                             Fourth Court of Appeals
                                   San Antonio, Texas
                               MEMORANDUM OPINION
                                      No. 04-11-00763-CV

                                COASTAL RESOURCES, LTD.,
                                        Appellant

                                                v.

                 LOS LAZOS CONSTRUCTION AND LEASE SERVICE, LLC
                          and Coyote Paving & Construction, Inc.,
                                        Appellees

                    From the 49th Judicial District Court, Zapata County, Texas
                                      Trial Court No. 6,864
                            Honorable Jose A. Lopez, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Karen Angelini, Justice
                 Marialyn Barnard, Justice
                 Luz Elena D. Chapa, Justice

Delivered and Filed: April 24, 2013

AFFIRMED IN PART ON CONDITION OF REMITTITUR;
REVERSED AND REMANDED IN PART

           Coastal Resources, Ltd. appeals the trial court’s judgment awarding damages and

attorney’s fees to Los Lazos Construction and Lease Service, LLC and Coyote Paving &

Construction, Inc. Coastal contends: (1) the trial court erred in allowing Coyote to file an

amended pleading on the day of trial asserting a cross-claim against Coastal; (2) Los Lazos’s

claim was barred by the statute of frauds; and (3) the evidence is legally and factually

insufficient to support the jury’s award of damages and attorney’s fees. We affirm the judgment
                                                                                      04-11-00763-CV


in favor of Los Lazos on condition of remittitur; however, we reverse the judgment in favor of

Coyote and remand Coyote’s claim against Coastal for a new trial.

                                           BACKGROUND

        Zapata County awarded two road construction contracts to Coastal.             One contract

involved construction on roads in an area identified as Precinct 3, and the other contract involved

construction on roads in an area identified as Precinct 4. Coastal subcontracted with Coyote for

work on each of the contracts.           After construction on both contracts had commenced,

representatives of Coastal and Coyote met with a representative of Los Lazos. Los Lazos had

not been involved in the construction under either contract until this meeting. After the meeting,

Los Lazos began supplying caliche and providing labor for certain streets included within the

construction project. After the project was complete, Los Lazos sued Coastal and Coyote for

payment, and Coyote asserted a cross-claim against Coastal for payment for its work. Based on

a jury verdict, the trial court entered a judgment in favor of both Los Lazos and Coyote. Coastal

appeals.

                              REINSTATEMENT OF COUNTER-CLAIM

        In its first issue, Coastal asserts the trial court erred in granting Coyote leave to file an

original cross-claim against Coastal on the day of trial. Coastal’s issue, however, misstates the

substance of the trial court’s ruling.

        Los Lazos originally filed its lawsuit against Coyote and Coastal in August of 2008. The

first pre-trial guideline order set the cause for trial in August of 2009. In May of 2010, Los

Lazos filed a request for a docket control conference because the case was not set for trial at that

time. On June 1, 2010, the trial court signed a second pre-trial guideline order, setting the trial

for August 16, 2010, with a final pre-trial hearing scheduled for August 3, 2010. The order also

required the defendants to file their amended pleadings by July 3, 2010.
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        On July 8, 2010, 1 Coyote filed a third amended original answer and cross-claim, asserting

various claims against Coastal, including breach of contract for its failure to pay Coyote for all of

the service and work Coyote performed on the construction project. On August 3, 2010, the

attorneys for Los Lazos and Coastal appeared before a visiting judge for the final pre-trial

hearing. Los Lazos’s attorney announced ready and noted that the case had been pending for

two years. After Coastal’s attorney announced not ready, Los Lazos’s attorney explained that

the not-ready announcement was based on Coyote’s filing of its third amended original answer

and cross-claim. Los Lazos’s attorney argued the amended pleading should be stricken because

it was filed three days late based on the deadlines contained in the pre-trial guideline order.

