Town Center Mall, L.P. v. Nevada C. Dyer, D/B/A Ankas Enterprises

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-14-00268-CV

TOWN CENTER MALL, L.P. APPELLANT

V.

NEVADA C. DYER, D/B/A ANKAS APPELLEE
ENTERPRISES

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 236-241807-09

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MEMORANDUM OPINION1

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I. INTRODUCTION

In eight issues, Appellant Town Center Mall, L.P. (TCM) appeals from a

final judgment awarding damages and attorney’s fees to Appellee Nevada C.

Dyer, d/b/a Ankas Enterprises. We will affirm.

1
See Tex. R. App. P. 47.4.
 II. BACKGROUND

In 2004, TCM purchased “La Gran Plaza,” a retail mall located in Fort

Worth. The following year, after entering into an “Economic Development

Program Agreement” with the City of Fort Worth, TCM began a large-scale

renovation of the property. It hired project managers and entered into written

agreements with contractors to perform the renovation.2

One of the project managers that TCM hired was Tony Ozuna. Ozuna was

responsible for overseeing the completion of part of the renovation, and he

approached a number of people about submitting bids, including wife, Latecha,

and his sister, Dyer. Dyer and Latecha had worked together in the past and were

interested in participating in the renovation. They therefore filed an assumed

name certificate and placed a bid under the name of Ankas Enterprises to

perform certain work.3 TCM accepted the bid and contracted with Ankas in

August 2005 to perform the agreed-upon services. Over the next seven months,

TCM and Ankas entered into six additional written construction contracts for the

performance of various services as part of the renovation of the mall. Ankas also

signed fourteen “Release and Waiver of Lien and Indemnity Agreement[s]” when

TCM paid Ankas for work performed.

2
Boxer Property Management Corporation managed the property.
3
Dyer and Latecha both filed an assumed name certificate—Dyer identified
the business as “Ankass Ent” and Latecha identified the business as “Ankas
Ent.” At the time, neither realized that the other was going to file the document.
Dyer applied for a tax-identification number and used her Social Security
number.
2
 According to Ozuna, the renovation was a “very fast-tracked project” and

proceeded “very quickly.” Although Ankas and TCM executed seven written

contracts that detailed the scope of the work to be performed and the

compensation to be paid, Ankas and other contractors were “often” asked to

perform additional services that were not covered by any written contract.4 The

written contracts contained a provision requiring that change orders be used to

document “[a]ny alterations, changes[,] or revisions to the [w]ork, or any

increases to the [c]ontract [p]rice,” but TCM never issued a single change order

for any extra-contractual work that Ankas performed. Dyer nonetheless

documented those “miscellaneous tasks” and requested that Ankas be paid for

them. TCM ultimately paid Ankas a total of $501,491.07 for the work that it

performed on the renovation project. Of that amount, approximately $194,000

accounted for work that was not covered by any of the seven written contracts

that Ankas and TCM had executed.

Dyer, d/b/a/ Ankas Enterprises, later sued TCM for breach of contract,

sworn account, and quantum meruit, alleging that TCM owed Ankas an additional

$116,000 for work performed on the project. TCM denied Dyer’s allegations,

4
For example, one written contract between Ankas and TCM required
Ankas to construct wired “cages”—spaces measuring about 10 feet x 10 feet that
vendors occupied to sell their wares. At times, Ashwin Thakker, TCM’s
employee responsible for “contract administration,” or Shelly Campbell, the
leasing manager, directed Ankas employees to modify a cage when the tenant
so requested. Ozuna also asked Ankas to perform extra-contractual work.

3
asserted verified pleas, and alleged counterclaims for fraudulent lien and fraud.5

Following a bench trial, the trial court signed a final judgment awarding Dyer

$139,787.61; pre- and post-judgment interest; and attorney’s fees.6 The trial

court denied TCM’s fraud claims and also entered findings of fact and

conclusions of law, finding in part the following:

5. There were seven (7) written contracts entered into
between Plaintiff and Defendant. In addition to the work as outlined
in those seven contracts, Defendant had Plaintiff perform numerous
other items of work outside the scope of the original contracts which
should have been reflected as work change orders, but was not.
Plaintiff was not fully paid on contracts 2, 4 & 5.

....

