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 ELIANA MILLER, Appellants/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 evidence. 

Debo Homes, LLC cross-appeals to challenge the trial court’s judgment on grounds that 

(1) there is no evidence to support the jury’s finding of a violation of the Deceptive Trade 

Practices Act (DTPA); and (2) the trial court erroneously awarded the Millers prejudgment and post-judgment interest. We affirm the trial court’s judgment in part with 
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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 postjudgment interest.

BACKGROUND

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 Millers would pay $178,000

in three cash installments: one-third was to be paid up front, one-third was to be paid 

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

house 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 the Millers made their first $60,3001cash 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 to be fixed in 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 until 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.
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discovered additional problems with the home. Dominguez informed Laurel that Debo 

Homes would start installing drywall in the home on May 14, 2013. The Millers 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 Millers also hired attorney Brian Crockett, who 

sent an email to Debo 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 May 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 from [Debo Homes’s] attorney.” 

Debo Homes resumed construction in June 2013, and 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 of 
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the amount that the home 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 filed its original answer and counterclaim on November 13, 2013, 

alleging an affirmative defense of fraud, an affirmative defense of failure of consideration, 

and breach of contract as a counterclaim.

Debo Homes sold the house for $168,000 on October 19, 2013, 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 Homes or the Millers breached the contract; (2) found 

that Debo Homes engaged in a “false, misleading, or deceptive act or practice;” (3) 

awarded the Millers $60,650 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 September 

10, 2014. Debo Homes filed a motion to disregard the jury’s answer to Question No. 1 on 

September 23, 2014. 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, 2014. 

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 Homes 

timely filed its notice of cross-appeal on January 21, 2015.
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ANALYSIS

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 first issue that (1) there is no evidence its alleged 

representations were false; and (2) the assertedly false representations 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 substantial 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.
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Answer “Yes” or “No.”

Answer: Yes

As submitted, Question 1 provided multiple bases for the jury’s single “Yes” answer. On 

appeal, 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 

complained-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 independent 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 Blackstone 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 accept 

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. Blackstone Med., Inc., 470 S.W.3d at 648; 

Britton, 95 S.W.3d at 681. “The Supreme Court of Texas has repeatedly instructed that 

‘the courts of appeals may not reverse the judgment of a trial court for a reason 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 are 
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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 1345748, at *4.

Because any of the four independent bases 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. Pre-Judgment 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. of 

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 enabling statute, an award of prejudgment 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 within the 

trial court’s discretion. Republic Servs., Inc., 401 S.W.3d at 717. We review the trial 

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.
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“Prejudgment interest is awarded 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 additional 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, prejudgment 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 531; 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 Grp., Inc. v. Cheyenne Petroleum Co., 3 

S.W.3d 112, 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 owner.” 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 would constitute an impermissible double recovery. See id.

The Millers sued Debo Homes on October 7, 2013. Debo Homes deposited $60,300

into the court’s registry just five days before trial commenced in August 2014. The jury 

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 December 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 of 
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$60,650 awarded by the jury began to accrue on October 7, 2013 — the day the Millers 

filed suit — and continued 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.

Nonetheless, 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 court’s registry. Pre-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 an impermissible double recovery. See Martinez, 216 

S.W.3d at 808; cf. Republic 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 

amounts Debo Homes deposited into the registry before and after trial. Accordingly, we 

reverse the trial court’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 interest 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-judgment interest accrual date is October 7, 2013. We 

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.
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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 the 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 inflicted 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 compensation 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 the 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 deposited $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, contrary to Debo Homes’s

contention, this deposited amount does not include “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 reverse 
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the trial 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 pre-judgment interest from October 7, 2013, to December 22, 2014). We 

remand this case for a recalculation of the post-judgment interest to which the Millers are 

entitled. This recalculation should take into account (1) the correct amount of prejudgment 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.

