1 No. 04
- 14
- 00811
- CV

__________________________________________________________________

______ In the Fourth Court of Appeals San Antonio , Texas

__________________________________________________________________

______ RANDY COLEMAN Appellant

v. RALPH DE AN Appellee

__________________________________________________________________ APPEAL FROM CAUSE NO. 11

- 04

- 49987 -CV 79 th 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 770 18 (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 CLERK2 STATEMENT REGARDING ORAL ARGUMENT Appellant request s oral argument.

IDENTITY OF PARTIES AND COUNSEL Appellant s /Defenda nt s : Appellate Counsel: Randy C oleman 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 7 8401 Lead Appellate Counsel: Frank Weathered Dunn Weat hered Coffey Rivera & Kasperitis, PC 611 South Upper Broadway Corpus Christi, Texas 784013 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 EVI DENCE 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 1 0
STATEMENT OF FACTS

. 1 1 SUMMARY OF THE ARGUM ENT 1 3 STANDARDS OF REVIEW 1 4 ARGUMENT 1 5 A ppellant has complied with all elements set out at Texas Rule of App ellate Procedure 30 to pursue the present restricted appeal

. 1 5
POINTS OF ERROR
I

. The e vidence i s l egally and factually i nsufficient to establish Liability. 1 5 II. The evidence is legally and factually insufficient to s upport the a ward Of A dditional D amages . 31 III

. The Evidence is Insufficient as to Attorney’s F ees 32 I V. The Judgment is in Error as it award s three times both economic and A dditional D amage s (damages are owing by each Defendant, not joint and several) 3 54 CONCLUSION AND PRAYER 3 6 CER TIFI CATE OF COMPLIANCE 3 7 CERTIFICATE OF SERVI CE 3 8 APPENDIX 3 95 I NDEX OF AUTHORITIES Aguilar vs. Breckinridge , 2013 Tex. App. Lexis 14732... ...........................1 6 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)

......... ...... ......... ...... . 2 6 Beard v. Beard , 49 S.W.3d 40, 55 (Tex.App.

- Waco 2001, pet. denied)

... ......... 1 8 Burroughs v. APS Int'l, Ltd

. , 93 S.W.3d 155, 163 (Tex. App.

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

............................................................... ............ 2 4 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. Lea l , 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)............

. ....................................... .... 2 8 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)

. ....... 196 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. Wilkin s, 47 S.W.3d 486, 502 (Tex. 2001).........

. ....... 26 Holt A therton 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) 1 4 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. Ci v. App.

— Dallas 1980, no writ)

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

– 5 th 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)........................

.. 187 T.O. Stanley Boot Co

. , 847 S.W.2d at 222

.................. . ....................... 2 4
Townewest Homeowners Ass'n v. Warner Comm'n Inc

. , 826 S.W.2d 638, 640 ( Tex.App.

- Houston [14th Dist.]) (1992).......................................... 2 8 TRAP 26.1(c) and 30

.................................................................. 1 5

Tex. Bus. & Com m . Code Ann. 17.45 (Vernon 2002) ..............................19
Tex. Bus. & Com m . Code Ann. 17.46(a) (Vernon 2002)

...... . .................... 2 3 Tex.Bus.& Comm. Code Ann. 17.46 (b)(2)(3)(5)(12) and (24) ...................1 9 Tex.Bus.& C omm. Code Ann. 17.46 (b)(7) ...........................................22 Tex. R. Evid. 702, 703 § 2.4

...... .. ............ .............................. ... ..... .. . 33 38 Tex. Law Review §361 (1960)

....... ....... .............................................. . .........1 6
Appendix ..................................................................................39
A

– Final Judgment B

– Third Amended Original Petition C

– Charge D

– Exhibit 6 E

– Trial Exhibit 9A

- 9 G F

– Trial Exhibit 2A

- 2C G

– Trial Exhibit 3 H

– Trial Exhibit 128 No. 04
- 14
- 00811
- CV

__________________________________________________________________

_____ _ In the Fourth Court of Appeals San Antonio , Texas

__________________________________________________________________

______ RANDY COLEMAN Appellant

v. RALPH DEAN Appellee

__________________________________________________________________ APPEAL FRO M CAUSE NO. 11

- 04

- 49987

- CV 79 th 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 presente d 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 Pr oceedings: 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

. R andy Coleman , Living Modular, LLC and Jim Coleman Company appeared by filing Answers in this case. Randy Coleman did not appear at the Jury T rial , case was withdrawn from Jury and a post

- answer default judgment in favor of P laintiff was entered . Judgment was signed on June 30, 2014. Randy Coleman p erfec ted his appeal to this Court on Novem ber 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 ) ( F or Court of Appeal s, $15,000) and (For Representation through Supreme Court $10,000) and pre - and post

judgment interest, and costs.

