OPINION ON REMAND
I. Introduction
In our original opinion in this case, we reversed the trial court’s judgment and dismissed appellees’ claims based on our holding that the trial court lacked subject matter jurisdiction over this case.
See Clary Corp. v. Smith,
• When a lawsuit is dismissed for want of jurisdiction and later refiled in the same court, is the new pleading an amendment that relates back to the date the original lawsuit was filed, or is it a new lawsuit for' statute of limitations purposes? We hold that the new pleading is a new lawsuit.
• In these circumstances, does the saving provision in section 16.064 of the Texas Civil Practice and Remedies Code operate to toll the statute of limitations? We hold that section 16.064 does not apply.
• When a defendant has allegedly committed torts against a partnership, does an individual partner ever have standing to recover from the defendant in the partner’s individual capacity? We hold that an individual partner has standing to sue if the defendant violated the individual’s — as opposed to the partnership’s— legal rights.
*457 • Can a distributorship, which is generally an intangible, constitute a good or service under the DTPA? We hold that it can, if the distributorship includes services that are clearly the objective of the transaction.
• Can an individual who does not personally lease or purchase goods or services be a consumer under the DTPA? We hold that the individual can be a consumer if the individual is the beneficiary of the goods or services.
We must also consider several challenges to the legal and factual sufficiency of the evidence. We hold that the evidence is sufficient to support all of the jury’s findings pertinent to this appeal except the jury’s award of mental anguish damages for DTPA violations.
In light of our holdings, we reverse the trial court’s judgment as to appellees Michael A. Smith, individually, and d/b/a Fairfield Distributors, and render judgment that they take nothing because their claims are barred by limitations. We reverse that part of the trial court’s judgment awarding appellee Daniel F. Smith, individually, mental anguish damages on his DTPA claim and render judgment that he is not entitled to mental anguish damages. We affirm the remainder of the trial court’s judgment as to Daniel F. Smith, individually, and remand the cause to the trial court for recalculation of interest and entry of judgment in accordance with this opinion. 1
II. Background Facts
Daniel and Michael worked with their father in a family-owned pallet business. A pallet is a platform made from slats of wood connected by 2 x 4s called “stringers.” It is not uncommon for a stringer to become cracked from use. In the 1970s and early 1980s, the accepted method of pallet repair consisted of nailing part of a 2 x 4 under the damaged stringer, which strengthened the stringer but decreased the space between the top and bottom platforms of the pallet.
In the mid-to-late 1980s, the pallet business was in transition. The use of high rack storage systems, which enabled a company to store goods on pallets 30 to 40 feet above the ground, and pallet conveyor loading systems became more prevalent. As a result, the old method of pallet repair created a hazardous situation. Forklift operators would periodically strike the block of wood under the repaired stringer while attempting to remove a pallet from high rack storage, causing merchandise to fall to the ground. The potential liability associated with repaired pallets outweighed any savings associated with them.
In 1989, Clary entered the pallet repair business. Clary had developed a machine that compressed plates on each side of a damaged stringer, creating a “splint.” The splint does not significantly decrease the space between the top and bottom platforms of the pallet. Thus, businesses can use pallets repaired with the Clary system without exposing themselves to the risks associated with pallets repaired the old way. In addition, pallets repaired with the Clary system can be resold for the same price as pallets with no prior stringer damage, thereby creating a greater profit potential for companies who sell used pallets.
Being new to the pallet repair business, Clary decided to develop markets for its pallet products by using distributors with established contacts in the industry. At that time, Clary did not have a pre-established sales force marketing its products. Clary believed it would cost less to set up distributorships with pallet businesses who already had market contacts than to hire direct sales people.
In early 1989, Daniel read an advertisement for a Clary stringer repair system in a pallet trade magazine. Daniel contacted Clary and eventually spoke with Dwane Brown by telephone about the stringer repair system. Brown was Clary’s national sales manager of pallet products. During the telephone conversation, Brown offered *458 Daniel a Clary distributorship. Daniel and his wife LaDonna then met with Brown to discuss the distributorship. Through Brown, Clary offered Daniel a 22-state east coast distributorship requiring a $50,000 initial outlay. In return, the distributorship was to receive factory leads on a monthly basis, local trade show support, six copies of Clary’s sales video, a one percent annual advertising discount, annual prospect lists, engineering testing, a sales support package, a sales training program, 1,056 boxes of Clary pallet plates, and five pallet platers.
