                            NUMBER 13-10-00224-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

JOHN F. HELM,                                                             Appellant,


                                          v.
ARTIE G. KINGSTON,                                                        Appellee.


                 On appeal from the 319th District Court of
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Garza and Benavides
               Memorandum Opinion by Justice Garza
      This is an appeal from a judgment awarding damages and attorney‘s fees in a

construction dispute. A jury found appellant, John F. Helm, liable for misrepresentation

under the Deceptive Trade Practices-Consumer Protection Act (―DTPA‖), TEX. BUS. &

COM. CODE ANN. §§ 17.41–.63 (West 2011), and awarded damages of over $75,000,
plus $95,000 in attorney‘s fees, to appellee Artie G. Kingston. By seven issues on

appeal, which we reorganize as five, Helm contends: (1) the Residential Construction

Liability Act (―RCLA‖), TEX. PROP. CODE ANN. §§ 27.001–.007 (West Supp. 2010),

applied to Kingston‘s claims; (2) Kingston‘s claims were barred by limitations and

repose; (3) the evidence was insufficient to support the judgment; (4) Helm should have

been permitted to assert the corporate form as a defense and to join necessary third

parties; and (5) the award of attorney‘s fees was contrary to law. Kingston raises one

issue on cross-appeal. We affirm.

                                            I. BACKGROUND

      In 1995, Kingston purchased a residential unit in Greenway Townhouses in

Corpus Christi, Texas, from Greenway Development, Inc. (―GDI‖), for $78,300.

Kingston claims that, prior to the purchase, he was advised by Helm, GDI‘s president,

that the unit at issue was an ―extremely well-built‖ two-bedroom townhouse.          After

moving in, Kingston discovered what he believed to be defects in the construction of the

unit. Kingston notified GDI of the defects. GDI attempted to repair the defects but

Kingston was not satisfied, so Kingston hired an attorney and sent Helm a DTPA notice

letter on September 24, 1996, requesting $4,356 in damages and $150 in attorney‘s

fees.1 See TEX. BUS. & COM. CODE ANN. § 17.505(a) (generally requiring plaintiff to give


      1
          The notice letter complained of the following defects:

      1.        The end of certain shoe moldings are not painted.

      2.        The front door frame is not properly painted.

      3.        Sheetrock nails are working out and are exposed.

      4.        Sheetrock seams which were coming apart have been repaired but not
                repainted.


                                                     2
defendant sixty days‘ written notice before filing suit under the DTPA).

        Subsequently, on March 13, 1997, Kingston filed suit, asserting claims of fraud

and negligent misrepresentation as well as various DTPA claims.                                Kingston named

Helm, GDI, GDI‘s construction manager, Dean Park, and Park‘s company, Construction

and Real Estate Investment Corporation, Inc. (―CREIC‖), as defendants. The original

petition alleged that Helm ―fraudulently induced Kingston to believe that the townhouse

evidenced the highest quality of workmanship when in fact the quality of workmanship

was atrocious.‖ Helm answered and later brought a counterclaim against Kingston for,

among other things, filing a frivolous suit.2 See TEX. PROP. CODE ANN. § 27.0031 (―A

party who files a suit under this chapter that is groundless and brought in bad faith or for

purposes of harassment is liable to the defendant for reasonable and necessary

attorney‘s fees and court costs.‖).3

        The case proceeded to trial in 1999. After Kingston presented his case-in-chief,

the trial court granted Helm‘s motion for directed verdict, ruling that the evidence was

        5.        Utility room is not to specification (too small).

        6.        The bathtub was constructed with a flaw or damaged prior to or during
                  installation; someone tried to patch the flaw, putting some sort of filler in place of
                  the enamel which was chipped away.

        7.        The back door frame is not properly painted.

        8.        There are noticeable dirty fingerprints on ceiling beam left, presumably, by some
                  craftsman.

        9.        Ceiling fan area not painted where sheetrock repair was done.

        10.       Defective fireplace floor tile installation (tile broken at time of installation).
        2
            Helm later filed an amended counter-petition naming CREIC as a counter-defendant.
        3
         In 1998, Park filed a notice with the trial court indicating that he had filed for bankruptcy and that
his debts had been discharged by the bankruptcy court. As a result, Kingston non-suited Park.
Additionally, after the 1999 directed verdict in favor of Helm, Kingston non-suited GDI, and Helm non-
suited CREIC.


                                                          3
insufficient as a matter of law to find Helm liable in his individual capacity. Kingston

appealed, and we reversed. Kingston v. Helm, 82 S.W.3d 755 (Tex. App.—Corpus

Christi 2002, pet. denied). We concluded that Helm‘s status as an agent of GDI did not

insulate him from personal liability for his own tortious conduct. Id. at 758–64. We also

held that article 2.21 of the Texas Business Corporations Act does not require the

corporate veil to be pierced in order to hold a corporate agent individually liable for the

agent‘s own tortious conduct. Id. at 764–67; see Act of June 17, 1983, 68th Leg., R.S.,

ch. 442, 1983 TEX. GEN. LAWS 2566–67 (expired Jan. 1, 2010) (current version at TEX.

BUS. ORGS. CODE ANN. § 21.223 (West Supp. 2010)).

       A second trial was not held until 2009. The primary issue at trial was whether,

under the Corpus Christi city code, the unit purchased by Kingston was actually an

apartment—not a townhouse—by virtue of the fact that the unit had a one-hour firewall

rather than a two-hour firewall.        The jury found Helm liable on the DTPA

misrepresentation claim, finding that Helm ―engage[d] in [a] false, misleading, or

deceptive act or practice that [Kingston] relied on to his detriment and that was a

producing cause of damages to [Kingston].‖ See TEX. BUS. & COM. CODE ANN. § 17.46.

In a separate question, the jury declined to find that Helm acted ―knowingly‖ in making

the misrepresentations. The jury awarded $75,862.29 to Kingston, representing the

―reasonable and necessary cost to repair‖ the unit at issue so that it is ―the property it

was represented to be.‖ The jury additionally awarded $95,000 in trial attorney‘s fees to

Kingston, as well as $10,000 upon an unsuccessful appeal to this Court and $3,000

upon an unsuccessful appeal to the Texas Supreme Court. The final judgment which

was rendered on the verdict included $48,770.09 in pre-judgment interest as well as five



                                            4
percent post-judgment interest accruing from the date of the judgment until the time the

judgment is paid. This appeal followed.

