Randy Coleman and Jim Coleman Company v. Ralph Dean ( 2015 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-14-00811-CV
Randy COLEMAN and Jim Coleman Company,
Appellants
v.
Ralph DEAN,
Appellee
From the 79th Judicial District Court, Jim Wells County, Texas
Trial Court No. 11-04-49987-CV
Honorable Richard C. Terrell, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Karen Angelini, Justice
Jason Pulliam, Justice
Delivered and Filed: September 2, 2015
AFFIRMED AS MODIFIED
Appellant, Randy Coleman (“Randy”), brings a restricted appeal 1 from a post-answer
default judgment rendered against him; and appellant, Jim Coleman Company, appeals from a
judgment rendered against it following a jury trial. Randy and Jim Coleman Company
(collectively, “appellants”) raise similar issues on appeal challenging the sufficiency of the
1
When a party does not participate in person or through counsel in a hearing that results in a judgment, he may be
eligible for a restricted appeal. TEX. R. APP. P. 30. To sustain a proper restricted appeal, the filing party must prove:
(1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the
underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment complained of, and did not
timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent
on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
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evidence in support of liability, damages, and attorney’s fees; and asserting liability for any
damage award should be joint and several.
BACKGROUND
Ralph Dean (“Dean”) and his wife ordered a modular house from Living Modular, LLC
for a total purchase price of $63,700. Dean made a down payment of $30,000; later paid an
additional $3,000; and incurred expenses of $14,659.38. The house was never delivered. Dean
eventually sued Living Modular, Randy, and Jim Coleman Company. Dean alleged, among other
things, that Living Modular was affiliated with, supported by, and maintained its operations at the
Jim Coleman Company facility in Houston, Texas. Dean alleged Randy acted as an agent of Living
Modular and Jim Coleman Company. Dean sued all three defendants for breach of contract and
violations of the Texas Deceptive Trade Practices Act (the “DTPA”). All defendants answered
the suit, but only Jim Coleman Company appeared for trial represented by counsel. The sole owner
of Living Modular, who is not an attorney, appeared for trial. After the jury returned a verdict
against Jim Coleman Company on the DTPA claim, 2 the trial court signed a Final Judgment in
which it rendered a default judgment against Randy and Living Modular, and a judgment against
Jim Coleman Company. In the Final Judgment, Dean was awarded $47,659.38 in economic
damages; $142,978.14 as additional damages under the DTPA; and prejudgment and postjudgment
interest, attorney’s fees, and court costs.
Randy filed a restricted appeal and Jim Coleman Company filed a regular appeal. Living
Modular did not appeal.
2
The breach of contract claim against Jim Coleman Company was not submitted to the jury.
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LIABILITY
On appeal, Randy3 and Jim Coleman Company challenge the sufficiency of the evidence
in support of findings that they knowingly engaged in several false, misleading, or deceptive acts
or practices on which Dean relied to his detriment. Among the various DTPA violations, Dean
alleged appellants caused confusion or misunderstanding as to (1) the source, sponsorship,
approval, or certification of goods or services; and (2) the affiliation, connection, or association
with, or certification by, another. See TEX. BUS. & COM. CODE ANN. § 17.46(b)(2)-(3) (West
2011). Subsection (b)(2) deals with deception in the origin, source or endorsement of goods and
services. Cox v. State, 448 S.W.3d 497, 505 (Tex. App.—Amarillo 2014, pet. filed); Potere, Inc.
v. Nat’l Realty Serv., 667 S.W.2d 252, 257 (Tex. App.—Houston [14th Dist.] 1984, no writ);
Prairie Cattle Co. v. Fletcher, 610 S.W.2d 849, 853 (Tex. Civ. App.—Amarillo 1980, writ
dism’d). Subsection (b)(3) deals with deception about a person’s or entity’s affiliation, connection,
or association with, or certification by, another.
