Lainie Whitmire and Ray Whitmire v. National Cutting Horse Association

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00170-CV

LAINIE WHITMIRE AND RAY APPELLANTS
WHITMIRE AND APPELLEES

V.

NATIONAL CUTTING HORSE APPELLEE
ASSOCIATION AND APPELLANT

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FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1
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I. INTRODUCTION

In four issues, Appellants Lainie Whitmire and Ray Whitmire argue that the

trial court erred by granting judgment notwithstanding the verdict (JNOV) on

Lainie’s breach of oral agreement and false imprisonment claims, by awarding

Appellee National Cutting Horse Association (the NCHA) attorney’s fees on

1
See Tex. R. App. P. 47.4.
Lainie’s and Ray’s declaratory judgment actions, and by not awarding Lainie

attorney’s fees on her breach of contract claim. The NCHA also brings a

conditional cross-appeal, arguing that the trial court abused its discretion by

admitting and excluding certain evidence regarding Lainie’s breach of oral

agreement claim. We reverse and render in part and affirm as modified in part.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Underlying Facts

Lainie was a member of the NCHA and competed in the amateur and non-

professional classes. In 2004, the NCHA informed her that it had concerns

regarding her qualifications to compete in those classes and requested detailed

information regarding her past employment. Later that year, the NCHA informed

Lainie that a hearing would be held in front of the NCHA’s grievance committee

on November 15, 2004, regarding her qualifications.

Lainie and her attorney, Clark Brewster, appeared at the hearing; the

NCHA’s attorney, E. Eldridge Goins, Jr., appeared on behalf of the NCHA. At the

conclusion of the hearing, the committee decided to revoke Lainie=s amateur

status and also to suspend her non-professional status unless she produced

evidence to show her eligibility for non-professional status.

Lainie appealed the grievance committee=s ruling; on the day of the

appeals hearing, Brewster, on behalf of Lainie, and Goins, on behalf of the

NCHA, reached an oral settlement agreement. Both parties agree that they

reached a settlement agreement and that, as part of the agreement, Lainie would

withdraw all appeals and her membership would be suspended for six months.

The parties dispute whether reinstatement of Lainie=s non-professional status at

2
the conclusion of the six-month suspension was a term of the settlement

agreement.

On January 19, 2005, Goins sent Brewster a letter, purportedly confirming

the terms of the settlement agreement. The letter stated that the parties agreed

that A[a]ll pending investigations and appeals [were thereby] ceased,@ that

Lainie=s NCHA membership would be suspended for six months, and that

Lainie=s amateur and non-professional statuses would be revoked. The letter did

not mention reinstatement of Lainie=s non-professional status. The letter did not

provide a signature line for Brewster or Lainie, and they did not otherwise

respond in writing.

Lainie and Brewster testified at trial that, during a telephone call from

Brewster to Goins after Brewster received the letter, Goins assured Brewster

that, although not stated in the letter, Lainie’s non-professional status would be

reinstated at the conclusion of her six-month membership suspension.

After the six-month membership suspension period ended, Lainie’s

membership was reinstated, and she resumed participation at NCHA events in

the open class. Lainie applied for reinstatement of her non-professional status in

October 2005; in her application, she stated that her amateur status had been

suspended and revoked and that her non-professional status had been

suspended in November 2004. The NCHA denied her application due to

ineligibility. In a letter dated March 2, 2006, Lainie=s new attorney, James

Walker, requested reconsideration of Lainie=s application for non-professional

status and an appeal to the NCHA executive committee in the event that her

application was denied a second time. The letter did not mention any oral

agreement for automatic reinstatement of her non-professional status.

3
 The application was denied, and on August 21, 2006, the NCHA held a

hearing to consider Lainie’s appeal. Lainie appeared with her attorney, Walker.

After the hearing, the executive committee denied Lainie=s application for non-

professional status and suspended her NCHA membership for one year.

B. The Underlying Procedural Posture

In October 2006, Lainie filed suit against the NCHA asserting claims for,

among other things, declaratory judgment, breach of the oral settlement

agreement, false imprisonment, and intentional infliction of emotional distress;2

she also sought attorney’s fees under chapter 37 of the Texas Civil Practice and

Remedies Code3 for her declaratory judgment claim and under chapter 384 for

her breach of contract claim. Ray joined the suit as a plaintiff after the NCHA

terminated his membership; he brought claims against the NCHA for declaratory

judgment, violations of his right to due process, and breach of fiduciary duty. The

NCHA filed a counterclaim for declaratory judgment; it also requested attorney’s

fees under chapter 38 of the Texas Civil Practice and Remedies Code and

pursuant to the NCHA’s rules.

2
At an NCHA event at the end of 2004, Lainie was called into the women’s
locker room, where she found several executive committee members and Goins
waiting to discuss her qualifications; the events that transpired in the locker room,
which we need not address here, formed the basis of her false imprisonment and
intentional infliction of emotional distress claims
3
See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2008) (providing
that, in any proceeding under the Declaratory Judgments Act, the trial court may
award reasonable and necessary attorney’s fees as are equitable and just).
4
See id. § 38.001(8) (West 2008) (providing for recovery of attorney’s fees
for claims for oral or written contracts).

4
 The trial court granted summary judgment in favor of the NCHA on all of

Lainie=s claims except false imprisonment and intentional infliction of emotional

distress. The trial court severed Lainie’s two remaining claims, all of Ray’s

claims, and the NCHA’s counterclaim.

Lainie appealed the summary judgment in favor of the NCHA to this court.

See Whitmire v. Nat’l Cutting Horse Ass’n, No. 02-08-00176-CV, 2009 WL

2196126 (Tex. App.—Fort Worth 2009, pet. denied) (mem. op.). We upheld the

trial court’s summary judgment in favor of the NCHA on all of Lainie’s claims—

including her declaratory judgment action—except her claim for breach of the

oral settlement agreement, and we remanded that claim to the trial court. See id.

at *11. On remand, the trial court consolidated Lainie’s breach of oral contract

claim with the previously-severed and abated claims. The trial court then granted

summary judgment for the NCHA on Ray’s claims.5 The trial court also granted

summary judgment for the Whitmires on the NCHA’s counterclaim for declaratory

judgment and attorney’s fees.

The NCHA and Lainie then entered into a written agreement that “all

attorneys’ fees issues [would] be submitted post-verdict” to the trial court.

Lainie’s claims for breach of oral contract and false imprisonment

proceeded to trial.6 After a two-week trial, the jury returned a verdict in favor of

Lainie on both of her claims. The jury specifically found that the NCHA and

5
Ray did not appeal the summary judgment; he appeals only the trial
court’s award of attorney’s fees to the NCHA for defending his declaratory
judgment action.
6
Prior to trial, Lainie nonsuited her claim for intentional infliction of
emotional distress.

5
Lainie had an agreement to reinstate her non-professional status at the end of

her six-month membership suspension and that the NCHA failed to comply with

that agreement; the jury awarded Lainie $70,000 in damages. The jury also

found that the NCHA had falsely imprisoned Lainie and awarded zero dollars in

damages for that claim.

