Creditplex Auto Sales, LLC D/B/A Greenville Mitsubishi and Larry Jackson v. Christin Bishop

AFFIRM; and Opinion Filed July 5, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00461-CV
CREDITPLEX AUTO SALES L.L.C. D/B/A
GREENVILLE MITSUBISHI AND LARRY JACKSON, Appellants
V.
CHRISTIN BISHOP, Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-13-01838-D
MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Lang
Creditplex Auto Sales L.L.C. d/b/a Greenville Mitsubishi and Larry Jackson appeal the
trial court’s final judgment in favor of Christin Bishop on her claims brought pursuant to the
Deceptive Trade Practice‒Consumer Protection Act (DTPA),1 awarding her $2,653.87 in damages,
$7,961.61 in additional damages based on the jury’s finding that Creditplex and Jackson
knowingly and intentionally engaged in the deceptive conduct, and $61,170.00 in attorneys’ fees.
The parties raise two issues: (1) Jackson argues the trial court erred when it denied his motion for
judgment notwithstanding the verdict because the evidence was insufficient to support the jury’s
finding to jury question no. 1; and (2) Creditplex and Jackson argue the trial court erred when it
1
TEX. BUS. & COM. CODE ANN. § 17.41 (West 2011) (this subchapter may be cited as the Deceptive Trade Practices‒Consumer Protection
Act).
awarded Bishop attorneys’ fees. We conclude the trial court did not err. The trial court’s judgment
is affirmed.
I. PROCEDURAL CONTEXT
In her fifth amended petition, Bishop alleged several claims against Creditplex and
Jackson, including claims for (1) violation of sections 17.50(a)(1) and 17.46(b)(24) of the DTPA
for false, misleading, or deceptive acts or practices and (2) violation of section 17.50(a)(3) of the
DTPA for engaging in an unconscionable act or course of action. In 2015, the case was tried to a
jury. At the close of Bishop’s evidence, Creditplex and Jackson moved for a directed verdict,
which the trial court granted. Bishop appealed and this Court reversed and remanded the case to
the trial court for further proceedings. See Bishop v. Creditplex Auto Sales L.L.C., No. 05-15-
00395-CV, 2016 WL 3453633 (Tex. App.—Dallas June 23, 2016, no pet.) (mem. op.).
In January 2017, the case was again tried to a jury. The jury found against Creditplex and
Jackson and in favor of Bishop on her claims for false, misleading, or deceptive acts or practices
and engaging in an unconscionable act or course of action. Also, the jury found that Creditplex
knowingly and intentionally engaged in such conduct, and awarded Bishop $2,653.87 in damages
and $7,961.61 in additional damages based on the jury’s finding that Creditplex and Jackson
knowingly and intentionally engaged in the deceptive conduct.
The parties agreed to submit the issue of attorneys’ fees to the trial court. Bishop sought a
total of $86,250 in attorneys’ fees, and Creditplex and Jackson objected. After a hearing where no
evidence was presented and which was not recorded, the trial court reduced the amount of
attorneys’ fees to $61,170. On February 9, 2017, the trial court signed its final judgment which
incorporated the jury’s verdict and its award of attorneys’ fees.
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II. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
In issue one, Jackson argues the trial court erred when it denied Jackson’s motion for
judgment notwithstanding the verdict.2 He claims the evidence was insufficient to support the
jury’s finding in jury question no. 1, which related to Bishop’s claim for violation of sections
17.50(a)(1) and 17.46(b)(24) of the DTPA, alleging Jackson engaged in false, misleading, or
deceptive acts or practices by failing to disclose information with the intent to induce Bishop into
a transaction she otherwise would not have entered into. Bishop responds, in part, that Jackson
has failed to challenge her independent claim for violation of section 17.50(a)(3) of the DTPA,
which supports the trial court’s judgment. In his reply brief, Jackson acknowledges that he did not
explicitly mention the words “unconscionable” in his description of issue one. However, he
contends that his argument was “intended to address the error in both Questions 1 and 2 of the trial
verdict, referring to DTPA violations under [section] 17.46(b)(24)‒failure to disclose certain
information‒as well as [section] 17.50(a)(3)‒unconscionable actions, respectively.”
