Texas Judiciary Online - HTML Opinion

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Opinion issued August = 2,=20 2007

In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-05-01107-CV

MICHAEL = ROSENBLATT,=20 Appellant

FREEDOM = LIFE=20 INSURANCE COMPANY OF AMERICA, Appellee

On = Appeal from the=20 295th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 2001-47519

O P I N I O=20 N

This is a single-issue appeal = premised on=20 a partial reporter's record. See Tex. R. App. P. = 34.6(c)(1).=20 Appellant, Michael = Rosenblatt,=20 challenges denial of his motion to set aside jury findings that = resulted=20 in no recovery on Rosenblatt's request for an award of attorneys' = fees.=20 Rosenblatt contends that an award of $500,000 in attorneys' fees = was=20 proper, notwithstanding the jury's verdict, and contends that we = are=20 compelled to render judgment in his favor as a matter of law, = because (1)=20 he was statutorily entitled to attorneys' fees and (2) the = evidence=20 supporting his request for attorneys' fees is uncontroverted. = See=20 Tex. R. Civ. P. 301 (authorizing judgment notwithstanding = verdict).=20 Because Rosenblatt seeks only rendition, and not a remand for = trial, we=20 conclude there is no reversible error and affirm.

Background

Rosenblatt is a former agent = for=20 appellee, Freedom Life Insurance Company of America.^{=20
(1)} After sustaining injuries in a July 1999 automobile=20 accident, Rosenblatt asserted claims for healthcare benefits from = Freedom=20 Life. Rosenblatt sued Freedom Life, seeking damages for the = company's=20 delays in investigating his claims and in paying him compensation. =

Rosenblatt filed suit on = September 1,=20 2001 and amended his pleadings six times to assert varied = common-law=20 theories and multiple claims under the Insurance Code and the = Deceptive=20 Trade and Consumer Practices Act. Freedom Life obtained a partial = summary=20 judgment that narrowed these claims before the seven-day trial = began, and=20 the disputed issues narrowed further during trial. The case was = ultimately=20 submitted to the jury on Rosenblatt's common-law claim for bad = faith and=20 his claim that Freedom Life violated former article 21.21, section = 4(10)(a)(v)(A) of the Insurance Code and committed an unfair = settlement=20 practice by failing to affirm or deny coverage within a reasonable = time.^{=20
(2)}

The jury rejected Rosenblatt's = common-law=20 claim, but found, in response to the Insurance Code question, that = Freedom=20 Life "fail[ed] to affirm or deny coverage of a claim within a = reasonable=20 time." The jury awarded Rosenblatt $10,000 in damages for future = physical=20 impairment and $20,000 for conduct committed knowingly. The jury = awarded=20 no damages for past and future mental anguish, physical pain, = medical=20 bills, and past physical impairment. In addition, and as = challenged here,=20 the jury awarded no ("zero") damages, in response to a = three-pronged=20 question concerning attorneys' fees, for trial, appeal to this = Court, and=20 appeal to the Supreme Court of Texas.

After denying motions to = disregard the=20 jury's findings filed by both parties, the trial court rendered = judgment=20 for Rosenblatt for $10,000 for future damages and $20,000 in = additional=20 damages, plus interest and costs. Rosenblatt did not file a motion = for new=20 trial.

Legal Sufficiency Challenge to "Zero" Damages for=20 Attorneys' Fees

In his sole issue on appeal, = Rosenblatt=20 contends he is entitled to judgment as a matter of law because no = evidence=20 supports the jury's failure to award any damages in response to = the=20 question concerning attorneys' fees. Rosenblatt preserved this = issue for=20 appeal through his motion to disregard the jury's failure to award = any=20 amount for attorneys' fees at trial. In the motion, as here, = Rosenblatt=20 argued that the trial court was compelled to disregarded the = jury's zero=20 findings and to render judgment for statutorily authorized = attorneys' fees=20 of $500,000.^{=20
(3)}