Lainie requested that the trial court enter judgment in accordance with the

jury’s verdict and also requested attorney’s fees for prevailing on her breach of

contract claim; she submitted Walker’s affidavit as evidence of her attorney’s

fees. The NCHA filed a motion for JNOV and alternative motion for new trial on

Lainie’s breach of contract claim. It requested that the trial court disregard the

jury’s findings on jury questions 1–4 (the breach of oral agreement and false

imprisonment questions) and enter a take-nothing judgment on all of the

Whitmires’ claims; the NCHA also requested attorney’s fees, attaching as

evidence its attorneys’ affidavits. The NCHA alternatively moved for a new trial

based on the evidentiary issues that form the basis of its cross-appeal.

The trial court granted the NCHA’s motion for JNOV, signing a final

judgment that Lainie take nothing on her breach of oral agreement and false

imprisonment claims and awarding her no attorney’s fees. The final judgment

also ordered that the NCHA recover $302,000 in attorney’s fees from Lainie for

defending her declaratory judgment claim and recover $45,000 in attorney’s fees

from Ray for defending his declaratory judgment claim. The Whitmires timely

filed notice of appeal, and the NCHA timely filed notice of cross-appeal.

III. JNOV ON BREACH OF ORAL AGREEMENT

In part of her first issue, Lainie argues that the trial court erred by

disregarding the jury’s verdict on her breach of oral agreement claim and by

6
granting JNOV for the NCHA because she presented substantial evidence to

support the jury’s findings that she and the NCHA had an agreement to reinstate

her non-professional status at the end of her six-month membership suspension

and that she suffered $70,000 in damages as a result of the NCHA’s breach.

A. Standard of Review

A trial court may disregard a jury verdict and render JNOV if no evidence

supports the jury findings on issues necessary to liability or if a directed verdict

would have been proper. See Tex. R. Civ. P. 301; Tiller v. McLure, 121 S.W.3d

709, 713 (Tex. 2003); Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d

392, 394 (Tex. 1991). A directed verdict is proper only under limited

circumstances: (1) when the evidence conclusively establishes the right of the

movant to judgment or negates the right of the opponent; or (2) when the

evidence is insufficient to raise a material fact issue. Prudential Ins. Co. of Am.

v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Playoff Corp. v.

Blackwell, 300 S.W.3d 451, 454 (Tex. App.—Fort Worth 2009, pet. denied) (op.

on reh’g).

To determine whether the trial court erred by rendering a JNOV, we view

the evidence in the light most favorable to the verdict under the well-settled

standards that govern legal sufficiency review. See Ingram v. Deere, 288

S.W.3d 886, 893 (Tex. 2009); Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706,

709 (Tex. 2003). We must credit evidence favoring the jury verdict if reasonable

jurors could and disregard contrary evidence unless reasonable jurors could not.

See Tanner v. Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009);

Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007).

B. Sufficient Evidence to Support Jury’s Breach of Contract Finding

7
 Jury Question No. 1 asked, “Was there an agreement between the [NCHA]

and Lainie Whitmire to reinstate her non-professional status at the end of her six

(6) month suspension?” The question also set forth the applicable law as

follows:

You are instructed that in deciding whether the parties reached an
agreement, you may consider what they said and did in light of the
surrounding circumstances, including any earlier course of dealing.
You may not consider the parties’ unexpressed thoughts or
intentions.

You are instructed that a party’s conduct includes the conduct of
another who acts with the party’s authority or apparent authority.

You are instructed that authority for another to act for a party must
arise from the party’s agreement that the other act on behalf and for
the benefit of the party. If a party so authorizes another to perform
an act, that such other party is also authorized to do whatever else is
proper, usual, and necessary to perform the act expressly
authorized.

You are instructed that apparent authority exists if a party (1)
knowingly permits another to hold himself out as having authority or
(2) through lack of ordinary care, bestows on another such
indications of authority that lead a reasonably prudent person to rely
on the apparent existence of authority to his detriment. Only the
acts of the party sought to be charged with responsibility for the
conduct of another may be considered in determining whether
apparent authority exists.

You are instructed that a party’s conduct includes conduct of others
that the party has ratified. Ratification may be express or implied.

You are instructed that implied ratification occurs if a party, though
he may have been unaware of unauthorized conduct taken on his
behalf at the time it occurred, retains the benefits of the transaction
involving the unauthorized conduct after he acquired full knowledge
of the unauthorized conduct. Implied ratification results in the
ratification of the entire transaction.

The jury answered “yes” to this question.

8
 In its motion for JNOV, the NCHA argued that evidence at trial established

that the only settlement terms approved by the NCHA were those contained in

the January 19, 2005 letter that Goins sent to Brewster; that the NCHA executive

committee did nothing to cause Lainie to reasonably believe that Goins had any

authority to enter into an agreement other than upon those terms approved by

the executive committee in Goins’s letter; that the executive committee did not

accept or ratify any other settlement terms; and that Lainie and her attorneys

never mentioned the agreement to reinstate her non-professional status until she

filed suit over a year after her membership suspension ended. The NCHA does

not dispute that Goins had actual authority to enter into settlement agreements

on its behalf upon terms approved by the NCHA executive committee, and the

NCHA does not dispute that Goins did in fact, on its behalf, enter into a

settlement agreement with Lainie.

Thus, we will first determine whether, viewing the evidence in the light

most favorable to the jury’s verdict under the well-settled standards that govern

legal sufficiency review, crediting evidence favoring the jury verdict if reasonable

jurors could and disregarding contrary evidence unless reasonable jurors could

not, any evidence exists that Goins had the authority, actual or apparent, to bind

the NCHA to the terms of settlement as testified to by Lainie and Brewster—

which included reinstatement of Lainie’s non-professional status after her six-

month membership suspension ended.7 See Tex. R. Civ. P. 301; Tiller, 121

7
To the extent that the NCHA’s arguments could be interpreted to include
an argument that the evidence is insufficient to show that Goins, on behalf of the
NCHA, agreed to reinstate Lainie’s non-professional status as part of the oral
settlement agreement, the testimony of Brewster and Lainie constitutes more
than a scintilla of evidence of that agreement sufficient to support the jury’s

9
S.W.3d at 713; Fort Bend Cnty. Drainage Dist., 818 S.W.2d at 394; see also

Prudential Ins. Co. of Am., 29 S.W.3d at 77; Playoff Corp., 300 S.W.3d at 454.

Generally, a principal will be liable for the acts of its agent only if the acts

are within the agent=s authority or if the principal ratifies the acts. See Elliot

Valve Repair Co. v. B.J. Valve & Fitting Co., 675 S.W.2d 555, 560–61 (Tex.

