Hidden Forest Homeowners Association v. James K. Hern ( 2011 )

MEMORANDUM OPINION
No. 04-10-00551-CV
HIDDEN FOREST HOMEOWNERS ASSOCIATION,
Appellant
v.
James K. HERN,
Appellee
From the 224th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-09929
Honorable Martha Tanner, Judge Presiding
OPINION ON APPELLANT’S MOTION FOR REHEARING
Opinion by: Phylis J. Speedlin, Justice
Sitting: Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Steven C. Hilbig, Justice
Delivered and Filed: December 7, 2011
AFFIRMED IN PART; REVERSED AND RENDERED IN PART
The motion for rehearing filed by appellant Hidden Forest Homeowners Association is
granted. This court’s opinion and judgment dated June 8, 2011 are withdrawn, and this opinion
and judgment are substituted.
Hidden Forest Homeowners Association (“Hidden Forest”) challenges the trial court’s
judgment, complaining of the award of damages to James K. Hern on his counterclaim for
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Hidden Forest’s breach of its own restrictive covenants, as well as of the amount of attorney’s
fees awarded. We reverse the judgment of the trial court relating to Hern’s counterclaim for
breach of restrictive covenants and render judgment that Hern take nothing on his counterclaims.
We affirm the award of attorney’s fees to Hidden Forest.
BACKGROUND
Hern owns a home located in the Hidden Forest subdivision. The subdivision is
governed by the Hidden Forest Homeowners Association, which was formed pursuant to the
Amended Declaration of Covenants, Conditions and Restrictions of Hidden Forest
(“Declaration”); the Declaration obligates homeowners to pay semiannual assessments. In late
2006, Hern, expecting to be in the United Kingdom for most of 2007, attempted to prepay his
2007 and 2008 assessments, which amounted to approximately $115 every six months. Hidden
Forest declined to accept payment for amounts not yet due and owing at that time. Hern left the
country, and several written notices of delinquency were subsequently mailed to him. Hern
returned to San Antonio for about six days in December of 2007, and admittedly failed to pay his
2007 assessments at that time.
Hidden Forest referred the matter to attorney Tom L. Newton, Jr. for collection. In
January 2008, Newton sent a demand letter to Hern’s home while he was out of the country. In
April 2008, Hidden Forest placed a lien on Hern’s home pursuant to a Notice of Assessment of
Lien, asserting $907.65 as the lien amount ($407.65 in assessments and late fees and $500 in
attorney’s fees and expenses). Two months later, Hidden Forest filed suit against Hern, seeking
foreclosure on its lien as well as monetary damages, including unpaid assessments, interest, and
attorney’s fees. The petition did not assert the amount of the assessments past-due or the
attorney’s fees sought, but the accompanying discovery asked Hern to admit that unpaid
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assessments totaled $425.94 and that $1,500 was a reasonable and necessary amount of
attorney’s fees.
After being served with the lawsuit, Hern attempted to pay Hidden Forest $500 in
attorney’s fees, in addition to court costs and assessments. Hidden Forest refused his offer, and
directed Hern to communicate with their attorney, Newton. Believing $1,500 to be an
unreasonable amount of attorney’s fees, 1 Hern then offered $900 to settle the claim; Hidden
Forest again declined Hern’s offer. Failing to resolve the entire claim, Hern also attempted to
pay just the assessments that were undisputedly past-due, but Hidden Forest would not accept his
money, and instead continued to charge Hern monthly late fees. 2 Hidden Forest also suspended
Hern’s right to vote and to use the common areas and facilities, such as the pool and tennis
courts.
Frustrated by the situation, Hern hired an attorney and filed an answer and counterclaim.
Hern admitted that he failed to pay his 2007 assessments, but denied that the attorney’s fees and
costs asserted by Hidden Forest were reasonable. Hern sought damages for unreasonable
collection practices; Hern also alleged that Hidden Forest had violated its own Declaration by
both suing for foreclosure of Hern’s property and seeking a personal judgment against Hern. In
August 2009, Hern placed $1,750 into the registry of the court, seeking a declaration “as to how
much of said amount, if any, is reasonably owed to [Hidden Forest] by [Hern] after all lawful
offsets” and as a gesture to show that he was not refusing to pay the 2007 assessments and
reasonable attorney’s fees. Hidden Forest rejected the tender of this money.
