                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 MARK DAVIS,                                     §
                                                                 No. 08-12-00067-CV
                      Appellant,                 §
                                                                    Appeal from the
 v.                                              §
                                                         County Court at Law Number Three
 NORMA CHAPARRO,                                 §
                                                               of El Paso County, Texas
                      Appellee.                  §
                                                                   (TC# 2010-2059)
                                                 §


                                          OPINION

      Appellant, Mark Davis, appeals the trial court’s finding of breach of contract and its award

of $2,750 on the contract and $5,433.68 in attorney’s fees in favor of Appellee, Norma Chaparro.

We affirm.

                                        BACKGROUND

       Davis is an attorney.      He instructed his office manager, Lisa Rodriguez, to seek a

translator to translate a recorded conversation on an audio cassette tape in a post-divorce case for

Davis’s client, Mario Vizcarra.     Rodriguez called Chaparro, a certified translator who had

previously provided interpretation services during depositions for Davis’s law office. Chaparro

told the office employee who contacted her that she could perform the translation services.
Davis’s office subsequently provided Chaparro a copy of the recording. During their initial

conversation, Rodriguez and Chaparro did not discuss a price for the services. Rodriguez

understood Chaparro could not provide a fee quote without examining the tape.

       The tape contained a recorded conversation between an unidentified male and an

unidentified female speaking Spanish and was about an hour and twelve minutes in duration.

Chaparro first transcribed the conversation in Spanish and then translated it to English. Upon

experiencing difficulty with the transcription and translation of the recording, Chaparro enlisted

the help of another translator, her sister Susana Chaparro. When Susana contacted Davis’s office

regarding the inaudibility of the tape recording, Rodriguez instructed Susana to acquire another

copy from opposing counsel on Vizcarra’s case. Susana obtained the additional copy of the tape.

During follow-up conversations, Susana informed Davis’s office staff the transcription would

exceed fifty pages, and the office staff reiterated to her the importance of getting the transcript

done regardless of what the translators needed to do to finish it. The finished transcript comprised

110 pages.

       Chaparro delivered the transcript to Davis’s home in late August 2009, and Davis accepted

delivery of the transcript. Chaparro sent her bill for the transcription and translation services to

Davis’s office on September 16, 2009. Chaparro charged $25 per page for 110 pages totaling

$2,750. She offered a courtesy discount of $1,250, and requested payment of $1,500. Davis

failed to pay Chaparro.

       After seven months of nonpayment, Chaparro spoke with Davis directly in April 2010.

During that conversation, Davis told Chaparro to seek payment from his client, Mario Vizcarra.

Chaparro had no desire to track down a client unknown to her for payment because she believed


                                                 2
the contract for translation services to be between herself and Davis. Chaparro filed suit against

both Davis and Vizcarra for breach of contract and collection of the debt. Chaparro non-suited

Vizcarra before trial commenced.

       At the bench trial on September 23, 2011, Davis contested the continuance of the

proceedings absent Vizcarra’s presence as a party, and the trial court denied Davis’s Rule 39

motion to dismiss the case for failure to join a person necessary for the adjudication. See TEX. R.

CIV. P. 39(a)(b) (a person should be joined as a party, if in their absence, complete relief cannot be

accorded to those already parties; if the person cannot be made a party, the court shall determine

whether in equity and good conscience, the action should proceed or be dismissed).

       During trial, conflicting testimony was presented regarding who was a party to the initial

conversation between Davis’s office and Chaparro. Chaparro testified she spoke with one of the

ladies at Davis’s office, but did not remember with whom she had spoken when she initially agreed

to translate the tape. Rodriguez testified she spoke only to Susana on the phone, both during the

initial conversation regarding translation services and thereafter. Susana testified that her only

conversations with Davis’s office pertained to the length of the transcription, the quality of the

recording that was being translated, and obtaining another copy of the tape. Both Chaparro and

Susana testified that Chaparro had already begun transcribing the recorded conversation and only

enlisted aid from Susana as a second translator after experiencing difficulties with the quality of

the recording.

