NUMBER 13-13-00476-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
VICTOR T. SERRANO, Appellant,
v.
MANUEL RAMOS, Appellee.
On appeal from the County Court at Law No. 4
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Benavides
This is an appeal from a trial de novo in a county court at law (“the trial court”) of a
forcible entry and detainer action originally tried to a justice court. By six issues,
appellant Victor T. Serrano asserts that: (1) the trial court erred in denying his motion to
sever because the trial court lacked subject matter jurisdiction to hear appellee Manuel
Ramos’s claims brought in the trial court; (2) the evidence is factually and legally
insufficient to support the trial court’s finding that Serrano breached the contract at issue;
(3) the trial court erred in awarding damages to Ramos; (4) the trial court erred in awarding
Ramos attorney’s fees; (5) the trial court failed to address Serrano’s counterclaim to
recover his $9,000 down payment paid to Ramos; and (6) the trial court failed to address
Serrano’s appeal of the forcible detainer judgment. We vacate and dismiss in part,
reverse and render in part, and affirm in part.
I. BACKGROUND
On October 22, 2010, Serrano entered into an agreement with Ramos and
Ramos’s wife to purchase the Ramoses’ home at 7601 North 20th Street in McAllen (“the
home” or “the North 20th Street home”). The sales price of the home totaled $118,000.
The agreement specified the following relevant terms: (1) Serrano was to pay $18,000
in cash and obtain third-party financing for the remaining $100,000; (2) the contract was
subject to Serrano “being approved for the financing described in the attached Third Party
Financing Condition Addendum”; (3) that Serrano was to deposit $2,000 as earnest
money with San Jacinto Title Company; and (4) the closing date for the sale was
November 30, 2010. The third-party financing condition addendum to the agreement
stated that Serrano “shall apply promptly for all financing” described in the addendum and
make a reasonable effort to obtain approval for such financing. Furthermore, the
addendum stated that if Serrano could not obtain financing, he may give written notice to
Ramos within thirty days after October 22, 2010, and that the contract would terminate
and the $2,000 earnest money would be refunded to Serrano. If Serrano failed to give
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notice within the requisite thirty days, the contract would “no longer be subject to” Serrano
obtaining financing.
A “Temporary Residential Lease” was executed contemporaneously with the
October 22 agreement and stated that Ramos would lease the home at 7601 North 20th
Street to Serrano for a total of $26.67 per day through the date of closing. The
addendum further stated that Serrano had paid Ramos $800 “as a deposit to secure
performance of this [l]ease.” Concurrent to the execution of the contract, Ramos
completed various repairs to the 20th Street property. Ramos testified that the repair
costs totaled $550.
On November 30, 2010, Serrano did not close on the home, but according to
Ramos’s testimony, Serrano asked Ramos to “give him an extension of time . . . . Because
[Serrano] was going to receive some money.” As a result of the request, on December
3, 2010, Serrano and Ramos agreed to amend the October 22 agreement to: (1) change
the closing date to April 29, 2011; and (2) require Serrano to pay $9,000 to Ramos as
“partial down [ ] payment” by December 3, 2010 and pay another $9,000 to Ramos by
January 3, 2011, again, as a “partial down [ ] payment.” Ramos testified at trial that
Serrano paid the $9,000 due on December 3, 2010, but he did not make the January 3,
2011 payment.
On April 29, 2011, Serrano again did not close on the purchase of the home.
Ramos testified that at the time, Serrano also owed him three months of back rent totaling
$2,400. Ramos stated that Serrano instructed him to take the $2,000 earnest money as
a partial payment for the back rent and that Serrano would owe him the remaining $400.
Despite his failures to close on the purchase of the home, Ramos stated that Serrano
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nevertheless “insisted that he wanted to buy the house.” On May 10, 2011, Serrano,
Ramos, and Ramos’s wife executed a “Release of Earnest Money,” which directed the
escrow agent, San Jacinto Title Company, to disburse the $2,000 to Ramos. Serrano
paid Ramos the remaining $400 in cash.
