Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed September 27 , 2016.

In The



## Fourteenth Court of Appeals

NO. 14

- 15

- 00004

- CV

LAUREL MILLER AND EL IANA MILLER , Appellant s /Cross

- Appellees
V. DEBO HOMES, LLC , Appellee /Cross

- Appellant

On Appeal from the 400th District Court Fort Bend County, Texas Trial Court Cause No. 13

- DCV

- 209822

M E M O R A N D U M O P I N I O N Laurel and Eliana Miller appeal the trial court’ s denial of their motion for judgment notwithstanding the verdict and motion for new trial following a jury trial. They contend the jury’s award of zero attorney’s fees was improper and not supported by evide nce. Debo Homes, LLC cross

- appeals to challenge th e trial court’s judgment on grounds that (1) t here is no evidence to support the jury’s finding of a violation of the Dece ptive Trade Practices Act (DTPA) ; and (2) the trial court erroneously awarded the Millers pre

judgment and post

-

judgme nt interest. We affirm the trial court’s judgment in part with2 respect to the Millers’ DTPA claim and reverse and remand in part with respect to the trial court’s award of zero attorney’s fees and the trial court’s award of pre

- judgment and post

judgment interest

. B ACKGROUND
Debo Homes contracted with Laurel and her daughter Eliana in April 2013 to build a house for them in Needville, Texas . The parties agreed the Mi llers would pay $178,000 in th ree cash installments : one

- third was to be paid up front, one

- third was to be paid when t he house was ready for drywall installation, and one

- third was to be paid when the hous e was completed. The Millers had several meetings with Debo Homes salesman Kris Dominguez regarding the house’s specifications before signing the construction contract. Construction began in April 2013 , after t he Millers made their fi rs t $60,300 1 cash payment

. Laurel soon became concerned about the construction quality after she noticed broken or cracked boards and beams in the framing ; pipes and vents that were not connected ; uneven beams;

“ cracked things; ” “ wood just floating; ” and other “ things that didn’t look right

. ” Laurel hired a home inspector because she was “ uncomfortable with what [she] saw.” The inspector visited the construction site on May 9, 2013, and wrote a report describing the things that needed t o be fixed i n the home. Laurel met with Dominguez and gave him the inspector’s report. According to Laurel, Dominguez told her: “We’re going to fix some things. We’ re not going to fix everything.” Soon thereafter, Dominguez told Laurel that Debo Homes wanted to start installing the drywall and asked for the next installment payment of $59,300; Laurel told Dominguez that she was not going to make another payment unti l the problems with the home were fixed.

Laurel scheduled a second inspection on May 13, 2013, during which the inspector

1 The $60,300 payment was for the first installment of $59,300 and for $1,000 in earnest money.3 discovered additional problems with the home. Dominguez informed Laurel that Debo Homes would start installing drywall i n the home on May 14, 2013. The Mille rs wanted construction to stop until repairs were completed . The Millers sent an email to Dominguez outlining the repairs they wanted and informing Debo Homes that they would make no payment until all repairs were made. The Mi llers also hired attorney Brian Crockett , who sent an email to Deb o Homes on May 22, 2013. The email said the Millers retained him to investigate whether their home was being constructed in accordance with the contract and asked Debo Homes to stop further construction on the home to “ensure that any defects have been corrected prior to continued building.” After receiving Crockett’s email, Debo Homes stopped construction of the home for approximately three weeks.

Debo Homes sent the Millers a letter on Ma y 29, 2013, stating that (1) Debo Homes

“ fixed the minor issues [the Millers’ inspector] requested;” and (2) “[i]f you are not happy with our service, you are free to terminate the contract with Debo Homes and we will refund you 100% of the money you have given us after we sell the house.” According to Laurel, the Millers “ gave [Debo Homes] 90 days to sell the house” and “ tried to work it

out that it would happen within 90 days,” but the Millers “ never heard anything back from [ Debo Homes ] until [they] got a letter f r om [Debo Homes’ s ] attorney

. ”

Debo Homes resumed construction in June 2013 , an d the house was completed in July 2013. According to Debo Homes, all problems identified by the inspector were repaired. Debo Homes, through its attorney, sent a letter to the Millers on August 30, 2013, stating that (1) the Millers breached their contract with Debo Homes; and (2) if Debo Homes “is able to sell the home for at least $178,000.00, the sum your client agreed to pay plus all attorney[’]s fees, broker[ ’]s fees, interest paid, cost of necessary alterations to make the home marketable, and other expenses associated with mitigation of the damages, she may receive a reimbursement of the amount she paid to him . . . [a]ny diminution of4 the amount that the ho me sells for will be directly reflected in the reimbursement.”

