Opinion

Opinion issued January 22, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00079-CV

EMZY T. BARKER, III AND AVA BARKER, D/B/A BRUSHY CREEK

BRAHMAN CENTER AND BRUSHY CREEK CUSTOM SIRES, Appellants

V.

WALTER W. ECKMAN, INDIVIDUALLY AND AS NOMINEE AND

TRUSTEE OF THE ECKMAN FAMILY TRUST; ECKMAN, INC.; AND

LARRY ECKMAN, Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 97-29163

MEMORANDUM OPINION ON REHEARING Appellants Emzy T. Barker, III and Ava Barker have filed a motion for

rehearing and motion for en banc reconsideration. We grant their motion for

rehearing, withdraw our January 23, 2003 opinion, vacate our January 23, 2003

judgment, and dismiss as moot the motion for en banc reconsideration. See Butler v.

State , 6 S.W.3d 636 , 637 n.1 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d)

(discussing treatment of motions for en banc consideration).

This appeal arises out of an agreement to store bull semen. Appellee Walter

W. Eckman sued—both individually and on behalf of others—appellants Emzy T.

Barker, III and Ava Barker, who do business under the names Brushy Creek Brahman

Center and Brushy Creek Custom Sires. The Eckmans

sued for breach of contract,

alleging that the Barkers made sales of semen without providing notice and payment

and that the Barkers improperly charged them for storage.

The jury awarded the Eckmans $111,983.58 in damages and $222,000.00 in

attorney’s fees for the trial. The Barkers subsequently moved for judgment

notwithstanding the verdict, claiming the four–year statute of limitations barred the

Eckmans’ claims for all but $16,180.14 in breach–of–contract damages. See Tex.

Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (Vernon 2002) (four–year limitations

period for debt), § 16.051 (Vernon 1997) (four–year residual limitations period). The

Eckmans argued the lawsuit was timely filed under either the two– or four–year

statute of limitations, because they claim a cause of action for bailment does not

accrue until the bailor makes a demand on the bailee.

See Tex. Civ. Prac. & Rem.

Code Ann. § 16.003 (Vernon 2002) (two-year limitations period). The trial court

denied the Barkers’ motion and signed a final judgment on the jury’s verdict.

The Barkers bring three issues on appeal: (1) the Eckmans’ breach–of–contract

claims are barred by limitations; (2) to the extent the Eckmans’ claims are for

conversion, attorney’s fees are not recoverable; and (3) the $222,000.00 award of

attorney’s fees is not reasonably proportional to the Eckmans’ remaining $16,180.14

in damages. We affirm in part and reverse and render in part.

Discussion

The parties disagree on the nature of the bailment between them and the cause

of action for which the Eckmans’ sued. We agree with the Barkers that the bailment

between them and the Eckmans constitutes a contractual relationship. See Sanroc Co.

Int’l v. Roadrunner Transp., Inc. , 596 S.W.2d 320, 322 (Tex. Civ. App.—Houston

[1st Dist.] 1980, no writ). We also agree that this bailment relationship does not

create a special cause of action, but instead allows the bailors to chose specific relief

for a breach of the bailment contract, e.g. , an action for breach of contract or an action

for conversion. See Int’l Freight Forwarding, Inc. v. Am. Flange , 993 S.W.2d 262,

269 (Tex. App.—San Antonio 1999, no pet.). We also agree with the Barkers that the

Eckmans elected to sue for breach of contract, rather than conversion.

In their appellants’ brief, the Barkers contend it is undisputed that if the

four–year statute of limitations applies, then all but $16,180.14 in breach–of–contract

damages are barred. The Eckmans do not contradict this assertion regarding the facts

in their original appellees’ brief. Accordingly, we accept the Barkers’ factual

assertion that all but $16,180.14 in breach–of–contract damages are barred by the

statute of limitations. See Tex. R. App. P. 38.1(f).

We sustain issue one. In light of our disposition of issue one, we do not reach

issue two.

