Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-14-00811-CV

Randy COLEMAN and Jim Coleman Company,

Appellants

v.

Ralph DEAN,

Appellee

From the 79th Judicial District Court, Jim Wells County, Texas

Trial Court No. 11-04-49987-CV

Honorable Richard C. Terrell, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice

Karen Angelini, Justice

Jason Pulliam, Justice

Delivered and Filed: September 2, 2015

AFFIRMED AS MODIFIED

Appellant, Randy Coleman (“Randy”), brings a restricted appeal1 from a post-answer 

default judgment rendered against him; and appellant, Jim Coleman Company, appeals from a 

judgment rendered against it following a jury trial. Randy and Jim Coleman Company 

(collectively, “appellants”) raise similar issues on appeal challenging the sufficiency of the 

 1 When a party does not participate in person or through counsel in a hearing that results in a judgment, he may be 

eligible for a restricted appeal. TEX. R. APP. P. 30. To sustain a proper restricted appeal, the filing party must prove: 

(1) he filed notice of the restricted appeal within six months after the judgment was signed; (2) he was a party to the 

underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment complained of, and did not 

timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent 

on the face of the record. Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
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evidence in support of liability, damages, and attorney’s fees; and asserting liability for any 

damage award should be joint and several.

BACKGROUND

Ralph Dean (“Dean”) and his wife ordered a modular house from Living Modular, LLC 

for a total purchase price of $63,700. Dean made a down payment of $30,000; later paid an 

additional $3,000; and incurred expenses of $14,659.38. The house was never delivered. Dean 

eventually sued Living Modular, Randy, and Jim Coleman Company. Dean alleged, among other 

things, that Living Modular was affiliated with, supported by, and maintained its operations at the 

Jim Coleman Company facility in Houston, Texas. Dean alleged Randy acted as an agent of Living 

Modular and Jim Coleman Company. Dean sued all three defendants for breach of contract and 

violations of the Texas Deceptive Trade Practices Act (the “DTPA”). All defendants answered 

the suit, but only Jim Coleman Company appeared for trial represented by counsel. The sole owner 

of Living Modular, who is not an attorney, appeared for trial. After the jury returned a verdict 

against Jim Coleman Company on the DTPA claim,

2 the trial court signed a Final Judgment in 

which it rendered a default judgment against Randy and Living Modular, and a judgment against 

Jim Coleman Company. In the Final Judgment, Dean was awarded $47,659.38 in economic 

damages; $142,978.14 as additional damages under the DTPA; and prejudgment and postjudgment 

interest, attorney’s fees, and court costs.

Randy filed a restricted appeal and Jim Coleman Company filed a regular appeal. Living 

Modular did not appeal.

 2 The breach of contract claim against Jim Coleman Company was not submitted to the jury.
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LIABILITY

On appeal, Randy3 and Jim Coleman Company challenge the sufficiency of the evidence 

in support of findings that they knowingly engaged in several false, misleading, or deceptive acts 

or practices on which Dean relied to his detriment. Among the various DTPA violations, Dean 

alleged appellants caused confusion or misunderstanding as to (1) the source, sponsorship, 

approval, or certification of goods or services; and (2) the affiliation, connection, or association 

with, or certification by, another. See TEX. BUS. & COM. CODE ANN. § 17.46(b)(2)-(3) (West 

2011). Subsection (b)(2) deals with deception in the origin, source or endorsement of goods and 

services. Cox v. State, 448 S.W.3d 497, 505 (Tex. App.—Amarillo 2014, pet. filed); Potere, Inc. 

v. Nat’l Realty Serv., 667 S.W.2d 252, 257 (Tex. App.—Houston [14th Dist.] 1984, no writ); 

Prairie Cattle Co. v. Fletcher, 610 S.W.2d 849, 853 (Tex. Civ. App.—Amarillo 1980, writ 

dism’d). Subsection (b)(3) deals with deception about a person’s or entity’s affiliation, connection, 

or association with, or certification by, another. 

