                                 MEMORANDUM OPINION
                                        No. 04-10-00551-CV

                     HIDDEN FOREST HOMEOWNERS ASSOCIATION,
                                     Appellant

                                                 v.

                                          James K. HERN,
                                             Appellee

                     From the 224th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CI-09929
                             Honorable Martha Tanner, Judge Presiding

                  OPINION ON APPELLANT’S MOTION FOR REHEARING

Opinion by:      Phylis J. Speedlin, Justice

Sitting:         Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: December 7, 2011

AFFIRMED IN PART; REVERSED AND RENDERED IN PART

           The motion for rehearing filed by appellant Hidden Forest Homeowners Association is

granted. This court’s opinion and judgment dated June 8, 2011 are withdrawn, and this opinion

and judgment are substituted.

           Hidden Forest Homeowners Association (“Hidden Forest”) challenges the trial court’s

judgment, complaining of the award of damages to James K. Hern on his counterclaim for
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Hidden Forest’s breach of its own restrictive covenants, as well as of the amount of attorney’s

fees awarded. We reverse the judgment of the trial court relating to Hern’s counterclaim for

breach of restrictive covenants and render judgment that Hern take nothing on his counterclaims.

We affirm the award of attorney’s fees to Hidden Forest.

                                        BACKGROUND

       Hern owns a home located in the Hidden Forest subdivision.           The subdivision is

governed by the Hidden Forest Homeowners Association, which was formed pursuant to the

Amended Declaration of Covenants, Conditions and Restrictions of Hidden Forest

(“Declaration”); the Declaration obligates homeowners to pay semiannual assessments. In late

2006, Hern, expecting to be in the United Kingdom for most of 2007, attempted to prepay his

2007 and 2008 assessments, which amounted to approximately $115 every six months. Hidden

Forest declined to accept payment for amounts not yet due and owing at that time. Hern left the

country, and several written notices of delinquency were subsequently mailed to him. Hern

returned to San Antonio for about six days in December of 2007, and admittedly failed to pay his

2007 assessments at that time.

       Hidden Forest referred the matter to attorney Tom L. Newton, Jr. for collection. In

January 2008, Newton sent a demand letter to Hern’s home while he was out of the country. In

April 2008, Hidden Forest placed a lien on Hern’s home pursuant to a Notice of Assessment of

Lien, asserting $907.65 as the lien amount ($407.65 in assessments and late fees and $500 in

attorney’s fees and expenses). Two months later, Hidden Forest filed suit against Hern, seeking

foreclosure on its lien as well as monetary damages, including unpaid assessments, interest, and

attorney’s fees. The petition did not assert the amount of the assessments past-due or the

attorney’s fees sought, but the accompanying discovery asked Hern to admit that unpaid



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assessments totaled $425.94 and that $1,500 was a reasonable and necessary amount of

attorney’s fees.

          After being served with the lawsuit, Hern attempted to pay Hidden Forest $500 in

attorney’s fees, in addition to court costs and assessments. Hidden Forest refused his offer, and

directed Hern to communicate with their attorney, Newton.                      Believing $1,500 to be an

unreasonable amount of attorney’s fees, 1 Hern then offered $900 to settle the claim; Hidden

Forest again declined Hern’s offer. Failing to resolve the entire claim, Hern also attempted to

pay just the assessments that were undisputedly past-due, but Hidden Forest would not accept his

money, and instead continued to charge Hern monthly late fees. 2 Hidden Forest also suspended

Hern’s right to vote and to use the common areas and facilities, such as the pool and tennis

courts.

          Frustrated by the situation, Hern hired an attorney and filed an answer and counterclaim.

Hern admitted that he failed to pay his 2007 assessments, but denied that the attorney’s fees and

costs asserted by Hidden Forest were reasonable.                 Hern sought damages for unreasonable

collection practices; Hern also alleged that Hidden Forest had violated its own Declaration by

both suing for foreclosure of Hern’s property and seeking a personal judgment against Hern. In

August 2009, Hern placed $1,750 into the registry of the court, seeking a declaration “as to how

much of said amount, if any, is reasonably owed to [Hidden Forest] by [Hern] after all lawful

offsets” and as a gesture to show that he was not refusing to pay the 2007 assessments and

reasonable attorney’s fees. Hidden Forest rejected the tender of this money.



