BASE-SEAL, INC., Appellant, v. JEFFERSON COUNTY, TEXAS, Appellee.
No. 09-93-344 CV.
Court of Appeals of Texas, Beaumont.
June 22, 1995.
Rehearing Overruled July 13, 1995.
899 S.W.2d 783
But it is also true that, as a specially trained, assigned, and experienced officer, he could be expected to pay scrupulous attention to detail, for he knew that subsequently he would have to find and arrest his vendor. In addition, he knew that his claimed observations would be subject later to close scrutiny and examination at any trial.
Id. at 115, 97 S.Ct. at 2253, 53 L.Ed.2d at 154.
As for the accuracy of Nguyen‘s description of the seller, Detective Mathis was on the scene seconds later and immediately spotted appellant based upon the clothing and physical description provided by Officer Nguyen. Timing is a significant factor here as it would appear from the testimony that Officer Nguyen had only momentarily lost visual contact with appellant before Detective Mathis made visual contact with appellant. This obviously lessened the chances that a mistake as to the identity of the seller of the cocaine would be made by the backup team.
As for Nguyen‘s level of certainty when confronted with the picture, his testimony at trial was that on the day in question he could have identified appellant no matter what appellant had been wearing in the picture. We again mention that the record is silent as to any dispute that the photograph is of appellant. Nguyen repeated his absolute assurance that appellant was the person who sold him the cocaine on the day in question.
Finally, the time between the crime and the presentation of the photograph to Nguyen for identification was testified to by Officer Nguyen as only about fifteen minutes. As was the case in Manson v. Brathwaite, we do not have here the passage of weeks or months between the crime and the viewing of the photograph. In fact, we do not have the passage of hours, but only fifteen minutes or so.
The above indicators of Officer Nguyen‘s ability to make an accurate identification are hardly outweighed by any corrupting effect of the challenged identification. Under the totality of the circumstances, including the significant testimony of Detectives Mathis and Baise, we cannot say that there is a very substantial likelihood of irreparable misidentification. As the Supreme Court concluded in Manson v. Brathwaite:
Short of that point, such evidence is for the jury to weigh. We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.
Id. 432 U.S. at 116, 97 S.Ct. at 2254, 53 L.Ed.2d at 155.
For the above discussed reasons, we overrule appellant‘s single point of error and affirm the judgment and the sentence of the trial court.
AFFIRMED.
Tom Maness, Dist. Atty., Thomas F. Rugg, Asst. Dist. Atty., Beaumont, for appellee.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
STOVER, Justice.
Jefferson County received road surfacing stabilizer worth $8,371 from Base-Seal, Inc., but rejected the invoices for noncompliance with the County Purchasing Act1. Base-Seal sued the County on alternative theories of contract and quantum meruit. Following trial on stipulated facts, Base-Seal recovered a judgment in quantum meruit against Jefferson County. Base-Seal raises two points of error.
Point of error one contends that the trial court abused its discretion by denying any recovery for attorney fees and urges that under Texas statutes and case law the appellee, Jefferson County, is liable for attorney‘s fees. Point of error two avers that the trial court abused its discretion in failing to award prejudgment interest, because under Texas statutes and case law appellant should recover prejudgment interest on its implied contract and quantum meruit judgment. We hold that Jefferson County is not liable for attorney‘s fees or prejudgment interest; we, therefore, overrule appellant‘s points of error one and two and affirm the trial court‘s denial of appellant Base-Seal‘s request for attorney‘s fees and prejudgment interest.
Base-Seal argues in point of error one that an award of attorney‘s fees in a quantum meruit action is authorized by
The general rule in Texas regarding attorney‘s fees is that each litigant must compensate his own attorney. Turner v. Turner, 385 S.W.2d 230, 233 (Tex.1964). Recovery of attorney‘s fees from an opposing party is allowed, however, when a statute or a contract between the parties authorizes such recovery. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex.1967).
The problem for appellant in the instant case is the lack of a contract or statute authorizing recovery of attorney‘s fees. As reflected by the express language in the judgment, there was no valid contract between Jefferson County and Base-Seal for the purchase of the road surfacing stabilizer. Therefore, no attorney‘s fees can be recovered on the basis of contract. As to authorization by statute, Base-Seal alleges that it is entitled to attorney‘s fees under
The other statutory basis alleged by Base-Seal for an award of attorney‘s fees is
The question then arises as to whether
Any person, corporation, partnership, or other legal entity having a valid claim against a person or corporation for services rendered, labor done, material furnished ... may present the same to such persons or corporation or to any duly authorized agent thereof; and if, at the expiration of 30 days thereafter, payment for the just amount owing has not been tendered, the claimant may, if represented by an attorney, also recover, in addition to his claim and costs, a reasonable amount as attorney‘s fees....
