A. Lewis Ward v. Evelyn Washington, Lisa Critchlow and Stacey Jones, MD

Affirmed as Modified and Memorandum Opinion filed June 25, 2013.
In The
Fourteenth Court of Appeals
NO. 14-11-001083-CV
A. LEWIS WARD, Appellant
V.
EVELYN WASHINGTON, LISA CRITCHLOW,
AND STACEY JONES, M.D., Appellees
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 960710
MEMORANDUM OPINION
In six issues, appellant, A. Lewis Ward, complains about alleged trial court
error regarding the jury charge and judgment, and he contends the evidence is
legally and factually insufficient to support the jury’s findings in favor of
appellees, Evelyn Washington, Lisa Critchlow, and Stacey Jones, M.D.1 We
modify the trial court’s judgment and affirm as modified.
I. BACKGROUND
Ward, acting pro se, sued appellees—a mother and her two daughters, who
were his former clients—alleging claims for breach of contract and quantum
meruit to recover legal fees for his representation of appellees in a previous case
against a homeowner’s association. Appellees filed a counterclaim, alleging Ward
violated the Texas Deceptive Trade Practices Act (“DTPA”).2 After a jury trial,
the trial court entered judgment that (1) Ward take nothing on his claims, (2)
appellees recover $103,000 in damages, including $35,000 actual damages and
$68,000 additional damages, and (3) appellees recover attorney’s fees and costs.
The trial court overruled Ward’s motion to modify the judgment and motion for
new trial. This appeal followed.
II. LEGAL SUFFICIENCY OF THE EVIDENCE REGARDING
EXISTENCE OF A FEE AGREEMENT
In issue four, Ward asserts he conclusively proved the existence of a contract
between him and appellees because, as a matter of law, appellees waived the
condition precedent provision in their agreement.
The jury answered Jury Question No. 1 as follows:
Did Lewis Ward and Evelyn Washington, Stacey Jones and Lisa
Critchlow have an agreement?
Answer “Yes” or “No”.
Answer: NO
1
For simplicity, we will use the term “appellees,” even when an act was performed by
Washington, Critchlow, or Jones individually, unless it is necessary to distinguish the appellees.
2
See generally Tex. Bus. & Com. Code Ann. ch. 17 (West 2011 & Supp. 2012).
2
A. Standard of Review and Applicable Law
When examining a legal-sufficiency challenge, we review the evidence in
the light most favorable to the challenged finding and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005). We credit favorable evidence if a reasonable fact finder could and
disregard contrary evidence unless a reasonable fact finder could not. Id. at 827.
The evidence is legally sufficient if it would enable a reasonable and fair-minded
person to reach the verdict under review. Id. The fact finder is the sole judge of
witness credibility and the weight to give their testimony. Id. at 819. When a
party challenges the legal sufficiency of evidence supporting an adverse finding on
which he had the burden of proof, he must show 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) (per curiam).
Waiver is the intentional relinquishment of a known right or intentional
conduct inconsistent with claiming that right. Sun Exploration & Prod. Co. v.
Benton, 728 S.W.2d 35, 37 (Tex. 1987). Waiver of a condition precedent may be
inferred from a party’s conduct. Id.
B. Evidence before the Jury
In 2008, appellees were involved in litigation against a homeowner’s
association and were represented by attorney E. Howard. At that time, appellees
were concerned about Howard’s ability to handle the workload of the case, so they
asked a friend to recommend other attorneys; the friend recommended Ward.
Appellees and Ward signed a “Contract of Employment” on April 18, 2009
(the “Contract”). The Contract included provisions detailing discovery problems
with the case. The Contract provided for a “reduced fee scheme” of $135 per hour
3
for Ward’s time, $100 per hour for an associate’s time, $35 for a legal assistant’s
time, plus a 10% to 40% contingency fee depending on the amount of appellees’
recovery. The Contract also estimated the total hourly fees would be $33,095, and
costs and expenses would be $14,090. Under the Contract, $10,000 was due at
signing, and additional payments were due approximately every fifteen days until
July 30, 2009, at which time appellees were to have paid Ward a retainer of
$47,185. If Ward’s services and expenses exceeded this amount, appellees would
be responsible for paying any bills within fifteen days. The Contract also obligated
appellees to sign a promissory note for $37,185, payable to Ward, secured by a
deed of trust on two parcels of appellees’ land. Finally, the Contract contained the
following provision entitled “Condition Precedent”:
[Appellees] understand that they cannot have more than one attorney
of record and that [Howard] is their present attorney of record.
