author:
ANNE GARDNER, Justice.
      LEE ANN DAUPHINOT, Justice,

text:
    Bobby Gene BUTLER, Appellant, v. The STATE of Texas, State.
    No. 2-04-178-CR.
    Court of Appeals of Texas, Fort Worth.
    March 31, 2005.

      William Trantham & Associates, William E. Trantham, Denton, for appellant.
    Bruce Isaacks, Crim. Dist. Atty., Kathleen Walsh, Charles E. Orbison, Gretchen Choe, Ryan Calvert, Beth Hayes, Asst. Dist. Attys. for Denton County, Denton, for appellee.
    PANEL B: DAUPHINOT, HOLMAN, and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

Appellant was charged by information with assault-family violence and pleaded not guilty. Appellant was found guilty by a jury and sentenced by the trial court to two-hundred-seventy days’ confinement, probated for a term of eighteen months. In a single issue, Appellant argues that the trial court erred in making a factual finding of family violence rather than submitting this issue to the jury. We affirm.

Because sufficiency of the evidence is not at issue, we need only briefly discuss the facts of this case. The record shows that Appellant and the victim, Janyce Couch, were engaged, had a child together, and had been living together for approximately two and a half years. Couch testified that on the evening of October 20, 2003, she and Appellant got into an argument and she was assaulted by Appellant. She stated they were in the bedroom and that Appellant came to her side of the bed, pushed her down, got on top of her, and pinned her to the bed by placing his knee on her chest. She testified that he began to punch the pillow on either side of her head, striking the side of her head twice. Couch stated that she was able to get away from Appellant and attempted to call for help; however, they began to struggle over the phone, during which time Appellant grabbed her by her arm and pushed her into the wall, causing scratches and bruises to her arm.

Appellant challenged Couch’s testimony regarding the events that caused her injuries. Appellant testified that on the night of October 20, 2003, they got into a disagreement, he put his arm on her shoulder, and they fell to the bed. He stated that he did fall on top of her, but that he immediately got up. He testified that he used his hand to push himself up, but did not punch the pillow. Appellant further testified that on October 17, 2003, they had gotten into an argument during which time he tried to leave with their child. He stated that Couch tried to take the child, and he used his hand to “move [her] away from the door.”

The jury subsequently found Appellant guilty. At the punishment phase, the trial court made an affirmative finding that Appellant and the victim were members of the same household at the time of the offense. In a single issue, Appellant argues that the trial court erred in making a factual finding of family violence without submitting the issue to the jury.

Appellant’s argument appears twofold: (1) he did not receive “notice that he was being tried for assault with a finding of family violence to be added”; and (2) based on the United States Supreme Court’s decisions in Apprendi v. New Jersey and Blakely v. Washington, the finding of family violence had to be submitted to the jury. See Blakely v. Washington, - U.S. -, 124 S.Ct. 2531, 2536, 159 L.Ed.2d 403 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Our sister court has recently addressed both parts of this issue. See Thomas v. State, 150 S.W.3d 887 (Tex.App.-Dallas 2004, pet. filed). We agree with its reasoning and decision, and thus adopt its opinion as set forth below.

Under the code of criminal procedure, in the trial of an offense against a person, “if the court determines that the offense involved family violence ... the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.” Tex.Code Crim. Proc. Ann. art. 42.013 (Vernon Supp.2004-05); see also Thomas, 150 S.W.3d at 888. The family code defines family violence as “an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, [or] assault.” Tex. Fam.Code Ann. § 71.004(1) (Vernon 2002); see Thomas, 150 S.W.3d at 888. The family code’s definition of “family” includes individuals who are the parents of the same child, without regard to marriage. Tex. Fam.Code Ann. § 71.003. Additionally, the family code’s definition of “household” includes persons living together in the same dwelling, without regard to whether they are related to each other. Id. § 71.005.

A finding of family violence “impacts a defendant’s sentence only if the defendant has previously committed a family-violence assault.” Thomas, 150 S.W.3d at 888. Under the penal code, a misdemeanor assault, such as the one in this case, becomes a third degree felony if it is committed against “a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household.” Tex. Penal Code Ann. § 22.01(b)(2) (Vernon Supp. 2004-05); see Thomas, 150 S.W.3d at 888. Here, however, the State did not attempt to prove Appellant had previously been convicted of an assault involving family violence. Thomas, 150 S.W.3d at 888. The evidence before the trial court simply showed the single family-violence assault alleged in the information. Id. Thus, the family violence finding could not increase Appellant’s sentence in this case.

Nevertheless, the State sufficiently notified Appellant of its intent to seek a finding of family violence. In the information, the caption indicates the charge as “ASSAULT FAMILY VIOLENCE,” and the State alleged Appellant had assaulted Janyce Couch. The record clearly reflects Appellant’s awareness that Couch was his fiancee and that they had a child together. See id. at 888-89 (finding sufficient notice when record showed victim was defendant’s ex-wife and they had a child together). Under the family code, and as found by the trial court, they were not only members of the same household, but they also met the definition of “family.” Tex. Fam.Code Ann. § 71.003; see also Thomas, 150 S.W.3d at 889. And under the code of criminal procedure, the trial court had no discretion in entering a family violence finding once it determined the offense involved family violence. See Tex.Code Crim. PROC. Ann. art. 42.013; Thomas, 150 S.W.3d at 889. Therefore, we hold that Appellant had all the notice necessary to prepare for the State to seek a family violence finding.

Appellant also argues that the family violence finding should have been presented to the jury for consideration and cites as authority the United States Supreme Court decisions in Blakely v. Washington and Apprendi v. New Jersey. These cases set forth the rule that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S.Ct. at 2536; Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.

Appellant appears to challenge the constitutionality of article 42.013 under both the United States and Texas Constitutions. However, as Appellant has failed to provide any argument or authority that the Texas Constitution provides him greater protection in this instance and has failed to independently develop this argument, we will address Appellant’s constitutional claims together. See Riddle v. State, 888 S.W.2d 1, 7 (Tex.Crim.App.1994) (holding that arguments under the United States and Texas Constitutions must be developed independently of the other), cert. denied, 514 U.S. 1068, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995); Johnson v. State, 853 S.W.2d 527, 533 (Tex.Crim.App.1992) (declining to address appellant’s Texas constitutional claims when he failed to provide any argument or authority as to how protection under Texas Constitution was different than protection under United States Constitution), cert. denied, 510 U.S. 852, 114 S.Ct. 154, 126 L.Ed.2d 115 (1993).

There are two types of challenges to the constitutionality of a statute: the statute is unconstitutional as applied to the defendant, or the statute is unconstitutional on its face. Fluellen v. State, 104 S.W.3d 152, 167 (Tex.App.-Texarkana 2003, no pet.). An as-applied challenge to a statute cannot be raised for the first time on appeal. See Garcia v. State, 887 S.W.2d 846, 861 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). Because Appellant did not make an as-applied challenge in the trial court, we will assume he is making a facial challenge to the constitutionality of article 42.013. A facial challenge to a statute may be raised for the first time on appeal. Ex parte Flores, 130 S.W.3d 100, 106 (Tex.App.-El Paso 2003, pet. ref'd). A facial challenge to a statute is the most difficult challenge to mount successfully because the challenger must establish that no set of circumstances exists under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633 (Tex.Crim.App.), cert. denied, 506 U.S. 999, 113 S.Ct. 600, 121 L.Ed.2d 537 (1992). Thus, it is incumbent on the challenger to first show that the statute is unconstitutional as to him in his situation. Id. Moreover, even as to a facial challenge, it is not sufficient to show that the statute may be unconstitutional as to others. Id. It is still a prerequisite to a facial challenge that the challenger establish that the statute is unconstitutional as applied to him. Id.; Fluellen, 104 S.W.3d at 167.

Appellant’s constitutional challenge is not ripe for review because the statute has not yet been applied to him. The ripeness doctrine examines the timing of a lawsuit and its factual posture at the time of its filing. Ex parte Cross, 69 S.W.3d 810, 814 (Tex.App.-El Paso 2002, no pet.). It also allows courts to avoid premature adjudication and serves constitutional interests in prohibiting advisory opinions. Id. The theory behind the doctrine is straightforward-if the plaintiffs injury is not concrete and depends on contingent, remote, or hypothetical facts, the court does not have jurisdiction to hear the dispute. Id.

A finding of family violence under article 42.013 would only affect Appellant by increasing “the penalty for a crime beyond the prescribed statutory maximum” in violation of Apprendi if he were subsequently convicted for an additional assault-family violence. See Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. It is not until this hypothetical subsequent conviction occurs that the level of assault would be increased from a Class A misdemeanor to a third degree felony, subjecting Appellant to a higher penalty range. See Tex. Penal Code Ann. § 22.01(b)(2).

The application of article 42.013 that would allow a higher penalty range is contingent on Appellant being convicted for a subsequent assault-family violence. Because it is contingent on a remote possibility of a future conviction, the statute has not been unconstitutionally applied to Appellant. See Ex parte Fox, No. 14-02-00446-CR, 2003 WL 21191227, at *4 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (not designated for publication) (holding that appellant could not make any constitutionality claim as to Texas Code of Criminal Procedure article 62.02 because it had not been applied to him in any unconstitutional manner). Thus, the proper time to raise this constitutional argument is after a subsequent charge or indictment for assault-family violence, if one arises. See id. (stating that the proper time for appellant to raise his constitutional challenge is after he has been charged or indicted for the future offense). Accordingly, Appellant’s constitutional challenge is not ripe for our review.

