                               NUMBER 13-06-490-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


GEORGE T. MOENCH,                                                              Appellant,

                                             v.

DENNIS AND PATTI NOTZON,                                                       Appellees.


                On appeal from the County Court at Law No. 1
                        of Cameron County, Texas.



                       MEMORANDUM OPINION
             Before Justices Rodriguez, Garza, and Benavides
               Memorandum Opinion by Justice Benavides

       The two happiest days in a boat owner’s life are the day he buys the boat and the

day he sells the boat, or so the saying goes. In this case, both days are involved, and

neither the buyer nor the seller is happy. Appellees, Dennis and Patti Notzon, brought suit

against appellant George Moench for his failure to return a “deposit” they paid in the course

of attempting to purchase Moench’s boat. After a jury trial, the trial court rendered
judgment awarding actual damages, mental anguish damages, exemplary damages, and

attorney’s fees apparently under the Texas Deceptive Trade Practices Act (“DTPA”). See

TEX . BUS. & COMM . CODE ANN . § 17.50 (Vernon Supp. 2007). Moench argues that the

evidence is legally and factually insufficient to support the jury’s findings and that the trial

court should have granted a mistrial. For the reasons that follow, we affirm.

                                       I. BACKGROUND

          Dennis Notzon is an Arizona resident. He is married to Patti Notzon. Dennis was

employed as a truck driver and a heavy machine operator for some time, but he was forced

to retire when he injured his back. The Notzons then survived on Dennis’s disability pay,

Patti’s disability pay, and social security income the Notzons received for their minor child.

This apparently was not enough to sustain their family, as the Notzons filed for and

finalized their bankruptcy in 2002.

          Not wanting to “just sit around,” Dennis began exploring a career in scuba-diving.

Dennis began looking for a boat to purchase in the hope of later finding underwater

employment. He located a listing on the internet for a 58 foot sailboat called the “Fat

Duck.” Dennis was interested in the boat because it had a flat deck that was suitable for

diving.

          The listing referenced Mark Stuart as the boat’s contact person. Dennis contacted

Stuart on multiple occasions over the course of a few months to discuss the boat. Stuart

represented that he was the boat’s salesman, but George Moench actually owned the boat.

Before Dennis traveled to Texas to view the boat, Stuart represented that the boat was “a

good boat.” Stuart told Dennis that the Fat Duck “was really dirty and needed cleaning

from one end to the other” and needed fresh paint; otherwise, it was overall sound.


                                               2
       In November 2003, the Notzons traveled to Port Isabel, Texas, to look at the boat.

They met with Stuart at Anchor Marina where the boat was docked. After viewing the boat,

the Notzons and Stuart drove the boat out to sea for 15 to 20 minutes. The Notzons then

met with Stuart and Moench on November 14, 2003, to negotiate the Notzons’ purchase

of the boat. Also present was Bill Coleman, the boat’s “broker,” and Stuart’s secretary.

       The parties’ negotiations culminated in a “talking paper” setting out the terms the

parties negotiated. Dennis testified that he requested the sale be contingent on a survey

of the boat’s structural condition. He recalled telling Moench and Stuart that he did not

want to buy a boat that required much work. Anything more than a little sanding and

painting would be too much for Dennis, given his disability. Moench initially refused to

make the sale contingent on a favorable survey, but ultimately, Stuart convinced Moench

that most boat sales include such provisions. Accordingly, the condition was included in

the talking paper.

       The Notzons presented Moench with a financial statement that showed that they

had some equity in their home and that they had previously filed for bankruptcy. Moench

testified that he reviewed the Notzons’ financial statement and was aware of their financial

condition. The Notzons needed owner financing because they could not get a loan with

their credit history. They planned to sell their home to pay for the boat. Stuart represented

to the Notzons that the boat’s price was $115,000, which included a $15,000 deposit or

down payment, and Moench agreed to finance the sale for the Notzons.

       Dennis paid the $15,000 deposit that day. He testified that he believed that the

$15,000 was paid to “hold the boat until the time [he] came down to get the survey to

establish the [boat’s] condition.” Dennis testified that he asked what Moench would do with


                                             3
the $15,000:

       Q.      Okay. What was told to you when you paid the 15,000? What was
               told to you about it?

       A.      I asked if that was going into an escrow account, like with a house,
               and I was told that I could wait until Monday and we could do an
               escrow account, or that it would just go into the safe until the time the
               sale was completed.