A. Applicable Law
1. Probable Rendition of an Improper Judgment
In general, an appellate court must affirm a trial court’s judgment if an appellant does not
challenge all independent bases or grounds that fully support the trial court’s judgment. See, e.g.,
Bowman v. The Bank of N.Y. Mellon Trust Co, N.A., No. 05-13-01684-CV, 2016 WL 258765, at
*6 (Tex. App.—Dallas Jan. 21, 2016, pet. denied) (mem. op.); LandAmercia Commonwealth Title
Co. v. Wido, No. 05-14-00036-CV, 2015 WL 6545685, at *9 (Tex. App.—Dallas Oct. 29, 2015,
no pet.) (mem. op.); Blackstone Med., Inc. v. Phoenix Surgicals L.L.C., 470 S.W.3d 636, 648 (Tex.
App.—Dallas 2015, no pet.); Creech v. Columbia Med. Ctr. of Las Colinas Subsidiary L.P., 411
S.W.3d 1, 6 (Tex. App.—Dallas 2013, no pet.); Oliphant Fin. L.L.C. v. Angiano, 295 S.W.3d 422,
2
The jury found against both Jackson and Creditplex on Bishop’s claims against them. However, in the parties’ brief on appeal, only Jackson
argues error as to the trial court’s denial of the motion for judgment notwithstanding the verdict.
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423–24 (Tex. App.—Dallas 2009, no pet.). When independent jury findings fully support a
judgment, an appellant must attack each independent jury finding to obtain reversal. See
LandAmercia, 2015 WL 6545685, at *9. If an independent ground fully supports the complained-
of judgment, but the appellant assigns no error to that independent ground, an appellate court must
accept the validity of that unchallenged independent ground, and any errors in the grounds
challenged on appeal are harmless because the unchallenged independent ground fully supports
the complained-of judgment. See LandAmercia, 2015 WL 6545685, at *9; Blackstone, 470
S.W.3d at 648; Oliphant, 295 S.W.3d at 423–24; Prater v. State Farm Lloyds, 217 S.W.3d 739,
740–41 (Tex. App.—Dallas 2007, no pet.).
The harmless error rule states, in part, that before reversing a judgment because of an error
of law, an appellate court must find that the error amounted to such a denial of the appellant’s
rights as was reasonably calculated to cause and probably did cause “the rendition of an improper
judgment.” See TEX. R. APP. P. 44.1(a)(1); G & H Towing Co. v. Magee, 347 S.W.3d 293, 297
(Tex. 2011) (per curiam); Blackstone, 470 S.W.3d at 648–49. The harmless error rule applies to
all errors. See Magee, 347 S.W.3d at 297 (citing Lorusso v. Members Mut. Ins. Co., 603 S.W.2d
818, 819–20 (Tex.1980)); LandAmercia, 2015 WL 6545685, at *9; Blackstone, 470 S.W.3d at 649.
2. Deceptive Trade Practice Act
Section 17.50 establishes when a consumer may maintain an action for damages under the
DTPA. See TEX. BUS. & COM. CODE ANN. § 17.50 (West 2011). Section 17.50(a)(1) provides that
a consumer may maintain an action when the defendant uses or employs a false, misleading, or
deceptive act or practice that is specifically enumerated in section 17.46 and relied on by the
consumer to her detriment. See BUS. & COM. § 17.50(a)(1). To prevail on a failure-to-disclose
claim under section 17.46(b)(24) of the DTPA, the plaintiff must show the following elements: (1)
a failure to disclose material information concerning goods or services that was (2) known at the
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time of the transaction, (3) and intended to induce the consumer into a transaction, (4) which the
consumer would not have entered had the information been disclosed. See BUS. & COM. §
17.46(b)(24) (West Supp. 2017); Ryan Constr. Servs. L.L.C. v. Robert Half Int’l, Inc., 541 S.W.3d
294, 304–05 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
Section 17.50(a)(3) provides that a consumer may maintain an action when the defendant
engages in any unconscionable action or course of action that constitutes a producing cause of
economic damages. See BUS. & COM. § 17.50(a)(3); Ryan Constr., 541 S.W.3d at 305. The DTPA
defines “[u]nconscionable action or course of action” as “an act or practice which, to a consumer’s
detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the
consumer to a grossly unfair degree.” See BUS. & COM. § 17.45(5) (West Supp. 2017); Ryan
Constr., 541 S.W.3d at 305. To prove an unconscionable action, a consumer must show that the
defendant’s acts took advantage of the 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); Ryan Constr., 541 S.W.3d at 305.