App.—Houston [1st Dist.]), rev=d on other grounds, 679 S.W.2d 1 (Tex. 1984). If

an agent acts within the scope of his authority, both the agent and the principal

may be liable. Wynne v. Adcock Pipe & Supply, 761 S.W.2d 67, 69 (Tex. App.—

San Antonio 1988, writ denied). An agent may have actual or apparent authority

to act on behalf of a principal; the agent’s authority depends on some

communication by the principal either to the agent (actual or express authority) or

to the third party (apparent or implied authority). Gaines v. Kelly, 235 S.W.3d

179, 182 (Tex. 2007).

Actual authority usually denotes the authority a principal (1) intentionally

confers upon an agent, (2) intentionally allows the agent to believe he

possesses, or (3) by want of due care allows the agent to believe he possesses.

2616 S. Loop L.L.C. v. Health Source Home Care, Inc., 201 S.W.3d 349, 356–57

(Tex. App.—Houston [14th Dist.] 2006, no pet.); Currey v. Lone Star Steel Co.,

676 S.W.2d 205, 209–10 (Tex. App.—Fort Worth 1984, no writ). Actual authority

may be express or implied. 2616 S. Loop L.L.C., 201 S.W.3d at 356–57. An

attorney retained for litigation is presumed to possess actual authority to enter

implied finding to the contrary. See, e.g., Rocor Int’l, Inc. v. Nat’l Union Fire Ins.
Co., 77 S.W.3d 253, 262 (Tex. 2002) (“More than a scintilla of evidence exists if
the evidence furnishes some reasonable basis for differing conclusions by
reasonable minds about a vital fact’s existence.”).

10
into a settlement on behalf of a client. City of Roanoke v. Town of Westlake, 111

S.W.3d 617, 628 (Tex. App.—Fort Worth 2003, pet. denied). This presumption

of actual authority may be rebutted by affirmative proof that the client did not

authorize his attorney to enter into the settlement. Walden v. Sanger, 250

S.W.2d 312, 316 (Tex. Civ. App.—Austin 1952, no writ); see Johnson v. Rancho

Guadalupe, Inc., 789 S.W.2d 596, 598 (Tex. App.—Texarkana 1990, writ

denied); Fail v. Lee, 535 S.W.2d 203, 207–08 (Tex. Civ. App.—Fort Worth 1976,

no writ).

Apparent authority is based on estoppel. Gaines, 235 S.W.3d at 182. In

Gaines, the Texas Supreme Court explained that apparent authority

aris[es] ‘either from a principal knowingly permitting an agent to hold
[himself] out as having authority or by a principal’s actions which lack
such ordinary care as to clothe an agent with the indicia of authority,
thus leading a reasonably prudent person to believe that the agent
has the authority [he] purports to exercise.’

Id. (quoting Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 948 (Tex.

1998)). Only the conduct of the principal is relevant. Id. (quoting NationsBank,

N.A. v. Dilling, 922 S.W.2d 950, 953 (Tex. 1996)). We examine the conduct of

the principal and the reasonableness of the third party’s assumptions about

authority. Id. at 182–83.

In this case, Brewster and Lainie both testified that the NCHA held out

Goins as its attorney with authority to settle the dispute between them and that

neither Brewster nor Lainie knew of any limitations to Goins’s authority to settle.

The executive director of the NCHA, Charles Jeffrey Hooper, testified that Goins

represented the NCHA throughout its dispute with the Whitmires and that Goins

appeared at hearings as the NCHA’s attorney. Although the NCHA also

11
presented evidence that it had only authorized Goins to settle the dispute with

Lainie upon the express terms it had agreed to, that evidence does not defeat the

evidence that the NCHA held Goins out as having unqualified, unlimited authority

to negotiate a settlement with Lainie on its behalf. See Thomas Reg’l Directory

Co., Inc. v. Dragon Products, Ltd., 196 S.W.3d 424, 428 (Tex. App.—Beaumont

2006, pet. denied) (“To require a relying party to prove it ascertained the fact and

scope of authority would require proof of actual authority, not apparent authority.

Apparent authority is based on estoppel, and is intended ‘to prevent injustice and

protect those who have been misled.’”) (quoting Baptist Mem’l Hosp. Sys., 969

S.W.2d at 948 n.2, 949); cf. Douglass v. Panama, Inc., 504 S.W.2d 776, 779

(Tex. 1974) (stating that “apparent authority is not available where the other

contracting party has notice of the limitations of the agent’s power”). No

evidence exists that Lainie and Brewster had notice of any limitations on Goins’s

authority or power to settle the dispute between Lainie and the NCHA.

We hold that more than a scintilla of evidence supports the jury’s finding

that the NCHA and Lainie had an agreement—entered into by Goins acting with

apparent authority of the NCHA—to reinstate her non-professional status at the

end of her six-month membership suspension. See Tex. R. Civ. P. 301; Tiller,

121 S.W.3d at 713; Fort Bend Cnty. Drainage Dist., 818 S.W.2d at 394.

C. Sufficient Evidence to Support Damages Finding

Lainie also argues in her first issue that she presented sufficient evidence

to support the jury’s finding that the NCHA’s breach of the oral settlement

agreement caused her to suffer $70,000 in damages. As evidence of her

damages, Lainie presented evidence that the value of three of her horses—Can

Yall CD Freckles, Dual Hickory Nita, and Hickory Kit Rio—diminished in value

12
because she could not compete and earn prize money on them at NCHA shows.

Lainie’s expert witness, David Johnson, testified that the total value of all three

horses diminished by $130,000 because Lainie could not compete with them at

NCHA events.

1. Evidence of Ownership

The NCHA argued in its motion for JNOV and contends on appeal that

Lainie presented no evidence of any property or monetary interest in those three

horses. Ray testified that the horses belonged to both Lainie and him and were

registered in the name of “Whitmire Ranch,” of which Lainie was a part owner.

Lainie also introduced into evidence the certificates of registration for both Dual

Hickory Nita and Hickory Kit Rio, showing that Whitmire Ranch had purchased

the horses in May and July 2004, respectively. The certificates of registration

show that they were transferred into Ray’s name on January 20, 2005, just after

Lainie accepted a six-month membership suspension as part of her settlement

with the NCHA.8 A letter to Lainie from the NCHA, signed by Hooper as

executive director, noted the NCHA’s understanding that Whitmire Ranch “is

owned in part by Lainie Whitmire.”9 The evidence, viewed in the light most

8
Evidence at trial showed that the NCHA prohibits horses that are
registered in whole or in part in a non-member’s name from competing at NCHA
events and that, consequently, the horses were transferred into Ray’s name so
that they could continue to compete at NCHA events.
9
The letter, dated October 25, 2006, explained that two horses not at issue
in this lawsuit could not compete at an upcoming NCHA event because they
were registered in either Lainie’s name or in the Whitmire Ranch’s name. The
letter stated, “Both the records of this Association and the AQHA show each of
these horses to be owned in part by Lainie Whitmire or by Whitmire Ranch which
we understand is owned in part by Lainie Whitmire.”

13
favorable to the verdict, is sufficient to raise a material fact issue of Lainie’s

ownership of the three horses. See Ingram, 288 S.W.3d at 893; Wal-Mart

Stores, Inc., 102 S.W.3d at 709; Prudential Ins. Co. of Am., 29 S.W.3d at 77;

Playoff Corp., 300 S.W.3d at 454.