1
 Hern asked Hidden Forest to see an itemization of attorney’s fees sought by Newton, but neither Hidden Forest nor
Newton provided such documentation until Hern secured it via discovery. Hern retained counsel in August 2009.
2
 Hern additionally attempted to pay his 2008 assessments (which were not delinquent) after the lawsuit was filed,
but Hidden Forest also rejected these payments since the matter of the 2007 assessments had been referred to legal
counsel.

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          At trial, Becky Bowholtz, the former office manager of Hidden Forest, and Alan Cooper,

the President of Hidden Forest, testified, as did Hern. Additionally, counsel for both parties

testified regarding attorney’s fees. Billing records introduced by Newton showed $228 worth of

time for his actual attorney’s fees as of late April 2008 when the lawsuit was filed. Nevertheless,

Hidden Forest sought $25,000 in attorney’s fees through trial, which was held two years later.

The case was submitted to the jury, who found that Hern breached the Declaration’s covenants

and restrictions by failing to pay assessments. The jury found that $946.71 would compensate

Hidden Forest for its damages resulting from Hern’s failure to pay assessments that had accrued

up to the time of trial and that $728.00 was a reasonable amount of attorney’s fees for Hidden

Forest. As to Hern’s counterclaims, the jury found that Hidden Forest engaged in unreasonable

collection practices and breached their own covenants; the jury awarded $11,000 for both such

claims.     Hern elected to recover based on Hidden Forest’s breach of its own restrictive

covenants. After offset, trial court rendered a final judgment in Hern’s favor in the amount of

$9,325.29, plus court costs, post-judgment interest, and conditional attorney’s fees in the event of

an appeal. The judgment also denied an order of foreclosure and ordered Hidden Forest to

release the lien filed against Hern’s property within seven days of judgment becoming final.

Hidden Forest timely appealed.

                                           DISCUSSION

          On appeal, Hidden Forest challenges the trial court’s judgment on four grounds,

contending the trial court erred in rendering judgment on Hern’s counterclaims of unreasonable

debt collection practices and breach of restrictive covenants. Hidden Forest also complains of

the admission of settlement offers made by Hern, and of the jury’s finding on the amount of

attorney’s fees owed to Hidden Forest.



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Hern’s Counterclaim: Hidden Forest’s Breach of Restrictive Covenants

        We first address Hidden Forest’s argument that the trial court erred in rendering

judgment in favor of Hern on a claim for breach of Hidden Forest’s own restrictive covenants 3

because (1) this cause of action was neither pleaded nor tried by consent, and (2) there was no

evidence that Hidden Forest breached the restrictive covenants. Hern’s live pleading at trial was

“Defendant’s Second Amended Answer and Counterclaim.”                        Hidden Forest complains that

although Hern stated in paragraph 9 that, “Plaintiff has violated its own restrictions in suing for

foreclosure of Hern’s home and seeking a personal judgment against Defendant Hern,” this

statement was not alleged as a separate cause of action and was made “in the context of a host of

facts alleged by Hern to be part of the common law tort of unreasonable collection practices.”

Hidden Forest, however, did not specially except to Hern’s pleadings. See TEX. R. CIV. P. 90. In

the absence of special exceptions, a petition should be construed liberally in favor of the pleader.

Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000). We therefore hold

that in the absence of special exceptions, Hern pleaded information specific enough to provide

Hidden Forest with notice of the causes of action for which Hern sought relief. See id. at 896-97

(holding Texas follows “fair notice” standard for pleading, which looks to whether the opposing

party can ascertain from pleading nature and basic issues in controversy and what testimony will

be relevant); see also Roark v. Allen, 633 S.W.2d 804, 809-10 (Tex. 1982).

        Alternatively, Hidden Forest contends that even if Hern had properly pleaded a cause of

action for breach of restrictive covenants against Hidden Forest, there is no evidence to establish

that Hidden Forest breached its own covenants. Section 8 of Article IV of the Declaration, titled

“Effect of Nonpayment of Assessments: Remedies of the Association,” provides:

3
 Hern alleged that Hidden Forest breached its own restrictive covenants by seeking both foreclosure of Hern’s home
and monetary damages. Section 8 of Article IV of the Declaration provides that “[t]he Association may bring an
action at law against the Owner personally obligated to pay the same, or foreclose the lien against the property.”