1
Hern asked Hidden Forest to see an itemization of attorney’s fees sought by Newton, but neither Hidden Forest nor
Newton provided such documentation until Hern secured it via discovery. Hern retained counsel in August 2009.
2
Hern additionally attempted to pay his 2008 assessments (which were not delinquent) after the lawsuit was filed,
but Hidden Forest also rejected these payments since the matter of the 2007 assessments had been referred to legal
counsel.
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At trial, Becky Bowholtz, the former office manager of Hidden Forest, and Alan Cooper,
the President of Hidden Forest, testified, as did Hern. Additionally, counsel for both parties
testified regarding attorney’s fees. Billing records introduced by Newton showed $228 worth of
time for his actual attorney’s fees as of late April 2008 when the lawsuit was filed. Nevertheless,
Hidden Forest sought $25,000 in attorney’s fees through trial, which was held two years later.
The case was submitted to the jury, who found that Hern breached the Declaration’s covenants
and restrictions by failing to pay assessments. The jury found that $946.71 would compensate
Hidden Forest for its damages resulting from Hern’s failure to pay assessments that had accrued
up to the time of trial and that $728.00 was a reasonable amount of attorney’s fees for Hidden
Forest. As to Hern’s counterclaims, the jury found that Hidden Forest engaged in unreasonable
collection practices and breached their own covenants; the jury awarded $11,000 for both such
claims. Hern elected to recover based on Hidden Forest’s breach of its own restrictive
covenants. After offset, trial court rendered a final judgment in Hern’s favor in the amount of
$9,325.29, plus court costs, post-judgment interest, and conditional attorney’s fees in the event of
an appeal. The judgment also denied an order of foreclosure and ordered Hidden Forest to
release the lien filed against Hern’s property within seven days of judgment becoming final.
Hidden Forest timely appealed.
DISCUSSION
On appeal, Hidden Forest challenges the trial court’s judgment on four grounds,
contending the trial court erred in rendering judgment on Hern’s counterclaims of unreasonable
debt collection practices and breach of restrictive covenants. Hidden Forest also complains of
the admission of settlement offers made by Hern, and of the jury’s finding on the amount of
attorney’s fees owed to Hidden Forest.
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Hern’s Counterclaim: Hidden Forest’s Breach of Restrictive Covenants
We first address Hidden Forest’s argument that the trial court erred in rendering
judgment in favor of Hern on a claim for breach of Hidden Forest’s own restrictive covenants 3
because (1) this cause of action was neither pleaded nor tried by consent, and (2) there was no
evidence that Hidden Forest breached the restrictive covenants. Hern’s live pleading at trial was
“Defendant’s Second Amended Answer and Counterclaim.” Hidden Forest complains that
although Hern stated in paragraph 9 that, “Plaintiff has violated its own restrictions in suing for
foreclosure of Hern’s home and seeking a personal judgment against Defendant Hern,” this
statement was not alleged as a separate cause of action and was made “in the context of a host of
facts alleged by Hern to be part of the common law tort of unreasonable collection practices.”
Hidden Forest, however, did not specially except to Hern’s pleadings. See TEX. R. CIV. P. 90. In
the absence of special exceptions, a petition should be construed liberally in favor of the pleader.
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). We therefore hold
that in the absence of special exceptions, Hern pleaded information specific enough to provide
Hidden Forest with notice of the causes of action for which Hern sought relief. See id. at 896-97
(holding Texas follows “fair notice” standard for pleading, which looks to whether the opposing
party can ascertain from pleading nature and basic issues in controversy and what testimony will
be relevant); see also Roark v. Allen, 633 S.W.2d 804, 809-10 (Tex. 1982).
Alternatively, Hidden Forest contends that even if Hern had properly pleaded a cause of
action for breach of restrictive covenants against Hidden Forest, there is no evidence to establish
that Hidden Forest breached its own covenants. Section 8 of Article IV of the Declaration, titled
“Effect of Nonpayment of Assessments: Remedies of the Association,” provides:
3
Hern alleged that Hidden Forest breached its own restrictive covenants by seeking both foreclosure of Hern’s home
and monetary damages. Section 8 of Article IV of the Declaration provides that “[t]he Association may bring an
action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property.”