The Millers sued Debo Homes on October 7, 2013, alleging fraud and fraudulent inducement to contract, fraud in a real estate transaction, DTPA violations, and breach of

contract. Debo Homes fi led its original answer and counterclaim on November 13, 2013, alleging an a ffirmative defense of fraud, an affirmative defense of failure of consideration, and breach of contract as a counterclaim.

Debo Homes sold the house fo r $168,000 on October 19, 201 3, and closed on the sale on December 31, 2013. Debo Homes deposited $60,300 into the court ’s registry on August 14, 2014. A jury trial began five days later and concluded on August 22, 2014. The jury (1) answered “No” to questions asking whether Debo Ho mes or the Millers breached th e contract ; (2) found that Debo Homes engaged in a “false, misleadin g, or deceptive act or practice; ” (3) awarded the Millers $6 0 ,650 in compensatory damages ; and (4) awarded zero dollars for attorney’s fees. The compensatory damages consisted of $1,000 paid by the Millers as earnest money, $59,300 paid as an installment payment, and $350 paid for fixtures

. The Millers filed a motion for judgment notwithstanding the verdict on Septem ber 10, 2014 . Debo Homes fi led a motion to disregard the jury’s answer to Question No. 1 on September 23, 20 14. The trial court denied both motions on September 29, 2014. The Millers filed a motion for new trial on September 30, 2014, which the trial court denied on October 20, 20 14. On December 22, 2014, the trial court signed a final judgment in accordance with the jury’s verdict and also awarded the Millers pre

- judgment and post

-

judgment interest. The Millers filed a timely notice of appeal on December 31, 2014, and Debo Home s timely filed its notice of cross

- appeal on January 21, 2015.5 A NALYSIS
I. Debo Homes’ s Appeal

We first address the issues Debo Homes raises in its cross

- appeal before turning to the issues the Millers raise in their appeal.

A. DTPA Claim

Debo Homes argues in its firs t issue that (1) there is no evidence its alleged representations were false; and ( 2) the assertedly false r epresentations were non

- actionable puffery. The jury was asked to answer the following question regarding the Millers’ DTPA claim: QUESTION 1: Did Debo [Homes] engage in any false, misleading, or deceptive act or practice that the Millers relied on to their detriment and that was a producing cause of damages to the Millers? “Producing cause” means a cause that was a substantia l factor in bringing about the damages, if any, and without which the damages would not have occurred. There may be more than one producing cause. “False, misleading, or deceptive act or practice” means any of the following: 1. Representing the Home, construction, supervision or Agreement had sponsorship, approval, characteristics, uses, or benefits or qualities that it did not have; or 2. Representing the Home, construction, supervision or Agreement were a particular quality, if it was of another; or 3. Representing that the Agreement confers or involves rights that it did not have or involve; or 4. Failing to disclose information about the Home, construction, supervision, performance or agreement that was known at the time of the transaction with the intention to induce the Millers into a transaction they otherwise would not have entered into if the information had been disclosed.6

Answer “Yes” or “No.” Answer: Yes As submitted, Question 1 provided multiple bases for the jury’s single “Yes” answer. On

a ppeal, Debo Homes attacks only the first three bases in Question 1 under which the jury could have found a DTPA violation. Debo Homes does not attack the fourth basis. An appellant must attack all independent bases or grounds that fully support a compla in ed

- of ruling or judgment. Blackstone Med., Inc. v. Phoenix Surgicals , L.L.C

. , 470 S.W.3d 636, 648 (Tex. App.

— Dallas 2015, no pet.); see State Farm Lloyds v.
Fuentes , No. 14

- 14

- 00824

- CV, 2016 WL 1389831, at *3 (Tex. App.

— Houston [14th Dist.] Apr

. 7, 2016, pet. filed) (mem. op.); Cont’l Carbon Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh , No. 14

– 11

– 00162

– CV, 2012 WL 1345748, at * 4 (Tex. App.

— Houston [14th Dist.] Apr. 17, 2012, no pet.) (mem. op.)

. The rule requiring an appellant to attack all in dependent grounds supporting a judgment has been applied in many contexts, including independent jury findings fully supporting a trial court’ s judgment. Fuentes , 2016 WL 1389831, at *3; see Blackston e Med., Inc. , 470 S.W.3d at 649

- 50; Britton v. Tex. Dep ’t of Criminal Justice , 95 S.W.3d 676, 682 (Tex. App.