       Chaparro also testified regarding her billing practices. Among the factors Chaparro

considers when billing a client are the quality of the material to be translated, the type of

equipment available for use in translating, the time frame available for completing the translation,


                                                  3
how “wordy” the material is, the type of work to be performed, such as transcribing, interpreting,

translating, the amount of time actually required to complete the job, how technical the language

being translated is, and the expertise of the translator. Chaparro stated that she decided to offer a

courtesy discount to Davis, in part, because she hoped for quick payment. When Chaparro had

worked as an interpreter for Davis’s office in the past, she billed and received payment directly

from Davis. It is Chaparro’s common business practice to bill and collect payment from attorneys

rather than their clients.

        Susana testified about her knowledge of fees reasonably and customarily charged by

translators in the geographic area for this type of work. In Susana’s opinion, the $2,750 fee

Chaparro charged Davis was reasonable. Susana also testified it is an industry practice for

interpreters and translators to contract with and receive payment from an attorney and not the

attorney’s client.

        Freelance interpreter Estela Balderrama also testified to the factors which are taken into

account when determining a fee for translation work. In Balderrama’s opinion, $2,750 is a very

fair rate for the work Chaparro completed for Davis because Chaparro could have charged a higher

rate. When Balderrama performs work for a law firm, she bills and receives payment from the

attorney or law firm that hired her, not the attorney’s client.

        Rodriguez, Davis’s office manager, testified to the billing and payment practices of

Davis’s office for third-party services. According to Rodriguez, she does not guarantee payment

on behalf of clients to third-party providers such as private investigators, translators, process

servers, etc. Clients pre-pay any expenses to Davis, and when the office receives the funds, it

pays the third-party provider directly. Rodriguez explained that the usual billing procedure was


                                                  4
not followed in this case because the translation fee could not be quoted in advance.

       Rodriguez was certain during the initial conversation that she had clearly communicated to

Susana the recording to be translated was for Davis’s client Mario Vizcarra. Chaparro testified

she did not remember hearing Vizcarra’s name before she asked the office staff how to reference

the completed transcript. The transcript refers to the voices on the recording as an unidentified

male and unidentified female.

       Vizcarra testified he authorized Davis to hire someone to translate the tape recording.

When he was forwarded the bill for Chaparro’s services, he thought it was very expensive and did

not pay it. At the conclusion of the bench trial, the trial court entered findings of fact and

conclusions of law and determined the following:

       There is a valid enforceable contract;
       Plaintiff is a proper party to sue for the breach of contract;
       Plaintiff performed and tendered performance of her contractual obligations;
       Defendant Mark Davis breached the contract by not paying;
       Defendant Mark Davis’ breach caused Plaintiff Norma Chaparro’s injury, i.e.,
       nonpayment;
       The amount owed by Defendant on the contract is $2,750;
       There was no disclosure of a responsible principal at the time the contract was
       entered into; and
       Plaintiff is entitled to reasonable attorney’s fees in the amount of $5,433.68, which
       includes expenses of $852.63.

                                           DISCUSSION

       Davis raises ten issues on appeal. In Issues Two, Three, Five, and Eight, Davis challenges

the trial court’s finding of a valid and enforceable contract.

                                     Validity of the Contract

                                        Standard of Review

       We review a trial court’s findings under the same legal and factual sufficiency standards


                                                  5
used to determine whether or not the evidence is sufficient to support a jury verdict. Ortiz v.

Jones, 917 S.W.2d 770, 772 (Tex. 1996); Trinity Drywall v. Toka Gen. Contrs., 416 S.W.3d 201,

207 (Tex. App.—El Paso 2013, pet. filed). In a bench trial, the judge as fact finder determines the

credibility of witness testimony taking into consideration the facts and circumstances in

connection with the testimony. Mekeel v. U.S. Bank Nat. Ass’n, 355 S.W.3d 349, 358 (Tex.

App.—El Paso 2011, pet. dism’d). The trial court is free to accept or reject any part of a witness’s

testimony. Id. This court will not substitute its own judgment for that of the fact finder as long

as the evidence falls within a zone of reasonable disagreement. City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005); In re B.A.W., 311 S.W.3d 544, 549 (Tex. App.—El Paso 2009, no

pet.).

         When raising a challenge on the legal sufficiency of an adverse finding to which the party

did not bear the burden of proof below, they must show there is no evidence to support the finding.

Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). If there is

anything more than a scintilla of evidence to support the finding, it is legally sufficient. Formosa

Plastics Corp. USA v. Presidio Engineers & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).

More than a scintilla of evidence exists when it is at a level which enables reasonable and

fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003).

         When a party challenges the factual sufficiency of the evidence, we consider, weigh, and

examine all of the evidence in the record, including evidence in support of and evidence against the

finding. Region XIX Serv. Ctr. v. Banda, 343 S.W.3d 480, 489 (Tex. App.—El Paso 2011, pet.

denied). We will only set aside a finding as factually insufficient if the evidence to support it is so


                                                  6
weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986); Banda, 343 S.W.3d at 489.

                                              Analysis

       A valid and enforceable contract requires the following elements: (1) an offer; (2)

acceptance of which complies with the terms of the offer; (3) a meeting of the minds; (4) consent

by each party to the terms; and (5) execution and delivery of the contract with the intent that it be

mutual and binding. IHS Acquisition No. 171, Inc. v. Beatty-Ortiz, 387 S.W.3d 799, 806 (Tex.

App.—El Paso 2012, no pet.); Cessna Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455,

465 (Tex. App.—Dallas 2006, pet. denied). To determine the existence of an oral contract, a

court looks to the communications between the parties, as well as the acts and circumstances

surrounding their communications. Cessna, 213 S.W.3d at 465. An implied contract is one that

arises when the acts and conduct of the parties imply a mutual intention to contract. In Re

Marriage of Eilers, 205 S.W.3d 637, 641 (Tex. App.—Waco 2006, pet. denied). In the case of an

implied contract, mutual agreement is inferred from the circumstances rather than expressly stated.

Haws & Garrett General Contractors Inc. v. Gorbett Bros. Welding Co., 480 S.W.2d 607, 609

(Tex. 1972); see also Mann Frankfort Stein & Lipp Advisors Inc. v. Fielding, 289 S.W.3d 844, 850

(Tex. 2009).

       In Issue Two, Davis challenges the legal and factual sufficiency of the evidence to support

the trial court’s determination that a valid contract existed because he did not promise to pay

Chaparro for her translation services. A promise, acceptance of which will form a contract, is an

assurance or manifestation of an intention to act or refrain from acting in such a way that a

commitment has been made. City of Houston v. Williams, 353 S.W.3d 128, 138 (Tex. 2011)


                                                 7
(quoting Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998)). Davis’s

office staff approached Chaparro to take a job similar to those she had performed in the past for

Davis and for which he had paid her. Davis provided the tape recording to Chaparro and Davis

accepted the completed transcript at his home. In accordance with her past billing practices,

Chaparro billed Davis’s office expecting payment.

       Based on the circumstances, the parties’ course of conduct and their earlier business

dealings, the trial court’s determination that Davis manifested an intention to pay Chaparro for her

work is within a zone of reasonable disagreement. City of Keller, 168 S.W.3d at 822; see also

Haws & Garrett, 480 S.W.2d at 610 (existence of a contract rests upon the inferences drawn by the

trier of fact from the surrounding facts and circumstances); Domingo v. Mitchell, 257 S.W.3d 34,

41 (Tex. App.—Amarillo 2008, pet. denied) (promises to cover expenses and reimburse payment

based on the parties’ conduct and prior course of dealings was sufficient consideration to create a

binding contract). More than a scintilla of evidence exists to support the trial court’s implied

finding that Davis promised to pay Chaparro for her services. Therefore, the trial court’s finding

is supported by legally sufficient evidence. Formosa Plastics Corp., 960 S.W.2d at 48. Having

examined all the evidence, we conclude it is not so weak as to be clearly wrong or manifestly

unjust, and is factually sufficient to support the trial court’s finding of a valid, enforceable

contract. Cain, 709 S.W.2d at 176. Issue Two is overruled.

       Issue Five claims the evidence was legally and factually insufficient to support a finding

that the conversation between Davis’s office and Chaparro demonstrated a meeting of the minds to

permit the fact finder to conclude the parties entered into a valid contract. When determining if a

meeting of the minds occurred, a court uses an objective standard of the parties’ communications


                                                 8
and actions and not their subjective states of mind. Stewart Title Guar. Co. v. Mims, 405 S.W.3d

319, 339 (Tex. App.—Dallas 2013, no pet.); see also Franco v. Ysleta I.S.D., 346 S.W.3d 605, 608

(Tex. App.—El Paso 2009, no pet.).

