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Laas v. State Farm Mutual Automobile Insurance Co.8/10/2000
Control Parking, Inc., 696 S.W.2d 549, 554 (Tex. 1985), the supreme court held, in pertinent part: ". . . a prevailing plaintiff may recover prejudgment interest . . . ." In our discussion under point of error fifteen, we found appellants were not the successful party. For the same reasons, we find appellants were not the prevailing party under Cavner. Appellants contested the umpire's award and lost. Therefore, the award was no more than determined by the appraisal process to be due, and appellants did not prevail in the sense that they won the case on the merits. We hold that the judgment for the property damage award did not vindicate "a claim of right, civil in nature." Siepert, 433 S.W.2d at 775.
Furthermore, there is no evidence in the record that appellants presented proof to the trial court as to the amount claimed due as prejudgment interest. Both sides have an obligation to provide the court with competent evidence to establish the proper amount of the interest award. See Quality Beverage, Inc. v. Medina, 858 S.W.2d 8, 11 (Tex. App.--Houston [1st Dist.] 1993, no writ). That opinion goes on to imply that competent evidence in this context could be stipulations, affidavits, or live testimony at a post-verdict or timely post-judgment hearing. Id. Quality Beverage failed to provide competent evidence when its counsel merely attached a letter as an exhibit to a response on a motion to modify the judgment. Id.
Because appellants were not the prevailing party and failed to present competent evidence to establish the proper amount of the interest they claim was due, we overrule point of error sixteen.
In point seventeen, appellants contend the judgment should provide for post-judgment interest. State Farm tendered the full amount due and owing under the umpire's award in the sum of $1,795.30 on July 28, 1997, before the judgment for that amount was entered on January 18, 1998. Once the judgment debtor tenders payment, post-judgment interest cannot accrue. Robberson Steel, Inc. v. J.D. Abrams, Inc., 582 S.W.2d 558, 565 (Tex. Civ. App.-El Paso 1979, no writ). We overrule appellants' point of error seventeen.
The judgment of the trial court is affirmed.
Judgment rendered and Opinion filed August 10, 2000.
Do Not Publish -- TEX. R. APP. P. 47.3(b).
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