Don Norris and Avery Air Conditioning/Heating and A-ABAC Services, Inc. v. Shelby Jackson ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-265-CV
DON NORRIS AND AVERY APPELLANTS
AIR CONDITIONING/HEATING
AND A-ABAC SERVICES, INC.
V.
SHELBY JACKSON APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. Introduction
Following a bench trial, the trial court entered judgment against Appellants
Don Norris and Avery Air Conditioning/Heating and A-ABAC Services, Inc.
(Avery) and in favor of Appellee Shelby Jackson. In six issues, Norris and Avery
1
See Tex. R. App. P. 47.4.
(collectively, Appellants) contend that the evidence is legally and factually
insufficient to establish that Avery violated the Texas Deceptive Trade Practices
Act (DTPA),2 that Jackson suffered $500 in economic damages, that Norris
committed an unconscionable act, that Jackson suffered $2,500 in mental
anguish damages, that Jackson is entitled to treble damages or attorney‘s fees,
and that Jackson‘s attorney‘s fees are reasonable. We affirm.
II. Background
In response to Avery‘s television, radio, and printed advertisements,
Jackson contacted Avery to purchase a new air conditioner and furnace. Avery
employee Wayne Settles met with Jackson at her home on March 13, 2007.
Among other things, Settles told Jackson that she would receive a $500 tax
certificate from Avery within two weeks,3 a ten-year warranty on parts and labor,
a lifetime warranty on the compressor and heat exchange, and utility bill savings
over three to four years that would equal the purchase price of the air conditioner
and furnace. On March 29, 2007, Jackson signed a Proposal and Agreement
(the Agreement) to pay $8,500 for the replacement and installation of a new
heating and air conditioning unit, which would include insulation, wind turbines,
2
See Tex. Bus. & Com. Code Ann. §§ 17.41 et seq. (Vernon 2002 & Supp.
2010).
3
One of Avery‘s print advertisements states, in part, ―THE GOV‘T WILL
GIVE YOU $500 TO HELP!‖
2
new duct work, and a thermostat.4 Jackson testified that she relied on Settles‘s
representations concerning the $500 tax certificate, the warranties, and cost
recoupment within three to four years when deciding to enter into the Agreement.
Avery employees began installation of the air conditioning and heating unit
on March 30, 2007. Jackson had the installation stopped, though, because the
workers did not bring new ductwork to install; the workers also damaged a door
frame and an antique grandfather clock in Jackson‘s home. Jackson then spoke
with Norris, another Avery employee. Norris attempted to have Jackson
abandon the ductwork replacement because he did not believe it was necessary,
but he eventually told Jackson that the ductwork would be installed the next day.
Jackson also spoke with Avery employee Chris Busby, who represented in
writing that Avery would complete an airflow test and install the ductwork and
wind turbines the next day. Jackson testified that she would have canceled the
Agreement on March 30, 2007, but for Norris‘s and Busby‘s representations.
Avery employees, including Busby, returned to complete the installation on
March 31, 2007, but they did not perform the airflow test, install the ductwork, or
place the wind turbines where Jackson had instructed they be installed (even
though it was possible to do so). As a result, Jackson initially refused to sign the
completion certificate, and Avery employee Larry Clark called Norris. Jackson
testified that while Clark was speaking with Norris by telephone, Clark told her
4
This was actually the second contract between the parties; the first
contract was for $8,200 and did not provide for new duct work.
3
that Norris had authorized a reduction in the contract price from $8,500 to $7,500
to cover the uninstalled ductwork and the damage to the door frame and
grandfather clock. According to Jackson, Clark told her that if she signed the
completion certificate and a new charge slip for $7,500, doing so would modify
the Agreement; he also said that Avery would accept the modification.5 Jackson
testified that Clark also told her that she would continue to have all benefits of the
Agreement, other than the three items included in the price reduction. Jackson
testified that she relied on Clark‘s representations in deciding to sign the
completion certificate and the $7,500 charge slip. That same day, Jackson paid
$7,500 to Avery. Contrary to Jackson‘s testimony, Clark testified that the charge
slip was not a modification of the contract but was instead an agreement by
Avery to allow Jackson to hold the $1,000 until Avery could repair the damage to
the door frame and grandfather clock.
Jackson did not receive the $500 tax certificate from Avery, despite her
repeated calls to Avery requesting the certificate. On June 22, 2007, responding
to Jackson‘s inquiries concerning the tax certificate, Norris called Jackson and
told her that she still owed Avery $1,000. During the call, Norris called Jackson a
crook and a thief, and he told her that she would not get away with taking $1,000
from Avery, that he would put a lien on her house, and that he would take away
5
Clark repeated his statements about the price reduction to William
Jackson, Jackson‘s ex-husband (William). William testified that he had no doubt
after speaking with Clark that the contract price had been permanently reduced
by $1,000.