       Davis argues the parties did not agree on specific elements to form a contract during their

initial conversation including price, time frame for completion of the work, and Chaparro’s

express acceptance to perform the work. Instead, Davis maintains Chaparro only represented she

was available to perform the translation, not that she would do it. Davis’s argument centers on the

initial conversation with Chaparro. However, the trial court was permitted to find a valid contract

existed based on all the parties’ conversations as well as the acts and circumstances surrounding

them. Cessna, 213 S.W.3d at 465. Davis’s office had hired Chaparro in the past and she had

been paid directly in those circumstances. Additionally, Rodriguez testified she knew she could

not receive an accurate fee quote during the initial conversation because Chaparro was not in

possession of the tape to be translated. Davis’s office provided Chaparro the tape to be translated,

engaged in follow-up conversations with Susana regarding the translation of the tape, instructed

Susana to obtain a copy of the tape from opposing counsel, and requested the translation be

finished regardless of what needed to be done to complete it. Because there is more than a

scintilla of evidence to support a finding that a meeting of the minds existed between the parties,

the evidence is legally sufficient.    Formosa Plastics Corp., 960 S.W.2d at 48.            Having

considered all the evidence, we conclude it is not so weak as to be clearly wrong or manifestly

unjust. As such, the trial court’s finding is also factually sufficient. Banda, 343 S.W.3d at 489.

Issue Five is overruled.

       In Issue Three, Davis asserts the parties’ inability to agree on a price for translation


                                                 9
precludes a finding that a meeting of the minds existed between them regarding the reasonable

value of Chaparro’s services because other essential terms of the contract were left unsettled. In

Issue Eight, Davis asserts no contract was formed because the parties had no meeting of the minds

regarding the price Chaparro would charge Davis for her translation services. We address these

issues together.

       When a contract is lacking an agreement on price but all other elements have been met, it is

not so incomplete as to be rendered unenforceable. Inimitable Group, L.P. v. Westwood Group

Dev. II, Ltd., 264 S.W.3d 892, 899 (Tex. App.—Fort Worth 2008, no pet.); see also Pennington v.

Jerry F. Gurkoff, D.O., P.A., 899 S.W.2d 767, 770 (Tex. App.—Fort Worth 1995, writ denied).

The court may imply a reasonable price. Inimitable Group, 264 S.W.3d at 899. Davis argues

several essential elements of the contract other than price were missing, therefore, it could not have

been enforceable. The essential terms Davis claims were absent include an agreement on who

was responsible for paying Chaparro, and the date by which the work would be completed. Davis

further argues in Issue Eight that the lack of an industry standard by which translators bill for their

services means a meeting of the minds on a reasonable price could not have been reached.

       Chaparro did not discuss a specific fee for the translation work during her initial

conversation with Davis’s office. Rodriguez testified she knew she would not be able to receive a

fee quote before Chaparro reviewed the recording. This is some evidence that Davis’s staff

understood the industry standards that fees for translation jobs are determined by a number of

subjective factors. Susana discussed with Davis’s office the difficulty of translating the tape, how

to obtain a better quality copy of the recording, and the fact that the transcript would be more than

fifty pages in length. Davis’s staff was aware that completion of the transcript would require


                                                  10
additional time and reminded Susana on the importance of getting the transcription done

regardless of what they needed to do to finish it. Davis requested the work be performed and

eventually accepted delivery of the completed transcript at his home. Although a fee arrangement

was not specified during the initial conversation to contract Chaparro’s translation services, the

evidence supports the trial court’s implied finding that there was a meeting of the minds to pay a

reasonable fee for the services rendered. Inimitable Group, 264 S.W.3d at 899. Therefore, the

contract is still enforceable absent an express agreement on the price. See also Pennington, 899

S.W.2d at 770. Issues Three and Eight are overruled.

                                        Failure to Disclose

       In Issue Four, Davis challenges the legal and factual sufficiency of the evidence to support

the trial court’s finding that no disclosure of a responsible principal occurred at the time Chaparro

was contracted to translate the tape.