Coastal’s attorney then stated:

                 MR. RAMOS: Assuming the court would allow the pleadings to stand, I
        have statutory defenses, you might have a statute of limitations defense. We’ve
        done all the depositions when they came in, so I needed time to prepare for all
        that, that’s why I’m announcing not ready.
                 Additionally, when we began the depositions, the deposition of Mr.
        Ramiro Saldivar the head plaintiff here, when it was my turn to cross-examine,
        there were some documents that were not available and they were supposed to
        have been provided for me so that I could then finish my cross-examination. We
        haven’t done that.
                Counsel tells me that in fact the documents may have been filed in one of
        the other depositions, but if [sic] they weren’t identified as such, and, therefore, I
        was unable to finish cross-examining for taking my deposition of the main
        plaintiff, and, therefore, that’s why we’re announcing not ready. I would ask for
        an extension of about 90 days. That’s all I need.

Based on the amended pleading being filed after the pre-trial guideline order deadline, the trial

court verbally struck the pleading. Coastal’s attorney then asked whether the case remained set

for August 16, 2010, and the trial court responded that it was. However, Los Lazos’s attorney

then stated that he had a federal court setting in a criminal case on that date which he believed

would take precedence over the trial setting of the underlying case. Los Lazos’s attorney further

1
  The document was mailed on July 6, 2010; therefore, references are made in the record to it having been filed on
the date it was mailed.

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stated, “I guess I can file a motion to continue.” The visiting judge stated, “You probably need

to file it with Judge Lopez [the presiding judge] and see what he says.” A docket sheet entry was

made regarding the striking of Coyote’s third amended answer and cross-claim, but no written

order was signed to document the ruling.

        On August 13, 2010, Coyote filed a motion for continuance of the trial setting. The

motion stated that the father of Coyote’s attorney had been rushed to the emergency room earlier

that week and remained hospitalized with a cardiac condition. The record does not reflect the

basis for which the trial date was reset; however, the case did not proceed to trial on August 16,

2010.

        On August 23, 2010, Los Lazos filed its fourth amended petition adding claims against

Ernestina Flores and Joel Gutierrez, who were on Coyote’s board of directors. These claims

were based on the allegation that Coyote had forfeited its corporate existence, making its

directors jointly and severally liable.

        On August 31, 2010, the trial court signed a third pre-trial guideline order. This order set

the case for trial on November 8, 2010, with a final pre-trial hearing scheduled for November 2,

2010.

        On October 14, 2010, Flores and Gutierrez filed their answers and also filed cross-claims

against Coastal, asserting the same claims Coyote asserted in its third amended answer and

cross-claim. These claims included a breach of contract claim for Coastal’s failure to pay

Coyote for all of the service and work Coyote performed on the construction project.

        On January 3, 2011, Los Lazos filed a request for a jury trial setting. The request noted

the November 8, 2010 jury trial setting was removed from the trial calendar based on various

other case settings. The trial court then signed an order setting the case for trial on March 28,



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                                                                                    04-11-00763-CV


2011, with a final pre-trial hearing scheduled for March 3, 2011. At the March 3, 2011 hearing,

the trial was again reset to July 18, 2011.

       On July 18, 2011, the first day of trial, a Rule 11 agreement, dated July 15, 2011, was

filed. The Rule 11 agreement settled the cross-claims Gutierrez and Flores asserted against

Coastal. The Rule 11 agreement expressly stated, however, “As discussed, this does not affect

the cross-claim filed by Coyote against Coastal or Coastal’s filed defenses.” In addition to the

settlement between Coastal and these individual defendants, Los Lazos also non-suited the

individual defendants that it had sued who were Coyote’s directors or owners.

       Coyote also filed a motion for reconsideration of the visiting judge’s verbal order striking

its third amended answer and cross-claim. The motion stated Coyote’s attorney only discovered

the verbal order when he was reviewing the hand-written docket sheet in preparation for trial.

The motion asserted that the basis for the verbal order was a deadline in a pre-trial guideline

order that was nullified by a resetting of the trial date. Finally, the motion noted that Coyote’s

cross-claim was the same claim that Gutierrez and Flores also asserted against Coastal.

