## In the Court of Appeals Second A ppellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00199

- CV

___________________________

On Appeal from County Court at Law No. 2 Tarrant County, Texas Trial Court No. 2016

- 000685 -2
Before Sudderth, C.J.; Bassel and Wal lach, JJ.

Me morandum Opinion by Justice Wallach 

### T EXAS 

### R EAL 

### E STATE 

### C OMMISSION 

### , Appellant

V


### . P AUL 

### M URPHY 

### , Appellee2 M EMOR ANDU M OPINION
A ppellant Texas Real Estate Commission (TREC) challenges the trial court ’ s order directing payment to Appell ee Paul Murphy out of the real estate recovery trust

ac coun t (the f und) maintain ed by TREC

. See Tex. Occ. Code Ann. § 11 01.601. TREC
i s statutorily required to maintain the fund to “ reimburse aggrieved persons who suffer actual damages ” caused by certain actions by licensed real estate brokers. See id

. Murphy o btained a judgment again st a license holder , and after attempting
unsuccessful ly to collect the judgment, Mu rphy applied to the trial court for an o rder directing TREC to pay th e judgment out of the fund

. See id. § 11 01.60 6. After a hearing, the trial court signed t he requested o rder , and TR EC now appeal s . In three issues, TREC argu es that the trial court erred by ordering payment from the fund because th e judgment on which the order is based was not a final judgment ; that even if ordering payment of part of the judgment was prope r, ordering payment of the judg ment ’ s mental anguish d amages was n ot; and that the trial court

er red by ordering payment of attorney ’ s fees and preju dgment interest calculated at eighteen percent. In his appellee ’ s brief, Murphy raises a c ross

- point assert ing that
TRE C ’ s appeal is moot because he assigned the underlying judgme nt to TREC as he is required to do before TRE C may pay him from the fun d

. See id

. § 1101.612

. We will affirm the judgment in part and reverse and remand in part. The trial

court ’ s ord er is based o n a final judgment , TREC ’ s appeal is n ot m oot, and the trial
court was authorized to award Murphy

— an attorney representing himself

— his3 attorney ’ s fees

. W e therefore affir m in part

. However, mental anguish damages may not be paid out of the fun d , and the t r i al court miscalcu lated the amount of
pre j udgment interest , so we will reverse in part and remand for a new calculation of prejudgment int erest
. I. Background
I n 2016, Murph y sued Jason L ight, Individually and d/b/a The Light Realty Group a nd Allstar Loca t ors (Light) and La tter & Blum of T e xas, L

. L.C. d/b/a Realty
Associate s (Realty Associates) on claims related to Murphy ’ s house purchase

. Murphy alleged that Lig ht ha d agreed to pay him all but $200 of the commission from the purchase ; t hat closing occurred in Decembe r 2013 ; and that the de fendan t s had refused to pay him the $ 1 0,769.50 that he was owed

. See 22 Tex. Admin. Code § 535.147(d)

. Murphy s ued for breach of contract, breach of fiduciary d uty, fraud, conversion, and unjust enrichment. Murphy also ple d statutory fraud in a rea l est ate transaction, see Tex. Bus. & Com. Code Ann. § 27.01 , and violations of the Deceptive
Trade Prac tices Act, see id

. § 17.41 , for which he sou ght attorney ’ s fees and exemplary damages. As part of his DTPA claim, he fur ther a sserted tha t he was entitled to mental anguish damages

. In 2017, the trial c ourt signed a post

- answer d efaul t j udgmen t against Light and Realty Associates (t he 2017 Judgment)

. Th e 2017 J udgment awar ded $10,76 9. 50 in
economic dama ges, $ 20,00 0 in mental angu ish damages, $61,539 in exemplary damages, and $6,053.22 in attorney ’ s fee s.4 Based on lack of ser vic e , this court reversed the judgment as to Real ty Associates and reman ded f or further proc eedings. S ee Latter & Blum of T ex., L LC v. Murphy , No. 02

- 17

- 00463

- CV, 2019 WL 3755765, at *9 (Tex. App.

— Fort Worth Aug. 8, 2019, pe t. denied) (mem. op.). The judgment against Light was not appealed

. On
remand , t he trial court se vered the claims against Re alty Asso cia tes and signed a

“ r evi sed f ina l j udgmen t ” (Revised Fina l Judgment) that deleted Realty Associates, leaving only the judgment against Lig ht

. In 202 1, Murphy filed an application seeking an o rder d irecting p ayment o ut of
the fund ; he sou ght to b e pa id $30,769.50 in ac tual d amage s , $6,05 3.22 in attorney ’ s fees , $ 431.00 in costs of court; and $2,907.77 in pre judgment interest

. See Tex. Occ.
Co de Ann. § 1101.601

. Murphy attached to his a pplicati on the 2017 J udgment, an abstract of ju dgment that he had filed in 20 17, and a wri t of e xecut ion that had been

retu rned nul la bona in 2018. Id. § 1101.60 6.
After TR EC filed a response pointing out that Murphy ’ s application was not
verified , Murphy fi led an amended ve rified application

. TREC file d a respon se

o bjecting to Mur phy ’ s amended ap plicat ion , raising amon g other argumen ts that

• Murphy ’ s appl ication wa s based on a judgment tha t ha d been reversed , and it thus fail ed to meet the sta t utory requirements for paym ent from the fund ;