— Houston [1st Dist.] 2002, no pet.). If an independent ground fully supports the complained

- of ruling or judgment, but the appellant assigns no error to that independent ground, an appellate court must a ccept the validity of that unchallenged independent ground, and any errors in the grounds challenged on appeal are harmless because the unchallenged independent ground fully supports the complained

- of ruling or judgment. Blackston e Med., Inc. , 470 S.W.3d at 648;
Britton , 95 S.W.3d at 681. “ The Supreme Court of Texas ha s repeatedly instructed that

‘ the courts of appeals may not reverse the judgment of a trial court for a reaso n not raised . . . [on appeal]

. ’ ” Cont’l Carbon Co. , 2012 WL 1345748 , at * 4 (quoting Walling v. Metcalfe , 863 S.W.2d 56, 58 (Tex. 1993) ); see also Britton , 95 S.W.3d at 681. “ We are7 thus prohibited from altering even an erroneous judgment in a civil case without a challenge to the error on appeal .” Cont’l Carbon Co. , 2012 WL 134 5748, at *4.

Because any of the four independent base s in Question 1 support the jury’s finding of a DTPA violation , we must accept its validity and affirm the judgment on that fourth independent basis

. Accordingly, we overrule Debo Homes’ s first issue.

B. P re - J ud gment Interest Debo Homes argues in its second issue that pre

- judgment interest should not be assessed on funds that were deposited into the registry of the court. According to Debo Homes, “[I ]t is uncontroverted that Debo [Homes] deposited the entire amount of the jury’s $60,650.00 verdict into the registry of the court

. ” There are two sources in Texas law for the award of pre

- judgment interest: (1) general principles of equity; and (2) an enabling statute. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc. , 962 S.W.2d 507, 528 (Tex. 1998) ; Hand & Wrist Ctr. o f Houston, P.A. v. Republic Servs., Inc. , 401 S.W.3d 712, 717 (Tex. App.

— Houston [14th Dist.] 2013, no pet.)

. Statutory provisions for pre

- judgment interest apply only to cases involving claims of wrongful death, personal injury, property damages, and condemnation.
Lee v. Lee , 47 S.W.3d 767, 799

- 800 (Tex. App.

— Houston [14th Dist.] 2001, pet. denied). Because the claims in this case do not fall within any en abling statute, an award of pre

judgment interest is governed by common law. Id . at 800; see Republic Servs., Inc. , 401 S.W.3d at 717. Where no statute controls, the decision to award pre

- judgment interest is withi n the trial court’s discretion. Republic Servs., Inc. , 401 S.W.3d at 717. We review the t rial court’ s award of prejudgment interest for abuse of discretion. Id

. A trial court abuses its discretion when it fails to analyze or apply the law correctly. Id

.8

“Prejudgment interest is award ed to fully compensate the injured party, not to punish the defendant.” Brainard v. Trinity Universal Ins. Co. , 216 S.W.3d 809, 812 (Tex. 2006); see also Ventling v. Johnson , 466 S.W.3d 143, 149 (Tex. 2015). “It is ‘compensation allowed by law as additio nal damages for the lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment.’” Brainard , 216 S.W.3d at 812 (quoting Kenneco Energy, Inc. , 962 S.W.2d at 528 ). “[U]nder the common law, prejudg ment interest begins to accrue on the earlier of (1) 180 days after the date a defendant receives written notice of a claim or (2) the date suit is filed. ” Kenneco Energy, Inc. , 962 S.W.2d at 5 31; Lee , 47 S.W.3d at 800. Pre

- judgment interest should not be assessed on funds during the time that they were deposited into the registry of the trial court. Browning Oil Co. v. Luecke , 38 S.W.3d 625, 648 (Tex. App.

— Austin 2000, pet. denied); Pegasus Energy G rp., Inc. v. Cheyenne Petroleum Co. , 3 S.W.3d 1 12, 125 (Tex. App.

— Corpus Christi 1999, pet. denied)

. Funds that are deposited into the registry are “‘held in trust for the litigant who establishes his right thereto,’ and interest accrues to its ultimate o wner.” State Farm Life Ins. Co. v. Martinez , 216 S.W.3d 799, 808 (Tex. 2007) (quoting Sellers v. Harris Cty. , 483 S.W.2d 242, 243 (Tex. 1972)). Allowing a party to recover interest on proceeds in the registry and pre

- judgment interest at the same time wo uld constitute a n impermissible double recovery. See id

. T he Millers sued Debo Homes on October 7, 2013. Debo Homes deposited $60,300
into the court ’s registry just fi ve days before trial commenced in August 2014. The jur y awarded the Millers $60,650 in damages. Ten days before the trial court signed its final judgment on December 22, 2014 , Debo Homes deposited another $350 into the court registry. The trial court awarded the Millers $3,663.92 in pre

- judgment interest from October 7, 2013 to Decembe r 22, 2014, on the full amount of damages the jury awarded.

