      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00060-CV



                     Johnson Savage, Inc. d/b/a Precision Tune, Appellant

                                                  v.

                                   Steve Fehrenkamp, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
       NO. GN202573, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                             MEMORANDUM OPINION

                Appellant Johnson Savage, Inc. d/b/a Precision Tune (“Precision Tune”) appeals from

a judgment awarding appellee Steve Fehrenkamp $4,806.11 in compensatory damages and

$38,000 in attorneys’ fees based on the jury’s finding that Precision Tune violated the Texas Debt

Collection Practices Act.1 The jury found “0” damages for the violation, but on Fehrenkamp’s

motion for judgment notwithstanding the verdict, the district court disregarded eleven of the negative

damages findings and substituted its own affirmative damages findings. We will reverse the district

court judgment and render judgment in Precision Tune’s favor.




       1
           Tex. Fin. Code Ann. §§ 392.001-.404 (West 2006).
                     FACTUAL AND PROCEDURAL BACKGROUND

               On February 16, 2002, Fehrenkamp took his 1992 Pathfinder to Precision Tune, an

auto repair business, for an oil change. Four days later, on February 20, the Pathfinder’s engine

failed. Fehrenkamp had the vehicle towed to another auto repair shop, where a mechanic determined

that the engine had seized up due to a lack of oil and noted the absence of the oil pan’s drain plug.

Fehrenkamp informed Precision Tune of the engine failure and suspected cause. Precision Tune

had the vehicle towed to its shop and, on February 25, made arrangements for a rental car for

Fehrenkamp. Precision Tune’s president, Mike Rouse, inspected the Pathfinder and concluded that

the engine had failed due to a broken rod, not for lack of oil. A second opinion from an independent

engineer confirmed Rouse’s conclusion. On March 9, Precision Tune informed Fehrenkamp that

it would not accept responsibility for the engine failure and asked Fehrenkamp to return the rental

car and remove the Pathfinder from the shop. Fehrenkamp had the vehicle towed to his house. On

March 22, Fehrenkamp had it towed to a Nissan dealership for a repair estimate. Fehrenkamp

obtained a second estimate from yet another repair shop, which eventually completed the engine

repair on or about April 25.

               Meanwhile, on March 28, Precision Tune sent Fehrenkamp a letter requesting

reimbursement for $1,143 in expenses it had incurred for towing and for the rental car. On

April 11, Rouse called the Fehrenkamp house and left the following message on the

answering machine:


               Yes, this is Mike Rouse at Precision Tune. I know you’ve been in
               receipt of my letter for ten days now. I have not heard from you
               before. We—we have to proceed legally. Just wanted to know if—if

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                you had planned to pay us that—the amount you owe us for the
                incidentals involved in your vehicle. I will, I guess, wait until
                tomorrow before I file charges. Thank you, sir.


The next day, Fehrenkamp’s attorney sent a letter to Rouse stating that Precision Tune’s actions

constituted violations of the Texas Deceptive Trade Practices–Consumer Protection Act2 and the

Texas Debt Collection Practices Act, and demanding that Precision Tune pay him the cost to repair

the engine as well as compensation for his lost time and inconvenience. Precision Tune did not

respond to the demand, and Fehrenkamp subsequently filed this suit alleging causes of action for

violations of the debt collection practices act, the deceptive trade practices–consumer protection act,

fraud, and negligence.

                After a two-day trial, the district court submitted to the jury a charge consisting of

35 questions covering the four causes of action and including several damages questions. The jury

answered two of the liability questions affirmatively, finding that (1) Precision Tune “threatened to

file a charge, complaint or criminal action against Steve Fehrenkamp when Steve Fehrenkamp had

not violated a criminal law” (Question 1); and (2) Precision Tune’s negligence “proximately caused

the occurrence or injury in question” (Question 31). However, the jury answered all the associated

damages questions negatively, finding “0” damages in answer to each. The jury failed to find

additional violations of the debt collection practices act beyond the threat, failed to find any

violations of the deceptive trade practices–consumer protection act, and failed to find fraud. Finally,

the jury awarded zero dollars in attorneys’ fees.