4
her warranty. Norris admitted to Jackson that he knew on June 22 about
Jackson‘s conversation with Clark on March 31 and that he had told Clark to take
off the $1,000 from the contract price, but he told her that he intended to collect it
later. Norris confirmed the substance of his June 22 conversation with Jackson
to Jackson‘s ex-husband; he told William that Jackson was a thief and had
committed extortion, that ―this has happened before with many customers,‖ that
he would take Jackson to court, and that he had never lost a case. Contrary to
the testimony by Jackson and William, Norris testified that he did not call Jackson
a crook or a thief and that he did not threaten to put a lien on her house.6
Jackson offered evidence of her economic damages relating to the
system‘s airflow, problems with the wind turbines that were not resolved by
Avery, the system not paying for itself in three to four years, and Avery‘s failure to
provide the $500 tax certificate. Jackson also presented evidence of her mental
anguish. She testified, among other things, that during and after the June 22 call
from Norris, her blood pressure went up to 180 from her normal range in the
120s, that her blood pressure remained between 140 and 160 after the call, and
that she confirmed her blood pressure readings with her blood pressure monitor.
She testified that she believed Norris‘s threats, that she was ―scared to death,‖
that his ―bully talking‖ made her feel very intimidated and nervous, and that she
6
On cross-examination, Norris admitted that he pleaded guilty in 2007 to
theft in the amount of $77,500 and in 2006 to theft of a check for more than
twenty but less than $500.
5
could not sleep because of her fear and anxiety that Norris would put a lien on
her house.
In its findings of fact and conclusions of law, the trial court found that
Jackson and Avery had modified the Agreement to reduce the purchase price of
the air conditioner and furnace by $1,000; that Avery violated the DTPA by
representing that the Agreement conferred or involved rights, remedies, or
obligations it did not have or involve and by failing to disclose information with the
intent to induce Jackson into the transaction; that Avery‘s DTPA violations
caused Jackson to suffer $500 in economic damages; that Avery‘s DTPA
violations were committed knowingly; that Jackson‘s $500 in economic damages
should be trebled; and that Jackson should recover $4,000 in attorney‘s fees
from Avery. The trial court also found that Norris violated the DTPA by engaging
in an unconscionable action or course of conduct; that Norris‘s DTPA violation
caused Jackson to suffer $2,500 in mental anguish damages; that Norris‘s DTPA
violation was committed intentionally; that Jackson‘s $2,500 mental anguish
damages should be trebled; and that Jackson should recover $16,000 in
attorney‘s fees from Norris. On July 8, 2009, the trial court signed an amended
final judgment in accordance with its findings of fact and conclusions of law. 7
7
In the amended final judgment, the trial court also awarded Jackson
$7,500 in conditional attorney‘s fees for an appeal to the court of appeals.
6
III. Standards of Review
Findings of fact entered in a case tried to the court have the same force
and dignity as a jury‘s answers to jury questions. Anderson v. City of Seven
Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court‘s findings of fact are
reviewable for legal and factual sufficiency of the evidence to support them by
the same standards that are applied in reviewing evidence supporting a jury‘s
answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,
881 S.W.2d 295, 297 (Tex. 1994). Conclusions of law may not be challenged for
factual sufficiency, but they may be reviewed to determine their correctness
based upon the facts. AMX Enters., L.L.P. v. Master Realty Corp., 283 S.W.3d
506, 519 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh‘g); Dominey v.
Unknown Heirs & Legal Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex.
App.—Fort Worth 2005, no pet.).
We may sustain a legal sufficiency challenge only when (1) the record
discloses 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 a vital
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support the finding
7
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
When reviewing an assertion that the evidence is factually insufficient to
support a finding, we set aside the finding only if, after considering and weighing
all of the evidence in the record pertinent to that finding, we determine that the
evidence supporting the finding is so weak, or so contrary to the overwhelming
weight of all the evidence, that the answer should be set aside and a new trial
ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh‘g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150
Tex. 662, 244 S.W.2d 660, 661 (1951).
IV. DTPA Violations vs. Breach of Contract
In their first issue, Appellants contend there is legally and factually
insufficient evidence to establish that Avery violated the DTPA because the
representations Avery made to Jackson became part of the contract between the
parties and because any failure to satisfy those representations is a breach of
contract, not a violation of the DTPA.
Under the DTPA, a consumer may recover damages incurred as a result of
another‘s false, misleading, or deceptive acts or practices. See Tex. Bus. &
Com. Code Ann. § 17.50(a)(1). However, mere breach of contract, without more,
8
does not violate the DTPA. Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998). But when representations are
made outside the contract, a violation of the DTPA may occur. Cont’l Dredging,
Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 390 (Tex. App.—Texarkana 2003, pet.
denied). Whether a breach of contract rises to the level of a misrepresentation
sufficient to trigger the DTPA is a fact driven inquiry that, once the facts are
ascertained, is a question of law. Id. at 389. When a representation by a
defendant causes no harm itself, but instead the injury or damage was caused by
the breach of contract, that injury is governed by contract law, not the DTPA.
See Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14–15 (Tex. 1996).
In Tony Gullo Motors I, L.P. v. Chapa, the plaintiff alleged that the
defendant promised her one vehicle model, delivered another, and had no
intention of delivering the model it initially promised. 212 S.W.3d 299, 304–05
(Tex. 2006). The supreme court stated, ―[W]hile the failure to deliver a
Highlander Limited would not alone violate the DTPA, Chapa‘s claim was that
Gullo Motors represented she would get one model when in fact she was going
to get another.‖ Id. The court held, ―While failure to comply would violate only
the contract, the initial misrepresentation violates the DTPA.‖ Id. (citing Tex. Bus.
& Com. Code Ann. § 17.46(b)(7), (24)).
Avery‘s actions in this case were more than mere breaches of the parties‘
contract. The trial court found that Avery violated the DTPA by representing that
the Agreement conferred or involved rights, remedies, or obligations it did not
9
have or involve and by failing to disclose information with the intent to induce
Jackson into the transaction. In that regard, Jackson presented evidence that
Avery represented, through Sellers, that Avery would provide Jackson with a
$500 tax certificate, that the representation concerning the $500 tax certificate is
not a stated term of the Agreement, that Jackson relied on the representation
when deciding to enter into the Agreement with Avery, that Avery did not provide
Jackson with a $500 tax certificate, and that Avery does not provide tax
certificates to any of its customers. This evidence was sufficient for the trial court
to find that Avery represented that it would deliver a $500 tax certificate but had
no intention of doing so. In addition, Jackson presented evidence that Avery
agreed to permanently reduce the contract price by $1,000 but later threatened
legal action and counterclaimed against Jackson for the $1,000. Thus, the trial
court had before it additional evidence sufficient to find that Avery failed to
disclose its intent to later collect the $1,000 to induce Jackson into continuing the
transaction. The evidence supports the trial court‘s findings that Avery
represented that the Agreement conferred or involved rights, remedies, or
obligations it did not have or involve and failed to disclose information with the
intent to induce Jackson into the transaction.
Relying on Crawford, 917 S.W.2d at 14, Mays v. Pierce, 203 S.W.3d 564,
575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied), and Head v. U.S.
Inspect DFW, Inc., 159 S.W.3d 731, 743 (Tex. App.—Fort Worth 2005, no pet.),
Appellants argue that Jackson‘s damages were caused by Avery‘s failure to
10
perform the parties‘ contract and not by any representations in violation of the
DTPA. But each of the cited cases is distinguishable. In Crawford, the
defendants represented that the plaintiff‘s business would grow at least seventy
to eighty percent in one year by placement of a yellow pages ad, the parties
contracted for the placement of an ad in the yellow pages, but the ad did not
appear in the yellow pages as promised. See 917 S.W.2d at 12–13. The
supreme court held that the defendants‘ statements ―were nothing more than
representations that the defendants would fulfill their contractual duty to publish.‖
Id. at 14. There was no allegation in Crawford that the defendants never
intended to perform their contractual obligations. See id. at 12–15. In Mays, the
alleged misrepresentations were terms of the parties‘ contract and the
defendant‘s bids after the parties entered into the contract. See 203 S.W.3d at
575. The Mays court held that because there was legally insufficient evidence
that the defendant never intended to perform its contract, the plaintiff‘s
allegations did not rise above a breach of contract claim. Id. And in Head, the
plaintiff‘s complaint related to an explicit term of the parties‘ agreement—that a
licensed real estate inspector would perform the inspection. See 159 S.W.3d at
742–43. Here, Jackson presented evidence of representations that Avery never
intended to satisfy and that were outside the terms of the Agreement: that Avery
would provide Jackson with a $500 tax certificate and that Avery would reduce
the contract price by $1,000.
11
Appellants also argue that the trial court found that all of Avery‘s
representations became part of the Agreement and that, therefore, any failure to
satisfy those representations was a breach of contract. But Appellants ignore the
evidence that Avery never intended to comply with its representations. Thus,
even if Avery‘s representations about the $500 tax certificate and $1,000
reduction in price became part of the Agreement,8 the trial court heard evidence
that Avery never intended to provide a $500 tax certificate or reduce the contract
price by $1,000. The initial representations without the intent to perform violate
the DTPA. See Tony Gullo Motors, 212 S.W.3d at 305.
After reviewing all of the evidence in the light favorable to the trial court‘s
finding, crediting favorable evidence if a reasonable factfinder could, and
disregarding contrary evidence unless a reasonable factfinder could not, we hold
that there is legally sufficient evidence to support the trial court‘s finding that
Avery‘s conduct was actionable under the DTPA. Likewise, after considering and
weighing all of the evidence pertinent to the trial court‘s finding, we cannot say
that the evidence supporting the trial court‘s finding is so weak or contrary to the
overwhelming weight of all the evidence that it should be set aside and a new
trial ordered. We overrule Appellants‘ first issue.
