there is a year or more in between them then a writing is required to render the agreement enforceable." Young v. Ward, 917 S.W.2d 506, 508 (Tex. App.--Waco 1996, no writ) (citing Gilliam v. Kouchoucos, 340 S.W.2d 27, 30 (Tex. 1960) and Chevalier v. Lane's, Inc., 213 S.W.2d 530, 533 (Tex. 1948)).

It is undisputed that the Ground Round and Pizzeria Uno contracts were made in late 1994. ⁽⁷⁾ Performance under the agreements was to be completed at the end of the 1995 calendar year. ⁽⁸⁾ It is evident that more than one year elapses from the making of these contracts in 1994, and the time they would have been completed, at the end of 1995.

Morrison, however, argues that these contracts do not fall within the statute of frauds because they conceivably could have been performed within one year of their making. It is true that when no time is fixed by the parties for the performance of an agreement, there is nothing in the agreement itself to show that it cannot be performed within a year, and thus, the agreement does not fall within the statute of frauds. See Bratcher, 346 S.W.2d at 796; Morgan v. Jack Brown Cleaners, Inc., 764 S.W.2d 825, 827 (Tex. App.--Austin 1989, writ denied) ("where no period of performance is stated in employment contracts the statute of frauds is inapplicable."). However, agreements to work for a definite period of more than one year from the contract date do fall within the statute of frauds. See Chevalier, 213 S.W.2d at 532; see also Gilliam, 340 S.W.2d at 30; Young, 917 S.W.2d at 508; Collins v. Allied Pharmacy Management, Inc., 871 S.W.2d 929, 934 (Tex. App.--Houston [14th Dist.] 1994, no writ). As the supreme court has stated:

[W]here, by the terms of [an] oral agreement, its period is to extend beyond a year from the date of its making, the mere possibility of its termination by operation of law within the year, because of death or other fortuitous event, does not render . . . the Statute [of Frauds] inapplicable . . . .

Gilliam, 340 S.W.2d at 30 (citing Chevalier, 213 S.W.2d at 532).

Concept Services and Morrison agreed to work together for a definite period of time. Indeed, the terms of the agreements provide that Morrison would perform all of the Pizzeria Uno and Ground Round installations throughout 1995. Because these agreements demand performance for a specified amount of time in excess of one year from their making and thus cannot be performed within one year, we conclude that the installation agreements for the Pizzeria Uno and Ground Round accounts are governed by the statute of frauds.

Morrison seeks to avoid the statute of frauds by asserting that the Pizzeria Uno and Ground Round agreements are not oral agreements, but rather are evidenced by several documents that together constitute a "writing." He directs us to six exhibits that he claims are written evidence of the agreements between himself and Concept Services. Five are lists that state the name of a city and a corresponding installation or opening date. The sixth is a sample copy of an insurance policy covering the installation of equipment for Pizzeria Uno. Whether viewed together or separately, none contain the terms of an agreement or a signature. In fact, these documents do not include the names of the parties or indicate their involvement. They are merely lists of locations and dates, and a copy of insurance. See Maginn, 919 S.W.2d at 167 (memorandum that merely stated appellants appeared to have good credit but further credit inquiries should be taken did not satisfy statute of frauds). We find that, as a matter of law, the documents presented by Morrison as evidence of the Pizzeria Uno and Ground Round installation agreements do not satisfy the statute of frauds.

