                         NUMBER 13-12-00359-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


MIRTA ZORRILLA,                                                            Appellant,

                                           v.

AYPCO CONSTRUCTION II, LLC
AND JOSE LUIS MUNOZ,                                                        Appellees.


                   On appeal from the 370th District Court
                         of Hidalgo County, Texas.


                                     OPINION

               Before Justices Rodriguez, Garza, and Perkes
                       Opinion by Justice Rodriguez
      This is an appeal from a jury's verdict in favor of appellees AYPCO Construction II,

LLC and Jorge Luis Munoz (collectively, AYPCO) on their breach of contract and fraud

claims against appellant Mirta Zorrilla.   By seven issues, Zorrilla challenges:      the
sufficiency of the evidence supporting the jury's breach of contract and fraud findings; the

trial court's refusal to submit a prior material breach jury instruction requested by Zorrilla;

the prejudgment interest awarded in the judgment; the foreclosure of two mechanic's

liens in favor of AYPCO; the awarding of both attorney's fees and exemplary damages,

which Zorrilla contends is a double recovery in light of AYPCO's fraud election; and the

amount of exemplary damages. We affirm as modified.

                                            I. Background

       Zorrilla contracted with AYPCO to complete construction of her home at 15555 N.

23rd Street in Edinburg, Texas.1 The contract contained a clause that required any

changes to the original plans to be in writing and agreed to by both parties.

       AYPCO began work in December 2006. AYPCO billed Zorrilla through weekly

invoice-type documents it titled "weekly advances," which would list the expenses

incurred by AYPCO during that week. Zorrilla paid the invoices through the end of April

2007. Substantial additional work that was not explicitly included in the original contract

was done on the N. 23rd Street home (the construction of a large guest house and

structure connecting the guest house to the main house) and on another home owned by

Zorrilla at 3518 Plaza del Lago (repairs to the sprinkler system and painting and other

work to remediate water damage). The parties dispute the extent to which Zorrilla

approved this additional work and whether it was authorized under the contract. Zorrilla

contends that she never authorized the construction of a guest house at the N. 23rd

Street property, which was the bulk of the additional work not covered by the contract; that


       1
           Another contractor had begun but not finished the construction project.
                                                     2
she repeatedly requested that AYPCO cease work when she realized that the additional

work was being performed; and that the "weekly advances" given to her by AYPCO were

confusing, vague, and did not give her the written notice required under the contract.

AYPCO contends that Zorrilla requested all of the additional work that was performed;

that AYPCO detailed all of the additional work in the "weekly advances"; and that Zorrilla

was repeatedly late in making payments on the weekly invoices and then completely

ceased making payments in May 2007.

        After Zorrilla refused to make further payments, AYPCO sued Zorrilla for breach of

contract and fraud.2 The breach of contract and fraud actions were based on Zorrilla's

alleged failure to pay the costs for the work done in May 2007 at N. 23rd Street and Plaza

del Lago. AYPCO also sought foreclosure of mechanics' liens it had attached to those

properties. The case was tried to a jury.

        At the charge conference, Zorrilla asked for a jury question on prior material

breach by AYPCO for its failure to execute written change orders before performing the

additional work. The trial court denied Zorrilla's request.               The jury then found that

Zorrilla breached her contract with AYPCO and awarded $54,264.15 in damages for the

N. 23rd Street project and $2,390 in damages for the Plaza del Lago project. The jury

awarded $150,000 in attorney's fees based on the contract action. The jury also found

that Zorrilla committed fraud and awarded the same damages for fraud as it awarded for


        2
          AYPCO also sued Zorrilla for quantum meruit, violation of the Texas Construction Fund Act,
negligent misrepresentation, defamation, and violation of the Prompt Payment Act. The defamation,
Construction Funds Act, and Prompt Payment Act claims were dismissed on directed verdict. The jury
rendered no verdict on the quantum meruit claim because the jury question on that claim was predicated on
a "no" answer to the breach of contract jury question. The negligent misrepresentation claim was not
submitted to the jury.
                                                   3
the contract verdict, a total of $56,654.15. In connection with the fraud verdict, the jury

additionally awarded $250,000 in exemplary damages.

       In its motion for entry of judgment, AYPCO elected to recover under its fraud

claim. 3      In its judgment, the trial court awarded $56,654.15 in actual damages,

$45,877.48 in pre-judgment interest, $250,000 in exemplary damages, and $150,000 in

attorney's fees. The trial court also ordered that both properties be foreclosed and sold

to satisfy the judgment. Zorrilla filed a motion for new trial, arguing that the trial court

erred in failing to require AYPCO to elect remedies, that the evidence was insufficient to

support the verdict, that the exemplary damages should be reduced in accordance with

the statutory cap, that the liens were invalid, and that the trial court used an incorrect

pre-judgment interest calculation. The motion was overruled by operation of law, see

TEX. R. CIV. P. 329b(c), and this appeal followed.

                                        II. Evidence of Fraud

       Because AYPCO elected to recover on the jury's fraud verdict, we first address

Zorrilla's fifth issue, in which she argues that the evidence was legally and factually

insufficient to support the jury's finding that she committed fraud. See TEX. R. APP. P.

47.1. Specifically, Zorrilla argues that the evidence was insufficient to prove she never

intended to perform her part of the contract as promised.

A.     Standard of Review

       We will sustain a legal-sufficiency or no-evidence challenge if the record

shows: (1) the complete absence of evidence of a vital fact; (2) the court is barred by the

       3
            Counsel for AYPCO orally confirmed its fraud election at the hearing on its motion for entry of
judgment.
                                                     4
rules of law or evidence from giving weight to the only evidence offered to prove a vital

fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the

evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson,

168 S.W.3d 802, 810 (Tex. 2005). When reviewing a no-evidence challenge, we view

the evidence in the light most favorable to the finding, crediting favorable evidence if a

reasonable fact-finder could and disregarding contrary evidence unless a reasonable

fact-finder could not. Id. at 807. The ultimate test for legal sufficiency is whether the

evidence would enable reasonable and fair-minded people to make the finding under

review.   Id. at 827.    In reviewing a no-evidence issue, the court indulges every

reasonable inference in support of that finding. Id. at 822.

       "Jurors are the sole judges of the credibility of the witnesses and the weight to give

their testimony.   They may choose to believe one witness and disbelieve another.