8
It is unclear from the record whether the trial court found that all of Avery‘s
representations to Jackson became part of the Agreement or whether the trial
court found only that Avery‘s representations about the warranties Jackson would
receive became part of the Agreement.
12
V. Economic Damages
Appellants contend in their second issue that the evidence is legally and
factually insufficient to support the trial court‘s finding that Jackson suffered $500
in economic damages as a result of Avery‘s DTPA violation. Specifically,
Appellants argue that Jackson presented no evidence of damages that were not
subsumed within the $1,000 reduction in the Agreement price.
As the trier of fact, the trial court determines the credibility of the witnesses
and the weight to be given their testimony, and we may not substitute our
judgment for that of the fact finder simply because we may disagree with the fact
finder‘s conclusions. Pool, 715 S.W.2d at 635. Because they can observe a
witness‘s demeanor, trial courts are given great latitude as fact finders to believe
or disbelieve a witness‘s testimony, particularly when the witness is interested in
the outcome. In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000). Moreover, the trial
court can reject the uncontroverted testimony of an interested witness unless the
testimony is readily controvertible, clear, positive, and direct and there are no
circumstances that tend to discredit or impeach the testimony. Id.; Lofton v.
Texas Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989).
Jackson presented evidence that Avery did not provide the $500 tax
certificate, that she would not recoup the cost of the new air conditioner and
furnace in three to four years through reduced utility bills, and that the $1000
contract price reduction related only to the damage to the door frame and
grandfather clock and failure to install new ductwork. She also presented
13
evidence that she spent approximately $300 repairing the air flow and $600
having the wind turbines moved to different locations. Thus, the trial court‘s
finding of $500 in economic damages is within the range of evidence Jackson
presented at trial. See Gulf States Util. Co. v. Low, 79 S.W.3d 561, 566 (Tex.
2002) (stating that the fact finder ―has discretion to award damages within the
range of evidence presented at trial‖).
Appellants contend that the trial court could not have based the economic
damage award on the failure to deliver the tax certificate because Jackson did
not rebut Norris‘s testimony that a tax certificate is not required to claim a tax
credit and that Jackson only needed her contract to claim the tax credit. But the
trial court alone determines the weight and credibility of the testimony and could
have validly disregarded Norris‘s testimony.9 See In re Doe 4, 19 S.W.3d at 325;
Lofton, 777 S.W.2d at 386. Furthermore, without considering the $500 tax
certificate, the trial court could have found $500 in economic damages by
accepting some, but not all, of the evidence that Jackson spent $900 repairing
the air flow and moving the wind turbines and that the new air conditioner and
9
To the extent Appellants contend Jackson was required to present expert
testimony that a tax certificate is required to claim the tax credit, Appellants
waived this contention by raising it for the first time in their reply brief. See
Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied). Moreover, expert testimony is not always required to establish
economic damages under the DTPA. See Froemming v. Perez, No. 04-05-
00514-CV, 2006 WL 704479, at *3 (Tex. App.—San Antonio Mar. 22, 2006, no
pet.) (mem. op.) (finding sufficient evidence of $7,000 in economic damages
based on consumer‘s lay testimony of $3,500 paid to defendant orthodontist and
estimated $3,500 to remedy defendant‘s DTPA violations).
14
furnace did not sufficiently lower Jackson‘s utility bills for her to recoup the cost of
the system in three to four years. See State Farm Fire & Cas. Co. v. Rodriguez,
88 S.W.3d 313, 321 (Tex. App.—San Antonio 2002, pet. denied) (―It is
fundamental that a jury may blend the evidence admitted before it and believe all,
some or none of a witness‘s testimony.‖), abrogated on other grounds by Don’s
Bldg. Supply, Inc. v. OneBeacon Ins. Co., 267 S.W.3d 20, 27 (Tex. 2008).
After reviewing all of the evidence in the light favorable to the trial court‘s
finding, crediting favorable evidence if a reasonable factfinder could, and
disregarding contrary evidence unless a reasonable factfinder could not, we hold
that there is legally sufficient evidence to support the trial court‘s finding that
Jackson suffered $500 in economic damages as a result of Avery‘s DTPA
violation. Likewise, after considering and weighing all of the evidence pertinent
to the trial court‘s finding, we cannot say that the evidence supporting the trial
court‘s finding is so weak or contrary to the overwhelming weight of all the
evidence that it should be set aside and a new trial ordered. We overrule
Appellants‘ second issue.
VI. Norris’s Unconscionable Act
Appellants argue in their third issue that the evidence is legally and
factually insufficient to support the trial court‘s finding that Norris committed an
unconscionable act.