A. Standard of = Review=20

A trial = court may=20 disregard a jury's verdict and render judgment notwithstanding the = verdict=20 pursuant to rule 301 if no evidence supports the jury's findings = or if a=20 directed verdict would have been proper. Tiller v. = McLure, 121=20 S.W.3d 709, 713 (Tex. 2003); Brown v. Bank of Galveston, = N.A.,=20 963 S.W.2d 511, 513 (Tex. 1998); Williams v. Briscoe, 137 = S.W.3d=20 120, 124 (Tex. App.--Houston [1st Dist.] 2004, no pet.). A = challenge to a=20 ruling on a judgment notwithstanding the verdict requires "no = evidence,"=20 i.e., legal-sufficiency review. See Wal-Mart Stores, Inc. v.=20 Miller, 102 S.W.3d 706, 709 (Tex. 2003); Williams, = 137=20 S.W.3d at 124; see also City of Keller v. Wilson, 168 = S.W.3d 803,=20 823 (Tex. 2005) ("[T]he test for legal sufficiency should be the = same for=20 summary judgments, directed verdicts, judgments notwithstanding = the=20 verdict, and appellate no-evidence review.").^{=20
(4)}

As the party seeking attorneys' = fees, who=20 therefore carried the burden of proof, see Stewart Title Guar. = Co. v.=20 Sterling, 822 S.W.2d 1, 10 (Tex. 1991), Rosenblatt must = demonstrate=20 on appeal that the evidence conclusively established all vital = facts in=20 support of his claim as a matter of law. Sterner v. Marathon = Oil=20 Co., 767 S.W.2d 686, 690 (Tex. 1989); accord Cale's Clean = Scene=20 Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 786 (Tex. = App.--Houston=20 [14th Dist.] 2002, no pet.) ("A trial court may disregard a jury's = negative finding and substitute its own affirmative finding only = if the=20 evidence conclusively establishes the affirmative finding."). In = reviewing=20 a legal-sufficiency challenge by the party who had the burden of = proof at=20 trial, the dispositive inquiry is whether the record establishes a = proposition that contradicts the jury's finding as a matter of = law.=20 See Sterner, 767 S.W.2d at 690. Only then may we sustain = the=20 legal-sufficiency challenge. See id. City = of=20 Keller confirms the four instances in which a legal = sufficiency=20 challenge must be sustained, as follows: (1) there is complete = absence of=20 a vital fact; (2) the rules of law or evidence preclude according = weight=20 to the only evidence offered to prove a vital fact; (3) the = evidence=20 offered to prove a vital fact is no more than a scintilla; and (4) = the=20 evidence conclusively establishes the opposite of a vital fact. = 168 S.W.3d=20 at 810 & n.16 (Tex. 2005) (citing, among other cases, King = Ranch,=20 Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. = 2003)).

In applying the = legal-sufficiency=20 standard, we must credit evidence that supports the judgment if = reasonable=20 jurors could credit that evidence, and we must disregard contrary = evidence=20 unless reasonable jurors could not disregard that evidence. = City of=20 Keller, 168 S.W.3d at 827. Accordingly, we review the = evidence in the=20 light most favorable to the verdict, but disregard all contrary = evidence=20 that a reasonable jury could have disbelieved. Ysleta Indep. = Sch.=20 Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (citing = City=20 of Keller, 168 S.W.3d at 812). If the evidence falls within = the zone=20 of reasonable disagreement, we may not invade the role of the = fact-finder,=20 who alone determines the credibility of the witnesses, the weight = to give=20 their testimony, and whether to accept or reject all or any part = of that=20 testimony. City of Keller, 168 S.W.3d at 822.

It is generally true that a = fact finder=20 is free to believe all, part, or none of the testimony of a = witness, but a=20 fact-finder's "decisions regarding credibility must be = reasonable."=20 Id. at 820. The fact finder "cannot ignore undisputed = testimony=20 that is clear, positive, direct, otherwise credible, free from=20 contradictions and inconsistencies, and could have been readily=20 controverted." Id.