Reviewing courts cannot impose their own opinions to the contrary." Id. at 819. "Most

credibility questions are implicit rather than explicit in a jury's verdict." Id. Therefore,

reviewing courts must assume that the jurors decided all credibility questions in favor of

the verdict if reasonable persons could do so. Id. "Courts reviewing all the evidence in

a light favorable to the verdict thus assume that jurors credited testimony favorable to the

verdict and disbelieved testimony contrary to it." Id.

       In reviewing a factual-sufficiency challenge to a jury finding on an issue on which

the appellant did not have the burden of proof, as is the case here, we consider and weigh

all of the evidence and set aside the verdict only if the evidence that supports the jury

finding is so weak as to make the verdict clearly wrong and manifestly unjust. See Cain


                                             5
v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Ins. Network of Tex. v. Kloesel,

266 S.W.3d 456, 469–70 (Tex. App.—Corpus Christi 2008, pet. denied).                     In our

factual-sufficiency review, we consider and weigh all the evidence, but like in our

legal-sufficiency review, we defer to the jury as the sole judge of the witnesses' credibility.

Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); see Golden Eagle Archery,

Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The jury may choose to believe one

witness over another, and a reviewing court may not impose its own opinion to the

contrary. Golden Eagle Archery, 116 S.W.3d at 761.

B.     Applicable Law

       In the context of a civil jury trial, the sufficiency of the evidence is reviewed in light

of the charge submitted if no objection is made to the charge.                Romero v. KPH

Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges,

52 S.W.3d 711, 715 (Tex. 2001).           Here, Zorrilla made no objections to the fraud

question, so we will review the evidence in light of the law included in the charge

submitted to the jury in this case. The fraud question in this case provided as follows:

       Did MIRTA ZORRILLA commit fraud against AYPCO CONSTRUCTION II,
       LLC?

       Fraud occurs when:

       a.     a party makes a material misrepresentation, and

       b.     the misrepresentation is made with knowledge of its falsity or made
              recklessly without any knowledge of the truth and as a positive
              assertion, and

       c.     the misrepresentation is made with the intention that it should be
              acted on by the other party, and


                                               6
       d.     the other party relies on the misrepresentation and thereby suffers
              injury.

       "Misrepresentation" means:

       A false statement of fact, or

       A promise of future performance made with an intent, at the time the
       promise was made, not to perform as promised.

       Zorrilla's fifth issue focuses on whether there was sufficient evidence of the

requisite fraudulent intent—i.e., under the law in the charge here, whether there was

evidence that, at the time Zorrilla made her promise under the contract, she did not intend

to perform.

               "A promise of future performance constitutes an actionable
       misrepresentation if the promise was made with no intention of performing
       at the time it was made." [Formosa Plastics Corp. v. Presidio Eng'rs &
       Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998)]. "Proving that a party
       had no intention of performing at the time a contract was made is not easy,
       as intent to defraud is not usually susceptible to direct proof." Tony Gullo
       Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex. 2006) (citing Spoljaric v.
       Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986)). While breach of
       the contract alone is not evidence that a party did not intend to perform,
       "breach combined with 'slight circumstantial evidence' of fraud" is some
       evidence of fraudulent intent, enough to support a verdict. Id. "[A] party's
       intent is determined at the time the party made the representation, [but] it
       may be inferred from the party's subsequent acts after the representation is
       made." Spoljaric, 708 S.W.2d at 434 (citing Chicago, T. & M.C. Ry. Co. v.
       Titterington, 84 Tex. 218, 19 S.W. 472, 474 (1892)).

Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774–75 (Tex. 2009) (per

curiam). Although circumstantial evidence may be used to establish any material fact, it

must transcend mere suspicion; there must be a logical bridge between the proffered

evidence and the fact. IKON Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 124 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied) (citation omitted). Regardless, intent is a


                                            7
fact question uniquely within the realm of the trier of fact because it depends so heavily on

the credibility of witnesses and the weight given to their testimony.         Spoljaric, 708

S.W.2d at 434.

C.     The Evidence

       At trial, AYPCO's owner, Munoz, testified that he and Zorrilla signed a contract in

early December 2006 for Munoz to complete the construction of Zorrilla's new home on N.

23rd Street. The written contract, signed by both parties, was admitted into evidence.

The estimate for the work detailed in the contract was $212,973. The contract provided

that any variations in the "prices, measurements and configuration of this estimate" may

result in extra charges at Zorrilla's expense.

       Munoz testified that, during the entire project, he would speak to Zorrilla two to four

times a day and that she was at the construction site nearly every day before and after

she went to work. Munoz testified that Zorrilla requested numerous modifications to the

main house construction throughout the project. Munoz explained to Zorrilla that each of

the modifications would cost more and increase the construction time.

       Munoz then testified that Zorrilla requested that he construct a guest house on the

N. 23rd Street property. Munoz designed the guest house per Zorrilla's specifications

and gave her an estimate of $149,460 for its construction. Zorrilla also requested that

AYPCO construct a roof-like structure connecting the guest house to the main house.

When they were discussing this additional structure, Zorrilla told Munoz that she did not

have enough money to pay for the finished project.            Munoz testified that Zorrilla

nonetheless ordered him to complete construction of the guest house and connecting


                                              8
structure. Munoz testified that Zorrilla was onsite on the day construction began on the

guest house. An invoice was admitted into evidence that expressly detailed work on the

guest house; Munoz testified that Zorrilla had been given a copy of that invoice and had

written a check for payment of that invoice.      Munoz testified that the revised total

estimate, which included the original contract work, the guest house, and the other

requested modifications, was approximately $540,000.

      Munoz testified that, from the beginning, Zorrilla was repeatedly late in making her

payments. He testified that when he would question Zorrilla about the late payments,

she would become angry. In May 2007, Zorrilla stopped making payments. Munoz

testified that he was not asked to stop work on the project until June 4, 2007, at which

point Zorrilla and her attorney asked Munoz to hand over his key, to not return to the

construction site, and to send any future communications to Zorrilla through her attorney.

Munoz testified that when he stopped work, approximately seventy percent of the guest

house project had been completed.

      Mario Arevalo, one of Munoz's subcontractors, testified that he has done cabinet,

framing, and other workworking since 1985 and has worked with AYPCO since 2002.

Arevalo testified that Zorrilla was at the N. 23rd Street construction site regularly.

Throughout the project, Zorrilla asked Arevalo to make numerous changes to the original

specifications; when she asked Arevalo for a modification, she told him to pass that

information along to Munoz.