       Q.      Okay.

       A.      And I couldn’t stay until Monday, which they knew . . . .

                                              ...

       Q.      Okay. What did Mr. Coleman tell you?

       A.      About?

       Q.      About the money.

       A.      That it would go in the safe until the sale was finalized.

                                             ...

       Q.      Okay. And then what did [Stuart] tell you about the money?

       A.      Just that it would be in the safe until the sale was finalized.

       The talking paper was very short and did not include a lot of detail. Regarding the

survey and initial payments, it stated:

       Sales Price $115k

       Owner financed sale

       Sale contingent on survey of structural integrity and haul-out
             Both parties agree to surveyor
             Boat must be insured by buyer prior to haul-out
             Buyer assumes responsibility of vessel upon acceptance of this
             agreement

       Down Payment 15k
            Buyer can occupy and improve boat

                                               4
               Boat cannot leave dock until the first balloon is paid
               Buyer assumes slip rent ($250 until occupied)

        First Baloon [sic] $20k
               Due on sale of buyer’s residence—NLT 120 days
               Boat must be insured
               Boat can only sail in US Gulf Coastal region

        After the parties signed the talking paper and the Notzons paid the deposit, the

Notzons returned home to Arizona. Dennis began searching for a surveyor to conduct the

survey of the boat. Stuart recommended Manning Dierlam as the surveyor. Dennis hired

Dierlam in February 2004 and paid him $350 to conduct the survey.

        Dierlam told Dennis it would take three to five days to produce a written report after

he conducted the survey. Dennis did not hear from Dierlam for 10 to 12 days after hiring

him, so Dennis called. Over the phone, Dierlam reported that he had not been given

access to the boat. Dierlam also stated that before he would be given access to the boat,

the boat owner required that Dierlam send him any survey reports first before sending the

report to Dennis. Dennis thought this was odd because he was paying for the survey, not

Moench. It appeared to Dennis that Dierlam was taking orders from Moench, Stuart, and

Coleman. Dennis testified that Dierlam finally obtained access to the boat on March 18-20,

2004.

        Dennis’s conversations with Dierlam, along with other factors, caused him to

question the structural integrity of the boat. During Dierlam’s survey, he drilled holes in and

around the hatchway and below the hatchway on the inside of the boat. These holes

indicated that the wood was saturated with water. Specifically, Dierlam reported that out

of ten holes drilled, six to eight revealed wet wood one-half inch to one inch deep. Dennis

testified that there was an air conditioner unit on the top of the deck that was leaking down


                                              5
into the boat, causing water damage. Additionally, the railing on the front part of the boat

was bending.

       Further, in January, Stuart reported to Dennis that a hatch had blown off the top of

the boat while it was sitting in the dock. Dennis testified that the hatches on the top of the

boat have steel hinges with screws spaced an inch apart. Dennis stated that hatches do

not usually blow off while the boat is docked—he took this as an indication that the boat’s

structure was damaged. Additionally, a satellite dish on the front part of the boat had

blown off while the boat was docked. Dennis was concerned that the whole left side of the

boat was damaged.

       Dennis spoke with Dierlam on the phone on multiple occasions but had trouble

getting Dierlam to submit a report in writing. After Dennis finally received Dierlam’s written

reports, Dennis noticed that the reports minimized the damage that Dierlam had previously

reported over the phone.

       The first report was dated March 29, 2004. It notes that “[t]he entry hatch into the

port ama (or outrigger hull) has been wetted over an extended period of time allowing wood

rot to occur into the area below the hatch and will require some repair to return the vessel

to proper condition.” Dierlam estimated that repairs for this damage would cost $750,

although he estimated the total repairs needed to the boat to be $16,850. In contrast, at

the bottom of the report, Dierlam states “[t]here is no apparent structural damage to the

vessel as seen afloat.”

       On April 8, 2004, Dierlam drafted a second report. This report stated that “[a] small

wood box approximately 2' below the hatchway was observed to be dry but slightly rotten

from apparent freshwater wetted over a time period dripping down.” It concluded, however,


                                              6
that the boat was structurally sound. Curiously, the last sentence of the report reads, “This

survey is submitted without prejudice as to any party.” On April 8, 2004, Dierlam also

issued a third report. This report was essentially identical to the first report, except that the

estimated cost of total repairs was reduced to $8,600.1

       After finally receiving Dierlam’s reports and Stuart’s report that parts of the boat

were blowing off while it was docked, Dennis requested that Moench return his $15,000

payment. Dennis initially spoke to Stuart about getting his money back. Stuart told Dennis

that he would pass along the information to Moench. After Dennis received no response,

he began writing letters to Moench.