The DTPA defines an unconscionable action or course of action as ―an act
or practice which, to a consumer‘s detriment, takes advantage of the lack of
15
knowledge, ability, experience, or capacity of the consumer to a grossly unfair
degree.‖ Tex. Bus. & Com. Code Ann. § 17.45(5). To prove an unconscionable
action or course of action, Jackson was required to show that Norris took
advantage of her lack of knowledge and that the resulting unfairness was
glaringly noticeable, flagrant, complete, and unmitigated. See Bradford v. Vento,
48 S.W.3d 749, 760 (Tex. 2001); Bennett v. Bank United, 114 S.W.3d 75, 82
(Tex. App.—Austin 2003, no pet.). The relevant inquiry examines the entire
transaction, not Norris‘s intent. Chastain v. Koonce, 700 S.W.2d 579, 583
(Tex.1985); Cooper v. Lyon Fin. Servs., Inc., 65 S.W.3d 197, 207 (Tex. App.—
Houston [14th Dist.] 2001, no pet.). ―Section 17.45(5) is intended to be an
objective standard.‖ Chastain, 700 S.W.2d at 583.
Jackson presented evidence that Norris (1) insulted and falsely accused
Jackson of criminal and fraudulent conduct; (2) repeated his accusations to
William; (3) told Jackson that he would cancel her lifetime warranty under the
Agreement; (4) told Jackson that he would place a lien on her residence; (5) told
Jackson that he would ―take her to court‖ and that ―Avery has never lost a case‖;
(6) told William that he would charge Jackson‘s credit card for the additional
$1,000 under the Agreement; and (7) admitted to William that he and Avery
never intended to honor the $1,000 modification of the Agreement. Norris is
Avery‘s general manager, and Jackson is a retired, single, elderly woman with no
college degree. Jackson testified that she believed Norris‘s threats and suffered
physical manifestations of mental anguish; she also relied on Norris‘s agreement
16
to reduce the Agreement price by $1,000. This evidence is sufficient to prove
that Norris took advantage of Jackson‘s lack of knowledge and that the resulting
unfairness was glaringly noticeable, flagrant, complete, and unmitigated. See
Bradford, 48 S.W.3d at 760; Bennett, 114 S.W.3d at 82.
The evidence is also sufficient to prove that Norris acted intentionally.
―Intentionally‖ is defined by the DTPA to mean ―actual awareness of the falsity,
deception, or unfairness of the act or practice‖ together ―with the specific intent
that the consumer act in detrimental reliance on the falsity or deception.‖ See
Tex. Bus. & Com. Code Ann. § 17.45(13). Section 17.45(13) further provides
that intent ―may be inferred from objective manifestations that indicate that the
person acted intentionally.‖ Id. Norris, through Clark, told Jackson that the
Agreement price would be reduced by $1,000 if she signed the completion
certificate and the charge slip. But Norris told William that he never intended to
honor the $1,000 modification, and in the June 22 telephone call, Norris
threatened Jackson and accused her of criminal conduct while trying to collect
the additional $1,000.
Relying on Chastain, Appellants argue that Norris‘s conduct during the
June 22 telephone call with Jackson cannot support the trial court‘s finding
because the conduct occurred several months after the original transaction. See
700 S.W.2d at 584. In Chastain, the purchasers of five rural homesteads sued
vendors for threats made over the telephone and alleged unconscionable action
in violation of the DTPA. Id. at 580. But the court held that ―[t]he phone
17
conversation occurred approximately one year after the alleged
misrepresentations occurred and [did] not reflect on the unfairness of the original
transaction.‖ Id. Here, Norris spoke with Jackson on June 22 because Jackson
had called to inquire about the $500 tax certificate she had not yet received.
Thus, Norris‘s unconscionable conduct occurred during the course of the
transaction between Jackson and Avery. See Houston Livestock Show & Rodeo,
Inc. v. Hamrick, 125 S.W.3d 555, 575–76 (Tex. App.—Austin 2003, no pet.)
(distinguishing Chastain and holding that the unconscionable actions occurred
during the course of the transaction because they occurred before the defendant
had made payment to the consumers).
After reviewing all of the evidence in the light favorable to the trial court‘s
findings, crediting favorable evidence if a reasonable factfinder could, and
disregarding contrary evidence unless a reasonable factfinder could not, we hold
that there is legally sufficient evidence to support the trial court‘s findings that
Norris committed an unconscionable act and acted intentionally. Likewise, after
considering and weighing all of the evidence pertinent to the trial court‘s findings,
we cannot say that the evidence supporting the trial court‘s findings is so weak or
contrary to the overwhelming weight of all the evidence that they should be set
aside and a new trial ordered. We overrule Appellants‘ third issue.
VII. Mental Anguish Damages
Appellants contend in their fourth issue that the evidence is legally and
factually insufficient to support the trial court‘s finding that Jackson is entitled to
18
mental anguish damages. They argue that the evidence does not reveal mental
anguish severe enough to warrant monetary recovery or a basis for $2,500 in
mental anguish damages.
