NUMBER 13-19-00530-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

 

LYLE B. MURPHEY, TRUSTEE OF THE 

LYLE BERNHARDT MURPHEY TRUST 

UNDER AGREEMENT DATED MAY 2, 2002; 

AND LYLE B. MURPHEY, INDIVIDUALLY, Appellant,

v.

OLD DOLLAR PROPERTIES, LLC, Appellee.

 

On appeal from the 126th District Court 

of Travis County, Texas.

 

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Hinojosa

Appellee/cross-appellant Old Dollar Properties, LLC 1 (Old Dollar) sued 

1 Richard Smith, the owner of Old Dollar, is also named as a plaintiff in the suit. However, he 

nonsuited his individual claims, and he is not named in the trial court’s judgment. 
2

appellant/cross-appellee Lyle B. Murphey, individually and as trustee of the Lyle 

Bernhardt Murphey Trust under agreement dated May 2, 2002, for fraud, breach of 

contract, and violations of the Texas Deceptive Trade Practices Act (DTPA), alleging that 

Murphey failed to disclose various issues with the septic system when selling a mobile 

home park to Old Dollar. Following a jury trial, the trial court signed a final judgment 

awarding $195,500 in damages on Old Dollar’s breach of contract claim. In four issues, 

which we treat as five, Murphey argues: there was insufficient evidence establishing the 

(1) breach, (2) causation, and (3) damage elements of Old Dollar’s contract claim; (4) the 

trial court’s breach of contract instruction was erroneous; and (5) the trial court erred in 

not awarding Murphey attorney’s fees.

In two cross-issues, Old Dollar argues that the trial court erred in failing to: (1) enter 

judgment on its DTPA claim; and (2) award Old Dollar attorney’s fees. We reverse and 

remand in part and affirm in part.2

I. BACKGROUND

A. Pleadings

Murphey sold a mobile home park (property) located in Travis County, Texas to 

Old Dollar. Old Dollar and its owner Richard Smith later sued Murphey alleging that 

Murphey failed to disclose “that the septic system serving the subject property lacked 

sufficient capacity to accommodate the mobile homes and feed store” on the property. 

The case proceeded to a jury trial.

2 The Texas Supreme Court transferred this case from the Third Court of Appeals in Austin to this 

Court pursuant to a docket equalization order. See TEX. GOV’T CODE ANN. § 73.001.
3

B. Trial 

Trial evidence showed that, in December of 2015, Smith contacted Murphey about 

purchasing the property, a four-acre tract of land with sites for eighteen mobile homes 

and a feed store. The property generated revenue from monthly rental payments from the 

mobile home owners and the proprietor of the feed store. The property contained private 

water and septic systems. 

During negotiations, Smith asked several questions regarding the septic system, 

which treated the sewage for the property. Murphey provided Smith with the design for 

the septic system which was built in 1982. The system contains eleven cascading tanks 

in which solids settle from the sewage permitting the liquid to flow to a final tank, called 

the effluent tank. The effluent tank then pumps the liquid sewage underneath the surface 

of the property’s drain field, where the liquids are absorbed in the soil. Murphey informed 

Smith that he spent approximately $4,500 a year to repair and maintain the septic system. 

He also told Smith that he paid $12,000 annually for a maintenance man, whose duties 

included maintaining the septic system. Murphey stated that he cleaned the lines in the 

drain field every three months, conducted a high-pressure cleaning of the system every 

two years, and had a vacuum truck remove solid waste from the system every two to 

three years, a process the parties refer to as “pumping” the septic system. 

Following negotiations, Smith and Murphey agreed on a $1 million purchase price. 

At Smith’s request, the sale was divided into two transactions for tax purposes: a 

$700,000 transaction for the land, and a $300,000 transaction for the water and septic 

systems. The contracts were executed on February 1, 2016.
4

The sales contract for the land included several disclosures in which Murphey 

indicated that the septic system was operational and that there were no known defects in 

the system. Murphey further indicated that no systems on the property needed repair. 

Murphey agreed to “pump all septic tanks and replace pressure tanks” prior to closing.

