Jeramie Eitel, D/B/A Jeraco Investments and as Agent for Cliff's Star Construction, LLC Jenson Gainer And Otis Bakke v. John Horobec ( 2014 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00500-CV
JERAMIE EITEL, D/B/A JERACO APPELLANTS
INVESTMENTS AND AS AGENT
FOR CLIFF’S STAR
CONSTRUCTION, LLC; JENSON
GAINER; AND OTIS BAKKE
V.
JOHN HOROBEC APPELLEE
----------
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
In five issues,2 Appellants Jeramie Eitel, d/b/a Jeraco Investments and as
agent for Cliff’s Star Construction, LLC; Jenson Gainer; and Otis Bakke
1
See Tex. R. App. P. 47.4.
challenge the trial court’s summary judgment rendered in favor of Appellee John
Horobec. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
The summary judgment evidence established that Horobec is the owner of
the property located at 204 W. Dallas, Grapevine, Texas (the Property). In June
2008, Horobec entered into a lease agreement with Cliff’s Star Construction, LLC
for the Property. Eitel signed the lease agreement as agent for Cliff’s Star
Construction, LLC and also signed a personal guaranty of the lease. The lease
2
Appellants’ brief identifies five issues on pages 8 to 9, identifies a different
grouping of five issues on page 12, and then sets forth a slightly different
grouping containing six arguments in the summary of arguments on page 13. In
this opinion, we will use the issues identified on pages 8 to 9 of Appellants’ brief,
which are set forth below:
[1]. The judgments against Bakke and Gainer are in violation
of the Due Process provisions of the State of Texas and the United
States [c]onstitution[s].
[2]. The judgment is not based on proper summary
[j]udgment evidence as there are many controlling and important
facts left unfound.
[3]. The [s]tatute of frauds does not apply when the contract
could have been completed in one year.
[4]. Horobec was unjustly enriched by the improvements
made to his property[,] and he is guilty of laches in waiting until a
year [had] passed to make his claim.
[5]. There is no adequate summary judgment proof to
support the award of attorney[’s] fees to counsel for Horobec.
2
agreement was for a term of twenty-four months—beginning on June 1, 2008
and ending on June 1, 2010—and stated that rent was $1,400 per month.
After June 1, 2010, Eitel continued to occupy the Property and became a
holdover tenant on a month-to-month basis with a rent of $2,800 per month. In
December 2010, without giving written notice to vacate, Eitel stopped making
monthly rent payments to Horobec, and Horobec initiated an eviction action in
the justice court. The justice court ultimately signed a judgment nunc pro tunc,
granting sole possession of the Property to Horobec.
During the justice court proceedings, Horobec learned that Eitel d/b/a
Jeraco Investments had entered into a commercial lease agreement in February
2010 with Grapevine Lawn and Equipment Center, LLC for the Property. 3 The
lease agreement between Horobec and Cliff’s Star Construction, LLC prohibited
the assignment or subletting of the Property without Horobec’s consent. Horobec
did not give Eitel written consent to lease the Property to Grapevine Lawn.
Following the eviction suit, Horobec initiated an action in small claims court
to recover unpaid rent. Eitel filed a counterclaim, attempting to recover $50,000
in expenses for an “extensive remodel” that he had allegedly performed on the
Property. Eitel claimed that he and Horobec had reached a verbal agreement
that Eitel would repair the Property, find a new tenant, and share in the profits
3
An addendum to a commercial lease agreement between Eitel and
Grapevine Lawn provided that the prorated rent for February 2010 would be
$1,250.06. It also stated that the rent for March and April 2010 would be $2,500
and that the rent for the remaining months under the lease would be $2,800.
3
from any rent. On January 18, 2012, the small claims court dismissed Eitel’s
counterclaim for lack of jurisdiction and awarded Horobec $5,000, plus costs of
court, and $3,000 in attorney’s fees.
Eitel, as principal, and Gainer and Bakke as sureties, secured an appeal
bond. Eitel, Gainer, and Bakke acknowledged that they were bound to pay
Horobec the sum of $16,000, “conditioned that [] the said Jeramie Eitel shall
prosecute his appeal to effect, and shall pay off and satisfy the judgment which
may be rendered against him on such appeal.” Eitel thereafter appealed the
small claims court judgment to Tarrant County Court at Law No. 3.