       After the case was called for trial and the judge made his initial remarks to the venire

panel, the following exchange occurred:

               THE COURT: But I’d like to know what the posture of the defendants are
       in terms of with each other. Is there anything with each other or is there against
       each other?
               MR. D. RAMOS [Los Lazos’s counsel]: One thing we learned this
       morning is apparently they have settled with —
               MR. NOTZON [Coyote’s counsel who also represented Gutierrez and
       Flores]: Partially.
               MR. D. RAMOS: — partially with one of the defendants.
               MR. NOTZON: The individual defendants.
               MR. PEREZ [Coastal’s lead counsel]: There was a cross-action filed
       against [sic] Joel —
               MR. NOTZON: Gutierrez.
               MR. PEREZ: — Gutierrez and Ernestine Flores against Coastal in their
       individual capacity. Our defense, although we never dealt with them individually,
       was always as—
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                MR. NOTZON: Coyote.
                MR. PEREZ: — Coyote. And after discussing that with Mr. Notzon and
       he discussed it with his client, we settled that. Individual, but the Coyote claim is
       still pending.
                THE COURT: There’s still a Coyote claim, a cross-claim between Coyote
       and whom?
                MR. J.L. RAMOS [Coastal’s co-counsel]: There’s no —
                MR. NOTZON: And Coastal.
                MR. J.L. RAMOS: We’ve got a claim, only individual claims. You don’t
       have a Coyote claim.
                MR. NOTZON: Yes.
                THE COURT: What is it?
                MR. NOTZON: We have a Coyote claim.
                MR. PEREZ: He has a Coyote claim.
                MR. J.L. RAMOS: Okay.
                MR. NOTZON: The Coyote claim — we settled that for $5,000 and they
       were going to pay that today.
                THE COURT: But it’s settled?
                MR. NOTZON: Yes.
                MR. PEREZ: The individual claims.
                MR. NOTZON: The individual.
                THE COURT: But not the Coyote claims.
                MR. PEREZ: Not Coyote.
                MR. NOTZON: Correct.
                THE COURT: It remains.
                MR. NOTZON: Yes, sir.
                THE COURT: So Coastal continues with the Coyote claim.
                MR. NOTZON: So basically plaintiff is suing us, plaintiff is suing them
       and we’re suing them.

       After various other matters were handled and voir dire had commenced, an additional

exchange occurred in which Coastal’s attorney urged Coyote’s attorney to request a ruling on his

motion to reinstate the cross-claim. A lengthy discussion then ensued about the verbal order

striking the pleading pursuant to a superseded pretrial guideline order, the absence of a written

order, the Rule 11 agreement in which Coastal acknowledged Coyote’s cross-claim, and whether

Coastal relied on the verbal order striking the pleading given the subsequent resets and the




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settlement negotiations regarding the individual defendants’ identical cross-claim. 2                             At the

conclusion of the discussion, the trial judge stated he wanted to see the attorneys in chambers



2
    The following details part of this discussion:

                    MR. PEREZ: Bring up your motion right now.
                    MR. NOTZON: Okay.
                    MR. PEREZ: Mr. Notzon has a motion pending before the Court, a motion for leave.
                    MR. NOTZON: Judge, I had filed a motion just in case, but based on the stipulation they
           made on the record, that disposes of it.
           [Discussion regarding motions in limine]
                    MR. PEREZ: And on your Motion for Leave, what did he say about that?
                    MR. NOTZON: There’s no Motion for Leave. There was — basically, in preparing, we
           saw a docket sheet that there was a Motion to Strike our pleadings when my father was in the
           hospital and I couldn’t be here at the final pretrial.
                    But no motion was filed, and no order was signed — nothing was signed. There was a
           new pretrial guideline order entered into.
                    MR. D. RAMOS, JR.: We don’t oppose it.
                    MR. NOTZON: So basically we announced on the record the settlement and that our
           claims were still —
                    THE COURT: Valid?
                    MR. NOTZON: — pending against Coastal.
                    MR. PEREZ: But no, we don’t agree with that, Your Honor, I wasn’t here at that time.
                    MR. J.L. RAMOS: I was.
                    MR. PEREZ: But Mr. Ramos was present when that motion [sic] was stricken. We
           never responded — we never responded to that — that cross-action because it was stricken by the
           Judge that was here for you.
                                                              ***
                    MR. NOTZON: There’s a new guideline order entered, Judge that moots everything.
                    MR. PEREZ: It wasn’t refiled, Your Honor. They were seeking to refile it. We were
           served with a copy — a Motion for Leave for a refile.
                    THE COURT: When was this?
                    MR. PEREZ: August the 10th of 2010.
                    THE COURT: It was in 2010?
                    MR. PEREZ: Yes.
                                                              ***
                    THE COURT: Didn’t you enter into an agreement with regard to the individual
           defendants in this case?
                    MR. J.L. RAMOS: That’s settled.
                                                              ***
                    THE COURT: Why didn’t you all tell them on July 15 that, I don’t know what claim
           you’re talking about, it doesn’t exist?
                    MR. NOTZON: Correct, Judge.
                    MR. PEREZ: Because we were trying to get rid of the case just for nuisance value, Your
           Honor, with them.
                    THE COURT: All right. I understand your point.
                    MR. PEREZ: My position is that, if — if the Court wants to allow them to file the
           pleadings, just give us a continuance so that we can depose them and file an answer.
                    MR. NOTZON: Judge, they’ve already deposed my client.
                    THE COURT: Okay. I’m going to — I don’t know what you all did or what you didn’t
           do, but the bottom line is that if — you know what, I’ll be right back. I want to see all of you all
           in chambers.

