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  • Affirmed in Part, Reversed and Remanded in Part and Memorandum Opinion filed June 13, 2006

    Affirmed in Part, Reversed and Remanded in Part and Memorandum Opinion filed June 13, 2006.

     

     

    In The

     

    Fourteenth Court of Appeals

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    NO. 14-04-00694-CV

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    SAID KHEIR A/K/A BENNY KHEIR, INDIVIDUALLY, C & S SPORTS and IMPORTS, AND REMINGTON INTERNATIONAL, Appellants

     

    V.

     

    PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY AS SUBROGEE OF JOSE ANTONIO VALDES, Appellee

     

      

     

    On Appeal from the County Civil Court at Law No. 4

    Harris County, Texas

    Trial Court Cause No. 716,728

     

      

     

    M E M O R A N D U M   O P I N I O N

    In fourteen issues, appellants Said Kheir, C & S Sports and Imports, and Remington International challenge a final judgment incorporating both partial summary judgment rulings and a jury=s findings against appellants.  We affirm in part, reverse in part, and remand.

    Factual Background

    Sometime in early 1998, Said Kheir purchased a 1998 Mercedes SLK 230 on behalf of Remington International, a d/b/a or business of Kheir=s father-in-law, Leon Elmas.[1]  Kheir then entered into an agreement with Richard Steffan to sell the Mercedes on consignment.  Kheir had bought and sold cars with Steffan on previous occasions.

    On February 7, 1998, Steffan sold the Mercedes to Jose Antonio Valdes.  Valdes paid the purchase price of $49,678.51 by check[2] and took possession of the car, but never received a title to the car.  Instead, Kheir received the title in the name of Remington International.  Kheir then transferred the title to C & S Sports and Imports, which was a d/b/a or business of Elmas and Kheir=s wife, Cayanne Elmas.[3]  At one point, Kheir gave the title to another person as security for a business venture.

    In April of 1999, Kheir repossessed the Mercedes from Valdes=s residence and sold it.  Neither the car nor the purchase price was ever returned to Valdes.


    Valdes and his wife filed suit against appellants, Steffan, and others, alleging claims including breach of contract, negligent representation, fraud, conspiracy, conversion, and wrongful repossession, and seeking, among other things, declaratory relief and specific performance.  Valdes also made a claim with his automobile insurance company, Progressive County Mutual Insurance Company, for the loss of the Mercedes. Progressive paid Valdes his loss, and then filed an intervention to recover those payments and other damages as subrogee to the claims of Valdes and his wife.  Valdes and his wife filed a ANotice of Partial Dismissal of Claims Without Prejudice,@ dismissing their claims against the defendants, except those claims asserted by Progressive.  Progressive=s claims mirrored those of Valdes and his wife, with the addition of a claim that the defendants violated various provisions of the Deceptive Trade Practices-Consumer Protection Act (DTPA). 

    Progressive later served appellants with requests for admissions that were not timely answered.  Appellants later filed a motion to strike the deemed admissions, which the trial court denied.  Based on the deemed admissions, Progressive filed a motion for partial summary judgment, which the court granted in Progressive=s favor on its claims for breach of contract, conversion, wrongful repossession and declaratory judgment against Kheir, individually and d/b/a C & S Sports and Imports and d/b/a Remington International.

    In February of 2004, the case proceeded to a jury trial on the remaining claims against Kheir, Cayanne Elmas, C & S Sports and Imports, and Remington International.  The jury found that these defendants had violated the DTPA and that their actions were unconscionable and were performed knowingly or intentionally.  On these findings, the jury awarded $10,000 against each defendant.  The jury also found that Kheir committed fraud, and that C & S Sports and Imports and Remington International acted with malice.[4]  The jury awarded exemplary damages of $25,000 each against Kheir, C & S Sports and Imports, and Remington International.  Finally, the jury awarded attorney=s fees of $30,000. 


