                                  NO. 07-02-0013-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                 NOVEMBER 18, 2002

                         ______________________________


                            DIANA BUSTEED, APPELLANT

                                           V.

                    COLDSPRING-OAKHURST CONSOLIDATED
                   INDEPENDENT SCHOOL DISTRICT, APPELLEE


                       _________________________________

          FROM THE 411TH DISTRICT COURT OF SAN JACINTO COUNTY;

                  NO. 9,006; HONORABLE LEE ALWORTH, JUDGE

                        _______________________________

Before QUINN and REAVIS, JJ. and BOYD, S.J.*


      Diana Busteed challenges a judgment following a jury trial that Coldspring-Oakhurst

Consolidated Independent School District (COCISD) recover $8,999.93, plus interest and

attorney’s fees in the amount of $33,531 through the trial court, $5,000 through the Court


      *
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by
assignment.
of Appeals, and $5,000 for an appeal to the Texas Supreme Court. By three points of

error, Busteed contends the trial court erred in 1) allowing COCISD’s attorney to testify that

it was necessary to hire him because no one testified that COCISD agreed to pay

reasonable and necessary attorney’s fees and there was no suit on a contract, 2) allowing

the testimony of COCISD’s attorney because there were no records produced for cross-

examination though they were requested, and 3) awarding $33,531 for the trial of a simple

overpayment claim when the case was clearly over massaged for such a collection effort.

Based upon the rationale expressed herein, we affirm.


       Our factual review will be limited to the evidence necessary to complete our

analysis of the presented points directed to the award of attorney’s fees because Busteed

does not challenge the denial of any recovery on her counterclaims or that COCISD

recover $8,999.93 for its overpayment to her, plus interest, and does not question the

sufficiency of the evidence. By written contract for the school year 1993-1994, Busteed

was employed by COCISD for a term of one year. The contract did not specify the amount

of Busteed’s salary; however, paragraph 2 of the contract provided:


       The Board shall pay the Employee an annual salary according to the salary
       schedule to be adopted by the Board before the performance of this contract
       begins, but in no event less than the state minimum salary. The Employee’s
       salary includes consideration for any additional duties, responsibilities, and
       tasks except as provided in the District supplemental duty schedule.


Paragraph 1 of the contract provided in part:


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      The Employee agrees to accept payment of the annual salary in twelve
      equal monthly installments, payable on the same day of each month during
      the term of the contract . . . without any right to prepayment or lump-sum
      settlement. . . .


When the school board adopted the salary schedule for the subject school year, Busteed’s

monthly salary was fixed at $2,824.10; however, by inadvertence and mistake, COCISD

issued Busteed nine checks in the amount of $3,824.10 each, resulting in an overpayment

of $8,999.93.


      When efforts to resolve the mistaken payments were unsuccessful, COCISD filed

suit to recover the overpayment and also sought to recover reasonable attorney’s fees.

In response, Busteed alleged ratification of the overpayment, laches, negligence, and

estoppel. Busteed did not contend by special exception or otherwise that attorney’s fees

were not recoverable. Also, Busteed asserted a counterclaim under the Texas Debt

Collection Practices Act, now codified at sections 392.001 through 392.404 of the Texas

Finance Code. Following reversal of a summary judgment in favor of COCISD, upon jury

trial, the trial court instructed a verdict that Busteed take nothing on her counterclaim.

After receiving jury findings that Busteed had not retained the overpayment in good faith

and that she had not changed her position to her detriment in reliance thereon, the trial

court then received evidence on the question of attorney’s fees and the jury found $33,531

to be a “reasonable fee for the necessary services” of COCISD’s attorney through the trial

court, and $5,000 for an appeal to the Court of Appeals, and $5,000 for an appeal to the


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Texas Supreme Court. Accordingly, the trial court rendered judgment that COCISD

recover $8,9999.93, plus interest, and attorney’s fees as found by the jury.


       Considering Busteed’s points in logical rather than sequential order, we first

consider her third point by which she contends the trial court erred in awarding $33,531

for the trial of a simple overpayment claim of $8,999.93 when the case was clearly over

massaged for such a collection effort. We disagree. To preserve a complaint of factual

insufficiency of the evidence to support a jury verdict, a point of error must first be raised

by motion for new trial. See Tex. R. Civ. P. 324(b)(2). A legal insufficiency point must be

raised by (1) a motion for instructed verdict, (2) a motion for judgment notwithstanding the

verdict, (3) an objection to the submission of the issue to the jury, (4) a motion to disregard

the jury’s answer to a vital fact issue, or (5) a motion for new trial. See Cecil v. Smith, 804

S.W.2d 509, 510-11 (Tex. 1991).1 Accordingly, because Busteed did not properly present

her challenge to the amount of the attorney’s fees below, her appellate complaint is not

preserved for review. Point of error three is overruled.


