                          NUMBER 13-13-00004-CV

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


BANK OF AMERICA, N.A.,                                                    Appellant,

                                           v.

DWIGHT EISENHAUER, INDIVIDUALLY AND
AS INDEPENDENT EXECUTOR OF THE ESTATE
OF LORENE BELCHER WALTER, DECEASED,                                        Appellee.


               On appeal from the County Court at Law No. 1
                        of Nueces County, Texas.


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez
      This is a breach of contract case. By five issues, appellant Bank of America, N.A.,

contends: (1) the trial court erred by rendering judgment notwithstanding the verdict for
appellee Dwight Eisenhauer, as executor of the estate of Lorene Belcher Walter,

deceased (Eisenhauer), and awarding him damages; (2) the trial court erred by awarding

Eisenhauer his attorney’s fees; (3) the jury’s finding that Bank of America’s failure to

comply with the Deposit Agreement1 was not excused was against the great weight and

preponderance of the evidence; (4) the trial court erred by refusing to submit a jury

question on ratification; and (5) the jury’s finding that Eisenhauer did not fail to comply

with the Deposit Agreement was against the great weight and preponderance of the

evidence. We affirm.

                                        I.      BACKGROUND

       Relevant facts, as set out in Bank of America, N.A. v. Dwight Eisenhauer, follow:

               In June 2003, Lorene and her husband, H.W., renewed a certificate
       of deposit (the Walter CD) account at Bank of America. The certificate was
       titled “H. W. Walter and Lorene Walter ITF Jo Ann Day and Dwight
       Eisenhauer.”[ 2 ] H.W. died in June 2004. Lorene, as co-owner of the
       Walter CD and the surviving spouse, became the sole owner of the [Deposit
       Agreement]. Upon the death of Lorene, any remaining sums were to be
       paid in equal shares to Day and [Dwight] Eisenhauer.

               On July 16, 2004, Day, a long-time employee of [Dwight] Eisenhauer
       and co-executor with [Dwight] Eisenhauer of H.W.’s estate, presented
       H.W.’s death certificate to Bank of America. Day requested that Bank of
       America’s employee, Joyce Sheen, distribute funds from the [Deposit
       Agreement] to Day and [Dwight] Eisenhauer even though Lorene was still
       alive. Sheen complied with Day’s request and issued a cashier’s check in
       the amount of $27,497.67 to Day. A second cashier’s check in an equal
       amount was issued and mailed to [Dwight] Eisenhauer. At Day’s request,
       Sheen closed the [Deposit Agreement]. Bank of America acknowledges
       that it made an error when it distributed these funds to [Dwight] Eisenhauer
       and Day. [Dwight] Eisenhauer returned the check issued to him and,
       pursuant to his power of attorney, opened a new account in Lorene’s name

       1   We also refer to the Deposit Agreement as the Account or the Walter CD.

       2  According to Bank of America’s Deposit Agreement and Disclosures Brochure, the account
designation ITF (in-trust-for) could be used interchangeably with POD (payable on death).
                                                   2
with himself as the only beneficiary. [Dwight] Eisenhauer deposited his
check into that account.

On August 27, 2004, Beverly Wynone Belcher Ringland was appointed
temporary guardian of the person and the estate of Lorene, and her
appointment was continued and confirmed on October 22, 2004. On or
about February 2, 2005, Ringland delivered a document to Bank of America,
which recited the following: (1) the Walter CD designated Day and [Dwight]
Eisenhauer as payable-on-death beneficiaries; (2) H.W. died on June 20,
2004; (3) Bank of America mistakenly permitted Day to withdraw funds from
the Walter CD account and distributed, in error, the proceeds in equal
shares to Day and [Dwight] Eisenhauer; (4) [Dwight] Eisenhauer returned
his distribution to Bank of America; (5) Day retained her distribution despite
Bank of America's demands; (5) Ringland was appointed guardian of the
person and estate of Lorene; and (6) “Ringland, in her fiduciary capacity as
guardian for [Lorene], desires that Day retain the funds received by her and
that [Bank of America] withdraw its demand on Day to return funds to the
Account.” In addition to the above recitals, the Ringland document
contained the following paragraph titled “Agreement”:

       Therefore, in consideration of forbearance from recovery
       efforts by the Bank against Day, Ringland, in her fiduciary
       capacity as guardian for Walter, agrees to indemnify, defend,
       protect, and hold Bank of America harmless from and against
       any and all claims, demands, losses, costs, expenses,
       obligations, liabilities, and damages, including reasonable
       attorney's fees and costs, that Bank of America may incur or
       suffer in connection with or resulting from the Withdrawal.

      Following receipt of this document, Bank of America returned the
$5,000 check to Day's attorney and took no further actions to collect the
money from Day.

       On March 7, 2005, [Dwight] Eisenhauer replaced Ringland as court-
appointed guardian for Lorene's person and estate. Lorene died on May
2, 2005, and on May 25, 2005, [Dwight] Eisenhauer became independent
executor of Lorene’s estate. Eisenhauer[, in his individual capacity and as
executor of Lorene’s estate], filed suit against Bank of America on
September 13, 2005, asserting claims for breach of contract, violation of
state [probate] law, negligence, gross negligence, and breach of fiduciary
duty; Eisenhauer requested actual damages, punitive damages, and
attorney’s fees. In his petition, Eisenhauer alleged that one of the assets
of Lorene’s estate “was a cause of action against Bank of America for
wrongfully, illegally and negligently closing the Walter CD . . . and wrongfully
                                       3
       and illegally paying one-half of such funds to a third party not entitled to
       such funds.

No. 13-09-00004-CV, 2010 WL 2784031, at *1–2 (Tex. App.—Corpus Christi July 15,

2010, no pet.) (mem. op.) (footnotes omitted). “Each party filed a motion for traditional

and no-evidence summary judgment. The trial court granted Eisenhauer's motion and

denied Bank of America's motion.” Id. at *1. A jury awarded Eisenhauer attorney’s fees.

Id. at *1. Following Bank of America’s appeal of the summary judgments entered in favor

of Eisenhauer and the award of attorney’s fees, this Court reversed and rendered

judgment in favor of Bank of America on all of Eisenhauer’s claims in his individual

capacity and on his negligence, gross negligence, and breach of fiduciary duty claims in

his executor capacity. See id. at *9–10. We reversed and remanded the trial court’s

summary judgment awarding Eisenhauer, as independent executor of Mrs. Walter’s

estate, damages for breach of contract. Id. at *10. We also reversed and remanded

the award of attorney’s fees and court costs. Id. at *10.

       On remand, Eisenhauer, as independent executor of Mrs. Walter’s estate, tried the

sole remaining claim, breach of contract, to a jury. The jury found that Bank of America

failed to comply with the Deposit Agreement and that its actions were not excused. The

jury also found that zero damages “would fairly and reasonably compensate the Estate

of Lorene Belcher Walter for its damages, if any, that resulted from [Bank of America]’s

failure to comply.” The jury awarded $47,340 to Eisenhauer’s attorneys for preparation

and trial.

       Eisenhauer filed a motion for judgment notwithstanding the verdict, contending that

there was no evidence to support the jury’s zero damage finding and that the evidence
                                            4
conclusively established $27,497.67 in damages. The trial court granted Eisenhauer’s

motion and rendered judgment for Eisenhauer in the amount of $84,251.47.              That

amount included actual damages of $27,497.67, prejudgment interest of $9,413.80, and

attorney’s fees of $47,340.00. Bank of America appealed from this judgment.

                                  II.    JURY FINDINGS

       We begin our review by addressing the following jury findings:         (1) Bank of

America failed to comply with the Deposit Agreement (Question 1A); (2) Bank of

America’s failure to comply was not excused (Question 1B), and (3) Mrs. Walter and

Eisenhauer did not fail to comply with the Deposit Agreement (Question 1C).