An addendum to the sales contract provided that Murphey would convey the water and 

septic systems to Old Dollar for $300,000.

The parties executed a separate “Bill of Sale,” for the purchase of the personal 

property affixed or attached to the real property, including the water and septic systems. 

The bill of sale specified that Old Dollar was taking the property “as is” subject to the 

representations and warranties contained in the purchase contract. 

In March of 2016, Travis Hausmann, a neighboring property owner, discovered 

sewage on his property that was originating from the mobile home park. Hausmann 

contacted Murphey believing that he still owned the property. Murphey notified Smith of 

the concern. During their conversation, Murphey told Smith that there was a sump pump 

located in the effluent tank and that Smith should turn it off. Murphey testified that he told 

Smith about the pump during one of their meetings prior to the sale and that he only used 

the pump when necessary to remove rainwater that had accumulated in the tank. Smith 

denied that such a conversation occurred, stating that he did not learn of the pump until 

after sewage was discovered on the neighboring property.

When Smith arrived at the property, he discovered the sump pump, which was 

connected to a hose. The hose directed the waste from the effluent tank toward a ravine 

which led to the neighboring property. Concerned that he was directing sewage onto his 
5

neighbor’s property, Smith had someone remove the pump. 

Hausmann testified that he discovered sewage on his property a year prior while 

Murphey owned the property. He stated that on both occasions that there had been no 

recent rainfall. 

Gary Platzer was called as an expert witness in septic system repairs. He has 

repaired septic systems for thirty-three years. Both Murphey and Smith were customers 

of Platzer, who has visited the property around six to seven times. Months before Old 

Dollar purchased the property, Platzer addressed a backup in the septic system. Platzer 

stated that the drain field was clogged, preventing sewage from being absorbed by the 

field. Platzer pulled the caps on the lines in the drain field to release the backed-up 

sewage. He noticed that a lot of grease and “sludge” came out. Platzer flushed each of 

the drain field lines, pressurized them, and added treatments. Platzer testified that there 

was sludge and grease pooling on top of the drain field which indicated that the system 

was “overfilled.” Platzer testified that the septic system was not working properly. He 

informed Murphey at the time that he had a “grease problem.” He also stated that the 

septic system was undersized for the number of occupants of the property. Platzer 

explained that with so many residents, the grease and solid waste did not have time to 

settle as it passed through the septic system. Platzer opined that the drain field needed 

to be at least double its current size. 

Smith contacted Platzer after discovering the sump pump in the effluent tank. 

Platzer went to the property and observed that the pump was directing sewage from the 

tank to the Hausmann’s property, which Platzer believed to be illegal. He stated that a 
6

hose was directed down into a “gully.” Platzer maintained that any fluid coming from the 

tank constituted sewage. Platzer stated that Smith must now pump waste from the septic 

system twice a month to prevent the system from backing up. This costs Smith $1,100 

per month. Platzer testified that it would cost $75,000 to expand the drain field to the 

appropriate size, which he believed to be a reasonable expense. 

Wayne Dolezal was called as an expert witness concerning septic systems in 

general. Dolezal has been installing septic systems since 1984. He testified that if a septic 

system is working properly, there would never be a need to pump fluid from the effluent 

tank onto the surface. He stated that the tank should be watertight and should never have 

rainwater within it. Dolezal stated that rainwater can saturate the drain field preventing it 

from absorbing sewage. Dolezal recommended that Smith build a berm around the field 

to prevent runoff. Dolezal agreed that the drain field needed to be doubled in size for the 

septic system to be operational. He stated that pumping the system twice a month was 

only a temporary remedy. 

Smith testified that, in addition to incurring expenses for pumping, he has spent 

money to build a berm next to the drain field as recommended by Dolezal. Smith stated 

that he plans to expand the drain field, which would require that he remove two mobile 

home sites and reduce his monthly revenue by $930. Smith testified that if he expands 

the drain field he would suffer $233,315 in damages over the ten years he plans to own 

the property. This calculation includes the cost to expand the drain field, the accumulated 

expenses to keep the system operational, and the lost revenue from removing two mobile 

home sites. Smith stated that it would cost him $210,415 over the next ten years to 
7

maintain the septic system without expanding the drain field. Smith introduced checks 

and invoices to demonstrate the expenses he had incurred to date. Smith also speculated 

that the septic issues reduced the property’s market value by 20%. 