2. Admissible Expert Testimony

Before addressing whether Lainie presented some evidence to support the

jury’s $70,000 damages finding, we will first address the NCHA’s contention, as

part of its conditional cross-appeal, that Johnson’s expert opinion testimony as to

the diminished value of the three horses was inadmissible as unreliable expert

testimony. The NCHA argues that Johnson’s opinions were based solely on

values given to him by Ray and that Johnson did not conduct an independent

evaluation to verify the accuracy of those numbers.10

Admissibility of expert testimony is a matter within the trial court’s

discretion. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); E.I. du

Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). A trial

court does not abuse its discretion merely because a reviewing court in the same

circumstances would have ruled differently. Robinson, 923 S.W.2d at 558;

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert.

denied, 476 U.S. 1159 (1986). The trial court abuses its discretion if its decision

is arbitrary or unreasonable without reference to guiding rules and principles.

Downer, 701 S.W.2d at 241–42.

10
The NCHA did not challenge Johnson’s qualifications to determine the
diminished value of horses; it challenged only his ability to testify in this particular
case based on his reliance on Ray’s valuations.

14
 To be admissible, an expert witness’s testimony must be relevant and

reliable. Robinson, 923 S.W.2d at 556. The expert must be qualified, and the

testimony must be relevant and be based on a reliable foundation. Id.; see Tex.

R. Evid. 702. Expert testimony may be unreliable if there is too great an

analytical gap between the data upon which the expert relies and the opinion he

offers. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006);

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). An

expert’s bare opinion will not suffice, and an expert must explain how his

research supports his conclusion. See Volkswagen of Am., Inc. v. Ramirez, 159

S.W.3d 897, 905–06 (Tex. 2004); Kerr–McGee Corp. v. Helton, 133 S.W.3d 245,

257 (Tex. 2004), abrogated on other grounds by Coastal Oil & Gas Corp. v.

Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008). In applying the reliability

standard, the trial court does not decide whether the expert’s conclusions are

correct; rather, the trial court determines whether the analysis used to reach

those conclusions is reliable. Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629

(Tex. 2002).

Here, in a hearing outside the jury’s presence, Johnson testified that he

owns a company that does litigation consulting and horse appraisals and that he

has handled over 500 cases and has appraised over 1,000 horses. He said that

he was asked to opine on how the Whitmires were hurt by the NCHA’s actions

and to determine the diminished value of the horses based on the NCHA’s

actions.11 He testified that in determining the diminished value of the three

11
He explained that appraising a horse’s value is very similar to
determining the diminished value of a horse and that a lot of the analysis is
exactly the same.

15
horses at issue, he reviewed twenty-eight videos of Lainie riding the horses and

took thirty to forty pages of notes from those videos. Johnson said that from the

videos, he determined that Lainie rode the horses well, and he judged the

horses’ “confirmations” (or physical make-up as cutting horses) and

performances, all of which he explained factored into his valuation of the

horses.12 Johnson explained that a horse’s bloodline is also an important

consideration in valuing cutting horses; he reviewed the semi-edited show

performance pedigrees for the Whitmires’ three horses, which detailed their

performance records and their lineages two or three generations back. Johnson

also reviewed recent NCHA Futurity sales prices for other horses, which he

explained gave him an idea of the Whitmires’ horses’ values based on what other

horses in their lineages had sold for.

Johnson also interviewed Ray and Lainie as part of his valuation

determination and learned that they had pre-purchase veterinary exams

performed on the three horses before they bought them and that the horses had

no significant veterinary histories.13 Ray told Johnson what they paid for each

horse in 2004 and what he thought he could get for each horse in 2007, at the

time of the interview. Johnson also considered the fact that Tommy Marvin is a

professional trainer with a substantial background in the cutting horse business

and helped the Whitmires purchase the three horses. Johnson testified at the

12
Johnson did not look at the horses in person; he explained that he
seldom does that when appraising a horse and that the videos are “extremely
accurate and show everything about that horse that you would want to see.”
13
Johnson explained that a pre-purchase veterinary exam determines if the
horse is physically sound, breathes well, has a strong heartbeat, has good eyes,
and has good flexion in all joints.

16
hearing that the prices paid by the Whitmires for the three horses were

appropriate and “legitimate.” Johnson testified that he arrived at the diminution in

value for each horse by relying on what Ray told him he bought the horses for

and what Ray told him he thought he could sell the horses for in 2007, in addition

to Johnson’s background as a horse appraiser in the business for forty-five years

and the documents and videos that he reviewed.

The NCHA focuses on Johnson’s reliance on Ray’s valuations, but

contrary to the NCHA’s contention, Johnson did more than “simply t[ake] [Ray’s]

word” for all of his findings. As he explained at the hearing, he conducted his

own investigation and analysis into the value of the three horses both before and

after Lainie lost her NCHA membership and determined that the prices paid by

the Whitmires and the prices that Ray said he could get for the horses in 2007

were reasonable. Cf. Helton, 133 S.W.3d at 257 (holding expert’s failure to

explain how various factors affected his calculations rendered opinion unreliable).

Johnson’s testimony establishes that, in addition to Ray’s valuations, Johnson

also considered Lainie’s riding abilities on each of the three horses; the horses’

physical compositions, performances, and pedigrees; and auction results and

sales prices for other horses. Johnson explained how these considerations

factored into the horses’ values. We conclude that the trial court could have

reasonably concluded that Johnson’s expert opinions were more than just

conclusory, bare assertions based solely on Ray’s valuations. See, e.g., Ford

Motor Co. v. Ledesma, 242 S.W.3d 32, 40 (Tex. 2007) (holding that expert’s

testimony amounted to more than a recitation of his credentials and subjective

opinion and concluding that appellant’s complaints about expert testimony went

more to its weight, not its admissibility); Page v. State Farm Lloyds, 259 S.W.3d

17
257, 268 (Tex. App.—Waco 2008) (concluding that no significant “analytical gap”

existed between expert’s opinions of property damage and bases for those

opinions when expert based them on his knowledge, training, experience,

inspection of the property, data he and others gathered, and information

produced by software program relied on in industry), aff’d in part, rev’d in part on

other grounds, 315 S.W.3d 525 (Tex. 2010); cf. Hall v. Rutherford, 911 S.W.2d

422, 426 (Tex. App.—San Antonio 1995, writ denied) (holding attorney’s expert

testimony as to the proper standard of care and alleged legal malpractice was no

evidence of legal malpractice when based solely on factual assertions of an

interested party—the appellant—without further exploration of the evidentiary

background of the case). We hold that the trial court did not abuse its discretion

by admitting Johnson’s testimony, and we overrule this portion of the NCHA’s

cross-appeal. See Downer, 701 S.W.2d at 241–42.

3. Sufficient Evidence of Damages

Having held that the trial court did not abuse its discretion by admitting

Johnson’s expert testimony, we must determine whether Lainie provided some

evidence to support the jury’s $70,000 damages finding.