• B ecause TR EC was not a part y to the original s uit in which the j udgme nt was grant ed, it had the ri ght to a hearing to re

- litigate any material and relevant issue that was determined in the underlying case ;5 • the fund is statutorily limi ted to payment of out

- of

- pocke t d amages , and th us Murphy could not recover men tal an guish damages , an d as an attorney re presenting himself, he was not entitled to attor ney ’ s fee s;

• Murphy ’ s case against Light was based on breach of contract, a nd b reach of
co ntract is not an a ct that implic ates fund li ability ; and

• Mur ph y had not pr ovided supporting evidence for the amounts th at he had requested from the fund, including his calc ulation of prejudgment interest. Murphy filed a reply stating that t he fund is n ot limited to actual damages and that he

was entitl ed to recovery of attorney ’ s fees

. The trial court agreed with Murphy an d
ordered TRE C to pay the judgment from the fund.
II
. TREC ’ s Appeal
A. Governing Statutes
Th e governing statutory scheme is C ha pte r 1101 of the Occupations Code,
which re gulate s the profession of real estate brokers and sales agents. T ex. Occ . Code
Ann. ch . 1101. That chapter prohibits a licensed real estate broker from taking certain actions, in cluding engaging in f raudulent or d ish onest beh avior while engaged in real

est ate br okera ge. Id. § 11 01.652(a

- 1), (b). Subchapter M (the Act) require s TREC to maint ain the fund , the purpose of
which is “ to reimburse aggrieve d p ersons who suffer actual dam ages caused by an act
described b y Section 1101 .602 committ ed by: . . . a lice nse ho lder[ .] ” Id. § 11 01.601 (emphasis added). Section 1101.602, entitl ed “ En titlement to Reimbursement , ” sta tes th at an aggr ieved person may be reim bursed fr om the fun d
when a license holder enga ge s in behavio r prohibited b y other sections of the A ct :6 A n aggr ieved person is e ntitled to reimbursement from the trust account i f a person descr ibed b y Section 1101.601 engage s in conduct that requires a license or certificate of regi stration under this c hapter and i s d esc ribed by Section 1101.652(a

- 1)(1 ) or (b ), if the p erson is a l icense holder, or Section 1101.653(1), (2), (3), or (4), if the p erson is a certificate holder. Id. § 1101.602. (emphasis added). Section 1101.606 describes how an a ggrieve d p erson may ap ply for paymen t fr om the fund, and that proce ss starts with t he ag gr ieved person obtaining a judgment against the license holder for a n act descr ibed by Secti on 1101.602. Id. § 1101.6 06.
B. Case Law In 1983, the Texas Supreme Court looked at S ection 1101. 601 ’ s predeces sor

stat ute , which stated that “ [t]he fund shal l be us ed in the manner provided in this
section for reimbursing aggrieved persons w ho suffer mon etary damages by

reason o f certain acts . . . . ” See Pace v. State , 650 S.W.2d 64, 65 (Tex. 1 983) (emphasis
adde d). In Pac e , the issue was whet her punitiv e dam ages co uld be reimbursed from the
fund . The court noted that “ B lack ’ s Law Dictionary defines ‘ re imburse ’ as ‘ to pay back, to make restoration, to pay that expended, ’ ” and “ [t]hus, the Act provide s that
the f un d is to be used to pay back the monetary d amage s suf fe red by the victims of an unscrupulous real estate agent or broker

. ” Id. (emph asis added) (citing Black ’ s La w Dictionary 1157 (5th e d . 1979) ) . The court held that because “ [p]un itive d amage s ar e

no t to r estore one to his positio n bef o re t he act giving rise to the damages, rather they are to punish the wrongdoer an d are an example to others, ” “ th e Legislature could
not h ave intended that treble damages be paid from the fund or the y would not have7 use d the words ‘

. . . reimbursing aggri e ved persons who suffer monetary damages. . . . ’ ”
Id. (emphasis added). The predecessor sta tute wa s amended to change “ monetary dam ages ” to

“ actual damages. ” Arlington Equities, Inc. v. Tex . Re al Est

. Comm ’ n , 765 S.W.2d 47 2,
4 73 (Tex. App.

— Dallas 1988, w rit d enied). The legislatu re did not, however, change
the word “ reimbursing. ” In a case cons t ruing the statute after that amendment , the Dallas Court of Appeals upheld the denial of Arlington Equities ’ s re covery fr om the
fund f o r “ lost pr ofits and deceptio n ” be cause it had “ no out

- of

- pocket losses. ” Id.
Th e court held that , as amended, the A ct sti ll limit e d recovery to persons who had

“ ch anged [their] monetary po sition ” : Relying upon the legislative cho ice of “ reim bursing ” in th e origina l ac t, the legislat ive r etention of “ reimburs ing ” in the amended act, the exclusion of mere breach of contract in Torres [ v. State , 605 S.W.2d 394, 396 (T ex. App.

