                                 MEMORANDUM OPINION
                                        No. 04-10-00375-CV

                                         Norris J. DEVOLL,
                                              Appellant

                                                 v.

                          Rebecca DEMONBREUN and William Dowds,
                                       Appellees

                    From the 408th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008-CI-10538
                         Honorable Solomon Casseb, III, Judge Presiding

Opinion by:      Phylis J. Speedlin, Justice

Sitting:         Phylis J. Speedlin, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: March 21, 2012

AFFIRMED

           Norris J. DeVoll appeals a judgment rendered against him, and in favor of Rebecca

Demonbreun and William Dowds, under the Texas Deceptive Trade Practices-Consumer

Protection Act (DTPA). Because we conclude the evidence is sufficient to support the jury’s

findings, we affirm the judgment of the trial court.
                                                                                   04-10-00375-CV


                                             FACTS

       This case arises out of the sale of a home and adjoining piece of property by DeVoll to

Demonbreun and Dowds in 2007. Because Demonbreun and Dowds prevailed at trial, we view

the evidence in the light most favorable to them. Prudential Ins. Co. of Am. v. Jefferson Assocs.,

Ltd., 896 S.W.2d 156, 159 (Tex. 1995). DeVoll purchased the residence at 3311 Kaiser Street

and the adjacent vacant lot at 3315 Kaiser Street through a probate proceeding on August 31,

2005 without ever seeing the inside of the house. DeVoll is a real estate investor who has bought

and sold about 50 properties in the last ten to fifteen years, often through court proceedings.

This particular home was built in the 1950’s and was in a state of disrepair. When DeVoll

purchased the property, the prior owner’s son, Jack Buck, was living on the premises and refused

to leave. Buck had filed a mechanic’s lien on the home and also claimed that his mother left the

house to him. DeVoll sued to evict Buck and was ultimately successful in establishing his

ownership of the house and the adjacent lot. In connection with the eviction litigation, DeVoll

visually inspected the home in an effort to document any damage caused by Buck. In May 2006,

DeVoll began work to clean up the premises and ready the property for resale. It was placed on

the market in October 2006 at the price of $92,000.

       In May of 2007, Dowds drove by the Kaiser Street properties and thought they might be

suitable for him and his girlfriend, Demonbreun. A few days later, Dowds, and his realtor, John

Woods, walked through the house to examine it. Dowds noted that the house was clean and

freshly painted, and smelled good and looked good. Thereafter, Dowds, Woods, Demonbreun,

and DeVoll toured the house together. DeVoll told them that it was “a sound house” and if there

were any minor defects, he would take care of them. DeVoll told Dowds that the air conditioner,

which was installed on top of the flat metal roof, was missing parts and that he would either



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replace them or install a new unit. DeVoll stated that the air conditioner had been vandalized

and that all of the copper had been stripped out, resulting in leaks through the area where the

intact air conditioner used to be. DeVoll also told Dowds that the hot water in the kitchen was

not working because a valve needed to be replaced, and said that he would take care of the

matter. Finally, DeVoll told Dowds and Demonbreun that the window frames had been recently

painted, and that removing the paint with a straight edge would allow them to open the windows.

Dowds asked DeVoll if there was anything wrong with the house and if there were any

restrictions on the property. DeVoll replied that there was nothing wrong with the house and that

there were no restrictions. DeVoll told Demonbreun that it was a nice house and in good shape.

         A few days later, on May 22, 2007, Demonbreun 1 made an offer to purchase the house

and adjacent lot for $89,000. The offer to purchase the property is titled “One to Four Family

Residential Contract (Resale),” and is a form contract promulgated by the Texas Real Estate

Commission (TREC). The contract was filled out by Woods, who was a realtor with Don

Johnson Real Estate Company.          Section 7 of the contract pertains to the condition of the

property; subsection 7(B)(3) provides three options relative to the seller’s disclosure notice.

Option 3 states that the seller is not required to furnish the notice under the Texas Property Code.

Woods checked Option 3, in reliance on DeVoll’s statement that he was not required to provide

the disclosure notice because he acquired the property through probate and had never lived in the

house.