After meeting with Brown, Daniel and La-Donna borrowed $50,000 to invest in a partnership (Fairfield) that would market Clary products. Daniel also contacted Michael to discuss forming the partnership. Michael invested $30,000 in the partnership.
By early March 1989, Fairfield was formed and had contracted with Clary to be its east coast distributor. In September 1989, a dispute developed between Clary and Fairfield regarding whether Fairfield had or could retain the exclusive right to market Clary’s products within the 22-state territory. This dispute continued until Clary notified Fair-field that Fairfield would no longer be allowed to market Clary’s products.
On August 20, 1990, Clary sued appellees for money that Clary contended was due and owing for products Fairfield had purchased from Clary. Appellees counterclaimed, alleging violations of the Deceptive Trade Practices-Consumer Protection Act (DTPA), negligent misrepresentation, and tortious interference with business relationships. After a trial, the jury found that appellees owed Clary $14,155.57 for Clary products. The jury also found that appellees were entitled to recover from Clary on their counterclaims. Based on the jury’s findings, the trial court rendered judgment for appellees in the total amount of $264,270.61 plus post-judgment interest. This appeal followed.
Clary raises fifteen points of error on appeal. In point of error one, Clary contends that appellees’ claims at trial were all partnership assets and that Daniel and Michael have no individual claims against Clary. In point of error two, Clary contends that Fair-field’s and Michael’s claims are barred by the statute of- limitations. In points of error three through thirteen, Clary challenges the legal and factual sufficiency of the evidence to support the jury’s answers to various jury questions. In points of error fourteen and fifteen, Clary challenges the award of attorneys’ fees to appellees.
In a single cross-point, appellees contend that the trial court erred in excluding legal assistant fees from the attorneys’ fees award.
III. Statute of Limitations
We will first address Clary’s second point of error: whether Fairfield’s and Michael’s claims are barred by limitations. Appellees’ claims against Clary were required to have been brought within two years of their accrual. The claims accrued, at the latest, when appellees should with reasonable care or diligence have discovered their alleged injuries, or in the case of the DTP A, the alleged deceptive act or practice.
See
Tex. Civ. Prac. & Rem.Code Ann. § 16.003 (Vernon 1986 & Supp.1997); Tex. Bus.
&
Com.Code Ann. § 17.565 (Vernon 1987);
Moreno v. Sterling Drug, Inc.,
Appellees pleaded the discovery rule and obtained a jury finding setting the date of discovery of their claims as April 27, 1990. They filed their first counterclaims on August 6, 1991, alleging unliquidated damages. In their first amended counterclaim, filed on April 24, 1992, each of the appellees alleged damages amounts in excess of the county court’s $100,000 jurisdictional limits. 2 Specifically, Daniel, Michael, and Fairfield alleged $197,545.33, $194,545.33, and $314,390.50, respectively in past and future damages.
*459 Clary filed a plea to the court’s jurisdiction and, on July 8, 1992, the trial court entered an order dismissing Fairfield’s and Michael’s claims for want of jurisdiction. The trial court also ordered Daniel to amend his counterclaim to plead an amount in controversy within the court’s jurisdictional limits to avoid dismissal. Appellees’ counsel approved the dismissal order in its entirety, although Clary’s counsel only approved it as to form.
After entry of the July 8, 1992 order, Daniel filed second and third amended counterclaims. Then, on September 4, 1992, a fourth amended counterclaim was filed in which Fairfield and Michael were again named as parties to the suit and in which they reasserted their claims against Clary.
Clary contends that the fourth amended counterclaim was barred by limitations as to Fairfield and Michael (but not as to Daniel). We agree. In addressing this point of error, we must decide whether the fourth amended counterclaim was an amended pleading that “related back” to the original counterclaim to defeat Clary’s statute of limitations defense, or whether the fourth amended counterclaim was a new lawsuit that was time-barred. We conclude it was the latter.
A. The fourth amended counterclaim was a new lawsuit as to Fairfield and Michael, and the relation-back doctrine does not apply.