10. Plaintiff’s evidence, which established that Plaintiff was
entitled to a recovery, was not contested by any credible evidence
offered by Defendant. Defendant relied upon Lien Releases in an
attempt to vary the terms of written contracts, prohibited under
provisions 1.2 and 14.8 of those very same contracts, unless signed
by both the Owner and Contractor. The evidence established that
the first Lien Release was for a material draw and the last Lien
Release was for a partial payment (of an undisclosed contract or
change order item), indicative of both parties[’] understanding that
further monies are due. Plaintiff acknowledged signing those in
order to obtain payment, but she did not intend to release Defendant

5
Regarding the fraudulent lien claim, in June 2006, Dyer filed a mechanic’s
and materialmen’s lien affidavit against the mall, claiming that TCM owed Ankas
approximately $105,000 for work performed, materials, or both. Dyer released
the lien during the pendency of this litigation. TCM’s fraud-by-nondisclosure
claim centered around Ozuna’s relationship with Dyer and Latecha.
6
The trial court awarded Dyer “attorney fees of $70,000[] through the date
of [the] judgment”; “attorney fees of $20,000.00 if appealed to the court of
appeals”; and “attorney fees of $10,000.00 if appealed to the Texas Supreme
Court.”

4
 for work performed by Plaintiff but not yet paid for by Defendant as
evidenced by repeated invoicing. . . .

11. The evidence at trial established that the Defendant
owed Plaintiff the sum of $116,561.47, as set forth in Plaintiff’s
Second Amended Petition.

12. Defendant’s Vice-President, Michael Pariza, testified
that Plaintiff should not have been back charged $23,226.14, rather
that amount should have been charged off to the project by the
Defendant.

The trial court concluded in part as follows:

1. From August 2005 through March 2006, Plaintiff and
Defendant entered into seven (7) contracts. Plaintiff performed its
obligations under these contracts. Defendant failed to pay the full
amounts due for contacts 2, 4, [a]nd 5. . . . Defendant requested
change order work to existing contracts which Plaintiff performed but
was not fully compensated by Defendant.

2. Plaintiff furnished services to Defendant and charged
the usual, customary, and reasonable price for those services.
Plaintiff has provided Defendant a systematic record of these
transactions. All lawful offsets, payments, and credits have been
applied to Defendant’s account. The account was not paid in full
and the damages in the amount of $116,561.47 are liquidated and
proved by the Affidavit of Nevada Dyer attached to Plaintiff’s 2nd
Amended Petition.

3. The trial testimony of Defendant’s Vice President,
Michael Pariza, established that Defendant erred in taking credits
totaling $23,226.14 from monies owed Plaintiff for services rendered
....

4. In addition to breach of contract and sworn account,
Plaintiff also pled for quantum meruit, an equitable remedy to
compensate the Plaintiff when goods or services are provided at
Defendant’s request absent an express agreement. . . . Plaintiff
established the following elements of quantum meruit:

A. Plaintiff provided services or materials;
B. The services or materials were provided for Defendant;

5
 C. Defendant accepted the services or materials; and,
D. Defendant had reasonable notice that Plaintiff expected
compensation for the services or materials

TCM appeals.

III. STANDING

In its first issue, TCM argues that the trial court lacked subject-matter

jurisdiction over Dyer’s claims because she did not have standing to assert

claims involving alleged breaches of contractual or quasi-contractual obligations

owed only to Ankas. Dyer responds that TCM confuses standing with capacity

and waived any challenge to Dyer’s capacity to sue by not raising the issue in a

verified pleading.

“A plaintiff has standing when it is personally aggrieved, regardless of

whether it is acting with legal authority; a party has capacity when it has the legal

authority to act, regardless of whether it has a justiciable interest in the

controversy.” Nootsie, Ltd. v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659,

661 (Tex. 1996). A challenge to who owns a claim raises the issue of capacity,

not standing. Prostok v. Browning, 112 S.W.3d 876, 921 (Tex. App.—Dallas

2003), rev’d in part on other grounds, 165 S.W.3d 336 (Tex. 2005); see

Heartland Holdings, Inc. v. U.S. Trust Co. of Tex. N.A., 316 S.W.3d 1, 7 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (“When it is established that a breach

of contract plaintiff lacks entitlement to sue on a contract, the proper disposition

may be summary judgment on the merits, but it is not dismissal for want of

jurisdiction.”).

