Opinion
NO. 09-11-00162-CV
02-23-2012
BULLET CONCRETE MATERIALS, INC., Appellant v. TEXOGA TECHNOLOGIES CORPORATION, BIOFUELS POWER CORPORATION, SAFE RENEWABLES CORPORATION, ARMORED TECHNOLOGIES, INC. AND SAFER ENERGY, LLC, Appellees
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 08-09-09253 CV
MEMORANDUM OPINION
A landlord who prevailed in a lease dispute, Bullet Concrete Materials, Inc., ("Bullet") argues that the trial court's award of attorneys' fees is too low. The jury awarded Bullet $314.49 in damages. The trial court awarded less than the amount of attorneys' fees that had been stipulated by the parties to be reasonable and necessary. Bullet asks this Court to render judgment awarding Bullet $126,808.50 in attorneys' fees. We affirm the judgment.
The case began as a suit for breach of contract and various torts brought by Texoga Technologies Corporation ("Texoga") and four other entities who were operating a power plant and refinery on premises owned by Bullet and by Tamina Properties, L.L.C. ("Tamina"). The original defendants included Bullet, Horace H. Denton, Jr., Tamina, and Calvin C. Denton. In an interlocutory appeal, this Court reversed a temporary injunction that had been obtained by Texoga and its co-plaintiffs, Biofuels Power Corporation ("Biofuels"), Safe Renewables Corporation ("Safe"), Armored Technologies, Inc., and Safer Energy, LLC. ("Safer"). See Tamina Props., LLC v. Texoga Techs. Corp., No. 09-08-00542-CV, 2009 WL 1650308, at *1, *3 (Tex. App.— Beaumont June 11, 2009, no pet.) (mem. op.).
Horace H. Denton, Jr., is Bullet's president, but was sued in his individual capacity. He also appeared as counsel of record for Bullet and Tamina, along with co-counsel. Calvin C. Denton is Horace H. Denton, Jr.'s son and a corporate officer of Tamina. He was also sued in his individual capacity.
Bullet and Tamina filed a counterclaim. Tamina sought a declaration of the termination of its leases with Safe and Safer and sued to recover from Biofuels and Safer the rental value of Tamina's premises that had been leased to Safe. Bullet alleged it had elected to continue a separate lease with Texoga and sought to recover rent from Texoga and Biofuels as it came due. In the alternative, Bullet sought damages. Both Tamina and Bullet requested recovery of attorneys' fees pursuant to their respective leases.
Texoga and its co-plaintiffs non-suited their claims shortly before trial. The parties were re-aligned and a jury heard Bullet's and Tamina's breach of contract claims. During the trial, the parties stipulated in open court regarding the amount of attorneys' fees, and issues relating to attorneys' fees were withdrawn from the jury and submitted to the trial court by agreement. The jury found that Texoga failed to comply with the terms of its lease with Bullet and found that the sum of money that would compensate Bullet for unpaid rent for June through August 2008 was $314.49. The jury failed to find that Texoga failed to pay Bullet seven months of rent due under the lease agreement for October 2009 through April 2010. The jury also failed to find that Texoga failed to pay Bullet twelve months of rent for May 2010 through April 2011. The jury found that Texoga placed more than one tank on the lease premises during the lease period, but found no extra tanks were present on the premises for the periods of January 2008 through October 2008 and November 2008 through March 2009. The jury made other findings that related to parties other than Bullet and Texoga. Tamina recovered no damages against Biofuels, but Tamina did prevail against Safer.
After the jury trial concluded, the trial court conducted a hearing to apportion attorneys' fees. The trial court awarded Bullet attorneys' fees in the amount of $20,000, with additional awards of $15,000 in the event of appeals to the Court of Appeals and the Supreme Court. On appeal, Bullet challenges only the award of attorneys' fees and does not challenge the remainder of the judgment. No other party filed a notice of appeal.
Bullet presents three issues: (1) "Where a contract providing that the prevailing party to litigation shall be entitled to a reasonable attorney fee, the language of the contract prevails, not the statute and is mandatory."; (2) "Prevailing party is the party who gets judgment for damages"; and (3) "Where counsels['] affidavits regarding reasonable and necessary [attorneys'] fees and the allocation among the parties is [within] their personal knowledge and the same is clear, direct and positive, and free from contradiction and where the opposing party has the means and opportunity of disproving the testimony, if it is not true, and fails to do so, that establishes the reasonable [attorneys'] fees and their allocation as a matter of law." Bullet's prayer for relief requests rendition as its sole relief.