After May 10, 2011, Serrano and Ramos amended their agreement for a second
time and changed the closing date of the sale to August 29, 2011. The amendment
acknowledged the December 3, 2010 $9,000 down payment, removed the January 3,
2010 $9,000 down payment requirement, and added that Serrano would pay the rent
“every third week of the month” as well as the “taxes of year 2011.” Ramos testified that
Serrano failed to pay the 2011 property taxes on the home. According to Ramos, on
August 29, 2011, Serrano did not close on the purchase of the home.
Ramos testified that Serrano told Ramos that he no longer wanted to purchase the
home, but Serrano continued to live in the home. In response, Ramos filed a forcible
detainer suit against Serrano on August 5, 2011, in the justice court in Hidalgo County
seeking possession of the property and unpaid rent totaling $1,600 at the time of the filing.
Serrano filed an answer to Ramos’s lawsuit and asserted a counterclaim against Ramos
to recover the $9,000 down payment made on December 3, 2010. The record shows
that on August 30, 2011, the justice court ruled in Ramos’s favor and ordered Serrano to
vacate the North 20th Street home. Additionally, the justice court awarded Ramos
damages of $1,600 for past-due rent.
On September 12, 2011, Serrano appealed the justice court’s judgment for a trial
de novo to the trial court. In his live pleading before the trial court, Ramos alleged a
cause of action for breach of contract and sought damages of “not less than” $6,803.45
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in unpaid rent and property taxes, $2,000 in earnest money, “damages done to the garage
door, dishwasher, and door” on the North 20th Street home, and “accrued and unpaid
interest on the debt before maturity.” Ramos also sought pre- and post-judgment
interest as well as attorney’s fees. Serrano filed an answer denying Ramos’s
allegations. Furthermore, Serrano re-urged his counterclaim seeking to recover the
$9,000 paid on December 3, 2010 as a down payment.
After a trial on the merits, the trial court ruled in Ramos’s favor and awarded him
the following damages: (1) $4,800 in unpaid rent; (2) $2,000 in earnest money; (3)
$2,003.45 in 2011 property taxes; (4) $550 for repairs to the North 20th Street property;
and (5) $750 for replacement of the garage door. Furthermore, the trial court awarded
Ramos attorney’s fees totaling: $5,000 for the trial court proceedings; $8,000 if this case
was appealed to this Court; and $20,000 if this case was appealed to the Texas Supreme
Court. This appeal followed.
II. SUBJECT-MATTER JURISDICTION
By his first issue, Serrano asserts that the trial court erred in denying his motion to
sever Ramos’s claims for recovery for rent, earnest money, property taxes, and repairs
to property and the garage door because they were not related to the forcible detainer
action brought in the underlying justice court proceeding, and therefore, outside the trial
court’s subject matter jurisdiction to the appeal. Although Serrano filed a motion to
sever, which was ultimately denied by the trial court, the arguments contained in that
motion challenge the trial court’s subject matter jurisdiction over Ramos’s claims, so we
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will address Serrano’s issue as such.1 Finally, because the disposition of Serrano’s first
issue also relates to the disposition of his fifth and sixth issues, we will address them
herein as well.
A. Standard of Review and Applicable Law
Subject matter jurisdiction is an issue that may be raised for the first time on
appeal, and it may not be waived by the parties. Tex. Ass’n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 444–45 (Tex. 1993). The reasoning behind this rule is that subject
matter jurisdiction is essential to the authority of a court to decide a case. Id.
In a case of forcible entry or of forcible detainer, a justice court in the precinct in
which the real property is located has original jurisdiction over the proceedings. See
TEX. GOV’T CODE ANN. § 27.031(a)(2) (West, Westlaw through 2013 3d C.S.); TEX. PROP.
CODE ANN. § 24.004(a) (West, Westlaw through 2013 3d C.S.). The only issue to be
decided in a case of forcible entry or of forcible detainer brought under section 24 of the
Texas Property Code is “the right to actual possession” of the property. TEX. R. CIV. P.
