*2
C.J.,
BROWN,
J.
Before
CURTISS
ELLIS, JJ.
SEARS
BROWN,
Justice.
Chief
J. CURTISS
Hennessey and Mass-
Appellants Patrick
Inc., (the corporation
Enterprises,
Tex
Hennessey conducted
which
ventures)
appellee
sued
Sam Skin-
business
fraud,
contract,
partner-
ner for breach
of the Texas
ship dissolution and violations
(hereinafter
Deceptive
Practices Act
Trade
A)
or
DTP
in an action stem-
the Act
collapse of
cattle busi-
ming from the
The court
Trial
court.
ness.
appellants $1266.00
awarded
but refused to treble
first
Corporation.
indebtedness
the Credit
under
appel-
$12,660.00
the DTPA to award
Skinner received
interest, costs,
lants
proceeds
attor-
but did not
account for
ney’s
urge
fees. Appellants
Hennessey.
six
court awarded
appeal,
all stemming
proceeds,
on
from the
these
$1,266.00.
*3
finding
court’s
that
or
party disputes
not
Neither
that
“consumers” under
Section 17.41
the
the proper
$1266.00 was
measure of Hen-
nessey’s
We
the
DTPA.
affirm
as mod-
in
actual
this case. The
ified.
court also found that
reason-
attorney
able
fees at the trial level would
Hennessey
Patrick
and Sam Skinner be-
did
be
but
not
them.
$2400
respective
came friends
on their
based
wives’ common
in
and
interest
horses
their
two
their first
Hennessey
own in cattle.
had moved to
appellants challenge
the court’s
Richmond, Texas from Boston and wanted
they
that
were not
as defined
consumers
to
cowboy.
become a
He hired himself out
by
any recovery
the Act. Before
the
under
money
for a little or
to
ranchers over a
necessary
plead
DTPA can
had
it is
to
period
years
learn to work
to
cattle. He
prove
complaining party
and
a
that
began travelling
met Skinner in
to
Littleton,
“consumer.” Woods
554
19£1
Monaville,
Skinner’s ranch near
Texas
(Tex.1977). Appellant
here
help
twice week
his
a
to
him work
cattle
properly pled that
he
Mass-Tex were
for free.
We
think
consumers.
that
proved
and Mass-Tex
to
themselves
be con
29,1982,
working
On June
after
for Skin-
sumers under the DTPA as matter of
a
basis,
ner
six
for
or more months on this
law.
Hennessey paid
$2000
Skinner
for a ten
percent
Skinner’s herd
A
“consumer” as defined at the time
agreed
pay
cows. He also
to
Skinner $150 transactions in this ease occurred meant
(ten
per year
percent)
proportionate
as his
individual, partnership,
or
corporation,
“an
grass
to Skinner’s
lease.
contribution
governmental entity
acquires
or
who seeks
by
These transactions were
a
evidenced
bill
any goods
...
&
services.” TEX.BUS
signed by
July
(Vernon
sale
Skinner. On
17 of
17.45(4)
ANN.
COM.CODE
§
year, Hennessey
paid
same
Skinner Supp.1985). “Goods” as defined under
Squanto,
a
17.45(1)
interest in
“tangible
of the Act means
chat-
§
Longhorn
a registered
bull. This transac-
property purchased
tels or real
or leased
tion
by
signed
was also shown
a bill of sale
for use.”
by Skinner. The two men entered into a
is
question
by
appeal
raised
partnership
selling
for the
purchase
cattle
to enter
whether a
made
cattle, agreeing
profits
to share
and ex-
partnership
ranching
a
into
commercial
ownership
penses
percentage
on a
basis.
goods
purchase
is a
“for
seller
later,
yearA
after relations between the
by the DTPA. That cattle
use” covered
parties
strained, Hennessey
had become
is
general
goods
by the DTPA
covered
purchased
Brumlow,
that at the time he
learned
his
dispute.
not in
See
Guerra
cattle,
in the
herd
were encum- 630
Antonio
—San
by
security
However,
by
holding
bered
two
interests held
our
Agricultural
Corporation
Products,
Ring
Credit
Rotello v.
