Affirmed and Memorandum Opinion filed June 12, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-07-00304-CV
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PATRICK REINHARDT, Appellant
V.
JOE WALKER, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 36313
M E M O R A N D U M O P I N I O N
Patrick Reinhardt appeals from a judgment favoring Joe Walker. Walker sued Reinhardt for recovery of repair costs on an airplane that the two men co-owned. In the final judgment, the trial court awarded ownership of the airplane to Walker and ordered Reinhardt to pay Walker $49,968.98 in damages as well as court costs and post-judgment interest. In eight issues on appeal, Reinhardt contends that (1) certain of Walker=s causes of action were barred by the applicable statutes of limitations; (2) Walker=s claims are barred by laches and waiver; (3) there is no duty between co-owners to share costs of repair and restoration; (4) the trial court did not act equitably in accepting Reinhardt=s abandonment of the plane yet assessing damages against him for repairs; (5) Walker=s pleadings do not support claims for equitable relief, detrimental reliance, or implied contract; (6) there is no evidence of any agreement to repair the plane; (7) there is no evidence supporting the damages awarded; and (8) Reinhardt is entitled to attorney=s fees. In a single cross-issue, Walker contends that the trial court erred in refusing to award him attorney=s fees. We affirm.
I. Background
In the early 1980s, four men, Patrick Reinhardt, Joe Walker, Ronald Priddy, and Wally Grabbe, entered a partnership to buy a Piper Warrior airplane. First Grabbe and then Priddy left the group, leaving only Reinhardt and Walker. The plane was last flown in 1989. Through the years, the men discussed repairing the plane, and both men worked on the plane as recently as June 2005. Later in 2005, Walker sued Reinhardt for breach of the partnership agreement and breach of an agreement to repair the plane, as well as for other causes of action. After a trial to the bench, the court found that the partnership had terminated by operation of law but found for Walker on breach of the agreement to repair as well as on other bases.
The trial court made extensive findings of fact, including the following:
$ Patrick Reinhardt, Joe Walker, Ronald Priddy, and Wally Grabbe formed a partnership that owned the plane in dispute. The partnership terminated by operation of law when Grabbe was removed as a partner in 1987; the three remaining men owned the plane individually as co-owners. The terms of the original partnership included that (1) the plane would be kept in good flying condition; (2) all costs of ownership would be shared equally; (3) if any partner worked on the plane, the others would reimburse him for his out-of-pocket expenses; and (4) the partners were to share equally in the labor or would compensate the other partners who did more work. There was no evidence that the partnership was ever reconstituted after 1987, but the ownership and maintenance agreements continued. Although Priddy ceased to have an interest in the plane at some point in the early 1990s, the agreements between Reinhardt and Walker continued until August 17, 2006 when Reinhardt filed an amended answer stating that he abandoned his interest in the plane.
$ In the alternative, even absent express agreement, the parties would have been obligated to share expenses equally as co-owners.
$ The expenses incurred by Walker and on which judgment is granted were reasonable and customary. Reinhardt is obligated to pay Walker half of all expenses Walker incurred prior to the time he was notified Reinhardt repudiated the agreement and terminated his ownership interest.
$ Walker began working to restore the plane in late 2004, and in June 2005, Reinhardt paid Walker $2,100 for work Walker did on the plane. Repairs continued through the Fall of 2005 with no financial contribution by Reinhardt. Walker made demand on Reinhardt for $17,790.92 on October 28, 2005, and filed suit in late 2005, but there is no evidence Reinhardt denied his obligations under the agreement until the amended answer filed August 17, 2006.
$ At the same time that Reinhardt filed the amended answer, he also conveyed his interest in the plane to Walker. At trial, Reinhardt Aagreed and stipulated that he had abandoned all interest in the airplane and had no wish to make any further claim to the plane.@
$ In determining the amount of damages, certain amounts were deducted based on illegible receipts, items Walker agreed should be deducted, and items with residual value. Walker was entitled to reimbursement for his own labor at the rate of $20 per hour pursuant to the agreement.
$ Reinhardt is estopped from denying responsibility for half of the expenses because he and Walker expressed their desire to restore the plane in the presence of others, and Reinhardt reimbursed Walker for his labor as late as June 2005.
$ The fees testified to by Walker=s attorney are reasonable and necessary; however, Walker=s attorney failed to allocate those fees between the various claims.
In its judgment, the trial court awarded Walker $33,143.98 for bills, equipment, supplies, and third party labor, and $16,825 for labor performed by Walker himself. The trial court further ordered that Walker was the sole owner of the airplane. The trial court did not, however, award Walker attorney=s fees.