A.     Bank of America’s Failure to Comply

       First, the jury found that Bank of America failed to comply with the Deposit

Agreement. Bank of America did not challenge this finding in the trial court. On appeal,

Bank of America acknowledges that it “incorrectly issued two cashier’s checks contrary

to its agreement with Mrs. Walter,” remaining “indebted to Mrs. Walter for the correct

Account balance.” It concedes that it “has never disputed its payments [made before

Mrs. Walter’s death] were premature and, therefore, inconsistent with the terms of Mrs.

Walter’s Deposit Agreement.”      And during oral argument, Bank of America again

informed this Court that it never contested the jury’s finding that Bank of America failed

to comply with the agreement it had with the decedent. In other words, Bank of America

does not dispute the jury’s finding that it failed to comply with the Deposit Agreement.

B.     Bank of America’s Failure to Comply Was Not Excused and Mrs. Walter and
       Eisenhauer Complied With the Deposit Agreement

       The jury also found that Bank of America’s failure to comply with the Deposit
                                            5
Agreement was not excused (Question 1B) and that neither Mrs. Walter nor Eisenhauer

failed to comply with the Deposit Agreement (Question 1C). By its third and fifth issues,

Bank of America challenges these jury findings, contending that these findings are against

the great weight and preponderance of the evidence. Relevant as to the jury’s response

to question 1B, Bank of America argues, “Bank of America pled and conclusively proved

that the account holder accepted a different performance as full satisfaction of the original

obligation.” As to the jury’s response to question 1C, the Bank asserts that the “plaintiff

failed to come forward with evidence that she complied with the contractual condition

precedent of providing timely written notice of the unauthorized transaction.” By this

language, Bank of America is bringing factual-sufficiency issues. Yet Bank of America

did not file a motion for new trial addressing these jury findings. The filing of such a

motion is a prerequisite for bringing a factual sufficiency challenge on appeal. TEX. R.

CIV. P. 324(b)(2) & (3). Because Bank of America did not file a motion for new trial, it

has not preserved these complaints for our review. See id.; Roberson v. Collins, 221

S.W.3d 239, 242 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (concluding that because

Roberson did not file a motion for new trial, he waived his factual sufficiency issues); see

also In re T.N.C., No. 13-11-00305-CV, 2011 WL 5282679, at *12 (Tex. App.—Corpus

Christi Nov. 3, 2011, no pet.) (mem. op.) (same).         In addition, the legal-sufficiency

challenges Bank of America raises in its reply brief are not preserved because Bank of

America did not challenge these issues in the trial court by way of (1) a motion for

instructed verdict, (2) an objection to the submission of a jury question, (3) a motion for

judgment notwithstanding the verdict, (4) a motion to disregard the jury’s answer to a vital

                                             6
fact question, or (5) a motion for new trial. See Cecil v. Smith, 804 S.W.2d 509, 510–11

(Tex. 1991). We overrule Bank of America’s third and fifth issues.

        II.    BANK OF AMERICA’S PROPOSED CHARGE QUESTION ON RATIFICATION

       In its fourth issue, Bank of America asserts that the trial court abused its discretion

when it refused to submit its tendered jury question on ratification and that this error

caused it to suffer harm.

A.     Applicable Law and Standard of Review

       When a properly requested question is raised by the pleadings and evidence and

is necessary to enable the jury to render a proper verdict, the trial court must submit the

question. Id.; see TEX. R. CIV. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162,

166 (Tex. 2002); Halmos v. Bombardier Aerospace Corp. 314 S.W.3d 606, 617 (Tex.

App.—Dallas 2010, no pet.). “We review the trial court's decision to submit [or refuse to

submit] a particular question for an abuse of discretion.” See Park N. Serv. Ctr., L.P. v.

Applied Circuit Tech., Inc., 338 S.W.3d 719, 721 (Tex. App.—Dallas 2011, no pet.).