         Subsection 7(D) of the contract, titled “Acceptance of Property Condition,” provides that,

“Buyer accepts the Property in its present condition; provided Seller, at Seller’s expense,

shall complete the following specific repairs and treatments: HVAC System will be made


1
  Although Demonbreun and Dowds intended to live in the house together, only Demonbreun’s name appeared on
the contract in order to obtain more favorable financing terms.

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operational prior to closing.” (emphasis added). The underlined language was handwritten by

Woods.

        The contract also contained a standard inspection clause and termination option. On May

27, 2007, within the five-day option period, Demonbreun had the property inspected by her

friend, John Blanco, a licensed contractor. Blanco inspected the property and produced a list of a

dozen repairs desired by the buyers. DeVoll made the repairs. 2 Before closing on the house,

Demonbreun and Dowds moved their mobile home onto the adjacent vacant lot. DeVoll gave

them the lockbox code and allowed them to use the restroom in the house while they stayed in

the mobile home.

        The sale of the properties closed on June 7, 2007. After Demonbreun and Dowds moved

into the house, they discovered numerous problems. The first time they turned on the stove, they

could hear gas leaking out of the gas pipe. DeVoll sent a handyman to attempt a repair, but the

gas lines remained corroded. In late June, after a heavy rainstorm, water leaked in beneath the

newly installed air conditioning unit. In addition, the flat metal roof leaked into the living room

and bedrooms. Heavy acoustic had been sprayed on the ceilings where these leaks occurred.

DeVoll sent workmen over on at least two occasions to repair the leaks, but the leaks persisted.

Demonbreun and Dowds also discovered a serious plumbing leak in a wall near the kitchen.

Upon removing the wall to expose the leak, Dowds discovered what appeared to be a

longstanding leak based on the extensively damaged wood near the leak and a poor attempt to

repair the problem. When Demonbreun called her homeowner’s insurance about fixing the

plumbing leak, they refused to pay, stating that it was a pre-existing condition. Demonbreun

stated that they realized there was a plumbing leak when they smelled raw sewage and noticed


2
 Demonbreun testified at trial that none of the items which are the subject of the complaints in the lawsuit were
contained in Blanco’s inspection list.

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damp carpet in the office. In the backyard they noticed “green slime” along the bottom of the

house. They tore open a wall in the kitchen and pulled off sheet rock to find a busted pipe. It

was apparent that someone had recently attempted to repair the pipe because there was brand

new sheet rock and cement around the pipe.

       Other problems with the house included a leaking Jacuzzi and windows that had been

rusted shut rather than painted shut. Although DeVoll had agreed to replace a valve to get the

hot water running in the kitchen, his repair attempts failed. In order to wash dishes, Demonbreun

and Dowds had to carry in hot water from the bathroom. They received an estimate from a

plumber to fix the problem, which was over $10,000 and required rerouting the plumbing

outside. The hot water heater also did not work, but DeVoll replaced it with a functioning unit.

       After Dowds and Demonbreun had lived on the property for a month or two, the City of

San Antonio Code Enforcement Services notified them that they were in violation of residential

zoning restrictions and demanded that they remove the mobile home that was parked on the

adjacent lot and that they remove the privacy fence that Dowds had built along the boundaries of

the vacant lot. About a year after moving in, Demonbreun and Dowds were also visited by Jack

Buck, the holdover tenant who had been evicted by DeVoll. Buck told them that there used to be

a gas pump on the adjacent lot and that a large gas storage tank was buried underground and had

never been removed. Prior to his eviction, Buck had informed DeVoll about the underground

tank and showed him a small pipe filled with dirt sticking out of the ground on the adjacent lot.

Demonbreun stated that she was concerned about the alleged gas tank because it could be a

health hazard, and that she could not afford to remove the tank, given that the estimates she

received ranged from $10,000 to dig the tank up to over $100,000 to dispose of the tank.




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         Demonbreun and Dowds notified DeVoll of the various problems with the house and he

sent workmen over to attempt repairs. Dowds claimed that DeVoll consistently sent unlicensed

and incompetent repairmen and therefore he decided to stop complaining about the defects to

DeVoll. Thereafter, Demonbreun and Dowds had the property inspected by Christopher Stein, a

home builder and developer with over thirty years of experience in the construction industry.

