Court of Appeals of Texas

2003-04

Stringer, Bob & Ruth v. Modesta Perales ( 2003 )

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Opinion issued April 10, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00281-CV

____________

BOB STRINGER AND RUTH STRINGER, Appellants

MODESTA PERALES, Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 00-17312

MEMORANDUM OPINION

A jury found Bob and Ruth Stringer, appellants, breached the contract for deed, violated the Deceptive Trade Practices Act (DTPA) , and committed fraud, theft, and usury when they evicted Modesta Perales, appellee, from her home. The jury awarded Perales $1.3 million in damages, including attorneys’ fees, mental anguish, and exemplary damages. The trial court added a usury penalty of $241,000.

The Stringers argue that the evidence does not support the jury findings of (1) DTPA violations, fraud, and theft or (2) damages for lost profits, relocation expense, and lost personal property. The Stringers also contend that there is no basis for usury penalties. We affirm.

Factual and Procedural Background

The Stringers agreed to sell their home to Perales under a contract for deed for $105,000. Perales made a $20,000 down payment, and the Stringers financed the remaining $85,000 at nine percent interest. Perales was to make 120 monthly payments of $1076.74 and to pay all property taxes and insurance. Under the contract terms, if a payment was in default for more than 15 days, the Stringers had the right to repossess the property and consider all previous payments to be rent.

Over the next 59 months, Perales made only 37 payments, but many of the payments were for more than her scheduled payment amounts, and her balance of $41,519 was actually less than she would have owed had she paid only the designated payment each month. The Stringers argued that Perales was contractually obligated to make at least one payment a month. If she chose to make more, that would shorten the length of the loan, but she was required to make a payment each month. Perales, however, contended that, because her balance was less than it would have been had she paid only the monthly payments, she was not in default. Furthermore, Perales testified that when she gave Mrs. Stringer one of the lump payments, Perales told Mrs. Stringer she wanted “to make some months ahead.”

The relevant dates and events are as follows:

August 23, 1993	Stringers and Perales enter into contract for deed; 10 year amortized payment schedule providing for payment of 120 monthly installments of $1076.74
October 1994	Perales made $12,000 payment Stringers did not credit to payment schedule; instead, Ruth Stringer, unilaterally, shortened loan term from 120 months to 97 months
February 6, 1996	Stringer notified Perales she was three payments behind
March 3, 1996	Stringer notified Perales she was four months behind
July 9, 1997	Charles Tiemann, Stringers’ lawyer, sent Perales default notice (Perales actually $14,550 ahead of schedule)
October 29, 1997	Stringer notified Perales her payments were four months past due
December 19,1997	Tiemann sent another default notice (Perales $17,586 ahead)
early 1998	Money Mortgage approved Perales for loan to pay off balance of contract
June 10, 1998	mortgage company’s surveyor issued survey showing Perales’s garage encroached onto another lot
	Stringers served Perales with a notice to vacate
June 25, 1998	Stringers filed “Complaint for Forcible Detainer” in justice court for $46,575.50
July 15, 1998	Perales called Stringer and was told not to worry about forcible detainer because Tiemann was out-of-town
July 22, 1998	Stringers obtain default
August 4, 1998	Tiemann sent mortgage company figures for payoff good until August 14
	Tiemann told mortgage company Stringers would not foreclose
August 10, 1998	mortgage company notified Tiemann that documents were signed and loan would be funded upon receipt of warranty deed
	justice court issued an eviction order
	Stringers obtained writ of possession
August 14, 1998	terms of payoff expired
August 17, 1998	Stringers notified mortgage company they were not going to deliver warranty deed
	constable removed all of Perales’s personal property, her truck, her dog, her inventory of her furniture business, all records from her furniture business, and changed the locks on her home
	contents of Perales’s home moved to Security Storage
September 24, 1998	Perales moved belongings to Memorial Park Mini Storage
August 1999	Memorial Park Mini Storage sold Perales’s belongings for delinquent rent payments

Perales sued the Stringers for breach of contract, fraud, violations of the DTPA, abuse of process/malicious prosecution, intentional infliction of emotional distress, and promissory estoppel.