6
 According to TCM, “Dyer was not the proper party to bring any claims

concerning the business dealings between Ankas and [TCM].” This complaint

relates to capacity rather than to standing. See Dakil v. Lege, 408 S.W.3d 9, 11

(Tex. App.—El Paso 2012, no pet.) (“Dakil claims that Lege was not a proper

party to file a breach of contract action because he brought the original suit

based on invoices from 2-L Contractors Inc. but he had not filed an assumed-

name certificate. These complaints relate to capacity rather than standing.”).

Capacity must be challenged by a verified pleading or it is waived. Nootsie, 925

S.W.2d at 662; see Tex. R. Civ. P. 93. TCM filed a verified pleading asserting

that Latecha was a necessary party to the lawsuit, but it did not raise Dyer’s

capacity to sue under an assumed name certificate that someone else (Latecha)

had filed. See Tex. R. Civ. P. 93(14). TCM therefore waived this complaint. We

overrule its first issue.

IV. BREACH OF CONTRACT AND QUANTUM MERUIT

In its second and fourth issues, TCM argues that the evidence is legally

insufficient to support the trial court’s judgment insofar as it is premised upon

Dyer’s claims for breach of contract and quantum meruit.

We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

7
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005). Any ultimate fact may be proved by circumstantial evidence.

Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993). A fact is established by

circumstantial evidence when the fact may be fairly and reasonably inferred from

other facts proved in the case. Id.

The elements of a breach-of-contract claim are (1) the existence of a valid

contract, (2) performance or tendered performance by the plaintiff, (3) breach of

the contract by the defendant, and (4) resulting damages to the plaintiff. Rice v.

Metro. Life Ins. Co., 324 S.W.3d 660, 666 (Tex. App.—Fort Worth 2010, no pet.).

By contrast, quantum meruit is an equitable theory of recovery based on an

implied agreement to pay for benefits received. Heldenfels Bros., Inc. v. City of

Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992). The elements of a quantum-

meruit claim are (1) valuable services or materials provided by plaintiff to the

defendant, (2) who accepted the services or materials, (3) under such

circumstances as would reasonably notify defendant that the plaintiff expected to

8
be paid. BP Auto., L.P. v. RML Waxahachie Dodge, L.L.C., 448 S.W.3d 562,

572 (Tex. App.—Houston [1st Dist.] 2014, no pet.).

TCM initially contends in its second issue that Dyer could not have

prevailed on her contract claim “because she was not a party to any contract

sued upon.” Similarly, TCM argues in its fourth issue that Dyer could not have

prevailed under a quantum meruit theory because “any services or materials

allegedly provided outside the scope of the contracts [were] performed by Ankas

Enterprises.” Both arguments are variations of the same issue that we already

considered regarding capacity. We therefore overrule this part of TCM’s second

and fourth issues.

TCM challenges elements (2) and (3) of Dyer’s contract claim, arguing that

there is no evidence that Ankas performed and no evidence that TCM failed to

comply with its pertinent contractual obligations. In advancing this argument,

TCM contends that the trial court never admitted Dyer’s exhibits into evidence

and that we are therefore limited to considering only the testimonial evidence

admitted during trial.7 We need not decide whether Dyer’s exhibits were

7
At the conclusion of the bench trial, Dyer offered two trial notebooks into
evidence—an “unedited” version and an “edited” version. TCM re-urged the
written objections that it had previously lodged against Dyer’s evidence, and the
trial court stated that it would “take the admission of [Dyer’s] two notebooks
under advisement.” Thereafter, in this order, the trial court signed a final
judgment in favor of Dyer, TCM filed a “Motion for Entry of Order on Defendant’s
Objections to the Admission of Plaintiff’s Trial Exhibits,” and the trial court signed
an order denying each and every one of TCM’s objections. TCM and Dyer
disagree about whether the trial court’s post-judgment order denying TCM’s
objections impliedly admitted Dyer’s exhibits.

9
admitted because even without considering them, legally sufficient evidence

supports the trial court’s judgment.

