1 

No. 04-14-00811-CV

__________________________________________________________________

______

In the Fourth Court of Appeals

San Antonio, Texas

__________________________________________________________________

______

RANDY COLEMAN 

Appellant

v.

RALPH DEAN

Appellee

__________________________________________________________________

APPEAL FROM CAUSE NO. 11-04-49987-CV 

79th DISTRICT COURT, JIM WELLS COUNTY, TEXAS

HON. JUDGE RICHARD C. TERRELL

__________________________________________________________________

BRIEF OF APPELLANT RANDY COLEMAN

__________________________________________________________________

Paul R. Lawrence

State Bar No. 12050000

2180 North Loop West, Suite 510

Houston, Texas 77018

(713) 864-8000

(713) 864-0179 (fax)

prlawrence@lbandd.com

Counsel for Appellant Randy 

Coleman and Jim Coleman Company

ORAL ARGUMENT REQUESTED

ACCEPTED

04-14-00811-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/29/2015 10:16:56 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/29/2015 10:16:56 AM KEITH E. HOTTLE Clerk
2

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument.

IDENTITY OF PARTIES AND COUNSEL

Appellants/Defendants: Appellate Counsel:

Randy Coleman Paul Lawrence

State Bar No. 12050000

2180 North Loop West, Suite 510

Houston, Texas 77018

Jim Coleman Company Paul Lawrence

State Bar No. 12050000

2180 North Loop West, Suite 510

Houston, Texas 77018

Appellee/Plaintiff: Trial Counsel:

Ralph Dean Charles C. Webb

State Bar of Texas No. 21039500

Webb Cason PC

710 N. Mesquite

Corpus Christi, Texas 78401

Lead Appellate Counsel:

Frank Weathered

Dunn Weathered Coffey Rivera & 

Kasperitis, PC

611 South Upper Broadway

Corpus Christi, Texas 78401
3

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT 2

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 5

STATEMENT OF THIS RESTRICTED APPEAL CASE 9

ISSUES PRESENTED 10

I. RESTRICTED APPEAL 10

II. INSUFFICIENCY OF EVIDENCE AS TO LIABILITY 10

 III. INSUFFICIENCY OF EVIDENCE AS TO ADDITIONAL 

DAMAGES 10

IV. ABUSE OF DISCRETION AS TO ATTORNEY’S FEES 10

V. VIOLATION OF ONE SATISFACTION RULE FOR SINGLE 

INJURY RULE 10

 

STATEMENT OF FACTS. 11

SUMMARY OF THE ARGUMENT 13

STANDARDS OF REVIEW 14

ARGUMENT 15

Appellant has complied with all elements set out at Texas Rule of 

Appellate Procedure 30 to pursue the present restricted appeal. 15

POINTS OF ERROR

 I. The evidence is legally and factually insufficient to establish

Liability. 15

II. The evidence is legally and factually insufficient to support the award

Of Additional Damages. 31

III. The Evidence is Insufficient as to Attorney’s Fees 32

IV. The Judgment is in Error as it awards three times both economic and 

Additional Damages (damages are owing by each Defendant, not joint 

and several) 35
4

CONCLUSION AND PRAYER 36

CERTIFICATE OF COMPLIANCE 37

CERTIFICATE OF SERVICE 38

APPENDIX 39
5

INDEX OF AUTHORITIES

Aguilar vs. Breckinridge, 2013 Tex. App. Lexis 14732... ...........................16

Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 462-64 (Tex. App.—Dallas 1990), writ 

denied, 800 S.W.2d 853 (Tex. 1991) (per curiam) .............................. . 26

Beard v. Beard, 49 S.W.3d 40, 55 (Tex.App.-Waco 2001, pet. denied)............18

Burroughs v. APS Int'l, Ltd., 93 S.W.3d 155, 163 (Tex. App.-Houston [14th Dist.] 

2002, pet. denied)...........................................................................24

Budd v. Gay, 846 S.W.2d 521, 524 (Tex.App.-Houston [14th Dist.] 1993, no 

writ...........................................................................................32

Casino Magic Corp. v. King, 43 S.W.3d 14, 19 (Tex.App.-Dallas 2001, pet. 

denied)................................................................................... ....17

Central Texas Micrographics v. Leal, 908 S.W.2d 292, 296 (Tex. App.—

San Antonio 1995, no writ)...............................................................30

Chilton Ins. v. Pate & Pate Enter., Inc., 930 S.W.2d 877, 890 (Tex.App.-San 

Antonio 1996, writ denied)...............................................................25

City of Keller vs. Wilson, 768 SW3d 802 (Tex. 2005).............................................16

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)...37

Flores v. Brimex Limited Partnership, 5 S.W.3d 816 (Tex. App. - San Antonio

1999, no pet.)............................................................................. 18

Formosa Plastics Corp. USA v. Presidio Engrs. & Contractors, Inc., 

960 S.W.2d 41,48 (Tex.1998)........................................................ 28

Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.-Houston [14th Dist.])