A. Standard of Review 4
A legal sufficiency challenge will be sustained when the record confirms either: (a) a
complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving
3
A post-answer default judgment is rendered when a defendant files an answer but fails to appear at trial. See Stoner
v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). In the case of a no-answer default judgment, the defendant’s failure
to answer represents an admission of all facts properly set forth in the plaintiff’s petition. See Morgan v.
Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984). By contrast, a post-answer “default” is not an implied
confession of any issues raised by the defendant’s answer. See Stoner, 578 S.W.2d at 682. Unlike a no-answer default,
a post-answer default judgment requires the plaintiff to offer evidence to prove the factual allegations of his petition
just as in a contested trial. See id.; Karl & Kelly Co. v. McLerran, 646 S.W.2d 174, 175 (Tex. 1983). Therefore, in
his restricted appeal, Randy may challenge the sufficiency of the evidence and, thereby, establish error on the face of
the record. Norman Commc’n v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (recognizing review of legal
and factual sufficiency claims is permissible when a post-answer default judgment is challenged by restricted appeal).
4
On appeal, appellants state the evidence is legally and factually insufficient. However, neither appellant filed a
motion for new trial complaining of factual insufficiency in support of liability. Because a motion for new trial is a
prerequisite to a factual sufficiency challenge, appellants waived their right to complain about the factual sufficiency
of the evidence to support the liability findings. See TEX. R. CIV. P. 324(b)(2)-(3). Also, the standard of review on
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weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital
fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of
the vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); City of Keller v.
Wilson, 168 S.W.3d 802, 819 (Tex. 2005). In a legal sufficiency review, we must view the
evidence in the light most favorable to the verdict. Ford Motor Co., 444 S.W.3d at 620; City of
Keller, 168 S.W.3d at 822. When reviewing all of the evidence in a light favorable to the verdict,
“courts must assume jurors made all inferences in favor of their verdict if reasonable minds could,
and disregard all other inferences in their legal sufficiency review.” City of Keller, 168 S.W.3d at
821. When reviewing circumstantial evidence that favors the verdict, we must “view each piece
of circumstantial evidence, not in isolation, but in light of all the known circumstances.” Id. at
813-14. If circumstantial evidence, when viewed in light of all the known circumstances, is equally
consistent with either of two facts, then neither fact may be inferred. Id. But where the
circumstantial evidence is not equally consistent with either of two facts, and the inference drawn
by the jury is within the “zone of reasonable disagreement,” a reviewing court cannot substitute
its judgment for that of the trier-of-fact. Id. at 822.
B. The Evidence
Dean was the only witness to testify on liability, and the following is taken from his
testimony. 5 In August 2009, Dean and his wife attended a Texas Trophy Hunter’s Extravaganza
in Houston, Texas, when they passed by a Living Modular booth. Dean said the booth advertised
concrete houses for sale, and he and his wife wanted one for their property in Premont, Texas to
which appellants rely and their substantive argument is that the evidence is legally insufficient; therefore, it appears
they assert only a legal sufficiency challenge. In any event, we review the evidence only for legal sufficiency.
5
Dean called two other witnesses to testify about attorney’s fees. The Jim Coleman Company called no witness and
submitted no documentary evidence because the trial court struck any witness the defendants might call on the grounds
that they failed to answer discovery.
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use as a recreational house. The couple hoped to have the house built by Thanksgiving 2009. At
the booth, the couple met the brothers, Wayne and Randy Coleman, and another man by the name
of Bob Oaks.
Dean believed Oaks was an employee of Jim Coleman Company helping with sales of the
modular houses. Randy handed Dean a business card and told Dean that both he and Wayne were
executives with Jim Coleman Company. The card Randy gave Dean read “Jim Coleman Company
. . . World Class Manufacturing of Car Wash Equipment.” Before the hunting show, Dean knew
nothing about modular houses, but while at the show, he learned they were manufactured in
Mexico, they could be made quickly, and they appeared extremely durable. He also learned
models of the houses were on Jim Coleman Company’s property in Houston, and that any
subsequent meetings about purchasing a house would be held at that location.
