                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-129-CV


JOEL A. RAMSEY AND                                                APPELLANTS
MARLA K. RAMSEY

                                        V.

JAMES R. SPRAY AND                                                  APPELLEES
MARIANNE SPRAY

                                    ------------

           FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      In five issues, appellants Joel A. and Marla K. Ramsey appeal the award

of damages to appellees James R. and Marianne Spray on the Sprays’

Deceptive Trade Practices-Consumer Protection Act (DTPA) claim arising from

the sale and purchase of a house. We affirm in part, reverse and render in part,




      1
          … See Tex. R. App. P. 47.4.
and reverse and remand in part for further proceedings consistent with this

opinion.

                            I.   BACKGROUND

      In 2002, appellants Joel A. and Marla K. Ramsey decided to sell their

house in Flower Mound, Texas, and hired Sharon Hodnett of Keller

Williams/DFW as their agent.

      More than ten months before entering into a contract for sale of their

house to James R. and Marianne Spray, the Ramseys completed a sellers’

disclosure notice. Approximately five months before the sale closed on May

23, 2003, the Ramseys discovered water damage in the kitchen caused by a

leaky roof. The Ramseys, however, did not supplement or amend their sellers’

disclosure notice to reflect the house’s faulty roof or the water damage. The

Sprays’ home inspector, James Wood, identified various minor needed repairs

but did not identify any water damage or a faulty roof.

      After purchasing the house, the Sprays began to experience problems

associated with water penetration due to the house’s faulty roof. Mrs. Spray

discovered standing water in one of the kitchen drawers in approximately July

2003. In December 2003, the Sprays hired a contractor to investigate and fix

the problem.     The contractor found multiple leaks due to improper roof

installation.   The leaks resulted in water damage throughout the house,

                                      2
including damaged roof decking, exterior wall studs, interior walls, and wooden

flooring. The total cost to repair the damage to the house was $190,445.70.

      The Sprays sued the Ramseys, Hodnett, Keller Williams/DFW, and Wood

for negligence, fraud, breach of warranty, violations of the DTPA, and

unconscionable or knowing conduct. The Sprays sought judgment against all

defendants “jointly and severally” for actual, exemplary, punitive, statutory,

treble, and mental anguish damages, attorney’s fees, interest, and costs.

      On November 3, 2006, the Sprays settled and released all claims with

Hodnett, Keller Williams/DFW, and Wood for a collective amount of $400,000.

      The case proceeded to trial against the Ramseys on May 21, 2007.

During trial, the Ramseys introduced the settlement agreement for the purpose

of obtaining a settlement credit, and it was admitted without objection.

      The jury returned a verdict finding the Ramseys liable for fraud and DTPA

violations. The jury awarded the Sprays $200,000 actual damages for the

costs of repair to the house, mental anguish damages of $100,000 each,




                                      3
$2,000,000 in “additional” damages,2 and $50,000 in attorney’s fees through

trial.

         On December 21, 2007, the trial court rendered final judgment on the

DTPA verdict, awarding the Sprays $190,445.70 in actual damages,

$571,337.10 in “additional” damages,3 $100,000 each to the Sprays for

mental anguish, plus attorney’s fees, interest, and costs. After judgment was

rendered, the Ramseys filed a motion for new trial, asserting, among other

complaints, that the trial court erred by not applying the $400,000 settlement

amount as a credit against the damages award and by awarding “excessive”

actual damages. The motion for new trial was overruled by operation of law.

This appeal followed.




         2
      … “Additional” damages are amounts recoverable under section
17.50(b)(1) in excess of economic damages; they may include mental anguish
damages and treble economic damages based on the finding of a knowing
DTPA violation. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1), (e), (f)
(Vernon Supp. 2009).
         3
       … The trial court reduced the jury’s “additional” damages award of
$2,000,000 pursuant to the DTPA, which mandates that economic and
“additional” damages be capped at treble economic damages. See id.
§ 17.50(b)(1) (“If the trier of fact finds that the conduct of the defendant was
committed knowingly . . . the trier of fact may award not more than three times
the amount of economic damages.”).

                                       4
                                   II.   ISSUES

      The Ramseys bring the following five issues on appeal:

      1)    The trial court abused its discretion by failing to apply as a

settlement credit against the damages award the $400,000 that the Sprays

received in settlement from Hodnett, Keller Williams/DFW, and Wood.

