MARK DIZDAR, D/B/A DIZDAR DEVELOPMENT AND DIZDAR DEVELOPMENT, LTD. v. JOSE MORENO AND ELIZABETH MORENO--Appeal from 93rd District Court of Hidalgo County

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Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2003 » MARK DIZDAR, D/B/A DIZDAR DEVELOPMENT AND DIZDAR DEVELOPMENT, LTD. v. JOSE MORENO AND ELIZABETH MORENO--Appeal from 93rd District Court of Hidalgo County

State: Texas

Court: Texas Northern District Court

Docket No: 13-01-00561-CV

Case Date: 10/30/2003

Plaintiff: MARK DIZDAR, D/B/A DIZDAR DEVELOPMENT AND DIZDAR DEVELOPMENT, LTD.

Defendant: JOSE MORENO AND ELIZABETH MORENO--Appeal from 93rd District Court of Hidalgo County

Preview:Carey Wright d/b/a Home Sweet Home v. John
McCusker and Ann Van Pelt--Appeal from 37th
Judicial District Court of Bexar County
99-00592 Wright v McCusker.wpd No. 04-99-00592-CV
Carey WRIGHT d/b/a Home Sweet Home,
Appellant
v.
John McCUSKER and Ann Van Pelt,
Appellees
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CI-04031
Honorable Carlos C. Cadena, Judge Presiding
Opinion by: Sarah B. Duncan, Justice
Sitting: Tom Rickhoff, Justice
Alma L. L pez, Justice
Sarah B. Duncan, Justice
Delivered and Filed: June 28, 2000
REVERSED AND REMANDED
Carey Wright appeals the judgment in his suit against John McCusker and Ann Van Pelt. Wright contends the trial
court erred in refusing to submit a jury question on attorney's fees. We agree and therefore reverse the trial court's
judgment and remand the cause for further consideration of the attorney's fees issue consistent with this opinion.
Factual and Procedural Background
After McCusker and Van Pelt failed to pay Wright the $40,893.46 he claimed was due for remodeling work, Wright
sued for breach of contract and fraud. During the jury trial, Wright's attorney testified about his client's attorney's fees
and submitted into evidence an itemized fee statement. Neither the testimony nor the exhibit segregated the time and
effort spent pursuing the breach of contract claim.
At the conclusion of the evidence, the trial court directed a verdict against Wright on his fraud claim but submitted
Wright's breach of contract claim. However, the court denied Wright's request for a jury question on attorney's fees and
also denied his motion to reopen the case so his attorney could testify that the issues involved in the case were
inextricably intertwined and he could not segregate the time spent on the contract claim from the time spent on the
fraud claim. The jury returned a verdict in Wright's favor on his breach of contract claim, and the court rendered
judgment on the verdict, awarding Wright his actual damages and prejudgment interest.
Wright appealed, requesting a partial record that includes his objection to the charge and his attorney's fees testimony
but not a statement of the points or issues to be presented on appeal. See Tex. R. App. P. 34.6(c).
Discussion
Wright contends the trial court erred in refusing to submit a jury question regarding his attorney's fees. We agree.
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We review charge error under an abuse of discretion standard. Texas Dept. of Human Services v. E.B., 802 S.W.2d
647, 649 (Tex. 1990). Thus, if the ruling resolves an issue of fact, a reviewing court may not reverse unless "the trial
court could reasonably have reached only one decision." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). If,
however, the ruling rests upon "determining what the law is or applying the law to the facts," the "trial court has no
'discretion'...." Id. Accordingly, an abuse of discretion occurs if the trial court refuses to submit "the questions,
instructions and definitions ... raised by the written pleadings and the evidence." Tex. R. Civ. P. 277; Elbaor v. Smith,
845 S.W.2d 240, 243 (Tex. 1992).
Wright's petition requested an award of attorney's fees, and his attorney's testimony of unsegregated fees is some
evidence of segregated attorney's fees. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 12 (Tex. 1991). We thus hold
the trial court abused its discretion in refusing to submit an attorney's fees question. To support a contrary holding,
appellees argue Wright's failure to comply with Rule 34.6(c) requires that we presume the absent parts of the record
support a finding that Wright's fees should have been segregated. This may be. See Christiansen v. Prezelski,782
S.W.2d 842, 843 (Tex. 1990). But this presumption is relevant only to the form in which an attorney's fees question
should have been submitted; it does not affect whether a question in some form should have been submitted.
Because Wright's petition contained a request for attorney's fees and his attorney's testimony of unsegregated fees
constitutes some evidence of segregated fees, the trial court erred in refusing to submit an attorney's fees question. We
therefore reverse the trial court's judgment and remand the case to the trial court for further consideration of the
attorney's fees issue consistent with this opinion. See Sterling, 822 S.W.2d at 12 (remanding the issue of attorney's fees
to the trial court).
Sarah B. Duncan, Justice
Do not publish
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