Dean and his wife later decided to go to Houston to see the models. The couple met with
Randy, Wayne, and Oaks, who “started the sales pitch” and reviewed sales brochures. One of the
brochures showed an L-shaped house, but Dean and his wife wanted a T-shaped house. Dean said
they were told they could design their house, and a draftsman used Jim Coleman Company’s
AutoCAD to draw up a computer-generated blueprint of the house. Dean said Randy told him that
they could do anything with the houses, including putting two together to make one larger house.
Randy told the couple that not only could he “tweak” the design, there were “craftsman [sic] in his
employ in Mexico or people that he could get that could also tweak the interior and not go with
the standard list that was on the right [side of the sales brochure]; that he could upgrade the interiors
and [the] sky was the limit is what he told me.”
Dean said the Coleman brothers were originally going to do the site preparation, but
because they could not find anyone to do the work, Dean himself purchased caliche and hired a
man to level the site to the necessary specifications. The couple was told the house would have
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various amenities, including a kitchen area, a bathroom with tiled shower and toilet, and paint-
textured interior and exterior walls. The purchase price also included transportation and road
permits from Monterrey, Mexico to the job site. Dean was told the manufacturing facility was
located in Mexico “and that’s where it was going to come from and they would take care of that
in no time.” Dean said he specifically asked about any problems with delivery from Mexico, and
was told there were no problems. He said if he had been told there were problems, he would not
have paid for the house.
Dean and his wife did not make any decision after the first meeting, but went back to the
Jim Coleman Company offices several times. At either the first or second meeting, they walked
through the Jim Coleman Company facility, the manufacturing area of the car wash business, and
Randy’s and Wayne’s offices. Dean said Oaks had an office at Jim Coleman Company, but he did
not know what position he held with the company. The couple was told that as part of Jim Coleman
Company’s manufacturing of car washes, the company could build awnings or covered front
porches for whatever modular house they purchased. When asked whether the couple was told,
during a tour of the facilities, that Jim Coleman Company did not have anything to do with the
manufacture of modular houses, Dean replied “no” and that he was “led to believe there was like
a subsidiary of the Jim Coleman Company; like it was one and the same.” He thought Living
Modular and Jim Coleman Company were the same company, but “different wings.” Dean
thought he was dealing with a well-established national company that “was affiliated with — you
know, it was all one big, happy family: Coleman, Coleman and Coleman.”
The couple eventually decided to buy a modular house, and, on October 22, 2009, signed
an order form and made a $30,000 down payment. The order form was drawn up by Oaks, who
told the couple he worked for Jim Coleman Company. After the couple agreed to buy the house
and “tweaked” the design, they were given the blueprint of their house as prepared by the Jim
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Coleman Company employee. The check for $30,000 was made payable to Living Modular. After
they received the blueprint and made certain upgrades to the house’s interior, the couple paid an
additional $3,000 with a check payable to Randy on November 3, 2009.
The couple anticipated delivery of the house before Thanksgiving 2009. Dean said he
asked several times about any potentials delays because the house was coming from Mexico, and
Randy and Wayne told him “it was smooth as silk.” Randy and Wayne made several visits to the
couple’s property to ensure the site was adequate for the house and there was clearance for the
cranes. In addition to the $33,000 paid, Dean also made an $8,000 direct deposit to what he
believed was Randy’s account to cover the extra cost of expanding the house, plus an additional
$6,659.38 to prepare the site and to purchase materials that were to be put on the building “where
it sat in Mexico that were going to build it up.”
Dean said he was given different reasons for why delivery was delayed, including that
Randy, Wayne, and Oaks said they intended to move the plant from Mexico to Texas. When
Christmas 2009 came and went with no delivery of the house and no one returning his telephone
calls, Dean went to the Jim Coleman Company offices in Houston, but he was told Oaks, Randy,
and Wayne were not there.