      2)    The trial court erred by awarding as additional damages under the

DTPA four times the amount of actual damages.

      3)    The trial court erred in calculating pre- and post-judgment interest,

resulting in an excessive and usurious interest award.

      4)    The Sprays’ awards of mental anguish damages are not supported

by legally sufficient evidence.

      5)    The actual damages award is not supported by legally or factually

sufficient evidence because it includes $15,000 in repair costs that are

unrelated to the Sprays’ DTPA claims.

                         III.     SETTLEMENT CREDIT

      In their first issue, the Ramseys complain that the trial court abused its

discretion by failing to credit against the damages award the $400,000 the

Sprays received in settlement.




                                         5
A.    Standard of Review

      A trial court’s determination of the existence or amount of a settlement

credit is reviewed for an abuse of discretion.4 To determine whether a trial

court abused its discretion, we must decide whether the trial court acted

without reference to any guiding rules or principles; in other words, we must

decide whether the act was arbitrary or unreasonable.5     An appellate court

cannot conclude that a trial court abused its discretion merely because the

appellate court would have ruled differently in the same circumstances.6

      An abuse of discretion does not occur when the trial court bases its

decisions on conflicting evidence. 7 Furthermore, an abuse of discretion does

not occur as long as some evidence of substantive and probative character

exists to support the trial court’s decision.8




      4
      … Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307,
326 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
      5
          … Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).
      6
       … E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558
(Tex. 1995).
      7
          … In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding).
      8
          … Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on
reh’g).

                                        6
B.    Law Governing Settlement Credits

      Texas Civil Practice and Remedies Code Chapter 33 governs settlement

credits in all tort and DTPA actions. 9 Section 33.012(b) of the code provides:

      If the claimant has settled with one or more persons, the court shall
      further reduce the amount of damages to be recovered by the
      claimant with respect to a cause of action by the sum of the dollar
      amounts of all settlements.10

This statute is mandatory.11 Because section 33.012(b) calls for settlement

credits to apply to “damages to be recovered by the claimant,” the credit is

applied to the amount of damages awarded in the judgment, not the amount of

damages found by the jury.12




      9
       … Tex. Civ. Prac. & Rem. Code Ann. § 33.002(a) (Vernon 2008)
(providing that chapter 33 applies to “any cause of action based on tort” or
“any action brought under the Deceptive Trade Practices-Consumer Protection
Act” “in which a . . . settling person . . . is found responsible for a percentage
of the harm for which relief is sought”).
      10
           … Tex. Civ. Prac. & Rem. Code Ann. § 33.012(b) (Vernon 2008).
      11
        … See Carl J. Battaglia, M.D., P.A. v. Alexander, 177 S.W.3d 893, 906
(Tex. 2005) (“Section 33.012 . . . tells us that credit must be given for
settlements.”); see also Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 927 (Tex.
1998); Roberts v. Grande, 868 S.W.2d 956, 959 (Tex. App.—Houston [14th
Dist.] 1994, no writ).
      12
         … See Tex. Civ. Prac. & Rem. Code Ann. § 33.012(b); see also Stewart
Title Guar. Co. v. Sterling, 822 S.W.2d 1, 9 (Tex. 1991) (“Merely because
actual damages are established by the jury does not necessarily mean that the
plaintiff may recover them.”).

                                        7
      A nonsettling defendant has the burden to prove the existence and

amount of a settlement credit, and may do so by placing the settlement

agreement or some other evidence of the settlement amount in the record.13

The burden then shifts to the plaintiff to show that all or a portion of this

settlement amount should not be credited.14

      A nonsettling defendant is not entitled to credit for amounts paid to settle

punitive damages claims.15      To reduce a settlement credit on this basis,

however, it is the plaintiff’s burden to tender a valid settlement agreement that

allocates between actual and punitive damages. 16       If the plaintiff does not

satisfy this burden, then the nonsettling party is entitled to full settlement

credit.17




      13
         … Utts v. Short, 81 S.W.3d 822, 828 (Tex. 2002) (op. on reh’g); see
also Ellender, 968 S.W.2d at 927 (holding that nonsettling defendant can meet
its burden of proof “by placing the settlement agreement or some evidence of
the settlement amount in the record”).
      14
           … Utts, 81 S.W.3d at 828; Ellender, 968 S.W.2d at 928.
      15
       … Ellender, 968 S.W.2d at 927–28; see Tex. Civ. Prac. & Rem. Code
Ann. § 33.002(c)(2) (Vernon 2008) (“This chapter does not apply to . . . a
claim for exemplary damages included in an action to which this chapter
otherwise applies.”).
      16
           … Ellender, at 928–29.
      17
        … Oyster Creek, 176 S.W.3d at 327; see Cohen v. Arthur Andersen,
L.L.P., 106 S.W.3d 304, 310 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

