Opinion issued May 3,=20 2007
For=20
The
TEJAS =
TOYOTA, INC.,=20
Appellant LISA =
COFFMAN,=20
Appellee
On =
Appeal from the=20
151st District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2002-17199
MEMORANDUM=20
OPINION Appellant, =
Tejas=20
Toyota, Inc. (Tejas), appeals the trial court's judgment awarding =
actual=20
damages and attorney's fees to appellee Lisa Coffman in her =
lawsuit=20
against Tejas for negligence, breach of warranty, and violation of =
the=20
Deceptive Trades Practices-Consumer Protection Act (DTPA)
On December 20, 2000, Coffman =
took her=20
1996 Toyota Camry to Tejas's service department for a routine oil =
change.=20
Duc Luong, a mechanic with Tejas, testified by deposition that he =
changed=20
the oil and did a tune-up on Coffman's car and that, when she =
drove away,=20
her motor was in good condition. After the oil change, she drove =
home, but=20
when she got there, she saw that smoke was coming from under the =
hood. She=20
called Tejas and was told that the smoke was caused by oil that =
had=20
spilled on the engine. The next day she drove to Hockley, Texas =
for a job=20
interview. As she arrived in Hockley, she noticed that the car's =
oil light=20
was flickering. She called Tejas again to report the problem and =
was told=20
to bring the car to the shop. She was also told that the car had =
oil in=20
the engine as long as the light flickered, but that, if it came on =
and=20
stayed on, she should call and the dealership would send a tow =
truck to=20
bring the car to the shop. As she proceeded directly to Tejas, =
which was=20
in Humble, Texas, the oil light came on and stayed on. She called =
Tejas,=20
and it sent the tow truck. Tejas refused to lend Coffman a car, =
and she=20
missed her job interview. Mike Davidson, a team leader at =
Tejas,=20
told Coffman that the problem had been caused by a dipstick that =
had not=20
been returned to the engine after the oil change. Don Waters, the =
service=20
manager, said that a gasket or seal had not been put on. Tejas =
replaced=20
the gasket and the dip stick, and Coffman drove the car home. =
However,=20
after that time, Coffman had to put oil in her engine about twice =
a week,=20
and the car smelled strongly of burnt oil. The engine was also =
noisy and=20
eventually began making a noise that Coffman described as "like a=20
lawnmower." She complained to Tejas, both by telephone and in =
writing, to=20
no avail. She stopped driving the car in May 2001, and in June =
2001 she=20
took the car to another Toyota dealer, who replaced the engine and =
performed some other maintenance. Work on the car was completed by =
November, but, because Coffman did not have the money to pay for =
the work,=20
the dealer agreed to keep it on the premises for a time. Coffman =
paid the=20
dealer and retrieved her car in February 2002. Coffman then filed =
this law=20
suit. The case was tried to the =
court, which=20
rendered judgment in Coffman's favor and made findings of fact and =
conclusions of law.
Standard of=20
Review We review a trial court's =
evidentiary=20
rulings for abuse of discretion. Interstate Northborough =
P'ship v.=20
State, 66 S.W.3d 213, 220 (Tex. 2001). To obtain a reversal, =
an=20
appellant must show that a trial court's error in admitting or =
excluding=20
evidence probably resulted in an improper judgment. Id.=20
Generally, to prevail, an appellant must show that the judgment =
turned on=20
the evidence that was excluded or admitted. Id. Error in=20
admitting or excluding evidence is not usually reversible if the =
evidence=20
is cumulative. Id. When=20
appealing a judgment after a bench trial, the appellant must =
challenge the=20
sufficiency of the evidence to support the trial court's findings =
or the=20
findings are binding on the appellate court. IKB Indus. =
(Nigeria) Ltd.=20
v. Pro-Line Corp., 938 S.W.2d 440, 445 (Tex. 1997). If the =
appellant=20
challenges the findings, the appellate court will review the =
sufficiency=20
of the evidence to support the findings in the same manner it =
reviews a=20
jury's findings in a jury trial. Escobar v. Escobar, 728 =
S.W.2d=20
474, 475 (Tex. App.--San Antonio 1987, no writ); State Bar v.=20
Roberts, 723 S.W.2d 233, 235 (Tex. App.--Houston [1st Dist.] =
1986, no=20
writ). In reviewing the factual sufficiency of the evidence, the =
court=20
must consider all evidence in the record, both in support of, and =
contrary=20
to, the finding. Lofton v. Texas Brine Corp., 720 S.W.2d =
804, 805=20
(Tex. 1986). Tejas does not challenge the =
following=20
findings of fact. Thus, they are binding on this court. =
1. On or about December 20, =
2000,=20
Plaintiff took her car to Defendant for an oil change. =
. . . . 3. The oil change was =