       In a letter dated April 5, 2004, Dennis requested that Moench return his money.

Dennis referenced his concerns about the boat’s wet wood and Dierlam’s report. He wrote:

       We finally have word on the survey we requested (which the owner still has
       not approved) and it reveals ‘wet wood’ more than one half the thickness of
       the wood, with water running out of the bulkhead below the hatch on the port
       ama. Manning reports that out of ten holes drilled, six to eight reveal ‘wet
       wood’ one half inch to one inch deep. This is considered structural damage,
       and releases us from our agreement to purchase Fat Duck on our talking
       paper.

Dennis received no response to this letter.

       Dennis wrote again on April 11, 2004. He attached a portion of Dierlam’s survey to

the letter. He again referred to the wet wood Dierlam discovered. He asked for a full

refund of his $15,000 payment. Dennis noted that this was his second written request for

a refund and further wrote, “We would like to keep this amicable.” Again, Moench did not

respond or return the Notzon’s money.

       Dennis wrote his third letter on April 15, 2004. In this letter, he again noted that he

       1
           On May 13, 2004, Dierlam issued a fourth report that is essentially identical to the second report.



                                                      7
had requested a refund several times without any response. He threatened legal action

but stated that he would like to avoid litigation if possible.

       Moench finally responded with a letter asserting that the Notzons were in default

under the contract and that ownership of the boat had reverted back to him. Specifically,

Moench asserted that the Notzons had failed to pay the balloon payment of $20,000, which

he asserted was due on March 14, 2004, and thereafter failed to make the first of the 96

monthly payments under the agreement. Moench claimed that there was no evidence of

any structural damage. He noted that he had not received the entire survey conducted by

Dierlam. Moench asserted that the wet wood discovered by the survey was merely a

cosmetic flaw and not a structural integrity problem.

       On June 1, 2004, Moench sent an e-mail to Dennis. It stated:

               To start with you are incorrect in your assumption that structural
       damage was found—you have never furnished the full survey and have
       promoted one fabrication after another and the truth of the matter is you
       have past deadline after deadline with the only thing to support your case is
       half truths and distortions. For once in your life be a man and quit telling half
       truths—when you let us see all of the survey and have it confirmed by the
       surveyor and the statement no structural damage is present is not there I will
       be more convinced you are honest.

       The Notzons filed suit against Moench, Stuart, and Coleman seeking a return of

their $15,000 payment, alleging negligence, breach of contract, conversion, money had

and received, unjust enrichment, fraud, negligent misrepresentation, and violations of the

DTPA. Moench answered and counterclaimed for breach of contract.

       The case was tried to a jury, which found that Moench breached his contract with

the Notzons and that the Notzons had not breached the contract. The jury also found for

the Notzons and against Moench on their claims for unjust enrichment, money had and



                                               8
received, fraud, negligent misrepresentation, DTPA “laundry list” violations,2 and

unconscionable conduct. It found that Moench’s conduct was knowing and intentional. It

awarded $18,000 for “lost monies;” $2,500 in incidental damages; $20,000 for mental

anguish; attorney’s fees of $16,242.50 for trial of the case and an additional $10,000 for

a successful appeal; and $5,000 in exemplary damages. The jury did not find Stuart or

Coleman liable on any question submitted. The trial court rendered judgment awarding the

Notzons all the damages found by the jury plus pre-judgment interest and post-judgment

interest.

                                   II. UNCONSCIONABLE COURSE OF ACTION

        In his first issue, Moench asserts generally that the evidence is insufficient to

support the jury’s verdict. He attacks every theory of recovery found by the jury. When a

plaintiff receives favorable findings on two or more theories of recovery, the plaintiff is

entitled to judgment on the theory which affords the greatest recovery. Boyce Ironworks,

Inc. v. S.W. Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988). In this case, the trial court

awarded actual damages, mental anguish damages, exemplary damages, and attorney’s

fees, thus indicating that the Notzons’ recovery was for DTPA violations.3 Accordingly, we

will first address Moench’s issues challenging the Notzons’ recovery under the DTPA. TEX .

