George Heigel and Patti Callis v. Tanya McComas--Appeal from 161st District Court of Ector County

Opinion filed September 27, 2007

In The

Eleventh Court of Appeals

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 No. 11-06-00134 -CV

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GEORGE HEIGEL AND PATTI CALLIS, Appellants

V.

TANYA MCCOMAS, Appellee

On Appeal from the 161st District Court

Ector County , Texas

Trial Court Cause No. B-117,499

M E M O R A N D U M O P I N I O N

George Heigel and Patti Callis appeal from the trial court=s judgment awarding them $400 for damages from Tanya McComas. We affirm.

Background Facts

Heigel and Callis entered into a contract to purchase property from McComas in 1999. Heigel and Callis sued McComas for breach of that contract, specifically for failing to provide them with an accounting statement in accordance with Tex. Prop. Code Ann. ' 5.077 (Vernon Supp. 2006). The parties proceeded to a jury trial only on the issue of failing to provide the accounting statements. The jury found that McComas failed to provide Heigel and Callis with an accounting statement for the years 2001, 2002, and 2003 and that she provided the 2004 statement after the January 31 statutory deadline. The trial court entered a judgment for Heigel and Callis awarding damages in the amount of $400.

Issues on Appeal

Heigel and Callis raise three issues on appeal. First, they contend that the trial court erred in applying the amended version of Section 5.077(c). Second, they contend that the trial court erred in not granting their motion for attorney=s fees. Third, they contend that the trial court erred in granting McComas=s motions for continuance and not invoking the doctrine of estoppel to her claim that the amendments to the code should apply. McComas raises a conditional cross-issue on appeal. She asserts that the Section 5.077 violates the Aexcessive fines@ clause of the Texas Constitution.

Discussion

In an executory contract, a seller is required to give a purchaser an annual accounting statement in January of each year for the term of the contract. Section 5.077. A seller that fails to provide an accounting statement is liable to the purchaser for liquidated damages in the amount of $100 for each year that an annual statement is not provided. Section 5.077(c)(1). This section was amended to its current version on September 1, 2005. Before 2005, the statute provided for liquidated damages in the amount of $250 a day for each day after January 31 the seller failed to provide the purchaser with the statement.

Heigel and Callis argue that the trial court erred in applying the amended statute by awarding damages of only $400. After trial, Heigel and Callis filed a proposed judgment awarding them damages of $250 for each day after January 31 that the accounting statement was not provided, for the total amount of $250,500. McComas filed a motion for JNOV asserting that the trial court should dismiss plaintiff=s claim or in the alternative the trial court should award damages of $100 for each year the accounting statement was not provided in accordance with the amended version of Section 5.077(c), for a total amount of $400.

In order to determine which statute applies we turn to the Code Construction Act set forth in Chapter 311 of the Government Code. Tex. Gov=t Code Ann. ch. 311 (Vernon 2005 & Supp. 2006). This chapter governs the construction of the provisions of the Property Code unless otherwise expressly provided. Tex. Prop. Code Ann. ' 1.002 (Vernon 2004). Because Section 5.077 does not contain a provision governing the effect of a reenactment, revision, amendment, or repeal of the statute, the general savings provision of the Code of Construction Act applies. It provides:

If the penalty, forfeiture, or punishment for any offense is reduced by a reenactment, revision, or amendment of a statute, the penalty, forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as amended.

Section 311.031(b). The liquidated damages provision of the statute acts as a penalty not related to actual harm of the party. Flores v. Millennium Interests, LTD., 185 S.W.3d 427, 429 (Tex. 2005). Section 5.077(c), as amended, reduces the penalty. In this case, the penalty was not already imposed at the time of the amendment, and the amended statute applies. See Op. Tex. Att=y Gen. No. GA-0418, 31 Tex. Reg. 3329-30 (2006). The trial court did not error in awarding Heigel and Callis $400 in damages. Their first issue on appeal is overruled.

Heigel and Callis next argue that the trial court erred in denying their motion for attorney=s fees. In addition to the liquidated damages, a seller that fails to provide the accounting statement is liable for reasonable attorney=s fees. Section 5.077(c)(2). Heigel and Callis requested attorney=s fees in the amount of $2,000 in their petition. However, the issue of attorney=s fees was not submitted to the jury. After the jury trial, Heigel and Callis filed a motion for attorney=s fees. Attached to the motion was an affidavit by their counsel. The affidavit stated that counsel worked eighty hours on the case at the reasonable rate of $150 per hour and that reasonable attorney=s fees in this case was $12,000.