    The final judgment, signed March 23, 2004, reflected the jury=s findings.  Additionally, the trial court incorporated its rulings from the partial summary judgment and awarded Progressive actual damages of $45,180.27 against Kheir, Cayanne Elmas, C & S Sports and Imports, and Remington International, jointly and severally.  The final judgment also reflected that the defendants were jointly and severally liable for court costs and pre- and post-judgment interest on the actual damages and attorney=s fees at the rate of 10% per annum.  Lastly, the final judgment recited that A[a]ll other relief not expressly granted is denied.@ 

    The defendants moved for a new trial and for judgment notwithstanding the verdict, but the motion was overruled by operation of law.  Kheir, C & S Sports and Imports, and Remington International filed a notice of appeal; Cayanne Elmas was not included in the notice. Appellants did not file a supersedeas bond to prevent the execution of the underlying judgment, and eventually the court clerk issued an abstract of judgment.

    On September 8, 2004, three months after appellants filed their notice of appeal, the trial court held a status conference, which only Progressive=s counsel attended.  At that time, the trial court signed an AOrder of Dismissal@ ordering that the Aabove entitled and numbered cause of action@ was dismissed for want of prosecution.  Stamped below the trial court=s signature was the following language:  AThis is a Final Judgment disposing of ALL issues and ALL parties, and ALL prior Interlocutory Orders of the Court in this cause are hereby made final.@

    Appellants= Issues

    On appeal, appellant presents fourteen issues addressed in the following categories: (1) the September 8, 2004 order of dismissal dismissed the entire case; (2) the trial court erred in denying appellants= motion to strike deemed admissions; (3) the trial court erred in excluding evidence bearing on attorney=s fees; (4) the trial court erred in denying appellants= motion for directed verdict based on Progressive=s failure to answer discovery; (5) the trial court erred in rendering judgment against Cayanne Elmas; (6) the evidence was legally and factually insufficient to support the award of punitive damages; (7) the trial court erred in stacking punitive damages awards; and (8) the trial court erred in awarding pre- and post-judgment interest at a rate of ten percent.[5]  We address each in turn.

    1.       The September 8, 2004 Order of Dismissal.

    In this issue, appellants contend the trial court=s March 23, 2004 AFinal Judgment@ was merely interlocutory because it did not dispose of all claims and all parties, and the trial court=s AOrder of Dismissal@ for want of prosecution, signed September 8, 2004, was the only final judgment.  Consequently, the September 8 order dismissed the entire cause of action, including all of appellee=s claims and its March 23 judgment.  We disagree with appellants= interpretation of these orders.

    First, appellants contend the March 23 final judgment is interlocutory because, for example, it does not dispose of Valdes and Gonzalez=s claims (except as those claims are asserted by Progressive).  Second, appellants contend, the plain language of the September 8 order demonstrates it is Aunequivocally@ the only final judgment in the case, because it provides that Athe above entitled and numbered cause of action@ is dismissed for want of prosecution, and further provides that AThis is a Final Judgment disposing of ALL issues and ALL parties, and ALL prior Interlocutory Orders of the Court in this cause are hereby made final.@  Appellants posit that any other interpretation of this order creates problems in determining when the appellate timetable commences for matters like post-judgment motions and notices of appeal.

    The problem with appellants= first contentionCthat the March 23 order does not dispose of all claims and all partiesCis that it confuses summary judgment practice with a judgment after a trial on the merits.  In Lehmann v. Har-Con Corp., a summary judgment case, the Texas Supreme Court held that

    in cases in which only one final and appealable judgment can be rendered, a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.


    39 S.W.3d 191, 192B93 (Tex. 2001) (emphasis added).  The Court went on to hold that the inclusion of a AMother Hubbard@ clause in a judgment rendered without a conventional trial does not indicate that it is final for purposes of appeal.  Id. at 203B04.  But, as the emphasized language above demonstrates, the requirement that a final judgment must actually dispose of all claims and parties regardless of its language does not apply to a judgment rendered after a trial on the merits such as the trial of the parties= claims conducted here.