                                      II. DISCUSSION

A.     Residential Construction Liability Act

       By his first issue, Helm argues that Kingston failed to satisfy the requirements of

the RCLA. He claims that Kingston‘s failure to ―plead or prove any allegations under the

RCLA‖ ―preempts‖ Kingston‘s claims for statutory fraud and DTPA violations, and that

the application of the RCLA limits Kingston‘s damages.

       The version of the RCLA in effect at the time Kingston filed suit expressly applied

to ―any action to recover damages resulting from a construction defect‖ other than

claims for personal injury, survival, wrongful death, or damage to goods. Act of June

18, 1993, 73rd Leg., R.S., ch. 797, § 3, 1993 TEX. SESS. LAW SERV. 3171, 3172

(effective Aug. 30, 1993) (amended 1999, 2003) (current version at TEX. PROP. CODE

ANN. § 27.002). ―Construction defect‖ was defined in part as ―a matter concerning the

design, construction, or repair of a new residence, of an alteration of or addition to an

existing residence, or of an appurtenance to a residence, on which a person has a

complaint against a contractor.‖ Id. § 1, 1993 TEX. SESS. LAW SERV. at 3171 (current

version at TEX. PROP. CODE ANN. § 27.001).

       The statute contained provisions requiring a claimant to give a contractor sixty

days‘ notice of a construction defect claim, and permitting the contractor to then make a

written settlement offer to the claimant within 45 days of receiving the notice. Id. § 5,

1993 TEX. SESS. LAW SERV. at 3172 (current version at TEX. PROP. CODE ANN. § 27.004).

If the claimant ―unreasonably reject[ed]‖ a contractor‘s settlement offer, or did not allow



                                             5
the contractor a reasonable opportunity to repair the defect, the claimant‘s damages

would then be capped at ―the reasonable cost of repairs which are necessary to cure

the construction defect and which are the responsibility of the contractor,‖ and only

attorney‘s fees incurred before the rejection of the offer would be recoverable.            Id.

―Contractor‖ was defined as:

       a person contracting with an owner for the construction or sale of a new
       residence constructed by that person or of an alteration of or addition to
       an existing residence, repair of a new or existing residence, or
       construction, sale, alteration, addition, or repair of an appurtenance to a
       new or existing residence [or] a risk retention group registered under
       Article 21.54, Insurance Code, that insures all or part of a contractor‘s
       liability for the cost to repair a residential construction defect.

Id. § 1, 1993 TEX. SESS. LAW SERV. at 3171.

       In response, Kingston contends that: (1) Helm was not a ―contractor‖ as defined

by the statute; (2) Helm waived the issue by failing to tender a written offer of settlement

within 45 days of being notified of Kingston‘s claims, see id. § 5, 1993 TEX. SESS. LAW

SERV. at 3172; and (3) Helm waived the issue by failing to request a jury instruction as

to whether Helm was a ―contractor‖ under the statutory definition.

       We agree that Helm has waived this issue. Texas Rule of Civil Procedure 279

states that ―[u]pon appeal all independent grounds of recovery or of defense not

conclusively established under the evidence and no element of which is submitted or

requested are waived.‖       TEX. R. CIV. P. 279.      First, the evidence at trial did not

conclusively establish Helm‘s status as a ―contractor‖ under the statutory definition. In

fact, Helm himself testified at a pre-trial hearing that ―I was not a contractor‖ with respect

to Kingston‘s unit; he additionally stated at trial that ―I don‘t do building,‖ explaining that

his role instead was to secure financing, and that Park was tasked with the actual



                                              6
construction of the unit at issue. Second, Helm did not submit or request the inclusion

in the jury charge of any question related to his RCLA defense. Accordingly, Helm‘s

complaints on appeal regarding the RCLA are waived under rule 279. See id. We

overrule his first issue.

B.      Limitations and Repose

        Helm contends by his second issue that a new trial should be granted because

Kingston‘s claims regarding the unit‘s firewall were barred by limitations and the statute

of repose.

        As noted, Kingston‘s original petition, filed on March 13, 1997, alleged that Helm

―fraudulently induced Kingston to believe that the townhouse evidenced the highest

quality of workmanship when in fact the quality of workmanship was atrocious.‖ The

original petition elaborated as follows:

        The following constitute, without limitation, examples of the workmanship
        in the townhouse: the bathtub is installed in a flawed and patched
        condition; the fireplace tile has cracked as a result of improper installation;
        painting throughout the townhouse is improperly done; there are defects in
        the vinyl flooring and in the driveway in back of the townhouse; nails are
        working out of the sheetrock resulting in the exposure of nail heads;
        fingerprints can be evidenced on a ceiling beam; and the carport and
        townhouse roof are not properly flashed together.

Kingston‘s tenth amended petition, filed on May 1, 2007, retained those allegations and

also included an allegation that the unit at issue ―was not constructed as a townhouse

with two-hour firewalls and other features required by the City of Corpus Christi Building

Code . . . .‖4 Helm argues that the claims related to the firewall are barred because


        4
           Kingston‘s thirteenth amended petition, his live pleading at trial, contained the following revised
allegation: ―[T]he construction of the [unit at issue] constitutes a fire hazard because it does not have
two[-]hour resistant firewalls that are required for townhouses by the Standard Building Code adopted and
utilized by the City of Corpus Christi, Texas.‖


                                                      7
Kingston ―had knowledge of a defect in the firewall‖ as early as 1997 but did not assert

them until 2007.

       DTPA claims are governed by a two-year statute of limitations. TEX. BUS. & COM.

CODE ANN. § 17.565. Under the statute, all such claims must be brought ―within two

years after the date on which the false, misleading, or deceptive act or practice occurred

or within two years after the consumer discovered or in the exercise of reasonable

diligence should have discovered the occurrence of the false, misleading, or deceptive

act or practice.‖ Id. However, an amended or supplemented pleading ―that changes the

facts or grounds of liability or defense‖ is not subject to limitations ―unless the

amendment or supplement is wholly based on a new, distinct, or different transaction or

occurrence.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 16.068 (West 2008).

       Helm points to Sanders v. Construction Equity, Inc., 42 S.W.3d 364 (Tex. App.—

Beaumont 2001, no pet.), in arguing that Kingston‘s failure to specifically allege his

firewall-related claims until 2007 bars those claims. In Sanders, the plaintiffs originally

alleged only that there was ―a defective fireplace and gas logs that did not work

properly.‖ Id. at 366. After the statute of limitations had run, the plaintiffs filed an

amended petition making additional complaints regarding the construction of their

house. Id. The court held that the new claims were time-barred because they were

―wholly based on a new, distinct, or different transaction or occurrence.‖ Id. at 369.