Gary Hoffman, the owner of the feed store on the property, testified that during the 

period Murphey owned the property he observed sewage on the surface of the drain field 

every two or three months. Hoffman stated that he had to shut the doors of the feed store 

because of the smell. 

Murphey testified that he only used the sump pump in the effluent tank three times 

in the twenty years he owned the property. Murphey maintained that he showed the sump 

pump to Smith and explained its purpose. Murphey testified that it was important to 

encourage residents to limit their water usage so that the septic system would not be 

overburdened. Murphey stated that he pumped the entire system annually unless there 

was a lot of rainfall. He believed that the septic system worked properly for him while he 

owned the property. 

C. Jury Charge & Verdict

At the charge conference, Murphey objected to Question 1 which asked: “Did 

[Murphey] fail to comply with the agreement(s) for the purchase of the Property, if any?” 

Murphey further objected to the following definition in the charge: “The ‘Property’ means 

the mobile home park located at 21120 West S.H. 71, Spicewood, Texas.” Murphey 

argued that the definition and the question were “inadequate because [they were] overly 

broad in taking the two transactions . . . and combining them into one transaction by the 

interplay between [the defined term] and the use of the term ‘agreements’. . . .” The trial 
8

court overruled the objection.

The jury answered yes to Question 1, thereby finding that Murphey failed to comply 

with the agreements for the purchase of the property. The jury also answered yes to 

Question 2 which asked whether Murphey “engage[d] in any false, misleading, or 

deceptive act or practice that [Old Dollar] relied on to its detriment and that was a 

producing cause of damages to [Old Dollar].” However, it found that Murphey did not 

engage in such conduct knowingly or intentionally. The jury also found that Murphey did 

not commit statutory fraud. The jury found that Old Dollar sustained $24,500 in past 

damages “to address the septic system problems,” and that Old Dollar would in 

reasonable probability sustain $171,000 in damages “in the future to address the septic 

system problems[.]” The jury assessed no damages due to the diminution of the market 

value of the property as the result of the septic system problems.

D. Bench Trial—Attorney’s Fees

Next, the trial court held a bench trial on the parties’ competing claims for attorney’s 

fees. Old Dollar’s counsel, Gary A. Calabrese, requested that the trial court award 

$69,000 in attorney’s fees as well as conditional appellate attorney’s fees, and testified in 

support of his request. Murphey’s attorney, Kim Brown, submitted an affidavit detailing 

his time on the case supported by his resume and itemized billing statements. 

The trial court took the matter under advisement. It later issued findings of fact and 

conclusions of law, stating that “[t]he evidence is insufficient to support an award of 

attorney’s fees in any amount.”
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E. Post-Trial Motions & Judgment

Murphey filed a motion for judgment on the verdict, or in the alternative, 

notwithstanding the verdict, arguing that Old Dollar should take nothing on its claims 

based on the jury’s findings. The trial court signed a final judgment awarding Old Dollar 

$195,500.00 for its breach of contract claim; however, the judgment stated that Old Dollar 

“shall take nothing” on its DTPA claim. The trial court did not award attorney’s fees. Old 

Dollar filed a motion for new trial and to modify or reform the judgment, arguing that the 

trial court erred in failing to award attorney’s fees. Murphey filed a motion to modify the 

judgment or, in the alternative, for a new trial, raising various challenges to the sufficiency 

of the evidence, and arguing that Murphey was entitled to attorney’s fees. The motions 

were overruled by operation of law. This appeal followed.

II. LEGAL SUFFICIENCY

In his first three issues, Murphey challenges the legal sufficiency3 of the evidence 

supporting the jury’s breach of contract finding. 