746.2 However, a suit for rent may be joined with an action of forcible entry and detainer,
wherever the suit for rent is within the jurisdiction of the justice court. See TEX. R. CIV. P.
738. In such a case where rent is sought, the justice court rendering judgment in the
action of forcible entry and detainer may at the same time render judgment for any rent
1 We note that Serrano also filed a motion for directed verdict/motion to dismiss on jurisdictional
grounds.
2 Since the initial filing of this case, the rules of civil procedure governing forcible detainer actions
in justice courts were repealed by order of the Texas Supreme Court. See TEX. SUP. CT., Final Approval
of Rules for Justice Court Cases, Misc. Docket No. 13-9049 (April 15, 2013) (promulgating Rules 500–510
and repealing Rules 738–758of the Texas Rules of Civil Procedure effective August 31, 2013). However,
because the repealed version of the rules govern this case, we will cite and refer to them solely for purposes
of this opinion.
6
due the landlord by the renter, provided the amount thereof is within the jurisdiction of the
justice court. Id. Additionally, damage claims related to maintaining or obtaining
possession of the premises may be joined with the detainer action and litigated in the
county court. See Krull v. Somoza, 879 S.W.2d 320, 322 (Tex. App.—Houston [14th
Dist.] 1994, writ denied) (citing TEX. R. CIV. P. 752, the repealed rule discussing
recoverable damages incident to the forcible detainer action “suffered for withholding or
defending possession of the premises during the pendency of the appeal”). Damages
for other causes of action (i.e., wrongful termination) are not recoverable in a forcible entry
and detainer action. Id. Thus, the damages recoverable under former Rule 752 “are
limited to those expenses and losses related to maintaining or obtaining possession of
the premises.” Hanks v. Lake Towne Apartments, 812 S.W.2d 625, 626 (Tex. App.—
Dallas 1991, writ denied).
We agree with the Hanks court that the action of forcible detainer was created by
the legislature to “provide a speedy, simple, and inexpensive means for resolving the
question of the right of possession of premises.” Id. Thus, confining the damages that
may be sought to those suffered as a direct result of withholding or defending possession
promotes this legislative purpose. Id. “If other more remotely related claims arising out
of the tenant-landlord relationship could be asserted in the county court, the forcible
detainer proceedings would almost certainly be less speedy, more complex, and more
expensive.” Id. With this framework in mind, we turn to the specific facts of this case.
B. Ramos’s Claims
The relevant question in this issue is whether the damages sought by Ramos were
outside the trial court’s jurisdiction because they did not relate to actual possession of the
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property, collection of rent, or other damages suffered for withholding or defending
possession of the premises during the pendency of the appeal.
The record shows that Ramos sought possession of the North 20th Street home,
as well as past rent due, when he filed his complaint for forcible detainer on August 5,
2011, in the justice court. Therefore, we hold that the trial court had subject matter
jurisdiction over Ramos’s claim for unpaid rent. See TEX. R. CIV. P. 738.
Next, we turn to Ramos’s claims related to the earnest money contract, property
tax addendum, and repairs made to the property prior to Serrano moving into the North
20th Street home. These claims for damages relate to either the October 22 agreement,
May 10 release of earnest money, or May 10 addendum. Stated another way, none of
these damages are associated with determining the right to actual possession of the
property, collection of rent, or other damages suffered for withholding or defending
possession of the premises during the pendency of the appeal. See id. R. 738, 746,
758; Krull, 879 S.W.2d at 322. As a result, the trial court lacked subject matter
jurisdiction over these claims and erred by not dismissing them.
Next, we examine Ramos’s claim for damages related to the replacement of the
locks and garage door. In his pleading, Ramos alleged that Serrano had caused
damage to the property’s garage door, dishwasher, and front door. According to Ramos,
when he retook possession of the home, Serrano did not give him the keys to the door or
remote control to the garage. As a result, Ramos had to change the garage door, garage
door control, and front door locks to the home. We hold that these damages relate to
expenses and losses related to Ramos’s repossession of the premises and are thus
within the trial court’s subject matter jurisdiction. See Hanks, 812 S.W.2d at 626.