Furthermore, we agree with the State and our sister court in Thomas that Blakely and Apprendi do not affect the validity of the finding of family violence by the trial court. Thomas, 150 S.W.3d at 889. The family violence finding made here had no effect whatsoever on Appellant’s punishment in this case. Id.; see Resendiz v. State, 112 S.W.3d 541, 550 (Tex.Crim.App.2003) (acknowledging that Apprendi applies only to facts that increase the penalty beyond the “prescribed statutory maximum”), cert. denied, 541 U.S. 1032, 124 S.Ct. 2098, 158 L.Ed.2d 713 (2004). In the present case there were no facts that would increase Appellant’s penalty. Appellant contends that “[t]he finding by the trial court enhances the effect of the conviction by making it a pre-cursor offense to a felony if an assault involving family violence is charged subsequently.” However, Appellant provides no authority as to how this statement makes Blakely and Appren-di applicable in this case, and we find that this argument is without merit. Therefore, we agree with our sister court in Thomas and conclude that the holdings in Blakely and Apprendi do not affect Appellant’s case. Thomas, 150 S.W.3d at 889.

We conclude that Appellant had sufficient notice that the trial court would be required to make an affirmative finding of family violence, that Appellant’s constitutional challenge of article 42.013 is not yet ripe, and that Blakely and Apprendi have no application to the facts of this case. Thus, we overrule Appellant’s sole issue and affirm the trial court’s decision.

DAUPHINOT, J. filed a dissenting opinion.

LEE ANN DAUPHINOT, Justice,

dissenting.

The trial court’s judgment in this case provides that the jury found Appellant guilty of assault family violence. The jury did not so find; it found Appellant guilty of assault. The charging language of the information does not allude to family violence; the jury charge itself does not mention family violence. Instead, the trial court entered the family violence finding on its own after the jury convicted Appellant of simple assault. The majority upholds the trial court’s judgment. Because I believe the majority opinion disregards the state and federal constitutional rights to a jury trial, I must respectfully dissent from the holding that the trial judge in a jury trial may properly replace the jury as the factfinder in determining whether the evidence shows that the offense involves family violence.

The majority states that because a finding of family violence does not result in a longer maximum sentence, the right to a jury trial does not prohibit the trial court’s usurping the jury’s factfinding power to determine that the offense involves family violence and to enter this finding on the judgment. The flaws in this conclusion can be revealed by examining the law concerning the deadly weapon finding as well as a recent line of U.S. Supreme Court cases-Apjyt'endi, Ring, Blakely, and Booker.

Deadly Weapon Finding

“In 1977, the Texas Legislature proposed adding a ‘deadly weapon’ provision to article 42.12 of the Code of Criminal Procedure.” Although this measure would not necessarily lengthen the maximum sentence, it

would have numerous legal consequences, including the fact that ‘where a deadly weapon has been exhibited during a commission of an offense, the parole date [would be] figured on flat time alone without consideration of good time.’ During that session, the Texas Department of Corrections expressed concern to the Legislature that it would be unable to determine whether a particular inmate was subject to a deadly weapon finding if there were no express ‘deadly weapon’ language contained in the indictment or elsewhere.

The Texas Legislature responded by including a subsection providing “that when the trier of fact found that a deadly weapon or firearm was used in the commission of the offense, that finding would be entered on the judgment, which would then be sent with the order of commitment.” This legislative fix, however,

did not ... address the circumstances under which the trial judge should enter a deadly weapon finding in the judgment when a jury, not the judge, was the factfinder — how, for example, would a trial judge know when the jury had, in fact, found that the defendant used or exhibited a deadly weapon during the commission of the offense?

This was the question the Texas Court of Criminal Appeals addressed in Polk v. State. The Court noted that

“[t]he indictment, charge, verdict and judgment” were all relevant in determining if, when, and how a jury makes a deadly weapon finding. First, the Court analyzed the term “affirmative finding,” and concluded that “these words taken together were intended to mean the trier of fact’s express determination that a deadly weapon or firearm was actually used or exhibited during the commission of the offense.” The trial judge could not enter a deadly weapon finding simply because some evidence indicated that the defendant had used a deadly weapon and therefore the jury’s general verdict might imply that it had believed that evidence. We quoted language from Barecky v. State to illustrate the problem with implied deadly weapon findings:
“The jury found appellant ‘guilty as charged in the indictment.’ The indictment contains no mention of a deadly weapon. Neither does the court’s charge to the jury. Thus, the court entered its finding as to use of a deadly weapon in the absence of such an ‘affirmative finding’ by the appropriate trier of fact. This was improper.”
Thus, when neither the indictment nor the jury charge contained any “deadly weapon” language, a trial court could not enter an “implied” deadly weapon finding based solely upon its own assessment of the evidence and a general “guilty” verdict. Because the trial judge was not the factfinder, it did not have the authority to “find” implied facts that the jury did not expressly find.

Similarly, the right to a jury trial applies to cases in which the evidence may show family violence “is involved.” Adopting the Lafleur court’s reasoning in discussing the deadly weapon affirmative finding in Polk, when neither the information nor the jury charge contains any “family violence” language, a trial court cannot enter an “implied” or “its own” family violence finding based solely upon its own assessment of the evidence and a general “guilty” verdict. Because the trial judge in the case before us was not the factfin-der, he did not have the authority either to “find” implied facts that the jury did not expressly find or to make his own determination of facts.

Apprendi, Ring, Blakely, and Booker

In Article 42.013 of the Texas Code of Criminal Procedure, the Texas Legislature provided, “In the trial of an offense under Title 5, Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact and enter the affirmative finding in the judgment of the case.” When the Texas Legislature enacts a statute, it is presumed to comply with both the Texas Constitution and the U.S. Constitution. If at all possible, we must therefore interpret a statute in a manner that renders it constitutional. Almost ninety years ago, Justice Holmes wrote that “[a] statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” If there are two reasonable interpretations of a statute and if one would make the statute unconstitutional and the other would not, then we must choose the reasonable interpretation that avoids the constitutional infirmity. The majority violates this canon, as demonstrated by the discussion of the Ap-prendi line of cases below.

In Apprendi v. New Jersey, the U.S. Supreme Court held that the Sixth Amendment does not permit a defendant to be “expose[d] ... to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” As the Ring court explained, in Apprendi the Court

held that Apprendi’s sentence violated his right to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” That right attached not only to Apprendi’s weapons offense but also to the “hate crime” aggravating circumstance. New Jersey, the Court observed, “threatened Ap-prendi with certain pains if he unlawfully possessed a weapon and with additional pains if he selected his victims with a purpose to intimidate them because of their race.” “Merely using the label ‘sentence enhancement’ to describe the [second act] surely does not provide a principled basis for treating [the two acts] differently.”
The dispositive question, we said, “is one not of form, but of effect.” If a State makes an increase in a defendant’s authorized punishment contingent on the finding of a fact, that fact — no matter how the State labels it — must be found by a jury beyond a reasonable doubt.

“[A]ll the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.” The Ring court, in extending Ap-prendi’s holding to death penalty determinations, noted that

“[t]he guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.... If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.”

With Blakely, in striking down Washington’s sentencing guidelines, the U.S. Supreme Court further clarified what it meant by “statutory maximum”:

Our precedents make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” and the judge exceeds his proper authority.

The Blakely court also emphasized the right to a jury trial provided in the U.S. Constitution:

Ultimately, our decision cannot turn on whether or to what degree trial by jury impairs the efficiency or fairness of criminal justice. One can certainly argue that both these values would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course. There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury. As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.

Finally, in Booker, the Court applied Blakely to reduce the status of the federal sentencing guidelines from mandatory to advisory. Before Booker, the sentencing guidelines required a trial court to make independent findings after a jury verdict. These judge-made findings, in turn, often mandated that a defendant receive a higher sentence than the jury verdict justified. The guidelines address such areas as the defendant’s criminal history and his role in the offense but also examine such issues as the status of the complainant, whether the defendant accepted responsibility for the offense (by pleading guilty), and whether he used a special skill in the completion of a crime (such as those skills possessed by a lawyer, accountant, pilot, or chemist).

In Booker, the Court reminds us,

It has been settled throughout our history that the Constitution protects every criminal defendant “against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” It is equally clear that the “Constitution gives a criminal defendant the right to demand that a jury find him guilty of all the elements of the crime with which he is charged.”

The majority asserts that Blakely and Ap-prendi do not affect the validity of the trial court’s family violence finding because that finding “had no effect whatsoever on Appellant’s punishment in this case.” I disagree.

While a family violence finding may not increase the length of the sentence in the first case in which a finding is entered, it does make more onerous the possible conditions of community supervision. That is, the finding affects the sentence in a way that is similar to the effect of the federal sentencing guidelines before Booker. Section 42.12 of The Texas Code of Criminal Procedure provides,

If a judge grants community supervision to a person convicted of an offense under Title 5, Penal Code, that the court determines involves family violence, the judge may require the person to make one payment in an amount not to exceed $100 to a family violence shelter center that receives state or federal funds and that serves the county in which the court is located. In this subsection, “family violence” has the meaning assigned by Section 71.004, Family Code, and “family violence shelter center” has the meaning assigned by Section 51.002, Human Resources Code.