Dyer testified that TCM failed to pay Ankas in full for (1) the contractual

work and (2) the extra-contractual, “miscellaneous tasks” that Ankas had

performed on the renovation, and Ozuna testified that Ankas had performed work

on the renovation and was owed money. Dyer explained that TCM had paid

Ankas a total of $501,491.07 but that Ankas had performed work totaling

$641,278.68, leaving a balance due and owing of $139,787.61, the same amount

that the trial court awarded Dyer. Regarding the unpaid amounts for work

covered by a written contract—which support an award for breach of contract—

Dyer testified that TCM owed Ankas $7,013.75 for Contract “2”; $40,500 for

Contract “4”; and $10,800 for Contract “5.” Regarding the extra-contractual,

“miscellaneous tasks” that Ankas performed—which support an award under a

quantum-meruit theory—Dyer identified a number of the tasks and testified that

TCM owed Ankas $32,771. Dyer failed to disclose an amount owed for several

of the tasks (rain-damage repair and modifications to cages), but TCM’s own

documentary evidence reflected that TCM owed Ankas $6,450 for those tasks.

TCM’s evidence also showed that it owed Ankas at least $2,100 for two

additional “miscellaneous tasks” that Ankas had performed (converting cages

and repairing walls). Finally, the trial court’s award included an amount that TCM

10
had improperly back charged to Ankas—$40,172.8 To the extent that any of the

evidence conflicted, the trial court, as factfinder, could have resolved the conflict

in favor of Dyer. See City of Keller, 168 S.W.3d at 820.

TCM argues that Dyer’s evidence of extra-contractual, “miscellaneous

tasks” is barred by the parol evidence rule. The parol evidence rule did not bar

testimony about the extra-contractual tasks because that evidence was not

admitted to construe the terms of the written contracts upon which Ankas was

underpaid. See Gail v. Berry, 343 S.W.3d 520, 523 (Tex. App.—Eastland 2011,

pet. denied) (“The parol evidence rule is a rule of substantive law which provides

that, in the absence of fraud, accident, or mistake, extrinsic evidence is not

admissible to vary, add to, or contradict the terms of a written contract that is

facially complete and unambiguous.”).

TCM contends that there is no evidence that Dyer gave it notice that Ankas

expected to be paid for the “miscellaneous tasks” that Ankas performed, but Dyer

testified that she documented those tasks and requested that Ankas be paid for

them. Moreover, it simply cannot be ignored that TCM paid Ankas approximately

$194,000 for work that was not covered by any of the seven written contracts that

Ankas and TCM had executed. The trial court therefore could have reasonably

inferred that TCM had notice that Ankas expected to be paid for all of the

miscellaneous tasks. See City of Keller, 168 S.W.3d at 821.

8
This figure represents two different amounts that were improperly back
charged—one for $16,946 and one for $23,226.

11
 TCM further complains that the trial court’s findings of fact “are insufficient

to support a quantum meruit cause of action” because there is no specific finding

that TCM had reasonable notice that Dyer expected compensation for the

“miscellaneous tasks” that Ankas performed.9 “When a court makes findings of

fact, but inadvertently omits an essential element of a ground of recovery or

defense, the presumption of validity will supply the omitted element by

implication.” Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 252 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied); see Tex. R. Civ. P. 299. The trial

court’s findings implicate elements (1) and (2) of Dyer’s quantum-meruit claim;

consequently, the omission of the notice-of-compensation element is deemed to

be inadvertent, and we presume that the trial court made the finding in support of

its judgment.10 See Vickery, 5 S.W.3d at 252.

Lastly, TCM argues that Dyer cannot recover under a theory of quantum

meruit because she entered into written construction contracts with TCM for the

performance of work towards the renovation. “[A]n express contract between the

parties precludes a plaintiff from recovering for services rendered in quantum

9
We note that that the trial court’s conclusions of law address each
quantum-meruit element.
10
TCM directs us to Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787
S.W.2d 942 (Tex. 1990), but it is inapposite. There, the supreme court
considered whether an express finding was sufficient to state the notice-of-
compensation element. Id. at 944‒45. We consider the opposite situation in this
case—what effect the omission of that element from the trial court’s findings has
on the judgment, if any.

12
meruit if the contract covers those services or materials.” Christus Health v.

