Opinion
No. 01-03-01147-CV
Opinion issued January 5, 2006.
On Appeal from the 133rd District Court, Harris County, Texas, Trial Court Cause No. 2002-51985.
Panel consists of Justices TAFT, ALCALA, and HIGLEY.
MEMORANDUM OPINION ON REHEARING
Talley Construction Company has filed a motion for rehearing of our opinion issued on July 7, 2005. A response was requested and received from appellee, Alfonso Rodriguez. After due consideration, we grant rehearing, withdraw our opinion and judgment of July 7, 2005, and issue the following opinion and judgment in their stead.
Appellant, Talley Construction Company (the company), appeals the judgment rendered in favor of appellee, Alfonso Rodriguez, on Rodriguez's breach of contract claim relating to payment for painting services he provided to the company. Trial was to the court, which filed findings of fact and conclusions of law. The company presents seven issues that challenge the following: (1) the finding of damages; (2) the legal and factual sufficiency of the evidence to support the finding of breach of contract; (3) the legal and factual sufficiency of the evidence to support the finding of quantum meruit; (4) the finding that the company ratified the hiring of Rodriguez; (5) the finding that Chris Braughton had actual or apparent authority to hire Rodriguez; (6) the legal and factual sufficiency of the evidence to support the finding of fraud; and (7) the granting of prejudgment interest at the rate of 18 percent. In its eighth issue, the company contends that the trial court erred by failing to find a breach of the non-compete agreement on the company's counterclaim against Gene Robertson. We affirm.
Background
David Talley was the owner of the company. In Spring 2002, Rodriguez, a subcontractor who provides painting services, left his business cards at the company office. Afterwards, Chris Braughton, a subcontractor working as a supervisor and superintendent for the company, contacted Rodriguez, told him that he received the business card Rodriguez left at the office, and offered him work. Rodriguez accepted the offer and completed numerous projects at Braughton's request.
The parties' procedure for the assignment of and payment for a task was as follows: Braughton would provide Rodriguez with the address of a house at which the two would meet. The two men would walk through the house and determine the work to be done by Rodriguez and the price to be paid for the work. After this "walk-through," Braughton would fill out a work order on an estimator's sheet on which the company's name was printed. Upon completion of a project, Rodriguez would contact Braughton and inform him of the amount due for the work he had completed during the week. Braughton would report Rodriguez's requests for payment to the company and submit a check request on Rodriguez's behalf. The company would then review the check request, confirm that the work had been completed, approve the check request, and send a check directly to Rodriguez. The dispute here concerns payments owed to Rodriguez for labor and material Rodriguez performed on six houses that the parties refer to as the Craig, Ekonomou, Hurst, Johnson, Lindsey, and Weldon projects.
In June 2002, after Braughton stopped working for the company, Rodriguez requested payment directly from the company for outstanding costs for labor and material he provided for the six painting projects. The company refused to pay, and Rodriguez sued the company for breach of contract to recover the remaining balances owed to him for labor and material on the six projects. The trial court found for Rodriguez on the breach of contract claim and awarded him $10,027.98 in damages; $1,498.42 in prejudgment interest, calculated at the rate of 18 percent; $15,000 in attorney's fees through trial; and $7,000 in attorney's fees for an appeal to the court of appeals. Although Rodriguez also sued the company for negligence, quantum meruit, misapplication of trust funds, and statutory fraud, the trial court's judgment addressed only the breach of contract claim. Breach of Contract
In its second issue, the company contends that the evidence is legally and factually insufficient to support the trial court's judgment on Rodriguez's breach of contract claim because Rodriguez failed to submit any evidence as to any elements of the existence of a valid contract between the company and Rodriguez.
Findings of fact in a case tried to the court have the same force and effect as a jury's verdict on questions and are reviewable for legal and factual sufficiency. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The trial court's conclusions of law are reviewable de novo. McDermott v. Cronin, 31 S.W.3d 617, 623 (Tex.App.-Houston [1st Dist.] 2000, no pet.).