Section 17.50(b)(1) of the Texas Business and Commerce Code allows the
award of mental anguish damages on a DTPA claim if the trier of fact finds that
the conduct of the defendant was committed ―intentionally.‖ Tex. Bus. & Com.
Code Ann. § 17.50(b)(1). To recover mental anguish damages under the DTPA,
the plaintiff must present ―direct evidence of the nature, duration, and severity of
[the] mental anguish, thus establishing a substantial disruption in the [plaintiff's]
daily routine.‖ Latham v. Castillo, 972 S.W.2d 66, 69–70 (Tex. 1998); see
Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Anderson v. Long,
118 S.W.3d 806, 811 (Tex. App.—Fort Worth 2003, no pet.). Proof of a physical
manifestation of mental anguish is not required. City of Tyler v. Likes, 962
S.W.2d 489, 495 (Tex. 1997); Parkway, 901 S.W.2d at 443. But a plaintiff's own
testimony of extreme fright, constant worry, extreme apprehension, extreme
embarrassment, nervousness on a daily basis, and loss of sleep does not,
without more, present more than a scintilla of evidence to support an award of
mental anguish damages. Anderson, 118 S.W.3d at 811 (citing Latham, 972
S.W.2d at 69–70).
Jackson testified that she is seventy years old and receives no financial
support from her children, former husband, or anyone else; that she has a limited
income, lives on a budget, and has to be frugal; that her blood pressure had
19
stayed in the 120s before the June 22 telephone call with Norris; that her blood
pressure went up to 180 during and immediately after the telephone call with
Norris and was staying ―way over 140, 160 usually‖ since the call; that there were
no factors other than Appellants‘ actions that caused her high blood pressure;
that she believed Norris‘s threats; that she previously had no trouble sleeping but
could not sleep after the telephone call because of her fear that a lien would be
placed on her house; that Norris‘s ―bully talking‖ made her feel very intimidated,
nervous, and ―very scared‖; that she is no longer the content and happy person
she was before the telephone call; and that she is tired from the stress, is
worried, is not as energetic, and is irritable with her grandchildren. William
testified that Jackson was very upset and frightened immediately after the
telephone call with Norris; that he personally observed how Norris‘s conduct
affected Jackson; that Jackson constantly worried about the situation and was
―really, really upset‖; that she is now irritable with her grandchildren to the point
where he thought other arrangements for their care should be made for
Jackson‘s sake; that Jackson called him late at night, when she was normally
asleep, to talk about what happened; that Jackson‘s health had gone downhill a
lot since the telephone call; and that Jackson was normally a very organized
person but had lost control since the telephone call. This evidence constitutes
―‗direct evidence of the nature, duration, and severity of [Jackson‘s] mental
anguish,‘ and established ‗a substantial disruption in [Jackson‘s] daily routine.‘‖
CA Partners v. Spears, 274 S.W.3d 51, 78 (Tex. App.—Houston [14th Dist.]
20
2008, pet. denied) (quoting Parkway, 901 S.W.2d at 444, and holding that the
plaintiff presented legally and factually sufficient evidence of mental anguish
damages).
Citing Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 861 (Tex. 1999),
Appellants contend that Jackson was required to prove that ―Norris‘s DTPA
violation was the sole proximate cause of her mental anguish, not Avery or some
other cause.‖ First, the causation standard in DTPA cases is producing cause,
not proximate cause. See Prudential Ins. Co. of Am. v. Jefferson Assoc., Ltd.,
896 S.W.2d 156, 160–61 (Tex. 1995). Second, Jackson‘s evidence relates to
her mental anguish following the June 22 telephone call with Norris, not the
issues she had with Avery concerning the actual installation of the air conditioner
and furnace. Thus, Jackson presented sufficient evidence that Norris‘s conduct
during the June 22 telephone call was the producing cause of her mental anguish
damages. See Doe v. Boys Club, Inc., 907 S.W.2d 472, 481 (Tex. 1995)
(defining producing cause in context of a DTPA misrepresentation claim to be ―a
substantial factor which brings about the injury and without which the injury would
not have occurred.‖); see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46
(Tex. 2007) (defining producing cause in product liability case to be ―a substantial
factor in bringing about an injury, and without which the injury would not have
occurred‖).
Appellants also argue that Jackson offered insufficient evidence to support
the $2,500 in mental anguish damages found by the trial court. They argue that
21
―the trial court just picked the number $2,500 out of the blue‖ and ―did not
incorporate a finding that the $2,500 would fairly and reasonably compensate
Jackson for her mental anguish.‖ In Saenz v. Fidelity & Guaranty Insurance
Underwriters, our supreme court held that there must be evidence that the
amount of damages awarded by the jury for mental anguish was fair and
reasonable. See 925 S.W.2d 607, 614 (Tex. 1996). But the court acknowledged
that such determination is often difficult:
There must be evidence that the amount found is fair and
reasonable compensation, just as there must be evidence to support
any other jury finding. Reasonable compensation is no easier to
determine than reasonable behavior—often it may be harder—but
the law requires factfinders to determine both. And the law requires
appellate courts to conduct a meaningful evidentiary review of those
determinations.
