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                                  MEMORANDUM OPINION

                                         No. 04-07-00531-CV

                                            John THOMAS,
                                               Appellant

                                                   v.

                        John GOODMAN d/b/a John Goodman’s Tree Service,
                                         Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                       Trial Court No. 10809
                            Honorable Robert R. Barton, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: July 2, 2008

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           John Thomas appeals the trial court’s judgment ordering him to pay damages and attorney’s

fees to John Goodman d/b/a John Goodman’s Tree Service for breach of contract. In two issues,

Thomas argues that the evidence is legally and factually insufficient to support the jury’s findings.

We affirm the judgment of the trial court in part, reverse the award of attorney’s fees, and remand

the case to the trial court for a new trial on attorney’s fees.
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                                           BACKGROUND

       In September of 2005, Thomas hired Goodman to service the trees located on Thomas’s

ranch in Gillespie County. The parties dispute exactly what services Goodman was hired to

perform. Thomas maintains he hired Goodman to perform ball moss eradication services on his

century-old oak trees. Goodman counters that he was hired to perform trimming, pruning, topping,

removal, and fertilizing of trees as described in a written agreement dated September 18, 2005 and

signed by the parties. The agreement contained a price per tree based on size, but did not contain

a total price. Small trees were priced at $10 per tree, medium trees at $30, and large trees at $50 to

$150; fertilization was $5 per tree and the price of tree removal was to be determined based on the

size of the tree. On Monday, Goodman began work on Thomas’s property and at the end of the

week, Goodman presented Thomas with an invoice totaling $8,940: $4,805 for tree trimming,

pruning, and topping; $550 for tree removal; and $3,585 for tree fertilization. Thomas disputed the

total charge, arguing that not all 717 trees had been fertilized. Thomas asked Goodman to remove

the $3,585 fertilization charge and claims they agreed that Thomas would immediately pay $5,000

to Goodman, as well as an additional $2,500 when the project was completed to Thomas’s

satisfaction. Goodman, however, maintains that he was “coerced” into accepting the $5,000 as a

draw on work performed and promised to return the next Monday to complete the work as directed

by Thomas.

       The following Monday, Goodman returned to the ranch to complete the work; Thomas

claims that Goodman called him later that day and asked that he immediately come to the ranch to

inspect the work and pay the additional $2,500. Thomas claims he was unable to inspect the work

that day, and refused to pay the $2,500 before reviewing Goodman’s work. Thomas further claims

that Goodman then began yelling over the phone and threatened to “drop every tree on the ranch”

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if he did not receive a check that day. According to Goodman, however, Thomas told him he was

not going to pay because “no man is worth more than $10 an hour.” Thomas then stopped payment

on the $5,000 check he had previously paid to Goodman, resulting in an overdraft on Goodman’s

account. Subsequently, Thomas claims that when he returned to the ranch, he discovered that

several trees had open wounds, had not been fertilized, or had not been removed as agreed. He then

paid $5,895.67 to another tree service company to complete the unfinished ball moss eradication

project. In January of 2006, Thomas discovered that Goodman had placed a mechanic’s lien on his

property.

       Thereafter, Goodman sued Thomas, asserting claims for breach of written contract, quantum

meruit, common law fraud, and breach of oral contract, and seeking damages in the amount of

$11,260 as well as attorney’s fees. In response, Thomas pled the affirmative defenses of duress,

estoppel, fraud, and waiver, and also counterclaimed for breach of contract and violation of the

deceptive trade practices act; Thomas also sought remedies related to the “fraudulent” mechanic’s

lien filed by Goodman. The case was tried to a jury, who found that an agreement existed between

Thomas and Goodman and found in favor of Goodman for $11,260. The jury further awarded

attorney’s fees to Goodman in the amount of $26,776.38. Subsequently, Thomas filed a motion for

new trial challenging the legal and factual sufficiency of the evidence to support the jury’s finding

that an agreement existed between the parties and also challenging the sufficiency of the evidence

to support the jury’s award of attorney’s fees because Goodman never presented his claim to

Thomas and because Goodman failed to segregate his attorney’s fees. The trial court denied

Thomas’s motion for new trial.




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       On appeal, Thomas argues that the evidence is legally and factually insufficient to support:

1) the jury’s finding that a contract existed between the parties, and 2) the jury’s award of attorney’s

fees. We will discuss each issue in turn.

                                       STANDARD OF REVIEW

       When an appellant attacks the legal sufficiency of an adverse finding on an issue on which

he did not have the burden of proof, the appellant must demonstrate there is no evidence to support

the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We review the

evidence in the light most favorable to the verdict giving “credit [to] favorable evidence if

reasonable jurors could, and disregard[ing] contrary evidence unless reasonable jurors could not.”

