Opinion
No. 05-09-01468-CV
Opinion Filed May 13, 2011.
On Appeal from the 219th Judicial District Collin County, Texas, Trial Court Cause No. 219-595-00.
Before Justices O'NEILL, FITZGERALD, and LANG-MIERS.
MEMORANDUM OPINION
Appellant Roger Lawler appeals a judgment granted in favor of appellees Nick DiGiuseppe d/b/a Southbrook Development and Frisco Master Plan, L.P. In two issues, Lawler contends the trial court erred in (1) entering a judgment for DiGiuseppe refunding his earnest money, and (2) determining post-judgment interest. For the following reasons, we reverse the trial court's judgment in part and remand for proceedings consistent with this opinion.
DiGiuseppe, the buyer in this case, subsequently assigned his interest in the contract to Frisco Master Plan L.P., an entity controlled by DiGiuseppe. To be consistent with the Texas Supreme Court in DiGiueseppe v. Lawler, 269 S.W.3d 588, 592 (Tex. 2008), we will refer to DiGiuseppe and Frisco Master Plan collectively as DiGiuseppe.
This is an appeal following remand in a case concerning a real estate transaction. The transaction concerns 756 acres that DiGiuseppe agreed to purchase from Lawler. The transaction never closed and both parties sued each other for breach of contract. Following a jury trial, the jury found Lawler breached the contract and that DiGiuseppe suffered $295,696.93 in damages. Although no questions with respect to specific performance were submitted to the jury, DiGiuseppe requested the trial court to enter a judgment ordering specific performance. The trial court did so. Lawler appealed. This court reversed the trial court's judgment because DiGiuseppe had failed to obtain a required finding on specific performance and failed to conclusively establish that element. Lawler v. DiGiuseppe, 05-03-00468-CV, 2004 WL 1209569 (Tex. App.-Dallas 2004) (memorandum op. on reh'g), rev'd in part, DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 2008).
In that appeal, DiGiuseppe also brought a cross-point, requesting that if we reversed the award of specific performance, that we reinstate the jury's finding of $295.696.93 in damages. Lawler, 2004 WL 1209569 * 4. Lawler responded that the evidence was legally insufficient to support the jury's damages award. We agreed because the evidence showed DiGiuseppe neither paid the $295,696.93 in out-of-pocket expenses claimed as damages nor was he liable to the third party investors that did pay these expenses. Id. DiGiuseppe also requested he be awarded an additional $200,000 in earnest money he paid pursuant to the contract. Id. We concluded DiGiuseppe waived the cross-point regarding the additional $200,000 in earnest money because he failed to file a notice of appeal. Id.
DiGiuseppe appealed to the Texas Supreme Court who reversed our opinion in part. The Texas Supreme Court affirmed our determination that DiGiuseppe take nothing on the claim for specific performance because he failed to prove conclusively or secure a required finding that DiGiuseppe was ready, willing and able to perform his obligations under the contract. DiGiuseppe v. Lawler, 269 S.W.3d 588, 603 (Tex. 2008). However, the Texas Supreme Court concluded that DiGiuseppe, who had obtained a favorable judgment in the trial court, was not required to file a notice of appeal to seek recovery on his alternative theory of termination and refund of earnest money until the specific performance judgment in his favor was reversed. Id. at 603. Because DiGiuseppe "raised" his alternative theory as soon as he was aware of the reversal, he did not waive it. The Supreme Court concluded he "should be allowed to present his alternative ground for recovery to the trial court for a determination in the first instance as to whether he should recover under the alternative theory." It thus remanded to the trial court to allow DiGiuseppe to do so. The Supreme Court relied on Boyce Iron Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988). In Boyce Iron Works, the Supreme Court held that when a party tries a case on alternative theories of recovery and a jury returns favorable findings on two or more theories, the party has a right to judgment on the theory entitling him to the greatest or most favorable relief. Id. at 787. Further, electing recovery on the greater theory does not constitute a waiver of a judgment based on alternative findings. Id. Thus, that party may seek recovery under the alternative findings and theory if the judgment is reversed on appeal. Id.
On remand, the trial court entered a judgment based on the jury's findings and evidence presented at trial that DiGiuseppe was entitled to a refund of all earnest money that was paid to Lawler. On appeal, Lawler asserts, among other things, that the trial court erred in refunding the earnest money because DiGiuseppe neither pleaded nor proved termination, the only basis upon which the contract required Lawler to refund the earnest money. It is axiomatic that a trial court's judgment must conform to the pleadings, the nature of the case proved and the verdict. Tex. R. Civ. P. 301; see also Stoner v. Thompson, 578 S.W.2d 679, 682-83 (Tex. 1979) (absent trial by consent, trial court cannot grant relief without pleadings to support it). We recognize the Supreme Court stated that DiGiuseppe was not required to "raise" the issue of his alternative theory until the specific performance judgment was reversed. However, we do not interpret this to excuse pleading, evidentiary, and jury finding requirements. Instead, based on the context of the case and authority cited, the Supreme Court held only that appellees were not required to request a judgment based on alternative findings, to the extent there were any, until his specific performance judgment was reversed. We conclude whether a termination theory was actually supported by pleadings, evidence, and jury findings is an entirely different issue that was not considered by the Supreme Court.
