Opinion issued July 11, 2013




                                       In The

                               Court of Appeals
                                      For The

                           First District of Texas
                             ————————————
                               NO. 01-12-00622-CV
                            ———————————
    D&M MARINE, INC. D/B/A PHIPPS & COMPANY HOMES, Appellant
                                         V.
           J. NEAL TURNER AND KERIE B. TURNER, Appellees


                    On Appeal from the 431st District Court
                            Denton County, Texas1
                     Trial Court Case No. 2008-60228-393


                                   OPINION


1
      The Texas Supreme Court transferred this appeal from the Court of Appeals for
      the Second District of Texas. Misc. Docket No. 12-9107 (Tex. June 18, 2012); see
      also TEX. GOV’T CODE ANN. § 73.001 (Vernon 2005) (authorizing transfer of
      cases). We are unaware of any conflict between precedent of the Court of Appeals
      for the Second District and that of this Court on any relevant issue. See TEX. R.
      APP. P. 41.3.
      J. Neal Turner and Kerie B. Turner sued D&M Marine, Inc. d/b/a Phipps &

Company Homes and others over damage in the construction of their home. The

jury found in favor of the Turners and against D&M Marine on the Turners’ claims

of negligence, deceptive trade practices, breach of warranty, and attorneys’ fees.

The trial court awarded engineering and consulting fees after a post-trial hearing,

and rendered judgment. In four issues, D&M Marine argues (1) the trial court

committed charge error by excluding a proposed question and including an

incomplete instruction, (2) the trial court abused its discretion by considering

hearsay in determining the award of engineering and consulting fees, (3) the trial

court abused its discretion by allowing the Turners’ attorney to testify about the

reasonableness of a settlement offer, and (4) the evidence is factually insufficient

to support the award of attorneys’ fees.

      We affirm, in part, and reverse and remand, in part.

                                    Background

      In late 2005, the Turners bought a home in Plano, Texas. Some time after

they moved in, they discovered problems with the home, which ultimately led to

this suit.   The Turners asserted claims against D&M Marine for negligence,

violations of the Deceptive Trade Practices Act (“DTPA”), and breach of warranty.

The jury found in favor of the Turners and against D&M Marine on all three

claims. It also awarded attorneys’ fees to the Turners.


                                           2
      To prove up attorneys’ fees, the Turners presented one of their attorneys,

Brent Lemon, to testify. Lemon’s testimony was based on the exhibit introduced

into evidence showing the fees incurred, and his testimony largely tracked the

information on the exhibit. The total amount of hours up through trial was 572.2

hours. These hours represented the work of two attorneys. Lemon testified that

$300 per hour was a reasonable fee for both of them. Accordingly, the Turners

sought $171,660 in attorneys’ fees up through trial. The jury awarded them the

full amount.

      Another issue presented to the jury was whether a settlement offer by D&M

Marine to the Turners was reasonable. Such a determination would impact any

award of attorneys’ fees. During his testimony, Lemon was asked if he thought the

settlement offer was reasonable.     D&M Marine objected, and the trial court

overruled the objection.   Lemon testified that he did not think the offer was

reasonable. Lemon did not testify further on the matter.

      In addition to attorneys’ fees, the Turners sought recovery of “reasonable

and necessary engineering and consulting fees” under the Texas Residential

Construction Liability Act. During trial, the parties announced an agreement in

open court to “submit any of the . . . fees under the [Act] to the Court for

determination post-trial.” The trial court accepted the agreement. After trial, but

more than 30 days before the hearing on the fees, the Turners submitted affidavits


                                         3
in support of their request for fees. At the hearing, D&M Marine objected to the

affidavits, arguing they were hearsay. The trial court overruled the objections,

considered the affidavits and accompanying evidence, and ultimately awarded fees

to the Turners.

         During the charge conference at trial, D&M Marine objected to one jury

instruction, arguing it was incomplete.      It also requested an additional jury

question, which the trial court denied. For the jury instruction, the charge included

an instruction defining “construction defect,” based on the applicable statute. The

instruction did not include the portion of the statute that excluded certain specific

problems that did not constitute a construction defect. D&M Marine requested the

trial court to include the list of excluded problems in the instruction. The trial

court denied the request.    For the jury question, D&M Marine requested the

inclusion of a question concerning comparative responsibility for the Turners’

DTPA claim. The trial court denied this request as well.