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       Any assessment not paid within thirty (30) days after the due date shall bear
       interest from the due date at the rate of eight percent (8%) per annum. The
       Association may bring an action at law against the Owner personally
       obligated to pay the same, or foreclose the lien against the property. No
       owner may waive or otherwise escape liability for the assessments provided for
       herein by non-use of the Common Area or abandonment of his Lot.

(emphasis added). At trial, Hern argued that this language allows Hidden Forest to seek either a

money judgment or a lien against a delinquent owner, but not both; thus, Hern argued that

Hidden Forest violated its own covenant when it filed suit against him seeking both a lien and a

money judgment.      The jury was asked whether “Hidden Forest Homeowners Association

materially breached the Restrictions as to Mr. Hern in connection with Section 8 (page 6-7) of

the Restrictions (Exhibit 1)?” Hidden Forest objected to the submission of this question; the jury

answered “yes.”

       Addressing the primary issue in dispute—whether Hidden Forest breached the

Declaration’s restrictive covenant when it filed suit against Hern seeking both a foreclosure lien

and individual liability—requires us to interpret the language of the restrictive covenant as a

matter of law. See Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 814 (Tex.

1994). Interpretation of a writing is a legal matter that we review de novo. Ski Masters of Tex.,

LLC v. Heinemeyer, 269 S.W.3d 662, 667 (Tex. App.—San Antonio 2008, no pet.); Sw.

Intelecom, Inc. v. Hotel Networks Corp., 997 S.W.2d 322, 324 (Tex. App.—Austin 1999, pet.

denied). Our primary goal is to give effect to the written expression of the parties’ intent. See

Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 741 (Tex. 1998); Owens v. Ousey, 241 S.W.3d

124, 129 (Tex. App.—Austin 2007, pet. denied). Covenants are to be liberally construed, giving

effect to the intent and purposes of the restrictions. TEX. PROP. CODE ANN. § 202.003 (West);

Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543, 547 (Tex. App.—Houston [1st Dist.] 1994, writ

denied).

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       Hidden Forest denies that the Declaration prohibits it from seeking both foreclosure on its

lien and a personal judgment against a delinquent owner. We agree. Although the clause at

issue contains the word “or,” which is usually used in the disjunctive sense, see Spradlin v. Jim

Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000), it does not mandate that Hidden Forest

elect one remedy to the exclusion of the other. See Underwriters at Lloyds of London v. Harris,

319 S.W.3d 863, 866 (Tex. App.—Eastland 2010, no pet.) (the word “or” does not automatically

create a choice between two mutually exclusive options). Because the clause provides that

Hidden Forest “may” bring an action at law or foreclose the lien, the language of the covenant

does not expressly preclude seeking both causes of action at the same time. In fact, the plural

title of section 8, “Remedies of the Association,” implies that Hidden Forest is not limited to a

single remedy. Reading the entirety of the Declaration illustrates that its drafters intended to

give Hidden Forest the power to enforce the covenants and restrictions “by any proceeding at

law or in equity.” Further, the “one recovery” rule would prohibit Hidden Forest from receiving

a double recovery in the event it brings both causes of action. Accordingly, we conclude as a

matter of law that the Declaration does not expressly prohibit Hidden Forest from seeking both a

foreclosure of its lien and a money judgment against a delinquent owner. We therefore sustain

this issue on appeal.

       Because we are reversing Hern’s recovery for breach of the restrictive covenants, we

must examine Hidden Forest’s appellate issue related to Hern’s counterclaim for unreasonable

collection practices. See Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244 (Tex.

App.—Houston [14th Dist.] 1999, pet. denied). When a judgment is reversed on appeal on one

theory of recovery, a party may seek recovery under an alternative theory that the jury found in

its favor at the trial court level. Dynegy, Inc. v. Yates, 345 S.W.3d 516, 534 (Tex. App.—San



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Antonio 2011, no pet.) (citing Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 274 (Tex.

1995)). The appellate court should consider the alternative theory and, if possible, render

judgment thereon instead of remanding to the trial court for rendition of judgment under an

alternative theory. Haney, 987 S.W.2d at 244.