On direct examination, Dean identified Exhibit 4 as an aerial photograph of the Jim
Coleman Company property, and Exhibit 3 as “the gate to the Living Modular area of the Jim
Coleman Company.” Exhibit 3 showed a sign that read “Living Modular, 3450 Antoine” on the
fence next to the gate through which Dean entered the property. Both exhibits were admitted into
evidence. On cross-examination, Dean admitted the aerial view of the property showed more than
just the Jim Coleman Company facility. For example, it showed a convenience store and possibly
a hotel. Dean said the first few times he went to Living Modular in Houston, he entered from
Antoine Street. Dean agreed Jim Coleman Company’s address was on West 34th Street, which
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runs perpendicular to Antoine Street. Dean agreed Living Modular occupied the area off Antoine
Street and there were four concrete buildings; two were Living Modular offices and two were
model houses. Dean acknowledged the brochures listed telephones numbers for Wayne and
Randy, but he said he usually called Randy on his cell phone and he used the Jim Coleman
Company switchboard to call Oaks. When asked if he had anything with Jim Coleman Company’s
name on it stating it sponsored Living Modular, Dean replied, “It was [everywhere] that I was at
when I was visiting them at their office. I was at the Jim Coleman Company. I was — it was all
implied [by Randy] and Wayne and Bob Oaks.”
Dean testified he was never told his house was complete and ready to ship, and he was only
shown photos of components that were to be part of the house. Dean said Randy, Wayne, and
Oaks misled him “about their abilities to produce the product,” he was misled about Jim Coleman
Company’s involvement, and he did not know Living Modular was a company separate from Jim
Coleman Company. When asked why he thought the companies would have separate entrances
and there was no mention of Jim Coleman Company in the literature, Dean responded
I came in several times through the Jim Coleman property, to their office complex,
and no one ever told me there was a difference between the two. They made it
seem, verbally and with cards and AutoCADs and introductions to their facility,
made it known that they were one and the same.
Dean said he was led to believe Living Modular was affiliated with Jim Coleman Company.
C. DTPA: Confusion or Misunderstanding
The evidence here shows that, while working in the Living Modular booth at the hunting
show, Randy handed Dean his Jim Coleman Company business card. Randy, Wayne, and Oaks
were all identified as employees of Jim Coleman Company. While in Houston for further meetings
about the modular house, Dean and his wife were taken through the Jim Coleman Company
facilities. A Jim Coleman Company draftsman drew up the blueprints for the house using the
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facility’s AutoCAD. Dean was told Jim Coleman Company could manufacture and sell awnings
as an option for the house. Dean testified, without contradiction, that he was never told Jim
Coleman Company did not have anything to do with the manufacture of modular houses or that
Living Modular was a separate company; he thought Living Modular and Jim Coleman Company
were the same company, but “different wings”; and he thought he was dealing with a well-
established national company that “was affiliated with — you know, it was all one big, happy
family: Coleman, Coleman and Coleman.”
We conclude the evidence is legally sufficient to support a finding under DTPA section
17.46(b)(2) that Randy caused confusion as to the source, sponsorship, approval, or certification
of Living Modular and the modular house. We also conclude the evidence is legally sufficient to
support a finding under DTPA section 17.46(b)(3) that Randy caused confusion as to Living
Modular’s affiliation, connection, or association with, or certification by, Jim Coleman Company.
Accordingly, Randy did not establish error on the face of the record with regard to his liability
under the DTPA. We next determine whether Jim Coleman Company is liable for any conduct by
Randy that produced the same confusion or misunderstanding.
On appeal, Jim Coleman Company asserts there is no evidence that (1) the actions of either
Living Modular or Randy were the actions of Jim Coleman Company and (2) Randy or Living
Modular had authority to bind Jim Coleman Company. The company contends none of the so-
called representations establish it was “connected to” the sales transaction forming the basis of the
suit.
