REVERSE, RENDER, and REMAND; and Opinion Filed August 20, 2013.




                                                                  In The
                                             Court of Appeals
                                      Fifth District of Texas at Dallas
                                                       No. 05-10-01614-CV

                                           W. DAVID HOLLIDAY, Appellant

                                                                      V.

                           GREG WEAVER AND WENDY WEAVER, Appellees

                                 On Appeal from the County Court at Law No. 3
                                             Dallas County, Texas
                                     Trial Court Cause No. CC-07-07953-C

                                                              OPINION
                                  Before Justices Lang-Miers, Myers, and Richter 1
                                          Opinion by Justice Lang-Miers

       Wendy Weaver hired attorney W. David Holliday to pursue claims relating to a car

accident. Wendy and her husband, Greg, later sued Holliday alleging, among other things, that

he settled an insurance claim without the Weavers’ knowledge or consent and converted the

money for his personal use. After a three-day nonjury trial, the trial court found in favor of the

Weavers on their claims for breach of fiduciary duty, professional negligence, fraud, and

violation of the Texas Deceptive Trade Practices Act (DTPA). The Weavers elected to recover

on the DTPA claim, and the trial court rendered judgment against Holliday for damages,

       1
           The Honorable Martin E. Richter, Retired Justice, Fifth District Court of Appeals at Dallas, sitting by assignment.



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attorney’s fees, prejudgment interest, and court costs. We reverse the trial court’s judgment in

favor of the Weavers on their DTPA claim, render judgment for the Weavers on their breach of

fiduciary duty claim, and remand this case to the trial court for further proceedings consistent

with this opinion.

                                         BACKGROUND

       The Undisputed Facts

       Wendy was injured in a two-vehicle car accident in April 2001 when she was eight

months pregnant with the Weavers’ son, Cody. Wendy’s medical bills attributable to the accident

totaled approximately $19,000. The other car involved in the accident was rented from

Enterprise Leasing Company of DFW by a woman named Janice Young. At the time of the

accident, Young’s son, Nolan Hill, was driving the rented car and Young was a passenger.

       Holliday was a friend of Wendy’s father. Wendy hired Holliday a couple of weeks after

the accident to assert claims on her behalf for injuries she sustained in the accident. Under

Wendy’s fee agreement with Holliday, she agreed to pay him attorney’s fees totaling 33.33% “of

any recovery by settlement before filing suit,” or 40% “of any recovery by settlement after filing

suit.” Wendy and Holliday also agreed that no settlement or other disposition of any claim would

be made without Wendy’s approval.

       Holliday obtained $2,500 in first-party personal injury protection (PIP) coverage for

Wendy from State Farm, the Weavers’ insurance company, and forwarded that check to the

Weavers. He also filed a lawsuit against Young, Hill, and Enterprise. Enterprise moved for

summary judgment, and Holliday signed an agreed order granting summary judgment in favor of

Enterprise. Holliday nonsuited Young, and the trial court entered a default judgment against Hill

for $679,000. Hill later filed for bankruptcy, and the judgment against him was discharged in the

bankruptcy proceeding.

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       Without the Weavers’ knowledge, Holliday sent a demand letter to the Weavers’

insurance company for uninsured motorist coverage in the amount of policy limits of $20,000

each for Wendy and Cody, or a total demand of $40,000. Two days later, State Farm issued a

check for $20,000 made payable to Wendy, Greg, and Holliday. A few days after receiving the

check from State Farm, Holliday or his wife (who was also his legal assistant) signed the

Weavers’ names to the back of the check and deposited it in Holliday’s client trust account.

Holliday wrote himself a check for $8,833.33, representing 40% of the $20,000 payment under

the Weavers’ uninsured motorist policy ($8,000) and 33.33% of the $2,500 PIP payment

($833.33). Holliday kept the remainder of the settlement money in his trust account, and there

was a period of time when the balance in Holliday’s client trust account fell below the amount of

the remainder. The $20,000 from State Farm is at the center of the Weavers’ claims against

Holliday.