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To summarize, the trial court had subject matter jurisdiction over Ramos’s claims
for unpaid rent and damages related to the replacement of the locks and garage door.
Conversely, the trial court did not have subject matter jurisdiction over Ramos’s claims to
the earnest money, unpaid property taxes, or reimbursement for repairs made to the
property prior to Serrano moving in because these claims are not recoverable in a forcible
entry and detainer action.3 See Krull, 879 S.W.2d at 322. Therefore, the trial court erred
by not dismissing these three claims for want of jurisdiction. Serrano’s first issue is
overruled in part and sustained in part.
C. Serrano’s Claims
In response to Ramos’s original forcible detainer action, Serrano filed a
counterclaim to recover the $9,000 down payment paid to Ramos on December 3, 2010
pursuant to the purchase agreement. By his fifth issue, Serrano asserts that the trial
court “failed to address” his counterclaim to recover the $9,000 down payment made to
Ramos pursuant to the real estate purchase agreement.
Like Ramos’s additional claims, we must examine Serrano’s counterclaim and
determine whether the damages sought by Serrano’s counterclaim were outside the trial
court’s jurisdiction because the damages did not relate to actual possession of the
property, collection of rent, or other damages suffered for withholding or defending
possession of the premises during the pendency of the appeal. See TEX. R. CIV. P. 738;
Krull 879 S.W.2d at 322; Hanks, 812 S.W.2d at 626.
3 We express no opinion on the merits of these three claims, and nothing in this opinion prevents
Ramos from pursuing these claims in a separate lawsuit. See generally TEX. PROP. CODE ANN. § 24.008
(West, Westlaw through 2013 3d C.S.) (“An eviction suit does not bar a suit for trespass, damages, waste,
rent, or mense profits.”).
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After reviewing the pleadings, we hold that Serrano’s counterclaim did not relate
to any of the allowed damage recoveries in a forcible detainer. See Krull 879 S.W.2d at
322; Hanks, 812 S.W.2d at 626. Therefore, the trial court did not err for not ruling on
Serrano’s counterclaim because it was without subject-matter jurisdiction to do so. We
overrule Serrano’s fifth issue.
By his sixth issue, Serrano asserts that the trial court “failed to address Serrano’s
appeal of the forcible detainer judgment” rendered by the justice court. Serrano simply
argues in his brief that “the trial court . . . wholly failed to address the issue of [Serrano’s]
appeal of the justice court’s judgment of forcible entry in appellee’s favor.” Because we
are unclear as to what specifically Serrano is contending, we find this issue inadequately
briefed. See TEX. R. APP. P. 38.1(i) (“[Appellant’s] brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to the
record.”). Serrano’s sixth issue is overruled.
III. SUFFICIENCY CHALLENGE
By Serrano’s second issue, Serrano asserts that the evidence is legally and
factually insufficient to sustain the trial court’s judgment.
A. Applicable Law and Standard of Review
When neither party requests findings of fact or conclusions of law, it is implied that
the trial court made all fact findings necessary to support its judgment. Sixth RMA
Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).4
4 Although Serrano requested findings of fact and conclusions of law, his request was untimely.
See TEX. R. CIV. P. 296 (explaining that a request for findings of fact and conclusions of law shall be filed
within twenty days of the signing of the judgment).
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When an appellant attacks the legal sufficiency of an adverse finding on an issue
for which he did not have the burden of proof, the appellant must demonstrate that there
is no evidence to support the adverse finding. Editorial Caballero, S.A. de C.V. v.
