John F. Helm v. Artie G. Kingston ( 2011 )

NUMBER 13-10-00224-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHN F. HELM, Appellant,
v.
ARTIE G. KINGSTON, Appellee.
On appeal from the 319th District Court of
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Benavides
Memorandum Opinion by Justice Garza
This is an appeal from a judgment awarding damages and attorney‘s fees in a
construction dispute. A jury found appellant, John F. Helm, liable for misrepresentation
under the Deceptive Trade Practices-Consumer Protection Act (―DTPA‖), TEX. BUS. &
COM. CODE ANN. §§ 17.41–.63 (West 2011), and awarded damages of over $75,000,
plus $95,000 in attorney‘s fees, to appellee Artie G. Kingston. By seven issues on
appeal, which we reorganize as five, Helm contends: (1) the Residential Construction
Liability Act (―RCLA‖), TEX. PROP. CODE ANN. §§ 27.001–.007 (West Supp. 2010),
applied to Kingston‘s claims; (2) Kingston‘s claims were barred by limitations and
repose; (3) the evidence was insufficient to support the judgment; (4) Helm should have
been permitted to assert the corporate form as a defense and to join necessary third
parties; and (5) the award of attorney‘s fees was contrary to law. Kingston raises one
issue on cross-appeal. We affirm.
I. BACKGROUND
In 1995, Kingston purchased a residential unit in Greenway Townhouses in
Corpus Christi, Texas, from Greenway Development, Inc. (―GDI‖), for $78,300.
Kingston claims that, prior to the purchase, he was advised by Helm, GDI‘s president,
that the unit at issue was an ―extremely well-built‖ two-bedroom townhouse. After
moving in, Kingston discovered what he believed to be defects in the construction of the
unit. Kingston notified GDI of the defects. GDI attempted to repair the defects but
Kingston was not satisfied, so Kingston hired an attorney and sent Helm a DTPA notice
letter on September 24, 1996, requesting $4,356 in damages and $150 in attorney‘s
fees.1 See TEX. BUS. & COM. CODE ANN. § 17.505(a) (generally requiring plaintiff to give
1
The notice letter complained of the following defects:
1. The end of certain shoe moldings are not painted.
2. The front door frame is not properly painted.
3. Sheetrock nails are working out and are exposed.
4. Sheetrock seams which were coming apart have been repaired but not
repainted.
2
defendant sixty days‘ written notice before filing suit under the DTPA).
Subsequently, on March 13, 1997, Kingston filed suit, asserting claims of fraud
and negligent misrepresentation as well as various DTPA claims. Kingston named
Helm, GDI, GDI‘s construction manager, Dean Park, and Park‘s company, Construction
and Real Estate Investment Corporation, Inc. (―CREIC‖), as defendants. The original
petition alleged that Helm ―fraudulently induced Kingston to believe that the townhouse
evidenced the highest quality of workmanship when in fact the quality of workmanship
was atrocious.‖ Helm answered and later brought a counterclaim against Kingston for,
among other things, filing a frivolous suit.2 See TEX. PROP. CODE ANN. § 27.0031 (―A
party who files a suit under this chapter that is groundless and brought in bad faith or for
purposes of harassment is liable to the defendant for reasonable and necessary
attorney‘s fees and court costs.‖).3
The case proceeded to trial in 1999. After Kingston presented his case-in-chief,
the trial court granted Helm‘s motion for directed verdict, ruling that the evidence was
5. Utility room is not to specification (too small).
6. The bathtub was constructed with a flaw or damaged prior to or during
installation; someone tried to patch the flaw, putting some sort of filler in place of
the enamel which was chipped away.
7. The back door frame is not properly painted.
8. There are noticeable dirty fingerprints on ceiling beam left, presumably, by some
craftsman.
9. Ceiling fan area not painted where sheetrock repair was done.
10. Defective fireplace floor tile installation (tile broken at time of installation).
2
Helm later filed an amended counter-petition naming CREIC as a counter-defendant.
3
In 1998, Park filed a notice with the trial court indicating that he had filed for bankruptcy and that
his debts had been discharged by the bankruptcy court. As a result, Kingston non-suited Park.
Additionally, after the 1999 directed verdict in favor of Helm, Kingston non-suited GDI, and Helm non-
suited CREIC.
3
insufficient as a matter of law to find Helm liable in his individual capacity. Kingston
appealed, and we reversed. Kingston v. Helm, 82 S.W.3d 755 (Tex. App.—Corpus
Christi 2002, pet. denied). We concluded that Helm‘s status as an agent of GDI did not
insulate him from personal liability for his own tortious conduct. Id. at 758–64. We also
held that article 2.21 of the Texas Business Corporations Act does not require the
corporate veil to be pierced in order to hold a corporate agent individually liable for the
agent‘s own tortious conduct. Id. at 764–67; see Act of June 17, 1983, 68th Leg., R.S.,
ch. 442, 1983 TEX. GEN. LAWS 2566–67 (expired Jan. 1, 2010) (current version at TEX.
BUS. ORGS. CODE ANN. § 21.223 (West Supp. 2010)).
A second trial was not held until 2009. The primary issue at trial was whether,
under the Corpus Christi city code, the unit purchased by Kingston was actually an
apartment—not a townhouse—by virtue of the fact that the unit had a one-hour firewall
rather than a two-hour firewall. The jury found Helm liable on the DTPA
misrepresentation claim, finding that Helm ―engage[d] in [a] false, misleading, or
deceptive act or practice that [Kingston] relied on to his detriment and that was a
producing cause of damages to [Kingston].‖ See TEX. BUS. & COM. CODE ANN. § 17.46.
In a separate question, the jury declined to find that Helm acted ―knowingly‖ in making
the misrepresentations. The jury awarded $75,862.29 to Kingston, representing the
―reasonable and necessary cost to repair‖ the unit at issue so that it is ―the property it
was represented to be.‖ The jury additionally awarded $95,000 in trial attorney‘s fees to
Kingston, as well as $10,000 upon an unsuccessful appeal to this Court and $3,000
upon an unsuccessful appeal to the Texas Supreme Court. The final judgment which
was rendered on the verdict included $48,770.09 in pre-judgment interest as well as five
4
percent post-judgment interest accruing from the date of the judgment until the time the
judgment is paid. This appeal followed.