       When an attorney contracts with a third party for goods or services to be used in connection

with his representation of a client and the third party is aware of these facts, the attorney is not

personally liable on the contract unless he either expressly or impliedly assumes special liability.

Eppler, Guerin & Turner, Inc. v. Kasmir, 685 S.W.2d 737, 738 (Tex. App.—Dallas 1985, writ

ref’d n.r.e.).    The law does not carry a presumption of agency.                   Wright Group

Architects-Planners, P.L.L.C. v. Pierce, 343 S.W.3d 196, 200 (Tex. App.—Dallas 2011, no pet.).

The party claiming agency as an affirmative defense bears the burden of proof and must prove both

disclosure of its representative capacity and disclosure of the identity of the principal occurred.

Id. Disclosure must have been given at the time the parties entered into the contract to be

sufficient. Gordon v. Leasman, 365 S.W.3d 109, 115 (Tex. App.—Houston [1st Dist.] 2011, no


                                                 11
pet.).

                                        Standard of Review

         When challenging the legal sufficiency of an adverse finding on an issue where the

claimant bore the burden of proof, the claimant must show as a matter of law, that the evidence

supports all vital facts of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

The trial court as fact finder is free to determine the credibility and amount of weight to give any

contradictory evidence. Mekeel, 355 S.W.3d at 358. For a matter of law challenge, a reviewing

court first looks for evidence supporting the finding and ignores evidence contradictory to the

finding. Primera Enterprises, Inc. v. Autrey, 349 S.W.3d 167, 169 (Tex. App.—El Paso 2011, no

pet.). If there is no evidence in support of the finding, then we examine the whole record and

determine if there is evidence to support the contrary position as a matter of law. Id. The

evidence is legally insufficient only when the contrary position is conclusively established. Dow

Chem. Co., 46 S.W.3d at 241. We will only set aside a finding as factually insufficient if after

reviewing all the evidence, it is apparent the finding is so against the great weight and

preponderance of the evidence as to be clearly wrong and manifestly unjust. Id. at 242.

                                              Analysis

         Davis maintains that he cannot be liable for payment of Chaparro’s services because he did

not personally enter into a contract with Chaparro, but did so as the agent of a disclosed principal.

Davis asserts there is no evidence in the record establishing his failure to disclose his client’s

identity when Rodriguez, his office manager, first spoke to Chaparro. Because Rodriguez first

spoke to Susana, who was working with Chaparro on the translation, Davis contends Chaparro’s

testimony that she did not remember if she was told the identity of the client before she had


                                                 12
completed the transcript was insufficient to prove his failure to disclose his client’s identity.

Davis’s argument contains a misstatement of the standard of review by claiming there was no

proof he failed to disclose the identity of his client when he bore the burden to prove he disclosed

the identity of his client. Wright Group Architects-Planners, 343 S.W.3d at 200.

       The only evidence Davis set forth to prove disclosure is Rodriguez’s testimony she clearly

communicated the translation was for Mario Vizcarra during her initial conversation with whom

she believes was Susana. Davis’s position relies on Rodriguez’s testimony she only spoke with

Susana and never with Chaparro.        Chaparro and Susana provided contradictory testimony

regarding this fact. Chaparro testified she first spoke with Davis’s office about taking the job and

did not bring her sister in as a second translator until she experienced difficulty with the tape.

Susana testified her sister had already begun transcription before she became involved, and she

only spoke with Davis’s office staff in subsequent conversations regarding the length of the

transcript, the inaudibility of the tape, and how to obtain an additional copy. Additionally, when

Susana spoke with opposing counsel about obtaining another copy of the tape, she referred to it as

the Davis tape. Chaparro testified she did not remember hearing the client’s name until she had

completed the transcript and inquired how to reference the job. On the transcript, the voices are

identified as an unidentified male and an unidentified female.

       To determine if the evidence was legally sufficient to support the trial court’s finding Davis

did not disclose his agency status or the identity of his client, we first examine the record for

evidence supporting the finding. Primera Enterprises, Inc., 349 S.W.3d at 169. Chaparro

testified she had no memory of hearing the name of the client for whom the translation was done

until she contacted the office in regards to referencing the finished product for delivery.