[Appellees] also stipulate that [Howard], by virtue of an October 12,
2007 Attorney Consultation And Fee Contract, retained the right to a
38%/48% contingency fee with respect to [appellees’] recovery in the
case. [Appellees] further stipulate that [Ward] has advised them that
he does not want to have to litigate a controversy between them and
[Howard] and it is in their best interest to obtain now a release by
[Howard] of all her interest in the case. Therefore, this agreement
shall not become effective unless or until [Howard] is terminated as
[appellees’] attorney of record in the case, [Howard] withdraws all of
her interest in the case, and [Ward] is provided evidence of such
termination and withdrawal of interest.
It is uncontroverted that Howard never released her interest in appellees’
case. Appellees testified Ward was supposed to obtain the release. To the
contrary, Ward testified appellees assumed this burden. In a May 1, 2009 email to
appellees, Ward stated,
I have received only $4,000.00 of the $10,000.00 retainer; it is now
past time for your first installment payment of $5,000.00; and I have
4
not received any documentation of your termination of [Howard] and
her withdrawal of her interest in Evelyn’s claim.
What should I infer from these matters? It is now only 1 ½ months
from the time of the scheduled trial date!
On May 6, 2009, Stacey responded in an email,
[I]n lieu of the [Howard] situation not being solved prior to the
contracts/documents that you drew up[,] is it possible to change the
dates of when this money is due?
...
[W]e will get the other 5K to you by [F]riday, but[,] since we have not
heard back from [Howard] and that final clause [referring to the
condition-precedent provision] is not met[, I] think it would be best to
redo the contract with different due dates.
Stacey testified she sent this email because she knew conditions of the Contract
had not been met, rendering it invalid.
On May 21, 2009, Ward filed a motion to substitute into the case as counsel,
signed by appellees, which was granted in June 2009. Appellees did not pay the
$47,185.00 retainer in installments as described in the Contract. Instead, they paid
Ward $4,000 in April 2009, $16,000 in May 2009, $5,834.34 in June 2009, and
$7,500 in July 2009, for a total retainer of $33,334.34.
Ward billed appellees for services rendered on a consistent basis. His
January 2010 invoice reflected that the retainer amount had been exhausted. In
February 2010, Ward sent a demand letter to appellees, reminding them that he had
the right to withdraw as their attorney for non-payment of fees. Appellees made
payments to Ward of $4,000 in January 2010 and $6,000 in March 2010, but these
payments did not fully satisfy Ward’s invoices. On March 18, 2010, Ward sent a
letter to appellees advising that they had ignored his requests for full payment and
he would file a motion to withdraw and sue them if they did not respond with
5
payment immediately. In total, over a 12-month period from April 2009 to March
2010, appellees paid Ward $43,334.34. In April 2010, Ward withdrew as
appellees’ attorney of record and filed the present suit against them.
C. Analysis
The jury found that Ward and appellees did not have an agreement. Ward
argues that it is undisputed appellees signed the Contract, the condition precedent
was not met, and each appellee nevertheless signed a motion to substitute Ward as
their counsel and paid him for his legal services. According to Ward, this evidence
establishes as a matter of law that appellees waived the condition precedent and
entered into an agreement with Ward.
Ward cites Kennedy v. McMullen, in which the appellate court affirmed the
trial court’s finding that the parties to a contract waived a condition precedent,
explaining, “The failure to perform conditions precedent may be waived by failure
to insist on performance, and departures from the strict terms of the contract, by
failing to object at the time, or by accepting what is done by the other party as a
full performance.” 39 S.W.2d 168, 174 (Tex. Civ. App.—Beaumont 1931, writ
ref’d) (citation omitted). We conclude Kennedy is distinguishable because the fact
finder expressly found waiver, whereas the fact finder in this case rejected waiver.
For the following reasons, we hold the evidence does not establish waiver as a
matter of law.
Appellees’ prior attorney, Howard, had retained the right to a 38% to 48%
contingency fee with respect to appellees’ recovery in their case against the
homeowner’s association. Ward’s proposed attorney’s fee agreement with
appellees also retained for Ward the right to a contingency fee (10% to 40% of
appellees’ total recovery through appeal), in addition to hourly fees and expenses.
