Momentum Motor Cars Ltd D/B/A Momentum Saab and Tavax Inc. D/B/A Discount Car Clinic v. Karl and Sue Haunstein ( 2006 )

Affirmed as Modified and Memorandum Opinion filed July 20, 2006

Affirmed as Modified and Memorandum Opinion filed July 20, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-05-00478-CV

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MOMENTUM MOTOR CARS, LTD. D/B/A MOMENTUM SAAB AND TAVAX, INC. D/B/A DISCOUNT CAR CLINIC, Appellants

V.

KARL AND SUE HAUENSTEIN, Appellees

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 113,113

M E M O R A N D U M   O P I N I O N

After the successive failures of two replacement transmissions in their Saab automobile, Karl and Sue Hauenstein sued Momentum Motor Cars, Ltd. d/b/a Momentum Saab (the provider of the two transmissions), Tavax Inc. d/b/a Discount Car Clinic (the installer of the two transmissions); and Saab Cars USA (the manufacturer of the two transmissions).  Among other claims, the Hauensteins alleged violations of the Texas Deceptive Trade Practices Act, principally regarding the time delays experienced in obtaining replacement transmissions.  A jury found that Discount Car Clinic knowingly engaged in false, misleading, or deceptive acts or practices, that Discount and Momentum knowingly engaged in unconscionable conduct or courses of conduct, and that the Hauensteins suffered damages, including mental anguish damages.  The jury also found that Saab Cars USA was not liable to the Hauensteins for any of the alleged conduct.  The trial court entered judgment in keeping with the jury findings.

On appeal, both Momentum and Discount contend that the evidence is legally insufficient to support the conclusions that (1) they acted unconscionably toward the Hauensteins, (2) they committed such acts knowingly, and (3) the Hauensteins suffered mental anguish.  We modify the judgment to remove the award of mental anguish damages and affirm the judgment as modified.^[1]

I.  Background

A brief time line of relevant events follows:

$ 1996:  Karl Hauenstein bought a used Saab sedan.

$ 1/8/99:  When the transmission failed, Hauenstein took the vehicle to Discount.^[2]

$ 1/16/99:  Discount returned the vehicle to Hauenstein after installing a new Saab transmission.  The replacement transmission was obtained from Saab Cars USA (the manufacturer) through Momentum (a local Saab dealership).

$ 7/18/99:  The new transmission developed problems, and Hauenstein had the vehicle towed back to Discount.

$ About one week later, Discount told Hauenstein that there was a dispute between it and Momentum regarding whether Discount had used the proper transmission fluid when it installed the new transmission.

$ 8/2/99:  Hauenstein wrote a demand letter to Momentum.

$ 8/6/99:  Hauenstein wrote a complaint letter to the Texas Attorney General=s Office.

$ 9/7/99:  Momentum responded to the Attorney General complaint, asserting that Discount had used the wrong fluid but Saab had nonetheless agreed to provide a replacement transmission.

$ 9/15/99:  Discount responded to the Attorney General, asserting that it had used the proper transmission fluid, that Momentum=s Ainauspicious fluid assessment@ and indifference had caused the delays, and that a new transmission had been received for installation in Hauenstein=s vehicle.

$ 9/16/99:  Hauenstein notified the Attorney General that the transmission issue had still not been resolved.

$ 9/27/99: Discount returned Hauenstein=s vehicle to him with a new transmission installed.

$ 10/15/99:  The new transmission failed, and Hauenstein returned the vehicle to Discount.

$ October 1999:  Discount told Hauenstein that Momentum had refused to provide another replacement transmission.

$ October or November 1999:  The Hauensteins retained counsel.

$ 1/5/00:  The Hauensteins= attorney wrote demand letters to both Discount and Momentum.

$ 1/13/00:  Momentum=s attorney stated in a letter to the Hauensteins= attorney that a transmission had been available for Discount to pick up since November.

$ 1/24/00:  The Hauensteins= attorney wrote a letter to Discount=s attorney regarding the availability of the transmission.

$ 3/30/00:  The Hauensteins filed the present lawsuit.

$ 7/12/00:  Discount=s attorney wrote a letter to Momentum=s attorney.

$ 7/28/00:  Momentum=s attorney responded and offered a replacement transmission.

$ August 2000:  Discount=s attorney accepted Momentum=s offer of a replacement transmission.

