451 S.W.3d 916
Tex. App.2014Background
- Genender (and her business Critter Stuff, LLC) bought used shelving from USA Store Fixtures and paid by credit card; she later obtained a chargeback after disputing the charge.
- Store Fixtures sued in justice court seeking the invoice amount and other damages; its pleadings reserved the right to plead orally. The justice court entered a take-nothing judgment for defendants.
- Store Fixtures appealed to county court, amended its petition to assert breach of contract and other claims, and the case proceeded to a de novo jury trial on contract liability, damages, and attorney’s fees.
- The jury found appellants breached the agreement, awarded Store Fixtures $2,303.42 in damages, and awarded attorney’s fees ($38,000 trial; $20,000 appellate; $20,000 Supreme Court contingent).
- On appeal, appellants challenged (1) county court subject-matter jurisdiction (arguing the breach claim was a new ground not pleaded in justice court), (2) legal sufficiency of evidence of breach, and (3) sufficiency of evidence/pleading of presentment required for recovery of attorney’s fees under Tex. Civ. Prac. & Rem. Code § 38.002.
- The court affirmed liability and damages but held Store Fixtures failed to prove presentment of its claim; it modified the judgment to delete all attorney’s-fee awards and affirmed as modified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether county court had jurisdiction to hear breach claim (was it a "new ground of recovery" on appeal from justice court) | Store Fixtures argued it either pleaded breach orally in justice court (reservation to plead orally) or is entitled to presumption that oral plea occurred | Appellants argued breach was not pleaded below and Rule 574a barred a new ground of recovery on appeal | Court held presumption of oral pleading in justice court was unrebutted; county court had jurisdiction — issue overruled |
| Legal sufficiency that appellants breached the sales contract | Store Fixtures argued it delivered goods, appellants accepted them, then failed to pay (chargeback) — buyer’s nonpayment for accepted goods is breach | Appellants argued chargeback under cardholder/merchant agreement showed merchant failed to comply and thus no breach by buyer as a matter of law | Court held evidence was legally sufficient to support jury finding of breach; chargeback did not automatically erase contractual liability — issue overruled |
| Whether obtaining a credit-card chargeback precludes liability to merchant | Store Fixtures: chargeback does not necessarily eliminate buyer’s contract liability; factual ambiguity for jury | Appellants: merchant’s failure to comply with merchant agreement made chargeback outcome dispositive; no breach by buyer | Court rejected argument that chargeback as a matter of law precluded breach; left factual dispute to jury |
| Whether Store Fixtures pleaded and proved presentment (required to recover attorney’s fees) | Store Fixtures argued it showed presentment via invoice/quote, demands during chargeback, discovery responses, and settlement negotiations (oral demand) | Appellants argued no timely written/oral presentment was proven before judgment; post-verdict affidavit of counsel was untimely and improperly considered | Court held Store Fixtures failed to prove presentment; post-verdict affidavit improperly considered; attorney’s-fee award reversed and deleted — issue sustained |
Key Cases Cited
- Gordon v. Zoes, 125 S.W.2d 1049 (Tex. Civ. App.—Galveston 1939) (presumption that written justice-court pleadings were supplemented by oral pleadings)
- Garcia v. Rendon, 59 S.W.2d 881 (Tex. Civ. App.—San Antonio 1933) (same presumption; burden on opponent to show oral plea was not made)
- Roylex, Inc. v. Avco Cmty. Developers, Inc., 559 S.W.2d 833 (Tex. App.—Houston [14th Dist.] 1977) (examples of presentment shown by invoice; presentment generally a fact issue)
- Jones v. Kelley, 614 S.W.2d 95 (Tex. 1981) (presentment is a demand or request for payment or performance)
- Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) (no presentment where no contractual obligation existed at time of demand)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for reviewing legal sufficiency and deference to jury fact findings)
- Helping Hands Home Care, Inc. v. Home Health of Tarrant County, Inc., 393 S.W.3d 492 (Tex. App.—Dallas 2013) (attorney’s-fee award must be reversed if no evidence of presentment)