B. Former Article = 21.21, =A7=20 16(b)(1) Mandates "Reasonable and Necessary" Fees Recovery for = Party Who=20 Prevails and Recovers Damages

1. Party Who = Prevails and=20 Recovers Damages is Entitled to Attorneys' = Fees

Well-settled law precludes = awarding=20 attorneys' fees without statutory or contractual authority. = Holland v.=20 Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999). = Rosenblatt=20 contends he is statutorily entitled to attorneys' fees as a matter = of law=20 because he prevailed and recovered damages on his claim that = Freedom Life=20 violated former article 21.21, section 4(10)(a)(v). Act of May 19, = 1995,=20 74th Leg., R.S., ch. 414, =A7 11, 1995 Tex. Gen. Laws 2988, 2999 = (repealed=20 2003); see former = article=20 21.21, section 16(b)(1) ("In a suit filed under this section, any=20 plaintiff who prevails may obtain . . . . the amount of = actual=20 damages plus court costs and reasonable and necessary attorneys' = fees.")=20 (emphasis added);^{=20
(5)} State Farm Life Ins. Co. v. Beaston, 907 = S.W.2d=20 430, 437 (Tex. 1995) (construing statute and holding that party = must=20 prevail and recover damages to recover attorneys' fees under = statute's=20 "fee-shifting" provisions).

Despite the apparent discretion = vested in=20 the trial court by the word "may" in the statute, a trial court = lacks=20 discretion to determine whether to award fees under = former=20 article 21.21, section 16(b)(1) when a party prevails and recovers = damages=20 on an article 21.21 claim. See Bocquet v. Herring, 972 = S.W.2d 19,=20 20 (Tex. 1998) (contrasting statutes providing that court = "may"=20 award attorneys' fees, which vest trial courts with some = discretion, with=20 statutes providing that party "may recover," "shall = be=20 awarded," or "is entitled to" attorneys' fees, which = grant=20 trial courts no discretion in deciding whether to award = fees).=20

Because section 16(b)(1) of = former=20 article 21.21 provides that a party who prevails "may obtain," in = addition=20 to actual damages, court costs "and reasonable and necessary = attorneys'=20 fees," we agree with Rosenblatt that the statute mandates recovery = of=20 attorneys' fees to a party who prevails and recovers damages on a = claim.=20 See Bocquet, 972 S.W.2d at 20.

2. Proof of = Reasonableness=20 and Necessity Required

The express language of section = 16(b)(1)=20 of former article 21.21 further mandates, however, that the party = seeking=20 attorneys' fees establish that the fees sought are both = "reasonable and=20 necessary." See Act of May 19, 1995, 74th Leg., R.S., ch. = 414, =A7=20 13, 1995 Tex. Gen. Laws 2988, 3000 (repealed 2003); see = also=20 Brown v. Bank of Galveston, N.A., 930 S.W.2d 140, 145 = (Tex.=20 App.--Houston [14th Dist.] 1996), aff'd, 963 S.W.2d 511 = (Tex.=20 1998) (stating general rule that fact finder determines reasonable = value=20 of attorney's services); Bocquet, 972 S.W.2d at 21 = (stating that=20 both reasonableness and necessity of attorneys' fees are questions = for the=20 trier of fact); Ragsdale v. Progressive Voters League, = 801 S.W.2d=20 880, 881-82 (Tex. 1990) (same).^{=20
(6)}

Because Rosenblatt has = expressly declined=20 a new trial, both in the trial court and on appeal, the = dispositive=20 question becomes whether Rosenblatt established, as a matter of = law, that=20 he is entitled to $500,000 as reasonable and necessary attorneys' = fees.=20 Specifically, did Rosenblatt provide evidence to support his claim = for=20 attorneys' fees that was "clear, positive, direct, otherwise = credible,=20 free from contradictions and inconsistencies, and could have been = readily=20 controverted"? See City of Keller, 168 S.W.3d at 822;=20 Ragsdale, 801 S.W.2d at 881-82. We agree with the trial = court=20 that he did not.