— Beaumont 1980, n o writ)], and the exclusion of punitive da mages in Pac e , we find and hold tha t Ar lington [Equiti es] h ad expended nothing f o r which it was entitled to be reimbursed (as used in article 6573a [the former versio n of Section 1101.601]) from the fund and that Arlington [Equities ] h ad not changed its mo netary posit ion to secure the contract [that] Fernande z b re ac hed; consequently, there was no position to which it was entitled to be restored (as de scribed in Pace and Torres ). Id.
C
. Mental Anguish Damages Ba rred We begin with TREC ’ s second issue challe nging a spec ific part of t he tri al

court ’ s order

— the p a rt o rdering payment for M urphy ’ s ment al angu ish damages

—8 before moving on to its first issue, wh ich challenges the entire o rder. We hold that th e Act does not allow paym ent of mental anguish damages fro m the fund

. I n its modifi cation of Section 11 01.601 ’ s pr ed ec essor, the legislat ure did not change its use of the word “ reimbursement. ” The onl y releva nt difference between
the statute construed b y the Pace court an d the version of the stat ute currently in
effect is t he change from “ monetary damages ” to “ actual d amage s. ” Compa re Pace , 650 S.W. 2d at 65 (setting out predecessor statute ) , with Tex. Occ. Cod e Ann. § 1101.601 (current stat ute)

. The “ reimbursemen t ” language in the stat ute has alread y been constru ed by the
Te xas Supreme Co urt. The construction does not enc omp ass payment for d amages that serve any purpose other than reimbursement

. 1 Pace , 650 S.W. 2d at 65

. Furt h er, the legi slature ’ s amendment of Section 1101.6 0 1 to use “ actual damages ” rather than

“ m onetary dama ges ” does not indicate a substantive change t hat wo uld a llow a
broad er use of the fund . The legislature could have amended the statute to u se

1 Two Finan ce Code sections with similar language allo w a person to r ecover from a fu n d set up under th e Fina nce Code to compens ate persons aggrieved b y an act o f a license d mortgage br o ker, and those statutes also use the wording “ rei mburse

. . . for ac tual damages. ” Tex. Fin. Code Ann. § 156.501 (6) (providi ng that the “ fu nd shall be used t o reimbu rse residen tial m ortgage loan applic ant s for actual damages incurred ” ), § 341.602 (same) ; see also id. § 157.0201 (stating that the fund establ ished in Chapter 15 6 “ shall be u sed as provided by . . . Chapter 156 to reimburse resid en tial mortgage l o an appli cants for a ctual damages incu rre d

. . . . ” (footnote omitted) )

. However, unlik e the Act in th is case , those two s ections further specify that “ [t]he use of the fund i s limited to re imbursement f or out

- of

- pocket loss es. ” Id. §§ 156 .501, 341.602.9 language other than the word reimbursement

. For example, some states’ recovery fund

statutes simply st ate that an aggrieved part y may recover actual damages aw arded in a judgment and do not limit recovery to actual damages that constitute reimbursement. See, e.g. , Ala. Code § 34

- 27

- 31; Ga. Code Ann. § 43

- 40

- 22; see also Del. Code Ann. tit. 24, § 2922 (prov iding that a n aggrieved pe rson who obtains a final judgme nt against a
licensee f or certain kinds of claims “may file a verified claim with the Commissi on seeking an order directing payment from the Fund of an y amount unpaid upon the judgment , ” up to $25,00 0 (emphasis added) )

. The l egislature chose not to make th at change , and the reim bursement restriction remains in the statute
. T hat Pace addressed punit ive damages rather th an a type of compensatory damages d oes not a l ter our conclusion because t he Pace co urt specific al ly s tated th at the Act “ is to be used to pa y back the moneta ry dam ages ” suffered by an appli cant
. Pace , 650 S.W.2d at 65

. Altho ugh mental anguis h damages, like other elements of actual damage s, function to restore an injured p arty to the posi tion that th e party would have been in had the wrong not occurred , s ee In re Cen t. O r . Truck Co. , 644 S.W.3d 668, 670 (Tex. 2022) (orig. proceeding), me ntal anguish damages cannot
be characterized as “ paying back ” f or something ex pended or compensating the plaintiff f or a change in the plaintiff ’ s m o netary posit ion

. Cf. Arlington Equi ties , 765 S.W.2d at 473

. M ental angui sh damages comp ensate a plaintiff f or harm, but they
do not “ pay back ” the plaintiff for something the plainti ff e xpended

. We sustain10 TREC ’ s first i ssu e , an d we will modify the trial cou rt ’ s order to delete the amou n t f or mental anguish damages

. 2
D . M urphy ’ s E ntitl e ment t o Payment for the R emaining Judgment
TREC ’ s first issue asserts that the trial court erred by ordering the fund to pay
any of the 2017 J udgment. Its argument is that the trial cou rt ordered payment fr om the fund for a jud gment that was not the actual final judgment and that Murphy did not satisfy the Act ’ s procedural requirements for payment of th e final judgment : Murphy reco rded an abst ract of judgme nt on August 8, 2017, the date the final judgment wa s signed. A writ of execution was a lso returned nulla bo na on May 21, 2018. However, the trial court signed a Revised Final Judgment in this case on March 3, 2021, after the defa ult judgment had been appe aled, reversed, and r emanded. T here can be only on e fi nal judgment in this case. Murphy ’ s Application for Or der Directing Payme nt Out of the Recovery Trust Account attached the August 8, 2017 default j udgment as well as the writ a nd abstract of that judgme nt , even thoug h the 2 017 [J] udg ment was reversed , an d a revised judgment was signed in 2021 . Because [Sectio n] 1101.606(a) incl ude s the statutory language allowing for recovery only “ after final judgme nt is entered, ” Murphy ’ s Appl ication shou ld have been b ased on the Revised F inal Judgm ent. Further, Murph y fa iled t o comply with the statutory requirements contain ed in [Section] 110 1.6 06(a) because the writ of execution and abstract of judgment did not re ference the Re vised Final Jud gment but in stead referred to the [2017 J] udgme nt that wa s superseded by the Re v ised Final Judgment . [Cita tions and record references omitted.]