Pre

- judgment interest to compensate the Millers for the lost use of the full amount of9 $60,650 awarded by the jury began to accrue on October 7, 2013

— the day the Millers filed suit

— and cont inued to accrue until Debo Homes made a partial payment into the

court ’s registry on August 14, 2014. 2 See Republic Servs., Inc. , 401 S.W.3d at 718. Debo Homes cannot avoid liability for pre

- judgment interest altogether by paying part of the Millers’ damages award before the trial court signed its judgment

. See id

. N onetheless , the trial court incorrectly applied the law in computing pre

- judgment interest because it did not take into account Debo Homes’ s deposit of part of the damages award into the c ourt’s registry . P re

- judgment interest accrued on the full damages award of $60,650 only until Debo Homes deposited $60,300 on August 14, 2014

. See id

. Allowing the Millers to recover pre

- judgment interest on the full $60,650 as well as interest on the $60,300 deposited by Debo Homes into the registry before trial and $300 deposited after trial would constitute a n impermissible double recovery. See Martinez , 216 S.W.3d at 808; cf. R epublic Servs., Inc. , 401 S.W.3d at 722

- 23. Therefore, we hold that the trial court abused its discretion by awarding the Millers $3,663.92 in pre

-

judgment interest on the full $60,650 from October 7, 2013 until December 22, 2014, without taking into account the interest accrued to the Millers on

am ounts Debo Homes deposited into the registry before and after trial. Accordingly, we reverse the trial cour t’s judgment awarding the Millers $3,663.92 in pre

- judgment interest and remand this case to the trial court for a redetermination of pre

- judgment i nterest taking into account Debo Homes’ deposits into the registry.

C. Post

- Judgment Interest
Debo Homes contends in its third issue that “a tender into the registry of the trial court of all sums due under the judgment is a means of halting post

- judgment interest” and

2 Debo Homes does not dispute that the pre

- judg ment interest accrual date is October 7, 2013. W e have not found any evidence in the record that the Millers gave Debo Homes written notice of their claim before they filed suit on October 7, 2013.10 Debo Homes “ deposited all $60,650 .00 of the judgment into the trial court registry before the trial court rendered judgment. ” We review the trial court’s decision regarding th e assessment of post

- judgment interest for an abuse of discretion. DeGroot v. DeGroot , 369 S.W.3d 918 , 926 (Tex. App.

— Dallas 2012, no pet.). “ Post

- judgment interest is not a punishment i nflicted on a judgment debtor

. . . . ” Miga v. Jensen , 96 S.W.3d 207, 212 (Tex. 2002). “ Instead, like
pre

- judgment interest, post

- judgment interest is simply compe nsation for a judgment creditor’ s lost opportunity to invest the money awarded as damages at trial. ” Id

. ; see Ventling , 466 S.W.3d at 149. “ Postjudgment interest, which begins accruing on the date the judgment is rendered, not only compounds annually but also accrues on prejudgment interest. ” Ventling , 466 S.W.3d at 149. “[A] tender into the registry of t he trial court of all sums due under the judgment is a means of halting post

- judgment interest.” Breault v. Psarovarkas , No. 01

- 01

- 00122

- CV, 2003 WL 876651, at *7 (Tex. App.

— Houston [1st Dist.] Feb. 28, 2003, pet. denied) (mem. op.). Debo Homes deposite d $60,650 into the court ’s registry by December 12, 2014

— ten days before the trial court signed its final judgment. This is the exact amount the jury awarded the Millers in damages on their DTPA claim . But, c ontrary to Debo Homes’ s contention, t his dep osited amount does not includ e “all sums due under the judgment .” “All sums due under the judgment” include not only compensatory damages a jury awards but also pre

-

judgment interest. Cf. Ventling , 466 S.W.3d at 149. Therefore, a tender of $60,650 into the court ’s registry cannot halt all post

- judgment interest.