Finally, Morrison contends that the agreements are not governed by the statute of frauds because the doctrine of partial performance removes them from the operation of the statute. However, the record indicates that Morrison never raised this argument in the trial court. The first time Morrison brought this defense to the court's attention was on appeal. To preserve a complaint for appeal, a party must make a timely request, objection, or motion to the trial court concerning such complaint. Tex. R. App. P. 33.1; see also M.N. Dannenbaum, Inc. v. Brummerhop, 840 S.W.2d 624, 630 (Tex. App.--Houston [14th Dist.] 1992, writ denied) (appellant failed to preserve argument regarding part performance because he did not raise defense in trial court). Moreover, as an affirmative defense to the statute of frauds, part performance must be pleaded or it is waived. See Tex. R. Civ. P. 94; Mann v. NCNB Tex. Nat'l Bank, 854 S.W.2d 664, 668 (Tex. App.--Dallas 1992, no writ) (exception to statute of frauds is an affirmative defense which must be pleaded and proved); Wiley v. Bertelsen, 770 S.W.2d 878, 882 (Tex. App.--Texarkana 1989, no writ) (appellee has burden to establish part performance defense affirmatively). Morrison did not assert part performance either in his trial pleadings or in the form of a request, objection, or motion to the trial court, and therefore has not properly preserved this issue for appeal.

Because we find that the agreements made between Concept Services and Morrison regarding the 1995 installations for the Ground Round and Pizzeria Uno accounts are unenforceable under the statute of frauds, we reverse the trial court's judgment awarding damages for breach of the agreements.

Termination at Will

Concept Services's sixth issue regarding the termination-at-will doctrine was presented as an alternative to its statute-of-frauds defense. Because we have found the Pizzeria Uno and Ground Round contracts to be unenforceable under the statute of frauds, we need not consider this issue.

Promissory Estoppel

Morrison also brought suit against Concept Services under the doctrine of promissory estoppel as an alternative to his breach of contract claims. However, the jury never reached this question because it was conditioned on findings adverse to Morrison on the breach of contract questions. Generally, promissory estoppel "may operate to preclude a defense based on the statute of frauds." "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972). "Promissory estoppel allows a cause of action to a promisee who has acted to his detriment in reasonable reliance on an otherwise unenforceable promise." Bailey v. City of Austin, 972 S.W.2d 180, 193 (Tex. App.--Austin 1998, pet. denied); see also Wheeler v. White, 398 S.W.2d 93, 96-97 (Tex. 1965). The elements of promissory estoppel include: (1) a promise; (2) foreseeability of reliance thereon by the promisor; and (3) detrimental reliance by the promisee. English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983).

Morrison testified that at the end of the 1994 year he wanted to solidify his working relationship with Concept Services to be able to anticipate his yearly income and work schedule. According to Morrison, he discussed his concerns with Hamilton several times and eventually Concept Services, through Hamilton, promised that Morrison would perform all of the Ground Round and Pizzeria Uno installations for 1995. Morrison testified further that he "rel[ied] upon the fact that [he] would get that work in 1995."

Morrison's testimony indicates that he could have established a question of fact for the jury on his promissory-estoppel claim. See Kindred v. Con/Chem, Inc., 650 S.W.2d, 61, 63 (Tex. 1983) ("[T]here is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact."). Therefore, we remand this issue to the trial court for further proceedings.

Sufficiency of the Evidence

In their seventh, eighth, and ninth issues, appellants challenge the legal and factual sufficiency of the evidence supporting the jury's finding related to the Ground Round installation in the Prudential Building and the anticipated installation jobs for Staples Office Supply Company. In reviewing a legal sufficiency or "no-evidence" point, we must consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986), cert. denied, 111 S. Ct. 135 (1990). These fact findings must be upheld if there is more than a scintilla of evidence to support them, that is, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to evidence of a vital fact. See Kindred, 650 S.W.2d at 63; Stedman v. Georgetown Sav. & Loan Ass'n, 595 S.W.2d 486, 488 (Tex. 1979). If there is any evidence of probative force to support the finding, the no-evidence challenge will fail. See Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989).

When reviewing a jury verdict to determine the factual sufficiency of the evidence, we must consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). The appellate court may not substitute its judgment for that of the trier of fact simply because it disagrees with the result. See Peco Constr. Co. v. Guajardo, 919 S.W.2d 736, 739 (Tex. App.--San Antonio 1996, writ denied).