When a cause of action is dismissed and later refilled, limitations are calculated to run from the time the cause of action accrued until the date that the claim is refiled.
See Cunningham v. Fox,
In this case, appellees’ claims against Clary accrued on April 27, 1990, and limitations ran from that date. When Fairfield and Michael were dismissed from the case on July 8,1992, it was as if they had never filed suit. The dismissal was based on their failure or refusal to plead an amount in controversy within the trial court’s jurisdiction. Nearly two months later, on September 4, 1992, Fairfield and Michael joined Daniel in the fourth amended counterclaim and for the first time pleaded amounts in controversy that were within the trial court’s jurisdiction. However, the “amendment” did not relate back to the date of the original counterclaim; instead, it was a new lawsuit because it was made post-dismissal. Moreover, because September 4, 1992 was more than two years after April 27, 1990, the new lawsuit was barred by limitations. See id. at 211-12 (party who was dismissed from suit for lack of standing and made a post-dismissal amendment to his complaint alleging proper grounds for standing actually filed a new lawsuit that was barred by limitations).
Nonetheless, appellees contend that Fair-field’s and Michael’s claims are saved from limitations on two grounds: the relation-back doctrine and the saving provision in section 16.064 of the Texas Civil Practice and Remedies Code.
Under the relation-back doctrine, if an amended pleading asserts additional causes of action based upon the same transaction or occurrence that formed the basis of the claims made in the original pleading, then the amended pleading relates back to the original filing and is not subject to a limitations defense.
See
Tex. Civ. Prac.
&
Rem.Code Ann. § 16.068 (Vernon 1986);
Ex parte Goad,
The relation-back doctrine does not apply to this case because the fourth amended counterclaim was not an
amended
pleading as to Fairfield and Michael; it was a completely
new
pleading. After they had been completely dismissed from the case, Fairfield
*460
and Michael reasserted their claims against Ciary and alleged new amounts in controversy. The relation-back doctrine does not save claims that have been dismissed and are later refiled.
Compare Cunningham,
Because Fairfield’s and Michael’s joinder in the fourth amended counterclaim was a “new” lawsuit as to them, the relation back doctrine did not toll the running of limitations concerning their claims.
B. Section 16.064 does not apply to save Fairfield’s and Michael’s claims.
The saving provision in section 16.064 is also inapplicable to this case. Section 16.064 provides:
(a) The period between the date of filing an action in a trial court and the date of a second filing of the same action in a different court suspends the running of the applicable statute of limitations for the period if:
(1) because of lack of jurisdiction in the trial court where the action was first filed, the action is dismissed or the judgment is set aside or annulled in a direct proceeding; and
(2) not later than the 60th day after the date the dismissal or other disposition becomes final, the action commenced in a court of proper jurisdiction.
Tex. Civ. Prac. & Rem.Code Ann. § 16.064(a) (Vernon 1986) (emphasis added).
We must decide whether section 16.064(a) applies to Fairfield and Michael’s situation because there is no Texas case law directly on point. Construction of a statute is a question of law.
See Johnson v. City of Fort Worth,
By its terms, section 16.064 does not apply to this case. After dismissal, Fairfield and Michael refiled their claims in the
same
court, not a
different
one. The plain language of both section 16.064 (“second filing ... in a different court”) and its predecessor (“commencement in the second court”)
3
indicates that the legislature intended the saving statute to apply only to cases refiled in a different court after dismissal, not in the same court. The case law also supports this interpretation.
See, e.g., Vale v. Ryan,
We believe our interpretation of section 16.064 is in keeping with the statute’s remedial purpose. Although the saving statute is to be liberally construed, its reach is not limitless. Rather, the statute is to be given a liberal construction to effectuate “its manifest objective — relief from penalty of limitation bar to one who has
mistakenly
brought his action ‘in the wrong court.’ ”
Burford v. Sun Oil Co.,
Indeed, if a party can amend its pleadings to come within a trial court’s jurisdiction, reliance upon section 16.064 is unnecessary; the party can avoid dismissal altogether through proper repleading. Then, the party would not be in the wrong court and would not suffer the “penalty of limitation bar” that section 16.064 is designed to protect against. Because Fairfield and Michael did not refile their case in a different court after dismissal and because there is no evidence that they initially mistakenly filed their counterclaim in the trial court, they cannot rely on section 16.064(a) to save their claims from limitations. We sustain Clary’s second point of error and hold that all of Fairfield’s and Michael’s claims are barred by limitations.
