                                                                                                   ACCEPTED
                                                                                               04-14-00811-CV
                                                                                   FOURTH COURT OF APPEALS
                                                                                        SAN ANTONIO, TEXAS
                                                                                         6/30/2015 10:41:29 AM
                                                                                                KEITH HOTTLE
                                                                                                        CLERK


                           04-14-00811-CV
                            IN THE COURT OF APPEALS                          FILED IN
                                FOURTH DISTRICT                       4th COURT OF APPEALS
                                                                       SAN ANTONIO, TEXAS
                                  SAN ANTONIO
                                                                     06/30/2015 10:41:29 AM
                                                                        KEITH E. HOTTLE
                                                                              Clerk
                            RANDY COLEMAN
                      AND JIM COLEMAN COMPANY,
                                                                      Appellants

                                          V.

                                  RALPH DEAN,
                                                                      Appellee

                      On Appeal from Cause No. 11-04-49987-CV
              In the 79th Judicial District Court, Jim Wells County, Texas
                     The Hon. Richard C. Terrell, Presiding Judge


                          APPELLEE’S BRIEF


Charles C. Webb, Jr.                           Frank Weathered
Parker S. Webb                                 State Bar No. 20998600
WEBB CASON, PC                                 DUNN, WEATHERED, COFFEY,
710 North Mesquite Street                      RIVERA & KASPERITIS, P.C.
Corpus Christi, Texas 78401-2312               611 South Upper Broadway
TEL: 361.887.1031                              Corpus Christi, Texas 78401
FAX: 361.887.0903                              TEL: 361.883.1594
EMAIL: charlie@wcctxlaw.com                    FAX: 361.883.1599
EMAIL: parker@wcctxlaw.com                     EMAIL: frank@weatheredlaw.com

                                               ATTORNEYS FOR APPELLEE




ORAL ARGUMENT REQUESTED
                                             TABLE OF CONTENTS
                                                                                                                     PAGE

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.     Sufficiency of the Evidence to Support Liability under the DTPA for Actual
       and Additional Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

       A. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

       B. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

       C. Laundry List Violations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

            1. Source, sponsorship, approval . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . 10

            2. Characteristics, ingredients, uses, benefits, or quantities . . . . . . . . . . 14

            3. Rights, remedies, or obligations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

            4. Failure to disclose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

            5. Jim Coleman Company’s Relationship to the Transaction was
               Sufficient to Impose DTPA Liability on that Defendant. . . . . . . . . . . 15

       D. The Violations were a Producing Cause of Economic Damages. . . . . . . 17

                                                             ii
      E. Appellants Knowingly Engaged in DTPA Violations. . . . . . . . . . . . . . . . 18

II.   Attorney Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

III. The Judgment does not Award Treble (or Double) Recovery. . . . . . . . . . . . 22

Relief Requested. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

RULE 9.4(i)(3) CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25




                                                          iii
                                      INDEX OF AUTHORITIES
                                                                                                        PAGE
CASES

Basic Energy Serv., Inc. v. D-S-B Properties, Inc.,
367 S.W.3d 254, 270 (Tex. App.—Tyler 2011, no pet.). . . . . . . . . . . . . . . . . . . . 16

Century 21 Real Estate Corp. v. Hometown Real Estate Co.,
890 S.W.2d 118, 128 (Tex. App.—Texarkana 1994, writ denied).. . . . . . . . . . . . 18

City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Cox v. State,
448 S.W.3d 497, 505 (Tex. App.—Amarillo 2014, pet. pending). . . . . . . . . . . . . 10

Cullins v. Foster,
171 S.W.3d 521, 535-36 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).. . 20

Ford Motor Co. v. Ledesma,
242 S.W.3d 32, 46 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Fort Worth Elevators v. Russell,
70 S.W.2d 397, 406 (Tex. 1934). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Green Int’l, Inc. v. Solis,
951 S.W.2d 384, 389 (Tex. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Hedley Feedlot, Inc. v. Weatherly Trust,
855 S.W.2d 826, 837 (Tex. App.—Amarillo 1993, pet. denied). . . . . . . . . . . . . . 10

Hennessey v. Vanguard Ins. Co.,
895 S.W.2d 794, 802-03 (Tex. App.—Amarillo 1995, writ denied) .. . . . . 6, 13, 15

Hruska v. First State Bank,
747 S.W.2d 783, 785 (Tex. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20



                                                      iv
In re Johnson,
340 S.W.3d 769, 775 (Tex. App.—San Antonio 2011, pet. denied). . . . . . . . . . . . 7

K.C. Roofing Co., Inc. v. Abundis,
940 S.W.2d 375, 377 (Tex. App.—San Antonio 1997, writ denied). . . . . . . . . . . 18

Melody Homes Mfg. Co. v. Barnes,
741 S.W.2d 349, 351 (Tex. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Siegler v. Williams,
658 S.W.2d 236, 240-41 (Tex. App.—Houston [1st Dist.] 1983, no writ). . . . . . . 18

Smith v. Herco, Inc.,
900 S.W.2d 852, 859 (Tex. App.—Corpus Christi 1995, writ denied). . . . . . . . . 15

