ACCEPTED
04-14-00811-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
4/29/2015 10:16:56 AM
KEITH HOTTLE
CLERK
No. 04-14-00811-CV
__________________________________________________________________
______ FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
In the Fourth Court of Appeals04/29/2015 10:16:56 AM
San Antonio, Texas KEITH E. HOTTLE
Clerk
__________________________________________________________________
______
RANDY COLEMAN
Appellant
v.
RALPH DEAN
Appellee
__________________________________________________________________
APPEAL FROM CAUSE NO. 11-04-49987-CV
th
79 DISTRICT COURT, JIM WELLS COUNTY, TEXAS
HON. JUDGE RICHARD C. TERRELL
__________________________________________________________________
BRIEF OF APPELLANT RANDY COLEMAN
__________________________________________________________________
Paul R. Lawrence
State Bar No. 12050000
2180 North Loop West, Suite 510
Houston, Texas 77018
(713) 864-8000
(713) 864-0179 (fax)
prlawrence@lbandd.com
Counsel for Appellant Randy
Coleman and Jim Coleman Company
ORAL ARGUMENT REQUESTED
1
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument.
IDENTITY OF PARTIES AND COUNSEL
Appellants/Defendants: Appellate Counsel:
Randy Coleman Paul Lawrence
State Bar No. 12050000
2180 North Loop West, Suite 510
Houston, Texas 77018
Jim Coleman Company Paul Lawrence
State Bar No. 12050000
2180 North Loop West, Suite 510
Houston, Texas 77018
Appellee/Plaintiff: Trial Counsel:
Ralph Dean Charles C. Webb
State Bar of Texas No. 21039500
Webb Cason PC
710 N. Mesquite
Corpus Christi, Texas 78401
Lead Appellate Counsel:
Frank Weathered
Dunn Weathered Coffey Rivera &
Kasperitis, PC
611 South Upper Broadway
Corpus Christi, Texas 78401
2
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT 2
IDENTITY OF PARTIES AND COUNSEL 2
TABLE OF CONTENTS 3
INDEX OF AUTHORITIES 5
STATEMENT OF THIS RESTRICTED APPEAL CASE 9
ISSUES PRESENTED 10
I. RESTRICTED APPEAL 10
II. INSUFFICIENCY OF EVIDENCE AS TO LIABILITY 10
III. INSUFFICIENCY OF EVIDENCE AS TO ADDITIONAL
DAMAGES 10
IV. ABUSE OF DISCRETION AS TO ATTORNEY’S FEES 10
V. VIOLATION OF ONE SATISFACTION RULE FOR SINGLE
INJURY RULE 10
STATEMENT OF FACTS. 11
SUMMARY OF THE ARGUMENT 13
STANDARDS OF REVIEW 14
ARGUMENT 15
Appellant has complied with all elements set out at Texas Rule of
Appellate Procedure 30 to pursue the present restricted appeal. 15
POINTS OF ERROR
I. The evidence is legally and factually insufficient to establish
Liability. 15
II. The evidence is legally and factually insufficient to support the award
Of Additional Damages. 31
III. The Evidence is Insufficient as to Attorney’s Fees 32
IV. The Judgment is in Error as it awards three times both economic and
Additional Damages (damages are owing by each Defendant, not joint
and several) 35
3
CONCLUSION AND PRAYER 36
CERTIFICATE OF COMPLIANCE 37
CERTIFICATE OF SERVICE 38
APPENDIX 39
4
INDEX OF AUTHORITIES
Aguilar vs. Breckinridge, 2013 Tex. App. Lexis 14732… …………………..….16
Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 462-64 (Tex. App.—Dallas 1990), writ
denied, 800 S.W.2d 853 (Tex. 1991) (per curiam) …………………… …… . 26
Beard v. Beard, 49 S.W.3d 40, 55 (Tex.App.-Waco 2001, pet. denied)………...18
Burroughs v. APS Int'l, Ltd., 93 S.W.3d 155, 163 (Tex. App.-Houston [14th Dist.]
2002, pet. denied)……………………………………………………… ………...24
Budd v. Gay, 846 S.W.2d 521, 524 (Tex.App.-Houston [14th Dist.] 1993, no
writ……………………………………………………………………………….32
Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex.App.-Dallas 2001, pet.
denied)……………………………………………………………………….. ….17
Central Texas Micrographics v. Leal, 908 S.W.2d 292, 296 (Tex. App.—
San Antonio 1995, no writ)………………………………………………………30
Chilton Ins. v. Pate & Pate Enter., Inc., 930 S.W.2d 877, 890 (Tex.App.-San
Antonio 1996, writ denied)………………………………………………………25
City of Keller vs. Wilson, 768 SW3d 802 (Tex. 2005)………………………..…………….16
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)…37
Flores v. Brimex Limited Partnership, 5 S.W.3d 816 (Tex. App. - San Antonio
1999, no pet.)………………………………………….…. …………………… 18
Formosa Plastics Corp. USA v. Presidio Engrs. & Contractors, Inc.,
960 S.W.2d 41,48 (Tex.1998)………….……………………………………. 28
Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.-Houston [14th Dist.])