Id.
In this case, the trial court was in the best position to determine the weight
and credibility of the testimony from Jackson and William concerning the physical
manifestations of Jackson‘s mental anguish and the disruption in her life. In
addition, we note that although the trial court awarded all of the $2,500 in mental
anguish damages that Jackson requested, the trial court did not award a majority
of the other damages that Jackson sought. See Schindler Elevator Corp. v.
Anderson, 78 S.W.3d 392, 415 (Tex. App.—Houston [14th Dist.] 2001, pet.
granted, judgm‘t vacated w.r.m.) (reasoning that an award of some damages and
not others indicates the fact finder ―measured carefully‖ the damages issue).
Thus, it appears from the record that the trial court did more than ―simply pick a
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number and put it in the blank.‖ See Saenz, 925 S.W.2d at 614. The evidence is
sufficient to support the trial court‘s implied finding that $2,500 would fairly and
reasonably compensate Jackson for her mental anguish. See Pulley v.
Milberger, 198 S.W.3d 418, 427 (Tex. App.—Dallas 2006, pet. denied) (―When
the trial court‘s express findings of fact do not address all grounds for recovery or
defenses, an appellate court implies findings of fact regarding the omitted
grounds or defenses that are needed to support the judgment.‖).
After reviewing all of the evidence in the light favorable to the trial court‘s
findings, crediting favorable evidence if a reasonable factfinder could, and
disregarding contrary evidence unless a reasonable factfinder could not, we hold
that there is legally sufficient evidence to support the trial court‘s finding that
Jackson should recover $2,500 in mental anguish damages and the trial court‘s
implied finding that $2,500 would fairly and reasonably compensate Jackson for
her mental anguish. Likewise, after considering and weighing all of the evidence
pertinent to the trial court‘s findings, we cannot say that the evidence supporting
the trial court‘s findings is so weak or contrary to the overwhelming weight of all
the evidence that they should be set aside and a new trial ordered. We overrule
Appellants‘ fourth issue.
VIII. Treble Damages and Attorney’s Fees
Appellants argue in their fifth issue that Jackson cannot recover treble
damages or attorney‘s fees because she did not present sufficient evidence of
economic or mental anguish damages. However, because we overruled
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Appellants‘ second and fourth issues concerning the sufficiency of the evidence
to support Jackson‘s economic and mental anguish damages, we overrule
Appellants‘ fifth issue. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1)
(permitting a consumer to recover up to three times the amount of economic
damages for intentional or knowing conduct); see also id. § 17.50(d) (requiring
mandatory award of reasonable and necessary attorney‘s fees to prevailing
consumer in action under DTPA).
IX. Reasonableness of Attorney’s Fees
In their sixth issue, Appellants contend the evidence is legally and factually
insufficient to support the trial court‘s findings that Jackson should recover a total
of $27,500 in attorney‘s fees.
The trial court awarded attorney‘s fees to Jackson in the amount of $4,000
against Avery and $16,000 against Norris. The trial court also awarded Jackson
$7,500 in attorney‘s fees against Appellants in the event of an appeal to the court
of appeals. Relying solely on Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545
(Tex. 2009), Appellants contend that the trial court‘s attorney‘s fee awards are
unreasonable in light of the trial court‘s actual damage awards of $500 against
Avery and $2,500 against Norris. Once trebled, the trial court‘s actual damage
awards total $9,000.
In Smith, the landlord sued the guarantors of a shopping center lease for
$215,391.50 in damages and sought $47,438.75 in attorney‘s fees. Id. at 546.
The guarantors unsuccessfully objected to the landlord‘s attorney fee statements
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as hearsay but did not otherwise challenge or contradict the landlord‘s evidence
of attorney‘s fees. Id. The jury found the guarantors liable but awarded only
$65,000 in damages and no attorney‘s fees. Id. The trial court entered judgment
that the landlord receive $65,000 in damages, but it rendered judgment
notwithstanding the jury‘s verdict that the landlord recover $7,500 in attorney‘s
fees. Id. at 546–47. The court of appeals vacated the award of $7,500 in
attorney‘s fees, rendered judgment that the landlord recover all of the $47,438.75
in attorney‘s fees it proved at trial, and held that the trial court abused its
discretion by awarding only $7,500 in attorney‘s fees because the landlord
presented uncontroverted evidence of its attorney‘s fees. Id. at 547.
The supreme court held that the fee of $47,438.75, ―though supported by
uncontradicted testimony, was unreasonable in light of the amount involved and
the results obtained, and in the absence of evidence that such fees were
warranted due to circumstances unique to this case.‖ Id. at 548 (emphasis
added). The court held that the court of appeals erred by holding that the
landlord proved entitlement to the entire fee as a matter of law, but it also stated
that although the jury ―could have rationally concluded that, in light of the amount
involved and the results obtained, a reasonable fee award was less than the full
amount sought, no evidence supported the jury‘s refusal to award any attorney‘s
fees.‖ Id. The court continued, ―On retrial, the evidence may support a similar
fee award, but that is a matter within the jury’s purview.‖ Id. (emphasis added).