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Any assessment not paid within thirty (30) days after the due date shall bear
interest from the due date at the rate of eight percent (8%) per annum. The
Association may bring an action at law against the Owner personally
obligated to pay the same, or foreclose the lien against the property. No
owner may waive or otherwise escape liability for the assessments provided for
herein by non-use of the Common Area or abandonment of his Lot.
(emphasis added). At trial, Hern argued that this language allows Hidden Forest to seek either a
money judgment or a lien against a delinquent owner, but not both; thus, Hern argued that
Hidden Forest violated its own covenant when it filed suit against him seeking both a lien and a
money judgment. The jury was asked whether “Hidden Forest Homeowners Association
materially breached the Restrictions as to Mr. Hern in connection with Section 8 (page 6-7) of
the Restrictions (Exhibit 1)?” Hidden Forest objected to the submission of this question; the jury
answered “yes.”
Addressing the primary issue in dispute—whether Hidden Forest breached the
Declaration’s restrictive covenant when it filed suit against Hern seeking both a foreclosure lien
and individual liability—requires us to interpret the language of the restrictive covenant as a
matter of law. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex.
1994). Interpretation of a writing is a legal matter that we review de novo. Ski Masters of Tex.,
LLC v. Heinemeyer, 269 S.W.3d 662, 667 (Tex. App.—San Antonio 2008, no pet.); Sw.
Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322, 324 (Tex. App.—Austin 1999, pet.
denied). Our primary goal is to give effect to the written expression of the parties’ intent. See
Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 741 (Tex. 1998); Owens v. Ousey, 241 S.W.3d
124, 129 (Tex. App.—Austin 2007, pet. denied). Covenants are to be liberally construed, giving
effect to the intent and purposes of the restrictions. TEX. PROP. CODE ANN. § 202.003 (West);
Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex. App.—Houston [1st Dist.] 1994, writ
denied).
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Hidden Forest denies that the Declaration prohibits it from seeking both foreclosure on its
lien and a personal judgment against a delinquent owner. We agree. Although the clause at
issue contains the word “or,” which is usually used in the disjunctive sense, see Spradlin v. Jim
Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000), it does not mandate that Hidden Forest
elect one remedy to the exclusion of the other. See Underwriters at Lloyds of London v. Harris,
319 S.W.3d 863, 866 (Tex. App.—Eastland 2010, no pet.) (the word “or” does not automatically
create a choice between two mutually exclusive options). Because the clause provides that
Hidden Forest “may” bring an action at law or foreclose the lien, the language of the covenant
does not expressly preclude seeking both causes of action at the same time. In fact, the plural
title of section 8, “Remedies of the Association,” implies that Hidden Forest is not limited to a
single remedy. Reading the entirety of the Declaration illustrates that its drafters intended to
give Hidden Forest the power to enforce the covenants and restrictions “by any proceeding at
law or in equity.” Further, the “one recovery” rule would prohibit Hidden Forest from receiving
a double recovery in the event it brings both causes of action. Accordingly, we conclude as a
matter of law that the Declaration does not expressly prohibit Hidden Forest from seeking both a
foreclosure of its lien and a money judgment against a delinquent owner. We therefore sustain
this issue on appeal.
Because we are reversing Hern’s recovery for breach of the restrictive covenants, we
must examine Hidden Forest’s appellate issue related to Hern’s counterclaim for unreasonable
collection practices. See Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244 (Tex.
App.—Houston [14th Dist.] 1999, pet. denied). When a judgment is reversed on appeal on one
theory of recovery, a party may seek recovery under an alternative theory that the jury found in
its favor at the trial court level. Dynegy, Inc. v. Yates, 345 S.W.3d 516, 534 (Tex. App.—San
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Antonio 2011, no pet.) (citing Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex.
1995)). The appellate court should consider the alternative theory and, if possible, render
judgment thereon instead of remanding to the trial court for rendition of judgment under an
alternative theory. Haney, 987 S.W.2d at 244.