       2
           Tex. Bus. & Com. Code Ann. §§ 17.46-.63 (West 2002 & Supp. 2008).

                                                    3
                 Precision Tune filed a motion for entry of judgment, which the district court denied.

Fehrenkamp filed a motion requesting that the district court disregard thirteen of the seventeen jury

findings regarding damages arising from the debt collection practices act violation, and asking the

court to substitute affirmative damage findings in their place. Fehrenkamp did not challenge the

“0” damages findings associated with the affirmative finding of negligence. The district court

granted Fehrenkamp’s request as to eleven negative damage findings—seven addressing

compensatory damages resulting from Precision Tune’s conduct in violation of the debt collection

practices act and four relating to attorneys’ fees. The district court signed a judgment awarding

Fehrenkamp $4,806.11 in compensatory damages and $38,000 in attorneys’ fees. In three issues,

Precision Tune asserts on appeal that the district court erred by (1) awarding damages that did not

result from its violation of the debt collection practices act; (2) denying Precision Tune’s motion for

entry of judgment based on the jury verdict finding zero damages; and (3) awarding attorneys’ fees

without a finding of compensatory damages resulting from violations of the debt collection

practices act.


                                    STANDARD OF REVIEW

                 A motion for judgment notwithstanding the verdict should be granted only when the

evidence is conclusive and one party is entitled to recover as a matter of law, or when a legal

principle precludes recovery. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). A

district court may disregard any jury finding on a question that has no support in the evidence.

Tex. R. Civ. P. 301. The district court may disregard a jury’s verdict and render judgment

notwithstanding the verdict if no evidence supports the jury’s findings or if a directed verdict would

                                                   4
have been proper. See Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Brown v. Bank of

Galveston, 963 S.W.2d 511, 513 (Tex. 1998). To determine whether the district court erred

in rendering judgment notwithstanding the verdict, we review all evidence in a light most

favorable to the verdict, indulging every reasonable inference in its favor. City of Keller v. Wilson,

168 S.W.3d 802, 821 (Tex. 2005). The jury’s findings must not be disturbed if there is any evidence

of probative value to support them. International Armament Corp. v. King, 686 S.W.2d 595, 597

(Tex. 1985). Furthermore, the district court may render judgment notwithstanding the verdict and

substitute its own judgment of the proper measure of damages only if the evidence proves those

damages conclusively.        State v. Huffstutler,    871 S.W.2d 955, 960-61 (Tex. App.—Austin

1994, no writ).


                                              DISCUSSION

Compensatory Damages Award

                  The parties agree that the jury’s finding, in answer to Question 1, of a violation of the

debt collection practices act was based solely on uncontroverted evidence of the April 11 phone call

wherein Rouse, Precision Tune’s president, threatened to “file charges” against Fehrenkamp. Having

answered Question 1 affirmatively, the jury was required to answer Questions 2 and 9, the damages

questions. Question 2 asked the jury, “What sum of money, if any, if paid now in cash, do you find

from a preponderance of the evidence would fairly and reasonably compensate Steve Fehrenkamp

for his damages, if any, which resulted from the conduct you found to exist in Question 1?”

(Emphasis added.) There were four separate categories of damages for the jury to consider:




                                                     5
               2(a)   the value of time Fehrenkamp spent to prove he did not owe
                      any debt to Precision Tune;

               2(b)   the expenses incurred by Fehrenkamp in having the
                      Pathfinder towed on March 9, 2002;

               2(c)   Fehrenkamp’s past mental anguish; and

               2(d)   Fehrenkamp’s mental anguish that he may sustain in the
                      future.


Question 9 asked the jury, “What sum of money, if any, if paid now in cash, would fairly and

reasonably compensate Steve Fehrenkamp for his damages, if any, that resulted from such conduct?”