improperly=20
performed. 4. Following the oil change, =
the engine=20
smoked, the car had to be returned to Defendant by wrecker, and=20
subsequently required engine replacement. 5. Defendant made =
representations to=20
Plaintiff concerning the repair and subsequent damage cause to her =
car=20
following its return by wrecker. 6. Defendant refused to assist =
Plaintiff=20
with replacement or cost of replacement when the car subsequently =
failed=20
and demand was made upon it. 7. Defendant engaged in an =
unconscionable=20
course of action toward Plaintiff. Exclusion of=20
Evidence In its first issue, Tejas =
contends that=20
the trial court erred in excluding Defendant's Exhibit 3 (DX-3), =
which,=20
according to Tejas, was evidence of repairs the car needed as of =
April=20
2000. Tejas complains generally about the exclusion of other =
documents,=20
but no other exhibits are specifically identified as erroneously =
excluded.=20
Tejas asserts that DX-3 showed that needed repairs included oil =
pan and=20
rear main seal oil leaks. At trial, when Tejas offered =
DX-3,=20
Coffman objected. Coffman also objected to Defendant's Exhibit 9 =
(DX-9),=20
an estimate by a Tejas service representative of repairs needed to =
Coffman's car on December 20, 2000 when she brought the car in for =
an oil=20
change. After examining both exhibits, the trial court sustained =
the=20
objection to DX-3, but admitted DX-9. DX-3 is not in the appellate =
record. To show error by a trial =
court's=20
exclusion of evidence, the substance of the evidence must be made =
known to=20
the trial court by an offer of proof or must be apparent from the =
context=20
of the offer. Tex. R. Evid. 103(a)(2). The primary purpose of the =
offer of=20
proof is to enable the reviewing court to determine whether the =
exclusion=20
was erroneous and, if so, whether it was harmful. Fletcher v. =
Minn.=20
Mining & Mfg. Co., 57 S.W.3d 602, 608 (Tex. App.--Houston =
[1st=20
Dist.] 2001, pet. denied). Therefore, an effective offer of proof =
must be=20
specific enough that the reviewing court can determine =
admissibility and=20
harm. Coleman v. Coleman, 170 S.W.3d 231, 239 (Tex. =
App.--Dallas=20
2005, pet. denied). In this case, the trial court =
did not=20
exclude all evidence of the prior condition of Coffman's car. The =
court=20
stated that it would exclude documents related to the condition of =
the car=20
prior to December 2000, but that the document related to the =
condition of=20
the car at the time it was brought to Tejas was relevant. That =
document,=20
DX-9, was admitted into evidence. Because it is not in the =
appellate=20
record, we have no way of reviewing DX-3. Therefore, we cannot say =
that=20
the trial court abused its discretion in excluding that document.=20
Accordingly, we overrule Tejas's first issue. Implied Finding of =
Producing=20
Cause In its second issue, Tejas =
contends that=20
the evidence was factually insufficient to support an implied =
finding that=20
the oil change was the producing or proximate cause of Coffman's =
damages.=20
Tejas quotes a portion of rule 299 of the Texas Rules of Civil =
Procedure,=20
which provides in pertinent part: The judgment may not be =
supported upon=20
appeal by a presumed finding upon any ground of recovery or =
defense, no=20
element of which has been included in the findings of fact; but =
when one=20
or more elements thereof have been found by the trial court, =
omitted=20
unrequested elements, when supported by evidence, will be supplied =
by=20
presumption in support of the judgment. Tex. R. Civ. P. 299. Tejas =
concedes that=20
the trial court found one or more elements of a negligence cause =
of action=20
and at least one element of a DTPA cause of action. It therefore =
follows=20
that we may presume a finding of proximate or producing cause if =
such a=20
finding is supported by the evidence. Tejas argues that there is =
no=20
evidence to support such a presumed finding. No election of remedies appears =
in the=20
record. Both parties discuss the presumed-finding issue as it =
relates to=20
negligence and DTPA. However, Coffman requested attorney's fees in =
connection with her DTPA cause of action, and the trial court =
awarded=20
them. Therefore, we presume that the trial court's award of actual =
damages=20
was under Coffman's DTPA cause of action. The elements of a DTPA cause of =
action=20
are (1) the plaintiff is a consumer; (2) the defendant engaged in =
false,=20
misleading, or deceptive acts, breached an express or implied =
warranty, or=20
engaged in an unconscionable action or course of action; and (3) =
these=20
acts constituted a producing cause of the consumer's damages. =
See=20