(2000)……………………………………………………………………………28
Frymier Engineering Co. v. Grantham, 524 S.W.2d 680, 681 (Tex. 1975).…….19
5
Harris v. Balderas, 27 S.W.3d 71, 77 (Tex. App.—San Antonio 2000, pet.
denied)……………………………………………………………………….…..30
Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex. App.—
Amarillo 1993, writ denied)……………………………….…………………… 26
Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001)………. ……. 26
Holt Atherton v. Heine, 835 SW2d 80 (Tex 1992)……………….……………...15
Humble Nat’l Bank v. DCV, Inc., 933 S.W.2d 224, 229 (Tex. App.—Houston
[14th Dist.] 1996, writ denied)……………..………………………………. 26
Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 118 (Tex. 1984)……32
Mansell v. Insurance Co. Of The West, 203 SW3d 499, 500 (Tex. App. –
Houston [14th Dist.] 2002, no pet.), citing Tex. R. App. P. 30……………… . 14
Mercier v. Southwest Bell Yellow Pages, Inc., 214 S.W.3d 770 (Tex.App.-
Corpus Christi Jan 25, 2007) (NO. 13-05-700-CV)…………………………. 33
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711(Tex. 1997)…. 18
Norman Communications v. Texas Eastman, 955 SW2d 269, 270(Tex. 1997)14
Prime Prod., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied)……………….….. …………………. 36
Seideneck v. Cal Bayreuther Assocs., 45 1 S.W.2d at 755…….. …………….23
Smith v. Kinslow, 598 S.W.2d 910, 912 (Tex. Civ. App.—Dallas 1980, no
writ)…………………………………………………………………………... 31
Spillman v. Self Serve Fixture Co., Inc., 693 SW2d 656 (Tex Court of
Appeal – 5th District 1985)……………………………………………………35
Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986)……….... 25
Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex. 1979)…………………….. 18
6
T.O. Stanley Boot Co., 847 S.W.2d at 222………………. …………………..24
Townewest Homeowners Ass'n v. Warner Comm'n Inc., 826 S.W.2d 638, 640
(Tex.App.-Houston [14th Dist.]) (1992)…………………………………… 28
TRAP 26.1(c) and 30…………………………………………………………15
Tex. Bus. & Comm. Code Ann. 17.45 (Vernon 2002)…………………………19
Tex. Bus. & Comm. Code Ann. 17.46(a) (Vernon 2002)…….………………..23
Tex.Bus.& Comm. Code Ann. 17.46 (b)(2)(3)(5)(12) and (24)……………….19
Tex.Bus.& Comm. Code Ann. 17.46 (b)(7)…………………..…………….….22
Tex. R. Evid. 702, 703 § 2.4……..………………………………………….... .33
38 Tex. Law Review §361 (1960)......................................................................16
Appendix……………………………………………………………………….39
A – Final Judgment
B – Third Amended Original Petition
C – Charge
D – Exhibit 6
E – Trial Exhibit 9A-9G
F – Trial Exhibit 2A-2C
G – Trial Exhibit 3
H – Trial Exhibit 12
7
No. 04-14-00811-CV
__________________________________________________________________
______
In the Fourth Court of Appeals
San Antonio, Texas
__________________________________________________________________
______
RANDY COLEMAN
Appellant
v.
RALPH DEAN
Appellee
__________________________________________________________________
APPEAL FROM CAUSE NO. 11-04-49987-CV
th
79 DISTRICT COURT, JIM WELLS COUNTY, TEXAS
HON. JUDGE RICHARD C. TERRELL
TO THE HONORABLE FIRST COURT OF APPEALS:
Comes now Randy Coleman, Appellant, Defendant in the trial court, and
files this Appellant Brief, and would respectfully show the Court the following:
8
STATEMENT OF THE CASE
Nature of the Case: This is a suit for damages arising from a purchase
of a concrete modular home. This is a restricted
appeal after post-answer default judgment. The
issues presented are qualification for Restricted
Appeal, errors on face of record with respect to
legal and factual sufficiency of evidence as to 1)
liability, 2) damages, 3) attorney’s fees and 4)
violation of the one satisfaction rule for single
injury.
Course of Proceedings: Ralph Dean sued Living Modular, LLC, Randy
Coleman and Jim Coleman Company for failure to
deliver a modular home, alleging violation of the
Deceptive Trade Practices Act and Breach of
Contract. Randy Coleman, Living Modular, LLC
and Jim Coleman Company appeared by filing
Answers in this case. Randy Coleman did not
appear at the Jury Trial, case was withdrawn from
Jury and a post-answer default judgment in favor
of Plaintiff was entered. Judgment was signed on
June 30, 2014. Randy Coleman perfected his
appeal to this Court on November 20, 2104, within
six months of date of Judgment.
Trial Court’s Disposition: The trial court after hearing testimony presented to
Jury, granted a final default judgment against
Randy Coleman. Ralph Dean was awarded
damages in the amount of $47,659.38 under
Deceptive Trade Practices Act, additional damages
under the DTPA of $142,978.14, and prejudgment
interest on the principal award at 5%, plus
attorney’s fees in the amount of $51,960.00; (For
Trial, $26,960.00) ( For Court of Appeals,
$15,000) and (For Representation through
Supreme Court $10,000) and pre- and post-
judgment interest, and costs.
Randy Coleman will cite the Clerk’s Record as “CR_____,” and the Reporter’s Record as “RR____.”
9
ISSUES PRESENTED
Randy Coleman made an appearance by Answer, but did not appear or participate
in the Trial. The issue is: Does the Court Record support a restricted appeal?
POINTS OF ERROR
I. The testimony of only a single factual witness as to liability and damages
was conclusory and contained little evidence relating to the allegations. The issue:
Is the testimony sufficient for the Court to make a finding of liability under the
DTPA, enter Judgment and to conclude a liability of $47,659.38?
II. The Court found that Randy Coleman acted knowingly and awarded
additional damages of $142,978.14. The issue: Is the testimony and evidence
sufficient for the Court to find Randy Coleman acted knowingly?
