* John T. Boyd, Chi ef Justi ce (Ret.), Seventh Court of Ap peals, sitting by

assignment

. NO. 07-02-0013 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E NOVEM BER 18, 2002

______________________________ DIANA BUSTEED , APPELLANT

V. COLDSPRING-OAKHURST CONSOLIDATED INDEPENDENT SCHOO L DISTRICT , APPELLEE

_________________________________ FROM THE 4 11TH DISTRICT COURT OF SAN JACINTO COUN TY; NO. 9,006; HON ORABLELEE A LW ORTH, JUDGE

_______________________________ Before QUINN and REAVIS, JJ. and BOYD, S.J. * Diana Busteed challenges a j udgme nt following a jury trial that C oldsp ring-O akhurst Consolidated Independent School District (COC ISD) recover $8,99 9.93, plus interest and attorney’s fees in the am ount of $33,531 through the trial co urt, $5, 000 thro ugh the Court2

of Appeals, and $5,000 for an appeal to th e Texas S uprem e Court. By three points of error, Busteed conten ds the trial court erred in 1) allowing COCISD’sattorney to testify that itwas n ecessary to hire him because no one test ified that COCISD agreed to pay rea son ableand necessary atto rney’s feesand there was no suit on a contract, 2) allowing the testim ony of COCIS D’s attorney because there were no records produced forcrossexam ination though they were requested, and 3) awarding $33,531 for the trial of a sim ple overpaym entclaim w hen the case w as clearly over m assaged for such acollection effort. Ba se d u po n t he ra ti on al e e xp re ss ed he re i n, we a ff i rm. Our factual review w ill be l imited to the evidence ne cessary to com plete our ana lys is of the presented pointsdirected to the award of attorney’s fees becau se Busteed does not cha llenge the deni al ofany rec overy o n her co unter clai ms or that COCISD recov er$8,999.93 for its overpaym ent to her, plus interest, and does no t question the suffici ency of the ev iden ce. By written contract for the school year

1993-1994, Busteed wasem ployed by COCISDfor a term of one year. The contract did not specify the a mount of Busteed’s

salary; howeve r, paragraph 2 of the contrac t provided: The Board shall pay the Em ployee an annual salary according to the sa lary sch edu le to be adopted by theBoard before the perf ormance of this contract begins, but in no event less than the state m inimum salary. The Em ployee’s salary includes consideration for any additional duties, responsibiliti es, and tasks except as provided in the District supplem ental duty schedule. Paragraph 1 of the co ntract provided in part:3

The Em ployee agrees to accept pay ment of the annua l sal ary in twelve equal monthly install ments, pa ya bl e o n t he sa me day of each m onth during the term of the contract .

. . w ithout any right to prepaym ent or lump-sum settlement

. . . . W hen the school boa rd adopted the sa lary schedu le for the sub ject school year, Busteed’s mont hly salary was fixed at $2,824.10; however, by inadverte nce and mistak e, COCISD issued Busteed nine checks in the am ount of $3,824.10 each, resulting in an overpaym ent of $8,999.93. W hen efforts to reso lve the mistake n payments were u nsucce ssful , COCISD filed sui tto recover the over payment and also sought to re cover reasonab le attorn ey’s fees

. In response, Busteed alleged ratification of the ov er pa yme nt, laches, negligence, and estopp el. Busteed did not contend by special exception or otherwise that a ttorney’s fees werenot recoverable. Also, B usteed asserted a coun ter claimunder the Texas Debt Collection Practices Act , now codified at sections 392.001 through 392.4 04 of the Texas Finance Code. Following reversal of a sum mary judgm entin favor of

COCI SD, u pon j ury tria l, the trial court instr ucted a verdi ct that Busteed take nothi ng on her co u nt er cl ai m. After receiving jury findings that B usteed had not retained the overpaym ent in good faith and that she had not c hanged her position to her detriment in reliance ther e on, the trial court then received evidence on the quest ion of attorney’s fees and the ju ry found $33,531 to be a “reasonable fee for the necessary s ervices” of COCIS D’s attorney th rough the trial court, and $5,000 for an a ppeal to the Court of A ppeals, and $5,000 for an appeal to the1 See also W. W endell Hall, Standards of Rev iew i n Texas, C

hallenges to the Suffici ency of the Evidence in Jury Trials , 29 S t. M ary’s Law Rev. 476-94 (1 998). 4 Texas Su preme Court. Accordingl y, the trial court rendere d judgm ent that COCI S D recover $8,999 9.93, plus i nterest, and atto rney’s fees as found by the jury. C onsidering Bu st ee d’ s po in ts in lo gi ca l r at he r t ha n se qu en ti al or de r, we first consider her third point by which she contends the trial court erred in awarding $33,531 for thetria l of a sim ple o ver pay m ent clai m of $8,999.93 when the case was clearly over mas saged for such a co llection effort. W e disagree. To preserve a com plaint of factual insuffi ciency of the evidence to support a jury verdict, a point of error must first be raised bymo tion for new trial. See Te x. R. Civ. P. 324(b)(2). A legal insufficiency point must be raised by (1) a m otion for instructed verdict, (2) a mo tion for judgm ent notwithstand ing the verdict, (3) an objec