    At least twice since Lehmann, the Supreme Court reaffirmed that a judgment rendered after a conventional trial on the merits is presumed to dispose of all issues and parties.  See Moritz v. Preiss, 121 S.W.3d 715, 718B19 (Tex. 2003); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex. 2001).  In Moritz v. Preiss, the Court recognized once again the presumption of finality for judgments that follow a trial on the merits, a presumption it had spoken to almost forty years earlier:

    When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to [our procedural rules,] it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

    121 S.W.3d at 718B19 (citing N.E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897 (Tex.1966)).  It takes a significant act by the judge and the parties to overcome this presumption. See Lehmann, 39 S.W.3d at 203 (stating that finality must be resolved by a determination of the intention of the court as gathered from the language of the decree and the record as a whole, aided on occasion by the conduct of the parties); cf. Moritz, 121 S.W.3d at 719 (judgment in favor of defendant health care providers was final, even though one provider was not named in the judgment, when plaintiff did not request and court did not enter any orders for a separate trial against the provider, the provider=s liability was not submitted to the jury, and the plaintiff did not object to the jury charge); John, 58 S.W.3d at 740 (presumption would be applied even though judgment did not mention three settling defendants, when plaintiff did not move for separate trials and did not seek any relief against settling defendants at trial, and there was nothing to indicate that trial court did not intend judgment to finally dispose of entire case).

    We find the presumption appropriate for this case.  Appellants have not identified any parties who were still in the case but did not participate in the trial,[6] nor have they pointed to any issues left dangling.  The only basis appellants give us for presuming that the judgment was not final is the entry of the September 8 order of dismissal.  On the facts of this case, the September 8 dismissal order cannot overcome the presumption and turn what appears to be a final judgment into an interlocutory judgment.  The dismissal order appears to be a precautionary measure, a belt-and-suspenders action to ensure without any question that the case was finished. This one act, taken without explanation by the trial court, is insufficient to overcome the presumption.[7]

    We overrule appellant=s issue.

    2.       The Denial of Appellants= Motion to Strike Deemed Admissions.

    In this issue, appellants contend the trial court abused its discretion by failing to grant appellants= motion to strike deemed admissions.  Appellants do not deny their responses to Progressive=s requests for admissions were untimely answered, but assert they demonstrated good cause because Kheir needed to travel to Lebanon to attend to a relative=s illness and medical treatment at the time when the responses were due.  


    When a party does not return answers to requests for admissions within thirty days, the matters in the requests are deemed admitted against that party without the necessity of a court order.  See Tex. R. Civ. P. 198.2(c); Darr v. Altman, 20 S.W.3d 802, 807B08 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (citing earlier version of rule).  A trial court has broad discretion to permit or deny the withdrawal of deemed admissions. Stelly v. Papania, 927 S.W.2d 620, 622 (Tex. 1996).  An appellate court should set aside the trial court=s ruling only if, after reviewing the entire record, it is clear that the trial court abused its discretion.  Id.  An abuse of discretion occurs when a court acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably.  Id. 

    A court may permit a party to withdraw an admission if a court finds that the party shows good cause for the withdrawal, that the parties relying on the admission will not be unduly prejudiced, and that the withdrawal will subserve the presentation of the action=s merits.  Tex. R. Civ. P. 198.3.  A party can establish good cause by showing that its failure to answer was accidental or the result of mistake, rather than intentional or the result of conscious indifference.  Stelly, 927 S.W.2d at 622.  Even a slight excuse will suffice, especially where delay or prejudice will not result against the opposing party.  Webb v. Ray, 944 S.W.2d 458, 460 (Tex. App.CHouston [14th Dist.] 1997, no writ).  The actions of the parties and counsel are significant when a court is reviewing the record to determine if good cause has been established. Id. at 461.

    Progressive=s request for admissions was served on appellants on June 3, 2002; thus, appellants= answers and/or objections were due by July 6, 2002.[8]  Although appellants= attorney was aware of the request for admissions, he did not contact Progressive=s attorney for an extension of time to respond.  On July 9, Progressive=s attorney informed appellants attorney by telephone that he had not received appellants= responses to the request for admissions and other discovery served at the same time.  When no discovery responses were forthcoming, on July 22, Progressive=s attorney followed up with a letter again informing appellees of the unanswered discovery.  Then, on July 26, twenty days after the discovery was due, appellants filed objections and responses to the request for admissions.  Appellants did not file a motion to strike the deemed admissions, however, until the beginning of January, 2003, six months after the request for admissions was served on them. 