II. DISCUSSION
A. Residential Construction Liability Act
By his first issue, Helm argues that Kingston failed to satisfy the requirements of
the RCLA. He claims that Kingston‘s failure to ―plead or prove any allegations under the
RCLA‖ ―preempts‖ Kingston‘s claims for statutory fraud and DTPA violations, and that
the application of the RCLA limits Kingston‘s damages.
The version of the RCLA in effect at the time Kingston filed suit expressly applied
to ―any action to recover damages resulting from a construction defect‖ other than
claims for personal injury, survival, wrongful death, or damage to goods. Act of June
18, 1993, 73rd Leg., R.S., ch. 797, § 3, 1993 TEX. SESS. LAW SERV. 3171, 3172
(effective Aug. 30, 1993) (amended 1999, 2003) (current version at TEX. PROP. CODE
ANN. § 27.002). ―Construction defect‖ was defined in part as ―a matter concerning the
design, construction, or repair of a new residence, of an alteration of or addition to an
existing residence, or of an appurtenance to a residence, on which a person has a
complaint against a contractor.‖ Id. § 1, 1993 TEX. SESS. LAW SERV. at 3171 (current
version at TEX. PROP. CODE ANN. § 27.001).
The statute contained provisions requiring a claimant to give a contractor sixty
days‘ notice of a construction defect claim, and permitting the contractor to then make a
written settlement offer to the claimant within 45 days of receiving the notice. Id. § 5,
1993 TEX. SESS. LAW SERV. at 3172 (current version at TEX. PROP. CODE ANN. § 27.004).
If the claimant ―unreasonably reject[ed]‖ a contractor‘s settlement offer, or did not allow
5
the contractor a reasonable opportunity to repair the defect, the claimant‘s damages
would then be capped at ―the reasonable cost of repairs which are necessary to cure
the construction defect and which are the responsibility of the contractor,‖ and only
attorney‘s fees incurred before the rejection of the offer would be recoverable. Id.
―Contractor‖ was defined as:
a person contracting with an owner for the construction or sale of a new
residence constructed by that person or of an alteration of or addition to
an existing residence, repair of a new or existing residence, or
construction, sale, alteration, addition, or repair of an appurtenance to a
new or existing residence [or] a risk retention group registered under
Article 21.54, Insurance Code, that insures all or part of a contractor‘s
liability for the cost to repair a residential construction defect.
Id. § 1, 1993 TEX. SESS. LAW SERV. at 3171.
In response, Kingston contends that: (1) Helm was not a ―contractor‖ as defined
by the statute; (2) Helm waived the issue by failing to tender a written offer of settlement
within 45 days of being notified of Kingston‘s claims, see id. § 5, 1993 TEX. SESS. LAW
SERV. at 3172; and (3) Helm waived the issue by failing to request a jury instruction as
to whether Helm was a ―contractor‖ under the statutory definition.
We agree that Helm has waived this issue. Texas Rule of Civil Procedure 279
states that ―[u]pon appeal all independent grounds of recovery or of defense not
conclusively established under the evidence and no element of which is submitted or
requested are waived.‖ TEX. R. CIV. P. 279. First, the evidence at trial did not
conclusively establish Helm‘s status as a ―contractor‖ under the statutory definition. In
fact, Helm himself testified at a pre-trial hearing that ―I was not a contractor‖ with respect
to Kingston‘s unit; he additionally stated at trial that ―I don‘t do building,‖ explaining that
his role instead was to secure financing, and that Park was tasked with the actual
6
construction of the unit at issue. Second, Helm did not submit or request the inclusion
in the jury charge of any question related to his RCLA defense. Accordingly, Helm‘s
complaints on appeal regarding the RCLA are waived under rule 279. See id. We
overrule his first issue.
B. Limitations and Repose
Helm contends by his second issue that a new trial should be granted because
Kingston‘s claims regarding the unit‘s firewall were barred by limitations and the statute
of repose.
As noted, Kingston‘s original petition, filed on March 13, 1997, alleged that Helm
―fraudulently induced Kingston to believe that the townhouse evidenced the highest
quality of workmanship when in fact the quality of workmanship was atrocious.‖ The
original petition elaborated as follows:
The following constitute, without limitation, examples of the workmanship
in the townhouse: the bathtub is installed in a flawed and patched
condition; the fireplace tile has cracked as a result of improper installation;
painting throughout the townhouse is improperly done; there are defects in
the vinyl flooring and in the driveway in back of the townhouse; nails are
working out of the sheetrock resulting in the exposure of nail heads;
fingerprints can be evidenced on a ceiling beam; and the carport and
townhouse roof are not properly flashed together.
Kingston‘s tenth amended petition, filed on May 1, 2007, retained those allegations and
also included an allegation that the unit at issue ―was not constructed as a townhouse
with two-hour firewalls and other features required by the City of Corpus Christi Building
Code . . . .‖4 Helm argues that the claims related to the firewall are barred because
4
Kingston‘s thirteenth amended petition, his live pleading at trial, contained the following revised
allegation: ―[T]he construction of the [unit at issue] constitutes a fire hazard because it does not have
two[-]hour resistant firewalls that are required for townhouses by the Standard Building Code adopted and
utilized by the City of Corpus Christi, Texas.‖
7
Kingston ―had knowledge of a defect in the firewall‖ as early as 1997 but did not assert
them until 2007.
DTPA claims are governed by a two-year statute of limitations. TEX. BUS. & COM.
CODE ANN. § 17.565. Under the statute, all such claims must be brought ―within two
years after the date on which the false, misleading, or deceptive act or practice occurred
or within two years after the consumer discovered or in the exercise of reasonable
diligence should have discovered the occurrence of the false, misleading, or deceptive
act or practice.‖ Id. However, an amended or supplemented pleading ―that changes the
facts or grounds of liability or defense‖ is not subject to limitations ―unless the
amendment or supplement is wholly based on a new, distinct, or different transaction or
occurrence.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 (West 2008).
