David D. Gonzalez, as an Individual and as a Trustee, and Gonzalez Financial Holdings, Inc. v. Anita Perez ( 2012 )

NUMBER 13-11-00605-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
DAVID D. GONZALEZ, AS AN INDIVIDUAL
AND AS TRUSTEE, AND GONZALEZ
FINANCIAL HOLDINGS, INC., Appellants,
v.
ANITA PEREZ, Appellee.
On appeal from the 430th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Vela
Memorandum Opinion by Justice Rodriguez
Appellee Anita Perez filed suit against appellants Gonzalez Financial Holdings,
Inc. (GFH) and David D. Gonzalez, alleging violations of the Texas Deceptive Trade
Practices—Consumer Protection Act (DTPA), fraud, conversion, and breach of contract.
The trial court granted Perez’s motion for partial summary judgment on liability for all
causes of action. Then, after an evidentiary hearing on damages, the trial court found
appellants knowingly violated the DTPA, entered final judgment against appellants, and
awarded Perez economic damages, additional damages, pre-judgment and
post-judgment interest, and attorney’s fees. By a single issue challenging the additional
damages awarded under the DTPA, appellants contend that the evidence is legally
insufficient to establish that appellants knowingly violated the DTPA.1 We affirm.
I. BACKGROUND2
It is undisputed that Perez assigned her taxes to GFH for paying her delinquent
property taxes. Perez also executed a promissory note to GFH for $20,117.93. A deed
of trust secured the note, naming Gonzalez, the president of GFH, as trustee. Perez fell
behind on the note, and her home was sold at foreclosure for $38,001.00. Perez testified
that she first heard of the foreclosure sale when the new owner told her that she had three
days to vacate her home. After she learned of the foreclosure, Perez contacted
appellants through her daughter-in-law.
Gonzalez’s deposition testimony was read into evidence at the hearing on
1
It is not clear from appellants’ brief whether they are attacking the legal or factual sufficiency of the
evidence to support the findings in favor of the judgment. However, appellants claim that Perez failed to
produce evidence that appellants knowingly violated her rights under the DTPA, and appellants ask this
Court to "reverse and render the judgment that [Perez is] denied additional damages under [t]he DTPA."
Rendition of judgment is appropriate when the evidence is legally insufficient. Vista Chevrolet, Inc. v.
Lewis, 709 S.W.2d 176, 177 (Tex. 1986) (per curiam); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).
Thus, we conclude appellants’ challenge is to the legal sufficiency of the evidence.
2
Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for
it. See TEX. R. APP. P. 47.4.
2
damages. Through his testimony, Gonzalez explained that Perez’s deed of trust and a
foreclosure notice would have provided Perez with information on how she should initiate
a request for excess proceeds from the foreclosure sale. The deed of trust in this case,
however, did not refer to a release as part of this process. And, we have found no
foreclosure notice in the record. Furthermore, Perez claims that at the time she signed
the deed of trust, appellants did not inform her that she would be required to sign a form,
which she described as a waiver, release, and indemnity form, in order to receive any
excess proceeds from the foreclosure sale of her house. Because Perez and her
counsel refused to sign the requested form, appellants would not release the excess
proceeds from the foreclosure sale.
Perez sued appellants “for wrongfully keeping money [from the foreclosure of her
home] that belongs to her and making misrepresentations to her.” In her petition, Perez
asserted that appellants “demanded, as a condition for returning the excess proceeds,
that [she] release them of all liability, something that is not required under law or contract.”
Perez filed a motion for partial summary judgment on liability only. The trial court
granted her motion. Two months later, following a hearing on damages, the trial court
entered a final judgment against appellants, awarding Perez $14,000.00 in economic
damages with pre-judgment interest of $2,508.33. Finding appellants knowingly violated
the DTPA, the trial court awarded Perez additional damages of $28,000.00. It also
awarded post-judgment interest and attorney’s fees of $31,780.00. This appeal,
challenging only the award of additional damages, ensued.3
3
Appellants do not challenge liability, the award of economic damages or attorneys’ fees, or the
amount of additional damages awarded.
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II. STANDARD OF REVIEW AND APPLICABLE LAW
When the appellate record includes the reporter's record, as in this case, the trial
court's findings are not conclusive and may be challenged on appeal for evidentiary
sufficiency. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). We review a
trial court's findings for legal sufficiency by the same standard applied to a jury verdict.
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Moore v. Jet Stream Invs.,
Ltd., 315 S.W.3d 195, 203 (Tex. App.—Texarkana 2010, pet. denied) (citing Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).
In reviewing the legal sufficiency of the evidence, we view all evidence in the light
most favorable to the judgment and indulge every reasonable inference in support of that
finding, crediting favorable evidence if a reasonable fact finder could and disregarding
contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168
S.W.3d 802, 807, 822 (Tex. 2005). The test is "whether the evidence at trial would
enable reasonable and fair-minded people to reach the [judgment] under review." Id. at
827. A legal sufficiency challenge will be sustained if the record shows one of the
following: (1) a complete absence of evidence of a vital fact; (2) rules of law or evidence
bar the court from giving weight to the only evidence offered to prove a vital fact; (3) the
evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence
conclusively establishes the opposite of the vital fact. Id. at 810. If there is more than a
scintilla of evidence to support the challenged finding, this Court must uphold it.
Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48
(Tex. 1998).
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The DTPA provides for the award of additional damages for statutory violations
that are committed "knowingly." TEX. BUS. & COM. CODE ANN. § 17.50(b)(1) (West 2011).
The DTPA defines "knowingly" as "actual awareness, at the time of the act or practice
complained of, of the falsity, deception, or unfairness of the act or practice giving rise to
the consumer's claim.” Id. § 17.45(9) (West 2011). "Actual awareness" does not mean
merely that a person knows what he is doing. St. Paul Surplus Lines Ins. Co. v.
Dal-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex. 1998) (op. on reh’g) (per curiam); see
Daugherty v. Jacobs, 187 S.W.3d 607, 618 (Tex. App.—Houston [14th Dist.] 2006, no
pet.). It is more than conscious indifference toward another’s rights or welfare; rather,
actual awareness means that a person knows that what he is doing is false, deceptive, or
unfair. St. Paul Surplus Lines Ins. Co., 974 S.W.2d at 54; Daugherty, 187 S.W.3d at 618.
In this case, we must affirm the trial court's finding if we find more than a scintilla of
evidence that appellants' conduct fit within the definition of "knowingly." See Burroughs
Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).
III. DISCUSSION
After providing this Court with authority regarding the award of additional damages
under the DTPA, appellants presented their argument, which follows in its entirety:
At the hearing on damages, [Perez] failed to show evidence that
[DFH and Gonzalez] knew that the requirement to fill out the form in order
for [Perez] to receive the excess proceeds was false, deceptive or unfair.
The only evidence [Perez] produced was testimony of [sic] that she was
inconvenienced and had to take care of her family by making several small
loans. [Perez] never offered testimony that [DFH and Gonzalez] knew
such a requirement was done for the sole purpose to defraud or deceive
[Perez]. Defendant Danny Gonzalez states in his deposition that as soon
as he was contacted by [Perez] via [her] attorney he only required them to
fill out a form and [Perez’s] counsel refused. Such evidence does not give
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rise to a knowing violation under the DTPA. Therefore, the trial court erred
by awarding additional damages in the amount of $28,000.00. (Record
citations omitted.)
However, at the hearing on damages, the trial court admitted Perez’s first request
for admissions propounded on David Gonzalez, the president and manager of GFH.
Relevant to our analysis, the admissions included the following: (1) “After the November
6, 2007 foreclosure sale, you represented to [Perez] that, to receive the excess proceeds
from the foreclosure sale, she would need to waive, release, or hold harmless you and the
trustee who sold [Perez’s] property”; and (2) “You knew that the representation . . . was
false when it was made.”4 Because appellants did not timely respond to Perez’s request
for admissions, they were deemed admitted. See TEX. R. CIV. P. 198.2. Appellants did
not request withdrawal or amendment of these admissions. See id. at R. 198.3.
Therefore, through their deemed admissions, appellants admitted that they represented
to Perez that she would need to sign a release before she could receive the excess
proceeds from the foreclosure sale, even though they knew that this representation was
false. In other words, based on their admissions, appellants knew that Perez did not
need to sign a release before she could receive the excess proceeds.
Appellants refer us to no authority or record documentation that supports their
position that Perez had to sign a release before she could receive the excess proceeds.
At the hearing, they offered no conflicting or controverting evidence—i.e., that they did not
know that the representation they made to Perez was false. The only evidence
appellants offered was Gonzalez’s deposition testimony regarding whether Perez was
4
Perez also sent a first request of admissions to DFH. It included these identical requests.
During the hearing, the trial court acknowledged that Perez’s request to DFH was on file and that it had
deemed the requests admitted.
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informed that she should initiate the request for any excess proceeds from a foreclosure
sale.
Therefore, viewing all evidence in the light most favorable to the judgment and
indulging every reasonable inference in support of the “knowingly” finding, we conclude
that the evidence is legally sufficient to support the trial court’s finding that appellants
knowingly violated the DTPA. See City of Keller, 168 S.W.3d at 807, 822. The trial
court's finding is supported by more than a scintilla of evidence that appellants' conduct fit
within the definition of "knowingly"; that appellants were actually aware that their actions
toward Perez were false. See Crye, 907 S.W.2d at 499; see also TEX. BUS. & COM. CODE
ANN. § 17.45(9); St. Paul Surplus Lines Ins. Co., 974 S.W.2d at 54; Daugherty, 187
S.W.3d at 618. Having concluded that there is more than a scintilla of evidence to
support the challenged finding, we must uphold the trial court’s judgment. See Formosa
Plastics Corp. USA, 960 S.W.2d at 48; see also City of Keller, 168 S.W.3d at 810. We
overrule appellants’ sole issue.
IV. CONCLUSION
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ
Justice
Delivered and filed the 13th
day of December, 2012.
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