A month before trial, Stringer found a desk calendar with additional payment information noted on it, but she shredded the calendar after providing the information to her accountant. During the 13-day trial, Ruth Stringer disputed payment amounts and dates provided in her sworn interrogatory answers and she admitted destroying the original payment records. The trial court ruled that Stringer’s destruction of the calendar was spoliation and prejudicial because of the possibility that the calendar contained additional payments. In three different places in the charge, the trial court instructed the jury that

Parties to a lawsuit are under a duty to preserve evidence. In this case, Ruth Stringer negligently or intentionally destroyed evidence of payments made by Modest Perales. You must, therefore, presume that the destroyed evidence was unfavorable to the Stringers as to what the evidence may have shown about payments made by Modest Perales. The Stringers may overcome this presumption only if they have convinced you, by a preponderance of the evidence, that the payments were made, or were not made, as claimed by the Stringers.

The Stringers did not object to the submission of this instruction.

The jury returned a verdict in favor of Perales on all issues.

The Stringers’ appeal does not challenge the jury’s findings that they breached two separate contracts; that this breach caused Perales at least $141,483 in out-of-pocket damages; that the Stringers committed the felony of altering a real estate loan payment schedule with the intent to defraud Perales; or that Perales is entitled to recover the attorneys’ fees awarded. They also do not challenge the trial court’s instruction that the jury could draw a negative inference from the Stringers’ “negligent or intentional” destruction of evidence on the eve of trial.

The jury found that Perales paid $91,483 in principal and interest payments and all payments for taxes and insurance. It found that Perales made $50,000 of improvements to the property, lost $120,000 in profits from her furniture business, incurred $50,000 in relocation expenses, lost personal property valued at $50,000, incurred $600 in past medical expenses. The jury found that Perales sustained $200,000 in mental anguish in the past, but none in the future. The jury found that the Stringers demanded $51,708.95, which was not due, under threat that they would enforce rights that they claimed under the contract of deed. The jury determined that the Stringers received $86,483 in principal and interest from Perales. They awarded Perales $500,000 in exemplary damages, and $225,000 in attorneys’ fees.

Non-Contract Claims

In their first point of error, the Stringers argue that Perales cannot recover for DTPA violations, fraud, or usury by repackaging breach of contract claims.

The trial court submitted jury questions on each of these claims. The Stringers made no objections to the jury charge; therefore, any complaint they may have regarding the submission of the DTPA, fraud, or usury submissions are waived. See Tex. R. App. P. 33.1(a); Lotfi v. Williams, 18 S.W.3d 856, 858 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

We overrule the Stringers’ first point of error.

Causes of Action

In points of error two, three, four, and ten, the Stringers argue that there was legally and factually insufficient evidence of DTPA violations, fraud, reliance, and theft.

Sufficiency Standard of Review

In reviewing a no-evidence point, we consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary. Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex. App.—Houston [1st Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the point. Id. In reviewing factual sufficiency points of error, we must examine all of the evidence in the record, including any evidence contrary to the judgment, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Because the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony, we may not substitute our opinion for that of the trier of fact simply because we disagree with the jury’s findings. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

DTPA

The Stringers argue that the evidence is legally and factually insufficient to support the jury’s answers to the DTPA questions.

The jury was asked if the Stringers engaged in any false, misleading, or deceptive act or practice that was a producing cause of damages to Perales. The question included a definition of “producing cause,” and it defined “false, misleading, or deceptive act or practice” as follows:

Representing that real estate has characteristics, uses, or benefits which it does not have; or

Representing that an agreement confers or involves rights, remedies, or obligations that it did not have or involve, or which are prohibited by law; or

Failing to disclose information about real estate that was known at the time of the transaction with the intention to induce Modesta Perales into a transaction she otherwise would not have entered into if the information had been disclosed.

The Stringers do not contest the fact that the garage on the property deeded to Perales encroached onto Lot 12—a lot not owned by Perales.

Perales testified that the Stringers indicated the property line included the garage. The Stringers later admitted it did not. Even if the Stringers did not knowingly make this misrepresentation, this would still be a DTPA violation because knowledge, or any other degree of scienter, is not a prerequisite to DTPA liability for actual damages. Henry S. Miller Co. V. Bynum, 797 S.W.2d 51, 55 (Tex. App.—Houston [1st Dist.] 1990), aff’d, 836 S.W.2d 160 (Tex. 1992). The evidence is legally and factually sufficient to support the jury’s finding that the Stringers engaged in a false, misleading, or deceptive act.

