                                                                                                     ACCEPTED
        FILED                                                                                      13-14-00211
IN THE 13TH COURT OF APPEALS                                                      THIRTEENTH COURT OF APPEALS
                                                                                        CORPUS CHRISTI, TEXAS
        CORPUS CHRISTI
                                                                                          12/29/2014 5:40:19 PM
                                                                                              DORIAN RAMIREZ
         12/29/14                                                                                        CLERK
DORIAN E. RAMIREZ, CLERK
BY DTello                                  NO. 13-14-00211-CV

                               IN THE THIRTEENTH COURT OF APPEALS RECEIVED IN
                                                            13th COURT OF APPEALS
                                       CORPUS CHRISTI, TEXAS
                                                         CORPUS CHRISTI/EDINBURG, TEXAS
                                                                12/29/2014 5:40:19 PM
                                                                  DORIAN E. RAMIREZ
                        RUDIS ROBLES AND CLAUDIA E.                      Clerk
                                                             FLORES ROBLES,
                                                             Appellants

                                                  VS.

                               CHRISTOPHER MANN, GWENDA MANN, AND
                                       MANN'S MACHINE, INC.,
                                                        Appellees


                On Appeal from the 284th District Court of Montgomery County, Texas
                            Trial Court Cause Number 10-12-13737-CV


                                  REPLY BRIEF FOR CROSS-APPELLANTS,
                                  CHRISTOPHER MANN, GWENDA MANN,
                                      AND MANN’S MACHINE, INC.


           Tom Shipp                                    Kenna M. Seiler
           State Bar No. 18271000                       State Bar No. 13944250
           10200 Grogan’s Mill Road, Suite 320          The Seiler Law Firm, PLLC
           The Woodlands, Texas 77380                   8505 Technology Forest Place
           (281) 364-7228                               Suite 1102
           (281) 364-7230 – Telecopier                  The Woodlands, Texas 77381
           tomshippassoc@aol.com                        (281) 419-7770
                                                        (281) 419-7791 – Telecopier
                                                        kenna.seiler@theseilerlawfirm.com

                                                        ATTORNEYS FOR APPELLEES

                                    ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

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

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issue Number One

         The trial court’s finding of no damages for Christopher Mann,
         Gwenda Mann, and Mann’s Machine, Inc. is against the great
         weight and preponderance of the evidence. (C.R. 228-230;
         R.R. Vol. 4, p. 10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Issue Number Two

         The trial court’s award of only attorney fees through trial in the
         amount of $4,069.98 is against the great weight and
         preponderance of the evidence. (C.R. 228-230; R.R. Vol. 4, pp.
         10-11). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Prayer for Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .9




                                                              ii
                                  INDEX OF AUTHORITIES

CASES

Brookshire Katy Drainage Dist. v. Lily Gardens, LLC,
     333 S.W.3d 301 (Tex. Civ. App.—Houston [1st Dist.] 2010, pet. denied) . . .3

Smith v. Patrick W.Y. Tam Trust,
      296 S.W.3d 545 (Tex. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4-5

Tony Gullo Motors I, L.P. v. Chapa,
     212 S.W.3d 299 (Tex. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5


RULES

Tex. Civ. Prac. & Rem. Code Section 37.009. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                    iii
                               NO. 13-14-00211-CV

               IN THE THIRTEENTH COURT OF APPEALS
                       CORPUS CHRISTI, TEXAS


          RUDIS ROBLES AND CLAUDIA E. FLORES ROBLES,
                                      Appellants

                                      VS.

             CHRISTOPHER MANN, GWENDA MANN, AND
                     MANN'S MACHINE, INC.,
                                      Appellees


   On Appeal from the 284th District Court of Montgomery County, Texas
               Trial Court Cause Number 10-12-13737-CV


                        BRIEF FOR APPELLEES,
                 CHRISTOPHER MANN, GWENDA MANN,
                      AND MANN’S MACHINE, INC.
__________________________________________________________________

                     SUMMARY OF THE ARGUMENT

      The evidence is undisputed that Robles interfered with the Manns’ easement

rights. As a result of that interference, the Manns sustained damages, damages

which were not controverted.

                                  ARGUMENT

      Issue Number One: The trial court’s finding of no damages for
      Christopher Mann, Gwenda Mann, and Mann’s Machine, Inc. is
      against the great weight and preponderance of the evidence. (C.R.
      228-230; R.R. Vol. 4, p. 10) (Restated)
                                       1
      The evidence is undisputed that Robles interfered with the Manns’ easement

rights. Because of that interference, the Manns sustained damages, damages which

were not controverted. The Robleses claim that the Manns did not prevail on any

claim for which they would be entitled to damages and there was insufficient

evidence of those damages. But both contentions are incorrect.

      There is both legally and factually sufficient evidence that the Robleses

interfered with the Manns’ property rights. Robles focuses on the timing of the

installation of the gate, the prior temporary injunction, and the Manns’ actions

regarding the gate. But the focus should be on the Robleses’ actions, as these

support the claim for interfering with the Manns’ property rights.         And the

Robleses’ actions were many: Rudis Robles denied there was an easement, he placed

a gate on the easement that was latched 24 hours a day, and he placed poles on the

easement. (R.R. Vol. 2, pp. 29, 30-31, 35, 47-48, 52-53) And this was testimony

directly from Mr. Robles. The Manns also testified about debris on the easement,

with utility poles, trees, and pipes. (R.R. Vol. 2, pp. 63-64, 106, 107-108) Mr.

Robles disagreed with the easement and did everything he could to interfere with the

Manns’ use of that easement.

      As a result of this interference, the Manns and their business suffered

damages.    Mr. Mann testified that they sustained losses of $120,000.00 to

                                         2
$130,000.00. (R.R. Vol. 2, p. 68) Customers and vendors could not get to the

business. (R.R. Vol. 2, p. 69, 100)

      The Robleses claim that because an easement does not convey title to the

property, there is no claim for damages to real property. But this argument misses

the mark. The Manns sued for interference with easement rights. To prevail on

such a claim, they had to prove that the Robleses engaged in activities that interfered

with their reasonable use and enjoyment of the easement.             Brookshire Katy

Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 310 (Tex. Civ. App.—

Houston [1st Dist.] 2010, pet. denied).       They provided this proof.     And they

provided proof of those damages, even under the standards set forth by the Robleses.

The statement by the Robleses that the only evidence presented was Gwenda Mann’s

statement they lost business is incorrect. Both Mr. and Mrs. Mann testified to dollar

amounts lost because of the Robleses’ interference with their rights. (R.R. Vol. 2,

p. 68; R.R. Vol. 2, p. 114)

      This interference caused the Manns mental anguish damages—so much so

they had to seek medical attention and were prescribed medication. (R.R. Vol. 2,

p. 77; R.R. Vol. 2, pp. 113-114)

      Because the evidence as to the interference and the damages sustained was so

contrary to the overwhelming weight of all the evidence, this portion of the trial

court’s judgment should be set aside and a new trial ordered as to the Manns’
                                          3
damages.

      Issue Number Two: The trial court’s award of only attorney fees
      through trial in the amount of $4,069.98 is against the great weight
      and preponderance of the evidence. (C.R. 228-230; R.R. Vol. 4,
      pp. 10-11) (Restated)

       The Manns incurred substantial attorney fees in obtaining the declaratory

judgment signed by the trial court to enforce their easement rights. The trial court

erred by limiting the recovery of attorney fees to all of the fees charged in one month

to the Manns by their prior attorney.

      Specifically, the trial Court stated:

            I am awarding attorneys fees to Christopher Mann and Gwenda
      Mann, the attorneys fees being in an amount testified to by Ms. Tillman
      as being expended on this case during one month. That amount is
      $4,069.98.

(R.R. Vol. 4, pp. 10-11) But the Manns prevailed on their claim for a declaratory

judgment, a claim that has been part of the relief sought by the Manns in their

original pleading. (C.R. 10-74) Section 37.009 of the Tex. Civ. Prac. & Rem.

Code allows the Court to award costs and reasonable attorney fees. Tom Shipp

testified as to his reasonable hourly rate of $390.00 per hour. (R.R. Vol. 3 p. 60)

He testified as to the number of hours worked. (R.R. Vol. 3 p. 64)

      Attorney fees are conclusively proved when the supporting evidence is clear,

direct, positive, and without contradiction from another witness or attendant

circumstances, and such evidence could have easily been controverted. Smith v.
                                              4
Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547-548 (Tex. 2009). Robles’ primary

dispute with the Manns’ attorney fees is that Tom Shipp did not segregate the fees.

The general rule requires the segregation of attorney fees.       But as the Texas

Supreme Court directed in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,

313-314 (Tex. 2006), when discrete legal services advance both a recoverable and

unrecoverable claim they are so intertwined that they need not be segregated. And

Steven Lawrence testified about the attorney fees. (R.R. Vol. 3, p. 69) He testified

that because of the common nucleus of acts, each of the causes of action are

interrelated. (R.R. Vol. 3, p. 72) He testified that the fees sought by Christopher

Mann, Gwenda Mann, and Mann’s Machine, Inc. were reasonable and customary.

(R.R. Vol. 3, pp. 72-73) The trial court erred in disregarding this uncontradicted

testimony.

      Cross-Appellants request that this Court sustain their Issue Number Two,

reverse the Judgment of the trial court awarding attorney fees of $4,069.98, and

remand to the trial court for a new trial as to the amount of the Cross-Appellants’

attorney fees.

                                 CONCLUSION

       The trial court’s failure to award damages to the Manns and the trial court’s

award of attorney fees limited to $4,069.98 are not supported by sufficient evidence.

The Robleses took affirmative and undisputed steps to interfere with the Manns’
                                         5
easement. And because of those steps, the Manns sustained damages. The trial

court’s failure to award damages is not supported by sufficient evidence.

      And the Manns attorney worked in excess of 200 hours, including the trial on

the merits of this case. Yet the trial court awarded damages only for one month of

fees charged by a prior attorney—and awarded no fees for the actual trial. The

Robleses’ only argument as to the Manns’ fees is that Tom Shipp did not segregate

his fees. But segregation is not required when the claims are so intertwined that

they need not be segregated.        Although Tom Shipp did not testify as to the

intertwined nature of the claims, Steven Lawrence did. With this evidence, the trial

court’s award of attorney’s fees for one month’s work for the prior attorney is not

support by sufficient evidence.

                              PRAYER FOR RELIEF

      Cross-Appellants request that this Court reverse the Judgment of the trial court

on the issue of the Cross-Appellants’ damages and attorney fees and remand this

case to the trial court for a new trial on these issues.




                                            6
Respectfully submitted,

THE SEILER LAW FIRM, PLLC

   /s/ Kenna M. Seiler
Kenna M. Seiler
State Bar No. 13944250
8505 Technology Forest Place, Suite 1102
The Woodlands, Texas 77381
kenna.seiler@theseilerlawfirm.com
(281) 419-7770
(281) 419-7791 – Telecopier

Tom Shipp
State Bar No. 18271000
10200 Grogan’s Mill Road, Suite 320
The Woodlands, Texas 77380
(281) 364-7228
(281) 364-7230 – Telecopier

ATTORNEYS FOR CROSS-
APPELLANTS




  7
                         CERTIFICATE OF SERVICE

       Pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure, I certify that
the Cross-Appellants’ Brief has been electronically filed with the Clerk of the
Thirteenth Court of Appeals, and true and correct copies of same have been
electronically served, on this 29th day of December 2014, correctly addressed as
follows:

             George D. Gordon
             Richard S. Browne
             Baggett, Gordon & Deison
             307 N. San Jacinto
             Conroe, Texas 77301


                                       /s/ Kenna M. Seiler
                                       Kenna M. Seiler




                                         8
                      CERTIFICATE OF COMPLIANCE

       Pursuant to Rules 9.4(i)(2)(C) and 9.4(i)(2)(3) of the Texas Rules of Appellate
Procedure, I certify that this Appellees’ Brief contains 1,205 words (excluding the
Caption, Statement regarding Oral Argument, Table of Contents, Index of
Authorities, Signature, Proof of Service, Certification, and Certificate of Service).
This is a computer-generated document created in Microsoft Word, using 14-point
typeface for all text, except for footnotes, which are in 12-point typeface. In making
this Certificate of Compliance, I am relying on the word count provided by the
software used to prepare the document.


                                        /s/ Kenna M. Seiler
                                       Kenna M. Seiler




                                          9
                                                                                                                 Page 1




                 BROOKSHIRE KATY DRAINAGE DISTRICT, Appellant v. THE LILY
              GARDENS, LLC, RICHARD E. FLUECKIGER AND KENNETH B. LUEDECKE,
                                          Appellees

                                              NO. 01-07-00431-CV

                      COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

                                   333 S.W.3d 301; 2010 Tex. App. LEXIS 7532


                                      September 10, 2010, Opinion Issued

SUBSEQUENT HISTORY: Released for Publication              OPINION
May 25, 2011.
Reconsideration denied by, En banc Brookshire Katy
Drainage Dist. v. Lily Gardens, LLC, 2011 Tex. App.       [*304] OPINION ON REHEARING
LEXIS 1619 (Tex. App. Houston 1st Dist., Feb. 25, 2011)
                                                               Appellees, Lily Gardens, LLC, and its owners,
Petition for review denied by Brookshire Katy Drainage
                                                          Richard E. Flueckiger and Kenneth B. Leudecke
Dist. v. Lily Gardens, LLC, 2012 Tex. LEXIS 84 (Tex.,
                                                          (collectively, the "Defendants"), have filed a motion for
Jan. 27, 2012)
                                                          rehearing. Appellant, Brookshire Katy Drainage District
PRIOR HISTORY: [**1]                                      (the "District"), filed a response to the motion. We grant
  On Appeal from the 9th District Court, Waller County,   rehearing and withdraw our opinion and judgment of
Texas. Trial Court Case No. 06-08-18415.                  December 22, 2009 and substitute this opinion and
Brookshire Katy Drainage Dist. v. Lily Gardens, LLC,      judgment in their place.
2009 Tex. App. LEXIS 9716 (Tex. App. Houston 1st Dist.,
                                                               The District filed suit against the Defendants and
Dec. 22, 2009)
                                                          sought declaratory and injunctive relief, alleging, among
                                                          other things, that the Defendants (record owners of the
                                                          tract of real property at issue) violated the District's rights
COUNSEL: For APPELLANT: David Frishman, Katy,
                                                          pursuant to an express easement and trespassed on the
TX; Kevin D. Jewell, William S. Helfand, Chamberlain,
                                                          District's property. Specifically, the District alleged
Hrdlicka, White, Williams & Martin, Houston, TX.
                                                          [**2] that the Defendants were "encroaching and
For APPELLEE: Dale Jefferson, Levon G. Hovnatanian,       infringing into the [District's] easement and culverts
Raul H. Suazo, Martin, Disiere, Jefferson & Wisdom,       without permission."
L.L.P., Houston, TX.
                                                               The Defendants filed traditional and no-evidence
                                                          summary judgment motions relating to all of the District's
JUDGES: Panel consists of Justices Alcala, Hanks, and
                                                          claims. The trial court granted summary judgment
Wilson. Justice Wilson, dissenting.
                                                          disposing of all of the District's claims and awarded
                                                          attorney's fees to the Defendants. 1
OPINION BY: George C. Hanks
                                                                                                                     Page 2
                                333 S.W.3d 301, *304; 2010 Tex. App. LEXIS 7532, **2



