AFFIRM; and Opinion Filed January 14, 2019.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-17-01468-CV

BUCK PORTER, Appellant

V.

A-1 PARTS, Appellee

On Appeal from the County Court at Law No. 4

Dallas County, Texas

Trial Court Cause No. CC-16-02644-D

MEMORANDUM OPINION

Before Justices Myers, Molberg, and Osborne

Opinion by Justice Osborne

After a nonjury trial, the trial court rendered judgment for appellant Buck Porter. The 

judgment did not include an award of attorney’s fees. In one issue, Porter argues that the trial court 

erred by denying an award of attorney’s fees because his attorney’s invoice was admitted into 

evidence without objection. We affirm the trial court’s judgment.

BACKGROUND

Porter purchased an injector pump for his truck at appellee A-1 Parts for $650. After a twoweek delay, A-1 Parts delivered the pump to Porter’s mechanic Chayn Gaines. Gaines informed 

Porter that the pump’s key was missing, and the pump would not work without it. Porter contacted 

A-1, but A-1 did not provide the key and refused to refund the $650. Several weeks later, Porter 

found another pump, but he was without the use of his truck for his work for almost two months. 
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He sued A-1 alleging causes of action for deceptive trade practices and fraud. He sought 

$19,577.75 in damages, including $14,832 “for reasonable rent value” of the truck and $3,000 in 

time lost from his business. Porter also pleaded for attorney’s fees under section 17.50(d), Texas 

Business and Commerce Code, and “common law.”

The case proceeded to trial before the court. Porter, Gaines, and Porter’s son and daughter 

testified at trial, as did Chris Nasrallah, A-1’s owner. Plaintiff’s Exhibit 6, an invoice in the amount 

of $8,703.03 from Porter’s attorney to Porter, was admitted into evidence without objection. Porter 

did not offer any other evidence to support his request for attorney’s fees. 

The trial court rendered judgment for Porter for $650 in damages, plus interest and costs 

of court. The judgment also provides, “There is no recovery for attorney’s fees, as no testimony 

exists in the record to prove the reasonableness and necessity of attorney’s fees.” Porter filed a 

motion for new trial complaining of the trial court’s failure to award him attorney’s fees, but did 

not request findings of fact or conclusions of law. Porter’s motion for new trial was overruled by 

operation of law. See TEX. R. CIV. P. 329b(c). This appeal followed.

APPLICABLE LAW AND STANDARD OF REVIEW

When a trial court sits as the trier of fact, the amount of an attorney’s fee award generally 

rests in the trial court’s sound discretion, and its judgment will not be reversed on appeal absent a 

clear abuse of discretion. Jarvis v. Rocanville Corp., 298 S.W.3d 305, 318 (Tex. App.—Dallas

2009, pet. denied). Sufficiency of the evidence to support the award is a relevant factor in assessing 

whether the trial court abused its discretion. Id.; see also Brazos Elec. Power Co-op., Inc. v. Weber, 

238 S.W.3d 582, 583 (Tex. App.—Dallas 2007, no pet.) (in reviewing trial court’s award of 

attorney’s fees under mandatory statute, appellate court “asks whether there was sufficient 

evidence that the fees awarded were in fact reasonable and necessary”).
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Where no findings of fact or conclusions of law are requested or filed after a nonjury trial, 

it is implied that the trial court made all the findings necessary to support its judgment. Worford v. 

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).

1 These implied findings may be 

challenged for legal and factual sufficiency where, as here, a reporter’s record is included in the 

record on appeal. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam). We 

review implied findings by the same standards we use in reviewing the sufficiency of the evidence 

to support a jury’s answers or a trial court’s fact findings. Id. In conducting a legal sufficiency 

review, we must determine whether the evidence would enable the factfinder to reach the 

determination under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will 

not disturb a finding for factual insufficiency unless the evidence in support of the finding is so 

against the great weight and preponderance of the evidence that it is clearly wrong and manifestly 

unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). In the absence 

of findings of fact and conclusions of law, a trial court’s judgment will be upheld on any available 

legal theory supported by the evidence. Rosemond v. Al–Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) 

(per curiam).