(Emphasis added.)3 For this question, there were nine separate categories of damages for the jury

to consider:


               9(a)   the cost to restore the vehicle to the condition it was in before
                      the February 16, 2002 oil change;

               9(b)   loss of use of the vehicle;

               9(c)   cost of replacement of the engine and related repairs;

               9(d)   cost of the repair estimate from Southpoint Nissan;

               9(e)   cost of the tow from Austin High School to Jimmy’s Top
                      Tech and from Precision Tune to the Fehrenkamp home;

               9(f)   cost to Fehrenkamp of substitute transportation;

               9(g)   cost of the February 16, 2002 oil change;


       3
          Question 9 was conditioned on an affirmative answer to any of Questions 1, 3, or 5. The
jury answered “No” to Questions 3 and 5, and answered “Yes” to Question 1, which was based on
Rouse’s April 11 phone call. Accordingly, the phrase “such conduct” in Question 9 necessarily
referred to that phone call.

                                                    6
               9(h)    value of time Fehrenkamp lost from work to address damage
                       to the vehicle; and

               9(i)    Fehrenkamp’s past mental anguish


The jury awarded zero damages for each of the separate categories in Questions 2 and 9 of the

charge. Precision Tune filed a motion to render judgment on the verdict, which the district court

denied. Fehrenkamp filed a motion to disregard certain jury findings and render judgment in his

favor, which the district court granted in part.

               In his motion, Fehrenkamp contended that there was no evidence to support the jury’s

answer of zero to nine Questions: 2(a), 2(b), 9(a), 9(b), 9(c), 9(d), 9(e), 9(g), and 9(h). He asked

the court to disregard these findings and substitute its own affirmative findings as to damages in

amounts Fehrenkamp argued were conclusively proven at trial.4 The district court granted the

motion as to seven of the nine findings—2(b), 9(a), 9(b), 9(c), 9(d), 9(e), and 9(g)—and for each

finding substituted a damages figure in place of the zero damages found by the jury.5 Because

findings 9(a) (cost to restore vehicle to condition before oil change) and 9(c) (cost of replacement

of the engine and related repairs) were cumulative, Fehrenkamp made an election to recover damages

under finding 9(a); as a result, finding 9(c) is not part of the judgment.




       4
          Fehrenkamp did not ask the district court to disregard findings 2(c) (past mental anguish),
2(d) (future mental anguish), 9(f) (cost of substitute transportation), or 9(i) (past mental anguish).
       5
          The district court declined to disregard findings 2(a) (value of time Fehrenkamp spent
proving he was not indebted to Precision Tune), and 9(h) (value of time Fehrenkamp lost from work
to address the damage to the vehicle). Fehrenkamp did not bring his own appeal to challenge the
court’s denial of this requested relief.

                                                   7
               In its first issue, Precision Tune complains that the district court erred by rendering

a judgment awarding Fehrenkamp compensation for damages that could not have resulted from the

conduct the jury found to violate the debt collection practices act. Precision Tune argues that the

damages substituted by the district court were improper because they either (1) accrued or were

incurred before April 11, the date of the phone call making the threat to file charges that the parties

agree constitutes the debt collection practices act violation; or (2) did not emanate from the threat

contained in the call, but rather were caused by the damage to the vehicle itself, which also occurred

before April 11. We agree. Four of the substituted damages findings compensated Fehrenkamp for

damages incurred before the April 11 threat even occurred and could not in any way have resulted

from that threat. These are findings 2(b) (cost of tow on March 9 from Precision Tune to the

Fehrenkamp residence); 9(d) (cost of repair estimate done at the Nissan dealership on or about

March 22); 9(e) (cost of two tows, one occurring on February 20 from Austin High School to a repair

shop and the other occurring on March 9 from Precision Tune to the Fehrenkamp residence);6 and

9(g) (cost of the February 16 oil change). Their temporal relationship to the April 11 phone call

alone compels the conclusion that these damages could not have resulted from any violation of the

debt collection practices act contained in that call. With respect to the remaining two substituted

findings, it is likewise apparent that the damages awarded did not flow from any threat to file charges

in violation of the debt collection practices act, but rather from the damage to the vehicle itself.