$ 9/9/00:  The Hauensteins= vehicle was returned with a new transmission.  They sold the vehicle shortly thereafter.

When the original transmission failed, the vehicle was repaired and returned in about eight days.  After the first replacement transmission failed, seventy-seven days elapsed before a second replacement transmission was installed and the vehicle returned.  After the second replacement transmission failed, it took about 324 days for a third replacement transmission to be installed and the vehicle returned.  Although each replacement transmission came with a one year warranty from the manufacturer, Hauenstein testified that because he never received a written warranty from Discount, he did not know that he could have taken the vehicle to any dealer to have the warranty honored.

After the first replacement transmission failed, Hauenstein was told that there was a dispute between Discount and Momentum regarding whether Discount had used the correct fluid in the transmission.  There are various references in the record to testing the transmission fluid from the first replacement transmission.  Fred Tavicoli, Discount=s owner, stated that he sent a sample of the fluid to Momentum for testing.  John Sokol, a service manager for Saab Cars USA, testified that he was told by someone at Momentum that the fluid was to be tested.  Later, Sokol was informed that the fluid had been tested and that the results were inconclusive.  Sokol stated that in his twenty-four years of automotive experience, he had no recollection of an outside mechanic=s ever having used the incorrect fluid in a Saab transmission.  A letter from Discount to the Attorney General states that Momentum initially refused to test the fluid despite having asserted that the wrong fluid was used.  Discount further stated in the letter that when Momentum eventually agreed to test the fluid, the testing revealed that the correct fluid had been used.  However, the record contains neither documentation that such testing was ever performed nor the results of such testing.

After the second replacement transmission failed, a Discount service advisor told Hauenstein that Momentum had said that it would not honor the warranty unless Momentum had installed the prior transmission. According to the service advisor, Momentum therefore required Discount to tow the vehicle to Momentum.  When Hauenstein subsequently called Momentum, a Momentum representative told him that Momentum had not requested that the car be towed to them; rather, Discount had Adumped@ the vehicle on Momentum, and Hauenstein would have to pay towing and storage fees if the vehicle was not removed.  Tavicoli testified that Discount kept the vehicle inside while it was awaiting a new transmission, but Hauenstein testified that he frequently observed the vehicle left outside at Discount.

Tavicoli further testified that Momentum refused to provide another replacement transmission.  He said that he did not receive notice of a transmission being made available in November 1999, as claimed in the letter from Momentum=s counsel dated January 13, 2000.  He also stated that even after he was informed in January that Momentum had a transmission available, Momentum still refused to give him the transmission.

Tavicoli additionally testified that Hauenstein was very upset when he learned that he could not get another transmission after the October 15, 1999, failure.  Hauenstein testified regarding the vehicle=s importance to him; it was the car that he drove on a Aday to day@ basis.  He said that he bought it because of Saab=s reputation for reliability, and he intended to keep it for a long time.  During the seventy-seven days that it took to get the second replacement transmission installed, Hauenstein depended on his wife to drive him everywhere he needed to go, including to and from work.  He stated that he was angry at Momentum and Discount during each period of delay.  He said that he felt Aback to square one@ and was horribly frustrated, and that things Aseemed to be spinning out of control.@  Hauenstein said that he contacted Discount frequently, calling every day or at least every other day for a time.  He stated that this was a very bad period in his life, and he lost a lot of sleep.  He had increasing feelings of helplessness, was Aextremely unhappy,@ felt a lot of hostility and other negative emotions, and said that Ait was very unpleasant to be me.@  He further said that the episode affected his relationships with his wife and his sons and that they argued a lot.  However, Hauenstein ultimately acknowledged that Aanguish@ was Aa bit strong@ to use in describing his mental state.

Sue Hauenstein testified that Karl loved the vehicle, was very attached to it, and planned to keep it for awhile.  She stated that the seventy-seven days waiting for the second replacement transmission were very emotional and frustrating.  She said that her husband changed during that time and things became tense; everyone was upset.  She had to plan her day around taking her husband to work, and he hated being an inconvenience.  She said that she felt helpless, as if she and her husband Adid not count.@  She stated that she had trouble sleeping and that her irritable bowel syndrome became more problematic than usual.  When her irritable bowel syndrome Akicked in,@ she felt like her Alife was over.@

Regarding the period after the second replacement transmission failed, Sue Hauenstein said that the situation was even worse. She became afraid that they were never going to see the vehicle again, and her irritable bowel syndrome was worse than usual.