B.     Discussion

       Bank of America pleaded ratification as an affirmative defense in its third amended

answer. See Land Title Co. of Dallas, Inc. v. F. M. Stigler, Inc., 609 S.W.2d 754, 756

(Tex. 1980) (defining “ratification” as “a plea in avoidance and thus an affirmative

defense”); see also TEX. R. CIV. P. 94; Martinez v. Castaneda, No. 13-08-00664-CV, 2010

WL 2891582, at *5 (Tex. App.—Corpus Christi July 22, 2010, no pet.) (mem. op.). Bank

of America contends that it “put on evidence that [Ringland] instructed Bank of America

to cease efforts to recover the premature distribution.” In support of its contention, Bank

                                              7
of America provides this Court with the record citation for defense exhibit 2, the “Indemnity

Agreement” signed by Ringland.

        Bank of America tendered the following jury question and definition/instruction on

ratification:

              Did Lorene Belcher Walter or her representative ratify Bank of
        America’s payment to Jo Ann Day?

        ANSWER “Yes” or “No”
        Answer:  ___________

                                     Definition/Instruction

                 Ratification occurs when the Plaintiff, after learning all the material
        facts, confirms or adopts an earlier act that did not then legally bind it and
        that it could have repudiated. See City of The Colony, 272 S.W.3d at 732.

        Ratification may be express or implied.

        Implied ratification occurs if a party, though he may have bee[n] unaware of
        unauthorized conduct taken on his behalf at the time it occurred, retains the
        benefit of the transaction involving the unauthorized conduct after he
        acquired full knowledge of the unauthorized conduct. Implied ratification
        results in the ratification of the entire transaction. PJC 101.5

The trial court denied submission of this question and definition/instruction. However,

the trial court allowed Bank of America to argue its defensive theory of excuse and

submitted Question 1B, “Was BOA’s failure to comply excused?” with the following

instructions:

               A failure to comply is excused if a different performance was
        accepted by the account holder as full satisfaction of performance of the
        original obligations of the agreement.

              A failure to comply by BOA is also excused if, the following
        circumstances occurred:


                                               8
       Plaintiff

               a.        By words or conduct made a false representation or
                         concealed material facts, and

               b.        With knowledge of the facts or with knowledge or information
                         that would lead a reasonable person to discover the facts, and

               c.        With the intention that BOA would rely on the false
                         representation or concealment in acting or deciding not to act;
                         and

       BOA

                   a.    did not know and had no means of knowing the real facts and

                   b.    relied to its detriment on the false representation or
                         concealment of material facts.

Rejecting Bank of America’s excuse defense, the jury answered, “No.”

       Bank of America recognizes that, in this case, ratification relates to the legal

concept of excuse. The trial court presented the defensive theory of excuse to the jury

in Question 1B.         And the evidence regarding Ringland’s actions and the indemnity

agreement upon which Bank of America relies for its ratification defense relates to

“performance” as set out in the instructions provided in Question 1B. That evidence was

before the jury, and it chose to disregard it. We conclude that the trial court did not abuse

its discretion when it refused to submit a ratification question because it was not

necessary to enable the jury to render a proper verdict. See Park N. Serv. Ctr., 338

S.W.3d at 721; see also TEX. R. CIV. P. 278. We overrule this fourth issue.

                                         III.   DAMAGES

       By its first issue, Bank of America contends that the trial court erred when it

rendered judgment notwithstanding the verdict for Eisenhauer and awarded him damages
                                                9
because (1) the estate had no interest in the Deposit Agreement at the time suit was filed;

(2) the jury’s finding of “$0” in contract damages was supported by evidence; and (3) there

was no evidence of compensable damage to the estate. Eisenhauer responds that the

trial court did not err because: (1) Mrs. Walter made a demand for the money and Bank

of America denied that demand during her lifetime; (2) there was no legally probative

evidence to support the jury’s zero damage finding; and (3) the evidence established

damages as a matter of law to Mrs. Walter’s estate. We agree with Eisenhauer.