(2000).......................................................................................28

Frymier Engineering Co. v. Grantham, 524 S.W.2d 680, 681 (Tex. 1975)........19
6

Harris v. Balderas, 27 S.W.3d 71, 77 (Tex. App.—San Antonio 2000, pet. 

denied).......................................................................................30

Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex. App.—

Amarillo 1993, writ denied)............................................................. 26

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001).......... ....... 26

Holt Atherton v. Heine, 835 SW2d 80 (Tex 1992).....................................15

Humble Nat’l Bank v. DCV, Inc., 933 S.W.2d 224, 229 (Tex. App.—Houston

[14th Dist.] 1996, writ denied)...................................................... 26

Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 115, 118 (Tex. 1984)......32

Mansell v. Insurance Co. Of The West, 203 SW3d 499, 500 (Tex. App. –

Houston [14th Dist.] 2002, no pet.), citing Tex. R. App. P. 30.................. . 14

Mercier v. Southwest Bell Yellow Pages, Inc., 214 S.W.3d 770 (Tex.App.-

Corpus Christi Jan 25, 2007) (NO. 13-05-700-CV)...............................33

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711(Tex. 1997).... 18

Norman Communications v. Texas Eastman, 955 SW2d 269, 270(Tex. 1997)14

Prime Prod., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—

Houston [1st Dist.] 2002, pet. denied)........................ ...................... 36

Seideneck v. Cal Bayreuther Assocs., 45 1 S.W.2d at 755........ ................23

Smith v. Kinslow, 598 S.W.2d 910, 912 (Tex. Civ. App.—Dallas 1980, no 

writ)....................................................................................... 31

Spillman v. Self Serve Fixture Co., Inc., 693 SW2d 656 (Tex Court of 

Appeal – 5th District 1985)............................................................35

Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex.1986)............. 25

Stoner v. Thompson, 578 S.W.2d 679, 684 (Tex. 1979).......................... 18
7

T.O. Stanley Boot Co., 847 S.W.2d at 222..........................................24

Townewest Homeowners Ass'n v. Warner Comm'n Inc., 826 S.W.2d 638, 640

(Tex.App.-Houston [14th Dist.]) (1992).......................................... 28

TRAP 26.1(c) and 30..................................................................15

Tex. Bus. & Comm. Code Ann. 17.45 (Vernon 2002)..............................19

Tex. Bus. & Comm. Code Ann. 17.46(a) (Vernon 2002)...........................23

Tex.Bus.& Comm. Code Ann. 17.46 (b)(2)(3)(5)(12) and (24)...................19

Tex.Bus.& Comm. Code Ann. 17.46 (b)(7)...........................................22

Tex. R. Evid. 702, 703 § 2.4............................................................ .33

38 Tex. Law Review §361 (1960)......................................................................16

Appendix..................................................................................39

A – Final Judgment

B – Third Amended Original Petition

C – Charge

D – Exhibit 6

E – Trial Exhibit 9A-9G

F – Trial Exhibit 2A-2C

G – Trial Exhibit 3

H – Trial Exhibit 12
8

No. 04-14-00811-CV

__________________________________________________________________

______

In the Fourth Court of Appeals

San Antonio, Texas

__________________________________________________________________

______

RANDY COLEMAN

Appellant

v.

RALPH DEAN

Appellee

__________________________________________________________________

APPEAL FROM CAUSE NO. 11-04-49987-CV

79th DISTRICT COURT, JIM WELLS COUNTY, TEXAS

HON. JUDGE RICHARD C. TERRELL

TO THE HONORABLE FIRST COURT OF APPEALS:

Comes now Randy Coleman, Appellant, Defendant in the trial court, and 

files this Appellant Brief, and would respectfully show the Court the following:
9

STATEMENT OF THE CASE

Nature of the Case: This is a suit for damages arising from a purchase 

of a concrete modular home. This is a restricted 

appeal after post-answer default judgment. The 

issues presented are qualification for Restricted 

Appeal, errors on face of record with respect to 

legal and factual sufficiency of evidence as to 1) 

liability, 2) damages, 3) attorney’s fees and 4) 

violation of the one satisfaction rule for single 

injury.

Course of Proceedings: Ralph Dean sued Living Modular, LLC, Randy 

Coleman and Jim Coleman Company for failure to 

deliver a modular home, alleging violation of the 

Deceptive Trade Practices Act and Breach of 

Contract. Randy Coleman, Living Modular, LLC

and Jim Coleman Company appeared by filing 

Answers in this case. Randy Coleman did not 

appear at the Jury Trial, case was withdrawn from 

Jury and a post-answer default judgment in favor 

of Plaintiff was entered. Judgment was signed on 

June 30, 2014. Randy Coleman perfected his

appeal to this Court on November 20, 2104, within 

six months of date of Judgment.

Trial Court’s Disposition: The trial court after hearing testimony presented to 

Jury, granted a final default judgment against 

Randy Coleman. Ralph Dean was awarded

damages in the amount of $47,659.38 under 

Deceptive Trade Practices Act, additional damages 

under the DTPA of $142,978.14, and prejudgment 

interest on the principal award at 5%, plus

attorney’s fees in the amount of $51,960.00; (For 

Trial, $26,960.00) ( For Court of Appeals, 

$15,000) and (For Representation through 

Supreme Court $10,000) and pre- and postjudgment interest, and costs. 

Randy Coleman will cite the Clerk’s Record as “CR_____,” and the Reporter’s Record as “RR____.”
10

ISSUES PRESENTED

Randy Coleman made an appearance by Answer, but did not appear or participate 

in the Trial. The issue is: Does the Court Record support a restricted appeal?

POINTS OF ERROR

I. The testimony of only a single factual witness as to liability and damages 

was conclusory and contained little evidence relating to the allegations. The issue: 

Is the testimony sufficient for the Court to make a finding of liability under the 

DTPA, enter Judgment and to conclude a liability of $47,659.38?

II. The Court found that Randy Coleman acted knowingly and awarded 

additional damages of $142,978.14. The issue: Is the testimony and evidence 

sufficient for the Court to find Randy Coleman acted knowingly?

III. The testimony of the attorney fee experts was conclusory, failed to address 

and segregate the fees as to each Defendant or as to the issue of acting knowingly 

as required. The issue: Was the award of attorney’s fees an abuse of discretion?