III. The testimony of the attorney fee experts was conclusory, failed to address
and segregate the fees as to each Defendant or as to the issue of acting knowingly
as required. The issue: Was the award of attorney’s fees an abuse of discretion?
IV. The Judgment entered damages in the same amount against each of the three
Defendants, resulting in a recovery that was three times the already trebled
additional damages. The issue: Does a trebled recovery against each named
Defendant violate the one satisfaction rule for a single injury?
10
STATEMENT OF FACTS
Appellee Ralph Dean, agreed to purchase a concrete modular home from
Living Modular, LLC. Such Agreement was entered on or about October 22, 2009
and is in the (RR Vol. III, Page 45, Lines 17-20) Trial Exhibit 6, Appendix D. At
the time of sale, Mr. Dean paid $30,000 to Living Modular, LLC toward the
purchase price. The home, was to be delivered on or before Thanksgiving 2009.
Thereafter, Mr. Dean paid additional amounts to Appellant Randy Coleman toward
the purchase. Randy Coleman was the person who sold the modular home. The
home was never delivered.
Ralph Dean initiated this lawsuit by filing his Original Petition against
Living Modular, LLC, Randy Coleman and Jim Coleman Company, under several
causes of action, including fraud and misrepresentation. Thereafter, Mr. Dean
amended to the Third Amended Original Petition, which was the live pleading at
the time of trial. Such pleading alleged only Breach of Contract and a cause of
action under the Deceptive Trade Practices Act.
Randy Coleman filed written Answer for himself. Trial commenced before
a Jury on June 2, 2014. Randy Coleman did not appear personally or through
Counsel.
On June 3, 2014, upon Motion for Post-Judgment Default by Mr. Dean, the
Court found in favor of Plaintiff Ralph Dean as to the DTPA and the Breach of
11
Contract claims. (RR Vol. 4, Page 12). The Court granted that Motion at RR Vol.
4, Page 22, Lines 12-17. Thereafter, on June 30, 2014, the Court signed the
Judgment. Randy Coleman received no Notice and had no knowledge that
Judgment had been signed, either by actual knowledge or by constructive
knowledge. (CR, Volume 1, 374-377) Appellant Randy Coleman filed Notice of
Appeal (CR Vol. 1, Page 455). Further, both Defendant Jim Coleman Company
and Plaintiff Ralph Dean appeared on August 28, 2014 and argued for entry of
Judgment in their respective favors.
On November 20, 2014, Randy Coleman filed the Notice of Appeal.
Because more than 30 days had elapsed by the time any notice was received,
Randy Coleman – who had not participated in the trial court proceedings, either in
person or through counsel, and who had not filed any postjudgment motions – filed
his notice of a restricted appeal. (CR 455)
12
SUMMARY OF THE ARGUMENT
1. Randy Coleman never participated in the trial, either in person or through
counsel. Randy Coleman is eligible for restricted appeal, timely filed, more
than 30 days after the Judgment was signed, but within six months.
2. The evidence consists of only conclusory testimony of the single fact witness,
Plaintiff Ralph Dean, and it is legally and factually insufficient to support
Liability or damages, necessitating reversal.
3. The conclusory testimony of the single witness is legally and factually insufficient
to support Additional Damages.
4. The evidence on attorney’s fees was not sufficient for the Trial Court’s
award and was not supported by evidence and was an abuse of discretion.
5. The Judgment is not valid on its face as it renders each of the three Defendants
liable for the total economic plus Additional Damages as it violates the One
Satisfaction Rule for a single injury.
13
STANDARDS OF REVIEW
When a party mounts a direct attack on a default judgment through restricted
appeal, such attack 1) must be brought within six months after the trial court signs
the judgment; 2) by a party to the underlying suit; 3) who did not participate in the
hearing that resulted in the judgment made the subject of the complaint; 4) who did
not file a post-judgment motion, request findings of fact and conclusions of law, or
other notice of appeal; and 5) the error that forms the basis of the complaint must
be apparent on the face of the record. See Mansell v. Insurance Co. Of The West,
203 SW3d 499, 500 (Tex. App. – Houston [14th Dist.] 2002, no pet.), citing Tex. R.
App. P. 30.
Review by restricted appeal affords Ralph Dean a review of the entire case,
just as in an ordinary appeal, with the restriction being that any error must appear
on the face of the record. The face of the record for purposes of a restricted appeal
consists of all the papers on file in the appeal, including the statement of facts.
(Reporter’s Record) Mansell, 203 SW3d at 500, citing Norman Communications
v. Texas Eastman, 955 SW2d 269, 270 (Tex. 1997). A review of the entire case
includes a review of legal and factual sufficiency claims. Norman, 955 Sw2d at
270.
14
ARGUMENT
Appellant Is Eligible To File A Restricted Appeal
As required under TRAP 26.1(c) and 30, Randy Coleman is able to pursue
this restricted appeal because the record shows on its face that Randy Coleman
filed his Notice of Appeal on November 20, 214, within six months after the
Honorable Richard Terrell signed the Final Judgment from which Randy Coleman
appeals. (CR at 374-377). Likewise, the record before this court makes clear that
Appellant Randy Coleman was named as a party to the underlying suit, did not
participate in the jury trial or the Motion for Post Answer Default filed during
Trial, nor did Randy Coleman file any post-judgment motion, request findings of
fact and conclusions of law, or otherwise appear.
The errors which form the bases of the complaints must appear on the face
of the record.