That section further provides,

If the court grants community supervision to a person convicted of an offense involving family violence, as defined by Section 71.004, Family Code, the court may require the defendant to attend, at the direction of the community supervision and corrections department officer, counseling sessions for the elimination of violent behavior with a licensed counsel- or, social worker, or other professional who has been trained in family violence intervention or to attend a battering intervention and prevention program if available that meets guidelines adopted by the community justice assistance division of the Texas Department of Criminal Justice. If the court requires the defendant to attend counseling or a program, the court shall require the defendant to begin attendance not later than the 60th day after the date the court grants community supervision, notify the community supervision and corrections department officer of the name, address, and phone number of the counselor or program, and report the defendant’s attendance to the officer. The court shall require the defendant to pay all the reasonable costs of the counseling sessions or attendance in the program on a finding that the defendant is financially able to make payment. If the court finds the defendant is unable to make payment, the court shall make the counseling sessions or enrollment in the program available without cost to the defendant. The court may also require the defendant to pay all or a part of the reasonable costs incurred by the victim for counseling made necessary by the offense, on a finding that the defendant is financially able to make payment. The court may order the defendant to make payments under this subsection for a period not to exceed one year after the date on which the order is entered.

The judgment in this case reveals that Appellant was subjected to both of these conditions of community supervision. The majority states in a footnote that “a court may impose any reasonable condition on probation, but that does not constitute an increase in Appellant’s sentence.” However, given the text of sections eleven and twelve of article 42.12, imposing a requirement of a $100 payment to a family shelter on a criminal defendant convicted of a misdemeanor would not be reasonable without a family violence finding.

Additionally, the finding of family violence subjects Appellant to future consequences that one convicted of simple assault does not face. When a person commits assault, the offense is a class A misdemeanor, except that

the offense is a felony of the third degree if the offense is committed against:
(2) a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of an offense against a member of the defendant’s family or household under this section.

Under the majority’s reasoning, an affirmative finding of family violence is entered on the judgment despite the factfinder making no such finding and despite the fact that the judge making the finding is not required to make the finding beyond a reasonable doubt or even by a preponderance of the evidence. Yet that finding, and only that finding, subjects Appellant in this case to paying $100 to an agency unconnected to either the judicial system or the community supervision system. And in a subsequent prosecution for a family violence offense, the jury would rely on that judgment alone to find beyond a reasonable doubt that an earlier jury convicted the defendant of an offense involving family violence, boosting the offense from a class A misdemeanor to a third degree felony.

Consequently, at the time the trial court entered the family violence finding and as a result of such finding, Appellant was subject to additional, unique burdens of community supervision and was branded with the additional mark of a family violence offender. The trial court’s finding therefore imposed a greater hardship on him than the jury’s verdict allowed. As a result, I would hold that Appellant was subject to a greater punishment under the family violence finding than he would have been under the jury’s verdict and that the trial court’s actions violated the strictures of the Apprendi line.

Conclusion

Because the majority’s interpretation of article 42.013 countenances the deprivation of a defendant’s right to a jury trial and, indeed, the deprivation of the right to due process of law under both state and federal constitutions, and because it violates the mandates of the U.S. Supreme Court, I must respectfully dissent.

      . Appellant also states that he had to perform additional requirements, such as attending a Batterer’s Intervention Program, as a result of the family violence finding. However, a court may impose any reasonable condition on probation, but that does not constitute an increase in Appellant's sentence.

      . See U.S. Const, amends. VI, XIV; Tex. Const. art. I, §§ 10, 15.

      . United States v. Booker, - U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002); Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . Lafleur v. State, 106 S.W.3d 91, 94 (Tex.Crim.App.2003).

      . Id. (citing Polk v. State, 693 S.W.2d 391, 393 n. 1 (Tex.Crim.App.1985) (quoting a bill analysis prepared by the general counsel for the Texas Department of Corrections)).

      . Id.

      . Id.

      . 693 S.W.2d at 391-400.

      . Id. at 393.

      . Id.

      . 639 S.W.2d 943 (Tex.Crim.App.1982).

      . Polk, 693 S.W.2d at 394 (quoting Barecky, 639 S.W.2d at 945).

      . Lafleur, 106 S.W.3d at 94-95.

      . Id. at 95.

      . Id.

      . Tex.Code Crim. Proc. Ann. art. 42.013 (Vernon Supp.2004-05).

      . Tex. Gov't Code Ann. § 311.021(1) (Vernon 2005).

      . Sisk v. State, 131 S.W.3d 492, 494 (Tex.Crim.App.2004); Lebo v. State, 90 S.W.3d 324, 326 (Tex.Crim.App.2002); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex.2000); In re D.L.C., 124 S.W.3d 354, 362 (Tex.App.-Fort Worth 2003, no pet.).

      . United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 659, 60 L.Ed. 1061 (1916).

      . State v. Shoppers World, Inc., 380 S.W.2d 107, 111 (Tex.1964).

      . Apprendi, 530 U.S. at 483, 120 S.Ct. at 2359.

      . Ring, 536 U.S. at 602, 122 S.Ct. at 2439 (citations omitted).

      . Apprendi, 530 U.S. at 499, 120 S.Ct. at 2367 (Scalia, J., concurring).

      . Ring, 536 U.S. at 609, 122 S.Ct. at 2443 (quoting Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968)).

      . Blakely, 124 S.Ct. at 2537 (citations omitted).

      . Id. at 2543.

      . Booker, 125 S.Ct. at 749, 755-56 (holding that imposing an enhanced sentence under the guidelines violates the Sixth Amendment right to jury trial), at 756-57 (severing the offending sections from the guidelines to leave the guidelines with an advisory role).

      . See generally United States Sentencing Commission, Guidelines Manual (Nov.2004).

      . Booker, 125 S.Ct. at 748 (citations omitted).

      . Majority op. at 732.

      . Tex.Code Crim. Proc. Ann. art. 42.12, § 11(h) (Vernon Supp.2004-05).

      . Id. § 14(c).

      . Majority op. at 730.

      . See Tex.Code Crim. Proc. Ann. art. 42.12 § 1 l(a)(l8) (authorizing maximum reimbursement of $50 to general revenue fund for those convicted of misdemeanors), § 11 (a)(21) (authorizing maximum payment to crime stoppers organization of $50), § 11(b) (“A judge may not order a defendant to make any payments as a term or condition of community supervision, except for fines, court costs, restitution to the victim, and other conditions related personally to the rehabilitation of the defendant or otherwise expressly authorized by law.”) (emphasis added), § 11(h).

      . Tex Penal Code Ann. § 22.01(b) (Vernon Supp.2004-05).

      . See Tex.Code Crim. Proc. Ann. art. 42.12, § 11(h).

      . See, e.g., Blakely, 124 S.Ct. at 2537 ("When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,’ and the judge exceeds his proper authority.") (citations omitted).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re ATTORNEY GENERAL OF TEXAS, Relator.
    No. 14-04-01073-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 5, 2005.

      John B. Worley, Rhonda Amkraut Pressley, Austin, for relator.
    Joseph Leon Nealy, Houston, for respondent.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

PER CURIAM.

The Office of the Attorney General seeks mandamus relief from a trial court order reinstating a paternity action. Because the trial court abused its discretion, we conditionally grant the petition for writ of mandamus.

Background

In November 2002, the attorney general filed a petition to establish a parent-child relationship. The purported father, Thomas Gasaway, the real party in interest here, did not file an answer. In December 2002, the trial court signed an order for parentage testing, which also set a trial date for March 20, 2003. The parentage test showed Gasaway could not be excluded as the biological father of the child and that the probability of paternity was 99.99%. On March 20, 2003, a Title IV-D master held a hearing and because Gasa-way did not appear, signed a default order establishing a parent-child relationship. The order found Gasaway was the father of the child and ordered him to pay $345 per month in child support. The order also rendered a retroactive support judgment of $16,520 and ordered Gasaway to pay $100 per month to satisfy the judgment. The trial court did not sign this order.

In 2004, Gasaway filed a bill of review seeking to set aside the March 20, 2003, paternity order. In the order denying Gasaway’s bill of review, the trial court made the following ruling:

The Court FINDS that the order challenged in this bill of review action, which was signed by the Title IV-D Associate Judge on March 20, 2003, was not signed by the referring court and is not in the form of a recommendation. For this reason, the Court declares that order to be void.

The trial court then reinstated the paternity suit on the trial docket. The trial court denied the attorney general’s motion for new trial and set the paternity action for trial November 29, 2004. On November 9, 2004, the attorney general filed a petition for writ of mandamus in this court seeking relief from the trial court’s reinstatement order. This court stayed all trial proceedings until a final decision on the attorney general’s petition for writ of mandamus.

STANDARD OP REVIEW

Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of disci’etion or the violation of a legal duty when there is no adequate remedy at law. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.1999). In determining whether there has been a clear abuse of discretion justifying mandamus relief, the reviewing court must consider whether the trial court’s ruling was one compelled by the facts and circumstances or was arbitrary, unreasonable, or reached without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). Here, an appeal of the trial court’s order of reinstatement would be interlocutory. Interlocutory orders may be appealed only if permitted by statute. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985). Because no interlocutory appeal can be taken from the trial court’s order, relator has no adequate remedy by appeal. See Jack B. Anglin v. Tipps, 842 S.W.2d 266, 271 (Tex.1992).

