 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Stolz v. Honeycutt3/22/2001
in this case and the basic failure of any of the parties to have followed the letter of the law on mechanic's liens, we agree with the trial court's assessment that neither Honeycutt nor Stolz is entitled to recover attorney's fees from the other. We therefore overrule this point of error.
V. Cross-Claim
Lastly, Stolz contends that the trial court erred in not granting him judgment in his cross-claim against R.C. Kyle. In his brief, Stolz states this point of error as an alternative point should this court not reverse the trial court's judgment favoring Honeycutt. Since we do reverse the judgment of the trial court in that regard, this point of error is, for the most part, now moot.
Under this point, however, Stolz also contends that even should the trial court's judgment for Honeycutt be reversed, the trial court further erred in not awarding him attorney's fees against Kyle. Stolz asserts that Kyle was required by statute to defend against Honeycutt's action, and, in failing to do so, Kyle made himself liable for the attorney's fees and costs expended by Stolz in defending against the claim, citing TEX. PROP. CODE ANN. § 53.153 and § 53.156.
A careful review of the pleadings, however, reveals that Stolz failed to make this claim for attorney's fees and costs in the trial court. In his cross-claim against Kyle, Stolz alleged DTPA violations, breach of contract, and actual and constructive fraud, but he made no allegations against Kyle based on the property code, either in the pleadings, at trial, or in post-trial attacks on the judgment. A party may not appeal a case on a new or different theory than it used in the trial court. Hilsher v. Merrill Lynch, Pierce Fenner & Smith, 717 S.W.2d 435, 441 (Tex. App.--Houston [14 th Dist.] 1986, no writ). See also Swink v. Alesi, 999 S.W.2d 107, 110 (Tex. App.--Houston [14 th Dist.] 1999, no pet.)(on appeal, party claimed contractual right to attorney's fees but only alleged statutory right in trial court). Accordingly, this point of error is overruled.
For the foregoing reasons, the judgment of the trial court is affirmed as to Stolz's claims against Kyle and reversed and a take nothing judgment rendered as to Honeycutt's claims against Stolz.
Judgment rendered and Opinion filed March 22, 2001.
Publish
TEX. R. APP. P. 47.3(b).
Page 1 2 3 4 5 6 7 8 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|