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Smith does not support Appellants‘ contention that the attorney‘s fees
awarded to Jackson are unreasonable solely because they exceed the amount of
actual damages awarded. Rather, we must consider the evidence Jackson
presented to determine whether the attorney‘s fees awarded are reasonable in
light of the factors set forth in rule 1.04 of the Texas Disciplinary Rules of
Professional Conduct, which include ―the amount involved and the results
obtained‖ and the circumstances unique to this case. See Arthur Andersen &
Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (listing factors to
consider in determining reasonableness of attorney‘s fee awards) (citing Tex.
Disciplinary R. Prof. Conduct 1.04, reprinted in Tex. Gov‘t Code, tit. 2, subtit. G
app. (State Bar Rules, art. X, § 9)); see also Smith, 296 S.W.3d at 548 (placing
special emphasis on the factor concerning the amount involved and results
obtained).
Jackson‘s attorney, Carol Wolfram, testified that she has been licensed in
Texas since 1984, that she has extensive experience as a trial attorney, that she
has practiced in North Texas and is familiar with trying cases in Denton County,
and that her billing rate of $275 per hour is within the usual and customary range
of hourly rates charged by attorneys with similar experience in the area. Ms.
Wolfram also testified concerning the work that she performed in the case on
Jackson‘s behalf, which included drafting pleadings; drafting, reviewing, and
responding to discovery requests and responses; attending mediation; attending
three depositions noticed by Appellants and a hearing on Appellants‘ motion for
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continuance; preparing responses and attending a hearing on Appellants‘ motion
for summary judgment; and preparing for and attending trial. She testified that
she adjusted her time downward so that the actual fee invoices sent to Jackson
do not reflect all of the time she spent working on the case; she estimated that
she reduced her bills by fifteen to twenty percent. 10 Ms. Wolfram testified that
she segregated the time spent solely on the fraud cause of action and that she
has not charged for that time. Ms. Wolfram testified that, based on her hourly
rate of $275 per hour, $29,000 is a reasonable and necessary fee for services
rendered through trial and that $7,500 to $8,000 is a reasonable fee for an
appeal to the court of appeals. Counsel for Appellants also testified concerning
the attorney‘s fees incurred by his clients; he testified that a fee award to his
clients in the amount of $30,000 was reasonable for his clients‘ $1,000
counterclaim against Jackson.
Jackson, through her attorney, presented evidence of the time and labor
involved in prosecuting the case on her behalf, the fee customarily charged in the
locale for similar legal services, her experience and ability to perform the legal
services, and the attorney‘s fees made necessary due to Appellants‘ litigation
strategy such as noticing three depositions and filing motions for continuance
and summary judgment. See Arthur Andersen & Co., 945 S.W.2d at 818 (listing
factors for determining reasonableness of attorney‘s fee awards). Indeed,
10
The fee invoices sent to Jackson were admitted into evidence without
objection.
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Norris‘s and Avery‘s counsel testified that $30,000 was a reasonable fee for the
services that he and his law firm rendered in the case in attempting to recover on
Avery‘s $1,000 counterclaim. Considering the evidence in light of the factors set
forth in rule 1.04, we hold that this evidence is sufficient to support the trial
court‘s award of $27,500 in attorney‘s fees to Jackson, even though the
attorney‘s fees exceed the actual damage awards. See Bank of Tex. v. VR
Elec., Inc., 276 S.W.3d 671, 685 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied) (affirming $30,000 attorney fee award in case involving $7,035.26 in
actual damages); Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d 441, 445–
49 (Tex. App.—El Paso 2004, no pet.) (affirming fee award of $18,007 in case
involving $7,092.18 in actual damages).
After reviewing all of the evidence in the light favorable to the trial court‘s
findings, crediting favorable evidence if a reasonable factfinder could, and
disregarding contrary evidence unless a reasonable factfinder could not, we hold
that there is legally sufficient evidence to support the trial court‘s findings that
Jackson should recover a total of $27,500 in attorney‘s fees from Appellants.
Likewise, after considering and weighing all of the evidence pertinent to the trial
court‘s findings, we cannot say that the evidence supporting the trial court‘s
findings is so weak or contrary to the overwhelming weight of all the evidence
that they should be set aside and a new trial ordered. We overrule Appellants‘
sixth issue.
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X. Conclusion
Having overruled each of Appellants‘ six issues, we affirm the trial court‘s
judgment.
ANNE GARDNER
JUSTICE
PANEL: GARDNER and MEIER, JJ.; and DIXON W. HOLMAN (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: October 28, 2010
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