IV. The Judgment entered damages in the same amount against each of the three 

Defendants, resulting in a recovery that was three times the already trebled 

additional damages. The issue: Does a trebled recovery against each named 

Defendant violate the one satisfaction rule for a single injury?
11

STATEMENT OF FACTS

Appellee Ralph Dean, agreed to purchase a concrete modular home from 

Living Modular, LLC. Such Agreement was entered on or about October 22, 2009

and is in the (RR Vol. III, Page 45, Lines 17-20) Trial Exhibit 6, Appendix D. At 

the time of sale, Mr. Dean paid $30,000 to Living Modular, LLC toward the 

purchase price. The home, was to be delivered on or before Thanksgiving 2009. 

Thereafter, Mr. Dean paid additional amounts to Appellant Randy Coleman toward 

the purchase. Randy Coleman was the person who sold the modular home. The 

home was never delivered. 

Ralph Dean initiated this lawsuit by filing his Original Petition against

Living Modular, LLC, Randy Coleman and Jim Coleman Company, under several 

causes of action, including fraud and misrepresentation. Thereafter, Mr. Dean 

amended to the Third Amended Original Petition, which was the live pleading at 

the time of trial. Such pleading alleged only Breach of Contract and a cause of 

action under the Deceptive Trade Practices Act.

Randy Coleman filed written Answer for himself. Trial commenced before 

a Jury on June 2, 2014. Randy Coleman did not appear personally or through 

Counsel.

On June 3, 2014, upon Motion for Post-Judgment Default by Mr. Dean, the 

Court found in favor of Plaintiff Ralph Dean as to the DTPA and the Breach of 
12

Contract claims. (RR Vol. 4, Page 12). The Court granted that Motion at RR Vol. 

4, Page 22, Lines 12-17. Thereafter, on June 30, 2014, the Court signed the 

Judgment. Randy Coleman received no Notice and had no knowledge that 

Judgment had been signed, either by actual knowledge or by constructive 

knowledge. (CR, Volume 1, 374-377) Appellant Randy Coleman filed Notice of 

Appeal (CR Vol. 1, Page 455). Further, both Defendant Jim Coleman Company 

and Plaintiff Ralph Dean appeared on August 28, 2014 and argued for entry of 

Judgment in their respective favors.

On November 20, 2014, Randy Coleman filed the Notice of Appeal. 

Because more than 30 days had elapsed by the time any notice was received, 

Randy Coleman – who had not participated in the trial court proceedings, either in 

person or through counsel, and who had not filed any postjudgment motions – filed 

his notice of a restricted appeal. (CR 455)
13

SUMMARY OF THE ARGUMENT

1. Randy Coleman never participated in the trial, either in person or through

counsel. Randy Coleman is eligible for restricted appeal, timely filed, more 

than 30 days after the Judgment was signed, but within six months.

2. The evidence consists of only conclusory testimony of the single fact witness, 

Plaintiff Ralph Dean, and it is legally and factually insufficient to support 

Liability or damages, necessitating reversal. 

3. The conclusory testimony of the single witness is legally and factually insufficient

to support Additional Damages. 

4. The evidence on attorney’s fees was not sufficient for the Trial Court’s

 award and was not supported by evidence and was an abuse of discretion.

5. The Judgment is not valid on its face as it renders each of the three Defendants 

liable for the total economic plus Additional Damages as it violates the One

Satisfaction Rule for a single injury.
14

STANDARDS OF REVIEW

When a party mounts a direct attack on a default judgment through restricted 

appeal, such attack 1) must be brought within six months after the trial court signs 

the judgment; 2) by a party to the underlying suit; 3) who did not participate in the 

hearing that resulted in the judgment made the subject of the complaint; 4) who did 

not file a post-judgment motion, request findings of fact and conclusions of law, or 

other notice of appeal; and 5) the error that forms the basis of the complaint must 

be apparent on the face of the record. See Mansell v. Insurance Co. Of The West,

203 SW3d 499, 500 (Tex. App. – Houston [14th Dist.] 2002, no pet.), citing Tex. R. 

App. P. 30.

Review by restricted appeal affords Ralph Dean a review of the entire case, 

just as in an ordinary appeal, with the restriction being that any error must appear 

on the face of the record. The face of the record for purposes of a restricted appeal 

consists of all the papers on file in the appeal, including the statement of facts. 

(Reporter’s Record) Mansell, 203 SW3d at 500, citing Norman Communications 

v. Texas Eastman, 955 SW2d 269, 270 (Tex. 1997). A review of the entire case 

includes a review of legal and factual sufficiency claims. Norman, 955 Sw2d at 

270. 
15

ARGUMENT

Appellant Is Eligible To File A Restricted Appeal

As required under TRAP 26.1(c) and 30, Randy Coleman is able to pursue 

this restricted appeal because the record shows on its face that Randy Coleman

filed his Notice of Appeal on November 20, 214, within six months after the 

Honorable Richard Terrell signed the Final Judgment from which Randy Coleman 

appeals. (CR at 374-377). Likewise, the record before this court makes clear that 

Appellant Randy Coleman was named as a party to the underlying suit, did not 

participate in the jury trial or the Motion for Post Answer Default filed during 

Trial, nor did Randy Coleman file any post-judgment motion, request findings of 

fact and conclusions of law, or otherwise appear.

The errors which form the bases of the complaints must appear on the face 

of the record.

I. The Evidence Is Legally and Factually Insufficient to Establish 

Liability

When a party files an answer but does not appear at trial, it “constitutes 

neither an abandonment of the defendant’s answer nor an implied confession of 

any issues thus joined by the defendant’s answer.” Holt Atherton v. Heine, 835 

SW2d 80 (Texas 1992). Judgment is not rendered on the pleadings as in a noanswer default judgment, and the plaintiff is still required to prove his claim to the 

same extent as if the other party appeared at trial. However, in a non-jury, without 
16

Findings of Fact and Conclusions of Law, it will be implied that the Court made all 

findings necessary to support Judgment. Holt Atherton v. Heine

In Aguilar vs. Breckinridge, 2013 Tex. App. Lexis 14732, Court of Appeals, 

First District (Petition Denied Tex. 2014), in following Holt Atherton, the Court 

specifically examined the facts presented at the trial for evidence sufficiency, both 

legally and factually. The Court determined it must view the evidence to 

determine if there is a 1) complete absence of evidence of a vital fact, 2) if 

evidence is competent and there is no legal bar from giving weight to the evidence 

offered to prove a vital fact or, 3) if the evidence offered to prove a vital fact is no 

more than a scintilla, or 4) the evidence conclusively establishes the opposite of the 

vital fact. Aguilar followed existing law and the reasoning in City of Keller vs. 