Porter pleaded causes of action for common law fraud and violations of the DTPA. A 

plaintiff may not recover attorney’s fees in an action for common law fraud. Alexander v. Kent, 

480 S.W.3d 676, 698 (Tex. App.—Fort Worth 2015, no pet.). A plaintiff who prevails in a DTPA 

cause of action “shall be awarded court costs and reasonable and necessary attorneys’ fees.” TEX.

BUS. & COM. CODE ANN. § 17.50(d). But “[e]ven when an award of attorney’s fees is mandatory 

under an applicable statute, the requesting party is still required to offer evidence to support an 

 

1

Statements in the trial court’s judgment are not findings of fact. See TEX. R. CIV. P. 299a (“Findings of fact shall not be recited in a 

judgment.”); In re RSR Corp., 405 S.W.3d 265, 271 n.3 (Tex. App.—Dallas 2013, orig. proceeding); Casino Magic Corp. v. King, 43 S.W.3d 14, 

19 n.6 (Tex. App.—Dallas 2001, pet. denied).
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award.” Dilston House Condo. Ass’n v. White, 230 S.W.3d 714, 718 (Tex. App.—Houston [14th 

Dist.] 2007, no pet.).

An award of attorney’s fees under the DTPA must be reasonable. Cain v. Pruett, 938 

S.W.2d 152, 158 (Tex. App.—Dallas 1996, no writ). “Except where the reasonableness of 

attorney’s fees may be presumed, their reasonableness is a fact question and must be supported by 

competent evidence.” Id.; see also Smith v. Smith, 757 S.W.2d 422, 425 (Tex. App.—Dallas 1988, 

writ denied) (reasonableness of fee claimed under DTPA must be established by evidence).2 “The 

reasonableness of attorney’s fees is ordinarily left to the factfinder,” and an appellate court may 

not substitute its own judgment for that of the factfinder. Smith v. Patrick W.Y. Tam Trust, 296 

S.W.3d 545, 547 (Tex. 2009).

When determining the reasonableness of fees under DTPA section 17.50(d), the finder of 

fact should consider factors including the time and labor required, the amount involved and the 

results obtained, the experience and ability of the lawyer performing the services, and other factors 

identified by the supreme court in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 

812, 818 (Tex. 1997), although evidence on all of the factors is not necessary. See Halsey v. Halter, 

486 S.W.3d 184, 189 (Tex. App.—Dallas 2016, no pet.) (“Courts are not required to receive 

evidence on each Arthur Andersen factor before awarding attorney’s fees.”). The party seeking an 

award of attorney’s fees under the DTPA bears the burden of proving the reasonableness and 

necessity of the fees. Creditplex Auto Sales L.L.C. v. Bishop, 2018 WL 4090528, at *4 (Tex. 

App.—Dallas Aug. 28, 2018, pet. denied) (mem. op.); see also In re Bent, 487 S.W.3d 170, 184 

(Tex. 2016) (orig. proceeding) (citing Arthur Andersen & Co., 945 S.W.2d at 819) (award of fees 

“not automatic” even under mandatory statute).

 

2

Porter relies on Smith for the proposition that “the reasonableness of fees may be presumed.” We explained in Smith that reasonableness of 

attorney’s fees could be presumed under chapter 38 of the civil practice and remedies code. Smith, 757 S.W.2d at 425. We also explained, however, 

that reasonableness of fees under the DTPA could not be presumed but “must be established by evidence.” Id.
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DISCUSSION

Porter argues that he was not required to offer evidence of the reasonableness and necessity 

of his attorney’s fees because Plaintiff’s Exhibit 6, his attorney’s fee invoice, was admitted into 

evidence without objection, and an award of fees was mandatory under the DTPA.

Neither Porter nor his attorney testified to the reasonableness and necessity of the fees 

reflected in Plaintiff’s Exhibit 6. Porter argues that because A-1 did not object to the admission of 

Plaintiff’s Exhibit 6 or to Porter’s failure to offer evidence of the reasonableness and necessity of 

his fees, the trial court was required to award fees. He argues that an award of fees is mandatory 

under the DTPA, citing Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 751 (Tex. App.—Houston 

[14th Dist.] 2005, no pet.). The court in Manon recognized that “an award of attorney fees is 

mandatory” under the DTPA. See id. Nonetheless, the court held the trial court did not err by 

refusing to award attorney fees because the plaintiffs failed to introduce any evidence of 

reasonableness. See id. at 752. 