Helm points to Sanders v. Construction Equity, Inc., 42 S.W.3d 364 (Tex. App.—
Beaumont 2001, no pet.), in arguing that Kingston‘s failure to specifically allege his
firewall-related claims until 2007 bars those claims. In Sanders, the plaintiffs originally
alleged only that there was ―a defective fireplace and gas logs that did not work
properly.‖ Id. at 366. After the statute of limitations had run, the plaintiffs filed an
amended petition making additional complaints regarding the construction of their
house. Id. The court held that the new claims were time-barred because they were
―wholly based on a new, distinct, or different transaction or occurrence.‖ Id. at 369.
Specifically, the court found that:
While it is true that the defects added by the second amended petition all
arise out of the building and the sale of the house, the original pleading
was specific. The Sanders[es] complained only of the ―defective fireplace
and/or logs‖ and the consequential damages flowing from those defects.
The new complaints do not relate to the fireplace and logs at all, but are a
8
myriad of complaints terminating in the conclusion by the Sanders[es] that
the house was just poorly constructed overall.
Id. Helm argues that the same reasoning applies here because ―the construction of a
two[-]hour versus a one[-]hour firewall is an entirely different defect than was claimed in
the original petition.‖ Because Sanders is readily distinguishable, we disagree. Here,
unlike in Sanders, Kingston‘s original petition contained a broad, general allegation that
―the quality of workmanship‖ in the unit at issue ―was atrocious.‖ The specific
allegations contained in the original petition were explicitly set forth ―without limitation‖
as mere examples of construction defects. And, Kingston‘s later complaint regarding
the firewall was not ―wholly based on a new, distinct, or different transaction or
occurrence‖ than that alleged in his original petition; rather, that complaint related back
to Kingston‘s original contention regarding the overall quality of workmanship. The
complaint regarding the firewall was therefore not barred by the statute of limitations.
Helm further contends that the statute of repose5 applicable to the construction or
repair of improvements to real estate bars Kingston‘s firewall claims. That statute
provides that suit ―against a person who constructs or repairs an improvement to real
property‖ based on a claim ―arising out of a defective or unsafe condition of the real
property or a deficiency in the construction or repair of the improvement‖ must be
brought ―not later than 10 years after the substantial completion of the improvement.‖
TEX. CIV. PRAC. & REM. CODE ANN. § 16.009(a) (West 2002).6 However, repose is an
5
―A statute of repose in a general sense is a legislative enactment which sets a period of time
within which an action may be brought. A statute of limitation is a category of repose statute.‖ Johnson v.
Ft. Worth, 774 S.W.2d 653, 654 (Tex. 1989) (citations omitted). In a more specific sense, a statute of
repose runs from a specified date without regard to accrual of any cause of action, unlike traditional
limitations provisions, which begin running upon accrual of a cause of action. Trinity River Auth. v. URS
Consultants, 889 S.W.2d 259, 261 (Tex. 1994).
6
The statute further states that, if the claimant presents a written claim for damages within the
9
affirmative defense which must be pled and proven by the defendant. Ryland Group,
Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996); Ehler v. LVDVD, L.C., 319 S.W.3d 817,
821 (Tex. App.—El Paso 2010, no pet.); Nexen Inc. v. Gulf Interstate Eng’g Co., 224
S.W.3d 412, 416 (Tex. App.—Houston [1st Dist.] 2006, no pet.). We agree with
Kingston that Helm has waived this issue by failing to plead it.
Helm‘s second issue is overruled.
C. Evidentiary Sufficiency
By his third issue, Helm contends that, as a matter of law, his statement to
Kingston that the unit at issue was of ―good quality‖ cannot support a finding of
misrepresentation under the DTPA, and that any such statement was not a producing
cause of Kingston‘s damages. He further argues that Kingston ―completely failed to
mitigate his damages.‖
We construe these arguments as challenges to the legal sufficiency of the
evidence supporting the jury‘s verdict. We will sustain such a challenge only if: (1)
there is 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; or (4) the
evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson,
168 S.W.3d 802, 810 (Tex. 2005). We consider the evidence in the light most favorable
to the verdict, and indulge every reasonable inference that would support it. Id. at 822.
To establish a DTPA claim, Kingston was required to show: (1) that he was a
ten year period, the period is extended for two years after the claim is presented. TEX. CIV. PRAC. & REM.
CODE ANN. § 16.009(c) (West 2002). Moreover, if the claimant‘s alleged injury occurs in the tenth year of
the limitations period, the claimant may bring suit within two years after the day the cause of action
accrues. Id. § 16.009(d).
10
consumer7; (2) that Helm engaged in false, misleading, or deceptive acts; and (3) that
these acts constituted a producing cause of Kingston‘s damages. See TEX. BUS. & COM.
CODE ANN. § 17.50(a)(1); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,
478 (Tex. 1995).
1. Statement of Fact or Opinion
Helm contends that his statement to Kingston that the unit at issue was of ―good
quality‖ was mere puffery or opinion, and therefore the evidence was insufficient to
establish that he engaged in a false, misleading, or deceptive act under the DTPA. See
Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex. 1980) (holding that
―[m]isrepresentations, so long as they are of a material fact and not merely ‗puffing‘ or
opinion, are . . . actionable‖ under the DTPA); Autohaus v. Aguilar, 794 S.W.2d 459,
462 (Tex. App.—Dallas 1990, writ denied).
Whether a statement is a statement of fact8 or merely one of opinion or mere
puffery depends on the circumstances in which the statement is made. Transport Ins.
Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex. 1995). Courts have generally considered
three factors in making this determination. Humble Nat’l Bank v. DCV, Inc., 933 S.W.2d
224, 230 (Tex. App.—Houston [14th Dist.] 1996, writ denied). First, the court examines
the specificity of the alleged misrepresentation. Id. An imprecise or vague
representation may constitute a mere opinion. Id. Second, courts will compare the
knowledge of the buyer and the seller. Id. (citing Autohaus, 794 S.W.2d at 463).
7
Helm does not contest the sufficiency of the evidence showing that Kingston was a consumer.
8
―A statement of fact is one that (1) admits of being adjudged true or false in a way that (2)
admits of empirical verification.‖ Presidio Enters., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 679
(5th Cir. 1986) (applying Texas law).