Wilson, 768 SW3d 802 (Tex. 2005). In Wilson, the Court referred to the inclusive 

and exclusive standards for review by legal sufficiency or factual sufficiency,

respectively. Wilson held in the final analysis that the test must be always be 

whether the evidence would allow reasonable and fair-minded people to reach the 

verdict under review. That is the test in this case. Every Judge knows that what is 

reasonable is not always easy. Justice Calvert wrote in his article over 50 years 

ago, “No Evidence” and “Insufficient Evidence”, Point of Error. “38 Tex. Law 

Review 361 (1960) as follows: 

“The rule as generally stated is that if reasonable minds cannot differ from the 

conclusion that the evidence lacks probative force it will be held to be the legal 
17

equivalent of no evidence. The application of the rule can lead to strange results. It 

is theoretically possible, and sometimes not far from actual fact, that five members 

of the Supreme Court will conclude that the evidence supporting a finding of a 

vital fact has no probative force, and in reaching the conclusion through 

application of the rule will thus hold, in effect, that the trial judge who overruled a 

motion for instructed verdict, the twelve jurors who found the existence of the vital 

fact, the three justices of the Court of Civil Appeals who overruled a "no evidence" 

point of error and four dissenting justices of the Supreme Court are not men of 

"reasonable minds."”

Justice Calvert stated the problems better than anyone. Randy Coleman 

would show there is no evidence as to the finding of liability or damages. 

Reasonable minds can not differ; at best, there is only a mere scintilla, and a 

scintilla is no evidence. Casino Magic Corp. v. King, 43 S.W.3d 14, 19 

(Tex.App.-Dallas 2001, pet. denied). 

Insufficient Evidence 

The theories of recovery sought by Ralph Dean in his Third Amended 

Original Petition are (A) violations of the Texas Deceptive Trade Practices and 

Consumer Protection Act and (B) Breach of Contract (CR at 293-299). 

The Court, (RR Volume IV, Page 22) granted Plaintiff’s Motion for PostAnswer Default. The Court (RR, Volume IV, Page 24, lines 20-25) found that 

Appellant Randy Coleman’s conduct was committed knowingly and subject to 

additional damages under the DTPA.
18

In a no or insufficient evidence claim, it has been claimed that Havner and 

Beard stand for the proposition that the Appellate Court will consider only the 

evidence and inferences which tend to support the contested issue and disregard all 

evidence and inferences to the contrary. See Merrell Dow Pharms., Inc. v. Havner, 

953 S.W.2d 706, 711 (Tex.1997); Beard v. Beard, 49 S.W.3d 40, 55 (Tex.App.-

Waco 2001, pet. denied). However, in City of Keller v. Wilson above, the 

Supreme Court found that the objective indicia of intent was not supported by 

sufficient evidence. The Exclusive Rule would have required the Court to 

disregard certain contrary evidence, three engineers’ reports, and further, to infer 

that the City knew and expected the harm from the flooding. The vital fact that 

had to be proved in this case for a DTPA claim was that Appellant Randy Coleman 

made a false promise of delivery with an intent not to deliver. Randy Coleman 

would show that (a) there is a complete absence of evidence of that vital fact, or;

(b) the evidence offered to prove this vital fact is no more than a mere scintilla. 

At a trial on the merits after a non-appearing defendant has filed an answer, 

the plaintiff must carry its burden to prove all the elements of its causes of action, 

and the defendant has admitted nothing by its default. Stoner v. Thompson, 578 

S.W.2d 679, 684 (Tex. 1979); Flores v. Brimex Limited Partnership, 5 S.W.3d 8

16 (Tex. App. - San Antonio 1999, no pet.). The allegations by Ralph Dean

against Randy Coleman, in a post-answer default judgment hearing are not 
19

confessed by implication. Frymier Engineering Co. v. Grantham, 524 S.W.2d at 

681. 

Plaintiff Ralph Dean alleged in his Third Amended Original Petition (CR, 

Pages 293-299) specifically that Randy Coleman, as a Defendant, violated the 

Deceptive Trade Practices Act by misrepresentation. (CR 296, Paragraph 6.1 and 

6.2, Appendix Tab B). Ralph Dean specifically alleged Tx. Bus. & Com. Code 

Ann. §17.46(b)(2)(3)(5)(12) and (24), these certain laundry list violations as 

follows:

- Representing that goods or services have sponsorship, approval, 

characteristics, ingredients, uses, benefits, or quantities which they do not 

have;

- Representing that an agreement confers or involves rights, remedies, or 

obligations which it does not have or involve;

- Failing to disclose information concerning goods or services which was 

known at the time of the transaction if such failure to disclose such 

information was intended to induce the consumer into a transaction into 

which the consumer would not have entered had the information been

disclosed.Tex.Bus.&Com.Code Ann §17.46(b)(5)(12),(24)

 In 6.2, Plaintiff alleged again only certain lists violations; slightly modified 

from 6.1. Specifically, he alleged only these violations as follows:

- Causing confusion or misunderstanding as to the source, sponsorship, 

approval or certification of goods or services;

- Causing confusion or misunderstanding as to affiliation, connection, or 

association with, or certification by another;
20

- Representing that goods or services have sponsorship, approval, 

characteristics, ingredients, uses, benefits, or quantities which they do not 

have or that a person has a sponsorship, approval, status, affiliation, or 

connection which he does not;

- Failing to disclose information concerning goods or services which was 

known at the time of the transaction if such failure to disclose such 

information was intended to induce the consumer into a transaction into 

which the consumer would not have entered had the information been 

disclosed;Id. §17.46(b)(2),(3),(5),(24).