Playboy Enters., Inc., 359 S.W.3d 318, 328 (Tex. App.—Corpus Christi 2012, pet. denied)
(citing City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)). A no-evidence
challenge will be sustained only if: (1) there is 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. City of Keller, 168 S.W.3d at 810; King Ranch, Inc. v. Chapman, 118 S.W.3d
742, 751 (Tex. 2003). “The final test for legal sufficiency must always be whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010). We
must view the evidence in the light most favorable to the verdict and “must credit favorable
evidence if reasonable jurors could, and disregard contrary evidence unless reasonable
jurors could not.” Id. (citing City of Keller, 168 S.W.3d at 822–27).
In reviewing a factual-sufficiency challenge to a finding on an issue on which the
appellant did not have the burden of proof, we consider and weigh all of the evidence and
set aside the verdict only if the evidence that supports the jury finding is so weak as to
make the verdict clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986). We must examine both the evidence supporting and that contrary to
the judgment. Editorial Caballero, 359 S.W.3d at 329. Additionally, the fact-finder is
the sole judge of the witnesses’ credibility, and it may choose to believe one witness over
11
another, and we may not impose our own opinion to the contrary. Id. (citing Golden
Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003)).
B. Discussion
Serrano argues that the trial court erred in finding in Ramos’s favor because
Serrano did not breach the parties’ contract because his performance under the contract
“was contingent upon [him] obtaining financing.” The elements for a breach of contract
are: (1) the existence of a valid contract; (2) that the plaintiff performed or tendered
performance; (3) that the defendant breached the contract; and (4) that the plaintiff was
damaged as a result of the breach. Sauceda v. GMAC Mortg. Corp., 268 S.W.3d 135,
140 (Tex. App.—Corpus Christi 2008, no pet.). Before addressing Serrano’s argument,
however, we must first determine which contract controls the underlying judgment and
whether it was valid.
Here, there are essentially two agreements at issue. The first concerns the sale
of the North 20th Street home that was originally entered into by Serrano and Ramos on
October 22, 2010 and contingent upon Serrano receiving financing. As highlighted in
this opinion, this agreement continued to be modified by the parties, further extending
Serrano’s closing deadlines, in order to allow Serrano to obtain financing. The second
agreement, known as the “Buyer’s Temporary Residential Lease,” concerns Serrano’s
lease of the North 20th Street home from October 22, 2010 until: (1) he closed on the
purchase of the home; (2) terminated the contract to purchase the home before closing;
(3) defaulted under the terms of the lease; or (4) defaulted under the terms of the
purchase agreement. Ramos’s viable claims were brought under a forcible detainer
action, collection of unpaid rent, and damages related to obtaining possession of the
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North 20th Street home following the justice court proceeding. Thus, we will analyze
whether the evidence sufficiently supports a finding that Serrano breached his lease
agreement, in any of the four ways specified in the lease agreement, to support Ramos’s
claims.5
The record is clear and undisputed that Serrano never obtained financing to close
on the purchase of the North 20th Street home by the parties’ final closing deadline of
August 29, 2011. Furthermore, Ramos testified that Serrano failed to pay the $800 rent
for months, which was in breach of the lease terms. According to Ramos’s complaint for
forcible detainer, Ramos demanded that Serrano vacate the home on July 7, 2011
because he owed $1,600 in past-due rent. Ramos testified that Serrano continued to
live in the home after July 7, 2011, and unpaid rent continued to accumulate. In his
defense, Serrano claimed to have made nine payments of $800 to Ramos for rent and
also used his $2,000 earnest money to pay a portion of the rent as well, totaling $7,400
in total rent payments. Aside from the $2,000 earnest money, Serrano produced at least
four faded check receipts for $800 each made out to Ramos, and one payment receipt
for $1,200.
After viewing the evidence in the light most favorable to the verdict crediting
favorable evidence if reasonable jurors could, and disregarding contrary evidence unless
reasonable jurors could not, we conclude that this evidence is legally sufficient to support
the trial court’s finding that Serrano breached his lease agreement with Ramos. See Del
Lago Partners 307 S.W.3d at 770. Furthermore, after examining and weighing both the
5Serrano only challenges the sufficiency of the evidence with regard to the element of breach.
Therefore, we will not address the other elements of a breach of contract action. See TEX. R. APP. P. 47.1.