A.     Applicable Law and Standard of Review

       A trial court should grant a motion for judgment notwithstanding the verdict when

the evidence is conclusive and the movant “is entitled to recover as a matter of law or

when a legal principle precludes recovery,” B&W Supply, Inc. v. Beckman, 305 S.W.3d

10, 15 (Tex. App.—Houston [1st Dist.] 2009, pet. denied), or "when the evidence is

insufficient to raise a material fact issue.” Playoff Corp. v. Blackwell, 300 S.W.3d 451,

454 (Tex. App.—Fort Worth 2009, pet. denied) (op. on reh’g). The trial court may render

judgment notwithstanding the verdict if a directed verdict would have been proper and

may “disregard any jury finding on a question that has no support in the evidence.” TEX.

R. CIV. P. 301.

       We review a trial court’s ruling on a judgment notwithstanding the verdict under a

no-evidence standard of review. Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d

828, 830 (Tex. 2009).     “The standard for reviewing a judgment notwithstanding the

verdict, like all other motions rendering judgment as a matter of law, requires a reviewing

court to credit evidence favoring the jury verdict if reasonable jurors could, and disregard

                                            10
contrary evidence unless reasonable jurors could not.” Cent. Ready Mix Concrete Co.

v. Islas, 228 S.W.3d 649, 651 (Tex. 2007) (citing City of Keller v. Wilson, 168 S.W.3d 802,

823, 827 (Tex. 2005)). We will affirm the judgment if there is no evidence to support the

finding or if evidence establishes the contrary as a matter of law. B&W Supply, 305

S.W.3d at 15; see Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).

B.    Discussion

      Bank of America acknowledges that it incorrectly issued two cashier’s checks

contrary to its general Deposit Agreement with Mrs. Walter. But relying on FDIC v. Lenk,

Bank of America claims that, although it made premature payments that were inconsistent

with the terms of the agreement, it did not breach the Deposit Agreement because there

is no evidence that Mrs. Walter demanded return of the money or that Bank of America

refused such a demand prior to Mrs. Walter’s death. See 361 S.W.3d 602, 607 (Tex.

2012) (citing Hodge v. N. Trust Bank of Tex., N.A., 54 S.W.3d 518, 525–26 (Tex. App.—

Eastland 2001, pet. denied)) (“While a bank’s wrongful payment of a general deposit does

not breach the deposit agreement, a bank’s refusal to pay such funds to the rightful

account holder will.”). Bank of America contends that its actual breach occurred only

after Mrs. Walter’s death when Eisenhauer made the “first and only written demand to

Bank of America for $27,498.67” and it refused to honor the demand. See id. (citing

Hodge, 54 S.W.3d at 525–26). Bank of America reasons that because the actual breach

occurred after the ownership of the Deposit Agreement had passed to the payable-on-

death beneficiaries, the jury’s zero answer to the damages question was “factually

correct.” Bank of America claims that the record conclusively establishes that neither

                                            11
Mrs. Walter nor Eisenhauer made a demand that Bank of America refused until after Mrs.

Walter died; thus, zero damages was established as a matter of law. We disagree.

      Assuming that the nature of the Deposit Agreement is a general deposit account,

while Bank of America’s wrongful payment of that account may not have breached the

Deposit Agreement, its refusal to pay such funds to the rightful account holder did. See

id. at 606–07. It is undisputed that Bank of America gave the money to Day on July 16,

2004. And the following undisputed evidence establishes that on July 22, 2004, before

Mrs. Walter’s May 5, 2005 death, Eisenhauer asked for its return:

     Q.                   Did you give any direction to the bank as to what you
                          expected to happen with the $27,000 that had been paid
                          to Ms. Day?

     A [Eisenhauer].      Yes. On Thursday morning, I went in and talked to
                          Joyce Sheen first for about 15 minutes with the checks
                          and then we went in together to Michael Harrison’s
                          office and explained the whole thing to him, and it
                          was—it was pretty traumatic, but we got it all out, and
                          I—and I said, you know, we need to get—you need to
                          get the money—the other half back in because it’s all
                          Mrs. Walter’s money. It’s not—it should not have ever
                          been distributed. And Mr. Harrison’s remarks were
                          along the line of no problem. This—it’s an error. It’s
                          a mistake. We will make Mrs. Walter whole. We will
                          return the money with interest. Don’t worry about it.