Ralph Dean did not assert by pleadings, evidence or argument any other 

violations as set forth in the DTPA.

The evidence of liability rests on testimony of Plaintiff-Appellee Ralph 

Dean and the Exhibits offered through Mr. Dean’s testimony. There was no other 

testimony on the transaction. No Defendant took the stand, no deposition 

testimony was offered. That testimony appears in the Reporter’s Record, Volume 

III, beginning on Page 14 with direct testimony and continues to Page 61, at which

page cross examination began. Mr. Dean’s testimony concludes on RR, Page 91 of 

Volume III.

The testimony fails to produce any evidence or information to support 

any finding of liability against Randy Coleman. No facts were elicited by

the testimony to correlate the allegations of the pleading detailing those 

certain laundry list items and the facts testified to by Ralph Dean. 

Specifically, Mr. Dean did not testify, or offer any evidence that the modular 
21

house or its delivery had any sponsorship, approval, characteristics, 

ingredients, uses, benefits or guarantees which it did not have. Mr. Dean 

testified it was implied that Defendant Jim Coleman Company sponsored or 

approved it. There was never any proof or offer of testimony that any, or 

that such was not true.

There was no testimony or evidence, or any inference reasonably 

relying therefrom, of any rights, remedies or obligations that the modular 

home, its purchase or delivery, did not have.

There was no testimony, other evidence, or any interference that could 

arise that would permit a reasonable mind to conclude that any information 

was known at the time of the transaction, which was not disclosed.

There was no evidence, testimony and no facts provided that could 

give rise to a reasonable inference as to sponsorship, approval, certification, 

affiliation, connection or involvement with another and that there was no 

such sponsorship, approval, certification, affiliation, connection or 

involvement.

Mr. Dean believes that Randy Coleman was a member of the Coleman 

family, he worked, or had worked, for Jim Coleman Company and that he 

and Living Modular were connected to Jim Coleman Company. This is the 
22

classic “so what” defense. There is no evidence, no inference that there was 

no such connection or that such had any connection to the non-delivery of 

the home.

The testimony does not indicate, specify, or even hint at either, what 

conduct or act constituted DTPA violations occurred or, that Randy 

Coleman had entered into a Contract with Plaintiff. There was no showing 

by legally or factually sufficient evidence that Randy Coleman made any 

misrepresentation or even broadly, that Randy Coleman, knowingly or 

intentionally engaged in any false, deceptive or unfair act or practice that 

was set forth in Plaintiff’s Third Amended Original Petition. Specifically, 

Ralph Dean alleged that a modular home would be poured and delivered to 

him. He alleged in his pleading that this was false but his testimony was 

simply that he did not receive the home. There was not a scintilla of 

evidence that Randy Coleman did not intend for Defendant Living Modular, 

LLC to honor that agreement to deliver that home. In fact, the Record is 

clear, homes were fabricated; Ralph Dean saw several. He saw them on the 

Living Modular, LLC’s premises and another in South Texas at a Uvalco

Store in Uvalde, Texas. (There is no record that this store was also sued.)

There were several meetings and yet, no facts give rise to, nor was evidence 

presented that permit an inference that Randy Coleman did not intend that 
23

the home would be delivered by Defendant Living Modular, LLC. The 

testimony of the sole witness, Mr. Dean, is so weak as to be legally 

insufficient to establish a DTPA cause of action, and constitutes no 

evidence. See Seideneck v. Cal Bayreuther Assocs., 45 1 S.W.2d at 755. 

Ralph Dean simply testified to a breach of contract by Defendant Living 

Modular, LLC; that is, he did not get that modular home. Ralph Dean’s 

testimony is that he intended to buy a modular home from Defendant Living 

Modular, LLC and he offered Exhibit 6 (RR, Page 45, Lines 17-20, 

Appendix Tab D), an Order Form to purchase the modular home from 

Defendant Living Modular, LLC. 

(A.) DTPA Violations

The trial court’s finding of $47,659.38 in economic damages is neither 

pleaded for nor supported by any evidence of violations of the DTPA. Under the 

DTPA, any false, misleading, or deceptive act in the conduct of any trade or 

commerce is unlawful. See Tex. Bus. & Com. Code Ann. 17.46(a) (Vernon 2002). 

To recover under the DTPA, a plaintiff must establish that: (1) he was a consumer 

of the defendant's goods or services; (2) the defendant committed false, misleading, 

or deceptive acts as set forth in the Act, in connection with the lease or sale of 

goods or services; and (3) such acts were a producing cause of economic damages 
24

to the plaintiff. Id. 17.50(a)(1); Burroughs v. APS Int'l, Ltd., 93 S.W.3d 155, 163 

(Tex. App.-Houston [14th Dist.] 2002, pet. denied). 

The record in this case plainly shows that there is no competent evidence 

supporting any of the violations of the Texas Deceptive Trade Practices -

Consumer Protection Act of which Randy Coleman was accused in Plaintiff’s 

Third Amended Original Petition. The Trial Court erred in entering a default 

judgment based upon such allegations There is clear evidence that Ralph Dean

agreed to buy a modular home from Living Modular, LLC. Here, the evidence 

leads to the conclusion that Randy Coleman entered into the agreement for and on 

behalf of Living Modular, LLC. The evidence that Appellant Randy Coleman 

entered the agreement for Living Modular, LLC and that Living Modular, LLC had

no intent of performing and that Randy Coleman knew of it, is “so weak that it 

creates only a mere surmise or suspicion of its existence.” See T.O. Stanley Boot 

Co., 847 S.W.2d at 222. “When evidence is so weak it constitutes no evidence.” 