Johnson testified in front of the jury similarly to his testimony at the

Daubert/Robinson hearing. He explained to the jury that, from watching the

twenty-eight videos of Lainie being coached and riding the horses, he determined

that she rides very well and is an excellent student and that the three horses are

sound, built well for use as cutting horses, and well conformed. Johnson testified

that a “big factor” in a cutting horse’s value is a good rider because “the horse

can be worth a million bucks. But if the rider doesn’t ride well, it can soon make

18
that horse worth about zero. And so the better that rider does, the more

applicable the appraisal value is going to be.”

Johnson also testified about the semi-edited performance pedigrees for

Can Yall CD Freckles, Hickory Kit Rio, and Dual Hickory Nita, and the pedigrees

were introduced into evidence. He explained that the pedigrees show the

horses’ lineages two or three generations back and also their performance

records. He testified specifically about several of the well-known horses in the

horses’ pedigrees: Can Yall CD Freckles was sired by a “very famous stallion”

and also has in its lineage four other well-known horses, including “probably one

of the most impressive cutting sires . . . that there’s been”; Hickory Kit Rio’s

lineage includes some of the same top cutting horses as in Can Yall CD

Freckles’s lineage; and Dual Hickory Nita’s “breeding is just first rate.”

Johnson also explained that the sales prices of other horses in the

bloodline are important considerations in determining a horse’s value and said

that he had reviewed performance horse sales guides and auction results, which

he testified give a broad idea of the sales prices that certain sire and dam

pairings would bring. Johnson interviewed Ray, Lainie, and their horse trainer

Tommy Marvin about the horses. Ray told Johnson that all three horses had a

pre-purchase veterinary exam done before the Whitmires purchased them; the

exams showed no problems with the horses.

Johnson testified that the Whitmires paid $55,000 for Can Yall CD

Freckles, $35,000 for Hickory Kit Rio, and $120,000 for Dual Hickory Nita. He

said that, in his opinion, the prices the Whitmires paid for the three horses were

“very reasonable.” He further testified to his opinion of the value of the three

horses at the time that he conducted his valuations in 2007: Can Yall CD

19
Freckles was worth $40,000, for a loss of $15,000; Hickory Kit Rio was worth

$15,000, for a loss of $20,000; and Dual Hickory Nita was worth $25,000, for a

loss of $95,000. In 2010, Johnson updated his valuations and determined that

the three horses’ values had not gone up since his 2007 determinations.

Johnson testified that the biggest factor in the horses’ diminished values

was that Lainie was prohibited from competing with them at NCHA events and,

consequently, did not have the ability to generate NCHA prize money on them.

Johnson explained that Lainie could compete with the horses only at non-NCHA

cutting events, “which are nowhere near the size or beneficence . . . of the

NCHA. That means they don’t pay as well.” He testified that the prize money at

American Quarter Horse Association (AQHA) competitions is much lower than at

NCHA events—$250,000 for an NCHA winner compared to $13,000 for an

AQHA winner. He said that the Whitmires showed at as many non-NCHA events

as they could. Johnson opined that Lainie would have been able to maintain the

values of the three horses had she been allowed to ride them at NCHA events

and that the total loss in value of the three horses attributable to Lainie not being

able to show at NCHA events was $130,000.

On cross-examination, Johnson testified that he based his valuation of the

three horses on what price Ray said he could get for the horses; Johnson said

Ray knew the market for horses in his area better than he did.

Jay Proost, the executive director of the American Society of Equine

Appraisers, testified for the NCHA about his appraisal of the three horses.

Proost testified that in appraising a horse’s value, he looks at its pedigree, its

performance history, and its production record, if any. He estimated a diminution

in value of $25,000 for Dual Hickory Nita, $15,000 for Can Yall CD Freckles, and

20
$0 for Hickory Kit Rio.14 He said that the diminution in value of the three horses

was a result of Lainie’s poor riding of the horses, not her inability to compete at

NCHA events.

Viewing the evidence in the light most favorable to the verdict and crediting

evidence favoring the jury’s damages finding, we hold that more than a scintilla of

evidence supports the jury’s finding that Lainie was damaged in the amount of

$70,000 by the NCHA’s breach. See Ingram, 288 S.W.3d at 893; Wal-Mart

Stores, Inc., 102 S.W.3d at 709. The jury had the discretion to award damages

within the range of evidence presented at trial, and it was entitled to rely on

Johnson’s testimony that the total diminished value of the three horses was

$130,000, as well as Proost’s testimony that the total diminished value was

$40,000, in arriving at its finding of $70,000 in damages. See Khorshid, Inc. v.

Christian, 257 S.W.3d 748, 761 (Tex. App.—Dallas 2008, no pet.) (explaining

that jury has broad discretion to award damages within the range of evidence

presented at trial, so long as a rational basis exists for its calculation); Mayberry

v. Tex. Dep’t of Agric., 948 S.W.2d 312, 317 (Tex. App.—Austin 1997, writ

denied) (same).

14
Specifically, Proost agreed that the sales prices paid by the Whitmires for
Can Yall CD Freckles and Hickory Kit Rio ($55,000 and $35,000, respectively) in
2004 were their fair market values at the time of their purchases. However, he
valued Dual Hickory Nita at $50,000—rather than the $120,000 purchase price
that the Whitmires paid—at the time of its purchase. Proost testified that at the
time of his 2008 deposition, Can Yall CD Freckles was worth $40,000; Dual
Hickory Nita was worth $25,000; and Hickory Kit Rio was worth $35,000. Thus,
Proost testified that the total diminished value of the three horses was $40,000,
and the primary monetary difference between his valuation and Johnson’s
valuation was the $70,000 difference between his original valuation of Dual
Hickory Nita ($50,000) and Johnson’s ($120,000).

21
 D. JNOV on Breach of Contract Claim Erroneously Entered

Having determined that more than a scintilla of evidence exists to support

the jury’s findings on Lainie’s breach of oral agreement claim and resulting

damages, we sustain this part of her first issue and hold that the trial court erred

by disregarding these findings and entering JNOV that Lainie take nothing on her

breach of oral agreement claim.

IV. CROSS-APPEAL: EXCLUDED EVIDENCE OF THE NCHA

Having held that the trial court erred by entering JNOV on Lainie’s breach

of oral agreement claim, we must address the remainder of the NCHA’s

conditional cross-appeal, in which it argues that it was entitled to a new trial

based on the erroneous exclusion of the following evidence: (1) a brief submitted

by Lainie’s attorney, Walker, to the NCHA executive committee in connection

with the August 21, 2006 appeal hearing; (2) the transcript of the August 21,

2006 hearing; (3) the corresponding testimony of Goins about the brief and the

hearing; and (4) the testimony of NCHA executive committee member and past

president Lindy Burch.