Master’s Order

The Family Code authorizes a trial court judge to refer certain family law matters to either associate judges or to child support masters. See Tex. Fam.Code Ann. § 201.001-.208 (Vernon 2002). The trial judge can appoint an associate judge to hear any matter over which the trial court has jurisdiction under Title 1 or 4 of the Family Code. Tex. Fam.Code Ann. § 201.005 (Vernon 2002). The statutes concerning associate judges and masters are divided into Subchapter A, which concerns associate judges, and Subchapter B, which concerns Title IV-D masters. See Tex. Fam.Code Ann. ch. 201 (Vernon 2002). At the time the master in this case rendered the order, under Subchapter A, an associate judge was not given the power to render a final order on the merits, but could recommend an order to be rendered by the referring judge. Tex. Fam.Code Ann. § 201.007(a) (amended September 1, 2003 to allow an associate judge limited powers to render final judgments). Although the associate judge’s recommendation was in full force and effect pending appeal, if no appeal was filed, the associate judge’s recommendation did not become a final order of the referring court unless the referring court signed an order conforming to the associate judge’s report. Tex. Fam.Code Ann. § 201.013 (amended September 1, 2003).

Subchapter B, which address the powers and duties of Title IV-D masters, provides that “A master may render and sign any order that is not a final order on the merits of the case.” Tex. FajvlCode Ann. § 201.104(c) (amended September 1, 2003 to reflect that Subchapter A applies except to the extent of any conflict and if a conflict exists, Subchapter B prevails). Section 201.1041(a) provides, however, if an appeal of the master’s order is not filed, the master’s order, other than a recommendation of enforcement by contempt or a recommendation of immediate incarceration, shall become the order of the referring court. Tex. FajvlCode Ann. § 201.1041(a) (Vernon 2002).

The trial judge in this case referred the suit to establish a parent-child relationship to a Title IV-D master and the master signed an agreed order that did not contain language of recommendation. The trial court found that absent language of recommendation the order is void. Invalidating the order because it does not contain the words “recommended” or “proposed” elevates form over substance. In re G.S.G., 145 S.W.3d 351, 353 (Tex.App.Houston [14th Dist.] 2004, no pet.). The Family Code does not require the child-support master’s proposed order to contain language of recommendation. The code states that the “report may contain the associate judge’s findings, conclusions, or recommendations, including a proposed order.” Tex. Fam.Code Ann. § 201.011(a). The text of the code sections provides the master’s proposed order is not a final order when the master signs it, but becomes final only if neither party appeals. In re G.S.G., 145 S.W.3d at 354.

Further, a review of the legislative history indicates the legislature intended the master’s order to become final if no appeal was filed. In construing the above code sections, we may consider: (1) the object sought to be attained, (2) circumstances under which the statute was enacted, (3) legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) consequences of particular construction, (6) administrative construction of the statute, and (7) title, caption, preamble, and any emergency provisions. Tex. Gov’t Code Ann. § 311.023 (Vernon 1998).

With regard to the object sought to be attained, the purpose behind enacting the master system was to increase the effectiveness of the child support division of the attorney general’s office. The intent of the bill was to create an ombudsman where child support obligations could come to a timely resolution. Senate Jurisprudence Comm., S.B. 368, 76th Leg. R.S. (1999). The circumstances under which the statute was enacted require Texas to enact “laws providing for expedited processes to establish and enforce child support obligations” as a condition of receiving federal funds. In re G.S.G., 145 S.W.3d at 353 (citing House Comm. on Juvenile Justice & Fam. Issues, Bill Analysis, Tex. H.B. 823, 78th Leg., R.S. (2003)).

Further analysis on the bill shows:

Recommendations of child support masters. Child support masters, who are attorneys appointed by the presiding judge of a judicial region to hear enforcement cases, could render and sign any order, such as a discovery order or other procedural order, that was not a final order on the merits of the case. Orders by child support masters after a trial on the merits of the case, other than recommendations of enforcement by contempt and recommendations of immediate incarceration, would become orders of the court without ratification of the referring court if an appeal had not been filed or if an appeal had been waived.

House Comm, on Juvenile Justice & Fam. Issues, Bill Analysis, S.B. 368, 76th Leg. R.S. (1999). The consequences of allowing a master’s order to become a final order of the court are that child support obligations can be imposed in a timely manner and enforcement can occur sooner. Both consequences further the purpose of enacting the statute.

In his response to the petition for writ of mandamus, the trial judge asserts this court’s construction of the statutes concerning the powers and duties of masters has led to “innumerable arrests of both the mother and father on Capias and Attachments on defective notice, defective citations, and defective orders; incarceration for many days [has] resulted for the custodial parents (a witness) who was arrested and detained while the children were left unattended.” (emphasis in original) Section 201.1041, however, permits a master’s order to become final only if the order does not concern enforcement by contempt or immediate incarceration. Tex. Fam.Code Ann. § 201.1041(a) (Vernon Supp.2004). Any order concerning contempt or incarceration cannot become a final order unless ratified by the trial judge. Id. The trial judge must review such orders and can refuse to adopt them. Id.

Conclusion

At the time the master signed the proposed order, the order did not have to contain language of recommendation because of the provisionary status of the order according to the statute. The order became the final order of the court after the time to appeal passed without any party appealing the master’s order. The trial court abused its discretion in declaring the order void. The writ of mandamus is conditionally granted. We are confident the trial court will vacate the reinstatement order. If the trial court fails to do so, the writ will issue.

      . See 42 U.S.C.A. § 651 authorizing appropriations for the purpose of enforcing child support obligations owed by noncustodial parents.


author: J. HARVEY HUDSON, Justice.

text:
    Dr. Victor MANON and Dr. Ermelinda Manon, Appellants/Cross-Appellees, v. TEJAS TOYOTA, INC., Appellee/Cross-Appellant.
    No. 14-03-01319-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    April 7, 2005.

      Lorraine Margarita Manon, Houston, for appellants.
    Eugene J. Pitman, Houston, for appel-lee.
    Panel consists of Justices ANDERSON, HUDSON, and FROST.
   OPINION

J. HARVEY HUDSON, Justice.

Appellants/Cross-Appellees, the Ma-nons, argue in two points of error that the trial court erred by: (1) not awarding the full amount of “cover” damages for breach of contract; and (2) refusing to award attorney fees. Appellee/Cross-Appellant, Tejas Toyota, Inc., (“Tejas”) argues: (1) “cover” damages are not the appropriate measure of damages in this simple breach-of-contract case; (2) the evidence is legally and factually insufficient to support the submission of and the jury’s answers to questions presented in the jury charge; and (3) the trial court submitted an erroneous charge which led to the award of improper damages.

Factual and Procedural Background

The record reflects that in September 2000, the Manons sought to purchase a new Toyota Sienna mini-van from Tejas. The Manons clearly specified their desire to purchase a van with a certain color exterior, wood-grained interior, and a trailer hitch. Unable to procure a 2000-model in the desired color, Tejas offered to sell the Manons a comparable 2001-model Sienna at the same price as the 2000 version. The Manons agreed and Tejas subsequently delivered a 2001 Sienna. The van, however, did not have the wood-grained interior or trailer hitch. At Tejas’ insistence, the Manons accepted the van as delivered, but did so only on condition that Tejas install the desired features. Tejas consented and assured the Manons that it had ordered the necessary parts and would install them as soon as they were delivered to the dealership.

As promised, Tejas subsequently placed a trailer hitch on the van. However, shortly after being mounted on the van, the hitch had to be removed because it began causing an excessive rattling noise. Meanwhile, approximately in March of 2001, Tejas informed the Manons that Toyota had discontinued making the wood-grained interior for the 2001-model Sienna van. As such, Tejas explained that it would be unable to install the wood-grained trim as promised. As a concession, Tejas offered to refund the approximate value of the wood trim and trailer hitch and also agreed to discount $1,000 off a new, substitute vehicle. The Manons refused to accept these terms and, instead, traded in the 2001 Sienna van to another dealership and purchased a 2001 Toyota Sequoia Sport Utility Vehicle.

After phrchasing the SUV, the Manons sued Tejas for breach of contract, fraud, negligent misrepresentation, and alleged violations of the Texas Deceptive Trade Practices Act. The Manons requested as damages either the original purchase price of the Sienna van or the difference between the cost of the SUV and the amount they received for the trade-in of the van. They also sought to recover attorney fees. The trial court granted summary judgment for the Manons on their breach-of-contract theory but ordered the parties to proceed to trial on the remaining issues— including damages and attorney fees. However, at trial, the Manons failed to introduce proof of the reasonableness of their attorney fees. Accordingly, the trial court entered an instructed verdict in Te-jas’ favor on that issue. Subsequently, the jury found Tejas hable and awarded the Manons $8,422 plus interest for actual damages and $5,000 in exemplary damages.

