Alan Gordon, Lauren Gordon, and IBL Construction & Design, LLC v. Dennis Leasman D/B/A Leasman Contracting
365 S.W.3d 109
| Tex. App. | 2011Background
- Leasman sued Lauren Gordon, Alan Gordon, and IBL Construction & Design for unpaid carpentry work at the Gordons’ home.
- Jury found in Leasman’s favor on breach of contract; counterclaims for negligence and warranty were rejected.
- Gordons and IBL appealed challenging personal liability, contract formation and presentment of the claim.
- Leasman cross-appealed seeking prejudgment interest at the statutory rate under the Prompt Payment Act.
- Trial court awarded $3,780 plus five percent annual interest and fees; appellate court modified prejudgment rate to be one and a half percent per month, affirming as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal liability for contract | Leasman contends Lauren/IBL undisclosed agent; liable personally. | Gordons claim Lauren acted only as IBL agent; no personal liability. | Evidence supports personal liability; lack of disclosure at formation. |
| Presentment under Section 38.002 | Leasman presented claim via handwritten and phone attempts for payment. | Gordons deny receipt and presentment, asserting lack of proper notice. | Presentment satisfied; trial court properly awarded attorney’s fees. |
| Improper jury argument | Leasman’s counsel argued IBL’s liability structure to the jury. | Gordons asserted incurable prejudice from argument. | Argument not incurable; no mistrial required. |
| Prejudgment interest rate under Prompt Payment Act | Rate should be one and one-half percent per month. | Rate should follow trial court’s five percent per year. | Prejudgment interest rate set at one and one-half percent per month. |
| Postjudgment interest rate | Postjudgment interest should mirror statutory rate applicable to judgments. | Prompt Payment Act governs only pre-judgment; Finance Code governs post-judgment. | Postjudgment interest affirmed at five percent per year. |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for legal sufficiency and resolving conflicts in evidence)
- Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) (factual sufficiency framework for reviewing evidence)
- Panizo v. Young Men’s Christian Association of the Greater Houston Area, 938 S.W.2d 163 (Tex. App.—Houston [1st Dist.] 1996) (presentment under §38.002 requires notice and demand)
- Olympia Marble & Granite v. Mayes, 17 S.W.3d 437 (Tex. App.—Houston [1st Dist.] 2000) (prejudgment interest pleading suffices when within statute)
- Bramlett v. Phillips, 288 S.W.3d 876 (Tex. 2009) (incurably prejudicial jury argument standard)