11
Whether a representation is merely an expression of opinion depends in part upon
whether the seller asserts a fact of which the buyer is ignorant, or merely states an
opinion or judgment on a matter on which the seller has no special knowledge and on
which the buyer may be expected to have an opinion and exercise his judgment. Id.
(citing Royal Business Machines, Inc. v. Lorraine Corp., 633 F.2d 34, 41 (7th Cir.
1980)); see U.S. Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432,
436–37 (1937) (―Superior knowledge of seller, in conjunction with the buyer‘s relative
ignorance, operates to make the slightest divergence from mere praise into
representations of fact effective as a warranty.‖). Finally, courts look at whether the
representation pertains to a past or current event or condition, or to a future event or
condition. Humble Nat’l Bank, 933 S.W.2d at 230.9
Considering the relevant factors, we find that Helm‘s statements are actionable
under the DTPA. We note first that, according to Kingston, Helm‘s representations went
beyond merely asserting that the unit was of ―good quality.‖ Rather, Kingston testified
at trial that during their meeting in 1997, Helm represented to him that the unit was an
―extremely well built . . . two-bedroom townhouse with a rebar foundation.‖ These
statements are not mere puffery or opinion. While the representation that the unit was
―extremely well built‖ is general and vague, the other representations made by Helm are
specific. Helm, as president of GDI, was in a position to have ―superior knowledge‖
about the quality of the unit in general, and about the alleged firewall defect in particular.
9
Courts have held that even an opinion may be actionable if: (1) it is ―intertwined‖ with ―direct
representations of present facts‖; (2) ―the speaker has knowledge of its falsity‖; (3) it is ―based on past or
present facts‖; or (4) the speaker has ―special knowledge of facts that will occur or exist in the future.‖
GJP, Inc. v. Ghosh, 251 S.W.3d 854, 889 (Tex. App.—Austin 2008, no pet.) (quoting Trenholm v. Ratcliff,
646 S.W.2d 927, 930–31 (Tex. 1983)).
12
That is, Kingston could not have reasonably been ―expected to have an opinion and
exercise his judgment‖ as to the veracity of Helm‘s representations. Id. And, the
statements made by Helm related to a past or present condition: namely, the quality of
the workmanship in the completed unit.
Finally, it is noteworthy that the DTPA specifically authorizes an action based on
a misrepresentation about the ―quality‖ of a product. In particular, section 17.46(b)(7)
provides that ―representing that goods or services are of a particular standard, quality,
or grade, or that goods are of a particular style or model, if they are of another‖ is a
false, misleading or deceptive act or practice. TEX. BUS. & COM. CODE ANN. §
17.46(b)(7). In Presidio Enterprises, Inc. v. Warner Bros. Distributing Corp., 784 F.2d
674 (5th Cir. 1986), the Fifth Circuit, applying Texas law, held that a statement by the
defendant that a movie would be a ―blockbuster‖ was mere puffing or opinion as to
―quality‖ and thus was not actionable under the DTPA. The court explained:
The inapplicability of the DTPA to subjective opinions on aesthetic matters
is particularly manifest in the provisions of section 17.46(b)(7) referring to
the ―standard, quality, or grade‖ of ―goods or services.‖ The Texas
Supreme Court has defined ―quality‖ under this section as ―a measure of
degree; as to particular goods quality may be calibrated by standard or
grade, as with eggs or meat, or specified by style or model, as with
machinery.‖ Pennington, 606 S.W.2d at 687 (emphasis added). It goes
almost without saying that the quality of motion pictures cannot be
―calibrated‖ in this way. . . . No matter how one slices them, artistic works
simply do not belong on a slab alongside ―eggs, meat, and machinery,‖
and we decline to put them there unless and until the legislature and
courts of Texas indicate that Texas law departs in this respect from the
salutary principles of the common law.
Id. at 686–87. Residential housing units are not artistic works for which quality is
inherently a matter of subjective judgment. Rather, the quality of workmanship in such
13
units may be objectively judged by reference to precise specifications and well-defined
terms. We conclude that Helm‘s statements are actionable under the DTPA.10
2. Producing Cause
Helm also argues by his third issue that there was no evidence supporting the
jury‘s finding that his representations were a ―producing cause‖ of Kingston‘s damages.
Again, we disagree. Kingston testified that he relied on Helm‘s representations when he
decided to purchase the townhouse. Viewing this testimony in the light most favorable
to the verdict, see City of Keller, 168 S.W.3d at 822, we conclude that the evidence was
sufficient to support this element.
3. Mitigation of Damages
Finally, Helm contends by his third issue that judgment should be rendered in his
favor because Kingston ―completely failed to mitigate his damages.‖ Generally, if a
plaintiff fails to mitigate his damages by treating his injury ―as a reasonable prudent
person would have done in the same or similar circumstances,‖ the plaintiff cannot
recover damages proximately resulting from that failure. Gunn Infiniti v. O’Byrne, 996
S.W.2d 854, 862 (Tex. 1999) (citing Moulton v. Alamo Ambulance Service, Inc., 414
S.W.2d 444, 447, 449 (Tex. 1967)). More specifically, a plaintiff may not recover
damages that could have been avoided or minimized ―at a trifling expense or with
10
At oral argument, Helm‘s counsel argued that, under our 2002 opinion, a party cannot be held
individually liable for misrepresentation unless the jury finds that the party acted ―knowingly.‖ See
Kingston v. Helm, 82 S.W.3d 755, 759 (Tex. App.—Corpus Christi 2002, pet. denied) (―The law is well-
settled that a corporate agent can be held individually liable for fraudulent statements or knowing
misrepresentations even when they are made in the capacity of a representative of the corporation.‖).
According to Helm‘s counsel, because the jury failed to find that Helm acted ―knowingly,‖ he cannot be
held individually liable. Assuming, but not deciding, that Helm‘s interpretation of our 2002 opinion is
correct, we nevertheless note that Helm has not raised this issue in his appellate brief, and so we do not
consider it. See French v. Gill, 206 S.W.3d 737, 743 (Tex. App.—Texarkana 2006, no pet.) (―An issue or
counter-issue may not be raised for the first time at oral argument unless the issue has been first
presented in the [party‘s] written brief.‖) (citing Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.
1998)).
