County of Ellis, Through Its Ellis County Commissioners Court v. Gordon W. Wilson, Architect and Planners, Inc.

County of Ellis v. Wilson

IN THE

TENTH COURT OF APPEALS

No. 10-93-021-CV

     COUNTY OF ELLIS, THROUGH ITS ELLIS

     COUNTY COMMISSIONERS COURT,

                                                                                              Appellant

     v.

     GORDON W. WILSON, ARCHITECT AND PLANNERS, INC.,

                                                                                              Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 43,088

O P I N I O N

      Ellis County appeals the judgment entered by the trial court in a breach-of-contract action brought by Gordon Wilson, Architect and Planners, Inc. Because the county has waived its complaints, except with regard to the trial court's award of prejudgment interest, we affirm the judgment as modified.

      In points one and two the county contends that the court erred in denying its motion for instructed verdict and its motion for judgment notwithstanding the verdict, arguing that, as a matter of law, the contract was void or, in the alternative, that the county complied with the terms of the contract. The jury returned a verdict in favor of Wilson, awarding breach-of-contract damages of $64,200 and attorneys' fees of $6825. The court granted the county's motion to disregard the jury's finding on attorneys' fees but denied its motion for judgment notwithstanding the verdict. The county, however, then filed a motion for judgment based on the jury's finding of actual damages, disregarding the jury's finding of attorney's fees, and denying Wilson's request for prejudgment interest. The court rendered a judgment that differed from the judgment requested by the county only in that it awarded prejudgment interest on Wilson's actual damages.

      The county may not move the trial court to enter judgment on the verdict and then, on appeal, take a position inconsistent with the portion of the judgment that it requested. A litigant cannot ask something of the court and then complain that the court committed error in giving it. When the record on appeal establishes that the trial court entered its judgment in compliance with the appellant's motion for judgment, all inconsistent complaints by the appellant about the trial court's action in so doing are foreclosed. As a result, the county cannot now complain that the court erred in denying its motion for judgment notwithstanding the verdict. Therefore, we overrule points of error one and two.

      In point three the county contends that the court erred in awarding prejudgment interest to Wilson. The judgment awarded prejudgment interest on Wilson's actual damages, calculated at the rate of six percent per annum, and compounded annually from May 23, 1987, to the date of judgment. Because the county's motion for judgment is consistent with its position in point three, it has not waived its right to complain about the trial court's award of prejudgment interest.

      Prejudgment interest is recoverable as a matter of right when a sum of money is determined to have been due and payable at a date certain prior to judgment. Had the jury been asked to determine Wilson's damages as of April 23, 1987, the effective date of the contract termination, Wilson would have been entitled to prejudgment interest from May 23, 1987, to the date of judgment. However, the jury was asked, "What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Gordon W. Wilson, Architect and Planners, Inc.?" (Emphasis added). Because the jury's answer fixed the amount of damages as of the date of its verdict, rather than from the date the contract was terminated, Wilson is entitled to prejudgment interest only from the date of the verdict to the date of judgment.

      Although Wilson sought actual damages, including architectural fees and reimbursable expenses, totalling $67,488.60, the jury awarded only $64,200 in actual damages. It is impossible to determine what elements of damages the jury considered in reaching its actual-damages finding. Therefore, the answer does not clearly reflect only those damages that had accrued as of the date of termination. As a result, we must presume that the jury—although it apparently believed that one or more elements of the requested damages was not justified by the evidence—followed the court's instructions to fix the actual damages as of the date of the verdict. Accordingly, we sustain point of error three and modify the judgment to award prejudgment interest on Wilson's actual damages of $64,200, calculated at the rate of six percent per annum, and compounded annually from November 11, 1992, to December 23, 1992.

      We affirm the judgment as modified.

                                                                                 BOBBY L. CUMMINGS

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed as modified

Opinion delivered and filed June 30, 1993

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