                                        8
      In addition, the nonsettling defendant may only claim a credit based on

the damages for which all tortfeasors are jointly liable.18 However, if settlement

monies were also paid on claims for which there is no joint and several liability,

it is the plaintiff’s burden to establish any reduction in a settlement credit by

tendering a settlement agreement that allocates the settlement amount between

sole and joint liability claims.19 Otherwise, the nonsettling defendant is entitled

to the full credit.20

C.    Application of the Settlement Credit

      The Ramseys assert that the trial court abused its discretion by failing to

reduce the judgment award by the entire $400,000 amount that the Sprays

received in settlement. In response, the Sprays contend that the court did

apply the $400,000 settlement credit by reducing the jury’s $2,000,000

“additional” damages award to $571,337.10.           The trial court’s judgment,

however, states that the additional damages award was made “pursuant to the




      18
        … Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390–92 (Tex. 2000)
(op. on reh’g); CTTI Priesmeyer, Inc. v. K & O Ltd. P’ship, 164 S.W.3d 675,
684–85 (Tex. App.—Austin 2005, no pet.); Roberts, 868 S.W.2d at 959.
      19
           … CTTI, 164 S.W.3d at 685 n.3; Cohen, 106 S.W.3d at 310.
      20
           … CTTI, 164 S.W.3d at 685 n.3; Cohen, 106 S.W.3d at 310.

                                        9
terms of the [DTPA].” 21 There is no evidence in the record that the damages

were reduced, as the Sprays contend, as a result of the trial court’s application

of settlement credit.

      In the alternative, the Sprays contend that the Ramseys are not entitled

to have the $400,000 settlement credit applied against the additional damages

because they are punitive in nature and the Ramseys and settling defendants

are not jointly and severally liable for punitive damages.      It is well settled,

however, that “any credit for settlements made by other alleged joint

tortfeasors must be applied[, if at all,] after the trebling of actual damages.” 22

Moreover, the Sprays did not meet their burden of showing that the settlement

agreement allocated dollars toward the settlement of punitive damages or

claims for which the settling defendants and the Ramseys were not jointly and



      21
        … Section 17.50(b)(1) of the DTPA provides that “the trier of fact may
award not more than three times the amount of economic damages” based on
the defendant’s knowing conduct. See Tex. Bus. & Com. Code Ann.
§ 17.50(b)(1). Although the trial court erroneously exceeded this cap by
awarding the Sprays four times the amount of economic damages, see infra
Part IV, it is clear from the face of the judgment that the additional damages
award was made pursuant to the DTPA and not pursuant to section 33.012(b)
of the civil practice and remedies code.
      22
        … Stewart Title, 822 S.W.2d at 9; see Universal Servs. Co. v. Ung, 882
S.W.2d 460, 467 (Tex. App.—Houston [14th Dist.] 1994) (“[I]n cases where
actual damages awards may be trebled by statute, the supreme court allows
credits of settlement proceeds against the trebled sum.” (emphasis in original)),
rev’d on other grounds, 904 S.W.2d 638 (Tex. 1995).

                                        10
severally liable.23 Because this burden was not met, the Sprays are not entitled

to a reduction of settlement credit.24

      We hold that the trial court abused its discretion by failing to apply the

$400,000 settlement credit against the economic damages awards. We sustain

the Ramseys’ first issue.