    Appellants= motion to strike the deemed admissions was supported by the affidavit of Kheir,[9] in which he stated in material part:

    I am the representative for C & S Sports and Imports.  It was necessary for me to fly to Lebanon during the period in which the discovery responses were due.  In this regard, I had to assist my mother-in-law, who was sick. We flew her, Diana Elmas, to M.D. Anderson (where she underwent and is still receiving chemotherapy treatment).

    As a consequence, I was not able to get to answer the discovery with my lawyer until now.

    Kheir=s affidavit, while offering an explanation for the failure to timely answer the request for admissions, also demonstrates that he was aware of the request for admissions and when they were due.  Additionally, the record shows that appellants= attorney, who undeniably was aware of the request for admissions, failed to timely or conscientiously address this outstanding discovery.

    In the motion to strike, appellants= attorney represents that he attempted to reach an agreement on an extension of the discovery deadline, but Progressive=s counsel refused. However, the motion contains no affidavit of appellants= attorney attesting to any communications or attempts to reach an agreement with Progressive=s attorney.  Moreover, in response to the motion to strike, Progressive=s counsel averred in an affidavit that, at no time before the discovery was due, did appellants= counsel discuss with him or contact him regarding an extension of time to respond and/or object to the discovery, nor did appellants= counsel discuss with him or contact him to explain why no objections or answer were filed.  Finally, Progressive=s counsel stated that the first time he became informed of the claimed reason why the request for admissions had not been timely answered was on July 26, 2002, when he was served with appellants= untimely objections and responses to the request for admissions.


    The threshold standard for withdrawal of deemed admissions is good cause, and the burden of proof is on appellants to establish good cause.  See Webb, 944 S.W.2d at 460.  To prevail, appellants must prove they did not intentionally or consciously disregard their obligation to timely answer.  See id. 

    Although Kheir=s affidavit raises a serious situation that could excuse his tardiness, it is so lacking in details that it is of little value.  For example, he could have left well after the admissions were served, leaving him ample time to answer them timely.  Or, he could have returned from Lebanon well before the answer date.  We do not know from Kheir=s affidavit precisely when he had to leave for Lebanon or when he returned.  He does not state that he was unaware of the request for admissions and his need to answer them.  His attorney=s inaction also is of little value in appellants= attempt to set aside the deemed admissions.  His total failure to communicate is certainly more reminiscent of lack of care and disregard than of accident or mistake, especially since he has provided no explanation for the tardiness of the admissions other than his client=s temporary departure from the country.  He does not explain that he had trouble reaching his client or that his client left before he could be contacted.  Without some explanation, we have no reason to overrule the trial court=s decision on the matter.

    Based on this record, we cannot say that the trial court abused its discretion in denying appellants= motion to strike the deemed admissions.  See Darr, 20 S.W.3d at 808 (holding that good cause for failure to respond to requests for admissions was vitiated when party waited three months after receiving requests for admissions attached to motion for summary judgment to either answer the requests or move to withdraw the deemed admissions); Webb, 944 S.W.2d at 461 (holding appellants failed to show good cause when they filed admissions late and did not file a motion to withdraw deemed admissions until over six months later, and did not appear for hearing on motion or provide evidence to support alleged good cause).

    We overrule appellant=s issue.


    3.       The Exclusion of Evidence Relating to Attorney=s Fees.

    In this issue, appellants contend the trial court erred in disallowing cross-examination of Progressive=s attorney concerning his contractual arrangement with Progressive or the amount of attorney=s fees actually paid to the attorney, for the purpose of impeaching the attorney=s testimony concerning the amount and reasonableness of attorney=s fees.  We apply an abuse‑of‑discretion standard in reviewing whether a trial court erred in admitting or excluding evidence.  See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)..