A. Standard of Review4

A legal sufficiency challenge will be sustained when the record confirms either: (a) a 

complete absence of a vital fact; (b) the court is barred by rules of law or of evidence from giving 

 3 A post-answer default judgment is rendered when a defendant files an answer but fails to appear at trial. See Stoner 

v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). In the case of a no-answer default judgment, the defendant’s failure 

to answer represents an admission of all facts properly set forth in the plaintiff’s petition. See Morgan v. 

Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984). By contrast, a post-answer “default” is not an implied 

confession of any issues raised by the defendant’s answer. See Stoner, 578 S.W.2d at 682. Unlike a no-answer default, 

a post-answer default judgment requires the plaintiff to offer evidence to prove the factual allegations of his petition 

just as in a contested trial. See id.; Karl & Kelly Co. v. McLerran, 646 S.W.2d 174, 175 (Tex. 1983). Therefore, in 

his restricted appeal, Randy may challenge the sufficiency of the evidence and, thereby, establish error on the face of 

the record. Norman Commc’n v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (recognizing review of legal 

and factual sufficiency claims is permissible when a post-answer default judgment is challenged by restricted appeal).

4 On appeal, appellants state the evidence is legally and factually insufficient. However, neither appellant filed a 

motion for new trial complaining of factual insufficiency in support of liability. Because a motion for new trial is a 

prerequisite to a factual sufficiency challenge, appellants waived their right to complain about the factual sufficiency

of the evidence to support the liability findings. See TEX. R. CIV. P. 324(b)(2)-(3). Also, the standard of review on 
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weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital 

fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of 

the vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014); City of Keller v. 

Wilson, 168 S.W.3d 802, 819 (Tex. 2005). In a legal sufficiency review, we must view the 

evidence in the light most favorable to the verdict. Ford Motor Co., 444 S.W.3d at 620; City of 

Keller, 168 S.W.3d at 822. When reviewing all of the evidence in a light favorable to the verdict, 

“courts must assume jurors made all inferences in favor of their verdict if reasonable minds could, 

and disregard all other inferences in their legal sufficiency review.” City of Keller, 168 S.W.3d at 

821. When reviewing circumstantial evidence that favors the verdict, we must “view each piece 

of circumstantial evidence, not in isolation, but in light of all the known circumstances.” Id. at 

813-14. If circumstantial evidence, when viewed in light of all the known circumstances, is equally 

consistent with either of two facts, then neither fact may be inferred. Id. But where the 

circumstantial evidence is not equally consistent with either of two facts, and the inference drawn 

by the jury is within the “zone of reasonable disagreement,” a reviewing court cannot substitute 

its judgment for that of the trier-of-fact. Id. at 822.

B. The Evidence

Dean was the only witness to testify on liability, and the following is taken from his

testimony.5

 In August 2009, Dean and his wife attended a Texas Trophy Hunter’s Extravaganza 

in Houston, Texas, when they passed by a Living Modular booth. Dean said the booth advertised 

concrete houses for sale, and he and his wife wanted one for their property in Premont, Texas to 

 

which appellants rely and their substantive argument is that the evidence is legally insufficient; therefore, it appears 

they assert only a legal sufficiency challenge. In any event, we review the evidence only for legal sufficiency.

5 Dean called two other witnesses to testify about attorney’s fees. The Jim Coleman Company called no witness and 

submitted no documentary evidence because the trial court struck any witness the defendants might call on the grounds 

that they failed to answer discovery. 
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use as a recreational house. The couple hoped to have the house built by Thanksgiving 2009. At 

the booth, the couple met the brothers, Wayne and Randy Coleman, and another man by the name 

of Bob Oaks. 

Dean believed Oaks was an employee of Jim Coleman Company helping with sales of the 

modular houses. Randy handed Dean a business card and told Dean that both he and Wayne were 

executives with Jim Coleman Company. The card Randy gave Dean read “Jim Coleman Company 

. . . World Class Manufacturing of Car Wash Equipment.” Before the hunting show, Dean knew 

nothing about modular houses, but while at the show, he learned they were manufactured in 

Mexico, they could be made quickly, and they appeared extremely durable. He also learned 

models of the houses were on Jim Coleman Company’s property in Houston, and that any 

subsequent meetings about purchasing a house would be held at that location.