When, as here, the appellate record contains a complete reporter's record of the trial, the trial court's findings of fact are not conclusive, but subject to the same, well-settled standards that govern legal and factual sufficiency challenges to jury findings. Comm'n of Contracts v. Arriba, Ltd., 882 S.W.2d 576, 582 (Tex.App.-Houston [1st Dist.] 1994, no writ); In the Interest of M.J.Z., 874 S.W.2d 724, 728 (Tex.App.-Houston [1st Dist.] 1994, no writ). In analyzing legal sufficiency of the evidence to support findings on which Rodriguez had the burden of proof, therefore, we consider only the evidence and inferences tending to support the challenged finding and disregard all inferences to the contrary. See Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex. 1986); Arriba, 882 S.W.2d at 582. If any evidence of probative force supports the finding, we must overrule the challenge and uphold the finding. S. States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989); Arriba, 882 S.W.2d at 582. In reviewing this challenge, we first examine the record for evidence that supports the trial court's finding and disregard contrary evidence. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). If no evidence supports the finding, we then examine the entire record to determine whether it establishes the contrary proposition as a matter of law. Id.
In determining factual sufficiency of the evidence to support findings on which Rodriguez had the burden of proof, we must weigh all the evidence, both supporting and conflicting with the finding, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951); Arriba, 882 S.W.2d at 582. In reviewing this challenge, we again examine the evidence to determine whether some evidence supports the trial court's finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). If some evidence supports the finding, we determine, in light of the entire record, whether the finding is so contrary to the great weight and preponderance of the evidence that the finding is clearly wrong and manifestly unjust, or whether the great weight and preponderance of the evidence supports nonexistence of the finding. Cain, 709 S.W.2d at 176.
The elements of a breach of contract claim are (1) the existence of a valid contract between plaintiff and defendant, (2) the plaintiff's performance or tender of performance, (3) the defendant's breach of the contract, and (4) the plaintiff's damage as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). The elements of a valid contract are (1) an offer, (2) an acceptance, (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. Id.
The company contends that the only evidence Rodriguez presented was that the company hired Braughton as an independent subcontractor to perform work on various projects, and that Braughton thereafter hired Rodriguez to perform work as Braughton's employee. The company contends that this evidence negates the existence of a contract between the company and Rodriguez because it shows that Rodriguez was an employee of Braughton and not of the company.
In support of its contention that the evidence was legally and factually insufficient to support the trial court's finding of breach of contract, the company directs us to the testimony of Talley, who stated that Braughton was a subcontractor hired to be solely responsible for the work on all six of the projects in dispute, and that Braughton hired Rodriguez as one of his own employees. The company further suggests that the checks paid to Rodriguez by the company were for "other" work Rodriguez performed for Braughton after Braughton submitted a request to pay Rodriguez. The company also suggests that there was no evidence that the company made an offer directly to Rodriguez.
The evidence presented in support of the trial court's finding of a breach of contract by the company reveals that (1) the company, not Braughton, approved of and issued all payment checks directly to Rodriguez, (2) Rodriguez performed work on all six of the disputed projects, (3) Talley admitted in his answers to interrogatories that he hired Rodriguez to provide labor and materials on the Craig, Ekonomou, Johnson, and Lindsey projects, (4) Talley stated his belief that Rodriguez also worked on the Hurst and Weldon projects, (5) the company deducted, as business expenses, funds from the payments it made to Rodriguez because Rodriguez did not have his own liability insurance, and the deductions were pursuant to written authorization by Rodriguez to make the deductions, (6) Rodriguez thought that he was working for the company and not for Braughton and expected to receive all payments from the company, not Braughton, (7) the company filed a document with the Texas Worker's Compensation Commission affirming that the company hired Rodriguez as an independent contractor, (8) the company's business records contained Rodriguez's W-9 taxpayer-identification number for reporting payments made to Rodriguez to the Internal Revenue Service, (9) Braughton testified that he was a company superintendent and that he had the authority to hire Rodriguez on behalf of the company, (10) Braughton was listed as a superintendent in the company's business records, and (11) the company admitted that a company superintendent has the authority to hire a painter.
We hold that the record contains legally and factually sufficient evidence to support the trial court's finding that the company breached its obligation to pay for the labor and materials provided by Rodriguez, and that Rodriguez proved all elements for an action for breach of contract. We further hold that the trial court's finding is not so contrary to the great weight and preponderance of the evidence that the finding is clearly wrong and manifestly unjust, and, therefore, that the evidence is legally and factually sufficient to support the trial court's finding. See Cain, 709 S.W.2d at 176.
We overrule the company's second issue.
Ratification and Agency
In its fourth and fifth issues, the company contends that the trial court erred by finding that the company ratified the hiring of Rodriguez and by finding that Braughton had actual or apparent authority to hire Rodriguez.
A. Pleadings
The company asserts that Rodriguez did not specifically plead ratification, agency, or authority, that the issues were not tried by consent, and that the trial court erred in overruling the company's objection at trial to the lack of pleadings and to the admission of testimony pertaining to ratification, agency and authority because those issues had not been pleaded by Rodriguez.