Specifically, the court found that:

       While it is true that the defects added by the second amended petition all
       arise out of the building and the sale of the house, the original pleading
       was specific. The Sanders[es] complained only of the ―defective fireplace
       and/or logs‖ and the consequential damages flowing from those defects.
       The new complaints do not relate to the fireplace and logs at all, but are a



                                            8
        myriad of complaints terminating in the conclusion by the Sanders[es] that
        the house was just poorly constructed overall.

Id. Helm argues that the same reasoning applies here because ―the construction of a

two[-]hour versus a one[-]hour firewall is an entirely different defect than was claimed in

the original petition.‖ Because Sanders is readily distinguishable, we disagree. Here,

unlike in Sanders, Kingston‘s original petition contained a broad, general allegation that

―the quality of workmanship‖ in the unit at issue ―was atrocious.‖                          The specific

allegations contained in the original petition were explicitly set forth ―without limitation‖

as mere examples of construction defects. And, Kingston‘s later complaint regarding

the firewall was not ―wholly based on a new, distinct, or different transaction or

occurrence‖ than that alleged in his original petition; rather, that complaint related back

to Kingston‘s original contention regarding the overall quality of workmanship.                        The

complaint regarding the firewall was therefore not barred by the statute of limitations.

        Helm further contends that the statute of repose5 applicable to the construction or

repair of improvements to real estate bars Kingston‘s firewall claims.                      That statute

provides that suit ―against a person who constructs or repairs an improvement to real

property‖ based on a claim ―arising out of a defective or unsafe condition of the real

property or a deficiency in the construction or repair of the improvement‖ must be

brought ―not later than 10 years after the substantial completion of the improvement.‖

TEX. CIV. PRAC. & REM. CODE ANN. § 16.009(a) (West 2002).6 However, repose is an


        5
           ―A statute of repose in a general sense is a legislative enactment which sets a period of time
within which an action may be brought. A statute of limitation is a category of repose statute.‖ Johnson v.
Ft. Worth, 774 S.W.2d 653, 654 (Tex. 1989) (citations omitted). In a more specific sense, a statute of
repose runs from a specified date without regard to accrual of any cause of action, unlike traditional
limitations provisions, which begin running upon accrual of a cause of action. Trinity River Auth. v. URS
Consultants, 889 S.W.2d 259, 261 (Tex. 1994).
        6
            The statute further states that, if the claimant presents a written claim for damages within the

                                                      9
affirmative defense which must be pled and proven by the defendant. Ryland Group,

Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996); Ehler v. LVDVD, L.C., 319 S.W.3d 817,

821 (Tex. App.—El Paso 2010, no pet.); Nexen Inc. v. Gulf Interstate Eng’g Co., 224

S.W.3d 412, 416 (Tex. App.—Houston [1st Dist.] 2006, no pet.).                        We agree with

Kingston that Helm has waived this issue by failing to plead it.

        Helm‘s second issue is overruled.

C.      Evidentiary Sufficiency

        By his third issue, Helm contends that, as a matter of law, his statement to

Kingston that the unit at issue was of ―good quality‖ cannot support a finding of

misrepresentation under the DTPA, and that any such statement was not a producing

cause of Kingston‘s damages. He further argues that Kingston ―completely failed to

mitigate his damages.‖

        We construe these arguments as challenges to the legal sufficiency of the

evidence supporting the jury‘s verdict. We will sustain such a challenge only if: (1)

there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of

law or of evidence from giving weight to the only evidence offered to prove a vital fact;

(3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the

evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson,

168 S.W.3d 802, 810 (Tex. 2005). We consider the evidence in the light most favorable

to the verdict, and indulge every reasonable inference that would support it. Id. at 822.

To establish a DTPA claim, Kingston was required to show:                         (1) that he was a


ten year period, the period is extended for two years after the claim is presented. TEX. CIV. PRAC. & REM.
CODE ANN. § 16.009(c) (West 2002). Moreover, if the claimant‘s alleged injury occurs in the tenth year of
the limitations period, the claimant may bring suit within two years after the day the cause of action
accrues. Id. § 16.009(d).


                                                   10
consumer7; (2) that Helm engaged in false, misleading, or deceptive acts; and (3) that

these acts constituted a producing cause of Kingston‘s damages. See TEX. BUS. & COM.

CODE ANN. § 17.50(a)(1); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,

478 (Tex. 1995).

        1.        Statement of Fact or Opinion

        Helm contends that his statement to Kingston that the unit at issue was of ―good

quality‖ was mere puffery or opinion, and therefore the evidence was insufficient to

establish that he engaged in a false, misleading, or deceptive act under the DTPA. See

Pennington        v.   Singleton,    606    S.W.2d       682,   687    (Tex.    1980)    (holding     that

―[m]isrepresentations, so long as they are of a material fact and not merely ‗puffing‘ or

opinion, are . . . actionable‖ under the DTPA); Autohaus v. Aguilar, 794 S.W.2d 459,

462 (Tex. App.—Dallas 1990, writ denied).

        Whether a statement is a statement of fact8 or merely one of opinion or mere

puffery depends on the circumstances in which the statement is made. Transport Ins.

Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex. 1995). Courts have generally considered

three factors in making this determination. Humble Nat’l Bank v. DCV, Inc., 933 S.W.2d

224, 230 (Tex. App.—Houston [14th Dist.] 1996, writ denied). First, the court examines

the specificity of the alleged misrepresentation.                   Id.    An imprecise or vague

representation may constitute a mere opinion. Id. Second, courts will compare the

knowledge of the buyer and the seller.               Id. (citing Autohaus, 794 S.W.2d at 463).


        7
            Helm does not contest the sufficiency of the evidence showing that Kingston was a consumer.
        8
           ―A statement of fact is one that (1) admits of being adjudged true or false in a way that (2)
admits of empirical verification.‖ Presidio Enters., Inc. v. Warner Bros. Distrib. Corp., 784 F.2d 674, 679
(5th Cir. 1986) (applying Texas law).


                                                    11
Whether a representation is merely an expression of opinion depends in part upon

whether the seller asserts a fact of which the buyer is ignorant, or merely states an

opinion or judgment on a matter on which the seller has no special knowledge and on

which the buyer may be expected to have an opinion and exercise his judgment. Id.

