D&M Marine, Inc. D/B/A Phipps & Company Homes v. J. Neal Turner and Kerie B. Turner

Opinion issued July 11, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00622-CV
———————————
D&M MARINE, INC. D/B/A PHIPPS & COMPANY HOMES, Appellant
V.
J. NEAL TURNER AND KERIE B. TURNER, Appellees
On Appeal from the 431st District Court
Denton County, Texas1
Trial Court Case No. 2008-60228-393
OPINION
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for
the Second District of Texas. Misc. Docket No. 12-9107 (Tex. June 18, 2012); see
also TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005) (authorizing transfer of
cases). We are unaware of any conflict between precedent of the Court of Appeals
for the Second District and that of this Court on any relevant issue. See TEX. R.
APP. P. 41.3.
J. Neal Turner and Kerie B. Turner sued D&M Marine, Inc. d/b/a Phipps &
Company Homes and others over damage in the construction of their home. The
jury found in favor of the Turners and against D&M Marine on the Turners’ claims
of negligence, deceptive trade practices, breach of warranty, and attorneys’ fees.
The trial court awarded engineering and consulting fees after a post-trial hearing,
and rendered judgment. In four issues, D&M Marine argues (1) the trial court
committed charge error by excluding a proposed question and including an
incomplete instruction, (2) the trial court abused its discretion by considering
hearsay in determining the award of engineering and consulting fees, (3) the trial
court abused its discretion by allowing the Turners’ attorney to testify about the
reasonableness of a settlement offer, and (4) the evidence is factually insufficient
to support the award of attorneys’ fees.
We affirm, in part, and reverse and remand, in part.
Background
In late 2005, the Turners bought a home in Plano, Texas. Some time after
they moved in, they discovered problems with the home, which ultimately led to
this suit. The Turners asserted claims against D&M Marine for negligence,
violations of the Deceptive Trade Practices Act (“DTPA”), and breach of warranty.
The jury found in favor of the Turners and against D&M Marine on all three
claims. It also awarded attorneys’ fees to the Turners.
2
To prove up attorneys’ fees, the Turners presented one of their attorneys,
Brent Lemon, to testify. Lemon’s testimony was based on the exhibit introduced
into evidence showing the fees incurred, and his testimony largely tracked the
information on the exhibit. The total amount of hours up through trial was 572.2
hours. These hours represented the work of two attorneys. Lemon testified that
$300 per hour was a reasonable fee for both of them. Accordingly, the Turners
sought $171,660 in attorneys’ fees up through trial. The jury awarded them the
full amount.
Another issue presented to the jury was whether a settlement offer by D&M
Marine to the Turners was reasonable. Such a determination would impact any
award of attorneys’ fees. During his testimony, Lemon was asked if he thought the
settlement offer was reasonable. D&M Marine objected, and the trial court
overruled the objection. Lemon testified that he did not think the offer was
reasonable. Lemon did not testify further on the matter.
In addition to attorneys’ fees, the Turners sought recovery of “reasonable
and necessary engineering and consulting fees” under the Texas Residential
Construction Liability Act. During trial, the parties announced an agreement in
open court to “submit any of the . . . fees under the [Act] to the Court for
determination post-trial.” The trial court accepted the agreement. After trial, but
more than 30 days before the hearing on the fees, the Turners submitted affidavits
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in support of their request for fees. At the hearing, D&M Marine objected to the
affidavits, arguing they were hearsay. The trial court overruled the objections,
considered the affidavits and accompanying evidence, and ultimately awarded fees
to the Turners.
During the charge conference at trial, D&M Marine objected to one jury
instruction, arguing it was incomplete. It also requested an additional jury
question, which the trial court denied. For the jury instruction, the charge included
an instruction defining “construction defect,” based on the applicable statute. The
instruction did not include the portion of the statute that excluded certain specific
problems that did not constitute a construction defect. D&M Marine requested the
trial court to include the list of excluded problems in the instruction. The trial
court denied the request. For the jury question, D&M Marine requested the
inclusion of a question concerning comparative responsibility for the Turners’
DTPA claim. The trial court denied this request as well.
