Opinion issued September 26, 2013.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00495-CV
———————————
NORMA DAVID, Appellant
V.
VIRGINIA DAVID, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2007-70840
MEMORANDUM OPINION
Virginia David sued Norma and Roberto David for an unpaid debt. After a
bench trial, the trial court entered judgment in favor of Virginia, awarding actual
damages, interest, and attorney’s fees. Only Norma appeals, contending that
(1) insufficient evidence supports the trial court’s award of actual damages,
interest, and fees; and (2) the statute of limitations bars Virginia’s suit on the debt.
We hold that the evidence supports the trial court’s award of actual damages
and interest, and, as we previously held in our earlier consideration of this case,
limitations does not bar this suit. But the trial court erred in awarding attorney’s
fees absent proof of them. We modify the judgment to delete the award of
attorney’s fees, and affirm as modified.
Background
In 1991, Virginia made a series of loans to Norma in exchange for a
promissory note. The promissory note provides:
TO WHOM IT MAY CONCERN:
This will serve as promissory note to Virginia Wong David for
the following:
...
[$]13,000.00 loan + interest of $1,049.87 (12/91)
[$]9,641.36 current Credit Union share interest included
[$]8,000.00 [loan] + interest of $1,690[.00] due 3/92
This supersedes any promissory notes written prior to this date.
All other notes . . . are void.
2
In 2006, Virginia wrote Norma a letter notifying Norma of the balance owed
on the loans, and she demanded that Norma pay it. In reply, Norma acknowledged
the loans and promised to pay the balance owed, but requested relief from the
interest amounts. She also attached corrections to the amortization schedules that
Virginia had sent to her:
I am enclosing the corrected amortization schedules per my records.
Schedule 1 $5,000[.00] + $8,000[.00]
Paid in full and overpayments credited to Loan #2.
Schedule 2 $9,707.43
The [s]chedule you sent me showed this loan
amount to be $9,641[.00] starting on 8/1/91. The
Promissory Note dated 12/16/91 references an
amount of $9,641.36, which you had on deposit in
a credit union account in our name. This deposit
was originally opened in 1/90 with $9,386.72.
Interest earned on that money, net taxes, grew the
money to $9,707.43 on 1/93. You converted this
credit union deposit into a loan and began charging
10% compounding monthly on 1/93.
Schedule 3 $8,000.00
In my schedule I included a payment of
$1,000[.00] on 4/92 that you incorrectly attributed
to Loan #1.
In 2007, Norma stopped making payments on two outstanding loans to
Virginia. Later that year, Virginia sued for the unpaid debt. Norma answered and
moved for summary judgment, asserting that Norma had paid Virginia all amounts
due and that the statute of limitations barred Virginia’s claim. Virginia also moved
3
for summary judgment, requesting that the trial court find Norma liable for the
outstanding debt owed to Virginia. The trial court granted Virginia’s motion for
summary judgment, but on appeal, we reversed, holding that Virginia had failed to
conclusively prove her claim. We remanded the case to the trial court for further
proceedings. See David v. David, No. 01-09-00787-CV, 2011 WL 1326222, at *1
(Tex. App.—Houston [1st Dist.] April 7, 2011, no pet.) (mem. op.).
On remand, the trial court again rendered judgment for Virginia, awarding
her (1) $77,883.92 in actual damages; (2) $34,503.64 in prejudgment interest;
(3) post-judgment interest at ten percent per year; and (4) $6,700.00 in attorney’s
fees.
Discussion
I. Sufficiency of the Evidence
Standard of Review
We review the sufficiency of the evidence supporting a trial court’s
challenged findings of fact by applying the standards that we use in reviewing the
legal or factual sufficiency of the evidence supporting jury findings. Catalina v.
Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). The test for legal sufficiency is
“whether the evidence at trial would enable reasonable and fair-minded people to
reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005). In making this determination, we credit favorable evidence if a
4
reasonable fact-finder could, and disregard contrary evidence unless a reasonable
fact-finder could not. Id. If the evidence falls within the zone of reasonable
disagreement, then we may not substitute our judgment for that of the fact-finder.
