REMITTITUR SUGGESTED, MODIFY and AFFIRM; Opinion Filed December 16, 2015.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-01137-CV

          BISHOP ABBEY HOMES, LTD. AND NATHAN HALSEY, Appellants
                                    V.
                     BRYON AND PAIGE HALE, Appellees

                      On Appeal from the 439th Judicial District Court
                                 Rockwall County, Texas
                            Trial Court Cause No. 1-11-1207

                             MEMORANDUM OPINION
                        Before Justices Lang-Miers, Brown, and Schenck
                                 Opinion by Justice Lang-Miers
       Appellees Bryon and Paige Hale sued appellants Bishop Abbey Homes, Ltd. (BAH) and

Nathan Halsey for fraud, deceptive trade practices, negligence, and other causes of action

relating to the construction of their “dream home” in Rockwall. After a jury trial, the trial court

rendered judgment for the Hales on the jury’s verdict.

       In eight issues, BAH and Halsey complain that (1) the Hales’ suit was barred by

limitations, (2) the economic loss doctrine bars the Hales’ damages, (3) judgment against Halsey

individually was error, (4) the Hales’ counsel made improper closing arguments, (5) there was

legally and factually insufficient evidence to support the jury’s findings of fraud, (6) the damages

awarded in the judgment were excessive, (7) there was legally and factually insufficient evidence

to support the jury’s findings of deceptive trade practices, and (8) the Hales’ causes of action for

negligence and breach of warranty fail as a matter of law. We suggest a remittitur of the mental
anguish, additional, and exemplary damages awarded in the judgment. In all other respects, we

affirm the trial court’s judgment.      Because all issues are settled in law, we issue this

memorandum opinion. TEX. R. APP. P. 47.4.

                                        I. BACKGROUND

       The Hales purchased a lot in Rockwall in 2005 and had plans drawn up for their “dream

home.” In 2006, they met with Halsey, then the owner of BAH, as a potential builder. Based on

Halsey’s representations as to BAH’s expertise, the quality of the home, price, and other material

terms, the parties signed a construction contract in early 2006. Halsey assigned David Moses, an

electrician, to be the on-site construction supervisor. The Hales did not know, and Halsey did

not reveal, that Moses had no experience or familiarity with soils testing and other basic

procedures for site preparation and construction and engineering of building foundations. The

Hales, having no expertise on the subject, relied on Halsey for advice regarding the proper

foundation to be used for their home.

       Construction was completed later in 2006 and the Hales moved in. Over the course of

the next four years, the Hales experienced substantial water leaks, large cracks in both the

exterior and the interior of the home, falling drywall, alarms sounding in the middle of the night,

doors failing to open or close, and other problems. They called on Halsey for assistance, and

were assured by Halsey’s experts, including AGTM Engineering, LLC, the designer of the

foundation, that the problems they were experiencing were not due to failure of the foundation of

their home. In late 2009, however, the Hales hired their own expert, who reported that the

foundation was the source of the problems with the home.

       Halsey made assurances to the Hales that he would take personal responsibility “for all

actions.” By early 2011, however, the Hales concluded that Halsey did not have any intention of




                                               –2–
taking responsibility or assuming any of the costs to repair the home. They brought suit against

Halsey, BAH, and AGTM in August 2011.

            The case proceeded to jury trial in 2014. The Hales and AGTM reached a settlement

after several days of testimony. The jury answered questions relating to the Hales’ deceptive

trade practices, negligence, and fraud claims against Halsey and BAH. The trial court rendered

judgment on the jury’s findings in favor of the Hales. This appeal followed.


                                                                  II. LIMITATIONS

            In their first issue, appellants argue that the Hales’ fraud and DTPA 1 causes of action are

barred by the applicable statutes of limitations.

                                                                     A. Facts

            The Hales signed a construction agreement with BAH on February 22, 2006. They filed

suit against appellants on August 31, 2011.

            On May 25, 2007, Bryon 2 sent an email to Halsey identifying “warranty repairs” needed

at the Hales’ home. In addition to listing three “major leaks” at a window, a door, and a ceiling,

Bryon stated that “[w]e have several other punch out items that need to be addressed as well such

as foundation concerns.” On June 27, 2007, Bryon sent an email to Halsey regarding a water

intrusion inspection that had been conducted at the home. The email included a request that

Halsey “take a look at the crack above the side garage door which appears to be caused by the

foundation.” Later the same day Halsey responded:

                Bryon-
                Just hung up the phone with Perry [identified at trial as a mortgage
                company lender]. If you want to get an attorney involved, that is your


    1
     Texas Deceptive Trade Practices–Consumer Protection Act, TEX. BUS. & COM. CODE ANN. §§ 17.41–17.63 (West 2011 & Supp. 2015)
(“DTPA”).
    2
        For clarity we refer to the Hales by their first names.



                                                                       –3–
          choice, just give me a heads up and I’ll pass my attorney’s contact info and
          we can let them handle it.

          However, I think it’s a bit premature for you to spend money on legal fees.
          Your inspection report may seem overwhelming, but it’s all issues that can
          easily be addressed, and we’ll stand by it 100% until everything is totally
          corrected and you guys are happy.

          Jerry and I will see you 1st thing Friday morning. We’ll discuss the action
          plan, and get you comfortable with how we proceed here.

       In response to the Hales’ concerns, Halsey engaged Ronald E. Davidson, P.E. to inspect

the foundation at the Hales’ home. Davidson issued a “General Structural Initial Foundation

Inspection” report dated August 31, 2007, concluding that the home had only “minor movement

along the perimeters and interior” that “is within the normal construction standards.” Davidson

also explained that “the drainage was not adequate.”        He concluded that “[w]ith proper

maintenance foundation movements can be held to a minimum.” Bryon testified at trial:

          Q: In 2007 . . . there’s an engineer that comes out and says the foundation
             is normal. Do you see that?

          A. Yes, sir.

          Q. Did you talk to Mr. Halsey about it?

          A. Yeah. I was – I was glad to know that it wasn’t a foundation issue.

          Q. Mr. Halsey told you it’s normal?

          A. Yes, sir.

          Q. And this engineer told you it was normal?

          A. Yes, sir.

          Q. Did you believe it?

          A. Absolutely.

       After this reassurance that the foundation was “normal,” the Hales did not raise any

further concerns with it until 2009. In an email dated May 10, 2009, Bryon notified Halsey that

                                              –4–
“I believe we have some serious foundation issues.” In response, Halsey requested that AGTM

conduct an investigation of the foundation. In a report dated June 29, 2009, AGTM engineer Ian

G. Ray explained the results of his investigation, concluding “[i]n summary, the measured

movement does not reflect a failure in the foundation.” Halsey sent the report to the Hales on

July 9, 2009, explaining that “I ordered this report from AGTM Engineering so they could

determine what is going on with the foundation. At first glance, I believe they are suggesting

there is a drainage issue.” On July 23, 2009, Bryon responded by e-mail to Halsey expressing

“huge relief to know that the foundation is still in the specified tolerance.”

        Later in 2009, however, the Hales sought independent advice regarding the foundation.

In a report dated November 6, 2009, Prather Engineering Consultants reported to the Hales that

the foundation of the home, not drainage, was causing the problems experienced at the home.

Harold Prather, a professional engineer, testified at trial that after conducting his investigation,

he recommended a chemical injection to remedy the problem. The injections were undertaken in

early 2010 but were not successful; Prather testified that “[t]he house continued to move and

that’s where we are today.” Bryon testified that he obtained Halsey’s approval before the

injections were undertaken.

        In January 2010, Halsey emailed the Hales with an “action plan for the Hale house.” He

recommended that “Homeowner and Builder appear on one team, with Builder (Bishop Abbey)

taking the lead on approaching engineer with the facts.” He discussed “shar[ing] the hard costs

that were (and are) required to fix the issue with a permanent solution.” In July 2010, Halsey

stated in an email to Bryon that “I personally take responsibilities for all actions,” but explaining

that “in the short term, I’m not sure how I am going to assist financially” because he was not

capable of “writing a check today” although “not [because] I don’t have a desire to assist where I

feel there is responsibility.”

                                                 –5–
       In January 2011, Bryon emailed Halsey that the engineers “believe the injections are

beginning to work and the foundation is showing signs of stabilizing.” He explained that the

engineers recommended not undertaking any cosmetic repairs “until they return in May for final

measurement.” Bryon asked, “[c]an I count on you financially in May 2011 for repairs and the

injection invoice?” Halsey responded by inquiring “[w]hat would you estimate the repairs to be

and the injection invoice, and beginning in May but spread over what period[?] I guess I need a

clear picture of what the cash flow expectations would be from me.” At trial, Bryon testified that

in 2011, he received “more promises” from Halsey, but:

           Q. So ultimately those promises, you couldn’t live with them anymore; is
              that right?

           A. Yes, sir.

       Bryon testified that Halsey “led me down the primrose path that I’m going to be taken

care of 100 percent to my satisfaction, and that Mr. Halsey said that he is 100 percent responsible

and strung us along for eight years until we finally had to [file suit] . . . just to try and get some

relief and this fixed.” He testified that he did not know “until we got in this lawsuit” that the

house did not comply with the requirements of the soils and engineering reports. He believed

that the soil and the pad had been properly prepared until he learned to the contrary in the course

of the litigation. Bryon also testified that he paid for a ten-year structural warranty and was not

aware that appellants did not provide it until after suit had been filed.

       The Hales filed suit in August, 2011. In January, 2012, the Hales retained a structural

engineer to evaluate their home. Later in 2012, the Hales obtained engineering reports revealing

to them for the first time that none of the soil preparation recommended in the original

geotechnical report had been undertaken or completed when their home was built.                 Brian

Eubanks, a structural engineer, testified that the Hales’ home had “unreasonable distress”

resulting from flaws in the foundation design. Eubanks explained that the elevation of the
                                                 –6–
foundation was not high enough to allow drainage, the slab was not raised, and the building pad

was “set too low.”

       Eubanks compared the original 2006 soils report, prepared prior to construction of the

Hales’ home, with the 2012 soils report prepared in the course of the litigation. He explained

that the soils report is “critical” to a design engineer, explaining, “you cannot properly design a

foundation on expansive soils without knowing what the expansive soils are.” His 2012 testing

revealed that the recommendations in the 2006 soils report were not followed. Eubanks testified

he would give the builder “a failing grade” for both pad preparation and elevation of the

foundation.

                                    B. Standards of Review

       Appellants contend (1) the trial court should have granted their motion for directed

verdict and motion for judgment notwithstanding the verdict (JNOV) because the Hales’ claims

for fraud and deceptive trade practices were barred by limitations, and (2) the evidence is legally

and factually insufficient to support the jury’s findings of the dates on which the Hales

discovered appellants’ wrongful conduct.

