Opinion
No. 01-10-00334-CV
Opinion issued April 7, 2011.
On Appeal from the Harris County Civil Court at Law Number Two, Harris County, Texas, Trial Court Case No. 890,770.
Panel consists of Justices JENNINGS, ALCALA, and SHARP.
MEMORANDUM OPINION
Appellants, Left Gate Property Holdings, Inc., doing business as Northside Texas Direct Auto ("Texas Direct"), and Ed Williams, challenge the trial court's judgment entered, after a jury trial, in favor of appellee, Temeasha Scott, in her suit against appellants for breach of contract and violation of the Deceptive Trade Practices Act ("DTPA"). In the first five of their six issues, appellants contend that there is no evidence of a breach of contract by Texas Direct, there is no evidence of a deceptive act by Texas Direct or Williams, and the evidence is "factually insufficient to support the conclusion that Scott was harmed by or as a result of any activity" of Texas Direct or Williams. In their sixth issue, appellants contend that the trial court erred in awarding Scott attorney's fees.
See TEX. BUS. COM. CODE ANN. § 17.46(a) (Vernon Supp. 2010).
We affirm.
Background
Williams testified that in 2005, he, while working as a salesman for Texas Direct, "listed" a 2005 Pontiac Firebird for sale on eBay. He prepared the advertisement, "generated it," and uploaded the information onto eBay's website by "manually" entering it through "a wizard," selecting various options to describe the car. Williams explained that a buyer can "end" an eBay auction by (1) bidding and having submitted the highest bid at the end of the auction or (2) using the eBay "Buy it Now" feature and paying a set price immediately. He noted that eBay allows a seller "to edit the information" originally posted "until someone makes a bid on it"; however, once a bid is placed or the "Buy it Now" option is exercised, the advertisement cannot be changed. Williams explained that eBay has this "safeguard" in effect because "once an auction has closed . . . it would be in eBay's best interest to lock down that record and not let anyone edit it."
Williams asserted that his eBay listing contained a link to a "CARFAX" report to allow consumers to "get a reasonable history" of the car. The CARFAX report listed the Firebird as having a "3.8-liter," "V6" engine. The trial court admitted into evidence a copy of the eBay advertisement and the CARFAX report, both revealing an "April 30, 2007" timestamp, which, according to Williams, was the date that he had printed the documents from his computer. He explained that there were "no physical document[s]" created at the time that he listed the Firebird on eBay because the process "was all electronic," but the copy of the eBay advertisement in evidence was of the "original" as it had appeared electronically. However, the copy of the CARFAX report in evidence was not how Scott would have seen the report in 2005 because it had since been updated to indicate her ownership of the car. Williams noted that CARFAX is a reporting service that obtains information about cars from government records. He explained that there is "no way to go back and change the old information on [a] CARFAX" report, and, had Scott "clicked [on] and received the CARFAX," she would have seen the report as admitted into evidence without "the new information" about her ownership of the car. The eBay advertisement admitted into evidence contains only five of the twenty-five pages noted at the top of the document because, as Williams explained, when he requested the copy from eBay, the eBay "representative" who retrieved the copy from its archives told him that eBay only stored the text and not the photographs contained in the advertisement. Williams asserted that the absence of the photographs "made up for" the missing pages.
Williams further testified that he did not "advertise[] the vehicle as a V8 to sell to the public or anyone" and the car "was always registered as a V6." Scott chose the "Buy it Now" option on eBay and, after she had purchased the car, she and Williams exchanged a series of emails, from which Williams learned that Scott was in Iraq at the time of her purchase and would not be returning to the United States until September 23, 2005. He noted that the emails did not reference the car's engine. Williams sent the documents concerning the car and Scott's purchase of it to her address in Kentucky because he knew that she would be returning there soon and, "typically," soldiers "have someone at their address" who has a power of attorney and can sign their legal documents.
Williams, in order to transfer title of the car to Scott, signed, on behalf of Texas Direct, an "application to transfer title" to a Kentucky title in Scott's name. The application listed the car as having an "eight cylinder" engine. Although Williams, in his answers to interrogatories, stated that no one at Texas Direct had placed this information on the application, he, at trial, testified that he was "fairly confident" that he did not place the information on the application. He noted that the writing does not "look like [his] handwriting," but he was "not sure" because there is "no way of knowing" after his having sold "1500 cars" since the time he had sold the Firebird.