The jury was then asked if the Stringers engaged in any unconscionable action or course of action that was a producing cause of Perales’s damages. The jury was advised that “an unconscionable action or course of action is an act or practice that, to a consumer’s detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.”

The Stringers contend it is inconceivable that they could take advantage of Perales because she had equal knowledge of the payments she made. The Stringers did, however, repeatedly represent to Perales in demand letters and in person that she was in default of the contract for deed and that they had the right to evict her. The Stringers do not contest the jury’s finding that they demanded payment of money which was not due. The Stringers were represented by counsel during these threats, but Perales was not. The evidence was legally and factually sufficient to support the jury’s finding that the Stringers’ actions were unconscionable.

Finally, the jury found that the Stringers’ failure to comply with a warranty was a producing cause of Perales’s damages. The jury was instructed that the failure to comply with a warranty includes failing to comply with an express warranty or the implied warranty of good and merchantable title. The Stringers argue that there can be no warranty until there is a conveyance. The Stringers further argue that this is in fact another attempt at expanding the breach of contract claims. These are not challenges to the sufficiency of the evidence. The Stringers did not object to the submission of the warranty question at trial; therefore, they have waived its review on appeal. See Tex. R. App. P. 33.1 (a); Lotfi, 18 S.W.3d at 858.

We overrule point of error two.

Fraud

In point of error three, the Stringers argue that the evidence was legally and factually insufficient to support the jury’s findings that the Stringers committed fraud and that the harm to Perales resulted from fraud. The Stringers base their argument on the premise that “there cannot be actionable fraud where each of the parties is equally cognizant of the facts.” Roan v. Reynolds, 364 S.W.2d 763, 766 (Tex. App.—Amarillo 1963, writ dism’d); see also William B. Roberts, Inc. v. McDrilling Co., Inc., 579 S.W.2d 335, 339 (Tex. App.—Corpus Christi 1979, no writ). It is the Stringers’ position that there is no evidence that they had superior knowledge of whether Perales was in default. For years, they had been sending Perales letters notifying her of her delinquency. The Stringers then argue that “Perales never testified that Mrs. Stringer had failed to credit all the payments.”

In fact, the Stringers admitted they neglected to credit Perales with a $12,000 payment. Also, the spoliation instruction permitted the jury to assume there may have been additional payments made, but the Stringers destroyed the evidence.

The jury was instructed that fraud occurs when (1) a party makes a material misrepresentation, (2) the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, (3) the misrepresentation is made with the intention that it should be acted on by the other party, and (4) the other party acts in reliance on the misrepresentation and thereby suffers injury. The Stringers do not contest the sufficiency of the evidence to support the jury’s finding that the Stringers “demand[ed] the payment of money which was not due, under threat that they would enforce rights which they claimed under the Contract for Deed.” The fraud question included a definition that “misrepresentation” means, among other things, a false statement of fact.

The evidence was legally and factually sufficient to support the jury’s finding of fraud.

The jury was then asked if it found by clear and convincing evidence that the harm to Perales resulted from fraud. The evidence is legally and factually sufficient to support the finding that Perales’s eviction resulted from the Stringers’ demand for money which was not due.

We overrule point of error three.

Reliance

In point of error four, the Stringers argue that there is legally and factually insufficient evidence of reliance under the theories of DTPA and fraud.

We have already held that the evidence was legally and factually sufficient to support the jury’s findings of DTPA and fraud; therefore, we overrule point of error four.

Theft

In point of error 10, the Stringers assert that the evidence is legally and factually insufficient to support the jury’s answer regarding theft.

The Stringers argue that “no damage issue was conditioned on the answer to this question” and that “breaching a contract is not a crime lest everyone who loses a contract dispute be branded a criminal.” The Stringers did not object to the submission of this question to the jury; therefore, any complaint they may have regarding the submission of the theft question is waived. See Tex. R. App. P. 33.1(a); Lotfi, 18 S.W.3d at 858.

We overrule point of error 10.

Damages

In points of error five, six, seven, and eight, the Stringers argue that there was legally and factually insufficient evidence to support damages for lost profits, relocation expenses, loss of personal possessions, and usury. In point of error nine, they contend that there is “no legal basis” to support a judgment for mental anguish or exemplary damages.