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). If more than a scintilla of evidence

supports the jury’s finding, the no evidence challenge fails. Wal-Mart Stores, Inc. v. Miller, 102

S.W.3d 706, 709 (Tex. 2003). When reviewing a factual sufficiency challenge, we examine the

entire record to determine whether the evidence supporting the finding is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) (per curiam); MG Bldg. Materials, Ltd. v. Moses Lopez Custom

Homes, Inc., 179 S.W.3d 51, 60 (Tex. App.—San Antonio 2005, pet. denied). In conducting this

review, we do not substitute our judgment for that of the jury, as they are the sole judge of the

credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d

at 819, 821.




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                                                   DISCUSSION

Contract

       Thomas contends that the evidence is legally and factually insufficient to support the jury’s

affirmative finding that an agreement existed between him and Goodman.1 Parties enter into a

binding contract when the following elements exist: (1) an offer; (2) an acceptance in strict

compliance with the terms of the offer; (3) a meeting of the minds; (4) each party’s consent to the

terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding.

Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex. App.—San Antonio 1999, pet. denied); Buxani v.

Nussbaum, 940 S.W.2d 350, 352 (Tex. App.—San Antonio 1997, no writ). Thomas contests the

third element, arguing that there was no meeting of the minds with respect to the terms of the

contract because (1) the September 18, 2005 agreement did not contain a final price and (2) there

is a factual dispute as to what services Goodman was hired to perform. When a meeting of the

minds is the only element in dispute, the existence of a contract is a question of fact. Buxani, 940




       1
           The jury charge asked the jury the following relevant questions:

       Question 1:         Did John Goodman d/b/a John Goodman’s Tree Service and John Thomas agree
                           that John Goodman would trim, prune, fertilize, and remove trees on John Thomas’
                           property for a calculable amount?
       Answer:                      Yes.
       Instructions:       To form a valid contract, the parties must have the same understanding of the
                           subject matter of the contract and all its essential terms. To be enforceable, a
                           contract must be reasonably definite and certain.
       Question 2:         Did John Goodman d/b/a John Goodman’s Tree Service fail to comply with the
                           agreement?
       Answer:                      No.
       Question 3:         Did John Thomas fail to comply with the agreement by not paying for the agreed
                           services rendered?
       Answer:                      Yes.
       Question 4:         Was John Thomas’ failure to comply excused?
       Answer:                      No.


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S.W.2d at 352. The determination of whether there is a meeting of the minds is based upon

objective standards of what the parties said and did. Copeland, 3 S.W.3d at 604.

       To create a binding, enforceable agreement, the parties must agree on all the essential terms.

T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); America’s

Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.—San Antonio 1996, writ

denied). It is well established that parties may agree to the material terms of a contract, and leave

other matters open for later negotiation; it is only when an essential term is left open for future

negotiation that no binding contract exists. T.O. Stanley, 847 S.W.2d at 221; Komet v. Graves, 40

S.W.3d 596, 602 (Tex. App.—San Antonio 2001, no pet.).

       There was ample evidence at trial to show that the parties did have a meeting of the minds

on the essential terms of the contract as set forth in the September 18, 2005 written agreement.

Thomas admitted that he agreed with Goodman to enter into a contract for services on a per tree

basis. He also stated he intended to pay Goodman for the work he performed based on the size of

the tree (small, medium, or large) or number of trees to be fertilized. Although the final contract

price was not known by either party at the time the written agreement was signed, that amount was

readily determinable based on the details provided within the written agreement. It is noteworthy

that Thomas initially paid $5,000 to Goodman for work performed under the agreement. Thomas

testified that he later stopped payment on the $5,000 check because Goodman did not complete the

work, not because the contract was invalid or because the final amount owed could not be

determined. Because the essential terms of the contract were mutually agreed upon, and the final

cost could be calculated from known terms, we hold that the contract was sufficiently definite. See

Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000) (stating that a



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contract is legally binding when terms are sufficiently definite to enable court to understand parties’

obligations).

        Thomas also asserts that no meeting of the minds occurred because a factual dispute existed

as to the particular services he hired Goodman to perform. Thomas testified that he hired Goodman

to perform ball moss eradication, yet Goodman testified that he does not perform and is not qualified

to perform ball moss eradication. The September 18, 2005 agreement signed by the parties does not

mention ball moss eradication, but specifies that trees will be trimmed, pruned, topped, removed,

and fertilized. Again, whether a meeting of the minds existed is a question of fact to be determined

by the trier of fact. Buxani, 940 S.W.2d at 352. Here, the jury was free to believe Goodman’s

testimony over Thomas’s, and to find that the parties agreed that the trees would be serviced in

accordance with the terms provided in the September 18, 2005 agreement. See City of Keller,

168 S.W.3d at 819 (a jury confronted with conflicting evidence may choose to believe one witness

and disbelieve others and may resolve inconsistencies in the testimony of any witness). Thus, we

cannot hold that the evidence of a valid contract between Thomas and Goodman was legally

insufficient. Moreover, the evidence supporting the existence of a valid contract was not so against

the great weight and preponderance of the evidence as to be clearly wrong and unjust. Thomas’s

first issue is overruled.