                            IV.   TREBLE DAMAGES

      In their second issue, the Ramseys contend that the trial court abused its

discretion by awarding the Sprays four times, rather than three times, the

amount of their economic damages under the DTPA. 25 Section 17.50(b)(1) of

the Texas Business and Commerce Code permits a maximum award of three

times the amount of economic damages for a knowing DTPA violation,

providing:



      23
           … See Ellender, 968 S.W.2d at 928; Cohen, 106 S.W.3d at 310.
      24
       … See Oyster Creek, 176 S.W.3d at 327; CTTI, 164 S.W.3d at 685
n.3; Cohen, 106 S.W.3d at 310.
      25
        … The Sprays argue that the Ramseys failed to preserve error because
they did not object to the additional damages award in the trial court. In the
Ramseys’ motion for suggestion of remittitur, however, they complain that
“[t]he amount awarded [in the jury verdict] as additional damages is clearly
excessive and unlawful because the DTPA specifically provides that additional
damages may not exceed ‘more than three times the amount of economic
damages’ when the alleged deceptive practice was committed ‘knowingly’”
(quoting Tex. Bus. & Com. Code Ann. § 17.50(b)(1)). The Ramseys, therefore,
preserved this issue for our review.

                                         11
     (b) In a suit filed under this section, each consumer who prevails
     may obtain:

              (1) the amount of economic damages found by the trier of
              fact. If the trier of fact finds that the conduct of the
              defendant was committed knowingly, the consumer may also
              recover damages for mental anguish, as found by the trier of
              fact, and the trier of fact may award not more than three
              times the amount of economic damages. 26

     When a trial court awards actual damages on a DTPA claim and, in

addition, awards three times that amount based on the jury’s award of

“additional” damages for a knowing DTPA violation, the result is an award of

four times the damages amount.27 In such cases, the appellate court should

modify the judgment “to limit the DTPA award to three times the amount of

economic damages.” 28

     In this case, the trial court entered judgment awarding the Sprays

$190,445.70 in actual economic damages plus three times that amount, or

$571,337.10. As a result, the trial court awarded the Sprays four times the

amount of their economic damages. Accordingly, we hold that the trial court


     26
          … Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (emphasis added).
     27
       … Dal-Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133, 143–44
(Tex. App.—Dallas 2006, no pet.) (citing Jim Walter Homes, Inc. v. Valencia,
690 S.W.2d 239, 241 (Tex. 1985)); see Tex. Bus. & Com. Code Ann.
§ 17.50(b)(1).
     28
       … Dal-Chrome, 183 S.W.3d at 144; see Tex. Bus. & Com. Code Ann.
§ 17.50(b)(1).

                                       12
abused its discretion by awarding the Sprays more than three times the amount

of their economic damages on their DTPA claim based on the Ramseys’

knowing DTPA violations. 29 We sustain the Ramseys’ second issue.

           V.   AWARD OF PRE- AND POST-JUDGMENT INTEREST

      In their third issue, the Ramseys complain of the award of pre- and post-

judgment interest on four distinct grounds, three of which are waived because

they were not preserved in the trial court.30        The only ground that was


      29
         … A trial court abuses its discretion if it misapplies the law to
established facts. State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.
1975); In re Talco-Bogata Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d
343, 347 (Tex. App.—Texarkana 1999, no pet.); see also Marsh v. Marsh, 949
S.W.2d 734, 744 (Tex. App.—Houston [14th Dist.] 1997, no writ) (“A clear
failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion.”).
      30
        … In their motion for suggestion of remittitur, the Ramseys assert that
the DTPA prohibits consideration of prejudgment interest when calculating
“additional” damages. They did not present the trial court with the three other
grounds on which they now challenge the trial court’s interest award: 1) that
the DTPA prohibits prejudgment interest on mental anguish damages; 2) that
the DTPA prohibits prejudgment interest on future damages; and 3) that the
finance code requires application of pre- and post-judgment interest at a rate of
7.5 percent. See Tex. R. App. P. 33.1(a) (providing that a party must have
presented to the trial court a timely request, objection, or motion that states the
specific grounds for the desired ruling, if they are not apparent from the context
of the request, objection, or motion, and obtain an express or implied ruling
from the trial court); Campbell v. State, 85 S.W.3d 176, 185 (Tex. 2002).
Contrary to the Ramseys’ contention, error in the calculation of pre- and post-
judgment interest is not recognized as fundamental error reviewable on appeal
even when not preserved in the trial court. See In re B.L.D., 113 S.W.3d 340,
350 (Tex. 2003) (stating civil doctrine of fundamental error is “discredited” and
is only recognized “in rare instances” when the record shows a jurisdictional

                                        13
preserved was whether the trial court erred by awarding three times the amount

of prejudgment interest on the Sprays’ actual damages.