14
reasonable exertions.‖ Mondragon v. Austin, 954 S.W.2d 191, 195 (Tex. App.—Austin
1997, writ denied); see Gunn Infiniti, 996 S.W.2d at 858 (―[A] plaintiff in a DTPA case
has the same duty to mitigate damages as in other cases.‖).
The burden of proof on the issue of mitigation is on the defendant. Am. W.
Airlines, Inc. v. Tope, 935 S.W.2d 908, 915 (Tex. App.—El Paso 1996, no writ) (citing
Gulf Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983) (op. on reh‘g)).
When a party attacks the legal sufficiency of an adverse finding on an issue on which it
has the burden of proof, that party must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v.
Francis, 46 S.W.3d 237, 241 (Tex. 2001).
The jury was asked to include in the damages award only ―[t]he reasonable and
necessary cost to repair, and make the [unit] to be the property it was represented to
be.‖ The jury was specifically instructed not to include in its damages award ―any
amount that you find [Kingston] could have avoided by the exercise of reasonable care.‖
Kingston‘s expert, general contractor Richard Guerra-Prats, testified that the cost to
―cure the construction defects‖ would be $31,268.99, and that the cost to ―make this unit
comply with the building code requirements for a townhouse‖ would be $44,593.30, for
a total of $75,862.29. The jury awarded exactly $75,862.29 in damages to Kingston,
indicating that it concluded that Kingston could not have avoided any of the damages by
the exercise of reasonable care. We therefore must determine whether the evidence
established, as a matter of law, that Kingston could have avoided some of the damages
by the exercise of reasonable care. See id.
15
With respect to the second element of damages identified in the jury charge—the
cost to ―make the [unit] to be the property it was represented to be‖—we find that the
evidence did not establish that Kingston could have avoided those damages by the
exercise of reasonable care. Guerra-Prats testified that, in order to convert the unit
from an apartment into a townhouse, the entire set of units at Greenway Townhouses
would have to be torn down, because ―it‘s not considered a townhome unless there‘s a
minimum of two units.‖ Plainly, such an undertaking would involve much more than ―a
trifling expense,‖ see Mondragon, 954 S.W.2d at 195, and would not be reasonable
given that Kingston only owns his particular unit.
With respect to the first element of damages—the ―reasonable and necessary
cost to repair‖ the identified defects—Kingston appeared to concede that the defects
could have been repaired for $6,500. Kingston testified on cross-examination as
follows:
Q. [Helm‘s counsel] Okay. Now, you just mentioned that you did not—
you did not trust anybody that Mr. Helm[‘s] company
or Mr. Park‘s company would hire to go in and effect
the repairs?
A. [Kingston] That‘s correct.
Q. Okay. And so did you think about [sic] you could
have just hired somebody, had whoever you wanted
go in there and do those repairs that are listed in the
letter and then sent the bill?
A. With the approval of my attorney, yes, sir.
Q. With the approval of your attorney, that‘s right. And
you might have spent $5,000 because that claim
there is for a little less than $5,000, right?
A. That‘s correct.
16
Q. And some attorney[‘]s fees, right?
A. That‘s correct.
Q. And so you could have hired whoever you wanted,
whoever you had faith and trust in to go in and effect
all those repairs and do whatever you wanted and
just sent the bill to them?
A. Yes, sir.
Q. And tacked on even $1500?
A. Yes, sir, with the items I wanted at that time, yes, sir.
Q. You could have done that?
A. Yes, sir.
Q. But instead, you chose to file a lawsuit the first time,
correct?
A. That‘s correct.
....
Q. So at any time if you didn‘t trust Mr. Helm[‘s]
company or Mr. Park‘s company, you could have
either hired anybody you wanted, anybody in Corpus
Christi or the surrounding area to either address the
issues in [the DTPA notice] letter for less than $5,000
and however much you wanted to charge in
attorney‘s fees and sent the bill over to Mr. Helms‘
company and Mr. Park‘s company?
A. Had I—yes, I could have. Yes, I could have.
....
Q. And everyone else but you, Mr. Kingston, has made
money off of those units[11] and you just refuse to fix
up your unit, get it done to what it needs to be done
11
Helm‘s counsel was referring to evidence indicating that other purchasers of units at Greenway
Townhouses had since sold their units at a profit.
17
and then go on down the road. Why are you doing
that to yourself?
A. Because we initiated a lawsuit back in 1997.
Helm argues that this testimony establishes as a matter of law that Kingston
could have avoided all but $6,500 of the amount associated with making repairs to his
unit.12 We disagree. Kingston did testify that he could have had all of the defects
alleged in his DTPA notice letter repaired for $6,500. However, Kingston‘s original
petition—and the thirteen amended petitions that followed—alleged defects above and
beyond those which were included in the DTPA letter.13 Guerra-Prats‘s estimate
covered all of the alleged defects, not just the ones asserted in the DTPA letter. The
evidence did not conclusively establish that $6,500 would have been sufficient to repair
the defects alleged in the DTPA letter as well as the additional defects alleged in
Kingston‘s pleadings and testified to at trial. Accordingly, Helm has not satisfied his
burden to show that Kingston could have avoided any of his damages by the exercise of
reasonable care.
Helm‘s third issue is overruled.
D. Designation of Responsible Third Parties
12
In response, Kingston argues that ―Helm‘s so-called offer to make repairs was a charade‖
because his ―intent was only to fix what he wanted, and nothing else.‖ We do not find that Kingston failed
to mitigate his damages; however, we note that whether Helm‘s offer to make repairs was sufficient or
even sincere is immaterial. Helm was merely required to show as a matter of law that, with the exercise
of reasonable care, Kingston could have avoided some of the damages that he claimed he suffered. See
Gunn Infiniti v. O’Byrne, 996 S.W.2d 854, 862 (Tex. 1999) (citing Moulton v. Alamo Ambulance Service,
Inc., 414 S.W.2d 444, 447, 449 (Tex. 1967)); Am. W. Airlines, Inc. v. Tope, 935 S.W.2d 908, 915 (Tex.
App.—El Paso 1996, no writ) (citing Gulf Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983)
(op. on reh‘g)).