Dean and his wife later decided to go to Houston to see the models. The couple met with 

Randy, Wayne, and Oaks, who “started the sales pitch” and reviewed sales brochures. One of the 

brochures showed an L-shaped house, but Dean and his wife wanted a T-shaped house. Dean said 

they were told they could design their house, and a draftsman used Jim Coleman Company’s 

AutoCAD to draw up a computer-generated blueprint of the house. Dean said Randy told him that 

they could do anything with the houses, including putting two together to make one larger house. 

Randy told the couple that not only could he “tweak” the design, there were “craftsman [sic] in his 

employ in Mexico or people that he could get that could also tweak the interior and not go with 

the standard list that was on the right [side of the sales brochure]; that he could upgrade the interiors 

and [the] sky was the limit is what he told me.”

Dean said the Coleman brothers were originally going to do the site preparation, but 

because they could not find anyone to do the work, Dean himself purchased caliche and hired a 

man to level the site to the necessary specifications. The couple was told the house would have 
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various amenities, including a kitchen area, a bathroom with tiled shower and toilet, and painttextured interior and exterior walls. The purchase price also included transportation and road 

permits from Monterrey, Mexico to the job site. Dean was told the manufacturing facility was 

located in Mexico “and that’s where it was going to come from and they would take care of that 

in no time.” Dean said he specifically asked about any problems with delivery from Mexico, and 

was told there were no problems. He said if he had been told there were problems, he would not 

have paid for the house.

Dean and his wife did not make any decision after the first meeting, but went back to the 

Jim Coleman Company offices several times. At either the first or second meeting, they walked 

through the Jim Coleman Company facility, the manufacturing area of the car wash business, and 

Randy’s and Wayne’s offices. Dean said Oaks had an office at Jim Coleman Company, but he did 

not know what position he held with the company. The couple was told that as part of Jim Coleman 

Company’s manufacturing of car washes, the company could build awnings or covered front 

porches for whatever modular house they purchased. When asked whether the couple was told, 

during a tour of the facilities, that Jim Coleman Company did not have anything to do with the 

manufacture of modular houses, Dean replied “no” and that he was “led to believe there was like 

a subsidiary of the Jim Coleman Company; like it was one and the same.” He thought Living 

Modular and Jim Coleman Company were the same company, but “different wings.” Dean 

thought he was dealing with a well-established national company that “was affiliated with — you 

know, it was all one big, happy family: Coleman, Coleman and Coleman.”

The couple eventually decided to buy a modular house, and, on October 22, 2009, signed 

an order form and made a $30,000 down payment. The order form was drawn up by Oaks, who 

told the couple he worked for Jim Coleman Company. After the couple agreed to buy the house 

and “tweaked” the design, they were given the blueprint of their house as prepared by the Jim 
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Coleman Company employee. The check for $30,000 was made payable to Living Modular. After 

they received the blueprint and made certain upgrades to the house’s interior, the couple paid an 

additional $3,000 with a check payable to Randy on November 3, 2009.

The couple anticipated delivery of the house before Thanksgiving 2009. Dean said he 

asked several times about any potentials delays because the house was coming from Mexico, and 

Randy and Wayne told him “it was smooth as silk.” Randy and Wayne made several visits to the 

couple’s property to ensure the site was adequate for the house and there was clearance for the 

cranes. In addition to the $33,000 paid, Dean also made an $8,000 direct deposit to what he 

believed was Randy’s account to cover the extra cost of expanding the house, plus an additional 

$6,659.38 to prepare the site and to purchase materials that were to be put on the building “where 

it sat in Mexico that were going to build it up.” 

Dean said he was given different reasons for why delivery was delayed, including that 

Randy, Wayne, and Oaks said they intended to move the plant from Mexico to Texas. When 

Christmas 2009 came and went with no delivery of the house and no one returning his telephone 

calls, Dean went to the Jim Coleman Company offices in Houston, but he was told Oaks, Randy, 

and Wayne were not there.