C. Rosenblatt Did Not=20 Conclusively Establish that the $500,000 in Attorneys' Fees Was = Reasonable=20 and Necessary

Rosenblatt's trial counsel, = Tracy=20 Conwell, referred several times during her testimony to the amount = of=20 $500,000, describing it as a "reasonable" amount of attorneys' = fees for=20 the work she had done in this case. In addition to relying on that = testimony, Rosenblatt argues that Freedom Life (1) did not = controvert=20 Conwell's testimony and (2) conceded that the testimony was = uncontroverted=20 in responding to Rosenblatt's motion to disregard the jury's = failure to=20 award any attorneys' fees. Relying on the Ragsdale = decision,=20 Rosenblatt argues that this concession precludes Freedom Life's = contending=20 on appeal that the jury and the trial court properly rejected = Conwell's=20 evidence in declining to award attorneys' fees.

Rosenblatt misconstrues=20 Ragsdale, which recognized an exception to the general = rule that=20 an interested witness "does no more than raise a fact issue to be=20 determined by the jury." See id. at 882. The exception = arises=20 when the testimony of an interested witness "is not contradicted = by any=20 other witness, or attendant circumstances, and the same is clear, = direct=20 and positive, and free from contradiction, inaccuracies, and = circumstances=20 tending to cast suspicion thereon." Id. at 882; see=20 Brown, 963 S.W.2d at515-16 (citing Ragsdale, 801 = S.W.2d at=20 882). Applying the exception in Ragsdale, the supreme = court ruled=20 that the trial court erred by not taking as true, "as a matter of = law,"=20 the testimony of the interested witness, an attorney who testified = without=20 objection that $22,500 was a reasonable amount for attorneys' = fees.=20 Id. at 881-82. The exception is "especially = true," the=20 court observed, and Rosenblatt emphasizes, when "the opposing = party has=20 the means and opportunity of disproving the testimony," but did = not=20 object. Ragsdale, 801 S.W.2d at 882 (emphasis in = original).=20

Ragsdale clarified, = however,=20 that failure to controvert is but one factor among others that the = court=20 considers in determining whether the testimony merely raises a = fact issue=20 or may be accepted as true as a matter of law. Id. = Ragsdale=20 and recent interpretations of Ragsdale demonstrate = that the=20 uncontroverted testimony of an interested witness will establish = that=20 attorneys' fees sought are reasonable and necessary as a matter of = law,=20 thus authorizing rendition by an appellate court, but only if the=20 following conditions exist: (1) the testimony could readily be=20 contradicted if untrue; (2) the testimony is clear, direct, and = positive;=20 and (3) there are no circumstances that tend to discredit or = impeach the=20 testimony. Ragsdale, 801 S.W.2d at 882; McMillin v. = State=20 Farm Lloyds, 180 S.W.3d 183, 210 (Tex. App.--Austin 2005, = pet.=20 denied) (citing Lofton v. Tex. Brine Corp., 777 S.W.2d = 384, 386=20 (Tex. 1989)); Hubbard, 76 S.W.3d at 786 (also citing=20 Lofton, 777 S.W.2d at 386).

We examine Conwell's testimony = within=20 these guidelines.

1. Uncontroverted = or=20 Controvertible?

We do not agree that Conwell's = testimony=20 conclusively established that $500,000 was a reasonable amount for = attorneys' fees or that her testimony was uncontroverted, because = Conwell=20 controverted her own testimony. Despite testifying that $500,000 = was a=20 reasonable fee, Conwell also explained the terms of her = contingency-fee=20 contract, the total hours worked, and her hourly rate.^{=20
(8)} She testified that a 40 percent fee, as described in = her=20 contract, was reasonable. Conwell did not perform a step-by-step=20 calculation of a total amount from the terms and percentages = stated in the=20 contract, but invited the jury to make the calculation. As this = Court=20 recognized recently, if a party presents evidence of both = a fixed=20 amount as a reasonable attorneys' fee and a contingency-fee = contract that=20 results in a lesser fee and claims that the contract was = reasonable and=20 that the jury could rely on either calculation, that party may not = argue=20 on appeal that the evidence attesting to the reasonableness of the = higher=20 amount is uncontroverted. Tex. Mut. Ins. Co. v. Ray Ferguson=20 Interests, Inc., No. 01-02-00807-CV, 2006 WL 648834, at *11, = 13-14=20 (Tex. App.--Houston [1st Dist.] Mar. 16, 2006, pet. denied) (mem. = op.).=20