                                                13
Additionally, the transcript listed the parties on the tape as unidentified male and unidentified

female, suggesting Chaparro did not know the names of Mr. Vizcarra and his ex-wife to use as

identifiers. We note that mere disclosure of the client’s name in this context is not sufficient to

establish Davis’s agency status. Davis must also prove disclosure of his representative capacity

as an agent occurred at the time the contract was entered into. Wright Group, 343 S.W.3d at 200;

Gordon, 365 S.W.3d at 115.

       Davis asserts he cannot not be personally liable for the contract because Chaparro knew the

transcription was requested on behalf of his client and he did not expressly or impliedly assume

special liability for the contract. Eppler, 685 S.W.2d at 738. However, when an attorney

contracts third-party services on behalf of a client without specifying his agency status, the

attorney may assume special liability for payment of the services. See Nagle v. Duncan, 570

S.W.2d 116, 117 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ dism’d) (attorney was liable to

court reporter for payment on preparation of a record when the attorney’s office requested the

record and paid the deposit for the record); Murphy v. Cain, 711 S.W.2d 302, 304 (Tex.

App.—Dallas 1986, no writ) (attorney orally contracted with a court reporter to work at

depositions, although the reporter knew the services were to be performed on behalf of a client, the

attorney was personally liable because he contacted and contracted with the reporter). Davis’s

office staff contacted Chaparro and did not specify that the client, Vizcarra, would be responsible

for payment.    Davis had paid Chaparro in the past for translation services at depositions.

Chaparro’s common business practice is to bill and collect payment from the attorneys she

provides services to and not their clients. Additionally, Davis’s office collects payment from

clients for third-party services and then pays the third-party provider directly. Absent an express


                                                14
disclosure of Davis’s agency status at the time the contract with Chaparro was formed, the

evidence supports an implied finding that Davis expressly or impliedly assumed special liability

and is responsible for payment of the contract. See Nagle, 570 S.W.2d at 117; Murphy, 711

S.W.2d at 304.

       Having found evidence in the record to support the trial court’s finding that no disclosure

of a responsible principal occurred, we need not reach the second part of the analysis and examine

the record for evidence contradictory to the finding. Primera Enterprises, Inc., 349 S.W.3d at

169. Therefore, the evidence is legally sufficient and Davis’s matter of law challenge fails. Dow

Chem. Co., 46 S.W.3d at 241. The finding is also factually sufficient based on a review of all the

evidence because it is not so against the weight and preponderance of the evidence as to be clearly

wrong and manifestly unjust. Id. at 242. Issue Four is overruled.

                                            Damages

       In Issue Six, Davis claims the trial court abused its discretion by awarding Chaparro $2,750

in actual damages when the maximum amount she should have recovered was $1,500. In Issue

Seven, Davis states he is entitled to a new trial on the amount of attorney’s fees awarded because

of the excessive damages awarded to Chaparro as raised in Issue Six.

                                       Standard of Review

       The trier of fact is afforded broad discretion in awarding damages within the range of

evidence before it. Rhey v. Redic, 408 S.W.3d 440, 455 (Tex. App.—El Paso 2013, no pet.).

When a rational basis exists to support the amount of the damages award, it will not be disregarded

or set aside. Rojas v. Duarte, 393 S.W.3d 837, 845 (Tex. App.—El Paso 2012, pet. denied). The

universal rule for measuring damages for breach of contract is just compensation for the loss or


                                                15
damage actually sustained. Dakil v. Lege, 408 S.W.3d 9, 12 (Tex. App.—El Paso 2012, no pet.).

This is also commonly referred to as the benefit of the bargain. Bowen v. Robinson, 227 S.W.3d

86, 96 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). Under the implementation of this rule,

a party should not receive less or more than the actual damages they incurred. Abraxas Petroleum

Corp. v. Hornburg, 20 S.W.3d 741, 760 (Tex. App.—El Paso 2000, no pet.).

                                             Analysis

       The trial court found a valid, enforceable contract existed and the amount owed on it was

$2,750. Both parties acknowledge they did not agree upon a specific price at the inception of the

contract because Chaparro was unable to quote a fee for her services without access to the tape.