I. The Evidence Is Legally and Factually Insufficient to Establish
Liability
When a party files an answer but does not appear at trial, it “constitutes
neither an abandonment of the defendant’s answer nor an implied confession of
any issues thus joined by the defendant’s answer.” Holt Atherton v. Heine, 835
SW2d 80 (Texas 1992). Judgment is not rendered on the pleadings as in a no-
answer default judgment, and the plaintiff is still required to prove his claim to the
same extent as if the other party appeared at trial. However, in a non-jury, without
15
Findings of Fact and Conclusions of Law, it will be implied that the Court made all
findings necessary to support Judgment. Holt Atherton v. Heine
In Aguilar vs. Breckinridge, 2013 Tex. App. Lexis 14732, Court of Appeals,
First District (Petition Denied Tex. 2014), in following Holt Atherton, the Court
specifically examined the facts presented at the trial for evidence sufficiency, both
legally and factually. The Court determined it must view the evidence to
determine if there is a 1) complete absence of evidence of a vital fact, 2) if
evidence is competent and there is no legal bar from giving weight to the evidence
offered to prove a vital fact or, 3) if the evidence offered to prove a vital fact is no
more than a scintilla, or 4) the evidence conclusively establishes the opposite of the
vital fact. Aguilar followed existing law and the reasoning in City of Keller vs.
Wilson, 768 SW3d 802 (Tex. 2005). In Wilson, the Court referred to the inclusive
and exclusive standards for review by legal sufficiency or factual sufficiency,
respectively. Wilson held in the final analysis that the test must be always be
whether the evidence would allow reasonable and fair-minded people to reach the
verdict under review. That is the test in this case. Every Judge knows that what is
reasonable is not always easy. Justice Calvert wrote in his article over 50 years
ago, “No Evidence” and “Insufficient Evidence”, Point of Error. “38 Tex. Law
Review 361 (1960) as follows:
“The rule as generally stated is that if reasonable minds cannot differ from the
conclusion that the evidence lacks probative force it will be held to be the legal
16
equivalent of no evidence. The application of the rule can lead to strange results. It
is theoretically possible, and sometimes not far from actual fact, that five members
of the Supreme Court will conclude that the evidence supporting a finding of a
vital fact has no probative force, and in reaching the conclusion through
application of the rule will thus hold, in effect, that the trial judge who overruled a
motion for instructed verdict, the twelve jurors who found the existence of the vital
fact, the three justices of the Court of Civil Appeals who overruled a "no evidence"
point of error and four dissenting justices of the Supreme Court are not men of
"reasonable minds."”
Justice Calvert stated the problems better than anyone. Randy Coleman
would show there is no evidence as to the finding of liability or damages.
Reasonable minds can not differ; at best, there is only a mere scintilla, and a
scintilla is no evidence. Casino Magic Corp. v. King, 43 S.W.3d 14, 19
(Tex.App.-Dallas 2001, pet. denied).
Insufficient Evidence
The theories of recovery sought by Ralph Dean in his Third Amended
Original Petition are (A) violations of the Texas Deceptive Trade Practices and
Consumer Protection Act and (B) Breach of Contract (CR at 293-299).
The Court, (RR Volume IV, Page 22) granted Plaintiff’s Motion for Post-
Answer Default. The Court (RR, Volume IV, Page 24, lines 20-25) found that
Appellant Randy Coleman’s conduct was committed knowingly and subject to
additional damages under the DTPA.
17
In a no or insufficient evidence claim, it has been claimed that Havner and
Beard stand for the proposition that the Appellate Court will consider only the
evidence and inferences which tend to support the contested issue and disregard all
evidence and inferences to the contrary. See Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706, 711 (Tex.1997); Beard v. Beard, 49 S.W.3d 40, 55 (Tex.App.-
Waco 2001, pet. denied). However, in City of Keller v. Wilson above, the
Supreme Court found that the objective indicia of intent was not supported by
sufficient evidence. The Exclusive Rule would have required the Court to
disregard certain contrary evidence, three engineers’ reports, and further, to infer
that the City knew and expected the harm from the flooding. The vital fact that
had to be proved in this case for a DTPA claim was that Appellant Randy Coleman
made a false promise of delivery with an intent not to deliver. Randy Coleman
would show that (a) there is a complete absence of evidence of that vital fact, or;
(b) the evidence offered to prove this vital fact is no more than a mere scintilla.
At a trial on the merits after a non-appearing defendant has filed an answer,
the plaintiff must carry its burden to prove all the elements of its causes of action,
and the defendant has admitted nothing by its default. Stoner v. Thompson, 578
S.W.2d 679, 684 (Tex. 1979); Flores v. Brimex Limited Partnership, 5 S.W.3d 8
16 (Tex. App. - San Antonio 1999, no pet.). The allegations by Ralph Dean
against Randy Coleman, in a post-answer default judgment hearing are not
18
confessed by implication. Frymier Engineering Co. v. Grantham, 524 S.W.2d at
681.
Plaintiff Ralph Dean alleged in his Third Amended Original Petition (CR,
Pages 293-299) specifically that Randy Coleman, as a Defendant, violated the
Deceptive Trade Practices Act by misrepresentation. (CR 296, Paragraph 6.1 and
6.2, Appendix Tab B). Ralph Dean specifically alleged Tx. Bus. & Com. Code
Ann. §17.46(b)(2)(3)(5)(12) and (24), these certain laundry list violations as
follows:
- Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do not
have;
- Representing that an agreement confers or involves rights, remedies, or
obligations which it does not have or involve;
- Failing to disclose information concerning goods or services which was
known at the time of the transaction if such failure to disclose such
information was intended to induce the consumer into a transaction into
which the consumer would not have entered had the information been
disclosed.Tex.Bus.&Com.Code Ann §17.46(b)(5)(12),(24)
In 6.2, Plaintiff alleged again only certain lists violations; slightly modified
from 6.1. Specifically, he alleged only these violations as follows:
- Causing confusion or misunderstanding as to the source, sponsorship,
approval or certification of goods or services;
- Causing confusion or misunderstanding as to affiliation, connection, or
association with, or certification by another;
19
- Representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do not
have or that a person has a sponsorship, approval, status, affiliation, or
connection which he does not;
- Failing to disclose information concerning goods or services which was
known at the time of the transaction if such failure to disclose such
information was intended to induce the consumer into a transaction into
which the consumer would not have entered had the information been
disclosed;Id. §17.46(b)(2),(3),(5),(24).