The legislature repealed
Pertinent to this case is the change in the wording which identifies those against whom attorney‘s fees can be recovered. The phrase “person or corporation” in
In a well-reasoned opinion, the court in Lake LBJ Mun. Utility Dist. v. Coulson, 839 S.W.2d 880 (Tex.App.---Austin 1992, no writ), discusses at length the change in terminology in
(1) The revised law omits the source law reference [
Art. 2226 ] to a “corporation, partnership, or other legal entity” in the description of a claimant because the Code Construction Act (V.A.C.S. Article 5429b-2) includes those entities in the definition of “person.”(2) The revised law does not use “person” in the reference to an opposing party because the Code Construction Act definition of “person” is broader than the source law [
Art. 2226 ] meaning of the term. (emphasis added)
As the note makes clear,
Because of the broadness of the definition of “person” in the Code Construction Act, the drafters of
In so holding, we decline to follow this Court‘s decision in Wickersham Ford, Inc. v. Orange County, 701 S.W.2d 344 (Tex.App.---Beaumont 1985, no writ), which found Orange County to be both a person and a corporation under
The instant case is to be distinguished from the recent decision in Texas Educ. Agency v. Leeper, 893 S.W.2d 432 (Tex.1994), in which the Texas Supreme Court upheld an award of attorney‘s fees in a declaratory judgment action against a state agency. The Supreme Court in that case settled the controversy between the courts of appeals regarding governmental immunity from liability for attorney‘s fees under the Uniform Declaratory Judgments Act (“Act“) by expressly holding that the “Act” waives governmental immunity for attorney‘s fees. The provision in the “Act” authorizing attorney‘s fees provides that “[i]n any proceeding under this chapter, the court may award costs and reasonable and necessary attorney‘s fees as are equitable and just.”
Unlike Leeper, however, the instant case should not be decided on the basis of governmental immunity. If the case were to require a governmental immunity analysis, the county would, indeed, be liable for attorney‘s fees, because, as appellant points out, the county failed to plead governmental immunity as an affirmative defense. The outcome of the instant case, instead, hinges upon the language in
Whether the doctrine of governmental immunity is involved or not, a fundamental rule of Texas jurisprudence governs the award of attorneys fees: they may not be awarded unless prescribed by statute for the particular kind of case or by an agreement between the parties.
Texas Employment Com‘n v. Camarena, 710 S.W.2d at 670.
In Camarena v. Texas Employment Com‘n, 754 S.W.2d 149, 152, the Supreme Court did find specific statutory authority for recovery of attorney‘s fees under
Base-Seal correctly points out that Jefferson County failed to plead the affirmative defense of sovereign immunity and correctly states that in failing to plead that defense, Jefferson County waived it. Davis v. City of San Antonio, 752 S.W.2d 518, 519 (Tex.1988).
For the reasons discussed above, we overrule point of error one and hold the trial court correctly denied the award of attorney‘s fees to appellant Base-Seal.
Appellant Base-Seal brings forward a second point of error alleging the trial court‘s abuse of discretion in denying appellant prejudgment interest. Prejudgment interest is recoverable in a suit on quantum meruit, provided the measure of recovery is fixed by the conditions existing at the time the injury is inflicted. However, prejudgment interest is not warranted in the instant case. The county was precluded as a matter of law from paying Base-Seal‘s claim, because Base-Seal had failed to comply with the requirements of the County Purchasing Act. Consequently, the county should not be required to pay prejudgment interest on a claim that it could not pay as a matter of law. As the Texarkana court has stated, persons or entities contracting with governmental units are charged by law with notice of the limits of the authority of the governmental unit and are bound at their peril to ascertain if the contemplated contract is properly authorized. City of Bonham v. Southwest Sanitation, Inc., 871 S.W.2d 765, 767 (Tex.App.---Texarkana 1994, writ denied). Base-Seal should not be rewarded for its own failure to comply with the law and, correspondingly, Jefferson County should not be penalized for having followed the requirements of law. Prejudgment interest should not be awarded. Point of error number two is overruled.
The judgment of the trial court is affirmed.
AFFIRMED.
BURGESS, Justice, dissenting.
I respectfully dissent. Although the majority does not use the word “overrule“, that is what they do when they “decline to follow” this Court‘s decision in Wickersham Ford, Inc. v. Orange County, 701 S.W.2d 344 (Tex.App.---Beaumont 1985, no writ). Being the lone remaining member of the court that decided Wickersham Ford, I would continue to follow it.
As the majority correctly notes, prejudgment interest is recoverable in a suit on quantum meruit, provided the measure of recovery is fixed by the conditions existing at the time the injury is inflicted. City of Ingleside v. Stewart, 554 S.W.2d 939, 946-947 (Tex.Civ.App.---Corpus Christi 1977, writ ref‘d n.r.e.). However, the majority then relies upon a contract case from the Texarkana Court as support for the refusal to allow prejudgment interest. The majority faults Base-Seal for “its own failure to comply with the law” yet completely absolves Jefferson County concerning the transaction and ignores the fact that Base-Seal offered to issue a credit if Jefferson County would return nine unused 55-gallon drums. Therefore, from an equitable analysis, neither party ultimately had entirely “clean hands“; yet at the time of the transaction both parties believed it to be proper. It was undisputed that Jefferson County had taken Base-Seal‘s product and used it. In August 1988 Jefferson County knew it was not going to pay for the materials. Base-Seal filed suit in late August 1989 and Jefferson County plead a general denial in September 1989. It was not until October 1992 that Jefferson County filed an amended answer admitting it had received Base-Seal‘s material worth $8,371.00, yet still claiming nothing was owed. Finally in October 1993 Base-Seal received a judgment for the materials; which Jefferson County did not appeal. If anyone is being penalized in this matter it is Base-Seal. Jefferson County, having taken and used the material could have and should have confessed judgment on the quantum meruit issue at the earliest practical time (September or October 1989) and left the attorneys fees and prejudgment interest issues for appeal. If equities are to be