                                   Jury Charge

         In its fourth issue, D&M Marine argues that the trial court abused its

discretion by not using its proposed definition of “construction defect” and by

refusing to submit a comparative responsibility question on the Turners’ DTPA

claim.




                                         4
A.    Standard of Review

      We review a challenge to the trial court’s jury charge under an abuse of

discretion standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649

(Tex. 1990); Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—

Houston [1st Dist.] 2009, pet. denied). A trial court abuses its discretion when it

acts in an arbitrary or unreasonable manner, or if it acts without reference to any

guiding rules or principles. Tex. Dep’t of Human Servs., 802 S.W.2d at 649; Moss,

305 S.W.3d at 81. A trial court has wide discretion in submitting instructions and

jury questions. Moss, 305 S.W.3d at 81.

      If we determine that the jury charge was erroneous, we must then consider

whether the error requires reversal. See Transcon. Ins. Co. v. Crump, 330 S.W.3d

211, 225 (Tex. 2010). Generally, charge error requires reversal of a judgment only

when the error was harmful in the sense that it probably caused rendition of an

improper verdict. Id.

B.    Analysis

      D&M Marine challenges both an instruction included in the charge and a

question excluded from the charge. For the excluded question, D&M Marine

argues that the trial court improperly excluded a question on comparative

responsibility for the Turners’ DTPA claim. The Turners argue that this issue has

been waived. We agree.


                                          5
        The jury charge included questions on claims for negligence, DTPA, and

breach of warranty. The jury found D&M Marine liable on all three claims. The

jury’s award of damages for the DTPA claim was the same as its award for

damages for the breach of warranty claim. The trial court’s judgment awards the

Turners this amount in damages, but does not specify which claim the award stems

from.

        “Generally speaking, an appellant must attack all independent bases or

grounds that fully support a complained-of ruling or judgment. If an appellant

does not, then we must affirm the ruling or judgment.” Britton v. Tex. Dep’t of

Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2002, no

pet.) (citation omitted). D&M Marine does not challenge the jury’s determination

of liability or damages on the Turners’ breach of warranty claim. Because the

breach-of-warranty determination would independently support the judgment, we

must affirm the judgment regardless of any alleged error in the charge on the

DTPA claim. See id.

        For the disputed jury instruction, D&M Marine challenges the court’s

definition of “construction defect.” The parties agree that former section 401.004

of the Texas Property Code was the right source for the definition. Act of June 2,

2003, 78th Leg., R.S., ch. 458, § 1.01, sec. 401.004, 2003 Tex. Gen. Laws 1703,

1704 (expired Aug. 31, 2009). Former section 401.004 provides,


                                        6
      (a)   In this title, “construction defect” means:

            (1)   the failure of the design, construction, or repair of a
                  home, an alteration of or a repair, addition, or
                  improvement to an existing home, or an appurtenance to
                  a home to meet the applicable warranty and building and
                  performance standards during the applicable warranty
                  period; and

            (2)   any physical damage to the home, an appurtenance to the
                  home, or real property on which the home or
                  appurtenance is affixed that is proximately caused by that
                  failure.

      (b)   The term does not include a defect that arises or any damages
            that arise wholly or partly from:

            (1)   the negligence of a person other than the builder or an
                  agent, employee, subcontractor, or supplier of the
                  builder;

            (2)   failure of a person other than the builder or an agent,
                  employee, subcontractor, or supplier of the builder to:

                  (A)    take reasonable action to mitigate any damages
                         that arise from a defect; or

                  (B)    take reasonable action to maintain the home;

            (3)   normal wear, tear, or deterioration; or

            (4)   normal shrinkage due to drying or settlement of
                  construction components within the tolerance of building
                  and performance standards.

Id.

      The charge’s definition of construction defect followed the definition from

subsection (a), but it did not list the defects and damages excluded under


                                         7
subsection (b). D&M Marine objected to subsection (b) being left out of the

definition, and the trial court overruled the objection.