Jury Charge
In its fourth issue, D&M Marine argues that the trial court abused its
discretion by not using its proposed definition of “construction defect” and by
refusing to submit a comparative responsibility question on the Turners’ DTPA
claim.
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A. Standard of Review
We review a challenge to the trial court’s jury charge under an abuse of
discretion standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649
(Tex. 1990); Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner, or if it acts without reference to any
guiding rules or principles. Tex. Dep’t of Human Servs., 802 S.W.2d at 649; Moss,
305 S.W.3d at 81. A trial court has wide discretion in submitting instructions and
jury questions. Moss, 305 S.W.3d at 81.
If we determine that the jury charge was erroneous, we must then consider
whether the error requires reversal. See Transcon. Ins. Co. v. Crump, 330 S.W.3d
211, 225 (Tex. 2010). Generally, charge error requires reversal of a judgment only
when the error was harmful in the sense that it probably caused rendition of an
improper verdict. Id.
B. Analysis
D&M Marine challenges both an instruction included in the charge and a
question excluded from the charge. For the excluded question, D&M Marine
argues that the trial court improperly excluded a question on comparative
responsibility for the Turners’ DTPA claim. The Turners argue that this issue has
been waived. We agree.
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The jury charge included questions on claims for negligence, DTPA, and
breach of warranty. The jury found D&M Marine liable on all three claims. The
jury’s award of damages for the DTPA claim was the same as its award for
damages for the breach of warranty claim. The trial court’s judgment awards the
Turners this amount in damages, but does not specify which claim the award stems
from.
“Generally speaking, an appellant must attack all independent bases or
grounds that fully support a complained-of ruling or judgment. If an appellant
does not, then we must affirm the ruling or judgment.” Britton v. Tex. Dep’t of
Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no
pet.) (citation omitted). D&M Marine does not challenge the jury’s determination
of liability or damages on the Turners’ breach of warranty claim. Because the
breach-of-warranty determination would independently support the judgment, we
must affirm the judgment regardless of any alleged error in the charge on the
DTPA claim. See id.
For the disputed jury instruction, D&M Marine challenges the court’s
definition of “construction defect.” The parties agree that former section 401.004
of the Texas Property Code was the right source for the definition. Act of June 2,
2003, 78th Leg., R.S., ch. 458, § 1.01, sec. 401.004, 2003 Tex. Gen. Laws 1703,
1704 (expired Aug. 31, 2009). Former section 401.004 provides,
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(a) In this title, “construction defect” means:
(1) the failure of the design, construction, or repair of a
home, an alteration of or a repair, addition, or
improvement to an existing home, or an appurtenance to
a home to meet the applicable warranty and building and
performance standards during the applicable warranty
period; and
(2) any physical damage to the home, an appurtenance to the
home, or real property on which the home or
appurtenance is affixed that is proximately caused by that
failure.
(b) The term does not include a defect that arises or any damages
that arise wholly or partly from:
(1) the negligence of a person other than the builder or an
agent, employee, subcontractor, or supplier of the
builder;
(2) failure of a person other than the builder or an agent,
employee, subcontractor, or supplier of the builder to:
(A) take reasonable action to mitigate any damages
that arise from a defect; or
(B) take reasonable action to maintain the home;
(3) normal wear, tear, or deterioration; or
(4) normal shrinkage due to drying or settlement of
construction components within the tolerance of building
and performance standards.
Id.
The charge’s definition of construction defect followed the definition from
subsection (a), but it did not list the defects and damages excluded under
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subsection (b). D&M Marine objected to subsection (b) being left out of the
definition, and the trial court overruled the objection.
For a jury charge, “[t]he court shall submit such instructions and definitions
as shall be proper to enable the jury to render a verdict.” TEX. R. CIV. P. 277. “An
instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3)
finds support in the pleadings and evidence.” Columbia Rio Grande Healthcare,
L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex. 2009) (citing Tex. Workers’ Comp. Ins.
Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000)). “[I]t is error to burden the
jury with excess instructions which emphasize extraneous factors to be considered
in reaching a verdict.” First Int’l Bank in San Antonio v. Roper Corp., 686 S.W.2d
602, 605 (Tex. 1985). Regardless of how correctly the instruction states the law, it
is improper if it amounts to a comment on the weight of the evidence. See Acord v.
Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984).
Subsection (b) of former section 401.004 covers a variety of specific
instances that do not constitute a “construction defect” even if they would
otherwise fit the definition. Act of June 2, 2003, 78th Leg., R.S., ch. 458, § 1.01,
sec. 401.004, 2003 Tex. Gen. Laws 1703, 1704 (expired Aug. 31, 2009). But they
are just that, specific instances that do not constitute a “construction defect.”
D&M Marine has not argued or made any showing that any of these instances—let
alone all of the instances—was relevant to the suit or raised by the evidence
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presented at trial. See Columbia Rio Grande, 284 S.W.3d at 855 (requiring
instruction to find support in pleadings and evidence). Without such a showing,
the language of subsection (b), while legally correct, would be an excess
instruction, distract the jury from the relevant issues in the charge, and potentially
constitute an improper comment on the weight on the evidence. See First Int’l
Bank, 686 S.W.2d at 605; Dresser Indus., 880 S.W.2d at 757; Acord, 669 S.W.2d
at 116.
We overrule D&M Marine’s fourth issue.
Admission of Evidence
In its first issue, D&M Marine argues that the trial court abused its discretion
by considering hearsay in determining the award of engineering and consulting
fees. In its third issue, D&M Marine argues that the trial court abused its
discretion by allowing the Turners’ attorney to testify about the reasonableness of a
settlement offer.
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses
its discretion when it acts without reference to any guiding rules and principles.
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). We must uphold the trial
court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens–
9
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek
Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex. App.—Houston
[1st Dist.] 2004, pet. denied).
To obtain reversal of a judgment based upon the improper admission of
evidence, Ryland must show that the trial court committed error and that the error
was reasonably calculated to cause, and probably did cause, the rendition of an
improper judgment. See TEX. R. APP. P. 44.1(a). Error based on the admission of
evidence is generally not reversible unless the appellant can demonstrate that the
judgment turns on the particular evidence excluded or admitted. Interstate
Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).
B. Engineering and Consulting Fees
In its first issue, D&M Marine argues that the trial court abused its discretion
by considering hearsay in determining the award of engineering and consulting
fees. The Turners sought recovery under the Texas Residential Construction
Liability Act. Under this act, a party may recover “reasonable and necessary
engineering and consulting fees.” TEX. PROP. CODE ANN. § 27.004(g)(3) (Vernon
Supp. 2011). Under the Texas Civil Practice and Remedies Code, a party can
submit by affidavit proof of a reasonable and necessary cost charged for a service.
TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b) (Vernon 2008). An affidavit filed
in compliance with section 18.001 is an exception to the hearsay rule. Hong v.
10
Bennett, 209 S.W.3d 795, 801 (Tex. App.—Fort Worth 2006, no pet.). One of the
requirements for the statute to apply is “[t]he party offering the affidavit in
evidence or the party’s attorney must serve a copy of the affidavit on each other
party to the case at least 30 days before the day on which evidence is first
presented at the trial of the case.” CIV. PRAC. & REM. CODE § 18.001(d) (emphasis
added).
Evidence was first presented in the trial at issue on December 6, 2011. The
Turners had not filed any affidavits in compliance with section 18.001 before this
date. On that date, however, the following exchange occurred during a hearing
before the trial court:
Mr. Minton [D&M Marine’s attorney]: . . . . We also need to put an
agreement on the record.
...
Mr. Grisham [The Turner’s attorney]: Mr. Minton and I discussed
this before the trial, and we agreed that the plaintiffs will
submit any of the reasonable and necessary consulting and
engineering fees under the [Residential Construction Liability
Act] to the Court for determination post-trial.