Stein prepared a report detailing the home’s defects, deficiencies, and building code violations,

and opined that the necessary repairs would exceed $100,000. In his report, Stein opined that

“substandard work was performed on [the] house prior to purchase of the home by Mrs.

[Demonbreun] for the purpose of concealing serious defects of the home.”

         In March of 2009, Demonbreun and Dowds moved out of the house, frustrated that the

numerous defects would cost more to repair than the property was worth. Demonbreun and

Dowds subsequently sued DeVoll for violations of the DTPA, alleging that DeVoll failed to

provide the seller’s disclosure notice required by law, misrepresented the condition of the home,

misrepresented that he would repair numerous defects with the home, and failed to disclose

information known about the house for the purpose of inducing them to purchase the property. 3

Demonbreun also alleged that she suffered mental anguish as a result of DeVoll’s false,

misleading, and deceptive acts. Ultimately, the case was submitted on the DTPA causes of

action only. The jury found that (1) DeVoll engaged in false, misleading, or deceptive act(s) or

practice(s) 4 that Demonbreun and Dowds relied on to their detriment and that was a producing


3
  Demonbreun and Dowds also sued John Woods, their realtor, and Don Johnson Real Estate Company, but
proceeded to trial against DeVoll alone.
4
  The charge defined a false, misleading, or deceptive act or practice as: “a) Failing to disclose information about the
properties in question that was known by Norris J. DeVoll at the time of the transaction with the intention to induce
Rebecca Demonbreun and William Dowds into a transaction they would not have entered into if the information had
been disclosed; b) Misrepresenting that the properties in question were of a particular standard, quality, or grade, if
they are of another; or c) Misrepresenting that the properties in question had characteristics, uses, or benefits which
they do not have.”

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cause of damages to Demonbreun and Dowds; (2) DeVoll engaged in an unconscionable action

or course of action that was a producing cause of damages to Demonbreun and Dowds; and (3)

DeVoll engaged in such conduct knowingly and/or intentionally.             The trial court entered

judgment on the jury’s verdict and awarded Demonbreun and Dowds $114,721.00, plus

prejudgment interest and attorney’s fees. This appeal followed.

                                            DISCUSSION

        DeVoll challenges the trial court’s judgment in three issues, contending (1) he is entitled

to judgment as a matter of law because the “as is” clause in the residential sales contract

eliminates the causation necessary for the buyers to recover under the DTPA; (2) there is no

evidence, or at least insufficient evidence, that he engaged in an unconscionable action by taking

advantage of the buyers’ lack of knowledge, ability, or capacity to a grossly unfair degree; and

(3) there is factually insufficient evidence that Demonbreun suffered mental anguish and to

support the amount of mental anguish damages awarded to her.

   I.      Causation

        In his first issue, DeVoll contends that he is entitled to judgment as a matter of law

because the “as is” clause in the parties’ residential sales contract negates the causation necessary

for Demonbreun and Dowds to recover under the DTPA.

Standard of Review

        We review legal questions that rest on a factual basis de novo, while affording deference

to the jury’s fact findings. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341

S.W.3d 323, 337 (Tex. 2011); Reliance Nat’l Indem. Co. v. Advance’d Temps., Inc., 227 S.W.3d

46, 50 (Tex. 2007) (“Appellate courts review legal determinations de novo, whereas factual

determinations receive more deferential review based on the sufficiency of the evidence.”).



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Applicable Law

       Under the DTPA, a consumer may bring suit against any person whose violation of the

Act is a producing cause of the consumer’s harm. TEX. BUS. & COM. CODE ANN. § 17.50(a)(1),

(3) (West 2011). Producing cause requires “some evidence that the defendant’s act or omission

was a cause in fact of the plaintiff’s injury.” Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502

(Tex. 2001). DeVoll argues that Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156

(Tex. 1995), controls the outcome of this case. We thus begin by analyzing Prudential.

       Prudential Insurance Co. v. Jefferson Associates, Ltd.