On direct examination, Dean identified Exhibit 4 as an aerial photograph of the Jim 

Coleman Company property, and Exhibit 3 as “the gate to the Living Modular area of the Jim 

Coleman Company.” Exhibit 3 showed a sign that read “Living Modular, 3450 Antoine” on the 

fence next to the gate through which Dean entered the property. Both exhibits were admitted into 

evidence. On cross-examination, Dean admitted the aerial view of the property showed more than 

just the Jim Coleman Company facility. For example, it showed a convenience store and possibly 

a hotel. Dean said the first few times he went to Living Modular in Houston, he entered from 

Antoine Street. Dean agreed Jim Coleman Company’s address was on West 34th Street, which 
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runs perpendicular to Antoine Street. Dean agreed Living Modular occupied the area off Antoine 

Street and there were four concrete buildings; two were Living Modular offices and two were 

model houses. Dean acknowledged the brochures listed telephones numbers for Wayne and 

Randy, but he said he usually called Randy on his cell phone and he used the Jim Coleman 

Company switchboard to call Oaks. When asked if he had anything with Jim Coleman Company’s 

name on it stating it sponsored Living Modular, Dean replied, “It was [everywhere] that I was at 

when I was visiting them at their office. I was at the Jim Coleman Company. I was — it was all 

implied [by Randy] and Wayne and Bob Oaks.”

Dean testified he was never told his house was complete and ready to ship, and he was only 

shown photos of components that were to be part of the house. Dean said Randy, Wayne, and 

Oaks misled him “about their abilities to produce the product,” he was misled about Jim Coleman 

Company’s involvement, and he did not know Living Modular was a company separate from Jim 

Coleman Company. When asked why he thought the companies would have separate entrances 

and there was no mention of Jim Coleman Company in the literature, Dean responded

I came in several times through the Jim Coleman property, to their office complex, 

and no one ever told me there was a difference between the two. They made it 

seem, verbally and with cards and AutoCADs and introductions to their facility, 

made it known that they were one and the same.

Dean said he was led to believe Living Modular was affiliated with Jim Coleman Company.

C. DTPA: Confusion or Misunderstanding

The evidence here shows that, while working in the Living Modular booth at the hunting 

show, Randy handed Dean his Jim Coleman Company business card. Randy, Wayne, and Oaks 

were all identified as employees of Jim Coleman Company. While in Houston for further meetings 

about the modular house, Dean and his wife were taken through the Jim Coleman Company 

facilities. A Jim Coleman Company draftsman drew up the blueprints for the house using the 
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facility’s AutoCAD. Dean was told Jim Coleman Company could manufacture and sell awnings 

as an option for the house. Dean testified, without contradiction, that he was never told Jim 

Coleman Company did not have anything to do with the manufacture of modular houses or that 

Living Modular was a separate company; he thought Living Modular and Jim Coleman Company 

were the same company, but “different wings”; and he thought he was dealing with a wellestablished national company that “was affiliated with — you know, it was all one big, happy 

family: Coleman, Coleman and Coleman.” 

We conclude the evidence is legally sufficient to support a finding under DTPA section 

17.46(b)(2) that Randy caused confusion as to the source, sponsorship, approval, or certification 

of Living Modular and the modular house. We also conclude the evidence is legally sufficient to 

support a finding under DTPA section 17.46(b)(3) that Randy caused confusion as to Living 

Modular’s affiliation, connection, or association with, or certification by, Jim Coleman Company. 

Accordingly, Randy did not establish error on the face of the record with regard to his liability 

under the DTPA. We next determine whether Jim Coleman Company is liable for any conduct by 

Randy that produced the same confusion or misunderstanding. 

On appeal, Jim Coleman Company asserts there is no evidence that (1) the actions of either 

Living Modular or Randy were the actions of Jim Coleman Company and (2) Randy or Living 

Modular had authority to bind Jim Coleman Company. The company contends none of the socalled representations establish it was “connected to” the sales transaction forming the basis of the 

suit.