The record shows that Rodriguez's attorney asked Rodriguez what he understood Chris Braughton's position to be with the company. The company's attorney objected to the question on the grounds that Rodriguez's pleadings stated that Braughton was a subcontractor only, and that Rodriguez had not "pled agency." The trial court overruled the objection and Rodriguez testified, "I think he was doing a supervise or superintendent position."
The company's attorney also objected to the following question posed to Braughton by Rodriguez's attorney: "When you engaged Alfonso, on whose behalf were you hiring him?" The trial court overruled the objection, which asserted that the question "calls for a legal conclusion and has not been properly pled."
We review a trial court's decision to exclude testimony under an abuse of discretion standard. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 798 (Tex.App.-Houston [1st Dist.] 2004, no pet.). We must uphold an evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).
Rule 90 of the Texas Rules of Civil Procedure states as follows:
Waiver of Defects in Pleading. . . . Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court . . . in a non-jury case, before the judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account; provided that this rule shall not apply to any party against whom default judgment is rendered.
Tex. R. Civ. P. 90. The Rules of Civil Procedure further provide that "a special exception shall not only point out the particular pleading excepted to, but it shall also point out intelligibly and with particularity the defect, omission, obscurity, duplicity, generality, or other insufficiency in the allegations of the pleadings excepted to." Tex. R. Civ. P. 91. The record affirmatively demonstrates that both the company and Rodriguez represented to the trial court that no special exceptions were tendered regarding the plaintiff's original petition. Accordingly, under rule 90, the company waived its complaints concerning the Rodriguez's pleadings because no special exceptions were tendered to the plaintiff's original petition. See Tex. R. Civ. P. 90. The record further demonstrates that the parties filed a joint, proposed trial-preparation order signed by counsel for both Rodriguez and the company before the start of trial. See Tex. R. Civ. P. 166 ( authorizing pretrial conference and ensuing order by trial court to assist in disposition of case, including ruling on pending exceptions and narrowing of contested issues of fact, and entry of order limiting issues for trial and controlling course of action at trial). The parties joint, proposed trial-preparation order here included both parties' proposed findings of fact and conclusions of law. Rodriguez's proposed findings of fact and conclusions of law included findings regarding ratification, agency, and authority, which reflect that ratification by the company, and the agency and authority of Braughton, if any, were contested issues of fact. Further, the joint, proposed trial-preparation order does not disclose any pending exceptions to the pleadings by the company as provided under rule 166.
We hold that the trial court did not act without reference to any guiding rules and principles, see C.M. Asfahl Agency, 135 S.W.3d at 798, by overruling the company's evidentiary complaints because any objection to that evidence was waived under rule 90 and the evidence was properly admissible under the joint, proposed rule 166 trial-preparation order, which indicated that both ratification and the agency and authority of Braughton were contested issues of fact. Having signed the joint, proposed trial-preparation order, the company was aware that Rodriguez would assert ratification and the agency and authority of Braughton, but nonetheless the company did not specially except to any omissions in the pleadings regarding those theories. Therefore, the company may not assert a defect in pleading now. See Tex. R. Civ. P. 90.
B. Legal and Factual Sufficiency
The company alternatively contends that the evidence is legally and factually insufficient to support the trial court's findings that (1) the company ratified the hiring of Rodriguez to provide labor and materials on the six projects, and (2) Braughton had actual or apparent authority to hire Rodriguez.
A principal is liable for the acts of its agent when the agent has actual or apparent authority to perform those acts, or when the principal ratifies those acts. Spring Garden 79U, Inc. v. Stewart Title Co., 874 S.W.2d 945, 948 (Tex.App.-Houston [1st Dist.] 1994, no writ); see Currey v. Lone Star Steel Co., 676 S.W.2d 205, 209 (Tex.App.-Fort Worth 1984, no writ) (actual or apparent authority); Little v. Clark, 592 S.W.2d 61, 64 (Tex.Civ.App.-Fort Worth 1979, writ ref'd n.r.e.) (ratification); see also Cadle Co., v. Morgan, No. 01-03-01020-CV, 2005 WL 856901, at *2-5 (Tex.App.-Houston [1st Dist.] April 14, 2005, no pet. h.) (same).