A.     Standard of Review

       We apply an abuse of discretion standard to review the trial court’s award

of prejudgment interest. 31    Under this standard, we will not disturb a trial

court’s findings on factual issues unless the court reasonably could have

reached only one decision and it failed to do so. 32 However, “[a] trial court has

no ‘discretion’ in determining what the law is or applying the law to the

facts.” 33    Accordingly, the abuse of discretion standard applies to the trial

court’s factual findings as they relate to prejudgment interest; but the de novo

standard applies to the trial court’s application of the law to the facts.34



defect or when certain types of error are committed in juvenile delinquency
cases), cert. denied, 541 U.S. 945 (2004); see also Pirtle v. Gregory, 629
S.W.2d 919, 919–20 (Tex. 1982). Therefore, the Ramseys waived these three
grounds as bases for challenging the trial court’s interest award. See Tex. R.
App. P. 33.1(a).
       31
       … Toshiba Mach. Co., Am. v. SPM Flow Control, Inc., 180 S.W.3d 761,
785 (Tex. App.—Fort Worth 2005, pet. granted, judgm’t vacated w.r.m.) (op.
on reh’g); J.C. Penney Life Ins. Co. v. Heinrich, 32 S.W.3d 280, 289 (Tex.
App.—San Antonio 2000, pet. denied).
       32
      … Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992); Heinrich,
32 S.W.3d at 289.
       33
            … Walker, 827 S.W.2d at 840; Heinrich, 32 S.W.3d at 289.
       34
            … Toshiba, 180 S.W.3d at 785; Heinrich, 32 S.W.3d at 289.

                                        14
B.   Prejudgment Interest and Treble Damages Under the DTPA

     Section 17.50(b)(1) of the Texas Business and Commerce Code permits

only economic damages to be trebled on DTPA claims. 35        Section 17.50(e)

states that “prejudgment interest may not be considered” in computing such

damages.36 When a trial court calculates “additional” damages under section

17.50(b), the amount of the “additional damages” “is to be based upon the

actual damages only, not actual damages plus prejudgment interest.” 37

     Here, the trial court ordered that the Sprays recover “trebled pre-judgment

interest of 7.75%” on the actual damages award of $190,445.70 in repair

costs. Therefore, the trial court abused its discretion as a matter of law in

awarding treble prejudgment interest. Accordingly, we sustain the preserved

portion of the Ramseys’ third issue on appeal.

                      VI.     MENTAL ANGUISH DAMAGES

     In their fourth issue, the Ramseys argue that the evidence is not legally

sufficient to support the $100,000 awards of mental anguish damages to Mrs.

Spray and Mr. Spray.


     35
          … Tex. Bus. & Com. Code Ann. § 17.50(b)(1).
     36
          … Id. § 17.50(e).
     37
        … Aetna Cas. & Sur. Co. v. Garza, 906 S.W.2d 543, 556 (Tex.
App.—San Antonio 1995, writ dism’d) (reversing portion of judgment awarding
trebled prejudgment interest).

                                     15
A.    Standard of Review

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (4) the evidence establishes conclusively the opposite

of a vital fact.38 In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not.39




      38
       … Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998) (op. on reh’g), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert,
"No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361,
362–63 (1960).
      39
       … Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.
2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

                                       16
B.    Mental Anguish Damages Under the DTPA

      Section 17.50(b)(1) of the Texas Business and Commerce Code allows

the award of mental anguish damages on a DTPA claim if the trier of fact finds

that the conduct of the defendant was committed “knowingly.” 40 To recover

mental anguish damages under the DTPA, the plaintiff must present “direct

evidence of the nature, duration, and severity of the[] mental anguish, thus

establishing a substantial disruption in the [plaintiff’s] daily routine.” 41 Proof of

a physical manifestation of mental anguish is not required.42 The plaintiff’s

direct evidence may include the plaintiff’s own testimony or that of a third party

or expert witness.43 If there is no direct evidence of mental anguish, we apply

traditional no-evidence standards to determine whether the record reveals any




      40
        … Tex. Bus. & Com. Code Ann. § 17.50(b)(1). The Ramseys do not
challenge on appeal the jury’s finding that they committed “knowing” DTPA
violations.
      41
       … Latham v. Castillo, 972 S.W.2d 66, 69–70 (Tex. 1998); see also
Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Anderson v.
Long, 118 S.W.3d 806, 811 (Tex. App.—Fort Worth 2003, no pet.).
      42
      … City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex. 1997); Parkway,
901 S.W.2d at 443.
      43
           … Parkway, 901 S.W.2d at 444.