       We review a trial court’s decision to grant or deny a motion for directed verdict and a

motion for JNOV under the legal sufficiency standard of review. See City of Keller v. Wilson,

168 S.W.3d 802, 823 (Tex. 2005) (test for legal sufficiency is same for directed verdict, JNOV,

and appellate no-evidence review). We credit evidence favoring the jury verdict if reasonable

jurors could and disregard contrary evidence unless reasonable jurors could not. Tanner v.

Nationwide Mut. Fire Ins. Co., 289 S.W.3d 828, 830 (Tex. 2009). We will uphold the jury’s

finding if more than a scintilla of competent evidence supports it. Id.

       Appellants bore the initial burden of pleading, proving, and securing findings to sustain

their affirmative defense of limitations. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517

                                                –7–
(Tex. 1988). A legal sufficiency evidentiary challenge on an issue on which an appellant bears

the burden of proof requires that the appellant demonstrate the evidence conclusively established

all vital facts to support the issue. Lochinvar Corp. v. Meyers, 930 S.W.2d 182, 188 (Tex.

App.—Dallas 1996, no writ). Evidence is conclusive “only if reasonable people could not differ

in their conclusions, a matter that depends on the facts of each case.” City of Keller, 168 S.W.3d

at 816.

          To review a challenge to the factual sufficiency of the evidence, we must weigh all of the

evidence in the record. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam). We view

the evidence in a neutral light and set aside the finding only if it is so contrary to the

overwhelming weight of the evidence that the finding is clearly wrong and unjust. Cain v. Bain,

709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

                                        C. Applicable Law

          The statute of limitations for a DTPA claim is two years. TEX. BUS. & COM. CODE ANN.

§ 17.565 (West 2011). The period begins to run within two years after the date on which the

false, misleading, or deceptive act or practice occurred or “within two years after the consumer

discovered or in the exercise of reasonable diligence should have discovered the occurrence of

the false, misleading, or deceptive act or practice.” Id.

          The statute of limitations for a fraud claim is four years. Anderson v. Cocheu, 176

S.W.3d 685, 689 (Tex. App.—Dallas 2005, pet. denied). In an action for fraud, limitations

begins to run when the fraud is perpetrated, or if the fraud is concealed, from the time it is

discovered or could have been discovered by the exercise of reasonable diligence. Woods, 769

S.W.2d at 517. Although appellants bore the initial burden of proof on their limitations defense,

the Hales bore the burden of proving and obtaining favorable findings on fraudulent concealment

and the discovery rule. Id. at 518.

                                                 –8–
       A cause of action accrues when a wrongful act causes some legal injury, even if the fact

of injury is not discovered until later, and even if all resulting damages have not yet occurred.

See Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997) (quoting S.V. v. R.V., 933 S.W.2d 1,

4 (Tex. 1996)). A “legal injury” is “an injury giving cause of action by reason of its being an

invasion of a plaintiff’s right . . . be the damage however slight.” Murphy, 964 S.W.2d at 270

(quoting Houston Water-Works Co. v. Kennedy, 8 S.W. 36, 37–38 (Tex. 1888)). The discovery

rule is an exception to the legal injury rule. Id. Under the discovery rule, an action does not

accrue until the plaintiff knew or in the exercise of reasonable diligence should have known of

the wrongful act and resulting injury. Id. (citing S.V., 933 S.W.2d at 4). The discovery rule

applies where, as here, the plaintiffs have alleged fraud or fraudulent concealment. Id.

                                           D. Analysis

       Appellants contend the Hales knew there were foundation problems with the home by

May 25, 2007 but did not file suit until August 31, 2011. The Hales counter that because their

claims are for fraud, their knowledge of foundation problems is not the determinative issue;

rather, “the issue before the jury was when the Hales should have discovered that Halsey

committed fraud and DTPA violations.” The Hales contend that Halsey continued to make false

representations through early 2011, and they “relied upon those representations in not bringing

suit.” In the alternative the Hales argue the statute of limitations did not begin to run until

November 2009, when they hired their own expert to inspect the property.

       We conclude the Hales’ suit was not barred by limitations. The evidence offered at trial

and summarized above showed that each time the Hales raised a concern about the foundation,

they were assured by one of appellants’ experts that the foundation was not the cause of the

problems the Hales observed. In 2007, Davidson reported the foundation was normal. In 2009,

Ray reported that “the measured movement does not reflect a failure in the foundation.” It was

                                               –9–
only in November 2009, when the Hales retained their own expert, that they were told the

foundation was causing the problems experienced at the home. They brought suit less than two

years later.

        In contrast, in the cases on which appellants rely, the homeowners had not been assured,

twice, by the builders’ experts that their foundations were normal. See J.M. Krupar Constr. Co.

v. Rosenberg, 95 S.W.3d 322, 326–27, 331 (Tex. App.—Houston [1st Dist.] 2002, no pet.)

(limitations began to run at time homeowners received their own experts’ reports showing that

foundation had failed); Dean v. Frank W. Neal & Assocs., 166 S.W.3d 352, 356–57 (Tex.

App.—Fort Worth 2005, no pet.) (limitations began to run when experts met to discuss use of

chemical injections to remedy foundation problems, and homeowners were aware of meeting and

its purpose). And in Dean, although the plaintiffs offered evidence they were told the “minor”

cracks they observed were “normal cosmetic cracks that would occur with settlement,” there was

“no indication as to who assured them so,” id. at 356, in contrast to the two expert reports

supplied to the Hales by appellants in this case.

        The Hales rely on Carpenter v. Holmes Builders, Inc., No. 11-02-00132-CV, 2004 WL

306130, at *5 (Tex. App.—Eastland Feb. 19, 2004, pet. denied) (mem. op. and order), in support

of their argument that limitations did not begin to run until November 2009. In Carpenter, as

here, the Carpenters received expert opinions from two engineers and their builder that

foundation movement at their home was within acceptable limits. Id. at *3–4. More than a year

later, a workman with experience in foundation repair recommended that the Carpenters hire an

expert to check on cracks he observed at the home. Id. at *4. The Carpenters hired an engineer

who reported in February 1998 that the foundation was defective. Id. The court concluded there

was some evidence to support the jury’s finding that the Carpenters’ DTPA claim did not accrue




                                               –10–
until February 1998. Id. at *5. Similarly, we conclude that there was some evidence here to

support a finding that the Hales’ claims did not accrue until November 2009. 3

           Further, there is evidence that Halsey concealed material facts from the Hales. There was

evidence that Halsey knew, but the Hales did not, that (1) Halsey’s site supervisor was an

electrician who knew nothing of the basic engineering of a home foundation; (2) no one with the

necessary expertise was ensuring that the foundation of the house was properly constructed;

(3) Halsey did not intend to provide items the Hales paid for under the contract such as

compaction testing, final grading, or a structural warranty; and (4) Halsey’s assurances that he

would bear personal responsibility for “all actions” were false. Had the Hales known these facts,

they might have sought recourse on an earlier date. Instead, there was evidence from which a

jury could conclude that the Hales exercised reasonable diligence by bringing problems to

Halsey’s attention and then relying on the advice they received from Halsey and his experts.

           We conclude the Hales’ claims were not barred by limitations. We overrule appellants’

first issue.

                                               III. Sufficiency of the Evidence

           The trial court rendered judgment against Halsey on the jury’s findings of fraud, and

against BAH on the jury’s findings of violations of the DTPA. In their fifth issue, appellants

challenge the legal and factual sufficiency of the evidence to support the jury’s fraud findings

against Halsey. In their seventh issue, appellants challenge the legal and factual sufficiency of




     3
         Appellants also urge that no evidence supports the jury’s findings of specific dates on which the Hales “in the exercise of reasonable
diligence” should have discovered (1) appellants’ failure to comply with a warranty (March 31, 2011), and (2) appellants’ false, misleading,
deceptive, and unconscionable acts or practices (July 9, 2012). Bryon and Paige both testified that Halsey was making reassurances in January
2011 that he would take responsibility, but in the first part of 2011, the Hales concluded that Halsey was just “stringing them along.” Soils
testing performed in the summer of 2012 revealed, for the first time, the lack of site preparation. Thus, there was some evidence to support the
jury’s findings of March 31, 2011 and July 9, 2012 as the applicable dates. And in any event, as we have discussed, the Hales brought suit within
two years of the date their causes of action accrued.




                                                                    –11–
the evidence to support the jury’s findings that BAH violated the DTPA. Appellants challenge

the sufficiency of the evidence on each element of these causes of action.

                                     A. Standard of review

       When a party challenges the legal sufficiency of the evidence, we consider the evidence

in the light most favorable to the finding and indulge every reasonable inference that supports it.

City of Keller, 168 S.W.3d at 822. We credit favorable evidence if a reasonable jury could and

disregard contrary evidence unless a reasonable jury could not. Id. at 827. If the evidence would

permit reasonable and fair-minded people to reach the finding under review, the legal sufficiency

challenge fails. Id. When a party challenges the factual sufficiency of the evidence, we consider

all of the evidence and will set aside the finding only if the evidence supporting it is so weak or

so against the overwhelming weight of the evidence that the finding is clearly wrong and

manifestly unjust. Id. In conducting our review, we are mindful that the jury is the sole judge of

the credibility of the witnesses and the weight to be given their testimony. Id. at 819; Defterios

v. Dallas Bayou Bend, Ltd., 350 S.W.3d 659, 664 (Tex. App.—Dallas 2011, pet. denied).

                                B. Fraud claim against Halsey

       To establish their fraud claim against Halsey, the Hales were required to prove (1) Halsey

made a material misrepresentation that was false; (2) Halsey knew the representation was false

when made or made it recklessly as a positive assertion without any knowledge of its truth;

(3) Halsey intended the Hales to act upon the representation; and (4) the Hales actually and

justifiably relied on the misrepresentation and suffered injury. See Esty v. Beal Bank S.S.B., 298

S.W.3d 280, 303 (Tex. App.—Dallas 2009, no pet.) (citing Ernst & Young, L.L.P. v. Pac. Mut.

Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)). A promise of future performance constitutes an

actionable misrepresentation if the promise was made with no intention of performing at the time




                                              –12–
it was made. Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d

41, 47 (Tex. 1998).

       The Hales contended and offered evidence that Halsey made misrepresentations about

(1) his experience as a home builder, (2) the quality of the home he would build, (3) the work to

be undertaken, (4) the site superintendent’s qualifications and experience, (5) a ten-year

structural warranty, (6) the cost of construction and the price of the home, (7) site preparation,

(8) grading and drainage, (9) requirements for the foundation, and (10) his intention to take

responsibility for repair to the Hales’ home. Halsey counters that these complaints are only

breaches of contract, not fraud, and in any event would be the fault of BAH or third parties to

whom BAH delegated responsibility, not Halsey individually. We disagree.