B. Application of the Law to the Facts
Jury question no. 1 asked whether Creditplex, Jackson, or both engaged in any “false,
misleading, or deceptive act or practice that [] Bishop relied on to her detriment and that was the
producing cause of damage to [] Bishop.” The definition of “false, misleading, or deceptive act or
practice” in jury question no. 1 tracked the language in sections 17.50(a)(1) and 17.46(b)(24) of
the DTPA. It also provided the elements of fraud by nondisclosure. The jury separately answered
“yes” as to both Creditplex and Jackson.
Jury question no. 2 asked whether Creditplex, Jackson, or both engaged in any
unconscionable action or course of action that was a producing cause of damages to Bishop. For
the definition of “unconscionable,” jury question no. 2 tracked the definition provided in section
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17.45(5) of the DTPA. Again, the jury separately answered “yes” as to both Creditplex and
Jackson. Jury question no. 3 instructed the jury that it should answer the damages question only
if it answered “yes” in response to question no. 1 or question no. 2.
In his motion for judgment notwithstanding the verdict, Jackson argued as to Bishop’s
failure to seek to pierce the corporate veil and contended the evidence was insufficient to support
the elements of fraud by nondisclosure. The motion did not address Bishop’s unconscionability
claim. Similarly, Jackson’s brief on appeal focused on the sufficiency of the evidence to support
liability for nondisclosure under the cause of action brought pursuant to sections 17.50(a)(1) and
17.46(b)(24). Jackson does not address in his motion for judgment notwithstanding the verdict or
his brief on appeal the separate cause of action alleging unconscionable conduct pursuant to section
17.50(a)(3). Accordingly, assuming, without deciding, the trial court erred when it denied
Jackson’s motion for judgment notwithstanding the verdict on the basis that the evidence was
insufficient to support the jury’s verdict on Bishop’s claim under sections 17.50(a)(1) and
17.46(b)(24) of the DTPA, that error is harmless because Jackson fails to challenge on appeal an
independent ground that fully supports the jury’s verdict. See LandAmercia, 2015 WL 6545685,
at *9; Blackstone, 470 S.W.3d at 648; Oliphant, 295 S.W.3d at 423–24; Prater, 217 S.W.3d at
740–41.
Issue one is decided against Jackson.
III. ATTORNEYS’ FEES
In issue two, Creditplex and Jackson argue the trial court erred when it awarded Bishop
attorneys’ fees because: (1) the amount of attorneys’ fees is grossly disproportionate to the amount
of damages awarded; (2) the attorneys’ fees were not segregated even though there were multiple
causes of action alleged and only two were ultimately tried; (3) the attorneys’ fees were not
authorized for the majority of the causes of action alleged; (4) Creditplex and Jackson should not
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have been found jointly and severally liable; (5) the attorneys’ fees were awarded for all trials,
including the one Bishop lost, which was subsequently reversed on appeal; and (6) the evidence
was insufficient to establish the attorneys’ fees were reasonable and necessary. Bishop responds
that Creditplex and Jackson failed to bring forward a complete record for appeal because there is
no reporter’s record of the hearing on attorneys’ fees.
A. Standard of Review
An appellate court generally reviews a trial court’s decision to award attorneys’ fees for an
abuse of discretion. See Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017) (determination of
reasonable and necessary attorneys’ fees generally left to trier of fact); Ventling v. Johnson, 466
S.W.3d 143, 155 (Tex. 2015) (discussing attorneys’ fees in terms of trial court’s discretion);
Blackstone, 470 S.W.3d at 657.
