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Moore v. Novark9/28/1995
its he could have reasonably expected to receive had he remained employed; Constable Moore testified as to the salaries of deputy constables and how much Novark would have earned at time of trial if he were still employed; and Novark furnished his income tax returns showing his actual earnings between 1981-91. In view of this evidence, the deputies' legal sufficiency challenge must fail.
Reviewing the contrary evidence, we note that Novark admitted he was terminated by the Willis Police Department for violating a prisoner's civil rights. Novark had also been terminated by the Harris County Sheriff's Department. Novark acknowledged that he was an at-will employee of Precinct 4 and could be fired at any time without cause. This evidence is not so overwhelming as to render the jury's verdict unjust.
We conclude that the jury could have reasonably inferred that the deputies' accusations caused Novark's damages in that he was unable to obtain gainful employment in law enforcement in the face of allegations of violating a prisoner's civil rights. There is legally and factually sufficient evidence to support the jury's findings that the deputies' actions caused Novark to lose wages and employment benefits. We overrule the deputies' points of error ten, eleven and twelve.
In point of error fourteen, the deputies contend that the trial court erred in awarding prejudgment interest accruing from October 8, 1983, 180 days after Novark's termination. They argue, without proposing a different accrual date, that prejudgment interest should be linked instead to the federal criminal charges.
Because this suit was commenced in August 1986, prejudgment interest is governed by the principles set forth in Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex. 1985). In Cavnar, the Texas Supreme Court held that prejudgment interest in wrongful death and non-death personal injury cases begins to accrue six months after "the occurrence of the incident giving rise to the cause of action." Id. at 555. The express reason given for setting this method of calculation was to fairly compensate the plaintiff while avoiding the difficulty in determining exactly when a plaintiff sustains each element of damages. Id.
In this case, the incident given rise to Novark's causes of action is the deputies' making statements, determined by the jury to be false, accusing Novark of violating a prisoner's civil rights. Even though the criminal prosecution did not occur until two years later, we conclude that the allegations made by the deputies "gave rise" to Novark's damages. The formal, sworn statements of the deputies were made on April 4, 1983. Therefore, prejudgment interest should properly begin to accrue six months later, in October 1983. We overrule the deputies' fourteenth point of error.
In point of error fifteen, the deputies argue that the trial court erred in awarding attorney's fees. We agree. In Texas, attorney's fees are recoverable only if a statute specifically provides for them or the parties expressly contract for them. New Amsterdam Cas. Co. v. Texas Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967). We have already determined that Novark failed to submit the federal conspiracy claim that could have entitled him to statutory attorney's fees. See 42 U.S.C. Section(s) 1988(b) (1994) (permitting recovery of attorney's fees in certain federal civil rights actions). There is no other statutory provision or agreement between the parties providing for attorney's fees for Novark's common law tort claims. Therefor, attorney's fees are not available for these claims. We sustain the deputies fifteenth point of error.
CONCLUSION
The trial court
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