       Halsey’s own trial testimony supported the Hales’ allegations.         As to expertise in

constructing homes, Halsey testified:

               Q.     So you are a builder?

               A.     I was a builder.

               Q.     Are—were you an expert in home building?

               A.     I wouldn’t consider myself an expert in building, no.

               Q.     Did you tell the Hales you were not an expert in home building
                      when they hired you and agreed to pay your fee for this job?

               A.     They didn’t ask me if I was an expert in home building.

       Halsey also told the Hales that Moses was qualified as the onsite superintendent:

               Q.     Now, why didn’t you tell the Hales you were not an expert?
                      They were hiring you to build their dream house. Why didn’t
                      you tell them that you weren’t that?

               A.     The Hales asked me what was our experience, a list of homes
                      that we built. What was the experience of our team,
                      construction managers, and I provided them that information.



                                              –13–
               Q.      You told them that the construction superintendent on their
                       home was or was not qualified to be a construction
                       superintendent on that home?

               A.      Told them he was qualified to be a construction superintendent
                       on their home.

But prior to his appointment as construction supervisor, Moses, an electrician, had worked for

Halsey “wiring homes.” At trial, Moses testified that the subsurface investigation—the “soils

report”—for the Hales’ lot did not “look in any way familiar” to him, and he had “no idea” that

“there was a report like this.” When asked whether he tried to comply with the soils report’s

recommendations in the construction of the Hales’ home, Moses testified, “Sir, I’ve never seen

that before.” He testified:

               Q.      So–does it surprise you to learn that this soil report was directed
                       to Bishop Abbey and that the company had this report and the
                       company was informed of what to do with the pad site before
                       you did your work out there? Does that surprise you to learn
                       that now?

               A.      Yeah. I’m kind of surprised.

               Q.      Why?

               A.      Honestly, I didn’t know. . . .
               ...

               Q.      Without any doubt, these instructions were not followed on
                       the—on the Hale house we’re here about; is that accurate?

               A.      I would say so. I was in charge of that.

       Halsey testified he had not “seen conclusive evidence that the pad site is not proper,”

even though he conceded that the recommendations in the soils report were not followed and

could not explain why. Halsey testified that “per our [company] policy and procedure,” both

Moses and Andrew Mitchell, the excavation contractor, would have had a copy of the soils

report during site preparation. Both Moses and Mitchell, however, had already testified to the

contrary.
                                                –14–
          Additionally, although Halsey conceded that the budget he prepared and gave the Hales

included a “2/10” home warranty4, and that the Hales paid the designated amount for the

warranty, he testified that no home warranty was actually included:

                    Q.        Did [the Hales] pay you for [a 2/10 warranty]?

                    A.        I wouldn’t—when we get to that part, it’s a little bit difficult to
                              say that they paid for that.

                    Q.        So you are denying that these good folks paid for the 2/10
                              warranty. Did I get that right?

                    A.        What I’m saying is, the line item you referenced earlier includes
                              six items in that line item. Those six items, the cost of those six
                              items exceeds the dollar amounts in that field, so it’s tough for
                              me to say that they paid for the 2/10 warranty.

But Glenda Lopez, Halsey’s employee, testified that the Hales’ home should have been enrolled

in the warranty program. Lopez conceded the Hales had paid for the warranty, but testified that

Moses told her he would handle all the paperwork for the Hales’ warranty. Moses, however,

testified that he had never heard of a “2/10 warranty or structural warranty” and neither took any

action to enroll the Hales’ home in a warranty program nor told Lopez he would do so.

Appellants stipulated that no warranty was ever purchased for the Hales’ home.

          Halsey also denied representing to the Hales that they would pay a fixed price for

construction of their home. But the contract itself provided, “This is a Fixed Cost Contract

wherein the BUYER will pay the BUILDER a specific price for performing the work described

herein . . . .” And the Hales paid the fixed price. Nonetheless, Halsey testified that he prepared

and provided the contract and budget only as preliminary documentation for the Hales to use in

obtaining their mortgage loan. He testified that he did not intend for the contract and budget to

impose limits on the amounts the Hales would actually be required to pay:

     4
      A trial witness explained that a “2/10 warranty” is a “ten-year structural warranty on the house and a two-year on the HVAC and
mechanical.”



                                                               –15–
              Q.     But you had already contracted, sir. You had already contracted
                     for a fixed fee, right? And you had already put down in the
                     budget, Exhibit 26, what the foundation fee was.

              A.     Would you like an explanation?

              Q.     I’m asking you, is this true? Had you already, in January, put
                     down a foundation fee of $18,324, and then you said “assumes
                     post-tension. Extra for piers, cart and form system.” Right?

              A.     Bryon asked me to prepare a contract for his lender which was a
                     requirement to start the loan process. I told Bryon at that time
                     we do not have the soils report. It will take six to ten weeks to
                     complete. He was trying to be in his home by the summertime
                     and asked, as a favor, if I would prepare a contract for his lender
                     to start the loan application, which we obliged. And I told
                     Bryon the whole time, I cannot guarantee that a pier-and-beam
                     foundation would not be required.

                     Hence goes to my point, this was not a fixed fee contract
                     because Bryon knew at the time we didn’t know the foundation,
                     so we operated off of this line-item budget.

              Q.     Well, why did you sign it? Why did you sign the contract for
                     363,000?

              A.     It was a requirement for his lender, so Bryon asked me to sign
                     it.

       Halsey blamed the Hales for their home’s structural problems. He testified that “[t]he

ultimate decision was Bryon’s” whether to use a post-tension system rather than a pier and beam

foundation. Halsey testified that Bryon would have made the decision based on the advice of

Antonio Medina of AGTM, but conceded that Bryon and Medina had never spoken.                He

conceded that Bryon would not have had copies of the experts’ reports with the information

necessary to make the decision. Bryon testified that he relied on Halsey’s advice regarding the

proper type of foundation, having no expertise in the matter himself. He testified that Halsey

assured him “the post-tension would do the job.” The record includes an April 2006 email from

Bryon to Halsey asking, “Hi Nathan, What did you find out yesterday regarding the soil test? Do

you know what type of foundation will be required?” Halsey denied giving an opinion on the
                                             –16–
subject to the Hales, testifying that he “gave more of a reference”; he “wouldn’t call it an

opinion.”

       Halsey also testified that Bryon took on the responsibility for “drainage” at the site.

Halsey testified that drainage was “out of his scope,” so neither he nor BAH was responsible for

any problems arising from lack of drainage. Bryon testified that he agreed to take on the

landscaping and irrigation himself after Halsey’s contractor bid three times the contract price for

it. He testified he received a credit from BAH for the landscaping, but not for drainage work:

               Q.      Change order, the landscape credit. Where does it say you are
                       doing the drainage?

               A.      I don’t see it on here. I wouldn’t know how to do the drainage.
                       I wouldn’t sign up for that. (Emphasis added)

       Bryon further testified he would not have known the requirements for drainage or for the

related grading to allow specific drainage on the lot. Rough and final grading were separate line

items under the contract. Halsey conceded that final grading was “important” because “[i]t goes

to addressing the drainage on the home.” There was conflicting evidence as to whether final

grading was ever done.

       Jerry Thornton, a former BAH employee, also testified about grading and drainage on the

site. He testified that although the Hales’ lot is “flat,” the land “all grades in one direction,” so

that “there’s quite a bit of runoff that would run essentially right into the front of the home.” In

addition, the sidewalk and the driveway are “not raised high enough to allow sufficient drainage,

positive drainage, away from the structure itself.” Thornton concluded that because of the

“negative slope” toward the home, water “would run towards the home thus intruding underneath

the slab and compromising the substrate of the building.”




                                               –17–
       Additionally, the plans the Hales provided to Halsey called for steps leading up to

porches in the front and back of the house.         The steps and porches would have required

construction of a higher foundation.      Halsey testified the Hales decided against the raised

foundation, based on cost. This was directly contrary to the testimony of both Bryon and Paige

that the raised porches were a key feature of the home they paid Halsey and BAH to build, and

they were not aware until after the foundation was in place that there would be no steps and no

raised porches.      Halsey denied that the Hales ever voiced a complaint about the issue,

contradicting specific testimony from both of the Hales of a meeting at the site during which

Paige was in tears. In fact, Halsey testified that he and the Hales discussed the matter prior to

construction, and the Hales decided “not to incur the cost.” Both of the Hales adamantly denied

any such decision.

       Halsey testified at trial that he was not personally responsible for the representations he

made to the Hales: “I do not personally, outside the scope of my job as manager with Bishop

Abbey Homes, take responsibility personally, no.” He admitted to assuring the Hales in a 2010

email that “I personally take responsibility for all actions.” But he testified that his statement did

“not mean personally outside the scope as manager of Bishop Abbey Homes, no.”

       The Hales testified that they relied on Halsey’s expertise and on his representations. And

they offered fact and expert testimony about the damages they suffered as a result of their

reliance.

       In summary, there was testimony from which the jury could find that (1) Halsey made

material misrepresentations that were false; (2) Halsey knew the representations were false when

he made them, or made them recklessly as a positive assertion without knowledge of their truth;

(3) Halsey intended the Hales to act on the representations; and (4) the Hales actually and

justifiably relied on the misrepresentations and suffered injury. See Esty, 298 S.W.3d at 303.

                                                –18–
We conclude there was legally and factually sufficient evidence to support the jury’s findings of

Halsey’s fraud. See id. We overrule appellants’ fifth issue.

                                  C. DTPA claim against BAH

       To establish their DTPA claim against BAH, the Hales were required to prove (1) they

are “consumers,” (2) BAH engaged in false, misleading, or deceptive acts, and (3) these acts

constituted a producing cause of their damages. See Doe v. Boy’s Clubs of Greater Dallas, Inc.,

907 S.W.2d 472, 478 (Tex. 1995). BAH does not challenge the Hales’ status as consumers, but

contends there is legally and factually insufficient evidence to support the jury’s findings of

false, misleading and deceptive acts that were a producing cause of damage to the Hales.

       The jury was instructed:

          “False misleading, or deceptive act or practice” means any of the following:

          1.   Representing that the residence or the construction had or would have
               characteristics that it did not have;

          2.   Representing that the residence or the construction are or will be a
               particular quality if they were of another (or);

          3.   Representing that an agreement confers or involves rights that it did not
               have or involve (or);

          4.   Failing to disclose information about the residence or the construction
               that was known at the time of the transaction with the intent to induce
               the Hales into a transaction they otherwise would not have entered into
               if the information had been disclosed.