Tex. Bus. & Com. Code Ann. =A7 17.50(a) (Vernon Supp. 2006); =
see=20
also Doe v. Boys Clubs, 907 S.W.2d 472, 478 (Tex. 1995) =
(stating=20
elements of DTPA cause of action with regard to false, misleading, =
or=20
deceptive acts or practices). In her petition under causes of =
action for=20
violation of the DTPA, Coffman alleged breach of express and =
implied=20
warranties, misrepresentations regarding the quality of Tejas's =
work, and=20
unconscionable conduct. The trial court's finding of fact number 1 =
established Coffman's status as a consumer. Finding numbers 3 and =
4=20
support Coffman's claim that Tejas breached its implied warranty =
to make=20
repairs in a good and workmanlike manner. Finding number 5 =
supported=20
Coffman's allegation that Tejas misrepresented the quality of its =
work.=20
Because Tejas did not challenge these four findings, they are =
binding on=20
this Court as evidence to support two elements of Coffman's DTPA =
cause of=20
action. We must determine whether there is any evidence to support =
a=20
presumed finding that any act by Tejas was a producing cause of =
Coffman's=20
damages. "Producing cause requires that the act be both a =
cause-in-fact=20
and a 'substantial factor' in causing the damages." Carousel's =
Creamery, L.L.C. v. Marble Slab Creamery, Inc., 134 S.W.3d =
385, 399=20
(Tex. App.--Houston [1st Dist.] 2004, pet. dism. by =
agr.). Tejas challenges finding of =
fact number=20
2, which states,"The car was in good condition at the time it was=20
presented to Defendant." Tejas argues that Coffman had complained=20
previously about smoke coming from the car and that Coffman would =
not=20
permit Tejas to make repairs it recommended when she brought the =
car to it=20
for the oil change. Tejas contends that this evidence negated a =
presumed=20
finding that the oil change caused Coffman's damages. Coffman controverted Tejas's =
testimony by=20
stating that she had previously complained about smoke coming from =
the=20
tailpipe, not from the engine. She also testified that Waters had =
told her=20
that a seal had been left off and they were going to replace it. =
Luong,=20
Tejas's mechanic, testified that the only work he did on Coffman's =
car was=20
the oil change and a tune-up and that the motor was in good =
condition when=20
she drove away from the dealership. The trial=20
court, as fact finder, was free to believe or disbelieve any =
witnesses'=20
testimony in whole or in part. Miller v. Kendall, 804 =
S.W.2d 933,=20
939 (Tex. App.--Houston [1st Dist.] 1990, no writ). Bernard Toomey, president of =
Tejas,=20
testified that Coffman's car was not in immediate danger when it =
was=20
brought to the shop for the oil change and that it was not in =
danger from=20
not having the recommended repairs done. He further testified that =
if=20
there had been anything that could have caused a problem the next =
day,=20
they would have told Coffman. Davidson testified that he =
checked the=20
car after it was towed to the shop and found that the dip stick =
was=20
missing and the oil was low. He also found oil on the engine. He =
stated=20
that he replaced the dip stick, added oil, and cleaned the engine =
with a=20
degreaser. However, a letter from Tejas's attorney to Coffman's =
attorney,=20
Plaintiff's Exhibit 6, stated that "no problem was detected upon =
replacing=20
the gasket which allowed oil to leak after servicing Ms. Coffman's =
automobile." This letter corroborated Coffman's testimony that =
Waters had=20
told her that a seal had been left off and they were going to =
replace it.=20
We hold that Coffman's =
testimony=20
regarding the missing seal, Davidson's and Luong's testimony =
regarding the=20
condition of the car, and the admission in Plaintiff's Exhibit 6 =
are=20
evidence supporting a presumed finding that Tejas's work on =
Coffman's car=20
and the misrepresentations regarding that work were the producing =
cause of=20
Coffman's damages. Accordingly, we overrule Tejas's second issue.=20
Economic=20
Damages In its third issue, Tejas =
contends that=20
there is factually insufficient evidence to support the amount of =
the=20
economic damages awarded. Tejas challenges finding of fact number =
eight,=20
which provides: 8. The cost of a new engine was =
$2,579.80, which Plaintiff had to save, and therefore she was =
without a=20
car for 40 weeks. The reasonable cost for renting a comparable =
vehicle in=20
Houston is $120.00 per week, or $4,800.00 for the period of loss =
of use.=20
The judgment awarded Coffman =
$7,379.80 in=20
economic damages. Tejas argues that Coffman's car was in the shop =
for 268=20
days, or 38.28 weeks, and, therefore, she should receive $4,594.29 =
for=20
loss of use of her car rather than $4,800. However, Coffman =