       1 Prior to the trial court dismissing the case, the            damage to roads, passageways and fences
       Defendants nonsuited their counterclaims against               resulting from the DISTRICT'S use in
       the District, and accordingly, those claims are not            going to and from said easement and right
       at issue in this appeal.                                       of way, and to restore the same to the
                                                                      previously existing condition as near as
     In its first two issues, the District contends that the          possible.
trial court erred by granting the Defendants' motion for
summary [*305] judgment on the District's claims for                       GRANTOR reserves the right to use
declaratory and injunctive relief for violation of the                the facilities offered by the drainage canal
easement and trespass. In its third issue, the District               for the disposal of surface waters, rain, or
argues the trial court erred in awarding attorney's fees to           any excess waters collecting upon his
the Defendants under the Declaratory Judgments Act.                   land, and in such connection GRANTOR
                                                                      has the right in the manner provided by
    We find no reversible error and affirm.                           law and at his own expense to construct
                                                                      and provide ditches, drains and laterals
Background                                                            connecting his said land or portions
                                                                      thereof with the drainage canal.
     The District is a political subdivision of the State of
Texas, created by the Texas Legislature, and charged
with controlling drainage in an area of Waller County.              Pursuant to the easement, the District constructed a
Pursuant to this directive, in 1962 the District entered       ten-foot deep drainage ditch traversing both of the tracts
into two [**3] express easements with Mrs. Frank E.            and severing the front portions of the tracts from the
Smith and Johnnie Harris. Identical in language, the           larger back parcels. After the drainage ditch was
easements granted the District "a right of way and             completed, the District installed a concrete bridge across
easement for the purpose of constructing, maintaining,         the ditch to connect the front and back portions of the
operating, repairing and re-constructing a drainage canal"     tracts. Underneath the bridge and in the drainage ditch,
across two tracts of land. The easement conveyances,           the District installed two metal pipes (or "culverts") that
which were submitted by both parties as summary                ran along with the route of drainage.
judgment evidence, go into greater detail regarding the
respective rights of the parties, and state,                        In 2004, Richard Flueckiger and Kenneth Luedecke
                                                               created Lily Gardens, LLC ("Lily Gardens"), which
          The DISTRICT shall have all rights and               acquired three [**5] consecutive tracts of land, including
       benefits necessary or convenient for the                the two tracts subject to the drainage ditch easements
       full enjoyment or use of the rights herein              with the District. After acquiring the property, Lily
       granted, with the right of ingress and                  Gardens undertook various projects to make the property
       egress to and from said drainage canal                  suitable for visitors as an outdoor event venue, including
       right of way, provided however, that after              adding a picturesque covering to the existing cement
       construction of said drainage canal, said               bridge spanning the drainage ditch. Lily Gardens
       right of ingress and egress of the                      intended to use the existing bridge to transport visitors
       DISTRICT shall be limited to the said                   from a reception facility on the front part of the property
       right of way and to existing roads and                  to a gazebo on the back portion of the property.
       passageways. The DISTRICT is given the
       right from time to time to cut and remove                     [*306] Lily Gardens left all existing structures in
       all trees, undergrowth, and abate other                 place and merely affixed the bridge covering to the
       obstruction, upon said canal right of way,              existing cement bridge at ground level; the bridge
       that may injure, endanger, or interfere with            covering did not extend down to the actual drainage ditch
       the construction, operation, maintenance                nor did it touch the pipes (or "culverts") underneath the
       and repair of said drainage canal.                      bridge. In 2006, the District sent Lily Gardens a cease
                                                               and desist letter stating that the construction of the bridge
           The DISTRICT agrees during the life                 covering constituted an encroachment on the District's
       of this easement to repair [**4] all                    right-of-way and otherwise violated the easement
                                                                                                                    Page 3
                                333 S.W.3d 301, *306; 2010 Tex. App. LEXIS 7532, **5



restrictions. Specifically, the District alleged that the             court based its ruling.
structure was attached to the District's "culverts," which
"interfere[d] with the District's drainage plans and                After conducting a hearing on attorney's fees, the
system, . . . violate[d] [**6] the easement restrictions,      court signed an amended final judgment. In the judgment,
and impermissibly encroache[d] on the District's               the court reiterated that it granted the Defendants' motion
right-of-way."                                                 for summary judgment, awarded attorney's fees, and
                                                               disposed of all remaining claims                [**8] by
     After the Defendants refused to remove the bridge         acknowledging that the Defendants non-suited their
covering, the District filed suit. The District alleged        remaining claims without prejudice.
causes of action for temporary and injunctive relief
relating to (1) violation, encroachment, and infringement      Summary Judgment
on the District's rights under the easement; (2) trespass;
                                                                    In its first and second issues, the District contends
and (3) nuisance. Each claim involved the common
                                                               the trial court erroneously granted summary judgment
allegation that Lily Gardens wrongfully constructed the
                                                               because the Defendants failed to establish entitlement to
bridge covering.
                                                               judgment as a matter of law and, alternatively, the
     The Defendants filed traditional and no-evidence          District raised genuine issues of material fact precluding
motions for summary judgment as to all of the District's       summary judgment. Although the trial court granted
causes of action. The trial court signed an order granting     summary judgment in the Defendants' favor on all of the
the "Defendants' Traditional and No-Evidence Motion for        District's causes of action, the District only challenges the
Summary Judgment," without specifying whether it was           trial court's summary judgment as to two of its claims;
granting summary judgment on the traditional or                specifically, the claims relating to violation of easement
no-evidence motions. In the order, the trial court             and trespass. Accordingly, [*307] we limit our review to
specifically stated that "the bridge covering at issue . . .   whether summary judgment was proper on those claims.
[did] not encroach on the Brookshire Katy Drainage
                                                               A. Standard of Review
District's easement rights" and that the Defendants were
"not required to remove the bridge covering and                     "We review a grant of summary judgment de novo."
defendants [were] expressly allowed to complete the            Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d
bridge covering." 2 The court withheld ruling on the issue     642, 644 (Tex. 2009) (citing Tex. Mun. Power Agency v.
of attorney's [**7] fees so that it could hold a hearing.      PUC of Tex., 253 S.W.3d 184, 192 (Tex. 2007)). In both
                                                               traditional and no-evidence summary judgment motions,
       2 In its brief, the District points to this language
                                                               we review the entire record in the light most favorable to
       in the order and argues that the trial court
                                                               the non-movant, indulging every reasonable inference
       "specifically state[d] the grounds on which [the
                                                               and resolving any doubts [**9] against the motion.
       summary judgment was] based[.]" Citing
                                                               Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006);
       Vannerson v. Klevenhagen, 908 S.W.2d 37, 41
                                                               KPMG Peat Marwick v. Harrison County Hous. Fin.
       (Tex. App.--Houston [1st Dist.] 1995, writ
                                                               Corp., 988 S.W.2d 746, 748 (Tex. 1999).
       denied), the District argues that "Lily Gardens is
       limited to the rationale enumerated by the trial             "[I]ssues a non-movant contends avoid the movant's
       court and cannot seek affirmance on other               entitlement to summary judgment must be expressly
       arguments." The authority cited by the District is      presented by written answer to the motion or by other
       misplaced. The Texas Supreme Court has more             written response to the motion and are not expressly
       recently held that the Court of Appeals is not          presented by mere reference to summary judgment
       limited to the grounds enumerated in a trial court's    evidence." 3 McConnell v. Southside Indep. Sch. Dist.,
       order and may consider any grounds presented to         858 S.W.2d 337, 341 (Tex. 1993). We must affirm the
       the trial court that are preserved for appellate        summary judgment if any of the movant's theories
       review. Cincinnati Life Ins. Co. v. Cates, 927          presented to the trial court and preserved for appellate
       S.W.2d 623, 626 (Tex. 1996). Accordingly, we            review are meritorious. Provident Life & Accident Ins.
       need not opine on whether the statements in the         Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
       order constitute the grounds on which the trial
                                                                                                                   Page 4
                               333 S.W.3d 301, *307; 2010 Tex. App. LEXIS 7532, **9



       3 On appeal, the District argues that the trial        must grant the motion unless [*308] the respondent
       court erred in denying its motion for                  produces summary judgment evidence raising a genuine
       reconsideration that it filed after the trial court    issue of material fact." TEX. R. CIV. P. 166a(i). If the
       granted summary judgment. However, after               non-movant brings forward more than a scintilla of
       granting summary judgment, the trial court             evidence that raises a genuine issue of material fact, then
       generally has no obligation to consider further        summary judgment is not proper. Flameout Design &
       motions on issues adjudicated by the summary           Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d
       judgment. Macy v. Waste Mgmt., Inc., 294 S.W.3d        830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.).
       638, 650-51 (Tex. App.--Houston [1st Dist.] 2009,
       pet. filed). New arguments to defeat summary                Our review of a trial court's summary judgment
       judgment presented [**10] after the trial court        extends to the evidence that was before the court at the
       has granted summary judgment do not warrant            time of the ruling. Plotkin v. Joekel, 304 S.W.3d 455, 486
       reversal. See id.; see also TEX. R. CIV. P.            (Tex. App.--Houston [1st Dist.] 2009, pet. denied);
       166a(c). Accordingly, we limit our review to           [**12] see also TEX. R. CIV. P. 166a(c); TEX. R. APP. P.
       those arguments set out in the District's summary      33.1. However, "[i]n determining whether a respondent to
       judgment response, not those arguments presented       a no-evidence motion for summary judgment has
       for the first time in the District's motion for        sufficient evidence to raise a genuine issue of material
       reconsideration or in its appellate briefs.            fact, courts are not required to search the record without
                                                              guidance." Aleman v. Ben E. Keith Co., 227 S.W.3d 304,
     When a party seeks both a traditional and a              309 (Tex. App.--Houston [1st Dist.] 2007, no pet.). A
no-evidence summary judgment on the non-movant's              general reference to a voluminous record that does not
claim, we first review the trial court's summary judgment     direct the trial court and parties to the evidence relied
under the no-evidence standards of Texas Rule of Civil        upon is insufficient. See Rogers v. Ricane Enterprises,
Procedure 166a(i). Ford Motor Co. v. Ridgway, 135             Inc., 772 S.W.2d 76, 81 (Tex. 1989).
S.W.3d 598, 600 (Tex. 2004). If a non-movant failed to
produce evidence to defeat the summary judgment                    We will affirm a no-evidence summary judgment
motion, then we need not analyze whether the movant's         when (1) there is a complete absence of evidence of a
summary judgment proof satisfied the less stringent           vital fact, (2) the court is barred by rules of law or of
"traditional" burden. Id. In other words, if no-evidence      evidence from giving weight to the only evidence offered
summary judgment was properly granted, we do not              to prove a vital fact, (3) the evidence offered to prove a
reach arguments under the traditional motion for              vital fact is no more than a scintilla, or (4) the evidence
summary judgment. See id.                                     conclusively establishes the opposite of a vital fact. City
                                                              of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
    Here, the Defendants included both traditional and
no-evidence grounds in their motion for summary               2. District's Summary Judgment Response
judgment. The trial court did not specify whether it was
                                                                   In its response to the Defendants' no-evidence
granting the motion on traditional or no-evidence
                                                              motion, the District specifically asserted that the
grounds. [**11] Accordingly, we review the no-evidence
                                                              construction of the bridge covering [**13] violated the
grounds first.
                                                              terms of the easement. To support this argument, the
1. No-Evidence Summary Judgment                               District attached summary judgment evidence to its
                                                              response, including the easement in question and pictures
     Under the no-evidence standard, the party without        of the bridge covering. The District also attached the
the burden of proof may move for a no-evidence                affidavit of Raymond Dollins, President of the District.
summary judgment on the basis that there is no evidence
to support an essential element of the non-moving party's          In the affidavit, Dollins states that the Defendants did
claim. TEX. R. CIV. P. 166a(i). Once the motion is filed,     not obtain a permit from the District prior to beginning
the burden shifts to the non-moving party to present          construction on the bridge covering. The remainder of
evidence raising a genuine issue of material fact as to the   Dollins's affidavit is either (1) not relevant to a material
elements specified in the motion. Mack Trucks, Inc. v.        fact regarding the easement or alleged trespass or (2)
Tamez, 206 S.W.3d 572, 582 (Tex. 2006). "The court            verbatim allegations and conclusions from the District's
                                                                                                                   Page 5
                               333 S.W.3d 301, *308; 2010 Tex. App. LEXIS 7532, **13



response without supporting "statements of fact." See          of plaintiff's claims" that "could not support summary
TEX. R. CIV. P. 166a(f); TEX. GOV'T CODE ANN. §                judgment"; further stating that an affiant "cannot simply
312.011(1) (Vernon 2005) (defining "affidavit" as a            say, Take my word for it; I know[.]"). In short, Dollins's
"statement in writing of a fact or facts").                    affidavit contains no probative evidence favorable to the
                                                               District's claims, as it is entirely his unsupported
     Such conclusory statements in an affidavit are            conclusions and interpretations of law.
insufficient to raise an issue of fact in response to a
motion for summary judgment. See, e.g., Ryland Group,               The District's claim that the bridge covering
Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); Brownlee        infringes upon the scope of its easement across
v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). "A               Defendants' land seems to be based, in part, upon an
conclusory statement is one that does not provide the          allegation that the covering either impedes the flow of
underlying facts to support the conclusion." Winchek v.        water through the canal or that it might, in the future,
Am. Exp. Travel Servs. Co., 232 S.W.3d 197, 206 (Tex.          impact the District's ability to repair or maintain the
App.--Houston [1st Dist.] 2007, no pet.). [**14]               canal. However, the District failed to provide any
Similarly, an affidavit that is nothing more than a sworn      summary judgment evidence to show this.
repetition of allegations in the pleadings has no probative
force, as the statements are no more than conclusions or a          Thus, our analysis turns [**16] to the remaining
mere surmise or suspicion. Selz v. Friendly Chevrolet,         summary judgment evidence: the express easement
Inc., 152 S.W.3d 833, 837 (Tex. App.--Dallas 2005, no          language and the photos of the construction in question.
pet.).                                                         We must determine whether the mere act of constructing
                                                               the bridge covering, even if that covering does not extend
     Further, Dollins's conclusory statements that the         into the canal or impede the flow of water through the
District's legislative authority allows it do certain things   canal beneath it, violates the terms of the easement.
(Dollins's interpretations of the law) are not competent
[*309] summary judgment evidence. Haden v. David J.            B. Violation of Easement
Sacks, P.C., No. 01-01-00200-CV, 332 S.W.3d 503, 2009
                                                                   On appeal, the District argues that the trial court
Tex. App. LEXIS 3199, 2009 WL 1270372, *5 (Tex.
                                                               erred in granting summary judgment on its claim for
App.--Houston [1st Dist.] 2009, pet. denied) ("Statements
                                                               declaratory and injunctive relief relating to the
that are nothing more than legal conclusions are not
                                                               Defendants' alleged violation of the easement.
sufficient to support a summary judgment as a matter of
law . . . ."). 4                                               1. Applicable Law
       4    The absence of factual statements and the              "An easement does not convey title to property."
       presence of conclusory statements are both              Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653,
       defects of substance. See Rizkallah v. Conner, 952      658 (Tex. 2007) (citing Marcus Cable Assocs. v. Krohn,
       S.W.2d 580, 587 (Tex. App.--Houston [1st Dist.]         90 S.W.3d 697, 700 (Tex. 2002)). Instead, an easement is
       1997, no writ).                                         a nonpossessory interest in another's property that
                                                               authorizes its holder to use that property for a particular
     In its reply brief, the District asserts (without
                                                               purpose. Marcus Cable, 90 S.W.3d at 700. The
supporting authority) that "every word in Mr. Dollins's
                                                               contracting parties' intentions as expressed in the grant
affidavit in support of the District must be taken as true."
                                                               determine the scope of the interest conveyed. Id. at
That, however, is not the case when the affidavit is
                                                               700-01. We read the terms of an easement as a whole to
wholly lacking factual support. [**15] In the reply brief,
                                                               reach an adequate interpretation of the parties' intentions
the District argues that, in his affidavit, Dollins "clearly
                                                               and to carry out [**17] the purpose for which the
and unequivocally denied Lily Gardens' description of
                                                               easement was created. Id. at 701. Unless the language is
events." However, a sworn general denial of another
                                                               ambiguous, we rely solely on the written instrument.
party's factual accounts does not meet the burden under
                                                               Koelsch v. Indus. Gas Supply Corp., 132 S.W.3d 494, 498
the no-evidence summary judgment grounds of
                                                               (Tex. App.--Houston [1st Dist.] 2004, pet. denied).
producing evidence to create a material fact issue. See
Burrow v. Arce, 997 S.W.2d 229, 235-36 (Tex. 1999)                  [*310] "In determining the scope of an easement,
(rejecting affidavit as "nothing more than a sworn denial
                                                                                                                   Page 6
                               333 S.W.3d 301, *310; 2010 Tex. App. LEXIS 7532, **17