      For a jury charge, “[t]he court shall submit such instructions and definitions

as shall be proper to enable the jury to render a verdict.” TEX. R. CIV. P. 277. “An

instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3)

finds support in the pleadings and evidence.” Columbia Rio Grande Healthcare,

L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex. 2009) (citing Tex. Workers’ Comp. Ins.

Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000)). “[I]t is error to burden the

jury with excess instructions which emphasize extraneous factors to be considered

in reaching a verdict.” First Int’l Bank in San Antonio v. Roper Corp., 686 S.W.2d

602, 605 (Tex. 1985). Regardless of how correctly the instruction states the law, it

is improper if it amounts to a comment on the weight of the evidence. See Acord v.

Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984).

      Subsection (b) of former section 401.004 covers a variety of specific

instances that do not constitute a “construction defect” even if they would

otherwise fit the definition. Act of June 2, 2003, 78th Leg., R.S., ch. 458, § 1.01,

sec. 401.004, 2003 Tex. Gen. Laws 1703, 1704 (expired Aug. 31, 2009). But they

are just that, specific instances that do not constitute a “construction defect.”

D&M Marine has not argued or made any showing that any of these instances—let

alone all of the instances—was relevant to the suit or raised by the evidence


                                           8
presented at trial.    See Columbia Rio Grande, 284 S.W.3d at 855 (requiring

instruction to find support in pleadings and evidence). Without such a showing,

the language of subsection (b), while legally correct, would be an excess

instruction, distract the jury from the relevant issues in the charge, and potentially

constitute an improper comment on the weight on the evidence. See First Int’l

Bank, 686 S.W.2d at 605; Dresser Indus., 880 S.W.2d at 757; Acord, 669 S.W.2d

at 116.

        We overrule D&M Marine’s fourth issue.

                                Admission of Evidence

        In its first issue, D&M Marine argues that the trial court abused its discretion

by considering hearsay in determining the award of engineering and consulting

fees.     In its third issue, D&M Marine argues that the trial court abused its

discretion by allowing the Turners’ attorney to testify about the reasonableness of a

settlement offer.

A.      Standard of Review

        We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses

its discretion when it acts without reference to any guiding rules and principles.

Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). We must uphold the trial

court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens–


                                            9
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek

Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex. App.—Houston

[1st Dist.] 2004, pet. denied).

        To obtain reversal of a judgment based upon the improper admission of

evidence, Ryland must show that the trial court committed error and that the error

was reasonably calculated to cause, and probably did cause, the rendition of an

improper judgment. See TEX. R. APP. P. 44.1(a). Error based on the admission of

evidence is generally not reversible unless the appellant can demonstrate that the

judgment turns on the particular evidence excluded or admitted.               Interstate

Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).

B.      Engineering and Consulting Fees

        In its first issue, D&M Marine argues that the trial court abused its discretion

by considering hearsay in determining the award of engineering and consulting

fees.   The Turners sought recovery under the Texas Residential Construction

Liability Act. Under this act, a party may recover “reasonable and necessary

engineering and consulting fees.” TEX. PROP. CODE ANN. § 27.004(g)(3) (Vernon

Supp. 2011). Under the Texas Civil Practice and Remedies Code, a party can

submit by affidavit proof of a reasonable and necessary cost charged for a service.

TEX. CIV. PRAC. & REM. CODE ANN. § 18.001(b) (Vernon 2008). An affidavit filed

in compliance with section 18.001 is an exception to the hearsay rule. Hong v.


                                           10
Bennett, 209 S.W.3d 795, 801 (Tex. App.—Fort Worth 2006, no pet.). One of the

requirements for the statute to apply is “[t]he party offering the affidavit in

evidence or the party’s attorney must serve a copy of the affidavit on each other

party to the case at least 30 days before the day on which evidence is first

presented at the trial of the case.” CIV. PRAC. & REM. CODE § 18.001(d) (emphasis

added).

      Evidence was first presented in the trial at issue on December 6, 2011. The

Turners had not filed any affidavits in compliance with section 18.001 before this

date. On that date, however, the following exchange occurred during a hearing

before the trial court:

      Mr. Minton [D&M Marine’s attorney]: . . . . We also need to put an
           agreement on the record.

      ...