Hern’s Second Counterclaim: Unreasonable Debt Collection

        The jury was asked whether Hidden Forest—through its agents and/or attorneys—

engaged in unreasonable collection practices against Hern. No accompanying definitions were

submitted.     The jury answered “yes,” and further found that $11,000 would reasonably

compensate Hern for his damages proximately caused by such unreasonable collection

practices. 4 On appeal, Hidden Forest alleges that there is no evidence to support one or more

elements of Hern’s counterclaim for unreasonable debt collection practices.

        An appellant challenging the legal sufficiency of the evidence to support a finding on an

issue for which it did not have the burden of proof must show that there is no evidence to support

the finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). When reviewing a legal

sufficiency challenge, we determine “whether the evidence at trial would enable reasonable and

fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005). We view the evidence in the light favorable to the verdict, crediting favorable

evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors

could not. Id.

        Unfair collection practices is an intentional tort derived from the common law. EMC

Mortg. Corp. v. Jones, 252 S.W.3d 857, 868 (Tex. App.—Dallas 2008, no pet.); see Duty v. Gen.

4
  Hern presented no evidence of physical or mental damages incurred as a result of Hidden Forest’s collection
efforts; instead, the jury was instructed that it may consider “Hern’s attorneys fees reasonably and necessarily
incurred in responding to such practices as damages if such fees were incurred as a proximate cause of such
unreasonable collection practices.” Hern was not awarded exemplary damages on this claim because the jury found
that Hern’s damages did not result from malice by Hidden Forest.

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Fin. Co., 154 Tex. 16, 273 S.W.2d 64, 66 (1954). The Supreme Court of Texas has not directly

addressed the elements to be proven in an action for unfair collection practices. See, e.g., Duty,

273 S.W.2d at 66 (“A decision of the case before us does not require that we undertake to outline

the limits to which such a creditor may go, but we do hold that resort to every cruel device which

his cunning can invent in order to enforce collection when that course of conduct has the

intended effect of causing great mental anguish to the debtor, resulting in physical injury and

causing his loss of employment, renders the creditor liable to respond in damages.”); Moore v.

Savage, 362 S.W.2d 298, 298–99 (Tex. 1962) (per curiam) (refusing to review the definition of

“unreasonable collection efforts” because the issue was not preserved for appeal), ref’g appeal

from 359 S.W.2d 95, 96 (Tex. Civ. App.—Waco 1962, writ ref’d n.r.e.). While the elements are

not clearly defined and the conduct deemed to constitute an unreasonable collection effort varies

from case to case, a plaintiff must generally prove that “[a] defendant[’s] debt collection efforts

‘amount to a course of harassment that was willful, wanton, malicious, and intended to inflict

mental anguish and bodily harm.’” EMC Mortg. Corp., 252 S.W.3d at 868-69.

       Texas courts have found the following evidence sufficient to state a cause of action for

unreasonable debt collection: sending a large man to the plaintiff’s home, who “yelling and

screaming, demanded the keys to the house, and told the [Plaintiff’s] family to get out.” EMC

Mortg. Corp., 252 S.W.3d at 864, 870; falsely accusing the plaintiff of committing a crime to

collect a debt, Lloyd v. Myers, 586 S.W.2d 222, 227 (Tex. Civ. App.—Waco 1979, writ ref’d

n.r.e.); sending a large man to the plaintiff’s home, who stood over the plaintiff shouting, shaking

his finger and calling him a liar, Credit Plan Corp. of Houston v. Gentry, 516 S.W.2d 471, 475

(Tex. Civ. App.—Houston [14th Dist.] 1974) rev’d on other grounds in Gentry v. Credit Plan

Corp. of Houston, 528 S.W.2d 571 (Tex. 1975); sending a representative to the plaintiff’s home,



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confronting and embarrassing the plaintiff’s fiancée in front of social guests, Bank of N. Am. v.

Bell, 493 S.W.2d 633, 635 (Tex. Civ. App.—Houston [14th Dist.] 1973, no writ); calling the

plaintiff five times in one night, with the final call including a threat of personal violence,

Pioneer Finance & Thrift Corp. v. Adams, 426 S.W.2d 317, 319 (Tex. Civ. App.—Eastland

1968, writ ref’d n.r.e.). Texas courts have also held that it is unreasonable to persist in collection

efforts once the debtor has informed the collector/lender that the debt has been paid in full. See

Pullins v. Credit Exch. of Dallas, Inc., 538 S.W.2d 681, 683 (Tex. Civ. App.—Waco 1976, writ

ref’d n.r.e.) (holding that repeated and harassing efforts to collect $50 debt were unreasonable

where plaintiff consistently asserted debt was paid). The Fifth Circuit has observed that the tort

of unreasonable collection is intended to deter “outrageous collection techniques.” McDonald v.