II. 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 issues that the trial court erred by 

refusing to disregard the jury’s finding of zero attorney’s fees and denying their motion for 

judgment notwithstanding the verdict. They contend the evidence regarding their

attorney’s fees was clear, positive, direct, and uncontradicted 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 that were established as a matter of law” consisting of 

$63,000 for trial and $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.” Thus, 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 trial court may disregard a jury’s finding pursuant to Texas Rule of Civil 
12

Procedure 301 if no evidence supports the challenged findings or if a directed verdict 

would have been proper. See Tiller 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.). We apply the standards for a legal sufficiency review. See Wal–

Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (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 established 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. Only then may we sustain the legal sufficiency challenge. Id. at 319.

A legal sufficiency challenge 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 conclusively establishes 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-minded people to reach the verdict under review. Id. at 827. When 

reviewing legal sufficiency of the evidence, we consider the evidence in the light most 
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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 disregard 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 factfinder, who 

alone determines the credibility of the witnesses, the weight to give their testimony, and 

whether to accept or reject all or any part of that testimony. Id. at 822.

Jury Question 15 asked, without instructions or definitions, as follows:

QUESTION 15:

What is a reasonable fee for the necessary services of the Millers’ 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 Court 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) (“Statutes 

providing that a party ‘may recover,’ ‘shall be awarded,’ or ‘is entitled to’ attorney fees are 
14

not discretionary.”). Therefore, “[a]s a factual matter, 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) affirmatively showed that 

no attorney’s services were needed 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 Crockett testified that he entered into a hybrid 

contingency 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. Crockett testified that he was licensed to practice law in 2010. 

Crockett 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 reasonable 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 the jury, Crockett testified 

that he and Kanyha 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 DTPA 

claim, 7.1 hours on the breach of contract claim, and 6.8 hours on the fraud in a real estate 

transaction 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 appeal 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’ “purported attorney’s fees are of no value,” Crockett’s time spent on 

this 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 

offer 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 and we 

will refund you 100% of the money you have given us after we sell the house.” The letter 

clearly 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 money back. 

Debo Homes President and Owner Juan Carlos Hernandez testified that he would 

have written the Millers a check if they had asked for their 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 trial testimony 

because he stated: “[W]e say when we close on the house we give 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 away 
16

and give it to her and we done deal.”

Additionally, Debo 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 for 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 reimbursement 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 record before us does not establish that the Millers did not need the 

services of their attorneys 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 inherently inconsistent” and not 

free from contradiction; (2) “Crockett’s testimony was impeached;” (3) “Crockett 

misrepresented 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 was cross-examined and challenged;” and (7) 

Debo Homes’s attorney “presented rebuttal expert 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 that 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 this case. If the amount the Millers requested at trial 
17

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 their 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 Ragsdale 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 positive, 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 trier of fact, may award 

attorneys’ fees as a matter 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 evidence from one of their attorneys, Crockett, regarding the attorney’s 

fees Crockett considered reasonable and necessary. 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 worked 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 

many agreements;” the maximum amount of deposition time was used; and Debo Homes 

filed many motions.

With regard 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 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.

Conversely, Debo Homes attorney Craig Welscher testified that he, Nicholas 

Martinez, “another young attorney” named Cory, and paralegals have worked on the 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 time being a hundred an[d] fifty, we anticipate about 
19

$18,000 for preparation and working of this trial. Together with the 13,830 and 18, we are 

looking at charging o[u]r clients $31,830, for all this work.” Welscher submitted billing 

records as Exhibit Number 19.

Welscher also opined regarding reasonable and necessary fees for appellate 

proceedings: $20,000 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 pretrial and trial representation.

Based on the record before us, we conclude that the evidence does not conclusively 

establish a particular amount 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

in trial attorney’s fees and $40,000 in appellate fees. Accordingly, we will not reverse and 

render judgment in the Millers’ favor on the specific amount of attorney’s fees they sought 

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 Contractors, 

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 ground that 

amount of reasonable fees was not established as a matter of law).

Accordingly, we overrule the second issue and sustain the first and third issues.

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 unnecessary 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

CONCLUSION

We reverse the portion of the trial court’s judgment awarding the Millers zero 

attorney’s fees and remand this case for a new 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 consistent 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 postjudgment 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.