Actual authority, which includes both express and implied authority, usually denotes authority that a principal (1) intentionally confers upon an agent, (2) intentionally allows the agent to believe that he possesses, or (3) allows the agent to believe that he possesses by want of due care. Spring Garden, 874 S.W.2d at 948; Currey, 676 S.W.2d at 209-10; Behring Int'l, Inc. v. Greater Houston Bank, 662 S.W.2d 642, 649 (Tex.App.-Houston [1st Dist.] 1983, writ dism'd by agr.). Express authority exists when the principal has made it clear to the agent that the principal wants the act under scrutiny to be done. City of San Antonio v. Aguilar, 670 S.W.2d 681, 683 (Tex.App.-San Antonio 1984, writ dism'd w.o.j. in part and writ ref'd n.r.e. in part). Implied authority exists when there is no proof of express authority, but appearances justify a finding that, in some manner, the agent was authorized to do what he did; in other words, there is circumstantial proof of actual authority. Id. at 683-84. Implied actual authority exists only as an adjunct to express actual authority, Behring, 662 S.W.2d at 649, because implied authority is that which is proper, usual, and necessary to the exercise of the authority that the principal expressly delegates. Employers Cas. Co. v. Winslow, 356 S.W.2d 160, 168 (Tex.Civ.App.-El Paso 1962, writ ref'd n.r.e.).
As a general proposition, the law does not presume agency. Buchoz v. Klein, 184 S.W.2d 271, 271 (1944). The individual alleging agency has the burden to prove its existence. Id. Therefore, it was Rodriguez's burden to prove the existence of an agency relationship between the company and Braughton. The company contends that the evidence is legally and factually insufficient to establish that Braughton had actual authority to bind the company because Talley testified that he neither authorized, nor allowed Braughton to believe, that Braughton had the authority to hire Rodriguez as a painter.
The record shows that the company's business files list Braughton as a company superintendent, and that company superintendents have authority to hire painters on the company's behalf. Furthermore, Braughton testified that he was hired as a superintendent, and that he typically received authority from a company estimator to hire extra subcontractors, such as Rodriguez, on behalf of the company. Additionally, Braughton believed he had the authority, as a company superintendent, to hire a painter. See Austin Area Teachers Fed. Credit Union v. First City Bank-N.W. Hills, N.A., 825 S.W.2d 795, 799 (Tex.App.-Austin 1992, writ denied) ( considering agent's belief that action was authorized in finding implied authority). Lastly, Braughton testified that, in his role as a company superintendent, he hired Rodriguez as a painter on behalf of the company.
Under this record, the trial court could have reasonably concluded that evidence of probative force supported a finding that Braughton possessed the actual authority to contract with Rodriguez on the company's behalf. We therefore hold that the evidence is legally sufficient. Although Talley's testimony that he did not give Braughton actual authority to hire Rodriguez is some evidence weighing in the company's favor, the testimony does not render the trial court's finding that Braughton had actual authority against the great weight and preponderance of the evidence. See Cain, 709 S.W.2d at 176.
Because we have found legally and factually sufficient evidence to support the trial court's finding that Braughton had actual authority to bind the company, we overrule the company's fifth issue without need to address the legal and factual sufficiency of the evidence to support the apparent authority or ratification theories.
Request for Disclosures
In its first issue, the company contends that the trial court erred by awarding $10,027.98 in damages because Rodriguez failed to comply with the company's discovery requests concerning the method of calculation for his damages. The company contends that Rodriguez's testimony about damages should have been excluded.
As noted above, we review a trial court's decision to exclude testimony under an abuse of discretion standard and uphold an evidentiary ruling if there is any legitimate basis for it. Owens-Corning, 972 S.W.2d at 43; Horizon, 34 S.W.3d at 906. A party may request discovery for disclosure of the amount and any method of calculating economic damages. Tex. R. Civ. P. 194.2(d). A party's failure to comply adequately with a discovery request can result in either the exclusion of evidence at trial or the admission of the evidence at trial when certain circumstances are met. Tex. R. Civ. P. 193.6(a). Rule 193.6(a) states as follows:
[A] party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
Tex. R. Civ. P.193.6(a). The burden of establishing good cause, lack of unfair surprise, or lack of unfair prejudice is on the party seeking to introduce the evidence or call the witness. Tex. R. Civ. P.193.6(b). Additionally, a finding of good cause, lack of unfair surprise, or lack of unfair prejudice must be supported by the record. Id. The trial court may grant a continuance or postpone a trial temporarily to allow discovery regarding the matter not timely identified during discovery. Tex. R. Civ. P. 193(c).