      There was also testimony from an electrician who worked on the N. 23rd Street

house before AYPCO took over the project. Gaston Palma testified that he contracted


                                            9
directly with Zorrilla for the work. Palma testified that he completed the electrical work,

but because of a dispute between Zorrilla and the then-carpenter on the project, the walls

were never built over the wiring. Zorrilla had requested the carpenter to move a wall,

which was a deviation from the original plan. The carpenter informed Zorrilla that it

would cost more to move the wall, but Zorrilla did not want to pay the additional cost.

Zorrilla and the carpenter never came to an agreement and, in the time they were

disputing the issue, the exposed wires were stolen from the construction site. Zorrilla

then refused to pay Palma.       Palma testified that he later learned that Zorrilla had

collected an insurance settlement for the stolen wires. After learning that, he "didn't want

to deal with" Zorrilla any longer. He filed a lien on the N. 23rd Street house for the

amount Zorrilla failed to pay him.

       Finally, Zorrilla testified as to her version of the events surrounding the

construction project.     She testified that she hired Munoz at her accountant's

recommendation to finish the construction of the house at N. 23rd Street. With regard to

the first contractor who worked on the house, Zorrilla testified that he was a friend and that

she did not end up paying him because he did not charge her. However, counsel for

AYPCO then attempted to impeach Zorrilla by admitting her deposition testimony, in

which she stated that she did not pay the original contractor because he did not supervise

the project to her satisfaction. In her deposition, Zorrilla also referred to the original

contractor as a friend, stated that he was supervising the construction of the N. 23rd

Street house as a favor, and stated that they ended their business relationship on friendly

terms when it became apparent that the contractor did not have time to supervise


                                             10
Zorrilla's project.

       Zorrilla testified that she was at the construction site as much as possible, but was

very busy at work during this time period. She testified that she did not go to the site to

supervise, but merely to check on the progress of the house. She continued to pay the

charges invoiced by Munoz but did not pay attention to the details because she was so

busy. In the end, Zorrilla had paid AYPCO approximately $366,000.

       Zorrilla denied that she requested any modifications to the main house project.

She confirmed that she paid several invoices that referenced "modifications" to the

project. But, in general, she was unsatisfied with the amount of detail in the invoices

Munoz gave her. She testified that she repeatedly asked Munoz for a more specific

breakdown of the project costs, but the most he ever brought her was a binder of invoices

and other paperwork, which, Zorrilla testified, contained only Munoz's name and not

Zorrilla's address, account number, or any other information to identify Zorrilla's project.

       Zorrilla also denied that she asked Munoz to build a guest house. She confirmed

that she saw the 2,300 square foot guest house being built, but "trusted" Munoz and

continued paying because her accountant advised her to do so. She testified that

Munoz built the guest house "against her wishes."

       Finally, Zorrilla denied that she requested that AYPCO perform any work at her

Plaza del Lago house. She denied that any of Munoz's subcontractors had done work at

the Plaza del Lago house.

       Zorilla testified that she told Munoz to stop work on the project at the end of April

2007 and that she did not understand why he continued to work through May. She


                                             11
testified that she did not observe any substantive work being done on her property during

May 2007—no painting, no tape-and-float work, no electrical work. She testified that she

hired a lawyer to force Munoz to stop work and leave the work site.

D.     Analysis

       Zorrilla argues that there is no evidence showing she never intended to perform

her obligations under the contract and that the evidence showed no acts inconsistent with

an intent to perform. See Aquaplex, Inc., 297 S.W.3d at 774 (citing Formosa Plastics

Corp., 960 S.W.2d at 48).       We disagree. Although there is no direct evidence of

fraudulent intent, such evidence is rarely available. See Tony Gullo Motors I, L.P., 212

S.W.3d at 305. And the circumstantial evidence before the jury here, combined with

Zorrilla's failure to fully pay for the work performed, was sufficient to prove the requisite

intent. See Spoljaric, 708 S.W.2d at 435.

       The most compelling circumstantial evidence of Zorrilla's fraudulent intent was her

denial that she requested the construction of a guest house coupled with her failure to pay

the full cost of the contract. The subsequent denial of a promise to perform coupled with

nonperformance is sufficient to prove fraudulent intent at the time of making the promise

to perform. See Finch v. McVea, 543 S.W.2d 449, 452 (Tex. Civ. App.—Corpus Christi

1976, writ ref'd n.r.e.) (citing Stone v. Williams, 358 S.W.2d 151, 155 (Tex. Civ.

App.—Houston 1962, no writ)). Here, Munoz testified that Zorrilla specifically ordered

him to construct a guest house and a structure connecting the guest house to the main

house. Despite evidence that she was at the construction site daily, Zorrilla denied any

knowledge of the guest house project. This denial of her earlier promise, coupled with


                                             12
her ultimate refusal to pay the full contract price, were circumstances from which the jury

could infer she never intended to perform.

        In addition to the above, there was evidence that Zorrilla was repeatedly late in

making payments to AYPCO. Munoz testified that Zorrilla would become angry when he

questioned her about the late payments. There was also evidence from which the jury

could conclude that Zorrilla had a habit or pattern of manufacturing reasons not to pay the

contractors working on this project.              As noted above, she adamantly denied any

knowledge of the guest house project yet admitted paying invoices that specifically

included costs for the guest house construction. She testified that she was rarely at the

construction site, but the testimony of Munoz and others involved with the project placed

her at the site on a daily basis. She claimed that she did not pay her first contractor

because he did not charge her but was then confronted with her deposition in which she

testified that she did not pay him because she was unsatisfied with his work. She

refused to pay Palma, the first electrician on the project, because the wiring had been

stolen while the reason for the stolen wiring was Zorrilla's dispute with the carpenter.

There was even evidence that Zorrilla collected an insurance settlement for the stolen

wiring, but still refused to pay Palma.4 Finally, Munoz testified that Zorrilla told him she


        4
           Although the testimony regarding the first contractor and electrician was evidence of misconduct
prior to Zorrilla's contract with AYPCO, the evidence of the prior acts involved the same construction project
and involved acts occurring less than two months prior to Zorrilla's contract with AYPCO. The Texas
Supreme Court has held that
        Evidence of other wrongs or acts is not admissible to prove character in order to show
        "action in conformity therewith." TEX. R. EVID. 404. But it is admissible to show a party's
        intent, if material, provided the prior acts are "so connected with the transaction at issue
        that they may all be parts of a system, scheme or plan." Oakwood Mobile Homes, Inc. v.
        Cabler, 73 S.W.3d 363, 375 (Tex. App.—El Paso 2002, pet. denied); see TEX. R. EVID. 404.
        This can be shown through evidence of similar acts temporally relevant and of the same
        substantive basis. See Durbin v. Dal-Briar Corp., 871 S.W. 2d 263, 268–69 (Tex.
                                                     13
did not have enough money to pay for the finished project, which was testimony from

which the jury could infer that Zorrilla would pay as long as she had the money to pay, but

that if she ran out of money, she may not pay anything further. In short, in light of the

inconsistencies in Zorrilla's testimony, her refusal to pay earlier contractors, and her

apparent disregard for maintaining adequate funding to finish out the project, it would not

have been unreasonable for the jury to find a pattern of misconduct by Zorrilla, namely

that she would routinely manufacture reasons to not pay for the work performed on this

construction project. See Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011)