In light of our holding with regard to this point of error, we need not consider Clary’s fifth, ninth, twelfth, or thirteenth points of error because they only challenge findings for Fairfield. We address all of Clary’s remaining points only as they pertain to Daniel.
IV. Daniel’s Right to Pursue Individual Claims
In its first point of error, Clary contends that all of appellees’ claims at trial were partnership assets and that Daniel had no individual claims against Clary. The jury found for appellees on three theories: DTPA violations, negligent misrepresentations, and tortious interference with business relationships. However, the jury only awarded Daniel damages on his DTPA and negligent misrepresentation claims. Daniel did not request or receive any damages for tortious interference with business relationships. Thus, we will only consider whether Daniel, individually, could prosecute claims against Clary for negligent misrepresentation and DTPA violations.
A. Daniel had standing to sue.
Although it does not use the term “standing” in this point of error, Clary’s contention is that Daniel had no standing to sue in his individual capacity. To maintain a lawsuit, a person must have standing to litigate the matters at issue.
See Hunt v. Bass,
Without addressing the merits of Daniel’s negligent misrepresentation and DTPA claims, 4 we hold that Daniel asserted that Clary breached his individual legal rights; thus, he had standing to sue Clary in his individual capacity.
The cases upon which Clary relies all stand for the proposition that an individual shareholder or partner cannot personally pursue claims that actually belong to a corporation or partnership.
See, e.g., Commonwealth of Mass. v. Davis,
These cases are not controlling because whether Daniel had standing to pursue Fair-field’s legal rights against Clary is irrelevant to the individual standing issue. Daniel could pursue individual claims against Clary if Clary breached his legal rights.
Daniel contends that Clary breached his legal right to receive accurate information about the nature of Clary’s distributorships and that the breach occurred before Fairfield was even formed. Daniel also contends that, but for the pre-partnership misrepresentations to him, he would not have acted and would not have incurred the damages he has personally incurred. Daniel pleaded that the alleged misrepresentations were made to him, individually. Because Daniel’s individual negligent misrepresentation and DTPA claims are based on misrepresentations Clary allegedly made and actions he allegedly took before the partnership existed, we hold that Daniel can prosecute these claims against Clary in his individual capacity.
See Wingate v. Hajdik,
Clary also cites Daniel’s pleadings to show that his individual claims were actually Fair-field’s claims. For instance, Clary contends that the only misrepresentations and damages Daniel claimed were to the distributorship, which belonged to Fairfield. This contention is actually an argument that Daniel’s pleadings were insufficient to allow submission of his individual claims to the jury. With the exception of its complaints concerning Daniel’s consumer status, Clary did not *463 make this argument to the trial court. 5 Thus, he has not preserved it for our review. See Tex.R. App. P. 52(a). We overrule Clary’s first point of error.
In points of error three and ten, Clary contends that the trial court erred in submitting Daniel’s DTPA and negligent misrepresentation theories to the jury because these theories were not available to Daniel under the circumstances of this case.
B. Daniel pleaded negligent misrepresentation of an existing fact.
To establish his negligent misrepresentation claim, Daniel had to prove: (1) Clary made a representation in the course of its business or in a transaction in which it had a pecuniary interest; (2) Clary supplied false information to guide Daniel in his business; (3) Clary did not exercise reasonable care or competence in obtaining or communicating the information; and (4) Daniel suffered pecuniary loss by justifiably relying on the representation.
See Federal Land Bank Ass’n of Tyler v. Sloane,
Daniel’s negligent misrepresentation was centered around his assertion that Clary offered him a 22-state distributorship that was supposed to be exclusive but that, in fact, was not exclusive. In point of error ten, Clary contends, in part, that Daniel did not plead a negligent misrepresentation claim because he did not allege misrepresentation of an existing fact; rather he merely alleged that Clary promised future action—that he (or Fairfield) would receive an exclusive distributorship with Clary.