Spillman v. Self Serve Fixture Co., Inc.,
693 S.W.2d 656 (Tex. App.—Dallas 1985, writ ref’d n.r.e.). . . . . . . . . . . . . . . . . 22

Todd v. Perry Homes,
156 S.W.3d 919, 922 (Tex. App.—Dallas 2005, no pet.).. . . . . . . . . . . . . . . . . . . 16

Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 311 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

Treasure City v. Strange,
620 S.W.2d 811, 814 (Tex. Civ. App.—Dallas 1981, no writ). . . . . . . . . . . . . . . 16

U.S. Fire Ins. Co. v. Millard,
847 S.W.2d 668, 672 (Tex. App.—Houston [1st Dist.] 1993, no writ).. . . . . . . 6, 15


STATUTES

TEX. BUS. & COMM. CODE § 17.45(9).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TEX. BUS. & COMM. CODE § 17.46(b)(2, 3, 5, 7, 12, 24).. . . . . . . . . . . . . . . . . . . . 10

TEX. BUS. & COMM. CODE § 17.50(a)(1)(A, B). . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

                                                     v
TEX. BUS. & COMM. CODE § 17.50(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15


RULES

TEX. R. CIV. P. 324(b)(2).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8




                                                         vi
                              STATEMENT OF THE CASE

       This is a DTPA case involving a concrete modular home that was never

delivered as promised, despite consumer Ralph Dean’s down payment of more than

half the purchase price. CR 293.1 The trial court rendered a post-answer default

judgment against defendant Randy Coleman; an instructed verdict against defendant

Living Modular; and a judgment based on a jury verdict against defendant Jim

Coleman Company. 4 RR 12-13, 22-24, 31, 35-36; CR 375. Living Modular has not

appealed; Randy Coleman has brought a restricted appeal; and Jim Coleman

Company has filed an ordinary appeal. CR 455, 459. Randy Coleman and Jim

Coleman Company have filed separate briefs, but their issues are the same. Therefore,

plaintiff/appellee Ralph Dean is responding to both appeals with one brief. All the

parties will be referred to herein individually by name (Randy Coleman and Jim

Coleman Company will also sometimes be collectively referred to as Appellants).

                    STATEMENT REGARDING ORAL ARGUMENT

       Appellants have requested oral argument but have not explained why. Dean

submits oral argument is unnecessary because the record is short and simple, and

applicable law is well settled. Dean is therefore requesting oral argument only

“conditionally” in the event the Court grants Appellants’ request.

      1
         Appellee shall cite the Clerk’s Record as “CR,” the Reporter’s Record as “RR,” and
Plaintiff’s Exhibits as “PX.” There are no defense exhibits.

                                            vii
                                 ISSUES PRESENTED

      In addition to the issues stated in Appellants’ briefs, Dean presents the

following additional issues:

      1.        Have the Appellants waived their factual sufficiency challenges by

failing to include the point in a motion for new trial?

      2.        Has Jim Coleman Company waived its segregation argument regarding

attorney’s fees by failing to object to the testimony on attorney’s fees or to the charge

of the court?

      3.        Has Jim Coleman Company waived its challenge to the quality of the

evidence on attorney’s fees by failing to object to the testimony on that ground or

otherwise raise the issue in the trial court?




                                          viii
                             STATEMENT OF FACTS

      While at a hunting show in Houston, Dean and his wife Alisa, who reside in

Sandia, Texas, passed a booth marketing concrete modular homes. 3 RR 16. The

booth had a Living Modular sign, but Randy Coleman, who was present, handed

Dean a Jim Coleman Company business card with Randy’s name on it and told Dean

he was an executive with Jim Coleman Company. PX-1; 3 RR 19- 20, 22, 69-70. Also

present were Wayne Coleman, Randy’s brother, who likewise said he was an

executive with Jim Coleman Company, and Bob Oaks, who appeared to be helping

the Coleman brothers with sales. 3 RR 16-21.

      Dean learned that the homes were manufactured in Mexico, then trucked to

their intended sites. 3 RR 22. After visiting with Randy and Wayne Coleman, Dean

returned home and, following discussions with Alisa, eventually decided to look

further into purchasing a modular home to place on some recreational property they

own near Premont, Texas. 3 RR 16-17.

      Dean returned to Houston on several occasions to negotiate the purchase of a

modular home. 3 RR 22-24, 30-31, 33, 38, 41-43, 45-46, 71, 88. See PX-3, 4 (sales

brochures). Each time, he met with Jim Coleman Company employees at Jim

Coleman Company facilities. Id. These facilities were located on Jim Coleman

Company premises and contained Jim Coleman Company offices. Id. Jim Coleman


                                        1
Company employees included Randy Coleman, who said he was a vice-president and

part owner of Jim Coleman Company; Wayne Coleman, Randy’s brother who also

said he was an executive (vice-president) with Jim Coleman Company; and Bob

Oaks. 3 RR 21, 26, 40-41, 55-57, 82, 84; PX-4. See PX-10 (Jim Coleman Company

website confirming Randy Coleman’s position and responsibilities with Jim Coleman

Company). Randy Coleman told Dean he maintained an office at these facilities.

3 RR 26, 40. See PX-1 (business card). Oaks was reachable through the Jim Coleman

Company switchboard.