       The facts in Prudential are relatively straightforward. Goldman, a knowledgeable real

estate investor, purchased a commercial building from Prudential “as is” after conducting his

own inspection of the property. Id. at 159. Subsequently, Goldman sued Prudential alleging

violations of the DTPA, fraud, negligence and breach of the duty of good faith and fair dealing.

Id. at 160. Goldman claimed Prudential misrepresented the condition of the building during the

negotiation process and failed to disclose the building contained asbestos, a condition which

lowered the value of the property. Id. Prudential responded that Goldman was precluded from

recovering under the DTPA because the sales contract contained an explicit “as is” clause which

provided:

       As a material part of consideration for this Agreement, Seller and Purchaser agree
       that Purchaser is taking the Property “AS IS” with any and all latent and patent
       defects and that there is no warranty by Seller that the Property is fit for a
       particular purpose. Purchaser acknowledges that it is not relying upon any
       representation, statement or other assertion with respect to the Property condition,
       but is relying upon its examination of the Property. Purchaser takes the Property
       under the express understanding there are no express or implied warranties
       (except for limited warranties of title set forth in the closing documents).
       Provisions of this Section 15 shall survive the Closing.




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Id. at 159-60. Goldman prevailed at trial and the supreme court granted review to decide

“whether a buyer who agrees, freely and without fraudulent inducement, to purchase commercial

real estate ‘as is’ can recover damages from the seller when the property is later discovered not

to be in as good a condition as the buyer believed it was when he inspected it before the sale.”

Id. at 158-59.

       The supreme court began its analysis by noting that all of Goldman’s causes of action

required proof that Prudential had caused his injuries. Id. at 160-61. The court then focused on

whether Goldman’s “as is” agreement established that Prudential could not have been a

producing cause of his harm. Id. at 161, 164. Relying on Mid Continent Aircraft Corp. v. Curry

County Spraying Serv. Inc., 572 S.W.2d 308, 313 (Tex. 1978), the supreme court held that by

agreeing to purchase the property “as is,” the buyer agrees to make his own assessment of the

bargain and accepts the risk that he may be wrong. See Prudential, 896 S.W.2d at 161. The

court also relied on section 2.316(c)(1) of the Texas Business and Commerce Code, noting that

with an “as is” agreement, the seller gives no assurances, express or implied, concerning the

value or condition of the thing sold. Id.; TEX. BUS. & COM. CODE ANN. § 2.316(c)(1) (West

2009). The court specifically held that a “valid ‘as is’ agreement, like the one in the [Prudential]

case, prevents a buyer from holding a seller liable if the thing sold turns out to be worth less than

the price paid because it is impossible for the buyer’s injury on account of this disparity to have

been caused by the seller.” See Prudential, 896 S.W.2d at 161-62.

       Although the “as is” agreement in Prudential negated the element of causation necessary

for Goldman’s claims, the supreme court expressly cautioned that not all “as is” agreements will

have this preclusive effect. Id. at 162. The court recognized, “[a] buyer is not bound by an

agreement to purchase something ‘as is’ that he is induced to make because of a fraudulent



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representation or concealment of information by the seller.” Id. “Also, a buyer is not bound by

an ‘as is’ agreement if he is entitled to inspect the condition of what is being sold but is impaired

by the seller’s conduct.” Id. Furthermore, “other aspects of a transaction may make an ‘as is’

agreement unenforceable. The nature of the transaction and the totality of the circumstances

surrounding the agreement must be considered.” Id. (noting that where “as is” clause is an

important basis of the bargain and is entered into by parties of relatively equal bargaining

position, a buyer’s affirmation and agreement that he is not relying on the seller’s representations

should be given effect). In summary, as we have previously held, “the mandate of Prudential is

to determine the validity of the ‘as is’ agreement at issue in light of the sophistication of the

parties, the terms of the ‘as is’ agreement, and whether there was a knowing misrepresentation or

concealment of a known fact.” Smith v. Levine, 911 S.W.2d 427, 432 (Tex. App.—San Antonio

1995, writ denied).