(holding that evidence of prior acts of misconduct are admissible if they are so connected

to the transaction at issue that they show a system, scheme, or plan); see also Haggar

Clothing Co. v. Hernandez, 164 S.W.3d 407, 424 (Tex. App.—Corpus Christi 2003), rev'd

on other grounds, 164 S.W.3d 386 (Tex. 2005) (same). And the foregoing were all acts

and circumstances from which the jury could have inferred that Zorrilla never intended to

fully perform her obligation to fully pay AYPCO.5

        Zorrilla also argues that her substantial performance on the contract—her

payment of $366,000, which was significantly more than the $212,973 included in the

original estimate—was an overriding fact that no reasonable juror could have ignored,


        App.—El Paso 1994, writ denied), overruled, in part, on other grounds by Golden Eagle
        Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex.2000).
Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011); see also Haggar Clothing Co. v. Hernandez,
164 S.W.3d 407, 424 (Tex. App.—Corpus Christi 2003), rev'd on other grounds, 164 S.W.3d 386 (Tex.
2005). Here, as described above, we conclude that AYPCO adduced sufficient facts at trial connecting
Zorrilla's prior acts to the transaction at issue such that a pattern of misconduct was shown.
        5
           The foregoing could be considered circumstantial evidence of Zorrilla's intent at the time of the
original contract's formation in November 2006 and her intent at the time of the requested modifications.
Thus, whether Munoz complied with the terms of the contract—which required modifications to be in
writing—is irrelevant to our conclusion.
                                                    14
and in light of that fact, any circumstantial evidence of fraud should have been

disregarded.    See City of Keller, 168 S.W.3d at 807.            Again, we disagree.        As

discussed above, there was evidence that, if the circumstances were such that Zorrilla

could not pay, she might not. It matters not that she paid part of the price. An essential

element of the contract was full payment, and there was circumstantial evidence from

which the jury could have inferred that she never intended to fulfill her entire obligation

under the contract. The jury did not act unreasonably in crediting this circumstantial

evidence over the evidence that Zorilla made partial payment; the law did not require

jurors to entirely disregard the circumstantial evidence in light of Zorrilla's partial payment.

Cf. E.P. Towne Ctr. Partners, L.P. v. Chopsticks, Inc., 242 S.W.3d 117, 124–25 (Tex.

App.—El Paso 2007, no pet.) ("[T]he doctrine of substantial performance is not available

to a party whose breach involves the omission of essential performance."); Smith v.

Smith, 112 S.W.3d 275, 279 (Tex. App.—Corpus Christi 2003, pet. denied) (holding that

while substantial performance can be used as a defense in a breach of contract case, in

determining substantial performance, there must be no willful departure from the terms of

the contract and no omission of essential elements of the contract).

       We conclude there was both legally and factually sufficient evidence to support the

jury's fraud verdict. Zorrilla's acts prior and subsequent to her promise to AYPCO were

circumstantial evidence of her fraudulent intent, and we will not disturb the jury's

determination in this regard. See Aquaplex, Inc., 297 S.W.3d at 774–75; Spoljaric, 708

S.W.2d at 434–35 (holding that intent is a fact question uniquely within the realm of the

trier of fact because it depends so heavily on the credibility of witnesses and the weight


                                              15
given to their testimony); see also Serv. Corp. Int'l, 348 S.W.3d at 235. In other words,

the circumstantial evidence detailed above, even if only slight, was sufficient to create

more than a mere suspicion and supported a reasonable fact finder's conclusion that

Zorrilla never intended to fully pay AYPCO. See City of Keller, 168 S.W.3d at 807, 827;

see also Aquaplex, Inc., 297 S.W.3d at 774–75; IKON Office Solutions, Inc., 125 S.W.3d

at 124. For the same reasons, we also cannot conclude that the evidence was so weak

as to make the verdict clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at

176. Zorrilla's fifth issue is overruled.6

             III. Whether the Judgment Gave AYPCO a Double Recovery

        By her sixth issue, Zorrilla argues that the trial court's award to AYPCO of both

exemplary damages and attorney's fees violated the "one satisfaction rule" and allowed

AYPCO to recover on both its fraud and breach of contract causes of action even though

both theories involved a single injury.

        When a defendant commits the same, or even differing, acts resulting in a single

injury, a plaintiff is permitted to allege alternative theories of recovery. See Waite Hill

Servs., Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184–85 (Tex. 1998); see

also Crown Life Ins. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). However, under these

circumstances, the plaintiff may not recover damages on both theories.                       Waite Hill

Servs., Inc., 959 S.W.2d at 184 (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7

(Tex. 1991)). This would amount to a "double recovery" for a single injury, which is


        6
          Having concluded that the fraud verdict was supported by legally and factually sufficient
evidence, the jury's breach of contract verdict is not before us in this appeal. See TEX. R. APP. P. 47.1.
Therefore, we do not reach Zorrilla's first and second issues that involve the breach of contract finding.
See id.
                                                   16
clearly prohibited under the law. See id.

      Here, AYPCO does not dispute that its breach of contract and fraud causes of

action concerned the same conduct by Zorrilla and the same injury—Zorrilla's failure to

pay the costs for the work done in May 2007 at the N. 23rd Street and Plaza del Lago

properties and the costs incurred by AYPCO as a result. And the dispute in this case

does not concern the double recovery of economic damages. Neither party disputes that

AYPCO was entitled to recover either its breach of contract damages or its fraud

damages, but not both. Because AYPCO elected to recover under its fraud theory, it

was entitled only to its fraud damages.