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where he apparently granted the motion to reinstate given that Coyote was permitted to pursue

the cross-claim at trial.

        We initially note that docket sheet entries are generally not considered court orders. See,

e.g., Smith v. McCorkle, 895 S.W.2d 692, 692 (Tex. 1995) (“docket entry does not constitute

written order”); Ashton Grove L.C. v. Jackson Walker L.L.P., 366 S.W.3d 790, 795 (Tex. App.—

Dallas 2012, no pet.) (“docket entry forms no part of the record that may be considered”); Salais

v. Tex. Dept. of Aging & Disability Servs., 323 S.W.3d 527, 537 (Tex. App.—Waco 2010, pet.

denied) (noting orders must be entered of record and docket-sheet entries are not “of-record”

ruling). This case provides a good reason for this rule. Absent a written order entered of record,

attorneys do not receive notice of a ruling when not present at a hearing at the time the ruling is

verbally pronounced and solely noted on a docket sheet.

        For purposes of this opinion, however, we will assume the visiting judge’s verbal ruling

was sufficient to strike Coyote’s cross-claim, and Rule 63 of the Texas Rules of Civil Procedure

applies to the trial court’s ruling on Coyote’s motion to reinstate. Although a party is not

permitted to file an amended pleading within seven days of trial without obtaining leave of court,

the court is required to grant leave absent a showing that the amendment will operate as a

surprise to the opposing party. TEX. R. CIV. P. 63. A trial court may also refuse to grant leave to

amend a pleading during that timeframe if the amended pleading asserts a new cause of action,

making it prejudicial on its face. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.

1994). We review a trial court’s ruling on a request for leave under an abuse of discretion

standard. Id.; Nairn v. Killeen Ind. Sch. Dist., 366 S.W.3d 229, 249 (Tex. App.—El Paso 2012,

no pet.).

        In this case, Coyote’s cross-claim was not a new cause of action because it was identical

to Gutierrez’s and Flores’s cross-claim. Moreover, the record contains no evidence of surprise to
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Coastal given that Coastal acknowledged the existence of Coyote’s cross-claim in the Rule 11

agreement it signed three days before trial commenced. Finally, the absence of surprise is

evident because Coastal’s attorney acknowledged Coyote’s cross-claim prior to voir dire when

the trial court requested a description of the parties’ posture. Therefore, even assuming the

visiting judge’s verbal order and docket sheet entry effectively struck Coyote’s cross-claim when

it was initially filed over one year before trial, we hold the trial court did not abuse its discretion

in granting Coyote’s motion to reinstate its cross-claim. Coastal’s first issue is overruled.