Bennett, 674 F.2d 1080, 1089 n.8 (5th Cir. 1982).

       Hern alleges that the following actions by Hidden Forest amounted to unreasonable

collection efforts: Hidden Forest failed to accept payment of assessments in advance; after Hern

returned from overseas to San Antonio and was served with a lawsuit, Hidden Forest refused to

accept payment of the assessments and attorney’s fees from Hern that exceeded what he owed

Hidden Forest; Hidden Forest refused to accept undisputedly owed assessments from Hern to

limit the dispute to attorney’s fees, after which it continued to sue Hern for such fees and charge

late fees; Hidden Forest failed to monitor or check its attorney’s fees in violation of its bylaws to

monitor its agents, when Hern, shortly after being sued, repeatedly asked for proof of the high

amount of attorney’s fees; Hidden Forest would not accept payments of assessments as they

became due every six months after the lawsuit was filed.

       Considering the totality of these circumstances, we cannot conclude there is any evidence

to support the jury’s finding that Hidden Forest engaged in unreasonable collection practices



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against Hern. Although we do not condone Hidden Forest’s refusal to accept Hern’s prepayment

and subsequent settlement offers, we cannot say that its collection efforts were harassing or

outrageous. Hidden Forest did not repeatedly call Hern or send letters to his home or business.

While Hern attempted to tender payments for amounts that he claims were more than due and

owing, the proposed payments were still less than that demanded by Hidden Forest. Compare

Steele v. Green Tree Servicing, LLC, No. 3:09-CV-0603-D, 2010 WL 3565415, at *6 (N.D. Tex.

Sept. 7, 2010) (“While the precise sum the [plaintiffs] owed is in dispute, a reasonable trier of

fact could only find that [plaintiffs] were in default.”) with Pullins, 538 S.W.2d at 682-83 (debt

appeared to be paid in full prior to collector’s harassing efforts). And although it is arguable that

Hidden Forest was unreasonable in claiming such a high amount of attorney’s fees, there is no

evidence that Hidden Forest sought excessive attorney’s fees for the purpose of inflicting mental

anguish and bodily harm on Hern. See EMC Mortg. Corp., 252 S.W.3d at 868 (unreasonable

collection is an intentional tort). On this record, we conclude there is no evidence that Hidden

Forest engaged in the common law tort of unreasonable debt collection. See City of Keller, 168

S.W.3d at 827; see also Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

Accordingly, Hidden Forest’s first issue is sustained. Given our resolution of the first two issues,

we need not address Hidden Forest’s third issue regarding settlement offers.

Reasonable Attorney’s Fees

       Finally, Hidden Forest maintains that the trial court erred by not setting aside the jury’s

finding on the amount of reasonable fees for necessary services of Hidden Forest’s attorneys,

because it was against the great weight and preponderance of the evidence. A party challenging

the factual sufficiency of a jury finding upon which that party had the burden of proof must

demonstrate that “the adverse finding is against the great weight and preponderance of the



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evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). We must first examine

the entire record to determine if there is some evidence to support the finding. Id. at 241-42. If

there is, we must then determine whether “the finding is so contrary to the overwhelming weight

and preponderance of the evidence as to be clearly wrong and manifestly unjust, or if the great

preponderance of the evidence clearly supports its non-existence.” W. Wendell Hall, Hall’s

Standards of Review in Texas, 42 ST. MARY’S L. J. 1, 42 (2010) (quoting Castillo v. U.S. Fire

Ins. Co., 953 S.W.2d 470, 473 (Tex. App.—El Paso 1997, no writ)). Regardless of whether the

“great weight” challenge is to a finding or a nonfinding, “[a] court of appeals may reverse and

remand a case for new trial [only] if it concludes that the jury’s ‘failure to find’ is against the

great weight and preponderance of the evidence.” Ames v. Ames, 776 S.W.2d 154, 158 (Tex.

1989).