A. Standard of Review 

Evidence is legally sufficient if it would enable reasonable and fair-minded people 

to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 

2005). We view the evidence in the light most favorable to the challenged finding, 

indulging every reasonable inference that would support it and disregarding contrary 

evidence unless a reasonable factfinder could not. Id. at 822. Evidence is legally 

3 Murphey also purports to challenge the factual sufficiency of the evidence. However, he does not 

discuss the standard of review for factual sufficiency or apply that standard. Rather, his sufficiency 

arguments raise only “no evidence” or legal sufficiency points. See TEX. R. APP. P. 38.1(i).
10

insufficient to support a disputed fact finding when (1) evidence of a vital fact is absent, 

(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 mere 

scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Id. at 

810.

B. Applicable Law

To prove a breach of contract claim, a plaintiff must establish (1) the existence of 

a valid contract, (2) performance or tendered performance by the plaintiff, (3) the 

defendant breached that contract, and (4) damages resulting from the breach. Dixie 

Carpet Installations, Inc. v. Residences at Riverdale, LP, 599 S.W.3d 618, 625 (Tex. 

App.—Dallas 2020, no pet.). The damages element for this claim includes a causation 

requirement. Houle v. Casillas, 594 S.W.3d 524, 556 (Tex. App.—El Paso 2019, no pet.).

C. Breach

In his first issue, Murphey argues that there is legally insufficient evidence that 

Murphey breached the disclosure provisions of the parties’ agreements based on the 

jury’s findings that Murphey did not commit fraud and did not knowingly or intentionally 

deceive Old Dollar. As argued by Murphey, the seller’s disclosures in the agreement are 

limited to what a seller is “aware of.” Therefore, Murphey maintains that there can be no 

breach of the contract’s disclosure requirements based on the jury’s findings that there 

was no purposeful deception.4

4 Pursuant to the contracts, Murphey agreed to take the property in its present condition or “as is.” 

However, an “as is” clause that is induced by specific misrepresentations about the condition of property 

will not shield the seller from liability. Williams v. Dardenne, 345 S.W.3d 118, 124 (Tex. App.—Houston [1st 

Dist.] 2011, pet. denied); see Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 
11

Although couched as a sufficiency issue, Murphey complains about a conflict in 

the jury’s answers. Particularly, Murphey maintains that the jury’s affirmative breach of 

contract finding conflicts with its negative findings regarding fraud and whether his 

deception was knowing or intentional. Texas Rule of Civil Procedure 295, entitled 

“Correction of Verdict,” provides that if a jury’s answers “are in conflict,” the trial court 

must give the jury written instructions regarding the nature of the conflict “and retire the 

jury for further deliberations.” TEX. R. CIV. P. 295. But to preserve error in this regard, “the 

appellant must object to the conflict or inconsistency before the jury is discharged.” 

Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 865 (Tex. App.—Corpus Christi–

Edinburg 1999, pet. denied); see USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 

516–17 (Tex. 2018); see also TEX. R. APP. P. 33.1(a). Because Murphey failed to object 

to the jury’s inconsistent findings in the trial court before the jury was discharged, he has 

failed to preserve this argument. Other than pointing out the alleged conflict in the jury’s 

verdict, Murphey does not argue that there is no evidence supporting a finding that 

Murphey knew of, but failed to disclose, issues with the septic system. Further, because 

such a finding supports the jury’s breach of contract verdict, we need not address 

Murphey’s arguments that there is legally insufficient evidence that he breached the 

agreements by other means. See TEX. R. APP. P. 47.1 (“The court of appeals must hand 

down a written opinion that is as brief as practicable but that addresses every issue raised 

(Tex. 1995); (“A seller cannot have it both ways: he cannot assure the buyer of the condition of a thing to 

obtain the buyer’s agreement to purchase ‘as is,’ and then disavow the assurance which procured the ‘as

is’ agreement.”); see also Pairett v. Gutierrez, 969 S.W.2d 512, 517 (Tex. App.—Austin 1998, pet. denied) 

(reversing summary judgment on basis of “as is” clause when there was evidence that seller knew of home’s 

foundation problems but affirmatively represented to buyer that they were not aware of any foundation 

problems).
12

and necessary to final disposition of the appeal.”). We overrule Murphey’s first issue.