Ground Round Installation in the Prudential Building

Concept Services asserts that (1) "the evidence of the alleged agreement on the Ground Round Prudential job was vague and indefinite and, hence, legally, or alternatively factually, insufficient"; and (2) there was no evidence or insufficient evidence of any breach of this alleged agreement. Morrison initially contends that Concept Services did not properly preserve this issue because it failed to raise it at the directed-verdict stage and the jury-charge conference. We disagree.

A no-evidence complaint may be preserved in the trial court by a motion for instructed verdict, by an objection to the charge, by a motion to disregard a jury finding, by a motion for judgment non obstante veredicto, or by a motion for new trial. Cecil v. Smith, 804 S.W.2d 509, 510-511 (Tex. 1991). A factual-insufficiency complaint must be raised in a motion for new trial. See Tex. R. Civ. P. 324(b). Concept Services raised its no evidence and insufficiency claims in its motion for new trial and its motion for judgment notwithstanding the verdict. We find that Concept Services preserved error and will consider its complaint.

To be enforceable "a contract must be sufficiently definite in its terms so that a court can understand what the promisor undertook." T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). The material terms of the contract must be agreed upon before a court can enforce the contract. Id. For example, a contract may be found indefinite because it does not provide the time of performance, the price to be paid, the work to be done, the service to be rendered, or the property to be transferred. See Pennington v. Gurkoff, 899 S.W.2d 767, 770 (Tex. App.--Fort Worth 1995, writ denied); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 678 (Tex. App.--Houston [1st Dist.] 1996, no writ) (material terms of contract to loan money are amount to be loaned, maturity date of loan, interest rate, and repayment terms).

One of the initial jobs Morrison performed for Hamilton was the Ground Round installation in the Prudential Building in Boston, Massachusetts (the "Prudential Job"). The record reflects that at the time Morrison was working with Concept Services on a job-to-job basis. Morrison and Concept Services agreed that for this installation Morrison would be paid a base amount plus extras, because they anticipated that this would be an extremely difficult job. The Prudential Job was particularly difficult because the restaurant was constructed during the holidays, a mall is located within the building, the construction site was located on the second floor, and access to the site was difficult. While most Ground Round jobs generally took three days to complete, the Prudential Job took two weeks.

After the installation was complete, Concept Services paid Morrison the base amount agreed upon and the expenses that he incurred. Morrison testified, however, that Hamilton failed to pay him for his extra time, instead insisting that Morrison would get more work from Concept Services "coming down the pike." In response, Hamilton testified that Morrison gave him an invoice for the work on the Prudential Job, and he paid this invoice in full. The jury found that Morrison and Concept Services agreed that Morrison would be paid for extras for the Prudential Job, and that Concept Services breached this agreement. ⁽⁹⁾

When viewed in the light most favorable to the jury's verdict, the evidence clearly establishes that Morrison and Concept Services agreed that Morrison would install equipment at the Prudential Building for a certain amount and that Concept Services breached this agreement. Both Morrison's and Hamilton's testimony sufficiently sets forth the terms of the contract. ⁽¹⁰⁾ In addition, the record reflects that Concept Services failed to pay Morrison for the extra time he spent on this project. Therefore, we find that the evidence is legally sufficient to support the jury's finding concerning this contract.

Viewing the evidence as a whole, it is equally clear that Morrison and Concept Services agreed that Morrison would be paid for extras for the Prudential Job. As both Morrison and Hamilton testified to this agreement, there is no evidence contrary to the jury's finding. The record does contain conflicting evidence regarding whether Concept Services breached the agreement for the Prudential Job. While Morrison testified that Concept Services failed to pay him for all of the services he provided, Hamilton testified that he paid Morrison the full amount reflected on the invoice for this job. Generally, the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Kiel v. Texas Employers Ins. Ass'n, 679 S.W.2d 656, 658 (Tex. App.--Houston [1st Dist.] 1984, no writ). Having conflicting evidence from both sides, the jury had discretion to believe Morrison's rendition of the facts. The jury's finding is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, we find that the evidence is factually sufficient to support the jury's finding regarding the contract for the Prudential Job.

We overrule Concept Services's seventh and eighth issues.