A. Standard of Review

Whether to admit or exclude evidence is a matter committed to the trial

court’s sound discretion. See Interstate Northborough P’ship v. State, 66 S.W.3d

213, 220 (Tex. 2001). To obtain reversal of a judgment based upon an error in

the trial court, the appellant must show that the error occurred and that it

probably caused rendition of an improper judgment or probably prevented the

appellant from properly presenting the case to this court. Tex. R. App. P.

44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225 (Tex. 2005).

Typically, a successful challenge to a trial court’s evidentiary rulings requires the

22
complaining party to demonstrate that the judgment turns on the particular

evidence excluded or admitted. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608,

617 (Tex. 2000). And, ordinarily, we will not reverse a judgment because a trial

court erroneously excluded evidence when the evidence in question is

cumulative and not controlling on a material issue dispositive to the case. Id. at

617–18; Reina v. Gen. Accident Fire & Life Assurance Corp., 611 S.W.2d 415,

417 (Tex. 1981).

B. Evidence Relating to August 21, 2006 Hearing

On August 21, 2006, the NCHA held an appeal hearing before the

executive committee regarding the denial of Lainie’s non-professional status and

the non-professional committee’s recommendation that her NCHA membership

be revoked for one year; Lainie appeared at that hearing with her attorney,

Walker. Walker also submitted a “Brief in Support of Appeal of Denial of Non-

Professional Application and Suspension of NCHA Membership” to the executive

committee in connection with the hearing. The brief included a chronology of

events relating to the suspension of Lainie’s non-professional status leading up

to the hearing and an analysis of the NCHA rules on non-professional-status

qualifications. The brief did not mention any oral agreement for automatic

reinstatement of Lainie’s non-professional status, and Walker did not mention

any such oral agreement at the hearing.

At trial, the NCHA attempted to introduce Walker’s full brief as its Exhibit

27A and a redacted portion of that brief as its Exhibit 27.15 The NCHA also

15
Redacted Exhibit 27 was the following paragraph 9 of Walker’s brief:

23
attempted to introduce the full transcript of the August 21, 2006 hearing as its

Exhibit 114 and a portion of the transcript redacted to include only Walker’s

statements about the agreement entered into between Goins and Brewster as

NCHA’s Exhibit 114A. Walker had argued at the hearing that the agreement

reached between Brewster and Goins, including that Lainie’s non-professional

status would be revoked, was “just an agreement reached between counsel,

basically to try to smooth things over and end the fight”; when asked if he was

arguing that the agreement was not binding, Walker said, “I’m not denying that it

was binding, sir.” The NCHA made an offer of proof and called Goins to testify

about Walker’s brief and the hearing.

The NCHA argued at trial and asserts on appeal that these exhibits, as

well as the related testimony of Goins, constituted an admission on Lainie’s part

that automatic reinstatement of her non-professional status was not part of the

settlement agreement and were admissible to show that Walker and Lainie did

not mention an oral agreement for automatic reinstatement of her non-

professional status at the hearing. However, Hooper and Goins both testified at

9. Mr. Goins responded by correspondence dated January
19, 2005 documenting an agreement reached between the parties
regarding Ms. Whitmire’s “Disciplinary Proceedings” whereby: (i) her
NCHA membership was suspended for a period of six months and
would be reinstated at the end of the six month period; (ii) her Non-
Pro status was revoked and she was “deemed non-qualified for non-
professional status under the present NCHA rules; (iii) her amateur
status is revoked. She is advised that “should the NCHA rules
change in the future this proceeding will not prejudice [her] ability to
qualify for various designations as they may in the future exist.” See
Exhibit 9.

24
trial that neither Lainie nor anyone on her behalf ever complained to anyone

associated with the NCHA that Goins’s letter did not contain the full agreement

reached between the parties or otherwise assert that she was entitled to

automatic reinstatement of her non-professional status. Hooper testified that

after Lainie returned to the NCHA in July 2005 following her six-month

membership suspension, neither Lainie nor anyone on her behalf ever requested

that the NCHA honor its agreement to reinstate her non-professional status.

Hooper explained in detail the correspondence between Lainie, or her attorney

on her behalf, and the NCHA beginning with Lainie’s first application for non-

professional status in October 2005 following her six-month membership

suspension and concluding with a July 7, 2006 letter from Hooper to Lainie

informing her of the August 21, 2006 appeal hearing. Hooper repeatedly testified

that at no time during those communications did Lainie or anyone on her behalf

mention an agreement that her non-professional status be automatically

reinstated. Hooper testified, “The first time it came up was when this lawsuit . . .

was filed, and that was in, I believe, October of 2006. So January 2005,

agreement reached, settlement, everything’s done. Went about their business.

October of 2006, [she claimed] . . . in the lawsuit, [‘]Oh, by the way, we’ve got this

secret agreement.[’]” Goins also testified that throughout the correspondence

between January 19, 2005 and the filing of this lawsuit, no one ever mentioned

an agreement that was different than that contained in his January 19, 2005

letter. Lainie’s October 2005 non-professional application and the written

correspondence between her and the NCHA following the denial of her

application were admitted into evidence. And Lainie herself testified that she

never mentioned the oral agreement when she reapplied for non-professional

25
status after her six-month membership suspension was over, explaining that she

did not want to get attorneys involved; the NCHA cross-examined her about her

correspondence to the NCHA that did not mention any oral agreement for

reinstatement of her non-professional status.

Thus, the jury was presented with evidence, including the testimony of

Lainie herself and written correspondence from Lainie to the NCHA, that she and

her attorney did not assert the existence of the oral agreement before filing this

lawsuit. The record demonstrates that the NCHA was allowed to make a fair

presentation of its argument, and the NCHA has not shown that the judgment

turned on the exclusion of this evidence. See Tex. R. App. P. 44.1(a); Romero,

166 S.W.3d at 225; Able, 35 S.W.3d at 617–18; cf. Sims v. Brackett, 885 S.W.2d

450, 455 (Tex. App.—Corpus Christi 1994, writ denied) (noting in harm analysis

of exclusion of evidence that “[i]f a party is denied the right to make a fair

presentation to the jury, the court has not acted reasonably and has abused its

discretion”).16 The excluded testimony and exhibits would not have added

substantial weight to the NCHA’s case, which included three days of witness

16
The NCHA relies on Sims and Bohmfalk v. Linwood, 742 S.W.2d 518
(Tex. App.—Dallas 1987, no writ), for the proposition that the excluded evidence
added substantial weight to its case on a “hotly contested” issue and did not
merely repeat prior witnesses’s testimony. The NCHA argues that the excluded
evidence, “if believed by the jury, would have destroyed [Lainie’s] case on the
oral agreement.” But we cannot see how this evidence would have added
substantial weight to its case when Lainie herself testified that she did not
mention the oral agreement initially and when the NCHA thoroughly developed
this defense through other witnesses and exhibits. Cf. Sims, 885 S.W.2d at 453,
455–56 (holding exclusion of second expert’s testimony was harmful where
second expert did not have a personal relationship with plaintiff like first expert
did and when trial court also denied appellant redirect and recross examination to
rebut appellees’ defenses and present his case).