Conwell also provided other = amounts for=20 the jury. She not only testified that her evidence suggested an = award for=20 attorneys' fees "in the neighborhood of $400,000, maybe $350,000," = but=20 also acknowledged that her contingency-fee contract could be = interpreted=20 as resulting in the significantly lesser sum of 40 percent of = Rosenblatt's=20 total recovery, or $12,000. In other testimony, Conwell estimated = her=20 personal total time at 997 hours at $250 per hour, which results = in yet=20 another calculation of approximately $250,000, to which was to be = added=20 her law clerks' fees, which Conwell "guess[ed] a reaonable rate = would be=20 anywhere between [$]25 and $75 an hour," though she also invited = the jury=20 to "figure out a reasonable rate." Adding the law clerks' fees to = the=20 $250,000 and calculating them in accordance with the range Conwell = suggested results in yet another total, with an approximate high = of=20 $340,000 and a low of $287,000.

Conwell also testified that the = $500,000=20 estimate included "over" $100,000 in expenses. But the trial court = sustained Freedom Life's objections to several items listed as = expenses on=20 the grounds that they were not recoverable.

Because Conwell's own testimony = provided=20 alternatives to the $500,000 amount that she opined was a = reasonable fee=20 and because her proposed amounts included nonrecoverable costs, we = cannot=20 agree that her testimony on the $500,000 amount was = uncontroverted. To the=20 contrary, Conwell's testimony that $500,000 was a reasonable award = for=20 attorneys' fees was both controvertible and controverted--by=20 Conwell.

2. Clear, Positive, = Direct,=20 and Free from Inconsistencies?

Conwell's testimony as to the = varying=20 amounts and calculations, described above, conflicts with and = contradicts=20 the $500,000 ceiling amount and is thus inconsistent with a = clearly=20 demonstrated award of $500,000. Moreover, Conwell acknowledged = that her=20 figures were estimates and invited the jurors to "figure a = reasonable=20 fee," stating that she "was not going to add it up" for them. = Conwell also=20 conceded under cross-examination that only "some" of the attorney = time=20 recorded in her entries had been entered contemporaneously. She = had=20 constructed the remainder from estimates. Conwell's = inconsistencies,=20 estimates, and equivocation render her testimony less than clear,=20 positive, and direct.

3. Free of = Circumstances that=20 Tend to Discredit or Impeach?

As shown above, Freedom Life = successfully=20 impeached Conwell's testimony that $500,000 was a reasonable = attorneys'=20 fee for this case, first by cross-examination of Conwell to = emphasize that=20 her calculations were estimates reconstructed from hindsight, and = then by=20 successfully objecting to recovery of certain costs and expenses.=20

We note as well that over the = five years=20 that Conwell spent preparing this case, the claims asserted = against=20 Freedom Life on Rosenblatt's behalf reduced significantly, with = but two=20 theories ultimately submitted to the jury. According to Conwell, = it was=20 necessary for her to do as much work as she did because of the = difficulty=20 in ascertaining what Freedom Life did and how Freedom Life did it. = She=20 would "need to do it all," she claimed, "whether suing for bad = faith or=20 21.55 or 21.21 because those claims are so intertwined that [she = could=20 not] separate them." See C.M. Asfahl Agency v. Tensor, = Inc., 135=20 S.W.3d 768, 801 (Tex. App.--Houston [1st Dist.] 2004, no pet.)=20 (recognizing both duty to segregate between recoverable and = nonrecoverable=20 claims in seeking attorneys' fees and exception to duty for = intertwined=20 claims arising out of same occurrence).