Porter bore the burden of proving reasonableness. See Bishop, 2018 WL 4090528, at *4. 

Consequently, on appeal, the question is not whether A-1 objected to Porter’s failure to offer 

evidence of reasonableness, but whether the evidence in the record is sufficient to support the trial 

court’s implied finding that Porter did not meet his burden of proof. See Dow Chem. Co., 46 

S.W.3d at 242 (standard of review of issue on which appellant bore burden of proof). To attack 

the legal sufficiency of the evidence to support the trial court’s adverse finding, Porter must 

demonstrate “that the evidence establishes, as a matter of law, all vital facts in support of the issue.”

Id. at 241. To attack the factual sufficiency of the evidence, Porter must demonstrate “that the 

adverse finding is against the great weight and preponderance of the evidence.” Id. The only 

evidence in the record is the amount of fees billed to Porter by his attorneys. Porter did not establish 

the reasonableness or necessity of the fees as a matter of law, and the trial court’s implied finding 
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that Porter did not establish the reasonableness and necessity of his fees is not against the great 

weight and preponderance of the evidence. See id. at 241–42; see also City of Keller, 168 S.W.3d 

at 827.

Porter also argues that A-1 waived any objection to his failure to offer evidence of 

reasonableness, relying on Brown v. Commission for Lawyer Discipline, 980 S.W.2d 675, 685 

(Tex. App.—San Antonio 1998, no pet.). In Brown, the trial court awarded fees even though the 

Commission failed to segregate its recoverable fees from the fees incurred for claims that it 

eventually abandoned. See id. The court explained that “[t]he segregation requirement can . . . be 

waived if the opposing party fails to object to unsegregated proof,” noting that Brown’s attorney 

stipulated to the reasonableness of the Commission’s fees twice and stated on the record that the 

fees were interrelated. Id. at 684–85. The court concluded, “[g]iven this state of the record, the 

trial court would have been justified in concluding that the time spent on the abandoned matters 

did not constitute a substantial, severable portion of the $7200 requested and that $7200 was a 

reasonable approximation of the actual value of the representation.” Id. In contrast to this record, 

the Commission in Brown offered testimony of the reasonableness of its fees. See id. Here, 

Plaintiff’s Exhibit 6, the only evidence offered by Porter, does not include any information 

regarding either the reasonableness or the necessity of the fees reflected on it. Nor did A-1’s 

attorney stipulate to the reasonableness of Porter’s fees.

Porter also cites our opinion in Weber, where we concluded “that ample evidence supports 

the trial court’s award” of attorney’s fees. See Weber, 238 S.W.3d at 587. In Weber, an appeal of 

an eminent domain proceeding, Weber was the party seeking attorney’s fees. See id. at 583–84. 

He offered his own testimony, the testimony of an expert witness “on the subject of attorney’s fees 

in condemnation cases,” and his attorney’s testimony of the work he undertook in representing 

Weber. See id. at 583–87. The testimony included evidence of the fees incurred and consideration 
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of the standards set forth in Arthur Andersen & Co. and in rule 1.04 of the disciplinary rules of 

professional conduct. See id. at 585–86 (citing Arthur Andersen & Co., 945 S.W.2d at 818). Porter 

did not offer evidence on any of these matters.

Porter bore the burden to establish the reasonableness and necessity of the attorney’s fees 

he incurred. See Bishop, 2018 WL 4090528, at *4. He did not offer any evidence on either matter. 

We conclude the trial court did not abuse its discretion in rendering judgment for Porter that did 

not include an award of attorney’s fees. We decide Porter’s sole issue against him.

CONCLUSION

We affirm the trial court’s judgment.

171468F.P05

/Leslie Osborne/

LESLIE L. OSBORNE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

BUCK PORTER, Appellant

No. 05-17-01468-CV V.

A-1 PARTS, Appellee

On Appeal from the County Court at Law 

No. 4, Dallas County, Texas

Trial Court Cause No. CC-16-02644-D.

Opinion delivered by Justice Osborne; 

Justices Myers and Molberg, participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

It is ORDERED that appellee A-1 Parts recover its costs of this appeal from appellant 

Buck Porter.

Judgment entered this 14th day of January, 2019.