A “DTPA claim based on sponsorship or approval is not dependent on any contractual
relationship between the plaintiff and defendant.” Hennessey v. Vanguard Ins. Co., 895 S.W.2d
794, 803 (Tex. App.—Amarillo 1995, writ denied). In Hennessey, one of the defendants
contended it did not make any representations to the plaintiffs. The court stated as follows:
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If it is appellees’ contention that the DTPA requires an express false representation
by Republic, and that acquiescence to the false representations of another is not
sufficient, we disagree. The purposes of the DTPA would be greatly frustrated by
excusing those who knowingly permit consumers to be misled by false
representations that they have given sponsorship or approval when they, in fact,
have not. This is particularly true when there is a close relationship between the
party making the representation and the party whose sponsorship or approval is
being asserted.
Id. at 804 (emphasis in original).
Here, there is no dispute about the close relationship between Randy and Jim Coleman
Company based on the familial relationship and Randy’s employment by Jim Coleman Company.
There is no dispute that Randy—a Jim Coleman Company employee and member of the Coleman
family—was actively involved in the sale of the modular house to Dean. Randy, Wayne, and Oaks
used Jim Coleman Company facilities and at least one other Jim Coleman Company employee
drafted the blueprints. A reasonable jury could have inferred Jim Coleman Company acquiesced
in the use of its facilities and employees for the purpose of selling the modular houses. Also, Dean
believed Living Modular operated on Jim Coleman Company’s business premises. Finally, Randy
told Dean that Jim Coleman Company could manufacture and sell awnings as an add-on option
for the house. We conclude the evidence is legally sufficient to support the finding under DTPA
section 17.46(b)(2) that Jim Coleman Company caused confusion as to the source, sponsorship,
approval, or certification of Living Modular and the modular house. 6 We also conclude the
6
Jim Coleman Company also asserts there is no evidence that it intentionally engaged in any false, deceptive or unfair
act or practice. Section 17.46(b)(2) does not require a showing of intent. See Miller v. Keyser, 90 S.W.3d 712, 716
(Tex. 2002) (“A consumer is not required to prove intent to make a misrepresentation to recover under the DTPA.”);
Tex. Real Estate Comm’n v. Asgari, 402 S.W.3d 814, 819 (Tex. App.—San Antonio 2013, no pet.) (quoting Miller);
Smith v. Herco, Inc., 900 S.W.2d 852, 859 (Tex. App.—Corpus Christi 1995, writ denied) (“Intent to misrepresent, or
knowledge that a representation is untrue, has never been an element of a DTPA ‘laundry list’ claim unless the specific
provision requires intent.”); see also Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex. 1980) (“The ‘laundry list’
of violations in § 17.46(b) includes only four ‘acts or practices’ under which intent or knowledge is expressly required
before a violation of the Act will be found: subdivisions (9), (10), (13), and (17). The legislature obviously was aware
of the “intent” question since it did require intent or knowledge under these four subdivisions. Certainly if it meant
for intent to be a requirement for all violations it would not have written it into four specific items without requiring
it under the other subdivisions of § 17.46(b).”).
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evidence is legally sufficient to support a finding under DTPA section 17.46(b)(3) that Jim
Coleman Company caused confusion as to Living Modular’s affiliation, connection, or association
with, or certification by, Jim Coleman Company.
Because the evidence is sufficient to support the jury’s finding that at least one of the
laundry list prohibitions in section 17.46(b) was violated, we need not address appellants’
contentions as to the remaining alleged violations. McLeod v. Gyr, 439 S.W.3d 639, 650 (Tex.
App.—Dallas 2014, pet. denied) (holding same); Main Place Custom Homes, Inc. v. Honaker, 192
S.W.3d 604, 625 (Tex. App.—Fort Worth 2006, pet. denied) (same); see also TEX. R. APP. P. 47.1
(opinion must address every issue necessary to final disposition of appeal).