      Mr. Grisham [The Turner’s attorney]: Mr. Minton and I discussed
           this before the trial, and we agreed that the plaintiffs will
           submit any of the reasonable and necessary consulting and
           engineering fees under the [Residential Construction Liability
           Act] to the Court for determination post-trial.

      Mr. Minton: Speed it up.

      ...

      The Court: I’ll . . . approve the agreement.

      After the trial, a hearing was set for March 16, 2012. On February 6,

2012—39 days before the hearing—the Turners submitted affidavits that they

                                         11
assert are in compliance with section 18.001. D&M Marine argues that, while the

affidavits were submitted more than 30 days before the hearing at which the issue

of engineering and consulting fees were presented, they were not submitted more

than “30 days before the day on which evidence is first presented at the trial of the

case” as required under the statute. Id.

      D&M Marine objected to the affidavits as hearsay at the hearing.              Its

attorney explained,

      When I agreed to let them prove up their charges to the Court, what I
      thought they were going to do is elicit the testimony, but then submit
      that to the Court, if necessary, after the jury verdict. I didn’t think
      about them coming back in with affidavits after the fact.

The trial court overruled the hearsay objection and allowed the affidavits to be

considered.

      As the statute states, affidavits must be filed at least 30 days before the first

date that evidence is presented at trial. Id. The Turners’ affidavits on engineering

and consulting fees were not submitted within 30 days of the first date that

evidence was presented at trial.

      Nevertheless, at trial, the parties and the court agreed to “submit any of the

reasonable and necessary consulting and engineering fees under the [Residential

Construction Liability Act] to the Court for determination post-trial.”           This

constitutes a Rule 11 agreement. See TEX. R. CIV. P. 11 (allowing agreement

between parties to be enforced if made in open court and entered of record). There

                                           12
were no limitations placed on what could be submitted after the trial. To the

contrary, they indicated that “any of the reasonable and necessary consulting and

engineering fees” would be submitted post-trial.

      At the hearing on the fees, D&M Marine’s attorney stated that he thought

they were agreeing to have all the evidence presented at trial and the trial court

would consider the matter later.     This interpretation is not supported by the

evidence of the agreement.       “Rule 11 agreements are contracts relating to

litigation, subject, therefore, to general rules of contract construction.” Trudy’s

Texas Star, Inc. v. City of Austin, 307 S.W.3d 894, 914 (Tex. App.—Austin 2010,

no pet.). Our primary concern in construing a contract is to ascertain the intent of

the parties as expressed in the instrument. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 662 (Tex. 2005). We give the contract’s terms their “plain and

ordinary meaning” unless the contract indicates that the parties intended a different

meaning. Dynegy Midstream Servs., Ltd. P’ship v. Apache Corp., 294 S.W.3d

164, 168 (Tex. 2009).

      By the terms of the agreement, the parties agreed to submit “any of the

reasonable and necessary consulting and engineering fees” post-trial.         D&M

Marine’s attorney stated that the purpose of the agreement was to speed things up.

Even if D&M Marine’s attorney’s statement at the post-trial hearing that his

understanding was that the intent was to present all of the evidence at trial was


                                         13
correct, this is in conflict with the parties’ agreement and stated purpose. If all of

the evidence was to be presented at trial with only a postponement of the ruling on

the evidence, this would do nothing at all to “speed [the trial] up.” It would only

delay and lengthen the decision-making process. Under this interpretation, instead

of seeking a ruling contemporaneously with the presentation of the evidence, the

parties would have caused a months-long delay between when the evidence was

presented and when it was considered. This would require the trial court to review

the evidence a second time to remind itself of the relevant evidence. This does

nothing to speed up the process.

      In addition, there were no limitations placed on what would be submitted

post-trial. The trial court reasonably could have construed the Rule 11 agreement

as either agreeing to waive the requirements for section 18.001 altogether or to

reset the date from which the 30-day deadline would be calculated.               It is

established that the Turners filed their affidavits more than 30 days before the

hearing on the fees. Accordingly, under the parties’ rule 11 agreement, the trial

court did not abuse its discretion by overruling D&M Marine’s hearsay objection.

      We overrule D&M Marine’s first issue.

C.    Reasonableness of Settlement Offer

      In its third issue, D&M Marine argues that the trial court abused its

discretion by allowing the Turners’ attorney to testify about the reasonableness of a


                                         14
settlement offer. Under section 27.004 of the Texas Property Code, a contractor

may make a written offer of settlement on a dispute concerning the construction. .