In the county court at law (the trial court), Horobec filed an amended
pleading, asserting claims against Eitel for breach of contract, conversion, and
fraud. Eitel filed a document titled “Original Cross-claim[4] of Jeramie Eitel,” in
which he asked the trial court to find that, based on an alleged oral agreement
between the parties, he had a one-half interest in the Property and to award him
one-half of the income from the rental of the Property since December 2010 or, in
the alternative, to award him a judgment against Horobec and the Property for
$75,000, which represented the total that Eitel claimed he had expended to
remodel the Property.
Horobec filed a combined traditional motion for summary judgment on his
claims against Eitel and a traditional and no-evidence motion for summary
4
Technically, this motion is a counterclaim, but we refer to it herein by the
title supplied by Eitel, a cross-claim.
4
judgment on Eitel’s cross-claim; the trial court granted Horobec’s motion for
summary judgment and awarded him $24,718.47 in actual damages and
$3,718.47 in attorneys’ fees. The trial court’s summary judgment also imposed
joint and several liability on Gainer and Bakke as sureties on Eitel’s appeal bond,
up to the amount of the $16,000 bond.
Appellants perfected this appeal.
III. SUMMARY JUDGMENT
In their second issue, Appellants argue that there are issues of unresolved
fact that preclude summary judgment. Appellants do not, however, point out in
their brief what the purported unresolved fact issues are. Nor do Appellants
specifically address the propriety of the summary judgment on any of Horobec’s
pleaded causes of action—breach of contract, conversion, and fraud.
Nonetheless, we review the summary judgment evidence to determine
whether Horobec, as plaintiff, conclusively established that he was entitled to
prevail on each and every element of his breach of contract cause of action
against Eitel. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972) (articulating
this summary judgment burden when plaintiff is movant); Ortega-Carter v. Am.
Int’l Adjustment Co., 834 S.W.2d 439, 441 (Tex. App.––Dallas 1992, writ denied)
(same). Horobec argued that he conclusively established his claim against Eitel
for breach of the lease agreement because Eitel sublet the property without
Horobec’s written consent as required by the terms of the lease and also failed to
pay rent due under the terms of the lease beginning in December 2010. Horobec
5
supported his motion for summary judgment with his sworn affidavit, along with a
copy of the lease with Cliff’s Star Construction, a copy of the lease between Eitel
and Grapevine Lawn, a copy of the judgment nunc pro tunc awarding possession
of the Property to Horobec, and an affidavit from Horobec’s attorney showing the
amount of attorney’s fees requested with billing records attached to support the
amount requested. Eitel filed a response to the motion for summary judgment,
supported by only his affidavit. Eitel’s affidavit does not controvert the facts
pertinent to an element of the breach of contract claim established by Horobec’s
summary judgment evidence—that Eitel sublet the Property during the term of
Cliff’s Star Construction’s lease with Horobec without obtaining Horobec’s written
consent as required under the lease, that Eitel did not pay rent owed under the
lease, and the amount of Horobec’s damages for breach of the lease.
Consequently, the summary judgment evidence conclusively established that
Horobec was entitled to prevail on each and every element of his breach of
contract cause of action against Eitel. See Swilley, 488 S.W.2d at 67; Ortega-
Carter, 834 S.W.2d at 441.
Moreover, on appeal, an appellant must attack every ground upon which
summary judgment could have been granted to obtain a reversal. Malooly Bros.,
Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). A broad issue challenging the
propriety of a summary judgment is sufficient to place all grounds for summary
judgment before the appellate court, but it does not relieve the appellant of the
burden to challenge in his brief each of the grounds on which the summary
6
judgment could have been granted and to present argument and authorities for
each possible basis for summary judgment. See, e.g., Cruikshank v. Consumer
Direct Mortg., Inc., 138 S.W.3d 497, 502–03 (Tex. App.—Houston [14th Dist.]
2004, pet. denied); Columbia Lloyds Ins. Co. v. Mao, No. 02-10-00063-CV, 2011
WL 1103814, at *7 (Tex. App.—Fort Worth Mar. 24, 2011, pet. denied) (mem.
op.); see also Roberts v. Roper, 373 S.W.3d 227, 231–32 n.2 (Tex. App.––Dallas
2012, no pet.) (holding that summary judgment that stated it disposed of all
claims was final, even if erroneously final, because movant did not seek
summary judgment on one claim and that nonmovant waived error by not
complaining on appeal).
Here, Appellants have not articulated any challenge to the summary
judgment in favor of Horobec on any specific claim asserted by Horobec—breach
of contract, conversion, or fraud. Consequently, we are required, in any event, to
uphold the summary judgment based on these unchallenged theories of
recovery. See, e.g., San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 210 (Tex.