2 I t is worth no ting that the Act ca ps the recov ery from the fund a t $ 50,000, mean ing that the Act is not necessarily intende d to make a claimant whole. See Tex. Occ. Code Ann. § 1101.610 ; co nt ra Goldman v. Olmstead , 414 S.W.3d 346, 357 (Tex. App.

— Dallas 2013 , pet. denied) (stating, in a cas e not turnin g on interpr etation of Section 11 01.601, that “ the occupation s code sets out a procedure by which a pers on injured by a license holder ’ s viola ti on of section 1101.652(a)(3) can be made whole thr ough the payment o f a claim from ” the fund )

.11 TREC also contends that Murphy ’ s pleading s do not support payment from the fund
because the pleadin gs ’ factual allegations su pport only a breach of contract claim, and
the fund do es not pay judgments based on breach of contract. Fi nally, TREC argues that because it was not a party to the suit in which the 2017 J udgm ent was rendered, it
is e ntitled to h ave the entire case retried. 3 We address these argum ent s in re verse order.
1. TREC is not entitled to a retrial
Under S ec tion 1101.608 (a) of the Act , when TR E C re ceive s noti ce that
someone has filed a verified c l aim for payment un der Section 1101.606, TREC may agree to pay the claim, or it may “ notify the att orney g eneral of [its] d esire to sc hedule a hearing, enter an app ear ance, file a response, appear at the hearing, defend the action, or take any other action [that it] consider s appropriat e. ” Tex. Occ. Code Ann. § 11 01.6 08(a). At tha t hearing, TREC “ may re litigat e . . . any material and relevant
issue that was determi ne d in the action that resu lted in the judgment, i ncluding an agreed judgment, in favor of the aggrieved person. ” Id. § 1101. 608 (c) ( emphas is added) ; Tex. Re al Est

. Comm ’ n v. Bayless , 366 S.W.3 d 808 , 815 (Tex. App.

— Fort Worth
2 012, pet. denied)

. Thus, at t he hearing on M urphy ’ s application for payment, TR EC

3 It is not clear from TREC ’s brief whe ther it argues that Section 1101.608 allow s it a do

- ove r or whether it raise d its right to relitigate issues mer ely to head of f any argument by Murphy that TR EC ’s arguments in the tr ial cour t constituted an imperm issible collateral a t tack o n the underlying j udg ment
. To the extent that TREC in tend ed the former, we address the argument.12 could have opted to relitigate any issue that resulted in th e underlying judgment

. See
Tex. Occ. Code Ann. § 1101.608 ( c)

. TREC ’ s attorney ra ised its right to rel it igate at the hearing. In it s argument to the trial cou rt , the attor ne y asserted that

s ince TREC [wa] s not there at the default hearing, we ’ re entitl ed t o have some

— basically have some evidence put on of the fr a ud. We would like to a sk

— if you ’ re in clined to find that this is a fraud judgment th at the fund is li able for, we would request a few mi nutes to inquire some of the evidence of Mr

. Murphy as to the evidence of fraud. That ’ s all I have at this point. The trial court then allowed Murphy to re spond. In Mur phy ’ s argument, he stated that
he believed th at he had “ provided everything to [TREC] at a meeting before even having this hearing ” ; that he b elieved that he had “ actua lly included the entire

transcr ipt , ” and if he had not , he could do that if TREC ’ s attorney “ wants to rev isit
the ev idence ” ; that he had proved every thing that he needed to at the hearing ; and
that “ [i] f they want to relitigat e it , they have that right, bu t it ’ s going to cost them
becau se, of course , attorney ’ s fees will be incur red doing that

. ” The trial court then asked, “A n ything further? ” TREC ’s attorney responded, “I don ’t bel ieve so, no,

ma ’am. ”
A s TREC an d Murphy bot h recognized a t the hearing , i f TREC wanted t o make Murphy re

- prove his case against Light , it could have

. I nstead , TREC told the
trial court tha t it ha d nothing further

. TREC did not object that it was denied the13 opportunity to reli tig ate t he fraud claim or that the tr ial court had not ruled on its request
. See Tex. R. Ap p. P. 33.1.
The langua ge of Section 1101.608 does not authorize TREC to parti cipate in the hearing on Murphy ’ s application , tell the trial cou rt that it had nothing further

rat her than obj ecting that it wanted to relitigate an issue, get an unfavorable ru l ing, and then, on a ppeal, o b tain a second hear ing on issues it could have pursued in the
f irst hearing but chose not to

. To the exte nt it argu es that we should reverse for it t o have anot h er hearing, we reject that arg ument. 2. The u nderlying judgment sup p orts Murphy ’ s application
T REC ’ s next argument is that Murp hy ’ s pleading s support a judgment only on

a breach of contract claim for which paym ent from the fund is not allowed a nd that ,
at the hearing o n Murphy ’ s application , he prese nted no evidence to su p po rt his claim
that Light ’ s actions fit into on e of the categories implicat ing the fund ’ s liability. The Act requir es an applica nt for payment to show at the h earing , amo n g other thing s , “ that the judgme nt is based o n facts allowing recov e ry ” under the A c t. T ex. Occ