    Appellants argue evidence of the attorney=s contractual arrangement with Progressive is Acertainly relevant@ on the issue of the amount of reasonable and necessary attorney=s fees, and, according to appellants, if the jury had heard that Valdes had no obligation to pay attorney=s fees to Progressive=s attorney and had not paid him any money, it is Amore likely@ the jury would have awarded a different amount, particularly given that Valdes did not appear in person for trial but was presented by deposition.[10]  Appellants cites as their sole authority Arthur Andersen & Co. v. Perry Equip. Corp., in which the Texas Supreme Court lists the factors a fact finder should consider when determining the reasonableness of a fee.  945 S.W.2d 812, 818 (Tex. 1997).[11] 


    However, while Arthur Andersen lists a number of relevant factors, appellants do not contend that the evidence they sought to introduce fits within any of the listed factors, and they do not otherwise explain how Arthur Andersen supports their position.  Here, Progressive=s attorney testified that he was paid an hourly fee, and he testified to the amount of the fee and the billable time spent on the file, and further testified that the amount sought was reasonable and necessary. He also submitted into evidence a list of his activities and the time he expended on them, as well as that of his paralegal from April 19, 2000 to February 10, 2004.  He further testified concerning his experience and familiarity with the usual and customary fees charged in this type of litigation, the complexity of the case, and the number of parties and witnesses in the case.

    Moreover, the trial court may have determined that appellants= attempt to get before the jury evidence that Progressive, not Valdes, was paying the attorney=s fees was an improper attempt to inject insurance (through Progressive=s role as subrogee) into the trial.  Generally, it is error to refer to the fact that the plaintiff is protected by some form of insurance because it is irrelevant, immaterial, and calculated to work injury.  See Kendrix v. So. Pac. Transp. Co., 907 S.W.2d 111, 112 (Tex. App.CBeaumont 1995, writ denied) (citing Myers v. Thomas, 143 Tex. 502, 186 S.W.2d 811, 813 (1945)).  Appellants do not address the general prohibition against the introduction of insurance coverage or argue that any exception applies.  Indeed, appellants= argument appears to support the exclusion of the evidence.  Appellants contend that, if the jury knew that the plaintiffs= attorney=s fees were being paid by Valdes=s insurance company, the jury would award a lesser amount of attorney=s feesCor none at allCwhich appears calculated to evoke the very prejudice the general rule attempts to preclude.

    On this record, we cannot say the trial court abused its discretion and we therefore overrule appellants= issue.

    4.       The Denial of Appellants= Motion for Directed Verdict.

    Next, appellants contend the trial court erred in refusing to grant in full their motion for directed verdict based on Progressive=s failure to answer appellants= request for disclosure directed to Valdes and Gonzalez.  On the facts of this case, however, we disagree.

    According to appellants= motion, in January 2000, appellants served Jose Valdes and Magdalena Gonzalez with requests for disclosure, requesting that these plaintiffs identify their legal theories, the facts supporting same, and any applicable insurance or indemnity agreements together with the amount and method of calculating economic damages.  This discovery was never answered.  Appellants contended that, because this discovery was never answered, they had no knowledge of the legal theories the case would be tried on. They also denied that any theories were tried by consent.  Consequently, appellants asserted below that they were Aentitled to a directed verdict on all issues since none of them are supported by answers to discovery.@  On appeal, appellants cite Texas Rule of Civil Procedure 193.6 as their sole authority, although their issue alleges that the trial court erred in not applying a Rule 215 sanction against Progressive.  See Tex. R. Civ. P. 193.6 (a party who fails to timely make, amend, or supplement a discovery response may not introduce undisclosed material or information absent a showing of good cause or lack of unfair surprise or prejudice to other parties).  We find a multitude of problems with appellants= issue.

    First, the discovery was served on Valdes and Gonzalez, not Progressive.  Second, the discovery was served after appellants= own counsel had requested and obtained a stay of all litigation because another party had filed a suggestion of bankruptcy.[12]  Third, by the time the stay was lifted, Valdes and his wife were no longer plaintiffs, having non-suited their claims months earlier.  Yet, appellants never attempted to re-serve the discovery on Progressive or to compel Progressive to answer it; indeed, appellants apparently never sought any discovery from Progressive.  Thus, Progressive did not fail to comply with an obligation to answer any discovery properly propounded to it.  Fourth, Appellants have waived this complaint because Athe failure to obtain a pretrial ruling on discovery disputes that exist before commencement of trial constitutes a waiver of any claim for sanctions based on that conduct.@  See Remington Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993).  Fifth, even if they did not obtain a pretrial ruling on the failure to answer discovery, they might have been able to preserve some complaint had they objected to the admission of the evidence at trial by relying on Rule 193.6.  They did not do this.  A motion for directed verdictCfiled after all the evidence was introducedCwas the wrong vehicle to raise the complaint and was too late to accomplish what they desired.