      Rather, Zorrilla's argument is that by allowing AYPCO to recover both attorney's

fees—which are typically permitted only in breach of contract cases or other cases

authorized by statute—and exemplary damages—which are typically permitted only for

tortious conduct, such as fraud—the trial court allowed AYPCO to recover under both

theories when it was required to pick only one. In response, AYPCO contends that

attorney's fees were recoverable for its fraud claim because the fraud arose from a

breach of contract. See Schindler v. Austwell Farmers Co-op, 829 S.W.2d 283, 288

(Tex. App.—Corpus Christi 1992) (holding that attorney's fees are recoverable for fraud

claims when the fraud arises from breach of contract), aff'd as modified on other grounds,

841 S.W.2d 853 (Tex. 1992).

      Contrary to AYPCO's contention, in general, attorney's fees are not recoverable in

a fraud claim, even when the fraud arose from a breach of contract. See MBM Fin. Corp.




                                            17
v. Woodlands Operating Co., 292 S.W.3d 660, 667–68 (Tex. 2009)7; Bus. Staffing, Inc. v.

Jackson Hot Oil Serv., No. 08–11–00092–CV, 2012 WL 2627533, at *16 (Tex. App.—El

Paso July 5, 2012, pet. denied) ("For fraud, a party could recover economic damages,

mental anguish, and exemplary damages, but not attorney's fees."). As such, under its

fraud election, AYPCO was entitled to recover its economic damages and exemplary

damages, but not attorney's fees. In also awarding AYPCO attorney's fees, the trial

court allowed AYPCO to recover something it would only have been permitted to recover

under its breach of contract theory. See MBM Fin. Corp., 292 S.W.3d at 667–68; Tony

Gullo Motors I, L.P., 212 S.W.3d at 310–11 (holding that Texas follows the American

Rule, which provides that there can be no recovery of attorney's fees unless authorized

by contract or statute); see also TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West 2008).

This was an impermissible double recovery, and the trial court's judgment in this regard is

erroneous. See Waite Hill Servs., Inc., 959 S.W.2d at 184–85. We sustain Zorrilla's

sixth issue.

                            IV. Amount of Exemplary Damages

       By her seventh issue, Zorrilla challenges the amount of exemplary damages

awarded by the jury.         Specifically, Zorrilla argues that the amount of exemplary

damages: (1) exceeds the statutory cap and should be reduced accordingly; (2) violates

both the United States and Texas constitutions; and (3) was not supported by the

evidence.

       7
          The Texas Supreme Court's holding in MBM Financial, that attorney's fees are generally not
recoverable for a fraud action even when the fraud arises from a contract, overrules this Court's broad
holding in Schindler to the contrary. See MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660,
667–68 (Tex. 2009); Schindler v. Austwell Farmers Co-op, 829 S.W.2d 283, 288 (Tex. App.—Corpus
Christi 1993), aff'd as modified on other grounds, 841 S.W.2d 853 (Tex. 1992).
                                                  18
A. The Statutory Cap

       Under civil practice and remedies code section 41.008,

       [e]xemplary damages awarded against a defendant may not exceed an
       amount equal to the greater of:

       (1)     (A)    two times the amount of economic damages; plus

               (B)    an amount equal to any noneconomic damages found by the
                      jury, not to exceed $750,000; or

       (2) $200,000.

TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(b) (West Supp. 2011). The cap does not

apply when a plaintiff seeks recovery of exemplary damages based on certain felony

criminal conduct enumerated in subsection 41.008(c), i.e., "cap-busting" conduct. See

id. § 41.008(c)(1)–(17). Here, under the statute, AYPCO's exemplary damages would

have been capped at $200,000.

       Citing Texas Rule of Civil Procedure 94, this Court has held that the statutory cap

on exemplary damages is an affirmative defense and the defendant must specifically

plead it or else it is waived. Wackenhut Corrections Corp. v. De La Rosa, 305 S.W.3d

594, 651, 653 (Tex. App.—Corpus Christi 2009, no pet.); see TEX. R. CIV. P. 94 ("In

pleading to a preceding pleading, a party shall set forth affirmatively . . . any other matter

constituting an avoidance or affirmative defense."). In so holding, we reasoned that "a

defendant's pleading of an affirmative defense puts the plaintiff on notice that the

affirmative defense needs to be defeated, and it allows the plaintiff to structure his or her

case in order to defeat the affirmative defense, if possible"; in other words, with regard to

the statutory cap in particular, a plaintiff is "entitled to notice that [the defendant] intend[s]


                                               19
to assert the cap so that its case [can] be structured to present a 'cap-busting' theory."

Wackenhut Corrections Corp., 305 S.W.3d at 652–53.

       Zorrilla concedes that she did not specifically plead the statutory cap as an

affirmative defense, instead raising it for the first time in her motion for new trial. She

asserts that under In re Columbia Medical Center of Las Colinas, her motion for new trial

was sufficient to raise the issue of the cap. See 306 S.W.3d 246, 247–48 (Tex. 2010)

(per curiam). In In re Columbia, the supreme court addressed an issue raised by its

mandate in a prior proceeding in the same case. Id. at 247. The supreme court's

mandate in the prior case reduced the plaintiff's economic damages award. Id. After

issuance of the mandate, the defendant attempted to make payment to the plaintiff of the

amount of economic and punitive damages affirmed by the supreme court, but the plaintiff

refused payment. Id. The defendant filed a motion in the trial court "requesting [a

judgment] that would effectuate [the supreme court's] mandate by reducing the economic

damages award appropriately, as well as by reducing the punitive damages award to

twice the amount of the economic damages award [the supreme court] affirmed, plus

interest." Id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(b)(1). The trial court

denied the defendant's motion, and the defendant then filed a petition for mandamus with

the supreme court. In re Columbia, 306 S.W.3d at 247. Noting that "[p]unitive damages

awards that are statutorily capped are required to be recalculated when the actual

damages against which they are measured are reduced on appeal," the supreme court

held that

       regardless of whether an appellate court judgment expressly commands it,
       trial courts must give effect to statutory caps on damages when the parties

                                            20
       raise the issue. Accordingly, to give full effect to our judgment vacating a
       portion of economic damages, the trial court was required to reduce the
       punitive damages award in compliance with the statutory cap.

Id. at 248 (emphasis added).

       Because the supreme court applied the statutory cap "as a matter of law" when the

defendant had raised the issue "in a post-trial motion," Zorrilla argues that the implicit

holding of In re Columbia is that the statutory cap is not an affirmative defense and can be

raised by the defendant at any point. See id.; see also THI of Tex. at Lubbock I, LLC v.

Pena, 329 S.W.3d 548, 588 (Tex. App.—Amarillo 2010, pet. denied) (citing In re

Columbia in holding that the statutory cap is not an affirmative defense). In short, Zorrilla

argues that In re Columbia overruled our holding in Wackenhut. We disagree—In re

Columbia takes no such position on the procedural requirements of the statutory cap.

