                        NUMBER 13-11-00605-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


DAVID D. GONZALEZ, AS AN INDIVIDUAL
AND AS TRUSTEE, AND GONZALEZ
FINANCIAL HOLDINGS, INC.,                                              Appellants,

                                         v.

ANITA PEREZ,                                                           Appellee.


                  On appeal from the 430th District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Rodriguez and Vela
             Memorandum Opinion by Justice Rodriguez
      Appellee Anita Perez filed suit against appellants Gonzalez Financial Holdings,

Inc. (GFH) and David D. Gonzalez, alleging violations of the Texas Deceptive Trade
Practices—Consumer Protection Act (DTPA), fraud, conversion, and breach of contract.

The trial court granted Perez’s motion for partial summary judgment on liability for all

causes of action. Then, after an evidentiary hearing on damages, the trial court found

appellants knowingly violated the DTPA, entered final judgment against appellants, and

awarded       Perez      economic        damages,        additional      damages,        pre-judgment         and

post-judgment interest, and attorney’s fees. By a single issue challenging the additional

damages awarded under the DTPA, appellants contend that the evidence is legally

insufficient to establish that appellants knowingly violated the DTPA.1 We affirm.

                                             I. BACKGROUND2

        It is undisputed that Perez assigned her taxes to GFH for paying her delinquent

property taxes. Perez also executed a promissory note to GFH for $20,117.93. A deed

of trust secured the note, naming Gonzalez, the president of GFH, as trustee. Perez fell

behind on the note, and her home was sold at foreclosure for $38,001.00. Perez testified

that she first heard of the foreclosure sale when the new owner told her that she had three

days to vacate her home.               After she learned of the foreclosure, Perez contacted

appellants through her daughter-in-law.

        Gonzalez’s deposition testimony was read into evidence at the hearing on

        1
          It is not clear from appellants’ brief whether they are attacking the legal or factual sufficiency of the
evidence to support the findings in favor of the judgment. However, appellants claim that Perez failed to
produce evidence that appellants knowingly violated her rights under the DTPA, and appellants ask this
Court to "reverse and render the judgment that [Perez is] denied additional damages under [t]he DTPA."
Rendition of judgment is appropriate when the evidence is legally insufficient. Vista Chevrolet, Inc. v.
Lewis, 709 S.W.2d 176, 177 (Tex. 1986) (per curiam); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Thus, we conclude appellants’ challenge is to the legal sufficiency of the evidence.
        2
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.


                                                        2
damages. Through his testimony, Gonzalez explained that Perez’s deed of trust and a

foreclosure notice would have provided Perez with information on how she should initiate

a request for excess proceeds from the foreclosure sale. The deed of trust in this case,

however, did not refer to a release as part of this process. And, we have found no

foreclosure notice in the record. Furthermore, Perez claims that at the time she signed

the deed of trust, appellants did not inform her that she would be required to sign a form,

which she described as a waiver, release, and indemnity form, in order to receive any

excess proceeds from the foreclosure sale of her house.                  Because Perez and her

counsel refused to sign the requested form, appellants would not release the excess

proceeds from the foreclosure sale.

       Perez sued appellants “for wrongfully keeping money [from the foreclosure of her

home] that belongs to her and making misrepresentations to her.” In her petition, Perez

asserted that appellants “demanded, as a condition for returning the excess proceeds,

that [she] release them of all liability, something that is not required under law or contract.”

Perez filed a motion for partial summary judgment on liability only.                 The trial court

granted her motion. Two months later, following a hearing on damages, the trial court

entered a final judgment against appellants, awarding Perez $14,000.00 in economic

damages with pre-judgment interest of $2,508.33. Finding appellants knowingly violated

the DTPA, the trial court awarded Perez additional damages of $28,000.00. It also

awarded post-judgment interest and attorney’s fees of $31,780.00.                      This appeal,

challenging only the award of additional damages, ensued.3


       3
        Appellants do not challenge liability, the award of economic damages or attorneys’ fees, or the
amount of additional damages awarded.
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                       II. STANDARD OF REVIEW AND APPLICABLE LAW

       When the appellate record includes the reporter's record, as in this case, the trial

court's findings are not conclusive and may be challenged on appeal for evidentiary

sufficiency. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). We review a

trial court's findings for legal sufficiency by the same standard applied to a jury verdict.

Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Moore v. Jet Stream Invs.,

Ltd., 315 S.W.3d 195, 203 (Tex. App.—Texarkana 2010, pet. denied) (citing Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).

       In reviewing the legal sufficiency of the evidence, we view all evidence in the light

most favorable to the judgment and indulge every reasonable inference in support of that

finding, crediting favorable evidence if a reasonable fact finder could and disregarding

contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168

S.W.3d 802, 807, 822 (Tex. 2005). The test is "whether the evidence at trial would

enable reasonable and fair-minded people to reach the [judgment] under review." Id. at

827. A legal sufficiency challenge will be sustained if the record shows one of the

following: (1) a complete absence of evidence of a vital fact; (2) rules of law or evidence

bar the court 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

conclusively establishes the opposite of the vital fact. Id. at 810. If there is more than a

scintilla of evidence to support the challenged finding, this Court must uphold it.

Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48

(Tex. 1998).


                                             4
       The DTPA provides for the award of additional damages for statutory violations

that are committed "knowingly." TEX. BUS. & COM. CODE ANN. § 17.50(b)(1) (West 2011).

The DTPA defines "knowingly" as "actual awareness, at the time of the act or practice

complained of, of the falsity, deception, or unfairness of the act or practice giving rise to

the consumer's claim.” Id. § 17.45(9) (West 2011). "Actual awareness" does not mean

merely that a person knows what he is doing.          St. Paul Surplus Lines Ins. Co. v.

Dal-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex. 1998) (op. on reh’g) (per curiam); see

Daugherty v. Jacobs, 187 S.W.3d 607, 618 (Tex. App.—Houston [14th Dist.] 2006, no

pet.). It is more than conscious indifference toward another’s rights or welfare; rather,

actual awareness means that a person knows that what he is doing is false, deceptive, or

unfair. St. Paul Surplus Lines Ins. Co., 974 S.W.2d at 54; Daugherty, 187 S.W.3d at 618.

In this case, we must affirm the trial court's finding if we find more than a scintilla of

evidence that appellants' conduct fit within the definition of "knowingly." See Burroughs

Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

                                      III. DISCUSSION

       After providing this Court with authority regarding the award of additional damages

under the DTPA, appellants presented their argument, which follows in its entirety:

                At the hearing on damages, [Perez] failed to show evidence that
       [DFH and Gonzalez] knew that the requirement to fill out the form in order
       for [Perez] to receive the excess proceeds was false, deceptive or unfair.
       The only evidence [Perez] produced was testimony of [sic] that she was
       inconvenienced and had to take care of her family by making several small
       loans. [Perez] never offered testimony that [DFH and Gonzalez] knew
       such a requirement was done for the sole purpose to defraud or deceive
       [Perez]. Defendant Danny Gonzalez states in his deposition that as soon
       as he was contacted by [Perez] via [her] attorney he only required them to
       fill out a form and [Perez’s] counsel refused. Such evidence does not give

                                             5
        rise to a knowing violation under the DTPA. Therefore, the trial court erred
        by awarding additional damages in the amount of $28,000.00. (Record
        citations omitted.)

        However, at the hearing on damages, the trial court admitted Perez’s first request

for admissions propounded on David Gonzalez, the president and manager of GFH.

Relevant to our analysis, the admissions included the following: (1) “After the November

6, 2007 foreclosure sale, you represented to [Perez] that, to receive the excess proceeds

from the foreclosure sale, she would need to waive, release, or hold harmless you and the

trustee who sold [Perez’s] property”; and (2) “You knew that the representation . . . was

false when it was made.”4 Because appellants did not timely respond to Perez’s request

for admissions, they were deemed admitted. See TEX. R. CIV. P. 198.2. Appellants did

not request withdrawal or amendment of these admissions.                      See id. at R. 198.3.

Therefore, through their deemed admissions, appellants admitted that they represented

to Perez that she would need to sign a release before she could receive the excess

proceeds from the foreclosure sale, even though they knew that this representation was

false. In other words, based on their admissions, appellants knew that Perez did not

need to sign a release before she could receive the excess proceeds.

        Appellants refer us to no authority or record documentation that supports their

position that Perez had to sign a release before she could receive the excess proceeds.

At the hearing, they offered no conflicting or controverting evidence—i.e., that they did not

know that the representation they made to Perez was false.                      The only evidence

appellants offered was Gonzalez’s deposition testimony regarding whether Perez was

        4
          Perez also sent a first request of admissions to DFH. It included these identical requests.
During the hearing, the trial court acknowledged that Perez’s request to DFH was on file and that it had
deemed the requests admitted.
                                                   6
informed that she should initiate the request for any excess proceeds from a foreclosure

sale.

        Therefore, viewing all evidence in the light most favorable to the judgment and

indulging every reasonable inference in support of the “knowingly” finding, we conclude

that the evidence is legally sufficient to support the trial court’s finding that appellants

knowingly violated the DTPA. See City of Keller, 168 S.W.3d at 807, 822. The trial

court's finding is supported by more than a scintilla of evidence that appellants' conduct fit

within the definition of "knowingly"; that appellants were actually aware that their actions

toward Perez were false. See Crye, 907 S.W.2d at 499; see also TEX. BUS. & COM. CODE

ANN. § 17.45(9); St. Paul Surplus Lines Ins. Co., 974 S.W.2d at 54; Daugherty, 187

S.W.3d at 618. Having concluded that there is more than a scintilla of evidence to

support the challenged finding, we must uphold the trial court’s judgment. See Formosa

Plastics Corp. USA, 960 S.W.2d at 48; see also City of Keller, 168 S.W.3d at 810. We

overrule appellants’ sole issue.

                                     IV. CONCLUSION

        We affirm the judgment of the trial court.



                                                                 NELDA V. RODRIGUEZ
                                                                 Justice


Delivered and filed the 13th
day of December, 2012.




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