'we may only imply those rights reasonably necessary to       District has asserts that the covering was affixed to the
the fair enjoyment of the easement with as little burden as   "culvert." By "culvert," the District is referring to two
possible to the servient owner.'" Whaley v. Cent. Church      pipes that are located in the drainage canal, underneath
of Christ of Pearland, 227 S.W.3d 228, 231 (Tex.              the cement bridge. 5 The term "culvert" is not used in the
App.--Houston [1st Dist.] 2007, no pet.) (quoting             easement grant, as are "canal" and "roadway." The
Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750       easement delineates, in clear terms, the District's rights
S.W.2d 868, 871 (Tex. App.--Austin 1988, writ denied));       with respect (a) the roadways to access the drainage canal
see also Marcus Cable, 90 S.W.3d at 701. "If a particular     and (b) the canal. We also address (c) the District's public
purpose is not provided for in the grant, a use pursuing      interest arguments.
that purpose is not allowed." Marcus Cable, 90 S.W.3d at
701.                                                                 5    See Fort Bend County Drainage Dist. v.
                                                                     Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991)
     To prevail on a claim for interference with easement            (drawing distinction between responsibilities with
rights, the District must prove that the Defendants                  regard to easement and bridge crossing over
engaged in activities that interfered with the District's            easement in tort case).
reasonable use and enjoyment of the easement. See Still
v. Eastman Chem. Co., 170 S.W.3d 851, 854 (Tex.                   a. Rights with respect to the roadway
App.--Texarkana 2005, no pet.) (citing County of Harris
                                                                   The granting instrument provides the District with
v. Southern Pacific Trans. Co., 457 S.W.2d 336, 340
                                                              certain rights incident to the purpose or use of the
(Tex. Civ. App.-Houston [1st Dist.] 1970, no writ.)).
                                                              easement, including the "right of ingress and egress to
2. [**18] Analysis                                            and from said drainage canal right of way[.]" In other
                                                              words, the District has the right to use the Defendants'
    In their summary judgment motion, the Defendants          roadway to travel from the public street to the drainage
specifically alleged that there was no evidence that they     canal location and back; the easement does not provide
engaged in activities that interfered with the District's     unlimited or exclusive use of the roadways [**20] or the
reasonable use and enjoyment of the easement.                 Defendants' property. [*311] The instrument also
Accordingly, the burden shifted to the District to present    provides, "after construction of said drainage canal, said
summary judgment evidence raising a genuine issue of          right of ingress and egress of the DISTRICT shall be
material fact that they did. See Mack Trucks, Inc., 206       limited to the said right of way and to existing roads and
S.W.3d at 582.                                                passageways." (Emphasis added.) Thus, the District is
                                                              prohibited from relocating the roadways. As further
     Here, the easement's stated purposes was for             evidence of the District's limited right to use the
"constructing, maintaining, operating, repairing, and         roadways on the property, the easement also expressly
re-constructing a drainage canal, including drains,           states that, during the life of the easement, the District is
ditches, laterals and levees[.]" The District alleged that    required "to repair all damage to roads, passageways and
the Defendants' construction of the covering over the         fences resulting from the DISTRICT'S use[.]"
existing bridge interfered with its easement rights.
                                                                   The intention of the parties was clearly expressed in
     The bridge covering added by the Defendants is           the easement instrument. The District has no right, under
affixed to the preexisting cement bridge above the            the terms of the easement, to control or prohibit
drainage canal, as distinguishable from construction in or    construction on the roadway. The District's only right
obstructing the canal.                                        with respect to the roadways is ingress and egress to and
                                                              from the drainage canal, and the District has not produced
     It is undisputed that the cement bridge was built        any evidence showing that the construction of the bridge
around the time the District built the drainage canal. The    covering prevented its ingress and egress to and from the
pictures attached as summary judgment evidence by the         drainage canal.
District show that the bridge covering was attached to
this preexisting bridge. The District does not provide any       b. District's Ability to Maintain the Drainage
evidence showing that the structure [**19] was actually       Canal
built onto or extended into the drainage canal. The
                                                                                                                  Page 7
                               333 S.W.3d 301, *311; 2010 Tex. App. LEXIS 7532, **20



     The District argues that the construction of the         writ denied) (observing that when summary judgment
covering may interfere with its ability [**21] to maintain    evidence raises only mere suspicion or surmise of fact in
the canal. Specifically, the District argues that it may      issue, no genuine issue of material fact exists).
need to remove and replace its "culverts." The District
points to language in the easement providing the District          [*312] c. Benefit of the Public
"the right from time to time to cut and remove all trees,
                                                                   The District also makes an appeal to the interest of
undergrowth, and abate other obstruction, upon said
                                                              [**23] the public, despite its failure to put forth any
canal right of way, that may injure, endanger, or interfere
                                                              evidence showing that the bridge covering affects
with the construction, operation, maintenance and repair
                                                              drainage, water flow, or flooding. In its summary
of said drainage canal." (Emphasis added). The District
                                                              judgment response, and without supporting allegations or
has not produced any evidence to show how the bridge
                                                              facts, the District urged that "there will be injury to the
covering would interfere with "the construction,
                                                              area landowners and the general public at large."
operation, maintenance and repair" of the drainage canal
as required by the terms of the easement. In fact, the             On appeal, the District makes a similar public
photographs, provided by the District as summary              interest argument, citing authority relating to "public
judgment evidence, conclusively establish that there is       easements." However, unlike the authority cited, this case
space between the preexisting cement bridge (to which         does not involve a public dedication or an easement
the bridge covering was attached) and the piping in the       authorizing use by the public. See Marcus Cable, 90
drainage ditch below. In other words, the photos show         S.W.3d at 707 (public easements are those easements
that the cement bridge is not attached to the piping in the   dedicated to public's use); Grimes v. Corpus Christi
drainage ditch.                                               Transmission, 829 S.W.2d 335, 337 (Tex. App.--Corpus
                                                              Christi 1992, writ denied) (easement granting State
     The District also suggests that the structure might
                                                              right-of-way for "highway purposes"). Furthermore, the
interfere with the future operation of the drainage system
                                                              Texas Supreme Court has held that the interests of the
because the District might opt to change the location of
                                                              public, no matter how laudable they may be, do not
the culvert. [**22] But the District has not shown how
                                                              warrant disregarding express easement terms to enlarge
the bridge covering might affect its ability to move the
                                                              its purpose beyond those intended by the contracting
culvert located beneath the bridge that was erected by the
                                                              parties. Marcus Cable, 90 S.W.3d at 706.
District.
                                                                   The District has failed to show that the Defendants'
     The District concedes that the bridge covering has
                                                              construction of the bridge covering violated the [**24]
not affected drainage, but it asserts that it may pose a
                                                              District's rights as expressly provided in the easement or
drainage problem in the future. To this extent, Dollins's
                                                              those rights reasonably necessary to accomplish the
affidavit states:
                                                              purpose of the easement, namely, "constructing,
                                                              maintaining, operating, repairing, and reconstructing a
            I do not know every possible future
                                                              drainage canal[.]" The District has not provided any
       problem that might result from the covered
                                                              evidence to create a fact issue as to whether the
       bridge; but for example, it might be a
                                                              construction of the bridge covering infringed on its rights
       drainage problem, it might be a wedding
                                                              pursuant to the easement. Accordingly, the record in this
       that was planned and the District removed
                                                              case warrants summary judgment in the Defendants'
       its culverts before the wedding, it might be
                                                              favor on the District's claims that its easement was
       that someone was injured on the covered
                                                              violated. Because we conclude that the trial court could
       bridge; the District would not want those
                                                              have properly granted the Defendants' no-evidence
       parties to claim that somehow the District
                                                              summary judgment motion, we need not reach
       was responsible for their problems.
                                                              Defendants' traditional summary judgment grounds
                                                              motion.
The statement quoted above has no evidentiary value
because it is not a "statement of fact," but instead, is          We overrule the District's first issue.
Dollins's speculation. See Wiggins v. Overstreet, 962
S.W.2d 198, 200 (Tex. App.--Houston [14th Dist.] 1998,        C. Trespass
                                                                                                                   Page 8
                                333 S.W.3d 301, *312; 2010 Tex. App. LEXIS 7532, **24



    In its second issue, the District argues that the trial     ability to regulate and improve drainage and flood
court erred in granting summary judgment in favor of the        prevention within the district. See Tex. H.B. 2959, 77th
Defendants on the "District's trespass claim."                  Leg., R.S. (2001) (enrolled). The Legislature cannot,
                                                                however, change a nonpossessory easement interest into a
      The Defendants addressed trespass in both its             possessory interest or title ownership, as would be
traditional and no-evidence summary judgment points.            required to maintain a trespass action against the
Under the no-evidence grounds, the Defendants argued            Defendants, without compensating a private landowner.
that, to recover on a trespass claim, the District would        [**27] See, e.g., Nollan v. Ca. Coastal Com'm, 483 U.S.
have to show that the Defendants made [**25] an                 825, 107 S.Ct. 3141, 97 L. Ed. 2d 677 (1987).
unauthorized entry onto property owned by the District.
The Defendants contended that the District had no                   Accordingly, the trial court did not err by granting
evidence that it owned the property at issue or that the        summary judgment in the Defendants' favor on the
Defendants made an unauthorized entry. Also, to the             District's trespass claim.
extent that the District relied on its regulations to support
the trespass allegation, the Defendants argued in their             We overrule the District's second issue.
no-evidence points that the District had no evidence that
                                                                Attorney's Fees
its regulations were lawfully adopted.
                                                                    In its third issue, the District argues that the trial
     In its brief, in support of its trespass claim, the
                                                                court erred in awarding the Defendants attorney's fees for
District asserts that "Lily Gardens does not own the
                                                                two reasons: (1) the Defendants were not entitled to fees
culvert in fee simple and the covering constitutes a
                                                                because they were not entitled to judgment under the
physical trespass without the District's consent." The
                                                                Declaratory Judgments Act; and (2) the Defendants did
District points out that the summary judgment record
                                                                not timely supplement their responses to the District's
"conclusively establishes the existence of a physical
                                                                request for production of documents regarding fees.
structure built by Lily Gardens upon the District's
easement," and the District summarily argues, "The              A. Attorney's Fees Under Declaratory Judgment Act
presence of [the bridge covering] structure constitutes a
trespass as a matter of law."                                        The District argues that, "because Lily Gardens is
                                                                not entitled to judgment under the Declaratory Judgments
     To prevail on a trespass claim, the plaintiff has the      Act, it may not recover fees under the statute." The
burden to prove (1) his right of ownership of the property      District seems to be arguing that only a party who
or a [*313] lawful right of possession, and (2) an entry        prevails on his own declaratory judgment cause of action
by the defendant. Cain v. Rust Indus. Cleaning Servs.,          may recover attorney's fees. To the contrary, it is well
Inc., 969 S.W.2d 464, 470 (Tex. App.--Texarkana 1998,           established that the trial court may award attorney's fees
pet denied). [**26] "Unlike a possessory interest in land,      to any party under the Declaratory Judgment Act.
an easement is a nonpossessory interest that authorizes its
holder to use the property for only particular purposes."            Section 37.009 of the Texas Civil Practice and
Marcus Cable, 90 S.W.3d at 700 (emphasis added). "An            Remedies Code, addressing [**28] costs and fees under
easement does not convey title to property." Flynn, 228         the Declaratory Judgment Act, provides, "In any
S.W.3d at 658. In other words, an easement does not             proceeding under this chapter, the court may award costs
convey to the easement holder an ownership or                   and reasonable and necessary attorney's fees as are
possessory interest. See id. Because, as a matter of law,       equitable and just." TEX. CIV. PRAC. & REM. CODE
the District cannot establish the first element of trespass     ANN. § 37.009 (Vernon 2008). The grant or denial of
(ownership or right of possession), its claim necessarily       attorney's fees in a declaratory judgment action lies
fails.                                                          within the discretion of the trial court, and its judgment
                                                                will not be reversed on appeal absent a clear showing that
    Lastly, the District attempts to support its trespass
                                                                it abused that discretion. Oake v. Collin County, 692
claim with its own rules and regulations. The District          S.W.2d 454, 455 (Tex. 1985). In the exercise of its
asserted that the legislature authorized it to enact rules      discretion to award attorney's fees in declaratory
and a permitting system and that House Bill 2959 of the         judgment action, the trial court may award attorney's fees
77th Texas Legislative Session expanded the District's
                                                                                                                   Page 9
                               333 S.W.3d 301, *313; 2010 Tex. App. LEXIS 7532, **28



to the prevailing party, may decline to award attorney's       prejudice. See TEX. R. CIV. P. 193.6.
fees to either party, or may award attorney's fees to the
nonprevailing party, regardless of which party sought               In its brief, the District fails to specify what
declaratory judgment. Ochoa v. Craig, 262 S.W.3d 29, 33        testimony, documents, or other evidence the trial court
(Tex. [*314] App.--Dallas 2008, pet. denied). Thus,            improperly admitted and has thus waived this issue for
contrary to the District's assertion, it is well established   improper briefing. See TEX. R. APP. P. 38.1(h); Garza v.
that attorney's fees under section 37.009 are not              Tex. Alcoholic Beverage Comm'n, 138 S.W.3d 609, 618
conditioned upon a party's prevailing on its own               (Tex. App.--Houston [14th Dist.] 2004, no pet.) (holding
declaratory claim.                                             appellant waived complaint that court improperly
                                                               admitted testimony and documents untimely [**31]
      The authority cited by the District does not support     produced or disclosed during discovery because he cited
its position. 6 Because the District [**29] has not clearly    only one example of improperly admitted evidence and
established an abuse of discretion, we may not disturb the     otherwise failed to specify which evidence was
trial court's award.                                           improperly admitted).

       6 The District cites Cytogenix, Inc. v. Waldroff             The District does not allege that the Defendants
       and McDowell v. McDowell for the proposition            failed to properly designate their counsel as an expert
       that, because the Defendants were not entitled to       witness on attorney's fees. Rather, the District
       judgment under the Declaratory Judgment Act, it         acknowledges that the Defendants requested attorney's
       may not recover under Section 37.009. Cytogenix         fees and provided summary judgment evidence in support
       involved a traditional breach of contract claim in      of the figures claimed at that point of time. Specifically,
       which the party was not awarded actual damages.         the Defendants provided the affidavit of their counsel
       See Cytogenix, 213 S.W.3d 479, 489-90 (Tex.             created on November 6, 2006. The affidavit included the
       App.--Houston [1st Dist.] 2006, pet. denied).           hourly billing rate sought, the summary of the work
       Cytogenix suggested the Declaratory Judgment            performed up to that time, an opinion regarding the
       Act as an alternative basis for attorney's fees, and    reasonable and necessary cost of the services provided
       the Court held that, "A party may not . . . couple a    and the services that would be required in the event of an
       declaratory plea with a damages action just to          appeal, and the total fees as of that time. The trial court
       recover attorney's fees." Id. at 490. In McDowell,      granted the Defendants' summary judgment but left open
       the San Antonio Court of Appeals reversed an            the issue of attorney's fees so that a hearing could be
       award of attorney's fees where declaratory              held. Between the time of the Defendants motion for
       judgment was not pled as a cause of action. See         summary judgment on November 6, 2006 and the hearing
       McDowell, 143 S.W.3d 124, 131 (Tex. App.--San           on attorney's fees on April 17, 2007, the Defendants
       Antonio 2004, pet. denied). [**30] Both cases are       incurred additional fees in corresponding [**32] with
       distinguishable from the present case because,          and addressing the issues raised by the District. Thus, the
       here, declaratory relief was pled and pursued as        change to the requested attorney's fees [*315] was
       an actual theory of relief. Thus, neither authority     merely due to their continuation of their work on the case
       supports reversal of attorney's fees in the present     to address issues raised and to prepare for the hearing on
       case.                                                   attorney's fees. We cannot conclude the trial court abused
                                                               its discretion by determining that the District was not
B. Failure to Supplement Discovery Record                      unfairly surprised. See TEX. R. CIV. P. 193.6(a)(2).

     The District argues that the trial court's award of           We overrule the District's third issue.
attorney's fees to the Defendants was improper because
the Defendants "did not timely supplement [their]              Conclusion
responses to the District's request for production of
documents[.]" Specifically, the District alleges that the          We affirm the trial court's summary judgment.
trial court should have excluded the evidence of
                                                                   George C. Hanks
attorney's fees under Texas Rule of Civil Procedure 193.6
because evidence was not timely produced and there was             Justice
no showing of good cause or a lack of unfair surprise or
                                                                                                                Page 10
                               333 S.W.3d 301, *315; 2010 Tex. App. LEXIS 7532, **32



Panel consists of Justices Alcala, Hanks, and Wilson. 7       with the . . . maintenance and repair of said drainage
                                                              canal" as in the language of the easement.
       7     The Honorable Davie L. Wilson, retired
       Justice, First Court of Appeals, participating by           It is within the common knowledge of all that to
       assignment.                                            work on the large pipes seen in the pictures might require
                                                              the use of equipment that may need to be placed on the
    Justice Wilson, dissenting.                               top of the bridge/ culvert. To insist the District come
                                                              forth with exacting evidence to make the future certain
DISSENT BY: Davie L. Wilson                                   asks for more than the burden required by law.