A jury found that Discount Car Clinic engaged in false, misleading, or deceptive acts or practices and that Discount and Momentum engaged in unconscionable acts or courses of conduct.  The jury also found that Saab Cars USA was not liable to the Hauensteins for any of the alleged conduct.  The jury awarded actual damages to the Hauensteins, including $9,357.31 in non-mental anguish damages, $5,000 for Karl Hauenstein=s mental anguish and $2,500 for Sue Hauenstein=s mental anguish.  The jury further found that Discount and Momentum knowingly engaged in the conduct, and on this basis, it assessed an additional $7,500 in damages.  The jury determined that Discount was 60 percent responsible for the Hauensteins= damages, and that Momentum was 40 percent responsible.  The jury also awarded attorney=s fees to the Hauensteins.  Based on the jury=s verdict and its calculation of prejudgment interest, the trial court entered judgment ordering Discount to pay the Hauensteins $17,395.89 in damages plus postBjudgment interest and attorney=s fees, and ordering Momentum to pay the Hauensteins $11,597.22 plus postBjudgment interest and attorney=s fees.

II.  Standard of Review

Appellants challenge the legal sufficiency of the evidence on several of the jury findings.  The test for legal sufficiency is whether the evidence at trial Awould enable reasonable and fair‑minded people to reach the verdict under review.@  City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).  In making this determination, we must view the evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable fact‑finder could and disregarding any contrary evidence unless a reasonable fact‑finder could not.  Id. at 821‑22, 827.  We may sustain a legal sufficiency challenge only when (1) the record discloses the complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Id. at 810.  Because appellees did not make any objections to the language in the charge, we review their legal sufficiency challenges based on the charge as given.  See Minn. Life Ins. Co. v. Vasquez, 49 Tex. Sup. Ct. J. 498, 501, 2006 WL 889724, at *3 (Tex. April 7, 2006).

III.  Unconscionability

In their respective first issues, Momentum and Discount each contend that the evidence was legally insufficient to support the jury=s finding that they engaged in an unconscionable action or course of action toward the Hauensteins.  Section 17.50(a)(3) of the Deceptive Trade Practices Act provides that a consumer may recover actual damages for Aany unconscionable action or course of action@ that is the producing cause of damages.  Tex. Bus. & Com. Code Ann. ' 17.50(a)(3) (Vernon Supp. 2005).  The DTPA defines an Aunconscionable action or course of action@ as Aan act or practice, which . . . takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.@  Id. ' 17.45(5).  The instructions accompanying jury charge Question 9 tracked this statutory language.  Caselaw further informs us that unconscionability under the DTPA is an objective standard for which scienter is irrelevant.  Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 677 (Tex. 1998).  To prove an unconscionable action or course of action, a plaintiff must show that the defendant took advantage of the plaintiff=s lack of knowledge and that the resulting unfairness was glaringly noticeable, flagrant, complete, and unmitigated.  Bradford v. Vento, 48 S.W.3d 749, 760 (Tex. 2001).  The relevant inquiry examines the entire transaction but not the defendant=s intent.  Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985).

A.  Momentum

During the events underlying this lawsuit, Momentum was a Saab dealership.  The Hauensteins indicated in their testimony that they are not particularly knowledgeable about automobiles or auto repair.  After the first replacement transmission failed, Momentum initially refused to honor the warranty because it claimed that Discount had used the wrong transmission fluid.  Despite this claim, a letter from Discount stated that Momentum at first refused to even test the fluid.  Although there was some testimonial evidence that the fluid was eventually tested, the jury, in its role as fact-finder, was free to disregard that testimony.  See City of Keller, 168 S.W.3d at 819-20.  There is no documentary evidence that such testing ever occurred.  A Momentum representative apparently told John Sokol, Saab=s area service manager, that the testing was inconclusive.  Tavicoli, however, testified that the testing confirmed that he had used the correct fluid.  Sokol testified that in his twenty-four years of automotive experience, he had no recollection of an outside mechanic=s ever having put the incorrect fluid in a Saab transmission.  Sokol also stated that he never saw the results of any testing.  Ultimately, Sokol told Momentum to provide a new replacement transmission for the Haeunstein=s vehicle.  In a letter to the Attorney General, Discount stated that the delay was due to Momentum=s indifference and Ainauspicious fluid assessment.@  On September 7, 1999, Momentum wrote to the Attorney General that Saab had agreed to replace the transmission; however, it was another twenty days before Hauenstein=s car was returned.  Although it only took seven days to obtain and install the first replacement transmission, it took a total of seventy-seven days to obtain and install the second replacement transmission.