Application

       Turning to the case before us, we must determine whether the “as is” clause in the real

estate contract between DeVoll and Demonbreun is enforceable. See Gym-N-I Playgrounds, Inc.

v. Snider, 220 S.W.3d 905, 912 n.10 (Tex. 2007) (citing Prudential, 896 S.W.2d at 162).

Demonbreun and Dowds argue that it is not enforceable because there is ample evidence of

misrepresentations and failures to disclose by DeVoll that induced them to purchase the property

and inhibited their ability to inspect the property. They contend this “is especially true in light of

DeVoll’s relative sophistication and the boilerplate nature of the clause in question.”

Additionally, Demonbreun and Dowds maintain that DeVoll induced them to enter into a

contract which “waived” the seller’s disclosure notice by telling their realtor that he was not




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                                                                                                  04-10-00375-CV


required to provide the notice because he acquired the house through probate and had never lived

in the house.

        DeVoll counters that the clause was proposed by the buyers, and that it was negotiated

between the parties, as evidenced by the handwritten language requiring DeVoll to repair the

HVAC system. He also argues that the parties were of relatively equal bargaining position,

given that the buyers approached DeVoll to purchase the property and that they were represented

by an experienced realtor. He further argues that Demonbreun and Dowds cannot complain

about omissions because when they made their offer to buy the property—which DeVoll

accepted—they chose to waive the seller’s disclosure notice. 5

        We begin by noting that the provision at issue states that Demonbreun accepted the

property “in its present condition,” subject to the HVAC repair. While the parties do not dispute

that this language has been held to constitute an “as is” agreement, see Cherry v. McCall, 138

S.W.3d 35, 39 (Tex. App.—San Antonio 2004, pet. denied), and Boehl v. Boley, No. 07-09-

0269-CV, 2011 WL 238348, at *2 (Tex. App.—Amarillo Jan. 26, 2011, pet. denied) (mem. op.)

(“[A] TREC contract using the language ‘in its current condition’ has been construed to be an ‘as

is’ agreement.”), the clause is not as explicit or detailed as that in Prudential and is entirely silent

on the issue of reliance. Cf. Prudential, 896 S.W.2d at 160 (“as is” clause provided that the

buyer was relying on his own examination of the property and not upon any statement or

assertion made by the seller regarding the condition of the property); see also Smith, 911 S.W.2d

at 432 (holding, in part, that an “as is” clause that is silent on the issue of whether the buyer will



5
  DeVoll additionally argues that he is entitled to a reversal because Demonbreun and Dowds failed to plead, prove,
and submit to the jury affirmative defenses to the “as is” clause. We disagree. Demonbreun and Dowds did allege
in their pleadings that DeVoll concealed or failed to disclose material facts within his knowledge, and that he
intended to induce them to enter into the sale by such concealment or failure to disclose.



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rely on the seller’s statements cannot negate causation as a matter of law); Pairett v. Gutierrez,

969 S.W.2d 512, 517 (Tex. App.—Austin 1998, pet. denied) (same).

       We also recognize that the record contains no evidence that either party discussed

paragraph 7D, although it is undisputed that Woods added the handwritten language “HVAC

System will be made operational prior to closing” to the contract he submitted to DeVoll on

behalf of Demonbreun and Dowds. See Kupchynsky v. Nardiello, 230 S.W.3d 685, 691 (Tex.

App.—Dallas 2007, pet. denied) (holding, in part, that a similar clause in a standard preprinted

residential sales contract did not negate causation as a matter of law because the clause was not

an “important basis of the bargain” where the buyer testified that the provision was neither

discussed nor negotiated).

       We next examine the evidence to determine whether DeVoll made any fraudulent

representations to Demonbreun and Dowds in order to induce them to enter into the “as is”

agreement. See Prudential, 896 S.W.2d at 162; see also Doe v. Boys Clubs of Greater Dallas,

Inc., 907 S.W.2d 472, 479 (Tex. 1995). The elements of fraud are:

       (1) that a material representation was made; (2) the representation was false; (3)
       when the representation was made, the speaker knew it was false or made it
       recklessly without any knowledge of the truth and as a positive assertion; (4) the
       speaker made the representation with the intent that the other party should act
       upon it; (5) the party acted in reliance on the representation; and (6) the party
       thereby suffered injury.