The lease between Bullet and Texoga states that:
Should any litigation or arbitration be commenced between the parties to this lease concerning the premises, this lease, or the rights and duties of either in relation thereto, the party, Lessor or Lessee, prevailing in such litigation or arbitration shall be entitled, in addition to such other relief as may be granted, to a reasonable sum for its attorneys fees.Bullet contends that the contract terms for attorneys' fees may differ from the statute and that the language of the contract will govern in the event the two differ. See One Call Sys., Inc. v. Houston Lighting & Power, 936 S.W.2d 673, 676 (Tex. App.—Houston [14th Dist.] 1996, writ denied); see also Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (West 2008). Under the terms of the contract, the prevailing party to litigation on the lease could recover "a reasonable sum" for its attorneys' fees. The case cited by the appellant concerned whether a demand for performance was required, when payment of attorney's fees was based on a provision in a lease agreement, not section 38.001 of the Texas Civil Practice and Remedies Code. See Wayne v. A.V.A. Vending, Inc., 52 S.W.3d 412, 417 (Tex. App.—Corpus Christi 2001, pet. denied). The appellate court held that the issue was moot because demand had been made. Id. at 418. Similarly, both the statute and the contract in this case allow a prevailing party to recover reasonable attorneys' fees, and attorneys' fees were in fact recovered.
Bullet contends that its recovery of $314.49 in past due rent makes it the "prevailing party." Counsel for Texoga conceded as much in the post-trial proceedings before the trial court when he stated, "I would agree that saying that they prevailed, even though they only got $314, is they did prevail." We can presume that the parties intended the usual meaning of the undefined contract term "prevailing party." Intercont'l Grp. P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 653 (Tex. 2009). A party that received no damages and no other form of relief, has not prevailed. Id. at 654. Bullet recovered actual damages and Texoga recovered nothing. Thus, under the ordinary meaning of the term, Bullet was the prevailing party. On appeal, Texoga argues that Bullet should not recover its full attorneys' fees because it failed to recover on two of its three claims. No claim of Bullet's, other than breach of the lease, was submitted to the jury. The "claims" on which Bullet did not recover are various measures of damages for breach of the lease agreement. See generally Rohrt v. Kelley Mfg. Co., 349 S.W.2d 95, 97-99 (Tex. 1961) (describing measures of damages when lease is abandoned by tenant and when lease is terminated by landlord).
Bullet contends that its reasonable and necessary attorneys' fees in the amount of $126,808.50 were established as a matter of law by the uncontroverted affidavits of its attorneys. Generally, "where the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct, and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law." Cochran v. Wool Growers Cent. Storage Co., 166 S.W.2d 904, 908 (Tex. 1942).
Here, the parties entered into a stipulation at trial regarding reasonable and necessary attorneys' fees. Texoga argues the stipulation related to the admissibility of the affidavits, not to their truth. See Austin v. Austin, 603 S.W.2d 204, 206-07 (Tex. 1980). A stipulation cannot be construed as an admission of a fact intended to be controverted. Id. at 207. The parties did stipulate to the amount of reasonable attorneys' fees, and not merely to the admissibility of the affidavits.
Outside the jury's presence in the middle of the trial, the parties placed their agreement on the record. Bullet's counsel stated, "We have agreed to or [Texoga's counsel] has agreed to stipulate to the amount of attorneys' fees. I have two affidavits here. First affidavit is from myself which speaks for itself the amount of [attorneys'] fees is $29,795." The trial court asked which jury questions were affected by the agreement. Two questions were identified and Bullet's counsel stated, "That one will come out since we're stipulating." Texoga's counsel stated, "We're stipulating to the amount of the [attorneys'] fees, not liability." Bullet's counsel continued, saying, "And also, Your Honor, we have got an affidavit for Mr. Denton of [attorneys'] fees that he -- for his efforts in this matter and they total $67,260. And [Texoga's counsel] has stipulated to that." The trial court asked, "if the jury answers "'Yes'" to Questions 2, 3 and 5, and "'Yes'" to Questions 10, 12 and 13, then the amount of money is stipulated to, correct?" Texoga's counsel replied, "Yes, but not to the portion of the parties." The trial court stated, "So I will have a hearing after this trial is over." Counsel replied, "Yes."
"The contents of a stipulation constitute judicial admissions, are conclusive on the issues addressed, and estop the parties from claiming to the contrary." McCuen v. Huey, 255 S.W.3d 716, 726 (Tex. App.—Waco 2008, no pet.). This stipulation established that $97,055 was a reasonable attorneys' fee for the plaintiffs for the entire case. See Tex. R. Civ. P. 11.
The parties though, reserved the apportionment of the attorneys' fees for a later hearing before the trial court. Two supplemental affidavits submitted at the later hearing were not included in the stipulated attorneys' fees and thus, could affect the award only to the extent that they addressed the factual issue that had been reserved, i.e., the apportionment of the stipulated fee. Both lawyers' supplemental affidavits state, as follows:
After having personally reviewed the entire files on this case, both my files and [co-counsel's] files, I have determined that all of the attorney's fees should be allocated on a time and effort basis as follows:Bullet argues that counsel agreed to a 10 percent allocation to Tamina's lease dispute, but the actual concession was for a 5 percent allocation to Safer. As noted earlier, a stipulation cannot be construed as an admission of a fact intended to be controverted. Austin, 603 S.W.2d at 207.