The evidence to support these conclusions is based on the same foundation as 

Wilson. It fails to show first, that Living Modular, LLC had a present intent to not 

deliver and second that Randy Coleman had that intent when he promised delivery 

by Living Modular, LLC.
25

The amount of the Judgment exceeds the amount that was pleaded for in the 

Live Pleading. Appendix Tab B. Such is in error and requires reversal.

Further, the evidence in this case is full and complete that Living Modular, 

LLC did manufacture modular homes. As stated, Plaintiff testified that he saw two 

models on the Living Modular real estate (RR Volume II, Page 30) and that two 

were being used as offices (RR, Volume III, Page 31). Further, Ralph Dean 

testified he saw pictures of the components, and he saw pictures that had his 

“special door” which he had paid for separately to a provider in Mexico. Mr. Dean 

offered into evidence the Living Modular Brochure, Exhibit 2A-C, Appendix Tab 

F, showing the homes were manufactured in Mexico (RR, Volume III, page 80, 

Lines 2-16). Because the evidence is so weak that it creates only a suspicion of 

Randy Coleman's lack of intent to perform, it must be concluded the evidence is 

legally insufficient to support Ralph Dean’s claims under §17.45(b)(2)(3)(5)(12) or 

(24).

(B.) Misrepresentation

The determination of whether a breach of contract rises to the level of a 

misrepresentation sufficient to trigger the DTPA is a fact-driven inquiry. Chilton 

Ins. v. Pate & Pate Enter., Inc., 930 S.W.2d 877, 890 (Tex.App.-San Antonio 
26

1996, writ denied). Whether the facts, once ascertained, constitute a DTPA 

misrepresentation is a question of law. Id.

If there was ever any evidence of Coleman’s representation that Defendant 

Living Modular, LLC would deliver “high level of service” such would be 

considered as market puffing and non-actionable under 17.46 (b)(7). Helena 

Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001); Humble Nat’l Bank v. 

DCV, Inc., 933 S.W.2d 224, 229 (Tex. App.—Houston [14th Dist.] 1996, writ 

denied); Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 838-39 (Tex. 

App.—Amarillo 1993, writ denied). Three factors are considered in determining 

whether a representation is “mere puffing”: (1) the specificity of the representation; 

(2) the comparative knowledge of the buyer and seller; and (3) whether the 

representation relates to a future event or condition. Autohaus, Inc. v. Aguilar, 794 

S.W.2d 459, 462-64 (Tex. App.—Dallas 1990), writ denied, 800 S.W.2d 853 (Tex. 

1991) (per curiam). There was no evidence of any specific representation such as 

“we have service people on duty 24 hours a day” or “we offer 30 days delivery” or 

any other example of specific services. However, there was a specific 

representation that the home would be delivered by Thanksgiving of 2009. It was 

not delivered. Plaintiff Ralph Dean testified he was then told delivery would be 

made by Christmas of 2009. No delivery was made. That was a significant act 

and a breach of the contract by Defendant Living Modular, LLC, and it was a 
27

specific representation. However, Plaintiff Ralph Dean testified that he saw model 

homes in Houston on Living Modular, LLC’s premises (RR, Vol. 11, Page 65, 

Lines 5-25, Page 66, Page 67, Page 68) on Antoine Street in Houston. He also 

testified he saw a model at a Uvalco Store as described, and he said he saw pictures 

of certain specific hardware that he had purchased which was installed on a 

modular home. This is Plaintiff Ralph Dean’s own evidence, an admission, that 

cannot be ignored and which demonstrates that there was no present intent to not 

honor the Contract and to not deliver the home.

As to comparative knowledge, or taking advantage of Plaintiff Ralph Dean, 

there was no evidence that Randy Coleman had advance or special knowledge of 

any process or condition that could or would interfere in performance and how 

such would be overcome.

As to a representation of a future event or condition, an agreement to deliver 

in the future is always predicated on some future favorable events. For example, 

the modular homes were manufactured in Mexico. There was no evidence that 

Appellant Randy Coleman had control or promised control of the manufacturer in 

Mexico and delivery to Texas. See Trial Exhibit 6, Appendix D)

In conclusion, Ralph Dean presented no evidence that Randy Coleman

misrepresented by intending at the time of the representation that Living Modular 

would not perform services or deliver the home. Mr. Dean presented no evidence 
28

to establish any such claim. See Formosa Plastics Corp. USA v. Presidio Engrs. 

& Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998) (stating that the promise of 

future performance constitutes actionable misrepresentation if the promise was 

made with no intention of performing at the time the promise was made, and 

evidence presented must be relevant to the defendant's intent at the time the 

defendant made the promise). Emphasis supplied. Ralph Dean presented no 

evidence that he relied on a misrepresentation was of a present intent to not 

deliver. The evidence is factually and legally insufficient to support the trial 

court's judgment in favor of Ralph Dean on a DTPA case as alleged.

(C.) Breach-of-Contract Claim

Ralph Dean did not offer legally sufficient evidence at the Trial in order to 

warrant judgment against Randy Coleman on the theory of breach of contract. A 

judgment entered on such theory should be reversed.

