PRESENTMENT OF CLAIM AS CONDITION PRECEDENT FOR AWARD OF ATTORNEY’S FEES UNDER CHAPTER 38 OF THE CPRC
A party who prevails on a breach of contract claim may recover reasonable attorney's fees for prosecution of that claim. See id. § 38.001(8). One prerequisite to recovering attorney's fees under chapter 38 is presentment of the underlying claim to the opposing party or its agent. Id. § 38.002(2).
The purpose of the presentment requirement is to allow the person against whom the claim is asserted an opportunity to pay a claim within thirty days of receiving notice of the claim without incurring an obligation for attorney's fees. See Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981).
Presentment requires no particular form; all that is necessary is an assertion of a debt or claim, a request for payment, and the opposing party's refusal to pay. Id.; Standard Constructors, Inc. v. Chevron Chem. Co., 101 S.W.3d 619, 627 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).
“When the question of attorney's fees is submitted to the court, the court may consider the entire case file to determine whether presentment was made.” Bethel v. Norman Furniture Co., 756 S.W.2d 6, 8 (Tex. App.-Houston [1st Dist.] 1988, no writ) (citing Carrington v. Hart, 703 S.W.2d 814, 818 (Tex. App.-Austin 1988, no writ)); see also Tex. Civ. Prac. & Rem. Code Ann. § 38.004(1).
The claimant bears the burden to plead and prove presentment of its contract claim and that the party failed to tender performance. See Ellis v. Waldrop, 656 S.W.2d 902, 905 (Tex. 1983) (op. on reh'g). “But when a claimant avers in its petition that all conditions precedent to recovery have occurred or have been performed, it is required to prove only those conditions precedent that have specifically been denied by the opposing party.” 270 S.W.3d 759, 768 (Tex. App.-Dallas 2008, pet. denied) (citing Tex. R. Civ. P. 54); see also Belew v. Rector, 202 S.W.3d 849, 857 (Tex. App.-Eastland 2006, no pet.).
SOURCE: Dallas Court of Appeals 05-09-00884-CV 4/20/11