Around
(Tex.Civ.App.
they
and that
were owned
P&S Partner-
S.W.2d 455
[14th
—Houston
n.r.e.) may
ship,
individually.
Skinner
He fur-
have cre
not
Dist.]
Squanto
reg-
impression
only goods
ther
ated the
which
discovered that
had been
Skinner,
up
identity upon
only.
istered
Skinner’s name
are used
lose
meanwhile,
put
use
experiencing
being
who was
financial
to
can form the basis of
p.
at
460. We
problems, sold
auction all the cattle on DTPA action. See Rotello
at
ranch,
here.
including Squanto,
pay
impression
wish to correct that
Hen-
ordinary meaning
Appellee
use”
further contends that
“for
includes
stock,
breeding
Squanto
nessey
use as
and the
of the 1982
intended in the course
qualify
goods
purchase
as
“for use”
transactions with
Skinner
even under Rotello n overall common-sense
intangible
interest and there
But
HBig
standard.
the recent case
provisions
fore cannot invoke
Auction,
Motors,
Auto
Inc.
Saenz
argument
merit.
DTPA. This
without
(Tex.1984),
treating
pre-
S.W.2d 756
purporting
sale
received bills
ours, specifically
transaction such
to transfer title
his interest
herd
held
concept
the “for use”
includes
things
lease. These
are not a
purchases purely for resale as well. Rotel-
partnership interest. Purchase of
cat
“requirement” is
lo’s extinction
therefore
grass
portion
tle and of a
lease
obsolete.
partner
Hennessey to become a
enabled
Skinner, but the encumbered cattle
*4
with
Big
goods
goods
H Auto teaches that
are
complaint,”
of
the basis
the
“form[ed]
“for
“for
use”
whatever use was intended
Auction,
v.
H Auto
653
Big
Motors
Saenz
[goods].” Big
to be
H
at
made
Auto
521,
(Tex.App.—Corpus
523
Christi
S.W.2d
prohibits any
HBig
limitation
Auto
1983),
(Tex.1984).
consumers Rotello who in their next two Appellants contend sep bean seed cultivation did not make erred fail points of error that the court purchases arate of each individual seed damage ing the first to treble they bought. They purchased an amount agree. disputed It is that not award. We seed, just purchased a actu is measure $1266.00 purchase Both number of cattle. prevailing As damages in this case. al percentage 63 and herd of cattle entitled to parties appellants were also purchase of the ten un the first $1000 three times Squanto are recorded in of sales both bills 17.50(b)(1). v. Little der Section Woods any purchase as would of individual cattle. (Tex.1977). ton, 662 Indeed, stating purchase a of cattle modified to ment will therefore be show percentage of terms of a a herd instead $3,266.00. Appel appellant of award to way preventing one individual cattle is points error are and fourth lants’ third in a possible and strife relation confusion sustained. ship seller/partner pur since the fifth in their Appellants con contend share in a herd will remain chaser’s failed to error that court purchase percentage of sixth stant. The of a attorney’s appellate them trial and purchase of cattle herd interest, fees, costs of goods. therefore of required by court as the DTPA. Section what attorneys’ reasonable fees 17.50(d) provides of the DTPA that Big case. Saenz Motors v. H Auto “[e]ach prevails consumer who shall be awarded Auction, Inc., 521, (Tex. 653 S.W.2d 525-7 costs attorneys’ fees.” App.1983). This is also true if such evi confusing dence was or inconclusive. Gu Having decided that are Brumlow, 425, erra n. 2 630 S.W.2d Act, entitled to recover under the we hold 1982, Antonio —San they are entitled to recover reasonable Appellants cite proposi two cases for the attorneys’ fees. Greene v. Bearden En attorneys’ tion that remand is where Inc., (Tex.Civ. terprises, 598 S.W.2d fees denied and no evidence in 1980, App. ref’d writ —Fort stipulation ap form of exception or bill of “plaintiffs’ court found rea pears submitted, been Espinoza to have attorney’s sonable matter fees Co., Victoria Bank & Trust 572 S.W.2d $2,400 through trial,” time of but did not (Tex.Civ.App. Corpus Christi carry through judgment. this award to the — and n.r.e.) McDonald supported by This evidence at Savoy, 501 S.W.2d 408 (Tex.Civ.App.