                                        STATUTE OF FRAUDS

       In its second issue, Coastal contends the trial court erred in entering a judgment awarding

damages to Los Lazos based on the breach of an oral contract in the absence of a finding

excepting the oral contract from the statute of frauds. As Los Lazos notes in its brief, however,

Coastal never pled the statute of frauds as an affirmative defense to Los Lazos’s breach of

contract claim. The statute of frauds is an affirmative defense which is waived if not pled. See

TEX. R. CIV. P. 94; Phillips v. Phillips, 820 S.W.2d 785, 791 (Tex. 1991); Nicol v. Gonzales, 127

S.W.3d 390, 393 (Tex. App.—Dallas 2004, no pet.). Because Coastal failed to plead the statute

of frauds and the record does not show the affirmative defense of statute of frauds was tried by

consent, Coastal’s second issue is overruled.

                                             DAMAGES

       In its third, fourth, and fifth issues, Coastal attacks the sufficiency of the evidence to

support the damages awarded to Los Lazos and Coyote, and it contends the award of damages is

excessive and constitutes a double recovery.

A.     Standard of Review

       We review a legal sufficiency or “no evidence” challenge under the well-established

principles set forth in City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Reviewing the
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                                                                                        04-11-00763-CV


evidence in the light most favorable to the finding and indulging every inference that would

support it, we sustain a no-evidence challenge only if: (1) the record reveals a complete absence

of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving

weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital

fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of

the vital fact. Id. at 810, 822. The trier of fact is the sole judge of the credibility of the witnesses

and the weight to be given to their testimony. Id. at 819.

        When reviewing a jury verdict to determine the factual sufficiency of the evidence, we

consider and weigh all the evidence, and set aside the verdict only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709

S.W.2d 175, 176 (Tex. 1986). We also review an excessive damages claim using a factual

sufficiency analysis. See Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). As an intermediate

court, we must “examine all the evidence in the record to determine whether sufficient evidence

supports the damage award, remitting only if some portion is so factually insufficient or so

against the great weight and preponderance of the evidence as to be manifestly unjust.” Id.; see

also Bernstein v. Thomas, 298 S.W.3d 817, 825 (Tex. App.—Dallas 2009, no pet.).

B.      Los Lazos

        With regard to the damages awarded to Los Lazos, Coastal contends Los Lazos based its

damages model on the total amount of caliche required by the construction project’s

specifications and “assumed all caliche used on the job was taken from its caliche pit.” Coastal

asserts “[u]ncontroverted evidence showed caliche from other pits was used on the job,” and

“Los Lazos’ caliche was used by Coyote on other jobs besides Coastal’s job with the County.”

        In order to place Coastal’s complaints in context, we must review the testimony of Los

Lazos’s representative, Ramiro Saldivar. Saldivar testified that when he met with Coyote’s and
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Coastal’s representatives, Joseph Mendez, Coastal’s representative, requested that Los Lazos

provide both caliche and labor to help Coastal finish the construction project. Prior to that

meeting, Coastal was obtaining its caliche for the project from another source; however, that

caliche pit was located farther from the construction project than was Los Lazos’s. Los Lazos

agreed to provide Coastal with the caliche for $4.25 per cubic yard. Saldivar identified the

streets for which Los Lazos provided only caliche and the streets for which Los Lazos also

provided labor, and an exhibit listing those streets was introduced into evidence. Saldivar

acknowledged the project included streets for which Los Lazos did not provide caliche and

excluded those streets from its exhibit. Saldivar testified he used the plans and specifications

that set forth the required amounts of material to calculate the amount of the caliche he provided

for those streets. A few pages from the plans and specifications were separately introduced into

evidence to support Saldivar’s testimony. Saldivar further testified that he was informed on one

occasion that Coastal was taking caliche from Los Lazos’s pit without having obtained prior

permission. Saldivar reported this incident to the police, and a police report was made. Based

on his physical measurements of the caliche pit and calculations based on those measurements,

Saldivar testified that Coastal had taken approximately 4,000 cubic yards of caliche.