We hold that Daniel’s negligent misrepresentation theory was based on an alleged misstatement of existing fact. The parties agree that Clary, through Brown, informed Daniel that a distributorship was available. Daniel contended that Clary mis-representated the nature of the distributorship to him by representing that the distributorship was exclusive when it actually was not. If made, the representation concerning the nature of the distributorship was a statement of existing fact, not a promise to do something in the future. Consequently, Daniel alleged negligent misrepresentation of an existing fact. We overrule this portion of Clary’s tenth point of error.
C. Daniel’s DTPA claim sounds in tort, not contract.
Clary also contends that Daniel’s DTPA claim is based on Clary’s alleged nonperformance of its contract with Fairfield and therefore is only actionable as a breach of contract claim, not as a DTPA claim.
See Crawford v. Ace Sign, Inc.,
“Tort obligations are in general obligations that are imposed by law—apart from and independent of promises made and therefore apart from the manifested intention of the parties—to avoid injury to others.”
Southwestern Bell Tel. Co. v. DeLanney,
The duty that Daniel alleged Clary breached was one imposed by law, not contract: to refrain from making misrepresentations about existing fact, i.e., about the nature of the distributorship. If Clary breached this duty, its breach would give rise to liability independent of whether a contract existed between Clary and Daniel. Consequently, Daniel can sue individually for any false, misleading, or deceptive act or practice enu
*464
merated in the DTPA that is related to the alleged misrepresentations.
See Weitzel v. Barnes, 691
S.W.2d 598,
600 (Tex.1985)
(oral misrepresentations can serve as basis for DTPA claim);
Hedley Feedlot, Inc. v. Weatherly Trust,
D. Daniel was a consumer under the DTPA.
Clary’s main premise under point of error three is that Daniel was not a consumer within the meaning of the DTPA.
The DTPA’s definition of “consumer” includes an individual who “seeks or acquires by purchase or lease, any goods or services-” Tex. Bus.
&
Com.Code Ann. § 17.45(4) (Vernon 1987). We are to liberally construe the DTPA and give it the most comprehensive application possible without doing damage to its terms.
See Kennedy v. Sole,
1. The distributorship consisted of “goods or services” that formed the basis of Daniel’s complaint.
Clary first contends that Daniel is not a consumer because the goods or services purchased or acquired from Clary do not form the basis of his complaint. Daniel asserts that the distributorship consisted of both goods and services and was therefore covered by the DTPA. Clary counters that the distributorship was neither a “good” nor a “service” under the DTPA and that any services accompanying the distributorship were merely incidental to the transaction.
The DTPA excludes those transactions that convey wholly intangible rights, such as money or accounts receivable, that are not associated with any collateral services.
See Riverside Nat’l Bank v. Lewis,
In this ease, the evidence shows that the distributorship encompassed both goods and services. The goods were Clary products. The services included factory leads within the distributorship’s territory on a monthly basis, local trade show support, six copies of Clary’s sales video, a one percent annual advertising discount, annual prospect lists, engineering testing, a sales support package, and a sales training program.
Clary advertised its pallet repair products in industry trade magazines, and Daniel could have purchased those products without investing in a distributorship. Daniel’s primary object in acquiring the distributorship was not to purchase Clary products but to obtain the services that accompanied the distributorship — especially Clary’s provision of factory leads in the 22-state distributorship territory — with attendant marketing support and incentives. Thus, the services associated with the distributorship were the primary object of the transaction, and the distributorship involved the transfer of
*465
“goods or services” for DTPA purposes.
See Arthur Andersen & Co. v. Perry Equip. Corp.,
Clary mistakenly contends that this case is controlled by
Fisher Controls Int’l v. Gibbons,
2. Daniel sought or acquired the distributorship.
Clary also asserts that Daniel is not a consumer because he did not seek or acquire the distributorship from Clary, because Clary and Fairfield were the only parties to the distributorship arrangement. This argument assumes, incorrectly, that there must be privity between the individual asserting consumer status and the party who allegedly engaged in false, misleading, or deceptive conduct.
Privity of contract with a defendant is not required for a plaintiff to be a consumer.
See Amstadt
v.