BUS. & COMM . CODE ANN . §§ 17.41-.63 (Vernon 2002 & Supp. 2007); Main Place Custom

Homes, Inc. v. Honaker, 192 S.W.3d 604, 613 (Tex. App.–Fort Worth 2006, pet. denied)

(reviewing DTPA findings first because they afforded greatest recovery).


        2
        T   EX .   B U S . & C O M M . C OD E A N N . § 17.46 (Vernon Supp. 2007).

        3
          Mental anguish and exem plary dam ages are not available for unjust enrichm ent, m oney had and
received, or breach of contract claim s. See Main Place Custom Homes, Inc. v. Honaker, 192 S.W .3d 604,
613 (Tex. App.–Fort W orth 2006, pet. denied) (no m ental anguish dam ages for breach of contract).
Additionally, attorney’s fees are not available for a com m on-law fraud claim . Id. at 613.

                                                              9
        Moench asserts that the evidence is legally and factually insufficient to support a

finding that he engaged in unconscionable conduct. See TEX . BUS. & COMM . CODE ANN .

§ 17.50(a)(3) (“A consumer may maintain an action where any of the following constitute

a producing cause of economic damages or damages for mental anguish: . . . any

unconscionable action or course of action by any person . . . .”). Moench’s sole argument

is that because he was entitled to keep the $15,000 “deposit” pursuant to the terms of the

contract, the evidence conclusively establishes that he did not engage in unconscionable

conduct. He argues that the Notzons were required to have a survey conducted within 120

days after the talking paper was signed, or March 14, 2004. Because the Notzons did not

comply with this condition and did not make further payments under the talking paper, he

claims he was entitled to keep the $15,000. He cites Texas Beef & Cattle Co. v. Green for

the proposition that “[w]hatever a man has a legal right to do, he may do with

impunity . . . .” 921 S.W.2d 203, 211 (Tex. 1996).4 Moench’s argument misses the mark.

        The language quoted above from Texas Beef & Cattle Co. was contained in the

court’s discussion of a legal justification defense to a claim for tortious interference with a

contract. Tex. Beef & Cattle Co., 921 S.W.2d at 211. In that case, the plaintiff sued for

interference with a contract, and the jury found that the defendant was legally justified to

interfere with the contract because the defendant was acting within his legal rights. Id. at

210. However, the trial court disregarded the jury’s justification finding because it found

that the defendant acted with ill will, spite, and actual malice. Id. The Texas Supreme

Court rejected this formulation of the justification defense to a tortious interference claim:


        4
           W e note that this is the only case cited by Moench as a justification for his actions. W hile it is
tem pting to dism iss Moench’s issue as inadequately briefed, T EX . R. A PP . P. 38.1(h), we prefer to address the
m erits.

                                                       10
       As we noted in Sakowitz, Inc. v. Steck, the justification defense is based on
       either the exercise of (1) one's own legal rights or (2) a good-faith claim to a
       colorable legal right, even though that claim ultimately proves to be mistaken.
       Sakowitz, Inc. v. Steck, 669 S.W.2d 105, 107 (Tex.1984), overruled on other
       grounds by Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).
       Thus, if the trial court finds as a matter of law that the defendant had a legal
       right to interfere with a contract, then the defendant has conclusively
       established the justification defense, and the motivation behind assertion of
       that right is irrelevant. Improper motives cannot transform lawful actions into
       actionable torts. “‘Whatever a man has a legal right to do, he may do with
       impunity, regardless of motive, and if in exercising his legal right in a legal
       way damage results to another, no cause of action arises against him
       because of a bad motive in exercising the right.’” Montgomery v. Phillips
       Petroleum Co., 49 S.W.2d 967, 972 (Tex. Civ. App.-Amarillo 1932, writ ref’d).

Tex. Beef & Cattle Co., 921 S.W.2d at 211.

       In contrast, with respect to a DTPA claim based on unconscionable conduct, Texas

courts have consistently held that the transaction at issue must be viewed as a whole.

Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985); Cooper v. Lyon Fin. Servs., Inc.,

65 S.W.3d 197, 207 (Tex. App.–Houston [14th Dist.] 2001, no pet.). As a general

proposition, Texas courts have not adopted a “legal justification” defense to a DTPA action

based on unconscionable conduct, as has been done with a tortious interference with a

contract claim. It may be that in some cases, a defendant’s conduct is not unconscionable

where the evidence shows that the defendant merely acted pursuant to its rights under a

contract with the plaintiff and nothing more. See, e.g., Scitern v. Birdsong Corp., No. 11-

99-0236-CV, 2000 WL 34235177, at *4 (Tex. App.–Eastland 2000, no pet.) (not designated

for publication) (finding no evidence that defendant acted unconscionably where only

evidence demonstrated that defendant offset plaintiff’s debt pursuant to terms of a

promissory note). Additionally, evidence of unconscionable conduct must amount to more

than a “mere breach of contract” to support DTPA liability. Mays v. Pierce, 203 S.W.3d

564, 572 (Tex. App.–Houston [14th Dist.] 2006, pet. denied). However, it is also true that

                                             11
acts may be unconscionable even though performed pursuant to a contract, particularly

when the record contains additional evidence of representations regarding the contract’s

interpretation or other acts that support the finding of unconscionability. See Weiler v.

United Sav. Ass’n of Tex., FSB, 887 S.W.2d 155, 159-60 (Tex. App.–Texarkana 1994, writ

denied).

       For example, in Weiler, the plaintiffs alleged that the defendant bank engaged in

unconscionable conduct by foreclosing on their home after improperly deducting amounts

from an escrow account intended to pay taxes on the home. Id. at 157. Specifically, the

plaintiffs argued that the bank withdrew money from the escrow account to pay the bank’s

attorney’s fees after a bankruptcy court altered the payments due by the plaintiffs to the

bank on their mortgage. Id. Then, due to the deficiency in the escrow account caused by

the improper withdrawal, the bank sent conflicting demands for additional amounts it

believed were due under the note and under the bank’s construction of the bankruptcy

court’s order. Id. The trial court granted summary judgment to the bank on the DTPA

claim, but the court of appeals reversed. Id.

       The court of appeals held that although a proper foreclosure in compliance with the

law will not support a DTPA cause of action, the plaintiff’s evidence that the bank

improperly withdrew money from the escrow account to pay its attorney’s fees and then

sent conflicting demands for payments constituted some evidence that the bank “tried to

take advantage of the Wielers' lack of knowledge, ability, and experience to a grossly unfair

degree.” Id. at 160. This holding came in the face of the bank’s arguments that their

conduct was justified by the plaintiff’s mortgage and by the bankruptcy court’s order. Id.

Thus, even though a party believes that it is acting pursuant to a contract, its conduct may


                                             12
still constitute an unconscionable course of action. See id.; see also Commercial Escrow

Co. v. Rockport Rebel, Inc., 778 S.W.2d 532, 538 (Tex. App.–Corpus Christi 1989, writ

denied) (holding escrow company engaged in unconscionable conduct by incorrectly

identifying party entitled to escrow funds in its documentation, erroneously releasing

escrow funds to unauthorized party, and later representing that it still retained the funds

pursuant to escrow agreement); Sun Power, Inc. v. Adams, 751 S.W.2d 689, 695 (Tex.

App.–Fort Worth 1988, no writ) (holding that owner of office machines company engaged

in unconscionable course of conduct by refusing to refund customer’s money or accept

return of broken cash register).

       We believe that, viewing the transaction as a whole, the evidence in this case

supports a finding of unconscionable conduct, despite Moench’s claim that he was merely

acting pursuant to the talking paper. The evidence demonstrates that Dennis paid $15,000

to hold the boat until the sale was completed and that the entire sale was conditioned on

a survey that demonstrated the boat was structurally sound. Moench, through his agents,

represented that the $15,000 would be kept in a safe and returned if the sale was not

completed. Dennis also testified that he told Moench, Stuart, and Coleman that, due to his

disability, he could not perform structural repairs on the boat beyond simple sanding and

painting. Despite having this information, Moench claimed that water damage, which

would require substantial work to remedy, did not constitute a sufficient reason to withdraw

from purchasing the boat.

       Although Moench contends that Dennis only had 120 days to have the survey

performed, the talking paper does not impose any such condition. Rather, the 120 day

limitation appears to apply only to the Notzons’ first payment, which was to be made after


                                            13
the Notzons’ home was sold. Nevertheless, even assuming that the 120 day deadline

applied to obtaining a survey, Dennis testified that the surveyor that Stuart recommended,

Dierlam, was being influenced by Moench.

