ATTORNEY JAMES L. WILLIAMS NAMED 2017 TOP ATTORNEY BY FORT WORTH MAGAZINE

Williams, McClure & Parmelee
Press Release Fort Worth
November 17, 2017

Williams, McClure & Parmelee is pleased to announce that Attorney James L. Williams has again been recognized by his peers and awarded the “Top Attorney” Rating by Fort Worth Magazine for 2017.  Jim will be attending a Reception honoring Tarrant County’s  Top Attorneys at the Fort Worth Club on November 28th.

2017 Ft Worth Top Attorney

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Slip and Fall Defense Litigation in Texas: The Time Notice Rule

The mere fact that a store employee is simply in close proximity to a dangerous or hazardous condition does not replace what is called in Texas, “the time-notice rule”. Constructive knowledge of a dangerous condition can be shown by proof that the dangerous or hazardous condition in dispute had existed for a reasonably long enough period of time  that the premises owner reasonably should have discovered it. This is known as the “time-notice rule,” and the Texas Supreme Court has repeatedly held that “temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition.” As the Texas Supreme Court stated in Wal-Mart Stores, Inc. v. Reece, 81 SW.3d 812, 816 (Tex. 2002):

An employee’s proximity to a hazard, with no evidence indicating how long
the hazard was there, merely indicates that it was possible for the
premises owner to discover the condition, not that the premises owner
reasonably should have discovered it. Constructive notice demands a more
extensive inquiry. Without some temporal evidence, there is no basis upon
which the factfinder can reasonably assess the opportunity the premises
owner had to discover the dangerous condition.

 
Without the time related requirement of the, owners of real property could be subject to strict liability claims for any dangerous or hazardous condition on the premises, which would be in itself unreasonable.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Texas Supreme Court Says EEOC Owes $4.7 Million to Trucking Company for Attorneys Fees

SCOTUS Says EEOC Owes Trucking Co. $4.7M

 

May 24, 2016

After the EEOC’s sexual harassment class action lawsuit against CRST Van Expedited was thrown out, the trucking firm sued for $4.7 million in legal fees. Last week the Supreme Court unanimously agreed that the federal agency must pay the fees, overturning an Eighth Circuit Court of Appeals ruling. In 2007 the EEOC sued CRST on behalf of 250 female truck drivers who claimed they were sexually harassed at work. A district court dismissed all the claims, saying the EEOC had not adequately investigated the claims, nor attempted to conciliate its claims before filing the suit. The Eighth Circuit upheld the lawsuit’s dismissal, but said since claims were dismissed without a ruling on the case’s merits, CRST could not recover fees. The Supreme Court sent the case back for review, saying a favorable ruling on the merits of a case is not a necessary requirement to find that a defendant is a prevailing party.

Read the full article at:

http://www.thegazette.com/subject/news/business/supreme-court-rules-for-crst-in-legal-fee-case-20160519

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Grace Period for Texas Employers Without Workers’ Compensation Insurance Coverage–Texas Non Subscriber Defense Attorneys

The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is providing a grace period for employers without workers’ compensation insurance coverage or that terminated their coverage (non-subscribers) to report their non-coverage status to DWC without penalty. This grace period also extends to non-subscribers with five or more employees that have not previously reported on-the-job injuries, illnesses, and fatalities to DWC. Historically, non-subscriber reporting rates are low, and DWC is offering this grace period to increase compliance with required state reporting. This grace period allows non-subscribers that have not previously reported their non-coverage status, to submit the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage (DWC Form-005), without an administrative penalty during the February 1, 2016, through April 30, 2016, reporting period.

Additionally, this grace period also allows non-subscribers with five or more employees that have not previously reported their injuries, illnesses, and fatalities, to submit the DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease (DWC Form-007) without an administrative penalty for injuries, illnesses, and fatalities occurring on or after May 1, 2016. By law, non-subscribers must annually notify DWC of their decision not to obtain workers’ compensation insurance coverage by submitting the DWC Form-005 and must also report each onthe-job injury, occupational illness, or fatality resulting in more than one day of lost time to DWC by filing DWC Form-007. Nonsubscribers that fail to comply with state requirements are subject to administrative penalties. Non-subscribers can file the DWC Form-005 with DWC online, by fax, or by mail. The DWC Form-007 may be filed by fax or by mail. Non-subscriber Reporting Requirements A non-subscriber must file the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage to DWC:  between February 1 and April 30 each year;  within 30 days of hiring its first employee; or  within 10 days of DWC’s request. Non-subscribers with five or more employees must report each fatality, occupational disease, and onthe-job injury that results in more than one day of lost time to the DWC.

Non-subscribers must submit the DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease to the DWC within the seventh day of the month following the month in which:  the death occurred;  the employee was absent from work for more than one day as a result of the on-the-job injury; or  the employer acquired knowledge of the occupational disease. Additional information on non-subscriber reporting requirements is available on the TDI website  at www.tdi.texas.gov/wc/employer/index.html.

 

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

TDI-DWC Informal Posting: Attorneys’ Fees Rules for Texas Workers’ Compensation Lawyers

Texas Workers’ Compensation Attorneys and System Stakeholders should be aware of a new TDI-DWC Informal Posting: Attorneys’ Fees Rules for Texas Workers’ Compensation Lawyers:

Informal Posting: Attorneys’ Fees Rules

To: Workers’ Compensation System Participants

From: Emily McCoy, Director, Office of Workers’ Compensation Counsel

Date April 1, 2016

RE: Informal Posting: Amended 28 TAC §152.3 regarding approval or denial of fee by the commission, amended §152.4, regarding guidelines for legal services provided to claimants and carriers, and new §152.6, regarding attorney withdrawal. The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting comments on an informal working draft of amended 28 Texas Administrative Code (TAC) §152.3, §152.4, and new §152.6, available at http://www.tdi.texas.gov/wc/rules/drafts.html. The informal working draft was posted on the TDI-DWC website on April 1, 2016 and the comment period closes on April 29, 2016 at 5 p.m. Central time. The informal working draft is not a formal rule proposal and comments received will not be treated as formal public comments for the purposes of the Administrative Procedure Act. There will be an opportunity to formally comment once the rule is proposed and published in the Texas Register. Informal comments may be submitted by email to InformalRuleComments@tdi.texas.gov or by mail or delivery to: Texas Department of Insurance, Division of Workers’ Compensation Maria Jimenez Workers’ Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 -1645 Amendments to §152.3, concerning approval or denial of a fee by the commission, and §152.4, concerning guidelines for legal services provided to claimants and carriers, update the attorney fee rules for the first time since 1991. The amendments reflect changes in the industry over the 25 years since the rules were originally adopted, and are designed to ensure there is quality representation available within the workers’ compensation system. Additionally, they allow more time at the beginning of a dispute for preparation and case management in order to encourage early resolution of claim disputes. New §152.6, concerning attorney withdrawal, requires attorneys to comply with the Texas Disciplinary Rules of Professional Conduct when withdrawing from a claim and helps to prevent an attorney’s withdrawal from having a material adverse effect on the client.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Discrimination Law for Texas Employers–Ft Worth Employment Defense Lawyers

An employer may not fire, demote, harass or otherwise “retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination. The same laws that prohibit discrimination based on race, color, sex, religion, national origin, age, and disability, as well as wage differences between men and women performing substantially equal work, also prohibit retaliation against individuals who oppose unlawful discrimination or participate in an employment discrimination proceeding.