Staples Installation

Hamilton asserts that there was no evidence or, in the alternative, insufficient evidence to support the jury's finding that Hamilton and Morrison agreed that Morrison would perform the installations for Staples Office Supply Company (the "Staples Job") because evidence of this alleged agreement was vague and indefinite. A contract must be sufficiently definite in its terms to be legally binding. See T.O. Stanley Boot Co., Inc., 847 S.W.2d at 221.

The record indicates that Staples contacted Hamilton to install equipment in at least two of its stores. Hamilton decided to pursue this opportunity independent from Concept Services as an "outside venture" and approached Morrison to do the installation work on this job. According to Morrison, this was a regular installation job whereby he was acting as an independent contractor and would be paid a fixed price plus extras by Hamilton. Hamilton testified that he and Morrison formed a partnership for this job, agreeing to split the profits and losses fifty-fifty. Morrison responded that he never entered into a partnership with Hamilton.

Hamilton gave Morrison information about a training opportunity, indicating that Morrison should attend the program to prepare for the Staples Job. Morrison attended the training and later drove to Michigan to perform the installation. Morrison testified that when he reached the job site, there was already a different crew there installing equipment because Hamilton did not make the arrangements concrete, and Morrison was told to leave. Hamilton testified that Morrison arrived at the site without the right equipment and Staples had to get a new crew to do the work. ⁽¹¹⁾ Morrison billed Hamilton for the expenses he incurred for the training and for preparing for that first Staples Job: $1949.25. Hamilton paid him a little over half of that amount with a personal check for $1000.

Viewing only the evidence and inferences tending to support the finding of the trier of fact, the evidence establishes that Hamilton asked Morrison to perform at least two installations for his personal Staples account, and Morrison agreed. ⁽¹²⁾ The evidence also establishes that they agreed that Morrison would be paid a fixed amount plus his extras. This evidence is sufficiently definite to indicate the contract's material terms. We conclude that this evidence is legally sufficient to support the jury's finding that Morrison and Hamilton agreed that Morrison would perform the installations for the Staples Job for a fixed amount and extras.

Considering all the evidence in its entirety, the record indicates that Hamilton and Morrison dispute the terms of their agreement for the Staples Job. Although Hamilton testified that he formed a partnership with Morrison for this job, Morrison testified that they agreed that he would be paid a fixed amount plus extras. As the jury is the sole judge of the credibility of the witnesses, the jury's finding here is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Kiel, 679 S.W.2d at 658. We find that the jury's finding is factually sufficient.

We overrule this issue.

Attorney's Fees

In their final two issues, appellants challenge the trial court's award of attorney's fees to Morrison, claiming that (1) Morrison's claims were not presented to Hamilton prior to suit; (2) Morrison's claims were not properly presented to either Concept Services or Hamilton; (3) Morrison failed to segregate the attorney's fees claimed between actions that authorize attorney's fees and those that do not; (4) the amount of attorney's fees awarded is manifestly too large; and (5) the trial court should have conditioned the award of attorney's fees on an unsuccessful appeal by either Hamilton or Concept Services.

Proper Presentment

To recover attorney's fees for a breach of contract claim, a claimant must "present the claim to the opposing party or to a duly authorized agent of the opposing party." See Tex. Civ. Prac. & Rem. Code Ann. § 38.002 (West 1997) (emphasis added). The purpose of this presentment requirement is to allow the person against whom it is asserted an opportunity to pay a claim within 30 days after notice of the claim without incurring an obligation for attorney's fees. See Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981); Bethel v. Norman Furniture Co., 756 S.W.2d 6, 8 (Tex. App.--Houston [1st Dist.] 1988, no writ).