Reasonableness of attorney=s fees is a question of fact to be decided by the trier of fact and must be supported by competent evidence. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 161 (Tex. 2004); Smith v. Smith, 757 S.W.2d 422, 424 (Tex. App.CDallas 1988, writ denied). We note that a reporter=s record was not submitted because Heigel and Callis did not request one. Despite Heigel and Callis presenting evidence of attorney=s fees in the affidavit attached to their motion, the issue was not submitted to the jury. Furthermore, without the reporter=s record we cannot determine if any evidence was presented to the jury regarding attorney=s fees. The trial court did not err in denying the motion for attorney=s fees. The second issue on appeal is overruled.

Heigel and Callis argue in their third issue that the trial court erred in granting McComas=s motions for continuance and not invoking the doctrine of estoppel to her claim that the amended statute applies. McComas filed motions for continuance on December 15, 2004, March 4, 2005, and July 29, 2005. All three of the motions for continuance asked to continue the case to await the decision of the Texas Supreme Court on a certified question from the Fifth Circuit regarding the interpretation of Section 5.077. See Flores, 185 S.W.3d 427. The trial court granted McComas=s first two continuances, but it is unclear from the record whether the third motion was granted or denied.[1] The jury trial was held on November 29, 2005, several months after the amended statute went into effect.

We review the trial court=s decision to grant a motion for continuance under an abuse of discretion standard. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). There is a presumption that the trial court properly exercised its discretion in granting a continuance. Cent. Nat=l Gulfbank v. Comdata Network, Inc., 773 S.W.2d 626, 627 (Tex. App.CCorpus Christi 1989, no writ). The record must affirmatively establish that the trial court acted arbitrarily and unreasonably for an appellate court to reverse the trial court for an abuse of discretion. Green v. Kaposta, 152 S.W.3d 839, 842 (Tex. App.CDallas 2005, no pet.); Schindler v. Austwell Farmers Coop., 829 S.W.2d 283, 289 (Tex. App.CCorpus Christi), aff=d as modified, 841 S.W.2d 853 (Tex. 1992).

The doctrine of estoppel prohibits a person from inducing another to act in a particular manner and, therefore, adopting an inconsistent position and causing loss or injury to another. Maguire Oil Co. v. City of Houston, 69 S.W.3d 350, 367 (Tex. App.CTexarkana 2002, pet. denied); Fabrique, Inc. v. Corman, 796 S.W.2d 790, 792 (Tex. App.CDallas 1990), writ denied, 806 S.W.2d 801 (Tex. 1991); Mobil Oil Corp. v. Frederick, 615 S.W.2d 323, 325 (Tex. Civ. App.CFort Worth), aff=d in part & rev=d in part on other grounds, 621 S.W.2d 595 (Tex. 1981). The doctrine of equitable estoppel requires (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515 16 (Tex. 1998);Odessa Tex. Sheriff=s Posse, Inc. v. Ector County, 215 S.W.3d. 458, 459 (Tex. App.CEastland 2006, pet. denied).

Heigel and Callis have not shown how the trial court abused its discretion. There is no record of a hearing on any of the motions. In her motions, McComas relies on a relevant pending case regarding the interpretation of Section 5.077. There is nothing in the record to show that McComas made any false representation of the facts or that she had any knowledge of the upcoming amendment to the statute or its effect on this case. McComas is not estopped from receiving the benefits of the amended statute. After examining the record, we cannot say that the trial court abused its discretion in granting McComas=s motions for continuance. Heigel=s and Callis=s third issue on appeal is overruled.

Conclusion

Because we have overruled all of Heigel=s and Callis=s issues on appeal, we need not discuss McComas=s cross-issue on appeal.

The trial court=s judgment is affirmed.

RICK STRANGE

JUSTICE

September 27, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]McComas also filed a motion for continuance of the summary judgment hearing on August 4, 2005. CR 48 The clerk=s record contains an order dated August 16, 2005, denying motion for continuance. It is unclear to which motion this order applies. However, this does not affect our determination of this case.