       Testimony About the $20,000 Payment From State Farm

       Wendy testified that communications with Holliday broke down, and in January 2005 she

called State Farm to inquire about the status of any claims relating to her car accident. She

learned that State Farm had mailed a check to Holliday in June 2004 for $20,000 made payable

to Holliday and the Weavers and that the check had been endorsed and cashed two days later.

The Weavers discharged Holliday and demanded an accounting from him, at which time he

apparently made payments to certain medical providers, including multiple providers whose bills

had already been paid. Holliday provided an accounting to the Weavers and wrote them a check

for the amount of the State Farm settlement minus his fees, expenses, and payments to the

medical providers.




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       According to the Weavers, Holliday did not tell them about the payment and they learned

about it for the first time when Wendy called State Farm directly. According to Holliday, he

obtained the Weavers’ consent to accept the $20,000 payment and sign their names on it before

he signed and deposited the check. He also testified that he met with the Weavers at his office in

August 2004, and during that meeting the Weavers decided to let Holliday keep their portion of

the $20,000 to fund another lawsuit against Enterprise.

       The Trial Court’s Findings and Judgment

       Following a nonjury trial, the trial court issued 40 findings of fact and 10 conclusions of

law, including the following:

           •   Holliday breached his fiduciary duty to the Weavers and the appropriate remedy
               was “complete disgorgement of Holliday’s fee including certain expenses, which
               total $10,786.84”;

           •   Holliday committed professional negligence and fraud, and each of those claims
               resulted in $10,786.84 in damages to the Weavers;

           •   Holliday violated the DTPA and the Weavers suffered actual damages of
               $10,786.84; and

           •   Holliday knowingly engaged in unconscionable conduct.

       The Weavers elected to recover on their DTPA claims, and the trial court awarded

$10,786.84 in additional damages under the DTPA as a result of Holliday’s unconscionable

conduct. The total amount of damages awarded in the judgment was $21,573.68, plus $30,000 in

attorney’s fees through trial, and up to $23,500 in conditional appellate attorney’s fees.

                                        ISSUES ON APPEAL

       Holliday raised 32 issues in his pro se amended appellant’s brief and generally

challenged the sufficiency of the evidence to support most of the trial court’s findings of fact. He

also challenged every aspect of the trial court’s judgment, including the award of attorney’s fees.

However, Holliday hired appellate counsel to prepare and file his reply brief and to present oral

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argument. In his reply brief, Holliday relinquished his challenge to the sufficiency of the

evidence to support liability findings on the non-negligence claims, and he narrowed his issues

on appeal to four: (1) there is no evidence to support the DTPA or fraud damages; (2) there is

legally insufficient evidence to support the negligence judgment because there is no evidence of

collectability; (3) the trial court impermissibly ordered disgorgement of amounts paid to medical

providers; and (4) the DTPA and fraud claims are impermissibly fractured claims for

professional negligence.

                                     STANDARD OF REVIEW

       Findings of fact made after a bench trial have the same force and effect as jury findings.

Jamison v. Allen, 377 S.W.3d 819, 823 (Tex. App.—Dallas 2012, no pet.). The applicable

standard of review is also the same as that applied in the review of jury findings. Id.; see IKB

Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997). A party appealing

from a nonjury trial must complain of specific findings and conclusions of the trial court because

a general complaint against the judgment does not present a justiciable question. IKB, 938

S.W.2d at 445.

       In reviewing the legal sufficiency of the evidence to support a trial court’s finding, we

must determine whether the evidence would enable reasonable and fair-minded people to reach

the finding under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We

consider the evidence in the light most favorable to the court’s finding and indulge every

reasonable inference that supports it. Id. at 822. We credit favorable evidence if a reasonable

factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id.

When there is a complete absence of a vital fact, or the evidence of a vital fact is no more than a

scintilla, the evidence is legally insufficient. Id. at 810. In conducting our review, we must bear



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in mind that the factfinder is the sole judge of the witnesses’ credibility and the weight to be

given to their testimony. Id. at 819.

