Jason Campbell (Cross-Appellee) v. Ben Luong (Cross-Appellant)
04-16-00460-CV
| Tex. App. | Jul 19, 2017Background
- Luong hired realtor Campbell to list and sell two properties; they discussed a 4.95% total commission (1.95% seller’s/broker, 3.0% buyer’s agent) but the signed listing showed 1.95% total.
- Campbell testified he amended the listing to 4.95% and provided the amended agreement to Luong; Luong denied receiving it.
- An earnest money contract interlineated the buyer’s agent commission from 3.0% to 2.5%; Campbell claimed Luong agreed the 0.5% difference would go to Campbell, Luong said he believed the reduction lowered his total obligation.
- HUD-1 at closing showed Campbell receiving 2.45% and buyer’s agent 2.5%; Luong closed believing a compliance agreement would allow recovery of any overpayment.
- Luong later sued asserting DTPA violations, common-law fraud, statutory fraud in a real estate transaction, and breach of fiduciary duty; trial court found for Luong on DTPA, fiduciary duty, and common-law fraud, awarding actual and treble damages plus attorney’s fees.
Issues
| Issue | Plaintiff's Argument (Luong) | Defendant's Argument (Campbell) | Held |
|---|---|---|---|
| Statute of Frauds / enforceability of commission agreement | Listing was valid; Luong owed commission per agreement | Statute of Frauds bars enforcement of any oral/amended commission agreement | Court did not need to resolve — even if contract invalid, no breach-of-contract damages were awarded; no reversal. |
| Ratification by closing (did closing approve the extra 0.5%) | Closing and HUD-1 did not ratify because Luong believed he could recover overpaid amount and protested commission items | Closing on HUD-1 and inaction constituted ratification | Evidence supported trial court finding Luong did not ratify payment of the extra 0.5%. |
| Sufficiency of evidence for DTPA / common-law fraud / fiduciary breach | Campbell misrepresented commission (said 1.95%); covertly obtained extra 0.5% — conduct was deceptive and produced damages | Any dispute was contractual; at most a breach of contract, not DTPA or fraud | Court affirmed sufficiency for DTPA (trial court could disbelieve Campbell); therefore other tort findings need not be addressed further. |
| Attorney's fees, appellate fees, prejudgment interest, and related evidentiary issues | Entitled to requested attorneys’ fees (Rule 11 procedural agreement); sought conditional appellate fees and prejudgment interest; asked to supplement record with affidavit for appellate fees | Trial court should reduce fees; no proof of appellate fees at trial; denying supplement was proper | Trial court’s reduction of fees was within discretion (fees must be reasonable/necessary); denial to reopen for appellate-fee affidavit not an abuse; no conditional appellate fees awarded; denial of prejudgment interest was not an abuse of discretion. |
Key Cases Cited
- Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) (bench-trial sufficiency standard)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (factfinder as sole judge of credibility; sufficiency review)
- Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex. 1989) (two-step legal-sufficiency review where appellant had burden)
- Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001) (DTPA prohibits false, misleading, deceptive acts in commerce)
- Miller v. Keyser, 90 S.W.3d 712 (Tex. 2002) (DTPA misrepresentation must be producing cause of damages)
- Chilton Ins. Co. v. Pate Enters., Inc., 930 S.W.2d 877 (Tex. App.—San Antonio 1998) (breach of contract alone does not trigger DTPA)
- Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (reasonableness and necessity of attorney’s fees are factual questions)
- Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545 (Tex. 2009) (factor: fees should bear relationship to results/amount involved)