These are findings 9(a) (cost to repair the vehicle) and 9(b) (loss of use of the vehicle). The jury was




        6
           We note that the second tow in 9(e) is the same one for which damages were
requested in 2(b).

                                                   8
instructed in both Questions 2 and 9 to only award damages resulting from the conduct violating the

debt collection practices act. The district court erred in disregarding the jury’s correct findings that

none of the categories of damages addressed in these findings resulted from the conduct giving rise

to liability in Question 1.

                In its second issue, Precision Tune asserts that the evidence did not conclusively

establish the amount of the damages awarded to Fehrenkamp in each of the substituted findings

made by the district court. Precision Tune contends that the district court therefore erred in denying

its motion for judgment on the verdict and improperly substituted its finding for those of the jury.

Because we have already concluded that none of the categories for which damages were awarded

included damages that “resulted from” Precision Tune’s actionable conduct, we need not address

whether there was conclusive proof of the amount of those damages. They were simply unavailable

to Fehrenkamp under the charge submitted to the jury. We agree that the district court erred in

denying Precision Tune’s motion for entry of judgment and further erred in rendering judgment

notwithstanding the verdict with substituted findings on damages. We sustain Precision Tune’s first

and second points of error.


Attorneys’ Fee Award

                The district court, in four substituted findings, awarded Fehrenkamp attorneys’ fees

in the amount of $38,000 for preparation for trial and trial (finding 35(a)); $15,000 for a successful

appeal to the court of appeals (finding 35(b));$11,000 for initiating or responding to a petition for

review (finding 35(c)); and $5,000 in the event such petition for review is granted by the Texas

Supreme Court (finding 35(d)). In its third issue, Precision Tune asserts that the attorneys’ fee award

                                                   9
was improper because there was no finding of the actual damages required to support such an award.

We agree.

               Fehrenkamp sought attorneys’ fees under the debt collection practices act and the

deceptive trade practices-consumer protection act. See Tex. Fin. Code Ann. § 392.403(b);

Tex. Bus. & Com. Code Ann. § 17.50(d).7 Attorneys’ fees are recoverable under the debt collection

practices act if the party seeking an award “successfully maintains an action” under the act. See

Tex. Fin. Code Ann. § 392.403(b); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 30-31

(Tex. App.—Tyler 2000, pet. denied) (because plaintiff failed to prove any actual damages caused

by debt collection practices, she did not successfully maintain action under debt collection practices

act and attorneys’ fees were not appropriate); Rusk County Elec. Coop., Inc. v. Flanagan,

538 S.W.2d 498, 500 (Tex. Civ. App.—Tyler 1976, writ ref’d n.r.e.) (refusing to award attorneys’

fees under debt collection practices act when plaintiff’s damages were not result of unreasonable

collection efforts). Likewise, under the deceptive trade practices-consumer protection act, a plaintiff

cannot recover attorneys’ fees unless he recovers actual damages. State Farm Life Ins. Co.

v. Beaston, 907 S.W.2d 430, 437 (Tex. 1995). Because we have concluded the district court erred

in disregarding the jury’s negative compensatory damages findings and substituting affirmative ones

therefor, there are no actual damages to support an award of attorneys’ fees under either statute. We

sustain Precision Tune’s third point of error.




       7
             Fehrenkamp sought attorneys’ fees under the deceptive trade practices–consumer
protection act through the tie-in provision of the debt collection practices act. See Tex. Fin. Code
Ann. § 392.404(a) (“A violation of this chapter is a deceptive trade practice under Subchapter E,
Chapter 17, Business & Commerce Code, and is actionable under that subchapter.”).

                                                  10
Fehrenkamp’s Cross-Appeal

               Fehrenkamp brings four cross-points on appeal. As an initial matter, we note that a

party seeking to alter the trial court’s judgment must file a notice of appeal. See Tex. R. App. P.