Lost Profits

In point of error five, the Stringers argue that there is legally and factually insufficient evidence to support the jury’s finding of damages for lost profits. The jury found that $120,000 would fairly and reasonably compensate Perales for lost profits from her furniture business.

Lost profits are damages for the loss of net income to a business measured by reasonable certainty. See Tex. Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994). Recovery for lost profits does not require that the loss be susceptible to exact calculation. Id. However, the injured party must do more than show that it suffered some lost profits. Id. The loss amount must be shown by competent evidence with reasonable certainty. Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994); Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992). This is a fact-intensive determination. Heine, 835 S.W.2d at 84. At a minimum, opinions or lost-profit estimates must be based on objective facts, figures, or data from which the lost-profits amount may be ascertained. Szczepanik, 883 S.W.2d at 649; Heine, 835 S.W.2d at 84. Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates. Heine, 835 S.W.2d at 84. “Where there is an established business, pre-existing profits may be used to evidence the amount of loss with reasonable certainty.” White v. Southwestern Bell Tel. Co., Inc., 651 S.W.2d 260, 262 (Tex. 1983).

The jury found that $120,000 would fairly and reasonably compensate Perales for lost profits from her furniture business. The Stringers contend that Perales cannot recover these damages because (1) her only evidence of lost profits “consists of 24 words of her testimony” and (2) lost profits are consequential damages and therefore cannot be recovered unless the Stringers contemplated the lost profits would be a probable result of the breach.

Perales testified that she sold home and computer furniture and mattresses from her home. She would buy furniture and mattresses from a warehouse, and resell it to customers. She testified that she would drive her truck to the warehouse once or twice a week to get the furniture, and she estimated her profits were between $35,000 and $40,000 a year, but she was uncertain what her gross sales were.

Perales testified that when she returned from jogging at the park one day, she found a moving van in front of her house. She was told she could get a change of clothes, but nothing else. They removed all her items, including her truck, her computer, and all her paperwork related to her furniture business. Therefore, she does not know the net figures relating to her business.

At trial, the Stringers did not dispute the fact that Perales’s eviction caused her furniture business to go out of business. As a result, their complaints on appeal must be confined to the amount of the lost profits, only. Perales testified that her furniture company had profits of between $35,000 and $40,000 a year. As such, she testified

that her furniture business was an established business that had pre-existing profits; therefore, Perales’s testimony “may be used to evidence the amount of loss with reasonable certainty.” White, 651 S.W.2d at 262.

The Stringers next contend that lost profits are consequential damages because the Stringers could not have anticipated that the lost profits would be a probable result of the breach. See Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex. 1981).

The damages finding was predicated on an affirmative finding to the breach of contract (both in 1993 and 1998), DTPA, or fraud questions. Foreseeability is not a requirement for the recovery of damages under the DTPA. Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995); Smith v. Heard, 980 S.W.2d 693, 697 (Tex. App.—San Antonio 1998, pet. denied) (the producing cause nexus required by the DTPA lacks the forseeability element of proximate cause, leaving only cause-in-fact analysis). Therefore, the evidence was legally and factually sufficient to support the damages for lost profits.

We overrule point of error five.

Relocation Expenses

The jury found that $50,000 would fairly and reasonably compensate Perales for the reasonable and necessary relocation expenses incurred, including rent, storage of furniture and property, travel and transportation for her two minor children, and extra costs of meals.

Perales testified that she incurred $2,000 a month in expenses for three years, or $72,000. She testified that these were extraordinary expenses she would not have incurred if she had not been evicted. These expenses include traveling expenses incurred while traveling to and from Omaha, where her children went to live after she was evicted.

The Stringers contend that Perales’s $2,000 a month expenses are simply living expenses she would have incurred even if she had not been evicted. Furthermore, the Stringers assert that, because Perales would have a $1,076.24 payment every month had she not been evicted, that amount should be deducted from the $2,000 Perales claims. Perales testified, however, that the rent she was having to pay after the eviction was “like throwing money away.” Whereas, paying off the mortgage was making an investment in her home.

The Stringers argue that they could not have contemplated in 1993 that these damages would result from their conduct. As previously stated, foreseeability is not a requirement for the recovery of damages under the DTPA. Doe, 907 S.W.2d at 481; Smith, 980 S.W.2d at 697.

The evidence was legally and factually sufficient to support the relocation expense damages.

We overrule point of error six.