       While it is true that the supreme court was addressing the statutory cap pursuant to

a motion filed by the defendant after the supreme court issued its mandate in the

underlying case, the time and manner by which the cap was raised by the defendant are

not entirely clear. From the facts set forth in In re Columbia, we cannot eliminate the

possibility that the statutory cap was raised before trial. Indeed, in its description of the

underlying proceeding, the supreme court actually implied that the cap had been raised

earlier. In re Columbia, 306 S.W.3d at 247 (citing the statutory cap in its discussion of

the original economic and punitive damages awards).             Regardless, without more

certainty regarding the procedural history of the underlying case, we are not persuaded

by this portion of Zorrilla's reasoning.

       Neither are we persuaded that the phrase "applies as a matter of law" overrules


                                             21
the opinions of our court and other courts of appeal holding that the statutory cap must be

affirmatively pled. See Wackenhut, 305 S.W.3d at 651–53; Horrizon/CMS Healthcare

Corp. v. Auld, 985 S.W.2d 216, 233 (Tex. App.—Fort Worth 1999), rev'd in part on other

grounds, 34 S.W.3d 887 (Tex. 2000). Rather, as mentioned above, the supreme court

made no clear pronouncement on the issue. In short, our justification in Wackenhut

remains—the purpose of requiring the statutory cap to be affirmatively pled is allowing the

plaintiff opportunity to structure its case in response.

       Finally, Zorrilla argues that the procedural facts of this case do not support the

application of Wackenhut's reasoning because AYPCO had no potential cap-busting

theories.   Even if AYPCO did not initially allege cap-busting conduct, given the

ever-evolving nature of litigation, it was not outside the realm of possibility that discovery

would uncover cap-busting conduct—for example, securing execution of documents by

deception, forgery, fraudulent destruction, removal or concealment of a writing, or theft,

see TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(c)(8), (11), (12), (13)—connected with

the alleged fraud. Because Zorrilla did not plead the statutory cap, AYPCO had no

reason to seek evidence of cap-busting conduct. As such, the rationale of Wackenhut

certainly applies; AYPCO was entitled to notice that Zorrilla was asserting the statutory

cap so that it could structure its strategy and proof at trial accordingly.

       In sum, we are not persuaded that In re Columbia conflicts with our holding in

Wackenhut, and we therefore decline to overrule our precedent in that case. Thus,

following Wackenhut, we conclude that Zorrilla waived application of the statutory cap on

exemplary damages by failing to expressly plead it as an affirmative defense. See 305


                                              22
S.W.3d at 652–53. Zorrilla's seventh issue is overruled insofar as it depends on this

argument.

B. Constitutionality of the Amount

       Having concluded that AYPCO's exemplary damages award was not subject to the

statutory cap, we next address Zorrilla's argument that the $250,000 awarded by the jury

as exemplary damages was unconstitutional.

       "The Due Process Clause 'prohibits a [s]tate from imposing a grossly excessive

punishment on a tortfeasor.'" Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d

35, 45 (Tex. 1998) (quoting BMW of N. Am. v. Gore, 517 U.S. 559, 562 (1996)). In

reviewing exemplary damages, we consider three guideposts:              (1) the degree of

reprehensibility of the defendant's misconduct; (2) the disparity between the actual or

potential harm suffered by the plaintiff and the exemplary damages award; and (3) the

difference between the exemplary damages awarded by the jury and the civil or criminal

penalties authorized or imposed in comparable cases. State Farm Mut. Auto. Ins. Co. v.

Campbell, 538 U.S. 408, 418 (2003); Malone, 972 S.W.2d at 45; Tony Gullo Motors, 212

S.W.3d at 308–09.

       1. Reprehensibility

       The reprehensibility of the defendant's conduct is the "most important indicium of

the reasonableness of a punitive damages award." Campbell, 538 U.S. at 419. In

assessing reprehensibility, we consider whether the following factors are present: (1)

the plaintiff's health or safety, as opposed to its economic well-being, was endangered;

(2) the tortious conduct evidenced a reckless disregard for or indifference to the health or


                                            23
safety of others; (3) the plaintiff was financially vulnerable; (4) the conduct was repeated;

and (5) the injury was the result of malice, trickery, or deceit.                     Id.    Further, "a

reprehensibility analysis can . . . consider, to some extent, surrounding circumstances

beyond the underlying tort," particularly if those surrounding circumstances "go to motive,

underscore the parties' animosity, shed light on provocation, demonstrate deliberateness

and culpability, and otherwise show heightened reprehensibility." Bennett v. Reynolds,

315 S.W.3d 867, 875 (Tex. 2010). Although "a jury cannot use exemplary damages to

punish a defendant for harming nonparties," "related conduct 'may be probative when it

demonstrates the deliberateness and culpability of the defendant's action,' provided that

the conduct bears 'a nexus to the specific harm suffered by the plaintiff.'" Id. at 875–76

(quoting Philip Morris USA v. Williams, 549 U.S. 346, 353, 355 (2007); Campbell, 538

U.S. at 422).

        Here, although it is true that the harm to AYPCO was purely economic, there was

evidence of conduct by Zorrilla bearing on two of the other reprehensibility factors. First,

having upheld the jury's fraud finding in which it was determined that Zorrilla made an

intentional material misrepresentation, it is clear that her conduct rose to the level of

trickery or deceit contemplated by the fifth factor.8 Second, there was evidence that

Munoz and AYPCO were financially vulnerable.                    Munoz testified that Zorrilla's late

payments put a strain on his finances because he had to pay his workers whether or not

Zorrilla made her payments. Munoz testified that he essentially bankrolled the project as

a result of the late payments, which eventually ruined his personal and commercial credit.
        8
          Zorrilla concedes in her brief that if we were to find the evidence sufficient to support AYPCO's
fraud claim, the trickery and deceit factor "would apply because AYPCO's fraud claim predicated exemplary
damages on Zorrilla intentionally deceiving AYPCO."
                                                   24
Because of the financial burden of Zorrilla's project, Munoz lost his cars and his home in

foreclosure proceedings. Finally, there was evidence that Zorrilla was aware of Munoz

and AYPCO's financial vulnerability; Munoz testified that he explained to Zorrilla that he

had to have payment from her to ensure that his workers were paid at the end of each

week. As a result, Zorrilla arguably had knowledge that Munoz did not have a large

reserve of capital from which to pay his workers if Zorrilla did not make her payments.