In addition to the "bad faith = or 21.55 or=20 21.21" claims to which Conwell referred in explaining that her = work was=20 not severable, however, Rosenblatt's live pleadings include = additional=20 claims, none of which was submitted to the jury, though they had = survived=20 pretrial motions for summary judgment. These claims were for = unfair=20 settlement practices; deceptive trade practices, including claims = for=20 unconscionable conduct and for conspiracy to violate the deceptive = trade=20 statue; and statutory libel. In addition, Rosenblatt attempted to = show at=20 trial that Freedom Life was engaged in a common enterprise with = the two=20 additionally named defendants.^{=20
(9)}

To the extent that the jury may = have=20 heard testimony relating to these remaining claims, however, = Conwell did=20 not include them with those described as too "intertwined" to = enable=20 segregation and thus discredited her own testimony that $500,000 = was a=20 reasonable fee. It is rationally to be anticipated that a jury = that=20 examines a charge with only two liability questions and awards = damages for=20 only one of these would discredit evidence that attempted to = recover an=20 award for attorneys' fees for claims that the jury was not asked = to=20 decide. See Cordova v. Sw. Bell Yellow Pages, Inc., 148 = S.W.3d=20 441, 449 (Tex. App.--El Paso 2004, no pet.) (recognizing that = party liable=20 for attorneys' fees "should not be held responsible for time spent = in=20 overpreparation").

In presenting herself as a = qualified=20 witness to testify on the claim for attorneys' fees, Conwell = stated she=20 was "familiar with law firms in this town" and knew "what people = charge."=20 She did not, however, explain either her personal familiarity or=20 experience with the type of claims that she pursued against = Freedom Life=20 on Rosenblatt's behalf. Moreover, in accordance with former = article 21.21,=20 section 16(b)(1), which requires that attorneys' fees awarded be = both=20 reasonable and necessary, the jury was properly asked to=20 determine "a reasonable fee for the necessary services of = [Conwell]." See Act of May 19, 1995, 74th Leg., R.S., ch. = 414, =A7=20 13, 1995 Tex. Gen. Laws 2988, 3000 (repealed 2003); = Bocquet, 972=20 S.W.2d at 21. Though Conwell summarized her work for this case, = evidence=20 concerning the necessity of the work was lacking.

4. Consequences: = Fact Issue=20 Raised, but Resolved by Jury, and Relief by Rendition Neither = Urged Nor=20 Preserved.

City of Keller = reaffirms that a=20 fact is not proved " as a matter of law" when the rules of law or = evidence=20 preclude according effect to the only evidence offered to = establish a=20 vital fact. City of Keller, 168 S.W.3d = at 810 & n.16. Under = the=20 three-pronged Ragsdale analysis just presented, we cannot = agree=20 that Conwell's testifying that $500,000 was a reasonable = attorneys' fee=20 for this case, was "uncontroverted"as a matter of law and = therefore=20 conclude that a $500,000 fee was not established as a matter of = law.=20 See Ragsdale, 801 S.W.2d at 882; and compare = McMillin,=20 180 S.W.3d at 210 (rejecting contention that testimony supporting=20 attorneys' fees was uncontroverted) with Brown, 963 = S.W.2d at=20 515, and Hubbard, 76 S.W.3d at 787-88 (both holding that=20 testimony supporting attorneys' fees was uncontroverted). =

Because Conwell's testimony = failed,=20 therefore, to conclusively establish the $500,000 fee, as a matter = law,=20 her interested-witness testimony raised only a triable issue to be = determined by trier of fact, in this case, the jury. See=20 Ragsdale, 801 S.W.2d at 882; McMillin, 180 S.W.3d at = 211=20 (remanding for determination whether entire amount of attorneys' = fees=20 sought was reasonable and necessary, because issue not = conclusively=20 established).

The fact finder "cannot ignore = undisputed=20 testimony that is clear, positive, direct, otherwise credible, = free from=20 contradictions and inconsistencies, and could have been readily=20 controverted." City of Keller, 168 S.W.3d at 820; = accord=20 Ragsdale, 801 S.W.2d at 882 (employing identical test in=20 concluding that issue established as matter of law). But Conwell = did not=20 provide undisputed testimony that was clear, positive, direct and=20 otherwise credible; instead she contradicted and controverted her = her own=20 testimony. Accordingly, the jury, was authorized to disregard her=20 testimony that $500,000 was a reasonable attorneys' fee, if the = jury did=20 disregard that testimony, when the jury answered the factual issue = presented by the attorneys' fee question in the court's charge. = See=20 City of Keller, 168 S.W.3d at 819-20; Ragsdale, 801 = S.W.2d=20 at 882. By the same analysis, the trial court properly declined=20 Rosenblatt's limited challenge to the jury's decision--his request = that=20 the trial court (1) disregard the jury's "zero" damages response = to the=20 attorneys' fee question and (2) render judgment notwithstanding = that=20 finding for $500,000. See City of Keller, 168 S.W.3d at = 820;=20 Ragsdale, 801 S.W.2d at 822.