    We overrule appellants= issue.

    5.       The Judgment Against Cayanne Elmas.

    In this portion of their brief, appellants contend that the trial court erred in rendering judgment against Cayanne Elmas for actual and punitive damages, because it did not grant partial summary judgment against her and the jury found that she did not act with malice or fraud and it did not assess exemplary damages against her.  Additionally, appellants complain that the trial court should not have authorized the writ of execution to issue against her.[13]  However, Cayanne Elmas did not appeal from the judgment; therefore, we do not address any issues relating to the judgment against her.

    6.       The Legal and Factual Sufficiency of the Evidence Supporting Award of Exemplary Damages.

    Appellants argue that the evidence is legally and factually insufficient to support the exemplary damages based on fraud and the additional damages for knowing and/or intentional DTPA violations against them and Cayanne Elmas.  The jury found that appellants knowingly and intentionally engaged in one or more of the listed DTPA violations, and awarded additional damages of $10,000 against each appellant based on findings that appellants= conduct was knowing and/or intentional.  The jury also found, by clear and convincing evidence, that Kheir acted with malice or fraud, and that C & S Sports and Imports and Remington International acted with malice.  Based on these answers, the jury awarded exemplary damages of $25,000 against each appellant. 

    As explained in the previous section, Cayanne Elmas did not appeal from the judgment; therefore, we do not address the sufficiency of the evidence supporting the judgment against her.  Additionally, a complaint of factual insufficiency of the evidence to support a jury finding or of the excessiveness of the damages found by the jury must have been raised in a motion for new trial.  See Tex. R. Civ. P. 324(b)(2), (4). Appellants= motion for new trial did not raise the issue complained of on appeal. Therefore, appellants have failed to preserve the factual sufficiency issue and we do not address it.  We will determine whether the evidence is legally sufficient to support the jury=s punitive damages awards against appellants.

    a.       Standards of Review

    In their brief, appellants assert that this court should apply the traditional Ano evidence@ test to determine the legal sufficiency of the punitive damages awards.  This standard of review is appropriate to apply to the award of additional damages for knowing and/or intentional violations of the DTPA; however, the jury was charged to find malice and/or fraud based on Aclear and convincing evidence@ and it awarded exemplary damages based on those findings.  Because a heightened evidentiary burden was required at trial, we will assume for purposes of this case that we should apply a heightened standard of review on appeal to the fraud and/or malice findings. See Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622B23 (Tex. 2004) (holding that, Aas a matter of logic,@ a finding that must meet an elevated standard of proof must also meet an elevated standard of review).

    In reviewing the legal sufficiency of evidence to support a finding that had to be proved by clear and convincing evidence, we must Alook at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true.@ See Garza, 164 S.W.3d at 627; see also In re J.F.C., 96 S.W.3d 256, 265B66 (Tex. 2002) (detailing procedure to follow in assessing evidence).  If, after conducting the review, we determine that no reasonable fact finder could form a firm belief or conviction that the matter that must be proven is true, then we must conclude that the evidence is legally insufficient. See Diamond Shamrock Ref. Co., L.P. v. Hall, 168 S.W.3d 164, 170 (Tex. 2005).

    In determining whether legally sufficient evidence supports the award of additional damages for knowing and/or intentional DTPA violations, we apply the Atraditional@ standard of review.  Accordingly, we must credit evidence favorable to the finding if a reasonable fact finder could consider it, and we must disregard evidence contrary to the finding unless a reasonable fact finder could not disregard it.  See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  A legal sufficiency point may only be sustained when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; and (4) the evidence established conclusively the opposite of the vital fact.  Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  The final test for legal sufficiency is whether the evidence at trial would enable reasonable and fair‑minded people to reach the verdict under review.  City of Keller, 168 S.W.3d at 827.

    b.       Analysis of Evidence

    Keeping in mind the above standards of review, we turn to the substance of appellants= legal sufficiency challenge.  Appellants contend the evidence is insufficient because privity of contract is required to sustain purely economic losses for breach of an express warranty, and neither Valdes nor Gonzalez ever spoke to appellants before the sale or repossession of the Mercedes.  Appellants make these complaints generally, and do not attempt to address the jury findings individually.  We will therefore address appellants= complaints in the same manner.