No particular form of presentment is required under section 38.002. See Tex. Civ. Prac. & Rem. Code Ann. § 38.002 (West 1997); Jones, 614 S.W.2d at 100; Bethel, 756 S.W.2d at 8. Texas courts have found various forms of presentment to be sufficient to support an award of attorney's fees, such as oral and written demands and requests for admissions and responses thereto. See Jones, 614 S.W.2d at 100. In a breach of contract case the presentment requirement can be met when a plaintiff presents the contract claim to the opposing party and that party fails to tender performance. See Chandler v. Mastercraft Dental Corp. of Tex., Inc., 739 S.W.2d 460, 470 (Tex. App.--Fort Worth 1987, writ denied) (citing Jones, 614 S.W.2d at 100). In addition, nonpayment of a bill or invoice for thirty days also satisfies the presentment requirement. De Los Santos v. Southwest Tex. Methodist Hosp., 802 S.W.2d 749, 757 (Tex. App.--San Antonio 1990, no writ).

First, Hamilton asserts that Morrison did not comply with the presentment requirement because he never sent a demand letter. Morrison argues that he complied with the presentment requirement by sending a demand letter to Concept Services. Because section 38.002 requires the claimant to present the claim to the opposing party, we hold that the demand letter sent to Concept Services does not, by itself, satisfy the presentment requirements of section 38.002 with regard to Hamilton.

A demand letter, however, is not the only way to satisfy the presentment requirement. See Jones, 614 S.W.2d at 100 (no form of presentment is required under section 38.002). Where no formal written demand letter exists, courts must examine the facts and determine whether the claim was adequately presented. See Bethel, 756 S.W.2d at 8; Carrington v. Hart, 703 S.W.2d 814, 818 (Tex. App.-- Austin 1986, no writ). Thus, we must examine the facts with regard to those claims made against Hamilton.

Here, Morrison asserted a breach of contract claim for the Staples Job against Hamilton individually. ⁽¹³⁾ After the Staples Job fell through, Morrison sent Hamilton an invoice, billing him $1949.25. Hamilton paid Morrison $1000. The invoice Morrison sent to Hamilton constituted a sufficient demand for payment and thus satisfied the presentment requirement. See De Los Santos, 802 S.W.2d at 757 (evidence that appellant received bill from hospital sufficiently established presentment of claim); Roylex, Inc. v. Avco Community Developers, Inc., 559 S.W.2d 833, 838 (Tex. Civ. App.--Houston [14th Dist.] 1977, no writ) (invoices sent by subcontractor to general contractor constituted sufficient demand for payment on its claim to entitle subcontractor to award of attorney's fees). Therefore, we conclude that Morrison's claims were properly presented to Hamilton prior to this suit.

Second, appellants assert that the demand letter Morrison sent to Concept Services is legally and factually insufficient. Specifically, appellants allege that while the demand letter informed them of the claims involving the Pizzeria Uno and Ground Round contracts for 1995, it failed to reflect Morrison's claims regarding the Staples Job; ⁽¹⁴⁾ the installation of the NAX cases; the 1993 Boston Chicken installations; and the Prudential Job. To recover attorney's fees under section 38.002, "the claimant must present the claim to the opposing party." Tex. Civ. Prac. & Rem. Code Ann. § 38.002 (West 1997) (emphasis added). Thus, in order to recover attorney's fees for all of his contract claims, Morrison was required to present each claim to the appellants. However, as we stated above, a demand letter is not the only evidence available to determine whether a claim was properly presented, and we must look to the evidence in the absence of a demand on a specific claim. See Jones, 614 S.W.2d at 100; Bethel, 756 S.W.2d at 8.

Morrison alleged that Concept Services failed to comply with their agreement that Morrison would be paid extra for installing NAX cases into the Boston Chicken restaurants. After each Boston Chicken job was completed, Morrison sent Concept Services an invoice billing them $3250, which reflected the base price agreed upon for each for Boston Chicken installation ($2750) and an extra $500 for installing the NAX cases. Morrison testified that Concept Services paid Morrison only $2750, and the record reflects that the $3250 figure printed on some of the invoices was marked out by hand and reduced to $2750. These invoices constituted a sufficient demand for payment and thus satisfy the presentment requirement. See De Los Santos, 802 S.W.2d at 757; Roylex, Inc., 559 S.W.2d at 838. Thus, we conclude that Morrison properly presented his breach of contract claim regarding the NAX cases to Concept Services.