PROP. CODE § 27.004(b). If the “claimant rejects a reasonable offer made under

Subsection (b),” then certain limitations are placed on the claimant’s ability to

recover, including the amount of attorneys’ fees. Id. § 27.004(e) (emphasis added).

      In this case, D&M Marine made an offer of settlement, which the Turners

rejected. One of the issues submitted to the jury was whether the settlement offer

was reasonable.     During Lemon’s testimony concerning the attorneys’ fees

incurred on the Turners’ behalf, the following exchange occurred:

      Q.     Did you review the offer made in 2007 in this case?

      A.     Yes.

      Q.     Did you believe that offer to be reasonable under the law?

      Mr. Minton: Your Honor, again, I object. This goes outside the scope
           of what Mr. Lemon has designated himself as an expert to
           testify. He’s here to testify about his attorney’s fees in this
           case. That’s it.

      The Court: I’ll overrule the objection. I’ll let him testify.

      [Mr. Lemon]: I did review the offer. And under the types of damages
            that are recoverable for a homeowner, I did not believe that the
            offer was reasonable.

D&M Marine argues that the trial court abused its discretion by overruling its

objection.




                                          15
      Assuming without deciding that the trial court’s ruling was erroneous, we

hold that D&M Marine has failed to establish that the error is harmful. “Typically,

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

complaining party to demonstrate that the judgment turns on the particular

evidence excluded or admitted.” Interstate Northborough, 66 S.W.3d at 220. As

D&M Marine acknowledges in its brief, “One of the single most important issues

in the trial—and a crucial part of D&M’s defense—was whether D&M’s written

settlement offer to the Turners under the [Residential Construction Liability Act]

was reasonable.” Multiple people testified at trial about the nature of the damages

suffered by the Turners, the terms of the settlement offer, and whether the offer

would resolve the damages suffered by the Turners. Amid this testimony, the

Turners’ attorney offered a single, unsupported statement that he did not believe

the settlement offer was reasonable.

      The bulk of D&M Marine’s argument to establish harm concerns showing

how significant the issue of reasonableness was in the span of the trial. For

example, D&M Marine provides block quotes on the matter from closing

arguments. But this does not “demonstrate that the judgment turns on” Lemon’s

one statement.   Id.   Even the quoted sections make no mention of Lemon’s

testimony. We cannot hold that this one statement was harmful when the jury had




                                        16
the testimony from multiple witnesses from which it could make its determination

of reasonableness.

      We overrule D&M Marine’s third issue.

                                  Attorneys’ Fees

      In its second issue, D&M Marine argues the evidence is factually

insufficient to support the jury’s award of attorneys’ fees.

A.    Standard of Review

      In reviewing a challenge to the factual sufficiency of the evidence, we

consider and weigh all the evidence and set aside the judgment only if it is so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998);

Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston [1st Dist.]

2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). We

may not pass upon the witnesses’ credibility or substitute our judgment for that of

the factfinder, even if the evidence would clearly support a different result.

Maritime Overseas Corp., 971 S.W.2d at 407. Accordingly, we defer to the

factfinder’s findings on contested evidence—the jury may believe one witness and

disbelieve another, and it may resolve inconsistencies in any testimony. Dyer v.

Cotton, 333 S.W.3d 703, 709 (Tex. App.—Houston [1st Dist.] 2010, no pet.)




                                          17
(citing Eberle v. Adams, 73 S.W.3d 322, 327 (Tex. App.—Houston [1st Dist.]

2001, pet. denied)).

B.    Analysis

      To prove up attorneys’ fees, the Turners presented one of their attorneys,

Brent Lemon, to testify. Lemon’s testimony was based on the exhibit introduced

into evidence showing the fees incurred, and his testimony largely tracked the

information on the exhibit. For the fees incurred up through the trial, the exhibit

identified the fees as follows:

      Initial Meetings, Case Review                                     32.5
      Pleadings                                                         48.3
      Depositions                                                       36.4
      Written Discovery                                                 54.4
      R/R of Documents produced by parties                               40
      Hearings                                                          18.5
      Inspections of Turner Home                                         9.5
      Mediation                                                         18.6
      Miscellaneous                                                      18
      Trial                                                             296

Based on this exhibit, the amount of hours spent by the attorneys on the case up

through trial was 572.2 hours. These hours represented the work of two attorneys.