United States Brass Corp.,
The parties disagree about whether Daniel personally paid Clary $50,000 to purchase the distributorship, or whether Fairfield made that payment. However, the DTPA does not require the plaintiff himself to purchase or lease the goods or services to be a consumer, as long as the plaintiffs reliance on the defendant’s misrepresentations concerning the goods or services caused the plaintiffs injuries.
See Arthur Andersen & Co.,
Clary’s reliance on
Westrup,
As we noted in our disposition of Clary’s first point of error, the Westrup court’s holding actually goes to the issue of standing. The coui't in Westrup determined that corporate shareholders were not consumers because their legal rights were not violated. Conversely, we have held that Daniel had standing to sue Clary because he alleged that Clary violated his individual legal rights before Fairfield ever existed. Accordingly, Westrup does not apply to this case.
We hold that Daniel sought to acquire goods and services and is therefore a consumer for DTPA purposes. Point of error three is overruled.
Clary’s fourth point of error challenges the legal and factual sufficiency of the evidence to support the jury’s finding that Clary violated the DTPA. However, Clary does not brief this point except to argue that Daniel is not a consumer. In light of our holding that Daniel is a consumer, we need not consider this point of error.
V. Legal and Factual Sufficiency Challenges
In its sixth point of error, Clary contends the evidence is legally and factually insufficient to support the jury’s answer to Question 7a.
A. The standard of review.
In determining a “no evidence” point, we are to consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary.
See Catalina v. Blasdel,
A “no evidence” point of error may only be sustained when the record discloses one of the following: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact.
See Juliette Fowler Homes, Inc. v. Welch Assocs.,
An assertion that the evidence is “insufficient” to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered.
See Garza v. Alviar,
Clary does not brief its contention that the evidence is factually insufficient to support the jury’s finding; thus, we will only consider Clary’s no evidence argument. See Tex.R. App. P. 74(f).
B. There is some evidence to support the jury’s economic damages finding.
In response to Question 3, the jury found that Clary’s DTPA violations were a producing cause of damages to Daniel. Clary does not challenge this finding, except to assert that Daniel was not a consumer. In response to Question 7a, the jury found Dan *467 iel’s economic damages caused by Clary’s DTPA violations were $15,000.
Clary contends that this finding should be disregarded because:
• Daniel is not a consumer and is not entitled to DTPA damages;
• the distributorship was owned by Fair-field, not Daniel; thus, Daniel has no individual claim for any loss of its value;
• there is no evidence to support the jury’s finding.
Clary’s first argument fails in light of our holding that Daniel is a consumer for DTPA purposes. Clary’s second argument also fails in light of our holding that Daniel did not have to personally own the distributorship to recover DTPA damages. Moreover, Daniel did not recover for loss of the distributorship’s value, but for damages he incurred as a result of Clary’s alleged misrepresentations about the nature of the distributorship. As we discuss below, Daniel properly used the difference between the distributorship’s actual and represented value as a measure of damages.
We now turn to Clary’s third argument, that there is no evidence to support the jury’s damages finding because Daniel did not put on any evidence of the distributorship’s value at any time. Establishing the amount of damages is the jury’s duty in a jury trial.
See Hedley Feedlot,
In a DTPA case, a plaintiff may recover under either the “out of pocket” or the “benefit of the bargain” measure of damages, whichever gives the greater recovery.
See Leyendecker & Assoc. v. Wechter,
Daniel’s position at trial was that Clary represented that the distributorship was exclusive within a 22-state territory; that Clary would forward all factory leads it received in the distributorship territory; and that Clary would not make any direct sales of its products within the distributorship territory. The record shows that Clary did make direct sales of its products within the distributorship territory. The record also shows that, in the last three quarters of 1989, Fair-field had a net profit loss of $39,401 because of Clary’s direct sales within the distributorship territory. This is some evidence that the distributorship as represented by Clary (an exclusive distributorship) was worth more than the distributorship “as it was” (a nonexclusive distributorship). Thus, there is some evidence to support the jury’s $15,000 damages finding for Daniel in response to Question 7a.