      In addition to the reprehensibility factors, there was evidence of surrounding

circumstances that further demonstrated Zorrilla's deliberateness and culpability. As

described above, Zorrilla failed to pay the contractor who worked on the project before

AYPCO and gave conflicting explanations for the failure to pay, one of which that she was

merely unsatisfied with the manner in which the project was being supervised. There

was also evidence that Zorrilla refused to pay Palma, the electrician who worked on the

house before AYPCO took over the project, because the wiring was stolen as a result of

her dispute with the then-carpenter. In other words, Zorrilla refused to pay Palma for

reasons beyond Palma's control. What's more, there was evidence that Zorrilla had

collected an insurance settlement for the stolen wires and still refused to pay Palma.

      Although the foregoing is evidence of misconduct against non-parties, we believe

it has a sufficient nexus to the harm suffered by Munoz and AYPCO. The earlier conduct

concerned the same construction project. It was circumstantial evidence of a pattern of

deceit by Zorrilla in her interactions with the parties performing the work on her homes.

In short, it evinced a heightened level of reprehensibility above that shown by the

evidence related to Munoz and AYPCO alone.          Thus, it was proper for the jury to


                                           25
consider these surrounding circumstances in their determination of the amount of

exemplary damages.

        2. The Ratio Between the Exemplary and Compensatory Damages

        As to the second guidepost, we note that courts have held that a single-digit ratio

between the exemplary and actual damages would "more likely" comport with due

process, with the upper limit of that single-digit ratio generally considered to be four times

the amount of compensatory damages. See id. at 877; see also Campbell, 538 U.S. at

425; see, e.g., Malone, 972 S.W.2d at 46–47 (affirming an exemplary damages award of

"slightly more than" two times the compensatory damages).                          However, we also

recognize that there is no "bright-line ratio" between the actual damages suffered and

punitive damages awarded that will mandate the affirming or reversal of an award. See

Campbell, 538 U.S. at 424–25; see also Bennett, 315 S.W.3d at 879 ("[R]igid application

of a 4:1 ratio is not universally required.").

        Here, the exemplary damages award ($250,000) was 4.41 times the amount of

compensatory damages ($56,654.15). Given the reprehensibility of Zorrilla's conduct,

as described above, we do not believe that a ratio 0.41 points greater than the 4 to 1 ratio

suggested by the supreme court runs afoul of the due process clause in this case.9 In

other words, the disparity between the actual harm suffered by AYPCO and the

exemplary damages awarded was not so great as to violate Zorrilla's due process rights.


        9
          Zorrilla contends that the 4.41 to 1 ratio in this case is akin to the 4.33 to 1 ratio held by the
supreme court to be unconstitutionally excessive in Tony Gullo Motors I, Inc. v. Chapa. See 212 S.W.3d
299, 308–10 (Tex. 2006). But in that case, the supreme court concluded that the 4.33 to 1 ratio was
impermissible because only one of the reprehensibility factors was present. Id. Here, there was evidence
of two reprehensibility factors and additional evidence of surrounding circumstances such that we cannot
conclude that a ratio of 4.41 to 1 is excessive.
                                                    26
       3. The Penalty Comparison

       The third and final guidepost requires the Court to examine the civil and criminal

penalties authorized or imposed in comparable cases. See Campbell, 538 U.S. at 428;

Malone, 972 S.W.2d at 45. Here, the most comparable civil penalty we found is the

$20,000 penalty in the Deceptive Trade Practices Act for fraud connected with a

consumer transaction. See TEX. BUS. & COM. CODE ANN. § 17.47(c) (West 2011). If

there were no comparable civil penalty, we could also consider the statutory damages

cap, which as discussed above, would have been $200,000 in this case. See TEX. CIV.

PRAC. & REM. CODE. ANN. § 41.008(b). The jury's $250,000 exemplary damages award

exceeded both of these comparators.         However, the fraud of deceptive business

practices is also a crime, and the criminal punishment for this offense includes a possible

prison sentence. See TEX. PENAL CODE ANN. § 32.42(b)(12) (West 2011) (criminalizing a

material misrepresentations made in connection with the purchase of services as a class

A misdemeanor); see also id. § 12.21 (West 2011) (prescribing the punishment for a class

A misdemeanor as a fine up to $4,000 and a jail term of up to one year). The loss of

one's liberty and a criminal conviction are greater consequences than any monetary

penalty. See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23 (1991) (suggesting that

although the punitive damages in the case were twenty times greater than the

comparable civil fine, the possibility of imprisonment for the comparable criminal violation

was a greater concern).

       4. Summary

       Our analysis of the three guideposts weighs in favor of the exemplary damages


                                            27
awarded by the jury.      First, with regard to the reprehensibility guidepost, Zorrilla's

conduct amounted to trickery and deceit, there was evidence that Munoz was financially

vulnerable, and there was evidence of surrounding circumstances demonstrating a

pattern of deceit by Zorrilla. Second, the 4.41 to 1 ratio of exemplary to compensatory

damages was not per se unacceptable. Third, the potential imprisonment in connection

with a criminal fraud conviction is of greater consequence than the monetary penalty

imposed by the exemplary damages award, so the final guidepost weighs in favor of the

exemplary damages awarded. We therefore conclude that the exemplary damages in

this case did not violate Zorrilla's due process rights. See Campbell, 538 U.S. at 418;

Malone, 972 S.W.2d at 45; Tony Gullo Motors, 212 S.W.3d at 308–09. Zorrilla's seventh

issue is overruled in this regard.

C. Evidence Supporting the Amount

       Zorrilla's final argument in her seventh issue is that the amount of exemplary

damages awarded by the jury was not supported by factually sufficient evidence.

              We must review an award of exemplary damages with careful
       scrutiny to ensure it is supported by the evidence, and we may vacate the
       award or suggest a remittitur only if the award is "so factually insufficient or
       so against the great weight and preponderance of the evidence as to be
       manifestly unjust." Signal Peak Enters. of Tex., Inc. v. Bettina Invs., Inc.,
       138 S.W.3d 915, 928 (Tex. App.—Dallas 2004, pet. struck) (citing Transp.
       Ins. Co. v. Moriel, 879 S.W.2d 10, 30 (Tex. 1994)). In order to determine if
       the exemplary damages awarded were reasonable, we consider the factors
       set forth in Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.
       1981), which include the nature of the wrong, the character of the conduct
       involved, the degree of culpability of the wrongdoer, the situation and
       sensibilities of the parties concerned, and the extent to which such conduct
       offends a public sense of justice and propriety. Signal Peak, 138 S.W.3d
       at 928; see also [SAS & Assocs., Inc. v. Home Mktg. Servicing, Inc., 168
       S.W.3d 296, 305 (Tex. App.—Dallas 2005, pet. denied)].