Ralph Dean did not assert by pleadings, evidence or argument any other
violations as set forth in the DTPA.
The evidence of liability rests on testimony of Plaintiff-Appellee Ralph
Dean and the Exhibits offered through Mr. Dean’s testimony. There was no other
testimony on the transaction. No Defendant took the stand, no deposition
testimony was offered. That testimony appears in the Reporter’s Record, Volume
III, beginning on Page 14 with direct testimony and continues to Page 61, at which
page cross examination began. Mr. Dean’s testimony concludes on RR, Page 91 of
Volume III.
The testimony fails to produce any evidence or information to support
any finding of liability against Randy Coleman. No facts were elicited by
the testimony to correlate the allegations of the pleading detailing those
certain laundry list items and the facts testified to by Ralph Dean.
Specifically, Mr. Dean did not testify, or offer any evidence that the modular
20
house or its delivery had any sponsorship, approval, characteristics,
ingredients, uses, benefits or guarantees which it did not have. Mr. Dean
testified it was implied that Defendant Jim Coleman Company sponsored or
approved it. There was never any proof or offer of testimony that any, or
that such was not true.
There was no testimony or evidence, or any inference reasonably
relying therefrom, of any rights, remedies or obligations that the modular
home, its purchase or delivery, did not have.
There was no testimony, other evidence, or any interference that could
arise that would permit a reasonable mind to conclude that any information
was known at the time of the transaction, which was not disclosed.
There was no evidence, testimony and no facts provided that could
give rise to a reasonable inference as to sponsorship, approval, certification,
affiliation, connection or involvement with another and that there was no
such sponsorship, approval, certification, affiliation, connection or
involvement.
Mr. Dean believes that Randy Coleman was a member of the Coleman
family, he worked, or had worked, for Jim Coleman Company and that he
and Living Modular were connected to Jim Coleman Company. This is the
21
classic “so what” defense. There is no evidence, no inference that there was
no such connection or that such had any connection to the non-delivery of
the home.
The testimony does not indicate, specify, or even hint at either, what
conduct or act constituted DTPA violations occurred or, that Randy
Coleman had entered into a Contract with Plaintiff. There was no showing
by legally or factually sufficient evidence that Randy Coleman made any
misrepresentation or even broadly, that Randy Coleman, knowingly or
intentionally engaged in any false, deceptive or unfair act or practice that
was set forth in Plaintiff’s Third Amended Original Petition. Specifically,
Ralph Dean alleged that a modular home would be poured and delivered to
him. He alleged in his pleading that this was false but his testimony was
simply that he did not receive the home. There was not a scintilla of
evidence that Randy Coleman did not intend for Defendant Living Modular,
LLC to honor that agreement to deliver that home. In fact, the Record is
clear, homes were fabricated; Ralph Dean saw several. He saw them on the
Living Modular, LLC’s premises and another in South Texas at a Uvalco
Store in Uvalde, Texas. (There is no record that this store was also sued.)
There were several meetings and yet, no facts give rise to, nor was evidence
presented that permit an inference that Randy Coleman did not intend that
22
the home would be delivered by Defendant Living Modular, LLC. The
testimony of the sole witness, Mr. Dean, is so weak as to be legally
insufficient to establish a DTPA cause of action, and constitutes no
evidence. See Seideneck v. Cal Bayreuther Assocs., 45 1 S.W.2d at 755.
Ralph Dean simply testified to a breach of contract by Defendant Living
Modular, LLC; that is, he did not get that modular home. Ralph Dean’s
testimony is that he intended to buy a modular home from Defendant Living
Modular, LLC and he offered Exhibit 6 (RR, Page 45, Lines 17-20,
Appendix Tab D), an Order Form to purchase the modular home from
Defendant Living Modular, LLC.
(A.) DTPA Violations
The trial court’s finding of $47,659.38 in economic damages is neither
pleaded for nor supported by any evidence of violations of the DTPA. Under the
DTPA, any false, misleading, or deceptive act in the conduct of any trade or
commerce is unlawful. See Tex. Bus. & Com. Code Ann. 17.46(a) (Vernon 2002).
To recover under the DTPA, a plaintiff must establish that: (1) he was a consumer
of the defendant's goods or services; (2) the defendant committed false, misleading,
or deceptive acts as set forth in the Act, in connection with the lease or sale of
goods or services; and (3) such acts were a producing cause of economic damages
23
to the plaintiff. Id. 17.50(a)(1); Burroughs v. APS Int'l, Ltd., 93 S.W.3d 155, 163
(Tex. App.-Houston [14th Dist.] 2002, pet. denied).
The record in this case plainly shows that there is no competent evidence
supporting any of the violations of the Texas Deceptive Trade Practices -
Consumer Protection Act of which Randy Coleman was accused in Plaintiff’s
Third Amended Original Petition. The Trial Court erred in entering a default
judgment based upon such allegations There is clear evidence that Ralph Dean
agreed to buy a modular home from Living Modular, LLC. Here, the evidence
leads to the conclusion that Randy Coleman entered into the agreement for and on
behalf of Living Modular, LLC. The evidence that Appellant Randy Coleman
entered the agreement for Living Modular, LLC and that Living Modular, LLC had
no intent of performing and that Randy Coleman knew of it, is “so weak that it
creates only a mere surmise or suspicion of its existence.” See T.O. Stanley Boot
Co., 847 S.W.2d at 222. “When evidence is so weak it constitutes no evidence.”