A “DTPA claim based on sponsorship or approval is not dependent on any contractual 

relationship between the plaintiff and defendant.” Hennessey v. Vanguard Ins. Co., 895 S.W.2d 

794, 803 (Tex. App.—Amarillo 1995, writ denied). In Hennessey, one of the defendants 

contended it did not make any representations to the plaintiffs. The court stated as follows:
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If it is appellees’ contention that the DTPA requires an express false representation 

by Republic, and that acquiescence to the false representations of another is not

sufficient, we disagree. The purposes of the DTPA would be greatly frustrated by 

excusing those who knowingly permit consumers to be misled by false 

representations that they have given sponsorship or approval when they, in fact, 

have not. This is particularly true when there is a close relationship between the 

party making the representation and the party whose sponsorship or approval is 

being asserted. 

Id. at 804 (emphasis in original).

Here, there is no dispute about the close relationship between Randy and Jim Coleman 

Company based on the familial relationship and Randy’s employment by Jim Coleman Company. 

There is no dispute that Randy—a Jim Coleman Company employee and member of the Coleman 

family—was actively involved in the sale of the modular house to Dean. Randy, Wayne, and Oaks 

used Jim Coleman Company facilities and at least one other Jim Coleman Company employee 

drafted the blueprints. A reasonable jury could have inferred Jim Coleman Company acquiesced 

in the use of its facilities and employees for the purpose of selling the modular houses. Also, Dean 

believed Living Modular operated on Jim Coleman Company’s business premises. Finally, Randy 

told Dean that Jim Coleman Company could manufacture and sell awnings as an add-on option 

for the house. We conclude the evidence is legally sufficient to support the finding under DTPA 

section 17.46(b)(2) that Jim Coleman Company caused confusion as to the source, sponsorship, 

approval, or certification of Living Modular and the modular house.

6

 We also conclude the 

 6 Jim Coleman Company also asserts there is no evidence that it intentionally engaged in any false, deceptive or unfair 

act or practice. Section 17.46(b)(2) does not require a showing of intent. See Miller v. Keyser, 90 S.W.3d 712, 716 

(Tex. 2002) (“A consumer is not required to prove intent to make a misrepresentation to recover under the DTPA.”); 

Tex. Real Estate Comm’n v. Asgari, 402 S.W.3d 814, 819 (Tex. App.—San Antonio 2013, no pet.) (quoting Miller); 

Smith v. Herco, Inc., 900 S.W.2d 852, 859 (Tex. App.—Corpus Christi 1995, writ denied) (“Intent to misrepresent, or 

knowledge that a representation is untrue, has never been an element of a DTPA ‘laundry list’ claim unless the specific 

provision requires intent.”); see also Pennington v. Singleton, 606 S.W.2d 682, 689 (Tex. 1980) (“The ‘laundry list’ 

of violations in § 17.46(b) includes only four ‘acts or practices’ under which intent or knowledge is expressly required 

before a violation of the Act will be found: subdivisions (9), (10), (13), and (17). The legislature obviously was aware 

of the “intent” question since it did require intent or knowledge under these four subdivisions. Certainly if it meant 

for intent to be a requirement for all violations it would not have written it into four specific items without requiring 

it under the other subdivisions of § 17.46(b).”).
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evidence is legally sufficient to support a finding under DTPA section 17.46(b)(3) that Jim 

Coleman Company caused confusion as to Living Modular’s affiliation, connection, or association 

with, or certification by, Jim Coleman Company. 

Because the evidence is sufficient to support the jury’s finding that at least one of the 

laundry list prohibitions in section 17.46(b) was violated, we need not address appellants’ 

contentions as to the remaining alleged violations. McLeod v. Gyr, 439 S.W.3d 639, 650 (Tex. 

App.—Dallas 2014, pet. denied) (holding same); Main Place Custom Homes, Inc. v. Honaker, 192 

S.W.3d 604, 625 (Tex. App.—Fort Worth 2006, pet. denied) (same); see also TEX. R. APP. P. 47.1 

(opinion must address every issue necessary to final disposition of appeal).