Loss of Personal Possessions

The jury found that Perales’s personal property, including furniture, vehicles, and business inventory was fairly and reasonably valued at $50,000.

The Stringers concede that the following facts underlying this claim are undisputed:

(1) the constable moved Perales’s property out of the house to Security Storage;

(2) Perales paid $4600 to reclaim her possessions;

(3) Perales moved her possessions to Memorial Park Mini Storage, a less expensive storage facility; and

(4) Memorial Park Mini Storage sold Perales’s possessions after she failed to pay rent.

The Stringers argue that the causative link between the eviction and the eventual sale of Perales’s possessions is too attenuated. We disagree. Security Storage was charging Perales $30 a day to store her belongings. She chose to move them to a less expensive facility, but had to pay $4600 to reclaim them. Once in the new facility, Perales testified she was still unable to rehabilitate her furniture business because she did not have the accounts receivables, and her computer records were removed. Her sole source of income was gone. As a result, she was unable to pay the rent at even the less-expensive storage facility.

A jury may base a finding of proximate cause solely on circumstantial evidence. See Summers v. Fort Crockett Hotel, Ltd., 902 S.W.2d 20, 25 (Tex. App.—Houston [1st Dist.] 1995, pet. denied). To be a superseding cause, the intervening force must have been unforseeable. See Phan Son Van v. Pena, 990 S.W.2d 751, 754 (Tex. 1999).

The jury could have determined that it was foreseeable to the Stringers that evicting Perales from her home, removing her sole source of income, and placing her belongings in a facility that cost approximately the same as her payments under the deed would ultimately result in the loss of her possessions.

The evidence was legally and factually sufficient to support the jury’s award of damages for loss of personal possessions.

We overrule point of error seven.

Usury

In point of error eight, the Stringers argue that there is legally and factually insufficient evidence for usury penalties.

Under Texas law, usury is defined as the contracting for, charging of, or collecting of interest in excess of the amount allowed by law. See Tex. Fin. Code Ann. § 301.002(a)(17) (Vernon Supp. 2003). Interest is defined as compensation for the use, forbearance, or detention of money. Tex. Fin. Code Ann. § 301.002(a)(4) (Vernon Supp. 2003).

Whether an amount of money is interest depends not on what the parties call it, but on the substance of the transaction. Gonzales County Sav. & Loan Ass’n v. Freeman, 534 S.W.2d 903, 906 (Tex. 1976). Thus, for example, the Texas Supreme Court has held that a lender’s requirement that a borrower assume a third party’s debt to the lender constitutes interest on the loan to the borrower. Alamo Lumber Co. v. Gold, 661 S.W.2d 926, 928 (Tex. 1983). By the same token, not every obligation on a borrower in connection with a loan is interest. For example, the supreme court has held that a lender’s requirement that a borrower assume a third party’s debt to another person does not constitute interest on the loan to the borrower. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 935-37 (Tex. 1991). Amounts charged or received in connection with a loan are not interest if they are not for the use, forbearance, or detention of money. See First Bank v. Tony’s Tortilla Factory, Inc., 877 S.W.2d 285, 288 (Tex. 1994) (bank’s fee for checks drawn on account with insufficient funds not interest); Texas Commerce Bank-Arlington v. Goldring, 665 S.W.2d 103, 104 (Tex. 1984) (lender’s attorney’s fees charged to borrower not interest); Stedman v. Georgetown Sav. & Loan Ass’n, 595 S.W.2d 486, 488 (Tex. 1979) (commitment fee not interest). Interest is defined to include compensation allowed for the detention of money. Tex. Fin. Code Ann. § 301.002(a)(4) (Vernon Supp. 2003). When a creditor assesses a charge against a debtor who withholds payment when a debt is due, the charge constitutes compensation for the detention of money, or interest. See Hardwick v. Austin Gallery of Oriental Rugs, Inc., 779 S.W.2d 438, 443 (Tex. App.—Austin 1989, writ denied); Dixon v. Brooks, 604 S.W.2d 330, 333 (Tex. Civ. App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.).

To prove usury, a party must establish (1) a loan of money, (2) an absolute obligation to repay the principal, and (3) the exaction of a greater compensation than allowed by law for the borrower’s use of the money. See Tony’s Tortilla Factory, 877 S.W.2d at 287. Moreover, because usury statutes are penal in nature, they must be strictly construed. Steves Sash & Door Co., Inc. v. Ceco Corp., 751 S.W.2d 473, 476 (Tex. 1988).

