Perry D. Felix D/B/A Han's Laser Technology Co. v. Prosperity Bank
01-14-00997-CV
| Tex. App. | Mar 25, 2015Background
- Felix held a deposit account with Prosperity governed by a written deposit agreement that required prompt examination of monthly statements ("reasonable promptness"), with a maximum 30‑day review period and a 60‑day deadline to report unauthorized items; failure to report within 60 days barred claims against the bank.
- Monthly statements disclosed the wire transfers at issue (last appearing on the December 31, 2010 statement). Prosperity provided copies of statements and responded to Felix’s inquiries.
- Felix first identified particular transfers by phone/email in July 2011 and sent letters in September 2011; Prosperity notified Felix that his claims were time‑barred under the deposit agreement.
- Felix sued Prosperity nearly two years later alleging unauthorized wire transfers; Prosperity counterclaimed for breach of the deposit agreement (covenant not to sue) and sought attorneys’ fees.
- The trial court granted summary judgment for Prosperity on all liability issues (dismissing Felix’s claims and ruling Felix breached the agreement) but declined to award attorneys’ fees to Prosperity; Prosperity cross‑appealed that denial.
Issues
| Issue | Plaintiff's Argument (Felix) | Defendant's Argument (Prosperity) | Held (trial court disposition / cross‑appellant position) |
|---|---|---|---|
| Enforceability of the deposit agreement's covenant not to sue | Agreement should not bar Felix’s claims because he timely examined statements or had other grounds | The written contract unambiguously required notice within 30/60 days and Felix failed to satisfy that condition precedent | Trial court found Felix breached the agreement and granted summary judgment for Prosperity on liability |
| Right to recover attorneys’ fees for breach of the deposit agreement | Felix implicitly argues fees are not recoverable or that Prosperity failed to meet statutory/contractual prerequisites | Prosperity contends the covenant not to sue is a contractual right enforceable by contract and Chapter 38, together with the contract, authorizes recovery of attorneys’ fees; Prosperity met presentment and other requirements | Trial court erred (Prosperity’s position): having won on the counterclaim, Prosperity should have been awarded reasonable attorneys’ fees (trial court denied fees) |
| Application of Chapter 38 and measure of damages | Felix disputes that Prosperity incurred recoverable damages/fees proximately caused by breach | Prosperity argues its litigation costs and attorneys’ fees were foreseeable damages caused by Felix’s breach and satisfy § 38.002 requirements | Prosperity asserts it met § 38.002 (presentment, thirty‑day cure, fees proven); trial court declined to award fees despite summary judgment for Prosperity |
| Sufficiency of evidentiary proof of attorneys’ fees | Felix contested reasonableness/necessity/amount of fees or failed to concede them | Prosperity produced uncontroverted affidavits and billing showing reasonable and necessary fees of at least $21,197.52 and sought rendition or remand to fix amount | Prosperity argues the fee proof was clear, direct, uncontroverted and thus mandatory under precedent; trial court nonetheless awarded $0 and Prosperity appeals that denial |
Key Cases Cited
- Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342 (Tex. 2006) (contract interpretation focuses on the parties’ expressed intent in the written agreement)
- Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006) (general rule that attorney’s fees are not recoverable absent statute or contract; analysis of exceptions)
- 1/2 Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378 (Tex. 2011) (Chapter 38 should be construed liberally to effectuate its purposes)
- Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009) (discusses recoverability of attorneys’ fees as damages and proximate causation)
- Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809 (Tex. 2006) (interpretation of statutory prerequisites for fee recovery under Chapter 38)
- Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (uncontroverted attorney testimony can establish fees as a matter of law under narrow conditions)