D. Producing Cause
“A consumer may maintain an action where any of the following constitute a producing
cause of economic damages or damages for mental anguish: (1) the use or employment by any
person of a false, misleading, or deceptive act or practice that is: (A) specifically enumerated in a
subdivision of Subsection (b) of Section 17.46 of this subchapter; and (B) relied on by a consumer
to the consumer’s detriment . . . .” TEX. BUS. & COM. CODE § 17.50(a)(1). On appeal, Dean’s
reliance and detriment is not specifically challenged. Instead, Jim Coleman Company asserts there
is no evidence that its misconduct was a producing cause of Dean’s damages.
Producing cause requires that the act be both a cause in fact and a substantial factor in
causing the plaintiff’s injuries. Brown v. Bank of Galveston, 963 S.W.2d 511, 514 (Tex. 1998);
Ibarra v. Nat’l Constr. Rentals, Inc., 199 S.W.3d 32, 35 (Tex. App.—San Antonio 2006, no pet.).
A producing cause is an efficient, exciting, or contributing cause that in the natural sequence of
events produces injuries or damages. Id. An act or omission is a cause in fact of an injury, if
without it, the harm would not have occurred. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.
2005); Ibarra, 199 S.W.3d. at 35. Conversely, an act or omission is not a cause in fact if it does
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no more than furnish a condition that makes the injury possible. Urena, 162 S.W.3d at 551; Ibarra,
199 S.W.3d. at 36.
When asked for his impression about what would happen if Living Modular could not
perform or if the Coleman brothers could not deliver the house, Dean replied: “Well, they were
backed by — they billed as a nationwide company, the Jim Coleman Company, and that they were
— they could build car washes all over the nation, they could surely build a concrete home to [sic]
South Texas.” Dean stated the fact that Jim Coleman Company was a national company affected
his decision to buy the house.
Considering the evidence in the light most favorable to the jury’s verdict, indulging every
reasonable inference that would support it, crediting favorable evidence if a reasonable factfinder
could, and disregarding contrary evidence unless a reasonable factfinder could not, we conclude
the evidence at trial would enable reasonable and fair-minded people to find that Dean invested in
the modular house because he believed Jim Coleman Company—a national company—was
affiliated with Living Modular. Therefore, the evidence is legally sufficient to support a finding
of producing cause.
DAMAGES
Appellants complain the trial court awarded damages in the amount of $47,659.38, but
Dean pled for only $39,204. Appellants state Dean “should get his money back but only the money
that he paid to Living Modular for the house that Living Modular failed to deliver and for” only
the amount he pled in his petition.
Although a judgment must conform to the pleadings, any error in this regard is waived
where the party fails to object to the amount of the judgment. Borden, Inc. v. Guerra, 860 S.W.2d
515, 525 (Tex. App.—Corpus Christi 1993, writ dism’d); Siegler v. Williams, 658 S.W.2d 236,
240-41 (Tex. App.—Houston [1st Dist.] 1983, no writ). The party making such an objection
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should do so in a motion to limit the judgment to the amount pleaded or raise the issue in a motion
for new trial. Id. Here, appellants did not move that the judgment be limited to the amount of the
pleadings and did not raise this issue in a motion for a new trial. Therefore, this complaint is not
preserved for our review on appeal.
Appellants also challenge the trial court’s award of additional damages under DTPA
section 17.50, which allows a prevailing consumer to obtain three times the amount of economic
damages if the trier of fact finds that the conduct of the defendant was committed knowingly. TEX.
BUS. & COM. CODE § 17.50(b)(1). Here, the trial court awarded three times the amount of
economic damages, $142,978.14. Appellants assert the evidence is legally insufficient to support
a finding that they acted knowingly.
The jury was instructed that “knowingly” means “actual awareness of the falsity,
unfairness, or deceptiveness of the act or practice. Actual awareness may be inferred if objective
manifestations indicate that a person acted with actual awareness.” This instruction substantially
tracks the definition of “knowingly” contained in the DTPA. See TEX. BUS. & COM. CODE
§ 17.45(9). Actual awareness may be inferred from the circumstances. K.C. Roofing Co. v.