Lemon testified that the $300 per hour was a reasonable fee for both of them.

Accordingly, the Turners sought $171,660 in attorneys’ fees up through trial. The

jury awarded them the full amount.

      D&M Marine argues the evidence was factually insufficient under the recent

Texas Supreme Court case, El Apple I., Ltd. v. Olivas, 370 S.W.3d 757 (Tex.

                                        18
2012). In Olivas, the plaintiff prevailed on a claim of retaliation against her

employer. Id. at 759. She then submitted an application for attorneys’ fees under

the lodestar method. Id. at 759–60. In affidavits, her attorneys testified to the

number of hours they each worked on the case. Id. at 759. The trial court

determined the reasonable rate to apply for each attorney and applied that rate to

the full number of hours worked. Id. The issue on appeal was whether the

evidence of the number of hours worked had to be supported by billing records or

similar documentation as a predicate for the award. Id. at 760.

      A party seeking attorneys’ fees “bears the burden of documenting the hours

expended on the litigation and the value of those hours.” Id. at 761. In reviewing

whether the party has met its burden, “a trial court should obtain sufficient

information to make a meaningful evaluation of the application for attorneys’

fees.” Id. at 762. To this end, the Texas Supreme Court held that “proof should

include the basic facts underlying the lodestar, which are: (1) the nature of the

work, (2) who performed the services and their rate, (3) approximately when the

services were performed, and (4) the number of hours worked.” Id. at 763.

      In Olivas, the attorneys, rather than presenting time records or testifying

“based on their recollection of such records[,] . . . . based their time estimates on

generalities such as the amount of discovery in the case, the number of pleadings

filed, the number of witnesses questioned, and the length of the trial.” Id. The


                                         19
supreme court held that this was insufficient. Id. “The [trial] court could not

discern from the evidence how many hours each of the tasks required and whether

that time was reasonable.” Id.

      The court held that, “if multiple attorneys or other legal professionals are

involved in a case, the fee application should indicate which attorney performed a

particular task or category of tasks.” Id. The court concluded that the evidence

necessary to support a lodestar calculation “includes, at a minimum, [1]

documentation of the services performed, [2] who performed them and at what

hourly rate, [3] when they were performed, and [4] how much time the work

required.” Id. at 764.

      The Turners’ exhibit and the testimony of Lemon that largely tracked the

exhibit do not satisfy this minimum requirement set out in Olivas. The exhibit and

testimony identify the services performed only as very general topics.         The

evidence does not identify who performed each of the tasks. And it does not

identify when the services were performed. While the evidence does establish the

amount of time worked, it does not do it with enough particularity to determine

whether the amount of time involved was an appropriate amount. For example, the

evidence establishes that the Turners’ attorneys spent a total amount of 54.4 hours

on “written discovery.” But we do not know how much written discovery was

involved. Accordingly, the fact finder could not discern whether this was an


                                        20
appropriate amount of time on written discovery. Similarly, we know that 18.5

hours were spent on hearings, but the evidence lacks any particularity such as how

many hearings there were, the nature of the hearings, the length of the hearings, or

the amount of time spent in preparation for the hearings.

        The Turners correctly explain that Lemon testified that his determination of

hours worked was based on a review of the docket sheet and other documents in

the file to determine the approximate amount of time worked. Assuming that this

is a sufficient method of determining time worked under Olivas, Lemon did not

testify about the details of that review. We know only that it was done. We hold

the evidence in support of attorneys’ fees is not sufficiently specific to support the

jury’s award of fees.

        We sustain D&M Marine’s factual sufficiency challenge on the Turner’s

award of attorneys’ fees. Accordingly, we remand for a new trial on attorneys’

fees.

                                    Conclusion

        We reverse the trial court’s award of attorneys’ fees and remand for a new

trial. We affirm the remainder of the trial court’s judgment.




                                              Laura Carter Higley
                                              Justice

                                         21
Panel consists of Justices Keyes, Higley, and Bland.




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