II. Reinhardt=s Appeal
A. Proof of Agreement
We begin with Reinhardt=s sixth issue because it goes to the heart of the case and its resolution impacts the resolution of several other issues. In his sixth issue, Reinhardt contends that there was no evidence that he and Walker agreed to repair the airplane and share in the expenses. Specifically, Reinhardt argues that while there was considerable testimony about repairing the plane, there was little evidence of the details of any agreement to repair, and the testimony of the co-owners was not in complete accord regarding the terms of the agreement. Reinhardt further complains that the evidence regarding the contract was mostly circumstantial.
The elements required for establishing the existence of written and oral contracts are the same. Wal‑Mart Stores, Inc. v. Lopez, 93 S.W.3d 548, 555 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Generally, parties form a binding contract when the following elements are present: (1) an offer, (2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of the minds, (4) each party=s consent to the terms, and (5) execution and delivery of the contract with the intent that it be mutual and binding. Id. at 555-56. AMeeting of the minds@ describes the mutual understanding and assent to the agreement regarding the subject matter and the essential terms of the contract. Weynand v. Weynand, 990 S.W.2d 843, 846 (Tex. App.CDallas 1999, pet. denied). Mutual assent, concerning material, essential terms, is a prerequisite to formation of a binding, enforceable contract. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). In determining the existence of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding these communications. Palestine Water Well Servs., Inc. v. Vance Sand & Rock, Inc., 188 S.W.3d 321, 325 (Tex. App.CTyler 2006, no pet.). We utilize the well-established standards of review in considering this challenge to the legal sufficiency of the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 810, 822, 827 (Tex. 2005).
At trial, Walker testified that the agreement between the original four owners was that everyone was to pay and work an equal share and that if anyone put in more labor than the others, he would be compensated at the rate of $20 per hour. Walker said that after the other members left the group, he and Reinhardt did not discuss ending the arrangement. Once they stopped flying the plane in 1989, Walker and Reinhardt discussed what needed to be done to make it airworthy again. Several years went by, during which time, Reinhardt faced family medical problems. Eventually, the two began working to restore the plane. Walker said that although there was no written contract between he and Reinhardt, they Aabsolutely@ had an agreement for each to pay his share of expenses. Reinhardt never repudiated the agreement; there was indeed no discussion about ending the agreement at any point prior to the filing of the lawsuit. They talked about most repairs before the actual expenses were incurred. According to Walker, he and Reinhardt also discussed on a regular basis that Walker was putting in more time than Reinhardt, and Walker reminded Reinhardt of their agreement when Reinhardt began Ano-showing@ for work on the plane. On June 21, 2005, Reinhardt agreed that Walker had been putting in more time and wrote Walker a check for $2,100 for Walker=s additional labor.
Reinhardt testified that within the last four years prior to trial, he had worked approximately 100 hours on the plane and made purchases for the renovation. He said that both men understood that they would be paying 50 percent of the expenses, and he acknowledged as late as June 2005 that he had a responsibility to pay for half the expenses. He said that their Aoperating agreement@ was that each person would contribute time and money but that they never agreed that if one owner worked more he would get paid for his labor. He denied paying Walker $2,100 for his labor, explaining instead that the check was for expenses on the plane. He further said that at some point he told Walker that Athe plane was beyond economic repair.@
Ronald Priddy, one of the original partners who became a co-owner with Walker and Reinhardt when Wally Grabbe left the group, testified that he understood the original agreement continued when Grabbe left, although he does not recall its being specifically discussed. Sammy Bingham, Walker=s neighbor, testified that Walker told him that Walker and Reinhardt were partners in the ownership of the plane. Bingham further said that he saw Reinhardt Amessing with@ the plane a few times within the last four years.
Since both Walker and Reinhardt testified that they had an agreement to share expenses incurred while working on the plane, there was clearly sufficient evidence to establish such an agreement. The men differed as to whether the agreement included a term requiring reimbursement if one owner put in additional labor; however, as fact-finder, the trial court was free to believe Walker=s testimony in this regard (including that Reinhardt had paid him for labor pursuant to the agreement) and discount Reinhardt=s. See, e.g., Tagle v. Galvan, 155 S.W.3d 510, 518 (Tex. App.CSan Antonio 2004, no pet.). Reinhardt=s testimony that he told Walker the plane could not be repaired economically, thus supposedly repudiating the agreement, does not negate formation of the agreement. Because we find that there was legally sufficient evidence to support the trial court=s contract finding, we overrule Reinhardt=s sixth issue.