Scott testified that when she was on active duty in the U.S. Army in Iraq in 2005, she became interested in purchasing the 2002 Pontiac Firebird listed in the Texas Direct online eBay advertisement. She explained that when she searched for a Firebird online, using eBay's various field options, she specifically selected the year, make, and model for a 2002 Pontiac Firebird. In regard to Scott's search, eBay provided fields for her to select an "engine type" and the "number of cylinders." She "picked the eight-cylinder" option, at which point eBay generated "a big list of V8 Firebirds and different locations." From this list, Scott then selected the 2002 Pontiac Firebird listed on eBay by Texas Direct, which, in its listing, included a small photograph and stated that the car was a "V8, fully loaded." After clicking on the photograph of the car, Texas Direct's listing "popped up" on her computer screen. The listing contained "the VIN number, and it said that it was a V8, 2002 Firebird, white with dark grey leather interior." However, Scott later learned that the car actually had a black leather interior and a six-cylinder engine. She "remembered seeing three pictures" of the car in the advertisement, and she stated that the eBay advertisement introduced into evidence is not "the eBay ad that appeared on her computer in Iraq back in August of 2005." Scott also noted that she had informed Texas Direct that no one had her power of attorney, no one had her authority to sign documents "on [her] behalf," she did not sign the "As Is" documents sent by Texas Direct to her house in Kentucky, and her aunt actually signed the documents. Scott, however, did sign the "application for the Kentucky title," but she did not "fill in eight cylinders or any of the information describing the vehicle" on the application. She explained that had she known that the car had a "V6" engine she would not have bought it. She thought that she was "buying a V8 Firebird, 2002, from Mr. Williams." Scott further noted that when she looked at Texas Direct's listing on eBay she "saw a V8 engine listed on this vehicle." And none of the documents signed by her aunt reflected that the car had a "V6 engine."
The signing of the documents by Scott's aunt is not at issue.
Joshua Astrologo, Scott's mechanic, testified that the Firebird actually had a six-cylinder engine. Scott brought the car to Astrologo for a "tune up," consisting of a "basic oil change" and replacement of the "spark plugs and wires." When Astrologo opened the car's hood, he discovered that it was a "V6" and he would not need the eight spark plugs that Scott had given him to install. When Astrologo told Scott that the car was a "V6" and not a "V8," she "became kind of irate and mad."
During trial, the parties stipulated to the amount of attorney's fees, and, after the jury rendered its verdict, the trial court signed its final judgment awarding Scott $4,000 in actual damages, interest, and $10,000 in attorney's fees. Neither party submitted a question to the jury on the recovery of attorney's fees.
Legal and Factual Sufficiency
In their first, second, and fourth issues, appellants argue that the trial court erred in denying their motion for directed verdict and judgment notwithstanding the verdict because there is no evidence of a breach of contract by Texas Direct or of a false, misleading, or deceptive act or practice by either Texas Direct or Williams. In their third and fifth issues, appellants argue, alternatively, that they are entitled to a new trial because the evidence is factually insufficient to support the conclusion that Scott was harmed by or as a result of any activity on the part of Texas Direct.
The jury found that Texas Direct had "fail[ed] to comply with the [a]greement" and that the failure to comply was material. In determining materiality, the trial court, in its charge, instructed the jury that they could consider "(a) the extent to which the injured party will be deprived of the benefit which she reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which [she] will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure [her] failure, taking into account the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing."
The jury also found that both Texas Direct and Williams had engaged in false, misleading, or deceptive acts or practices that Scott relied on to her detriment and the acts or practices were a producing cause of damages to Scott. See TEX. BUS. COM. CODE ANN. § 17.46(a) (Vernon Supp. 2010). In its charge, the trial court defined "[f]alse, misleading, or deceptive act[s] or practice[s]" to mean "[r]epresenting that goods or services had or would have characteristics that they did not have," "[r]epresenting that goods or services are or will be of a particular quality if they were of another," or "[r]epresenting that an agreement confers or involves rights that it did not have or involve." See id. § 17.46(b)(5), (7), (12) (Vernon Supp. 2010).
Standard of Review
We will sustain a legal sufficiency or "no evidence" challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court 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 scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). "`[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.'" Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). "More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Tarrant Reg'l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004). However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so. City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). In conducting a legal-sufficiency review, a court must consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it, and "[a] reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement." City of Keller, 168 S.W.3d at 822. However, "[e]ven though the evidence is viewed in the light most favorable to the verdict, it cannot be considered in isolated bits and pieces divorced from its surroundings; it must be viewed in its proper context with other evidence." AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (citing City of Keller, 168 S.W.3d at 827).