13
For example, Kingston‘s thirteenth amended petition contained the following allegations of
defects that were not included in the DTPA notice letter: (1) ―painting throughout the [unit] was improperly
done‖; (2) ―there are defects in the vinyl flooring and in the driveway in the back of the [unit]‖; and (3) ―the
ceiling is warped and sags between the ceiling joists.‖
18
By his fourth issue, Helm argues that the trial court erred in not allowing him to
assert the corporate form as a defense14 or to designate GDI and CREIC as responsible
third parties.15 Helm filed his motion to designate responsible third parties on April 12,
2007 and, after a hearing, the trial court rendered an order denying the motion on June
7, 2007.
Chapter 33 of the civil practice and remedies code allows a defendant to move
for the designation of a ―responsible third party,‖ which is defined as
any person who is alleged to have caused or contributed to causing in any
way the harm for which recovery of damages is sought, whether by
negligent act or omission, by any defective or unreasonably dangerous
product, by other conduct or activity that violates an applicable legal
standard, or by any combination of these.
TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (West 2008). The trial court must grant
such a motion if filed timely, unless the plaintiff files an objection and establishes that
the defendant, after being given the opportunity to replead, ―did not plead sufficient facts
concerning the alleged responsibility of the person to satisfy the pleading requirement of
the Texas Rules of Civil Procedure.‖ Id. § 33.004(g) (West 2008). We review a trial
court‘s denial of a motion to designate a responsible third party for abuse of discretion.
MCI Sales & Serv. v. Hinton, 272 S.W.3d 17, 36 (Tex. App.—Waco 2008), aff’d, 329
S.W.3d 475 (Tex. 2010); In re Arthur Andersen LLP, 121 S.W.3d 471, 483 (Tex. App.—
Houston [14th Dist.] 2003, orig. proceeding) (noting that ―a trial court ordinarily has great
discretion regarding joinder of third parties‖).
14
Helm argues vaguely that the trial court did not allow him to ―assert the corporate form as a
defense‖; however, he does not present any argument as to this issue other than that relating to the trial
court‘s denial of his motion to designate responsible third parties. Accordingly, we construe this issue as
complaining solely about that denial.
15
Helm also moved to designate Park as a responsible third party. The trial court denied the
request and Helm does not challenge that decision on appeal.
19
Helm‘s specific factual assertions regarding the alleged responsibility of GDI and
CREIC were contained in his motion to designate. In that motion, Helm asserted that
―at all relevant times during the construction and marketing of the [unit] he was acting in
his corporate capacity as an officer of GDI.‖ Helm also claimed that, ―according to the
terms of a joint venture agreement between GDI and CREIC, CREIC was responsible
for building the . . . units and GDI would secure funding for the project and act as the
marketing agent for the . . . units.‖ Finally, Helm contended that GDI is a ―proper and
responsible third party‖ because ―title to the subject property properly passed from GDI
to [Kingston] through [Helm] acting in his corporate capacity for GDI . . . .‖
In response, Kingston contends that Helm‘s position fails because it contradicts
the law of the case as set forth in our prior 2002 opinion stemming from this litigation. 16
See Kingston, 82 S.W.3d at 755; see also Loram Maint. of Way, Inc. v. Ianni, 210
S.W.3d 593, 596 (Tex. 2006) (noting that, under the law of the case doctrine, questions
of law decided on appeal to a court of last resort will govern the case throughout its
subsequent stages). Kingston specifically argues that, in our prior opinion, we found
that ―Helm could not assert the corporate form and was subject to individual liability for
his own DTPA violations, even if he was acting as an agent for GDI.‖ That is only half
correct. In 2002, we were asked only to determine whether the trial court erred in
granting a directed verdict dismissing Kingston‘s claims against Helm personally. See
Kingston, 82 S.W.3d at 758. We concluded that ―Helm may be held liable individually
16
Kingston also argues that Helm waived this issue, noting that Helm had unsuccessfully
attempted to designate Park and CREIC as responsible third parties prior to the 2002 appeal, but failed to
raise a cross-point to the 2002 appeal challenging the trial court‘s ruling as to those parties. We assume,
but do not decide, that Helm did not waive the issue.
20
for the torts he is alleged to have personally committed,‖ id. at 764, noting the general
rule of agency law that:
An agent who does an act otherwise a tort is not relieved from liability by
the fact that he acted at the command of the principal or on account of the
principal, except where he is exercising a privilege of the principal, or a
privilege held by him for the protection of the principal‘s interest, or where
the principal owes no duty or less than the normal duty of care to the
person harmed.
Id. (citing RESTATEMENT (SECOND) OF AGENCY § 343 (1958)). We never held, as
Kingston claims, that Helm could not assert the corporate form as a defense. Rather,
we held only that Helm could be found liable in his personal capacity if the evidence
supported such a finding, and that the directed verdict in favor of Helm in his personal
capacity was therefore improper. The law of the case doctrine does not preclude Helm
from challenging the trial court‘s denial of his motion to designate GDI and CREIC as
responsible third parties.
Nevertheless, because Kingston objected to Helm‘s motion to designate, Helm
was under an obligation to ―plead sufficient facts concerning the alleged responsibility‖
of the alleged responsible third parties ―to satisfy the pleading requirement of the Texas
Rules of Civil Procedure.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(g). We conclude
that he failed to do so. As noted, Helm‘s motion to designate made only the following
factual assertions: (1) Helm was acting on behalf of GDI when he made the alleged
misrepresentations; (2) CREIC and GDI were responsible for building and funding the
units, respectively; and (3) title to the unit at issue passed from GDI to Kingston through
Helm. The latter two factual allegations do not establish a basis for finding either GDI or
CREIC liable for misrepresentation. The first fact may have provided a basis for finding
GDI liable because ―generally, a corporate officer‘s acts on the corporation‘s behalf are
21
deemed to be acts of the corporation.‖ Kingston, 82 S.W.3d at 758 (citing Leitch v.
Hornsby, 935 S.W.2d 114, 117–18 (Tex. 1996)). However, as we noted in 2002, ―[t]he
general rule is that directors or officers of a corporation are individually liable to third
parties for their fraudulent acts and for damages resulting from false representations
they make to third persons regarding material matters.‖ Id. at 764 (citing 19 C.J.S.