The evidence to support these conclusions is based on the same foundation as
Wilson. It fails to show first, that Living Modular, LLC had a present intent to not
deliver and second that Randy Coleman had that intent when he promised delivery
by Living Modular, LLC.
24
The amount of the Judgment exceeds the amount that was pleaded for in the
Live Pleading. Appendix Tab B. Such is in error and requires reversal.
Further, the evidence in this case is full and complete that Living Modular,
LLC did manufacture modular homes. As stated, Plaintiff testified that he saw two
models on the Living Modular real estate (RR Volume II, Page 30) and that two
were being used as offices (RR, Volume III, Page 31). Further, Ralph Dean
testified he saw pictures of the components, and he saw pictures that had his
“special door” which he had paid for separately to a provider in Mexico. Mr. Dean
offered into evidence the Living Modular Brochure, Exhibit 2A-C, Appendix Tab
F, showing the homes were manufactured in Mexico (RR, Volume III, page 80,
Lines 2-16). Because the evidence is so weak that it creates only a suspicion of
Randy Coleman's lack of intent to perform, it must be concluded the evidence is
legally insufficient to support Ralph Dean’s claims under §17.45(b)(2)(3)(5)(12) or
(24).
(B.) Misrepresentation
The determination of whether a breach of contract rises to the level of a
misrepresentation sufficient to trigger the DTPA is a fact-driven inquiry. Chilton
Ins. v. Pate & Pate Enter., Inc., 930 S.W.2d 877, 890 (Tex.App.-San Antonio
25
1996, writ denied). Whether the facts, once ascertained, constitute a DTPA
misrepresentation is a question of law. Id.
If there was ever any evidence of Coleman’s representation that Defendant
Living Modular, LLC would deliver “high level of service” such would be
considered as market puffing and non-actionable under 17.46 (b)(7). Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001); Humble Nat’l Bank v.
DCV, Inc., 933 S.W.2d 224, 229 (Tex. App.—Houston [14th Dist.] 1996, writ
denied); Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex.
App.—Amarillo 1993, writ denied). Three factors are considered in determining
whether a representation is “mere puffing”: (1) the specificity of the representation;
(2) the comparative knowledge of the buyer and seller; and (3) whether the
representation relates to a future event or condition. Autohaus, Inc. v. Aguilar, 794
S.W.2d 459, 462-64 (Tex. App.—Dallas 1990), writ denied, 800 S.W.2d 853 (Tex.
1991) (per curiam). There was no evidence of any specific representation such as
“we have service people on duty 24 hours a day” or “we offer 30 days delivery” or
any other example of specific services. However, there was a specific
representation that the home would be delivered by Thanksgiving of 2009. It was
not delivered. Plaintiff Ralph Dean testified he was then told delivery would be
made by Christmas of 2009. No delivery was made. That was a significant act
and a breach of the contract by Defendant Living Modular, LLC, and it was a
26
specific representation. However, Plaintiff Ralph Dean testified that he saw model
homes in Houston on Living Modular, LLC’s premises (RR, Vol. 11, Page 65,
Lines 5-25, Page 66, Page 67, Page 68) on Antoine Street in Houston. He also
testified he saw a model at a Uvalco Store as described, and he said he saw pictures
of certain specific hardware that he had purchased which was installed on a
modular home. This is Plaintiff Ralph Dean’s own evidence, an admission, that
cannot be ignored and which demonstrates that there was no present intent to not
honor the Contract and to not deliver the home.
As to comparative knowledge, or taking advantage of Plaintiff Ralph Dean,
there was no evidence that Randy Coleman had advance or special knowledge of
any process or condition that could or would interfere in performance and how
such would be overcome.
As to a representation of a future event or condition, an agreement to deliver
in the future is always predicated on some future favorable events. For example,
the modular homes were manufactured in Mexico. There was no evidence that
Appellant Randy Coleman had control or promised control of the manufacturer in
Mexico and delivery to Texas. See Trial Exhibit 6, Appendix D)
In conclusion, Ralph Dean presented no evidence that Randy Coleman
misrepresented by intending at the time of the representation that Living Modular
would not perform services or deliver the home. Mr. Dean presented no evidence
27
to establish any such claim. See Formosa Plastics Corp. USA v. Presidio Engrs.
& Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998) (stating that the promise of
future performance constitutes actionable misrepresentation if the promise was
made with no intention of performing at the time the promise was made, and
evidence presented must be relevant to the defendant's intent at the time the
defendant made the promise). Emphasis supplied. Ralph Dean presented no
evidence that he relied on a misrepresentation was of a present intent to not
deliver. The evidence is factually and legally insufficient to support the trial
court's judgment in favor of Ralph Dean on a DTPA case as alleged.
(C.) Breach-of-Contract Claim
Ralph Dean did not offer legally sufficient evidence at the Trial in order to
warrant judgment against Randy Coleman on the theory of breach of contract. A
judgment entered on such theory should be reversed.
The elements of a breach-of-contract action are (1) the existence of a valid
contract, (2) performance or tendered performance by the plaintiff, (3) breach of
the contract by the defendant, and (4) damages sustained by the plaintiff as a result
of the breach. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.-Houston
[14th Dist.]) (2000). A breach occurs when a party fails or refuses to do
something he has promised to do. See Townewest Homeowners Ass'n v. Warner
Comm'n Inc., 826 S.W.2d 638, 640 (Tex.App.-Houston [14th Dist.]) (1992).