B. Limitations
In his first issue, Reinhardt contends that Walker=s Acause of action for debt and partnership@ is barred by the four-year statute of limitations contained in section 16.004 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 16.004(a) & (c). Specifically, Reinhardt argues that limitations applies because the plane had not been flown since 1989, and while there had been discussions and some repairs over the years, there was no agreement between the parties.
To begin with, the trial court found that there was indeed an agreement between the parties to repair the plane, and we found above that the evidence was legally sufficient to support this finding. Additionally, Reinhardt does not explain how the fact that the plane was not airworthy for a number of years runs afoul of the statute of limitations. Walker, Reinhardt, and Priddy all testified that the terms of their agreement continued after Grabbe left the partnership. Walker testified that Reinhardt did not repudiate the agreement until the present case was filed, and he further stated that Reinhardt was still performing pursuant to the agreement (by working on the plane and paying Walker for his additional labor) in June 2005. Walker=s lawsuit sought damages incurred after June 2005, when Reinhardt apparently stopped working on the plane and stopped paying Walker for his additional labor. With the alleged breach not occurring until some point after June 2005, and repudiation not occurring until some point in 2006 after suit was filed, the trial court did not err in refusing to hold that Walker=s cause of action was barred by the four year statute of limitations. Accordingly, we overrule Reinhardt=s first issue.
C. Laches and Waiver
In his second issue, Reinhardt contends that because of Walker=s delay in bringing suit, Walker is barred by the doctrines of laches and waiver from recovering any repair or maintenance expenses. Reinhardt does not cite or discuss any authority relevant to his laches or waiver arguments. See Tex. R. App. P. 38.1(h) (providing that briefs Amust contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record@). Accordingly, these arguments are not properly briefed. We therefore overrule Reinhardt=s second issue.
D. Abandonment
In his third issue, Reinhardt contends that the trial court did not act equitably in accepting his abandonment of the airplane while holding him liable for repairs. Except for one general, definitional cite to Tex. Jur., Reinhardt does not cite or discuss any authority relevant to his argument. See Tex. R. App. P. 38.1(h). We further note that it was Reinhardt and his counsel who urged the court to accept the abandonment of the plane and informed the court that the plane had been deeded to Walker. Reinhardt may not now complain on appeal that the court granted his request. Cf. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (explaining Ainvited error@ doctrine); Keith v. Keith, 221 S.W.3d 156, 163 (Tex. App.CHouston [1st Dist.] 2006, no pet.) (same). Accordingly, we overrule Reinhardt=s third issue.
E. Duty of Co-Owners and Sufficiency of Pleadings
In his fourth issue, Reinhardt contends that the trial court erred by holding, in the alternative, that as co-owners of the airplane, Reinhardt and Walker were obligated to share in the cost of repairs and maintenance. In his fifth issue, Reinhardt contends that the trial court=s alternative holdings of equitable benefit, detrimental reliance, and implied contract were not supported by Walker=s pleadings. Because we held above that the record supports the trial court=s breach of contract finding, and the judgment is fully supported by that finding, we need not address the propriety of any of the court=s alternative findings. Consequently, we overrule Reinhardt=s fourth and fifth issues.
F. Evidence of Damages
In his seventh issue, Reinhardt attacks the legal sufficiency of the evidence to support the trial court=s damages award. Specifically, Reinhardt asserts that (1) Walker was not qualified to testify that the repairs to the plane were reasonable and necessary, and (2) there was no specific testimony that the repairs were reasonable or necessary. We again utilize the well-established standards of review in considering these attacks on the legal sufficiency of the evidence. See City of Keller, 168 S.W.3d at 810, 822, 827.
Concerning Walker=s qualifications, even assuming expert testimony was required to establish the reasonableness and necessity of the airplane repairs involved in this case, we find that Reinhardt did not preserve this argument by raising a proper and timely objection in the trial court. See Tex. R. App. P. 33.1(a) (providing that as a prerequisite for presenting a complaint for appellate review, a party must have raised the complaint in the trial court by a timely and sufficiently specific request, objection, or motion); Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 143-44 (Tex. 2004) (holding issue of expert=s qualifications was not preserved by objection attacking reliability of expert=s testimony). In his brief, Reinhardt cites to a single objection he made during Walker=s testimony, pointing out that Walker had not been designated as an expert. The record does not demonstrate, however, either that the trial court ruled on the objection or that Reinhardt lodged any additional objections concerning Walker=s qualifications on damages. To preserve error for appellate review, the complaining party generally must timely and specifically object to the evidence and obtain a ruling each time the evidence is admitted. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007) (stating that error is waived if the complaining party failed to obtain a ruling or allowed the evidence to be subsequently introduced without objection).[1] Accordingly, we find that Reinhardt has not preserved this complaint for our review.