Id. at 822. In a bench trial, the trial court determines the credibility of the
witnesses and the weight to be given their testimony. Village Place, Ltd. v. VP
Shopping, LLC, 404 S.W.3d 115, 124 (Tex. App.—Houston [1st Dist.] 2013, no
pet.). In making credibility determinations, however, the fact-finder “cannot
ignore undisputed testimony that is clear, positive, direct, otherwise credible, free
from contradictions and inconsistencies, and could have been readily
controverted.” City of Keller, 168 S.W.3d at 820. The fact-finder thus is not “free
to believe testimony that is conclusively negated by undisputed facts.” Id.
Damages
As a preliminary matter, Norma contends that Virginia did not plead to
recover the interest due on the outstanding loans. A judgment must conform to the
pleadings of the case. Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex. App.—
Houston [1st Dist.] 1991, no writ). In the absence of special exceptions, we
construe the petition liberally in the pleader’s favor. Boyles v. Kerr, 855 S.W.2d
593, 601 (Tex. 1993). In determining whether the judgment conforms to the
pleadings, we must view the pleadings as a whole. Khalaf, 814 S.W.2d at 858. A
general prayer for relief will support any relief raised by the evidence that is
5
consistent with the allegations and causes of action stated in the petition. Salomon
v. Lesay, 369 S.W.3d 540, 553 (Tex. App.—Houston [1st Dist.] 2012, no pet.);
Nelson v. Najm, 127 S.W.3d 170, 177 (Tex. App.—Houston [1st Dist.] 2003, no
pet.); Khalaf, 814 S.W.2d at 858.
Virginia sued to recover the balance of the loans that she had made to
Norma, and she presented evidence that that the parties agreed that Norma would
pay interest on the debt. Virginia also alleged in her pleadings that Norma owed
both principal and interest. Virginia’s pleadings include a general prayer for relief.
Her claim for interest is consistent with a claim to recover the outstanding balance
of the loan. Accordingly, we hold that the pleadings support the trial court’s award
of unpaid interest as well as the principal of the loans. See Nelson, 127 S.W.3d at
177.
Norma further contends that Virginia presented insufficient evidence to
support her claim that a ten percent interest rate applied to the loans, and that the
trial court thus improperly calculated damages using this rate.
The parties presented conflicting evidence about whether interest accrued on
the loans and in what amounts. Virginia testified that the loans were subject to a
ten percent interest rate that began at the time she loaned Norma the money, but
she acknowledged that she applied a 3.14% interest rate on one of the loans when
Norma’s husband was unemployed. Virginia also produced the 2006 letter from
6
Norma to Virginia in which Norma acknowledged her debt, the interest owed, and
her intent to pay that amount, as well as Norma’s corrections to an amortization
schedule that Virginia had sent to Norma.
Norma challenged Virginia’s testimony. Norma testified that she was
unaware of any interest owed on the loans. Inconsistent with this testimony,
however, Norma introduced a letter from Virginia that provides that the interest on
one of the loans was 3.14% from December 1991 to May 1993, and that after that,
the interest rate changed to ten percent.
Virginia proffered monthly amortization schedules documenting the interest
that had accrued and the payments that Norma had made on the loans. The
schedules apply a ten percent interest rate to the loans from the date each loan was
made—January 1990 for the $9,707.43 loan and April 1992 for the $8,000.00
loan—until November 2007, when Virginia filed this suit, save a 3.14% interest
rate on one loan from December 1991 to May 1993.
The trial court thus heard conflicting evidence about whether interest had
accrued on the loans and at what rate. The trial court’s awards of $36,174.47 and
$41,709.45 fall within the range contemplated by the two sets of amortization and
payment tables proffered as evidence. Because the trial court’s damages awards
were within the range of evidence presented at trial, they are supported by
sufficient evidence. See Duggan v. Marshall, 7 S.W.3d 888, 893 (Tex. App.—
7
Houston [1st Dist.] 1999, no pet.).