      During the on-going negotiations, the Jim Coleman Company employees

represented to Dean that Jim Coleman Company could manufacture and sell awnings

for the modular home. 3 RR 41-42. See PX 2 (brochure containing pictures of

awnings). This was described as a “modular option.” Id. Jim Coleman Company

employees, including Randy Coleman, offered to Dean to make such awnings. 3 RR

41-42.

      At no time, did anyone tell Dean there was no affiliation between Jim Coleman

Company and Living Modular. 3 RR 42. To the contrary, Jim Coleman Company

caused Dean to believe that Living Modular was affiliated with and financially

supported by Jim Coleman Company and that he would essentially be purchasing the

modular home from Jim Coleman Company. 3 RR 42, 46-47, 56-58, 78, 85-90.


                                        2
      Based upon the confusion created and representations made regarding the

modular home, together with the failure to disclose the lack of any relationship

between Jim Coleman Company and Living Modular, Dean purchased a concrete

modular home for $63,700 in October 2009, making a down payment of $30,000 for

delivery by Thanksgiving 2009. PX-6 (purchase order), 7 (initial deposit). Although

“Living Modular” was printed on the purchase order, it was completed by Bob Oaks,

a Jim Coleman Company employee with an office at Jim Coleman Company in

Houston. PX-6; 3 RR 46. Dean was even given a Jim Coleman Company pen with

which to sign the purchase order. 3 RR 58. A couple of weeks later, Dean paid an

additional $3,000 at Randy Coleman’s request. PX-8. He also incurred out-of-pocket

expenses of $14,659.38. PX-9.

      It was also represented to Dean by Jim Coleman Company employees that a

Jim Coleman Company employee, at Randy Coleman’s direction, could custom

design Dean’s modular home using a Jim Coleman Company computer program

located at Jim Coleman Company’s plant. 3 RR 34, 42-43. Following the purchase

order, the design for the modular home purchased by Dean was in fact customized by

a Jim Coleman Company employee using a Jim Coleman Company computer

program at the Jim Coleman Company plant. 3 RR 77, 86-87; PX-5.




                                         3
      The modular home was never delivered. 3 RR 36-37, 49, 53-54. Despite

repeated attempts by Dean to ascertain the status of his purchase order, followed by

attempts to learn why the home was never delivered, Dean was never given a straight

answer. Eventually, Randy Coleman, Wayne Coleman, and Bob Oaks quit returning

Dean’s calls. 3 RR 36-37, 49, 53-54.

      On the first morning of trial, Jim Coleman Company’s attorney suggested to

the jury for the first time that delivery of the home was disrupted by drug cartels in

Mexico. 2 RR 65. No evidence was ever offered to support this claim, and no one had

ever given Dean that as a reason. 3 RR 37. In fact, Dean specifically asked whether

there was risk entailed in the home being manufactured in Mexico and he was assured

there was not. Id. If he had been told otherwise, he would not have purchased the

home. 3 RR 41.

                          SUMMARY OF THE ARGUMENT

      The evidence is sufficient to support the Jury’s findings of DTPA liability and

damages as to Jim Coleman Company (and the trial court’s corresponding findings

against Randy Coleman). Among other violations, both Appellants, individually and

through vice-principals, knowingly violated the DTPA by causing confusion as to,

and misrepresenting, the source, sponsorship, approval, certification, affiliation,

connection, and status of Living Modular and the modular home in question, as well


                                          4
as Living Modular’s and the modular home’s association with, or certification by, Jim

Coleman Company. This was a producing cause of both benefit-of-the-bargain and

out-of-pocket damages incurred by Dean. The DTPA claims were distinct and

separate from any breach of contract claims, and the DTPA violations were

independent of any contractual relationship between the parties.

        Jim Coleman Company’s arguments that Dean failed to segregate his attorney

fees and that the evidence of attorney fees is conclusory were waived at trial and are

being raised for the first time on appeal. Even if those arguments had not been

waived, moreover, there was no duty to segregate attorney fees and the evidence of

fees is not conclusory.

        The final judgment does not award double or treble relief. It is plainly a joint

and several judgment, and Dean disavows any right to recover his damages more than

once.




                                            5
                                           ARGUMENT

I.     Sufficiency of the Evidence to Support Liability under the DTPA for
       Actual and Additional Damages

       A.      Introduction

       Appellants’ chief complaint is the sufficiency of the evidence to support

liability and damages for DTPA violations (Jim Coleman Company’s second and

third issues, and Randy Coleman’s first and second issues).2

       In order to establish liability under the DTPA, Dean had to show that (1) Jim

Coleman Company and Randy Coleman violated a specific provision of the Act; (2)

the violation was a producing cause of his injury; and (3) he relied on the false,

misleading or deceptive act or practice to his detriment. TEX. BUS. & COMM. CODE

§ 17.50(a)(1)(A, B). In that event, he is entitled to recover his economic damages,

court costs, and reasonable and necessary attorney’s fees. Id. at §§ 17.50(b)(1), (d).

Upon a “knowingly” finding, he may also recover “additional damages” of not more

than three times the amount of economic damages. Id. at § 17.50(b)(1).