D. Causation & Damages

We address Murphey’s second and third issues together. In his second issue, 

Murphey argues that there is legally insufficient evidence that any breach by Murphey 

caused Old Dollar damages. Specifically, Murphey maintains that there is no evidence 

that Old Dollar suffered any pecuniary loss as a result of purchasing the property. In his 

third issue, Murphey argues that there is legally insufficient evidence to support the 

amount of damages awarded by the jury. Murphey asserts that Old Dollar failed to show 

that the repair expenses were reasonable and necessary and that such expenses cannot 

be awarded as damages because they exceed the diminution in property value.

1. Applicable Law

As noted previously, the damages element for a breach of contract action includes 

a causation requirement. Houle, 594 S.W.3d at 556. Specifically, the evidence must show 

that the damages are the “natural, probable, and foreseeable consequence” of the 

defendant’s conduct. Id. “A plaintiff may not recover breach-of-contract damages if those

damages are remote, contingent, speculative, or conjectural.” AZZ Inc. v. Morgan, 462 

S.W.3d 284, 289 (Tex. App.—Fort Worth 2015, no pet.). The absence of a causal

connection between the alleged breach and the damages sought will preclude recovery.

Id.

The normal measure of damages in a breach of contract case is the expectancy 

or benefit of the bargain measure. Mays v. Pierce, 203 S.W.3d 564, 577 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied). The purpose of this measure of damages is to 
13

restore the injured party to the economic position it would have occupied had the contract 

been performed. Clear Lake City Water Auth. v. Friendswood Dev. Co., 344 S.W.3d 514, 

523 (Tex. App.—Houston [14th Dist.] 2011, pet. denied); Mays, 203 S.W.3d at 577.

“Under the benefit of the bargain measure, lost profits on the bargain may be 

recovered if they are proved through competent evidence with reasonable certainty.”

Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 148–49 (Tex. App.—Dallas 2012, no pet.). 

Opinions or estimates of lost profits must be based on objectives facts and data. Id. “[T]o 

recover damages for the costs of repairs to property, a plaintiff must show that the cost 

of repairs was reasonable and necessary.” Lakeside Vill. Homeowners Ass’n, Inc. v. 

Belanger, 545 S.W.3d 15, 42 (Tex. App.—El Paso 2017, pet. denied).

2. Analysis

Old Dollar presented evidence that it expected a functioning septic system based 

on the seller’s disclosures in the contract. Old Dollar’s expenditures to ensure the septic 

system was working properly are a natural, probable, and foreseeable consequence of 

Murphey’s failure to disclose the system’s defects. See Houle, 594 S.W.3d at 556.

Furthermore, the damages found by the jury were necessary to restore Old Dollar to the 

economic position it would have occupied had it purchased the property with a functioning 

septic system. See Mays, 203 S.W.3d at 577. For instance, the jury’s award of $24,500 

in past damages is supported by evidence that Old Dollar was required to pump the septic 

system twice monthly and build a berm to prevent rain runoff from flowing into the drain 

field. These costs were supported by checks, invoices, as well as the testimony of Old 

Dollar’s experts that these were reasonable and necessary expenditures to prevent the 
14

septic system from backing up. See Belanger, 545 S.W.3d at 42. 

The jury’s award of $171,000 was supported by evidence that Old Dollar must 

expand the drain field at the cost of $75,000 to permanently address the septic system 

deficiencies, which Old Dollar’s experts deemed to be a reasonable and necessary 

solution. See id. This expansion will result in the removal of two mobile home sites and 

lost revenue of $111,600 over the ten years Smith intends Old Dollar to hold the property. 

This calculation is based on objective data regarding the expected monthly rental 

payments from the two sites. See Sharifi, 370 S.W.3d at 148–49.