Continuing his trial strategy = on appeal,=20 Rosenblatt seeks only rendition in the amount of $500,000, having=20 affirmatively rejected relief by remand, both as preserved in the = trial=20 court and as presented here, not only through reliance on a = partial=20 reporter's record, but also through the narrow issue asserted in = his brief=20 and during oral argument.

Because the evidence presented = in support=20 of Rosenblatt's claim for attorneys' fees is not conclusive as a = matter of=20 law and thus precludes that relief, we cannot render the judgment = that=20 Rosenblatt seeks. See McMillin, 180 S.W.3d at 211 ("We = cannot=20 render judgment . . . because the evidence is not conclusive."). = Though=20 our sister court reversed and ordered a remand in = McMillin, the=20 appellant there had alternatively requested that relief. See = id.=20 at 210-11 (stating that sustaining legal-sufficiency issue removed = need to=20 address factual sufficiency of evidence). That alternative is not=20 presented here.

Accordingly, we overrule = Rosenblatt's=20 sole issue.

Conclusion

We affirm the judgment of the = trial=20 court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice = Radack=20 and Justices Jennings and Bland.

1. Rosenblatt's pleadings in the trial court = named two=20 additional defendants, National Care Marketing, Inc. and Ascent = Assurance,=20 Inc. Rosenblatt identified National Care Marketing, Inc. as the=20 administrator of the Freedom Life policy and stated that Ascent = Assurance,=20 Inc. either owned or controlled both Freedom Life and National = Care. The=20 jury did not, however, determine the relationship, if any, between = these=20 entities, and the judgment binds only Freedom Life. Accordingly, = we=20 consider Freedom Life the sole appellee.=20

2. See Act of May 19, 1995, 74th = Leg., R.S.,=20 ch. 414, =A7 11, 1995 Tex. Gen. Laws 2988, 2999, repealed by = Act of=20 May 22, 2003, 78th Leg., R.S., ch. 1274, =A7 26(a)(1), 2003 Tex. = Gen. Laws=20 3611, 3662 (effective April 1, 2005), (recodified without = substantive=20 revision at Tex. Ins. Code Ann. =A7 541.060(a)(4) (Vernon Supp. = 2006)). This=20 case is governed by the former statute, based on the date that = Rosenblatt=20 filed suit.=20

3. This rendition point was the only = challenge to the=20 verdict that Rosenblatt made in the trial court. He filed no = motion for=20 new trial or other motion that would preserve and thus authorize = this=20 Court to reverse the judgment of the trial court and to remand = this cause=20 to the trial court. See generally Tex. R. Civ. P. = 324(b)(2)-(3);=20 Tex. R. App. P. 33.1(a)(1). Rosenblatt has expressly limited this = appeal;=20 he seeks rendition only and does not wish a new trial.=20

4. During oral submission of this case on = March 6,=20 2007, the Court announced its concerns regarding the appellate = record, as=20 follows: Rosenblatt had filed only a partial reporter's record, = and the=20 existing record did not demonstrate that Rosenblatt had included = "a=20 statement of the points or issues to be presented on appeal" when = he asked=20 the court reporter to prepare the reporter's record. See = Tex. R.=20 App. P. 34.6(c)(1) ("Partial Reporter's Record"). Rosenblatt has = since=20 filed a supplemental clerk's record that includes a certified copy = of=20 correspondence to the court reporter, dated February 13, 2006, = from=20 Rosenblatt's counsel, with copies to opposing counsel, in which=20 Rosenblatt's counsel explained that,