DISSENT                                                            Further, to reach its conclusions, it appears the
                                                              majority must necessarily believe that the top of the
                                                              bridge/ culvert is not in the easement. This result flows
DISSENT FROM OPINION ON REHEARING                             from a narrow interpretation of the easement language
                                                              which I do not believe is supported by the law as outlined
    Because I believe the District has produced more
                                                              in the original opinion. Because I would stand on the
than a scintilla of evidence that raises a genuine issue of
                                                              original opinion of the court, return the case below for
material fact, I respectfully dissent.
                                                              further consideration of the merits [**34] of the issues
     The word "may" as used in the easement language          presented, I respectfully dissent.
contemplates future events which by their nature are
                                                                  Davie L. Wilson
speculative. The pictures of the bridge covering are in
and of themselves sufficient to raise a fact issue (i.e.,         Justice, Retired
showing that the bridge covering includes walls on the
side of the bridge that prevent people and [**33]                 Panel consists of Justices Alcala, Hanks, and Wilson.
machinery from reaching down off of the bridge into the       1
waterway below). In my judgment, expert testimony is
not necessary to reach the conclusion that some future               1     The Honorable Davie L. Wilson, retired
event "may" require access to the top of the                         Justice, First Court of Appeals, participating by
bridge/culvert by the District to make repairs and/or                assignment.
improvements to the canal directly below due to
circumstances that "may injure, endanger, or interfere
                                                                                                                Page 1




                 LAURI SMITH AND HOWARD SMITH, PETITIONERS, v. PATRICK W. Y.
                                  TAM TRUST, RESPONDENT

                                                    NO. 07-0970

                                          SUPREME COURT OF TEXAS

                             296 S.W.3d 545; 2009 Tex. LEXIS 822; 53 Tex. Sup. J. 54

                                             August 29, 2008, Argued
                                        October 23, 2009, Opinion Delivered

PRIOR HISTORY: [**1]                                        (quoting Cochran v. Wool Growers Cent. Storage Co.,
  ON PETITION FOR REVIEW FROM THE COURT                     140 Tex. 184, 166 S.W.2d 904, 908 (Tex. 1942)). We
OF APPEALS FOR THE FIFTH DISTRICT OF                        must decide whether Ragsdale authorizes a court to
TEXAS.                                                      award fees as a matter of law when a jury awards roughly
Smith v. Patrick W.Y. Tam Trust, 235 S.W.3d 819, 2007       one-third of the damages sought and no attorney's fees.
Tex. App. LEXIS 6022 (Tex. App. Dallas, 2007)               Because, under such circumstances, a court's award of the
                                                            full amount of fees sought is unreasonable, we reverse in
                                                            part the court of appeals' judgment and remand to the trial
COUNSEL: For Smith, Lauri, PETITIONER: Mr.                  court for a new trial on attorney's fees.
Robert D. Ranen, Ranen & Netzer, LLP, Plano TX.
                                                                  I
For Patrick W.Y. Tam Trust, RESPONDENT: Mr. Scott
E. Hayes, Mr. Michael Wayne Massiatte, Vincent |            Factual and Procedural Background
Moye, P.C., Dallas TX.
                                                                The Patrick W. Y. Tam Trust owns a shopping center
JUDGES: CHIEF JUSTICE JEFFERSON delivered the               in [**2] Collin County. The Trust leased space to
opinion of the Court.                                       Independent Quality Wholesale, Inc. d/b/a Plano Pets &
                                                            Grooming, with Lauri and Howard Smith as guarantors.
OPINION BY: Wallace B. Jefferson                            When Plano Pets stopped making payments, the Trust
                                                            sued Plano Pets 1 and the Smiths, seeking $ 215,391.50 in
OPINION                                                     damages and $ 47,438.75 in attorney's fees.

      [*546] The reasonableness of attorney's fees is                 1   The Trust nonsuited Plano Pets after the
generally an issue for the trier of fact. In Ragsdale v.              company filed bankruptcy.
Progressive Voters League, however, we held that a court
                                                                 At trial, Scott Hayes, the Trust's attorney, testified
may award attorney's fees as a matter of law when the
                                                            that a reasonable fee for the preparation and trial of the
testimony on fees "'is not contradicted by any other
                                                            case would be $ 47,438.75, plus $ 15,000 for appeals, for
witness, or attendant circumstances, and the same is
                                                            a total of $ 62,438.75. To support his testimony, Hayes
clear, direct and positive, and free from contradiction,
                                                            offered the legal bills of several other attorneys in his
inaccuracies, and circumstances tending to cast suspicion
                                                            firm. The Smiths unsuccessfully objected that the bills
thereon.'" Ragsdale, 801 S.W.2d 880, 882 (Tex. 1990)
                                                                                                                   Page 2
                                   296 S.W.3d 545, *546; 2009 Tex. LEXIS 822, **2;
                                                  53 Tex. Sup. J. 54


were hearsay but did not otherwise challenge the Trust's       provided by counsel; the time required for trial; the
evidence.                                                      amount of money involved; the client's interest that is at
                                                               stake; the responsibility imposed upon counsel; and the
      The jury found the Smiths liable and awarded the         skill and expertise required." Ragsdale, 801 S.W.2d at
Trust $ 65,000 in damages but no attorney's fees. The          881. We noted that generally, "'the testimony of an
Trust moved to enter judgment on the jury's liability and      interested witness, such as a party to the suit, though not
damages answers and to disregard the jury's refusal to         contradicted, does no more than raise a fact issue to be
award attorney's fees. The trial court rendered judgment       determined by the jury.'" Id. at 882 (quoting Cochran,
that the Trust receive the $ 65,000 the jury awarded, and      166 S.W.2d at 908). But we recognized that there was
rendered judgment notwithstanding [*547] the verdict on        "'an exception to this rule, which is that where the
attorney's fees: $ 7,500 for fees incurred through [**3]       testimony of an interested witness is not contradicted by
trial and up to $ 15,000 in attorney's fees for success at     any other witness, or attendant [**5] circumstances, and
various stages of appeal. Both sides appealed.                 the same is clear, direct and positive, and free from
                                                               contradiction, inaccuracies, and circumstances tending to
     The court of appeals vacated the $ 7,500 attorney's       cast suspicion thereon, it is taken as true, as a matter of
fee award and rendered judgment for $ 47,438.75 instead,       law.'" Id. (quoting Cochran, 166 S.W.2d at 908). "The
holding that "[b]ecause the Trust presented competent,         court, as a trier of fact, may award attorneys' fees as a
uncontroverted evidence of its right to attorney's fees and    matter of law in such circumstances, especially when the
because the Smiths did not challenge the amount, nature,       opposing party has the means and opportunity of
or necessity of these fees . . . the trial judge abused his    disproving the testimony or evidence and fails to do so."
discretion in awarding $ 7,500." 235 S.W.3d 819, 828           Id. Because the attorney's fees evidence met those
(citing Ragsdale, 801 S.W.2d at 881). The court of             requirements, we rendered judgment for $ 22,500 in
appeals affirmed the remainder of the judgment. Id. at         attorney's fees and affirmed the $ 40,000 damages award.
829. We granted the Smiths' petition for review. 51 Tex.       Id.
Sup. Ct. J. 980, 987 (June 9, 2008).
                                                                   Relying on Ragsdale, the court of appeals in this
II                                                             case rendered judgment as a matter of law, holding that
                                                               the Trust's attorney's fee evidence was competent,
Discussion
                                                               uncontroverted, and unchallenged. 235 S.W.3d at 828-29.
     "A person may recover reasonable attorney's fees . . .    But Ragsdale recognized that its rule would not apply
in addition to the amount of a valid claim and costs, if the   whenever attorney's fees testimony is undisputed:
claim is for . . . an oral or written contract." TEX. CIV.
PRAC. & REM. CODE § 38.001(8). If attorney's fees are                   [W]e do not mean to imply that in every
proper under section 38.001(8), the trial court has no                case when uncontradicted testimony is
discretion to deny them. See Bocquet v. Herring, 972                  offered it mandates an award of the
S.W.2d 19, 20 (Tex. 1998) (holding that statutes                      amount claimed. For example, even
providing that a party "may recover" attorney's fees are              though     the   evidence        might be
not discretionary). Generally, the party seeking [**4] to             uncontradicted, if it is unreasonable,
recover attorney's fees carries the burden of proof.                  incredible, [*548] or its belief is
Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10                 questionable, [**6] then such evidence
(Tex. 1991).                                                          would only raise a fact issue to be
                                                                      determined by the trier of fact.
     The reasonableness of attorney's fees is ordinarily
left to the factfinder, and a reviewing court may not          Ragsdale, 801 S.W.2d at 882. We also cautioned that the
substitute its judgment for the jury's. Barker v. Eckman,      factfinder had to consider "the amount of money
213 S.W.3d 306, 314 (Tex. 2006); Ragsdale, 801 S.W.2d          involved." Id. at 881; see also Wayland v. City of
at 881. In Ragsdale, we held that "[i]n awarding               Arlington, 711 S.W.2d 232, 233 (Tex. 1986) ("One of the
attorney's fees the trial court, as the trier of fact, must    factors in determining the reasonableness of attorney's
take into account various factors such as: the nature and      fees is the amount of damages awarded."). Seven years
complexity of the case; the nature of the services             later, we added a corollary: the factfinder should consider
                                                                                                                  Page 3
                                  296 S.W.3d 545, *548; 2009 Tex. LEXIS 822, **6;
                                                 53 Tex. Sup. J. 54


"the amount involved and the results obtained," among        to fee awards made by trial courts, not just juries. Young
other things. Arthur Andersen & Co. v. Perry Equip.          v. Qualls, 223 S.W.3d 312, 314 (Tex. 2007). We see no
Corp., 945 S.W.2d 812, 818 (Tex. 1997).                      reason why [**8] they would not apply--as the Ragsdale
                                                             factors do--to an appellate court's assessment of whether
     Here, the Trust sought over $ 200,000 in damages,       fees were established as a matter of law. Because the fee
but the jury awarded only $ 65,000. The Trust asked for a    is unreasonable in light of the amount involved and the
maximum of $ 62,438.75 in attorney's fees; the jury          results obtained, the evidence did no more than raise a
awarded nothing. The court of appeals held that fees were    fact issue to be decided by the jury. See Ragsdale, 801
established as a matter of law. See Ragsdale, 801 S.W.2d     S.W.2d at 882.
at 882. But the fee, though supported by uncontradicted
testimony, was unreasonable in light of the amount                The jury, however, awarded nothing. Although it
involved and the results obtained, and in the absence of     could have rationally concluded that, in light of the
evidence that such fees were warranted due                   amount involved and the results obtained, a reasonable
circumstances unique to this case. Cf. Farrar v. Hobby,      fee award was less than the full amount sought, no
506 U.S. 103, 114, 113 S. Ct. 566, 121 L. Ed. 2d 494         evidence supported the jury's refusal to award any
(1992) (holding that "'the degree [**7] of the plaintiff's   attorney's fees (as the court of appeals correctly noted).
overall success goes to the reasonableness' of a fee         235 S.W.3d at 829. The trial court could have directed the
award" and "'the most critical factor' in determining the    jury to reform its verdict, see TEX. R. CIV. P. 295, but the
reasonableness of a fee award 'is the degree of success      court was not free to set a reasonable fee on its own.
obtained.'") (quoting Tex. State Teachers Ass'n v.           Accordingly, the Smiths are entitled to a new trial on
Garland Indep. Sch. Dist., 489 U.S. 782, 793, 109 S. Ct.     attorney's fees.
1486, 103 L. Ed. 2d 866 (1989); Hensley v. Eckerhart,
461 U.S. 424, 436, 103 S. Ct. 1933, 76 L. Ed. 2d 40               On retrial, the evidence may support a similar fee
(1983)). Although the Trust sought some $ 215,000 in         award, but that is a matter within the jury's purview. See
damages, the jury found that "the amount involved" was       Young, 223 S.W.3d at 315 ("It may be that, upon
much lower--$ 65,000. The jury then decided that the         consideration of the correct results obtained, this
Trust was entitled to no fees (which must be reversed for    evidence would be factually sufficient to support a like
reasons explained below).                                    fee award."). On this record, the [**9] Trust is not
                                                             entitled to its fees [*549] as a matter of law. Because the
     The Trust complains that the Smiths' failure to         court of appeals concluded otherwise, we reverse its
request a jury instruction on the Arthur Andersen factors    judgment as to attorney's fees and remand that part of the
waives their right to complain about the fee award. But      case to the trial court for a new trial. TEX. R. APP. P.
the jury's fee award is not at issue here. The court of      60.2(d).
appeals awarded the full amount requested, despite the
jury's rejection of a substantial portion of the damages         Wallace B. Jefferson
sought. Those fees, even though supported by
                                                                 Chief Justice
uncontradicted testimony, may not be awarded by a court
as a matter of law.                                              Opinion Delivered: October 23, 2009
    We have held that the Arthur Andersen factors apply
                                                                                                             Page 1




              TONY GULLO MOTORS I, L.P. AND BRIEN GARCIA, PETITIONERS, v. NURY
                                   CHAPA, RESPONDENT

                                                  NO. 04-0961

                                        SUPREME COURT OF TEXAS

                           212 S.W.3d 299; 2006 Tex. LEXIS 1301; 50 Tex. Sup. J. 278

                                          October 19, 2005, Argued
                                     December 22, 2006, Opinion Delivered

SUBSEQUENT HISTORY:                 [**1] Released for    JUSTICE HECHT, JUSTICE WAINWRIGHT, JUSTICE
Publication February 23, 2007.                            GREEN, and JUSTICE WILLETT joined. JUSTICE
Rehearing denied by Tony Gullo Motors I, L.P. v. Chapa,   JOHNSON filed a concurring opinion. JUSTICE
2007 Tex. LEXIS 165 (Tex., Feb. 23, 2007)                 O'NEILL filed a dissenting opinion. JUSTICE MEDINA
On remand at, Remanded by Chapa v. Tony Gullo             did not participate in the decision.
Motors I, L.P., 2007 Tex. App. LEXIS 5870 (Tex. App.
Beaumont, July 26, 2007)                                  OPINION BY: Scott Brister
On remand at, Remanded by Chapa v. Tony Gullo
Motors I, L.P., 2007 Tex. App. LEXIS 9543 (Tex. App.      OPINION
Beaumont, Dec. 6, 2007)
                                                                [*303] Nury Chapa bought a Toyota Highlander
PRIOR HISTORY:         ON PETITION FOR REVIEW             from Tony Gullo Motors for $ 30,207.38; they disagree
FROM THE COURT OF APPEALS FOR THE NINTH                   what model of the car was involved. After a two-day trial,
DISTRICT OF TEXAS.                                        the six jurors answered 15 questions concerning breach of
Chapa v. Tony Gullo Motors I, L.P., 2004 Tex. App.        contract, fraud, and the DTPA 1 in Chapa's favor. They
LEXIS 7751 (Tex. App. Beaumont, Aug. 26, 2004)            also found a difference in value of the two models of $
                                                          7,213, mental anguish damages of $ 21,639, exemplary
                                                          damages of $ 250,000, and attorney's fees of $ 20,000.
COUNSEL: For PETITIONER: The Honorable Craig T.
Enoch, Ms. Melissa Anne Prentice, Mr. Alejandro Sin              1           See    Texas     Deceptive   Trade
Valdes, Ms. Roxanne T. L. Wilson, WINSTEAD                       Practices-Consumer Protection Act, TEX. BUS. &
SECHREST & MINICK, P.C., Austin, TX; Mr. Joe                     COM. CODE §§ 17.41-.63 ("DTPA").
Michels, Jr., WINSTEAD SECHREST & MINICK, P.C.,
                                                               [**2] The trial court disregarded the mental anguish
The Woodlands, TX; Mr. William T. Green, III, Houston,
                                                          and exemplary awards on the ground that Chapa's only
TX.
                                                          claim was for breach of contract, and the fee award
For RESPONDENT: Ms. Kristin Bays, Mr. J. Randal           because Chapa had not segregated fees attributable to that
Bays, BAYS & BAYS, Conroe, TX.                            claim alone. In a per curiam memorandum opinion, the
                                                          Ninth Court of Appeals disagreed with both conclusions,
JUDGES: JUSTICE BRISTER delivered the opinion of          reinstating all the awards but reducing exemplary
the Court, in which CHIEF JUSTICE JEFFERSON,              damages to $ 125,000.
                                                                                                                   Page 2
                                  212 S.W.3d 299, *303; 2006 Tex. LEXIS 1301, **2;
                                                 50 Tex. Sup. J. 278