Here, the trial court awarded Perales $241,709.85 for usury penalties. This amount was apparently derived from the jury answers to the following questions:

Did Bob Stringer and Ruth Stringer demand the payment of money which was not due, under threat that they would enforce rights which they claimed under the Contract for Deed? (Yes)

What amount of money did the Stringers demand or receive pursuant to such threats? ($51,708.95)

The trial court tripled the amount to $155,126.85 pursuant to Texas Finance Code section 305.001(a)(1) which penalizes a creditor who contracts for, charges, or receives interest that is greater than the amount authorized under the section. See Tex. Fin. Code Ann. § 305.001(a)(1) (Vernon Supp. 2003). The Finance Code provides an additional penalty for forfeiture of all principle and interest previously paid if the creditor receives interest which is more than twice the legal amount. See Tex. Fin. Code Ann. § 305.002(a) (Vernon Supp. 2003). The jury determined that Perales paid the Stringers $86,483 in principle and interest. That amount was added to the tripled amount for a total of $241,709.85.

On appeal, the Stringers argue that there can be no finding of usury because the jury question did not mention usury and there was no finding of excessive interest. Again, the Stringers did not object to the submission of the jury question; therefore, any complaint they may have regarding the submission of these questions is waived. See Tex. R. App. P. 33.1(a); Lotfi, 18 S.W.3d at 858.

They next argue that there is no evidence of excessive interest. The contract for deed was for a principle amount of $85,000. The jury found that the Stringers demanded payment of $51,708.95 that was not due under the contract. The Stringers do not argue that the evidence is insufficient to support this finding. They simply argue that the evidence is insufficient to support the implication that the entire amount represented excessive interest. Because the jury found none of the money demanded was in fact due, if any of the $51,708.95 represented interest, there would be usury. “Any interest charged in an interest-free period is in excess of twice the legal rate of zero.” George A. Fuller Co. v. Carpet Serv., Inc., 823 S.W.2d 603, 604 (Tex. 1992).

The evidence was legally and factually sufficient to support the usury penalties because (1) the Stringers executed a contract for deed that loaned Perales money, (2) Perales had an absolute obligation to repay the principal, and (3) the Stringers threatened to enforce rights under the contract for deed through the exaction of a greater compensation than allowed by law for Perales’s use of the money. See Tony’s Tortilla Factory, 877 S.W.2d at 287.

We overrule point of error eight.

Mental Anguish/Exemplary Damages

In point of error nine, the Stringers argue that there is no legal basis to support a judgment for mental anguish or exemplary damages. The jury found that $200,000 would fairly and reasonably compensate Perales for her past mental anguish. It also found $500,000 in exemplary damages because the Stringers’ conduct was committed knowingly and/or intentionally.

The Stringers’ only contention is that these types of damages are improper in breach of contract claims. See Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 71-72 (Tex. 1997) (mental anguish); Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) (exemplary damages). We agree with this statement. Here, however, there were findings of DTPA violations and fraud. We have already held that the evidence was sufficient to support those findings.

We overrule point of error nine.

Prejudgment Interest

In point of error 11, the Stringers argue that the trial court erred in its calculation of prejudgment interest.

The trial court awarded Perales prejudgment interest beginning September 3, 1998. The Stringers state, “this date has no relevance to any date in the record,” and assert that the prejudgment interest should start to run from 180 days after August 17, 1998, when Perales filed suit in county court to enjoin the execution of the eviction. This argument is based on section 304.104 of the Finance Code, which provides, “prejudgment interest accrues on the amount of a judgment during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered.” Tex. Fin. Code Ann. § 304.104 (Vernon Supp. 2003). We agree with the Stringers that it is unclear why the prejudgment interest began accruing on September 3, when it is uncontested that Perales filed suit on August 17. See Miga v. Jensen, 96 S.W.3d 207, 217 (Tex. 2002) (modified appellate court’s judgment to reflect that prejudgment interest runs from the date suit is filed to the date of judgment.) Prejudgment interest should have begun to run from August 17, 1998, more than two weeks earlier than the judgment indicates. This error was, however, harmless as it relates to the Stringers.

We overrule point of error 11.

Conclusion

We affirm the judgment.

George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Hanks, and Price.