       2
         In their briefing, both Appellants make reference more than once to Dean’s alternate claim
for breach of contract. In addition to the DTPA claims, an instructed verdict was also granted against
Living Modular, and a post-answer default judgment against Randy Coleman, for breach of contract.
4 RR 12-13, 22-24, 31. As to Jim Coleman Company, however, the trial court refused to submit
breach of contract to the jury, and that is not what the judgment against Jim Coleman Company is
based on. 4 RR 38-39; CR 363-66, 374. A DTPA claim is separate and distinct from an action on
an underlying contract, and is not dependent on any contractual relationship between the parties. E.g.
Hennessey v. Vanguard Ins. Co., 895 S.W.2d 794, 802-03 (Tex. App.—Amarillo 1995, writ denied)
(citing U.S. Fire Ins. Co. v. Millard, 847 S.W.2d 668, 672 (Tex. App.—Houston [1st Dist.] 1993, no
writ)). To the extent Dean discusses breach of contract herein, therefore, it only applies to Randy
Coleman.

                                                  6
      B.     Standard of Review

      The Court’s standard of review is well settled. When reviewing a legal

sufficiency or “no evidence” challenge, the Court determines “whether the evidence

at trial would enable reasonable and fair minded people to reach the verdict under

review.” In re Johnson, 340 S.W.3d 769, 775 (Tex. App.—San Antonio 2011, pet.

denied) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). The

Court views the evidence in the light most favorable to the verdict, crediting

favorable evidence if reasonable jurors could and disregarding contrary evidence

unless reasonable jurors could not. Id. at 775-76. Appellate courts will sustain a legal

sufficiency or “no evidence” challenge only when: (a) there is a complete absence of

evidence of a vital fact; (b) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact; © the evidence offered to

prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively

establishes the opposite of the vital fact. Id. at 776.

      By contrast, when reviewing a factual sufficiency challenge, the Court

considers all the evidence supporting and contradicting the finding. Id. The Court will

set aside the finding only if the evidence is so weak or the finding is so against the

great weight and preponderance of the evidence that it is clearly unjust. Id. “Jurors

are the sole judges of the credibility of the witnesses and the weight to give their


                                            7
testimony.” Id. (quoting City of Keller, 168 S.W.3d at 819)). “They may choose to

believe one witness and disbelieve another.” Id. “Reviewing courts cannot impose

their own opinions to the contrary.” Id. “Courts reviewing all the evidence in a light

favorable to the verdict thus assume that jurors credited testimony favorable to the

verdict and disbelieved evidence contrary to it.” Id.3

       The only witness to testify to liability and damages was Ralph Dean, and the

only documentary evidence admitted was that of the plaintiff. Randy Coleman was

of course not present at trial. As a sanction, in turn, Living Modular (who was

unrepresented by an attorney at trial and barred by law from representing itself pro

se) and Jim Coleman Company were not allowed to present any witnesses, a ruling

Jim Coleman Company has not challenged on appeal. See 2 RR 9-11, 17, 19, 22-23.

In reviewing the sufficiency of the evidence to support the jury’s liability and damage

findings, therefore, the Court is limited to Dean’s testimony and the plaintiff’s

exhibits. Not surprisingly, all of this evidence is favorable to the jury’s verdict.




       3
         Neither Randy Coleman nor Jim Coleman Company filed a motion for new trial that
included a factual sufficiency point or requested a new trial (post-verdict, Randy Coleman filed
nothing, while Jim Coleman Company filed only a motion for judgment notwithstanding the verdict
seeking rendition of a take nothing judgment, CR 379). Therefore, they have waived any factual
sufficiency challenge. TEX. R. CIV. P. 324(b)(2). Dean is only discussing the standard of review for
factual sufficiency out of an abundance of caution in the unlikely event the Court determines there
was no waiver.

                                                 8
      C.    Laundry List Violations

      The jury found that Jim Coleman Company committed one or more of the

following “laundry list” infractions contained in section 17.46(b) of the DTPA (and

the trial court made the same findings in default against Randy Coleman):

            (a) causing confusion or misunderstanding as to the
                source, sponsorship, approval, or certification of goods
                or services;

            (b) causing confusion or misunderstanding as to
                affiliation, connection, or association with, or
                certification by, another;

            (c) representing that goods or services have sponsorship,
                approval, characteristics, ingredients, uses, benefits, or
                quantities which they do not have;

            (d) representing that a person has a sponsorship, approval,
                status, affiliation, or connection which he does not
                have;

            (e) representing that an agreement confers or involves
                rights, remedies, or obligations which it does not have
                or involve;

            (f) 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.




                                          9
CR 362. See TEX. BUS. & COMM. CODE § 17.46(b)(2, 3, 5, 7, 12, 24). In finding the

laundry list violations by Jim Coleman Company, the jury was mindful that, as

instructed by the trial court:

             Jim Coleman Company can only act or fail to perform a
             required act through the action of an agent, servant or
             employee of Jim Coleman Company . . . . Liability for a
             corporation cannot be created by any act or failure to
             perform a required act by any person who is not an agent,
             servant or employee.

             For the Jim Coleman Company to be liable for damages
             caused by an Agent, Servant or Employee, such action or
             omission to act must be within the course of the agency or
             employment of the Agent, Servant or Employee.

