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Click here for the full text of this decision FACTS:Michael Rosenblatt was a former agent for Freedom Life Insurance Co. of America. After sustaining injuries in a July 1999 automobile accident, Rosenblatt asserted claims for health-care benefits from Freedom Life. Rosenblatt sued Freedom Life, seeking damages for the company’s delays in investigating his claims and in paying him. Rosenblatt filed suit on Sept. 1, 2001, and amended his pleadings six times to assert varied common-law theories and multiple claims under the Texas Insurance Code and the Deceptive Trade Practices Act. Freedom Life obtained a partial summary judgment that narrowed Rosenblatt’s claims before the seven-day trial began, and the disputed issues narrowed further during trial. The trial court ultimately submitted the case to the jury on Rosenblatt’s common-law claim for bad faith and his claim that Freedom Life violated former Texas Insurance Code Art. 21.21, �4(10)(a)(v)(A) and committed an unfair settlement practice by failing to affirm or deny coverage within a reasonable time. The jury rejected Rosenblatt’s common-law claim but found, in response to the Texas Insurance Code question, that Freedom Life “fail[ed] to affirm or deny coverage of a claim within a reasonable time.” The jury awarded Rosenblatt $10,000 in damages for future physical impairment and $20,000 for conduct committed knowingly. The jury awarded no damages for past and future mental anguish, physical pain, medical bills and past physical impairment. In addition, the jury awarded no damages, in response to a three-pronged question concerning attorneys’ fees. After denying motions to disregard the jury’s findings filed by both parties, the trial court rendered judgment for Rosenblatt for $10,000 for future damages and $20,000 in additional damages, plus interest and costs. Rosenblatt did not file a motion for new trial. In his sole issue on appeal, Rosenblatt contended that he was entitled to judgment as a matter of law, because no evidence supported the jury’s failure to award any damages in response to the question concerning attorneys’ fees. Rosenblatt argued that the trial court was compelled to disregard the jury’s zero findings and to render judgment for statutorily authorized attorneys’ fees of $500,000. HOLDING:Affirmed. A trial court, the court stated, may disregard a jury’s verdict and render judgment notwithstanding the verdict pursuant to Texas Rule of Civil Procedure 301 if no evidence supports the jury’s findings or if a directed verdict would have been proper. As the party seeking attorneys’ fees, the court stated that Rosenblatt had the burden to demonstrate on appeal that the evidence conclusively established all vital facts in support of his claim as a matter of law. Rosenblatt contended that he was statutorily entitled to attorneys’ fees, because he prevailed and recovered damages on his Art. 21.21 claim. Interpreting the statute, the court agreed with Rosenblatt that the former Art. 21.21 mandates recovery of attorneys’ fees to a party who prevails and recovers damages on a claim. The express language of �16(b)(1) of former Art. 21.21. the court stated, further mandates that the party seeking attorneys’ fees establish that the fees sought are “reasonable and necessary.” Because Rosenblatt has expressly declined a new trial, the dispositive question was whether Rosenblatt established his entitlement to $500,000 as reasonable and necessary attorneys’ fees. Rosenblatt’s trial attorney Tracy Conwell referred several times during her testimony to the amount of $500,000, describing it as a reasonable amount of attorneys’ fees for the work she had done in this case. In analyzing Conwell’s testimony, the court cited a three-prong test to determine whether the testimony settled the issue: 1. the testimony could readily be contradicted if untrue; 2. the testimony was clear, direct and positive; and 3. there were no circumstances that tended to discredit or impeach the testimony. First, the court did not agree that Conwell’s testimony conclusively established that $500,000 was a reasonable amount for attorneys’ fees or that her testimony was uncontroverted, because Conwell controverted her own testimony. Despite testifying that $500,000 was a reasonable fee, the court found that Conwell also explained the terms of her contingent-fee contract, the total hours worked and her hourly rate. If a party, the court stated, presents evidence of a fixed amount as a reasonable attorneys’ fee and a contingent-fee contract that results in a lesser fee, then claims that the contract was reasonable and that the jury could rely on either calculation, that party may not argue on appeal that the evidence attesting to the reasonableness of the higher amount was uncontroverted. Second, the court found that Conwell’s inconsistencies, estimates and equivocation in her testimony rendered it less than clear, positive and direct. Finally, the court found that although Conwell summarized her work for this case, she failed to offer testimony concerning the necessity of the work. Because the evidence presented in support of Rosenblatt’s claim for attorneys’ fees was not conclusive as a matter of law, the court stated that it could not render the judgment that Rosenblatt sought. OPINION:Radack, C.J.; Radack, C.J., and Jennings and Bland, JJ.

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