Mr. Minton: Speed it up.
...
The Court: I’ll . . . approve the agreement.
After the trial, a hearing was set for March 16, 2012. On February 6,
2012—39 days before the hearing—the Turners submitted affidavits that they
11
assert are in compliance with section 18.001. D&M Marine argues that, while the
affidavits were submitted more than 30 days before the hearing at which the issue
of engineering and consulting fees were presented, they were not submitted more
than “30 days before the day on which evidence is first presented at the trial of the
case” as required under the statute. Id.
D&M Marine objected to the affidavits as hearsay at the hearing. Its
attorney explained,
When I agreed to let them prove up their charges to the Court, what I
thought they were going to do is elicit the testimony, but then submit
that to the Court, if necessary, after the jury verdict. I didn’t think
about them coming back in with affidavits after the fact.
The trial court overruled the hearsay objection and allowed the affidavits to be
considered.
As the statute states, affidavits must be filed at least 30 days before the first
date that evidence is presented at trial. Id. The Turners’ affidavits on engineering
and consulting fees were not submitted within 30 days of the first date that
evidence was presented at trial.
Nevertheless, at trial, the parties and the court agreed to “submit any of the
reasonable and necessary consulting and engineering fees under the [Residential
Construction Liability Act] to the Court for determination post-trial.” This
constitutes a Rule 11 agreement. See TEX. R. CIV. P. 11 (allowing agreement
between parties to be enforced if made in open court and entered of record). There
12
were no limitations placed on what could be submitted after the trial. To the
contrary, they indicated that “any of the reasonable and necessary consulting and
engineering fees” would be submitted post-trial.
At the hearing on the fees, D&M Marine’s attorney stated that he thought
they were agreeing to have all the evidence presented at trial and the trial court
would consider the matter later. This interpretation is not supported by the
evidence of the agreement. “Rule 11 agreements are contracts relating to
litigation, subject, therefore, to general rules of contract construction.” Trudy’s
Texas Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex. App.—Austin 2010,
no pet.). Our primary concern in construing a contract is to ascertain the intent of
the parties as expressed in the instrument. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 662 (Tex. 2005). We give the contract’s terms their “plain and
ordinary meaning” unless the contract indicates that the parties intended a different
meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d
164, 168 (Tex. 2009).
By the terms of the agreement, the parties agreed to submit “any of the
reasonable and necessary consulting and engineering fees” post-trial. D&M
Marine’s attorney stated that the purpose of the agreement was to speed things up.
Even if D&M Marine’s attorney’s statement at the post-trial hearing that his
understanding was that the intent was to present all of the evidence at trial was
13
correct, this is in conflict with the parties’ agreement and stated purpose. If all of
the evidence was to be presented at trial with only a postponement of the ruling on
the evidence, this would do nothing at all to “speed [the trial] up.” It would only
delay and lengthen the decision-making process. Under this interpretation, instead
of seeking a ruling contemporaneously with the presentation of the evidence, the
parties would have caused a months-long delay between when the evidence was
presented and when it was considered. This would require the trial court to review
the evidence a second time to remind itself of the relevant evidence. This does
nothing to speed up the process.
In addition, there were no limitations placed on what would be submitted
post-trial. The trial court reasonably could have construed the Rule 11 agreement
as either agreeing to waive the requirements for section 18.001 altogether or to
reset the date from which the 30-day deadline would be calculated. It is
established that the Turners filed their affidavits more than 30 days before the
hearing on the fees. Accordingly, under the parties’ rule 11 agreement, the trial
court did not abuse its discretion by overruling D&M Marine’s hearsay objection.
We overrule D&M Marine’s first issue.
C. Reasonableness of Settlement Offer
In its third issue, D&M Marine argues that the trial court abused its
discretion by allowing the Turners’ attorney to testify about the reasonableness of a
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settlement offer. Under section 27.004 of the Texas Property Code, a contractor
may make a written offer of settlement on a dispute concerning the construction. .