Because Debo Homes did not deposit any amount for pre

- judgment interest, Debo Homes did not halt all post

- judgment interest. The Millers therefore are entitled to some amount of post

-

judgment interest , although the exact amount of post

- judgment interest will have to be determined considering the trial court’s recalculation of pre

- judgment interest the Millers are entitled to receive, as we discussed in issue two . Accordingly, we reverse11 the tr ial court’s judgment awarding the Millers post

- judgment interest on the sum of $64,313.92 (consisting of the jury’s damages award of $60,650 and the trial court’s award of $3,663.92 in pr e

-

judgment interest from October 7, 2013 , to December 22, 2014) . W e

re mand this case for a recalcula tion of the post

- judgment interest to which the Millers are entitled . This recalculation should take into account (1) the correct amount of pre

judgment interest the Millers are due , as we have discussed in issue two; and ( 2) Debo Homes’ s deposit of $60 ,650 into the court ’s registry.

I I

. The Millers’ Appeal We now turn to the three issues the Millers raise in their appeal.

A. Attorney’s Fees The Millers argue in their first and second issue s that the trial court erred by refusing to disregard the jury’s finding of zero attorney’s fees and denying their motion for judgment not withstanding the verdict. They contend the evidence regarding their attorney’s fees was clear, positive, direct, and u ncontradicted by other witnesses ; accordingly, they contend that they proved pretrial, trial, and appellate attorney’s fees as a matter of law. The Millers ask this court to “reverse and modify the trial court’s judgment to include the attorney’s fees tha t were established as a matter of law ” consisting of $63,000 for trial an d $40,000 for appeal

. The Millers argue in their third issue that the trial court erroneously denied their motion for new trial “because there is evidence that the Millers incurred at least some pretrial, trial, or appellate attorney’s fees.” T hus , they contend “ the zero attorney’s fee finding is either not supported by the evidence , or is against the great weight and preponderance of the evidence. ” The Millers ask this court to reverse and remand for a new trial to determine their reasonable and necessary attorney’s fees.

A t rial court may disregard a jury’ s finding pursuant to Texas R ule of Civil12 Procedure 301 if no evid ence supports the challenged findings or if a directed v erdict would have been proper. See T iller v. McLure , 121 S.W.3d 709, 713 (Tex. 2003); Rosenblatt v. Freedom Life Ins. Co. of Am. , 240 S.W.3d 315, 318 (Tex. App.

— Houston [1st Dist.] 2007, no pet

. ). W e apply the standards for a legal sufficiency review. See Wal

– Mart Stores, Inc. v. Miller , 102 S.W.3d 706, 709 (Tex. 20 03) (per curiam) ; Rosenblatt , 240 S.W.3d at 318 ; see also City of Keller v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005) (“[T]he test for legal sufficiency should be the same for summary judgments , directed verdicts, judgments notwithstanding the verdict, and appellate no

- evidence review.”)

. As the parties who sought attorney’s fees and therefore carried the burden of proof, the Millers must demonstrate on appeal that the evidence conclusively esta blished all vital facts in support of their claim as a matter of law. See Rosenblatt , 240 S.W.3d at 318 ; see also MNC Spring Shadows, L.P. v. Kearney, L.L.C. , No. 14

- 10

- 01180

- CV, 2011 WL 4794949, at *2 (Tex. App.

— Houston [14th Dist.] Oct. 11, 2011, no pet ) (mem. op.); Cale’s Clean Scene Carwash, Inc. v. Hubbard , 76 S.W.3d 784, 786 (Tex. App.

— Houston [14th Dist.] 2002, no pet.). In reviewing a legal sufficiency challenge by the party who had the burden of proof at trial, the dispositive inquiry is whether the record establishes a proposition that contradicts the jury’s finding as a matter of law. Rosenblatt , 240 S.W.3d at 318

- 19

. Onl y then may we sustain the legal sufficiency challenge. Id

. at 319.

A le gal sufficiency challen ge must be sustained when : (1 ) there is complete absence of a vital fact; (2) the rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; and (4) the evidence con clusively establishe s the opposite of a vital fact. City of Keller , 168 S.W.3d at 810

. The test for legal sufficiency is whether the evidence at trial would enable reasonable and fair

- mind ed people to reach the verdict under review. Id . at 827. When reviewing legal sufficiency of the evidence, we consider the evidence in the light most13 favorable to the verdict and indulge every reasonable inference to support it. Id . at 822. We credit favorable evidence if a reasonable juror could do so and di sregard contrary evidence if a reasonable juror could not credit it. Id . at 827. If the evidence falls within the zone of reasonable disagreement, we may not invade the role of the fact finder, who alone determines the credibility of the witnesses, the we ight to give their testimony, and whether to accept or reject all or any part of that test imony. I d