Morrison also alleges that Concept Services breached the agreement it had with him related to the 1993 Boston Chicken installations. ⁽¹⁵⁾ During discovery in this case, questions and requests were submitted by Morrison to Concept Services regarding this alleged agreement. In one request, Morrison asked Concept Services to admit that it intended that Morrison would perform the Boston Chicken installations for 1993. Concept Services admitted in part that it did so intend Morrison to perform these installations on a case-by-case basis. In addition, in interrogatories submitted to Concept Services, Morrison asked questions regarding the subcontractor that Concept Services used instead of Morrison for the Boston Chicken account in 1993. And finally, in his requests for production, Morrison requested all documents related to the 1993 Boston Chicken installations.

This correspondence as a whole clearly indicates that Concept Services had notice of Morrison's Boston Chicken claim and thus constitutes sufficient proof of presentment. See Jones, 614 S.W.2d at 100 (citing Welch v. Gammage, 545 S.W.2d 223, 226 (Tex. Civ. App.--Austin 1977, writ ref'd n.r.e.)) (request for admission and its response in which party admitted he refused to pay a claim were sufficient presentment); Chandler, 739 S.W.2d at 470 (detailed correspondence of claim between lawyers on both sides constituted adequate presentment). We conclude, therefore, that Morrison properly presented his breach of contract claim related to the 1993 Boston Chicken installations to Concept Services.

Finally, Morrison brought a contract claim against Concept Services for the extras he incurred for the Prudential Job. However, Morrison did not give Concept Services an invoice for the extras that he claims here. The record does not reflect that Morrison presented this claim in any form to Concept Services. We find that this claim was not adequately presented to Concept Services.

Proper Segregation

Appellants next contend that the trial court failed to: (1) segregate the claims that authorize attorney's fees from those that do not; and (2) "segregate the fees incurred for pursuit of the Staples contract claims (which was asserted only against Matt Hamilton) from the fees incurred on claims asserted against Concept Services." We agree.

When awarding attorney's fees, the trial court may only award those fees that are "reasonable and necessary" for the prosecution of the suit. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991) (citations omitted). "[T]o show the reasonableness and necessity of attorney's fees, the plaintiff is required to show that the fees were incurred while suing the defendant sought to be charged with the fees on a claim which allows recovery of such fees." Id. The party seeking to recover attorney's fees carries the burden of proof. Id.

The district court awarded $40,175 in attorney's fees; however, the court's judgment does not specify on what basis she made this award. While Morrison asserted several claims against appellants, it is not clear what portion of his attorney's time and expenses was allotted to asserting and proving damages for those claims for which attorney's fees can be awarded. Additionally, the trial court awarded attorney's fees against Concept Services and Hamilton, jointly and severally. Thus, under this judgment Hamilton is liable to pay the entire attorney's fee award even though the only claim brought against Hamilton for which Morrison is entitled to attorney's fees is the claim concerning the Staples Job.

Morrison urges that this case falls within the exception to the duty to segregate "when the attorney's fees rendered are in connection with claims arising 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 11. While we recognize that segregation is not necessary when the claims are dependent on the same set of facts or circumstances and are intertwined to the point of being inseparable, that is not the situation here. See id.

All of Morrison's claims that allowed recovery of attorney's fees involved different facts; the 1995 claims involved events that occurred at the end of 1994 and early 1995, ⁽¹⁶⁾ while the Boston Chicken claim involved events surrounding 1993. ⁽¹⁷⁾ Moreover, the facts and circumstances surrounding the Staples Job concern only Hamilton and not Concept Services. ⁽¹⁸⁾ The attorney's fees could have been segregated in a realistic fashion to reflect (1) the amount of Morrison's attorney's time and expense allotted to the claims for which recovery is authorized; and (2) the defendant charged with each claim. See Koch Oil Co. v. Wilber, 895 S.W.2d 854, 867 (Tex. App.--Beaumont 1995, writ denied) (attorney's fees could have "been segregated in a realistic fashion to place responsibility where it belonged").