Italian Cowboy Partners, 341 S.W.3d at 337 (quoting Aquaplex, Inc. v. Rancho La Valencia,

Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per curiam)). “Material means a reasonable person

would attach importance to and would be induced to act on the information in determining his

choice of actions in the transaction in question.” Italian Cowboy Partners, 341 S.W.3d at 337

(quoting Smith v. KNC Optical, Inc., 296 S.W.3d 807, 812 (Tex. App.—Dallas 2009, no pet.)).




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       At trial, Demonbreun and Dowds argued they were induced to buy the property by

DeVoll’s fraudulent representations about the condition of the house. Initially, we do not agree

that DeVoll’s statements describing the house as “nice” and “sound” amount to

misrepresentations of material fact. As Prudential noted, statements by a seller describing a

building as “superb”, “super fine”, and “one of the finest little properties in the City of Austin”

are “puffing” or opinion, and cannot constitute fraud.         Prudential, 896 S.W.2d at 163.

Demonbreun and Dowds also contend that DeVoll misrepresented that he would properly install

a new HVAC system and fix the hot water in the kitchen. Again, we disagree that DeVoll’s

promises with respect to these items amount to fraudulent representations made to induce

Demonbreun and Dowds to enter into the “as is” agreement. The record shows that, even though

it continued to leak, DeVoll did in fact install a new HVAC system and that he sent various

repairmen who attempted to repair the roof, the gas pipe, and the hot water problem in the

kitchen. Because there is no evidence in this record that DeVoll’s promises to repair the items

were false at the time they were made by DeVoll or that the promises were made for the purpose

of inducing the buyers to enter into the agreement, we cannot conclude that the failures to repair

constitute evidence of fraud or fraudulent inducement. See Formosa Plastics Corp. USA v.

Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1988) (mere failure to perform

contract is not evidence of fraud; fraud requires evidence that representations were made with

intent to deceive and with no intention of performing as represented); see also Crawford v. Ace

Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996) (failure to perform contractual obligation does not

constitute a “false, misleading or deceptive act” in violation of the DTPA).

       We do, however, agree that DeVoll’s statement that there was nothing wrong with the

house is an actionable material misrepresentation. We reach this conclusion by examining the



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evidence presented at trial in the light most favorable to the jury’s findings. See Prudential, 896

S.W.2d at 159. Although DeVoll told Dowds there was nothing wrong with the house, there is

circumstantial evidence in this record that DeVoll knew the roof and plumbing were defective.

See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 277 (Tex. 1995) (“Superior knowledge by

one party may also provide the occasion for fraud.”). Stein, who inspected the home after

Demonbreun and Dowds discovered the defects, testified that most, if not all, of the roof leaks

were present before Demonbreun purchased the house, because the roof was old and the leaks

could not have appeared “overnight.” Stein believed that heavy acoustic was sprayed on the

ceiling to hide evidence of leaks.     Stein further discussed the plumbing leak that Dowds

discovered in the kitchen. He testified that some plumbing work had recently been performed

because fresh concrete had been poured around a rotted pipe. Stein opined that the unsuccessful

repair was made within two years prior to his inspection of the home. Stein also verified that the

leak Dowds described in the office had been recently repaired. Stein photographed a new piece

of plywood, and stated “[t]his is something that someone went in recently . . . [b]ecause this

piece of plywood would show a lot of water damage on it and it doesn’t. . . . Someone knew

about this leak.” Actual knowledge can be established by circumstantial evidence, but only

when the evidence, directly or by reasonable inference, supports that conclusion. See State ex

rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002); see

also City of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996).             Given Stein’s

testimony that the plumbing repairs were performed within the two-year period that DeVoll

owned the home, the jury could have reasonably inferred that DeVoll or one of his workers knew

about the plumbing leaks. Similarly, the jury could have inferred that DeVoll knew the acoustic

was sprayed for the purpose of concealing the roof defects. Further, Demonbreun and Dowds



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testified that the only defect DeVoll revealed was the preexisting roof leak associated with the