And as established by the following, Eisenhauer continued to pursue his request for the

return of the money:

     Q.                    And did you continue to receive assurances like that in
                           the months to come?

     A [Eisenhauer].       In the months to come about seven months worth of
                           months to come, I reasonably regularly stopped in at
                           the bank, talked to Michael, and said, “Okay. What’s
                           the deal? What’s happened?” And he continually
                                          12
                              reassured me that everything was fine that it was under
                              investigation by Ms. Brenda King’s department; and as
                              soon as they had it all figured out, they would take care
                              of it. Don’t worry about it.

     Q.                       Did—

     A.                       I worried about it.

Importantly, the following testimony further establishes that, in February 2005, again

before Mrs. Walter died on May 5, 2005, Bank of America told Eisenhauer that it had

denied Mrs. Walter’s claim:

      Q.                      At some point did you determine that the money wasn’t
                              going to be paid back without looking to an attorney or
                              doing something else?

      A [Eisenhauer].         In the month of February, which is about seven months
                              after this all started, I made a stop by the bank, talked
                              to Mr. Harrison, and I still remember it. Michael came
                              out and he says, “I can’t talk to you.” I said, “Whoa,
                              whoa, whoa. What’s going on?” And he said, “I can’t
                              talk to you about this.” And I said, “Why?” He said,
                              “Well, they have”—“the powers that be,” or something
                              like that—“have determined that they are not going to
                              return the money,” and I said, “What do I do now?” I
                              said, “Who do I talk to?” And he, in fact, gave me the
                              name and number of—gosh the paralegal in Phoenix.

      This undisputed evidence establishes that Eisenhauer made a demand and that

Bank of America refused it prior to Mrs. Walter’s death, establishing that Bank of America

breached the Deposit Agreement before her death and that Eisenhauer is entitled to

recover damages as a matter of law. See B&W Supply, 305 S.W.3d at 15. Given the

above testimony demonstrating both demand and refusal prior to Mrs. Walter’s death,

Mrs. Walter’s cause of action against Bank of America accrued before her death. See

Lenk, 261 S.W.3d at 607 (citing Hodge, 54 S.W.3d at 525–26) (“[A]s a general matter, a
                                               13
bank’s refusal to pay funds on a customer’s demand commences the accrual of a

demand-based cause of action.”).          Mrs. Walter was damaged in the amount of

$27,497.67 because that is the undisputed amount that was given to Day when Bank of

America failed to comply with the Deposit Agreement. We conclude that the trial court

correctly disregarded the jury’s zero damage finding that had no support in the evidence.

See TEX. R. CIV. P. 301. A reasonable juror could not have disregarded this contrary

evidence. See Cent. Ready Mix Concrete Co., 228 S.W.3d at 651 (citing City of Keller,

168 S.W.3d at 823, 827).

       Under our no-evidence standard of review, we conclude that the trial court did not

err in granting Eisenhauer’s motion for judgment notwithstanding the verdict. See B&W

Supply, Inc., 305 S.W.3d at 15; Tanner, 289 S.W.3d at 830. We overrule Bank of

America’s first issue.

                   IV.    ATTORNEY’S FEES AND PREJUDGMENT INTEREST

       By its second issue, Bank of America challenges the trial court’s award to

Eisenhauer of $47,340 in attorney’s fees as found by the jury in response to Question 3.

Bank of America argues “[w]ithout proof of damages Eisenhauer is not entitled to recover

attorneys’ fees.” See Green Int’l v. Solis, 951 S.W.2d 384, 390 (Tex. 1997) (“To recover

attorney's fees under Section 38.001, a party must (1) prevail on a cause of action for

which attorney's fees are recoverable, and (2) recover damages.”); see also TEX. CIV.