In a factual-sufficiency review, we must examine both the evidence supporting and contrary to the judgment. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The jury is the sole judge of the witnesses' credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). In our review of the factual sufficiency of the evidence, we must consider and weigh all of the evidence, and we will set aside a verdict only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
Legal Sufficiency
In support of their legal-sufficiency challenge, appellants assert there is no evidence that Texas Direct "had advertised the vehicle as anything other than a six cylinder" and, although Scott's testimony "might [constitute] `some evidence' when considered in isolation," it was "rendered `no evidence' when contrary evidence show[ed] it to be incompetent." They argue that the eBay advertisement, which was admitted into evidence with a "V6 notation" constitutes "undisputed evidence" that the jury could not disregard "because it shows that [Scott] contracted to purchase a V6 automobile and that no one at Texas Direct had failed to sell her a V6 vehicle." In support of this argument, appellants assert that the "only evidence supporting the judgment is [Scott's] selective memory of what was contained in the ad" and the "only contest [Scott] could muster against the actual ad is the date stamp printed on it when the ad was retrieved from eBay." According to appellants, it is "uncontested" that "once there [was] a bid, the eBay ad [could not have been] changed." They further assert that Scott herself testified that "she had contracted to purchase a V6" and her own testimony undermines her entire case that she was purchasing anything but a V6.
We first note that although the record shows that Scott did at one point testify that she "was buying a V6 Firebird," she corrected this testimony and further testified that she thought she was buying a "V8 Firebird, 2002, from Mr. Williams" and she had agreed to purchase a car with a "V8 engine." This single mistake in her testimony does not undermine her case.
Scott argues that there is "more than a scintilla of evidence" to support the jury's findings that Texas Direct had failed to comply with the agreement and that Texas Direct and Williams had engaged in false, misleading, and deceptive acts upon which Scott had relied to her detriment because her testimony established "that she believed" the agreement was for her to purchase a Firebird with an eight-cylinder engine, the eBay advertisement upon which she relied listed the Firebird as having an eight-cylinder engine, and the application to transfer title listed the Firebird as having an eight-cylinder engine and she did not place this information on the application. Scott argues that the eBay advertisement and CARFAX report admitted into evidence do not constitute "conclusive evidence" that Texas Direct advertised the vehicle as being equipped with a six-cylinder engine because she testified that it was not the actual advertisement that she saw, it is missing several pages, and it was not authenticated by an eBay employee. She also asserts that the CARFAX report, dated in 2007, could not "possibly have been the actual report made available to her at the time Scott was visiting the eBay ad in question."
As appellants note, "incompetent evidence is legally insufficient to support a judgment," and, thus, "evidence showing it to be incompetent cannot be disregarded, even if the result is contrary to the verdict." City of Keller, 168 S.W.3d at 812. However, "jurors are the sole judges of the credibility of witnesses and the weight to give their testimony." Id. at 819; Jackson, 116 S.W.3d at 761. Therefore, when reviewing all of the evidence in a light favorable to the verdict, courts "assume that jurors credited testimony favorable to the verdict and disbelieved testimony contrary to it." City of Keller, 168 S.W.3d at 819.
Here, Scott testified that she had accessed the advertisement on eBay by making various selections, including engine type, to find a 2002 Pontiac Firebird with an eight-cylinder engine. She viewed the Texas Direct listing and saw the Firebird listed as a "V8." Scott testified that the eBay advertisement admitted into evidence was not the actual advertisement that she had seen when she entered into the agreement to purchase the car. Williams did testify that the eBay advertisement in evidence is a copy of the actual advertisement that he had listed on eBay and that the link to the CARFAX report showed that the Firebird had a six-cylinder engine. However, as conceded by Williams, the full advertisement was no longer available at the time he obtained it and twenty of the twenty-five pages were missing.