B. Applicable Law
A party may recover attorneys’ fees only as provided by contract or statute. See
Blackstone, 470 S.W.3d at 657; Tex. Worldwide Asset Purchasing, L.L.C. v. Rent–A–Center E.,
Inc., 290 S.W.3d 554, 570 (Tex. App.—Dallas 2009, no pet.). Section 17.50(d) allows prevailing
consumers to recover reasonable and necessary attorneys’ fees. See BUS. & COM. § 17.50(d). The
party seeking recovery of attorneys’ fees bears the burden of proof to support the award. See
Kinsel, 526 S.W.3d at 427; Smith v. Patrick W.Y. Tam Tr., 296 S.W.3d 545, 547 (Tex. 2009).
However, the trial court is not bound by even uncontroverted attorneys’ fees evidence and may
award less than requested. See Jarvis v. Rocanville Corp., 298 S.W.3d 305, 319 (Tex. App.—
Dallas 2009, pet. denied).
C. Application of the Law to the Facts
The parties agreed to reserve the issue of attorneys’ fees for the trial court. After the jury
returned its verdict, Bishop filed a motion for attorneys’ fees and entry of judgment. To support
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her claim for attorneys’ fees, she attached the affidavits of two attorneys and their billing records.
Bishop sought a total of $86,250 in attorneys’ fees and cited case law for the proposition that in
consumer protection cases, the amount of attorneys’ fees can greatly exceed the amount of actual
damages. Creditplex and Jackson filed their written objections to Bishop’s motion for attorneys’
fees. Those objections are similar to their arguments on appeal. There does not appear to be a
written response to the objections in the record.
The parties agree there was a hearing on Bishop’s motion for attorneys’ fees, there was no
evidence presented during that hearing, and no record was made of the hearing. After the hearing,
the trial court awarded Bishop attorneys’ fees in the amount of $61,170. This amount was $25,080
less than the $86,250 requested by Bishop. See Jarvis, 298 S.W.3d at 319 (trial court not bound
by even uncontroverted attorneys’ fees evidence and may reward less than requested). Although
the hearing was not an evidentiary hearing, without a record, we cannot determine the basis on
which the trial court reduced Bishop’s attorneys’ fees. Accordingly, on this record, we cannot
conclude the trial court abused its discretion for the reasons alleged by Creditplex and Jackson.
Issue two is decided against Creditplex and Jackson.
IV. CONCLUSION
Even if the trial court erred when it denied Jackson’s motion for judgment notwithstanding
the verdict on the basis that the evidence was insufficient to support the jury’s verdict on Bishop’s
claim under sections 17.50(a)(1) and 17.46(b)(24) of the DTPA, that error is harmless because
Jackson fails to challenge on appeal an independent ground that fully supports the jury’s verdict.
Also, we cannot conclude the trial court abused its discretion when it awarded Bishop attorneys’
fees.
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The trial court’s final judgment is affirmed.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
170461F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CREDITPLEX AUTO SALES L.L.C. On Appeal from the County Court at Law
D/B/A GREENVILLE MITSUBISHI AND No. 4, Dallas County, Texas
LARRY JACKSON, Appellants Trial Court Cause No. CC-13-01838-D.
Opinion delivered by Justice Lang. Justices
No. 05-17-00461-CV V. Fillmore and Schenck participating.
CHRISTIN BISHOP, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee CHRISTIN BISHOP recover her costs of this appeal and
the full amount of the trial court’s judgment from appellants CREDITPLEX AUTO SALES L.L.C.
D/B/A GREENVILLE MITSUBISHI AND LARRY JACKSON and from the cash deposit in lieu
of supersedeas bond. After all costs have been paid, the clerk of the trial court is directed to release
the balance, if any, of the cash deposit in lieu of supersedeas bond to the person who made the
deposit.
Judgment entered this 5th day of July, 2018.
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