                             NUMBER 13-08-291-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


MARGARITO TRUJILLO,                                                       Appellant,


                                          v.

BOBBY BURROWS, SR.                                                         Appellee.


                  On appeal from the 206th District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Vela

      This appeal is from a trial court judgment granted in favor of appellee, Bobby

Burrows, Sr., and against appellant, Margarito Trujillo. On appeal, Trujillo raises two

issues, contesting only the award of prejudgment interest. We affirm.
                                     I. BACKGROUND

       The facts of this case are, for the most part, undisputed. Burrows and Trujillo were

friends. Trujillo became aware of an opportunity to buy 38.8 acres of land in Edinburg.

Because he did not have the money to purchase the property, Trujillo approached Burrows

with the idea of purchasing it with him. The parties purchased the property jointly in 1998

for approximately $93,000. It is undisputed that Trujillo negotiated the price and paid

$5,000 in earnest money. Burrows reimbursed Trujillo the $5,000 in earnest money, paid

the entire purchase price and paid all taxes owed on the property and expenses as they

were incurred. In 2007, Trujillo filed suit against Burrows seeking a partition of the property

and a proportionate share of expenditures for the maintenance and care of the property.

Burrows counterclaimed, seeking reimbursement for all sums of money spent on the care,

maintenance, upkeep and preservation of the property. Burrows also sought attorney’s

fees and prejudgment interest.

       Before the case went to trial, the parties agreed to sell the property to a third party

for $5,000,000. They each received $2,500,000 from the sale proceeds. Thereafter, the

parties agreed that Trujillo was not entitled to any reimbursement from Burrows. After a

bench trial, the trial court determined that Trujillo owed Burrows $100,588.60, which was

one-half of the amount Burrows had expended. The trial court also determined that

Burrows was entitled to $17,500 in attorney’s fees, which is not contested. Additionally,

the court ordered prejudgment interest from the date Burrows incurred each of the

individual expenses. The prejudgment interest totaled $54,167.02 with an additional per

diem amount of $22.73 due for each day after January 22, 2008, until execution of the

judgment. The trial court entered judgment accordingly and filed findings of fact and

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conclusions of law.

         Trujillo filed a motion for new trial in which he generally complained that the

judgment erroneously awarded both prejudgment and post-judgment interest. On appeal,

Trujillo challenges only the award of prejudgment interest. By his first issue, Trujillo claims

that “the trial court abused its discretion by awarding prejudgment interest against appellant

because the evidence was legally and factually insufficient to support the award and was

otherwise arbitrary and capricious without reference to applicable rules or guiding

principles.” By his second issue he argues that the trial court erred in awarding nearly ten

years’ of prejudgment interest because he had no notice of a claim for interest prior to the

time Burrow’s filed his counterclaim.

                                    II. APPLICABLE LAW

A. Standard of Review

         We review the trial court's prejudgment interest award under an abuse of discretion

standard.     Wilmer-Hutchins Indep. Sch. Dist. v. Smiley, 97 S.W.3d 702, 706 (Tex.

App.–Dallas 2003, pet. denied). To determine if there was an abuse of discretion, we must

decide if the lower court acted arbitrarily, unreasonably, or without reference to any guiding

rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985).

B. Co-Tenancy

         The parties here were co-tenants. On partition, a co-tenant who expends funds

necessary to protect or preserve the common property is entitled to have those

expenditures charged to the tenants in common according to their pro rata ownership.



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Gonzalez v. Gonzalez, 552 S.W.2d 177, 181 (Tex. Civ. App.–Corpus Christi 1977, writ ref'd

n.r.e.). Expenditures necessary to preserve the common property include those for taxes,

insurance, and repairs. See Duke v. Squibb, 392 S.W.2d 885, 888 (Tex. Civ.

App.–Texarkana 1965, no writ); see also Hill v. Jarvis, No. 12-07-00091, 2008 WL

2571753 at *2 (Tex. App.–Tyler June 30, 2008, pet denied).

C. Prejudgment Interest

       Prejudgment interest is awarded to fully compensate the injured party, not to punish

the defendant. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507,

528 (Tex. 1998); C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 327 (Tex. 1994).