After the second replacement transmission encountered problems in October 1999, Momentum again initially refused to honor the warranty and again asserted that there was a fluid-related problem.  There is no documentary evidence to support this claim.  Hauenstein testified that a Discount service advisor told him that Momentum required that the vehicle be towed to Momentum.  When Hauenstein subsequently called Momentum, a Momentum representative told Hauenstein that he would have to pay towing and storage fees if the vehicle was not removed.  In a letter dated January 13, 2000, Momentum=s attorney asserted that a transmission had been available for Discount to pick up since November; however, Tavicoli testified that he did not receive notice of a transmission=s being available until January 2000.  Even then, according to Tavicoli, Momentum would still not let him have the transmission. Despite evidence that both Hauenstein and Discount made frequent contact with Momentum, it wasn=t until after an exchange of letters between counsel that a third replacement transmission was finally installed in the Hauensteins= vehicle on September 9, 2000.  All told, it took about 324 days for the third replacement transmission to be obtained and installed.

The evidence was legally sufficient for the jury to conclude that Momentum engaged in an unconscionable course of action by asserting the fluid issues and using its superior knowledge, ability, experience, and capacity in an attempt to avoid honoring the warranty or at least to delay honoring the warranty on both occasions.  See generally Brown v. Galleria Area Ford, Inc., 752 S.W.2d 114, 116-17 (Tex. 1988) (holding evidence was legally sufficient to support unconscionability finding where plaintiffs= truck became Asuspended in limbo@ during change in ownership of dealership); Aetna Cas. & Sur. Co. v. Garza, 906 S.W.2d 543, 553B54 (Tex. App.CSan Antonio 1995, writ dism=d by agr.) (holding evidence was legally sufficient to support unconscionability finding where insurance company delayed providing insured with copy of policy and delayed making payments during lengthy investigation of claim); Centroplex Ford, Inc. v. Kirby, 736 S.W.2d 261, 263-64 (Tex. App.CAustin 1987, no writ) (holding evidence was legally sufficient to support unconscionability finding where repairs took six months after plaintiff was told they would take six weeks).^[3] Accordingly, we overrule Momentum=s first issue.

B.  Discount

Discount is a chain of auto repair shops.  Hauenstein testified that Discount advertised as a specialist on Swedish automobiles. Discount never provided Hauenstein with a copy of any of the one-year warranties associated with the replacement transmissions.  Hauenstein testified that he was therefore unaware that he could return the vehicle to any dealership to have the warranty honored and did not have to deal with Discount or Momentum.  Although Hauenstein testified that he had frequent contact with Discount regarding a second replacement transmission, it was not until Hauenstein filed a complaint with the Texas Attorney General that a new transmission was installed.  Still, it took seventy-seven days for the second replacement transmission to be installed.

After the second transmission encountered problems, Discount told Hauenstein that Momentum was refusing to provide another replacement.  Momentum was, apparently, again alleging that Discount had improperly installed the transmission.  There is scant evidence in the record, however, that Discount was doing anything to convince Momentum that the transmission was properly installed.  This was despite the fact that Hauenstein testified he had frequent contact with Discount regarding his vehicle.  After the Hauensteins obtained counsel and counsel wrote demand letters to both companies, Momentum=s attorney stated in a letter dated January 13, 2000, that a replacement transmission had been available since November.  Even after January 2000, when Tavicoli admits that he became aware that a transmission was available, he failed to contact Momentum=s attorney as suggested by the Hauensteins= counsel.  Indeed, it was not until almost four months after the Hauensteins filed their lawsuit that Discount=s attorney wrote a letter to Momentum=s attorney regarding the replacement transmission.  Tavicoli acknowledged that he did not do anything to obtain a transmission between the time the lawsuit was filed in March 2000 until July 2000.  There was also an indication in the record that he had neglected to deliver the failed transmission to Momentum, which was apparently a prerequisite for obtaining a replacement under the warranty.  A total of over ten months elapsed between the time Momentum=s attorney claimed a transmission had been available and the time Discount actually obtained and installed the transmission.