Clary contends that the net lost profits calculation is incomplete because it only includes shipping and does not take into account the ordinary costs of doing business, such as advertising and overhead costs. Daniel’s expert witness explained, however, that Fairfield had already deducted these expenses from its actual gross profits. With the exception of additional shipping expenses, these costs would not have increased if Fairfield had been able to make the sales that Clary made directly. Accordingly, it was not necessary to factor these costs into the net profits calculation.
Because there is some evidence to support the jury’s finding in response to Question 7a, we overrule Clary’s sixth point of error.
*468 C. Daniel is not entitled to mental anguish damages.
In its seventh point of error, Clary contends the evidence is legally and factually insufficient to support the jury’s answer to Question 8. In response to Question 8, the jury awarded Daniel $10,000 for mental anguish damages caused by Clary’s DTPA violations.
Mental anguish damages are not recoverable under the DTPA absent proof of a willful tort, gross negligence, unconscionable conduct, or a knowing DTPA violation.
See State Farm Life Ins. Co. v. Beaston,
In light of our holding regarding this point, we need not consider Clary’s eighth point of error.
D. The evidence supports the jury’s findings regarding negligent misrepresentation.
In points of error ten and eleven, Clary challenges the legal and factual sufficiency of the evidence to support the jury’s findings that Clary made a negligent misrepresentation to Daniel, causing him $5,000 in damages.
Clary devotes its entire argument under point ten to the premise that Daniel did not have a negligent misrepresentation claim because he did not plead or prove that Clary made a misrepresentation concerning an existing fact. In our discussion in section IV(B), we held that Daniel’s negligent misrepresentation theory was based on an alleged statement of existing fact: that Clary had an exclusive distributorship available, when it actually did not.
Daniel testified that Clary represented to him that its distributorship benefits package included “all factory leads” in the distributorship territory; that Clary “would not sell direct in our territory ... [p]eriod”; that he was not aware for nearly a year that Clary was making direct sales in Fairfield’s territory; and that, upon confrontation, Clary credited to Fairfield’s account a direct sale that Clary had made within the distributorship territory. Brown testified that Clary “wasn’t going to sell direct” when it initially set up the distributorship arrangements. But the record shows that Clary made direct sales of its products within the distributorship’s territory beginning at least in March 1989. In addition, Paul Hurder, a Clary general manager, testified that Clary’s bylaws prohibited it from giving anyone an exclusive distributorship. Considered as a whole, the record supports Daniel’s theory that Clary misrepresented to him the exclusive nature of the distributorship. Thus, the evidence is sufficient to support the jury’s negligent misrepresentation finding.
The record also shows that Daniel borrowed $50,000, which was used to purchase enough Clary products to “start up” the distributorship. There is evidence that Daniel would have purchased at least some of Clary’s products regardless of its representations concerning the distributorship. For instance, Daniel initiated contact with Clary after reading an advertisement for Clary products in a pallet trade magazine. Because Daniel’s family was in the pallet repair business, he was “real interested” in Clary’s stringer repair products, or “pallet platers.” However, Clary’s pallet platers cost approximately $7,000 each, and cartons of its pallet plates cost $26 or $31 each. Thus, the record shows that, if Daniel had not been offered a Clary distributorship, he might have made a much smaller out-of-pocket investment in Clary’s products. This evidence is sufficient to support the jury’s $5,000 damages award for negligent misrepresentation. We overrule point of error eleven and the remainder of point of error ten. *470 qualified at all. Although Drake testified about the total amount of legal assistant fees, he did not state what Taylor’s hourly rate was or give the number of hours she worked on the case. Drake did not submit any billing statements detailing Taylor’s work expended or the time involved. We hold the evidence is legally insufficient to support the jury award for legal assistant fees. Daniel’s cross-point is overruled.
*469 E. The evidence supports the attorneys’ fees award.
In points of error fourteen and fifteen, Clary contends that the evidence is legally and factually insufficient to support the amount of attorneys’ fees that the jury awarded. Each consumer who prevails in a DTPA action is entitled to recover court costs and reasonable and necessary attorneys’ fees. See Tex. Bus. & Com.Code Ann. § 17.50(d) (Vernon Supp.1997). Daniel’s attorney, John Drake, testified that:
• he and his legal assistant were the two primary individuals who worked on Daniel’s case;
• his hourly rate was $125 and was reasonable and necessary;
• three associates from Drake’s firm worked on research projects related to the case;
• before filing Daniel’s counterclaim, Drake spent approximately 35 hours investigating the case and making a demand to Clary under the DTPA;
• the total fees in the case, excluding paralegal time, were $70,260.