(citing Royal Business Machines, Inc. v. Lorraine Corp., 633 F.2d 34, 41 (7th Cir.

1980)); see U.S. Pipe & Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432,

436–37 (1937) (―Superior knowledge of seller, in conjunction with the buyer‘s relative

ignorance, operates to make the slightest divergence from mere praise into

representations of fact effective as a warranty.‖). Finally, courts look at whether the

representation pertains to a past or current event or condition, or to a future event or

condition. Humble Nat’l Bank, 933 S.W.2d at 230.9

        Considering the relevant factors, we find that Helm‘s statements are actionable

under the DTPA. We note first that, according to Kingston, Helm‘s representations went

beyond merely asserting that the unit was of ―good quality.‖ Rather, Kingston testified

at trial that during their meeting in 1997, Helm represented to him that the unit was an

―extremely well built . . . two-bedroom townhouse with a rebar foundation.‖ These

statements are not mere puffery or opinion. While the representation that the unit was

―extremely well built‖ is general and vague, the other representations made by Helm are

specific. Helm, as president of GDI, was in a position to have ―superior knowledge‖

about the quality of the unit in general, and about the alleged firewall defect in particular.


        9
          Courts have held that even an opinion may be actionable if: (1) it is ―intertwined‖ with ―direct
representations of present facts‖; (2) ―the speaker has knowledge of its falsity‖; (3) it is ―based on past or
present facts‖; or (4) the speaker has ―special knowledge of facts that will occur or exist in the future.‖
GJP, Inc. v. Ghosh, 251 S.W.3d 854, 889 (Tex. App.—Austin 2008, no pet.) (quoting Trenholm v. Ratcliff,
646 S.W.2d 927, 930–31 (Tex. 1983)).


                                                     12
That is, Kingston could not have reasonably been ―expected to have an opinion and

exercise his judgment‖ as to the veracity of Helm‘s representations.        Id.   And, the

statements made by Helm related to a past or present condition: namely, the quality of

the workmanship in the completed unit.

      Finally, it is noteworthy that the DTPA specifically authorizes an action based on

a misrepresentation about the ―quality‖ of a product. In particular, section 17.46(b)(7)

provides that ―representing that goods or services are of a particular standard, quality,

or grade, or that goods are of a particular style or model, if they are of another‖ is a

false, misleading or deceptive act or practice.       TEX. BUS. & COM. CODE ANN. §

17.46(b)(7). In Presidio Enterprises, Inc. v. Warner Bros. Distributing Corp., 784 F.2d

674 (5th Cir. 1986), the Fifth Circuit, applying Texas law, held that a statement by the

defendant that a movie would be a ―blockbuster‖ was mere puffing or opinion as to

―quality‖ and thus was not actionable under the DTPA. The court explained:

      The inapplicability of the DTPA to subjective opinions on aesthetic matters
      is particularly manifest in the provisions of section 17.46(b)(7) referring to
      the ―standard, quality, or grade‖ of ―goods or services.‖ The Texas
      Supreme Court has defined ―quality‖ under this section as ―a measure of
      degree; as to particular goods quality may be calibrated by standard or
      grade, as with eggs or meat, or specified by style or model, as with
      machinery.‖ Pennington, 606 S.W.2d at 687 (emphasis added). It goes
      almost without saying that the quality of motion pictures cannot be
      ―calibrated‖ in this way. . . . No matter how one slices them, artistic works
      simply do not belong on a slab alongside ―eggs, meat, and machinery,‖
      and we decline to put them there unless and until the legislature and
      courts of Texas indicate that Texas law departs in this respect from the
      salutary principles of the common law.

Id. at 686–87.   Residential housing units are not artistic works for which quality is

inherently a matter of subjective judgment. Rather, the quality of workmanship in such




                                           13
units may be objectively judged by reference to precise specifications and well-defined

terms. We conclude that Helm‘s statements are actionable under the DTPA.10

        2.      Producing Cause

        Helm also argues by his third issue that there was no evidence supporting the

jury‘s finding that his representations were a ―producing cause‖ of Kingston‘s damages.

Again, we disagree. Kingston testified that he relied on Helm‘s representations when he

decided to purchase the townhouse. Viewing this testimony in the light most favorable

to the verdict, see City of Keller, 168 S.W.3d at 822, we conclude that the evidence was

sufficient to support this element.

        3.      Mitigation of Damages

        Finally, Helm contends by his third issue that judgment should be rendered in his

favor because Kingston ―completely failed to mitigate his damages.‖ Generally, if a

plaintiff fails to mitigate his damages by treating his injury ―as a reasonable prudent

person would have done in the same or similar circumstances,‖ the plaintiff cannot

recover damages proximately resulting from that failure. Gunn Infiniti v. O’Byrne, 996

S.W.2d 854, 862 (Tex. 1999) (citing Moulton v. Alamo Ambulance Service, Inc., 414

S.W.2d 444, 447, 449 (Tex. 1967)).               More specifically, a plaintiff may not recover

damages that could have been avoided or minimized ―at a trifling expense or with
        10
            At oral argument, Helm‘s counsel argued that, under our 2002 opinion, a party cannot be held
individually liable for misrepresentation unless the jury finds that the party acted ―knowingly.‖ See
Kingston v. Helm, 82 S.W.3d 755, 759 (Tex. App.—Corpus Christi 2002, pet. denied) (―The law is well-
settled that a corporate agent can be held individually liable for fraudulent statements or knowing
misrepresentations even when they are made in the capacity of a representative of the corporation.‖).
According to Helm‘s counsel, because the jury failed to find that Helm acted ―knowingly,‖ he cannot be
held individually liable. Assuming, but not deciding, that Helm‘s interpretation of our 2002 opinion is
correct, we nevertheless note that Helm has not raised this issue in his appellate brief, and so we do not
consider it. See French v. Gill, 206 S.W.3d 737, 743 (Tex. App.—Texarkana 2006, no pet.) (―An issue or
counter-issue may not be raised for the first time at oral argument unless the issue has been first
presented in the [party‘s] written brief.‖) (citing Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.
1998)).


                                                   14
reasonable exertions.‖ Mondragon v. Austin, 954 S.W.2d 191, 195 (Tex. App.—Austin

1997, writ denied); see Gunn Infiniti, 996 S.W.2d at 858 (―[A] plaintiff in a DTPA case

has the same duty to mitigate damages as in other cases.‖).