In addition to the protections against retaliation that are included in all of the laws enforced by EEOC, the Americans with Disabilities Act (ADA) also protects individuals from coercion, intimidation, threat, harassment, or interference in their exercise of their own rights or their encouragement of someone else’s exercise of rights granted by the ADA.

There are three main terms that are used to describe retaliation. Retaliation occurs when an employer, employment agency, or labor organization takes an adverse action against a covered individual because he or she engaged in a protected activity. These three terms are described below.

Adverse Action
An adverse action is an action taken to try to keep someone from opposing a discriminatory practice, or from participating in an employment discrimination proceeding. Examples of adverse actions include:

  • employment actions such as termination, refusal to hire, and denial of promotion,
  • other actions affecting employment such as threats, unjustified negative evaluations, unjustified negative references, or increased surveillance, and
  • any other action such as an assault or unfounded civil or criminal charges that are likely to deter reasonable people from pursuing their rights.

Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, “snubbing” a colleague, or negative comments that are justified by an employee’s poor work performance or history.

Even if the prior protected activity alleged wrongdoing by a different employer, retaliatory adverse actions are unlawful. For example, it is unlawful for a worker’s current employer to retaliate against him for pursuing an EEO charge against a former employer.

Of course, employees are not excused from continuing to perform their jobs or follow their company’s legitimate workplace rules just because they have filed a complaint with the EEOC or opposed discrimination.

For more information about adverse actions, see EEOC’s Compliance Manual Section 8, Chapter II, Part D.

Covered Individuals
Covered individuals are people who have opposed unlawful practices, participated in proceedings, or requested accommodations related to employment discrimination based on race, color, sex, religion, national origin, age, or disability. Individuals who have a close association with someone who has engaged in such protected activity also are covered individuals. For example, it is illegal to terminate an employee because his spouse participated in employment discrimination litigation.

Individuals who have brought attention to violations of law other than employment discrimination are NOT covered individuals for purposes of anti-discrimination retaliation laws. For example,”whistleblowers” who raise ethical, financial, or other concerns unrelated to employment discrimination are not protected by the EEOC enforced laws.

Protected Activity
Protected activity includes:

Opposition to a practice believed to be unlawful discrimination
Opposition is informing an employer that you believe that he/she is engaging in prohibited discrimination. Opposition is protected from retaliation as long as it is based on a reasonable, good-faith belief that the complained of practice violates anti-discrimination law; and the manner of the opposition is reasonable.

Examples of protected opposition include:

  • Complaining to anyone about alleged discrimination against oneself or others;
  • Threatening to file a charge of discrimination;
  • Picketing in opposition to discrimination; or
  • Refusing to obey an order reasonably believed to be discriminatory.

Examples of activities that are NOT protected opposition include:

  • Actions that interfere with job performance so as to render the employee ineffective; or
  • Unlawful activities such as acts or threats of violence.
Participation in an employment discrimination proceeding.
Participation means taking part in an employment discrimination proceeding. Participation is protected activity even if the proceeding involved claims that ultimately were found to be invalid. Examples of participation include:

  • Filing a charge of employment discrimination;
  • Cooperating with an internal investigation of alleged discriminatory practices; or
  • Serving as a witness in an EEO investigation or litigation.

A protected activity can also include requesting a reasonable accommodation based on religion or disability.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Texas Construction Bond Litigation and Attorneys’ Fees Lawsuit–Compliance Issues Determined in Austin Court

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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  1. 03-02-00270-CV

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Cumberland Casualty & Surety Company, Appellant

v.

 

Nkwazi, L.L.C., Appellee

 

——————————————————————————–

 

 

FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT

 

  1. 22,992, HONORABLE HAROLD R. TOWSLEE, JUDGE PRESIDING

 

 

 

——————————————————————————–

 

 

M E M O R A N D U M  O P I N I O N

This case arises out of a surety’s obligation under a performance bond. Appellee Nkwazi, L.L.C. (“Nkwazi”), a limited-liability company owned and operated by four persons, including Kalpesh Patel and Rajeev Patel, (1) contracted with Salinas Construction & Design (“Salinas”) for the construction of a motel in Bastrop. Appellant Cumberland Casualty & Surety Co. (“Cumberland”) issued performance and payment bonds to Salinas as part of Nkwazi’s requirement for financing. After repeated problems between Nkwazi and Salinas, Nkwazi declared Salinas in default and filed a claim against the performance bond. Cumberland refused coverage, and Nkwazi sued Cumberland. Following a jury trial, the district court rendered judgment, awarding Nkwazi actual damages, attorney’s fees, and prejudgment interest. Cumberland appeals, arguing that: (1) the jury’s findings were against the great weight and preponderance of the evidence, (2) the district court erred in awarding appellate attorney’s fees contrary to the jury answers, and (3) the district court erred in awarding Nkwazi prejudgment interest at a rate of ten percent per annum. We will affirm the district-court judgment.

 

Cumberland’s Failure to Perform By its first issue, Cumberland argues that the jury’s finding that Cumberland’s failure to perform under the bond was not excused was so against the great weight and preponderance of the evidence as to be manifestly unjust–a challenge to the factual sufficiency of the evidence. Oram v. State Farm Lloyds, 977 S.W.2d 163, 168 (Tex. App.–Austin 1998, no pet.); Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex. App.–Amarillo 1988, writ denied). Specifically, Cumberland disputes the jury’s answers to Questions 2 and 3. Question 2 asked: “Was Cumberland[‘s] [] nonperformance under its Performance Bond excused by Nkwazi[‘s] [] failure to satisfy conditions precedent to recovery under the Performance Bond?” Question 3 asked: “Was Cumberland[‘s] [] failure to comply with the Performance Bond excused?” The jury answered “No” to both questions. Cumberland does not dispute that it failed to comply with the performance bond. Rather, Cumberland argues that its obligations under the bond were discharged because Nkwazi materially altered the bonded contract by not hiring an architect to inspect Salinas’s work, leading to a substantial overpayment for work Salinas either improperly performed or failed to perform. This, Cumberland argues, destroyed a condition precedent to bond performance.

