Joel A. Ramsey and Marla K. Ramsey v. James R. Spray and Marianne Spray ( 2009 )


Menu:
  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-08-129-CV
    JOEL A. RAMSEY AND                                                APPELLANTS
    MARLA K. RAMSEY
    V.
    JAMES R. SPRAY AND                                                  APPELLEES
    MARIANNE SPRAY
    ------------
    FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
    ------------
    MEMORANDUM OPINION 1
    ------------
    In five issues, appellants Joel A. and Marla K. Ramsey appeal the award
    of damages to appellees James R. and Marianne Spray on the Sprays’
    Deceptive Trade Practices-Consumer Protection Act (DTPA) claim arising from
    the sale and purchase of a house. We affirm in part, reverse and render in part,
    1
    … See Tex. R. App. P. 47.4.
    and reverse and remand in part for further proceedings consistent with this
    opinion.
    I.   BACKGROUND
    In 2002, appellants Joel A. and Marla K. Ramsey decided to sell their
    house in Flower Mound, Texas, and hired Sharon Hodnett of Keller
    Williams/DFW as their agent.
    More than ten months before entering into a contract for sale of their
    house to James R. and Marianne Spray, the Ramseys completed a sellers’
    disclosure notice. Approximately five months before the sale closed on May
    23, 2003, the Ramseys discovered water damage in the kitchen caused by a
    leaky roof. The Ramseys, however, did not supplement or amend their sellers’
    disclosure notice to reflect the house’s faulty roof or the water damage. The
    Sprays’ home inspector, James Wood, identified various minor needed repairs
    but did not identify any water damage or a faulty roof.
    After purchasing the house, the Sprays began to experience problems
    associated with water penetration due to the house’s faulty roof. Mrs. Spray
    discovered standing water in one of the kitchen drawers in approximately July
    2003. In December 2003, the Sprays hired a contractor to investigate and fix
    the problem.     The contractor found multiple leaks due to improper roof
    installation.   The leaks resulted in water damage throughout the house,
    2
    including damaged roof decking, exterior wall studs, interior walls, and wooden
    flooring. The total cost to repair the damage to the house was $190,445.70.
    The Sprays sued the Ramseys, Hodnett, Keller Williams/DFW, and Wood
    for negligence, fraud, breach of warranty, violations of the DTPA, and
    unconscionable or knowing conduct. The Sprays sought judgment against all
    defendants “jointly and severally” for actual, exemplary, punitive, statutory,
    treble, and mental anguish damages, attorney’s fees, interest, and costs.
    On November 3, 2006, the Sprays settled and released all claims with
    Hodnett, Keller Williams/DFW, and Wood for a collective amount of $400,000.
    The case proceeded to trial against the Ramseys on May 21, 2007.
    During trial, the Ramseys introduced the settlement agreement for the purpose
    of obtaining a settlement credit, and it was admitted without objection.
    The jury returned a verdict finding the Ramseys liable for fraud and DTPA
    violations. The jury awarded the Sprays $200,000 actual damages for the
    costs of repair to the house, mental anguish damages of $100,000 each,
    3
    $2,000,000 in “additional” damages,2 and $50,000 in attorney’s fees through
    trial.
    On December 21, 2007, the trial court rendered final judgment on the
    DTPA verdict, awarding the Sprays $190,445.70 in actual damages,
    $571,337.10 in “additional” damages,3 $100,000 each to the Sprays for
    mental anguish, plus attorney’s fees, interest, and costs. After judgment was
    rendered, the Ramseys filed a motion for new trial, asserting, among other
    complaints, that the trial court erred by not applying the $400,000 settlement
    amount as a credit against the damages award and by awarding “excessive”
    actual damages. The motion for new trial was overruled by operation of law.
    This appeal followed.
    2
    … “Additional” damages are amounts recoverable under section
    17.50(b)(1) in excess of economic damages; they may include mental anguish
    damages and treble economic damages based on the finding of a knowing
    DTPA violation. See Tex. Bus. & Com. Code Ann. § 17.50(b)(1), (e), (f)
    (Vernon Supp. 2009).
    3
    … The trial court reduced the jury’s “additional” damages award of
    $2,000,000 pursuant to the DTPA, which mandates that economic and
    “additional” damages be capped at treble economic damages. See 
    id. § 17.50(b)(1)
    (“If the trier of fact finds that the conduct of the defendant was
    committed knowingly . . . the trier of fact may award not more than three times
    the amount of economic damages.”).
    4
    II.   ISSUES
    The Ramseys bring the following five issues on appeal:
    1)    The trial court abused its discretion by failing to apply as a
    settlement credit against the damages award the $400,000 that the Sprays
    received in settlement from Hodnett, Keller Williams/DFW, and Wood.