1990) (holding that appellate court may not reverse summary judgment absent
properly assigned error); Roberts, 373 S.W.3d at 231–32 n.2; Jarvis v. Rocanville
Corp., 298 S.W.3d 305, 313 (Tex. App.—Dallas 2009, pet. denied) (“If an
appellant does not challenge each possible ground on which summary judgment
could have been granted, we must uphold the summary judgment on the
unchallenged ground.”); Cruikshank, 138 S.W.3d at 502–03.
7
Horobec also moved for a traditional and a no-evidence summary
judgment on Eitel’s cross-claim; Eitel’s cross-claim requested that the trial court
award him a one-half interest in the Property and the rentals therefrom or that the
trial court award him a judgment against Horobec and the Property for $75,000
for the materials and labor that he allegedly expended in remodeling the
Property. Horobec’s traditional summary judgment alleged that Eitel’s cross-
claim was barred by res judicata because Eitel did not assert it in the suit in the
justice of the peace court, that Eitel’s cross-claim was barred by the statute of
frauds, and that Eitel had no evidence to support any of the elements of a
quantum meruit claim. Horobec set forth the elements of quantum meruit for
which he contended no evidence exists: (1) Eitel must have provided valuable
services or materials; (2) the services or materials must have been provided for
Horobec; (3) Horobec must have accepted the services or materials; and (4)
Horobec must have had reasonable notice that Eitel expected compensation for
the services or materials.
In response to Horobec’s summary judgment motion on Eitel’s cross-claim,
the only summary judgment evidence produced by Eitel was his own affidavit.
Eitel’s affidavit does not state facts pertinent to the elements of quantum meruit,
specifically elements 2, 3, or 4. As a result, the trial court had no discretion but to
grant Horobec’s no-evidence motion for summary judgment on Eitel’s cross-
claim. See Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 117 (Tex. App.—
Waco 1999, no pet.) (holding that failure to produce summary judgment evidence
8
on challenged elements in response to no-evidence motion for summary
judgment requires trial court to grant no-evidence motion). We hold that the trial
court properly granted Horobec’s no-evidence motion for summary judgment on
Eitel’s cross-claim.5 We overrule Appellants’ second issue.
IV. NO DUE PROCESS VIOLATION BY ENTRY OF JUDGMENT AGAINST SURETIES
In their first issue, Appellants complain that the judgment against the
sureties Bakke and Gainer violates the Due Process Clause of the United States
Constitution and the Texas constitution. Appellants argue that neither Bakke nor
Gainer was named in any pleading, neither was served with citation, and neither
was given an opportunity to present a defense on Horobec’s claim.
The San Antonio case of Bobbitt v. Womble states,
It is well settled that under surety law, when it appears from
the terms of the surety contract that the surety has contracted to be
bound by a particular judgment that has or may be rendered against
his principal, “it is conclusive against him, although he was not a
party to the suit in which the judgment was obtained.” A surety on a
judgment bond does not need to be given notice of the suit or an
opportunity to defend the suit before the surety is bound by the
judgment.
5
Because Eitel did not come forward with summary judgment evidence
raising a genuine issue of material fact on every element of quantum meruit, the
trial court was required to grant the combined traditional and no-evidence
summary judgment motion that Horobec filed concerning Eitel’s cross-claim on
no-evidence grounds, and we need not address the grounds urged by Horobec
to support a traditional summary judgment (res judicata and statute of frauds),
which are challenged by Appellants in their third and fourth issues. We overrule
Appellants’ third and fourth issues.
9
708 S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1986, no writ) (internal
citations omitted); see also Howze v. Surety Corp. of Am., 584 S.W.2d 263, 265
(Tex. 1979). The idea that it is unnecessary to provide notice to a surety who
furnished a particular judgment bond is based on the notion that any notice would
be redundant because the surety has agreed to be liable for specifically
enumerated acts of the principal. Hartford Cas. Ins. Co. v. State, 159 S.W.3d
212, 219 (Tex. App.—Austin 2005, pet. denied).
The language of the appeal bond here—that Gainer and Bakke
acknowledge they are bound to pay Horobec the sum of $16,000, “conditioned
that [] the said Jeramie Eitel shall prosecute his appeal to effect, and shall pay off
and satisfy the judgment which may be rendered against him on such appeal”—
makes it clear that neither further notice of the suit nor an opportunity to defend is
required before the sureties are bound by the judgment. See Howze, 584
S.W.2d at 265 (“These bonds are, therefore, [j]udgment bonds; and the surety is
bound despite the fact that it was neither notified nor joined as a party.”); Bobbitt,
708 S.W.2d at 560. No due process violation occurred when the trial court
rendered judgment against the sureties Gainer and Bakke; we overrule
Appellants’ first issue.