 

The performance bond followed the format of American Institute of Architects document A312. Paragraph 3 delineated the requirements for bond performance. It required that there be no “Owner Default,” and if no owner default, then “the Surety’s obligation under this Bond shall arise.” Cumberland asserts that Nkwazi’s failure to hire an architect violated paragraph 12.4 of the bond. Paragraph 12.4 defines “Owner Default” as: “Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof.” (Emphasis added.)

 

In response, Nkwazi argues it was not in default because its contract with Salinas did not require Nkwazi to hire an architect to inspect the construction. Specifically, Nkwazi asserts that a bid proposal by Salinas (the “Proposal”) was the only contract between Nkwazi and Salinas and there was no “owner default” or material alteration of that agreement. (2) Cumberland asserts that the Proposal required Nkwazi and Salinas to execute an “AIA [American Institute of Architects] Standard Form Construction Contract” (“AIA Contract”), and Nkwazi should be held to the AIA Contract provision that required it to employ an architect. (3)

 

In evaluating factual sufficiency, we review the entire record and set aside the finding only if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Oram, 977 S.W.2d at 168. We may not reverse simply because we conclude that “the evidence preponderates toward an affirmative answer”; instead, we may only reverse where “the great weight of [the] evidence supports an affirmative answer.” Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

 

The record reflects that Nkwazi entered into a franchise agreement with Comfort Inn, which provided Nkwazi guidelines for the motel’s construction. Nkwazi employed an architect who drafted drawings and created a “specifications book” based on the guidelines. Comfort Inn then approved Nkwazi’s plan, allowing Nkwazi to solicit construction bids. In 1997 Nkwazi sent bid packages to numerous contractors, which included the plans and specifications created by Nkwazi’s architect. Eventually, Nkwazi accepted Salinas’s construction bid of $1,089,000. Rajeev testified that after choosing Salinas, he asked Salinas to send Nkwazi a contract, and Salinas sent Rajeev the Proposal. (4) Both Rajeev, for Nkwazi, and Salinas signed the two-page Proposal, which was dated January 3, 1997. Rajeev and Kalpesh testified that this was the only contract to which the parties agreed. To obtain financing, Nkwazi received a Small Business Administration Loan, funded by First State Bank of Austin. Rejeev testified that the only contract documentation that he initially presented to the bank to secure the loan was the Proposal.

 

The bank required that the project be bonded, and Cumberland agreed to issue performance and payment bonds to Salinas. The bond request from Salinas’s bond agent to Cumberland stated that the motel contract date was “1/?/97,” and the amount requested was “$1,089,000.” Cumberland issued an original bond, for Phase I, for half the cost of construction; it was dated April 17, 1997. In August Cumberland issued a rider for the remainder of the contract, covering Phase II. Nkwazi paid Salinas’s $17,000 premium. Thomas West, Cumberland’s Dallas branch manager, testified that Cumberland had investigated Salinas’s “prior contract performance,” and a compilation of Salinas’s financial data before issuing the bond. Cumberland required that a fund administration service be used to monitor the payments made to Salinas.

 

Construction began in April 1997, and Nkwazi paid Salinas as the project progressed. During construction Salinas neglected to follow the construction plans and defects in his work became apparent. Meetings occurred between Nkwazi and Salinas to correct the defects. Salinas did remedy some of the problems; however, others remained. Rajeev testified that toward the end of 1997 communications with Salinas became more difficult and less frequent. To complete construction, Nkwazi worked directly with the subcontractors to correct Salinas’s insufficient work. Rajeev testified that during construction he did not have an architect inspect the progress of the motel; he also testified that he did not know of such a requirement and did not know that architects “provided that service.” Rajeev, and later Kalpesh, monitored Salinas’s progress by periodically visiting the construction site; when defects were discovered, Rajeev brought them to Salinas’s attention. In early 1998, the fund administration service reported Nkwazi’s problems with Salinas and the project’s slow progression to Cumberland. Nkwazi retained counsel and notified Cumberland that it was considering a declaration that Salinas was in default. At a meeting among the three parties, Salinas agreed to correct the construction problems, and Nkwazi, at Salinas’s demand and Cumberland’s suggestion, agreed to set aside $108,917 as retainage to ensure that Salinas and his subcontractors would be paid. Nkwazi and Salinas signed an agreement concerning the retainage, as did West, for Cumberland. Nkwazi, however, continued to experience problems with the construction and, in August 1998, almost one year after the projected completion date, Nkwazi declared Salinas in default. At this time, serious problems in the motel’s construction remained. After Nkwazi failed to obtain sufficient responses from Cumberland concerning bond coverage, Nkwazi filed this action against Cumberland. (5)

 

Viewing the evidence in the light most favorable to the jury’s verdict, we find the evidence sufficient to support the jury’s answers to Questions 2 and 3. At trial the parties presented conflicting testimony regarding the Proposal. Cumberland, through Rajeev’s testimony, presented evidence that the specifications book, presented to Nkwazi by its architect, contained requirements that any contract would be an AIA Contract. The bid-proposal form that Salinas signed and that became the Proposal was also a part of the specifications book. The Proposal’s language envisioned that the owner and the builder would sign a separate contract. Rajeev and Kalpesh testified that neither had sufficiently read nor understood all the contents of the specifications book and that they were unaware of the contract requirements. Rajeev stated that he asked for Salinas to send him a contract for the motel’s construction, and the Proposal was all that he received. He stated that he was unaware that more was required. Kalpesh presented similar testimony. Rajeev admitted that the Proposal’s language indicated that it was not the contract, but he and Kalpesh both testified that they believed that the Proposal was, in fact, their contract with Salinas. Reinforcing this belief was Rajeev’s testimony that the bank did not require any other contract, aside from the Proposal, for the small business loan. Rajeev also testified that he was the person supervising Salinas, but that, although possessing a civil engineering degree, he had no construction experience. Both Rajeev and Kalpesh offered testimony concerning the serious nature of the construction problems remaining at the motel.

 

West testified that Cumberland’s file only contained the Proposal and the Phase I and II bonds–no AIA Contract. Moreover, no evidence was adduced at trial that the parties entered into an AIA Contract. The following testimony was offered by West when he was questioned about Cumberland’s issuance of the performance bond to Salinas without reviewing the AIA Contract.

 

 

[Q]: Why was Cumberland Casualty & Surety Company performance bond then issued in April?