Abundis, 940 S.W.2d 375, 377 (Tex. App.—San Antonio 1997, writ denied); Century 21 Real
Estate Corp. v. Hometown Real Estate Co., 890 S.W.2d 118, 128 (Tex. App.—Texarkana 1994,
writ denied). However, an award of additional damages cannot be premised on conduct that is
inadvertent. Century 21 Real Estate Corp., 890 S.W.2d at 128.
Here, Randy handed Dean his Jim Coleman Company business card. Randy and Wayne
both told Dean they were employees of Jim Coleman Company. Dean and his wife were shown
through Jim Coleman Company’s facilities in Houston when the couple discussed purchasing a
modular house. Randy and Wayne officed at Jim Coleman Company. A draftsman who worked
at the company drew up the blueprints for the modular house. Models of the houses were on Jim
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Coleman Company’s property in Houston, and the company could make and deliver optional
awnings for the house. Although circumstantial, we believe this evidence is legally sufficient to
support a finding that Randy and Jim Coleman Company acted knowingly. 7
ATTORNEY’S FEES
Appellants assert the evidence in support of the award of attorney’s fees is legally
insufficient because the testimony was “conclusory,” and the fees were not segregated among the
three defendants and the two causes of action pled by Dean. Appellants did not raise a failure to
segregate complaint before the trial court; therefore, that complaint is not preserved for our review
on appeal. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (holding parties waive error
regarding failure to segregate attorney’s fees by failing to object); see also TEX. R. APP. P. 33.1(a).
Dean presented two witnesses in support of his request for an award of attorney’s fees.
Dean’s attorney, Charlie Webb, testified he believed a reasonable hourly rate for handling a case
such as this one was $250 per hour for himself and $120 per hour for his associate. The trial court
admitted into evidence a “Summary of Attorney’s Fees and Expenses” that detailed the date of the
expense, the nature of the expense, and the name of the attorney and hours billed toward the
expense. Webb also testified an additional 125 hours had been billed, which were not included on
the summary, and he anticipated more fees would be billed until the conclusion of trial. Appellants
did not challenge Webb at trial about the dates, nature of any expense, or the amount of time billed.
Dean also called Fred Dreiling as an expert. Dreiling, also an attorney, said he was familiar
with the eight Arthur Andersen factors a factfinder may consider when determining the
reasonableness of attorney’s fees. 8 Based on his evaluation of the services provided to Dean and
7
For this reason, we conclude Randy did not establish error on the face of the record with regard to damages.
8
See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) ((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)
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the eight factors, Dreiling testified $250 was a reasonable fee for a case such as this and a lawyer
with Webb’s experience. Dreiling believed attorney’s fees in the range of $25,000 to $50,000 was
appropriate for this case. Dreiling said his testimony would be the same for either the DTPA claim
or the breach of contract claim. No questions were asked of Dreiling on cross-examination.
On this record, we conclude the evidence was not conclusory and was legally sufficient to
support the award of attorney’s fees. 9
JOINT AND SEVERAL LIABILITY
The trial court awarded identical sums against each defendant, and the judgment contains
no joint and several liability language. In their final issue, appellants assert the judgment amounts
to multiple recoveries for a single injury. On appeal, Dean agrees the injury sued upon was single
and indivisible, but he contends there is nothing in the judgment to suggest it is anything other
than a joint and several judgment. Because Living Modular, Randy, and Jim Coleman Company
are jointly and severally liable for the full amount of the trial court’s award (economic damages,
additional damages, interest, attorney’s fees, and court costs), the judgment should be modified to
include joint and several liability.
CONCLUSION
For the reasons set forth above, we modify the judgment to include joint and several
liability and affirm as modified.
Sandee Bryan Marion, Chief Justice
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 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).
9
For this reason, we conclude Randy did not establish error on the face of the record with regard to the award of
attorney’s fees.
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