. Code Ann. § 1101.6 07 (emphasis added)

. Thus, the starting place for determining the
app lication is the underlying judgment. The tr ial court ’ s order directing p ayment states that the court had previously “ rendered judgment (the Judgment) in favor of [ Murphy ] and against [Light] based o n facts allowing recovery under Tex. Occ. Code § 1101.652(b). ” We agree with the tri al court

.14 Loo king at Murphy ’ s pleadings, as TREC asks us to do, Murp h y alleged tha t Light had agreed to pay to him “ any and all fees/commissions received by Realty Associates and Light from the purchase, less the sum of two hundred ($2 00.00)
d ollars ” an d that Light had not follow ed through on that promise. T REC is correct

t hat t h ese fac t allegation s could have support ed a breach of contract claim if Murphy had proved that the promised payment was a term in a n agreement with Light and
ha d furth e r prov ed the other breach

- of

- c o ntract elements. Se e Pat hfinder Oil & Gas,
Inc. v. Great W. Dril l ing, Ltd. , 574 S.W.3d 882, 890 (Tex. 2019) (setting out breach

- of

contract elemen ts)

. However, a promise to perform an act can also support a fraud clai m or a D TPA claim if that promise was f alse when made

. See Tex. Bus. & Com. Code Ann. § 2 7 .01 ; T.O. Sta n ley Boot Co., Inc. v. Bank of El Paso , 847 S.W.2d 218, 222 (Tex. 1992) ; Tor res , 605 S.W.2d at 396 ; see also In re Rhee , 48 1 B.R. 880, 893 (Bankr. S.D. T ex. 2012 ) (holding t h at r e al estat e br o ker’s false promise to rebate commission t o home purchasers was a violation of the DTPA) ; D ’ Olivio v. Fox , No. 05

- 18

- 00868

- CV,
2020 WL 4047868, at *11 (Tex. Ap p.

— Dallas July 20, 2020, pet . denied) ( mem. op.) ( not ing t hat fail ure to compl y wit h contrac t al o ne does not violate the DTPA but “ an initi al misrepresentation i n ducing a party to enter into a contract the person making the representation had no intention of performing ” violate s the DTPA)

. A ccordingly,15 Mur phy ’ s p leadings do no t supp ort T REC ’ s arg umen t that the 2017 J udgment could
have been ba sed only on a breach o f contract claim

. 4
Further

— and importantly

— t he judgment awarded Murphy exemplary damages, which h e requested only in conne ction with his fraud in a real estate

tr ansaction and D TPA claim s , an d which are not recoverable on a breach of contract claim

. See T o ny Gullo Motors I , L.P. v. Chapa , 212 S.W.3d 299, 304 (Tex. 2006)

. T he judgment further awarded Murphy mental ang uish damage s, which he requested
under o nly his cl aims for DTPA viola tions

. Th u s, the judgment could not have been
ba sed on Mu r phy ’ s breach of c ontract claim and coul d only have been based on his DTPA allegations , a claim for which payment from the fund is permitted

. T ex. Occ.
Co de Ann. § 11 01.6 07

. Addit ionally, the economic damages awarded to M urphy could be construed as
reimbu rsement because they compensated him for his change in monet ar y position
due to Light ’ s misrepresentation. 5 Murphy suf fered a pecuniary loss of the

4 A t the hearing, Mu rphy asserted that it was “ c lear from the pleadings , this is a judgment b ased on frau d and DTPA on a real estate transaction. ”

5 U n de r this issue, TREC do es not argue that the economic damages award did not compensate Murphy for out

- of

- po cket losses. However, TRE C does assert in one
se nten c e that “no order for pay m ent from [the fund] can be affi r m ed since there is no pleading or e vide nc e to s upport it

. ” Further, u nder a separate issue, TREC argues that Mu rphy ’s pleadings d o not assert that he paid any amount for which h e so ught reimbursement. W e therefore assume th a t , taking TREC ’s brief as a w ho le , it fai rly incl udes an argument that the 201 7 Judgment ’s damages award did not reimburse M urphy for losses

.16 $10,769 .50 that he did not recei ve , and this loss was not mer e ly the lost expectation of profit from a business dea l

. Murphy specifically pled that he would not have e nte red
into the tr ansaction but for Light ’ s mis repr esentati on . B ecause of L ight’s misrepr ese ntation, Murphy agre ed to pay X amount to buy his home and to receive $10,769.50 in return , such that his out

- of

- pocket cost for the purchase was X minus $10 ,76 9.50. 6 Because o f Light’s actions , Murphy’s purchase ulti mately cost him an

ext r a expenditure of $10,769. 50

. The eco nom ic damages awarded in the
2017 Judg m ent reimbursed Murphy for the extra purchase co st , which he i ncurred
because of Light , and he there for e may recove r the amoun t of that award f rom the
fund. See Pace , 650 S.W.2d a t 65. We reje ct t his part of TREC ’ s fir st issue. 3. Murphy satisfied the Ac t ’ s requirem ents as to the judgment against Lig ht Finally, we address TREC ’ s argument that Murphy di d not satisfy t he Act ’ s requir ements for payment because he did not file his v e rified claim in t he trial cour t

“ after final judgment is entered, execution r et urned nu lla bona , and a judgment lien perfe cted ” as required by the A ct
. See Tex. Occ. Code Ann

. § 1101.606 (a) (e mphasis

6 Murphy attached to his brief a transcript of the hearing re sulting in the 2 017 Judgment, and in addr essi ng TREC ’s arguments abo ut the basis fo r that judgm ent , he references his t estimony from that hearing about the circumstances of his house purchase . However, that transcript is not a part of the appell ate record , and we theref ore do not consider it

. See T e x. R. App. P. 34.1 ; Fib e la v. Wood , 657 S .W.3d 664, 672 (Tex. App.