Nevertheless, Murphey argues that Old Dollar should not be able to recover 

damages related to the septic system because there was no evidence of a loss in the 

market value to the property. Murphey relies on the “economic feasibility exception” which 

provides that the cost to repair a temporary injury to real property cannot be recovered as 

damages when the cost exceeds the loss in the land’s value due to the injury. ExxonMobil 

Corp. v. Lazy R Ranch, LP, 511 S.W.3d 538, 540 (Tex. 2017). However, the damages 

awarded by the jury were not based on a temporary injury to real property but were 

contract damages in the form of lost profits and other expectancy damages. Therefore, 

the economic feasibility exception does not apply.

For the foregoing reasons, we conclude that the evidence would enable 

reasonable and fair-minded people to find damages in the amount awarded by the jury 

and that those damages were the result of Murphey’s breach of the agreements. See City 

of Keller, 168 S.W.3d at 827. We overrule Murphey’s second and third issues. 
15

III. CHARGE ERROR

In his fourth issue, Murphey argues that the jury charge erroneously failed to 

distinguish between the the sales contract and the bill of sale. 

A. Standard of Review & Applicable Law

“A trial court has considerable discretion to determine proper jury instructions, and 

we review a trial court’s decision to submit or refuse a particular instruction for an abuse 

of discretion.” Gunn v. McCoy, 554 S.W.3d 645, 675 (Tex. 2018). A trial court must submit 

jury questions, instructions, and definitions that “are raised by the written pleadings and 

the evidence.” TEX. R. CIV. P. 278; United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 

469 (Tex. 2017). When we review alleged error in a jury submission, we consider “the 

pleadings of the parties and the nature of the case, the evidence presented at trial, and 

the charge in its entirety.” United Scaffolding, 537 S.W.3d at 469 (quoting Columbia Rio 

Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 862 (Tex. 2009)). 

B. Analysis

Murphey argues that the terms of the two contracts are materially different; 

therefore, the trial court erred in submitting a single breach question. We disagree. 

As noted above, the purchase of the property was governed by two contracts—the 

sales contract and the bill of sale. However, the sales contract and the bill of sale each 

incorporate the other. For instance, the sales contract provides in an addendum that 

Murphey will convey the water and septic systems for $300,000 and that the sale would 

“close in conjunction with said property.” The contract’s disclosures specifically reference 

the sewage and septic systems, and the bill of sale incorporates those disclosures. In 
16

particular, the bill of sale provides that Old Dollar is not relying on any information “other 

than [Old Dollar’s] inspection and the representations and warranties expressly contained 

in the purchase contract[.]” “When a document is incorporated into another by reference, 

both instruments must be read and construed together.” Bob Montgomery Chevrolet, Inc. 

v. Dent Zone Cos., 409 S.W.3d 181, 189 (Tex. App.—Dallas 2013, no pet.). Because the 

bill of sale incorporates the land contract’s disclosure provisions, the contracts must be 

read and construed together. See id. Therefore, we conclude that the trial court did not 

abuse its discretion in overruling Murphey’s objection to the jury charge. See McCoy, 554 

S.W.3d at 675. We overrule Murphey’s fourth issue.

IV. DTPA

In its first cross-issue, Old Dollar argues that the trial court erred in failing to enter 

judgment on the jury’s finding that Murphey violated the DTPA. Murphey responds that 

Old Dollar was not entitled to recover on its DTPA claim as a matter of law because the 

total consideration of the parties’ transaction exceeded $500,000, an argument Murphey 

raised in his motion for judgment notwithstanding the verdict. In declining to enter 

judgment on the jury’s DTPA finding, the trial court implicitly granted Murphey’s motion 

for judgment notwithstanding the verdict. 