D. Producing Cause

“A consumer may maintain an action where any of the following constitute a producing 

cause of economic damages or damages for mental anguish: (1) the use or employment by any 

person of a false, misleading, or deceptive act or practice that is: (A) specifically enumerated in a 

subdivision of Subsection (b) of Section 17.46 of this subchapter; and (B) relied on by a consumer 

to the consumer’s detriment . . . .” TEX. BUS. & COM. CODE § 17.50(a)(1). On appeal, Dean’s 

reliance and detriment is not specifically challenged. Instead, Jim Coleman Company asserts there 

is no evidence that its misconduct was a producing cause of Dean’s damages. 

Producing cause requires that the act be both a cause in fact and a substantial factor in 

causing the plaintiff’s injuries. Brown v. Bank of Galveston, 963 S.W.2d 511, 514 (Tex. 1998); 

Ibarra v. Nat’l Constr. Rentals, Inc., 199 S.W.3d 32, 35 (Tex. App.—San Antonio 2006, no pet.). 

A producing cause is an efficient, exciting, or contributing cause that in the natural sequence of 

events produces injuries or damages. Id. An act or omission is a cause in fact of an injury, if 

without it, the harm would not have occurred. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.

2005); Ibarra, 199 S.W.3d. at 35. Conversely, an act or omission is not a cause in fact if it does 
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no more than furnish a condition that makes the injury possible. Urena, 162 S.W.3d at 551; Ibarra, 

199 S.W.3d. at 36.

When asked for his impression about what would happen if Living Modular could not 

perform or if the Coleman brothers could not deliver the house, Dean replied: “Well, they were 

backed by — they billed as a nationwide company, the Jim Coleman Company, and that they were 

— they could build car washes all over the nation, they could surely build a concrete home to [sic] 

South Texas.” Dean stated the fact that Jim Coleman Company was a national company affected 

his decision to buy the house.

Considering the evidence in the light most favorable to the jury’s verdict, indulging every 

reasonable inference that would support it, crediting favorable evidence if a reasonable factfinder 

could, and disregarding contrary evidence unless a reasonable factfinder could not, we conclude

the evidence at trial would enable reasonable and fair-minded people to find that Dean invested in 

the modular house because he believed Jim Coleman Company—a national company—was 

affiliated with Living Modular. Therefore, the evidence is legally sufficient to support a finding

of producing cause.

DAMAGES

Appellants complain the trial court awarded damages in the amount of $47,659.38, but 

Dean pled for only $39,204. Appellants state Dean “should get his money back but only the money 

that he paid to Living Modular for the house that Living Modular failed to deliver and for” only 

the amount he pled in his petition.

Although a judgment must conform to the pleadings, any error in this regard is waived 

where the party fails to object to the amount of the judgment. Borden, Inc. v. Guerra, 860 S.W.2d 

515, 525 (Tex. App.—Corpus Christi 1993, writ dism’d); Siegler v. Williams, 658 S.W.2d 236, 

240-41 (Tex. App.—Houston [1st Dist.] 1983, no writ). The party making such an objection 
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should do so in a motion to limit the judgment to the amount pleaded or raise the issue in a motion 

for new trial. Id. Here, appellants did not move that the judgment be limited to the amount of the 

pleadings and did not raise this issue in a motion for a new trial. Therefore, this complaint is not 

preserved for our review on appeal.

Appellants also challenge the trial court’s award of additional damages under DTPA 

section 17.50, which allows a prevailing consumer to obtain three times the amount of economic 

damages if the trier of fact finds that the conduct of the defendant was committed knowingly. TEX.

BUS. & COM. CODE § 17.50(b)(1). Here, the trial court awarded three times the amount of 

economic damages, $142,978.14. Appellants assert the evidence is legally insufficient to support 

a finding that they acted knowingly. 

The jury was instructed that “knowingly” means “actual awareness of the falsity, 

unfairness, or deceptiveness of the act or practice. Actual awareness may be inferred if objective 

manifestations indicate that a person acted with actual awareness.” This instruction substantially 

tracks the definition of “knowingly” contained in the DTPA. See TEX. BUS. & COM. CODE

§ 17.45(9). Actual awareness may be inferred from the circumstances. K.C. Roofing Co. v. 