                                                               DISCUSSION

           In issue one, Holliday argues that the evidence is legally insufficient to support the award

of $10,786.84 in damages under the DTPA because there is no evidence of actual damages. More

specifically, he argues that the damages award was really disgorgement of money from the State

Farm settlement that was not paid to the Weavers, and that the Weavers were not entitled to this

relief because they did not plead or seek equitable relief under the DTPA. 2 He also contends that

there is no evidence the DTPA violations were a producing cause of damages to the Weavers. In

response, the Weavers argue that the award of damages under the DTPA was proper because

Holliday’s fee and the payment of the medical bills “flow directly and naturally from [his]

wrongful acts.”

           A consumer may recover “economic damages” under the DTPA. TEX. BUS. & COM.

CODE ANN. §§ 17.50(b)(1), 17.45(11) (West 2011). Courts have construed “economic damages”

synonymously with “actual damages” under the common law. See Beaumont v. Basham, 205

S.W.3d 608, 619 & n.2 (Tex. App.—Waco 2006, pet. denied). To recover under the DTPA, a

consumer must prove that the defendant’s wrongful conduct was the producing cause, or cause in

fact, of the consumer’s damages. TEX. BUS. & COM. CODE ANN. § 17.50(a); Latham v. Castillo,

972 S.W.2d 66, 69 (Tex. 1998). “Producing cause is ‘a substantial factor which brings about the

injury and without which the injury would not have occurred.’” Vuong v. Luk, No. 01-11-00178-




           2
              Citing Texas Rule of Appellate Procedure 38, the Weavers also argue that Holliday waived this issue due to inadequate briefing in
his amended pro se brief. We disagree. Holliday cited the standard for legal sufficiency and argued that there is no evidence to support the trial
court’s finding of $10,786.84 in actual damages. As a result, we will address the merits of this issue.



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CV, 2013 WL 174560, at *7 (Tex. App.—Houston [1st Dist.] Jan. 17, 2013) (mem. op.) (quoting

Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995)).

       In this case, the damages awarded for the DTPA violations are the same as the damages

awarded for the Weavers’ other claims—essentially, the attorney’s fees received by Holliday and

certain medical payments deducted from the State Farm settlement before the remainder was

paid to the Weavers. With respect to Holliday’s acceptance of the payments from State Farm, the

court found that Holliday settled the Weavers’ claim, paid himself, and kept the remainder of the

settlement proceeds for a period of time, all without the Weavers’ knowledge. The court also

found that Holliday or his wife forged the Weavers’ signatures on the back of the check.

       The court found that Holliday acted unconscionably, but the court did not find that the

Weavers were entitled to more money from State Farm than Holliday recovered, or that

Holliday’s acceptance of those payments or his forging of the Weavers’ signatures precluded the

Weavers from receiving other money owed to them. And although the trial court found that

Holliday used the Weavers’ money for his personal purposes without their knowledge or

consent, the Weavers acknowledged that Holliday ultimately paid them $7,314 from those funds.

       Additionally, it is undisputed that Wendy had a fee agreement that entitled Holliday to

33.33% of any recovery before suit was filed and 40% of any recovery after suit was filed.

Although the parties disagreed about whether Holliday was entitled to the higher percentage,

there is no evidence that his acceptance of the settlement payments from State Farm, or his

$8,833.33 in attorney’s fees, constituted a pecuniary loss to the Weavers that was caused by

Holliday’s DTPA violations as opposed to the other claimed wrongful conduct. See Doe, 907

S.W.2d at 481 (stating DTPA plaintiff has to show defendant’s DTPA violation “was the cause

in fact of the plaintiff’s injury” or an “unbroken causal connection” between DTPA conduct and



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alleged injuries); James V. Mazuca & Assoc. v. Schumann, 82 S.W.3d 90, 95 (Tex. App.—San

Antonio 2002, pet. denied) (same) (citing Doe, 907 S.W.2d at 481); cf. DeBakey v. Staggs, 605

S.W.2d 631, 633 (Tex. Civ. App.—Houston [1st Dist.] 1980), writ ref’d n.r.e., 612 S.W.2d 924

(Tex. 1981) (concluding plaintiff proved damages in the amount of $170 in additional attorney’s

fees caused by defendant’s failure to complete name change request as agreed).