       The jury answered this question “Yes” as to both BAH and Halsey, and also answered

“Yes” to the question asking whether there was unconscionable conduct by both Halsey and

BAH. Appellants contend that neither Halsey nor BAH “made any representations regarding the

quality of the home or facts concerning the transaction that could possibly support a DTPA

violation.” They also contend that they could not have had knowledge of design or construction

defects at the time the contract was signed in 2006, and in any event, the Hales’ own expert

                                              –19–
testified that the foundation problems were due to AGTM’s design. But the jury could have

found a deceptive trade practice based on any one of the definitions included in the charge, and

the Hales offered evidence of all four. In short, they offered evidence, discussed above, of

Halsey’s knowing misrepresentations, failures to disclose material information, and false

promises that were a producing cause of damage. And this evidence supports the jury’s liability

findings against both BAH and Halsey individually.

       We conclude there was legally and factually sufficient evidence to support the jury’s

findings that BAH engaged in deceptive trade practices that were a producing cause of damage

to the Hales. We overrule appellants’ seventh issue.

                               IV. IMPROPER JURY ARGUMENT

       In their fourth issue, appellants complain of five arguments made by the Hales’ counsel

in closing: (1) appellants would “walk” unless the jury found a recent date on which the Hales

discovered their claims; (2) Halsey is wealthy; (3) Halsey failed to call witnesses;

(4) commenting on “the depth and breadth of the lies that Mr. Halsey told you”; and

(5) informing the jury that collecting the judgment from BAH would be difficult or impossible,

so Halsey should be held liable.

       Appellants objected at trial to some of these arguments but not others. Appellants made

objections to the following arguments as “improper closing” or “improper testimony”:

           •   “[W]e’re going to be chasing [Nathan Halsey] around for a long time.” The trial
               court ruled: “Sustained. Jury disregard that last statement.”

           •   “And I can tell you: Getting a judgment in this case and collecting are two very
               different things.” The trial court also sustained this objection. Appellants did not
               request an instruction that the jury disregard the statement.

           •   Appellants engaged in a “con to string the Hales along” but were now arguing that
               the Hales waited too long to sue. The trial court overruled this objection.

           •   Finding a date earlier than March 31, 2011 “will bar the Hales’ claims against Mr.
               Halsey.” This objection was also overruled.
                                              –20–
Appellants did not raise any other objections to closing argument until their motion for new trial.

But they contend that they properly preserved their complaints for appeal because the arguments

were incurable.

                          A. Applicable law and standard of review

       A litigant is entitled to have his counsel argue the facts of the case to the jury. Clark v.

Bres, 217 S.W.3d 501, 510 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (citing Tex.

Sand Co. v. Shield, 381 S.W.2d 48, 57–58 (Tex. 1964)). Reasonable inferences and deductions

from the evidence are permissible in closing argument. PopCap Games, Inc. v. MumboJumbo,

L.L.C., 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied). Hyperbole is also generally

a permissible rhetorical technique in closing argument. Id. Counsel may comment on the

credibility of witnesses. See id. at 722 (arguing that jury should accept one witness’s opinion

instead of another’s was not improper). And as long as closing arguments are based on the

evidence, attorneys may suggest the correct answers to the jury questions. Clark, 217 S.W.3d at

511. Trial counsel should be given wide latitude in arguing the evidence and the reasonable

inferences from the evidence to the jury. Id. at 510.

       Error as to improper jury argument must ordinarily be preserved by a timely objection

and request for an instruction that the jury disregard the improper remark. Phillips v. Bramlett,

288 S.W.3d 876, 883 (Tex. 2009); Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680

(Tex. 2008) (preservation of error by timely objection which is overruled). A complaint of

incurable jury argument, however, may be asserted and preserved in a motion for new trial, even

in the absence of a timely objection during trial. Phillips, 288 S.W.3d at 883; TEX. R. CIV. P.

324(b)(5). “The party claiming incurable harm must persuade the court that, based on the record

as a whole, the offensive argument was so extreme that a ‘juror of ordinary intelligence could

have been persuaded by that argument to agree to a verdict contrary to that to which he would
                                               –21–
have agreed but for such argument.’” Phillips, 288 S.W.3d at 883 (quoting Goforth v. Alvey, 271

S.W.2d 404, 404 (Tex. 1954)). When an argument is so inflammatory that its harmfulness could

not be eliminated by an instruction to the jury to disregard it, the prejudicial nature of the

argument is so acute that it is “incurable.” Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333

(Tex. 1968).

       But incurable argument is rare. Phillips, 288 S.W.3d at 883. Cases finding incurable

harm “typically involved unsubstantiated attacks on the integrity or veracity of a party or

counsel, appeals to racial prejudice, or the like.” Id.; see also Wilhoite v. Sims, 401 S.W.3d 752,

763 (Tex. App.—Dallas 2013, no pet.) (previously-recognized types of incurable argument have

included appeals to racial prejudice, use of inflammatory epithets such as “liar,” “fraud,” “faker,”

“cheat,” and “imposter,” and unsupported charges of perjury and witness tampering).

“[I]ncurable argument is that which strikes at the very core of the judicial process.” Phillips, 288

S.W.3d at 883.

       The test is the amount of harm caused by the argument. Estate of Finney, 424 S.W.3d

608, 622 (Tex. App.—Dallas 2013, no pet.) (citing Penalver, 256 S.W.3d at 680). To obtain a

reversal on the basis of incurable jury argument, “the complainant must show that the probability

that the improper argument caused harm is greater than the probability that the verdict was

grounded on the proper proceedings and evidence.” Standard Fire Ins. Co. v. Reese, 584 S.W.2d

835, 840 (Tex. 1979); see also TEX. R. APP. P. 44.1(a) (no reversal on appeal unless error

complained of probably caused rendition of improper judgment). We examine the entire record

to determine the argument’s “probable effect on a material finding.” Reese, 584 S.W.2d at 840.




                                               –22–
                                           B. Analysis

       1. Date of discovery of claims

       Appellants first complain that counsel’s closing argument about the Hales’ discovery of

their claims improperly informed the jury of the effect of its answers. It is improper under

special issue submission to advise the jury of the effect of their answers.        See Cooper v.

Argonaut Ins. Co., 430 S.W.2d 35, 39–40 (Tex. App.—Dallas 1968, writ ref’d n.r.e.). But the

error is not reversible if, in light of the entire record, the argument did not probably cause the

rendition of an improper judgment. See TEX. R. APP. P. 44.1(a); Magic Chef, Inc. v. Sibley, 546

S.W.2d 851, 857 (Tex. App.—San Antonio 1977, writ ref’d n.r.e.).

       As we have discussed, the evidence supported a finding that Halsey and BAH

fraudulently concealed their wrongdoing until November, 2009, when the Hales obtained their

own expert report revealing that the foundation was in fact the cause of damage to their home.

Reviewing the entire record, the Hales proved that their suit filed in August 2011 was not barred

by limitations. Any error in overruling appellants’ objections to counsel’s argument, then, did

not cause the rendition of an improper judgment. See Magic Chef, Inc., 546 S.W.2d at 857.

       Appellants also argue that “there was no evidence presented before the jury that the

statute of limitations had been asserted as a defense.” Without citation to authority, they contend

the argument about the Hales’ discovery of their claims was incurable because the Hales’

counsel “introduced limitations to the jury.” But, as we have discussed, the Hales bore the

burden of obtaining favorable findings on fraudulent concealment and the discovery rule. See

Woods, 769 S.W.2d at 517. And the record reflects that Bryon testified about how he would

respond to a claim by Halsey that he waited too long to sue. There was also other evidence

supporting a finding that appellants fraudulently concealed their wrongdoing. The jury was

asked, in five different questions in the charge, to determine the date on which the Hales should

                                              –23–
have discovered appellants’ wrongful conduct. The Hales’ counsel could argue that the evidence

supported answers reflecting particular dates of discovery. See Clark, 217 S.W.3d at 511. The

trial court did not err by overruling appellants’ motion for new trial regarding this argument.

       2. Halsey’s wealth

       Appellants next complain of counsel’s arguments about Halsey’s wealth. Halsey’s net

worth, however, was relevant to the jury question on exemplary damages. And Halsey and BAH

did not seek a bifurcated trial; the jury charge inquired about both actual and exemplary

damages. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.009 (West 2015) (court shall provide for

bifurcated trial “on motion by a defendant”). Additionally, appellants made no objections at trial

to the arguments about Halsey’s wealth, and the arguments do not fall into any category courts

have recognized as incurable. See Wilhoite, 401 S.W.3d at 763. Instead, the arguments focused

on the credibility of Halsey’s claim that he had a negative net worth when there was also

evidence showing that, among other assets, Halsey owned 80% of an entity that owned two

boats, a lake house, and a $1.2 million lot in University Park. The arguments about Halsey’s

wealth were based on the evidence, and were not so inflammatory or prejudicial that a

withdrawal of the arguments or an instruction by the trial court to disregard could not have cured

any harm. See Estate of Finney, 424 S.W.3d at 622–23. Accordingly, we conclude the trial

court did not err when it denied appellants’ motion for new trial because the arguments regarding

Halsey’s wealth, even if improper, were curable. See id.

       3. Failure to call witnesses

       Appellants’ next complaint is that counsel argued that Halsey did not bring any witnesses

to support him. Without citing authority, they contend the argument “violated the Orders entered

on the parties’ Motions in Limine.” But if an order in limine is violated, the party seeking to

exclude the improper evidence must object immediately after the information is revealed, or the

                                               –24–
complaint is waived. In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013)

(protective limine order alone does not preserve error; timely objection is necessary). The trial

court did not err by overruling appellants’ motion for new trial on this issue.

       4. Halsey’s veracity

       Appellants next complain of counsel’s argument that “[t]he depth and breadth of the lies

that Mr. Halsey told you is, frankly, I have not seen it in my 32 years.” Appellants did not object

to this argument at trial, but complained in their motion for new trial that the argument was

incurable.

       Here, the Hales sought to prove that Halsey fraudulently induced them to enter into a

contract with BAH and made false promises in order to prevent them from filing suit. The

credibility of Halsey’s testimony and evidence was a matter for the jury’s determination. The

argument was made during counsel’s summary of the evidence regarding misrepresentations

made by Halsey to the Hales. Trial counsel may properly discuss the reasonableness of the

evidence, the reasonable inferences from the evidence, the probative effect of the evidence, or

the lack of probative effect. See, e.g., Via Metro. Transit Auth. v. Barraza, No. 04-13-00035-

CV, 2013 WL 6255761, at *13–14 (Tex. App.—San Antonio Dec. 4, 2013, pet. denied) (mem.

op.) (argument that employee of bus company “gives two different stories” about bus accident

“constituted reasonable deductions and inferences from the evidence that was before the jury”);

       Appellants rely on Cottman Transmission Systems, L.L.C. v. FBLR Enterprises, L.L.C.,

295 S.W.3d 372, 380 (Tex. App.—Dallas 2009, pet. denied), to support their contention that

counsel’s argument was incurable. In Cottman, we explained that “[t]he previously recognized

types of incurable argument have included . . . the use of inflammatory epithets such as ‘liar.’”