CR 361. See e.g. Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 837 (Tex.

App.—Amarillo 1993, pet. denied). Under the law, Jim Coleman Company is liable

for an agent’s DTPA violations within the scope of his agency even if Jim Coleman

Company had no knowledge of the violations. Id. The evidence is more than ample

to support the jury’s finding that Jim Coleman Company, acting through its agents,

including vice-principals, violated the DTPA.

             1.     Source, sponsorship, approval . . . .

      Sections 17.46(b)(2, 3 & 5) of the Act are “primarily concerned with deception

in the origin or endorsement [or affiliation] of a good or service [or person].” See Cox

v. State, 448 S.W.3d 497, 505 (Tex. App.—Amarillo 2014, pet. pending) (construing


                                          10
subdivision (b)(2)). In the case at bar, the evidence is practically conclusive (there

being nothing to contradict it) that Jim Coleman company employees Randy

Coleman, Wayne Coleman, and Bob Oaks caused confusion as to, or misrepresented,

the source, sponsorship, approval, certification, affiliation, connection, and status of

Living Modular and the modular home in question, as well as Living Modular’s and

the modular home’s association with, or certification by, Jim Coleman Company.

      While the hunting show booth which first grabbed Dean’s attention had a

Living Modular sign, Randy Coleman handed Dean a Jim Coleman Company

business card with Randy’s name on it (not a Living Modular card) and told Dean he

was an executive with Jim Coleman Company, not Living Modular. PX-1; 3 RR

19-20, 22, 69-70. Wayne Coleman likewise said he was an executive with Jim

Coleman Company, not Living Modular. 3 RR 16-21.

      Consistent with this, the several occasions when Dean returned to Houston to

negotiate on a modular home took him each time to meet with Jim Coleman

Company employees at Jim Coleman Company facilities. Id. These facilities were

located on Jim Coleman Company premises and contained Jim Coleman Company

offices. Id. The Jim Coleman Company employees included Randy Coleman, who

said he was a vice-president and part owner of Jim Coleman Company; Wayne

Coleman, who also said he was an executive (vice-president) with Jim Coleman


                                          11
Company; and Bob Oaks, who helped out with sales at Jim Coleman Company. 3 RR

21, 26, 40-41, 55-57, 82, 84; PX-4. See PX-10 (Jim Coleman Company website

confirming Randy Coleman’s position and responsibilities with Jim Coleman

Company). Randy Coleman told Dean he maintained an office at these facilities. 3

RR 26, 40. See PX-1 (business card). Oaks was reachable through the Jim Coleman

Company switchboard.

      During these on-going negotiations, the Jim Coleman Company employees

represented to Dean that Jim Coleman Company (not Living Modular) could

manufacture and sell awnings for the modular home. 3 RR 41-42. See PX 2 (brochure

containing pictures of awnings). This was described as a “modular option.” Id. Jim

Coleman Company employees, including Randy Coleman, offered to Dean to make

such awnings. 3 RR 41-42.

      All of this caused Dean to believe that he would essentially be purchasing the

modular home from Jim Coleman Company, with which Living Modular was

affiliated and by which Living Modular was financially supported. 3 RR 42, 46-47,

56-58, 78, 85-90. Hence, there was confusion and misrepresentation as to the source,

sponsorship, approval, certification, affiliation, connection, and status of Living

Modular and the modular home in question, as well as their association with, or

certification by, Jim Coleman Company.


                                        12
      The jury’s verdict and the trial court’s judgment in the case at bar reflect the

rule that the DTPA only requires acquiescence to false representations of or

confusion caused by another regarding the defendant. Hennessey v. Vanguard Ins.

Co., 895 S.W.2d 794, 803 (Tex. App.—Amarillo 1995, pet. denied). In Hennessey,

the court of appeals held that the consumer had presented sufficient evidence of a

(b)(5) laundry list violation to withstand motion for summary judgment by showing

that the defendant company allowed its logo to appear on an unaffiliated company’s

contract with the consumer. Likewise in the case at bar, Jim Coleman Company

allowed its own vice-principals, Randy and Wayne Coleman, to operate Living

Modular on the business premises of Jim Coleman Company; to use Jim Coleman

Company employees, such as Bob Oaks, to help orchestrate the sale; and to represent

Jim Coleman Company’s availability and expertise to customize the modular home

with custom awnings and design modifications. That Randy and Wayne Coleman

were family members and vice-principals is particularly probative. Hennessey, 895

S.W.2d at 804 (“This is particularly true when there is a close relationship between

the party making the representation and the party whose sponsorship or approval is

being asserted.”).




                                         13
             2.     Characteristics, ingredients, uses, benefits, or quantities

      Likewise, these Jim Coleman Company employees misrepresented the

characteristics, ingredients, uses, benefits, or quantities of the modular home ordered

by Dean. For instance, they misrepresented that the home would be transported from

Mexico, delivered to the pad site laid out by Ralph Dean near Premont, and available

for the Dean family’s use and enjoyment. It was never delivered. The Deans have

never even seen in person the home they purchased, let alone enjoyed its use.