"[I]f the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact's existence" more than a scintilla of evidence exists. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002). Williams's testimony about the eBay listing and the CARFAX report does not constitute "undisputed evidence" that the jury could not disregard. In fact, Williams's testimony about the eBay listing and the CARFAX report was called into question during cross-examination. Moreover, the incomplete copy of the eBay advertisement and Scott's testimony that the eBay advertisement described the Firebird as having a "V8" engine would have allowed reasonable and fair minded people to differ in their conclusions. See Tarrant Reg'l Water Dist. v. Gregg, 151 S.W.3d 546, 552 (Tex. 2004). Viewing the evidence in a light most favorable to the verdict, we conclude that there is more than a scintilla of evidence that the agreement was for the purchase of a 2002 Pontiac Firebird with an eight-cylinder engine and that Texas Direct and Williams misrepresented that the Firebird had an eight-cylinder engine. Accordingly, we hold that the evidence is legally sufficient to support the jury's findings of a material breach of contract and a violation of the DTPA.
We overrule appellants' first, second, and fourth issues.
Factual Sufficiency
In their third and fifth issues, appellants assert that the "evidence is factually insufficient to support the conclusion that [Scott] was harmed by or as a result of any activity on the part of Texas Direct [or] [Williams.]" Although appellants, in their issues presented, assert legal-and factual-sufficiency issues in regard to both Texas Direct and Williams, they have failed to brief any factual-sufficiency argument in regard to Texas Direct. Therefore, Texas Direct has waived any factual-sufficiency issues for our review. See TEX. R. APP. P. 38.1(i). Accordingly, we overrule appellants' third issue.
In support of his factual-sufficiency challenge, Williams asserts that there is "no evidence that he had made any personal representations to [Scott] or had mislead her regarding the vehicle," "no evidence that he was a director of Texas Direct," and "no evidence of any causation . . . that anything [Williams] did [] caused [Scott] any damages." He argues that "there is factually-insufficient evidence to support the false, misleading or deceptive act or practice element and the jury's verdict against him is contrary to the overwhelming weight of the evidence" because there is no evidence of causation as required under the DTPA.
Under the DTPA, a consumer may bring suit against any person whose violation of the Act is a producing cause of the consumer's harm. TEX. BUS. COM. CODE ANN. § 17.50(a)(1) (Vernon Supp. 2010). An agent may be held personally liable for his own violations of the DTPA. Miller v. Keyser, 90 S.W.3d 712, 718 (Tex. 2002). Liability is not affected by the agent or employee's position in the company, rather liability attaches because the agent or employee himself made the misrepresentations. Id. at 717. Producing cause requires "some evidence that the defendant's act or omission was a cause in fact of the plaintiff's injury." Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001).
Scott testified that Texas Direct represented that the Firebird had an eight-cylinder engine, the advertisement admitted into evidence was not the advertisement that she viewed on the day of her purchase, the transfer of title application described the car as having an eight-cylinder engine, she did not place this information on the application, and she purchased the Firebird because she believed it had an eight-cylinder engine. She further testified that when she later took the Firebird to her mechanic for a "tune up," he told her that the Firebird had a six-cylinder engine, not an eight-cylinder engine.
In contrast, Williams testified that the eBay advertisement admitted into evidence showed that the car had a six-cylinder engine, it contained a link to a CARFAX report, which also showed that the car had a six-cylinder engine, and, it is a copy of the the same advertisement that he had posted prior to Scott's purchase on eBay. He further testified that once Scott clicked on "Buy it Now," the advertisement could no longer be altered. However, as emphasized by Scott, twenty pages of the eBay advertisement were not included in the exhibit and Williams's testimony was brought into question on cross-examination.
The question of whether Williams's actions constituted a violation of the DTPA that were a producing cause of Scott's damages required the jury to weigh the conflicting evidence and evaluate the credibility of the witnesses. Therefore, we must defer to the jury's resolution of this disputed issue. See Jackson, 116 S.W.3d at 761. We conclude that the evidence is factually sufficient to support the jury's finding that Williams's false, misleading, or deceptive practices were a producing cause of Scott's damages. Williams himself testified that he had personally created the advertisement, and Scott testified that the advertisement described the Firebird as having an eight-cylinder engine, she contracted to purchase a car with an eight-cylinder engine, and, if the car had been listed as having a six-cylinder engine, she would not have purchased it. The evidence in support of the jury's finding is not so weak as to make the verdict clearly wrong and manifestly unjust. Pool, 715 S.W.2d at 655. Accordingly, we hold that the evidence is factually sufficient to support the jury's finding that Williams engaged in false, misleading, or deceptive practices by representing that the Firebird had characteristics that it did not have and that it would be or a particular quality when it was not.
Accordingly, we overrule appellants' fifth issue.