       Dennis testified that he hired Dierlam in February and that Dierlam promised a

report within a short time after gaining access to the boat. But Dierlam was not given

access to the boat initially and was made to promise that any survey would be given to

Moench before being presented to the Notzons. According to the reports, Dierlam did not

conduct his survey until after March 14, 2004, which Moench contends was the deadline

to complete the survey. Furthermore, Dennis testified that he received conflicting reports

from Dierlam. Dierlam reported structural problems with the boat to Dennis over the

phone, but his written reports were significantly toned down. From this evidence, the jury

could have reasonably believed that Moench interfered with the survey so that the Notzons

could not recover their $15,000 deposit.

       Once Dennis began requesting his money back, he initially received no response.

Once a response was received, it was hostile and demeaning. Moench was aware of the

Notzons’ financial position and their need for the deposit. Moench was also aware that the

Notzons live in Arizona and would be required to travel to resolve the dispute. Under these

circumstances, we believe the evidence was legally and factually sufficient to support the

jury’s finding that Moench took advantage of the Notzons’ lack of knowledge, ability,

experience, or capacity to a grossly unfair degree. See Weiler, 887 S.W.2d at 159-60;

Griffith v. Porter, 817 S.W.2d 131, 136 (Tex. App.–Tyler 1991, no writ) (finding

unconscionability where defendant retained overpayment for months despite repeated

requests for refund). Accordingly, we overrule Moench’s first issue.


                                            14
                                       III. MISTRIAL

       By his second issue, Moench argues that the trial court erred by not granting a

mistrial. At one point during Stuart’s testimony, Stuart engaged in a lengthy statement

about the boat’s seaworthiness. The Notzons’ attorneys then asked if Stuart was under

the influence of drugs and commented that Stuart’s speech was slurred. Moench’s

attorney did not immediately object. After the Notzons’ attorney finished questioning

Stuart, Moench’s attorney asked for a mistrial outside the jury’s presence. He argued that

Stuart’s appearance was irregular and would cause harm to Moench and Coleman.

Moench’s attorney suggested that Stuart was intoxicated. The trial court denied the motion

for mistrial.

       Thereafter, Moench’s attorney asked that the record reflect that Stuart had to be

“revived from a state of unconsciousness while sitting at the table with defense[.] He was

either asleep or under the influence of drugs and unconscious.” The trial judge stated,

“Well, I will agree that he was asleep and he had to be woken up. I don’t know that it was

to the degree of unconsciousness.” The trial court then reiterated that the bailiff woke

Stuart up in front of the jury. Moench’s attorney also asked that the record reflect that the

defendants were all seated at the same table in front of the jury. The trial court noted,

however, that Stuart had his own attorney.

       Moench argues that Stuart’s connection to the case was as Moench’s agent, and

because Stuart was seated at the same table with Moench at trial, Stuart’s conduct

reflected on Moench. Thus, he argues, Stuart’s trial demeanor was “outrageous and

prejudicial” to Moench and “influenced the jury verdict” in this case.




                                             15
       The record demonstrates that when the Notzons’ counsel asked Stuart if he was

intoxicated, Moench’s counsel did not immediately object, request an instruction, or move

for a mistrial. See TEX . R. APP. P. 33.1(a) (requiring a timely complaint). Rather, he waited

until a break in the evidence to raise the issue for the first time. Moench’s counsel then

asked the trial court to acknowledge on the record that at some point earlier in the trial, the

court’s bailiff was required to wake Stuart up. Moench’s counsel did not object at that time

either, but rather, he waited until later in the trial to raise the issue. Moench has not

explained in his brief why he could not have timely raised the issue in the trial court or why

an instruction regarding Stuart’s conduct could not have cured any prejudice Moench

perceived by being seated with Stuart at counsel’s table. See Dow Chem. Co. v. Francis,

46 S.W.3d 237, 241 (Tex. 2001) (rejecting appellant’s argument regarding improper

comments by trial court because appellant failed to explain how comments were incurable

or excuse his failure to preserve error). Accordingly, we hold that Moench waived his

second issue.

                                      IV. CONCLUSION

       Because we find that the evidence was legally and factually sufficient to support the

jury’s finding of unconscionable conduct and that Moench waived any error related to

Stuart’s conduct at trial, we affirm the trial court’s judgment.



                                                     _____________________________
                                                     GINA M. BENAVIDES,
                                                     Justice

Memorandum Opinion delivered and
filed this the 13th day of March, 2008.



                                              16