CORPORATIONS § 546 (1990)). Moreover, GDI‘s liability, if any, under these facts would
have been solely vicarious or derivative because it would have been based exclusively
on Helm‘s misrepresentations. We have previously held that a party whose liability is
solely vicarious or derivative in nature does not ―meet[] the definition of a responsible
third party‖ because it is only ―vicariously liable for [the defendant‘s] actions and thus
stands in the same position in this case as [the defendant] himself.‖ F.F.P. Operating
Partners, L.P. v. Duenez, 69 S.W.3d 800, 807–08 (Tex. App.—Corpus Christi 2002)
(noting that ―[a] vicariously liable party‘s right of recovery against the tortfeasor is
through indemnity rather than contribution‖), rev’d on other grounds, 237 S.W.3d 680
(Tex. 2007); see Conkle v. Chery, No. 03-08-00379-CV, 2009 Tex. App. LEXIS 1385, at
*14–15 (Tex. App.—Austin Feb. 25, 2009, no pet.) (mem. op.) (noting that courts have
held that vicariously liable parties should not be included in the jury‘s apportionment
determination). Accordingly, GDI could not have been held liable for Helm‘s alleged
misrepresentations under the alleged facts.
Helm asserts alternatively that, ―even though the third parties may not have
misrepresented anything to Kingston, they may be liable for fraud because they
allegedly participated in the fraudulent transactions and reaped the benefits.‖ For that
proposition, Helm cites In re Arthur Andersen LLP, 121 S.W.3d at 474, which involved
22
the collapse of Enron Corporation (―Enron‖). In that case, several Enron shareholders
sued Enron‘s president and chief executive officer, Ken Lay, among other parties,
alleging that Lay misrepresented to them that ―they would make lots of money if they
invested in Enron.‖ Id. The plaintiffs contended that the executives concealed certain
transactions from shareholders in order to hide Enron‘s debts and artificially inflate its
earnings. Id. at 479–80. The defendants, including accounting firm Arthur Andersen,
sought to designate several financial institutions as responsible third parties, but the trial
court denied the motion. Id. The Fourteenth Court of Appeals held that this was an
abuse of discretion in part because both sides conceded that the third parties were
―intimately involved‖ in the concealed transactions. See id. at 484.
Helm is correct that, under Andersen, third parties may be liable for fraud if they
―participated in the fraudulent transactions and reaped the benefits.‖ Id. at 481.
However, Helm never specifically alleged that GDI or CREIC participated in Helm‘s
alleged fraudulent transactions or reaped the benefits therefrom; instead, the liability of
those parties was based solely on vicarious responsibility for the individual acts of Helm
and Park, respectively. See F.F.P. Operating Partners, L.P., 69 S.W.3d at 807–08.
Moreover, Andersen is distinguishable from the instant case. First, the Andersen court
utilized an earlier and significantly different version of the statute authorizing the
designation of responsible third parties.17 Second, the Andersen court noted that the
17
The prior version of the statute defined ―responsible third party‖ as any person to whom all of
the following apply:
(1) the court in which the action was filed could exercise jurisdiction over the person;
(2) the person could have been, but was not, sued by the claimant; and
(3) the person is or may be liable to the plaintiff for all or a part of the damages
claimed against the named defendant or defendants.
23
parties made ―broad, sweeping allegations‖ with respect to the third-party financial
institutions and that those entities ―play a pivotal role in the stories the Plaintiffs will tell
the jury.‖ 121 S.W.3d at 484. The court explained:
[A]s the brief history of this debacle shows and these pleadings allege, the
fall of Enron is not about one person, or even a few people; it is the story
of a host of actors. On these pleadings, asking the jury, or us, to look only
at Lay, Fastow, Skilling, Andersen, and some of its partners, is like asking
someone to look only at the eye of the hurricane and to ignore the furor
surrounding it. Neither is an accurate picture.
Id. The instant case, on the other hand, does not involve ―a host of actors‖; rather, the
only acts alleged to have caused Kingston‘s damages were conducted solely by Helm.
For the foregoing reasons, we conclude that Helm ―did not plead sufficient facts
concerning the alleged responsibility of‖ GDI or CREIC such that the denial of his
motion to designate those entities as responsible third parties would constitute an abuse
of discretion. Helm‘s fourth issue is overruled.
E. Attorney’s Fees Award
Helm claims by his sixth issue that the jury‘s award of $95,000 in trial attorney‘s
fees to Kingston was ―contrary to law.‖ He argues that ―this case involved no novel
issues of law nor required any special activity on behalf of the attorneys, other than the
exercise of patience.‖
The DTPA provides that ―[e]ach consumer who prevails shall be awarded court
costs and reasonable and necessary attorneys‘ fees.‖ TEX. BUS. & COM. CODE ANN. §
17.50(d). In determining whether a fee award is reasonable, we consider the following
factors: (1) the time and labor required, novelty, and difficulty of the question presented
Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 TEX. SESS. LAW SERV. 971, 972 (amended 2003).
24
and the skill required to properly perform the legal service; (2) the likelihood that the
acceptance of employment precluded 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 performing the services; and (8)
whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex. 1997). A litigant is not required to present evidence on each
of these factors. In re Estate of Vrana, 335 S.W.3d 322, 329–30 (Tex. App.—San
Antonio 2010, pet. denied) (citing Burnside Air Conditioning & Heating, Inc. v. TS.
Young Corp., 113 S.W.3d 889, 898 (Tex. App.—Dallas 2003, no pet.); Acad. Corp. v.
Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.—Houston
[14th Dist.] 2000, no pet.)). Rather, we also look at the entire record, the evidence
presented on reasonableness, the amount in controversy, the common knowledge of
the participants as lawyers and judges, and the relative success of the parties in
determining the reasonableness of the fee award. Garrod Invs., Inc. v. Schlegel, 139
S.W.3d 759, 767 (Tex. App.—Corpus Christi 2004, no pet.).
We review a jury‘s finding of the amount of reasonable and necessary attorney‘s
fees incurred for sufficiency of the evidence. Carlile v. RLS Legal Solutions, Inc., 138
S.W.3d 403, 409 (Tex. App.—Houston [14th Dist.] 2004, no pet.). ―We must be mindful,
however, that we are reviewing a jury‘s verdict and may not substitute our judgment for
that of the factfinder.” C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex.