28
Appellee Ralph Dean 's proffer of evidence of his breach-of-contract claim
is insufficient because Appellee failed to (1) offer any competent evidence to
establish that the individual Randy Coleman agreed to deliver any goods or to
perform any service for Plaintiff, (2) establish any contractual duties of Randy
Coleman regarding service, delivery and installation, (3) establish any contractual
duty for Randy Coleman to manufacture, deliver or install the modular home. It
was strictly the obligation of Living Modular as established by Plaintiff Ralph
Dean’s Trial Exhibit 6, Appendix Tab D (RR Page 45, Line 17-20), the Order
Form which was the Contract to buy.
There was no evidence of a valid contract in existence between Randy
Coleman and Ralph Dean; there was evidence of a written agreement by Living
Modular to deliver a concrete modular home. There was no evidence of any
contractual duty that Randy Coleman had to perform. The Plaintiff’s evidence in a
post-answer default judgment proceeding must be sufficient to support both a
liability finding and the damages award. Stoner v. Thompson, 578 S.W.2d at 682.
Mr. Dean admitted and agreed that he entered into a written agreement to buy a
modular home from Living Modular, not from Randy Coleman. See Plaintiff’s
Trial Exhibit 6, Appendix Tab D, the Order Form which is the Written Agreement,
not signed by Randy Coleman, showing delivery by Living Modular.
29
A valid and enforceable contract is formed by an offer, an acceptance, a
meeting of the minds, and an expression of the terms with sufficient certainty so
that there is no doubt regarding the parties' intentions. Harris v. Balderas, 27
S.W.3d 71, 77 (Tex. App.—San Antonio 2000, pet. denied). Randy Coleman is not
a party to the Contract; he had no obligations or duties. There is no theory of
recovery against Randy Coleman based upon breach of contract in the record in
this case. A contract, whether written or oral, must define its essential terms with
sufficient precision to enable the court to determine the obligations of the parties.
Central Texas Micrographics v. Leal, 908 S.W.2d 292, 296 (Tex. App.—San
Antonio 1995, no writ). In determining the existence of an oral contract, the court
looks to the communications between the parties and to the acts and circumstances
surrounding those communications. Prime Prod., Inc. v. S.S.I. Plastics, Inc., 97
S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). There is no
testimony or any evidence of acts and circumstances in the sale of the modular
home of an obligation or duty by Randy Coleman, but the clear undeniable
evidence is that it was to be manufactured and to be delivered by Living Modular.
There would have to be some evidence that would permit an inference that Randy
Coleman entered into the Contract, guaranteed the Contract, or agreed to perform
the written contract or some term thereof.
30
Despite Ralph Dean’s “testimony” that Randy Coleman promised delivery
and installation by Living Modular, there is legally and factually insufficient
evidence to support that there was any contract, agreement, oral or written, or any
provision enforceable against Randy Coleman. There is a failure of any evidence
defining the essential terms of an agreement with sufficient precision to enable the
court to determine an obligation owing by Randy Coleman to Ralph Dean. Ralph
Dean never presented any evidence of an offer, acceptance, and meeting of the
minds regarding an alleged contract or promise to perform by Randy Coleman.
II. The Evidence is Legally and Factually Insufficient Evidence to Support
Award of Additional Damages
The The Trial Court rendered judgment in Ralph Dean’s favor and
awarded damages of $47,659.38. Such amount is in excess of the specific amount
pleaded in Plaintiff’s Third Amended Original Petition (CR, Page 293 -299) It
specifically asked for economic damages of $39,204. With respect to damages in
breach-of-contract cases, the general rule is that the complaining party is entitled to
recover the amount necessary to put it in as good a position as if the contract had
been performed. Smith v. Kinslow, 598 S.W.2d 910, 912 (Tex. Civ. App.—Dallas
1980, no writ). Ralph Dean should get his money back but only the money that he
paid to Living Modular for the home that Living Modular failed to deliver and for
31
the amount he asked for in his pleading. Randy Coleman has no enforceable
liability for that failure or for the Breach of Contract by Living Modular.
Mr. Dean failed to offer sufficient evidence to establish the Trial
Court’s award of Additional Damages.
Knowingly, means actual awareness of the falsity, deception, or unfairness
of the conduct in question. In Luna v. North Star Dodge Sales, Inc., 667 S.W.2d
115, 118 (Tex. 1984), the Court held: “Actual Awareness” does not mean merely
that a person knows what he is doing; rather, it means that a person knows that
what he is doing is false, deceptive, or unfair. In other words, a person must think
to himself at some point, "Yes, I know this is false, deceptive, or unfair to him, but
I'm going to do it anyway."
The Luna Court held that if a person commits a wrongful act with actual
awareness of the falsity, deception or unfairness of the act, such is a more culpable
mental state than one who is grossly negligent.
III. The Evidence Is Insufficient As to Attorney’s Fees
The Trial Court has the discretion to fix attorney's fees and the proper
standard for review of attorney’s fees is abuse of discretion. Budd v. Gay, 846
S.W.2d 521, 524 (Tex.App.-Houston [14th Dist.] 1993, no writ.
In this case, the evidence in favor of the award are the conclusory statements
of the Trial Attorney and an Expert Witness.
32
A trial court abuses its discretion when it acts arbitrarily and unreasonably
and without reference to guiding rules and principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).
An attorney’s opinion must be based on sufficient underlying facts. Tex. R.
Evid. 702, 703 § 2.4. In Mercier v. Southwest Bell Yellow Pages, Inc., 214 S.W.3d
770 (Tex.App.-Corpus Christi Jan 25, 2007) (NO. 13-05-700-CV) the Court sets
forth factors to be considered.