. at 822. Jury Question 15 asked, with out instructions or definitions, as follows: QUESTION 15: What is a reasonable fee for the necessary services of the M illers’ attorney, stated in dollars and cents? Answer with an amount for each of the following:

a. For representation in the trial court. Answer: 0 b. For representation through appeal to the Court of Appeals. Answer: 0

c. For representation at the petition for review stage in the Supreme Court of Texas

. Answer: 0 d. For representation at the merits briefing stage in the Supreme Court of Texas. Answer: 0

e. For representation through oral argument and the completion of proceedings in the Supreme Cour t of Texas. Answer: 0 The Millers prevailed on their DTPA action against Debo Homes, and the jury awarded them $60,650 in damages. “Each consumer who prevails shall be awarded court costs and reasonable and necessary attorneys’ fees.” Tex . Bus. & Com. Code Ann. § 17.50( d) (Vernon 2011) ; see also Bocquet v. Herring , 972 S.W.2d 19, 20

- 21 (Tex. 1998) (“ S tatutes providing that a party ‘may recover , ’ ‘shall be awarded , ’ or ‘is entitled to’ attorney fees are14 not discretionary. ”). Therefore, “[ a ] s a factual m atter, a zero award for attorney’ s fees would have been proper if the evidence: (1) failed to prove (a) that any attorney’ s services were provided; or (b) the value of the services provided; or (2) affirm atively showed that no attorney’ s services were nee ded or that any services provided were of no value. ” Hubbard , 76 S.W.3d at 787 ; see also Meek v. Onstad , 430 S.W.3d 601, 608 (Tex. App.

— Houston [14th Dist.] 2014, no pet.)

. The Millers’ attorney Brian Crocket t testified that he entered into a hybrid conti ngency contract with the Millers and worked on the Millers’ case for about a year and a half . Under the contract, the Millers agreed to pay 45 percent of the verdict obtained after trial as attorney’s fees. Crocket t testified that he was licensed to practice law in 2010. Crocket t testified that he and William Kanyha, another attorney in his firm who had practiced law for nearly two years, have handled construction defect cases throughout Texas and that a r easonable and necessary fee is $250 per hour in Fort Bend County for handling construction defect cases . He described the general services and pretrial work he and Kanyha performed

. Although no bills were presented to th e jury , Crockett testified that he and Kanyh a worked 193.2 hours on the Millers’ DTPA, breach of contract, and fraud in a real estate transaction claims

— claims for which attorney’s fees are recoverable. Crockett testified that he reviewed each entry and segregated the hours for each of the three claims ; he stated that he and Kanyha worked 179.3 hours on the D TPA claim , 7.1 hours on the breach of contract claim, and 6.8 hours on the fraud in a real estate

t ransaction claim. Crockett testified that out of the 179.3 hours spent on the DTPA claim, he worked 150.2 hours for a total of $37,500 and Kanyha worked 29.1 hours for a total of $7,275

. Regarding the trial itself, Crockett testified that he and Kanyha spent 10 hours each day during the four

- day trial representing the Millers. Crockett testified that the time spent would equate to 80 hours for him and Kanyha at $250 per hour for a total of $20,000

.15 Crockett also opined regarding reasonable and necessary fees for appellate proceedings as follows: $20,000 in the event of an ap peal to a court of appeals; $10,000 if a petition for review is filed in the Supreme Court of Texas; and $10,000 if the petition for review is granted.

Debo Homes contends that the jury’s award of zero attorney’s fees was proper because the Millers’ “purpo rted attorney’s fees are of no value , ” Crockett’s time spent on

t his case was “ patently worthless ,” and “Crockett’s services were unnecessary for the Millers to obtain their $60,650.00” when Debo Homes “offered the Millers all of their money back” before a lawsuit was filed. Debo Homes contends that it sent a letter to the Millers on May 29, 2013, offering them “all of their money back” so that litigation was
unnecessary. Contrary to Debo Homes’ s assertion, its May 29, 2013 letter did not unconditionally

o ffer to give the Millers all their money back so that attorney services were unnecessary and of no value. In its May 29 letter, Debo Homes stated as follows: “ If you are not happy with our service, you are free to terminate the contract with Debo Homes a nd we will refund you 100% of the money you have given us after we sell the house. ” The letter cle arly stated that Debo Homes would refund the Millers’ money only after it sold the house; thus, Debo Homes did not unconditionally offer the Millers their mo ney back.