    2)    The trial court erred by awarding as additional damages under the
    DTPA four times the amount of actual damages.
    3)    The trial court erred in calculating pre- and post-judgment interest,
    resulting in an excessive and usurious interest award.
    4)    The Sprays’ awards of mental anguish damages are not supported
    by legally sufficient evidence.
    5)    The actual damages award is not supported by legally or factually
    sufficient evidence because it includes $15,000 in repair costs that are
    unrelated to the Sprays’ DTPA claims.
    III.     SETTLEMENT CREDIT
    In their first issue, the Ramseys complain that the trial court abused its
    discretion by failing to credit against the damages award the $400,000 the
    Sprays received in settlement.
    5
    A.    Standard of Review
    A trial court’s determination of the existence or amount of a settlement
    credit is reviewed for an abuse of discretion.4 To determine whether a trial
    court abused its discretion, we must decide whether the trial court acted
    without reference to any guiding rules or principles; in other words, we must
    decide whether the act was arbitrary or unreasonable.5     An appellate court
    cannot conclude that a trial court abused its discretion merely because the
    appellate court would have ruled differently in the same circumstances.6
    An abuse of discretion does not occur when the trial court bases its
    decisions on conflicting evidence. 7 Furthermore, an abuse of discretion does
    not occur as long as some evidence of substantive and probative character
    exists to support the trial court’s decision.8
    4
    … Oyster Creek Fin. Corp. v. Richwood Invs. II, Inc., 
    176 S.W.3d 307
    ,
    326 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
    5
    … Cire v. Cummings, 
    134 S.W.3d 835
    , 838–39 (Tex. 2004).
    6
    … E.I. du Pont de Nemours & Co. v. Robinson, 
    923 S.W.2d 549
    , 558
    (Tex. 1995).
    7
    … In re Barber, 
    982 S.W.2d 364
    , 366 (Tex. 1998) (orig. proceeding).
    8
    … Butnaru v. Ford Motor Co., 
    84 S.W.3d 198
    , 211 (Tex. 2002) (op. on
    reh’g).
    6
    B.    Law Governing Settlement Credits
    Texas Civil Practice and Remedies Code Chapter 33 governs settlement
    credits in all tort and DTPA actions. 9 Section 33.012(b) of the code provides:
    If the claimant has settled with one or more persons, the court shall
    further reduce the amount of damages to be recovered by the
    claimant with respect to a cause of action by the sum of the dollar
    amounts of all settlements.10
    This statute is mandatory.11 Because section 33.012(b) calls for settlement
    credits to apply to “damages to be recovered by the claimant,” the credit is
    applied to the amount of damages awarded in the judgment, not the amount of
    damages found by the jury.12
    9
    … Tex. Civ. Prac. & Rem. Code Ann. § 33.002(a) (Vernon 2008)
    (providing that chapter 33 applies to “any cause of action based on tort” or
    “any action brought under the Deceptive Trade Practices-Consumer Protection
    Act” “in which a . . . settling person . . . is found responsible for a percentage
    of the harm for which relief is sought”).
    10
    … Tex. Civ. Prac. & Rem. Code Ann. § 33.012(b) (Vernon 2008).
    11
    … See Carl J. Battaglia, M.D., P.A. v. Alexander, 
    177 S.W.3d 893
    , 906
    (Tex. 2005) (“Section 33.012 . . . tells us that credit must be given for
    settlements.”); see also Mobil Oil Corp. v. Ellender, 
    968 S.W.2d 917
    , 927 (Tex.
    1998); Roberts v. Grande, 
    868 S.W.2d 956
    , 959 (Tex. App.—Houston [14th
    Dist.] 1994, no writ).
    12
    … See Tex. Civ. Prac. & Rem. Code Ann. § 33.012(b); see also Stewart
    Title Guar. Co. v. Sterling, 
    822 S.W.2d 1
    , 9 (Tex. 1991) (“Merely because
    actual damages are established by the jury does not necessarily mean that the
    plaintiff may recover them.”).
    7
    A nonsettling defendant has the burden to prove the existence and
    amount of a settlement credit, and may do so by placing the settlement
    agreement or some other evidence of the settlement amount in the record.13
    The burden then shifts to the plaintiff to show that all or a portion of this
    settlement amount should not be credited.14
    A nonsettling defendant is not entitled to credit for amounts paid to settle
    punitive damages claims.15      To reduce a settlement credit on this basis,
    however, it is the plaintiff’s burden to tender a valid settlement agreement that
    allocates between actual and punitive damages. 16       If the plaintiff does not
    satisfy this burden, then the nonsettling party is entitled to full settlement
    credit.17
    13
    … Utts v. Short, 
    81 S.W.3d 822
    , 828 (Tex. 2002) (op. on reh’g); see
    also 
    Ellender, 968 S.W.2d at 927
    (holding that nonsettling defendant can meet
    its burden of proof “by placing the settlement agreement or some evidence of
    the settlement amount in the record”).