                                             28
Khorshid, Inc. v. Christian, 257 S.W.3d 748, 767 (Tex. App.—Dallas 2008, no pet.).

       For primarily the same reasons we found them to be constitutional, we also believe

the exemplary damages awarded were supported by the evidence. Here, although the

harm to Munoz and AYPCO was economic, the evidence showed intentional acts of

deception by Zorrilla in both her dealings with AYPCO and her dealings with other parties

involved in the construction of her homes.       The evidence showed that Munoz and

AYPCO were financially vulnerable, that Zorrilla was aware of this vulnerability, and that

Zorrilla's actions ruined Munoz's personal and commercial credit. Zorrilla's pattern of

deceptive dealings with the various parties involved was offensive to public notions of

fairness and propriety. In short, the evidence showed a degree of culpability on the part

of Zorrilla that rendered the exemplary damages awarded by the jury reasonable, and we

cannot conclude that the award was so against the great weight and preponderance of

the evidence as to be manifestly unjust. Zorrilla's seventh issue is overruled in this final

regard.

                               V. Pre-judgment Interest

       By her third issue, Zorrilla argues that the trial court erred in awarding AYPCO

prejudgment interest under the Prompt Payment to Contractors Act (the Prompt Payment

Act) because AYPCO failed to prove it was contractually entitled to any payment for the

work performed in May 2007.        See TEX. PROP. CODE ANN. § 28.002 (West 2000)

(providing for 1.5% prejudgment interest in a case where a property owner fails to pay a

contractor the agreed-upon amount within thirty-five days of payment request). Zorrilla

predicates this issue on her first issue, in which she argued that the evidence was


                                            29
insufficient to support the jury's breach of contract finding. However, because AYPCO

elected its fraud damages and because we have found the evidence sufficient to support

the jury's fraud verdict, the jury's breach of contract finding is not before us in this appeal.

See TEX. R. APP. P. 47.1. Regardless, because the measure for breach of contract and

fraud damages submitted to the jury were identical, as discussed supra in Part III, we

conclude that the jury's answer to the fraud damages question established that AYPCO

was entitled, under an agreement between it and Zorrilla, to payment for the work in May

2007. Accordingly, when it proved that Zorrilla did not make timely payment on that

agreement under the fraud charge, AYPCO became entitled to the prejudgment interest

available in the Prompt Payment Act. See TEX. PROP. CODE ANN. § 28.002(a). The trial

court therefore did not err in including prejudgment interest under the Act in the judgment.

Zorrilla's third issue is overruled.

                                   VI. Mechanic's Liens

       By her fourth issue, Zorrilla argues that the trial court erred in foreclosing on a

constitutional lien on the Plaza del Lago property and a statutory lien on the N. 23rd Street

property.    Zorrilla argues that both liens "require at least proof of a contractor's

performance and the existence of a debt." See AMX Enters., L.L.P. v. Master Realty

Corp., 283 S.W.3d 506, 522 (Tex. App.—Fort Worth 2009, no pet.) (constitutional lien);

MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 59 (Tex.

App.—San Antonio 2005, pet. denied) (statutory lien). As in her prejudgment interest

issue, Zorrilla predicates this argument on her first issue, in which she argued that the

evidence was insufficient to support the jury's breach of contract finding. However, we


                                              30
note, again, that because AYPCO elected its fraud damages and because we have found

the evidence sufficient to support the jury's fraud verdict, the jury's breach of contract

finding is not before us in this appeal. See TEX. R. APP. P. 47.1. Regardless, for the

same reasons we upheld the trial court's inclusion of prejudgment interest under the

Prompt Payment Act, we likewise conclude that the jury's fraud finding, which was

supported by the evidence, was sufficient to satisfy the requirement that there was proof

of AYPCO's performance and the existence of a debt from Zorrilla's failure to pay.

      With regard to the constitutional lien, in particular, Zorrilla asserts that the Plaza del

Lago home was her homestead and argues that AYPCO failed to provide the trial court

with proof that the requirements for filing a constitutional lien against a homestead were

complied with.     See TEX. CONST. art. XVI, § 50(a)(5)(A)–(D) (providing that a

constitutional lien may not be enforced against a homestead unless the homeowner,

among other requirements, signs a written contract for labor that includes an express

three-day rescission period and the contract is recorded). The plea of homestead is an

affirmative defense and the burden of pleading and proving such a defense rests upon

the party asserting it. Watson v. Tipton, 274 S.W.3d 791, 800 (Tex. App.—Fort Worth

2008, pet. denied); Bennett v. State Nat'l Bank, Odessa, Tex., 623 S.W.2d 719, 722 (Tex.

Civ. App.—Houston [1st Dist.] 1981, writ ref'd n.r.e.). Here, Zorrilla never pleaded that

the Plaza del Lago property was her homestead. In fact, we note that in her motion for

new trial, Zorrilla argued that the statutory lien on the N. 23rd Street property was not

properly executed under the requirements for liens on homesteads, which suggests that

at the time of that motion, Zorrilla claimed the N. 23rd Street property as her homestead.


                                             31
See McKee v. Wilson, 174 S.W.3d 842, 844 (Tex. App.—Waco 2005, no pet.) (citations

omitted) (holding that once a homestead is established, it is presumed to continue until it

is abandoned, which requires proof of an intent not to return to the previous homestead

and overt acts consistent with that intent). The only evidence in the record relevant to

this argument is Zorrilla's testimony at trial that she lived in the Plaza del Lago home while

the N. 23rd Street home was being constructed. This testimony was not sufficient to

show a "concurrence of usage and intent on the part" of Zorrilla to "claim the land as a

homestead," especially in light of her motion for new trial. See Salomon v. Lesay, 369

S.W.3d 540, 554 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (internal quotations

omitted); see also McKee, 174 S.W.3d at 844. Because Zorrilla did not plead and prove

that the Plaza del Lago property was her homestead, she cannot complain on appeal,

with regard to that property, of AYPCO's failure to comply with constitutional requirements

for liens against homesteads.

       In sum, we conclude that the trial court did not err in ordering foreclosure on

AYPCO's constitutional and statutory liens. Zorrilla's fourth issue is overruled.

                                     VII. Conclusion

       We modify the judgment to delete the award of attorney's fees and affirm the

judgment as modified.

                                                                 NELDA V. RODRIGUEZ
                                                                 Justice

Delivered and filed the 3rd
day of October, 2013.




                                             32