 

 

 

 

[A]: I believe it’s because that’s when the contract was signed and it was time to obtain the payment and performance bonds in order for the contractor to move forward in constructing the hotel.

 

 

 

 

[Q]: Was a signed A.I.A. contract sent to you at the time this bond was issued?

 

 

 

 

[A]: No.

 

 

 

 

[Q]: How did you learn that the contract had been entered into?

 

 

 

 

[A]: It’s our understanding the agent provided the information that they had secured contracts and they needed to get the payment and performance bonds issued in order to move forward.

 

 

 

 

 

 

The agent West mentions was Cumberland’s agent in South Texas. West also testified that Nkwazi had complied with the notice requirements to invoke bond coverage. West stated at trial that he did not think the Proposal represented the contract, but his deposition testimony, introduced at trial, stated the opposite. Similarly, West testified that Cumberland’s position was that Nkwazi had not properly paid Salinas in accordance with the contract; yet, in his deposition, West stated that Cumberland’s position was that Nkwazi had paid Salinas pursuant to the contract.

 

When viewed in a neutral light, the entire record does not lead to a conclusion that the jury’s finding was manifestly unjust. Cumberland argues that the Proposal was not a valid contract and that Nkwazi and Salinas did not comply with the AIA Contract provisions. Cumberland attempted to show that the Proposal was not a contract but only a bid proposal and offered evidence that Nkwazi failed to comply with the AIA Contract that Nkwazi should have required. Yet, Cumberland issued the bond without an AIA Contract and never demanded that Nkwazi provide one. Cumberland accepted Nkwazi’s premium payment. There is no evidence or allegation that Nkwazi misrepresented that an AIA Contract had been signed. That Cumberland’s agent assured Cumberland that a contract existed and that the Proposal envisioned that an AIA Contract would be signed is of no benefit to Cumberland. We hold the evidence is factually sufficient to support the jury’s finding that Cumberland was not excused from its obligation under the performance bond.

 

Cumberland relies on Old Colony Insurance Co. v. City of Quitman for the proposition that a surety is released from its obligation when there is a material alteration in, and deviation from, the terms of the contract without its consent and to its prejudice. 352 S.W.2d 452, 455 (Tex. 1961). The alleged material alteration is that Nkwazi failed to have an architect inspect the on-going construction, which led to a substantial overpayment of Salinas. Cumberland’s reliance on Old Colony is misplaced. The applicable contract, as found by the jury, is the Proposal and not the AIA Contract; therefore, by the Proposal’s terms, Nkwazi cannot be held to have made a material alteration of a contract that it did not agree to. In Old Colony, the City of Quitman paid a well-drilling company the remaining balance due before a contract provision, requiring the testing of the water, had been satisfied. 352 S.W.2d at 453. After payment, the well was tested and the water proved unusable. Id. The city then sought recovery from the surety for the full amount paid. Id. The supreme court held that making the final payment on the contract before the water test had been completed, as required by the contract, was a material alteration, which prejudiced the surety; thus, no recovery was permitted. Id. at 456. Here, Cumberland argues that Nkwazi’s overpayment materially altered the AIA Contract; however, the evidence supports the jury’s findings that the Proposal, not the referenced AIA Contract, was the contract that Cumberland bonded. Therefore, Old Colony is inapplicable because Nkwazi did not materially alter the contract that was in effect. Instead, Cumberland had bonded Salinas’s performance under the Proposal, a contract which Cumberland does not argue Nkwazi materially altered. We overrule Cumberland’s first issue.

 

 

 

 

 

Appellate Attorney’s Fees

 

By its second issue, Cumberland argues that the district court erred in awarding appellate attorney’s fees contrary to the jury’s answers to Question 5. In response to Question 5, the jury awarded $84,783.71 in attorney’s fees to Nkwazi. The jury, however, awarded zero dollars to Nkwazi for each of the following subparts concerning appellate attorney’s fees: (1) for an appeal to the court of appeals, (2) for petition to the Supreme Court of Texas, and (3) for an appeal to the Supreme Court of Texas in the event petition was granted. Nkwazi filed a motion to disregard the jury’s answers. In the final judgment, the district court ordered that Cumberland pay Nkwazi $25,000, $10,000, and $5000, respectively, “in the event” these appeals were filed. Cumberland contends that the district court’s order was made in error. Nkwazi, however, argues that the uncontroverted evidence concerning appellate attorney’s fees established the amount as a matter of law, and the district court’s decision should be affirmed.

 

A trial court may disregard the jury’s negative finding and substitute its own affirmative finding only if the evidence conclusively establishes the affirmative finding. Brown v. Bank of Galveston, Nat’l Ass’n, 930 S.W.2d 140,145 (Tex. App.–Houston [14th Dist.] 1996), aff’d, 963 S.W.2d 511, 515-16 (Tex. 1998). The amount of attorney’s fees to be awarded is a question of fact and must be supported by credible evidence; this amount rests in the sound discretion of the trial court and its findings will not be disturbed, absent an abuse of discretion. A.V.I., Inc. v. Heathington, 842 S.W.2d 712, 718 (Tex. App.–Amarillo 1992, writ denied); Travelers Ins. Co. v. Brown, 750 S.W.2d 916, 918-19 (Tex. App.–Amarillo 1988, writ denied). While the fact finder ordinarily determines the reasonableness of the amount, the decision may not be arbitrary. Gunter v. Baily, 808 S.W.2d 163, 166 (Tex. App.–El Paso 1991, no writ). Evidence of attorney’s fees that is clear, direct, and uncontroverted is taken as true as a matter of law, especially when the opposing party has not rebutted the evidence. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990). Testimony by an interested witness may establish the amount of attorney’s fees as a matter of law only if: (1) the testimony could be readily contradicted if untrue; (2) it is clear, direct, and positive; and (3) there are no circumstances tending to discredit or impeach it. Id.

 

At trial, Nkwazi presented expert testimony concerning reasonable attorney’s fees from Robert Shaffer, an attorney for Nkwazi. He testified as to the reasonableness of the requested fees for trial, as well as the fees that might be required in the event of an appeal to the court of appeals and the supreme court. Cumberland did not offer an expert of its own to refute Shaffer’s testimony. Cumberland did extensively cross-examine Shaffer regarding attorney’s fees accrued by Nkwazi related to the pretrial events and up to the trial itself. However, Cumberland did not cross-examine or offer any controverting or impeaching evidence concerning the requested appellate attorney’s fees. The evidence that $40,000 was a reasonable attorney’s fee for potential appeals was clear, direct, and positive and could have been readily controverted if the amount was not reasonable. See Cale’s Clean Scene Carwash, Inc. v. Hubbard, 76 S.W.3d 784, 788 (Tex. App.–Houston [14th Dist.] 2002, no pet.). Therefore, Nkwazi established as a matter of law the amount of attorney’s fees, and the district court did not err in awarding a reasonable amount as shown by the evidence. We overrule Cumberland’s second issue.