      The burden of proof on the issue of mitigation is on the defendant. Am. W.

Airlines, Inc. v. Tope, 935 S.W.2d 908, 915 (Tex. App.—El Paso 1996, no writ) (citing

Gulf Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983) (op. on reh‘g)).

When a party attacks the legal sufficiency of an adverse finding on an issue on which it

has the burden of proof, that party must demonstrate on appeal that the evidence

establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v.

Francis, 46 S.W.3d 237, 241 (Tex. 2001).

      The jury was asked to include in the damages award only ―[t]he reasonable and

necessary cost to repair, and make the [unit] to be the property it was represented to

be.‖ The jury was specifically instructed not to include in its damages award ―any

amount that you find [Kingston] could have avoided by the exercise of reasonable care.‖

Kingston‘s expert, general contractor Richard Guerra-Prats, testified that the cost to

―cure the construction defects‖ would be $31,268.99, and that the cost to ―make this unit

comply with the building code requirements for a townhouse‖ would be $44,593.30, for

a total of $75,862.29. The jury awarded exactly $75,862.29 in damages to Kingston,

indicating that it concluded that Kingston could not have avoided any of the damages by

the exercise of reasonable care. We therefore must determine whether the evidence

established, as a matter of law, that Kingston could have avoided some of the damages

by the exercise of reasonable care. See id.




                                           15
       With respect to the second element of damages identified in the jury charge—the

cost to ―make the [unit] to be the property it was represented to be‖—we find that the

evidence did not establish that Kingston could have avoided those damages by the

exercise of reasonable care. Guerra-Prats testified that, in order to convert the unit

from an apartment into a townhouse, the entire set of units at Greenway Townhouses

would have to be torn down, because ―it‘s not considered a townhome unless there‘s a

minimum of two units.‖ Plainly, such an undertaking would involve much more than ―a

trifling expense,‖ see Mondragon, 954 S.W.2d at 195, and would not be reasonable

given that Kingston only owns his particular unit.

       With respect to the first element of damages—the ―reasonable and necessary

cost to repair‖ the identified defects—Kingston appeared to concede that the defects

could have been repaired for $6,500.          Kingston testified on cross-examination as

follows:

       Q. [Helm‘s counsel] Okay. Now, you just mentioned that you did not—
                           you did not trust anybody that Mr. Helm[‘s] company
                           or Mr. Park‘s company would hire to go in and effect
                           the repairs?

       A. [Kingston]        That‘s correct.

       Q.                   Okay. And so did you think about [sic] you could
                            have just hired somebody, had whoever you wanted
                            go in there and do those repairs that are listed in the
                            letter and then sent the bill?

       A.                   With the approval of my attorney, yes, sir.

       Q.                   With the approval of your attorney, that‘s right. And
                            you might have spent $5,000 because that claim
                            there is for a little less than $5,000, right?

       A.                   That‘s correct.



                                              16
       Q.                       And some attorney[‘]s fees, right?

       A.                       That‘s correct.

       Q.                       And so you could have hired whoever you wanted,
                                whoever you had faith and trust in to go in and effect
                                all those repairs and do whatever you wanted and
                                just sent the bill to them?

       A.                       Yes, sir.

       Q.                       And tacked on even $1500?

       A.                       Yes, sir, with the items I wanted at that time, yes, sir.

       Q.                       You could have done that?

       A.                       Yes, sir.

       Q.                       But instead, you chose to file a lawsuit the first time,
                                correct?

       A.                       That‘s correct.

                                ....

       Q.                       So at any time if you didn‘t trust Mr. Helm[‘s]
                                company or Mr. Park‘s company, you could have
                                either hired anybody you wanted, anybody in Corpus
                                Christi or the surrounding area to either address the
                                issues in [the DTPA notice] letter for less than $5,000
                                and however much you wanted to charge in
                                attorney‘s fees and sent the bill over to Mr. Helms‘
                                company and Mr. Park‘s company?

       A.                       Had I—yes, I could have. Yes, I could have.

                                ....

       Q.                       And everyone else but you, Mr. Kingston, has made
                                money off of those units[11] and you just refuse to fix
                                up your unit, get it done to what it needs to be done


       11
        Helm‘s counsel was referring to evidence indicating that other purchasers of units at Greenway
Townhouses had since sold their units at a profit.


                                                  17
                                   and then go on down the road. Why are you doing
                                   that to yourself?

        A.                         Because we initiated a lawsuit back in 1997.

        Helm argues that this testimony establishes as a matter of law that Kingston

could have avoided all but $6,500 of the amount associated with making repairs to his

unit.12 We disagree. Kingston did testify that he could have had all of the defects

alleged in his DTPA notice letter repaired for $6,500. However, Kingston‘s original

petition—and the thirteen amended petitions that followed—alleged defects above and

beyond those which were included in the DTPA letter.13                          Guerra-Prats‘s estimate

covered all of the alleged defects, not just the ones asserted in the DTPA letter. The

evidence did not conclusively establish that $6,500 would have been sufficient to repair

the defects alleged in the DTPA letter as well as the additional defects alleged in

Kingston‘s pleadings and testified to at trial. Accordingly, Helm has not satisfied his

burden to show that Kingston could have avoided any of his damages by the exercise of

reasonable care.

        Helm‘s third issue is overruled.

D.      Designation of Responsible Third Parties


        12
           In response, Kingston argues that ―Helm‘s so-called offer to make repairs was a charade‖
because his ―intent was only to fix what he wanted, and nothing else.‖ We do not find that Kingston failed
to mitigate his damages; however, we note that whether Helm‘s offer to make repairs was sufficient or
even sincere is immaterial. Helm was merely required to show as a matter of law that, with the exercise
of reasonable care, Kingston could have avoided some of the damages that he claimed he suffered. See
Gunn Infiniti v. O’Byrne, 996 S.W.2d 854, 862 (Tex. 1999) (citing Moulton v. Alamo Ambulance Service,
Inc., 414 S.W.2d 444, 447, 449 (Tex. 1967)); Am. W. Airlines, Inc. v. Tope, 935 S.W.2d 908, 915 (Tex.
App.—El Paso 1996, no writ) (citing Gulf Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983)
(op. on reh‘g)).
        13
            For example, Kingston‘s thirteenth amended petition contained the following allegations of
defects that were not included in the DTPA notice letter: (1) ―painting throughout the [unit] was improperly
done‖; (2) ―there are defects in the vinyl flooring and in the driveway in the back of the [unit]‖; and (3) ―the
ceiling is warped and sags between the ceiling joists.‖


                                                      18
        By his fourth issue, Helm argues that the trial court erred in not allowing him to

assert the corporate form as a defense14 or to designate GDI and CREIC as responsible

third parties.15 Helm filed his motion to designate responsible third parties on April 12,

2007 and, after a hearing, the trial court rendered an order denying the motion on June

7, 2007.