The elements of a breach-of-contract action are (1) the existence of a valid 

contract, (2) performance or tendered performance by the plaintiff, (3) breach of 

the contract by the defendant, and (4) damages sustained by the plaintiff as a result 

of the breach. Frost Nat'l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.-Houston 

[14th Dist.]) (2000). A breach occurs when a party fails or refuses to do 

something he has promised to do. See Townewest Homeowners Ass'n v. Warner 

Comm'n Inc., 826 S.W.2d 638, 640 (Tex.App.-Houston [14th Dist.]) (1992). 
29

Appellee Ralph Dean 's proffer of evidence of his breach-of-contract claim 

is insufficient because Appellee failed to (1) offer any competent evidence to 

establish that the individual Randy Coleman agreed to deliver any goods or to 

perform any service for Plaintiff, (2) establish any contractual duties of Randy 

Coleman regarding service, delivery and installation, (3) establish any contractual 

duty for Randy Coleman to manufacture, deliver or install the modular home. It 

was strictly the obligation of Living Modular as established by Plaintiff Ralph 

Dean’s Trial Exhibit 6, Appendix Tab D (RR Page 45, Line 17-20), the Order 

Form which was the Contract to buy.

There was no evidence of a valid contract in existence between Randy 

Coleman and Ralph Dean; there was evidence of a written agreement by Living 

Modular to deliver a concrete modular home. There was no evidence of any 

contractual duty that Randy Coleman had to perform. The Plaintiff’s evidence in a 

post-answer default judgment proceeding must be sufficient to support both a 

liability finding and the damages award. Stoner v. Thompson, 578 S.W.2d at 682. 

Mr. Dean admitted and agreed that he entered into a written agreement to buy a 

modular home from Living Modular, not from Randy Coleman. See Plaintiff’s 

Trial Exhibit 6, Appendix Tab D, the Order Form which is the Written Agreement, 

not signed by Randy Coleman, showing delivery by Living Modular. 
30

A valid and enforceable contract is formed by an offer, an acceptance, a 

meeting of the minds, and an expression of the terms with sufficient certainty so 

that there is no doubt regarding the parties' intentions. Harris v. Balderas, 27 

S.W.3d 71, 77 (Tex. App.—San Antonio 2000, pet. denied). Randy Coleman is not 

a party to the Contract; he had no obligations or duties. There is no theory of 

recovery against Randy Coleman based upon breach of contract in the record in 

this case. A contract, whether written or oral, must define its essential terms with 

sufficient precision to enable the court to determine the obligations of the parties.

Central Texas Micrographics v. Leal, 908 S.W.2d 292, 296 (Tex. App.—San 

Antonio 1995, no writ). In determining the existence of an oral contract, the court 

looks to the communications between the parties and to the acts and circumstances 

surrounding those communications. Prime Prod., Inc. v. S.S.I. Plastics, Inc., 97 

S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). There is no 

testimony or any evidence of acts and circumstances in the sale of the modular 

home of an obligation or duty by Randy Coleman, but the clear undeniable 

evidence is that it was to be manufactured and to be delivered by Living Modular. 

There would have to be some evidence that would permit an inference that Randy 

Coleman entered into the Contract, guaranteed the Contract, or agreed to perform 

the written contract or some term thereof.
31

Despite Ralph Dean’s “testimony” that Randy Coleman promised delivery 

and installation by Living Modular, there is legally and factually insufficient 

evidence to support that there was any contract, agreement, oral or written, or any

provision enforceable against Randy Coleman. There is a failure of any evidence 

defining the essential terms of an agreement with sufficient precision to enable the 

court to determine an obligation owing by Randy Coleman to Ralph Dean. Ralph 

Dean never presented any evidence of an offer, acceptance, and meeting of the 

minds regarding an alleged contract or promise to perform by Randy Coleman.

II. The Evidence is Legally and Factually Insufficient Evidence to Support 

Award of Additional Damages

The The Trial Court rendered judgment in Ralph Dean’s favor and 

awarded damages of $47,659.38. Such amount is in excess of the specific amount 

pleaded in Plaintiff’s Third Amended Original Petition (CR, Page 293 -299) It 

specifically asked for economic damages of $39,204. With respect to damages in 

breach-of-contract cases, the general rule is that the complaining party is entitled to 

recover the amount necessary to put it in as good a position as if the contract had 

been performed. Smith v. Kinslow, 598 S.W.2d 910, 912 (Tex. Civ. App.—Dallas 

1980, no writ). Ralph Dean should get his money back but only the money that he 

paid to Living Modular for the home that Living Modular failed to deliver and for 
32

the amount he asked for in his pleading. Randy Coleman has no enforceable 

liability for that failure or for the Breach of Contract by Living Modular. 

Mr. Dean failed to offer sufficient evidence to establish the Trial 

Court’s award of Additional Damages.

Knowingly, means actual awareness of the falsity, deception, or unfairness 

of the conduct in question. In Luna v. North Star Dodge Sales, Inc., 667 S.W.2d 

115, 118 (Tex. 1984), the Court held: “Actual Awareness” does not mean merely 

that a person knows what he is doing; rather, it means that a person knows that 

what he is doing is false, deceptive, or unfair. In other words, a person must think 

to himself at some point, "Yes, I know this is false, deceptive, or unfair to him, but 

I'm going to do it anyway." 

The Luna Court held that if a person commits a wrongful act with actual 

awareness of the falsity, deception or unfairness of the act, such is a more culpable 

mental state than one who is grossly negligent. 

III. The Evidence Is Insufficient As to Attorney’s Fees

The Trial Court has the discretion to fix attorney's fees and the proper 

standard for review of attorney’s fees is abuse of discretion. Budd v. Gay, 846 

S.W.2d 521, 524 (Tex.App.-Houston [14th Dist.] 1993, no writ.

In this case, the evidence in favor of the award are the conclusory statements 

of the Trial Attorney and an Expert Witness.
33

A trial court abuses its discretion when it acts arbitrarily and unreasonably 

and without reference to guiding rules and principles. Downer v. Aquamarine 

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). 

An attorney’s opinion must be based on sufficient underlying facts. Tex. R. 