       Exhibits were introduced showing Saldivar’s damage calculations based on the foregoing

testimony. For the Precinct 3 portion of the project, the exhibits showed Los Lazos was owed:

(1) $78,812.39 for labor and material for the street identified as Eagle/FAL; (2) $51,266.60 for

material provided for additional streets; and (3) $12,750 for the caliche Saldivar testified that

Coastal had taken without authorization.      Saldivar testified that Los Lazos had been paid

$62,678.30 of the amount it was owed. Finally, Saldivar testified that $5,000 should be deducted

from the amount due for Precinct 3 because he did not complete a portion of the work on one

street based on his concerns about not being paid by Coastal. Accordingly, this evidence showed
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that Los Lazos was still owed $75,150.69 for the material and labor provided for streets in

Precinct 3.

       In addition, for the Precinct 4 portion of the project, the testimony and exhibits

established that Los Lazos was owed: (1) $37,262.50 for labor and material for Falcon Ave.; (2)

$33,951.80 for caliche for three additional streets; (3) $8,000 for additional caliche for the

Coyote yard; and (4) $10,200 for additional equipment and labor for the Precinct 4 roads. Thus,

the total owed to Los Lazos for material, labor, and equipment for the Precinct 4 portion of the

project was $89,414.30.

       Coastal’s representative, Joseph Mendez, testified that the plans and specifications are

commonly used to estimate the amount of caliche used for this type of project. Mendez agreed

that Zapata County paid Coastal for the caliche based on the amounts set forth in the plans and

specifications. Mendez also agreed that the supplier of the caliche should be paid because

Coastal was paid. Mendez further agreed that the engineer certified the work was completed in

accordance with the plans and specifications. Coastal’s primary complaint was that Coyote

should pay Los Lazos, not Coastal; however, this complaint does not affect the total amount that

Los Lazos should be paid for the work it performed and the material it provided.

       Although Saldivar’s testimony and the exhibits introduced into evidence support most of

the damages awarded to Los Lazos, the testimony regarding the $8,000 in damages that Los

Lazos claimed based on its delivery of 2,000 cubic yards of caliche to Coyote’s yard requires

further consideration. Saldivar testified that the caliche was dumped at Coyote’s yard for use by

Coyote. Although Saldivar also testified that the caliche was used for the county, he admitted

Coyote had projects on-going with the county other than the project for which Los Lazos was

suing Coastal. Saldivar further admitted that the caliche from Coyote’s yard could have been

used on other projects. Aleida Gutierrez, who was Coyote’s representative, also testified Coyote
                                              - 12 -
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had a contract with the county to provide materials for another project, and the caliche for that

project also was stockpiled at Coyote’s yard.

        Based on the foregoing testimony, we conclude the evidence is factually insufficient to

support the jury’s award of damages for the 2,000 cubic yards of caliche stockpiled in Coyote’s

yard because Los Lazos failed to meet its burden to prove that the caliche that was delivered to

Coyote’s yard was used on Coastal’s project. 3 Accordingly, the damage award in favor of Los

Lazos is excessive in the amount of $8,000, and we suggest a remittitur of that amount. See TEX.

R. APP. P. 46.3.

        C.       Coyote/Double Recovery

        With regard to the damages awarded to Coyote, Coastal argues that Coyote’s “retainage

model” failed to take into account its contractual obligation to pay Los Lazos for damages it

claimed under its “specifications model.” Saldivar testified that Los Lazos provided Coyote with

caliche it used in performing its work on the construction project, and Gutierrez also admitted

that Los Lazos was one of the entities that supplied Coyote with caliche. The exhibits attached

to Coyote’s demand letter, which was introduced into evidence, establish that Coyote was

asserting damages for the provision of flexible base, or caliche, on at least three of the streets for

which Los Lazos also was seeking damages, specifically the Monterrey, Guadalupe, and Buena

Vista streets. Gutierrez also testified that Coyote’s work included Diaz street for which Los

Lazos also sought damages for the caliche it provided. To the extent Los Lazos supplied the

caliche, this would also affect the amount of the retainage which Coyote may be entitled to

recover if the value of the caliche was included in the invoiced amount upon which the retainage


3
  We note that to the extent the caliche from Coyote’s yard was used on the Coastal project, Los Lazos recovered
damages for that caliche because Los Lazos’s damages model included damages for the caliche used on all of the
streets in the Coastal project for which Los Lazos provided caliche, with the amount calculated from the plans and
specifications.