        Chapter 33 of the civil practice and remedies code allows a defendant to move

for the designation of a ―responsible third party,‖ which is defined as

        any person who is alleged to have caused or contributed to causing in any
        way the harm for which recovery of damages is sought, whether by
        negligent act or omission, by any defective or unreasonably dangerous
        product, by other conduct or activity that violates an applicable legal
        standard, or by any combination of these.

TEX. CIV. PRAC. & REM. CODE ANN. § 33.011(6) (West 2008). The trial court must grant

such a motion if filed timely, unless the plaintiff files an objection and establishes that

the defendant, after being given the opportunity to replead, ―did not plead sufficient facts

concerning the alleged responsibility of the person to satisfy the pleading requirement of

the Texas Rules of Civil Procedure.‖ Id. § 33.004(g) (West 2008). We review a trial

court‘s denial of a motion to designate a responsible third party for abuse of discretion.

MCI Sales & Serv. v. Hinton, 272 S.W.3d 17, 36 (Tex. App.—Waco 2008), aff’d, 329

S.W.3d 475 (Tex. 2010); In re Arthur Andersen LLP, 121 S.W.3d 471, 483 (Tex. App.—

Houston [14th Dist.] 2003, orig. proceeding) (noting that ―a trial court ordinarily has great

discretion regarding joinder of third parties‖).

        14
           Helm argues vaguely that the trial court did not allow him to ―assert the corporate form as a
defense‖; however, he does not present any argument as to this issue other than that relating to the trial
court‘s denial of his motion to designate responsible third parties. Accordingly, we construe this issue as
complaining solely about that denial.
        15
          Helm also moved to designate Park as a responsible third party. The trial court denied the
request and Helm does not challenge that decision on appeal.


                                                   19
        Helm‘s specific factual assertions regarding the alleged responsibility of GDI and

CREIC were contained in his motion to designate. In that motion, Helm asserted that

―at all relevant times during the construction and marketing of the [unit] he was acting in

his corporate capacity as an officer of GDI.‖ Helm also claimed that, ―according to the

terms of a joint venture agreement between GDI and CREIC, CREIC was responsible

for building the . . . units and GDI would secure funding for the project and act as the

marketing agent for the . . . units.‖ Finally, Helm contended that GDI is a ―proper and

responsible third party‖ because ―title to the subject property properly passed from GDI

to [Kingston] through [Helm] acting in his corporate capacity for GDI . . . .‖

        In response, Kingston contends that Helm‘s position fails because it contradicts

the law of the case as set forth in our prior 2002 opinion stemming from this litigation. 16

See Kingston, 82 S.W.3d at 755; see also Loram Maint. of Way, Inc. v. Ianni, 210

S.W.3d 593, 596 (Tex. 2006) (noting that, under the law of the case doctrine, questions

of law decided on appeal to a court of last resort will govern the case throughout its

subsequent stages). Kingston specifically argues that, in our prior opinion, we found

that ―Helm could not assert the corporate form and was subject to individual liability for

his own DTPA violations, even if he was acting as an agent for GDI.‖ That is only half

correct. In 2002, we were asked only to determine whether the trial court erred in

granting a directed verdict dismissing Kingston‘s claims against Helm personally. See

Kingston, 82 S.W.3d at 758. We concluded that ―Helm may be held liable individually



        16
           Kingston also argues that Helm waived this issue, noting that Helm had unsuccessfully
attempted to designate Park and CREIC as responsible third parties prior to the 2002 appeal, but failed to
raise a cross-point to the 2002 appeal challenging the trial court‘s ruling as to those parties. We assume,
but do not decide, that Helm did not waive the issue.


                                                   20
for the torts he is alleged to have personally committed,‖ id. at 764, noting the general

rule of agency law that:

       An agent who does an act otherwise a tort is not relieved from liability by
       the fact that he acted at the command of the principal or on account of the
       principal, except where he is exercising a privilege of the principal, or a
       privilege held by him for the protection of the principal‘s interest, or where
       the principal owes no duty or less than the normal duty of care to the
       person harmed.

Id. (citing RESTATEMENT (SECOND)      OF   AGENCY § 343 (1958)).      We never held, as

Kingston claims, that Helm could not assert the corporate form as a defense. Rather,

we held only that Helm could be found liable in his personal capacity if the evidence

supported such a finding, and that the directed verdict in favor of Helm in his personal

capacity was therefore improper. The law of the case doctrine does not preclude Helm

from challenging the trial court‘s denial of his motion to designate GDI and CREIC as

responsible third parties.

       Nevertheless, because Kingston objected to Helm‘s motion to designate, Helm

was under an obligation to ―plead sufficient facts concerning the alleged responsibility‖

of the alleged responsible third parties ―to satisfy the pleading requirement of the Texas

Rules of Civil Procedure.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 33.004(g). We conclude

that he failed to do so. As noted, Helm‘s motion to designate made only the following

factual assertions: (1) Helm was acting on behalf of GDI when he made the alleged

misrepresentations; (2) CREIC and GDI were responsible for building and funding the

units, respectively; and (3) title to the unit at issue passed from GDI to Kingston through

Helm. The latter two factual allegations do not establish a basis for finding either GDI or

CREIC liable for misrepresentation. The first fact may have provided a basis for finding

GDI liable because ―generally, a corporate officer‘s acts on the corporation‘s behalf are

                                             21
deemed to be acts of the corporation.‖ Kingston, 82 S.W.3d at 758 (citing Leitch v.

Hornsby, 935 S.W.2d 114, 117–18 (Tex. 1996)). However, as we noted in 2002, ―[t]he

general rule is that directors or officers of a corporation are individually liable to third

parties for their fraudulent acts and for damages resulting from false representations

they make to third persons regarding material matters.‖ Id. at 764 (citing 19 C.J.S.