 

 

 

 

 

Prejudgment Interest

 

By its third issue, Cumberland argues that the district court erred in awarding Nkwazi prejudgment interest calculated at the rate of ten percent per annum. Cumberland, citing an earlier version of section 302.002 of the finance code, contends that the appropriate rate should have been six percent per annum because the contract ascertains an amount payable. See Act of May 24, 1997, 75th Leg., R.S., ch. 1008, § 1, sec. 302.002, 1997 Tex. Gen. Laws 3091, 3422 (amended 1999) (current provision at Tex. Fin. Code Ann. § 302.002 (West Supp. 2003)); Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 950 S.W.2d 371, 372-73 (Tex. 1997). Specifically, Cumberland argues that the performance bond and the underlying AIA Contract, which Nkwazi should have used, defined Cumberland’s contractual obligation under the bond. Alternatively, Cumberland argues that if this Court holds that the Proposal is the contract in effect, then the interest rate should still be calculated at six percent because the project specifications referenced in the Proposal provide that AIA form A201constitutes the “general conditions of [the] contract” and “clearly spell out the method by which damages for the Contractor’s breach are to be calculated.” Cumberland concedes that the “time frame adopted by the trial court was accurate.” Nkwazi argues that the court did not err because the Proposal is the contract and read in conjunction with the performance bond, provides no method for ascertaining Salinas’s or Cumberland’s liability. Because we have held that the Proposal is the contract between Nkwazi and Salinas, we accept Nkwazi’s argument.

 

In a breach-of-contract cause of action, prejudgment interest is calculated as simple interest and is based on the postjudgment interest rate applicable at the time of judgment. Johnson & Higgins, Inc. v. Kenneco Energy, 962 S.W.2d 507, 532 (Tex. 1998). In Johnson & Higgins, the supreme court held that there are two legal sources for an award of prejudgment interest: (1) general principles of equity and (2) an enabling statute. Id. at 528. Under the finance code, prejudgment interest applies only to judgments in wrongful death, personal injury, property damage, and condemnation cases. Tex. Fin. Code Ann. §§ 304.102, .201 (West Supp. 2003); Johnson & Higgins, 962 S.W.2d at 530. Because Nkwazi’s breach-of-contract claim does not fall within the statutory provisions, prejudgment interest is governed by the common law. Johnson & Higgins, 962 S.W.2d at 530. Prejudgment interest accrues at the rate for postjudgment interest and shall be computed as simple interest. Id. at 532; see also International Turbine Servs., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 500 (5th Cir. 2002). Under the finance code, postjudgment interest is computed under the provisions of section 304.003; therefore, prejudgment interest is ten percent per annum, simple interest. Tex. Fin. Code Ann. § 304.003(c) (West Supp. 2003).

 

Cumberland’s reliance on the earlier version of the finance code is misplaced. The provisions of former section 302.002 do not govern the calculation of prejudgment interest in this action. See Walden v. Affiliated Computer Servs., Inc., 97 S.W.3d 303, 330 (Tex. App.–Houston [14th Dist.] 2003, pet. filed) (section 302.002 does not apply to award of prejudgment interest). The district court was thus correct in ordering that prejudgment interest should run at ten percent per annum. Cumberland’s third issue is overruled.

 

 

 

 

 

Conclusion

 

We affirm the district-court judgment.

 

 

 

 

 

 

__________________________________________ Lee Yeakel, Justice

 

Before Justices Kidd, B. A. Smith and Yeakel

 

Affirmed

 

Filed: June 12, 2003

 

  1. For clarity we will refer to the Patels by their first names.

 

  1. The “Bid Proposal Form” contained the following language:

 

 

 

 

Bidder has carefully examined the form of contract, instructions to bidders, profiles, grades, specifications and the plans therein . . . and will do all the work and furnish all the material called for in the contract DRAWINGS and specifications . . . . In the event of the award of a contract to the undersigned, the undersigned will execute same on [an AIA] Standard Form Construction Contract and make bond for the full amount of the contract, to secure proper compliance with the terms and provisions of the contract . . . . The work proposed to be done shall be accepted when fully complied and finished to the entire satisfaction of the Architect and the Owner.

 

  1. Cumberland argues that the appropriate contract was AIA Document A101. Such document requires, inter alia, that: “Final payment . . . shall be made by the Owner to the Contractor when . . . a final Certificate for Payment has been issued by the Architect.” A101 also incorporated by reference AIA Document A201, which requires: “The Architect will provide administration of the Contract as described in the Contract Documents, and will be the Owner’s representative (1) during construction, (2) until final payment is due . . . . The Architect will advise and consult with the Owner. The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the completed Work . . . .”

 

  1. The Proposal was a form included in the specifications book prepared by Nkwazi’s architect.

 

  1. Salinas declared bankruptcy and was not joined as a party.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Residential Construction Liability Act Litigation Involving Roofing Contractor–Fort Worth Construction Defense Attorneys

 

Court of Appeals of Texas,Fort Worth.

Roy HERNANDEZ, Individually and d/b/a Hernandez Roofing, Appellant and Appellee, v. Philip LAUTENSACK, Appellee and Appellant.

No. 2-05-085-CV.

    Decided: April 13, 2006

Panel A:  CAYCE, C.J.;  HOLMAN and GARDNER, JJ.

OPINION

I. Introduction

Roy Hernandez, individually and d/b/a/ Hernandez Roofing and Philip Lautensack filed cross appeals from a judgment in favor of Lautensack concerning the roof Hernandez put on Lautensack’s house.   In three issues, Hernandez argues that Lautensack’s presuit notice under the Residential Construction Liability Act was untimely, that there was no evidence that Lautensack’s alleged damages were reasonable, and that the trial court erred in awarding attorney’s fees to Lautensack because his presuit demand was excessive.   In two issues, Lautensack argues that the evidence conclusively proved his attorney’s fees in an amount double what the jury awarded to him and that the trial court erred by refusing to reopen testimony so that Lautensack’s counsel could testify about appellate attorney’s fees.   We modify the trial court’s judgment and affirm it as modified.