Breach-of-Contract Damages

In the Manons’ first point of error, they argue the trial court erred by not awarding the full amount of contract damages to which they are entitled. Specifically, the Manons contend they should have received “cover” damages equal to the difference between the cost of the Sequoia SUV they subsequently purchased and the price of the Sienna van they originally purchased, ie., $10,199.89. Furthermore, they claim they were entitled to incidental and consequential damage of $7,300.00. Thus, the Manons’ total request for breach-of-contract damages equals $17,499.89. In support of this request, the Manons rely on Texas Business & Commerce Code sections 2.608, 2.711, and 2.712.

Under Texas Business & Commerce Code section 2.608, a buyer who accepts a good is entitled to revoke acceptance if the buyer proves a non-conformity exists that substantially impairs the value of the good. Tex. Bus. & Com.Code Ann. § 2.608 (Vernon 1994). If the buyer justifiably revokes, he is entitled to “cover,” ie., purchase a reasonable substitute good and seek damages for the difference between the cost of the substitute good and the contract price of the original good. Id. §§ 2.711-.712. In addition, the buyer may recover any incidental or consequential damages he suffered. Id. §§ 2.712, 2.715.

However, to be entitled to “cover” damages the plaintiff must plead and prove that the good was non-conforming in such a way that its value was substantially impaired. See id. § 2.608; Freeman Oldsmobile Mazda Co. v. Pinson, 580 S.W.2d 112, 114 (Tex.Civ.App.-Eastland 1979, writ ref'd n.r.e.); Bill McDavid Oldsmobile, Inc. v. Mulcahy, 583 S.W.2d 160, 164 (Tex.Civ.App.-Houston [1st Dist.] 1976, no writ). In addition, the plaintiff must prove that he purchased the substitute good in “good faith” as a reasonable substitute. See Tex. Bus. & Com.Code Ann. § 2.712; Mueller v. McGill, 870 S.W.2d 673, 675-76 (Tex.App.Houston [1st Dist.] 1994, writ denied); Kiser v. Lemco Indus., Inc., 536 S.W.2d 585, 589-90 (Tex.Civ.App.-Amarillo 1976, no writ).

The Manons claim they were entitled to revoke acceptance of the Sienna because its non-conformities substantially impaired the value of the van to them. They further contend that the Sequoia SUV was a reasonable substitute for the Sienna van and point to deposition testimony from one of Toyota’s own expert witnesses to support this contention. In light of this evidence, the Manons argue they established the required elements under Business & Commere Code sections 2.608, 2.711, and 2.712 and suggest they proved their right to receive “cover” damages as a matter of law.

In response, Tejas argues in its first point of error and in reply to the Manons’ first point, that the Manons were not entitled to revoke acceptance and that “cover” damages are inappropriate. Tejas does not contest that it breached the sales contract or that it is hable for this breach. Instead, Tejas contends the Manons failed to sustain their burden on two important fact issues, namely, that: (1) the Sienna was substantially impaired due to the lack of wood-grain trim; and (2) the Sequoia SUV was a reasonable substitute for the Sienna van. As such, Tejas argues that sections 2.608, 2.711, and 2.712 of the Business & Commerce Code are inapplicable. Instead, Tejas contends that section 2.714 provides the proper measure of contract damages.

Under section 2.714, a buyer who accepts a non-conforming good and who has no right to revoke the acceptance is limited to recovering the difference between the value of the good as received and the value had the good been conforming. Tex. Bus. & Com.Code Ann. § 2.714. Applying this section, Tejas argues the Manons’ recovery is limited to $591, the estimated difference in value between the Sienna the Manons received and a Sienna with the options they requested.

To be entitled to “cover” damages under section 2.608, the Marions were required to plead and prove that the Sienna’s non-conformities substantially impaired the van’s value. See Tex. Bus. & Com.Code Ann. § 2.608; Pinson, 580 S.W.2d at 114; Mulcahy, 533 S.W.2d at 164. The Manons were also required, under section 2.712, to prove that they purchased the Sequoia SUV in “good faith” as a reasonable substitute for the Sienna van. See Tex. Bus. & Com.Code Ann. § 2.712; Mueller, 870 S.W.2d at 675-76; Kiser, 536 S.W.2d at 589-90. Both of these issues are questions of fact which should have been submitted to the jury. See Vista Chevrolet, Inc. v. Lewis, 704 S.W.2d 363, 368 (Tex.App.-Corpus Christi 1985), aff'd in part, rev’d in part, 709 S.W.2d 176 (Tex.1986) (“The determination regarding whether the defect or nonconformity substantially impaired the value of the good to the buyer to justify revocation of acceptance is a fact issue for the trier of fact to determine.”); Mueller, 870 S.W.2d at 676 (“Whether a cover purchase is reasonable poses a ‘classic jury issue.’ ”) (quoting Am. Carpet Mills, Etc. v. Gunny Corp., 649 F.2d 1056 (5th Cir.1981)); Kiser, 536 S.W.2d at 585, 590 (“[Wjhat constitutes good faith under the circumstances of a particular case is a question of fact to be resolved by the fact finder.”).

Because the Manons did not request a charge to submit these fact issues for determination by the jury, they contend on appeal that these issues were established in their favor as a matter of law. But while the Manons presented some evidence that the Sienna’s non-conformities substantially impaired its value, they failed to establish this fact as a matter of law. The Manons, for example, claimed the Sienna was “ugly” without the wood-grained trim and that they would not have purchased the van without the trim. However, this alone is insufficient to establish, as a matter of law, that the Sienna was substantially impaired. See Pinson, 580 S.W.2d at 114. The Manons also relied on testimony from a Tejas employee who explained that a person would likely not purchase a vehicle if that vehicle was missing certain desired features. However, this is also not enough to prove, as a matter of law, that the Sienna’s value was substantially impaired. See generally Kiser, 536 S.W.2d at 589 (explaining that without “legal certainty” that a party properly covered, a court should not hold that the party proved its right to cover as a matter of law).

Further, the jury determined that the lack of wood-grained trim and trailer hitch constituted a difference in value of only $591. This represents an “impairment” of slightly more than one percent of the van’s total value. Much like the court in Pinson, we do not conclude the value of the Sienna was substantially impaired by a decrease in value of such a slight amount. See 580 S.W.2d at 114 (holding “as a matter of law that a $75 to $100 defect in a $5,720.33 automobile [or just over 1% of the car’s total value] is not such a nonconformity as to substantially impair the value of the car.”)

Likewise, while the Manons offered some evidence that the Sequoia SUV was a reasonable substitute for the Sienna van, the proof hardly establishes this fact as a matter of law. Having breached the contract, Tejas made several concessions in an effort to reach an amicable compromise agreement. The Manons could have accepted Tejas’ offers by taking a refund of the value of the wood trim and hitch and purchasing a new, substitute vehicle from Tejas with the $1,000 discount. The Ma-nons also could have returned the Sienna to Tejas and obtained a similar van from another Toyota dealership; or they could have returned the van to Tejas and attempted to purchase a similar van from a different car manufacturer. While the Manons were under no obligation to accept Tejas’ concessions or to take any of the specific actions listed above, they were required to act reasonably in procuring a substitute vehicle. See Tex. Bus. & Com. Code Aun. § 2.712; see also Pinson, 580 S.W.2d at 114 (holding that a plaintiff failed to prove revocation after he refused a car dealership’s offer to make repairs at no cost to him). Instead, the Manons took the Sienna van they purchased from Tejas to another dealership, accepted a lower trade-in price for the van, and purchased an SUV which cost over $10,000 more than what they originally paid for the van. We hold the Manons did not establish, as a matter of law, that they, in good faith, obtained a reasonable substitute as required by the Texas Business & Commerce Code. See Tex. Bus. & Com.Code Ann. § 2.712; see Pinson, 580 S.W.2d at 114.

Because the Manons did not request a jury charge question on either of these crucial fact questions, and neither the jury nor the trial court ever made any explicit findings on these issues, the Manons failed to prove they were entitled to revoke acceptance. As such, they were precluded from recovering damages for “cover,” but instead, were entitled only to standard breach-of-contract damages under section 2.714 of the Texas Business & Commerce Code. See Tex. Bus. & Com.Code Ann. § 2.714; Aquamarine Assocs. v. Burton Shipyard, Inc., 645 S.W.2d 477, 480 (Tex.App.-Beaumont 1982), aff'd, 659 S.W.2d 820 (Tex.1983) (limiting recovery of cover damages where party failed to submit issue of reasonableness to the jury).

Having determined that the Manons failed to properly plead, prove, and submit to the jury the issues of whether the Sienna’s value was substantially impaired and whether the Sequoia SUV was a good-faith, reasonable substitute for the van, we hold that Business & Commerce Code section 2.714 provides the proper measure of contract damages in this case. Having concluded that the Manons failed to prove substantial impairment or good faith reasonable substitute as a matter of law, we are guided by a deemed finding — consistent with the trial court’s judgment — that the Manons did not prove substantial impairment or reasonable substitute. Accordingly, we overrule the Manons’ first point of error, sustain Tejas’ first point of error, and affirm the trial court’s award of $591 for breach of contract.

Attorney Fees

In their second point of error, the Ma-nons claim the trial court erred in refusing to award attorney fees. Specifically, they contend the award of attorney fees is mandatory when a party prevails under either the Texas Deceptive Trade Practices Act (“DTPA”) or chapter 38 of the Texas Civil Practice and Remedies Code. They argue that because they prevailed against Tejas, the trial court was required to award attorney fees.

