James Holmes Enterprises, Inc. v. John Bankston Construction & Equipment Rental, Inc. ( 1983 )

McNICHOLAS, Justice.

This suit was brought to recover a sum due on an account based on an oral contract.

Appellant, James Holmes Enterprises, appeals from a take nothing judgment rendered by the trial court in favor of appellee, John Bankston Construction and Equipment Rental. Appellant asserts two points of error. One, the trial court erred in denying appellant’s right to recover additional monies and two, in denying appellant’s right to recover reasonable attorney’s fees.

The record shows that both appellant and appellee admitted the existence of an oral contract for the purpose of constructing concrete manholes, that appellant completed construction and presented appellee with an invoice showing a total due of $9,525.00. Appellee made a partial payment of $7,725.00, leaving a balance due of $1,800.00.

Appellee has refused to pay the balance due on the account, alleging that appellant breached their contract and failed to complete the work in a good, workmanlike manner. Though the evidence is conflicting, it appears that two — not four, as appellee alleges, — of the concrete catch basins were found to be substandard and were not approved by the city inspector. Appellee was then required to remove and repair the substandard work at his own expense, a total of $1,828.76.

The trial court’s take nothing judgment based on appellant’s First Amended Original Petition claiming $1,800.00 as the amount owed minus the $1,828.76 claimed by defendant would have been correct. However, the appellant attempted to put on proof at trial that the invoice was incorrectly added and the actual amount owing was $3,600.00. The appellant orally requested a trial amendment to reflect the correct amount owed.

Tex.R.Giv.P. 66 (Vernon 1979) says “if during the trial any defect, fault or omission in a pleading either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended ...” However, Tex.RCiv.P. 45(d) (Vernon 1979) requires that all “[pjleadings in the district or county courts shall ... [b]e in writing, signed by the party or his attorney, and shall be filed with the clerk.”

Here, there is no evidence in the record or the transcript that appellant’s proposed trial amendment, though granted by the trial court judge, was ever presented in writing or filed by the court as required by Rule 45(d). Appellant did not file any objections to the trial court’s findings, or request any additional findings, as required by Tex.R.Civ.P. 298 (Vernon 1977). It is incumbent upon appellants to request any desired additional findings, and any omitted unrequested findings will be presumed in support of the judgment. Tidwell v. Lange, 531 S.W.2d 384 (Tex.Civ.App.—Waco 1975, no writ); Tex.R.Civ.P. 299 (Vernon 1977.)

“The want of sufficient pleadings to support a judgment is as fatal to the judgment as a want of evidence, and a judgment can no more be properly rendered on insufficient pleadings than on insufficient evidence.” Mize v. Wood County, 460 S.W.2d 152 (Tex.Civ.App.—Tyler 1970, no writ). Therefore, the amount plead in the appellant’s First Original Amended Petition remains $1,800.00; there being no increase in the amount in controversy, there is no basis upon which appellant could recover any monies.

Further, no attorney’s fees will be allowed as appellant is not the prevailing party and is not recovering any monies on his claim against appellee. Jay-Lor Textiles, Inc. v. Pacific Compress Warehouse Co., 547 S.W.2d 738 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.); Tex.Rev.Civ. Stat.Ann. Art. 2226 (Vernon Supp. 1982-1983).

The trial court’s take nothing judgment is affirmed.