For an alternative theory to exist, we conclude that theory must have been actually pleaded as an alternative theory and be supported by necessary jury findings or conclusive evidence. See e.g., Boyce Iron Works, 747 S.W.2d at 787. In this case, two alternative theories were clearly pleaded and submitted to the jury. Specifically, DiGiuseppe's claims for breach of contract and promissory estoppel. The jury returned a $295,696.93 verdict in DiGiuseppe's favor on these claims. However, in the prior appeal this court specifically held there was no evidence to support the damages finding. The Supreme Court did not reverse this determination and we will not revisit it here. That conclusion is also binding to the extent that DiGiuseppe is attempting to recover the $200,000 in earnest money as actual damages for the same reasons stated in our earlier opinion.
The issue then is whether under the provisions of the contract, the state of the record below, and the jury's findings, the trial court should have entered a judgment on the alternative theory of contract termination and refund of earnest money. According to DiGiuseppe, the trial court properly did so because the contract at issue provided that if Lawler defaulted in his obligations, DiGiuseppe could, at his option, either (1) terminate the contract and receive a full and immediate refund of the earnest money previously deposited, or (2) seek to enforce specific performance of the contract. However, DiGiuseppe never pleaded or proved he terminated the contract. DiGiuseppe sought only to enforce the contract through specific performance. To the extent he now asserts he was excused from terminating the contract, there are no pleadings or findings to support a judgment on that basis either. Because there were no pleadings, findings or evidence concerning the alleged alternative theory upon which DiGiuseppe now seeks a judgment, the trial court erred in entering a judgment on that theory.
DiGiuseppe asserts Lawler waived any defects in the pleadings because he did not specially except in the trial court. However, DiGiuseppee's pleadings were not defective. DiGiuseppe simply failed to plead for an alternative theory in the trial court.
In his second issue, DiGiuseppe complains of the trial court's award of post-judgment interest. We need not reach this issue with respect to post-judgment interest on the $200,000 earnest money award we now reverse. However, in its initial judgment, the trial court also awarded DiGiuseppe $75,000 in attorneys fees. In our original opinion, we upheld this award and Lawler did not challenge our ruling in the Supreme Court. See DiGiuseppe, 269 S.W.3d at 592-93. In the trial court's judgment after remand, the trial court awarded post-judgment interest on the $75,000 in attorneys fees from the date of the original December 28, 2002 judgment. According to Lawler, the interest should run from the date of the new judgment not the original judgment because the original judgment was reversed. However, the $75,000 was awarded in the original judgment and it was not challenged or reversed. Therefore, post-judgment interest on the attorney fee award runs from the date of the original judgment. Cf. Nederlandsch-Amerikaansche-Stoomvaart — Maatschappij v. Vasallo, 365 S.W.2d 650, 656-57 (Tex. Civ. App.-Houston 1963, writ ref'd n.r.e.) (where erroneous judgment reversed and remanded for entry of judgment based on original trial record, post judgment interest runs from date of original judgment); D.C. Hall of Trans. Inc. v. Harde, 355 S.W.2d 257, 260 (Tex. Civ. App.-Fort Worth 1962, writ ref'd n.r.e.) (same).
The trial court's judgment does contain an ambiguity regarding the award of post-judgment interest. Specifically, it awards a specific dollar amount representing post-judgment interest on the $75,000 that had accrued since the December 28, 2002 judgment. In a subsequent paragraph, the judgment also generally awarded post-judgment interest on the entire judgment from December 28, 2002. Lawler correctly points out that it would constitute a double recovery to the extent the trial court's judgment awarded post-judgment interest on post-judgment interest. DiGiuseppe agrees and does not construe the judgment as doing so. To remove any ambiguity, we render judgment that post-judgment interest accrues only on the $75,000 in attorneys fees and not on the post-judgment interest awarded in the judgment.
We reverse the trial court's judgment's ordering refund of earnest money paid pursuant to the contract, including that portion of the judgment that orders DiGiuseppe to recover monies held in the registry of the court. The funds deposited into the court's registry were deposited by the title company and neither party has shown to whom they should be released. Consequently, we remand to the trial court to determine proper disposition of these funds. See Lawler, 2004 WL 1209569 * 4. We also remand to the trial court to determine proper post-judgment interest on the $75,000 in attorneys fees.