Prior to trial, the Manons moved for summary judgment on all their claims including their request for attorney fees. Along with their summary judgment motion, the Manons provided an affidavit from their attorney detailing the requested fees and describing the fees as reasonable. The trial court granted the Manons’ summary judgment motion on the issue of contract liability but denied the motion as to all additional claims. Therefore, the issue of attorney fees proceeded to trial along with the Manons’ other affirmative claims for relief.

At trial, the Manons failed to make any reference to the affidavit provided with their summary judgment motion and did not have their attorney testify about the reasonableness of the requested attorney fees. Accordingly, Tejas moved for an instructed verdict on the issue of attorney fees, claiming the Manons failed to put forth the necessary evidence that the requested fees were reasonable. The trial court granted the motion and denied the Manons’ request for attorney fees.

The Manons argue on appeal that because they prevailed on their affirmative claims, the award of attorney fees was mandatory. They further claim that because Tejas failed to provide any evidence which controverted their affidavit on attorney fees, they established these fees as a matter of law. Alternatively, the Manons argue that the trial court should have taken judicial notice of the reasonableness of the requested fees. They point out that under chapter 18 of the Texas Civil Practice and Remedies Code, uncontroverted affidavits are sufficient evidence to support an award of attorney fees, and under chapter 38, where there is no evidence of the reasonableness of the fees, a court may take judicial notice of the fees. See Tex. Civ. PRAC. & Rem.Code Ann. §§ 18.001, 38.001 (Vernon 1997).

Both the DTPA and the Texas Civil Practice and Remedies Code allow a prevailing party to recover attorney fees. See Tex. Bus. & Com.Code Ann. § 17.50(d) (Vernon 2002) (DTPA claims); Tex. Civ. PRAC. & Rem.Code Ann. § 38.001 (general attorney fees statute for various causes of action). In fact, an award of attorney fees is mandatory under these two statutory schemes. See, e.g., Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998) (noting that where statues say a party “may” recover attorney fees, the court has no discretion in awarding those fees). However, before a court can award attorney fees, the party requesting the fees must prove they are reasonable and necessary. See Tex. Bus. & Com.Code Ann. § 17.50(d); Tex. Civ. Prac. & Rem.Code Ann. § 38.001; Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex.1997); Lesikar v. Rappeport, 33 S.W.3d 282, 307-08 (Tex.App.-Texarkana 2000, pet. denied).

The reasonableness of attorney fees is generally a question of fact for the jury’s determination. Bocquet, 972 S.W.2d at 21 (quoting Trevino v. Am. Nat'l Ins. Co., 140 Tex. 500, 168 S.W.2d 656, 660 (1943)). To guide the jury’s determination, a party may introduce evidence in the form of sworn affidavits attesting to the reasonableness of the fees. See Tex. Civ. PRAC. & Rem.Code Ann. § 18.001. When these affidavits are uncontroverted, they are “sufficient to support a finding of fact by judge or jury that the amount charged was reasonable or ... necessary.” Id. Furthermore, a court is entitled to take judicial notice of the reasonableness of attorney fees, without the need for additional evidence, if a claim is brought under section 38.001 of the Texas Civil Practice and Remedies Code. See Tex. Civ. PRAC. & Rem. Code Ann. §§ 38.003-004; Gill Sav. Ass’n v. Chair King, Inc., 797 S.W.2d 31, 32 (Tex.1990).

However, while a trial court is entitled to take judicial notice of the reasonableness of attorney fees, the Texas Supreme Court has specifically held that a court may do so only “in [its] role of trier of fact in the conventional trial of a non-jury case but not in passing on a motion for summary judgment.” Coward v. Gateway Nat’l Bank, 525 S.W.2d 857, 859 (Tex.1975) (emphasis added); see also Garcia v. Martinez, 894 S.W.2d 806, 807 (Tex.App.-Corpus Christi 1994, no writ) (stating in dicta that a trial court cannot take judicial notice of attorney fees without a healing on the evidence); Gen. Elec. Supply Co. v. Gulf Electroquip, 857 S.W.2d 591, 601 (Tex.App.-Houston [1st Dist.] 1993, no writ). Therefore, in a non-jury trial, a trial court is entitled to enter findings of fact that the requested attorney fees are reasonable; but when the case is tried before a jury, the general rule applies, i.e., the reasonableness of the attorney fees is a question of fact for the jury and must be supported by evidence introduced at trial. See generally Michol O’ConnoR & Byron P. Davis, O’ConnoR’s Texas Rules, Civil TRIALS 45 (2003) (“Judicial notice of attorney fees can be taken only when (1) the claim is a Texas Civil Practice and Remedies Code § 38.001 claim, and (2) the claim is tried on the merits”) (emphasis added).

Here, the only evidence the Ma-nons introduced regarding the reasonableness of attorney fees was included with their motion for summary judgment. Once the court denied the motion for summary judgment and the case went to trial, the Manons were required to put forth this same or other evidence at trial to establish their right to recover attorney fees. See Garcia, 894 S.W.2d at 807 (“Where there is absolutely no testimony given at trial concerning an attorney’s fee, the reasonableness of such a fee is a question of fact and must be supported by competent evidence”) (emphasis added). Because the Manons failed to introduce any evidence of attorney fees at trial, by affidavit or otherwise, they failed to meet their burden on the issue of attorney fees. As such, the trial court did not err in entering an instructed verdict on the issue. We overrule the Manons’ second point of error.

Sufficiency of the Evidence

As cross-appellant, Tejas argues in its third point of error that the evidence is legally and factually insufficient to support the jury’s award of damages for anything other than a simple breach of contract. Specifically, Tejas contends that Question 3(b) of the jury charge is unsupported by the evidence, and further alleges that there is no evidence of an independent injury sufficient to award anything other than breach-of-contract damages.

When both legal and factual sufficiency challenges are raised on appeal, the court must first examine the legal sufficiency of the evidence. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In reviewing a legal sufficiency challenge, an appellate court considers only the evidence and inferences tending to support the trial court’s findings and disregards all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); see also Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). Thus, we must examine the record to determine whether some evidence exists to support the finding in question, namely, that the Manons suffered some pecuniary harm or injury as a result of Tejas’ misrepresentations. See id.

In reviewing the factual sufficiency of the evidence, we must consider and weigh all the evidence and should set aside the judgment only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may not substitute our own judgment for that of the trier of fact, even if we would have reached a different result on the evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998).

A closer examination of the jury charge provided in this case indicates Question 3(b) was neither submitted nor answered in error. Once the jury determined that Tejas engaged in misrepresentations or deceptive trade practices under questions one and two, it was tasked with appropriating damages in question three. Specifically, Question No. 3(b) asked the jury to determine “[t]he pecuniary loss, if any, otherwise suffered by [the Manons] and caused by [Tejas’] conduct.” Tejas argues that the only pecuniary loss suffered by the Manons was the loss of value stemming from the Sienna’s missing wood trim and trailer hitch, i.e., $591. As we already have explained, this amount apparently constituted the damages for Tejas’ breach of contract. However, negligent misrepresentation and/or DTPA violations are compensable actions separate and apart from breach of contract. See Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 45-47 (Tex.1998) (“A party’s actions may breach duties in tort or in contract, or both simultaneously.”) (emphasis added); Chapa v. Tony Gullo Motors I, No. 09-03-568-CV, 2004 WL 1902533, at *4-5 (Tex.App.-Beaumont Aug.26, 2004, pet. filed) (distinguishing cases allowing only breach-of-contract damages, and explaining “[t]his case [about an automobile dealer’s failure to provide the vehicle that the plaintiff requested] involves more than mere failure to perform contractual obligations”). Furthermore, Tejas contends that even if the Manons are entitled to recover additional damages, they failed to provide any evidence to support an award of damages beyond the $591.

Both negligent misrepresentation and DTPA claims allow for recovery of out-of-pocket damages. See, e.g., D.S.A., Inc. v. Hillsboro Ind. Sch. Dist., 973 S.W.2d 662, 663-64 (Tex.1998); W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex.1988) (defining out-of-pocket and benefit-of-the-bargain damages). In DTPA cases, a plaintiff may seek benefit-of-the-bargain damages — instead of out-of-pocket damages — similar to those recoverable for breach of contract. See Walters, 754 S.W.2d at 128 (explaining that out-of-pocket and benefit-of-the-bargain are two measures of damages under the DTPA, and noting that a plaintiff may recover the greater of the two measures). Tejas relies on these principles to argue that the Manons are limited to recovering damages under only one of these two theories, thus precluding the Manons from recovering anything but $591.

However, the Texas Supreme Court has explained that recovery under the DTPA is not exclusively limited to only these two types of damages. See Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex.1992) (holding that DTPA damages include recovery for “the total loss sustained [by the consumer] as a result of the deceptive trade practice.”); Ludt v. McCollum, 762 S.W.2d 575, 576 (Tex.1988) (“An aggrieved consumer may [receive] both cost of repair and permanent reduction in market value notwithstanding such repairs, as cumulative rather than mutually exclusive measures of damages [in DTPA cases].”); see also Tex. Bus. & Com. Code Ann. § 17.45(11) (providing for compensatory damages, including cost of repair and replacement in DTPA actions); D.S.A., Inc., 973 S.W.2d at 663-64 (explaining that a plaintiff can recover, in addition to out-of-pocket-expenses, any loss otherwise suffered as a consequence of misrepresentations). Therefore, DTPA damages “ ‘includ[e] related and reasonably necessary expenses.’ ” Bynum, 836 S.W.2d at 162 (quoting Kish v. Van Note, 692 S.W.2d 463, 466 (Tex.1985)). As such, a plaintiff is “permitted [to recover] other damages to ensure that the plaintiff is made whole.” Id.