Hern’s Second Counterclaim: Unreasonable Debt Collection
The jury was asked whether Hidden Forest—through its agents and/or attorneys—
engaged in unreasonable collection practices against Hern. No accompanying definitions were
submitted. The jury answered “yes,” and further found that $11,000 would reasonably
compensate Hern for his damages proximately caused by such unreasonable collection
practices. 4 On appeal, Hidden Forest alleges that there is no evidence to support one or more
elements of Hern’s counterclaim for unreasonable debt collection practices.
An appellant challenging the legal sufficiency of the evidence to support a finding on an
issue for which it did not have the burden of proof must show that there is no evidence to support
the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). When reviewing a legal
sufficiency challenge, we determine “whether the evidence at trial would enable reasonable and
fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). We view the evidence in the light favorable to the verdict, crediting favorable
evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors
could not. Id.
Unfair collection practices is an intentional tort derived from the common law. EMC
Mortg. Corp. v. Jones, 252 S.W.3d 857, 868 (Tex. App.—Dallas 2008, no pet.); see Duty v. Gen.
4
Hern presented no evidence of physical or mental damages incurred as a result of Hidden Forest’s collection
efforts; instead, the jury was instructed that it may consider “Hern’s attorneys fees reasonably and necessarily
incurred in responding to such practices as damages if such fees were incurred as a proximate cause of such
unreasonable collection practices.” Hern was not awarded exemplary damages on this claim because the jury found
that Hern’s damages did not result from malice by Hidden Forest.
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Fin. Co., 154 Tex. 16, 273 S.W.2d 64, 66 (1954). The Supreme Court of Texas has not directly
addressed the elements to be proven in an action for unfair collection practices. See, e.g., Duty,
273 S.W.2d at 66 (“A decision of the case before us does not require that we undertake to outline
the limits to which such a creditor may go, but we do hold that resort to every cruel device which
his cunning can invent in order to enforce collection when that course of conduct has the
intended effect of causing great mental anguish to the debtor, resulting in physical injury and
causing his loss of employment, renders the creditor liable to respond in damages.”); Moore v.
Savage, 362 S.W.2d 298, 298–99 (Tex. 1962) (per curiam) (refusing to review the definition of
“unreasonable collection efforts” because the issue was not preserved for appeal), ref’g appeal
from 359 S.W.2d 95, 96 (Tex. Civ. App.—Waco 1962, writ ref’d n.r.e.). While the elements are
not clearly defined and the conduct deemed to constitute an unreasonable collection effort varies
from case to case, a plaintiff must generally prove that “[a] defendant[’s] debt collection efforts
‘amount to a course of harassment that was willful, wanton, malicious, and intended to inflict
mental anguish and bodily harm.’” EMC Mortg. Corp., 252 S.W.3d at 868-69.
Texas courts have found the following evidence sufficient to state a cause of action for
unreasonable debt collection: sending a large man to the plaintiff’s home, who “yelling and
screaming, demanded the keys to the house, and told the [Plaintiff’s] family to get out.” EMC
Mortg. Corp., 252 S.W.3d at 864, 870; falsely accusing the plaintiff of committing a crime to
collect a debt, Lloyd v. Myers, 586 S.W.2d 222, 227 (Tex. Civ. App.—Waco 1979, writ ref’d
n.r.e.); sending a large man to the plaintiff’s home, who stood over the plaintiff shouting, shaking
his finger and calling him a liar, Credit Plan Corp. of Houston v. Gentry, 516 S.W.2d 471, 475
(Tex. Civ. App.—Houston [14th Dist.] 1974) rev’d on other grounds in Gentry v. Credit Plan
Corp. of Houston, 528 S.W.2d 571 (Tex. 1975); sending a representative to the plaintiff’s home,
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confronting and embarrassing the plaintiff’s fiancée in front of social guests, Bank of N. Am. v.
Bell, 493 S.W.2d 633, 635 (Tex. Civ. App.—Houston [14th Dist.] 1973, no writ); calling the
plaintiff five times in one night, with the final call including a threat of personal violence,
Pioneer Finance & Thrift Corp. v. Adams, 426 S.W.2d 317, 319 (Tex. Civ. App.—Eastland
1968, writ ref’d n.r.e.). Texas courts have also held that it is unreasonable to persist in collection
efforts once the debtor has informed the collector/lender that the debt has been paid in full. See
Pullins v. Credit Exch. of Dallas, Inc., 538 S.W.2d 681, 683 (Tex. Civ. App.—Waco 1976, writ
ref’d n.r.e.) (holding that repeated and harassing efforts to collect $50 debt were unreasonable
where plaintiff consistently asserted debt was paid). The Fifth Circuit has observed that the tort
of unreasonable collection is intended to deter “outrageous collection techniques.” McDonald v.