                                         17
evidence of a “high degree of mental pain and distress” that is “more than mere

worry, anxiety, vexation, embarrassment, or anger.” 44

      We are directed to “closely scrutinize” awards of mental anguish

damages.45 “Simply because a plaintiff says he or she suffered mental anguish

does not constitute [legally sufficient] evidence” to support a mental anguish

damages award.46 Even a plaintiff’s own testimony of extreme fright, constant

worry, extreme apprehension, extreme embarrassment, nervousness on a daily

basis, and loss of sleep does not, without more, present more than a scintilla

of evidence to support an award of mental anguish damages. 47

C.    Marianne Spray

      To support her mental anguish claim, Marianne Spray testified at trial

regarding her mental state and the impact the damage to the house has had on

her life. She testified that she feels “more comfortable in a hotel” than in her

house and that this has been the cause of “uncomfortable” discussions




      44
      … Latham, 972 S.W.2d at 70; see Parkway, 901 S.W.2d at 444;
Anderson, 118 S.W.3d at 811.
      45
       … Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 860 (Tex. 1999); see
Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997).
      46
           … Gunn Infiniti, 996 S.W.2d at 861.
      47
      … Anderson, 118 S.W.3d at 811 (citing Latham, 972 S.W.2d at
69–70).

                                       18
between herself and her husband.            Mrs. Spray testified that she has

experienced “anxious feelings,” “anxiousness, anxieties, frustration, humiliation,

[and] embarrassment,” that she wakes up at night, and that she has not slept

“well” since moving into the house. In addition, although in the past the Sprays

entertained “quite a bit” for Mr. Spray’s work, Mrs. Spray stated that she is

now “reluctant” to bring people to their house.

      Mrs. Spray also testified at trial that she feels “cheated” and like her soul

has been “raped.” The situation regarding her house makes her “very angry”

and causes her to “question all the things that [she] believe[s] in and [her]

faith.” Mrs. Spray stated that there “really hasn't been much quality of life in

this house” and that it has been “a nightmare” “[t]o an extreme degree.”

      Mrs. Spray cried at trial, stating that her crying was due to the “buildup

of . . . frustration”; she testified that she also has cried in private over the

situation regarding her house. And Mr. Spray testified at trial that he has seen

Mrs. Spray cry “over this problem” on two or three occasions. In addition, Mrs.

Spray testified that she does not feel safe because “there’s carbon monoxide

in the house” and that she suffers from hypertension as a result of the

“emotional issues” she experienced regarding the house.

      Viewed in the light most favorable to Mrs. Spray, her conclusory

testimony does not present more than a scintilla of evidence that her alleged

                                       19
mental anguish caused a substantial disruption in her daily routine or amounted

to a “high degree of mental pain and distress” that is more than mere worry,

anxiety, vexation, embarrassment, or anger.48 Accordingly, we sustain this

portion of the Ramseys’ fourth issue on appeal.

D.    James Spray

      To support his mental anguish claim, James Spray testified at trial that

he is “pretty embarrassed” and “pretty angry” and has felt “anxiety” over his

house. He feels that the Ramseys have breached his trust, and he “kick[s]

[him]self” because he feels that he has been “cheated.” Mr. Spray cried at

trial, which he testified was attributable to his “continuous” and “extreme”

feelings of anger toward the Ramseys. Mr. Spray also testified that he felt

“violated” and like a “failure.”

      Viewed in the light most favorable to Mr. Spray, his testimony does not

present more than a scintilla of evidence that his alleged mental anguish caused

a substantial disruption in his daily routine or amounted to a “high degree of

mental pain and distress” that is more than mere worry, anxiety, vexation,




      48
         … Latham, 972 S.W.2d at 69–70; see Parkway, 901 S.W.2d at 444;
Anderson, 118 S.W.3d at 811; see also Cont'l Coffee Prods. Co. v. Cazarez,
937 S.W.2d 444, 450 (Tex. 1996) (“Anything more than a scintilla of evidence
is legally sufficient to support the finding.”).