PROP. CODE § 27.004(b). If the “claimant rejects a reasonable offer made under
Subsection (b),” then certain limitations are placed on the claimant’s ability to
recover, including the amount of attorneys’ fees. Id. § 27.004(e) (emphasis added).
In this case, D&M Marine made an offer of settlement, which the Turners
rejected. One of the issues submitted to the jury was whether the settlement offer
was reasonable. During Lemon’s testimony concerning the attorneys’ fees
incurred on the Turners’ behalf, the following exchange occurred:
Q. Did you review the offer made in 2007 in this case?
A. Yes.
Q. Did you believe that offer to be reasonable under the law?
Mr. Minton: Your Honor, again, I object. This goes outside the scope
of what Mr. Lemon has designated himself as an expert to
testify. He’s here to testify about his attorney’s fees in this
case. That’s it.
The Court: I’ll overrule the objection. I’ll let him testify.
[Mr. Lemon]: I did review the offer. And under the types of damages
that are recoverable for a homeowner, I did not believe that the
offer was reasonable.
D&M Marine argues that the trial court abused its discretion by overruling its
objection.
15
Assuming without deciding that the trial court’s ruling was erroneous, we
hold that D&M Marine has failed to establish that the error is harmful. “Typically,
a successful challenge to a trial court’s evidentiary rulings requires the
complaining party to demonstrate that the judgment turns on the particular
evidence excluded or admitted.” Interstate Northborough, 66 S.W.3d at 220. As
D&M Marine acknowledges in its brief, “One of the single most important issues
in the trial—and a crucial part of D&M’s defense—was whether D&M’s written
settlement offer to the Turners under the [Residential Construction Liability Act]
was reasonable.” Multiple people testified at trial about the nature of the damages
suffered by the Turners, the terms of the settlement offer, and whether the offer
would resolve the damages suffered by the Turners. Amid this testimony, the
Turners’ attorney offered a single, unsupported statement that he did not believe
the settlement offer was reasonable.
The bulk of D&M Marine’s argument to establish harm concerns showing
how significant the issue of reasonableness was in the span of the trial. For
example, D&M Marine provides block quotes on the matter from closing
arguments. But this does not “demonstrate that the judgment turns on” Lemon’s
one statement. Id. Even the quoted sections make no mention of Lemon’s
testimony. We cannot hold that this one statement was harmful when the jury had
16
the testimony from multiple witnesses from which it could make its determination
of reasonableness.
We overrule D&M Marine’s third issue.
Attorneys’ Fees
In its second issue, D&M Marine argues the evidence is factually
insufficient to support the jury’s award of attorneys’ fees.
A. Standard of Review
In reviewing a challenge to the factual sufficiency of the evidence, we
consider and weigh all the evidence and set aside the judgment only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998);
Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.]
2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). We
may not pass upon the witnesses’ credibility or substitute our judgment for that of
the factfinder, even if the evidence would clearly support a different result.
Maritime Overseas Corp., 971 S.W.2d at 407. Accordingly, we defer to the
factfinder’s findings on contested evidence—the jury may believe one witness and
disbelieve another, and it may resolve inconsistencies in any testimony. Dyer v.
Cotton, 333 S.W.3d 703, 709 (Tex. App.—Houston [1st Dist.] 2010, no pet.)
17
(citing Eberle v. Adams, 73 S.W.3d 322, 327 (Tex. App.—Houston [1st Dist.]
2001, pet. denied)).
B. Analysis
To prove up attorneys’ fees, the Turners presented one of their attorneys,
Brent Lemon, to testify. Lemon’s testimony was based on the exhibit introduced
into evidence showing the fees incurred, and his testimony largely tracked the
information on the exhibit. For the fees incurred up through the trial, the exhibit
identified the fees as follows:
Initial Meetings, Case Review 32.5
Pleadings 48.3
Depositions 36.4
Written Discovery 54.4
R/R of Documents produced by parties 40
Hearings 18.5
Inspections of Turner Home 9.5
Mediation 18.6
Miscellaneous 18
Trial 296
Based on this exhibit, the amount of hours spent by the attorneys on the case up
through trial was 572.2 hours. These hours represented the work of two attorneys.