Bennett, 674 F.2d 1080, 1089 n.8 (5th Cir. 1982).
Hern alleges that the following actions by Hidden Forest amounted to unreasonable
collection efforts: Hidden Forest failed to accept payment of assessments in advance; after Hern
returned from overseas to San Antonio and was served with a lawsuit, Hidden Forest refused to
accept payment of the assessments and attorney’s fees from Hern that exceeded what he owed
Hidden Forest; Hidden Forest refused to accept undisputedly owed assessments from Hern to
limit the dispute to attorney’s fees, after which it continued to sue Hern for such fees and charge
late fees; Hidden Forest failed to monitor or check its attorney’s fees in violation of its bylaws to
monitor its agents, when Hern, shortly after being sued, repeatedly asked for proof of the high
amount of attorney’s fees; Hidden Forest would not accept payments of assessments as they
became due every six months after the lawsuit was filed.
Considering the totality of these circumstances, we cannot conclude there is any evidence
to support the jury’s finding that Hidden Forest engaged in unreasonable collection practices
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against Hern. Although we do not condone Hidden Forest’s refusal to accept Hern’s prepayment
and subsequent settlement offers, we cannot say that its collection efforts were harassing or
outrageous. Hidden Forest did not repeatedly call Hern or send letters to his home or business.
While Hern attempted to tender payments for amounts that he claims were more than due and
owing, the proposed payments were still less than that demanded by Hidden Forest. Compare
Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL 3565415, at *6 (N.D. Tex.
Sept. 7, 2010) (“While the precise sum the [plaintiffs] owed is in dispute, a reasonable trier of
fact could only find that [plaintiffs] were in default.”) with Pullins, 538 S.W.2d at 682-83 (debt
appeared to be paid in full prior to collector’s harassing efforts). And although it is arguable that
Hidden Forest was unreasonable in claiming such a high amount of attorney’s fees, there is no
evidence that Hidden Forest sought excessive attorney’s fees for the purpose of inflicting mental
anguish and bodily harm on Hern. See EMC Mortg. Corp., 252 S.W.3d at 868 (unreasonable
collection is an intentional tort). On this record, we conclude there is no evidence that Hidden
Forest engaged in the common law tort of unreasonable debt collection. See City of Keller, 168
S.W.3d at 827; see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
Accordingly, Hidden Forest’s first issue is sustained. Given our resolution of the first two issues,
we need not address Hidden Forest’s third issue regarding settlement offers.
Reasonable Attorney’s Fees
Finally, Hidden Forest maintains that the trial court erred by not setting aside the jury’s
finding on the amount of reasonable fees for necessary services of Hidden Forest’s attorneys,
because it was against the great weight and preponderance of the evidence. A party challenging
the factual sufficiency of a jury finding upon which that party had the burden of proof must
demonstrate that “the adverse finding is against the great weight and preponderance of the
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evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must first examine
the entire record to determine if there is some evidence to support the finding. Id. at 241-42. If
there is, we must then determine whether “the finding is so contrary to the overwhelming weight
and preponderance of the evidence as to be clearly wrong and manifestly unjust, or if the great
preponderance of the evidence clearly supports its non-existence.” W. Wendell Hall, Hall’s
Standards of Review in Texas, 42 ST. MARY’S L. J. 1, 42 (2010) (quoting Castillo v. U.S. Fire
Ins. Co., 953 S.W.2d 470, 473 (Tex. App.—El Paso 1997, no writ)). Regardless of whether the
“great weight” challenge is to a finding or a nonfinding, “[a] court of appeals may reverse and
remand a case for new trial [only] if it concludes that the jury’s ‘failure to find’ is against the
great weight and preponderance of the evidence.” Ames v. Ames, 776 S.W.2d 154, 158 (Tex.
1989).