“We review a trial court’s decision to grant or deny a motion for a directed verdict 

and a motion for JNOV under the legal sufficiency standard of review.” Mikob Props., Inc. 

v. Joachim, 468 S.W.3d 587, 594 (Tex. App.—Dallas 2015, pet. denied). The DTPA 

generally allows a consumer to sue for damages caused by certain “false, misleading, or 

deceptive act[s] or practice[s].” TEX. BUS. & COM. CODE ANN. § 17.50(a)(1). However, the 
17

statute does not apply to “a cause of action arising from a transaction, a project, or set of 

transactions relating to the same project, involving the total consideration by the 

consumer of more than $500,000.” Id. § 17.49(g). The purpose of this exemption is to 

maintain the DTPA as a viable source of relief for consumers in small transactions and to 

remove litigation between businesses over large transactions from the scope of the 

DTPA. Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 473–74 (Tex. App.—

Fort Worth 2004, no pet.); see also AES Valves, LLC v. Kobi Int’l, Inc., No. 01-18-00081-

CV, 2020 WL 1880781, at *5 (Tex. App.—Houston [1st Dist.] Apr. 16, 2020, pet. filed)

(mem. op.).

Old Dollar’s $1 million purchase exceeds the $500,000 limit imposed by the DTPA. 

See TEX. BUS. & COM. CODE ANN. § 17.49(g). As such, the statutory claim is unavailable 

to Old Dollar as a matter of law. Therefore, the trial court did not err in granting Murphey’s 

motion for judgment notwithstanding the verdict. See Joachim, 468 S.W.3d at 594; East 

Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813, 821 (Tex. App.—Fort Worth 2007, 

pet. denied) (holding that trial court did not err in granting summary judgment when 

transaction exceeded $500,000 limit of DTPA). We overrule Old Dollar’s first cross-issue.

V. ATTORNEY’S FEES

A. Murphey

In his fifth issue, Murphey argues that if he prevails in this appeal and we render 

judgment in Murphey’s favor, then he is entitled to attorney’s fees. However, we have not 

sustained any of Murphey’s issues. Therefore, we must necessarily overrule Murphey’s 

fifth issue. 
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B. Old Dollar

In its second cross-issue, Old Dollar argues that the trial court erred in failing to 

award attorney’s fees because it presented sufficient evidence that its requested fees 

were reasonable and necessary. 

1. Standard of Review & Applicable Law

To secure an award of attorney’s fees, the prevailing party must prove that: 

“(1) recovery of attorney’s fees is legally authorized, and (2) the requested attorney’s fees 

are reasonable and necessary for the legal representation, so that such an award will 

compensate the prevailing party generally for its losses resulting from the litigation 

process.” Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 487 (Tex. 

2019). Here, the sales contract provided that if a party prevailed “in any legal proceeding 

brought under or with relation to this contract or this transaction, such party is entitled to 

recover from the non-prevailing parties . . . reasonable attorney’s fees.” 

The Texas Supreme Court has instructed that “the lodestar analysis [should] apply 

to any situation in which an objective calculation of reasonable hours worked times a 

reasonable rate can be employed.” Id. at 498. Under this analysis, “the fact finder’s 

starting point for calculating an attorney’s fee award is determining the reasonable hours 

worked multiplied by a reasonable hourly rate, and the fee claimant bears the burden of 

providing sufficient evidence on both counts.” Id. The fee applicant at a minimum must 

present evidence of: “(1) [the] particular services performed, (2) who performed those 

services, (3) approximately when the services were performed, (4) the reasonable 

amount of time required to perform the services, and (5) the reasonable hourly rate for 
19

each person performing such services.” Id. “[T]here is a presumption that the base 

lodestar calculation, when supported by sufficient evidence, reflects the reasonable and 

necessary attorney’s fees that can be shifted to the non-prevailing party.” Id. at 499. 

“[O]ther considerations may justify an enhancement or reduction to the base lodestar; 

accordingly, the fact finder must then determine whether evidence of those considerations 

overcomes the presumption and necessitates an adjustment to reach a reasonable fee.” 

Id. at 501. “[B]illing records are strongly encouraged to prove the reasonableness and 

necessity of requested fees when those elements are contested.” Id. at 502 (emphasis in 

original). “General, conclusory testimony devoid of any real substance will not support a 

fee award.” Id. at 501.