See id. But in Cottman, we concluded that the argument in question—a reference to a witness as

a “Philadelphia lawyer”—was not incurable. Id. Although “the comment might have been

                                               –25–
intended to focus the jury’s attention on the fact that [the witness] was not a local attorney,” the

argument was not an “inflammatory epithet or personal attack,” and was based on the witness’s

testimony that he was graduate of a law school in Philadelphia. See id. Rather than support

appellants’ contention that the argument about Halsey’s veracity was incurable, Cottman follows

the well-established rule that argument is incurable only where a complaining party “show[s]

that the argument by its nature, degree, and extent constituted such error that an instruction from

the court or retraction of the argument could not remove its effects.’” Id. (quoting Penalver, 256

S.W.3d at 680–81). Appellants did not make the required showing here.

       The Hales presented evidence at trial from which the jury could find that Halsey made

representations that were false. Byron testified more than once that a specific statement in

Halsey’s testimony was a “complete falsehood.” It was not improper for the Hales’ counsel to

discuss this evidence in closing argument. See id. Any error or harm from counsel’s use of

hyperbole in his discussion could have been cured by an objection and instruction from the trial

court. See PopCap Games, Inc., 350 S.W.3d at 721. The argument was not “so extreme that a

‘juror of ordinary intelligence could have been persuaded . . . to agree to a verdict contrary to

that to which he would have agreed but for such argument.’” Phillips, 288 S.W.3d at 883

(quoting Goforth, 271 S.W.2d at 404). The trial court did not err by denying appellants’ motion

for new trial complaining of closing argument about Halsey’s false representations to the Hales.

       5. Enforceability of judgment

       The trial court sustained appellants’ two objections to counsel’s argument that collecting

on a judgment would be difficult. When ruling on one of the objections, the trial court also

instructed the jury to disregard the argument. And, in the absence of evidence to the contrary,

we presume the jury followed the court’s instruction. See Turner, Collie & Braden, Inc. v.




                                               –26–
Brookhollow, Inc., 642 S.W.2d 160, 167 (Tex. 1982) (appellate court must assume jury properly

followed trial court’s instruction regarding admission of evidence for limited purpose).

         In addition, we disagree with appellants that the argument was incurable. See Gordon v.

Leasman, 365 S.W.3d 109, 117 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (argument that if

jury’s verdict restricted to corporation, there is “never going to be a penny paid in this case” was

not incurable). In the context of counsel’s discussion of evidence to support a finding that

Halsey, individually, defrauded the Hales, the argument was “not so extreme as to be incapable

of cure.” See Phillips, 288 S.W.3d at 883. The trial court did not err by denying appellants’

motion for new trial complaining of these arguments.

         6. Conclusion on challenged jury arguments

         Appellants contend that “viewing the record as a whole, the offensive argument was so

extreme that a juror of ordinary intelligence could have been persuaded by the argument to agree

to a verdict contrary to that which he would have agreed but for such argument,” citing Goforth

v. Alvey, 271 S.W.2d at 404–05. In Goforth, however, the supreme court concluded, “[w]e are

well convinced that [the argument] was not, as a matter of law, calculated to cause or that it

probably did cause the rendition of an improper judgment,” where “[t]he argument was not of the

type characterized generally as prejudicial and inflammatory, and neither did it introduce into the

case any new evidence of a material nature.” See id. at 404.

         We conclude that there was evidence to support the jury’s findings on each subject

addressed in the arguments at issue. And, considering the record as a whole, we conclude that

the arguments were “not so extreme as to be incapable of cure.” See Phillips, 288 S.W.3d at 883

(argument about need to send message to doctors in community not “same class of impropriety”

as incurable arguments such as appeals to racial prejudice).       We overrule appellants’ fourth

issue.

                                               –27–
                                                             V. DAMAGES

          In the trial court’s judgment, the Hales were awarded damages against both BAH and

Halsey. The damages awarded against BAH are based on the jury’s findings of violations of the

DTPA. 5        The damages awarded against Halsey are based on the jury’s findings of fraud. 6

Against BAH, the Hales were awarded (1) $14,069.27, constituting five percent of the $249,000

reduction in market value of the home, plus interest; (2) $1.4 million in additional damages for

knowing and intentional conduct; and (3) $293,000 in attorney’s fees.                                                 Against Halsey

individually, the Hales were awarded (1) $281,385.56, constituting reduction in market value of

the home plus interest; and (2) $2,225,000 in exemplary damages for fraud. Against BAH and

Halsey jointly, the Hales were awarded (1) $800,000 in mental anguish damages for intentional

and knowing conduct, plus interest, to Paige; (2) $800,000 in mental anguish damages for

intentional and knowing conduct, plus interest, to Bryon; and (3) court costs and prejudgment

interest. BAH and Halsey jointly received a $115,000 credit for the Hales’ settlement with

AGTM.

          Appellants make several challenges to these awards. In their second issue, appellants

argue the trial court erred by granting judgment for the Hales because the economic loss rule bars

recovery of tort damages.                  In their sixth issue, appellants challenge the sufficiency of the

evidence to support the damages awarded to the Hales in the trial court’s judgment. They also

contend the amounts awarded violate due process and the applicable statutory caps, and are not

supported by the pleadings.


     5
        The jury found BAH engaged in false, misleading, and deceptive acts and practices, unconscionable conduct, and breaches of warranty
that were a producing cause of damages to the Hales. The jury also found that BAH’s conduct was knowing and intentional. The jury awarded
actual and additional damages for these violations, as well as damages for mental anguish. The jury also made findings of the Hales’ reasonable
and necessary attorney’s fees.
     6
      The jury found by clear and convincing evidence that Halsey committed fraud that was a proximate cause of harm to the Hales. The jury
made findings of the reasonable cost of repair, the reduction in market value, the past mental anguish of both of the Hales, and exemplary
damages.



                                                                   –28–
                                     A. Economic Loss Rule

       Appellants contend that the economic loss rule bars the Hales’ tort claims. But the

economic loss rule does not bar recovery of tort damages in fraud cases. Formosa Plastics

Corp., 960 S.W.2d at 46. In Formosa Plastics Corp., the court explained that “tort damages are

recoverable for a fraudulent inducement claim irrespective of whether the fraudulent

misrepresentations are later subsumed in a contract or whether the plaintiff only suffers an

economic loss related to the subject matter of the contract.” Id. at 47. The judgment against

appellants in this case awards the Hales damages for Halsey’s fraud and BAH’s deceptive trade

practices. Consequently, the economic loss rule does not bar these damages. Id.; see also Tony

Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 306 (Tex. 2006) (where plaintiff proved

defendant never intended to perform contract, she could assert fraud and DTPA claims). We

overrule appellants’ second issue.

                                      B. Damage Awards

       In their sixth issue, appellants contend that because “this case is a breach of contract

case,” an award of exemplary damages and mental anguish damages is improper as a matter of

law. They also contend that damages for diminution in value are not recoverable in breach of

contract cases, and that the Hales’ recovery is limited to damages for the cost of repair. We

disagree.

       Judgment was rendered for the Hales on the jury’s findings of fraud and violations of the

DTPA. A plaintiff may recover economic damages, mental anguish, and exemplary damages for

fraud. Chapa, 212 S.W.3d at 304. And a plaintiff may likewise recover economic damages,

mental anguish, attorney’s fees, and additional damages for violation of the DTPA. See id.

(citing TEX. BUS. & COM. CODE ANN. § 17.50(b)(1)). Also, under the DTPA, a consumer who

prevails may recover damages for mental anguish if the trier of fact finds that the conduct of the

                                              –29–
defendant was committed knowingly or intentionally.            TEX. BUS. & COM. CODE ANN.

§ 17.50(b)(1) (specifying damages available for mental anguish).         Damages for appellants’

DTPA violations are not limited to the cost of repair. See Ludt v. McCollum, 762 S.W.2d 575,

576 (Tex. 1988) (per curiam) (plaintiff could have recovered damages under DTPA for both cost

of repair and permanent reduction in market value after repair with pleading, proof, and

favorable jury findings).

          1. Mental anguish damages

          Appellants next contend that even if mental anguish damages were recoverable, the jury’s

awards to Bryon and Paige were “grossly excessive” and not supported by legally and factually

sufficient evidence. Appellate courts must “closely scrutinize” awards of damages for mental

anguish. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997) (citing Parkway Co. v.

Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)). The supreme court has explained that “[t]here

must be both evidence of the existence of compensable mental anguish and evidence to justify

the amount awarded.” Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). “Mental anguish is

only compensable if it causes a ‘substantial disruption in . . . daily routine’ or ‘a high degree of

mental pain and distress.’” Id. (quoting Parkway Co., 901 S.W.2d at 444, and Bentley v. Bunton,

94 S.W.3d 561, 606 (Tex. 2002)). “ʻEven when an occurrence is of the type for which mental

anguish damages are recoverable, evidence of the nature, duration, and severity of the mental

anguish is required.’” Id. (quoting Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 231 (Tex.

2011)).

          In Bentley, 94 S.W.3d at 606, and in Saenz v. Fidelity & Guaranty Insurance

Underwriters, 925 S.W.2d 607, 614 (Tex. 1996), the court discussed the requirement that

appellate courts review whether there is any evidence to support the amount of damages

awarded:

                                               –30–
          While the impossibility of any exact evaluation of mental anguish requires
          that juries be given a measure of discretion in finding damages, that
          discretion is limited. Juries cannot simply pick a number and put it in the
          blank. They must find an amount that, in the standard language of the jury
          charge, “would fairly and reasonably compensate” for the loss.
          Compensation can only be for mental anguish that causes “substantial
          disruption in . . . daily routine” or “a high degree of mental pain and
          distress.” Parkway, 901 S.W.2d at 444. There must be evidence that the
          amount found is fair and reasonable compensation, just as there must be
          evidence to support any other jury finding. Reasonable compensation is no
          easier to determine than reasonable behavior—often it may be harder—but
          the law requires factfinders to determine both. And the law requires
          appellate courts to conduct a meaningful evidentiary review of those
          determinations.

Saenz, 925 S.W.2d at 614; see also Bentley, 94 S.W.3d at 606 (discussing Saenz). In Waste

Management of Texas, Inc. v. Texas Disposal Systems Landfill, Inc., the court explained that

damages for non-pecuniary harm such as emotional distress “do not require certainty of actual

monetized loss,” but instead “are measured by an amount that ‘a reasonable person could

possibly estimate as fair compensation.’” 434 S.W.3d 142, 153 (Tex. 2014) (quoting

RESTATEMENT (SECOND) OF TORTS § 905 cmt. i).