— El Paso 2022, no pet.)

.17 added). Its argument hinges on its contention tha t the 2017 Judgment wa s not a final judgment for purposes of S ection 1101.606

. Th e t ri al cour t signed the 20 17 Judgment on Augus t 8, 2017. Light did not appeal, and ac cordi ngl y, that judgmen t became final as to Light. 7 See George v. Vick , 686 S.W. 2d 99, 100 (Tex. 1984) ( stating that when “[n]o party appeal ed from the trial
court’ s judgmen t i nsofar as it d isposes of the actio ns by and against [a party], [t]he trial
court’s jud gme nt as to [that party] is affirmed”); Snively Royalty Analysis, LLC v.
Pa nchasarp , No. 05

- 19

- 00 5 7 7

- CV, 2020 W L 2079179, a t *1 n.1 (Tex. App.

— Dallas Apr. 30, 2020, no p e t.) (mem. op.) (stating, in appeal from multi

- party litigation, that
trial court’s jud gme nt had become f inal as to party who had not appealed); Klement v.
Munder , 619 S.W.2d 31, 32 (T e x . App.

— El Pa so 1981, no writ) (same). Murphy then
satisfied the requ ir e ments of Secti on 1101.606(a) by fi ling an abstract of judgment on September 28, 2017 , see Tex. Prop. Cod e Ann. § 52.001 (setting out how to establish a judgment lien), and by obtainin g a writ of ex ecution that was returned nulla bona on August 17, 2018. M urp hy thus satisfied th e requirements of Section 1101.606(a). See
Tex. Occ. Co de Ann. § 1101. 606 (a).
This court then reversed the 2017 Judgment as to Realty Associates but d i d nothing re garding the judgment again st Light because, as stat ed, Light did not a ppeal.

7 The Revised Fin al Judgment recog nized the finality of the 2017 Judgment in that it awarded prejudgmen t int e rest from the time that the unde rl ying suit was filed until the date of the 2017 Judgment rat her t han th e da te of the Revised Final Judgmen t. See Tex. Fin. Code Ann . § 304.104

.18 See Latter & Blu m , 2019 WL 3755765, at *9 (stating that we were reve rsi ng the trial

co urt’s judgment “as to [Realty Associates] only ” (emphasis add ed)). On remand, t he

t r ial court did not alter t he final judgm ent against Light , and it had no authori ty to alter the judgment had it so desired

. S ee Spicer v. Maxus Healthcare Partners, LLC , No. 02

- 21

- 00423

- CV, 2023 WL 2033774, at *2 (Tex. App.

— Fort Worth Feb. 16, 2023, no pet. h.) (mem. op .) ; United R es., L.P. v. S epc o Tubulars, Inc. , No. 04

- 12

- 00663

- CV, 2 014 WL 3339537, at *4 (Tex. App.

— San Antonio July 9, 2014, no pet.) (mem. op.)

. Consequently, the court ’ s subsequent signing of the R evised Final Judgme nt to delete refe rences to Realty As sociates cou ld not alter i ts judgment as to Light , did not
affect th e finality of the 2017 Judgment as to Light for purposes of Section 1101.606,
and did not erase Murphy ’ s alr eady

- completed compliance with Section 1 101

. 606

. Section 1101.606( a) ’ s requirem ent s ensure that the fund prov ides payment only for uncollectible j ud g ments
. See Tex. Occ. Code Ann. § 1101.606(a). Murphy sat isfie d
the Act ’ s requireme nts and the purpose of those require ments , and that purpose

wo uld n o t be served by our hold ing ot herwise

. We overrul e the remainde r of TREC ’ s first issue.
F
. Attorney ’ s Fe es and Pre

- Judgment Int erest In its third issue, TREC challenges the award o f $6,053.22 in attorney ’ s fees . It
also com plains that the pre judgment inte r e st awarded wa s pre suma bly and

erron eously based on the eighte en pe rcent interest rate set out in the 20 17 Judgment

.19 Regarding the interest rate, t he parties agree that the Finance Code controls the

c alculation of prejudgment interest here , and Mu r phy con cede s that the pre judgment
interest should have been calculate d at f ive percent

. 8 H owever, he further con te nds
that he requested interest at five percent in his ap plicati on for payment from the fund , and he asse r t s that the tr ial court ordered inte rest at that rate
. 9 We agree with TREC
that the trial cou rt did not calculat e prejudgment interest at five percen t
. A calculation of s imple interest based on the economic damages award of $ 10, 769.50 at a r a t e of eighteen per cent o ver eighte en months (the number of mon ths
between when Murphy filed his original p etition and when the trial court rendered its 2017 Judgme nt ) yields the exact amount of prejudgment interest awarded by the trial

court: $ 2,907.77

. We ther efore agr ee with TREC that the tri al court appar ently calculated prejudgment interest at eig hteen percent for eighteen mo nths

. 10

8 A m oney j udgm ent on a contract that provides f or interest may earn postj udgm ent interest

— and therefore prejudg me nt inte rest — at eighteen pe rcent
. Tex. Fin. Code Ann. § 304. 002 ; E.F. Johns on Co. v. Infinity Glob . Tech. , No. 05

- 14

- 01209

- CV, 2016 WL 4254496, at *11 (Te x. A pp.