The record shows that the company's attorney objected during the testimony of Rodriguez, as follows:
Rodriguez's attorney: Alfonso, let me direct your attention to Exhibit 1 and I'd like to go through each of these different homeowners and those projects just for a moment and go over them one-by-one with you. On the Janet Craig job, how did you arrive at the figure of $4,500?
Company's attorney: Your honor, I'm going to object to anything — him testifying to how he arrived at it because we've asked for those documents. I asked him in disclosures how he calculated and I have not been provided any documentation as to how he arrived at $4,500.
The company's attorney explained that although she requested discovery from Rodriguez concerning "any method of calculating" his economic damages, Rodriguez merely responded that "Alfonso Rodriguez seeks to recover $10,027.98, the balance due from the amount the Defendant agreed to pay him for certain jobs after credits for payments made and for additional work." The company's attorney asserted that she had never been provided with any documentation or explanation concerning the $4,500 figure and objected, asserting that Rodriguez should not be permitted to "go into the details of how he arrived at something when it has not been disclosed to me."
Rodriguez's attorney responded that he believed that he had adequately complied with the company's discovery requests because the $4,500 amount concerned an oral agreement for that amount, not a written agreement, and the details of the reasons for the $4,500 amount were provided to the company in Plaintiff's Exhibit 1 — a letter dated August 20 sent to the company's attorney and attached to the original petition. Rodriguez's attorney represented to the trial court that Rodriguez intended to testify consistently with the figures in the August 20 letter that was marked as Plaintiff's Exhibit 1.
The August 20 letter states as follows:
Listed below is the detailed information on the work authorized to be performed by Alfonso Rodriguez.
Re: Janet Craig — 3635 Underwood
Labor and Material: $4,500.00 Pmt: 5-15 #19394 $ 288.00 Pmt: 5-30 #19641$ 192.00 Balance Due: $4,020.00
Description: Sheet rock repair, texture, and paint walls, ceiling and wood in master bedroom, 2 hall ways, 2 bedrooms, dining room; remove carpet.
Comment: This is the balance due on the original job.
The remainder of the letter contained a similar description of the work performed and the debt due for five other sites, totaling $10,027.98 for the debt due for the work at issue performed by Rodriguez, including the $4,020 debt due for the Craig project.
The trial court overruled the company's objection. Rodriguez then testified that the figure of $4,500 on the Craig project was reached by an oral agreement between him and Braughton, that he received two payments from the company toward this debt, but that the unpaid balance for the work was $4,020. The trial court also overruled the company's similar objections to Rodriguez's testimony about the other jobs listed on the August 20 letter.
Assuming without deciding that Rodriguez's answer to the discovery interrogatory that asked for "any method of calculating" Rodriguez's economic damages was incomplete, the record shows that the trial court did not abuse its discretion by allowing Rodriguez's testimony concerning his damages. The record shows that Rodriguez included the August 20 letter to the company with his original petition. The record also shows that the August 20 letter included the details of the oral agreement such as the name of the person and address where the work was done, the oral agreement pertaining to the cost for labor and material, a list of the payments received for the work, the balance left unpaid for the work, a detailed description of the work actually done at the location, and any comments about the work. The record further shows that Rodriguez's testimony was consistent with the representations of the debt made in the August 20 letter. Under these circumstances we cannot conclude that the trial court acted without reference to any guiding rules and principles by allowing Rodriguez's testimony about his economic damages. See C.M. Asfahl Agency, 135 S.W.3d at 798. We further conclude that the record supports a finding by the trial court that the company was not unfairly surprised or unfairly prejudiced by the evidence introduced at trial, which was a legitimate basis for the trial court to allow the testimony regarding economic damages. See Tex. R. Civ. P.193.6(b); Owens-Corning, 972 S.W.2d at 43. We thus hold that the trial court did not abuse its discretion by allowing the admission of evidence concerning economic damages.
We overrule the company's first issue.
Quantum Meruit
In its third issue, the company contends that the evidence is legally and factually insufficient to support the trial court's judgment on Rodriguez's quantum-meruit claim. The trial court's judgment, findings of fact, and conclusions of law demonstrate that the trial court based its judgment on the company's breach of contract claim, as opposed to Rodriguez's quantum-meruit claim. Therefore, we need not address this issue. See Murray v. Crest Constr., Inc., 900 S.W.2d 342, 345 (Tex. 1995) ( holding that recovery based on an express contract and on quantum meruit are inconsistent); see also Scharer v. John's Cars, Inc., 776 S.W.2d 228, 231 (Tex.App.-El Paso 1989, writ denied) ( stating, "Breach of contract and quantum-meruit theories are mutually exclusive; one rules out the other.").