Therefore, we remand this issue to the trial court for further consideration. See Stewart Title Guar. Co., 822 S.W.2d at 11 ("[A]n award of attorney's fees erroneously based upon evidence of unsegregated fees requires a remand.").

CONCLUSION

Because we hold that the contracts between Morrison and Concept Services regarding the 1995 installations for the Pizzeria Uno and Ground Round accounts were unenforceable under the statute of frauds, we reverse that portion of the trial court's judgment awarding damages against Concept Services for breach of those contracts and remand Morrison's promissory estoppel claim to the trial court. As attorney's fees were not properly segregated and Morrison's claims regarding the Prudential Job were not presented to Concept Services, we also remand the issue of attorney's fees to the trial court for further proceedings consistent with this opinion. In all other respects the judgment of the county court at law is affirmed.

Lee Yeakel, Justice

Before Justices Jones, B. A. Smith and Yeakel

Affirmed in Part; Reversed and Remanded in Part

Filed: March 11, 1999

Do Not Publish

1. Concept Services and Hamilton are referred to collectively as appellants.

2. See Tex. Bus. & Com. Code Ann. § 26.01 (West 1987).

3. Morrison asserts that Concept Services, through Hawkins, promised that Morrison would perform all of the Boston Chicken installations in 1993 and agreed to pay him extra to install NAX cases in the Boston Chicken restaurants. Concept Services's alleged breach of these agreements forms the basis of Morrison's and Hawkins's disagreement.

4. Conditioned on negative findings to the contract questions, the jury was submitted alternative questions concerning Morrison's promissory estoppel claims.

5. The jury also found that Concept Services failed to comply with an agreement it made with Morrison that (1) Morrison would perform all of the installations for the Boston Chicken account in 1993, but awarded no damages for this breach; (2) Morrison would be paid extra for installations of NAX cases as part of the Boston Chicken installations; and (3) that Hamilton did not wrongfully interfere with Morrison's past or prospective contractual relations with Concept Services. The jury found that Morrison had been damaged to the extent of $300 for an increase in an insurance premium paid by Morrison. Concept Services does not appeal that portion of the trial court's judgment awarding damages for the extra installations and the insurance premium increase.

6. In issues one through four, Concept Services challenges the damages awarded by the jury resulting from Concept Services's breach of the Pizzeria Uno and Ground Round contracts. In issue six it asserts, as an alternative to its statute-of-frauds defense, that Morrison is barred from recovering on the Pizzeria Uno and Ground Round contracts under the termination-at-will doctrine.

7. Morrison himself testified that the agreements were made at this time, and this fact was uncontroverted at trial.

8. The jury found that Morrison and Concept Services entered into agreements which provided that Morrison would perform "all of the installations for the Pizzeria Uno account in 1995" and "all of the installations for the Ground Round account in 1995."

9. In its brief, Concept Services asserts that there is no evidence or, in the alternative, insufficient evidence to support the jury's finding that Morrison agreed "to charge a lesser amount on the Ground Round Prudential job in exchange for the promise that he would 'get what's coming down the pike.'" However, the jury did not find such an agreement. The jury found that Morrison and Concept Services agreed that Morrison would be paid extra for the Prudential Job. Thus, we will apply the no evidence and insufficient evidence standards to the actual jury finding and not the finding asserted by Concept Services.

10. Hamilton himself testified that Morrison was paid a flat rate plus extras for each installation. And Morrison testified that Concept Services agreed that he would be paid a base amount plus extras, such as additional time or equipment.

11. On cross-examination Hamilton admitted that he was not at the job site in Michigan and cannot be sure that Morrison did not have the right equipment.

12. Hamilton himself testified that he asked Morrison to perform this installation and that Morrison agreed to do the installation work on this job.

13. Morrison also claimed that Hamilton intentionally interfered with his business relationship with Concept Services. As this is a tort claim, section 38.002 does not apply and this claim is not at issue.