    Concerning the privity of contract issue, appellants do not present any analysis of the issue or explain how it relates to the jury issues; they merely assert that some courts have held privity is required to sustain purely economic losses for breach of an express warranty, while other courts have more recently held privity of contract is not required, and the Texas Supreme court has not directly addressed the issue.  As an initial matter, the final judgment does not include any jury finding that an express warranty was breached, and appellants do not explain how this argument applies to the DTPA, fraud, or malice findings the jury did make. Therefore, we overrule appellants= argument to the extent it asserts that privity of contract was required to sustain exemplary damages based on purely economic damages for breach of an express warranty.


    We next turn to the second part of appellants= complaintCthat the evidence was legally insufficient to sustain the awards of additional damages for knowing and/or intentional conduct and exemplary damages for fraud and/or malice because none of the appellants ever spoke to Valdes or Gonzalez before the sale or the repossession of the Mercedes. In connection with this argument, appellants contend there is unchallenged evidence that Steffan never paid Kheir for the car, and this evidence is relevant to Kheir=s knowledge when he repossessed the car.  The argument is minimally briefed and appellants cite no authorities in support of it.  Therefore, we hold that appellants have waived this issue.  See Tex. R. App. P.  38.1(h); Sunnyside Feedyard, L.C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.CAmarillo 2003, no pet.) (AFailure to either cite authority or advance substantive analysis waives the issue on appeal.@).  

    We therefore overrule appellants= challenge to the legal sufficiency of the evidence supporting the jury=s award of additional damages for knowing/intentional violations of the DTPA and exemplary damages.

    7.       Stacking the Punitive Damages Awards.

    Appellants further contend that the trial court erred in stacking the punitive damages awards.  Specifically, appellants contend Progressive is not entitled to separate punitive damages awards for the DTPA violations and common law fraud, because a single injury resulted from Athe repossession/conversion of the vehicle.@  See Birchfield v. Texarkana Mem=l Hosp., 747 S.W.2d 361, 367 (Tex. 1987) (AIn the absence of separate and distinct findings of actual damages on both the acts of negligence and the deceptive acts or practices, an award of exemplary damages and statutory treble damages would be necessarily predicated upon the same findings of actual damages and would amount to a double recovery of punitive damages.@).  Additionally, appellants also appear to complain on the same basis that Progressive was entitled to obtain a judgment for actual damages of $10,000 against each of the four defendants, jointly and severally. 

    In response, Progressive complains that appellants have failed to preserve the issue for review.  We agree. In order to preserve a complaint for appellate review, a party is generally required to make a timely, specific objection and obtain a ruling from the trial court.  See Tex. R. App. P. 33.1(a).  Failure to make such an objection waives the point on appeal.  See Holland v. Hayden, 901 S.W.2d 763, 765 (Tex. App.CHouston [14th Dist.] 1995, writ denied) (challenge to sufficiency of evidence to support attorneys fees in motion for new trial did not preserve claim of double recovery of attorneys fees).  Appellants did not raise the complaints they make on appeal to the trial court in their motion for new trial, and the record does not show that they otherwise made the trial court aware of their complaint. Therefore, they have failed to preserve these issues for review.


    We overrule appellants= issue.

    8.       Error in Award of Pre- and Post-Judgment Interest at a Rate of Ten Percent.

    Finally, appellants contend that the trial court erred in awarding pre- and post-judgment interest at a rate of ten percent.  Appellants assert that, pursuant to Texas Finance Code section 304.003(c), the correct rate should have been five percent.  See Tex. Fin. Code ' 304.003(c); see also id. ' 304.103 (pre-judgment interest rate is equal to post-judgment interest rate applicable at time of judgment).  Progressive agrees that the rate should be five percent rather than ten percent. Therefore, we sustain this issue and remand the case to the trial court to calculate pre-judgment and post-judgment interest, as necessary, consistent with this opinion. 