                                      20
embarrassment, or anger.49 Accordingly, we hold that the evidence is legally

insufficient to support an award of mental anguish damages to Mr. Spray. We

sustain the remaining portion of the Ramseys’ fourth issue.50


           VII.   ACTUAL DAMAGES RELATED TO FENCE REPAIR


      In their fifth issue, the Ramseys argue that the evidence is legally and

factually insufficient to support $15,000 of the $190,445.70 actual damages

award because $15,000 is attributable to the repair of a hail-damaged fence

and this damage does not relate to the Sprays’ DTPA claim. The Sprays argue

that the Ramseys did not preserve error on this issue in part because the actual-

damages question submitted to the jury did not segregate, nor did the Ramseys

ask the trial court for it to segregate, the cost to repair the fence from other

actual damages awarded. According to the Sprays, it is therefore impossible

to determine what amount the jury did or did not award for the repair of the

fence.




      49
       … Latham, 972 S.W.2d at 69–70; see Cont’l Coffee, 937 S.W.2d at
450; Parkway, 901 S.W.2d at 444; Anderson, 118 S.W.3d at 811.
      50
         … Because we sustain this issue on other grounds, we do not address,
and express no opinion regarding, the Ramseys’ contention that the Sprays
failed to establish a causal link between the Sprays’ alleged mental anguish and
the Ramseys’ DTPA violations.

                                       21
      When a damages question is submitted to the jury that includes multiple

possible elements, to preserve error challenging the sufficiency of the evidence

supporting one but not all of the elements of damages a defendant is required

to object and ask the trial court to either exclude that element from the

damages question or submit damages elements separately.51

      In this case, the Sprays presented evidence of fence and other repair

costs to the jury. The Ramseys failed to object to the submission of the actual

damages question on the ground that it may include fence repair costs.52 They

also failed to request the submission of an alternate question that either

excluded or segregated fence repair costs from other actual damages. 5 3

Accordingly, we hold that the Ramseys failed to preserve error regarding the

sufficiency of the evidence supporting the portion of the actual damages they




      51
       … Tagle v. Galvan, 155 S.W.3d 510, 515–16 (Tex. App.—San Antonio
2004, no pet.) (holding that, because defendant did not ask for separate
damage findings, it could only challenge “sufficiency of the evidence supporting
the whole verdict” (citing Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex.
1995))); see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1).
      52
        … Jury question number eight asks, in part: “Answer in dollars and
cents, for damages, if any, for: . . . c. Reasonable and necessary costs of
repairing the home: Answer: $_______.”
      53
        … Although the Ramseys objected that the actual damages award was
excessive in their motion for suggestion of remittitur, they did so on grounds
unrelated to the $15,000 fence repair charges.

                                      22
contend is attributable to fence repair costs.54 We overrule the Ramseys’ fifth

issue.55

                             VIII.   CONCLUSION

      In conclusion, we hold that the trial court erred by failing to apply

$400,000 in settlement credit against the award of economic damages; by

awarding the Sprays more than three times the amount of their economic

damages; and by awarding three times the amount of prejudgment interest on

the Sprays’ actual damages.      We further hold that the evidence is legally

insufficient to support the mental anguish damages awards in favor of the

Sprays.

      We, therefore, reverse that part of the trial court’s judgment awarding the

Sprays their economic damages, and remand that part of the judgment to the

trial court for recalculation of those damage awards and application of the

settlement credit, pursuant to this opinion. In addition, we reverse the trial

court’s award of “trebled pre-judgment interest of 7.75% from January 24,

2005[,]” assessed on the Sprays’ actual and mental anguish damages, and

render judgment that they recover interest of 7.75% from January 24, 2005,


      54
           … See Thomas, 895 S.W.2d at 360; Tagle, 155 S.W.3d at 519.
      55
        … Because the Ramseys failed to preserve error, we also do not address
their unpreserved claim that the $15,000 cost to repair the fence was not
reasonable and necessary.

                                       23
only on the amount of the damages, if any, that they are entitled to recover

upon application of settlement credit. We further reverse the trial court’s award

of $100,000 each in mental anguish damages to Mr. and Mrs. Spray and render

judgment that they take nothing from the Ramseys on their claims for mental

anguish damages. In all other respects, the trial court’s judgment is affirmed.




                                                 PER CURIAM

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

DELIVERED: December 23, 2009




                                       24