The proposed fee agreement specifically states that it “shall not become effective
6
unless or until [Howard] . . . withdraws all of her interest in the case.” Howard
never did release her interest in appellees’ case.
A release by Howard of her contingency fee interest in the case was
important for appellees. Howard’s 38% to 48% contingent-fee interest coupled
with Ward’s 10% to 40% contingent-fee interest would mean any recovery by
appellees would be decreased by 48% to 88% (plus hourly fee payments and
expenses)—something appellees obviously would have wanted to avoid. Stacey’s
May 6, 2009 email to Ward and her testimony at trial show that appellees were
relying on the “condition precedent” provision in the proposed agreement. The
release was also in Ward’s best interest because he wanted to avoid a fee dispute
with Howard in the event of recovery.
Additionally, evidence supports the conclusion that it was imperative Ward
begin working on appellees’ case because a trial date was looming, but that
Howard was not cooperating with appellees or Ward. Accordingly, appellees’
decision to substitute Ward as counsel and pay his invoices is not conclusive
evidence that the parties decided to waive the condition precedent and proceed
under the remaining terms of the Contract. Instead, the jury could have reasonably
found that appellees intended to proceed with Ward’s representation without an
attorney-client agreement, paying his periodic invoices and resolving attorney-
client disputes as they arose. See Killion v. Lanehart, 154 S.W.3d 183, 189 (Tex.
App.—Amarillo 2004, pet. denied) (“Under this record, the jury could reasonably
have deduced that there was no meeting of the minds between [client] and
[attorney] other than the $5,000 non-refundable retainer and that [attorney]
contended he would seek recovery of the remainder of his fee on a quantum meruit
basis.”).
7
Moreover, for a different reason, the evidence supports the jury’s finding
under Jury Question No. 1. As stated above, the question asked, “Did Lewis Ward
and Evelyn Washington, Stacey Jones and Lisa Critchlow have an agreement?”
(emphasis added). A reasonable interpretation of this question is that an
affirmative answer requires evidence that Ward had a single agreement with all
three appellees. However, there is evidence separate from that already mentioned
supporting a finding that Lisa and Evelyn did not intentionally waive the condition
precedent. See Benton, 728 S.W.2d at 37 (explaining waiver means an intentional
relinquishment of, or intentional conduct inconsistent with, a known right).
First, documents pertaining to payments made by appellees to Ward reveal
that Lisa never made a single payment to Ward after the Contract was signed.
Further, during the twelve months that Ward represented appellees, Lisa did not
communicate with Ward (or did so very limitedly). This evidence supports a
finding that Lisa did not, through her representations or conduct, intentionally
waive the condition precedent. Second, Evelyn testified that Ward told her he
would “take care of” obtaining a release from Howard. According to Evelyn, she
was unaware that Ward had not obtained the release. Obviously, if Evelyn
believed Ward had obtained the release, thus fulfilling the condition precedent, she
could not have intentionally waived the condition precedent. Thus, the jury could
have reasonably answered Jury Question No. 1 in the negative because evidence
supports a finding that Lisa and Evelyn did not waive the condition.
We overrule Ward’s fourth issue.
III. JURY CHARGE
In his fifth issue, Ward contends that the trial court erred by refusing to
include the following instruction on waiver of condition precedent in the jury
charge: “The right to allege condition precedent can be waived. Waiver is an
8
intentional surrender of a known right or intentional conduct inconsistent with
claiming the right.” Ward argues that, without this instruction, the jury did not
“know the circumstances under which the condition precedent could be waived.”
To obtain reversal of a judgment based upon an error in the trial court, the
appellant must show that error occurred and probably caused rendition of an
improper judgment or probably prevented the appellant from properly presenting
the case to the appellate court. Tex. R. App. P. 44.1(a); Romero v. KPH
Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005). We review the entire
record to determine whether charge error caused an improper judgment. Faust v.
BNSF Ry. Co., 337 S.W.3d 325, 336 (Tex. App.—Fort Worth 2011, pet. denied).
Charge error is generally considered harmful if it relates to a contested, critical
issue. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 221 (Tex. 2010). However,
charge error is harmless if we are reasonably certain that the jury was not
significantly influenced by the charge error. Romero, 166 S.W.3d at 227–28.