— Dallas Aug. 11, 2016, no pet. ) (mem. op.). However, as we have held, the judgment in this cas e was not based on a contrac t claim

.
9 Regarding p ost judgment i nt er est , t he o rder on appeal states that the under lying judgment “ is a ccruing interest at the rat e of 5% per annum pursuant to T ex . F in

. C ode [Ann.] § 304.0 03

. ” It does not, however, st at e the rate on which the trial court calculated prejudgme nt int erest
.
10 T he F inance C ode dictates the perio d of time on whic h prejud gment interest accrues. Cit izens Nat ’ l Bank v. Allen Rae Inv s . , Inc. , 142 S.W.3d 459, 486

– 87 (Tex. App.

— Fort Worth 2004, no pe t.)

. That period be gins on “ the 180 th day after the date the d efenda nt re c eives written notice of a claim or the date the suit is filed ” and ends20 Murphy asserts that the trial co urt must have applied a five percent int erest rate because an e ighteen percent i n t erest rate wo uld have amounted to m ore than $8, 000 in prejudg ment interest

. That would be tr ue if the 2017 Judgment had awarded prejudg ment int erest on the mental anguish d am ages as well as on economic damages

a nd if the order direct ing paym e n t from the fu nd had th en ca lculated prejudgment
int erest base d on that award

. However, the 2017 Judgment ordered prejudgment
interest on only the $1 0, 769.50 in economic damages

. 11 Simple i nterest on $ 10, 769.50 c alcul ated at a n eighteen percent rate f or the applic able period does not result i n over $8,000 in interest

— as we have stated, it results in the exact amou nt awarded

. We sustain this part of TREC ’ s thir d issue

. See Roberts v. Jay Fu ll er Enter s . , LLC , No. 12

- 20

- 00134

- CV, 2021 WL 1047052, a t *7 (Tex. App.

— Tyler M ar. 18, 2 021 , no pet.) (m em. op.). W e w il l remand this case t o the trial court to recalculat e the prejudgment interest

. See McGee v. Tatum , No. 05

- 21

- 00303

- CV, 2022 WL 17248174 , at *8 (Tex. App.

— Dallas No v. 28, 2022, no pet.) (mem. o p.).

“ on the day preceding the date judgment is r endered

. ” Tex. Fin. Co de A nn. § 304.104

. Prejudgment interest “ i s computed as simple interest and doe s not compound. ” Id.

11 S imp le inte rest on $ 3 0, 769.50 (the economic and mental anguish damages t ogether) at five percen t y i elds a figure that is close but n ot equal t o the amount awa rded by the trial court. Thus, even if t he trial court had included the ment al anguish damages in its calcula tion, it could not have been using a five percent r ate.21 Regarding attorney ’ s fees, TRE C asserts tha t because Murp hy represented himself, unde r Jackson v. State Office of Administrative Hearings , 351 S.W.3d 290 , 30 0 (Tex.
2011 ) , Mu rphy could not recov er attorney ’ s fees . TREC argues that the Texas Supreme Co urt ’ s more recent decis ion i n Rohrmo os Venture v . UT SW DVA Hea lthca re , LLP , 578 S. W .3d 469 (Tex. 2019), does not allow a different result. This court has already held otherwi se

— we have pointed out th at in Rohrmoos , th e supreme court

“ acknowledged that

. . . an attorney may recov er fe es for r e presenting hims elf

. ” J.
M ichae l Ferguso n, P.C . v. Ghrist Law Firm, PLLC , No. 02

- 18

- 00332

- CV,
2021 WL 2 006321, at *20 (Tex. Ap p.

— Fort Wort h May 20, 2021, pet. deni ed ) ( mem. op.). Further, in Jackson , the statute being c onsidered authorized a tr ial court t o award “ rea sonable attorn ey [ ’s ] fees incurred by a plaintiff , ” and the supreme court ’s holding was based on its conclusio n that the plaintiff representing himself ha d not
incurred attorney ’s fees “ because he did not at an y time become liable fo r attorney ’ s fees

. ” Id. a t 299

– 3 00. In its reply brief, T REC argues that we should not allow recovery of at torney ’s fees here because th e fu nd is limit ed to compensa t ing out

- o f

pocket losses , and Murphy suffered no out

- of

- pocket los s es in representing hims el f.
Unlike the statut e in Jackson , however, t he attorney ’ s fees provision at issue here
does not include the wor d incurred

. T REC ’ s argument esse ntially attempts to graft onto S ection 1101.610 the incurred language from the statute in Jackson , and it ignores th e fact that the Act ’ s a uth orization for awardi ng reasonable attorney ’ s fees is separa te22 from the provision for reimbursement of damages

