Opinion issued June 12, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00022-CV

____________

KIMBERLY KINSEY, Appellant

V.

MARTIN GREGORY REPINECZ, Appellee

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause No. 2000-43444

MEMORANDUM OPINION

          Appellant, Kimberly Kinsey, challenges the judgment notwithstanding the verdict (JNOV) awarded by the trial court after a jury found that appellee, Martin Gregory Repinecz, her employer, breached a contract to reimburse her medical expenses. In three points of error, Kinsey contends that the trial court erred (1) in holding that the contract was not supported by consideration, (2) in refusing to reform the jury’s attorneys’ fees verdict, and (3) in holding that Repinecz did not timely and purposely plead the lack of consideration affirmative defense. We affirm.

Background

          Kinsey was employed in Repinecz’s podiatry office. On November 22, 1999, Kinsey’s skin was punctured by a needle that was contaminated with human blood. Repinecz gave Kinsey an oral and written promise to pay for all blood tests and other medical procedures and treatments related to her injury.

          In May 2000, Kinsey presented Repinecz with a $5,500 medical bill for treatment related to her pin prick. Repinecz refused to pay.  

          Kinsey sued Repinecz for negligence, gross negligence, intentional infliction of emotional distress, and breach of contract. A jury found Repinecz negligent and awarded Kinsey $2,200 for past medical expenses. The jury also awarded Kinsey $100 for past lost earning capacity resulting from a reasonable fear of contracting HIV or AIDS before it became reasonably probable that she would not contract HIV or AIDS. Although the jury found that the parties had agreed that Repinecz would pay for Kinsey’s medical testing and reasonable medical costs, and that Repinecz had failed to comply with the agreement, they, nonetheless, awarded nothing for breach of contract. Finally, the jury awarded Kinsey $1000 for reasonable and necessary attorneys’ fees for preparation and trial.

          Repinecz filed a motion for JNOV, alleging that there was no evidence of consideration and that it was therefore improper for the trial court to have submitted a jury question on breach of contract. Furthermore, Repinecz contended that, because the jury awarded no damages for the breach of contract, Kinsey was not entitled to attorneys’ fees. The trial court agreed and granted the motion. The judgment awarded Kinsey $2300 in damages in addition to pre-judgment interest and taxable court costs.

          Kinsey appeals the JNOV. She does not, however, appeal the jury’s decision to award nothing for breach of contract.

Breach of Contract

          In points of error one and two, Kinsey contends that the trial court erred in holding that the contract was not supported by consideration because “the contract was unilateral and supported by adequate consideration, reliance, and performance” and because the affirmative defense of no consideration was untimely and improperly pled.

          Because Kinsey did not appeal the jury’s decision to award her no damages for her breach of contract claim, we need not determine the propriety of the trial court’s rulings on consideration. Kinsey cannot prevail on a breach of contract claim absent a finding of damages. See Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex. App.—Houston [14th Dist.] 2000, no pet.).

          We overrule points of error one and two.

Attorneys’ Fees

          In point of error three, Kinsey contends that the trial court erred in refusing to reform the jury’s verdict on attorneys’ fees based on Kinsey’s clear, direct, and uncontroverted evidence relating to attorneys’ fees.

          Attorneys’ fees must be authorized by statute or contract; the common law does not provide a right to recover attorneys’ fees. Hill v. Heritage Res., Inc., 964 S.W.2d 89, 143 (Tex. App.—El Paso 1997, pet. denied). If a case involves more than one claim, fees may be recovered only for those claims falling within the statute or contract. Id.

          Here, there was no contractual right to attorneys’ fees; therefore, we must determine whether there is a statutory right. Section 38.001 of the Civil Practice and Remedies Code delineates which claims entitle a person to recover attorneys’ fees. Tex. Civ. Prac. & Rem. Code Ann. § 38.001 (Vernon 1997). Section 38.001 provides for attorneys’ fees for claims on an oral or written contract, but not for negligence. See id. at 38.001 (8).

          To recover attorneys’ fees under section 38.001, a party must (1) prevail on a cause of action for which attorneys’ fees are recoverable, and (2) recover damages. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). Kinsey prevailed on her breach of contract cause of action, but, because the jury awarded her nothing on her breach of contract claim, Kinsey was not entitled to recover attorneys’ fees under section 38.001. See id.

          We overrule point of error three.

Conclusion

          We affirm the judgment of the trial court.

                                                                        George C. Hanks, Jr.

                                                                        Justice

Panel consists of Justices Taft, Jennings, and Hanks.