The reasonableness of attorney’s fees is ordinarily left to the trier of fact, and a reviewing
court may not substitute its judgment for the jury’s. Smith v. Patrick W.Y. Tam Trust, 296
S.W.3d 545, 547 (Tex. 2009); Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881
(Tex. 1990) (per curiam). Factors to be considered in determining the amount of attorney’s fees
to be awarded include the following: (1) the time and labor required, novelty and difficulty of the
questions presented, and the skill required; (2) the likelihood that acceptance of employment
precluded other employment; (3) the fee customarily charged for similar services; (4) the amount
involved and the results obtained; (5) the time limitations imposed by the client or the
circumstances; (6) the nature and length of the professional relationship with the client; (7) the
expertise, 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.
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1997). “A reasonable fee is one that is not excessive or extreme, but rather moderate or fair.”
Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).
At trial, counsel for both parties testified concerning attorney’s fees. Newton, a
shareholder with Allen, Stein & Durbin, and lead counsel for Hidden Forest, testified that his
fees through trial were $25,000 based upon his training, education, and experience, and
considering the time and labor involved, novelty of question involved, the skill required to
perform the services, and the fact that the fee arrangement with the client was a contingency fee.
Itemized billing records for all of the attorneys and legal staff working on the case were admitted
into evidence. Newton testified that he personally spent 75 hours on the case, his associate spent
over twelve hours on the case, and his legal assistant spent almost 26 hours. Newton stated that
shareholder attorneys in his firm charge $250.00 per hour, associate attorneys bill at a rate of
$200.00 per hour, and legal assistants charge $125.00 per hour.
Counsel for Hern, Peter L. Kilpatrick, testified that the attorney’s fees sought by Hidden
Forest were unreasonable and should amount to $0. The jury awarded Hidden Forest $728.00 in
attorney’s fees for preparation and trial, $6,250.00 in attorney’s fees for appeal to the court of
appeals, and $2,500 for appeal to the Supreme Court of Texas.
We recognize there was no evidence controverting Newton’s hourly rate; however, the
trier of fact is not required to award attorney’s fees equal to those testified to at trial, even when
that testimony is uncontradicted. See Hicks Oil & Butane Co. v. Garza, No. 04-05-00836-CV,
2006 WL 2263896, at *4 (Tex. App.—San Antonio Aug. 9, 2006, no pet.) (mem. op.) (affirming
award of attorney’s fees that was substantially lower than amount unequivocally testified to at
trial); Inwood N. Homeowners’ Ass’n, Inc. v. Wilkes, 813 S.W.2d 156, 157-58 (Tex. App.—
Houston [14th Dist.] 1991, no writ) (affirming award of $500 in attorney’s fees to plaintiff who
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presented undisputed evidence of approximately $1,500 in attorney’s fees where small amount in
controversy was an “attendant circumstance tending to cast suspicion on the uncontradicted
evidence regarding the attorney’s fee”). Here, the jury was aware of the simplistic nature of
Hidden Forest’s case, which merely sought to recover assessments that Hern admitted he had not
paid. The amount Hidden Forest sought in attorney’s fees was more than 26 times the amount it
recovered due to Hern’s failure to pay assessments. The jury could have rationally determined
that 3.78 hours was a reasonable amount of time to expend in legal services for this case
(dividing $728 awarded in attorney’s fees by Newton’s hourly rate of $250). See Travis Law
Firm v. Woodson Wholesale, Inc., No. 14-07-00204-CV, 2008 WL 4647380, at *4-5 (Tex.
App.—Houston [14th Dist.] Oct. 21, 2008, no pet.) (mem. op.) (holding testimony of $50,887.89
in attorney’s fees was contradicted by attendant circumstances, i.e., fee sought by firm was more
than 84 times the principal amount firm recovered, and affirming award of $1,500 in attorney’s
fees). Accordingly, we hold that the jury’s award of $728 in attorney’s fees for preparation and
trial is not so against the overwhelming weight of the evidence as to be clearly wrong and unjust.
We overrule Hidden Forest’s fourth issue.
CONCLUSION
Based on the foregoing reasons, we reverse the judgment of the trial court insofar as it
relates to Hern’s counterclaim for breach of the restrictive covenants, and render judgment that
Hern take nothing on his counterclaims. We affirm the award of attorney’s fees to Hidden
Forest.
Phylis J. Speedlin, Justice
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