We hold that, even if the trial court erred by refusing Ward’s requested
instruction, such error did not probably cause rendition of an improper judgment.
The issue of whether the condition precedent was waived was squarely before the
jury from opening statements until closing arguments. Ward explained several
times that appellees could have waived the condition precedent by continuing with
his representation of them despite not having obtained a release from Howard. In
fact, he testified, “[Appellees] knowingly waived any right to ever argue condition
precedent given their affirmative participation. They knowingly gave up a known
right.” Appellees’ expert, attorney Henry Robertson, agreed that waiver means
“you give up a known right,” although he disagreed that appellees waived the
condition precedent. During closing argument, Ward argued without objection,
9
Waiver is a knowing -- voluntarily relinquishment of a known right.
Through their conduct in wanting me to go ahead, and participating in
me going ahead, because time was of the essence, they didn’t have to
do that. But they did do it, and I was very ready and very willing to
do it. They started paying me money. All of their conduct was
consistent with, “Hey, we got a contract. We want to get it on and get
on down the road.”
Appellees in turn argued without objection,
And Mr. Ward wants to tell you, well, because they kept going, they
waived that. It wasn’t theirs to waive. If you read the contract, it says
[Howard] withdraws all of her interest. She has to say, “I don’t want
that interest.” That was part of the agreement.
And who wrote the agreement? Mr. Ward. If somebody writes an
agreement and gives it to you and hands it to you and says, “This is
our deal,” who should it be held against? Do you think the person that
didn’t write it should be held to it or the person that wrote it and said,
“This is what I want as our agreement”? Hold it against the person
who wrote it. He said, “This is our agreement.” A. Lewis Ward said,
“You’ve got to do these things before anything matters, before there is
a contract.”
Accordingly, the jury was well aware that waiver of the condition precedent
was an issue for their resolution despite the absence of an explicit instruction. In
light of the foregoing, we are reasonably certain that the jury would not have found
appellees waived the condition precedent had the trial court provided the requested
instruction. See City of Houston v. Proler, 373 S.W.3d 748, 761 (Tex. App.—
Houston [14th Dist.] 2012, pet. filed) (assuming trial court’s failure to submit
instruction was erroneous but holding such error probably did not cause rendition
of improper judgment).
We overrule Ward’s fifth issue.
10
IV. WARD’S CLAIMS FOR DAMAGES AND ATTORNEY’S FEES
In his sixth issue, Ward contends the evidence is legally and factually
insufficient to support the jury’s findings regarding Ward’s damages and attorney’s
fees.
As stated above, when an appellant complains of the legal sufficiency of
evidence supporting an adverse finding on which he had the burden of proof, he
must show the evidence establishes, as a matter of law, all vital facts in support of
the issue. Francis, 46 S.W.3d at 241. When a party challenges factual sufficiency
relative to an adverse finding on which he had the burden of proof, he must
demonstrate that the finding is against the great weight and preponderance of the
evidence. See id.
We first note that we need not consider sufficiency of evidence supporting
the jury’s answer “$0” to Jury Question No. 3, regarding Ward’s breach-of-
contract damages; the jury was instructed to not answer Jury Question No. 3 if it
had answered Jury Question No. 1 with a “No.” As already discussed, the jury’s
answer to Jury Question No. 1, regarding whether the parties had an agreement,
was “NO.”
Jury Question No. 4 governed Ward’s quantum meruit claim:
What is the reasonable value of compensable work performed and
expenses incurred in [appellees’] behalf by [Ward], if any, at the time
and place where performed and incurred?
A party performed compensable work if valuable services are
rendered or expenses furnished for another party who
knowingly accepts and uses them and if the party accepting
them would know that the performing party expected to be paid
for the work and expenses.
The jury answered “$0.”
11
During closing argument, Ward argued the answer to Jury Question No. 4
was $19,000, which roughly equals the fees and expenses billed by Ward, and
unpaid by appellees, for February, March, and April 2010. Apparently, Ward
asked for quantum meruit damages for only these months because he had been paid
for his fees and expenses through the January 22, 2010 invoice.