    We agree that Chapa could assert her claim in                      4 See Stewart Title Guar. Co. v. Aiello, 941
several forms, but disagree that she could recover in all of           S.W.2d 68, 72, 40 Tex. Sup. Ct. J. 290 (Tex. 1997)
them. Further, the court of appeals' judgment included                 (holding mental anguish and exemplary damages
exemplary damages exceeding the bounds of                              unavailable for breach of contract).
constitutional law and attorney's fees exceeding the                   5 See New Amsterdam Cas. Co. v. Texas Indus.,
bounds of Texas law. Accordingly, we reverse and                       414 S.W.2d 914, 915, 10 Tex. Sup. Ct. J. 357 (Tex.
remand for further proceedings.                                        1967) (stating that "attorney's fees are not
                                                                       recoverable either in an action in tort or a suit
I. Election of Remedies                                                upon a contract unless provided by statute or by
                                                                       contract between the parties"); see also Neeley v.
    In entering judgment for Chapa on all her contract,                Bankers Trust Co. of Texas, 757 F.2d 621, 633
fraud, and DTPA claims, the court of appeals violated the              (5th Cir. 1985).
one-satisfaction rule. "There can be but one recovery for              6 See TEX. BUS. & COM. CODE § 17.50(b)(1).
one injury, and the fact that . . . there may be more than             For acts committed intentionally, a consumer may
one theory of liability[] does not modify this rule." 2                recover additional damages up to three times the
                                                                       amount of economic and mental anguish damages
       2 Stewart Title Guar. Co. v. Sterling, 822 S.W.2d
                                                                       combined, see id.; with regard to the DTPA,
       1, 8, 35 Tex. Sup. Ct. J. 206 (Tex. 1991).
                                                                       Chapa only requested and obtained a jury finding
      [**3] Chapa alleged only one injury -- delivery of a             that Gullo Motor's violations were committed
base-model Highlander rather than a Highlander Limited.                knowingly.
While she could certainly plead more than one theory of
                                                                     [**5] But as Chapa was the prevailing party, she is
liability, she could not recover on more than one. 3
                                                               still entitled to judgment on the most favorable theory
       3 See Boyce Iron Works, Inc. v. Sw. Bell Tel.           supported by the pleadings, evidence, and verdict. 7 Gullo
       Co.,747 S.W.2d 785, 787, 31 Tex. Sup. Ct. J. 310        Motors does not challenge the jury's breach of contract or
       (Tex. 1988) ("When a party tries a case on              economic damages findings in this Court. Accordingly,
       alternative theories of recovery and a jury returns     the only question before us is whether Chapa is entitled to
       favorable findings on two or more theories, the         anything more.
       party has a right to a judgment on the theory
                                                                       7 See Gulf States Utils. Co. v. Low, 79 S.W.3d
       entitling him to the greatest or most favorable
                                                                       561, 566, 45 Tex. Sup. Ct. J. 724, 45 Tex. Sup. Ct.
       relief."); see also TEX. BUS. & COM. CODE §
                                                                       J. 793 (Tex. 2002); Boyce Iron Works, 747 S.W.2d
       17.43 (providing that "no recovery shall be
                                                                       at 787 (Tex. 1988).
       permitted under both this subchapter and another
       law of both damages and penalties for the same          II. Mere Breach of Contract
       act or practice"); Gunn Infiniti, Inc. v. O'Byrne,
       996 S.W.2d 854, 862 (Tex. 1999)(holding plaintiff            Gullo Motors argues that Chapa's only claim is in
       must elect recovery under either DTPA or fraud          contract, as the parties' only dispute is whether she
       after remand).                                          contracted for a base-model Highlander or Highlander
                                                               Limited. "An allegation of a mere breach of contract,
     [*304] For breach of contract, Chapa could recover        without more, does not constitute a 'false, misleading or
economic damages and attorney's fees, but [**4] not            deceptive act' in violation of the DTPA." 8 Similarly, "the
mental anguish or exemplary damages. 4 For fraud, she          usual view is that mere breach of contract is not fraud and
could recover economic damages, mental anguish, and            that it may not be evidence of fraud." 9
exemplary damages, but not attorney's fees. 5 For a
DTPA violation, she could recover economic damages,                    8 Ashford Dev., Inc. v. US Life Real Estate Serv.
mental anguish, and attorney's fees, but not additional                Corp., 661 S.W.2d 933, 935, 27 Tex. Sup. Ct. J.
damages beyond $ 21,639 (three times her economic                      118 (Tex. 1983)(citations omitted).
damages). 6 The court of appeals erred by simply               [**6]
awarding them all.                                                     9 Thigpen v. Locke, 363 S.W.2d 247, 252, 6 Tex.
                                                                       Sup. Ct. J. 157 (Tex. 1962).
                                                                                                                      Page 3
                                    212 S.W.3d 299, *304; 2006 Tex. LEXIS 1301, **6;
                                                   50 Tex. Sup. J. 278


     But Chapa alleged more than a mere breach of                        "failing to disclose information concerning goods
contract; her complaint was not just that Gullo Motors                   or services which was known at the time of the
failed to deliver a Highlander Limited, but that it never                transaction if such failure to disclose such
intended to do so. A contractual promise made with no                    information was intended to induce the consumer
intention of performing may give rise to an action for                   into a transaction into which the consumer would
fraudulent inducement. 10 The duty not to fraudulently                   not have entered had the information been
procure a contract arises from the general obligations of                disclosed").
law rather than the contract itself, and may be asserted in
tort even if the only damages are economic. 11                          [**8] Of course, Chapa was required not just to
                                                                 plead but to prove her claims. Proving that a party had no
        10 See Formosa Plastics Corp. USA v. Presidio            intention of performing at the time a contract was made is
        Eng'rs and Contractors, Inc., 960 S.W.2d 41, 46,         not easy, as intent to defraud is not usually susceptible to
        41 Tex. Sup. Ct. J. 289 (Tex. 1998)(quoting Crim         direct proof. 16 Breach alone is no evidence that breach
        Truck & Tractor Co. v. Navistar Int'l Transp.            was intended when the contract was originally made. 17
        Corp., 823 S.W.2d 591, 597, 35 Tex. Sup. Ct. J.          Similarly, denying that an alleged promise was ever made
        342 (Tex. 1992)).                                        is not legally sufficient evidence of fraudulent
        11                                                       inducement. 18 Usually, successful claims of fraudulent
                                                                 inducement have involved confessions by the defendant
            See id. at 46-47.                                    or its agents of the requisite intent. 19

    Gullo Motors argues that Chapa cannot bring a                        16 See Spoljaric, 708 S.W.2d at 435.
fraudulent inducement claim because she was not [**7]                    17 See id. ("Failure to perform, standing alone, is
promised a car she did not want, but one that she did. But               no evidence of the promisor's intent not to
a party may bring a fraudulent inducement [*305] claim                   perform when the promise was made."); Formosa
even if the terms of the promise are later subsumed into a               Plastics, 960 S.W.2d at 48; Schindler v. Austwell
contract. 12 In all such cases, the liability of the defendant           Farmers Co-op., 841 S.W.2d 853, 854, 36 Tex.
on the contract does not absolve it from liability in tort               Sup. Ct. J. 84 (Tex. 1992) (per curiam) (finding
damages too. 13                                                          failure to pay amount due was not fraud); Crim
                                                                         Truck, 823 S.W.2d at 597.
        12 See id. at 47 (citing Graham v. Roder, 5 Tex.                 18 See Miga v. Jensen, 96 S.W.3d 207, 210-11,
        141, 149 (1849)).                                                46 Tex. Sup. Ct. J. 89 (Tex. 2002); T.O. Stanley
        13                                                               Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d
                                                                         218, 222, 36 Tex. Sup. Ct. J. 259 (Tex. 1992)
            See id.; Spoljaric v. Percival Tours, Inc., 708
                                                                         (stating that denial of making promise was "a
        S.W.2d 432, 436, 29 Tex. Sup. Ct. J. 280 (Tex.
                                                                         factor" but "does not constitute evidence that the
        1986).
                                                                         Bank never intended to perform its promise");
     Similarly, while the failure to deliver a Highlander                Spoljaric, 708 S.W.2d at 435 ("Failure to perform
Limited would not alone violate the DTPA, 14 Chapa's                     . . . is a circumstance to be considered with other
claim was that Gullo Motors represented she would get                    facts to establish intent."). But see Thigpen v.
one model when in fact she was going to get another.                     Locke, 363 S.W.2d 247, 252, 6 Tex. Sup. Ct. J.
While failure to comply would violate only the contract,                 157 (Tex. 1962) ("[S]ubsequent breach is not
the initial misrepresentation violates the DTPA. 15                      evidence that may be considered in determining
                                                                         whether or not there was fraud in the original
        14 See Crawford v. Ace Sign, Inc., 917 S.W.2d                    transaction.").
        12, 14, 39 Tex. Sup. Ct. J. 296 (Tex. 1996).             [**9]
        15      See TEX. BUS. & COM. CODE §§                             19 See, e.g., Formosa Plastics, 960 S.W.2d at 48
        17.46(b)(7) (defining deceptive acts to include                  (noting that defendant's civil department director
        "representing that . . . goods are of a particular               admitted that defendant had acted deceptively and
        style or model, if they are of another"),                        had no intention of performing a key contractual
        17.46(b)(24)(defining deceptive acts to include                  promise at the time it was made); Spoljaric, 708
                                                                                                                   Page 4
                                  212 S.W.3d 299, *305; 2006 Tex. LEXIS 1301, **9;
                                                 50 Tex. Sup. J. 278


       S.W.2d at 434-35 (noting that defendant denied he              23       Chapa also argues that Gullo Motors'
       ever approved a bonus contract, but corporate                  agreement after the dispute arose to install certain
       secretary testified that he did).                              features of a Highlander Limited in her
                                                                      base-model is some evidence of its earlier
     But while breach alone is no evidence of fraudulent              fraudulent intent. We disagree; if efforts to satisfy
intent, breach combined with "slight circumstantial                   a consumer after a dispute arises are some
evidence" of fraud is enough to support a verdict for                 evidence of fraud, sellers will be loathe to make
fraudulent inducement. 20 We believe Chapa met that                   any. Cf. PPG Indus., Inc. v. JMB/Houston Ctrs.
standard here.                                                        Partners Ltd. P'ship, 146 S.W.3d 79, 95, 47 Tex.
                                                                      Sup. Ct. J. 822 (Tex. 2004)("We should encourage
       20 Spoljaric, 708 S.W.2d at 435.                               sellers to attempt repairs; tolling limitations every
                                                                      time they do might discourage them from doing
      At trial, Chapa testified that she signed a contract
                                                                      so at all.").
listing a Highlander Limited, but that Gullo Motors
personnel "snatched" the contract from her after she                [**12] We recognize the need to keep tort law from
signed it, and must have destroyed it later. She also          overwhelming contract law, so that private agreements
testified that the signatures [**10] on at least four          are not subject to readjustment by judges and juries. 24
documents were forged, and that [*306] some were               But we long ago abandoned the position that procuring a
forgeries of her deceased husband's signature rather than      contract by fraud was simply another contract dispute. 25
her own. In light of the favorable verdict, we must            Because Chapa proved more than mere breach of contract
assume the jury credited this testimony. 21                    here, we hold she was entitled to assert fraud and DTPA
                                                               claims as well.
       21 See City of Keller v. Wilson, 168 S.W.3d 802,
       819-20, 48 Tex. Sup. Ct. J. 848 (Tex. 2005).                   24      See, e.g., William Powers, Jr., The
                                                                      Availability of Tort Remedies for Breach of
     Spoliation of evidence normally supports an
                                                                      Contract: Border Wars, 72 TEX. L. REV. 1209
inference only that the evidence was unfavorable, 22 not
                                                                      (1994).
that it was created ab initio with fraudulent intent. But as
                                                                      25 See Formosa Plastics, 960 S.W.2d at 46-47.
the evidence here was part of the original contracting
process, it provides some circumstantial evidence of               III. Exemplary Damages
fraud in that process.
                                                                    The jury found Gullo Motors had committed
       22 See Trevino v. Ortega, 969 S.W.2d 950, 953,          deceptive acts knowingly and found clear and convincing
       41 Tex. Sup. Ct. J. 907 (Tex. 1998)(holding             evidence that it had committed fraud. Beyond arguing
       spoliation best addressed not by independent            that Chapa can only sue in contract, Gullo Motors does
       cause of action but by inference that evidence was      not challenge either finding. As we have rejected that
       unfavorable).                                           argument, Chapa is entitled under the verdict to
                                                               exemplary damages for either fraud or violation of the
     Further, the only contract introduced at trial listed
                                                               [**13] DTPA. 26
[**11] the car sold as a "2002 Toyota"; although Gullo
Motors prepared the contract, it offered no explanation               26 See TEX. CIV. PRAC. & REM. CODE §
why the box for indicating the model was left blank.                  41.003(a) (providing for recovery of exemplary
Although the contract listed a vehicle identification                 damages if claimant proves by clear and
number that matched the base-model Chapa ultimately                   convincing evidence that harm resulted from
received, there was evidence that Gullo Motors did not                fraud); TEX. BUS. & COM. CODE §
contract for that car until several days after Chapa signed           17.50(b)(1)(providing for recovery of up to three
the contract, and thus must have added it later. 23 And               times economic damages if conduct violating
when Chapa's first attorney offered to return the car for a           DTPA was committed knowingly).
refund, Gullo Motors refused on the ground that it had
already been titled, although evidence at trial suggested          But both parties challenge the court of appeals'
that did not occur until several days later.                   judgment reinstating exemplary damages but reducing
                                                                                                                   Page 5
                                  212 S.W.3d 299, *306; 2006 Tex. LEXIS 1301, **13;
                                                  50 Tex. Sup. J. 278


them to $ 125,000 -- Gullo Motors because the                         436-37, 121 S. Ct. 1678, 149 L. Ed. 2d 674
reinstatement went too far, and Chapa because it did not              (2001)(requiring de novo appellate review of
go far enough. Although the jury assessed exemplary                   exemplary damages because "the level of punitive
damages for both fraud [*307] and deceptive acts at $                 damages is not really a 'fact' 'tried ' by the
250,000, the DTPA caps those damages at $ 21,639                      jury")(citation omitted).
(three times Chapa's economic loss of $ 7,213), 27 while              31 See Bentley v. Bunton, 94 S.W.3d 561, 607,
the fraud award is capped at $ 200,000. 28 Accordingly,               45 Tex. Sup. Ct. J. 1172 (Tex. 2002) (finding
the court of appeals' opinion and the parties' briefs                 exemplary damages were not constitutionally
address only whether the exemplary damages were                       excessive, but remanding for reassessment in light
properly awarded based on fraud.                                      of reduced mental anguish award); Malone, 972
                                                                      S.W.2d at 45-48 (finding exemplary damages
         27 TEX. BUS. & COM. CODE § 17.50(b)(1).                      were not constitutionally excessive).
         The same statutory provision limits additional               32 Honda Motor Co., Ltd. v. Oberg , 512 U.S.
         damages to three times economic and mental                   415, 418, 426-27, 114 S. Ct. 2331, 129 L. Ed. 2d
         anguish damages if conduct is committed                      336 (1994) ("An amendment to the Oregon
         intentionally, id., but Chapa only requested a jury          Constitution prohibits judicial review of the
         finding whether Gullo Motors' committed                      amount of punitive damages awarded by a jury
         deceptive acts knowingly.                                    'unless the court can affirmatively say there is no
[**14]                                                                evidence to support the verdict.' The question
         28      TEX. CIV. PRAC. & REM. CODE §                        presented is whether that prohibition is consistent
         41.008(b)(capping exemplary damages at the                   with the Due Process Clause of the Fourteenth
         greater of (1) noneconomic damages plus two                  Amendment. We hold that it is not.").
         times economic damages, or (2) $ 200,000).
                                                                     [**16] Second, Chapa claims that by authorizing up
    A                                                          to $ 200,000 in exemplary damages, the Legislature
                                                               necessarily rendered that amount constitutionally
     As an initial matter, Chapa asserts that three grounds    permissible. But while "state law governs the amount
preclude our constitutional review of the exemplary            properly awarded as punitive damages," that amount is
damages award. First, she argues this Court lacks              still "subject to an ultimate federal constitutional check
jurisdiction to consider whether exemplary damages are         for exorbitancy." 33
constitutionally excessive. While the excessiveness of
damages as a factual matter is final in the Texas courts of           33 Gasperini v. Ctr. for Humanities, Inc., 518
appeals, 29 the constitutionality of exemplary damages is             U.S. 415, 431 n.12, 116 S. Ct. 2211, 135 L. Ed. 2d
a legal question for the court. 30 We have conducted such             659 (1996); Malone, 972 S.W.2d at 45 ("[E]ven if
analyses before. 31 Moreover, the Supreme Court of the                an assessment of punitive damages is not deemed
United States has found unconstitutional a state                      excessive under governing state law, it may
constitutional provision limiting appellate scrutiny of               violate a party's substantive due process right to
exemplary damages to no-evidence review. 32 Only by                   protection from 'grossly excessive' punitive
adhering to our practice of reviewing exemplary damages               damages awards.").
for constitutional (rather than factual) excessiveness can
we avoid a similar constitutional conflict.                         Third, Chapa argues that she is entitled to the jury's
                                                               entire exemplary damage award because the trial court
         29 See Alamo Nat'l. Bank v. Kraus, 616 S.W.2d         complied with the procedural protections required by the
         908, 910, 24 Tex. Sup. Ct. J. 343 (Tex. 1981).        Due Process Clause. But the constitutional limitations on
[**15]                                                         such awards are substantive as well as procedural. 34
         30                                                    [*308] Even if the procedural processes [**17] were
                                                               perfect, "[t]o the extent an award is grossly excessive, it
              See Owens-Corning Fiberglas Corp. v.             furthers no legitimate purpose and constitutes an arbitrary
         Malone, 972 S.W.2d 35, 43, 45, 41 Tex. Sup. Ct.       deprivation of property." 35
         J. 877 (Tex. 1998); see also Cooper Indus., Inc. v.
         Leatherman Tool Group, Inc., 532 U.S. 424,                   34 State Farm Mut. Auto. Ins. Co. v. Campbell,
                                                                                                                    Page 6
                                  212 S.W.3d 299, *308; 2006 Tex. LEXIS 1301, **17;
                                                  50 Tex. Sup. J. 278