The attorney’s fees evidence consisted of the testimony of trial counsel and
an attorney as an expert witness. Trail Counsel testified that he and Plaintiff Ralph
Dean agreed on an hourly fee of $250 per hour. He went on to testify that he had
92 hours, including an estimate of completing the case. Those fees total $23,000.
The expert witness, an attorney, Mr. Dreiling, testified to a range that would be
reasonable which was between $25,000 and $50,000 (RR, Volume III, Page 111,
Line 9-15). The Court awarded attorney’s fees against Randy Coleman found by
the Jury against Co-Defendant Jim Coleman Company after argument and
deliberation; this amount exceeded the evidence. It is improper and should be
reversed. There was no evidence proffered.
Further, there was no attempt to allocate fees among the three Defendants.
There was no attempt to separate the time expended as to each of these Defendants,
33
to segregate fees between liability, proof of knowing acts, establishing default,
conducting discovery or any legal task.
There are three different Defendants. The DTPA allows for attorney’s fees
on each Defendant for which DTPA liability was established. Further, there is no
testimony or evidence as to the time expended on each Defendant or any
Defendant. As to the three Defendants, no evidence allocated the time expended as
to each Defendant. Appellant Randy Coleman was the salesman acting for and on
behalf of Defendant Living Modular. Randy Coleman wholly defaulted after filing
Answer. Defendant Living Modular, LLC did tender its President Wayne Coleman
for deposition. (See Demand Letter to Wayne Coleman, President of Living
Modular, LLC which was admitted into evidence and shows he testified by
deposition, Exhibit 12, Tab H. He testified at the office of Trial Counsel. His
testimony was recorded and transcribed. There is no evidence of any attorney
participating in Discovery, Motion to Compel, obtaining evidence, from, about or
otherwise, involving Appellant Randy Coleman.
The third Defendant, Jim Coleman Company, also an Appellant in this Court
in this case, appeared at Trial through its President and also through Trial Counsel.
Such Defendant participated in jury selection, cross-examined the witnesses,
argued Motions and was before the Jury for two days. However, Plaintiff rested
34
and asked for default Judgment, prior to submission to the Jury. Appellant Randy
Coleman was taken out of the case by the time of submission to Jury.
The attorney’s fees in prosecuting Randy Coleman’s default, was distinctive
and should have been properly allocated by testimony. They were not.
IV. The Judgment is in Error as it awards three times both Economic and
Additional Damages (damages are owing by each Defendant, not joint and
several)
The Final Judgment signed June 30, 2014 and filed on July 1, 2014 awarded
identical sums of money against three Defendants, including defaulting Appellant
Randy Coleman.
Ralph Dean sustained a single injury in this breached contract. He ordered a
modular home and paid money toward that purchase price. He testified to certain
sums that he expended in the purchase but the testimony and evidence was unclear
as to what amounts was toward the contract. The Plaintiff itemized amounts were
set out in Exhibits 9A-9G. The Jury found those amounts as damages event though
Plaintiff had only asked (Third Amended Petition) for $39,204.
The Judgment awarded as against each Defendant which would lead to a
multiple recovery. This would violate the One Satisfaction Rule for a Single
Injury and is in error. Spillman v. Self Serve Fixture Co., Inc., 693 SW2d 656 (Tex
Court of Appeal – 5th District 1985).
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CONCLUSION AND PRAYER
Randy Coleman asks this Court to reverse the trial court’s judgment, and to
render that Plaintiff Ralph Dean take nothing. Randy Coleman further requests all
other relief to which he is entitled at law or in equity.
RESPECTFULLY SUBMITTED:
/s/ Paul R. Lawrence
Paul R. Lawrence
State Bar No. 12050000
5225 Katy Freeway, Suite 350
Houston, Texas 77007
Telephone: (713) 864-8000
Fax: (713) 864-0179
Counsel for Appellant
36
CERTIFICATE OF COMPLIANCE
I, Paul R. Lawrence certify that this document contains 7373 words (counted
by computer).
_/S Paul R. Lawrence
Paul R. Lawrence
37
CERTIFICATE OF SERVICE
I, Paul R. Lawrence, in compliance with Texas Rule of Appellate Procedure
9.5, hereby certify that a true and correct copy of the foregoing Appellant’s Brief
was sent to all other parties to the trial court’s judgment by U.S. Certified Mail or
by e-service on this the 29th day of April, 2015, as listed below:
Charles C. Webb
Webb Cason PC
710 N. Mesquite
Corpus Christi, Texas 78401
Charlie@wcctxlaw.com
Frank Weathered
Dunn Weathered Coffey Rivera & Kasperitis, PC
611 South Upper Broadway
Corpus Christi, Texas 78401
fweathered@swbell.net
Parker Webb
Webb Cason PC
710 N. Mesquite
Corpus Christi, Texas 78401
parker@wcctxlaw.com
J. Michael Guerra
Law Office of J. Michael Guerra
1600 E. Main, Suite 227
P.O. Box 1968
Alice, Texas 78333
Jmguerra14@gmail.com
Living Modular
16221 Koester
Houston, Texas 77040
__/s/ Paul R. Lawrence
Paul R. Lawrence
38
APPENDIX
A – Final Judgment
B – Third Amended Original Petition
C – Charge
D – Exhibit 6
E – Trial Exhibit 9A-9G
F – Trial Exhibit 2A-2C
G – Trial Exhibit 3
H – Trial Exhibit 12
39
Randy Coleman and Jim Coleman Company v. Ralph Dean
Combined Opinion