At one point, a Discount service advisor told Hauenstein that Momentum had required that the vehicle be towed to Momentum.  A Momentum representative indicated to Hauenstein that this was a fabrication and that Discount had Adumped@ the vehicle on Momentum.  Altogether, it took about 324 days for the third replacement transmission to be obtained and installed.

The evidence was sufficient for the jury to conclude that Discount engaged in an unconscionable act or course of action by failing to provide Hauenstein with his warranty documents, misleading him regarding Momentum=s position, and failing to timely obtain and install the replacement transmissions.  See generally Brown, 752 S.W.2d at 116-17; Garza, 906 S.W.2d at 553B54; Centroplex Ford, 736 S.W.2d at 263-64.  Accordingly, we overrule Discount=s first issue.

IV.  Knowingly

In their respective second issues, Momentum and Discount each contend that the evidence is legally insufficient to prove that they knowingly committed the unconscionable conduct.  The instructions accompanying Question 12 stated:  A>Knowingly= means actual awareness, at the time of the conduct, of the falsity, deception, or unfairness of the conduct in question . . . .  Actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.@  See TEX. BUS. & COM. CODE ANN. ' 17.45(9) (Vernon 2002) (using substantially similar language).  The Texas Supreme Court has further explained that A>[a]ctual awareness= does not mean merely that a person knows what he is doing; rather, it means that a person knows that what he is doing is false, deceptive, or unfair.  In other words, a person must think to himself at some point, >Yes, I know this is false, deceptive, or unfair to him, but I=m going to do it anyway.=@  St. Paul Surplus Lines Ins. Co. v. Dal‑Worth Tank Co., 974 S.W.2d 51, 53‑54 (Tex. 1998).  Direct evidence is not required to show that a DTPA violation was undertaken knowingly.  See Gomez v. Diaz, 57 S.W.3d 573, 579 (Tex. App.CCorpus Christi 2001, no pet.).

Clearly, representatives of both Momentum and Discount knew that the Hauensteins did not have use of their vehicle during the waiting periods for the second and third replacement transmissions.  They also knew that it was their failure to provide or obtain the replacement transmissions that caused the periods of delay.  The jury could certainly have concluded from these facts and the facts discussed above regarding unconscionability that Momentum and Discount had actual awareness, at the time of the conduct, of the falsity, deception, or unfairness of the conduct.

Both Momentum and Discount were involved in correspondence and other communication with the Attorney General=s Office, the Hauensteins, and the Hauensteins= counsel. Specifically regarding Momentum, Sokol=s testimony that in his twenty-four years of experience he had no recollection of an outside mechanic=s ever having used the incorrect fluid in a Saab transmission suggests that a Saab dealership, such as Momentum, would have known this to be an unlikely scenario. Nevertheless, Momentum pursued this argument not only in regard to the failure of the second replacement transmission but also in regard to the failure of the third replacement transmission.  Furthermore, while Momentum=s attorney asserted that a transmission had been available since November, Tavicoli testified that he did not receive notice of a transmission being available until January 2000, and even then, Momentum would still not let him have the transmission.  Certainly, the jury could have concluded that Momentum knew it had claimed that a replacement was available but then failed to provide it as claimed.

Similarly, the jury could have concluded that Discount knew that it did not give Hauenstein his warranty documents, that it was not doing much to obtain replacement transmissions, and that it failed to give the second replacement transmission to Momentum after it failed.  There was also evidence that Discount Adumped@ the vehicle on Momentum and fabricated a story that Momentum required that the vehicle be towed to it.  Tavicoli testified at one point that he knew the delays were very frustrating to Hauenstein and that Hauenstein had a right to be upset.

Thus, the evidence was legally sufficient to support the jury=s finding that Momentum and Discount knowingly committed the unconscionable conduct.  We overrule Momentum=s and Discount=s respective second issues.