         538 U.S. 408, 418, 123 S. Ct. 1513, 155 L. Ed. 2d            financial ruin.").
         585 (2003); Cooper Indus.,532 U.S. at 433;                   40 Campbell, 538 U.S. at 419.
         Oberg, 512 U.S. at 420 ("Our recent cases have
         recognized that the Constitution imposes a                 Touching the second guidepost, the Supreme Court
         substantive limit on the size of punitive damages     has declined to adopt a bright-line ratio between actual
         awards."); TXO Prod. Corp. v. Alliance Res.           and exemplary damages, but has stated that "few awards
         Corp., 509 U.S. 443, 453-54, 113 S. Ct. 2711, 125     exceeding a single-digit ratio . . . will satisfy due
         L. Ed. 2d 366 (1993).                                 process." 41 Further, the Court has pointed to early
         35 Campbell, 538 U.S. at 417.                         statutes authorizing awards of double, treble, or
                                                               quadruple damages as support for the conclusion that
    B                                                          "four times the amount of compensatory damages might
                                                               be close to the line of constitutional impropriety." 42
     We review not whether the exemplary damage award          Here, the court of appeals' award exceeds four times
is exorbitant (as the dissent says), but whether it is         Chapa's total compensatory award, and is more than 17
constitutional. In reviewing the amount of an exemplary        times her economic damages. Further, the [**20] jury's
damage award for constitutionality, we have been               award of precisely $ 21,639 for mental anguish -- exactly
directed to consider three "guideposts": (1) the nature of     three times her economic damages of $ 7,213 -- supports
the defendant's conduct, (2) the ratio between exemplary       the Supreme Court's observation that emotional damages
and compensatory damages, and (3) the size [**18] of           themselves often include a punitive element. 43 The court
civil penalties in comparable cases. 36                        of appeals' judgment [*309] at least pushes against, if
                                                               not exceeds, the constitutional limits.
         36 Id. at 418 (citing BMW of N. Am. v. Gore,
         517 U.S. 559, 575, 116 S. Ct. 1589, 134 L. Ed. 2d            41 Id. at 425; Gore, 517 U.S. at 581-82.
         809 (1996)).                                                 42 Campbell, 538 U.S. at 425.
                                                                      43     See id. at 426; see also RESTATEMENT
     The reprehensibility of Gullo Motors' conduct (the               (SECOND) OF TORTS § 908, cmt. c, at 466
most important of the guideposts) 37 depends in turn on               (1977)("In many cases in which compensatory
five more factors, all but one of which weigh against                 damages include an amount for emotional
exemplary damages here. 38 Gullo Motors' actions did                  distress, such as humiliation or indignation
not cause physical rather than economic harm, did not                 aroused by the defendant's act, there is no clear
threaten the health or safety of others, and did not involve          line of demarcation between punishment and
repeated acts rather than an isolated incident. Chapa                 compensation and a verdict for a specified amount
claims she was financially vulnerable, but the only harm              frequently includes elements of both.").
she alleged (that her SUV did not have Michelin tires and
lumbar-support seats) did not threaten financial ruin. 39           Finally, we must compare the exemplary damages
Only the last factor, that the conduct at issue was            awarded here to civil penalties authorized in comparable
deceitful rather than accidental, points in Chapa's favor.     cases. The [**21] Texas Occupations Code provides for
The existence of a single factor "may not be sufficient to     a maximum civil penalty of $ 10,000 for statutory or
sustain a punitive damages award." 40                          regulatory violations by motor vehicle dealers. 44
                                                               Similarly, the attorney general could collect not more
         37 Id. at 419 (quoting Gore, 517 U.S. at 575).        than $ 20,000 as a civil penalty under the DTPA in a case
[**19]                                                         like this. 45 These are precisely the kinds of penalties for
         38 See id.                                            comparable misconduct the Supreme Court has used --
         39 Cf. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10,     and says we must use -- in our constitutional analysis. 46
         24, 37 Tex. Sup. Ct. J. 883 (Tex. 1994) ("[A]n
         insurance carrier's refusal to pay a claim cannot            44 TEX. OCC. CODE § 2301.801.
         justify punishment unless the insurer was actually           45 See TEX. BUS. & COM. CODE § 17.47(c).
         aware that its action would probably result in               46 See Campbell, 538 U.S. at 428 (comparing
         extraordinary harm not ordinarily associated with            award in bad-faith insurance case to civil penalty
         breach of contract or bad faith denial of a                  of $ 10,000 available under Utah law); Cooper
         claim-such as death, grievous physical injury, or            Indus., Inc. v. Leatherman Tool Group, Inc., 532
                                                                                                                  Page 7
                                 212 S.W.3d 299, *309; 2006 Tex. LEXIS 1301, **21;
                                                 50 Tex. Sup. J. 278


       U.S. 424, 442-43, 121 S. Ct. 1678, 149 L. Ed. 2d       [**24]
       674 (2001) (comparing award in misappropriation                 50 Campbell, 538 U.S. at 426.
       case to civil penalty of $ 25,000 available under               51 See S.W.3d at .
       Oregon's Unlawful Trade Practices Act).                         52 Campbell, 538 U.S. at 425.
                                                                       53     S.W.3d at .
     Chapa argues we should consider the possibility                   54 Gore, 517 U.S. at 575 (emphasis added);
[**22] that Gullo Motors might be found criminally                     Campbell, 538 U.S. at 428; Cooper Indus., Inc. v.
liable or lose its license for what happened here. But she             Leatherman Tool Group, Inc., 532 U.S. 424,
provides no proof that such a sanction has ever been                   442-43, 121 S. Ct. 1678, 149 L. Ed. 2d 674
awarded in a case like this. "[T]he remote possibility of a            (2001).
criminal sanction does not automatically sustain a                     55 See       S.W.3d at . The case cited by the
punitive damages award." 47                                            dissent does not support its analysis. See Gore,
                                                                       517 U.S. at 583-84 (comparing award in fraud
       47 Campbell, 538 U.S. at 428 ("Great care must                  case to maximum civil penalty of $ 2,000
       be taken to avoid use of the civil process to assess            available under Alabama's Deceptive Trade
       criminal penalties that can be imposed only after               Practices Act).
       the heightened protections of a criminal trial have             56 Honda Motor Co., Ltd. v. Oberg, 512 U.S.
       been observed, including, of course, its higher                 415, 432, 114 S. Ct. 2331, 129 L. Ed. 2d 336
       standards of proof. Punitive damages are not a                  (1994).
       substitute for the criminal process. . .").
                                                                   While finding the jury verdict of $ 250,000
     The dissent reaches a different conclusion only by       constitutionally excessive, the court of appeals gave no
changing the constitutional standards. The Supreme            explanation for its award of half that amount. Exemplary
Court says "repeated conduct" refers to recidivism; 48 the    damages are not susceptible to precise calculation, but
dissent says it means reiterating a single                    this is still five to ten times [**25] more than comparable
misrepresentation to a single consumer. 49 The Supreme        civil penalties, or what Chapa could recover under the
Court says $ 1,000,000 in emotional anguish does not          consumer-friendly DTPA. 57 Pushing exemplary
mean there are "physical injuries"; 50 the dissent [**23]     damages to the absolute constitutional limit in a case like
says $ 21,000 in emotional anguish is enough to conclude      this leaves no room for greater punishment in cases
otherwise. 51 The Supreme Court says multiplying              involving death, grievous physical injury, financial ruin,
damages by a factor of 4 is "close to the line of             or actions that endanger a large segment of the public. 58
constitutional impropriety"; 52 the dissent says using a      On this record, Gullo Motors' conduct merited exemplary
factor of 4.33 is unworthy of our review. 53 The Supreme      damages, but the amount assessed by the court of appeals
Court says we must look to the civil penalties "imposed       exceeds constitutional limits.
in comparable cases"; 54 the dissent says we should look
to the general $ 200,000 cap applicable to all exemplary               57 Cf. PPG Indus., Inc. v. JMB/Houston Ctrs.
cases regardless of their nature. 55 The Supreme Court                 Partners Ltd. P'ship, 146 S.W.3d 79, 89, 47 Tex.
says exemplary damages "pose an acute danger of [*310]                 Sup. Ct. J. 822 (Tex. 2004) ("Frequently, the
arbitrary deprivation of property"; 56 the dissent                     DTPA is pleaded not because it is the only
perceives no danger in pushing against the constitutional              remedy, but because it is the most favorable
limits in all fraud cases, as the only factor present here             remedy.") (italics in original).
(deceitful conduct) is present in every one.                           58 See Transp. Ins. Co. v. Moriel, 879 S.W.2d
                                                                       10, 24, 37 Tex. Sup. Ct. J. 883 (Tex. 1994).
       48 See, e.g., BMW of N. Am. v. Gore, 517 U.S.
       559, 577, 116 S. Ct. 1589, 134 L. Ed. 2d 809               C
       (1996) ("Our holdings that a recidivist may be
       punished more severely than a first offender               The Texas Rules of Appellate Procedure provide for
       recognize that repeated misconduct is more             remittitur orders by the courts of appeals, 59 but make no
       reprehensible than an individual instance of           similar provision for this Court. While this Court may
       malfeasance.").                                        [**26] review the constitutionality of an exemplary
       49 See S.W.3d at .                                     damages award, the amount of a suggested remittitur is in
                                                                                                                      Page 8
                                   212 S.W.3d 299, *310; 2006 Tex. LEXIS 1301, **26;
                                                   50 Tex. Sup. J. 278


the first instance a matter for the courts of appeals.                  Appraisal Dist. v. Seven Inv. Co., 835 S.W.2d 75,
                                                                        77, 35 Tex. Sup. Ct. J. 856 (Tex. 1992); New
       59 TEX. R. APP. P. 46.                                           Amsterdam Cas. Co. v. Texas Indus., Inc., 414
                                                                        S.W.2d 914, 915, 10 Tex. Sup. Ct. J. 357 (Tex.
     Thus, for example, when our constitutional review in               1967); Mundy v. Knutson Constr. Co., 156 Tex.
Bentley v. Bunton found evidentiary support for some                    211, 294 S.W.2d 371, 373 (Tex. 1956).
amount of mental anguish damages but not for the $ 7                    64 See, e.g., Buckhannon Bd. and Care Home,
million awarded, we remanded to the court of appeals to                 Inc. v. West Virginia Dept. of Health and Human
determine an appropriate remittitur. 60 When the case                   Res., 532 U.S. 598, 602, 121 S. Ct. 1835, 149 L.
returned to us after remittitur but without any                         Ed. 2d 855 (2001) ("In the United States, parties
reassessment of exemplary damages, we returned it again                 are ordinarily required to bear their own attorney's
to the court of appeals to conduct a constitutional analysis            fees-the prevailing party is not entitled to collect
of those damages in the first instance. 61                              from the loser. Under this 'American Rule,'" we
                                                                        follow "a general practice of not awarding fees to
       60 94 S.W.3d 561, 605-08, 45 Tex. Sup. Ct. J.
                                                                        a prevailing party absent explicit statutory
       1172 (Tex. 2002).
                                                                        authority.") (internal citations omitted).
       61 See Bunton v. Bentley, 153 S.W.3d 50, 53-54,
                                                                        65      Travelers Indem. Co. of Connecticut v.
       48 Tex. Sup. Ct. J. 197 (Tex. 2004) (per curiam).
                                                                        Mayfield, 923 S.W.2d 590, 594, 39 Tex. Sup. Ct.
    Accordingly, [**27] having found that the amount                    J. 678 (Tex. 1996).
awarded by the court of appeals exceeds the                    [**29]
constitutional limitations on exemplary damages, we                     66 See Stewart Title Guar. Co. v. Aiello, 941
remand to that court for determining a constitutionally                 S.W.2d 68, 73, 40 Tex. Sup. Ct. J. 290 (Tex.
permissible remittitur.                                                 1997); Stewart Title Guar. Co. v. Sterling, 822
                                                                        S.W.2d 1, 10, 35 Tex. Sup. Ct. J. 206 (Tex. 1991);
IV. Attorney's Fees                                                     Matthews v. Candlewood Builders, Inc., 685
                                                                        S.W.2d 649, 650, 28 Tex. Sup. Ct. J. 284 (Tex.
     The jury found a reasonable and necessary attorney's               1985); Int'l Sec. Life Ins. Co. v. Finck, 496 S.W.2d
fee "in this case" was $ 20,000. 62 During and after trial,             544, 547, 16 Tex. Sup. Ct. J. 381 (Tex. 1973).
Gullo Motors objected that fees were not recoverable for
Chapa's fraud claim, and thus had to be excluded. We                We recognized an exception to this historical
agree, and thus reverse and remand the fee issue for a         practice in 1991 that has since threatened to swallow the
new trial.                                                     rule. In Stewart Title Guaranty Co. v. Sterling, we
                                                               affirmed the general rule: "the plaintiff is required to
       62 The figure represented fees only through the         show that [attorney's] fees were incurred while suing the
       trial level; Chapa tendered no evidence or jury         defendant sought to be charged with the fees on a claim
       question on appellate fees.                             which allows recovery of such fees." 67 But we then
                                                               added:
    For more than a century, Texas law has not allowed
recovery of attorney's fees unless authorized by statute or                A recognized exception to this duty to
contract. 63 This rule is so venerable and [*311]                       segregate arises when the attorney's fees
ubiquitous in American courts it is known as "the                       rendered are in connection with claims
American Rule." 64 Absent a contract or statute, trial                  arising out of the same transaction and are
courts do not have inherent authority to require a losing               so interrelated that their "prosecution or
party to pay the prevailing party's fees. 65 As a result,               defense entails proof or denial of
[**28] fee claimants have always been required to                       essentially the same facts." Flint & Assoc.
segregate fees between claims for which they are                        v. Intercontinental Pipe & Steel, Inc., 739
recoverable and claims for which they are not. 66                       S.W.2d 622, 624-25 (Tex. App.-Dallas
                                                                        1987, writ denied) [**30] . Therefore,
       63 See, e.g., Gulf States Utils. Co. v. Low, 79
                                                                        when the causes of action involved in the
       S.W.3d 561, 567, 45 Tex. Sup. Ct. J. 724, 45 Tex.
                                                                        suit are dependent upon the same set of
       Sup. Ct. J. 793 (Tex. 2002); Dallas Cent.
                                                                                                                   Page 9
                                   212 S.W.3d 299, *311; 2006 Tex. LEXIS 1301, **30;
                                                   50 Tex. Sup. J. 278


