Verbal Presentment of Claim Sufficient for Recovery of Attorney's Fees under Chapter 38 of the Civil Practice & Remedies Code

In an opinion issued today, Texas Supreme Court aspirant and current 14th Court of Appeals Associate Justice Jeff Brown writes that oral presentment of a claim is sufficient to satisfy the condition precedent for attorney fee recovery based on a successful breach-of-contract claim under Chapter 38 of the Civil Practice & Remedies Code.

Pleading that "all conditions precedent have been satisfied" is not required either as long as the Plaintiff proves that the claim was presented to the opposing party prior to attorney's fees being incurred in litigation.


Giannakopulos v. Eris (Tex.App.- Houston [14th Dist.] Feb. 9, 2010) (presentment of claim as condition precedent in attorney's fees claim based on breach of contract)

FROM THE OPINION: [which uses roman numerals as a structuring device, rather than descriptive subheadings, which would be a lot more reader- and search-engine-friendly]

In his first issue, Giannakopoulos contends the trial court erred in awarding attorney’s fees to Eris because Eris’s attorney failed to properly notice and present a claim under Chapter 38 of the Texas Civil Practice and Remedies Code. Specifically, Giannakopoulos contends Eris’s attorney failed to plead and prove that all conditions precedent had been met, and his demand letter did not satisfy Chapter 38 because it did not give Giannakopoulos thirty days to pay the amount demanded. Whether a party is entitled to recover attorney’s fees is a question of law for the court; the amount to be awarded is a question for the trier of fact. See Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999) (per curiam). In the absence of findings of fact and conclusions of law, we will imply all findings necessary to the court’s judgment so long as the record supports them. Vickery v. Comm’n for Lawyer Discipline, 5 S.W.3d 241, 251–52 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).

Section 38.001 provides that a person may recover reasonable attorney’s fees on a claim based on an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (Vernon 2008).

To recover attorney’s fees, the claimant must comply with the following requirements of section 38.002: (1) the claimant must be represented by an attorney; (2) the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party; and (3) payment for the just amount owed must not have been tendered within thirty days of presentment. Id. § 38.002 (Vernon 2008).

Presentment of the claim is required to provide the other party with an opportunity to pay the claim before incurring an obligation for attorney’s fees. Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). No particular form of presentment is required. France v. Am. Indem. Co., 648 S.W.2d 283, 286 (Tex. 1983); Harrison v. Gemdrill Int’l, Inc., 981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

All that is necessary is that a party show that its assertion of a debt or claim and a request for compliance was made to the opposing party, and the opposing party refused to pay the claim. Standard Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

It is undisputed that Eris pleaded for recovery of his attorney’s fees pursuant to Texas Civil Practice and Remedies Code section 38.001. Giannakopoulos complains, however, that Eris is not entitled to attorney’s fees because he failed to plead that “all conditions precedent have been performed or have occurred.” See Tex. R. Civ. P. 54. But the failure to plead that all conditions precedent have been met does not preclude an award of attorney’s fees; it merely requires the claimant to prove the requirements of section 38.002. See Wingate v. Acree, No. 14-01-00851-CV, 2003 WL 1922569, at *6 (Tex. App.—Houston [14th Dist.] Apr. 24, 2003, no pet.) (mem. op.); Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 138 (Tex. App.—Houston [14th Dist.] 2000, pet. dism’d); see also Grimm v. Grimm, 864 S.W.2d 160, 162 (Tex. App.—Houston [14th Dist.] 1993, no writ) (explaining generally that when a plaintiff fails to plead performance of conditions precedent she may nevertheless obtain judgment on her claim if she proves all essential elements of the claim, including the performance of any conditions precedent). Therefore, Eris’s failure to plead that all conditions precedent have been met will not preclude an award of attorney’s fees if he proved that he complied with the requirements of section 38.002.

Giannakopoulos contends, however, that Eris failed to show that he made a proper demand on him. He also contends that Eris’s demand letter failed to satisfy the requirements of Chapter 38 because it did not give Giannakopoulos thirty days to pay the amount demanded, but rather demanded payment in three days. We disagree.

At trial, Eris testified that he asked Giannakopoulos to pay his fifty percent of the additional property taxes, but Giannakopoulos refused and told Eris that he would have to pay the taxes. Oral presentment of a claim is sufficient to satisfy the presentment requirement; it is not necessary for a party to present a claim in writing. Jones, 614 S.W.2d at 100; Harrison, 982 S.W.2d at 719. Further, on January 26, 2007, Eris’s attorney sent a letter to Giannakopoulos’s attorney demanding that Giannakopoulos pay his fifty percent of the excess taxes for 2006 ($3,280.52) as the contract provided.

Although the letter demanded payment by January 30, 2007, we nevertheless conclude it is adequate to show presentment. See Harrison, 981 S.W.2d at 719 (holding employee’s oral demand for payment “when he got through with his two-week tour” satisfied presentment requirement); Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex. App.—Austin 1987, writ denied) (holding letter requesting payment at unspecified time satisfied presentment requirement). Therefore, Eris’s oral and written requests for payment adequately presented Eris’s claim for purposes of section 38.002. We overrule Giannakopoulos’s first issue.

AFFIRMED: Opinion by Justice Jeff Brown
Before Justices Brock Yates, Frost and Brown
14-08-00566-CV Illas Giannakopulos v. Bill Eris
Appeal from 295th District Court of Harris County
Trial Court Judge: Hon. Tracy Christopher