Attorney's Fees
In their sixth issue, appellants argue that the trial court erred in awarding attorney's fees to Scott because "the jury did not award any fees" and she was not "legally entitled" to attorney's fees. They assert that although they entered into a stipulation as to the amount of attorney's fees incurred by Scott, they did not stipulate that she was entitled to "the recovery of attorney's fees." They further assert that "[t]he stipulation predicated any recovery of attorney's fees on an award by the jury" and "to recover attorney's fees, the parties would need to submit jury questions on the necessity of attorney's fees."
The trial court's award of attorney's fees will not be disturbed on appeal absent an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). Absent contrary evidence, we must presume that a trial court's judgment is valid. Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex. App.-Houston [14th Dist.] 1999, pet. denied). Here, attorney's fees were recoverable under two Texas statutes. First, a party may recover reasonable attorney's fees on a claim regarding an oral or written contract. TEX. CIV. PRAC. REM. CODE ANN. § 38.001(8) (Vernon 2008). Second, the DTPA provides that a "consumer who prevails shall be awarded court costs and reasonable and necessary attorneys' fees." TEX. BUS. COM. CODE ANN. § 17.50(d). "Statutes providing that a party `may recover,' `shall be awarded,' or `is entitled to' attorney fees are not discretionary." Bocquet, 972 S.W.2d at 20; see also Cont'l Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 396 (Tex. App.-Texarkana 2003, pet. denied) (stating that if prevailing party recovers damages, attorney's fees for a violation of the DTPA are mandatory); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 23 (Tex. App.-Tyler 2000, pet. denied) (stating that once jury determines that defendant has violated DTPA, only question that remains is reasonableness and necessity of attorney's fees, not whether attorney's fees should be awarded).
Here, because we have concluded that the evidence is legally sufficient to support the jury's finding that Texas Direct breached its written contract with Scott and that Texas Direct and Williams violated the DTPA, we conclude that Scott, as the prevailing party, was entitled to an award of reasonable attorney's fees.
The party seeking to recover attorney's fees carries the burden of proof to establish the amount which is reasonable and necessary. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991). The amount and reasonableness of attorney's fees are questions of fact to be determined by the jury. Morgan, 873 S.W.2d at 390. As a question of fact, the parties were free to stipulate to the amount and reasonableness of attorney's fees. Id. A stipulation is an agreement, admission, or other concession made in a judicial proceeding by the parties or their counsel. Hansen v. Academy Corp., 961 S.W.2d 329, 335 (Tex. App.-Houston [1st Dist.] 1997, writ denied); Federal Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex. App.-Houston [1st Dist.] 1995, writ denied). A stipulation constitutes a binding contract between the parties and the court. Federal Lanes, 905 S.W.2d at 689. In construing a stipulation, a court must determine the intentions of the parties from the language used in the entire agreement examining the surrounding circumstances, including the state of the pleadings, the allegations made therein, and the attitude of the parties with respect to the issue. Discovery Operating, Inc. v. Baskin, 855 S.W.2d 884, 886-87 (Tex. App.-El Paso 1993, no writ). Stipulations are conclusive as to the facts stipulated and to all matters necessarily included therein. Handelman v. Handelman, 608 S.W.2d 298, 301 (Tex. Civ. App.-Houston [14th Dist.] 1980, writ ref'd n.r.e.). Absent a stipulation, there must be evidence presented to support an award of attorney's fees. Burtch v. Burtch, 972 S.W.2d 882, 890 (Tex. App.-Austin 1998, no pet.); see Arthur Andersen Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (stating that to recover attorney's fees plaintiff must prove that amount was reasonably incurred and necessary to prosecution of case).
Here, the record reflects the parties' stipulation, as follows:
[Trial Court]: Defendant has tendered Exhibits 1 through 5. Any objection?
[Plaintiff Counsel]: No objection.
[Trial Court]: So admitted. Let the record reflect that the parties have agreed to stipulate to attorney's fees. Each side will receive $10,000 if awarded by the jury as appropriate and based — and legally entitled for, $10,000 for trial and preparation; [$]7,500 into the court of appeals; an additional $5,000 if it goes to the Supreme Court. Is that your stipulation and agreement?
[Defense Counsel]: It is, Your Honor.
[Plaintiff Counsel]: It is, Your Honor.
[Defense Counsel]: So, we don't need Defendant's Exhibit 5 anymore?