PRAC. & REM. CODE ANN. § 38.001 (West, Westlaw through 2013 3d C.S.) (providing that

a party “may recover reasonable attorney’s fees from an individual or corporation, in

addition to the amount of a valid claim and costs, if the claim is for . . . an oral or written

                                              14
contract.”). We agree that when a party fails to recover damages on his breach of

contract claim, he is not entitled to recover attorney’s fees under section 38.001. See

Green Int’l, 951 S.W.3d at 390. However, in this case, we have concluded that the trial

court correctly awarded Eisenhauer $27,497.67 on his breach of contract claim. So with

proof of damages Eisenhauer is entitled to his attorney’s fees under Chapter 38. See

TEX. CIV. PRAC. & REM. CODE ANN. § 38.001.

       Bank of America also urges that the jury’s finding of $47,340 for attorney’s fees is

against the great weight and preponderance of the evidence because the contract sued

upon included a waiver of attorney’s fees. However, Bank of America did not file a

motion for new trial, which is a prerequisite for preserving a factual sufficiency issue. See

TEX. R. CIV. P. 324(b)(2) & (3); Roberson, 221 S.W.3d at 242; see also In re T.N.C., 2011

WL 5282679, at *12. Because Bank of America did not preserve this argument for our

review, we do not consider it. See TEX. R. APP. P. 33.1.

       In addition, by a sub-issue, Bank of America challenges the trial court’s award of

“prejudgment interest on the $27,497.67 at the rate of five percent (5%) simple interest

from September 13, 2005, the date this suit was filed, to July 18, 2012.” “Prejudgment

interest is an appropriate element of damages for a prevailing party.” Sears, Roebuck &

Co. v. Abell, 157 S.W.3d 886, 896 (Tex. App.—El Paso 2005, pet. denied). In this case,

Bank of America was obligated to pay prejudgment interest on the damages awarded to

Eisenhauer—the basis for the trial court’s award of prejudgment interest.

       On appeal, Bank of America argues that Eisenhauer did not attempt to prove any

particular rate of interest or any specific amount of interest, but Eisenhauer is under no

                                             15
burden to prove up a prejudgment interest rate. See TEX. FIN. CODE ANN. § 304.003

(West, Westlaw through 2013 3d C.S.) (providing for statutory postjudgment interest);

Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.

1998) (explaining that although section 304.003 expressly applies to postjudgment

interest rates, prejudgment interest is computed at the same rate set by statute for

postjudgment interest). And Bank of America offered no objection in the trial court as to

the amount of prejudgment interest awarded or the manner in which the trial court

calculated the prejudgment interest. “A complaint regarding the award of pre[]judgment

interest must be preserved in the trial court by a motion to amend or correct the judgment

or by a motion for new trial.” Morton v. Hung Nguyen, 369 S.W.3d 659, 677 (Tex. App.—

Houston [14th Dist.] 2012), rev’d in part on other grounds sub nom. Morton v. Nguyen,

412 S.W.3d 506 (Tex. 2013); see Ins. Network of Tex. v. Kloesel, 266 S.W.3d 456, 484

(Tex. App.—Corpus Christi 2008, pet. denied) (“Though a complaint regarding

prejudgment interest must typically be preserved in the trial court through either a motion

to amend or correct the judgment or by a motion for new trial, we find that the Kloesels

have preserved their complaint as a result of the trial court implicitly overruling their

proposed prejudgment interest award.”). Bank of America failed to object to the trial

court regarding the award of prejudgment interest, and such failure waived this issue for

appellate review. See Morton, 359 S.W.3d at 677; see also TEX. R. APP. P. 33.1(a)(1).

       Accordingly, we overrule Bank of America’s second issue challenging the award

of attorney’s fees and its sub-issue challenging the award of prejudgment interest.




                                            16
                                  IV.     CONCLUSION

      We affirm the judgment of the trial court.



                                                       NELDA V. RODRIGUEZ
                                                       Justice

Delivered and filed the
15th day of May, 2014.




                                           17