. See Tex. Occ. Code Ann. § 1101.61 0

. Th e attorney ’ s fees provision specif ically authorizes the recovery of

“ reasonable attorney ’ s fees in t he a mount determined by the c ourt. ” Because the Act
authorizes rec overy of reasonable atto rney ’ s fee s, and an atto rn ey representi ng himself
may recover t he reasonable fees for his services in represent ing himself , the trial court

was au thorized to order pa ymen t of Murphy ’ s r easonabl e attorney ’ s fees

. We overrule
the rem ainder of TREC ’ s third i ssue. I II. Murphy ’ s Cros s - P o int Murphy ’ s sole cross

- po int asse rt s that TREC ’ s appeal is moot. After Mu rphy

o btained the order directi ng payme n t from the f und , TREC requested and re ceived from Murphy a partial assignment of the judgment against Light. M ur phy argues that , as such, TRE C cannot change its mind “ after req ue s ting and accepting an assignme nt of the underlying judg ment and entering int o a Rule 11 agreement obli gating it to pay
the as signed judgment amount. ” He con tends t hat TREC “ sho uld not be allo we d to
mislead [him] into b elieving that the controversy is ov er by requesting and receiving an assignment of the ju dgment under a Rule 11 agreement and l ater refus [ ing] to h onor the agreement and fil [ing] an appeal relat ing to the judgment it h as been assigne d

. ”
TREC r espon ds that the Act requires it to obtain an as si gn ment of the jud gment on which payment is made from the fu nd and that any email discussi on s between TREC ’s a ttorney and Mur phy regarding preparation an d ex ecution of the23 assig nment do not sa ti sfy t he requi rements for a Rule 11 agreement. See Tex. R. Civ

. P. 11 ; Tex. Occ. Code Ann. § 1101 .612 (a) , (c) ( provi ding that “ [TREC] is su brogated to all righ ts of a judgmen t creditor to the extent of an amount p aid from the trust
account, an d the judgmen t creditor shall assign to [TREC] all right, title, and intere st in the judgment up to that amoun t ” (emphasis added) and that TREC “ shall d eposit any

amount re covered on the judgment to the credit of th e trust acc oun t ”).
We h ave reviewed th e emails in the record on which Murphy base s his Rule
11 argument, and we agre e wi th TREC that they do not suppo rt Murphy ’ s argumen t
. See Tex. R. Civ. P. 11

. There is no agreement “ in writi ng, signed [,] and filed with the
p apers as part of the record ” that T REC would not appeal from the tri al court ’ s or der

. TREC represented in the e ma ils that the A ct required M urphy to “ assign [ his ] i nterest in the judgment up to the amount ordered paid from the Fund , ” but it said noth in g about appea ling the order.
As for M urphy ’ s other argument under his cross

- poin t, he asserts that “[b]y requesting a nd acceptin g the partial ass ignment , [TREC] has waived its right to appeal [,] and [the appeal ] should be dismissed

. ” How ever, in each of the cas es that he
cite s to support this assertion , the appellant had satisfied the judgment from which it appealed

. S ee Highland Ch urch of Christ v. Powell , 640 S.W.2d 235, 236

– 37 (Tex. 1982) (holdin g ap peal not moot because ju dgment paid und er duress , and citing Guajar do v.
A lamo Lumber Co. , 317 S. W.2d 725, 725

– 26 (Tex. 1958 ) , which invol v ed discharge of
indebtedne ss by p etitione r and h eld that app ea l was moot be cause appellant garnishee24 discharged the garnishment judgm ent and then took an assignment of the u nderlying ju dgment ) ; Hudler

- Tye C on st., Inc. v. Pettijohn & Pettijohn Plumbing, Inc. , 632 S.W.2d 219,
223 (Tex. Ap p.

— Fort Worth 1982, no wri t) ; Otto v. Rau Petroleum Prod s . , 582 S.W.2d 504 (Tex. App.

— Houston [1 st Dist.] 1979, no writ)

. But se e Miga v. Jensen , 96 S.W .3 d 207, 211 (T ex. 2002) ( “ The Texas rule is not, and never has been, sim ply that any payment toward sat is f ying a judgment, i ncludin g a voluntary one, moot s the controversy and waives the ri ght to app eal that judgment. ” ). Here, Murp hy does not
contend that T REC has alrea dy paid the order being appealed , and he directs us to

not hing in the record to establish t h at it has been pai d. 12 We overrule Murphy ’ s sole

cross

- point.
I V . Conclusion
Because we have o verruled Murphy ’ s cross

- point an d have sustained TREC ’ s

se cond issue , w e reverse the part of the trial court ’ s order directing TR EC to pay from
the fund the men ta l angui sh damages award , a nd we mo dify the order to reduce the

amount ordered to be paid by $20 ,000

. Having furt her sustained p art of TREC ’ s third
iss ue , we remand t he case to the trial court to recalculate the prejudgment int erest
.

12 T he assignment states that TR EC ha s paid Murphy $40, 161.49 and th at , in
c onsideration of that payment, TREC ha s the right to collect up to th at much of the judgment f rom Li ght

. Ho wever, t he e mails se nt in connection wi th this assignment’s signing make clear Murphy was exec uting the assignment be fore TREC made any pa yment from the f und, and thus the assignme nt ’s language is not sufficient to show that TREC has sa tisfie d the trial c ourt ’s or der

. Notabl y, Mur phy does not argue on appeal that T REC has paid the order.25 Finally, h aving overr ul e d TREC ’ s second is sue and the remainder of its t hird issue , we affi rm the trial cou rt ’ s order in all other resp ects.

/s/ Mike Wallach Mike Wal lach Justice
Delivered : April 13, 202 3