    14
    … 
    Utts, 81 S.W.3d at 828
    ; 
    Ellender, 968 S.W.2d at 928
    .
    15
    … 
    Ellender, 968 S.W.2d at 927
    –28; see Tex. Civ. Prac. & Rem. Code
    Ann. § 33.002(c)(2) (Vernon 2008) (“This chapter does not apply to . . . a
    claim for exemplary damages included in an action to which this chapter
    otherwise applies.”).
    16
    … Ellender, at 928–29.
    17
    … Oyster 
    Creek, 176 S.W.3d at 327
    ; see Cohen v. Arthur Andersen,
    L.L.P., 
    106 S.W.3d 304
    , 310 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
    8
    In addition, the nonsettling defendant may only claim a credit based on
    the damages for which all tortfeasors are jointly liable.18 However, if settlement
    monies were also paid on claims for which there is no joint and several liability,
    it is the plaintiff’s burden to establish any reduction in a settlement credit by
    tendering a settlement agreement that allocates the settlement amount between
    sole and joint liability claims.19 Otherwise, the nonsettling defendant is entitled
    to the full credit.20
    C.    Application of the Settlement Credit
    The Ramseys assert that the trial court abused its discretion by failing to
    reduce the judgment award by the entire $400,000 amount that the Sprays
    received in settlement. In response, the Sprays contend that the court did
    apply the $400,000 settlement credit by reducing the jury’s $2,000,000
    “additional” damages award to $571,337.10.           The trial court’s judgment,
    however, states that the additional damages award was made “pursuant to the
    18
    … Crown Life Ins. Co. v. Casteel, 
    22 S.W.3d 378
    , 390–92 (Tex. 2000)
    (op. on reh’g); CTTI Priesmeyer, Inc. v. K & O Ltd. P’ship, 
    164 S.W.3d 675
    ,
    684–85 (Tex. App.—Austin 2005, no pet.); 
    Roberts, 868 S.W.2d at 959
    .
    19
    … 
    CTTI, 164 S.W.3d at 685
    n.3; 
    Cohen, 106 S.W.3d at 310
    .
    20
    … 
    CTTI, 164 S.W.3d at 685
    n.3; 
    Cohen, 106 S.W.3d at 310
    .
    9
    terms of the [DTPA].” 21 There is no evidence in the record that the damages
    were reduced, as the Sprays contend, as a result of the trial court’s application
    of settlement credit.
    In the alternative, the Sprays contend that the Ramseys are not entitled
    to have the $400,000 settlement credit applied against the additional damages
    because they are punitive in nature and the Ramseys and settling defendants
    are not jointly and severally liable for punitive damages.      It is well settled,
    however, that “any credit for settlements made by other alleged joint
    tortfeasors must be applied[, if at all,] after the trebling of actual damages.” 22
    Moreover, the Sprays did not meet their burden of showing that the settlement
    agreement allocated dollars toward the settlement of punitive damages or
    claims for which the settling defendants and the Ramseys were not jointly and
    21
    … Section 17.50(b)(1) of the DTPA provides that “the trier of fact may
    award not more than three times the amount of economic damages” based on
    the defendant’s knowing conduct. See Tex. Bus. & Com. Code Ann.
    § 17.50(b)(1). Although the trial court erroneously exceeded this cap by
    awarding the Sprays four times the amount of economic damages, see infra
    Part IV, it is clear from the face of the judgment that the additional damages
    award was made pursuant to the DTPA and not pursuant to section 33.012(b)
    of the civil practice and remedies code.
    22
    … Stewart 
    Title, 822 S.W.2d at 9
    ; see Universal Servs. Co. v. Ung, 
    882 S.W.2d 460
    , 467 (Tex. App.—Houston [14th Dist.] 1994) (“[I]n cases where
    actual damages awards may be trebled by statute, the supreme court allows
    credits of settlement proceeds against the trebled sum.” (emphasis in original)),
    rev’d on other grounds, 
    904 S.W.2d 638
    (Tex. 1995).
    10
    severally liable.23 Because this burden was not met, the Sprays are not entitled
    to a reduction of settlement credit.24
    We hold that the trial court abused its discretion by failing to apply the
    $400,000 settlement credit against the economic damages awards. We sustain
    the Ramseys’ first issue.
    IV.   TREBLE DAMAGES
    In their second issue, the Ramseys contend that the trial court abused its
    discretion by awarding the Sprays four times, rather than three times, the
    amount of their economic damages under the DTPA. 25 Section 17.50(b)(1) of
    the Texas Business and Commerce Code permits a maximum award of three
    times the amount of economic damages for a knowing DTPA violation,
    providing:
    23
    … See 
    Ellender, 968 S.W.2d at 928
    ; 
    Cohen, 106 S.W.3d at 310
    .