Ward argues that, even if the jury could have rationally concluded that a
reasonable and necessary fee was less than the amount he sought, an award of “$0”
in fees was improper because it is beyond dispute that Ward performed legal
services in the underlying case. Ward cites a number of cases in support of this
argument.3 However, the cases cited by Ward are distinguishable—none of them
involved a situation like the present case in which an attorney was paid on many
prior invoices and seeks payment only on a few remaining unpaid invoices. The
jury was not required to view the few unpaid invoices in a vacuum. As discussed
fully in the next section of this opinion, the jury reviewed exhibits and heard
testimony supporting their conclusion that Ward engaged in false, misleading, or
deceptive acts or practices that resulted in a substantial overbilling of appellees.
The jury, as the trier of fact, could have reasonably believed appellees’ evidence,
and therefore could have reasonably concluded that Ward was not entitled to
collect one cent of the additional $19,000 he had billed. Because quantum meruit
is based in equity, a plaintiff must have “clean hands” to recover, i.e., the plaintiff
must not have behaved unfairly. See Truly v. Austin, 744 S.W.2d 934, 938 (Tex.
1988). The evidence is legally and factually sufficient to support the jury’s finding
3
These cases support the general proposition that a jury may not award $0 in attorney’s
fees when there is undisputed evidence that at least some amount of attorney’s fees were
incurred. See Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning Contractors, Inc., 300
S.W.3d 738, 739 (Tex. 2009) (per curiam); Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545,
548 (Tex. 2009); Swallow v. QI, LLC, No. 14-10-00859-CV, 2012 WL 952246, at *4 (Tex.
App.—Houston [14th Dist.] Mar. 20, 2012, pet. denied) (mem. op.).
12
in response to Jury Question No. 4 that the “reasonable” value of Ward’s
additional services sued for, in light of his total services, was “$0.”
Ward additionally complains that the jury’s answer to Jury Question No. 5 is
not supported by legally and factually sufficient evidence. Jury Question No. 5
asked the jury to determine the reasonable fee for the necessary attorney services
of Ward in the present case; the jury answered “$0.” In light of the jury’s other
answers, all against Ward and in favor of appellees, Ward was not entitled to
recover attorney’s fees for his prosecution or defense of the present case.
Accordingly, Ward has suffered no harm as a result of the jury’s answer.
We overrule Ward’s sixth issue.
V. LEGAL AND FACTUAL SUFFICIENCY ON DTPA FINDINGS
In issues one and two, Ward asserts the evidence is legally and factually
insufficient to support the jury’s findings that he engaged in false, misleading, or
deceptive acts or practices that were a producing cause of damages in the amount
of $35,000 to appellees.
A. Standard of Review
We have already stated the general standard of review when reviewing legal
sufficiency of the evidence. See City of Keller, 168 S.W.3d at 819, 822, 827. The
difference in the following issues, which pertain to adverse findings on issues for
which Ward did not have the burden of proof, is that he must show that “no
evidence” supports the findings. Exxon Corp. v. Emerald Oil Gas Co., L.C., 348
S.W.3d 194, 215 (Tex. 2011). There is “no evidence” when (a) there is a complete
absence of evidence of a vital fact, (b) the court is barred by rules of law or
evidence from giving weight to the only evidence offered to prove a vital fact, (c)
the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the
13
evidence conclusively establishes the opposite of the vital fact. See City of Keller,
168 S.W.3d at 810; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711
(Tex. 1997).
When an appellant attacks the factual sufficiency of an adverse finding on an
issue on which he did not have the burden of proof, he must demonstrate the
finding is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and manifestly unjust. London v. London, 192 S.W.3d 6, 14–15 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). We may not substitute our own
judgment for that of the fact finder or pass upon the credibility of witnesses. See
Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of
evidence necessary to affirm a judgment is far less than that necessary to reverse a
judgment. Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch, 389
S.W.3d 583, 588 (Tex. App.—Houston [14th Dist.] 2012, pet. filed).
B. Analysis
The jury answered Jury Question Nos. 6 and 8 as follows:
QUESTION NO. 6
Did [Ward] engage in any false, misleading, or deceptive acts or
practices?
...
Answer “Yes” or “No”
Answer: Yes
...
[QUESTION NO. 8]
What sum of money, if paid now in cash, would fairly and reasonably
compensate the following for their damages, if any, resulting from the
conduct you found to have occurred?
