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Meek v. Peterson3/14/1996
Affirmed in Part; Reversed and Rendered in Part and Opinion filed.
March 14, 1996.
O P I N I O N
In this suit for collection of attorneys fees, Susan B. Meek appeals from a judgement entered in favor of Bishop Peterson & Sharp, P.C. ("Bishop") on the grounds that (1) the trial court entered a judgment for negligence when the correct cause of action was breach of contract, (2) exemplary damages were awarded for fraud when no actual damages for fraud were found, and (3) post-judgment sanctions were not warranted. We affirm in part and reverse and render in part.
Bishop is a law firm which represented Meek in a lawsuit. When Meek failed to pay its fees and costs, Bishop withdrew from the representation and filed suit against Meek for collection, alleging fraud and breach of contract. Meek counterclaimed for legal malpractice and violations of the Deceptive Trade Practices Act. Bishop denied these counterclaims and pled contributory negligence.
The jury found that (a) Meek owed Bishop fees of $7,181.55 for services rendered in her original lawsuit, (b) reasonable attorneys fees for the lawsuit by Bishop against Meek were $130,716.12, (c) while Bishop represented Meek, only Meek, and not Bishop, was negligent, but Meek's negligence did not cause damages to her, (d) Bishop did not engage in false, misleading or deceptive practices in representing Meek, (e) only Meek, and not Bishop, committed fraud in this matter, and (f) Bishop should be awarded $50,000 exemplary damages. The trial court entered judgement pursuant to this verdict and later assessed post-judgment sanctions against Meek for discovery abuse, and against Meek, her trial counsel, and appellate counsel for violations of Rule 13 of the Texas Rules of Civil Procedure.
Negligence and Breach of Contract
In the first of her three points of error, Meek contends that the trial court erred by entering a judgement for negligence when Bishop's cause of action was for breach of contract. In support of this contention, Meek argues that Bishop waived any claim for negligence by failing to plead negligence or seek a trial amendment, that Meek owed no duty to Bishop, and that no personal injury damages were pled or proved.
At no time did Bishop assert an affirmative claim for recovery against Meek for negligence. Instead, Bishop sued Meek for legal fees, Meek asserted a counterclaim for legal malpractice, and Bishop pled contributory negligence as an affirmative defense to that counterclaim. The treatment of negligence in the jury charge is consistent with the pleadings. Therefore, we find no indication that the trial court awarded damages against Meek for negligence.
Meek also argues that Bishop waived any damages awarded for breach of contract because the entire breach of contract claim was omitted from the jury charge. In particular, questions were not submitted to the jury regarding the existence of a contract or a failure to perform it, but only regarding the amount owed for services rendered.
Whether a party has breached a contract is a question of law for the court, not a question of fact for the jury. Garza v. Southland Corp., 836 S.W.2d 214, 219 (Tex. App.--Houston [14th Dist.] 1992, no writ). The court determines what conduct is required by the parties, and, insofar as a dispute exists concerning the failure of a party to perform the contract, the court submits the disputed fact questions to the jury. ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248, 253 n.3 (Tex. App.--Dallas 1990, no writ). Conversely, when facts are undisputed or conclusively established, there is no need to submit issues thereon to the jury. Sullivan
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