Affirmed and Majority and Concurring Opinions filed August 10, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-01111-CV
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JOSEPH DIXON D/B/A DIXON CONCRETE CONTRACTORS, Appellant
V.
SHELTON R. MODELIST, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 758,220
C O N C U R R I N G O P I N I O N
I respectfully concur in the court=s judgment.
Damages
Appellant Joseph Dixon asserts that the trial court erred in denying his motion for judgment notwithstanding the verdict because appellee Shelton R. Modelist did not Aprove an essential element of an action for breach of contract: to-wit: [sic] that he sustained damages, as a result of Dixon=s failure to comply with the agreement. . . .@ To reject this asserted error this court need not address whether the recovery of past damages is a prerequisite for the recovery of future damages in a contract case.
There was evidence before the jury that Dixon=s failure to comply with his agreement to construct the driveway with proper drainage resulted in damages to Modelist based on a bid that Modelist received as to how much it would cost him in the future to repair the improper drainage in the driveway. The jury found that Dixon had failed to comply with his agreement to construct the driveway with proper drainage and that $9,700, if paid now in cash, would fairly and reasonably compensate Modelist for his damages that resulted from such failure to comply. Although the jury did find that the $9,700, in reasonable probability, would be sustained in the future, it did so in the context of an instruction that the jury consider as an element of possible damages A[t]he reasonable and necessary cost to remove and replace the driveway, or otherwise repair the improper drainage in the driveway.@ At the time of trial Modelist had not yet incurred any cost regarding the repair of the driveway. Therefore, the jury=s finding that Modelist would sustain in the future an expense of $9,700 reflects the reality that Modelist had not yet incurred this cost and does not conflict with the jury=s finding that this amount constitutes damages that resulted from Dixon=s failure to comply. In sum, given both the damage evidence at trial and the jury=s findings based on that evidence, Modelist proved he had sustained damages as a result of Dixon=s failure to comply with the agreement. Therefore, Dixon=s assertion of error lacks merit.
Attorney=s Fees
Though not mentioned by the majority, in his appellate brief Dixon seeks an award of attorney=s fees for his defense of Modelist=s contract claims. Dixon cites no rule or statute that he claims entitles him to such an award. Texas law provides that, as long as certain requirements are satisfied, a party that is awarded damages under a breach-of-contract claim may also recover its reasonable attorney=s fees from the liable party. See Tex. Civ. Prac. & Rem. Code ''38.001, 38.002. Texas law does not provide that a party found liable for damages under its contract may recover from the successful claimant attorney=s fees for the unsuccessful defense of the contract claim. See id.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Majority and Concurring Opinions filed August 10, 2004.
Panel consists of Chief Justice Hedges and Justices Frost and Guzman. (Hedges, C.J., majority.)