26
testimony and exhibit presentations, but were instead cumulative of other

evidence in the record. See Able, 35 S.W.3d at 617–18; Reina, 611 S.W.2d at

417. Even assuming that the trial court abused its discretion by excluding the

evidence, any error was harmless. See Tex. R. App. P. 44.1(a). We overrule

this portion of the NCHA’s conditional cross-appeal.

C. Lindy Burch Testimony

At trial, the NCHA attempted to call Lindy Burch, arguing that her testimony

was admissible to rebut the testimony of the NCHA’s vice president Harold

Eugene Turner Jr. about Goins’ character.17 Turner had testified that Goins is

“an excited kind of guy” and that Turner felt Goins should not be involved in

cases like Lainie’s because he competes in the amateur and non-professional

classes of the NCHA and because of his demeanor. Turner said that one of his

goals as an officer in the NCHA was to end its relationship with Goins.

The NCHA made an offer of proof, stating that Burch would have testified

that she has been a director and officer in the NCHA for several years and is a

past president; that she has had extensive dealings with Goins as part of her

involvement in the NCHA; and that Goins has never entered into negotiations or

agreements beyond the scope of his authorization and has never failed to inform

the NCHA of facts material to any matter he was working on for the NCHA. The

Whitmires objected that the testimony constituted hearsay and was irrelevant,

cumulative, misleading, and prejudicial; the trial court sustained their objection.

Assuming without deciding, for purposes of this case, that the trial court

abused its discretion by excluding Burch’s testimony, any error was harmless.

17
Portions of the videotaped deposition of Turner were played for the jury.

27
See Tex. R. App. P. 44.1(a). The jury had already heard Hooper’s testimony that

was cumulative of Burch’s proposed testimony; Hooper testified that he has

known Goins since 2000, when Hooper began working at the NCHA, and that

during the time that Hooper has been an executive director with the NCHA, he

has never known of Goins making an agreement on behalf of the NCHA without

the executive committee’s approval. Hooper also testified that Goins “was a

good communicator.”

Thus, even assuming error, because Burch’s testimony was cumulative of

Hooper’s testimony, we cannot say that the exclusion of her testimony harmed

the NCHA. See Able, 35 S.W.3d at 617–18; Reina, 611 S.W.2d at 417; see also

Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004)

(explaining that the exclusion of merely cumulative evidence cannot constitute

harmful error). We overrule the remainder of the NCHA’s conditional cross-

appeal.

V. TAKE-NOTHING JUDGMENT
PROPERLY RENDERED ON FALSE IMPRISONMENT CLAIM

Lainie argues in the remainder of her first issue that the trial court erred by

granting JNOV on her false imprisonment claim. The trial court’s final judgment

orders that Lainie “take nothing against the NCHA on her claim[] for . . . false

imprisonment.” The jury found that the NCHA had falsely imprisoned Lainie but

also found no damages suffered by Lainie. Thus, the jury’s no-damages finding

fully supports the court’s take-nothing judgment. See Intercontinental Group

P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 655 (Tex. 2009) (explaining

that trial court should have rendered take-nothing judgment against plaintiff on its

contract claim when jury found breach of contract but answered “0” on damages);

28
San Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 66 (Tex. App.—

San Antonio 1993, no writ) (stating that trial court’s take-nothing judgment was

supported by jury’s no-damages finding).

Lainie did not challenge the no-damages finding in a motion for new trial or

on appeal, and we need not otherwise address her challenge to the trial court’s

take-nothing judgment properly entered in accordance with the jury’s no-

damages finding. See San Antonio Press, Inc., 852 S.W.2d at 66; see also, e.g.,

Wisenbarger v. Gonzales Warm Springs Rehab. Hosp., Inc., 789 S.W.2d 688,

694 (Tex. App.—Corpus Christi 1990, writ denied) (noting, in affirming take-

nothing judgment, that “[t]he damage findings are not challenged on appeal, the

findings are final, and we are bound by such findings”). We overrule the

remainder of Lainie’s first issue.

VI. THE NCHA’S ATTORNEY’S FEES

In their third issue, the Whitmires argue that the trial court abused its

discretion by awarding the NCHA $302,000 in attorney’s fees for prevailing, via

summary judgment, on Lainie’s declaratory judgment action and $45,000 in

attorney’s fees for prevailing, via summary judgment, on Ray’s declaratory

judgment action.18

We review an award of attorney’s fees under the Uniform Declaratory

Judgments Act (the Act) for an abuse of discretion. Barshop v. Medina Cnty.

18
Lainie filed suit on October 10, 2006; the trial court granted the NCHA’s
motion for summary judgment on Lainie’s declaratory judgment action on April
21, 2008. Ray asserted a declaratory judgment action on October 17, 2007, and
the trial court granted the NCHA’s motion for summary judgment on Ray’s action
on August 23, 2010.

29
Underground Water Conservation Dist., 925 S.W.2d 618, 637 (Tex. 1996); Orix

Capital Mkts., LLC v. La Villita Motor Inns, J.V., 329 S.W.3d 30, 48 (Tex. App.—

San Antonio 2010, pet. denied).

Attorney’s fees may not be recovered unless provided for by statute or by

contract between the parties. Dallas Cent. Appraisal Dist. v. Seven Inv. Co., 835

S.W.2d 75, 77 (Tex. 1992). “Absent a mandatory statute, a trial court’s

jurisdiction to render a judgment for attorney’s fees must be invoked by

pleadings, and a judgment not supported by pleadings requesting an award of

attorney’s fees is a nullity.” Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd.,

287 S.W.3d 877, 884 (Tex. App.—Dallas 2009, no pet.).

In a suit under the Act—chapter 37 of the civil practice and remedies

code—a trial court may award reasonable and necessary attorney’s fees that are

just and equitable. Tex. Civ. Prac. & Rem. Code Ann. § 37.009. Under the Act,

an award of attorney’s fees is not limited to the prevailing party. See Hartford

Cas. Ins. Co. v. Budget Rent-A-Car Sys., Inc., 796 S.W.2d 763, 771 (Tex. App.—

Dallas 1990, writ denied). Where a claimant or a counter-claimant properly

invokes the declaratory judgments statute, either party may plead for and obtain

attorney’s fees. Id.

In its answer and counterclaim, the NCHA pleaded specifically for

attorney’s fees as part of its counterclaim, “[p]ursuant to Chapter 38 of the Texas

30
Civil Practice and Remedies Code,[19] and Rule 41 of the NCHA Rules.” It did not

seek attorney’s fees under the Act, and it did not make a general request for

attorney’s fees in its prayer. Cf., e.g., Nolte v. Flournoy, 348 S.W.3d 262, 270,

n.3 (Tex. App.—Texarkana 2011, pet. denied) (“A party is also not required to

request attorney’s fees with specificity to be eligible for an award under the

Declaratory Judgments Act, so long as a general request for attorney’s fees

exists.”) (emphasis added); Zurita v. SVH-1 Partners, Ltd., No. 03-10-00650-CV,

2011 WL 6118573, at *8 (Tex. App.—Austin Dec. 8, 2011, pet. denied) (mem.

op.) (upholding attorney’s fees awarded to defendant for defending declaratory

judgment action when defendant’s pleadings requested award of attorney’s fees,

noting “It is undisputed that [plaintiff] sought declaratory relief against [defendant]

under the UDJA. Thus, the trial court was authorized to award attorneys’ fees to

any party with pleadings requesting them.”) (emphasis added).