           With respect to the trial court’s finding that Holliday used $1,953.51 to pay Wendy’s

medical bills that the Weavers claimed had already been paid, we likewise conclude that this

amount does not constitute a pecuniary loss incurred as the result of Holliday’s DTPA violations

as opposed to other claimed wrongful conduct.

           Consequently, we conclude that the evidence is legally insufficient to support the award

of damages under the DTPA because there is no evidence that the DTPA violations were a

producing cause of the Weavers’ claimed pecuniary loss. See City of Keller, 168 S.W.3d at 810

(evidence is legally insufficient if record demonstrates complete absence of vital fact or evidence

to prove vital fact is no more than a scintilla). We resolve issue one in Holliday’s favor.

                                                          Remaining Issues

           Because of our disposition of issue one, we do not need to consider issue four in which

Holliday contended that the Weavers’ DTPA claim was a fractured professional negligence

claim. In his remaining issues, Holliday does not challenge the judgment against him for

$10,786.84 on the Weavers’ claim for breach of fiduciary duty. As his counsel explained during

oral argument, Holliday’s position is that this Court should reverse the judgment on the DTPA

claim, “render judgment on breach of fiduciary duty for $10,786.84, and be done.” 3


           3
             In his reply brief Holliday argued that if we render judgment on the breach of fiduciary duty claim we should give the Weavers an
option of accepting a remittitur of $1,953.31 because the trial court improperly extended the remedy of fee forfeiture to sums paid to third-party
providers. During oral argument Holliday took the position that we should “render judgment on breach of fiduciary duty for $10,786.84,” which
includes the $1,953.31. As a result, we will not address his remittitur argument.



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Consequently, we do not consider Holliday’s other issues because, if he did not prevail, those

claims would not provide the Weavers any greater relief than the relief available on their claim

for breach of fiduciary duty. See Boyce Iron Works, Inc. v. Sw. Bell. Tel. Co., 747 S.W.2d 785,

787 (Tex. 1988) (“When a party tries a case on alternative theories of recovery and a jury returns

favorable findings on two or more theories, the party has a right to a judgment on the theory

entitling him to the greatest or most favorable relief.”).

                                            DISPOSITION

       We reverse the trial court’s judgment in favor of the Weavers on their claim for

violations of the DTPA, which includes the award of actual damages, additional damages,

attorney’s fees, interest, and court costs. See Gulf States Util. v. Low, 79 S.W.3d 561, 567 (Tex.

2002) (“Without any actual-damages recovery [in a DTPA claim], a party is not entitled to an

attorney’s fees recovery.”). We render judgment for the Weavers in the amount of $10,786.84

on their claim for breach of fiduciary duty. We remand this case to the trial court for the

calculation of court costs and interest.




                                                      /Elizabeth Lang-Miers/
                                                      ELIZABETH LANG-MIERS
                                                      JUSTICE

101614F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

W. DAVID HOLLIDAY, Appellant                       On Appeal from the County Court at Law
                                                   No. 3, Dallas County, Texas
                                                   Trial Court Cause No. CC-07-07953-C.
No. 05-10-01614-CV         V.
                                                   Opinion delivered by Justice Lang-Miers,
                                                   Justices Myers and Richter participating.
GREG WEAVER AND WENDY
WEAVER, Appellees

       In accordance with this Court’s opinion of this date, the judgment of the trial court in
favor of appellees Greg Weaver and Wendy Weaver on their claim against appellant W. David
Holliday for violations of the Texas Deceptive Trade Practices Act is REVERSED. We
RENDER judgment in the amount of $10,786.84 in favor of appellees Greg Weaver and Wendy
Weaver against appellant W. David Holliday on the Weavers' claim for breach of fiduciary duty.
We REMAND this cause to the trial court for the calculation of court costs and interest.

        It is ORDERED that appellees Greg Weaver and Wendy Weaver recover their costs of
this appeal from appellant W. David Holliday.

Judgment entered this 20th day of August, 2013.




                                                   /Elizabeth Lang-Miers/
                                                   ELIZABETH LANG-MIERS
                                                   JUSTICE




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