    Conclusion

    We reverse in part and remand this case to the trial court to calculate pre-judgment and post-judgment interest, as necessary, consistent with this opinion. In all other respects, we affirm the trial court=s judgment.

     

     

     

    /s/      Wanda McKee Fowler

    Justice

     

    Judgment rendered and Memorandum Opinion filed June 13, 2006.

    Panel consists of Justices Hudson, Fowler, and Seymore.


    [1]  The record is unclear as to the date or specific time frame in which the transaction occurred.

    [2]  The check was signed by Valdes=s wife, Magdalena Gonzalez, and paid from their joint account.

    [3]  Kheir testified at trial that he had authority to act on behalf of both C & S Sports and Imports and Remington International. By deposition, Cayanne Elmas also testified that Kheir had full authority to act on behalf of C & S Sports and Imports and Remington International.

    [4]  The jury also found that, for both C & S Sports and Imports and Remington International, Kheir was acting in the furtherance of a mission for their benefit and subject to their control as to the details of the mission.  However, the jury did not find that any of the defendants engaged in a conspiracy, and it did not find that Cayanne Elmas committed fraud.  The jury did not award exemplary damages against Cayanne Elmas.

    [5]  In their summary of the argument section of their appellate brief, appellants also assert that the trial court erred in denying their motion for judgment notwithstanding the verdict because there was no evidence of Progressive=s consumer status, and the punitive damages claims were not assignable.  However, these issues were not raised or argued with applicable authority in the body of appellants= brief, and so are waived.  See Tex. R. App. P. 38.1(h); see also Sunnyside Feedyard, L. C. v. Metropolitan Life Ins. Co., 106 S.W.3d 169, 173 (Tex. App.CAmarillo 2003, no pet.) (AFailure to either cite authority or advance substantive analysis waives the issue on appeal.@).

    [6]  Although appellants seem to argue that the claims of Valdes and Gonzalez had not been dismissed, they were dismissed long before trial. 

    [7]  Appellants= own actions show they were not confused about the finality of the March 23 final judgment. They timely filed their motion for new trial, motion for JNOV, and notice of appeal.

    [8]  Progressive=s request for admissions were mailed to appellants= attorney=s prior address, but appellants= attorney signed a Rule 11 agreement waiving any objection based upon defective service and agreed that those requests were deemed served on June 3, 2002. 

    [9]  Kheir=s affidavit, dated July 25, 2002, was previously attached to appellants= objections and responses to the request for admissions.

    [10]  Appellants do not otherwise question the attorney=s fee award.

    [11]   The factors the Arthur Andersen court listed were the following:

    (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;

    (2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;

    (3) the fee customarily charged in the locality for similar legal services;

    (4) the amount involved and the results obtained;

    (5) the time limitations imposed by the client or by the circumstances;

    (6) the nature and length of the professional relationship with the client;

    (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

    (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

    Arthur Andersen, 945 S.W.2d at 818 (citing Tex. Disciplinary R. Prof. Conduct 1.04, reprinted in Tex. Gov=t Code, tit. 2, subtit. G app. (State Bar Rules, art. X, ' 9)).

    [12]  Appellants= counsel asserts that the attorney who represented Valdes and Gonzalez represented that the discovery would be answered after the stay was lifted; however, the only evidence in the record concerning the discovery is a letter from Valdes=s lawyer, in which he informed appellants= counsel that he would not respond to the requests for disclosure Aat this time@ due to the bankruptcy stay, and requesting that, if appellants= counsel disagreed with this position, to respond in writing with citations to supporting authority. No response appears in the record, nor is there any indication in the record appellants= counsel sought to compel answers to any discovery.

    [13]  Appellants also make several other conclusory complaints about the writ of execution in this section of its brief without citation to any authority or meaningful argument.  We therefore do not address these complaints.  See Tex. R. App. P. 38.1(h).