II. Factual and Procedural Background

In 1999, Lautensack hired Hernandez to replace the slate tile roof on Lautensack’s residence at a cost of $20,000.   The new roof had many leaks that Hernandez was unable to stop.   In 2002, Hernandez told Lautensack that the leaks were the result of hail damage and offered to replace the roof for $9,100 in labor charges if Lautensack provided new slate tiles at a cost of $25,000.   Unhappy with Hernandez’s prior work, Lautensack hired another roofer, Kip Petty, to install a new cement tile roof for $32,300.   Petty documented several defects in Hernandez’s previous roofing job, including lack of proper underlayment, lack of metal flashing, and improper tile spacing.   Petty replaced the roof in September 2002.

Lautensack sent Hernandez a claim notice letter on February 12, 2003, by certified and regular mail.   The letter described various problems with the roof, alleged breaches of express warranties and DTPA violations, and threatened litigation unless Hernandez paid Lautensack $41,880.   The certified letter was returned unclaimed;  the regular letter was not returned.   Hernandez did not reply.

Lautensack sued Hernandez on April 17, 2003, for breach of contract, misrepresentation, fraud, and deceptive trade practices and sought actual damages, attorney’s fees, and exemplary damages.   Hernandez responded with a plea in abatement claiming that Lautensack had failed to serve the requisite presuit notice under the Residential Construction Liability Act (“RCLA”).   See Tex. Prop.Code Ann. §§ 27.001-.003 (Vernon Supp.2005), .0031 (Vernon 2000), .004 (Vernon Supp.2005), .0041 (Vernon 2000), .0042 (Vernon Supp.2005, .005-.006 (Vernon 2003), .007 (Vernon Supp.2005).   Though Lautensack contended that his first letter was sufficient notice under the RCLA, he eventually sent a second notice letter in response to Hernandez’s plea in abatement.

The case was ultimately tried to a jury.   The jury returned a verdict in favor of Lautensack on all causes of action and awarded him $24,750 in actual damages plus $10,680 in attorney’s fees.   The jury also found that Lautensack’s RCLA notice was untimely because it did not give Hernandez the opportunity to inspect the alleged roof defects and offer to repair them.   For reasons not relevant to this appeal, the trial court disregarded the jury’s answers to the breach of warranty and DTPA issues.   The trial court then signed a judgment in favor of Lautensack for the amounts awarded by the jury.   Both parties appealed.

III. Discussion

A. Hernandez’s Issues 1. Timeliness of RCLA notice

In his first issue, Hernandez argues that the trial court erred by rendering judgment for Lautensack because the jury found that Lautensack’s presuit notice failed to meet the requirements of the RCLA. We disagree.

Section 27.004 of the RCLA provides that a claimant seeking damages arising from a contractor’s construction defect must give the contractor written notice of the alleged defect more than sixty days before filing suit.  Tex. Prop.Code Ann. § 27.004(a).   After receiving notice, the contractor has thirty-five days to inspect the property and forty-five days to make a written offer of settlement.  Id. § 27.004(a)-(b).  Under the RCLA as amended in 2003, failure of the claimant to give the requisite presuit notice results in dismissal of the suit.  Id. § 27.004(d).  But as Hernandez concedes in his brief, the prior version of the RCLA applicable to this suit contained no dismissal provision;  instead, it provided for abatement of a suit where the claimant failed to provide the requisite presuit notice.   See Act of May 17, 1995, 74th Leg., R.S., ch. 414, § 10, 1995 Tex. Gen. Laws 2988, 2996 (amended 2003) (current version at Tex. Prop.Code Ann. § 27.004(d)).

The trial court submitted the following question to the jury as part of the charge:

Do you find that, 60 days preceding the filing of this suit by Philip Lautensack against Roy Hernandez, Philip Lautensack gave written notice by Certified Mail/Return Receipt Requested to Roy Hernandez specifying, in reasonable detail, the construction defects that are the subject of the complaint at a time when Roy Hernandez could have performed any of the following:

a.  Within 35 days of receipt of the written notice, Roy Hernandez had a reasonable opportunity to inspect the property, to determine the nature and cause of the construction defect and the nature and extent of repairs necessary to remedy the construction defect?

b. Within 45 days of receipt of the written notice, make an offer to repair, or to have repaired by an independent contractor at Roy Hernandez’s expense, the construction defect described in the notice?

The jury answered “no” to both parts of the question.

Hernandez argues that the jury’s answers to this question compel a judgment in his favor.   Hernandez does not argue that the content of Lautensack’s notice was deficient;  rather, he argues that by replacing the roof before he sent his notice letter, Lautensack deprived Hernandez of the opportunity to inspect the property and offer to repair the alleged defects under RCLA section 27.004.

We reject Hernandez’s argument for several reasons.   First, the practical effect of Hernandez’s argument is to engraft the dismissal provision of the current RCLA onto the prior version that controls this case.   This we cannot do.   We must apply the law as the legislature wrote it.  Reese v. Duncan, 80 S.W.3d 650, 658 (Tex.App.-Dallas 2002, pet. denied).   Second, the RCLA’s intent to give a contractor a reasonable opportunity to inspect the property upon request was effectuated under the facts of this case.   The undisputed evidence at trial proved that Hernandez did in fact inspect the roof many times when he attempted to repair leaks before it was replaced and submitted a bid to replace the roof in September 2002.   Lautensack rejected Hernandez’s bid and chose to have his roof replaced by another contractor.   Third, the RCLA expressly provides that a contractor may make a monetary settlement offer, not just an offer to repair the defects.  Tex. Prop.Code Ann. § 27.004(b), (n).  The fact that Lautensack had the defective roof replaced before he sent his notice letter did not deprive Hernandez of the opportunity to inspect the roof, make an offer to repair or replace the roof, or make a timely, monetary settlement offer.

The version of the RCLA that governs this suit simply does not provide for the result that Hernandez seeks.   We overrule his first issue.

2. No evidence of reasonable cost of repair

In his second issue, Hernandez argues that there was no evidence that Lautensack’s repair costs were reasonable.   We disagree.

A legal sufficiency challenge may only be sustained when:  (1) the record discloses a complete absence of evidence of a vital fact;  (2) the court is barred by rules of law or of evidence from giving 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 mere scintilla;  or (4) the evidence establishes conclusively the opposite of a vital fact.  Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999);  Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362-63 (1960).   In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not.  City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex.2005).

A party seeking recovery for the cost of repairs must prove their reasonable value.  Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585, 589 (Tex.App.-Fort Worth 1996, writ denied).   To establish the right to recover costs of repair, it is not necessary for a claimant to use the words “reasonable” and “necessary”;  a claimant need only present sufficient evidence to justify a jury’s finding that the costs were reasonable and the repairs necessary.  Id.;  Ron Craft Chevrolet, Inc. v. Davis, 836 S.W.2d 672, 677 (Tex.App.-El Paso 1992, writ denied).