13
evidence supporting and contrary to the judgment, we conclude that the verdict is not
clearly wrong and manifestly unjust to render the finding that Serrano breached his lease
agreement factually insufficient. See Cain, 709 S.W.2d at 176; Editorial Caballero, 359
S.W.3d at 329. Serrano’s second issue is overruled.
IV. DAMAGES AWARD
By his third issue, Serrano contends that the trial court erred in awarding damages
to Ramos because it was without jurisdiction to hear any of Ramos’s claims for damages.
A. Discussion
As we held earlier in this opinion, we partially agree with Serrano that the trial court
was without jurisdiction to hear Ramos’s claims as they related to the earnest money
agreement, the 2011 property taxes agreement, and repairs to the property prior to
Serrano’s move into the property. As a result, those damages were improperly awarded
by the trial court because the trial court lacked the subject-matter jurisdiction to do so in
this particular proceeding. Therefore, we hold that the trial court erred in awarding
$2,000 in damages for the earnest money contract; $2,003.45 in recovery of the unpaid
2011 property taxes; and $550 for reimbursement of repairs made prior to Serrano
moving into the property.
However, the trial court did have subject-matter jurisdiction to hear Ramos’s claims
for damages related to unpaid rent and damages to the door and garage door.
Furthermore, we have also concluded that sufficient evidence exists to show that Serrano
breached his lease agreement with Ramos, which was the controlling agreement of the
forcible detainer action, not the purchase agreement, as Serrano contends on the appeal.
Accordingly, the trial court did not err in awarding the remaining damages for unpaid rent
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and replacement of the garage door. 6 Serrano’s third issue is sustained in part and
overruled in part.
V. ATTORNEY’S FEES
By his fourth issue, Serrano contends that the trial court abused its discretion in
awarding Ramos attorney’s fees of $5,000, plus appellate fees, because legally
insufficient evidence supports the trial court’s award.
A. Applicable Law and Standard of Review
Texas Rule of Civil Procedure 752 allows only the prevailing party in a forcible
detainer appeal before a county court to recover reasonable attorney fees, upon pleading
and proof, and provided that the requirements of Texas Property Code Section 24.006
have been met. TEX. R. CIV. P. 752. Section 24.006 states than in order for a party to
be eligible for attorney’s fees in a forcible detainer action: (1) the landlord must give a
tenant who is unlawfully retaining possession of the landlord’s premises a written demand
by registered or certified mail, return receipt requested, at least 10 days before the date
of the suit is filed, to vacate the premises, and the demand must state that if the tenant
does not vacate the premises before the 11th day after the date of receipt of the notice
and if the landlord files suit, the landlord may recover attorney’s fees; or (2) if a written
lease entitles the landlord to recover attorney’s fees. TEX. PROP. CODE ANN. §
24.006(a)–(b) (West, Westlaw through 2013 3d C.S.).
6 In his brief, Serrano argues that the trial court’s measure of damages was inaccurate under the
real estate purchase contract. Serrano does not challenge the sufficiency of evidence regarding the
damages as they relate to unpaid rent or costs associated with Ramos taking repossession of the property.
Because, we have already held that the contract at issue in this action is related to the breach of the lease
agreement, and not the purchase agreement of the home, we decline to address Serrano’s challenge to
damages pursuant to the real estate purchase contract. See TEX. R. APP. P. 47.1.
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The record must reflect that the award was reasonable and not an abuse of
discretion. See Bruce v. Fed. Nat. Mortg. Ass’n, 352 S.W.3d 891, 894 (Tex. App.—
Dallas 2011, pet. denied); Carlson’s Hill Country Beverage v. Westinghouse Rd. Joint
Venture, 957 S.W.2d 951, 956 (Tex. App.—Austin 1997, no writ). Thus, a trial court
abuses its discretion if it awards attorney’s fees under this provision without legally or
factually sufficient evidence that the attorney’s fees awarded were reasonable. See,
e.g., Charette v. Fitzgerald, 213 S.W.3d 505, 512 (Tex. App.—Houston [14th Dist.] 2006,
no pet.) (construing a landlord-tenant statute that provided for “reasonable attorney’s
fees”).