V.  Mental Anguish

In their respective third issues, Momentum and Discount each challenge the legal sufficiency of the evidence to support the jury=s finding that the Hauensteins suffered compensable mental anguish.  The jury charge did not define Amental anguish.@  AMental@ is commonly defined as A[o]f or relating to the mind; intellectual.@  The Am. heritage Dictionary 786 (2d College Ed. 1991).  AAnguish@ is commonly defined as A[a]n agonizing physical or mental pain; torment.@  Id. at 110.  In line with these definitions, the Texas Supreme Court has stated that in order to support an award for mental anguish damages there must be evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.  Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).  An award will survive a legal sufficiency challenge when there is direct evidence of the nature, duration, and severity of the mental anguish, establishing a substantial disruption in the plaintiffs= daily routine.  Id. The supreme court has also emphasized that courts should Aclosely scrutinize@ awards of mental anguish damages.  Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex. 1997).

The most direct evidence of a person=s mental state comes from that person=s own testimony.  At trial, Hauenstein was asked: ADid you feel anguish about this whole transaction?@  He responded: AAnguish is a bit strong word [sic], but I felt let down.  I felt disappointed.@  Feeling let down and being disappointed do not constitute mental anguish.  Although not necessarily dispositive in a legal sufficiency review, Hauenstein=s comments regarding anguish color the remainder of his and his wife=s testimony regarding the impact of events on his mental state.

Tavicoli testified that Hauenstein seemed very upset about the situation.  Hauenstein himself testified that he felt bad that his wife had to drive him places, that he was angry at Momentum and Discount, that he felt Aback to square one,@ that he was horribly frustrated, and that things Aseemed to be spinning out of control.@  He testified that this was a very bad period in his life, and he lost a lot of sleep.  He experienced increasing feelings of helplessness as well as hostility and other negative emotions.  He said that Ait was very unpleasant to be me.@  He stated that when the second transmission failed, he was Aextremely unhappy.@  He further said that the episode affected his relationships with his wife and his sons and that they argued a lot.

Sue Hauenstein testified that the first period of delay was very emotional and frustrating.  She said that her husband changed during that time, things became tense, and everyone in the family was upset.  She said that she felt helpless, that she had trouble sleeping, and that her irritable bowel syndrome became more problematic.  She said that when her irritable bowel syndrome Akicked in,@ it felt like her Alife was over.@

Although the conduct of Momentum and Discount clearly had some negative effects on the Hauensteins, we find that the evidence does not demonstrate a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger.  See Parkway Co., 901 S.W.2d at 444; see also GTE Mobilnet of S. Tex. Ltd. P=ship v. Pascouet, 61 S.W.3d 599, 619 (Tex. App.CHouston [14th Dist.] 2001, pet. denied) (holding that evidence was insufficient to support mental anguish damages award where plaintiffs testified that the defendant=s conduct caused them anger, stress, distress, anguish, disappointment, lost sleep, worry, and embarrassment).  Although Hauenstein testified regarding a substantial disruption in his daily routine, it is clear that the disruption came from the loss of use of the vehicle and not from any associated mental anguish. Accordingly, we sustain Momentum=s and Discount=s third issues.

Conclusion

In summary, we find that the evidence was legally sufficient to support the jury=s findings that both Momentum and Discount knowingly engaged in unconscionable conduct toward the Hauensteins.  However, we find that the evidence was legally insufficient to support the award of mental anguish damages.

We modify the judgment to remove the award of mental anguish damages and affirm the judgment as modified.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed July 20, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Guzman.

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^[1]  As mentioned, the jury found that Saab Cars USA was not liable to the Hauensteins for any of the alleged conduct.  Consequently, Saab Cars USA did not file an appeal in this case.  Although the Hauensteins filed a notice of appeal in the trial court, they did not raise any grounds of error in their brief, and they did not identify Saab Cars USA as a party to this appeal either in their brief or in their notice of appeal.  Accordingly, Saab Cars USA is not a party to this appeal.

^[2]  Because most of the activity underlying this case involved Karl Hauenstein and not Sue Hauenstein, we will use the name AHauenstein@ by itself to refer to Karl.  When appropriate, Sue Hauenstein will be referred to by her full name.

^[3]  Momentum additionally argues that the jury=s finding that Momentum engaged in unconscionable conduct conflicts with its finding that Momentum did not engage in false, misleading or deceptive acts or practices.  We disagree.  The instructions accompanying Question 8 in the charge defined a Afalse, misleading, or deceptive act or practice@ specifically to include representations concerning the sale and quality of the transmissions.  The evidence of unconscionable conduct discussed in the text above did not involve representations concerning the sale and quality of the transmissions themselves, but involved other conduct relating mostly to the time delay in replacing the failed transmissions.