             3.     Rights, remedies, or obligations

      These Jim Coleman Company employees also misrepresented that an

agreement (the purchase order, as supplemented by the various verbal understandings

between the parties) conferred or involved rights, remedies, or obligations which it

did not have or involve. It was represented, for instance, that the purchase order gave

Dean the right to delivery of a fully fabricated modular home, as customized by a Jim

Coleman Company employee using a computer program at Jim Coleman company’s

plant in Houston. This of course never happened.

             4.     Failure to disclose

      The evidence shows that Jim Coleman Company employees failed to disclose

information concerning Living Modular which was known to them at the time Dean

entered into the transaction and that such failure was intended to induce Dean into the


                                          14
transaction. Specifically, Jim Coleman Company employees failed to disclose to

Dean, at any time, that Living Modular and Jim Coleman Company were not

affiliated and that Jim Coleman Company was not going to support, sponsor, or back

up in any way the manufacture, delivery, or end-quality of the modular home ordered

by him. They also failed to disclose the risks in fabricating modular homes in

Mexico.4

               5.     Jim Coleman Company’s Relationship to the Transaction was
                      Sufficient to Impose DTPA Liability on that Defendant

       A DTPA claim is separate and distinct from an action on an underlying

contract, and is not dependent on any contractual relationship between the parties.

E.g. Hennessey, 895 S.W.2d at 802-03 (citing U.S. Fire Ins. Co. v. Millard, 847

S.W.2d 668, 672 (Tex. App.—Houston [1st Dist.] 1993, no writ)).

       To impose DTPA liability on Jim Coleman Company, therefore, Dean only

needed to prove that (1) he sought goods or services by purchase or lease; (2) the

goods or services formed the basis for his complaint; and (3) Jim Coleman Company

       4
         Other than failure to disclose, intent is not relevant in this case. Appellants spend time
arguing that the evidence is insufficient to show that they intended to not honor the agreement to
fabricate and deliver the modular home at the time the agreement was made. Intent “has never been
an element of a DTPA ‘laundry list’ claim unless the specific provision requires intent.” Smith v.
Herco, Inc., 900 S.W.2d 852, 859 (Tex. App.—Corpus Christi 1995, writ denied). Other than a
failure to disclose claim, the DTPA requires a showing of intent only where the consumer is seeking
recovery of treble (additional) damages based on a recovery of both economic damages and mental
anguish, taken together. TEX. BUS. & COMM. CODE § 17.50(b)(1). Here, Dean did not recover mental
anguish damages, therefore he neither sought nor recovered any additional damages that take mental
anguish into account.

                                                15
(a) violated one or more of the laundry list practices in connection with the

transaction, or (b) sought a benefit from the transaction. Melody Homes Mfg. Co. v.

Barnes, 741 S.W.2d 349, 351 (Tex. 1987) (elements 1 & 2); Basic Energy Serv., Inc.

v. D-S-B Properties, Inc., 367 S.W.3d 254, 270 (Tex. App.—Tyler 2011, no pet.)

(element 3: “[P]laintiff must show its transaction was connected with the defendant

through (1) a representation by the defendant that reached the plaintiff or (2) a benefit

from the plaintiff’s transaction that reached the defendant.”); Todd v. Perry Homes,

156 S.W.3d 919, 922 (Tex. App.—Dallas 2005, no pet.) (element 3: “Where there is

no contractual privity between the defendant and the consumer, ‘the connection can

be demonstrated by a representation that reaches the consumer or by benefit from the

second transaction to the initial seller.”).

      It is undisputed that Randy Coleman, Wayne Coleman and Bob Oaks were all

employees of Jim Coleman Company. Jim Coleman Company’s employment of

Randy and Wayne Coleman as executives was admitted by vice-principals of Jim

Coleman company, namely Randy and Wayne Coleman, both of whom were vice-

presidents of Jim Coleman Company. See generally Treasure City v. Strange, 620

S.W.2d 811, 814 (Tex. Civ. App.—Dallas 1981, no writ) (citing Fort Worth Elevators

v. Russell, 70 S.W.2d 397, 406 (Tex. 1934)) (corporate officers are considered vice-

principals). It was these vice-principals of Jim Coleman Company who not only


                                           16
acquiesced in the appearance that Jim Coleman Company’s was affiliated with and

a sponsor of Living Modular, they actively fostered the appearance, and therefore the

confusion.

       D.      The Violations were a Producing Cause of Economic Damages

       The jury was properly instructed that producing cause is “a cause that was a

substantial factor in bringing about the damages, if any, and without which the

damages would not have occurred. There may be more than one producing cause.”

CR 362. See generally Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).