       By her first point, Busteed contends the trial court erred in admitting the testimony

of the attorney for COCISD because there was no evidence that it was necessary that an

attorney be engaged and there was no suit on a contract. Then, by her second point she




       1
        See also W. Wendell Hall, Standards of Review in Texas, Challenges to the
Sufficiency of the Evidence in Jury Trials, 29 St. Mary’s Law Rev. 476-94 (1998).

                                              4
contends the admission of the attorney’s testimony was error because no records were

presented for purposes of cross-examination. We disagree.


       Before we commence our analysis, although multifarious, we first consider

Busteed’s contention that there was no suit on a contract. By its pleadings, COCISD

alleged a written contract that provided for payment of Busteed’s salary in twelve equal

monthly installments. In addition, the written contract was attached as an exhibit and

incorporated into the pleadings. Notwithstanding these allegations, Busteed did not

specially except to the allegation seeking recovery for attorney’s fees as required by Rules

90 and 91 of the Texas Rules of Civil Procedure. Accordingly, the contention presents

nothing for review. Roark v. Allen, 633 S.W.2d 804, 809-10 (Tex. 1982).


       Next, we consider Busteed’s challenge to the testimony of COCISD’s attorney that

1) there was no testimony that his services were required and no evidence that COCISD

agreed to pay a reasonable fee, and 2) no records were available to be used in cross-

examination. We consider the points to be a challenge that proper predicates were not

made to support the admission of the attorney’s testimony.


       The admission and exclusion of evidence is committed to the trial court’s sound

discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). A trial

court abuses its discretion when it acts without regard to any guiding rules or principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To obtain


                                             5
reversal, Busteed must show 1) the trial court did in fact commit error, and 2) the error was

reasonably calculated to cause and probably did cause rendition of an improper judgment.

Tex. R. App. P. 44.1(a)(1); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.

1989).


         We commence our analysis by considering whether recovery of attorney’s fees

requires evidence that the a) services of an attorney were necessary, b) that the party

must agree to pay a reasonable fee, and c) that records must be available for cross-

examination. Section 38.001 of the Texas Civil Practice and Remedies Code Annotated

authorizes a prevailing party in a lawsuit to recover reasonable attorney’s fees in eight

instances including suit on “an oral or written contract.” Also, section 38.002 sets out the

procedure for recovery of attorney’s fees. However, section 38.001 does not require

evidence that attorney’s fees were necessary or that the client agreed to pay them. See

Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex.App.--Dallas 1990, no writ)

(holding that unlike the provisions of Tex. Bus. & Com. Code Ann. § 17.50(d), which

requires that attorney’s fees must be necessary in a proceeding under the Deceptive

Trade Practice Act, section 38.001 only requires that the amount of attorney’s fees be

reasonable without reference to the necessity thereof); see also Prairie Valley Ind. School

Dist. v. Sawyer, 665 S.W.2d 606, 611 (Tex.App.--Fort Worth 1984, writ ref’d n.r.e.)

(holding that former article 2226 of Texas Revised Civil Statutes Annotated did not require




                                             6
evidence that attorney’s fees were necessary apart from testimony as to their

reasonableness).


      Busteed’s contention regarding production of records does not implicate the rule

that when applicable, a party seeking attorney’s fees must segregate the evidence

regarding those fees. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11

(Tex.1991). Moreover, neither section 38.001 nor section 38.002 requires that records

supporting the opinion as to reasonable fees be produced for purposes of cross-

examination. We have not overlooked Busteed’s contention that Black Lake Pipe Line Co.

v. Union Const. Co., 538 S.W.2d 80 (Tex. 1976) requires that records be produced for

purposes of cross-examination; however, that case is not controlling because the witness

did not refer to records or summaries to refresh his recollection and summaries of records

were not offered into evidence. Points one and two are overruled.


      Accordingly, the judgment of the trial court is affirmed.



                                         Don H. Reavis
                                           Justice

Do not publish.




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