HVAC system and that they would not have purchased the house had they known about the

extent of the defects. Viewing the evidence in the light most favorable to the jury’s verdict, there

is evidence to support the jury’s conclusion that DeVoll misrepresented the condition of the

property with the intention of inducing Demonbreun and Dowds into a transaction they would

not have otherwise entered into.      Because DeVoll had superior knowledge of the house’s

condition, including knowledge that certain repairs had been made or attempted, his statement

that there was nothing wrong with the house amounted to a fraudulent representation. See, e.g.,

GJP, Inc. v. Ghosh, 251 S.W.3d 854, 889-90 (Tex. App.—Austin 2008, no pet.) (determining

vehicle seller’s statements that he had “no problems [whatsoever]” to be a factual representation

where “an inspection revealed structurally unsafe engine frames, corrosion, and serious engine

problems”).

       Finally, we address an argument raised by DeVoll relative to the independent inspection.

DeVoll argues that the pre-sale inspection John Blanco conducted on Demonbreun and Dowds’

behalf negates the causation required to recover under the DTPA. DeVoll relies on Lim v.

Lomeli for the proposition that a buyer who hires a professional inspector and obtains and

reviews the inspection report cannot establish that he detrimentally relied on a third party’s

representation.   Lim v. Lomeli, No. 04-06-00389-CV, 2007 WL 2428078 (Tex. App.—San

Antonio Aug. 29, 2007, no pet.) (mem. op.). DeVoll, however, misstates our holding in Lim. In

that case, the Lims’ pre-sale inspection revealed potential water damage throughout the house.

Id. at *1. The Lims’ own real estate agent, Lomeli, reviewed the inspection report, conferred

with the inspector, and then urged the buyers to continue with the transaction, which contained

an “as is” clause. Id. Shortly after closing, the Lims experienced profuse leaking in the house;



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                                                                                 04-10-00375-CV


they sued the seller, the inspector, and Lomeli. As to Lomeli, the Lims alleged he failed to

disclose his full knowledge of the home’s defects. Id. Lomeli filed traditional and no evidence

motions for summary judgment. The trial court found that the only evidence of Lomeli’s

knowledge about the extent of the water penetration issues was his testimony that he was

unaware of any problems beyond those noted in the inspector’s report. Id. at *4. The trial court

thus granted summary judgment in favor of Lomeli. We affirmed the summary judgment,

holding that because the information from the inspection report was equally available to the

Lims, causation and reliance were negated as a matter of law. Id.

       The underlying basis for our decision in Lim was that because the Lims failed to present

more than a scintilla of evidence that Lomeli knew anything “more or different” than they did

about the condition of the home, they could not establish that they detrimentally relied on

Lomeli’s alleged misrepresentations. Id. This court has not held, as DeVoll asserts, that a

buyer’s independent inspection will negate causation and reliance in every instance.

Additionally, we find Lim to be distinguishable because in this case some of the home’s defects

were not visible or discoverable by inspection. Specifically, the roof leaks were hidden by the

heavy acoustic spray and the plumbing problems were concealed behind the wall. Accordingly,

information about the existence of these defects was not equally available to Demonbreun and

Dowds.

       Based on the foregoing, we conclude that Prudential is not controlling. Given the terms

of the agreement and the evidence presented, we hold that the “as is” clause does not negate

causation as a matter of law. DeVoll’s first issue is therefore overruled.




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         II.    Unconscionable Action

         DeVoll next argues that there is no evidence, or at least insufficient evidence, that he

engaged in an unconscionable action or course of action. See TEX. BUS. & COM. CODE ANN.

§ 17.50(a)(3) (West 2011). The trial court submitted the case to the jury based on two separate

DTPA violations. In Question Number 1, the jury was asked whether DeVoll engaged in any

false, misleading, or deceptive act or practice that Demonbreun and Dowds relied on to their

detriment and that was a producing cause of damages to Demonbreun and Dowds. See id.