         facts or circumstances and thus are                    sought to invoke it. Moreover, as the details of an
         "interwined to the point of being                      attorney's work are shrouded in the attorney-client
         inseparable," the party suing for attorney's           privilege, it may be hard for anyone else to tell whether
         fees may recover the entire amount                     the work on [**32] several claims truly was inextricably
         covering all claims. Gill Sav. Ass'n v.                intertwined.
         Chair King, Inc., 783 S.W.2d 674, 680
         (Tex. App.-Houston [14th Dist.] 1989),                        72     A Westlaw search shows more than one
         modified, 797 S.W.2d 31, 34 Tex. Sup. Ct.                     hundred published and unpublished opinions
         J. 42 (Tex. 1990)(remanded to the trial                       addressing the Sterling exception since 1991. See,
         court for reexamination of attorney's fee                     e.g., Ski River Dev., Inc. v. McCalla, 167 S.W.3d
         award). 68                                                    121, 143 (Tex. App.-Waco 2005, pet. denied);
                                                                       Marrs and Smith P'ship v. D.K. Boyd Oil and Gas
As the only two authorities cited in this passage suggest,             Co., 2005 Tex. App. LEXIS 9691, 2005 WL
this exception had not been recognized by this Court                   3073794, *15 (Tex. App.-El Paso 2005, pet.
before, but only by a few courts of appeals beginning                  denied); Shadow Dance Ranch P'ship, Ltd. v.
about ten years earlier. 69 In fact, we did not even apply             Weiner, 2005 Tex. App. LEXIS 10131, 2005 WL
the exception in Sterling (as the fees there could be                  3295664, *9 (Tex. App.-San Antonio 2005, no pet.
segregated), 70 and appear to have applied it only once                h.); Royal Maccabees Life Ins. Co. v. James, 146
since. 71                                                              S.W.3d 340, 353 (Tex. App.-Dallas 2004, pet.
                                                                       denied); Aetna Cas. & Sur. v. Wild, 944 S.W.2d
         67 822 S.W.2d at 10.                                          37, 40 (Tex. App.-Amarillo 1997, writ denied);
         68 Id. at 11-12.                                              Panizo v. Young Men's Christian Ass'n of the
         69     See, e.g., Village Mobile Homes, Inc. v.               Greater Houston Area, 938 S.W.2d 163, 170 (Tex.
         Porter, 716 S.W.2d 543, 552 (Tex. App.-Austin                 App.-Houston [1st Dist.] 1996, no writ); Kenneth
         1986, writ ref'd n.r.e.); de La Fuente v. Home Sav.           H. Hughes Interests, Inc. v. Westrup, 879 S.W.2d
         Ass'n, 669 S.W.2d 137, 146 (Tex. App.-Corpus                  229, 233 (Tex. App.-Houston [1st Dist.] 1994,
         Christi 1984, no writ); First Wichita Nat'l Bank v.           writ denied).
         Wood, 632 S.W.2d 210, 215 (Tex. App.-Fort
         Worth 1982, no writ); Wilkins v. Bain, 615 S.W.2d            [**33] The exception has also been hard to apply
         314, 316 (Tex. Civ. App.-Dallas 1981, no writ).        consistently. The courts of appeals have disagreed about
[**31]                                                          what makes two claims inextricably intertwined -- some
         70 See Sterling, 822 S.W.2d at 12.                     focusing on the underlying facts, 73 others on the
         71 See Aiello, 941 S.W.2d at 73. In Am. Nat'l          elements that must be proved, 74 and others on some
         Petroleum Co. v. Transcon. Gas Pipe Line Corp.,        combination of the two. 75 Some do not require testimony
         this Court held that the court of appeals erred in     that claims are intertwined, 76 while others do. 77 When
         requiring segregation of fees between a valid          faced with fraud and breach of contract claims like those
         contract and an invalid tortious interference claim,   here, some have held the claims inextricably intertwined,
         holding instead that both claims were valid. 798       78 and others just the opposite. 79
         S.W.2d 274, 280, 34 Tex. Sup. Ct. J. 20 (Tex.
                                                                       73 See, e.g., Rio Grande Valley Gas Co. v. City
         1990). We did not address the alternative basis for
                                                                       of Edinburg, 59 S.W.3d 199, 224 (Tex.
         the court of appeals' ruling -- that attorney's fees
                                                                       App.-Corpus Christi 2000) aff'd in part, rev'd in
         are not recoverable in a tort action. See
                                                                       part sub nom. Southern Union Co. v. City of
         Transcontinental Gas Pipe Line Corp., 763
                                                                       Edinburg, 129 S.W.3d 74, 47 Tex. Sup. Ct. J. 60
         S.W.2d 809, 823 (Tex. App.-Texarkana 1988).
                                                                       (Tex. 2003); Great Am. Ins. Co. v. N. Austin Mun.
      [*312] But the courts of appeals have been flooded               Util. Dist. No. 1, 902 S.W.2d 488, 505 (Tex.
with claims that recoverable and unrecoverable fees are                App.-Austin 1993) aff'd in part, rev'd in part, 908
inextricably intertwined. 72 As the exception can make all             S.W.2d 415, 38 Tex. Sup. Ct. J. 817 (Tex. 1995).
fees recoverable (even if Texas law has long said they are             74 See, e.g., Z.A.O., Inc. v. Yarbrough Drive Ctr.
not), it is no surprise that more and more claimants have              Joint Venture, 50 S.W.3d 531, 550-51 (Tex.
                                                                                                                  Page 10
                                  212 S.W.3d 299, *312; 2006 Tex. LEXIS 1301, **33;
                                                  50 Tex. Sup. J. 278


         App.-El Paso 2001, no pet.); AU Pharm., Inc. v.             pet. denied); Pacesetter Pools, Inc. v. Pierce
         Boston,   986    S.W.2d     331,  337    (Tex.              Homes, Inc., 86 S.W.3d 827, 833 (Tex.
         App.-Texarkana 1999, no pet.).                              App.-Austin 2002, no pet.); Aetna Cas. & Sur. v.
[**34]                                                               Wild, 944 S.W.2d 37, 41 (Tex. App.-Amarillo
         75 See, e.g., Air Routing Int'l. Corp. (Canada) v.          1997, writ denied). But see AU Pharm., Inc. v.
         Britannia Airways, Ltd., 150 S.W.3d 682, 693                Boston,     986     S.W.2d   331,   337    (Tex.
         (Tex. App.-Houston [14th Dist.] 2004, no pet.).             App.-Texarkana 1999, no pet.) (applying abuse of
         76 See id.                                                  discretion review).
         77 See Royal Maccabees, 146 S.W.3d at 353.
         78 See, e.g., Nat'l Gas Clearinghouse v. Midgard            [**36] This case illustrates several of these
         Energy Co., 113 S.W.3d 400, 417 (Tex.                difficulties. The court of appeals held that Chapa was not
         App.-Amarillo 2003, pet. denied); W. Beach           required to segregate fees (and thus could recover 100
         Marina, Ltd. v. Erdeljac, 94 S.W.3d 248, 268         percent of them) because she "was required to prove
         (Tex. App.-Austin 2002, no pet.); Pegasus Energy     essentially the same facts in pursuing each of her three
         Group, Inc. v. Cheyenne Petroleum Co., 3 S.W.3d      causes of action." But when Chapa's attorneys were
         112, 131 (Tex. App.-Corpus Christi 1999, pet.        drafting her pleadings or the jury charge relating to fraud,
         denied).                                             there is no question those fees were not recoverable. Nor
         79 See, e.g., Young v. Neatherlin, 102 S.W.3d        does Texas law permit them to be compensated for
         415, 421 (Tex. App.-Houston [14th Dist.] 2003,       preparing and presenting evidence regarding the
         no pet.); Panizo v. Young Men's Christian Ass'n,     defendant's net worth.
         938 S.W.2d 163, 171 (Tex. App.-Houston [1st
                                                                   Further, the effort to recover 100 percent of their fees
         Dist.] 1996, no writ); S. Concrete Co. v. Metrotec
                                                              has required Chapa's attorneys to take a position
         Fin., 775 S.W.2d 446, 450-51 (Tex.App.-Dallas
                                                              inconsistent with her underlying claims. As noted above,
         1989, no writ).
                                                              Chapa has insisted (and we have agreed) that her claims
     As Sterling suggests the need to segregate fees is a     were more than a mere breach of contract - they could be
question of law, 80 the courts of appeals have generally      asserted in fraud. But when it came time to segregate
[**35] (though not always) applied a de novo standard of      fees, her attorneys testified that their work on the fraud
review. 81 That standard, of course, gives no [*313]          claim could not possibly be distinguished from that on
deference to the factual determinations of the trial judge    the contract and DTPA claims. Having prevailed in her
or the jury. But the fees necessary to prove particular       argument that the claims are distinct, it is hard to see how
claims often turn on such facts - how hard something was      she can also claim they are inextricably intertwined.
to discover and prove, how strongly it supported
                                                                   It is certainly true that Chapa's [**37] fraud,
particular inferences or conclusions, how much
                                                              contract, and DTPA claims were all "dependent upon the
difference it might make to the verdict, and a host of
                                                              same set of facts or circumstances," 82 but that does not
other details that include judgment and credibility
                                                              mean they all required the same research, discovery,
questions about who had to do what and what it was
                                                              proof, or legal expertise. Nor are unrecoverable fees
worth. Given all these details, it may often be impossible
                                                              rendered recoverable merely because they are nominal;
to state as a matter of law the extent to which certain
                                                              there is no such exception in any contract, statute, or "the
claims can or cannot be segregated; the issue is more a
                                                              American Rule." To the extent Sterling suggested that a
mixed question of law and fact for the jury.
                                                              common set of underlying facts necessarily made all
         80 See Stewart Title Guar. Co. v. Sterling, 822      claims arising therefrom "inseparable" and all legal fees
         S.W.2d 1, 12, 35 Tex. Sup. Ct. J. 206 (Tex. 1991)    recoverable, it went too far.
         ("Following a review of the record, we conclude
                                                                     82 Sterling, 822 S.W.2d at 11.
         that the attorney's fees are capable of
         segregation.").                                          But Sterling was certainly correct that many if not
         81 See, e.g., Air Routing Int'l. Corp., 150 S.W.3d   most legal fees in such cases cannot and need not be
         at 688; Flagship Hotel, Ltd. v. City of Galveston,   precisely allocated to one claim or the other. Many of the
         117 S.W.3d 552, 565 (Tex. App.-Texarkana 2003,       services involved in preparing a contract or DTPA claim
                                                                                                                    Page 11
                                  212 S.W.3d 299, *313; 2006 Tex. LEXIS 1301, **37;
                                                  50 Tex. Sup. J. 278


for trial must still be incurred if tort claims are appended           a rough percent of the amount attributable to the
to it; adding the latter claims does not render the former             breach of contract claim. Schenck v. Ebby
services unrecoverable. Requests for standard                          Halliday Real Estate, Inc., 803 S.W.2d 361, 369
disclosures, proof of background facts, depositions                    (Tex. App.-Fort Worth 1990, no writ); accord,
[**38] of the primary actors, discovery motions and                    Bradbury v. Scott, 788 S.W.2d 31, 40 (Tex.
hearings, voir dire of the jury, and a host of other services          App.-Houston [1st Dist.] 1989, writ denied).").
may be necessary whether a claim is filed alone or with
others. To the extent such services would have been                   [**40] There may, of course, be some disputes
incurred on a recoverable claim alone, they are not             about fees that a trial or appellate court should decide as a
disallowed simply because they do double service.               matter of law. For example, to prevail on a contract claim
                                                                a party must overcome any and all affirmative defenses
     Accordingly, we reaffirm the rule that if any              (such as limitations, res judicata, or prior material
attorney's fees relate solely to a claim for which such fees    breach), and the opposing party who raises them should
are unrecoverable, a claimant must segregate recoverable        not be allowed to suggest to the jury that overcoming
from unrecoverable fees. Intertwined facts do not make          those defenses was unnecessary. But when, as here, it
tort fees recoverable; it is only when discrete legal           cannot be denied that at least some of the attorney's fees
services advance both a recoverable and unrecoverable           are attributable only to claims for which fees are not
[*314] claim that they are so intertwined that they need        recoverable, segregation of fees ought to be required and
not be segregated. We modify Sterling to that extent.           the jury ought to decide the rest.

     This standard does not require more precise proof for           Chapa's failure to segregate her attorney's fees does
attorney's fees than for any other claims or expenses.          not mean she cannot recovery any. Unsegregated
Here, Chapa's attorneys did not have to keep separate           attorney's fees for the entire case are some evidence of
time records when they drafted the fraud, contract, or          what the segregated amount should be. 84 We have
DTPA paragraphs of her petition; an opinion would have          applied this same rule for lost profits, medical expenses,
sufficed stating that, for example, 95 percent of their         and attorney's fees -- an unsegregated damages award
drafting time would have been necessary even if there           requires a remand. 85 Accordingly, remand is required.
had been no fraud claim. 83 The court of appeals could
then [**39] have applied standard factual and legal                    84 See Sterling, 822 S.W.2d at 12.
sufficiency review to the jury's verdict based on that                 85     See Minnesota Mining and Mfg. Co. v.
evidence.                                                              Nishika Ltd., 953 S.W.2d 733, 739, 41 Tex. Sup.
                                                                       Ct. J. 14 (Tex. 1997) (lost profits); Texarkana
       83 See, e.g., Stewart Title Guar. Co. v. Aiello,                Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836,
       941 S.W.2d 68, 73, 40 Tex. Sup. Ct. J. 290 (Tex.                840-41, 40 Tex. Sup. Ct. J. 513 (Tex. 1997)
       1997) (noting that claimant's attorney "testified               (medical expenses); Sterling, 822 S.W.2d at 11-12
       that approximately twenty-percent of his time and               (attorney's fees).
       fifteen-percent of his paralegal's time concerned
       issues predating the agreed judgment"); Med.             [**41] V. Conclusion
       Specialist Group, P.A. v. Radiology Assocs.,
                                                                    Because the jury found in Chapa's favor on all her
       L.L.P., 171 S.W.3d 727, 738 (Tex. App.-Corpus
                                                                claims, she is entitled to recover on the most favorable
       Christi 2005, pet. denied) ("In his affidavit,
                                                                theory the verdict would support. But she is not required
       Radiology Associates' counsel. . . testified that his
                                                                to make that election until she knows her choices. 86
       fees for the defense of the case totaled $
       460,087.00, and approximately forty percent of                  86     The dissent suggests Chapa must elect
       these fees were directly related to Saratoga's                  between her fraud, contract, and DTPA claims
       antitrust claims."); Flagship Hotel, 117 S.W.3d at              before knowing what amount of attorney's fees
       566 n.7 ("Flagship argues that the segregation                  she might recover. This would defeat the principle
       standard is difficult to meet. We disagree and note             that she is entitled to recover on the most
       that segregated attorney's fees can be established              favorable theory the verdict supports. See n.7,
       with evidence of unsegregated attorney's fees and               supra.
                                                                                                                     Page 12
                                   212 S.W.3d 299, *314; 2006 Tex. LEXIS 1301, **41;
                                                   50 Tex. Sup. J. 278


     Under either fraud or the DTPA, Chapa is entitled to
$ 7,213 in economic damages and $ 21,639, in mental                       We decline again to impose a bright-line
anguish. The court of appeals must reassess her                         ratio which a punitive damages award
exemplary damages, and a jury must reassess her                         cannot exceed. Our jurisprudence and the
attorney's fees. There is no rule establishing [*315]                   principles it has now established
which should go first, but for practical reasons we                     demonstrate, however, that, in practice,
remand first to the court of appeals. At the trial level, the           few awards exceeding a single-digit ratio
most Chapa could recover under the DTPA would be                        between punitive and compensatory
additional damages of $ 21,639 (three times her                         damages, to a significant degree, will
economic damages) plus attorney's [**42] fees of                        satisfy due process. In Haslip, in
something less than $ 20,000 (depending on the new                      upholding a punitive damages award, we
verdict). If the court of appeals' reassessment of                      concluded that an award of more than four
exemplary damages for fraud exceeds this amount, Chapa                  times the amount of compensatory
would obviously be better off electing that recovery; if                damages might be close to the line of
not, then the court of appeals should thereafter remand to              constitutional impropriety. 499 U.S. , at
the trial court for a new trial on attorney's fees.                     23-24. We cited that 4-to-1 ratio again in
Accordingly, we remand to the court of appeals for                      Gore. 517 U.S., at 581. The Court further
further proceedings consistent with this opinion.                       referenced a long legislative history,
                                                                        dating back over 700 years and going
    Scott Brister                                                       forward to today, providing for sanctions
                                                                        of double, treble, or quadruple damages to
    Justice                                                             deter and [**44] punish. Id., at 581, and
                                                                        n. 33. While these ratios are not binding,
CONCUR BY: Phil Johnson
                                                                        they are instructive. They demonstrate
                                                                        what should be obvious: Single-digit
CONCUR
                                                                        multipliers are more likely to comport
    JUSTICE JOHNSON, concurring.                                        with due process, while still achieving the
                                                                        State's goals of deterrence and retribution,
     I concur in the Court's judgment, and, except for part             than awards with ratios in range of 500 to
III.B. as to Exemplary Damages, I join its opinion.                     1, id., at 582, or, in this case, of 145 to 1.