CORPORATIONS § 546 (1990)). Moreover, GDI‘s liability, if any, under these facts would

have been solely vicarious or derivative because it would have been based exclusively

on Helm‘s misrepresentations. We have previously held that a party whose liability is

solely vicarious or derivative in nature does not ―meet[] the definition of a responsible

third party‖ because it is only ―vicariously liable for [the defendant‘s] actions and thus

stands in the same position in this case as [the defendant] himself.‖ F.F.P. Operating

Partners, L.P. v. Duenez, 69 S.W.3d 800, 807–08 (Tex. App.—Corpus Christi 2002)

(noting that ―[a] vicariously liable party‘s right of recovery against the tortfeasor is

through indemnity rather than contribution‖), rev’d on other grounds, 237 S.W.3d 680

(Tex. 2007); see Conkle v. Chery, No. 03-08-00379-CV, 2009 Tex. App. LEXIS 1385, at

*14–15 (Tex. App.—Austin Feb. 25, 2009, no pet.) (mem. op.) (noting that courts have

held that vicariously liable parties should not be included in the jury‘s apportionment

determination). Accordingly, GDI could not have been held liable for Helm‘s alleged

misrepresentations under the alleged facts.

       Helm asserts alternatively that, ―even though the third parties may not have

misrepresented anything to Kingston, they may be liable for fraud because they

allegedly participated in the fraudulent transactions and reaped the benefits.‖ For that

proposition, Helm cites In re Arthur Andersen LLP, 121 S.W.3d at 474, which involved



                                            22
the collapse of Enron Corporation (―Enron‖). In that case, several Enron shareholders

sued Enron‘s president and chief executive officer, Ken Lay, among other parties,

alleging that Lay misrepresented to them that ―they would make lots of money if they

invested in Enron.‖ Id. The plaintiffs contended that the executives concealed certain

transactions from shareholders in order to hide Enron‘s debts and artificially inflate its

earnings. Id. at 479–80. The defendants, including accounting firm Arthur Andersen,

sought to designate several financial institutions as responsible third parties, but the trial

court denied the motion. Id. The Fourteenth Court of Appeals held that this was an

abuse of discretion in part because both sides conceded that the third parties were

―intimately involved‖ in the concealed transactions. See id. at 484.

        Helm is correct that, under Andersen, third parties may be liable for fraud if they

―participated in the fraudulent transactions and reaped the benefits.‖                        Id. at 481.

However, Helm never specifically alleged that GDI or CREIC participated in Helm‘s

alleged fraudulent transactions or reaped the benefits therefrom; instead, the liability of

those parties was based solely on vicarious responsibility for the individual acts of Helm

and Park, respectively. See F.F.P. Operating Partners, L.P., 69 S.W.3d at 807–08.

Moreover, Andersen is distinguishable from the instant case. First, the Andersen court

utilized an earlier and significantly different version of the statute authorizing the

designation of responsible third parties.17 Second, the Andersen court noted that the


        17
           The prior version of the statute defined ―responsible third party‖ as any person to whom all of
the following apply:

        (1)   the court in which the action was filed could exercise jurisdiction over the person;

        (2)   the person could have been, but was not, sued by the claimant; and

        (3)   the person is or may be liable to the plaintiff for all or a part of the damages
              claimed against the named defendant or defendants.

                                                    23
parties made ―broad, sweeping allegations‖ with respect to the third-party financial

institutions and that those entities ―play a pivotal role in the stories the Plaintiffs will tell

the jury.‖ 121 S.W.3d at 484. The court explained:

       [A]s the brief history of this debacle shows and these pleadings allege, the
       fall of Enron is not about one person, or even a few people; it is the story
       of a host of actors. On these pleadings, asking the jury, or us, to look only
       at Lay, Fastow, Skilling, Andersen, and some of its partners, is like asking
       someone to look only at the eye of the hurricane and to ignore the furor
       surrounding it. Neither is an accurate picture.

Id. The instant case, on the other hand, does not involve ―a host of actors‖; rather, the

only acts alleged to have caused Kingston‘s damages were conducted solely by Helm.

       For the foregoing reasons, we conclude that Helm ―did not plead sufficient facts

concerning the alleged responsibility of‖ GDI or CREIC such that the denial of his

motion to designate those entities as responsible third parties would constitute an abuse

of discretion. Helm‘s fourth issue is overruled.

E.     Attorney’s Fees Award

       Helm claims by his sixth issue that the jury‘s award of $95,000 in trial attorney‘s

fees to Kingston was ―contrary to law.‖ He argues that ―this case involved no novel

issues of law nor required any special activity on behalf of the attorneys, other than the

exercise of patience.‖

       The DTPA provides that ―[e]ach consumer who prevails shall be awarded court

costs and reasonable and necessary attorneys‘ fees.‖ TEX. BUS. & COM. CODE ANN. §

17.50(d). In determining whether a fee award is reasonable, we consider the following

factors: (1) the time and labor required, novelty, and difficulty of the question presented



Act of May 18, 1995, 74th Leg., R.S., ch. 136, § 1, 1995 TEX. SESS. LAW SERV. 971, 972 (amended 2003).


                                                 24
and the skill required to properly perform the legal service; (2) the likelihood that the

acceptance of employment precluded other employment by the lawyer; (3) the fee

customarily charged in the locality for similar services; (4) the amount involved and the

results obtained; (5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client; (7) the

experience, reputation, and ability of the lawyer performing the services; and (8)

whether the fee is fixed or contingent. Arthur Andersen & Co. v. Perry Equip. Corp.,

945 S.W.2d 812, 818 (Tex. 1997). A litigant is not required to present evidence on each

of these factors. In re Estate of Vrana, 335 S.W.3d 322, 329–30 (Tex. App.—San

Antonio 2010, pet. denied) (citing Burnside Air Conditioning & Heating, Inc. v. TS.

Young Corp., 113 S.W.3d 889, 898 (Tex. App.—Dallas 2003, no pet.); Acad. Corp. v.

Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.—Houston

[14th Dist.] 2000, no pet.)). Rather, we also look at the entire record, the evidence

presented on reasonableness, the amount in controversy, the common knowledge of

the participants as lawyers and judges, and the relative success of the parties in

determining the reasonableness of the fee award. Garrod Invs., Inc. v. Schlegel, 139

S.W.3d 759, 767 (Tex. App.—Corpus Christi 2004, no pet.).

      We review a jury‘s finding of the amount of reasonable and necessary attorney‘s

fees incurred for sufficiency of the evidence. Carlile v. RLS Legal Solutions, Inc., 138

S.W.3d 403, 409 (Tex. App.—Houston [14th Dist.] 2004, no pet.). ―We must be mindful,

however, that we are reviewing a jury‘s verdict and may not substitute our judgment for

that of the factfinder.” C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex.