Answer: [$35,000]
14
As defined in the charge, “false, misleading, or deceptive act or practice”
means “an act or series of acts that have the tendency to deceive an average
ordinary person, even though that person may have been ignorant, unthinking, or
gullible.” This definition is not found in the DTPA’s laundry list of deceptive acts.
See Tex. Bus. & Com. Code Ann. § 17.46(b), (d) (West 2011). Nevertheless,
because the record does not reflect that either party objected to this definition, we
review the legal sufficiency of the evidence in light of the definition submitted.
See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Landing Council of Co-
Owners v. Durham, 244 S.W.3d 462, 466 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (reviewing sufficiency of evidence in light of definition of “false,
misleading, or deceptive act or practice” submitted to jury without objection).
Because our review of the sufficiency of the evidence is performed through the
lens of a definition not found in the DTPA, we note that our holdings are generally
limited to the facts of this case.
The evidence showed that Ward was the only attorney who worked for his
law firm, and that his wife worked as his assistant. During Ward’s representation
of appellees, Leonard Kolanowski, an attorney who had his own law office in
Arlington, Texas, worked on the case. Ward paid Kolanowski $45 per hour, but
billed appellees $100 per hour for Kolanowski’s services, referring to him as an
associate attorney. Appellees testified that they met Kolanowski at Ward’s office
and believed he lived in Houston; he was introduced to them as Ward’s associate.
On January 22, 2010, Ward sent appellees an invoice “for work completed
through January 15, 2010,” indicating that Ward had worked almost 60 hours and
Kolanowski worked 100 hours. The invoice also reflected the retainer amount was
exhausted. Appellees testified that this greatly-increased billing was a “huge red
flag” because it covered a period during the holidays when most business “shuts
15
down.” Ward testified that the increased billings during this timeframe were
necessary because they were preparing for a February trial date.4
Overbilling
The primary DTPA claim raised by appellees involved alleged overbilling.
Ward concedes in his brief that, if he charged for services not actually performed,
and expenses not actually incurred, such billing would amount to a DTPA
violation.
Ward’s invoices each include the statement, “(for work completed through
[certain date]).” For example, the September 22, 2009 invoice says, “(for work
completed through September 15, 2009)”; the December 23, 2009 invoice says
“(for work completed through December 15, 2009)”; and the January 22, 2010
invoice says, “(for work completed through January 15, 2010).” In Ward’s
January 22, 2010 invoice, he billed $10,000 for Kolanowski’s time, stating
Kolanowski worked 100 hours when, in fact, Kolanowski worked only 48 hours
during this period, resulting in a $5,200 overbilling. Kolanowski testified that he
does not know how Ward arrived at the 100 hour number. Ward’s wife, who was
also his legal assistant, testified the January 22, 2010 invoice included time
Kolanowski worked in November 2009, even though the invoices indicated the
November time had been billed in the earlier December 23, 2009 invoice; the jury
could reasonably have concluded the December 23, 2009 invoice included all work
completed through December 15, and the January 22, 2010 invoice covered work
completed from December 16 through January 15, meaning appellees were
overcharged by $5,200 in the January 22 invoice.5
4
The February trial was reset to the summer of 2010. Ward withdrew from representing
appellees in April 2010.
5
This is particularly true because Ward’s July 22, 2009 invoice contained the following
16
Additionally, the jury heard evidence that Ward had double-billed for 20
hours of work by an attorney—the same 20 hours, charged at $2,000, was on both
the May 26, 2009 invoice and the June 29, 2009 invoice. It was not until
appellees’ DTPA counterclaim was filed in this lawsuit that Ward acknowledged
the double-billing, in August 2010, at which time he credited the $2,000 back to
appellees’ account.
Further, Ward admitted he filed a complaint against Howard with the State
Bar of Texas contrary to appellees’ wishes and charged appellees for his work on
the complaint. Evelyn testified that she did not know she had been billed for
Ward’s work on the complaint against Howard. The jury could have reasonably
determined that Ward’s billing appellees for the State Bar complaint was a
deceptive act as defined in the charge, and that this resulted in at least $2,000 in
overbilling to appellees.