tion to the subm ission of the issue to the j ury, (4) a m otion to disreg ard the jury’s answer to a vital fact issue, or (5) a m otion for new trial. See Cec il v. Sm ith, 804 S.W.2d 509, 51 0-11 (Tex . 1991). 1 Accordingl y, because Bu ste ed d id no t pr ope rly present her challenge to the am ount of the attorney’ s fees below, her appellate c o mplaint is not preserved for review. Point of error three is overruled. Byher first point, Busteed conte nds the trial court erred in adm itting the testimon y of the attorn ey f

or C OCI SD becaus e th ere w as n o ev iden ce t hat itwas necessary that an attorneybe engaged and there w as no suit on a contract. Then, by her second point she5

contends the admission of the atto rney’s t estimony waserror because norecordswer e presented for purposes of cross-exam ination. W e disagree. Befo re w e co m m enc e ou r an alys is, alth oug h m ultif ario us, w e fir

st cons id e r Busteed’s contention that there w as no suit on a contr act. By i ts ple adin gs, COCISD alleged a w rit ten contract that prov ided for paym ent of Busteed’ s salary in twelve equal m ont hly installments. In addition, the w ritten contrac t was atta ched as an ex hibit and incorporated into the pleadings. Notwithstanding the se a ll egations, Busteed did not spe ciall yexcept to the allegation seeking recove ryfor attorney’s fees as required by Rules 90 and 91 of th e Texas Rulesof Civil Pro cedure. Accordingly, th e conte ntion pre sent s nothing fo r review . Roark v. Allen, 633 S. W .2d 804, 809-10 ( Tex. 1982). Next, we cons ider Busteed’s challenge to the testimony of COCISD’s attorney that 1) there wasno testi mony that hi s servi ces were re quir ed and no evi dence t hat COCI SD agreed to pay a reasonable fee, and 2 ) no r ecords were avail able to be use d in crossexam ination. W e consider the points to be a challenge that proper predicateswere not made to support the adm ission of the attorney’s test imony. The adm ission and exclusion of evidence is com mitted to the trial cour t’s sound discretion. Cit

y of Br ow nsv ille v. Alvarado, 897 S .W .2d 750, 753-54 (Tex . 1995). A trial court abuses its discretion w hen it acts w ithout regard to any guiding rules or princi ples. Downer v . Aquam arine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). To o bta in6

rev ers al, Busteed must show 1) the tri al court di d in fact com mit error, and 2) t he error was rea son ably

calculated to cause and probably did cause rendition of an improper j udgme nt. Tex. R. App. P. 44.1(a)(1); Gee v. Li berty Mut. Fire Ins. Co., 765 S.W .2 d 3 94 , 3 96 (T ex. 1989). We comm ence our anal ysis by consi dering whether r ecove ry of attorney’s fees requires evidence tha t the a) servi ces of an attorney w e re necessary, b) that the party must agree to pay a reasonable fee, an d c) that records m us t be avail able for cr ossexam ination. Section 38.001 of the Texas Civil Practice and Rem edies Code Annotated authorizes a pr

eva ili ng par ty in a lawsuit to recover reas onable attorney’s fees in eight instances including suit on “an oral or written contract.” Also, sec tion 38.002 sets out

the proc edure for recovery of attorney’s fees. H owever, s ection 38.001 does not requ ir e evidence that attorney’s fees were necessary or that t he client agreed to pay them

. See Murrco Agency , Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex.App.--D allas 1990, no writ) (holding that unlike the provisions of Tex. Bus. & Com. Code Ann. § 17.50(d), which requires that attor ney’s fee s must be necessary in a proceedi ng under the Decep tive Trade Pract ice Act , sect ion 38.001 only require s that t he am ount of attorney’s fees be rea son ablewithout reference to the necessity thereof); see also Pr airieValley Ind. School Dist. v. Saw

yer, 665 S.W.2d 606, 611 (Tex .App. --Fo rt W orth 1984, w rit ref’d n.r.e.) (holding that form er article 2226 of Texas Revised Civil Stat utes A nnotate d did not r equire7

evidence that attorney’s fee s were nec ess ary apa rt f

romtes tim ony

as to t heir reasona bleness). Busteed’s contention regardi ng producti on of records does not im plica te t he r ule that wh en a pplicable , a p art y s eek ing a tto rne y’ s fe es m ust seg reg atetheevid enc e r egar ding those fees. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11 (T ex.199 1). Moreover, neither section 38.001 nor section 38.002 requires that records supporting the opinion as to reasonable fees be produced f or pur poses of crossexam ination. W e have not overlooked Busteed’s contention that Black LakePipe Line Co. v. Union Co nst. C o., 538S.W.2d 80 (T ex. 1976 ) requires that records be produced for purposes of cross-examination; however, that case is not control ling because the witness did not refer to records or su mm aries to refres h hisrecollection and summ aries of records were not of

fered into evidence. Points one and tw o are overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.