Attorney’s fees
Norma next challenges the sufficiency of the evidence to support the
attorney’s fees award, contending that Virginia produced no evidence to support
the amount of attorney’s fees or to show that Virginia properly presented the claim
to her. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.002 (West 2008). Section
38.001(8) of the Civil Practice and Remedies Code provides that a party may
recover reasonable attorney’s fees if its claim is for “an oral or written contract.”
Id. § 38.001(8). To recover attorney’s fees under that provision, a claimant must:
(1) be represented by an attorney; (2) present the claim to the opposing party or to
a duly authorized agent of the opposing party; and (3) show that payment was not
tendered before the expiration of the 30th day after the claim was presented. Id.
§ 38.002(1)-(3). Section 38.002(2) requires presentment of the debt to allow the
debtor an opportunity to pay the debt before incurring an obligation to pay
attorney’s fees. Panizo v. YMCA, 938 S.W.2d 163, 168 (Tex. App.—Houston [1st
Dist.] 1996, no writ).
Attorney’s fees must be both reasonable and necessary. Bocquet v.
Herring, 972 S.W.2d 19, 21 (Tex. 1998). In her December 2006 letter, Virginia
details the outstanding balances of the loans and interest rates. Virginia requests
that Norma “settle this obligation immediately.” We hold that the December 2006
8
letter was a proper presentment of the claim. See Standard Constructors, Inc. v.
Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex. App.—Houston [1st Dist.] 2003,
pet. denied).
Virginia nonetheless cannot recover her fees based on this record, because
she did not prove them at trial. Virginia points to a fee request attached in the
appendix to her brief to support the award of attorney’s fees, but this request was
not before the trial court. Thus, we cannot consider it on appeal. See Samara v.
Samara, 52 S.W.3d 455, 456 n.1 (Tex. App.—Houston [1st Dist.] 2001, pet.
denied) (refusing to consider document attached to brief because it was not part of
appellate record). Because the record contains no evidence of reasonable and
necessary attorney’s fees, the trial court erred in awarding them.
Interest
Finally, Norma challenges the trial court’s award of interest, contending that
Virginia failed to prove the date the account became due and that post-judgment
interest of ten percent is excessive. We address each in turn.
Prejudgment interest accrues on the earlier of the 180th day after the
defendant receives written notice of a claim or the date the suit is filed. Johnson &
Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 531 (Tex. 1998);
see TEX. FIN. CODE ANN. § 304.104 (West 2006).
The trial court awarded prejudgment interest in the amount of $34,503.64,
9
based on a ten percent interest rate from the date Virginia filed the lawsuit until the
date of judgment. Norma contends that the award of actual damages included
interest. But the actual damages award reflects the total balance of the loans and
interest accrued until November 2007, when Virginia filed this suit; the pre-
judgment interest covers the time period from the date the suit was filed to the date
of judgment. See TEX. FIN. CODE ANN. § 304.104 (West 2006).
Norma also maintains that the trial court’s award of post-judgment interest
in the amount of ten percent is excessive, and suggests that the proper amount is
five percent. Post-judgment interest on a contract that provides for interest is set at
the lesser of the rate specified in the contract or eighteen percent per year. Id.
§ 304.002. Because the trial court determined that the interest on the promissory
note was ten percent, the trial court properly awarded post-judgment interest at ten
percent. See id.
Statute of Limitations
Finally, Norma contends that limitations bars Virginia’s suit. When an
appeals court remands a case and its decision clearly limits the subsequent trial to a
particular issue, the trial court is restricted on remand to a determination of that
issue. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); In re Henry, 388
S.W.3d 719, 726-27 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). On the
previous appeal in this case from the trial court’s summary judgment, we held that
10
limitations did not bar Virginia’s suit. See David, 2011 WL 1326222, at *1.
Because our first opinion disposed of Norma’s statute-of-limitations contention,
we do not consider it again. See Hudson, 711 S.W.2d at 630.
Conclusion
We hold that sufficient evidence supports the trial court’s judgment, but not
the award of attorney’s fees. We therefore modify the judgment to delete the
award for attorney’s fees, and affirm as modified.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
11
Norma David v. Virginia David
Combined Opinion