[Rosenblatt] has requested only = a partial=20 Reporter's Record, consisting of the testimony of Tracy Conwell,=20 [Rosenblatt's] counsel, because [Rosenblatt] intends to assert on = appeal=20 only that the trial court's error [sic] in denying [Rosenblatt's] = request=20 to disregard the jury's finding of zero attorneys' fees and the = trial=20 court's refusal to award $500,000 in attorneys' fees, based on the = uncontroverted testimony of [Rosenblatt's] counsel [sic]. =

Because Rosenblatt thus = complied with=20 Tex. R. App. P. 34.6(c)(1), and because appellee, Freedom Life = Insurance=20 Company, has designated and filed an addition to the reporter's = record,=20 see id. (c)(2), consisting of Rosenblatt's contingent-fee = contract, we must presume that the partial reporter's record = before us=20 constitutes the "entire" record for purposes of reviewing = Rosenblatt's=20 single issue challenging the sufficiency of the evidence. See = id=20 (c)(4); John Hill Cayce, Jr., Anne Gardner & Felicia Harris = Kyle,=20 Civil Appeals in Texas: Practicing Under the New Rules of = Appellate=20 Procedure, 49 Baylor L. Rev. 867, 922, 925-26 (1997).=20

5. Act of May 19, 1995, 74th Leg., R.S., ch. = 414, =A7=20 11, 1995 Tex. Gen. Laws 2988, 3000, repealed by Act of = May 22,=20 2003, 78th Leg., R.S., ch. 1274, =A7 26(a)(1), 2003 Tex. Gen. Laws = 3611,=20 4138 (effective April 1, 2005), (recodified without substantive = revision=20 at Tex. Ins. Code Ann. =A7 541.152(a)(1) (Vernon Supp. 2006)).=20

6. Well-settled law further dictates that = the=20 reasonableness of an award of attorneys' fees is determined by = considering=20 the factors enumerated in Arthur Andersen & Co. v. Perry = Equip.=20 Corp., 945 S.W.2d 812, 818 (Tex. 1997) (quoting Tex. = Disciplinary R.=20 Prof'l Conduct 1.04(b), reprinted in Tex. Gov't Code Ann. = tit. 2,=20 subtit. G app. A (Vernon Supp. 2006) (Tex. State Bar R. art. X, = =A7 9)=20 (listing "factors" that may be considered in determining the=20 reasonableness of a fee, but without excluding other relevant = factors)).=20 See C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, = 801-02=20 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (quoting = Andersen=20 factors).^{=20
(7)}=20

7. The "Anderson" factors = considered in=20 determining whether an award of attorneys' fees is reasonable = include the=20 following:

(1) the time and labor = required, the=20 novelty and difficulty of the questions involved, and the skill = required=20 to perform the legal service properly;

(2) the likelihood ... that the = acceptance of the particular employment will preclude other = employment by=20 the lawyer;

(3) the fee customarily charged = in the=20 locality for similar legal services;

(4) the amount involved and the = results=20 obtained;

(5) the time limitations = imposed by the=20 client or by the circumstances;

(6) the nature and length of = the=20 professional relationship with the client;

(7) the experience, reputation, = and=20 ability of the lawyer or lawyers performing the services;=20 and

(8) whether the fee is fixed or = contingent on results obtained or uncertainty of collection before = the=20 legal services have been rendered.

C.M. Asfahl Agency v. = Tensor,=20 Inc., 135 S.W.3d 768, 802 (Tex. App.--Houston [1st Dist.) = 2004, no=20 pet.) (citing Arthur Andersen & Co. v. Perry Equip. = Corp.,=20 945 S.W.2d 812, 818 (Tex. 1997) (quoting Tex, Disciplinary R. = Prof.=20 Conduct 1.04, reprinted in Tex. Gov't Code tit. 2, subtit. G app. = (State=20 Bar Rules, art. X, =A7 9)). - " " '=20

8. The fee contract was admitted into = evidence and is=20 before this Court pursuant to Freedom Life's designating = additional=20 portions of the reporter's record pursuant to Tex. R. App. P. = 34.6(c)(2).=20

9. Rosenblatt proposed a 36-page charge to = the jury=20 that encompassed article 21.55, several deceptive-trade questions, = and a=20 common-enterprise question concerning the two additional = defendants.=20

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