Here, the Manons provided evidence — via dealer receipts and other related documents — to support the full extent of damages they requested. The most significant evidence was established through documents indicating the trade-in price they received for the non-conforming Sienna. Despite paying Tejas $33,300 for the original purchase of the Sienna van, the Manons received only $26,000 for the van when they traded it in to another dealer. This represents a difference of $7,300. In fact, this seven-thousand dollar figure is consistent with the amount the jury awarded for additional damages in Question No. 3(b).

Thus, the amount the jury awarded in Question 3(b) directly correlates to the difference in value between what the Ma-nons received and what they eventually had to pay. More precisely, the jury awarded $7,831.00. This amount represents the $7,300 trade-in difference plus a $531 credit that Tejas allegedly neglected to provide the Manons. Obviously, the jurors did not randomly envisage these numbers and then arbitrarily craft a damage award to their own liking. Instead, they relied on the receipts and other documentary evidence that the Manons introduced, and ultimately determined that $7,831 was the additional out-of-pocket monetary amount that the Manons would not have had to pay for the subsequent SUV purchase but for the money they lost on the Sienna trade-in. By awarding the $7,831 amount, the jury apparently was attempting to provide recovery for “the total loss sustained [by the Manons] as a result of the deceptive trade practice [or misrepresentation].” See Bynum, 836 S.W.2d at 162. Thus, it appears the jury attempted to “ensure [the Manons were] made whole.” See id.

Because the Manons provided sufficient evidence to support their claim for damages, and Tejas did not produce any contrary evidence to suggest the Manons’ claims were improperly inflated or otherwise unsubstantiated, the evidence sufficiently supports both the submission of Question 3(b) and the jury’s answer to the question. Certainly, there is at least some evidence sufficient to withstand Tejas’ legal sufficiency challenge. Moreover, after reviewing the entire record and noting the lack of contrary proof, we find the jury’s award was not clearly wrong or unjust. Thus, there is also factually sufficient evidence to support the award. Accordingly, we overrule Tejas’ third point of error.

General Charge on Damages

Tejas contends, in its fourth point of error, that the trial court erroneously submitted a general charge on damages, thereby permitting the jury to award damages based on improper elements. Ultimately, Tejas is challenging the jury charge on the notion that it distinguished between multiple theories of liability but improperly submitted only one count of damages to encompass those theories. In support of its complaint, Tejas cites Harris County v. Smith, 96 S.W.3d 230 (Tex.2002), and Crown Life Insurance Company v. Casteel, 22 S.W.3d 378 (Tex.2000), in which the Texas Supreme Court explained that an appellate court should order a new trial if the court cannot determine whether the jury’s damage award is based on an invalid or unsupported theory of liability.

In this case, “Question No. 1” asked the jury to decide if appellant committed acts of negligent misrepresentation. “Question No. 2” asked the jury if appellant engaged in false, misleading, or deceptive trade practices. “Question No. 3(b)” then asked the jury to determine “[t]he pecuniary loss, if any, otherwise ... caused by [Te-jas’] conduct.” Therefore, it appears that the jury’s answer to Question 3(b) could have been based on a finding of negligent misrepresentation, DTPA violations, or both. If the jury actually awarded damages in the aggregate based on one improper theory, then a remand for new trial would be appropriate under the cases cited by Tejas. However, Tejas did not request a remand and specifically explained to this court during oral argument that it did not desire a new trial. Therefore, Tejas has not requested any relief on this point of error which we could properly grant. See West End API, Ltd. v. Rothpletz, 732 S.W.2d 371, 374 (Tex.App.-Dallas 1987, writ ref'd n.r.e.) (“What can be better established than the proposition that relief that has not been prayed cannot be granted? [Appellants] have given no indication anywhere in their briefs that they desire a new trial.... They only ask that we render judgment in their favor.... Nevertheless, we must limit [appellants] to the relief prayed.”).

Moreover, while it would have been better for the trial court to have submitted separate damage questions to coincide with each of the Manons’ theories of liability, we do not believe this oversight warrants a new trial. There was sufficient evidence presented at trial to support a jury charge question on both the negligent misrepresentation and DTPA issues. Therefore, the jury’s award of damages was not based on an invalid or unsupported theory of liability, but rather, a combination of theories that appear to have been sufficiently supported. Accordingly, we overrule Tejas’ fourth point of error.

Exemplary Damages

In its second, fifth, and sixth points of error, Tejas argues the evidence was insufficient to support a jury question on and an award of exemplary damages. Tejas contends, instead, that the jury awarded “punitive” damages which are not permitted in simple breach-of-contract cases such as this one.

In its brief, Tejas summarily addressed this issue in three sentences. Specifically, Tejas argues there was no jury finding of punitive damages nor of the elements required to award punitive damages under the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.Code Ann. § 41.001-013 (Vernon 1997 & Supp.2004). Tejas also claims the case involved only a breach of contract, and therefore, only breach-of-contract damages, not punitive damages, should have been awarded. In its “Reply Brief,” Tejas elaborates on this point of error by distinguishing exemplary damages, under the Texas Civil Practice and Remedies Code, from additional damages, under the DTPA. Compare Tex. Civ. PRAC. & Rem.Code Ann. § 41.001-013 with Tex. Bus. & Com.Code Ann. § 17.50 (Vernon 2002). Therefore, the crux of Tejas’ argument seems to be: the trial court should not have awarded either exemplary or additional damages, but at the very least, the trial court awarded the incorrect type of damages, ie., “exemplary” as opposed to “additional.”

As a challenge to the sufficiency of the evidence, we will review the record according to the standard set out above. Here, the record indicates the jury found appellant liable for knowing, intentional, or unconscionable action and then set the amount of damages for this conduct at $5,000. The trial court then entered judgment awarding the Manons “$5,000 for exemplary damages.” By describing the damage award as exemplary, it appears the court was attempting to apply the Texas Civil Practice and Remedies Code. See Tex. Crv. PRAC. & RemEoue Ann. § 41.001-013 (providing for the award of exemplary damages). However, the charge itself mirrors the language for DTPA damages found in the Texas Pattern Jury Charge. See Comm. on Pattern Jury Charges, State Bar Of Tex., TEXAS Pattern Jury Charges — Business, Consumer & Employment PJC 110.11 (2000); but see id. 110.33-34 (listing the charge elements required for a finding of exemplary damages). Based solely on these factors, it is difficult to decipher what theory of liability the jury used in awarding the $5,000.

The trial judge also appears to have been uncertain as to which theory of liability was applicable. While considering this issue, the trial judge stated, “Oh, DTPA, same as fraud. I’m still contemplating whether or not I can go under DTPA, although I’m leading more toward DTPA and less toward fraud. Okay? But I haven’t totally made up my mind yet. I’ll flip a coin. Okay? All right.” Therefore, we agree with Tejas that the damage award is not a model of specificity.

However, this does not mean the damage award is wholly unsupported by the evidence. In fact, the Manons counter by arguing the damage amount was based on their DTPA claim and that the Texas Civil Practice and Remedies Code was not applicable. Furthermore, they contend the jury’s affirmative answer to “Question No. 4” — whether appellant committed a knowing, intentional, or unconscionable act— supports the court’s award of $5,000 regardless of which theory is applied.

We agree that there is sufficient evidence to support an award of either exemplanj or additional damages. Under the Texas Civil Practice and Remedies Code, a plaintiff is entitled to recover exemplary damages if he proves, by clear and convincing evidence, that the defendant acted fraudulently, maliciously, or with gross negligence. See, e.g., Tex. Civ. PRAC. & Rem.Code Ann. § 41.003; KPH Consolidation, Inc. v. Romero, 102 S.W.3d 135, 144 (Tex.App.-Houston [14th Dist.] 2003, pet. granted). Similarly, the DTPA entitles a plaintiff to recover additional damages, up to three times the amount of economic damages, if the defendant acted knowingly. See, e.g., Tex. Bus. & Com.Code Ann. § 17.50(b)(1); see also Tex. Bus. & Com.Code Ann. § 17.45(9) (describing a knowing violation as one in which the defendant has “actual awareness” of the falsity, deception, or unfairness of its actions); Gomez v. Diaz, 57 S.W.3d 573, 577 (Tex.App.-Corpus Christi 2001, no pet.). Therefore, we will review the record to determine whether the evidence supports a finding that Tejas acted either fraudulently or with actual awareness of the falsity or deceptiveness of its actions.

The record reflects that when the Ma-nons first expressed their desire to purchase a Sienna van from Tejas, they made it very clear that a wood-grained interior was a crucial feature. Realizing that the Manons would likely not purchase a vehicle without the wood trim, Tejas researched the availability of the trim on all Toyota Sienna vans. While Tejas representatives and the Manons were negotiating the purchase of the Sienna, a Tejas salesman determined that wood-grained interior trim was no longer available on any new Toyota Sienna vans. Despite this revelation, Tejas informed the Manons that it had ordered the wood-grained trim and that the trim would be delivered and installed within three weeks. In reliance on Tejas’ assurances, the Manons agreed to purchase the Sienna van from Tejas.