Quality Infusion Care, Inc., 359 S.W.3d 719, 723 (Tex. App.—Houston [1st Dist.]

2011, no pet.) (emphasis added) (citing Fortune Prod. Co. v. Conoco, Inc., 52

S.W.3d 671, 683‒84 (Tex. 2000)). But “[w]hen the evidence shows that no

contract covers the service at issue, [then] the question of whether a party may

recover in quantum meruit is for the trier of fact.” Id. at 724. As explained in

detail above, no contract covered the amounts that Dyer sought to recover for the

“miscellaneous tasks” that Ankas performed.11

The evidence is legally sufficient to support the trial court’s judgment

insofar as it is premised upon Dyer’s breach-of-contract and quantum-meruit

claims. See City of Keller, 168 S.W.3d at 807, 827. We overrule the remainder

of TCM’s second and fourth issues. Having overruled TCM’s second and fourth

issues, we need not address its third issue challenging Dyer’s recovery under a

sworn-account theory. See Tex. R. App. P. 47.1.

V. OBJECTIONS

TCM argues in its fifth issue that the trial court erred by overruling its

objections to Dyer’s tendered exhibits. We concluded above that the evidence is

legally sufficient to support the trial court’s judgment even without considering the

challenged exhibits. Therefore, any error in denying TCM’s evidentiary

11
Hence, our reference to those tasks as “extra-contractual.”

13
objections was harmless. See Tex. R. App. P. 44.1(a). We overrule TCM’s fifth

issue.

VI. RELEASES

In its sixth issue, TCM argues that all of Dyer’s claims—or at a minimum,

her claim for breach of the written contracts—are barred by “valid and

enforceable” releases that she signed when TCM paid Ankas for work performed

on the renovation. We construe TCM’s argument as a challenge to the legal

sufficiency of the evidence to support the trial court’s implied finding that Dyer did

not agree to release her claims against TCM for amounts remaining unpaid

under the written contracts or for “miscellaneous tasks” performed.

A release is a contract. Williams v. Glash, 789 S.W.2d 261, 264 (Tex.

1990). Therefore, it is subject to the same requirements as any other contract.

In re J.P., 296 S.W.3d 830, 835 (Tex. App.—Fort Worth 2009, no pet.). As we

set out above, the existence of a valid, binding contract is one of the essential

elements of a breach-of-contract claim. See Rice, 324 S.W.3d at 666. In that

regard,

[p]arties 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. The determination of a
meeting of the minds, and thus offer and acceptance, is based on
the objective standard of what the parties said and did and not on
their subjective state of mind. Therefore, whether the parties
intended to enter into a binding agreement is often a question of
fact. It is only when the intent of the parties is clear and

14
 unambiguous on the face of the agreement may the court determine
intent as a matter of law.

McCoy v. Alden Indus., Inc., No. 02-12-00200-CV, 2015 WL 4268363, at *9 (Tex.

App.—Fort Worth July 9, 2015, no pet.) (citations omitted).

The evidence shows that when TCM issued a check, it also required that a

release be signed. Each form release stated that the corresponding payment

was for “all amounts owed” to the contractor under a particular contract.

However, according to Dyer, when she signed a release upon being given a

check by TCM and the payment was for less than the total amount owed on the

job for which the check was issued, she did not understand it to mean that Ankas

had been paid in full. For example, the first check that Ankas received from TCM

was for $45,000. Dyer explained that when TCM issued the check, Ankas had

not yet performed any work in exchange for the partial payment; it was merely an

advance for materials. Ozuna testified similarly—the lien releases were only for

partial payment. Although each release contained language that was intended to

match the release to a particular contract, six of the fourteen releases that Dyer

signed referenced a date that did not correspond to any particular signed

contract, and four of the releases failed to reference any corresponding contract

at all.

The parties thus disputed whether a given release applied to all amounts

owed under a corresponding contract or to only the amount then paid when the

release was signed. Consequently, a fact issue existed as to whether the parties

15
achieved a meeting of the minds, and therefore formed a valid, binding contract,

to release all amounts due and owing under a contract when Dyer signed a

release for less than the total amount owed under the purported corresponding

contract. The trial court chose to resolve the disputed issue in favor of Dyer—

i.e., that Ankas had not agreed to release its claims for amounts remaining

unpaid either under the written contracts or for the “miscellaneous tasks”

performed—and given the conflicting evidence, we are not at liberty to disturb

that finding. See City of Keller, 168 S.W.3d at 827; see also Green Int’l, Inc. v.