Kip Petty, the roofer who replaced the roof installed by Hernandez, testified without objection as an expert in residential roof installation generally and slate tile roofs specifically.   Petty testified that Hernandez failed to install adequate metal flashing, failed to space the slate tiles far enough apart, and improperly installed the roof underlayment.   He testified that because of these defects, the roof Hernandez installed “never had a chance” to be watertight.   Petty determined after his first inspection that the roof could not be repaired and needed to be replaced.   He testified that he bid $32,330 to replace the roof, and his invoice reflects that Lautensack paid the full amount.

Don Gove testified that he performed structural carpentry work on Lautensack’s house in conjunction with Petty’s roof replacement.   Gove testified that Lautensack’s house was designed to carry a cedar shingle roof, which would weigh about a third as much as a slate tile roof.   Gove replaced several rafters that had sagged or broken under the weight of Hernandez’s roof.   He performed this work according to the recommendations of a structural engineer.   Gove charged $2,400 for the structural work, plus another $1,500 for altering three dormer windows to accept appropriate flashing.   Gove specifically testified that those repairs were necessary.

Other evidence showed that the Hernandez charged $20,000 for the roof he installed on Lautensack’s house and that Hernandez offered to replace his first roof for $9,100 plus $25,000 in slate to be provided by Lautensack.   Hernandez himself offered the estimate of another roofer to replace just 419 out of the 14,000 to 15,000 slate tiles on Lautensack’s roof for $22,015.   We conclude that this is some evidence to support the $24,750 in actual damages awarded by the jury as the reasonable cost of replacing Lautensack’s roof.   We overrule Hernandez’s second issue.

3. Excessive demand

In his final issue, Hernandez argues that the trial court erred by awarding attorney’s fees to Lautensack because the jury found that Lautensack’s settlement demand was excessive.   Once again, we disagree.

In Findlay v. Cave, the supreme court held that a creditor who makes an excessive demand on a debtor is not entitled to attorney’s fees under Tex.Rev.Civ. Stats.  Ann.. art. 2226 (now chapter 38 of the civil practice and remedies code) for subsequent litigation required to recover the debt.  611 S.W.2d 57, 58 (Tex.1981);  see Tex. Civ. Prac. & Rem.Code Ann. § 38.001-.002 (Vernon 1997).   A demand is not excessive simply because it is greater than what the jury later determines is actually due.   Pratt v. Trinity Projects, Inc., 26 S.W.3d 767, 769 (Tex.App.-Beaumont 2000, pet. denied).   The dispositive inquiry for determining whether a demand is excessive is whether the claimant acted unreasonably or in bad faith.   Id.;  Allstate Ins. Co. v. Lincoln, 976 S.W.2d 873, 876 (Tex.App.-Waco 1998, no pet.).   Application of this rule is limited to situations where the creditor refuses a tender of the amount actually due or indicates clearly to the debtor that such a tender would be refused.  Findlay, 611 S.W.2d at 58.

In this case, the record contains no evidence that Hernandez ever tendered the amount actually due, that Lautensack refused any such tender, or that Lautensack indicated to Hernandez that such a tender would be refused.   We hold, therefore, that there was legally insufficient evidence to support the jury’s finding that Lautensack’s demand was excessive and that the trial court did not err by disregarding that finding and awarding attorney’s fees to Lautensack.   See Tex.R. Civ. P. 301 (providing that trial court may disregard any jury finding that has no support in the evidence).   We overrule Hernandez’s third issue.

B. Lautensack’s Issues

1. Attorney’s fees

In his first issue, Lautensack argues that he conclusively proved reasonable and necessary attorney’s fees of $21,360 through the end of trial and that the trial court erred by awarding him only the $10,680 in attorney’s fees-exactly half the amount he claimed-that the jury found were reasonable and necessary.

The amount of reasonable attorney’s fees is usually a question for the fact finder.  Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex.1990).   The testimony of an interested witness on attorney’s fees generally does no more than raise a fact issue.  Id. But testimony from an interested witness may prove attorney’s fees as a matter of law when the testimony is not contradicted by any other witness or attendant circumstances and is free from contradiction, inaccuracies, and circumstances tending to cast suspicion on the evidence, especially when the opposing party had the means and opportunity of disproving the testimony and failed to do so.  Id.;  see also Welch v. Hrabar, 110 S.W.3d 601, 610-11 (Tex.App.-Houston [14th Dist.] 2003, pet. denied);  Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 62-63 (Tex.App.-El Paso 2000, no pet.);  Gulf Shores Council of Co-Owners, Inc. v. Raul Cantu No. 3 Family Ltd. P’ship, 985 S.W.2d 667, 677 (Tex.App.-Corpus Christi 1999, pet. denied).

In this case, Lautensack’s attorney, Mr. Holland, testified that Lautensack had incurred reasonable and necessary attorney’s fees through the end of trial of $21,360.   He introduced as exhibits his monthly invoices, which reflected the work he performed, how long it took, and how much he charged for it.   Hernandez cross-examined Holland extensively, but the focus of the cross-examination was whether Lautensack had complied with the RCLA’s notice requirements.   The closest Hernandez came to controverting Lautensack’s attorney’s fees was when he asked whether the work Holland performed before sending the second demand letter was “premature,” to which Holland answered “no.”   Because Holland answered the question in the negative, his fees remained uncontroverted.

No other witness contradicted Holland’s testimony;  indeed, no other witness testified about attorney’s fees.   Holland’s testimony and exhibits were free from contradiction, inaccuracy, and circumstances tending to cast suspicion on them.   Hernandez had the opportunity to contradict Holland’s testimony but failed to do so.

We hold that Lautensack proved reasonable and necessary attorney’s fees of $21,360 as a matter of law and sustain his first issue.

2. Refusal to permit additional testimony

In his second issue, Lautensack argues that the trial court erred by refusing to reopen testimony so that he could offer evidence of his anticipated attorney’s fees in the court of appeals and supreme court.

Rule of procedure 270 provides that a trial court may permit additional evidence to be offered at any time when it clearly appears necessary to the administration of justice.  Tex.R. Civ. P. 270.  Rule 270 allows, but does not require, the court to permit additional evidence.  Lopez v. Lopez, 55 S.W.3d 194, 201 (Tex.App.-Corpus Christi 2001, no pet.).   In determining whether to grant a motion to reopen, the trial court considers whether:  (1) the moving party showed due diligence in obtaining the evidence, (2) the proffered evidence is decisive, (3) reception of such evidence will cause undue delay, and (4) granting the motion will cause an injustice.  Word of Faith World Outreach Ctr. Church v. Oechsner, 669 S.W.2d 364, 366-67 (Tex.App.-Dallas 1984, no writ).   The decision to reopen is within the trial court’s sound discretion. Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex.App.-Fort Worth 1998, no pet.).   A trial court does not abuse its discretion by refusing to reopen a case after evidence is closed if the party seeking to reopen has not shown diligence in attempting to produce the evidence in a timely fashion.   See id.   The trial court should exercise its discretion liberally “in the interest of permitting both sides to fully develop the case in the interest of justice.”  Word of Faith, 669 S.W.2d at 366-67.