See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 1997).

14. Morrison's breach of contract claim for the Staples Job was brought against Hamilton individually. As we have already found that this claim was properly presented to Hamilton, we need not consider this issue here.

15. Morrison claimed that Concept Services breached its agreement that Morrison would perform all of the Boston Chicken installations for 1993.

16. As we have found that the 1995 contracts were unenforceable under the statute of frauds, Morrison is not entitled to attorney's fees on this claim.

17. Concept Services did not appeal the portion of the judgment finding it liable to Morrison for the installation of the NAX cases.

18. The Prudential Job is not an issue here because we have already found that Morrison is not entitled to attorney's fees on this claim as it was not properly presented.

M>See Tex. Bus. & Com. Code Ann. § 26.01 (West 1987).

3. Morrison asserts that Concept Services, through Hawkins, promised that Morrison would perform all of the Boston Chicken installations in 1993 and agreed to pay him extra to install NAX cases in the Boston Chicken restaurants. Concept Services's alleged breach of these agreements forms the basis of Morrison's and Hawkins's disagreement.

4. Conditioned on negative findings to the contract questions, the jury was submitted alternative questions concerning Morrison's promissory estoppel claims.

5. The jury also found that Concept Services failed to comply with an agreement it made with Morrison that (1) Morrison would perform all of the installations for the Boston Chicken account in 1993, but awarded no damages for this breach; (2) Morrison would be paid extra for installations of NAX cases as part of the Boston Chicken installations; and (3) that Hamilton did not wrongfully interfere with Morrison's past or prospective contractual relations with Concept Services. The jury found that Morrison had been damaged to the extent of $300 for an increase in an insurance premium paid by Morrison. Concept Services does not appeal that portion of the trial court's judgment awarding damages for the extra installations and the insurance premium increase.

6. In issues one through four, Concept Services challenges the damages awarded by the jury resulting from Concept Services's breach of the Pizzeria Uno and Ground Round contracts. In issue six it asserts, as an alternative to its statute-of-frauds defense, that Morrison is barred from recovering on the Pizzeria Uno and Ground Round contracts under the termination-at-will doctrine.

7. Morrison himself testified that the agreements were made at this time, and this fact was uncontroverted at trial.

8. The jury found that Morrison and Concept Services entered into agreements which provided that Morrison would perform "all of the installations for the Pizzeria Uno account in 1995" and "all of the installations for the Ground Round account in 1995."

9. In its brief, Concept Services asserts that there is no evidence or, in the alternative, insufficient evidence to support the jury's finding that Morrison agreed "to charge a lesser amount on the Ground Round Prudential job in exchange for the promise that he would 'get what's coming down the pike.'" However, the jury did not find such an agreement. The jury found that Morrison and Concept Services agreed that Morrison would be paid extra for the Prudential Job. Thus, we will apply the no evidence and insufficient evidence standards to the actual jury finding and not the finding asserted by Concept Services.

10. Hamilton himself testified that Morrison was paid a flat rate plus extras for each installation. And Morrison testified that Concept Services agreed that he would be paid a base amount plus extras, such as additional time or equipment.

11. On cross-examination Hamilton admitted that he was not at the job site in Michigan and cannot be sure that Morrison did not have the right equipment.

12. Hamilton himself testified that he asked Morrison to perform this installation and that Morrison agreed to do the installation work on this job.

13. Morrison also claimed that Hamilton intentionally interfered with his business relationship with Concept Services. As this is a tort claim, section 38.002 does not apply and this claim is not at issue.

See Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 1997).

14. Morrison's breach of contract claim for the Staples Job was brought against Hamilton individually. As we have already found that this claim was properly presented to Hamilton, we need not consider this issue here.

15. Morrison claimed that Concept Services breached its agreement that Morrison would perform all of the Boston Chicken installations for 1993.

16. As we have found that the 1995 contracts were unenforceable under the statute of frauds, Morrison is not entitled to atto