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amount was based. We note the draw request relating to the work on Diaz street included a

retainage amount.

         Although Gutierrez’s testimony is legally sufficient to support the damages the jury

awarded, we agree with Coastal that based on the exhibits introduced and Gutierrez’s testimony,

a portion of the damages awarded to Coyote included damages for the caliche provided by Los

Lazos for which Los Lazos recovered damages. Accordingly, we hold the evidence is factually

insufficient to support the damages awarded to Coyote. See Tony Gullo Motors I, L.P. v. Chapa,

212 S.W.3d 299, 303 (Tex. 2006) (noting “[t]here can be but one recovery for one injury”).

Because this court may not order a new trial “solely on unliquidated damages if liability is

contested,” TEX. R. APP. P. 44.1(b), we reverse the trial court’s judgment with regard to Coyote’s

claim against Coastal, and we remand that claim to the trial court for a new trial.

                                              ATTORNEY’S FEES

         Although Coastal asserts a legal and factual sufficiency challenge to the attorneys’ fee

award in its sixth issue, the only argument made in its brief is that Los Lazos’s attorney did not

“testify about the elements of TEX. DISCIPLINARY R. PROF. CONDUCT 1.04.” 4 However, a court

“is not required to receive evidence of each of these [elements] before awarding attorney’s fees.”

McCalla v. Ski River Dev., Inc., 239 S.W.3d 374, 381 (Tex. App.—Waco 2007, no pet.); see also

State & County Mut. Fire Ins. Co. ex rel. Southern United Gen. Agency of Tex. v. Walker, 228

S.W.3d 404, 408 (Tex. App.—Fort Worth 2007, no pet.).

         In the instant case, detailed time records were introduced to support the hours of work

performed by Los Lazos’s attorneys in the underlying case from August of 2008, when their

work commenced, to July 14, 2011, before trial commenced on July 18, 2011. The records also


4
 Our reversal of the judgment as to Coyote’s claim necessarily also reverses the award of attorney’s fees in favor of
Coyote; therefore, we do not separately address this issue. TEX. R. APP. P. 47.1.

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documented the expenses that were incurred in connection with the case. Los Lazos’s lead

attorney testified about his experience and the hourly rates charged by the attorneys and

paralegals involved in the case. This evidence established Los Lazos had incurred $28,672.50 in

attorney’s fees prior to the commencement of trial. Los Lazos’s lead attorney also testified

regarding the number of hours of work performed by himself and the other trial attorney during

trial and the hourly rates for those hours, which totaled $24,000. Finally, Los Lazos’s attorney

testified his firm incurred expenses prior to trial in the amount of $8,389.27, and additional

expenses of $500 during trial. Based on his forty years of experience as a litigator, Los Lazos’s

attorney testified that the attorney’s fees were reasonable, necessary, equitable, and just. Neither

Coyote’s attorney nor Coastal’s attorney cross-examined Los Lazos’s attorney regarding his

testimony. Based on the foregoing, we hold the evidence is legally and factually sufficient to

support the jury’s award of $50,000 in attorney’s fees to Los Lazos for preparation and trial.

                                           CONCLUSION

        Because the damage award to Los Lazos is excessive in the amount of $8,000, we

suggest a remittitur of that amount. We affirm the portion of the judgment in favor of Los Lazos

conditioned on this remittitur. Because liability is contested, if this remittitur is not filed within

twenty days from the date of this opinion, the trial court’s judgment in favor of Los Lazos will be

reversed, and Los Lazos’s claim against Coastal will be remanded to the trial court for a new trial

on all issues. See TEX. R. APP. P. 46.3; 44.1(b); see Khorshid, Inc. v. Christian, 257 S.W.3d 748,

769 (Tex. App.—Dallas 2008, no pet.). The portion of the trial court’s judgment awarding

Coyote damages and attorney’s fees is reversed, and Coyote’s claim against Coastal is remanded

to the trial court for a new trial.

                                                   Luz Elena D. Chapa, Justice



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