Debo Homes President and Owner Juan Carlos Hernandez testified that he would have written the Millers a check if they had asked for the ir money back but he never heard from the Millers and only heard from their attorney. This testimony contradicts Debo Homes’ s May 29 letter , in which Debo Homes told the Millers it would refund the money only after it sold the house

. Hernandez’s testimony also contradicts other t rial testimony because he stated: “[W] e say when we close on the house we g ive you your money back. So we never talk to her. She never come to me say hey, you closing the house already. I need my money back. She come and approached me I guarantee I make a check right away16 and give it to her and we done deal. ” Additionally, Deb o Homes modified its May 29 offer before it sold the house

. It did

so when its attorney sent a letter to the Millers’ attorney on August 30, 2013, stating: “If [Debo Homes] is able to sell the home fo r at least $178,000.00, the sum your client agreed

to pay plus all attorney [’] s fees, brokers fees, interest paid, cost of necessary alterations to make the home marketable, and other expenses associated with mitigation of the damages, she may receive a reimburseme nt of the amount she paid to [Debo Homes] . .

. . Any diminution of the amount that the home sells for will be directly reflected in the reimbursement. ”
Therefore, the re cord before us does not establish that the Millers did not need the services of their attorney s or that the services had no value

. Debo Homes also contends that the Millers are not entitled to any attorney’s fees because (1) “ Crockett ’s testimony on the hours billed is i nherently inconsistent ” and not free from contradiction; (2) “Crockett’s testimony was impeached;” (3) “Crockett

m isrepresented to the jury that he is a ‘construction defects’ attorney ” when the “main part of his practice [is] personal injury;” (4) the Millers ’ purported trial attorney’s fees exceed the jury’s damages award; (5) the Millers presented no billing records for attorney’s fees and the “failure to produce attorney’s bills affects the weight of a witness’ [s] testimony on attorney’s fees ; ” (6) “Crockett’s testimony wa s cross

- examined and challenged; ” and (7) Debo Homes’ s attorney “ presented rebuttal expe rt testimony on attorney’s fees. ”

None of these considerations support a zero attorney’s fee finding . Debo Homes’ s contentions may affect the amount of attorney’ s fees a jury may award , but they do not establish tha t no attorney’s services were needed or that the services of the Millers’ attorneys had no value

. Further, it is clear from the record before us that some amount of attorney’s services was necessary, and therefore some amount of fees was reasonable , to successfully represent the Millers in thi s case. If the amount the Millers requested at trial17 was unreasonable, the appropriate response to the jury question on attorney’s fees would have been to enter an amount that was reasonable

— not a zero response indicating that no amount was reasonable. See Hubbard , 76 S.W.3d at 787 ; see also Smith v. Patrick W.Y.
Tam Trust , 296 S.W.3d 545, 548 (Tex. 2009)

. We therefore find no evidence to support the jury finding that the value of the work necessary to represent the Millers in this case was either not proved or zero. See Hubbard , 76 S.W.3d at 787. We thus turn to the Millers ’ assertion that they proved t heir attorney’s fees as a matter of law. Generally, the testimony of an interested witness, such as a party to the suit, although not contradicted, does no more than raise a fact issue for the factfinder’s determination. Smith , 296 S.W.3d at 547 (citing R agsdale v. Progressive Voters League , 801 S.W.2d 880, 882 (Tex. 1990)). As an exception to this rule, when “the testimony of an interested witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct and posi tive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon, it is taken as true, as a matter of law.” Id

. (quoting Ragsdale , 801 S.W .2d at 882). “‘ The court, as a tri er of fact, may award attorney s ’ fees as a matt er of law in such circumstances, especially when the opposing party has the means and opportunity of disproving the testimony or evidence and fails to do so. ’” Id . (quoting Ragsdale , 801 S.W.2d at 882). Here, there was competing evidence regarding the amount of fees that would be reasonable and necessary in pursuing the Millers’ suit. As we have outlined above, the Millers introduced evid ence from one of their attorney s, Crockett, regarding the attorney’s fees Crockett considered reasonable and necessa ry. Crockett testified that he and Kanyha practiced law for four and two years respectively and that $250 per hour is a reasonable and necessary fee in Fort Bend County for handling construction defect cases . Crockett testified that he and Kanyha worked pretrial 179.3 hours on the DTPA claim, 7.1 hours on the breach of contract claim, and 6.8 hours on the fraud in a real estate transaction claim.18 Crockett testified that out of the 179.3 hours spent on the DTPA claim, he worke d 150.2 hours for a total of $37,500
, and Kanyha worked 29.1 hours for a total of $7,275. Crockett testified that the time spent on the case reflected the additional effort necessary to prepare and try the case; “every defense was asserted;” the parties “pretty much didn’t have too

m any agreements;” the maximum amount of deposition time was used; and Debo Homes filed many motions.