V. AWARD OF ATTORNEY’S FEES IS SUPPORTED BY EVIDENCE
In their fifth issue, Appellants argue that there is no summary judgment
evidence to support the award of attorney’s fees to Horobec’s counsel.
10
A person may recover reasonable attorney’s fees from an individual or
corporation, in addition to the amount of a valid claim and costs, if the claim is for
an oral or written contract. Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West
Supp. 2008). While reasonableness of an attorney’s fee award often presents a
question of fact, an affidavit filed by the movant’s attorney that sets forth his
qualifications, his opinion regarding reasonable attorney’s fees, and the basis for
his opinion will be sufficient to support summary judgment if uncontroverted.
Gaughan v. Nat’l Cutting Horse Ass’n, 351 S.W.3d 408, 422 (Tex. App.—Fort
Worth 2011, pet. denied). Texas courts consider eight factors when determining
the reasonableness of attorney’s fees:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal service
properly;
(2) the likelihood . . . that the acceptance of the particular
employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
11
(8) whether the fee is fixed or contingent on results obtained or
uncertainty of collection before the legal services have been
rendered.
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)
(citing Tex. Disciplinary Rules Prof’l Conduct R. 1.04, reprinted in Tex. Gov’t
Code Ann., tit. 2, subtit. G, app A (West 2005) (Tex. State Bar R. art. X, § 9)). A
trial court is not required to receive evidence on each of these factors. Sundance
Minerals, L.P. v. Moore, 354 S.W.3d 507, 514 (Tex. App.—Fort Worth 2011, pet.
denied).
Here, the summary judgment evidence included an affidavit from
Horobec’s attorney setting forth his qualifications, his opinion regarding the
reasonableness and necessity of the attorney’s fees, and his basis for the
attorney’s fees. To support the $3,718.47 of attorney’s fees requested in the
affidavit, Horobec’s attorney attached a detailed billing statement, showing the
dates that work was performed, a description of the tasks that were performed,
the number of hours that were spent on each task, the billing rate of the person
who performed each task, and the total amount of fees for each task. There was
no evidence contradicting this amount. We hold that the award of $3,718.47 in
attorney’s fees is supported by sufficient evidence. See In re Estate of Tyner,
292 S.W.3d 179, 184 (Tex. App.—Tyler 2009, no pet.) (holding evidence legally
sufficient to support award of attorney’s fees because attorney’s affidavit was
uncontroverted and set forth his qualifications, his opinion regarding reasonable
12
attorney’s fees, and the basis for his opinion). We overrule Appellants’ fifth
issue.6
VI. CONCLUSION
Having overruled each of Appellants’ five issues, we affirm the trial court’s
judgment.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: GARDNER, WALKER, and MEIER, JJ.
DELIVERED: February 13, 2014
6
Horobec requests in his brief on appeal that this court also award him
appellate attorneys’ fees. Horobec did not seek conditional appellate attorneys’
fees in the trial court, and the summary judgment does not award Horobec
conditional appellate attorneys’ fees. Cf. Nalle Plastics Family Ltd. P’ship v.
Porter, Rogers, Dahlman & Gordon, P.C., 406 S.W.3d 186, 211–12 (Tex. App.—
Corpus Christi 2013, pet. filed) (involving case in which conditional appellate
attorneys’ fees were proved up in the trial court). Nor did Horobec file a notice of
appeal seeking a judgment more favorable to him than the trial court’s judgment.
See Tex. R. App. P. 25.1(c); Gibson Plumbing Heating & Air Conditioning, Inc. v.
Coolbaugh Chiropractic, No. 07-05-00449-CV, 2007 WL 763806, at *4 n.5 (Tex.
App.—Amarillo Mar. 14, 2007, no pet.) (mem. op.) (refusing to award appellee
attorney’s fees for an appeal because trial court did not award attorney’s fees for
an appeal and appellee did not file a notice of appeal). And, finally, the award of
any attorney fee is a fact issue that must be passed upon by the trial court in the
first instance, subject to review by the court of appeals. See Int’l Sec. Life Ins.
Co. v. Spray, 468 S.W.2d 347, 349 (Tex. 1971). Accordingly, we decline to
award Horobec appellate attorneys’ fees or to remand the case to the trial court
for it to do so when no claim for conditional appellate attorney’s fees was made in
the trial court.
13