§§ 17.50(a)(1)(A); 17.46(b) (West 2011). In Question Number 2, the jury was asked whether

DeVoll engaged in any unconscionable action or course of action that was a producing cause of

damages to Demonbreun and Dowds. Id. § 17.50(a)(3). The jury answered both questions,

“yes.”    On appeal, DeVoll only challenges the jury’s finding under Question Number 2.

However, because we may uphold the judgment based on the jury’s unchallenged finding in

Question Number 1 under section 17.46(b) of the DTPA, we need not address DeVoll’s

argument concerning unconscionability. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 440

(Tex. 1995) (noting appellate court did not address unconscionability finding when trial court’s

DTPA judgment was upheld on another theory); see also Gillman Imps. of San Antonio, Inc. v.

Castillo, No. 04–95–00670–CV, 1996 WL 383112, at *5 (Tex. App.—San Antonio July 10,

1996, no writ) (mem. op.) (not designated for publication) (citing Parkway and declining to

address jury’s unconscionability finding because judgment could be upheld based on other

DTPA violations). We thus overrule DeVoll’s second issue.

         III.   Mental Anguish Award

         Finally, DeVoll argues that the evidence is factually insufficient to support (1) the jury’s

finding that Demonbreun suffered mental anguish and (2) the award of $9,000 in mental anguish



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damages. When an appellant challenges the factual sufficiency of the evidence on an issue on

which he did not have the burden of proof, the appellant must demonstrate the evidence is

insufficient to support the adverse finding. Westech Eng’g, Inc. v. Clearwater Constructors,

Inc., 835 S.W.2d 190, 196 (Tex. App.—Austin 1992, no writ). In reviewing this point, the

appellate court considers, weighs, and examines all the evidence presented at trial. Plas–Tex,

Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the finding for factual

insufficiency only if the evidence supporting the finding is so weak as to be clearly wrong and

manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

       Demonbreun testified that prior to purchasing the house from DeVoll, she was depressed

because of her mother’s death, but that the problems with the house made her depression worse.

She had to see a psychiatrist and was prescribed medication for depression. She had trouble

eating and problems sleeping, and did not feel like doing anything. Demonbreun purchased the

house with money her mother left to her, and she felt badly that the home ended up having so

many defects because her mother told her to spend the money wisely. Dowds testified that

Demonbreun was in a state of depression for “the year” and that she would be in bed all hours of

the day. They moved out of the house in March of 2009, and Dowds stated that Demonbreun has

gotten better since then.

       Damages for mental anguish are appropriate when there is either “direct evidence of the

nature, duration, or severity of [plaintiffs’] anguish, thus establishing a substantial disruption in

the plaintiffs’ daily routine”, or other evidence of “a high degree of mental pain and distress” that

is “more than mere worry, anxiety, vexation, embarrassment, or anger.” Saenz v. Fid. & Guar.

Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) (quoting Parkway, 901 S.W.2d at 444);

Lefton v. Griffith, 136 S.W.3d 271, 279 (Tex. App.—San Antonio 2004, no pet.). Although



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Demonbreun did not testify as to how long she was depressed or had trouble eating and sleeping,

we conclude Dowds’ testimony that Demonbreun was depressed and unable to get out of bed for

a year, but improved after she moved out of the house, suffices to support the jury’s finding on

mental anguish. See Parkway, 901 S.W.2d at 444 (noting that evidence of mental anguish can be

in form of third party’s testimony). Because the evidence supporting the jury’s finding is not so

weak as to be clearly wrong and manifestly unjust, we decline to sit as a thirteenth juror and

overturn the decision of the jury. See Gainsco Cnty. Mut. Ins. Co. v. Martinez, 27 S.W.3d 97,

108 (Tex. App.—San Antonio 2000, pet. dism’d by agr.). As to the amount of the award, we

cannot conclude that $9,000 is an unfair or unreasonable amount of compensation. See Bentley

v. Bunton, 94 S.W.3d 561, 566 (Tex. 2002) (the amount of a mental anguish award must be fair

and reasonable). DeVoll’s third issue is overruled.

                                         CONCLUSION

       Based on the foregoing reasons, we overrule DeVoll’s issues on appeal, and affirm the

judgment of the trial court.


                                                 Phylis J. Speedlin, Justice




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