The NCHA’s specific request for attorney’s fees under chapter 38 and

under the NCHA rules was insufficient to invoke the attorney’s fees provision of

the Act. See Hartford, 796 S.W.2d at 765, 771 (holding defendant who pleaded

only contractual right to attorney’s fees did not invoke attorney’s fees provision of

the Act for defending plaintiff’s declaratory judgment action); Janicek v. 2016

Main Owners Ass’n, Inc., No. 01-96-00599-CV, 1997 WL 414951, at *5 (Tex.

19
See Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (“A person may
recover reasonable attorney’s fees from an individual or corporation, in addition
to the amount of a valid claim and costs, if the claim is for . . . an oral or written
contract.”).

31
App.—Houston [1st Dist.] July 24, 1997, no writ) (not designated for publication)

(holding defendant, who pleaded specific grounds for attorney’s fees, did not

invoke the Act’s attorney’s fees provision by not pleading for fees under the Act);

see also Kreighbaum v. Lester, No. 05-06-01333-CV, 2007 WL 1829729, at *2

(Tex. App.—Dallas June 27, 2007, no pet.) (mem. op.) (citing Edlund v. Bounds,

842 S.W.2d 719, 731 n.5 (Tex. App.—Dallas 1992, writ denied) and explaining

that pleader confined to specific allegations, which control over general ones).

Based on the specific facts of this case, we hold that the trial court abused its

discretion by awarding the NCHA attorney’s fees under chapter 37.20 See Tex.

R. Civ. P. 301 (requiring that judgments conform to pleadings). We sustain this

portion of the Whitmires’ third issue.21

VII. LAINIE’S ATTORNEY’S FEES

In her fourth issue, Lainie argues that the trial court abused its discretion

by not awarding her reasonable and necessary attorney’s fees after she

prevailed on her breach of contract claim. The NCHA argues that Lainie is not

entitled to attorney’s fees because she did not timely plead and prove

20
Despite the pleading deficiency, the issue was not tried by consent; the
Whitmires objected to the award of attorney’s fees to the NCHA on this basis.
21
We need not address the remainder of the Whitmires’ third issue or
Lainie’s second issue, in which they argue additional reasons why the trial court’s
award of attorney’s fees to the NCHA should not stand. See Tex. R. App. P.
47.1.

32
presentment of her oral agreement claim and because her attorney’s fees claim

is unreasonable, excessive, and not segregated as required by law.

To recover reasonable attorney’s fees for a claim based on an oral or

written contract, (1) the claimant must be represented by counsel, (2) the

claimant must present the claim to the opposing party, and (3) payment for the

just amount owed must not have been tendered before the expiration of the

thirtieth day after the claim is presented. Tex. Civ. Prac. & Rem. Code Ann. §§

38.001(8), .002 (West 2008); see Jones v. Kelley, 614 S.W.2d 95, 100 (Tex.

1981). If attorney’s fees are proper under section 38.001(8), and the requisite

elements are proven, the trial court has no discretion to deny them. Smith v.

Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009).

The purpose of the presentment requirement is to allow the person against

whom the claim is asserted an opportunity to pay within thirty days of receiving

notice of the claim, thereby avoiding the obligation to pay attorney’s fees.

Goodin v. Jolliff, 257 S.W.3d 341, 349 (Tex. App.—Fort Worth 2008, no pet.)

(citing Carr v. Austin Forty, 744 S.W.2d 267, 271 (Tex. App.—Austin 1987, writ

denied)). The party seeking attorney’s fees must plead and prove that he or she

presented a contract claim to the opposing party and that the opposing party

failed to tender performance. Id.; see Chandler v. Mastercraft Dental Corp. of

Tex. Inc., 739 S.W.2d 460, 470 (Tex. App.—Fort Worth 1987, writ denied). No

particular form of presentment is required. Goodin, 257 S.W.3d at 349; Jim

Howe Homes, Inc. v. Rogers, 818 S.W.2d 901, 905 n.3 (Tex. App.—Austin 1991,

no writ). Oral presentment of a claim is sufficient to satisfy the requirement.

Jones, 614 S.W.2d at 100. However, neither the filing of a suit, nor the allegation

33
of a demand in the pleadings can, alone, constitute presentment of a claim or a

demand that a claim be paid. Goodin, 257 S.W.3d at 349; Austin Forty, 744

S.W.2d at 271.

Here, Lainie had the burden to plead and prove that she made

presentment of her claim of an oral agreement to the NCHA and that the NCHA

did not comply with the claim within thirty days. See Tex. Civ. Prac. & Rem.

Code Ann. § 38.002; Jim Howe Homes, 818 S.W.2d at 904. Even assuming

Lainie properly pleaded presentment, which the NCHA disputed at trial and

disputes on appeal, the NCHA affirmatively denied presentment. Thus, Lainie

had the burden to produce specific evidence of presentment. See Tex. R. Civ. P.

54 (providing that party pleading all conditions precedent have been performed is

not required to prove conditions precedent unless specifically denied by opposing

party); Llanes v. Davila, 133 S.W.3d 635, 641 (Tex. App.—Corpus Christi 2003,

pet. denied).

As evidence of presentment, Lainie points to allegations in her pleadings

and evidence presented at trial that, at the conclusion of her six-month

membership suspension, she applied for non-professional status “believing that

her non-professional status would be continued as agreed between Mr. Brewster

and Mr. Goins.” But nothing in the record indicates that she referenced the oral

agreement in her applications or made demand that the NCHA comply with its

oral agreement prior to filing suit for breach of oral agreement. See Goodin, 257

S.W.3d at 349. Consequently, we overrule Lainie’s fourth issue.

VIII. CONCLUSION

Having sustained that portion of Lainie’s first issue challenging the trial

court’s JNOV on her breach of oral agreement claim, having held that the trial

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court erred by disregarding the jury’s findings that the NCHA breached an oral

agreement with Lainie and that Lainie sustained damages in the amount of

$70,000.00 as a result, and having overruled the NCHA’s conditional cross-

issues, we reverse the trial court’s judgment in part and render judgment on the

jury’s findings that Lainie recover $70,000 in damages for the NCHA’s breach of

oral agreement. Having overruled the remainder of Lainie’s first issue challenging

the trial court’s take-nothing judgment on her false imprisonment claim and her

fourth issue on her attorney’s fees, and having sustained the Whitmires’ third

issue on the NCHA’s attorney’s fees, we modify the trial court’s judgment to

delete the NCHA’s recovery of attorney’s fees of $302,000 from Lainie and of

$45,000 from Ray and affirm the remainder of the judgment as modified.

SUE WALKER
JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: October 11, 2012

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