Randy Coleman w ill cite the Clerk’s Record as “CR_____,” and the Reporter’s Record as “RR____.”10 ISSUES PRESENTED

Ran dy 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 c onclusory 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 J udgment and to conclude a liability of $ 47,659.38 ?
II. The Court found that Ra ndy Coleman acted knowingly and awarded additional damages of $142,978.14. The issue: Is the testimony and evidence sufficient for the Court to find Rand y 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?
I V. The Judgment entered damages in the same amount against each of the three Defe ndant s , 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
Appelle e R alph 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 , Line s 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 amount s to Appellant Randy Coleman toward the purchase. Randy Coleman was the person who sold th e 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 A nswer 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 of12 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 Judg ment 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 J im 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 N otice of A ppeal. Because more than 30 days had elapsed by the time any notice was received , Randy Coleman

– who had not participat ed 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 e vidence consists of only conclusory testimony of the single fact wi tness , Plaintiff Ralph Dean, and it is l egally and factually i nsufficient to s upport L iability or damages , necessitating r eversal

. 3. The conclusory testimony of the single witness is legally and factually i nsufficient to support A dditional D amag es . 4

. The evidence on attorney’s fees was no t 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 lia ble for the total economic plus A dditional Damages as it violates the One Satisfaction R ule 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

- judgmen t motion, request f indings 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 [14 th 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 a t 374

- 377 )

. Likewise, the record before this court makes clear that
A ppellant 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 a ny post

- judgment motion, request findings of fact and conclusions of law, or other wise appea r . The error s which form the bas e s of the complaint s must appear on the face
of the record

. I. The Evidence Is Legally and Factually Insufficient to Establis h 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 (T exas 1992)

. J udgment is not rendered on the pleadings as in a no

answer 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, without16 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 f ollowing Holt Atherton , the Court specifically examined the facts presented at the trial for evidence sufficiency, both legally and factually. Th e Court determined it must view the evidence to determine if there is a 1) complete absence of evidence of a v ita l 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 sufficien cy or factual su fficien cy, respectively. Wilson held in the final analysis that the test must be always be whether the evidence would allow reasonabl e and fair

- minded people to reach the verdict under review. That is the test in this case. Every Judge knows that wh at i s 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 ca nnot differ from the conclusion that the evidence lacks probative force it will be held to be the legal17 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 overrul ed 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 scin tilla 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 Decept ive Trade Practices and Consumer Protection Act and (B) B reach of C ontract (CR at 293

- 299 ).
The Court, (RR Volume IV, Page 22) granted Plaintiff’s Motion for Post

Answer Default. The Court (RR, Volume IV, Page 24, lines 20

- 25) found that Appellant Rand y 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 evide nce 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. deni ed). However, in City of Keller v. Wilson above , the Supreme Court found that the objective indic i a of intent was not supported by sufficient evidence . The Exclusive Rule would have required the Court to disregard certain contrary evidence, three engine ers’ 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 deli ver. 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 file d 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. S toner 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 not19 confessed by implication. Frymier Engineering Co. v. Grantham , 524 S.W.2d at
681.
Plaintiff Ralph Dean al leged 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 al leged Tx. Bus. & Com. Code
Ann. §17.46(b)(2)(3)(5)(12) and (24) , th e se ce rtain laundry list violations as follows:

- Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do no t 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 d isclose 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 certai n 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 misunderst anding 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 t he 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 a ny other violations as set forth in the DTPA.

Th e 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 te stimony appears in the Reporter’s Record, Volume III, beginning on Page 14 with direct testimony and continues to Page 6 1, at which
page cross examination began . Mr. Dean’s testimony c oncludes on RR, P age 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 modular21 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 o bligations 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 r easonable m ind to conclude that any information was known at the time of the transa ction, 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

suc h 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 the22 classic “ so what ” defense. There is no evidence, no inference th at there was no such connection or that such had any connection to the non

- delivery of
the home.