       The evidence is overwhelming that the enumerated violations of the DTPA by

Jim Coleman Company employees, including vice-principals Randy and Wayne

Coleman, were a producing cause of economic damages to Dean. He and his wife

Alisa paid out $33,000, and spent another $14,659.38 in out-of-pocket expenses, for

a modular home that was never delivered. Dean testified unequivocally that it was the

confusion and misrepresentations, coupled with his ignorance as an innocent

consumer, that led him to place $33,000 down on the modular home and incur the

related out-of-pocket expenses. But for the DTPA violations, the transaction never

would have occurred, and the measures of the damages suffered are classic benefit-

of-the-bargain and out-of-pocket.5
       5
        As to damages, Appellants assert in their briefs that the amount awarded exceeds the amount
pled. Compare CR 294-95 (total of $39,204 pled) with CR 364, 375 (total of $47,659.38 awarded).
While Dean did not seek or obtain a post-verdict trial amendment to conform the pleadings to the

                                                17
       E.      Appellants Knowingly Engaged in DTPA Violations

       Finally, Appellants challenge the sufficiency of the evidence to support the

jury’s finding that Jim Coleman Company knowingly engaged in violations of the

DTPA’s laundry list (and the trial court’s default finding to the same effect against

Randy Coleman). The evidence, however, is sufficient.

       Pursuant to the Act, the jury was instructed that a person acts “knowingly”

whenever he has “actual awareness of the falsity, unfairness, or deceptiveness of the

act or practice. Actual awareness may be inferred if objective manifestations indicate

that a person acted with actual awareness.” CR 363. See TEX. BUS. & COMM. CODE

§ 17.45(9). There was no objection to this instruction.

       Actual awareness may be inferred from the circumstances. E.g. K.C. Roofing

Co., Inc. v. Abundis, 940 S.W.2d 375, 377 (Tex. App.—San Antonio 1997, writ

denied). In essence, to act “knowingly” is the converse of acting inadvertently. See

Century 21 Real Estate Corp. v. Hometown Real Estate Co., 890 S.W.2d 118, 128

(Tex. App.—Texarkana 1994, writ denied).

       In the case at bar, Jim Coleman Company’s and Randy Coleman’s actual

awareness of its DTPA infractions may be inferred from the circumstances. Randy

Coleman’s awareness of what he was doing speaks for itself. As for Jim Coleman

verdict, Appellants never objected, either by motion to limit the judgment or motion for new trial.
Therefore, any challenge to the amount awarded has been waived. E.g. Siegler v. Williams, 658
S.W.2d 236, 240-41 (Tex. App.—Houston [1st Dist.] 1983, no writ).

                                                18
Company, two of the individuals violating the DTPA, Randy and Wayne Coleman,

were its vice-principals. Their knowledge was imputed to their principal. Living

Modular’s operations were conducted on the premises of Jim Coleman Company in

full view of the world. The offices were the same; the switchboard was the same; and

the custom designers were the same. If they had different hats, they kept them on the

hat rack and did not wear them when dealing with the public.

II.   Attorney Fees

      Appellants’ assault on the trial court’s award of attorney fees is two-fold:

(1) there was a failure to segregate between fees incurred to prosecute breach of

contract and the DTPA, and between fees incurred for prosecuting the three different

defendants, and (2) the testimony of attorney fees was supposedly “conclusory.”

Regarding segregation, that argument was waived at trial, and in any event, there was

no duty to segregate. Regarding the quality of the testimony itself, that argument has

been waived as well, and in any event, there was nothing “conclusory” about the

testimony.

      Two witnesses testified concerning attorney fees. The first was Charles Webb,

Mr. Dean’s attorney. The second was Fred Dreiling, a Corpus Christi trial attorney

who was called by Dean as an expert witness. Mr. Webb testified by narrative that a

reasonable hourly rate for his time was $250, and $120 for his associate (and son),


                                         19
Parker Webb. 3 RR 93-94. According to Mr. Webb, he had 92 hours in the case,

while his son had 33. Id. In turn, Mr. Dreiling testified that a reasonable hourly rate

for the DTPA case was $250; the range of reasonable fees for preparing and trying

the case was $25,000-$50,000; and for an appeal, $15,000-$25,000. 3 RR

108,110-12. Dreiling also testified that the fees would be the same for the breach of

contract claim. 3 RR 113. The jury awarded $26,900 for attorney fees through trial;

$15,000 for an appeal to the court of appeals; and $10,000 for proceedings in the

supreme court. CR 366.

      Appellants’ segregation argument has been waived. Jim Coleman Company

never objected to any of the testimony regarding attorney’s fees on the ground of

failure to segregate, nor was their any such objection to the charge. See 3 RR 92-95

(Webb’s testimony); 3 RR107-14 (Dreiling’s testimony); 4 RR 36-40 (objections to

charge). Absent that, any error regarding failure to segregate is waived. Green Int’l,

Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997); Hruska v. First State Bank, 747

S.W.2d 783, 785 (Tex. 1988); Cullins v. Foster, 171 S.W.3d 521, 535-36 (Tex.

App.—Houston [14th Dist.] 2005, pet. denied).

      Even if the argument was not waived, it is groundless. The duty to segregate

attorney’s fees exists only where at least some of the fees incurred “relate solely to

a claim for which such fees are unrecoverable.” Tony Gullo Motors I, L.P. v. Chapa,


                                          20
212 S.W.3d 299, 311 (Tex. 2006). Where the attorney’s fees incurred advanced both

a recoverable and a non-recoverable claim, there is no duty to segregate. Id. at

313-14. Here, the only two claims brought against the defendants were DTPA and

breach of contract, both of which allow for the recovery of attorney’s fees. No claims

were brought which do not allow for attorney’s fees. Moreover, Fred Dreiling

testified that the fees incurred for breach of contract were the same as those incurred

for the DTPA. There was no duty to segregate fees in this case.

