dissenting.
I respectfully dissent.
Reeve’s petition alleged two causes of action, one, for declaratory judgment, and the second, for breach of contract. The trial court, after a bench trial, entered judgment for Reeves on the merits, and awarded him attorneys fees against Leventhal and Finn. There were no findings of fact and conclusions of law, nor did the judgment indicate which cause of action Reeves prevailed upon. Since no damages were awarded Reeves on the breach of contract action, we must presume the trial court held for Reeves on his declaratory judgment action. The presumptions in such a situation must be those to support the judgment of the trial court. Clower v. Brookman, 325 S.W.2d 440 (Tex.Civ.App.1959, no writ). In Clower the plaintiff sued upon contract and also upon quantum merit. The trial court held that the plaintiff might win on either theory. On appeal it was held while one may not allege the one and recover on the other, one may allege both and recover on either, if proved. The court summarized the applicable rule as follows:
If two independent grounds of recovery are relied upon, the judgment will be affirmed if one ground is established. 3-B Tex.Jur., Appeal and Error, § 875.
International & G.N.R. Co. v. Cuneo, 47 Tex.Civ.App. 622, 108 S.W. 714, 718 (Tex.Civ.App.1908, writ ref'd); Johnson Aircrafts v. Eichholtz, 194 S.W.2d 815, 816 (Tex.Civ.App.1946, writ ref'd n.r.e.); 5 Tex.Jur .3rd Appellate Review § 655 (1981).
Leventhal and Finn only complain in their points of error that Reeves should not have been awarded attorneys’ fees. They make no complaint that Reeves was granted declaratory judgment. Appellants even admit in their brief that should the court find for Reeves’ on his declaratory judgment claim it would provide an appropriate basis for a fee award. Appellants also admit it is not necessary for a party to technically prevail in a declaratory judgment action to be awarded attorney fees. See Barshop v. Medina Under. Wat. Cons.Dist., 925 S.W.2d 618, 637 (Tex.1996); One Call Systems, Inc. v. Houston Lighting, 936 S.W.2d 673, 676 (Tex.App.—Houston [14th Dist.] 1996, writ denied). However, Reeves completely prevailed on his declaratory judgment action. Johnson v. Coggeshall, 578 S.W.2d 556, 560 (Tex.Civ.App.1979, no writ) (where a judgment may rest upon more than one ground, the party aggrieved by the judgment must assign error to each ground or the judgment will be affirmed on the ground to which no *261complaint is made. In such situations it is said that the appellant has waived his right to complain of the ruling to which no error was assigned.). Further, evidence appellants waived any complaint as to the declaratory judgment awarded to Reeves is that appellants filed a notice limiting their appeal only to the legal basis for the trial court’s award of attorney fees to Reeves.
Likewise, appellants waived any complaint that Reeves’ declaratory judgment action is moot because Leventhal sold out to Ernst & Young, and Stephen Finn was no longer a managing partner of Leventhal. No point of error was made in such connection. It would not have been successful anyway since Ernst & Young and Finn can still issue the required letter or letters, and pay the attorney fees if their supersedeas bond doesn’t.
Because Reeves prayed for attorneys fees in his petition for declaratory judgment (and not in a counterclaim), Reeves is entitled to attorneys fees under Tex.Civ.PRAC. & Rem. Code § 37.009, and the amount awarded by the trial court not being contested should be affirmed.
The trial court should have included in the judgment the declarations sought by Reeves and I would modify the judgment to include the declarations as follows:
1. The contract between Reeves and Lev-enthal requires Leventhal and Stephen Finn to issue a “confirmation of employment” letter or letters after proper request by Reeves identical to the negotiation form letter attached to the contract as Exhibit “A”, and Reeves is entitled to a mandatory injunction requiring Leventhal, its successors or assigns, and Stephen Finn to issue such letter or letters;
2. The November 22, 1994 and December 2,1994 letters shown by Exhibits 2 & 3 are not identical to said Exhibit A and are not compliant therewith.
It is established law that in a declaratory judgment suit where the district judge grants the declaratory judgment but fails to declare anything, the court of appeals is authorized to modify the trial court’s judgment so as to declare the law and the rights of the parties, and as modified affirm the judgment. University of Tex. v. Nat. Collegiate Ath. Ass’n., 685 S.W.2d 409, 410 (Tex.App.—Austin 1985, writ ref'd n.r.e.); Calvert v. Employees Retirement System of Texas, 648 S.W.2d 418, 419 (Tex.App.—Austin 1983, writ ref'd n.r.e.); State v. Reconstruction Finance Corp., 258 S.W.2d 869, 872 (Tex.Civ.App.—Austin 1953, writ ref'd n.r.e.); Spawglass Construction Corporation v. City of Houston,, 974 S.W.2d 876, (Tex.App.—Houston [14th Dist.] 1998, writ denied); Robert W. Calvert, Declaratory Judgments in Texas, 14 St. Mary’s L.J. 1 (1982).