Abundis, 940 S.W.2d 375, 377 (Tex. App.—San Antonio 1997, writ denied); Century 21 Real 

Estate Corp. v. Hometown Real Estate Co., 890 S.W.2d 118, 128 (Tex. App.—Texarkana 1994, 

writ denied). However, an award of additional damages cannot be premised on conduct that is 

inadvertent. Century 21 Real Estate Corp., 890 S.W.2d at 128. 

Here, Randy handed Dean his Jim Coleman Company business card. Randy and Wayne 

both told Dean they were employees of Jim Coleman Company. Dean and his wife were shown 

through Jim Coleman Company’s facilities in Houston when the couple discussed purchasing a 

modular house. Randy and Wayne officed at Jim Coleman Company. A draftsman who worked 

at the company drew up the blueprints for the modular house. Models of the houses were on Jim 
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Coleman Company’s property in Houston, and the company could make and deliver optional 

awnings for the house. Although circumstantial, we believe this evidence is legally sufficient to 

support a finding that Randy and Jim Coleman Company acted knowingly.7

ATTORNEY’S FEES

Appellants assert the evidence in support of the award of attorney’s fees is legally 

insufficient because the testimony was “conclusory,” and the fees were not segregated among the 

three defendants and the two causes of action pled by Dean. Appellants did not raise a failure to 

segregate complaint before the trial court; therefore, that complaint is not preserved for our review 

on appeal. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (holding parties waive error 

regarding failure to segregate attorney’s fees by failing to object); see also TEX. R. APP. P. 33.1(a).

Dean presented two witnesses in support of his request for an award of attorney’s fees. 

Dean’s attorney, Charlie Webb, testified he believed a reasonable hourly rate for handling a case 

such as this one was $250 per hour for himself and $120 per hour for his associate. The trial court 

admitted into evidence a “Summary of Attorney’s Fees and Expenses” that detailed the date of the 

expense, the nature of the expense, and the name of the attorney and hours billed toward the 

expense. Webb also testified an additional 125 hours had been billed, which were not included on 

the summary, and he anticipated more fees would be billed until the conclusion of trial. Appellants 

did not challenge Webb at trial about the dates, nature of any expense, or the amount of time billed.

Dean also called Fred Dreiling as an expert. Dreiling, also an attorney, said he was familiar 

with the eight Arthur Andersen factors a factfinder may consider when determining the 

reasonableness of attorney’s fees.8

 Based on his evaluation of the services provided to Dean and 

 7 For this reason, we conclude Randy did not establish error on the face of the record with regard to damages. 

8 See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) ((1) the time and labor required, 

the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) 
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the eight factors, Dreiling testified $250 was a reasonable fee for a case such as this and a lawyer 

with Webb’s experience. Dreiling believed attorney’s fees in the range of $25,000 to $50,000 was 

appropriate for this case. Dreiling said his testimony would be the same for either the DTPA claim 

or the breach of contract claim. No questions were asked of Dreiling on cross-examination.

On this record, we conclude the evidence was not conclusory and was legally sufficient to 

support the award of attorney’s fees.9

JOINT AND SEVERAL LIABILITY

The trial court awarded identical sums against each defendant, and the judgment contains 

no joint and several liability language. In their final issue, appellants assert the judgment amounts 

to multiple recoveries for a single injury. On appeal, Dean agrees the injury sued upon was single 

and indivisible, but he contends there is nothing in the judgment to suggest it is anything other 

than a joint and several judgment. Because Living Modular, Randy, and Jim Coleman Company

are jointly and severally liable for the full amount of the trial court’s award (economic damages,

additional damages, interest, attorney’s fees, and court costs), the judgment should be modified to 

include joint and several liability.

CONCLUSION

For the reasons set forth above, we modify the judgment to include joint and several 

liability and affirm as modified.

Sandee Bryan Marion, Chief Justice

 

the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the 

fee customarily charged in the locality for similar services; (4) the amount involved and the results obtained; (5) the 

time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship 

with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) 

whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have 

been rendered).

9 For this reason, we conclude Randy did not establish error on the face of the record with regard to the award of 

attorney’s fees.