• Bullet 85% against Texoga under the lease, Exhibit C/503B.
• Tamina 10% against BioFuels Power under its month to month rental agreement.
• Tamina 5% against Safer Energy, LLC under its lease, Exhibit 502.
There was no time or effort spent on Safe Renewables Corporation or Armored Technologies, Inc. The defense of Texoga's and BioFuels's claims prior to their dismissing all of their claims on the eve of trial concerned the same facts which were inseparably intertwined together with the lease contracts on which Bullet and Tamina prevailed. The only causes of action involved in this lawsuit prosecuted by Bullet and/or Tamina are for damages for breach of contract.
During the hearing on attorneys' fees, counsel for Texoga argued, as follows:
In any event, nothing of this fee is allocated to the defense of the basic underlying action either at the injunction stage or at the stage where we eventually took a nonsuit on the damages.
None of this is allocated to -- well, 10 percent is allocated to Tamina. The Safer, I don't see that there is any real objection. Safer is, in fact was one for which we did not put on any real defense, and I don't have a quarrel with that amount.
What I do have a quarrel with, though, is this: Despite the repeated allegations that somehow we did not prevail in our litigation we prevailed in everything we asked for. The entire basis of the pleadings in the plaintiffs' both original petition and first amended petition was a effort to get personal property off and other relief from the defendants, and then that we obtained injunctive relief from Your Honor which by its own terms expired April 29, 19 ---or 2008. Not that far ago. That entire period the injunction was in effect, it was lawful, we proceeded and removed the property.
Bullet argues that the trial court could not disregard counsel's affidavit and award Bullet less than 85 percent of the stipulated attorneys' fee. "[E]ven though the evidence might be uncontradicted, if it is unreasonable, incredible, or its belief is questionable, then such evidence would only raise a fact issue to be determined by the trier of fact." Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). The supplemental affidavits do not conclusively establish that the attorneys expended 85 percent of their effort pursuing Bullet's claim against Texoga. Neither the legal representation agreements nor the attorneys' time records were offered into evidence, and there is no evidence that Bullet was billed for legal work that was not also billed to Tamina. The supplemental affidavits provide "a sample of the work necessarily performed in representing the Clients," but they provide no information about the time and effort expended for Bullet that was not also expended for Tamina. Although the supplemental affidavits contain conclusory statements that "all of the [attorneys'] fees should be allocated on a time and effort basis as follows[,]" neither affidavit expressly states that 85 percent of the attorneys' efforts were expended pursuing Bullet's claims and that only 10 percent of their efforts were expended pursuing Tamina's claims.
The trial court could consider the record of the case when it allocated the stipulated fee. See Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex. App.—Amarillo 2002, no pet.). Bullet and Tamina filed a joint motion for entry of judgment. Addressing apportionment of attorneys' fees, Bullet and Tamina state that "Bullet and Tamina were represented by the same counsel and the legal work provided benefitted both companies equally." Thus, Bullet admitted in its motion to enter judgment that Bullet and Tamina benefitted equally from the efforts of joint counsel. The motion requests that the trial court award Bullet $95,355 of the $97,055 fee because "[t]he vast majority of [attorneys'] fees incurred by Bullet and Tamina were incurred fighting and appealing the injunction sought by Texoga, and in the trial against Texoga." The record shows that both Biofuels and Texoga applied for and obtained a temporary injunction. Those pleadings stated that Tamina filed an eviction suit against Safe and that Tamina had demanded that Biofuels remove its personal property from the premises within ten days. The trial court could reasonably reject Bullet's argument that the vast majority of the fees incurred were incurred fighting and appealing an injunction obtained by Texoga and not fighting and appealing the same injunction obtained by Biofuels. Also, under the circumstances, the trial court could reasonably consider the amount of damages awarded by the jury.
While Bullet was pursuing a claim against Texoga and Tamina was pursuing a claim against Biofuels, the parties hired joint counsel, filed joint pleadings, and went to trial on both Bullet's and Tamina's claims. Bullet failed to conclusively establish that 85 percent of the stipulated fee was incurred in pursuing Bullet's claim against Texoga and not toward pursuing Tamina's claim against Biofuels. Furthermore, a party is entitled only to the relief it requested. Horrocks v. Tex. Dep't of Tramp., 852 S.W.2d 498, 499 (Tex. 1993). Bullet only prays for rendition of judgment for attorneys' fees in the amount of $126,808.50. Bullet is not entitled to the rendition of its requested judgment.
Accordingly, the judgment is affirmed.
AFFIRMED.
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CHARLES KREGER
Justice
Before McKeithen, C.J., Gaultney and Kreger, JJ.