It is considered compensation allowed by law as additional damages for lost use of the

money due between the accrual of the claim and the date of judgment. Johnson &

Higgins, 962 S.W.2d at 528.

       There are two legal sources for an award of prejudgment interest: (1) general

principles of equity, and (2) an enabling statute. Johnson & Higgins, 962 S.W.2d at 528;

de la Garza v. de la Garza, 185 S.W.3d 924, 928 (Tex. App.–Dallas 2006, no pet.). Where

no statute controls the award of prejudgment interest, the decision to award prejudgment

interest is left to the sound discretion of the trial court, which should rely upon equitable

principles and public policy in making this decision. Citizens Nat. Bank v. Allen Rae

Investments, Inc., 142 S.W.3d 459, 487 (Tex. App.–Ft. Worth 2004, no pet.). However,

once the trial court decides to award equitable prejudgment interest, the trial court must

follow the accrual rule set forth in the enabling statute. See Johnson & Higgins, 962

S.W.2d at 531. Under the statutory accrual formula, prejudgment interest begins to accrue



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on the earlier of the 180th day after the date the defendant receives written notice of a

claim or the date the suit is filed. TEX . FIN . CODE ANN . § 304.104 (Vernon 2006); de la

Garza, 185 S.W.3d at 928; see Johnson & Higgins, 962 S.W.2d at 531 (applying former

version of section 304.104).

                                             III. DISCUSSION

     Trujillo first argues that there is no evidence to support the trial court’s decision to

award prejudgment interest.1 Both parties agree that there is no controlling statute, so, if

interest is proper it must be based on principles of equity. The trial court heard evidence

that Burrows paid everything necessary to secure and maintain the property during the nine

years that the parties were co-tenants. This evidence was undisputed. Although Trujillo

paid the initial $5,000 as earnest money, Burrows reimbursed him for that amount. The

parties agreed that they had never discussed or agreed upon any form of prejudgment

interest. However, the law allows prejudgment interest to compensate for the use of

money. Johnson & Higgins, 962 S.W.2d at 528. The evidence was undisputed that all of

the money used for maintenance, upkeep and preservation of the property belonged to

Burrows. We find that the trial court did not abuse its discretion in awarding prejudgment

interest for its use. We overrule Trujillo’s first issue.

        By his second issue Trujillo claims that the trial court erred in its method of

calculating the amount of the award of prejudgment interest. The trial court calculated the

award based upon each payment made by Burrows from the date of payment. Burrows



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        Notably, although Trujillo argues that Burrows is not entitled to prejudgm ent interest because there
was no agreem ent between the parties regarding prejudgm ent interest, he, too, sought recovery for
prejudgm ent interest in his partition lawsuit.

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argues that Trujillo has failed to preserve his complaint on appeal. We agree.

       Trujillo’s motion for new trial complains of the award of prejudgment interest, but

does not complain that its method of calculating the award was improper. In order to

preserve an issue for appellate review, the record must reflect that the issue was brought

to the trial court’s attention by a timely and sufficiently specific request, objection or motion.

TEX . R. APP. P. 33.1(a)(2). During trial, the parties discussed the propriety of awarding

prejudgment interest, but they did not raise how interest would be calculated. The motion

for new trial does not complain of the manner in which the trial court calculated the

prejudgment interest. Further, the court’s docket sheet reflects that no hearing was held

on the motion for new trial. Because Trujillo did not apprise the trial court of the alleged

error that he now complains of, the error was not preserved. Bayer Corp. v. DX Terminals,

Ltd., 214 S.W.3d 586, 611 (Tex. App.–Houston [14th Dist.] 2007, pet. denied); Wolfhart

v. Holloway, 172 S.W.3d 630, 640 (Tex. App.–Houston [14th Dist.] 2005, pet. denied). We

overrule Trujillo’s second issue.

                                       IV. CONCLUSION

       The judgment of the trial court is affirmed.



                                                       ROSE VELA
                                                       Justice


Memorandum Opinion delivered and
filed this 2nd day of April, 2009.




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