         The reasonableness of attorney’s fees is ordinarily left to the trier of fact, and a reviewing

court may not substitute its judgment for the jury’s. Smith v. Patrick W.Y. Tam Trust, 296

S.W.3d 545, 547 (Tex. 2009); Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881

(Tex. 1990) (per curiam). Factors to be considered in determining the amount of attorney’s fees

to be awarded include the following: (1) the time and labor required, novelty and difficulty of the

questions presented, and the skill required; (2) the likelihood that acceptance of employment

precluded other employment; (3) the fee customarily charged for similar services; (4) the amount

involved and the results obtained; (5) the time limitations imposed by the client or the

circumstances; (6) the nature and length of the professional relationship with the client; (7) the

expertise, reputation, and ability of the lawyer performing the services; and (8) whether the fee is

fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.




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1997). “A reasonable fee is one that is not excessive or extreme, but rather moderate or fair.”

Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).

       At trial, counsel for both parties testified concerning attorney’s fees.           Newton, a

shareholder with Allen, Stein & Durbin, and lead counsel for Hidden Forest, testified that his

fees through trial were $25,000 based upon his training, education, and experience, and

considering the time and labor involved, novelty of question involved, the skill required to

perform the services, and the fact that the fee arrangement with the client was a contingency fee.

Itemized billing records for all of the attorneys and legal staff working on the case were admitted

into evidence. Newton testified that he personally spent 75 hours on the case, his associate spent

over twelve hours on the case, and his legal assistant spent almost 26 hours. Newton stated that

shareholder attorneys in his firm charge $250.00 per hour, associate attorneys bill at a rate of

$200.00 per hour, and legal assistants charge $125.00 per hour.

       Counsel for Hern, Peter L. Kilpatrick, testified that the attorney’s fees sought by Hidden

Forest were unreasonable and should amount to $0. The jury awarded Hidden Forest $728.00 in

attorney’s fees for preparation and trial, $6,250.00 in attorney’s fees for appeal to the court of

appeals, and $2,500 for appeal to the Supreme Court of Texas.

       We recognize there was no evidence controverting Newton’s hourly rate; however, the

trier of fact is not required to award attorney’s fees equal to those testified to at trial, even when

that testimony is uncontradicted. See Hicks Oil & Butane Co. v. Garza, No. 04-05-00836-CV,

2006 WL 2263896, at *4 (Tex. App.—San Antonio Aug. 9, 2006, no pet.) (mem. op.) (affirming

award of attorney’s fees that was substantially lower than amount unequivocally testified to at

trial); Inwood N. Homeowners’ Ass’n, Inc. v. Wilkes, 813 S.W.2d 156, 157-58 (Tex. App.—

Houston [14th Dist.] 1991, no writ) (affirming award of $500 in attorney’s fees to plaintiff who



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presented undisputed evidence of approximately $1,500 in attorney’s fees where small amount in

controversy was an “attendant circumstance tending to cast suspicion on the uncontradicted

evidence regarding the attorney’s fee”). Here, the jury was aware of the simplistic nature of

Hidden Forest’s case, which merely sought to recover assessments that Hern admitted he had not

paid. The amount Hidden Forest sought in attorney’s fees was more than 26 times the amount it

recovered due to Hern’s failure to pay assessments. The jury could have rationally determined

that 3.78 hours was a reasonable amount of time to expend in legal services for this case

(dividing $728 awarded in attorney’s fees by Newton’s hourly rate of $250). See Travis Law

Firm v. Woodson Wholesale, Inc., No. 14-07-00204-CV, 2008 WL 4647380, at *4-5 (Tex.

App.—Houston [14th Dist.] Oct. 21, 2008, no pet.) (mem. op.) (holding testimony of $50,887.89

in attorney’s fees was contradicted by attendant circumstances, i.e., fee sought by firm was more

than 84 times the principal amount firm recovered, and affirming award of $1,500 in attorney’s

fees). Accordingly, we hold that the jury’s award of $728 in attorney’s fees for preparation and

trial is not so against the overwhelming weight of the evidence as to be clearly wrong and unjust.

We overrule Hidden Forest’s fourth issue.

                                           CONCLUSION

          Based on the foregoing reasons, we reverse the judgment of the trial court insofar as it

relates to Hern’s counterclaim for breach of the restrictive covenants, and render judgment that

Hern take nothing on his counterclaims. We affirm the award of attorney’s fees to Hidden

Forest.


                                                   Phylis J. Speedlin, Justice




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