Solis, 951 S.W.2d 384, 388‒89 (Tex. 1997) (holding that waiver of lien releases

did not bar recovery for extra-contractual work performed). We overrule TCM’s

sixth issue.

VII. CASTEEL ERROR

Directing us to Crown Life Insurance Co. v. Casteel, TCM argues in its

seventh issue that “[i]n the event this Court determines that one or more of the

contracts found to have been breached below . . . , or the quasi-contractual

theories under which the trial court awarded liability, cannot justify the judgment,

then this Court must presume harm in the entirety of the judgment.” See 22

S.W.3d 378, 388 (Tex. 2000) (holding that “when a trial court submits a single

broad-form liability question incorporating multiple theories of liability, the error is

harmful and a new trial is required when the appellate court cannot determine

whether the jury based its verdict on an improperly submitted invalid theory.”).

We have not determined that any particular theory of recovery asserted by Dyer

16
cannot justify the judgment. Rather, we have concluded that legally sufficient

evidence supports the trial court’s judgment insofar as it is premised upon Dyer’s

claims for breach of contract and quantum meruit. For this and other reasons,

this case involves no presumed-harm Casteel issue. We overrule TCM’s

seventh issue.

VIII. ATTORNEY’S FEES

TCM argues in the first part of its eighth issue that Dyer is not entitled to

recover attorney’s fees because she did not specifically plead for their recovery

pursuant to civil practice and remedies code chapter 38. See Tex. Civ. Prac. &

Rem. Code Ann. §§ 38.001‒.006 (West 2015). If a party pleads facts which, if

true, entitle her to the relief sought, then she need not specifically plead the

applicable statute in order to recover under it. Whallon v. City of Houston, 462

S.W.3d 146, 165 (Tex. App.—Houston [1st Dist.] 2015, no pet.); Mitchell v.

LaFlamme, 60 S.W.3d 123, 130 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

Dyer generally pleaded for “[a]ttorney fees to be proved at [the] time of trial” and

recited facts in her petition in support of that pleading. TCM did not specially

except to the pleading. We hold that Dyer’s pleadings were sufficient to support

a claim for attorney’s fees under chapter 38. See, e.g., Bancservices Grp., Inc.

v. Strunk & Assocs., L.P., No. 14-03-00797-CV, 2005 WL 2674985, at *6 (Tex.

App.—Houston [14th Dist.] Oct. 20, 2005, pets. denied) (holding that general

pleading for attorney’s fees, coupled with facts detailing claim for breach of

17
contract, was sufficient to support claim for attorney’s fees under chapter 38);

Mitchell, 60 S.W.3d at 130 (same).

In the other part of its eighth issue, TCM argues that Dyer failed to offer

evidence of presentment under section 38.002(2) and made no showing of

compliance with section 38.002(3). See Tex. Civ. Prac. & Rem. Code Ann.

§ 38.002(2), (3). To recover attorney’s fees under chapter 38, “the claimant must

present the claim to the opposing party or to a duly authorized agent of the

opposing party,” and “payment for the just amount owed must not have been

tendered before the expiration of the 30th day after the claim is presented.” Id.

No particular form of presentment is required. France v. Am. Indem. Co., 648

S.W.2d 283, 286 (Tex. 1983). “[A]ll that is necessary is that a party show that its

assertion of a debt or claim and a request for compliance was made to the

opposing party, and the opposing party refused to pay the claim.” Standard

Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex. App.—

Houston [1st Dist.] 2003, pet. denied). Here, Dyer submitted invoices to TCM for

the work that Ankas had performed on the mall renovation, and Dyer testified that

TCM failed to pay Ankas for certain contractual and extra-contractual work that

Ankas performed on the renovation. The evidence was sufficient to show

compliance with civil practice and remedies code sections 38.002(2) and (3). We

overrule TCM’s eighth issue.

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 IX. CONCLUSION

Having overruled all of TCM’s issues, we affirm the trial court’s judgment.

/s/ Bill Meier
BILL MEIER
JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: October 1, 2015

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