— trial. Blumenthal v. Com Ameritex Cf. 1973, writ). San Antonio not These are puter Corp., (Tex.App. DTPA cases. 1983). —Dallas has al the court ready found attorney’s reasonable fee Rule 373 the Texas Rules of Civil trial, time of no need we see *5 requires an Procedure “that at the time remand the case for another on the court sought, order of the is made or issue. Consequently judgment same party should make known to the action appel be modified will to show an to award he the court to desires take and of attorneys’ through lants fees $2400 added). (emphasis grounds therefor...” of trial. time Co., See Hurst Sears Roebuck & 249, (Tex.), appeal on remand Appellants request an award of (Tex.App. 652 S.W.2d —Fort attorneys’ appeal. reasonable fees on 1983, ref’d writ finding concerning trial court made no at torneys’ appeal. fees on men Appellants present following case the appellate attorneys’ tioned fees two of exchange place appellants’ took between early pleadings presented but no evi 'attorney and the court at the close dence what would attor be reasonable trial: neys’ appeal. fees on A demand for rea Honor, neglect- MR. PEARSON: Your I attorneys unliquidated sonable fees is for My attorney’s ed were fees to— damages, and the a fee must such chopped before and after I lunch and upon support pleadings. evidence in neglected testify— to Computer Corp., Blumenthal v. Ameritex Well, THE doesn’t COURT: it matter. 283, (Tex.App. 646 S.W.2d —Dallas MR. PEARSON: Never mind. Thank 1983, writ). It when a trial is clear that you, Honor. your grants attorneys’ an award of fees part point fifth That sup without evidence in the to record attorneys’ through requesting fees time award, such port proper an action on sus- trial and costs the trial court is appeal is to part remand that tained; part at- requesting appellate awarding attorneys’ ment fees for a deter torneys’ is overruled. fees mination amount of attor reasonable Id.; point neys’ fees to be awarded. First Nat’l The sixth of error raises Irving Shockley, prejudgment Bank 663 S.W.2d issue of interest. The mea damages possible (Tex.App. Corpus Christi sure — “fixed Remand is also the measure this case was conditions” at appellants. sale of the cattle to when award is denied but evidence was time of the Duncan, stipulation Concepts, presented Building the court Inc. v. S.W.2d 897 [14th —Houston n.r.e.). Appellants Dist.] CITIES SERVICES prejudgment entitled to interest at COMPANY, Appellant, percent per annum on the the rate of six contract for the sale of the cattle from ELLISON, Tommy Appellee. L. sixty- date of the sale of Appellant’s point sixth of er- three cows. No. A14-85-136-CV. ror is sustained. Texas, Appeals Court of part judgment That which award- (14th Dist.). ed Patrick and Mass-Tex Enter- Aug. 1985. prises, attorneys’ Inc. without $1266.00 pre- fees time of trial and without Rehearing Sept. Denied judgment in the trial costs court is modified to allow Patrick Hennes-
sey Enterprises, Inc. re- and Mass-Tex $3,266.00 appellee
cover from Sam Skinner
together attorneys’ fees trial,
through time of costs in the trial appeal
court and on inter- opinion.
ests as set out above this
remainder of the is affirmed.
Modified and Affirmed.
SEARS, Justice, concurring. agree
I with the results reached
appeal. However, I do so the trial because *6 findings appel-
court entered of fact that purchased
lant the herd be- parties entered into a
fore agreement selling as to the
the cattle. This of fact is not at- appeal.
tacked on the event had entered into a
“joint “partnership agree- venture” or a cattle,
ment” to raise and sell without first herd,
buying an interest in the I hold
the transaction did not fall the Tex- within Deceptive Trade Practices Act.