       Here, the jury awarded the amount of $800,000 in mental anguish damages to each of the

Hales under all three causes of action presented in the charge, for appellants’ deceptive trade

practices, negligence, and fraud. Five witnesses testified at trial about Paige’s and Bryon’s

mental anguish.

       Julia Hale, the Hales’ 20-year-old daughter, described her mother’s problems resulting

from appellants’ conduct as “a downhill spiral.”      She testified that Paige lost sleep, was

depressed, and took medication for her depression:

          Q. And let’s talk about your mom. What have you—what would you say
             about her emotionally going through the problems with that house?

          A. I would say emotionally it’s not easy, definitely a downhill spiral since
             moving from Plano. I mean, she’s definitely held it together in front of
             us but I just—I know, I mean, I hear her up at night at 1:00 a.m. just
             downstairs. I can hear her because she can’t sleep or definitely—
                                             –31–
       definitely it’s impacted the depression. And to her mind, that’s not easy
       to live with.

   Q. Why do you say that? Why do you say that she’s had that depression?

   A. Because this was her dream home. This is something she actually
      wanted since probably she was about my age and she spent her life
      savings on it, and that’s enough to make me depressed, as well.

   Q. How do you know she’s depressed by it? What is it that she does or
      says that makes you reach that conclusion?

   A. Well, I know she has become medicated for it. And the way she acts,
      she’s—sometimes it’ll just—you know, she just wants to be alone or
      she’ll just sit there and cry or just very different aspects.

   Q. The crying, is that—

   A. It’s not easy to watch, especially when it’s due to her house not, you
      know, somebody inflicting pain on her.

   Q. How often would you say that occurs?

   A. It’s hard now because I’m not home very often. Probably more so in
      high school, especially towards the end of my high school when it was
      getting really worse, and they didn’t know what they should be doing.

   Q. How often would you say it would actually bring her to tears?

   A. I don’t know. Maybe every other month, monthly, I don’t know. I
      mean, I’m sure she did it more without me seeing.

Similarly, the Hales’ son Parker, aged 22, testified:

   Q. The—your mom, particularly what I want to focus on is how you think
      these problems have affected her emotionally?

   A. Yeah. Pretty, pretty poorly, you know. . . . And basically from the time
      that we realized that the foundation was too low to even have steps onto
      our front porch and back porch, you know, she—that was the
      beginning. And, you know, ever since, she’s been pretty upset about a
      lot of different things. But that was—that was the beginning when she
      noticed that the house was just going to be ground level. I mean, she
      was pretty upset, in tears. And from then on out, you know, it’s just one
      problem after another. It’s been really stressful on her, really
      disappointing to her because, you know, it took a lot—it took many
      years just to plan this house out, and she—she didn’t get what she
      wanted so. . .
                                        –32–
          Q. When is the last time you’ve seen her cry over this?

          A. This week.

          Q. Do you know what it was or did she say what it was that brought her to
             tears?

          A. Well, I mean, she’s under a lot of stress and under a lot of
             disappointment. You know, she’s working trying to make sure that, you
             know, me and my sister go to college and can afford to do that and as
             well as still trying to deal with making improvements and fixing her
             house so that, you know, it’s habitable. So, I mean, she’s just under a
             lot of pressure and a lot of stress.

          Q. How would you describe the toll—that this has affected her psyche or
             her emotionally? Would you say it was mild? Would you say it was—

          A. Pretty strong.

          Q. —severe?

          A. Yeah. She—things are just different now. I mean, she’s just tired and
             stressed a lot. And, you know, I mean, she’s—she still puts on a happy
             face and fronts us that, you know, she’s okay. But, I mean, I know
             she’s pretty upset, you know, most of the time, stressed, tired.

          Q. Does it seem pretty constant? . . .

          A. Yes, sir.

       Both Paige and Bryon testified that problems arising from their home had caused strain

on their marriage; Bryon testified that the problems had “consumed our life and our

relationship,” while Paige testified, “We have had a couple of times where we’ve had to look at

each other, and I’ve asked him, are we going to make it through this? Or are we going to get—or

will we get a divorce?” Paige also testified that she often stays at work late to try to forget about

the problems, but “I don’t get a whole lot done . . . . I’m just very distracted at work.” Bryon

testified that due to condition of their home, he and Paige refused a request from Paige’s

employer to host an event at their home, and could not invite Julia’s friends to “spend the night

parties” when Julia was in middle school. Bryon testified that he and Paige were embarrassed
                                               –33–
and humiliated by these refusals. He also testified to the constant disruptions in their lives as a

result of the problems at their home and in efforts to resolve them. Although not dispositive by

itself, the record reflects that both Bryon and Paige wept on the witness stand when describing

their own and each other’s emotional state.

        James Hale, Bryon’s father, testified that Bryon and Paige have been “very, very

emotional” as a result of the problems with their home. He has observed Paige in tears as new

damage has occurred. Bryon testified that both he and Paige are “extremely devastated.” Paige

testified that Bryon “doesn’t sleep” and that his health had “definitely gotten worse” since the

problems occurred at their home. All four of the Hales testified to constant disruptions of their

family life over a period of years in dealing with the problems in their home. Bryon also

testified:

             Q. Have you ever had thoughts or feelings that you were a failure to your
                wife and kids?

             A. It’s been a tremendous amount of guilt and—and stress and—and
                arguments in what to do, what not to do, how to do it. It’s consuming.
                (Talking simultaneously.)

             Q. Have you ever felt bad? Have you ever felt like a failure?

             A. The failure is right here, square on my shoulders. I picked the wrong
                builder.

Paige explained that their emotional problems were “constant”:

             Q. . . . What was it in your mind that said, hey, we’ve got to come down
                here, hire a lawyer, and go through this sausage-making process?

             A. We looked at each other and said, he’s just stringing us along.

             Q. And that’s the way you felt? What do you feel today?

             A. (Pause) Life is not much fun anymore.

             Q. Does this thing weigh on you heavy?

             A. It’s consumed -- it has consumed everything for years and --
                                                –34–
                Q. 2010 forward?

                A. Yes.

                Q. And would you say that the effect on you has been severe since 2010?

                A. Yes.

                Q. Would you say it’s been constant?

                A. Yes. It has been constant.

           This testimony was “direct evidence of the nature, duration, or severity” of their mental

anguish, “thus establishing a substantial disruption in [their] daily routine,” and evidence that the

Hales suffered “ʻa high degree of mental pain and distress’ that is ʻmore than mere worry,

anxiety, vexation, embarrassment, or anger.’” Saenz, 925 S.W.2d at 614 (quoting Parkway Co.,

901 S.W.2d at 444).

           We must also address, however, the amount of the awards. The jury awarded each

plaintiff $800,000 in mental anguish damages. The total, $1.6 million, is approximately six

times the $249,000 the jury found in actual damages. 7 It is also almost four times the amount of

mental anguish damages sought by the Hales in their disclosure responses filed before trial:

                C. Mental anguish in the amount for each Plaintiff of at least equal to the
                cost of repair based on the recommendations of Paragon Structural
                Engineering, Ltd. of at least $141,977.00 for foundation repairs set out in
                the Estimate of American Property Services plus at least $66,879.00 for
                cosmetic repairs as set out in the Estimate of American Property Services
                for a total cost of repair of at least $208,856.00

The response then listed two separate amounts of $208,856.00 as the mental anguish damages

sought. In closing argument, the Hales did not suggest a specific amount for mental anguish




     7
        The jury awarded the Hales $223,856 for “the reasonable costs of repairs necessary to cure damages resulting from any construction
defects,” and $249,000 for “the reduction in market value, if any, to the extent the reduction is due to structural failure.” The Hales offered expert
testimony at trial to support both of these amounts, and appellants do not challenge them on appeal.



                                                                       –35–
damages; counsel referenced Paige’s “gut wrenching” testimony in arguing that mental anguish

damages were warranted for both Paige and Bryon.

       In Bentley, the jury’s award was more than forty times the amount awarded the plaintiff

for damage to his reputation. See Bentley, 94 S.W.3d at 606 (setting aside award); see also Lane

v. Martinez, No. 11-13-00247-CV, 2015 WL 5173034, at *9 (Tex. App.—Eastland Aug. 31,

2015, no pet. h.) (setting aside non-pecuniary damage award that was seventeen times more than

pecuniary damage award). In a subsequent appeal of the Bentley case, the supreme court

concluded that legally sufficient evidence supported the trial court’s determination on remand

that $150,000 would be “reasonable compensation” for Bentley’s mental anguish. Bunton v.

Bentley, 153 S.W.3d 50, 53 (Tex. 2004). This amount was equal to the jury’s damage award for

injury to Bentley’s character and reputation. See Bentley, 94 S.W.3d at 605.

       We conclude that although there is sufficient evidence to support an award of mental

anguish damages to the Hales, the $1,600,000 amount awarded by the jury is not supported by

the evidence. See id. We further conclude that the evidence is sufficient to support the amount

of mental anguish damages sought by the Hales in their disclosure responses prior to trial, and

that the amount of $208,856 the Hales sought for each plaintiff “would fairly and reasonably

compensate” them for their mental anguish. See Waste Mgmt. of Tex., Inc., 434 S.W.3d at 153;

see also MBR & Assocs., Inc. v. Lile, No. 02-11-00431-CV, 2012 WL 4661665, at *13 (Tex.

App.—Fort Worth Oct. 4, 2012, pet. denied) (mem. op.) (upholding past and future mental

anguish damages of $300,000 where plaintiff established similar mental and emotional suffering

from fraud and deceptive trade practices relating to foundation repair of plaintiff’s home, and

actual damages exceeded $200,000). Although the resulting ratio of mental anguish damages to

the Hales’ pecuniary loss is higher than the one-to-one ratio approved in Bunton, the jury’s entire




                                              –36–
verdict reflects an effort to fairly compensate the Hales for their actual injuries. See Bunton, 153

S.W.3d at 53; Bentley, 94 S.W.3d at 605.

           If, as we conclude here, part of a damages verdict lacks sufficient evidentiary support, the

proper course is to suggest a remittitur of that part of the verdict. Larson v. Cactus Util. Co., 730

S.W.2d 640, 641 (Tex. 1987); TEX. R. APP. P. 46.3 (court of appeals may suggest remittitur).

Consequently, we suggest a remittitur of the portion of the mental anguish damages awarded to

each plaintiff that exceeds the $208,856.00 amount each plaintiff sought prior to trial. And, as

the prevailing party at trial, the Hales must be given the option of accepting the remittitur or

having the case remanded for a new trial. Bechtel Corp. v. CITGO Prods. Pipeline Co., 271

S.W.3d 898, 922 (Tex. App.—Austin 2008, no pet.).