Concerning the absence of specific testimony stating that the repairs were Areasonable and necessary,@ we have not in the past required testimony utilizing such specific words but instead considered whether the plaintiff has presented sufficient evidence to justify the finding that the costs at issue were reasonably and necessarily sustained. See, e.g., Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 446 (Tex. App.CHouston [14th Dist.] 2005, no pet.). Here, while Walker did not specifically use the words Areasonable and necessary,@ he did testify at length and with considerable specificity regarding the repair charges, in many cases going item by item, receipt by receipt. He further testified that he and Reinhardt discussed most of the repairs before the expense was incurred. We find that this testimony, coupled with the detailed receipts, constituted more than a scintilla of evidence supporting the trial court=s damages award. Accordingly, we overrule appellant=s seventh issue.
G. Reinhardt=s Attorney=s Fees
In his eighth issue, Reinhardt requests that if this court reverses and renders the trial court=s judgment on the substantive issues, we also award him attorney=s fees as presented in the trial court. Because we affirm the trial court=s judgment on the substantive issues, this issue has been rendered moot. Consequently, we overrule Reinhardt=s eighth issue.
III. Walker=s Attorney=s Fees
In a single cross-issue, Walker contends that the trial court erred in refusing to award him attorney=s fees pursuant to section 38.001 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 38.001. Although the trial court found that the fees testified to by Walker=s attorney were reasonable and necessary, the court expressly declined to award such fees because Walker=s attorney failed to allocate those fees between his various causes of action, some of which allowed for recovery of attorney=s fees and some of which did not. See generally Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006) (generally requiring allocation of attorney=s fees when a party raises some claims on which fees are recoverable and some on which they are not). Specifically, in addition to the breach of contract cause of action on which appellant won judgment, the record demonstrates that Walker also pleaded and attempted to establish the existence and breach of a partnership agreement, which the trial court found was terminated by operation of law. A party cannot recover attorney=s fees for prosecution of a claim on which it did not prevail. Stevens v. Anatolian Shepherd Dog Club of Am., Inc., 231 S.W.3d 71, 77 (Tex. App.CHouston [14th Dist.] 2007, pet. denied).
Appellant argues, under an exception to the general rule, that the fees could not be properly allocated to each cause of action because the claims arose from the same factual circumstances and were therefore inextricably intertwined, citing Aetna Casualty & Surety v. Wild, 944 S.W.2d 37, 41 (Tex. App.CAmarillo 1997, writ denied), et al. However, as the Texas Supreme Court recently recognized in Tony Gullo Motors, the mere fact that claims are based on common facts or are Aintertwined@ does not make all fees incurred recoverable. 212 S.W.3d at 313-14. The court further noted that even when the facts needed to prove separate causes of action are essentially identical, counsel for the claimant will normally still be required to draft pleadings for the separate causes and may also be required to perform differing research and discovery, among other matters. Id. at 313. The court then concluded that Aif any attorney=s fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees.@ Id. Counsel is not required to keep separate records documenting the exact amount of time spent pleading one claim versus another; rather, counsel could simply state an opinion as to the percentage of the total time that would have been spent had the claim for which fees are not recoverable not been part of the case. Id. at 314.
Here, while development of some of the facts may have been the same among the causes of action, it is evident that each claim required, at a minimum, drafting separate portions of the various pleadings. Each claim also probably required separate legal research and possibly separate discovery requests and responses as well. Accordingly, we find Walker=s argument that his causes of action were so intertwined that he was entitled to recover the entire amount of attorney=s fees to be without merit. We overrule his sole cross-issue.[2]
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Judgment rendered and Memorandum Opinion filed June 12, 2008.
Panel consists of Chief Justice Hedges and Justices Fowler and Boyce.
[1] Interestingly, Reinhardt=s attorney argued at trial that as an owner of the plane, Reinhardt himself was qualified to testify as to whether certain repairs performed by a third party were reasonable and necessary.
[2] Although in his prayer for relief, Walker requested in the alternative that we reverse and remand the case for reconsideration of attorney=s fees, he does not set forth any specific argument in support of a remand. Accordingly, we decline to reverse and remand the trial court=s judgment.