With r egard to trial , Crockett testified that he and Kanyha spent 10 hours each day during the four

- day trial representing the Millers. Crockett testified that this would equate to 80 hours for him and Kanyha at $250 per hour for a total of $20,000. Also, Crockett testified that the following would be reasonable and necessary fees for appellate proceedings : $20,000 in the event of an appeal to a court of a ppeals; $10,000 if a petition for review is filed in the Supreme Court of Texas; and $10,000 if the petition for review is granted. Conversely, Debo Homes attorney Craig Wel s cher testified that he, Nich olas Martinez, “ another young attorney ” named Cory, a nd paralegals have worked on th e case for Debo Homes . He testified that he has practiced law for 33 years, Cory has practiced for six years, and Martinez has practiced for one year . Welscher opined that his law firm charges customary fees for Fort Bend County as follows: $350 per hour for partners; $250 per hour for senior associates; $150 per hour for “young associates;” and $100 per hour for paralegals. Welscher testified that his firm charged Debo Homes $13,830 in attorney’s fees for the pretrial work that was performed. He stated , “That consisted of roughly eight hours for

me at 350, 53 hours for Nick at a hundred and fifty, eight hours for an assistant attorney at $250 an hour, and roughly 10 to 11 hours for a paralegal. ” Welscher testified that he and Martinez spent ten hours each on trial preparation and trial. He stated, “ So with four days of Nick and I, my time being 350, his t ime being a hundred an[d] fifty, we anticipate about19 $18,000 for preparation and working of this tria l. Together with the 13,830 and 18, we are looking at charging o [u] r clients $31,830, for all this work. ” Welsche r submitted billing records as Exhibit N umber 19. Welscher also opined regarding reasonable and necessary fees for appellate proceedings: $2 0,000 in the event of an appeal to a court of appeals; $5,000 if a petition for review is filed in the Texas Supreme Court; $20,000 to file a brief in the Texas Supreme Court; and $20,000 to present argument in the Texas Supreme Court. Welscher
concluded his testimony by stating that, for this type of case, $31,830 constitutes a reasonable and necessary fee for pr etrial and trial representation. Based on the record before us, we conclude that the evidence does not conclusively establish a particular amoun t that was a reasonable and necessary amount of attorney’s fees. Therefore, the trial court properly denied the Millers ’ request to award them $ 63,000 i n trial attorney’s fees and $40,000 in appellate fees . Accordingly, we will not reverse and render judgment in the Miller s’ favor on the specific amount of attorney’s fees t hey s ought in the trial court . Instead, we will reverse and remand this case for a new trial on attorney’s fees. See Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning Contrac tors, Inc. , 300 S.W.3d 738, 739

- 40 (Tex. 2009) (per curiam) ( reversing judgment relative to jury’s award of zero attorney ’s fees in absence of affirmative showing that no services were needed or services were of no value, but remanding for new trial on gro und that amount of reasonable fees was not established as a matter of law ).

Acco rdingly, we overrule the seco nd issue and sustain the first and third issue s

. 3

3 Debo Homes also argued in its brief that the Millers are not entitled to a new trial on attorney’s fees because there is “some evidence” that attorney’s fees were unnece ssary as Crockett (1) “admitted that attorney’s fees were of no value;” and (2) “told the jury he was not retained by the Millers” when he “denounced his employment with them.” We reject Debo Homes’ s contentions because they are unsupported by the record.20 C ONCLUSION
We reverse the portion of the trial court’s judgment awarding t he Millers zero attorney’s fees and remand this case for a n ew trial on attorney’s fees. We reverse the trial court’s judgment awarding the Millers pre

- judgment interest in the amount of $3,663.92 and remand this case for a recalculation of pre

- judgment interest consiste nt with this court’s opinion. We reverse the trial court’s judgment awarding the Millers post

- judgment interest on the sum of $64,313.92 and remand this case for a recalculation of post

judgment interest consistent with this court’s opinion. We affirm the trial court ’s judgment in all other respects

.

/s/ William J. Boyce Justice

Panel consists of Chief Justice Frost and Justices Boyce and Wise

.