Davis’s office was made aware of the difficulties Chaparro had regarding the audibility of the tape

and the need for a second copy. Chaparro testified as to the factors considered when determining

a fee for translation work. Susana Chaparro and Estela Balderrama, both professional translators,

corroborated Chaparro’s testimony that a fee is determined on a case-by-case basis using the

specified factors, and opined that the rate charged in this case was reasonable. Based on the

circumstances and difficulties of this particular job, Chaparro invoiced her work at $25 per page,

with 110 pages completed for a total of $2,750. She then offered Davis a courtesy discount of

$1,250, requesting payment of $1,500.

       Davis asserts the trial court abused its discretion by awarding Chaparro the full $2,750

when she only expected payment of $1,500.            However, expectation is not the standard of

determining damages for breach of contract. Rather, the fact finder determines just compensation

as the value of the loss or damage actually sustained. Dakil, 408 S.W.3d at 12. The value of the

service Chaparro provided was $2,750, and her decision to offer a discount at the time she billed


                                                16
Davis does not change the value of the work. See Feder-Gregg Shoe Co. v. Big Four Shoe Store

Co., 284 S.W. 717, 719 (Tex. Civ. App.—Austin 1925, no writ) (buyer is not entitled to the

discount that had been offered if buyer paid in full within a certain amount of time). Because

there is a rational basis for the amount of damages awarded, the reasonable rate as charged on the

invoice absent the courtesy discount, the trial court did not abuse its discretion in awarding

Chaparro $2,750, and we will not set aside or disregard its award on damages. Rhey, 408 S.W.3d

at 455; Rojas, 393 S.W.3d at 845. Issue Six is overruled. Davis’s argument in Issue Seven is

predicated on Issue Six being sustained. Having overruled Issue Six, we need not reach the merits

of Issue Seven. Issue Seven is overruled.

                                          Attorney’s Fees

       In Issue One, Davis asserts the trial court abused its discretion by awarding Chaparro

attorney’s fees because Chaparro did not actually incur attorney’s fees when her husband

represented her, and contends Chaparro was not planning to pay for the representation. In Issue

Ten, Davis contends the trial court’s attorney’s fees award calculated at $275 per hour was

excessive because the lodestar method warranted a lower rate.

       To preserve error for appellate review, a party must present a complaint before the trial

court through a timely request, objection or motion and the trial court must either rule on the

complaint, or refuse to rule and the party objects to the refusal. TEX. R. APP. P. 33.1(a); see

Dodge v. Dodge, 314 S.W.3d 82, 85, 86 n.3 (Tex. App. – El Paso 2010, no pet.) (appellant’s

complaints regarding attorney’s fees were overruled for failure to present before the trial court).

Davis did not object to the award of attorney’s fees after the trial court stated its findings of facts

and conclusions of law or file a post-judgment motion contesting the award of attorney’s fees.


                                                  17
Because Davis failed to present his complaints regarding attorney’s fees to the trial court, they are

not preserved for our consideration on appeal. Dodge, 314 S.W.3d at 86 n.3. Issues One and

Ten are overruled.

                              Motion to Dismiss for Failure to Join

       In Issue Nine, Davis contends the trial court’s denial of his motion to dismiss for failure to

join a party necessary to the proceedings was error. Davis argued before the trial court that his

client, Mario Vizcarra, was a necessary party to the litigation, and absent his joinder, the case

should be dismissed pursuant to Texas Rule of Civil Procedure 39. TEX. R. CIV. P. 39.

       Mario Vizcarra was initially a party to the litigation, but was non-suited by Chaparro prior

to trial. Davis’s brief claims the trial court’s denial of his Rule 39 motion failed to protect him

from a later suit by Vizcarra. However, he cites no legal authority and fails to present a clear and

concise legal argument to support his claim that he was entitled to dismissal based on his Rule 39

motion. Therefore, Davis has waived this issue based on inadequate briefing. See TEX. R. APP.

P. 38.1(i) (argument section of brief must contain a clear and concise argument with proper

citations to the record and legal authority). See also Foster v. City of El Paso, 396 S.W.3d 244,

258 (Tex. App.—El Paso 2013, no pet.). Issue Nine is overruled.

                                         CONCLUSION

       The judgment of the trial court is affirmed.



                                              GUADALUPE RIVERA, Justice
April 11, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.



                                                 18