      Turning to the quality of the testimony on attorney fees, this too is an argument

that has been waived. There was no objection to admissibility during the testimony

of either Charles Webb or Fred Dreiling; the issue was not raised at the end of the

trial through motion for directed verdict; it was not raised during objections to the

charge; it was not raised in the motion for judgment notwithstanding the verdict; and

it was not raised in a motion for new trial. The argument is being urged for the first

time on appeal. It is not timely.

      Moreover, the testimony at issue was not “conclusory.” In fact, Jim Coleman

Company actually lodged an objection during the testimony of Fred Dreiling that

Mr. Dreiling’s analysis of the Arthur Andersen factors was not relevant. 3 RR 109.

Of course, the trial court overruled the objection. Id. It appears, however, that Jim




                                          21
Coleman Company believed at trial that the testimony was becoming not too

conclusory, but too detailed and particularized!

III.   The Judgment does not Award Treble (or Double) Recovery

       Appellants argue that because the trial court’s judgment awards identical sums

of money against each of the three defendants, and does not employ the words

“jointly and severally,” it amounts to a treble recovery. Dean agrees with Appellants

that the injury sued upon was single and indivisible, but there is nothing in the

judgment to suggest that it is anything more than a joint and several judgment. If

Dean successfully collects any sums from Jim Coleman Company, he will not have

the right to then recover the same sums from Randy Coleman or Living Modular. The

only reason the judgment makes the award more than once is that the nature of the

liability of Randy Coleman (default) and Living Modular (instructed verdict) is

distinct from the liability of Jim Coleman Company (jury verdict).

       Appellants rely on Spillman v. Self Serve Fixture Co., Inc., 693 S.W.2d 656

(Tex. App.—Dallas 1985, writ ref’d n.r.e.). The judgment in Spillman, however, is

not quoted in the Fifth Court’s opinion, and most importantly, the sums awarded

there were not identical. There were two defendants. The award against one defendant

was for an amount that was the subject of a guaranty, while the award against the

other defendant was for that plus the balance remaining owed. In the case at bar, on


                                         22
the other hand, the sums awarded are identical and it is obvious that the injury

suffered, and the sums awarded for such, are single and indivisible. There is therefore

no potential for double recovery, which Dean disavows.

                                RELIEF REQUESTED

      Appellee Ralph Dean prays that the Court affirm the trial court’s judgment in

all things. He prays for all other relief to which he may be entitled.


                                        Respectfully submitted,

                                        DUNN WEATHERED COFFEY
                                        RIVERA & KASPERITIS, PC
                                        611 South Upper Broadway
                                        Corpus Christi, Texas 78401
                                        TEL: 361.883.1594
                                        FAX: 361.883.1599
                                        EMAIL: frank@weatheredlaw.com

                                        BY /s/ Frank Weathered
                                            Frank Weathered
                                            Texas State Bar No. 20998600

                                        ATTORNEY-IN-CHARGE FOR
                                        APPELLEE RALPH DEAN




                                          23
Of Counsel:

Charles C. Webb, Jr.
Texas State Bar No. 21039500
Parker S. Webb
Texas State Bar No. 24085648
WEBB CASON, PC
710 North Mesquite Street
Corpus Christi, Texas 78401-2312
TEL: 361.887.1031
FAX: 361.887.0903
EMAIL: charlie@wcctxlaw.com
EMAIL: parker@wcctxlaw.com

J. Michael Guerra
Texas State Bar No. 08581310
LAW OFFICE OF J. MICHAEL GUERRA
1600 E. Main Street, Suite 227
P.O. Box 1968
Alice, Texas 78333
TEL: 361.668.7344
FAX: 361.664.1003
EMAIL: jmguerra14@gmail.com




                       RULE 9.4(i)(3) CERTIFICATION

      I certify that the foregoing document complies with the typeface requirement
of Texas Rule of Appellate Procedure 9.4(e) because it has been prepared in a
conventional typeface no smaller than 14-point for text and 12-point for footnotes.
This document also complies with the word-count limitations of Texas Rule of
Appellate Procedure 9.4(i) because it contains 5,609 words, excluding those portions
exempted by Texas Rule of Appellate Procedure 9.4(i)(1).

                                                  /s/ Frank Weathered
                                                    Frank Weathered


                                        24
                          CERTIFICATE OF SERVICE

       This is to certify that on JUNE 30, 2015, this document was electronically filed
pursuant to TEX. R. CIV. P. 21(f)(1) and a true and correct copy was served on counsel
of record listed below through the electronic filing manager if the email address is on
file with the electronic filing manager, pursuant to TEX. R. CIV. P. 21a(a)(1). If the
email address of any attorney listed below is not on file with the electronic filing
manager, a true and correct copy of this document was served pursuant to TEX. R.
CIV. P. 21a(a)(2).

                                                    /s/ Frank Weathered
                                                      Frank Weathered

Mr. Paul R. Lawrence
LAWRENCE & BACA, PLLC
2180 North Loop West, Suite 510
Houston, Texas 77018
FAX: 713.864.0179
EMAIL: prlawrence@lbandd.com
Attorney for Appellants




                                          25