Lautensack had every opportunity to put on evidence of his appellate attorney’s fees before the trial court closed the evidentiary phase of the trial.   His attorney testified at length about his fees.   Nothing in the record shows that Lautensack was diligent in attempting to produce evidence of his appellate attorney’s fees in a timely fashion, nor does he address the question of diligence in his brief.   Under these circumstances, “the interests of justice do not warrant a second bite at the apple.” Estrello, 965 S.W.2d at 759.   We hold that the trial court did not abuse its discretion by denying Lautensack’s motion to reopen the evidence.   We overrule his second issue.

3. Motion for judicial notice

Lautensack has filed a motion requesting that we take judicial notice of his attorney’s affidavit and other documents filed in the trial court and attached to his brief in this court.   Lautensack represents that those documents reflect what he would have claimed as appellate attorney’s fees if the trial court had allowed him to reopen the evidence.   Because we hold that the trial court did not abuse its discretion by refusing to reopen the evidence, we deny Lautensack’s motion for judicial notice as moot.

IV. Conclusion

We overrule Hernandez’s issues and Lautensack’s second issue.   We sustain Lautensack’s first issue and modify paragraph 2 of the trial court’s judgment to state, “Plaintiff is entitled to recover from Defendant reasonable and necessary attorney’s fees in the amount of $21,360.”   We affirm the judgment as modified.   See Tex.R.App. P. 43.2(b).

ANNE GARDNER, Justice.

– See more at: http://caselaw.findlaw.com/tx-court-of-appeals/1446994.html#sthash.Y7Xiy6yM.dpuf

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Texas Bill Would Create Roofing Contractor Registration Program–Fort Worth Roofing Contractor Attorneys

February 26, 2015

Texas state Representative Kenneth Sheets filed legislation that would establishes a voluntary roofing contractor registration program with the Texas Department of Insurance (TDI).

Sheets said House Bill 1488, known as the Roofing Contractor Consumer Protection Act, would help protect consumers from unscrupulous roofing contractors. Under the bill, roofing contractors installing replacement roofs in Texas would have the option to register with TDI, placing them in a state-wide database maintained by the TDI.

“Texas property owners face some of the highest homeowners insurance rates in the nation, in large part because of the unique weather risks faced by the state,” Rep. Sheets said in a statement announcing the bill. “Sadly, the problem of severe weather is made worse by the influx of contractors to an affected area that are either unable or unwilling to perform quality work. Poor work causes more severe and frequent property claims for homeowners, which then leads to higher insurance rates.”

In addition to the creation of the state-wide database, HB 1488 tightens existing law by prohibiting all roofing contractors, regardless of their participation in the statewide registration, from rebating consumer insurance deductibles and requires disclosure to consumers the status of their liability insurance coverage.

“More often than not, the bad actors in the industry are not bonded or insured, leaving the homeowner without any recourse for work that is incomplete or improperly installed,” Rep. Sheets said. “A common sense disclosure requirement coupled with a voluntary registration database will provide consumers more tools to protect their properties from those who seek to take advantage of a catastrophe.”

http://www.insurancejournal.com/news/southcentral/2015/02/26/358782.htm

Source: Texas House of Representatives

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Texas Fraud Statutes in Chapter 27 Business & Commerce Code–Texas Business Attorneys

CHAPTER 27. FRAUD

BUSINESS AND COMMERCE CODE

TITLE 3. INSOLVENCY, FRAUDULENT TRANSFERS, AND FRAUD

CHAPTER 27. FRAUD

 

Sec. 27.02. CERTAIN INSURANCE CLAIMS FOR EXCESSIVE CHARGES. (a) A person who sells goods or services commits an offense if:

(1) the person advertises or promises to provide the good or service and to pay:

(A) all or part of any applicable insurance deductible; or

(B) a rebate in an amount equal to all or part of any applicable insurance deductible;

(2) the good or service is paid for by the consumer from proceeds of a property or casualty insurance policy; and

(3) the person knowingly charges an amount for the good or service that exceeds the usual and customary charge by the person for the good or service by an amount equal to or greater than all or part of the applicable insurance deductible paid by the person to an insurer on behalf of an insured or remitted to an insured by the person as a rebate.

(b) A person who is insured under a property or casualty insurance policy commits an offense if the person:

(1) submits a claim under the policy based on charges that are in violation of Subsection (a) of this section; or

(2) knowingly allows a claim in violation of Subsection (a) of this section to be submitted, unless the person promptly notifies the insurer of the excessive charges.

(c) An offense under this section is a Class A misdemeanor.

Added by Acts 1989, 71st Leg., ch. 898, Sec. 1, eff. Sept. 1,

 

Sec. 35.02. INSURANCE FRAUD. (a) A person commits an offense if, with intent to defraud or deceive an insurer, the person, in support of a claim for payment under an insurance policy:

 

(1) prepares or causes to be prepared a statement that:

 

(A) the person knows contains false or misleading material information; and

 

(B) is presented to an insurer; or

 

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

 

(a-1) A person commits an offense if the person, with intent to defraud or deceive an insurer and in support of an application for an insurance policy:

 

(1) prepares or causes to be prepared a statement that:

 

(A) the person knows contains false or misleading material information; and

 

(B) is presented to an insurer; or

 

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

 

(b) A person commits an offense if, with intent to defraud or deceive an insurer, the person solicits, offers, pays, or receives a benefit in connection with the furnishing of goods or services for which a claim for payment is submitted under an insurance policy.

 

(c) An offense under Subsection (a) or (b) is:

 

(1) a Class C misdemeanor if the value of the claim is less than $50;

 

(2) a Class B misdemeanor if the value of the claim is $50 or more but less than $500;

 

(3) a Class A misdemeanor if the value of the claim is $500 or more but less than $1,500;

 

(4) a state jail felony if the value of the claim is $1,500 or more but less than $20,000;

 

(5) a felony of the third degree if the value of the claim is $20,000 or more but less than $100,000;

 

(6) a felony of the second degree if the value of the claim is $100,000 or more but less than $200,000; or

 

(7) a felony of the first degree if:

 

(A) the value of the claim is $200,000 or more

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 1162, Sec. 4, eff. September 1, 2005.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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