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Click here for the full text of this decision FACTS:Clifford P. Wagner Jr. and Hans and Jan Edlund owned adjoining townhouses that shared a common wall in Dallas. Both townhouses were part of the same development and governed by restrictive covenants recorded in the Dallas County deed records. In April and May 2003, Wagner’s property and the common wall sustained damage when water penetrated through the common wall and entered the interior of Wagner’s property. At the time of the water penetration, Wagner’s townhouse was being leased to Jack and Louise Reese, who were planning to purchase it for the price of $215,000. Because of the water damage and delays in making repairs to the property, they decided not to purchase the townhouse. Wagner sued the Edlunds for negligence and breach of the restrictive covenants, arguing that the water damage to his townhouse occurred because the Edlunds did not properly maintain the roofing, flashing, gutters and downspouts on their property or the grading and drainage. Wagner’s alleged damages included the costs of repairing and restoring the wall; expenses and costs resulting from the lost sale of Wagner’s property; and the difference, if any, in the property’s market value before the water damage and after the necessary repairs were made. In addition to damages, Wagner also sought reasonable and necessary attorneys’ fees pursuant to Texas Property Code �5.006 and Texas Civil Practice & Remedies Code �38.001. The trial court submitted questions to the jury asking it to determine whether the negligence of the Edlunds, if any, “proximately caused the occurrence in question” and whether the Edlunds failed to comply with the restrictive covenants. The jury charge also included questions on reasonable and necessary attorneys’ fees and three categories of damages: reasonable and necessary repair and restoration expenses; reasonable and necessary expenses and other costs of holding and attempting to sell Wagner’s property after the Reeses moved out; and the difference, if any, in the property’s market value before the occurrence and the property’s market value after the necessary repairs were made. The jury found the Edlunds failed to comply with the restrictive covenants and were liable for damages and attorneys’ fees. The jury answered “no” to the negligence question. The jury answered the three damages questions with $3,520 for repair and restoration expenses, “zero” for holding expenses and “zero” for the difference in market value. The jury initially answered “zero” to the attorneys’ fees question, but the trial court sent the question back to the jury for further deliberation. The jury’s subsequent answer concerning reasonable and necessary attorneys’ fees was $500 for trial, $150 for an appeal to the court of appeals, $75 for a petition for review in the Texas Supreme Court and $75 after a petition for review was granted. After the trial, Wagner filed a motion for judgment and motion for partial judgment notwithstanding the verdict. In those motions, Wagner requested, inter alia, that the trial court disregard the jury’s responses regarding the amounts of attorneys’ fees and the amount of damages and instead enter judgment for the amounts of attorneys’ fees and damages established by the evidence as a matter of law. The trial court granted the motion in part and denied it in part. The trial court did not disregard any of the jury’s responses concerning damages or the trial attorneys’ fees and made only a partial adjustment to the appellate attorneys’ fees. In the final judgment entered by the trial court, Wagner was awarded $3,520 in damages, $500 for attorneys’ fees at trial, $5,000 for attorneys’ fees at the court of appeals, and $4,000 and $3,000 for attorneys’ fees at the Texas Supreme Court. Wagner subsequently filed a motion to modify the judgment and an alternative motion for new trial, which was overruled by operation of law. HOLDING:Affirmed in part, reversed and remanded in part. First, Wagner argued that the trial court erred in failing to award the proper amount of attorneys’ fees. He claimed the judgment entered by the trial court was erroneous as a matter of law and requested the 5th Court of Appeals to render judgment for attorneys’ fees in the amounts to which his attorney testified, i.e., $25,000 for services through trial, $15,000 for the current appeal, $7,500 if a petition for review is filed and $7,500 if the petition is granted. The burden of proof was on Wagner to establish his reasonable and necessary attorneys’ fees, the court stated. To prevail on a legal sufficiency challenge to a question on which he had the burden of proof, the court stated that Wagner had to show: 1. there was no evidence to support the jury’s finding; and 2. the evidence established a contrary proposition as a matter of law. Beginning with the first question, the court concluded that no evidence supported the jury’s findings regarding attorneys’ fees, because it was not based on Wagner’s testimony, and no witness disputed Wagner’s testimony. The court, however, concluded that the testimony of Wagner’s attorney did not rise to the level that would permit it to award attorneys’ fees as a matter of law. There was evidence in the record, the court stated, to support the jury awarding an amount less than $25,000 for trial attorneys’ fees, because the jury could have taken into account the testimony of Wagner’s attorney that he could not segregate attorneys’ fees for the negligence claim from the attorneys’ fees for the breach of contract cause of action. In the alternative, Wagner argued that he was entitled to a new trial, because the jury’s responses and the attorneys’ fees awarded in the judgment were against the great weight and preponderance of the evidence. After reviewing the record, the court agreed that factually insufficient evidence supported the jury’s finding on attorneys’ fees. Finding that the trial court erred in not granting a new trial on the issue of attorneys’ fees, the court remanded for a new trial on that issue. In his second issue, Wagner claimed that the amount of damages awarded by the jury was erroneous. But the court found sufficient evidence to buttress the jury’s findings on damages. OPINION:Mazzant, J.; Morris, Francis, and Mazzant, JJ.

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