B. Discussion
The lease agreement in this case provides for reasonable attorney’s fees to the
prevailing party “in any legal proceeding brought under” the lease agreement. Serrano
solely argues, however, that “no evidence” supports the trial court’s award of attorney’s
fees in this case. Thus, we treat this argument as a legal sufficiency challenge. A no-
evidence challenge will be sustained only if: (1) there is 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. City of Keller, 168 S.W.3d at 810.
Ramos’s counsel offered the following relevant testimony in support of his claim
for attorney’s fees:
I am an attorney licensed by the Supreme Court in the State of Texas to
practice in all of Texas, Judge. I’ve been working as an attorney for the
past approximately 10 years.
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Now I did represent Mr. Ramos from the time that he—the appeal [sic] was
filed up until today which is the conclusion. My hourly rate was $225 an
hour and in my expert opinion all of the work that was done was necessary
to bring forth the suit and the number of hours set forth that I put into the
case were a reasonable and necessary fee that I’m charging is $15,000.
....
And in the event that it’s appealed I’m requesting an additional $8,000 for
the appeals court and another [$20,000] if it gets appealed further to the
Supreme Court.
No other evidence was submitted on the issue of Ramos’s attorney’s fees, and Serrano’s
counsel did not cross-examine Ramos’s attorney.
When a trial court determines whether a fee is reasonable, it should consider the
following factors: (1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill required to perform the legal service properly; (2) the
likelihood . . . that the acceptance of the particular employment will preclude other
employment by the lawyer; (3) the fee customarily charged in the locality for similar legal
services; (4) the amount involved and the results obtained; (5) the time limitations
imposed by the client or by the circumstances; (6) the nature and length of the
professional relationship with the client; (7) the experience, reputation, and ability of the
lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent
on results obtained or uncertainty of collection before the legal services have been
rendered. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012); Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997); TEX.
DISCIPLINARY R. PROF'L CONDUCT 1.04(b).
Ramos’s counsel’s brief testimony touched on his experience as a lawyer in Texas,
17
a general statement about how long he has worked on this specific case, and his hourly
rate. Ramos testimony, however, did not explain: (1) the time and labor required in this
case, (2) what specific work and services were accomplished, (3) what skill was required
to properly perform legal services in this case, (4) what were the fees customarily charged
in Hidalgo County for similar legal services, or (5) other factors that would explain the
reasonableness of his fee. Furthermore, Ramos offered conclusory testimony related to
his contingent appellate fees, without any justification for the cost or how the fee was
determined, and he did not introduce any billing statements or invoices related to his
representation on this case. Finally, although Ramos’s brief argues that he was entitled
to the award, it does not analyze or explain how the fee was reasonable and why the trial
court did not abuse its discretion in making such an award.
Accordingly, in light of this record, we conclude that the trial court abused its
discretion in awarding Ramos attorney’s fees because the evidence offered by Ramos’s
counsel to prove the reasonableness of his fees is no more than a mere scintilla, and
consequently, legally insufficient. See City of Keller, 168 S.W.3d at 810. We sustain
Serrano’s fourth issue.
VI. CONCLUSION
Because we partially sustain Serrano’s first and third issues on jurisdictional
grounds, we vacate the trial court’s damages award in Ramos’s favor to recover: (1)
$2,000 in earnest money; (2) $2,003.45 in unpaid property taxes for the year 2011; and
(3) $550 for repairs made to the property prior to Serrano moving in, and further dismiss
those three claims without prejudice for want of jurisdiction. Because we sustain
Serrano’s fourth issue, we reverse the trial court’s award of attorney’s fees in Ramos’s
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favor and render that he take nothing in attorney’s fees. The remainder of the judgment
is affirmed.
GINA M. BENAVIDES,
Justice
Delivered and filed the
18th day of June, 2015.
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