requiring a plaintiff to elect between damages for fraud, breach of contract, negligent misrepresentation, and DTPA violations because they each related to a single, indivisible injury
How later courts described this case
- requiring a plaintiff to elect between damages for fraud, breach of contract, negligent misrepresentation, and DTPA violations because they each related to a single, indivisible injury
Written by the judges who cited it.
The opinion
COHEN, Justice,
concurring upon Denial of Motion for Rehearing.
Upon original submission, we sustained appellant’s challenge to the trial court’s award of pre-judgment interest. On the *251 authority of Benavidez v. Isles Constr. Co., 726 S.W.2d 23 (Tex.1987), we held that appellee could not recover pre-judgment interest because it did not plead for it. Be-navidez held that a mere prayer for general relief, which notifies of almost nothing, will support an award of statutory or contractual pre-judgment interest, but that a specific prayer is required to support an award of common law pre-judgment interest. Benavidez, 726 S.W.2d at 25 .
But for Benavidez , I would uphold the trial court’s award of common law prejudgment interest. The purpose of pleadings is to give the defendant fair notice of the claim. Tex.R.Civ.P. 45. Even without notice, defendants should expect that plaintiffs will seek pre-judgment interest on every possible basis, including at common law. Moreover, notice that the plaintiff seeks pre-judgment interest will rarely affect the defense of the case.
The recovery of pre-judgment interest does not require any evidentiary proof at trial. It simply requires a mechanical application of the Cavnar formula by the trial court after the verdict has been returned. This being the case, Benavi-dez’ trial amendment could not have caused any surprise or prejudice to Isles Construction Company.
Benavidez, 726 S.W.2d at 26 . Thus, notice after the verdict was held sufficient in Be-navidez.
I would prefer to hold that the failure to plead for pre-judgment interest did not harm appellants for the same reasons that the post-trial amendment in Benavidez caused no harm. This conclusion seems especially appropriate here because the parties stipulated the dates that pre-judgment interest, if recoverable, would begin. In similar circumstances, we have upheld a take-nothing judgment based on unpleaded contributory negligence where the absence of pleadings did not harm the plaintiff. Compare Turner v. Lone Star Industries, Inc., 733 S.W.2d 242, 244 (Tex.App.—Houston [1st Dist.] 1987, writ ref’d n.r.e.).
If notice to the defendant after the jury has reached its verdict is sufficient, as it was in Benavidez , I see no reason for requiring any notice at all, unless there was harm.
Requiring a specific pleading for only one form of pre-judgment interest sets an unnecessary trap for the plaintiff without giving any valuable protection to the normally situated defendant. Moreover, while Tex.R.Civ.P. 301 requires that a judgment conform to the pleadings, that rule should not be mechanically applied to reverse judgments in the absence of harm. See Tex.R.App.P. 81(a) authorizing reversal only for errors that probably caused the rendition of an improper judgment.
Awarding common-law pre-judgment interest without pleadings was not “such a denial of rights of the appellants) as was reasonably calculated to cause and probably did cause the rendition of an improper judgment” Tex.R.App.P. 81(a). Instead, the record reflects that no harmful denial of rights occurred. Nevertheless, I am bound by Benavidez to join the majority in sustaining point of error 10.