In issue three, the Barkers contend that in reviewing the amount of the jury’s

$222,000.00 award of attorney’s fees, this Court should consider only the $16,180.14

in breach–of–contract damages not barred by the statute of limitations, rather than the

jury’s award of $111,983.58. Comparing $220,000.00 to $16,180.14, the Barkers

argue this almost fourteen–to–one ratio of attorney’s fees to breach–of–contract

damages is so disproportional that this Court should suggest a remittitur or grant a

new trial.

On rehearing, the Barkers frame their request that we suggest a remittitur or

grant a new trial in terms of factual–sufficiency review. See Larson v. Cactus Utility

Co. , 730 S.W.2d 640, 641 (Tex. 1987) (specifying factual–sufficiency review as

standard when court of appeals orders remittitur). When reviewing a jury verdict to

determine the factual sufficiency of the evidence, this Court must consider and weigh

all the evidence and should set aside the judgment only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v.

Bain , 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate , 244 S.W.2d 660, 661

(Tex. 1951); see also Pool v. Ford Motor Co. , 715 S.W.2d 629, 635 (Tex. 1986).

The trial court submitted, without objection, an attorney’s–fees question to the

jury, and the jury answered as follows:

What is a reasonable fee for the necessary services of the

Eckmans’ attorneys in this case, stated in dollars and cents?

Answer with an amount for each of the following:

a.For preparation and trial.

ANSWER: $ 222,000.00

b.For an appeal to the Court of Appeals.

ANSWER: $ 10,000.00

c.For making or responding to a Petition for

Review to the Supreme Court of Texas.

ANSWER: $ 2,500.00

d.If Petition for Review is granted by the

Supreme Court of Texas.

ANSWER: $ 10,000.00

Factors to be considered in determining the reasonableness of attorney’s

fees include:

a.the time and labor involved, the novelty and difficulty of

the questions involved, and the skill required to perform the legal

services properly;

b.the fee customarily charged in the locality for similar legal

services;

c.the amount of money involved in the case and the results

obtained;

d.the experience, reputation, and ability of the lawyers

performing the services;

e.whether the fee is fixed or is contingent upon results

obtained; and [sic]

f.the time limitations imposed by the client or the

circumstances;

g.the nature and length of the professional relationship with

the client.

The Barkers did not object to the submission of this global attorney’s–fees question,

nor did they tender their own question asking the jury to segregate the Eckmans’

attorney’s fees for various services. Any error, therefore, in asking the jury to award

attorney’s fees globally has been waived. See Hruska v. First Nat’l Bank , 747

S.W.2d 783, 785 (Tex. 1988). We, therefore, review the factual sufficiency of the

attorney’s fees awarded by the jury in light of the jury’s award of $111,983.58 for the

Barkers’ failure to comply with the contract.

David Walter Eckman, one of the Eckmans’ attorneys, testified about the

attorney’s fees for which the Eckmans were billed. Robert Ketchand, who is board

certified in civil trial law, testified that he reviewed the billing summaries of the

Eckman’s attorneys and that the reasonable attorney’s fees were $222,000.00 for

preparation and trial, $10,000.00 for an appeal to the court of appeals, $2,500.00 for

making or responding to a petition for review to the Supreme Court of Texas, and

$10,000.00 if petition for review is granted by the Supreme Court of Texas. These

are the same amounts of attorney’s fees later found by the jury. The Barkers

cross–examined both attorneys Eckman and Ketchand, but did not elicit particularly

damaging statements from either.

After considering and weighing all the evidence on attorney’s fees in light of

the charge, we do not find that the trial court’s judgment in that regard to be so

contrary to the overwhelming weight of the evidence as to be clearly wrong and

unjust. We , therefore, overrule issue three.

Conclusion

Having granted the Barkers’ motion for rehearing, withdrawn our January 23,

2003 opinion, vacated our January 23, 2003 judgment, and dismissed as moot the

motion for en banc reconsideration, we now (1) reverse the portion of the trial court’s

judgment which awards breach–of–contract damages in the amount of $111,983.58

and prejudgment interest on that $111,983.58 and (2) render judgment awarding

breach–of–contract damages in the amount of $16,180.14 and prejudgment interest

on that $16,180.14. We affirm the remaining portion of the trial court’s judgment.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hedges.