In sum, based on the foregoing, the jury could have reasonably found Ward
engaged in false, misleading, or deceptive acts or practices as defined in the
charge, resulting in overbilling of appellees.6
Even though Ward had overbilled and appellees had overpaid, Ward
demanded additional immediate payments, and appellees resisted. As a result,
Ward withdrew as appellees’ counsel in the litigation against the homeowner’s
association, leaving appellees without representation. The jury heard evidence
statement: “Associate’s work is not included in above but will be included in next month’s
invoice.” Thus, the jury could reasonably find that Ward would warn appellees when an invoice
included hours worked in a different time period—a warning his January 22, 2010 invoice did
not include.
6
Appellees presented other evidence to the jury in support of their position that Ward
committed additional acts in violation of the DTPA, such as fee-sharing without notice to
appellees, deceptive law-firm name, fee churning, additional double billing, and improper
expense billing. We do not reach these additional claims.
17
about the significant amount of time it had taken for Ward to become familiar with
all the relevant facts and issues involved in the complicated litigation against the
homeowner’s association, and the jury could have reasonably concluded that a
newly hired lawyer would again need to spend a significant amount of time
becoming familiar with the case. The jury had also heard testimony from both
sides regarding reasonable attorney hourly rates for representation in such
litigation.
Clearly, the evidence was sufficient to support the jury’s determination that
Ward’s deceptive conduct was a producing cause of damages to appellees in the
amount of $35,000.
We overrule Ward’s issues one and two.
VI. ADDITIONAL DAMAGES
In issue three, Ward asserts there is no legal basis for the trial court’s award
of $68,000 in additional damages. In response to Jury Question No. 7, the jury
found that Ward “knowingly” engaged in false, misleading, or deceptive acts or
practices. However, there was no jury question asking about any “additional
damages” to be assessed as a result of Ward’s “knowing” conduct. Appellees did
not request an “additional damages” jury question, and Ward did not object to the
absence of such question. The trial court assessed $68,000 in additional damages
against Ward, stating in the final judgment:
It further appearing to the Court that the verdict of the jury was in
favor of [appellees], judgment should be rendered for $35,000.00
actual damages and actual damages trebled, in excess of $1,000.00,
for a total of $103,000.00 because the jury found [Ward] knowingly
engaged in deceptive practice[s], including costs.
18
Ward filed a motion to modify the judgment, complaining that the $68,000 in
additional damages was improper because there was no jury finding to support the
additional damages awarded; the trial court denied the motion.
Section 17.50(b) of the DTPA provides:
(b) In a suit filed under this section, each consumer who prevails may
obtain:
(1) the amount of economic damages found by the trier of fact.
If the trier of fact finds that the conduct of the defendant was
committed knowingly, the consumer may also recover damages
for mental anguish, as found by the trier of fact, and the trier of
fact may award not more than three times the amount of
economic damages . . . .
Tex. Bus. & Com. Code Ann. § 17.50(b) (West 2011) (emphasis added).
Ward argues there is nothing in the statute supporting the trial court’s
“automatic trebling” interpretation. Ward also contends that the trial court’s treble
damages award cannot be upheld as a “deemed finding” under Texas Rule of Civil
Procedure 279. We agree. In Martin v. McKee Realtors, Inc., the Texas Supreme
Court held that the omitted issue on the amount of treble damages under 17.50(b)
could not be deemed as found by the trial court under Rule 279—even though the
jury had found the defendant committed the deceptive act knowingly—because the
omitted issue was an independent ground of recovery. 663 S.W.2d 446, 447–48
(Tex. 1984); see also J.B. Custom Design & Bldg. v. Clawson, 794 S.W.2d 38, 40–
41 (Tex. App.—Houston [1st Dist.] 1990, no writ); Town E. Ford Sales, Inc. v.
Gray, 730 S.W.2d 796, 810–11 (Tex. App.—Dallas 1987, no writ). It is incumbent
upon the plaintiff to request a jury issue on treble damages. Martin, 663 S.W.2d at
448. Accordingly, we hold the trial court erred by awarding $68,000 in additional
damages against Ward.
We sustain Ward’s issue three.
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VII. CONCLUSION
We modify the judgment to remove the trial court’s award of $68,000 in
treble damages, and, as modified, we affirm.
/s/ Margaret Garner Mirabal
Senior Justice
Panel consists of Justices Boyce, McCally, and Mirabal.7
7
Senior Justice Margaret Garner Mirabal sitting by assignment.
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