T he testimony does not indicate, specify , or even hint at eithe r , what conduct or act constituted DTPA violations occurred or , that Randy Coleman had entered in to 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 del iver 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 s ued. ) 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 that23 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 e stablish a DTPA cause of action, and constitute s 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 O r der Form to purchase the modula r 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 decept ive 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 co mmitted 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 damages24 to the plaintiff. Id. 17.50(a)(1) ; Burroughs v. APS Int'l, Ltd

. , 9 3 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 violation s of the Texas Deceptive Trade Practices

- Consumer Protection Act of which Ran dy Coleman was accused in Plaintiff’s Third Amended Original Petition . The Trial Court erred in entering a default judgment based upon such allegation s The re is clear evidence t hat Ralph Dean agreed to buy a modular home from Living Modular, LLC

. Here, the evidence leads to the conclusion that Rand y 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 ha d no inten t of performing and that Randy Coleman kn e w 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 int ent 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 re versal.
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 bei ng used as offices (RR, Volume III, Page 31)

. Further, Ralph Dean testified he saw pict ures of the compon e nts, 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 Li ving 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 mu st be concluded the evidence is legally insufficient to support Ralph Dean’s claim s under §17.45(b)(2)(3)(5)(12) or (24)

.
(B.) M isrepresentation

The determination of whether a breach of contract rises to the level of a misrepresentation sufficient to tr igger the DTPA is a fact

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

- San Antonio26 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 repre sentation 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 rep resentation 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 a27 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, P age 67, Page 68) on Antoine Street in Houston . He also testified he saw a model at a Uvalco Store as d escribed, 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 n o 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.
A s to a representation of a future event or condition, an agreement to deliver in the f uture 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 misrepr esented by intending at the time of the representation that Living Modular would not perform services or deliver the home. Mr. Dean presented no evidence28 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 misrepres entation was of a pre s ent intent to not deliver

. T he 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 suf ficient 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

contr act, (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 eviden ce 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 in s tall the modular home. It was strictly the obli gation 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

. T here was no evidence of any contractual dut y that Randy Coleman had to perform. The P laintiff ’s evidence in a post

- answer default judgment proceeding must be sufficient to support both a liability findin g and the damages award. Stoner v. Thompson, 578 S.W.2d at 682.
Mr. D ean 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 c ertainty 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

reco very 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 T exas 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 communica tions. 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 th e sale of the modular home of an obligation or duty by Randy Cole man, 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 a greed 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 w as an y contr act , agreement, oral or written , or a ny 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 Co leman 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 Suppo rt Award of Additional Damages

The T he T rial C ourt 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
sp ecifically 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 p erformed. 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 for32 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 A dditional D amages. Knowingly, mean s 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) , t he 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 fa lsity, 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

stan dard 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 conclu s o ry s tatements of the Trial Attorney and an Expert Wi tness.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 Yello w Pages, Inc. , 214 S.W.3d 770 (Tex.App.

- Corpus Christi Jan 25, 2007) (NO. 13

- 05

- 700

- CV) t he C ourt sets
forth factors to be considered

. The attorney’s fees evide nce 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 ag ainst Randy Coleman f ound 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.
Ther e 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 Defe ndants, 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 te nder 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, als o 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, P laintiff rested35 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 h ave been properly allocated by testimony. They were not.
I V. The Judgment is in Error as it award s 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 pr ice. 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

- 9 G . The Jury found those amounts as damag es 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. Spil lman v. Self Serve Fixture Co., Inc. , 693 SW2d 656 (Tex Court of Appeal

– 5 th District 1985).36 CONCLUSION AND PRAYER Randy C oleman asks this Court to reverse the t rial c ourt’s j udgment, 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 Appellant37 CERTIFICATE OF COMPLIANCE I, Paul R. Lawrence certify that this document contains 73 7 3 words (counted by computer).

_/S Paul R. Lawrence Pau l R. Lawrence38 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 se nt to all other parties to the trial court’s judgment by U.S. Certified Mail or by e

- service on this the 29 th day of April , 2015 , as listed below : Charles C. Webb Webb Cason PC 710 N. Mesquite Corpus Christi , Texas 7 8401 Charlie@wcctxlaw.com Frank Weat hered 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 7 8401 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 H ouston, Texas 77040

__ /s/ Paul R. Lawrence Paul R. Lawrence39 APPENDIX
A

– Final Judgment B

– Third Amended Original Petition C

– Charge D

– Exhibit 6 E

– Trial Exhibit 9A

- 9 G F

– Trial Exhibit 2A

- 2C G

– Trial Exhibit 3 H

– Trial Exhibit 1 2