           We overrule the portion of appellants’ sixth issue challenging the award of any mental

anguish damages by the jury, and sustain the portion of the issue that challenges the sufficiency

of the evidence to support mental anguish damages exceeding $208,856.00 for each plaintiff.

           2. Additional and Exemplary Damages

           Appellants next argue that the jury’s awards of exemplary and additional damages are

arbitrary, grossly excessive, not supported by legally and factually sufficient evidence, and “in

violation of BAH and Halsey’s constitutional rights.” Appellants also contend the awards are in

excess of the statutory cap on exemplary damages, citing civil practice and remedies code

section 41.008. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.008 (West 2015) (exemplary

damages may not exceed amount equal to greater of $200,000 or two times amount of economic

damages plus noneconomic damages not exceeding $750,000). 8




     8
        Appellants provide no further argument or analysis of this complaint, but we must consider the application of the cap as a question of law.
Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 157 (Tex. 2015) (statutory exemplary damages cap “applies as a matter of law” even in the
absence of pleading or motion for new trial raising the issue).



                                                                     –37–
          Appellants’ only arguments in support of these contentions are that the jury “obviously

disregarded these factors because the evidence at trial indicated that BAH and Halsey had a

negative net worth,” and the construction of a home with foundation defects is not “such

egregious conduct to justify the imposition of such a harsh penalty.” And they again contend

that any harm to the Hales resulted only from breach of contract, not fraud. They offer no further

discussion or analysis.

          Although the credibility of the witnesses and evidence was a matter for the jury to

determine, and a jury has some discretion in the amount of additional and punitive damages it

awards, there are both statutory and constitutional limits on the amounts awarded. We review

punitive damage awards for excessiveness as well as for sufficiency of the evidence to support

them. See, e.g., Bunton, 153 S.W.2d at 53 (stating factors to consider in appellate review).

                     a. Statutory caps

          We first conclude that the judgment against BAH for $1.4 million in DTPA additional

damages was within the limits imposed by section 17.50(b)(1) of the DTPA. The jury made

findings that BAH’s misconduct was engaged in both “knowingly” and “intentionally.” In light

of these findings, section 17.50(b)(1) permits recovery of “not more than three times the amount

of damages for mental anguish and economic damages.” Here, the additional damages awarded

in the judgment do not exceed three times the amounts found by the jury for economic damages

($249,000) and mental anguish ($800,000 for each plaintiff), and are within the statutory limits. 9

          We next conclude, however, that the judgment against Halsey for $2,225,000 in

exemplary damages exceeds the statutory cap in section 41.008(b) of the civil practice and

remedies code. Section 41.008(b) limits recovery of exemplary damages to an amount equal to

     9
       We note that the statutory cap is not exceeded by the jury’s award of $1.4 million even if mental anguish damages are remitted to
$208,856 for each plaintiff, as discussed above. Because the jury found appellants’ conduct was committed intentionally, the Hales may recover
“not more than three times the amount of damages for mental anguish and economic damages.” TEX. BUS. & COM. CODE ANN. § 17.50(b)(1).
This calculation would still exceed $2 million in additional damages.



                                                                   –38–
the greater of (1) two times the amount of economic damages, plus “an amount equal to any

noneconomic damages found by the jury, not to exceed $750,000”; or (2) $200,000. The jury’s

finding of $249,000 in actual damages, doubled to $498,000, plus a maximum of $750,000 for

the jury’s findings of mental anguish damages results in a maximum award of punitive damages

of $1,248,000. Consequently, the judgment’s award of $2,225,000 exceeds this maximum by

$977,000.

               b. Excessiveness

       We must also review awards of additional damages under the DTPA and exemplary

damage awards for excessiveness. Leonard & Harral Packing Co. v. Ward, 937 S.W.2d 425,

425 (Tex. 1996) (mem. op.).

                      i. Kraus factors

       We consider whether the evidence supports the award in light of the factors set forth in

Alamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981). See Ward, 937 S.W.2d at

425. The Kraus factors to consider in determining whether an award of exemplary damages is

reasonable include (1) the nature of the wrong; (2) the character of the conduct involved; (3) the

degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties

concerned; and (5) the extent to which such conduct offends a public sense of justice and

propriety. Kraus, 616 S.W.2d at 910.

       Under the Kraus factors, the evidence here established that appellants defrauded the

Hales. As we have discussed, the evidence was sufficient to support the jury’s findings that as a

result of appellants’ fraud and deceptive trade practices, the Hales were induced into the contract

to build their home. The Hales suffered mental anguish as well as financial harm. There was

evidence that appellants accepted the Hales’ payments but never intended to build the home they

represented to the Hales. The record supports the jury’s finding “by clear and convincing

                                              –39–
evidence that the harm to the Hales resulted from fraud.” See TEX. CIV. PRAC. & REM. CODE

ANN. § 41.003 (West 2015) (exemplary damages may be awarded only if claimant proves by

clear and convincing evidence that harm for which exemplary damages sought resulted from

fraud, malice, or gross negligence).

       Halsey’s trial testimony also reflected his unwillingness to accept any responsibility for

the defects in the Hales’ home. See, e.g., Bright v. Addison, 171 S.W.3d 588, 605 (Tex. App.—

Dallas 2005, pet. denied) (defendants’ remorse is relevant factor in considering situation and

sensibilities of the parties). Examples include Halsey’s testimony that (1) he was not required to

disclose to the Hales that he was not an expert in home building; (2) he might not have promised

to provide a structural warranty; (3) the Hales were responsible for grading and drainage;

(4) Moses was qualified to supervise foundation work; (5) Bryon made the ultimate decision on

the type of foundation was necessary and appropriate for the site; (6) Mitchell Excavation was

responsible for determining the proper height of the foundation; and (7) he was not “at all

critical” of himself or BAH for the construction of the foundation:

               A.     No. I’m not critical of the company or myself.

               Q.     Not at all?

               A.     No.

               Q.     Zero?

               A.     Zero.

       We also note that the jury’s additional and exemplary damage awards reflect that the jury

did not find credible Halsey’s testimony regarding his net worth. Halsey testified he owned his

residence, his wife’s automobile, “and maybe a hundred thousand cash in the bank.” He testified

that BAH had “ongoing liabilities” but “no assets.” Halsey testified his own net worth was

“negative two and a half million dollars.”

                                              –40–
        But Halsey admitted ownership of at least seven different business entities, some with

global interests. Halsey admitted he held interests in two oil companies, one privately owned

and the other publicly held, and “on paper,” worked for both companies. He testified, however,

that the publicly held company was worth “zero,” and the privately owned company had a

negative net worth.      He testified he was a limited partner in another entity, Bonamour

International, a skin care manufacturer. His ownership interest was approximately 35 to 40

percent, and at the time of trial, he was working at Bonamour “the majority of my time.” He

testified, however, that Bonamour also had a “negative net worth.” Bonamour also “has a

publicly traded entity,” but the entity has “no operations,” “no income,” and assets of “maybe a

hundred dollars in the bank.” He admitted he is a limited partner in “a Hong Kong based

company called JHP Ventures.”           The company “provides consulting services to foreign

companies looking to get presence in the U.S. markets.” But like the other four entities, JHP

Ventures’s “debts probably exceed its assets,” so its net worth would be “zero.” The same was

true for DHM Ventures, a real estate project in which Halsey is a limited partner; Halsey testified

this entity was “upside down by about 2 million U.S. dollars.” DHP Partners, another entity he

owns, has “$1,400 U.S. dollars, I think, in a checking account.” NWH Management, a company

owned by Halsey, has a negative value.           In sum, according to Halsey, all seven entities

(including the entities for which Halsey was working at the time of trial) had assets totaling

$1,500 and liabilities in the millions of dollars.

       Further cross-examination revealed, however, that JHP Ventures, in which Halsey had an

80 percent ownership interest, owned property in University Park with a value exceeding $1.2

million, as well as “a personal watercraft,” a jet ski boat, and a home on Cedar Creek Lake.

Halsey admitted he drove a Lamborghini automobile, but testified it was owned by “a friend of

mine who lets me borrow it.” The jury’s awards of additional and punitive damages indicate that

                                                 –41–
the jury did not find credible Halsey’s testimony that both he and BAH had only a negative net

worth.

                        ii. Due process factors

         We also consider whether the award is unconstitutionally excessive because it violates

due process constraints. Bennett v. Reynolds, 315 S.W.3d 867, 873 (Tex. 2010). To apply this

standard, we consider (1) the degree of reprehensibility of the defendant’s conduct; (2) the

disparity between the actual or potential harm suffered by the plaintiff and the punitive damages

award; and (3) the difference between the punitive damages awarded by the jury and the civil

penalties authorized or imposed in comparable cases. Id. (citing State Farm Mut. Ins. Co. v.

Campbell, 538 U.S. 408, 418 (2003)); see also Chapa, 212 S.W.2d at 308 (describing second

factor as “the ratio between exemplary and compensatory damages”); see also Owens Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 45 (Tex. 1998) (stating three “guideposts” for

determining whether punitive damages award is unconstitutionally excessive); see also Bunton,

153 S.W.3d at 53–54 (these factors must be reviewed de novo to ensure that exemplary damages

are not grossly disproportional to gravity of defendant’s conduct) (citing Cooper Indus. v.

Leatherman Tool Grp., Inc., 532 U.S. 424, 434–36 (2001)).

         In considering the first due process factor, the degree of reprehensibility, we consider five

nonexclusive factors, whether: (1) the harm inflicted was physical rather than economic; (2) the

tortious conduct showed an indifference to or a reckless disregard for the health or safety of

others; (3) the target of the conduct had financial vulnerability; (4) the conduct involved repeated

actions, not just an isolated incident; and (5) the harm resulted from intentional malice, trickery

or deceit, as opposed to mere accident. Bennett, 315 S.W.3d at 874 (citing State Farm, 538 U.S.

at 419). We conclude the Hales offered evidence of the fourth and fifth factors. And as we have

discussed in our review of the sufficiency of the evidence to support the jury’s fraud and

                                                 –42–
deceptive trade practice findings, Halsey and BAH fraudulently induced the Hales into entering

into a contract, Halsey and BAH did not intend to fulfill contractual obligations, and Halsey and

BAH fraudulently concealed their wrongdoing from the Hales over a period of years.

       In considering the second due process factor, disparity between the actual harm suffered

by the plaintiffs and the punitive damages awarded, the supreme court has explained that

although there is no “bright-line ratio,” a punitive damages award that exceeds four times the

amount of compensatory damages “‘might be close to the line of constitutional impropriety.’”

Bennett, 315 S.W.3d at 879; Chapa, 212 S.W.3d at 308 (quoting State Farm, 538 U.S. at 425).