2. Analysis

Old Dollar’s counsel, Gary A. Calabrese, testified that he has been practicing 

primarily in general litigation since 1983. He stated that he was retained by Old Dollar at 

the hourly rate of $275, which he maintained was a reasonable rate based on his 

experience. Calabrese testified that he was retained before litigation commenced and 

engaged in presuit mediation which was unsuccessful. Calabrese estimated that he had 

spent “just a little over 250 hours of time” on the case since its inception, which Calabrese 

maintained were necessary. Calabrese testified that in preparing for trial, he had many 

interviews with his client, reviewed hundreds of pages of exhibits, reviewed and 

propounded discovery, drafted pleadings, took depositions, and interviewed witnesses. 

Old Dollar did not submit any billing or time-keeping records detailing these tasks. Old 

Dollar requested that the trial court award $69,000 in attorney’s fees through trial as well 
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as conditional appellate attorney’s fees. The trial court concluded as a matter of law that 

Old Dollar’s evidence was legally insufficient to support an award of attorney’s fees.

In Rohrmoos and its predecessor cases, testimony regarding attorney’s fees was

deemed too general because the attorneys provided the amount of time spent on the 

case in the aggregate but did not indicate how the aggregated time was “devoted to any 

particular task or category of tasks.” Id. at 495 (quoting El Apple I, Ltd. v. Olivas, 370 

S.W.3d 757, 763 (Tex. 2012)); see, e.g., City of Laredo v. Montano, 414 S.W.3d 731, 736 

(Tex. 2013) (per curiam) (reiterating basic proof required for lodestar calculation). In El 

Apple, for example, the attorneys did not present time records or other documentary 

evidence, instead basing their time estimates “on generalities such as the amount of 

discovery in the case, the number of pleadings filed, the number of witnesses questioned, 

and the length of the trial.” 370 S.W.3d at 763. The supreme court determined that 

because the trial court lacked evidence of how many hours each task required, it could 

not determine whether that time was reasonable, concluding that “[w]ithout at least some 

indication of the time spent on various parts of the case, a court has little basis upon which 

to conduct a meaningful review of the fee award.” Id. Old Dollar’s testimony is similarly 

defective in that, although Calabrese gave an overall estimate of hours worked, there is 

no evidence regarding how many hours various tasks required. See id. Therefore, the 

trial court did not err in concluding that there was insufficient evidence to support an award 

of attorney’s fees. 

However, “an award of no fees [is] improper in the absence of evidence 

affirmatively showing that no attorney’s services were needed or that any services 
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provided were of no value.” Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning 

Contractors, Inc., 300 S.W.3d 738, 739 (Tex. 2009) (per curiam). Although the evidence 

was legally insufficient to establish an award of fees under the lodestar method, the 

evidence did establish that the attorney’s services were needed and of some value. See 

id. Further, where evidence fails to satisfy the lodestar standard regarding the details of 

the work performed, the proper remedy is to remand the issue for a redetermination of 

fees. See Rohrmoos, 578 S.W.3d at 505 (reversing and remanding for redetermination 

of attorney’s fees where evidence was legally insufficient to establish amount of fees); 

Long v. Griffin, 442 S.W.3d 253, 256 (Tex. 2014) (per curiam) (reversing and remanding 

where “no legally sufficient information support[ed] the amount of attorney’s fees the trial

court awarded”); Montano, 414 S.W.3d at 736–37 (Tex. 2013) (per curiam) (reversing and 

remanding where party’s attorney’s fee testimony lacked the level of detail required by El 

Apple); El Apple, 370 S.W.3d at 764 (“Because the affidavits and other evidence in this 

case did not provide [legally] sufficient information for a lodestar calculation, we must 

reverse and remand.”). Therefore, we must reverse that part of the trial court’s judgment 

awarding no attorney’s fees and remand for a redetermination of fees consistent with this 

Court’s opinion. We sustain in part Old Dollar’s second cross-issue.
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VI. CONCLUSION

We reverse that part of the trial court’s judgment awarding no attorney’s fees to 

Old Dollar and remand the cause to the trial court for a redetermination of fees. We affirm 

the remainder of the trial court’s judgment. 

LETICIA HINOJOSA

Justice

Delivered and filed on the

21st day of October, 2021.