testified that=20
she stopped driving her car approximately one month before taking =
it to a=20
dealer to replace the engine. The trial court could have =
considered some=20
of this time in finding that Coffman lost the use of her car for =
40 weeks.=20
We conclude that the evidence was sufficient to support finding of =
fact=20
number eight. We overrule Tejas's third issue. Attorney's=20
Fees In its fourth issue, Tejas =
contends that=20
the trial court erred in finding that the amount of attorney's =
fees=20
awarded was reasonable and necessary. In its fifth issue, Tejas =
asserts=20
that the evidence was factually insufficient to support the amount =
of the=20
award. Tejas challenges finding of fact number 9, which=20
provides: 9. A reasonable and necessary =
fee for the=20
work performed by Plaintiff's attorney through the trial of this =
case is=20
$21,000.00; work in the event of an appeal to the Court of =
Appeals,=20
$6,000.00; and in the event of an appeal to the Supreme Court of =
Texas,=20
$3,000.00. Tejas complains that Coffman's =
attorney,=20
the only witness regarding attorney's fees, was an interested =
party.=20
The trial court awarded $30,000 =
in=20
attorney's fees, which included appellate fees, and provided that, =
if the=20
judgment were not appealed, the judgment would be "credited with =
$9,000,=20
leaving a recovery of $21,000.00," and if the judgment were =
appealed to=20
the court of appeals, but not the supreme court, the judgment =
would be=20
"credited with $3,000.00, leaving a recovery of attorney's fees in =
the=20
amount of $27,000.00." Tejas argues that this recovery is more =
than 300%=20
of the economic damages recovered and would be unconscionable if =
paid by=20
the client. To recover attorney's fees =
under the=20
DTPA, a plaintiff must prove that the fees were reasonable and =
necessary.=20
Arthur Andersen & Co. v. Perry Equip. Corp., 945 =
S.W.2d 812,=20
819 (Tex. 1997). The determination of reasonable and necessary =
attorney's=20
fees is a question for the trier of fact. See id. =
(stating that=20
jury must decide question of attorney's fees). In this case, the =
trial=20
court was the finder of fact; we review the trial court's findings =
regarding attorney's fees for factual sufficiency. See Checker =
Bag Co.=20
v. Washington, 27 S.W.3d 625, 640 (Tex. app.--Waco 2000, pet. =
denied)=20
(reviewing attorney's fees for sufficiency of the =
evidence). Coffman's attorney's time =
records for the=20
case were admitted into evidence. Counsel testified regarding the =
time and=20
labor involved in the case; her hourly fee of $200, which, she =
said, was=20
lower than similarly qualified attorneys and was a =
contingent-hourly fee;=20
and her experience, reputation, and ability as a board certified =
consumer=20
lawyer. She further testified that, in her opinion, her fee was =
reasonable=20
and necessary. Tejas's attorney cross-examined Coffman's attorney =
and=20
questioned her about the fact that she prepared for each setting =
in the=20
case, even though there were some resets. Although some of his =
questions=20
implied that not all of the preparation was necessary, he did not =
present=20
any evidence to contradict her testimony. When the testimony of an =
interested=20
witness is not controverted, and the testimony is clear, direct, =
positive,=20
and free from contradiction and inaccuracy, it is generally taken =
as true,=20
as a matter of law. Van Waters & Rogers, Inc. v. Quality =
Freezers,=20
Inc., 873 S.W.2d 460, 464 (Tex. App.--Beaumont 1994, writ =
denied). In=20
a DTPA case, the ratio between the actual damages awarded and the=20
attorney's fees is not a factor that determines the reasonableness =
of the=20
fees. See, e.g., Seabury Homes, Inc. v. =
Burleson, 688=20
S.W.2d 712, 716 (Tex. App.--Fort Worth 1985, no writ) (affirming =
award of=20
$15,000 in attorney's fees and award of $2,000 in damages, trebled =
to=20
$6,000); Jack Roach Ford v. De Urdanavia, 659 S.W.2d 725, =
730=20
(Tex. App.--Houston [14th Dist.] 1983, no writ) (suggesting =
remittiture of=20
$8,500 of attorney's fee award of $28,500, resulting in attorney's =
fee=20
award of $20,000, and award of $500 in actual damages). =
We conclude that the evidence =
was=20
factually sufficient to support the trial court's finding that the =
fees=20
awarded were reasonable and necessary and in awarding $21,000 in=20
attorney's fees for the trial, plus additional fees contingent on =
appeal.=20
Accordingly, we overrule Tejas's fourth and fifth issues. =
We affirm the judgment. =
Sam Nuchia Justice Panel consists of Justices =
Nuchia, Keyes,=20
and Higley.=20
Tex. Bus.=20
& Com. Code Ann. =A7=A7 17.41-17.63 (Vernon 2002 & Supp. =
2006).=20