App.—Houston [1st Dist.] 2004, no pet.). When a party attacks the legal sufficiency of



                                           25
an adverse finding on an issue it did not have the burden to prove at trial, it must

demonstrate that there is no evidence to support the adverse finding.           Carlile, 138

S.W.3d at 409.     In reviewing a no-evidence issue, we consider all of the record

evidence in a light most favorable to the verdict and indulge every reasonable inference

from that evidence in support of the verdict. Id.

       Kingston‘s expert testified that, given the age of the case (thirteen years from the

time suit was filed until trial), the first appeal, and the number of trial settings (as many

as twelve), approximately $300,000 was a reasonable fee. On the other hand, Helm‘s

expert testified that $30,000 was reasonable and necessary, given what he viewed as a

simple case with a relatively small amount in controversy at the outset of the litigation.

The jury awarded an amount closer to the estimate of Helm‘s expert than to the

estimate of Kingston‘s expert. In any event, there was evidence adduced supporting

the jury‘s decision, and we may not substitute our judgment for that of the jury. See

C.M. Asfahl Agency, 135 S.W.3d at 802.

       Helm suggests that the fee award is unreasonable because it greatly exceeded

the amount of damages awarded. However, in a DTPA case, the ratio between the

actual damages awarded and the attorney‘s fees is not a factor that determines the

reasonableness of the fees. See, e.g., Seabury Homes, Inc. v. Burleson, 688 S.W.2d

712, 716 (Tex. App.—Fort Worth 1985, no writ) (affirming award of $15,000 in attorney‘s

fees and award of $2,000 in damages, trebled to $6,000); Jack Roach Ford v. De

Urdanavia, 659 S.W.2d 725, 730 (Tex. App.—Houston [14th Dist.] 1983, no writ); see

also Tejas Toyota, Inc. v. Coffman, No. 01-06-00347-CV, 2007 Tex. App. LEXIS 3448,

at *16 (Tex. App.—Houston [1st Dist.] May 3, 2007, no pet.) (mem. op.).



                                             26
       Helm further contends that Kingston impermissibly failed to segregate the fees

attributable to his causes of action which were unsuccessful. Generally, a party is

required to segregate fees between claims for which fees are recoverable and those for

which they are not, and between successful and unsuccessful causes of action. Chilton

Ins. Co. v. Pate & Pate Enters., Inc., 930 S.W.2d 877, 896 (Tex. App.—San Antonio

1996, writ denied) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10–11 (Tex.

1991)).   However, an exception to the segregation requirement applies when the

attorney‘s fees incurred are rendered in connection with claims arising from the same

transaction or occurrence and are ‗so interrelated that their prosecution or defense

entails proof or denial of essentially the same facts.‘‖ Id. (citing Stewart Title Guar. Co.,

822 S.W.2d at 11). Here, each of Kingston‘s claims arose from the same transaction or

occurrence and involved ―essentially the same facts.‖ Accordingly, he was not required

to segregate his fees. See id. We overrule Helm‘s sixth issue.

F.     Cross-Appeal

       On cross-appeal, Kingston argues that he is entitled to post-judgment interest on

the amount of unpaid appellate costs that he was awarded by this Court in connection

with successfully prosecuting his 2002 appeal.

       On May 9, 2003, after the Texas Supreme Court denied Helm‘s petition for

review of our 2002 opinion, this Court issued its mandate which awarded Kingston

appellate costs in the amount of $10,312.30. Helm then filed a motion with the trial

court to retain the costs in the trial court‘s registry until final judgment was rendered in

the case. According to a letter that appears in the record, Helm deposited $10,312.30

in the trial court‘s registry on September 22, 2004. On November 3, 2004, the trial court



                                             27
denied Helm‘s motion to retain, and ordered that ―said monies be paid immediately to

[Kingston], and that [Kingston] recover his post-judgment interest as allowed by law.‖

On November 12, 2004, Helm paid Kingston $10,312.30.                        Subsequently, after final

judgment was rendered in 2009, Kingston moved the trial court to ―recover the accrued

interest on the unpaid amount‖ of costs.18 The trial court denied the motion.

        Kingston claims by his cross-issue that the trial court erred by denying that

motion. He claims that he is entitled to interest that accrued on the $10,312.30 amount

from May 9, 2003, the date we issued our mandate, to November 12, 2004, the date

Helm paid the assessed costs, because the ―post-judgment interest‖ referred to in the

trial court‘s November 3, 2004 order ―began accruing on the date the mandate issued‖

for the 2002 appeal. We disagree. It is true that, once our mandate was issued, the

trial court and the parties were bound to comply with our judgment. See TEX. R. APP. P.

51.1(b) (―When the trial court clerk receives the mandate, the appellate court's judgment

must be enforced . . . .‖); see Whitmire v. Greenridge Place Apts., 333 S.W.3d 255, 261

(Tex. App.—Houston [1st Dist.] 2010, pet. dism‘d w.o.j.) (―The trial court has no

jurisdiction to review, interpret, or enforce [the appellate court‘s] mandate; it must

observe and carry it out. Its orders carrying out the mandate are ministerial.‖ (Internal

quotations omitted)). Further, neither Helm‘s motion to deposit the assessed costs in

the trial court‘s registry, nor his actual deposit of those costs in advance of any ruling on

his motion, changed the fact that he conclusively and finally owed the $10,312.30 as of

the date our mandate issued. However, our mandate did not explicitly require Helm to


        18
            Kingston specifically contends that, because Helm did not include post-judgment interest in his
November 12, 2004 payment, ―the first $793.86 of the $10,312.30 he paid was applied to accrued
interest, leaving an unpaid principal [balance] in the equal amount of $793.86.‖


                                                   28
pay interest in the event that he does not immediately pay the assessed costs.

Moreover, Kingston does not direct us to any authority, and we find none, establishing

that Helm was required to pay such interest in the absence of a explicit authorization in

our mandate, or that a trial court errs if it fails to order that such interest be paid. See

TEX. R. APP. P. 38.1(i).   We therefore cannot conclude that the trial court erred in

denying Kingston‘s motion to recover the allegedly unpaid amount of interest.

Kingston‘s issue is overruled.

                                     III. CONCLUSION

       We affirm the judgment of the trial court.




                                                        DORI CONTRERAS GARZA
                                                        Justice


Delivered and filed the
21st day of December, 2011.




                                            29