Attorney’s Fees

        Thomas next argues Goodman did not properly present his claim for breach of contract, and

is therefore not entitled to attorney’s fees on that claim under Chapter 38 of the Texas Civil Practice

and Remedies Code. Section 38.001 provides that a person may recover reasonable attorney’s fees

on a claim based on an oral or written contract. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8)

(Vernon 1997). To recover attorney’s fees under section 38.002, the claimant must comply with the

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following requirements: 1) the claimant must be represented by an attorney; 2) the claimant must

present the claim to the opposing party or to a duly authorized agent of the opposing party; and 3)

payment for the just amount owed must not have been tendered within thirty days of presentment.

TEX. CIV. PRAC. & REM. CODE ANN. § 38.002 (Vernon 1997); see Harrison v. Gemdrill Intern., Inc.,

981 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). Presentment of the claim

is required to provide the other party with an opportunity to pay the claim before incurring an

obligation for attorney’s fees. Harrison, 981 S.W.2d at 719; Jones v. Kelley, 614 S.W.2d 95,

100 (Tex. 1981). No particular form of presentment is required, and it may be written or oral.

Harrison, 981 S.W.2d at 719. “[A]ll that is necessary is that a party show that its assertion of a debt

or claim and a request for compliance was made to the opposing party, and the opposing party

refused to pay the claim.” Standard Constructors, Inc. v. Chevron Chem. Co., Inc., 101 S.W.3d 619,

627 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). Here, the record contains a letter dated

December 16, 2005, which was sent by Goodman’s attorney to Thomas demanding payment of

$11,260 for services rendered by Goodman. Accordingly, we hold that the claim for attorney’s fees

was sufficiently presented for purposes of section 38.002.

       We next determine whether Goodman was required to segregate attorney’s fees between his

breach of contract and tort causes of action. In Tony Gullo Motors I, L.P. v. Chapa, the Texas

Supreme Court held that “if any attorney’s fees relate solely to a claim for which such fees are

unrecoverable, a claimant must segregate recoverable from unrecoverable fees.” 212 S.W.3d 299,

313 (Tex. 2006). It is only when legal services advance both recoverable and unrecoverable claims

that the services are so inextricably intertwined that the associated fees need not be segregated.

Id. at 313-14. Thus, the general duty to segregate fees applies, unless a party meets its burden of

establishing that the same discrete legal services were rendered with respect to both a recoverable

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and unrecoverable claim. Chapa, 212 S.W.3d at 314; Hong Kong Development, Inc. v. Nguyen,

229 S.W.3d 415, 455 (Tex. App.—Houston [1st Dist.] 2007, no pet.).                Under Chapa, the

determining factor as to whether fees must be segregated is the type of legal services rendered with

respect to the particular claims, not simply the manner of pleading or the type of claim pled. Chapa,

212 S.W.3d at 313-14.

       The jury awarded Goodman the total amount of fees sought based on two billing statements

detailing the basis for the fees requested by date, time spent, and task accomplished. Several of the

time entries appear clearly unrelated to the breach of contract action, such as drafting pleadings for

common law fraud. Although the fraud claim stems from the same set of facts as the breach of

contract claim, Chapa clarified that intertwined facts alone are insufficient to excuse segregation.

See Chapa, 212 S.W.3d at 313-14 (disavowing prior rule suggesting that a common set of

underlying facts necessarily makes all claims arising therefrom “inseparable” and thus all legal fees

recoverable). Because the jury’s award of attorney’s fees included time spent on matters other than

the breach of contract action, segregation of fees is required. Id.

       Further, Goodman’s attorney provided no testimony that all of the work he performed on

Goodman’s behalf was so “inextricably intertwined” with the breach of contract action that the fees

could not be segregated, nor did he testify regarding what percentage of his time was spent solely

on the breach of contract action. See Nguyen, 229 S.W.3d at 455 (party seeking attorney’s fees bears

burden of demonstrating that exception to duty to segregate fees applies). Because Goodman failed

to present any evidence supporting an exception, segregation of fees is required. Accordingly, the

trial court erred in awarding Goodman attorney’s fees for the total number of hours spent on the

case. On this record, we must reverse the judgment of the trial court as it relates to attorney’s fees

and remand the cause for a new trial on attorney’s fees. See A.G. Edwards & Sons, Inc. v. Beyer,

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235 S.W.3d 704, 710 (Tex. 2007); see also Nguyen, 229 S.W.3d at 455-56 (“When an appellate

court sustains a challenge that attorney’s fees were not properly segregated, the remedy is to sever

that portion of the judgment awarding attorney’s fees and to remand the cause for the issue to be

relitigated.”). On remand, the standard established by the Texas Supreme Court in Chapa for

segregating attorney’s fees will apply. See Chapa, 212 S.W.3d at 313-14.

                                            CONCLUSION

        We affirm the judgment against Thomas awarding Goodman damages in the amount of

$11,260 for breach of contract; we reverse the award of attorney’s fees and remand the cause to the

trial court for recalculation of attorney’s fees.



                                                           Phylis J. Speedlin, Justice




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