25.1(c). A party that does not file a notice of appeal is not entitled to more favorable relief than it

obtained in the district court, except for just cause. Id. Therefore, an appellee generally may not

attack the judgment by cross-point.       However, when the appellee has secured a judgment

notwithstanding the verdict, he “must bring forward by cross-point any issue or point that would

have vitiated the verdict or that would have prevented an affirmance of the judgment if the district

court had rendered judgment on the verdict.” Tex. R. App. P. 38.2(b)(1). By his cross-appeal,

Fehrenkamp contends that, in the event this Court agrees that the judgment entered by the district

court is in error, the proper remedy is to reverse and remand the case for a new trial rather than

render judgment in Precision Tune’s favor. Fehrenkamp argues that remand is proper because the

evidence supporting the zero damages findings is so against the great weight and preponderance of

the evidence that a new trial is necessary.

               A party challenging a jury finding on an issue upon which that party had the burden

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

the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The test is whether the

finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly

wrong and manifestly unjust. Id. at 241. We will not disturb the jury’s failure to award damages and

remand for a new trial unless we conclude that the great weight and preponderance of the evidence

requires a contrary answer.      The findings at issue here are limited to those challenged in



                                                  11
Fehrenkamp’s motion for judgment notwithstanding the verdict, which are 2(a), 2(b), 9(a)-(e), 9(g),

9(h), and 35(a)-(d).

               With respect to findings 2(b), 9(a)-(e), and 9(g), we have already concluded that the

zero damages findings were appropriate as a matter of law because it was conclusively proven that

those damages did not result from the only act that could have given rise to any liability on Precision

Tune’s part under the debt collection practices act—that is, the April 11 phone call from Mike

Rouse. These findings are not, as Fehrenkamp argues, against the great weight and preponderance

of the evidence. The same reasoning applies to finding 9(h), which sought an award of damages for

time lost from work to address the damage to the vehicle. Again, the jury was charged with

awarding damages that resulted from the violation of the debt collection practices act found in

Question 1, not damages arising from the damage to the vehicle itself.

               The remaining finding, 2(a), is the jury’s failure to find that Fehrenkamp incurred

damages in the form of time spent to prove that he did not owe Precision Tune any money. The only

record evidence Fehrenkamp points to in support of this damage question is his own testimony that

he spent “perhaps four hours” “just in dealing with Precision Tune and its refusal to do what it told

[him] it would do on February 21st.” The existence of this record evidence alone does not persuade

us that the jury’s failure to find damages is so against the great weight and preponderance of the

evidence as to be manifestly unjust. First, it is not at all clear from Fehrenkamp’s testimony when

it was that he claims to have spent time “dealing with Precision Tune.” To secure an affirmative

damages finding, Fehrenkamp was required to demonstrate that the lost work time resulted from the

phone call rather than from the vehicle damage. Fehrenkamp’s testimony does not provide a time



                                                  12
frame for the lost work time. Furthermore, the testimony regarding the amount of time he spent,

“perhaps four hours,” is similarly vague. Fehrenkamp has not demonstrated that the zero damages

finding in 9(h) is against the great weight and preponderance of the evidence. We hold that the

jury’s failure to find damages was not so against the great weight and preponderance of the evidence

as to be clearly wrong and manifestly unjust.


                                         CONCLUSION

               The district court erred in denying Precision Tune’s motion for entry of judgment and

in granting Fehrenkamp’s motion for judgment notwithstanding the verdict and substituting

affirmative findings for compensatory damages and attorneys’ fees. We sustain Precision Tune’s

three issues on appeal and overrule Fehrenkamp’s cross-points. Consequently, we reverse the district

court judgment and render judgment that Fehrenkamp take nothing by his causes of action against

Precision Tune.



                                                _____________________________________________

                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Reversed and Rendered

Filed: April 2, 2009




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