App.—Houston [1st Dist.] 2004, no pet.). When a party attacks the legal sufficiency of
25
an adverse finding on an issue it did not have the burden to prove at trial, it must
demonstrate that there is no evidence to support the adverse finding. Carlile, 138
S.W.3d at 409. In reviewing a no-evidence issue, we consider all of the record
evidence in a light most favorable to the verdict and indulge every reasonable inference
from that evidence in support of the verdict. Id.
Kingston‘s expert testified that, given the age of the case (thirteen years from the
time suit was filed until trial), the first appeal, and the number of trial settings (as many
as twelve), approximately $300,000 was a reasonable fee. On the other hand, Helm‘s
expert testified that $30,000 was reasonable and necessary, given what he viewed as a
simple case with a relatively small amount in controversy at the outset of the litigation.
The jury awarded an amount closer to the estimate of Helm‘s expert than to the
estimate of Kingston‘s expert. In any event, there was evidence adduced supporting
the jury‘s decision, and we may not substitute our judgment for that of the jury. See
C.M. Asfahl Agency, 135 S.W.3d at 802.
Helm suggests that the fee award is unreasonable because it greatly exceeded
the amount of damages awarded. However, in a DTPA case, the ratio between the
actual damages awarded and the attorney‘s fees is not a factor that determines the
reasonableness of the fees. See, e.g., Seabury Homes, Inc. v. Burleson, 688 S.W.2d
712, 716 (Tex. App.—Fort Worth 1985, no writ) (affirming award of $15,000 in attorney‘s
fees and award of $2,000 in damages, trebled to $6,000); Jack Roach Ford v. De
Urdanavia, 659 S.W.2d 725, 730 (Tex. App.—Houston [14th Dist.] 1983, no writ); see
also Tejas Toyota, Inc. v. Coffman, No. 01-06-00347-CV, 2007 Tex. App. LEXIS 3448,
at *16 (Tex. App.—Houston [1st Dist.] May 3, 2007, no pet.) (mem. op.).
26
Helm further contends that Kingston impermissibly failed to segregate the fees
attributable to his causes of action which were unsuccessful. Generally, a party is
required to segregate fees between claims for which fees are recoverable and those for
which they are not, and between successful and unsuccessful causes of action. Chilton
Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 896 (Tex. App.—San Antonio
1996, writ denied) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10–11 (Tex.
1991)). However, an exception to the segregation requirement applies when the
attorney‘s fees incurred are rendered in connection with claims arising from the same
transaction or occurrence and are ‗so interrelated that their prosecution or defense
entails proof or denial of essentially the same facts.‘‖ Id. (citing Stewart Title Guar. Co.,
822 S.W.2d at 11). Here, each of Kingston‘s claims arose from the same transaction or
occurrence and involved ―essentially the same facts.‖ Accordingly, he was not required
to segregate his fees. See id. We overrule Helm‘s sixth issue.
F. Cross-Appeal
On cross-appeal, Kingston argues that he is entitled to post-judgment interest on
the amount of unpaid appellate costs that he was awarded by this Court in connection
with successfully prosecuting his 2002 appeal.
On May 9, 2003, after the Texas Supreme Court denied Helm‘s petition for
review of our 2002 opinion, this Court issued its mandate which awarded Kingston
appellate costs in the amount of $10,312.30. Helm then filed a motion with the trial
court to retain the costs in the trial court‘s registry until final judgment was rendered in
the case. According to a letter that appears in the record, Helm deposited $10,312.30
in the trial court‘s registry on September 22, 2004. On November 3, 2004, the trial court
27
denied Helm‘s motion to retain, and ordered that ―said monies be paid immediately to
[Kingston], and that [Kingston] recover his post-judgment interest as allowed by law.‖
On November 12, 2004, Helm paid Kingston $10,312.30. Subsequently, after final
judgment was rendered in 2009, Kingston moved the trial court to ―recover the accrued
interest on the unpaid amount‖ of costs.18 The trial court denied the motion.
Kingston claims by his cross-issue that the trial court erred by denying that
motion. He claims that he is entitled to interest that accrued on the $10,312.30 amount
from May 9, 2003, the date we issued our mandate, to November 12, 2004, the date
Helm paid the assessed costs, because the ―post-judgment interest‖ referred to in the
trial court‘s November 3, 2004 order ―began accruing on the date the mandate issued‖
for the 2002 appeal. We disagree. It is true that, once our mandate was issued, the
trial court and the parties were bound to comply with our judgment. See TEX. R. APP. P.
51.1(b) (―When the trial court clerk receives the mandate, the appellate court's judgment
must be enforced . . . .‖); see Whitmire v. Greenridge Place Apts., 333 S.W.3d 255, 261
(Tex. App.—Houston [1st Dist.] 2010, pet. dism‘d w.o.j.) (―The trial court has no
jurisdiction to review, interpret, or enforce [the appellate court‘s] mandate; it must
observe and carry it out. Its orders carrying out the mandate are ministerial.‖ (Internal
quotations omitted)). Further, neither Helm‘s motion to deposit the assessed costs in
the trial court‘s registry, nor his actual deposit of those costs in advance of any ruling on
his motion, changed the fact that he conclusively and finally owed the $10,312.30 as of
the date our mandate issued. However, our mandate did not explicitly require Helm to
18
Kingston specifically contends that, because Helm did not include post-judgment interest in his
November 12, 2004 payment, ―the first $793.86 of the $10,312.30 he paid was applied to accrued
interest, leaving an unpaid principal [balance] in the equal amount of $793.86.‖
28
pay interest in the event that he does not immediately pay the assessed costs.
Moreover, Kingston does not direct us to any authority, and we find none, establishing
that Helm was required to pay such interest in the absence of a explicit authorization in
our mandate, or that a trial court errs if it fails to order that such interest be paid. See
TEX. R. APP. P. 38.1(i). We therefore cannot conclude that the trial court erred in
denying Kingston‘s motion to recover the allegedly unpaid amount of interest.
Kingston‘s issue is overruled.
III. CONCLUSION
We affirm the judgment of the trial court.
DORI CONTRERAS GARZA
Justice
Delivered and filed the
21st day of December, 2011.
29