[Trial Court]: So, Defendant's Exhibit 5 is withdrawn.
Appellants assert that although their stipulation covered the amount of attorney's fees, they did not stipulate to the reasonableness and necessity of such fees or Scott's right to recover them. Conversely, Scott asserts that "the stipulation was for the amount of attorney's fees and the recovery of attorney's fees would occur `as appropriate and based — and legally entitled for.'" Scott argues that she "was entitled to attorney's fees because she prevailed on a cause of action for which attorney's fees were recoverable and she recovered actual damages." Moreover, because the jury was not responsible for determining whether attorney's fees should be recovered the stipulation controls.
The Fourteenth Court of Appeals has addressed a similar issue. See Fire Ins. Exch. v. Sullivan, 192 S.W.3d 99, 110 (Tex. App.-Houston [14th Dist.] 2006, no pet.). In Sullivan, the parties stipulated that "in the event the jury enters findings on liability issues that would entitle [the plaintiffs] to an award of attorney's fees, [the plaintiffs] will be entitled to receive a judgment for attorney's fees of forty percent of . . . whatever the damage figure is that is entered in the judgment for that statutory attorney [sic] fee issue." Id. The stipulation in Sullivan did not mention the reasonableness or necessity of the attorney's fees. Id. However, the court noted that to avoid the necessity of presenting evidence as to the reasonableness and necessity of attorney's fees the parties had stipulated that, if they were legally entitled to recover attorney's fees, then the reasonable fee would be forty percent of the actual damages recovered. Id. Because the plaintiffs would only recover attorney's fees if they were otherwise entitled to do so, they "need not prove reasonableness because the parties agreed that forty percent of the amount recovered by them in the judgment would be a reasonable attorney's fee." Id. at 111. Here, the stipulation was dictated into the record by the trial judge. Considering the entire stipulation, it is apparent that the trial court and the parties understood the stipulation to control the amount of the award of attorney's fees as the parties did not present any further evidence as to the amount of their attorney's fees, they did not object to the lack of a jury question, and they stated on the record their agreement as to the amount of their attorney's fees.
Appellants now argue on appeal that Scott was required to submit an issue to the jury on the recovery of attorney's fees because the stipulation did not mention the reasonableness and necessity of attorney's fees. Generally, it is for the jury to determine the amount and reasonableness of attorney's fees. Bocquet, 972 S.W.2d at 20; Chappell, 37 S.W.3d at 23 (stating that once jury determines that defendant has violated DTPA, question still remains as to reasonableness and necessity of attorney's fees); Morgan, 873 S.W.2d at 389. Also, a failure to request a jury question on an issue results in a waiver of that issue by the party relying on it unless the issue was conclusively established. See TEX. R. CIV. P 279; Statewide Mobile Homes, LLC v. Tesoro, Inc, No. 13-08-00313-CV, 2009 WL 2462871, at *2 (Tex. App.-Corpus Christi Aug. 13, 2009, no pet.) (mem. op.); Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 763 (Tex. App.-El Paso 2000, no pet.).
However, when facts are undisputed or conclusively established, there is no need to submit those issues to the jury. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971); see XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 633 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). A stipulation serves as proof on an issue that otherwise would be tried. Houston Lighting Power v. City of Wharton, 101 S.W.3d 633, 641 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). A stipulation is conclusive on the issue addressed, and the parties are estopped from claiming the contrary. Id.; Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996).
Because the stipulation here contemplated the amount of attorney's fees to be recovered, this issue was not in dispute and, therefore, was not required to be submitted to the jury. See TEX. R. CIV. P 279; Abraxas Petroleum, 20 S.W.3d at 764; Tesoro, 2009 WL 2462871, at *2. The stipulation necessarily covered the reasonableness and necessity of the fees. See Handelman, 608 S.W.2d at 301. Neither party provided testimony as to the reasonableness or necessity of their attorney's fees, Texas Direct withdrew their exhibit regarding attorney's fees, and although a question on attorney's fees was originally presented in the proposed jury charge, the trial court did not include it in the jury charge because the parties had agreed as to the amount of their attorney's fees on the record. Because the parties stipulated to the amount of attorney's fees and Scott prevailed on her causes of action entitling her to attorney's fees, we hold that the trial court did not abuse its discretion in awarding Scott $10,000 in attorney's fees.
Accordingly, we overrule appellants' sixth issue.
Conclusion
We affirm the judgment of the trial court.