Evid. 702, 703 § 2.4. In Mercier v. Southwest Bell Yellow Pages, Inc., 214 S.W.3d 

770 (Tex.App.-Corpus Christi Jan 25, 2007) (NO. 13-05-700-CV) the Court sets 

forth factors to be considered.

The attorney’s fees evidence consisted of the testimony of trial counsel and 

an attorney as an expert witness. Trail Counsel testified that he and Plaintiff Ralph 

Dean agreed on an hourly fee of $250 per hour. He went on to testify that he had 

92 hours, including an estimate of completing the case. Those fees total $23,000. 

The expert witness, an attorney, Mr. Dreiling, testified to a range that would be 

reasonable which was between $25,000 and $50,000 (RR, Volume III, Page 111, 

Line 9-15). The Court awarded attorney’s fees against Randy Coleman found by 

the Jury against Co-Defendant Jim Coleman Company after argument and 

deliberation; this amount exceeded the evidence. It is improper and should be 

reversed. There was no evidence proffered. 

Further, there was no attempt to allocate fees among the three Defendants. 

There was no attempt to separate the time expended as to each of these Defendants, 
34

to segregate fees between liability, proof of knowing acts, establishing default, 

conducting discovery or any legal task.

There are three different Defendants. The DTPA allows for attorney’s fees 

on each Defendant for which DTPA liability was established. Further, there is no 

testimony or evidence as to the time expended on each Defendant or any 

Defendant. As to the three Defendants, no evidence allocated the time expended as 

to each Defendant. Appellant Randy Coleman was the salesman acting for and on 

behalf of Defendant Living Modular. Randy Coleman wholly defaulted after filing 

Answer. Defendant Living Modular, LLC did tender its President Wayne Coleman 

for deposition. (See Demand Letter to Wayne Coleman, President of Living 

Modular, LLC which was admitted into evidence and shows he testified by 

deposition, Exhibit 12, Tab H. He testified at the office of Trial Counsel. His 

testimony was recorded and transcribed. There is no evidence of any attorney 

participating in Discovery, Motion to Compel, obtaining evidence, from, about or 

otherwise, involving Appellant Randy Coleman.

The third Defendant, Jim Coleman Company, also an Appellant in this Court 

in this case, appeared at Trial through its President and also through Trial Counsel. 

Such Defendant participated in jury selection, cross-examined the witnesses, 

argued Motions and was before the Jury for two days. However, Plaintiff rested 
35

and asked for default Judgment, prior to submission to the Jury. Appellant Randy 

Coleman was taken out of the case by the time of submission to Jury.

The attorney’s fees in prosecuting Randy Coleman’s default, was distinctive 

and should have been properly allocated by testimony. They were not.

IV. The Judgment is in Error as it awards three times both Economic and 

Additional Damages (damages are owing by each Defendant, not joint and 

several)

The Final Judgment signed June 30, 2014 and filed on July 1, 2014 awarded 

identical sums of money against three Defendants, including defaulting Appellant 

Randy Coleman.

Ralph Dean sustained a single injury in this breached contract. He ordered a 

modular home and paid money toward that purchase price. He testified to certain 

sums that he expended in the purchase but the testimony and evidence was unclear 

as to what amounts was toward the contract. The Plaintiff itemized amounts were 

set out in Exhibits 9A-9G. The Jury found those amounts as damages event though 

Plaintiff had only asked (Third Amended Petition) for $39,204.

The Judgment awarded as against each Defendant which would lead to a 

multiple recovery. This would violate the One Satisfaction Rule for a Single 

Injury and is in error. Spillman v. Self Serve Fixture Co., Inc., 693 SW2d 656 (Tex 

Court of Appeal – 5th District 1985).
36

CONCLUSION AND PRAYER

Randy Coleman asks this Court to reverse the trial court’s judgment, and to 

render that Plaintiff Ralph Dean take nothing. Randy Coleman further requests all 

other relief to which he is entitled at law or in equity.

RESPECTFULLY SUBMITTED:

/s/ Paul R. Lawrence

Paul R. Lawrence

State Bar No. 12050000

5225 Katy Freeway, Suite 350

Houston, Texas 77007

Telephone: (713) 864-8000

Fax: (713) 864-0179

Counsel for Appellant
37

CERTIFICATE OF COMPLIANCE

I, Paul R. Lawrence certify that this document contains 7373 words (counted 

by computer).

_/S Paul R. Lawrence

Paul R. Lawrence
38

CERTIFICATE OF SERVICE

I, Paul R. Lawrence, in compliance with Texas Rule of Appellate Procedure 

9.5, hereby certify that a true and correct copy of the foregoing Appellant’s Brief 

was sent to all other parties to the trial court’s judgment by U.S. Certified Mail or 

by e-service on this the 29th day of April, 2015, as listed below:

Charles C. Webb

Webb Cason PC

710 N. Mesquite

Corpus Christi, Texas 78401

Charlie@wcctxlaw.com

Frank Weathered

Dunn Weathered Coffey Rivera & Kasperitis, PC

611 South Upper Broadway

Corpus Christi, Texas 78401

fweathered@swbell.net

Parker Webb

Webb Cason PC

710 N. Mesquite

Corpus Christi, Texas 78401

parker@wcctxlaw.com

J. Michael Guerra

Law Office of J. Michael Guerra

1600 E. Main, Suite 227

P.O. Box 1968

Alice, Texas 78333

Jmguerra14@gmail.com

Living Modular

16221 Koester

Houston, Texas 77040

__/s/ Paul R. Lawrence

Paul R. Lawrence
39

APPENDIX

A – Final Judgment

B – Third Amended Original Petition

C – Charge

D – Exhibit 6

E – Trial Exhibit 9A-9G

F – Trial Exhibit 2A-2C

G – Trial Exhibit 3

H – Trial Exhibit 12