     The court of appeals properly identified State Farm                Nonetheless, because there are no rigid
Mutual Automobile Insurance Co. v. Campbell, 538 U.S.                   benchmarks that a punitive damages
408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003) and BMW                  award may not surpass, ratios greater than
of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct.                those we have previously upheld may
1589, 134 L. Ed. 2d 809 (1996) as guiding authorities for               comport with due process [under certain
its review of the $ 250,000 exemplary damages jury                      circumstances].
award. It then concluded that $ 125,000 exemplary
damages is constitutionally permissible under this record.       Campbell, 538 U.S. at 425 (emphasis added).
That amount is between 4.33 and 4.34 times the actual
damages of $ 28,852 found by the jury. The court of                    [*316] The Court says that "The court of appeals'
appeals' analysis as to the exemplary [**43] damages             judgment at least pushes against, if not exceeds the
issue is not as detailed as that in this Court's opinion. But,   constitutional limits." S.W.3d . A ratio of 4.33 to 1 is
because the court of appeals did not give a detailed             clearly close to the ratio of 4 to 1 which "might be close
explanation for its conclusion does not mean that its            to the line of constitutional impropriety." Campbell, 538
conclusion is wrong.                                             U.S. at 425. But, there are no rigid constitutional
                                                                 benchmarks that an exemplary damages award may not
     The United States Supreme Court has not set a bright        surpass. Id. Unless we determine that the court of appeals
line constitutional limit for exemplary damages. Some of         misapplied the standards [**45] enunciated by the
its specific language bears reviewing:                           Supreme Court, however, I consider a 4.33 ratio of
                                                                                                                   Page 13
                                   212 S.W.3d 299, *316; 2006 Tex. LEXIS 1301, **45;
                                                   50 Tex. Sup. J. 278


exemplary damages to actual damages under this record            Chapa agreed, but when she returned to sign the contract
to be within the discretion lodged in the court of appeals       it only indicated she was buying a "2002 Toyota." Chapa
to determine the amount of remittitur to suggest. I would        wrote "Limited," "Michelin tires," "TV" and "VCR" on
remand to the court of appeals for reconsideration of the        the contract and then signed it. She was told more
exemplary damages issue and more complete explanation            signatures were needed and a copy would be mailed to
of its analysis as to the remittitur. I would not instruct the   [**47] her. Chapa never received the contract.
court of appeals, at this juncture, that it should determine
a different, more appropriate, remittitur.                           After sending in her $ 30,207.38 payment, Chapa
                                                                 received a call informing her that the vehicle had arrived.
    Phil Johnson                                                 Chapa went to pick it up, but Garcia presented her with a
                                                                 Highlander, not a Highlander Limited. When Chapa
    Justice                                                      refused to take it, Garcia acknowledged that she had
                                                                 purchased a Highlander Limited and assured her she
DISSENT BY: Harriet O'Neill                                      would get one.

DISSENT                                                               Again, a sales representative called Chapa to say her
                                                                 car was ready, and again a Highlander, not a Highlander
    JUSTICE O'NEILL, dissenting.                                 Limited, was presented to her. Chapa complained, but
                                                                 Gullo told her the Highlander she was taking had a V-6
     Nury Chapa's allegations describe what amounts to a
                                                                 engine just like the Limited; in addition, Gullo promised
bait-and-switch by Gullo Motors, a claim the jury and
                                                                 to add the other features from the Limited, plus the
this Court agree there is evidence to support. The
                                                                 Michelin tires, and assured her the modifications would
evidence shows that, in furtherance of that scheme,
                                                                 be complete in two [*317] days. Chapa agreed to take
Chapa was threatened, lied to, and her signature and that
                                                                 delivery of the Highlander, but insisted Gullo Motors
of her deceased husband were forged. The defendant's
                                                                 write these promises on her new delivery check sheet,
conduct in this case was at best reprehensible, and
                                                                 which she then signed. Garcia wrote her a "We Owe"
bordered on criminal, prompting the jury to award $
                                                                 form, which stated Gullo owed her Michelin tires and
250,000 in exemplary damages. Texas law capped that
                                                                 lumbar seats. He did not include the other items, so
award at $ 200,000, and the court of appeals further
                                                                 Chapa listed them on the delivery check sheet; she
reduced it by remittitur to $ 125,000. Even though the
                                                                 testified Garcia told her that was enough.
remitted award is [**46] well below the statutory ceiling
that the Legislature set, the Court today decides the                 When Gullo Motors failed to install [**48] the
appeals court award is exorbitant and cannot stand. I do         promised items, Chapa went to the dealership to speak
not agree that the court of appeals violated constitutional      with Brian Debiski, the sales manager. Debiski told
exorbitancy standards by suggesting the remittitur that it       Chapa she was "crazy, that [she] didn't buy that
did, nor do I agree with the Court's advisory                    [Limited]." Chapa explained that she had a "We Owe"
determination of the attorney's fee issue. Accordingly, I        form, but Debiski responded, "[Y]ou have nothing. You
respectfully dissent.                                            are a nobody. It's your word against me." When Chapa
                                                                 told him she would inform the media, Debiski responded
I. Background
                                                                 that "nobody will dare to go against me, against us," and
     The evidence supporting the verdict in this case            informed Chapa that he would show her by having her
demonstrates that Chapa purchased a Toyota Highlander            car towed away at her expense.
Limited from Gullo Motors, but Gullo Motors tried to
                                                                      Later, when Chapa's attorney informed the
make her accept instead a less expensive Toyota
                                                                 dealership that Chapa would like to return the car for a
Highlander. According to Chapa, she offered her
                                                                 refund, Gullo refused, claiming the Highlander had
salesman, Brien Garcia, $ 30,000 for the Highlander
                                                                 already been titled to Chapa (even though it had not) and
Limited on the showroom floor, with the added options
                                                                 explaining that it would thus have to sell the car as used.
of a TV/VCR and Michelin tires. After consulting with
                                                                 Gullo produced a New Vehicle Delivery Check Sheet
management, Garcia responded that the showroom car
                                                                 showing Chapa had accepted delivery of the Highlander
had been sold but he could get her one for $ 207.38 more.
                                                                 without complaint. However, Chapa testified that Gullo
                                                                                                                  Page 14
                                 212 S.W.3d 299, *317; 2006 Tex. LEXIS 1301, **48;
                                                 50 Tex. Sup. J. 278


forged her deceased husband's signature on the delivery       concerning appropriate sanctions. BMW of N. Am. v.
check sheet by using documents her late husband,              Gore, 517 U.S. 559, 583, [*318] 116 S. Ct. 1589, 134 L.
Ernesto Chapa, had signed when they had previously            Ed. 2d 809 (1996). "[A] punitive damages award that
bought a car from Gullo. Chapa also claimed that Gullo        comports with a statutory cap provides strong evidence
forged her deceased husband's signature on [**49] the         that a defendant's due process rights have not been
"We Owe" form. Chapa testified that numerous other            violated." Rodriguez-Torres v. Caribbean Forms Mfr.,
documents were forged, and there was evidence that            Inc., 399 F.3d 52, 65 (1st Cir. 2005) (citing Romano v.
Garcia admitted to Gullo he had promised Chapa the            U-Haul Int'l, 233 F.3d 655, 673 (1st Cir. 2000)). The
features listed on the "We Owe" form.                         award the Court finds excessive today is well below the
                                                              statutory cap that the Legislature determined appropriate
     The jury found Chapa's evidence credible and             when a defendant engages in conduct [**51] that would
awarded her $ 7,213 for breach of contract (the difference    support an exemplary damages award. Neither does the
in value between the vehicle promised and the one             award violate the three-part test for constitutional
delivered), $ 7,213 for fraud, $ 21,639 for mental            exorbitancy that the United States Supreme Court has
anguish, $ 250,000 for exemplary damages, $ 7,213 for         articulated. See State Farm Mut. Auto. Ins. Co. v.
damages under the Texas Deceptive Trade Practices Act,        Campbell, 538 U.S. 408, 418-19, 123 S. Ct. 1513, 155 L.
and $ 20,000 for attorney's fees. The trial court rendered    Ed. 2d 585 (2003).
judgment only on the breach of contract claim, but the
court of appeals reversed and reinstated all the awards             Courts must consider three guideposts when
except for exemplary damages, which the court remitted        reviewing an exemplary damage award: (1) the degree of
to $ 125,000, one-half of what the jury awarded.              reprehensibility of the misconduct; (2) the disparity
                                                              between the actual or potential harm suffered by the
     I agree with the Court that Chapa must elect only one    plaintiff and the punitive damages award; and (3) the
liability theory upon which to recover, and the court of      difference between the punitive damages awarded by the
appeals erred to the extent it concluded otherwise. But I     jury and the civil or criminal penalties that could be
disagree that the court of appeals' remittitur is             imposed for comparable misconduct. Id.; Gore, 517 U.S.
constitutionally infirm or that Chapa's attorney's fees are   at 575. According to the Supreme Court, it is "the degree
capable of segregation.                                       of reprehensibility of the defendant's conduct" that is
                                                              "[t]he most important indicium of the reasonableness of a
II. Exemplary Damages                                         punitive damages award," and five factors guide that
                                                              assessment: (1) whether the harm caused was physical
    In Texas, the amount of exemplary damages for
                                                              rather than economic, (2) whether the conduct evinced an
which a defendant may be liable is capped [**50] at
                                                              indifference to others' health or safety, (3) whether the
                                                              harm involved repeated acts or isolated incidents, (4)
         an amount equal to the greater of:
                                                              whether the [**52] target of the conduct was financially
           (1) (A) two times the amount of                    vulnerable, and (5) whether the harm resulted from mere
       economic damages; plus                                 accident or from "intentional malice, trickery, or deceit . .
                                                              . ." Campbell, 538 U.S. at 419.
            (B) an amount equal to any
       noneconomic damages found by the jury,                     The Court summarily concludes that only the last of
       not to exceed $ 750,000; or                            these factors, deceitful conduct, favors Chapa. And the
                                                              Court gives that conduct very cursory attention, even
            (2) $ 200,000.                                    though the Supreme Court has said that the "infliction of
                                                              economic injury, especially when done intentionally
TEX. CIV. PRAC. & REM. CODE § 41.008(b) (emphasis             through affirmative acts of misconduct . . . can warrant a
added). I agree with the Court that the mere existence of a   substantial penalty." Gore, 517 U.S. at 576 (citing TXO
statutory cap does not foreclose a federal constitutional     Prod. Corp. v. Alliance Res. Corp. 509 U.S. 443, 453,
check for exorbitancy. But the United States Supreme          113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993)). Assuming
Court has instructed that reviewing courts should accord      Chapa elected to recover on the jury's fraud finding, she
"substantial deference" to legislative judgments              would be entitled to $ 28,852 in compensatory damages.
                                                                                                                 Page 15
                                  212 S.W.3d 299, *318; 2006 Tex. LEXIS 1301, **52;
                                                  50 Tex. Sup. J. 278


Thus, the penalty the court of appeals determined to be             The third guidepost considers civil or criminal
appropriate reflects a ratio between compensatory and          penalties that could be imposed for comparable
exemplary damages of a little more than 4 to 1, a              misconduct. Campbell, 538 U.S. at 418; Gore, 517 U.S.
differential the petitioners have not demonstrated is          at 575. The Court considers two potential civil penalties
constitutionally disproportionate to the defendant's           of $ 10,000 and $ 20,000 that Gullo Motors' conduct
conduct here. See TXO Prod. Corp., 509 U.S. at 462             [**55] might subject it to, yet declines to consider
(holding a 10 to 1 ratio permissible); [**53] Pac. Mut.        potentially applicable criminal penalties that, according
Life Ins. Co. v. Haslip, 499 U.S. 1, 19, 111 S. Ct. 1032,      to Chapa, would result in jail time and $ 80,000 in felony
113 L. Ed. 2d 1 (1991) (affirming award of four times          fines for forgery, document destruction, and fraudulently
compensatory damages and two hundred times economic            inducing signatures. Certainly I agree that "the remote
damages); Glasscock v. Armstrong Cork Co., 946 F.2d            possibility of a criminal sanction does not automatically
1085, 1095-96 (5th Cir. 1991) (upholding a 20 to 1 ratio).     sustain a punitive damages award," as the Court recites,
                                                               but that doesn't mean comparable potential criminal
     As for the other reprehensibility factors, the Court      sanctions should be altogether ignored. Campbell, 538
either misapplies them or gives them short shrift. For         U.S. at 428.
example, the Court's conclusion that Gullo's actions
caused Chapa only economic harm ignores the jury's                  In my view the more important issue is not the actual
award of mental anguish damages, a damage element we           dollar amount that Chapa will ultimately recover, but the
have long considered non-economic that compensates for         low threshold this Court steps over to declare a jury
harm with physical elements. See Golden Eagle Archery,         award constitutionally exorbitant. Had I been on the jury
Inc. v. Jackson, 116 S.W.3d 757, 763, 46 Tex. Sup. Ct. J.      in this case, I may well have disagreed with the amount
1133 (Tex. 2003). The Court also concludes Gullo               of exemplary damages the jury actually awarded or even
Motors' misconduct was an isolated incident that did not       the amount the appellate court suggested in its remittitur.
involve repeated acts, even though the evidence indicates      Although exemplary damage awards can serve
otherwise. Gullo Motors committed [*319] multiple acts         worthwhile purposes, they can also have debilitating
of misconduct, including switching contracts, altering         economic impact and should be carefully policed by the
documents, engaging in deceptive and threatening               courts. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31,
behavior, and even forging the signatures of Chapa and         37 Tex. Sup. Ct. J. 883 (Tex.1994). Our courts of appeals
her deceased husband. In sum, the factors that the Court       in Texas have long [**56] been empowered to suggest a
purports to follow in determining the reprehensibility         remittitur of excessive awards when the evidence is
[**54] of Gullo Motors' conduct weigh in favor of the          factually insufficient to support them. Id.; TEX. R. APP.
court of appeals' remitted award, not against it.              P. 46.3. The court of appeals assiduously exercised that
                                                               power in this case. It is, of course, appropriate for this
     The second guidepost used to review an exemplary          Court to intervene if the appeals court allows a
damage award examines the ratio between exemplary and          constitutionally offensive award to stand. But when the
compensatory damages. The Supreme Court has refused            Court chooses a marginal case like this in which to
to adopt a bright-line constitutionally prohibited ratio.      intervene, it risks intruding upon an area that has
Instead, it has suggested a range beyond which                 traditionally been the well-patrolled province of our
exemplary damage awards will likely become                     courts of appeals. And when, as here, the Legislature has
constitutionally exorbitant, stating "few awards               chosen to set its own parameters for such awards, the
exceeding a single-digit ratio between punitive and            Court's intrusion is even more disturbing.
compensatory damages, to a significant degree, will
satisfy due process." Campbell, 538 U.S. at 419. The           III. Attorney's Fees
Court's opinion in this case highlights a 17 to 1 ratio that
reflects a comparison between the remitted award and                I also question the Court's decision to address the
economic damages. The constitutionally relevant                attorney's fee issue in this case. If the court of appeals
comparison, though, focuses on compensatory rather than        renders judgment on remand based on the jury's fraud
economic damages, which yields a much lower 4.33 to 1          finding, the attorney's fee issue will be moot. Thus, the
ratio.                                                         Court's analysis of the issue is purely advisory. TEX.
                                                               CONST. art. II, § 1; Brooks v. Northglen Ass'n, [*320]
                                                                                                                    Page 16
                                   212 S.W.3d 299, *320; 2006 Tex. LEXIS 1301, **56;
                                                   50 Tex. Sup. J. 278


141 S.W.3d 158, 164, 47 Tex. Sup. Ct. J. 719 (Tex. 2004).        to disclose information concerning goods which was
But even assuming the Court properly reaches the issue, I        known at the time of the transaction if such failure to
disagree with the Court's application [**57] of the rule it      disclose was intended to induce the consumer into a
announces. According to the Court, when the legal                transaction the consumer would not have entered had the
services themselves advance both a recoverable and               information been disclosed. As for the common-law fraud
unrecoverable claim, segregation is not required. The            claim, the jury was instructed that Gullo Motors
Court concludes that at least some of Chapa's attorney's         committed fraud if (a) it made a material
fees are attributable only to claims for which fees are not      misrepresentation, (b) the representation was made with
recoverable, requiring a new trial. It is true that some of      knowledge of its falsity or made recklessly without any
Chapa's attorney's fees are attributable to her                  knowledge of the truth and as a positive assertion, (c) the
common-law fraud claim for which fees are not                    representation was made with the intention that Chapa
recoverable. Attorneys fees are recoverable, though,             would act upon it, and (d) Chapa relied on the
under the DTPA for deceptive acts or practices. It is            misrepresentation and thereby suffered injury. The
unclear to me, and the Court does not explain, how the           evidence that Chapa presented to support her fraud claim
legal services used to advance Chapa's DTPA claim did            also supported her DTPA claim, and vice versa. Because
not also advance her common-law fraud claim. The                 the legal services provided to advance the DTPA claim
court's charge that was read to the jury instructed that         also advanced the fraud claim, the fees incurred cannot be
Gullo Motors violated the DTPA if it (1) breached an             segregated even under the Court's own analysis.
express warranty, defined as any affirmation of fact that
related to the 2002 Highlander Limited and became part               ***
of the basis of its bargain with Chapa, or (2) engaged in
                                                                     For the reasons expressed, I respectfully dissent.
any false, misleading, or deceptive act or practice upon
which Chapa relied to her detriment. A false, misleading,            Harriet O'Neill
or deceptive act or practice includes representing that
goods or services are of a particular standard, [**58]               Justice
quality, grade, or of a particular style or model, or, failing