We overrule the company's third issue.
Fraud
In its sixth issue, the company contends that the evidence is legally and factually insufficient to support the trial court's judgment on Rodriguez's fraud claim. However, the trial court's judgment, findings of fact, and conclusions of law demonstrate that the trial court did not render judgment against the company on Rodriguez's fraud claim. Therefore, we need not address this issue.
We overrule the company's sixth issue.
Prejudgment Interest
In its seventh issue, the company contends that the trial court erred by awarding $1,498.42 as prejudgment interest at the rate of 18 percent from October 8, 2002 to July 6, 2003. The company argues that Rodriguez did not properly plead the rate allowed by the trial court, and contends that there is no basis in law to support the granting of 18 percent in prejudgment interest.
As the company acknowledges in its brief, section 28.004 of the Property Code authorizes prejudgment interest at the rate of 18 percent. See Tex. Prop. Code Ann. § 28.004 (Vernon 2000). Prejudgment interest is recoverable as a matter of right when an ascertainable sum of money is determined to have been due and payable at a definite date prior to judgment. Jarrin v. Sam White Oldsmobile Co., 929 S.W.2d 21, 24 (Tex.App.-Houston [1st Dist.] 1996, writ denied). Further, prejudgment interest authorized by statute may be predicated on a prayer for general relief. Olympia Marble Granite v. Mayes, 17 S.W.3d 437, 441 (Tex.App.-Houston [1st Dist.] 2000, no pet.). Because the plaintiff is entitled to prejudgment interest based on a claim for general relief alone, a plaintiff need not specifically plead prejudgment interest if the claim falls within the scope of a statute authorizing prejudgment interest. Id. ( citing Benavidez v. Isles Constr. Co., 726 S.W.2d 23, 25 (Tex. 1987) ( stating that "as a general rule plaintiffs are required to plead for prejudgment interest sought at common law as an element of damages, whereas statutory or contractual interest may be predicated on a prayer for general relief.")). Here, the company does not contend, and the record does not demonstrate, that Rodriguez did not assert a claim for general relief. We therefore conclude that the trial court did not err when it granted Rodriguez 18 percent in prejudgment interest.
Moreover, in the proposed joint trial-preparation order, Rodriguez's proposed conclusions of law indicate that he would be entitled to prejudgment interest, as set forth in section 28.004, if he prevailed at trial. Having signed the joint, proposed trial-preparation order, the company was aware that Rodriguez would seek prejudgment interest pursuant to section 28.004 and may not now assert a defect in pleading. See Tex. R. Civ. P. 90.
We overrule the company's seventh issue.
Non-Compete Agreement
In its eighth issue, the company contends that the evidence is factually insufficient to support the trial court's rendering a take-nothing judgment against Robertson on the company's claim that Robertson breached a non-compete agreement. The company contends that Robertson's breach caused damage to the company in the amount of $1,000,000.
Robertson did not file a brief.
In March 2001, the company hired Robertson as an estimator. As a condition of employment, Robertson signed a non-compete agreement in which he promised not to contact the company's clients and not to compete within 100 miles of the company. Robertson worked for the company until June 2002, when the company terminated him.
At trial, Robertson admitted that he signed the non-compete agreement. In support of the company's claim against Robertson, Talley testified that Robertson contacted State Farm Insurance, a company client, and admitted doing business with State Farm. Talley also testified that a "good" estimator "should" earn $1 million for the company, and that the company would lose $1 million if an estimator left and competed with the company. There was no testimony, however, concerning (1) the scope or duration of Robertson's alleged contacts or business dealings with State Farm, (2) where the alleged contacts or business dealings took place, or (3) how far from the company headquarters the alleged business dealings or contacts took place. Furthermore, besides generally stating that an estimator "should" earn $1 million for the company and that the company's damages would be $1 million if an estimator competed within 100 miles, the company did not sufficiently detail the correlation between the expected earnings of an estimator and the company's alleged damages.
This Court may not second guess or substitute our judgment for that of the trier of fact. Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (Tex. 1986); Cain, 709 S.W.2d at 176. We cannot say that the trial court's failure to find a breach of the non-compete agreement is so contrary to the great weight and preponderance of the evidence that the finding is clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176, and therefore hold that the evidence is factually sufficient to support the trial court's finding.
We overrule the company's eighth issue.
Conclusion
We affirm the judgment of the trial court.