Lemon testified that the $300 per hour was a reasonable fee for both of them.
Accordingly, the Turners sought $171,660 in attorneys’ fees up through trial. The
jury awarded them the full amount.
D&M Marine argues the evidence was factually insufficient under the recent
Texas Supreme Court case, El Apple I., Ltd. v. Olivas, 370 S.W.3d 757 (Tex.
18
2012). In Olivas, the plaintiff prevailed on a claim of retaliation against her
employer. Id. at 759. She then submitted an application for attorneys’ fees under
the lodestar method. Id. at 759–60. In affidavits, her attorneys testified to the
number of hours they each worked on the case. Id. at 759. The trial court
determined the reasonable rate to apply for each attorney and applied that rate to
the full number of hours worked. Id. The issue on appeal was whether the
evidence of the number of hours worked had to be supported by billing records or
similar documentation as a predicate for the award. Id. at 760.
A party seeking attorneys’ fees “bears the burden of documenting the hours
expended on the litigation and the value of those hours.” Id. at 761. In reviewing
whether the party has met its burden, “a trial court should obtain sufficient
information to make a meaningful evaluation of the application for attorneys’
fees.” Id. at 762. To this end, the Texas Supreme Court held that “proof should
include the basic facts underlying the lodestar, which are: (1) the nature of the
work, (2) who performed the services and their rate, (3) approximately when the
services were performed, and (4) the number of hours worked.” Id. at 763.
In Olivas, the attorneys, rather than presenting time records or testifying
“based on their recollection of such records[,] . . . . based their time estimates on
generalities such as the amount of discovery in the case, the number of pleadings
filed, the number of witnesses questioned, and the length of the trial.” Id. The
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supreme court held that this was insufficient. Id. “The [trial] court could not
discern from the evidence how many hours each of the tasks required and whether
that time was reasonable.” Id.
The court held that, “if multiple attorneys or other legal professionals are
involved in a case, the fee application should indicate which attorney performed a
particular task or category of tasks.” Id. The court concluded that the evidence
necessary to support a lodestar calculation “includes, at a minimum, [1]
documentation of the services performed, [2] who performed them and at what
hourly rate, [3] when they were performed, and [4] how much time the work
required.” Id. at 764.
The Turners’ exhibit and the testimony of Lemon that largely tracked the
exhibit do not satisfy this minimum requirement set out in Olivas. The exhibit and
testimony identify the services performed only as very general topics. The
evidence does not identify who performed each of the tasks. And it does not
identify when the services were performed. While the evidence does establish the
amount of time worked, it does not do it with enough particularity to determine
whether the amount of time involved was an appropriate amount. For example, the
evidence establishes that the Turners’ attorneys spent a total amount of 54.4 hours
on “written discovery.” But we do not know how much written discovery was
involved. Accordingly, the fact finder could not discern whether this was an
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appropriate amount of time on written discovery. Similarly, we know that 18.5
hours were spent on hearings, but the evidence lacks any particularity such as how
many hearings there were, the nature of the hearings, the length of the hearings, or
the amount of time spent in preparation for the hearings.
The Turners correctly explain that Lemon testified that his determination of
hours worked was based on a review of the docket sheet and other documents in
the file to determine the approximate amount of time worked. Assuming that this
is a sufficient method of determining time worked under Olivas, Lemon did not
testify about the details of that review. We know only that it was done. We hold
the evidence in support of attorneys’ fees is not sufficiently specific to support the
jury’s award of fees.
We sustain D&M Marine’s factual sufficiency challenge on the Turner’s
award of attorneys’ fees. Accordingly, we remand for a new trial on attorneys’
fees.
Conclusion
We reverse the trial court’s award of attorneys’ fees and remand for a new
trial. We affirm the remainder of the trial court’s judgment.
Laura Carter Higley
Justice
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Panel consists of Justices Keyes, Higley, and Bland.
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