When the Manons began experiencing problems with the after-market trailer hitch installed by Tejas, they returned the Sienna for service on the hitch. Tejas again promised the Manons that the wood trim was on order and that it would be installed as soon as possible. Subsequently, the Manons made numerous additional visits to Tejas for repairs on the trailer hitch, and each time, Tejas told the Manons that the wood-grained trim was on order and would be installed as soon as it arrived. After several months had expired and the Manons continued to demand installment of the trim, Tejas finally informed the Manons that the wood-grained trim was no longer available on Sienna vans. Tejas further explained that it would not be able to provide the feature despite repeatedly promising the same.

These facts were all adduced at trial and provided for the jury’s consideration. But perhaps the most damaging evidence for Tejas came in the form of dealership records and testimonies suggesting that, in fact, Tejas never placed an order to purchase the wood-grained trim despite making repeated assurances to the Ma-nons that the trim was on order. Tejas representatives testified on the stand that they had not intended to misrepresent the Sienna’s available options or fraudulently induce the Manons into purchasing the vehicle. However, the jury was free to disbelieve this testimony. See Transmission Exch. Inc. v. Long, 821 S.W.2d 265, 271 (Tex.App.-Houston [1st Dist.] 1991, writ denied); Miller v. Kendall, 804 S.W.2d 933, 939 (Tex.App.-Houston [1st Dist.] 1990, no writ). The jury had an opportunity to review both the dealership records and deposition and live testimony; and based on this evidence, the jury concluded that Tejas had engaged in fraudulent and/or false, deceptive trade practices. Accordingly, the jury awarded exemplary or additional damages for Tejas’ conduct. See generally Pace v. State, 650 S.W.2d 64, 65 (Tex.1983) (“DTPA [damages] are punitive [and] are not to restore one to his position before the act giving rise to the damages, rather they are to punish the wrongdoer and are an example to others.”); Global Equip. Sales, Inc. v. Smith, No. 05-99-01046-CV, 2000 WL 566890, at * (Tex.App.-Dallas Apr.26, 2000,) (affirming a trial court’s award of additional damages for DTPA, and holding that despite the plaintiffs entwined breach of contract claim, the award was not impermissibly punitive).

Nothing in our review of the evidence, or of the record as a whole, suggests there was insufficient evidence to support either submission of or the jury’s answers to the questions on Tejas’ liability for misrepresentation/DTPA violations. See Padgett v. Bert Ogden Motor’s, Inc., 869 S.W.2d 532, 535-37 (Tex.App.-Corpus Christi 1993, writ denied). Moreover, nothing in our review suggests the jury’s award of $5,000 for additional/exemplary damages is unsupported by the evidence. As such, we overrule Tejas’ second, fifth, and sixth points of error.

The judgment of the trial court is affirmed.

      . The $8,422 in actual damages was apparently apportioned by the jury as follows: $591 for breach of contract; $7,831 for misrepresentation/deceptive trade practices.

      . $43,499.89 [Sequoia SUV cost] — $33,300 [original Sienna van price] = $10,199.89.

      . $33,300 [original Sienna van price]— $26,000 [received for the Sienna as trade-in allowance for the Sequoia SUV from another dealership] = $7,300.

      . The Manons argue in their appellate brief that they would not have purchased the van without the wood-grained trim. They contend the van was "ugly” without this trim and that this ugliness must be considered when assessing the allegedly impaired value and the appropriate measure of damages. They further claim that "beauty” — and therefore value — is in the eye of the beholder.

      .The witness described the two vehicles as comparable, by industry standards, in terms of towing-capacity, number of passengers they could carry, and price range.

      . This amount is based on the jury's answer to "Question No. 3(a)" — the only uncontested jury charge question — which asked the jury to determine the difference in value between what the Manons received [the Sienna without the wood trim] and what they requested [a Sienna with wood trim], i.e., standard breach-of-contract damages.

      . A $591 decrease in value of a $33,300 vehicle represents an "impairment” of 1.77%.

      . As Tejas points out in its appellate briefs, the price of the Sequoia SUV was greater than 125% of the purchase price of the Sienna van. While there is no magic number which makes a substitute good reasonable or not, we agree with Tejas that this 125% — or greater than $10,000 — increase in price raises a serious question as to whether the SUV was a reasonable substitute. This question should have been submitted to the jury, but because it was not we will deem a finding on the issue consistent with the judgment. See, e.g., Tex.R. Civ. P. 279.

      .Citing Texas Rule of Civil Procedure 279, the Manons argue that even if these issues were required elements that should have been submitted to the jury, Tejas waived this complaint by failing to object to the missing elements. Rule 279 provides that a trial court may make a finding on an omitted element when a party fails to object to the element's omission from the jury charge. See Tex.R. Civ. P. 279; Gulf States Utils.Co. v. Low, 79 S.W.3d 561, 565 (Tex.2002). However, Rule 279 also explains that when a trial court does not make an express finding on the missing element, the appellate court is to deem a finding on the element in a way that supports the court’s judgment if there is some evidence that supports the finding. See Tex.R. Civ. P. 279; State Farm Life Ins. Co. v. Beaston, 907 S.W.2d 430, 437 (Tex.1995).
      In this case, the trial court made no express findings on the issues of substantial impairment or reasonable substitute. As such, we must deem a finding on these issues consistent with the final judgment. Because the jury awarded breach-of-contract damages consistent with the amount permitted under Business & Commerce Code section 2.714, we interpret this to mean the jury found against the Manons on both issues, i.e., the Sienna's value was not substantially impaired and the $43,000 SUV was not a reasonable substitute for the $33,000 van.

      . We also note that the trial court was entitled to take judicial notice of attorney fees, if at all, only on the Manons' breach-of-contract claim, as it was the only claim governed by chapter 38 of the Texas Civil Practice and Remedies Code. See, e.g., Tex. Civ. Prac. & Rem.Code Ann. §§ 38.001, .004; Gorman v. Gorman, 966 S.W.2d 858, 867 (Tex.App.Houston [1st Dist.] 1998, pet. denied); Smith v. Smith, 757 S.W.2d 422, 425 (Tex.App.-Dallas 1988, writ denied) (refusing to take judicial notice in a DTPA case).

      . The Manons also moved to re-open the evidence to allow them to fully develop their claim for attorney fees. They argue on appeal that it was error for the trial court to deny this motion. However, the record indicates the Manons never obtained a ruling on their motion and, therefore, they have waived any complaint on this issue. See Tex.R.App. P. 33.1(a)(1)-(2); see also Walton Neon Co. v. Travel-Tex Corp., 482 S.W.2d 934, 936-37 (Tex.App.-Corpus Christi 1972, writ ref’d n.r.e.) (holding that no error was preserved when a party asked the court to re-open the evidence but made no bill of exception).

      . At trial, Tejas also challenged jury questions one and two by arguing the evidence was insufficient to support either submission of the questions or the jury’s answers thereto. Questions one and two asked whether Tejas engaged in negligent misrepresentation and deceptive trade practices, respectively. The jury answered "yes” to both questions. Despite Tejas' objections at trial to the first two jury questions, it did not maintain these challenges on appeal and, therefore, has waived any issue regarding these two questions/answers. See, e.g., Tex.R.App. P. 38.1. Accordingly, we begin with the premise that Tejas is liable for misrepresentation and/or deceptive trade practices, and we need only to determine under this point of error whether the Manons properly proved damages.

      . In its entirety, Question 3 was presented to jury as follows:
      What sum of money, if any, if paid in cash would fairly and reasonably compensate [the Manons] for their actual damages, if any, which were proximately caused by Tejas Toyota, Inc.’s conduct. [The question then defined proximate cause and further instructed the jury] [d]o no not include damages for one element in any other element. Do not include in your answer to compensate [the Manons] any amount that you find that [the Manons] could have avoided by the exercise of reasonable care. Do not add any amount for interest on past damages, if any. Consider the elements of damages listed below and none other. Consider each element separately.
      a) The difference, if any, between the value of what [the Manons] received in the transaction and the purchase price or value given. [To which the jury awarded $591.00.]
      b) The pecuniary loss, if any, otherwise suffered by [the Manons] and caused by Tejas Toyota Inc.’s conduct. [To which the jury awarded $7,831.00.]

      . The $531 figure came from a $500 trade-in discrepancy — the difference between the appraisal value of the Manons' first van [$3,500 for a Silhouette] and the amount credited by Tejas for trade-in of the Silhouette [$3,000]— plus 6.25% sales tax.

      . See generally discussion infra “Exemplary Damages.”

      . See discussion supra “Sufficiency of the Evidence.”

      . This finding was in response to jury charge "Question No. 4,” which asked if appellant had committed a knowing, intentional, or unconscionable act to deceive the Manons. The jury answered in the affirmative.

      .This award comes from the jury's answer to "Question No. 5” of the charge, which read:
      What sum of money, if any, in addition to actual damages, should be awarded to [the Manons] against [Tejas] because [Tejas’] conduct was committed knowingly or intentionally or was unconscionable?