Drake’s testimony was uncontroverted. On cross-examination, Clary only asked Drake whether he had segregated the time he spent working on Daniel’s case before and after the counterclaim was filed. Drake responded “[njot totally” because of pre-suit time spent investigating Daniel’s claim.
Where, as here, trial counsel’s testimony concerning attorneys’ fees is clear, positive and direct, and uncontroverted, it is taken as true as a matter of law. This is especially true where the opposing party had the means and opportunity of disproving the testimony, if it were not true, and failed to do so.
See Ragsdale v. Progressive Voters League,
F. The trial court properly excluded legal assistant fees from the attorneys’ fees award.
In his sole cross-point, Daniel contends that the trial court improperly excluded legal assistant fees from the attorneys’ fees award. The jury found that a reasonable attorneys’ fee for the trial of this case was $84,160. This award included legal assistant fees. After the jury returned its verdict, Clary moved for judgment notwithstanding the verdict, asserting in part that there is no evidence to support the attorneys’ fees award. The trial court granted Clary’s motion “solely to the extent there is no evidence to support the jury’s award of paralegal fees” and reduced the attorneys’ fees award by $13,900.
Compensation for a legal assistant’s work may be separately assessed and included in the attorneys’ fees award if a legal assistant performed work that has traditionally been done by an attorney.
See Moody v. EMC Servs.,
• that the legal assistant is qualified through education, training, or work experience to perform substantive legal work;
• that substantive legal work was performed under the direction and supervision of an attorney;
• the nature of the legal work that was performed;
• the hourly rate charged for the legal assistant; and
• the number of hours expended-by the legal assistant.
See Moody,
In this case, Drake testified that his legal assistant, Linda Taylor, spent a “considerable amount of time in going through documents and in the document production” under Drake’s direction. Drake did not explain how Taylor was qualified to participate in document production, or even that she was
*470 VI. Conclusion
We reverse the trial court’s judgment as to Fairfield and Michael and render judgment that they take nothing because their claims are barred by limitations. We reverse that part of the trial court’s judgment awarding Daniel mental anguish damages on his DTPA claim and render judgment that he is not entitled to 'mental anguish damages. We affirm the remainder of the trial court’s judgment as it pertains to Daniel and remand the cause to the trial court for recalculation of interest and entry of judgment in accordance with this opinion.
Notes
. In parts of this opinion, we refer to Daniel F. Smith and Michael A. Smith individually as "Daniel” and "Michael," and we refer to Fair-field Distributors as "Fairfield.” At other times, we refer to these three parties collectively as “appellees.” We refer to appellant Clary Corporation as "Clary.”
. A county court exercising civil jurisdiction has jurisdiction over "civil cases in which the matter in controversy exceeds $500 but does not exceed $100,000, excluding interest, statutory or punitive damages and penalties, and attorney's fees and costs, as alleged on the face of the petition!.]” Tex. Gov’t Code Ann. § 25.0003(c)(1) (Vernon Supp.1997).
. See Act of April 27, 1931, 42nd Leg., R.S., ch. 81, § 1, 1931 Tex. Gen. Laws 124, 124 (repealed 1985) (current version at Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (Vernon 1986)):
When an action shall be dismissed in any way, or a judgment therein shall be set aside or annulled in a direct proceeding, because of a want of jurisdiction of the Trial Court in which such action shall have been filed, and within sixty (60) days after such dismissal or other disposition becomes final, such action shall be commenced in a Court of Proper Jurisdiction, the period between the date of first filing and that of commencement in the second Court shall not be counted as a part of the period of limitation....
Id. (emphasis added).
. We address the merits of Daniel's negligent misrepresentation and DTPA claims in section IV(D), below.
. We address Daniel’s consumer status in section IV(D), below.
. In Question 7, the trial court instructed the jury to:
Consider the following elements of damages, if any, and none other:
The difference, if any, in the value of the distributorship as it was and the value it would have had if it had been as it was represented.