Here, the jury’s award of $1.4 million in DTPA additional damages against BAH is between five

and six times the $249,000 actual damages, and its award of $2,225,000 in exemplary damages

against Halsey is almost nine times the amount of actual damages.

       In Chapa, only one of the five reprehensibility factors existed, and the ratio between

compensatory and punitive damages was 4.33. Chapa, 212 S.W.3d at 309. The court concluded,

“[p]ushing exemplary damages to the absolute constitutional limit in a case like this leaves no

room for greater punishment in cases involving death, grievous physical injury, financial ruin, or

actions that endanger a large segment of the public.” Id. at 310. The court concluded the

punitive damages were constitutionally excessive. Id. The court reached a similar conclusion in

Bennett on facts “not meaningfully distinguishable” from those in Chapa. See Bennett, 315

S.W.3d at 878.

       The parties here offered no argument regarding the third due process factor, disparity

between the award of exemplary damages and the civil penalties authorized or imposed in

comparable cases. In the past we have considered the exemplary damages cap under section

41.008 to be relevant to this third factor. See Lambert v. Lambert, No. 05-08-00397-CV, 2009

WL 1493009, at *8 (Tex. App.—Dallas May 29, 2009, no pet.) (mem. op.). As discussed,

                                              –43–
punitive damages in this case are capped at $1,248,000 based on the jury’s findings of actual

damages and mental anguish.

          Having considered the relevant Kraus and due process factors, we conclude the jury’s

awards exceed the guidelines set forth in Bennett and Chapa for the type of harm suffered by the

Hales as a result of appellants’ conduct. But as with the award of mental anguish damages, there

is sufficient evidence to support awards of DTPA additional damages and exemplary damages

against appellants, consisting of the evidence we have detailed of appellants’ knowing and

intentional deceptive trade practices and fraud. We also conclude there is sufficient clear and

convincing evidence to support an additional damage award against BAH of three times actual

damages, equaling $747,000, and an exemplary damage award against Halsey of $915,712. 10

See, e.g., Khorshid, Inc. v. Christian, 257 S.W.3d 748, 769 (Tex. App.—Dallas 2008, no pet.)

(suggesting remittitur to $12,000, four times amount of compensatory damages found by the

jury).

          The judgment’s award of additional damages of $1.4 million against BAH exceeds

$747,000 by $653,000. The judgment’s award of exemplary damages of $2,225,000 against

Halsey exceeds $915,712 by $1,309,288. We therefore suggest a remittitur of these amounts by

the Hales. See TEX. R. APP. P. 46.3; see also McLeod v. Gyr, 439 S.W.3d 639, 652–53 (Tex.

App.—Dallas 2014, pet. denied) (suggesting remittitur of DTPA additional damages). If the

remittiturs are timely filed, we will modify the judgment accordingly and affirm as modified.

See McLeod, 439 S.W.3d at 653. If the remittiturs are not timely filed, we will remand the cause

to the trial court for proceedings consistent with this opinion. See TEX. R. APP. P. 44.1(b)



     10
         This amount is calculated using the statutory cap as a guide. Section 41.008 allows two times the amount of economic damages plus the
amount of noneconomic damages not exceeding $750,000. TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(b)(1). The jury found $249,000 in
economic damages. And there was factually sufficient evidence to support mental anguish awards in the amount of $417,712 (or $208,956 per
plaintiff). Adding these two amounts results in exemplary damages of $915,712, approximately 3.6 times the amount of actual damages.



                                                                   –44–
(appellate court may not order separate trial solely on unliquidated damages if liability

contested).

           In suggesting remittitur, we are mindful of the supreme court’s mandate that we must not

substitute our judgment for the jury’s. See Larson, 730 S.W.2d at 641. But we are also mindful

of that court’s constitutional mandate to scrutinize additional and exemplary damage awards for

support in the evidence and for excessiveness. Leonard & Harral Packing Co., 937 S.W.2d at

425 (Kraus factors must be applied to exemplary and additional damage awards to determine

excessiveness); see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994) (courts of

appeals must carefully scrutinize punitive awards to ensure they are supported by the evidence).

In this case, the Hales offered evidence that Halsey’s and BAH’s conduct warranted the

imposition of exemplary and additional damages. The jury found this evidence to be clear and

convincing.          Only to the extent that the trial court’s judgment exceeds constitutional and

statutory limits on additional and exemplary damages, we sustain appellants’ sixth issue and

suggest remittitur.

           3. Sufficiency of Pleadings

           Appellants complain that the Hales’ live trial pleading, the fourth amended petition,

sought a maximum of $1,500,000, so that the trial court’s judgment did not conform to the

pleadings. Although the Hales filed fifth and sixth amended petitions after trial, appellants argue

that the trial court erred by denying their motion to strike the amendments because (1) the Hales

failed to seek leave of court to file the amended petitions in violation of rule 63, Texas Rules of

Civil Procedure; 11 (2) the amendments were made without justification or excuse, constituted

surprise, and were made at a time when appellants could not respond; and (3) the Hales’


     11
         Because the record contains the Hales’ motion seeking leave to amend and the trial court’s order granting the motion, we do not address
this contention further.



                                                                    –45–
recovery in any event should be limited to the amounts stated in their responses to appellants’

requests for disclosures. 12

           The Hales counter that the amendment did not surprise or prejudice appellants because

appellants did not show they would have prepared any differently for trial to defend against the

higher amount of damages sought.                           And a trial court has no discretion to refuse a trial

amendment unless the opposing party presents evidence of surprise or prejudice, or the

amendment is prejudicial on its face because it asserts a new cause of action or defense and the

opposing party objects. TEX. R. CIV. P. 66; Tanglewood Homes Ass’n, Inc. v. Feldman, 436

S.W.3d 48, 64 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Similarly, a trial court

“shall” grant leave to file an amended pleading unless there is a showing that the filing will

operate as a surprise to the opposing party. TEX. R. CIV. P. 63; Food Source, Inc. v. Zurich Ins.

Co., 751 S.W.2d 596, 599 (Tex. App.—Dallas 1988, writ denied).

           Additionally, “[a]mended pleadings may be filed up to the time judgment is signed.”

Food Source, Inc., 751 S.W.2d at 599. Appellants argue that the amendment was offered “at a

time when it was impossible for BAH or Halsey to respond or rebut” it, but they do not explain

what evidence they were precluded from offering or what argument they could not assert because

of the timing of the amendment. Their closing argument to the jury included requests that the

jury limit any damages awarded to the cost of repair or the reduction in market price, amounts

they contended were approximately $20,000 or $30,000. They also argued that any award of

mental anguish damages should be “judge[d] . . . in relationship with the other damages in this

case.” They contended there was no fraud and that therefore no actual or punitive damages

awards for fraud were appropriate. They cited to evidence in the record to support the amounts

     12
        Appellants do not cite any record reference to establish that this contention was raised before the trial court, and we have found none.
Because error was not preserved, we do not address this contention further. See TEX. R. APP. P. 33.1 (as prerequisite to appeal, record must show
that complaint was made to trial court that stated grounds for the ruling sought, and that trial court ruled or refused to rule).



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included in their argument. In sum, appellants presented evidence and argument that the Hales’

damages, if any, should be limited. There is no indication that appellants would have taken any

different position in light of an increase in the maximum amount of damages sought by the

Hales. And appellants did not establish that the amendment operated as a surprise to them or

resulted in prejudice. See TEX. RS. CIV. P. 63, 66. We overrule this portion of appellants’ sixth

issue.

                        VI. JUDGMENT AGAINST INDIVIDUAL DEFENDANT

         In their third issue, appellants contend the trial court erred by granting judgment for the

Hales against Halsey individually “when at all relevant times he was acting in his capacity as

Manager and General Partner of BAH.” Appellants further argue that as a limited partner of

BAH, Halsey was not liable for BAH’s obligations unless he participated in control of the

business, citing section 153.102 of the Texas Business Organizations Code. See TEX. BUS.

ORGS. CODE ANN. § 153.102 (West 2012). Appellants also argue that an agent cannot be held

liable for claims or debts incurred on behalf of a disclosed principal.

         But in addition to their claims against BAH, the Hales sued Halsey individually for his

own fraud and violations of the DTPA. As we explained in Cimarron Hydrocarbons Corp. v.

Carpenter, “[i]t is a longstanding rule in Texas that a corporate agent is personally liable for his

own fraudulent or tortious acts, even when acting within the course and scope of his

employment.” 143 S.W.3d 560, 564 (Tex. App.—Dallas 2004, pet. denied). The rule also

applies to DTPA claims. Miller v. Keyser, 90 S.W.3d 712, 714 (Tex. 2002) (because DTPA

allows consumers to bring suit against “any person,” “an agent may be held personally liable for

the misrepresentations he makes when acting within the scope of his employment”).

         The Hales asserted claims against Halsey, individually, for his own conduct.           See

Carpenter, 143 S.W.3d at 565. Halsey personally made representations about the construction of

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the Hales’ home. See Miller, 90 S.W.3d at 716. The Hales offered evidence from which the jury

could find that Halsey had no intention of fulfilling the promises at the time he made them.

Halsey is liable for his own fraud and DTPA violations. See id. We overrule appellants’ third

issue.

                              VII. ADDITIONAL CAUSES OF ACTION

         In their eighth issue, appellants contend that the Hales’ negligence and breach of

warranty claims fail as a matter of law. Because judgment was not rendered on these claims,

appellants raise the issue only in the alternative, in the event we sustain their other issues. We

have not done so, and need not consider this issue further.

                                        VIII. CONCLUSION

         We overrule appellants’ first, second, third, fourth, fifth, and seventh issues. We need not

address their eighth issue. We sustain appellants’ sixth issue only to the extent of suggesting

remittitur of (1) mental anguish damages exceeding $208,856 per plaintiff; (2) additional

damages exceeding $747,000 against BAH; and (3) exemplary damages exceeding $915,712

against Halsey. In accordance with rule 46.3 of the Texas Rules of Appellate Procedure, if the

Hales file with this Court within fifteen (15) days from the date of this opinion a remittitur of

(1) $591,144 in mental anguish damages for Bryon Hale; (2) $591,144 in mental anguish

damages for Paige Hale; (3) $653,000 of the additional damages awarded against BAH; and

(4) $1,309,288 of the exemplary damages awarded against Halsey, we will modify the trial

court’s judgment to award the Hales $208,856 in mental anguish damages for each plaintiff,

$747,000 in additional damages against BAH, and $915,712 in punitive damages against Halsey,

and affirm the trial court’s judgment as modified.




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If the suggested remittiturs are not filed timely, we will reverse the trial court’s judgment and

remand the cause for further proceedings consistent with this opinion. See TEX. R. APP. P.

44.1(b).




                                                  /Elizabeth Lang-Miers/
                                                  ELIZABETH LANG-MIERS
                                                  JUSTICE

141137F.P05




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