    24
    … See Oyster 
    Creek, 176 S.W.3d at 327
    ; 
    CTTI, 164 S.W.3d at 685
    n.3; 
    Cohen, 106 S.W.3d at 310
    .
    25
    … The Sprays argue that the Ramseys failed to preserve error because
    they did not object to the additional damages award in the trial court. In the
    Ramseys’ motion for suggestion of remittitur, however, they complain that
    “[t]he amount awarded [in the jury verdict] as additional damages is clearly
    excessive and unlawful because the DTPA specifically provides that additional
    damages may not exceed ‘more than three times the amount of economic
    damages’ when the alleged deceptive practice was committed ‘knowingly’”
    (quoting Tex. Bus. & Com. Code Ann. § 17.50(b)(1)). The Ramseys, therefore,
    preserved this issue for our review.
    11
    (b) In a suit filed under this section, each consumer who prevails
    may obtain:
    (1) the amount of economic damages found by the trier of
    fact. If the trier of fact finds that the conduct of the
    defendant was committed knowingly, the consumer may also
    recover damages for mental anguish, as found by the trier of
    fact, and the trier of fact may award not more than three
    times the amount of economic damages. 26
    When a trial court awards actual damages on a DTPA claim and, in
    addition, awards three times that amount based on the jury’s award of
    “additional” damages for a knowing DTPA violation, the result is an award of
    four times the damages amount.27 In such cases, the appellate court should
    modify the judgment “to limit the DTPA award to three times the amount of
    economic damages.” 28
    In this case, the trial court entered judgment awarding the Sprays
    $190,445.70 in actual economic damages plus three times that amount, or
    $571,337.10. As a result, the trial court awarded the Sprays four times the
    amount of their economic damages. Accordingly, we hold that the trial court
    26
    … Tex. Bus. & Com. Code Ann. § 17.50(b)(1) (emphasis added).
    27
    … Dal-Chrome Co. v. Brenntag Sw., Inc., 
    183 S.W.3d 133
    , 143–44
    (Tex. App.—Dallas 2006, no pet.) (citing Jim Walter Homes, Inc. v. Valencia,
    
    690 S.W.2d 239
    , 241 (Tex. 1985)); see Tex. Bus. & Com. Code Ann.
    § 17.50(b)(1).
    28
    … 
    Dal-Chrome, 183 S.W.3d at 144
    ; see Tex. Bus. & Com. Code Ann.
    § 17.50(b)(1).
    12
    abused its discretion by awarding the Sprays more than three times the amount
    of their economic damages on their DTPA claim based on the Ramseys’
    knowing DTPA violations. 29 We sustain the Ramseys’ second issue.
    V.   AWARD OF PRE- AND POST-JUDGMENT INTEREST
    In their third issue, the Ramseys complain of the award of pre- and post-
    judgment interest on four distinct grounds, three of which are waived because
    they were not preserved in the trial court.30        The only ground that was
    29
    … A trial court abuses its discretion if it misapplies the law to
    established facts. State v. Sw. Bell Tel. Co., 
    526 S.W.2d 526
    , 528 (Tex.
    1975); In re Talco-Bogata Consol. Indep. Sch. Dist. Bond Election, 
    994 S.W.2d 343
    , 347 (Tex. App.—Texarkana 1999, no pet.); see also Marsh v. Marsh, 
    949 S.W.2d 734
    , 744 (Tex. App.—Houston [14th Dist.] 1997, no writ) (“A clear
    failure by the trial court to analyze or apply the law correctly will constitute an
    abuse of discretion.”).
    30
    … In their motion for suggestion of remittitur, the Ramseys assert that
    the DTPA prohibits consideration of prejudgment interest when calculating
    “additional” damages. They did not present the trial court with the three other
    grounds on which they now challenge the trial court’s interest award: 1) that
    the DTPA prohibits prejudgment interest on mental anguish damages; 2) that
    the DTPA prohibits prejudgment interest on future damages; and 3) that the
    finance code requires application of pre- and post-judgment interest at a rate of
    7.5 percent. See Tex. R. App. P. 33.1(a) (providing that a party must have
    presented to the trial court a timely request, objection, or motion that states the
    specific grounds for the desired ruling, if they are not apparent from the context
    of the request, objection, or motion, and obtain an express or implied ruling
    from the trial court); Campbell v. State, 
    85 S.W.3d 176
    , 185 (Tex. 2002).
    Contrary to the Ramseys’ contention, error in the calculation of pre- and post-
    judgment interest is not recognized as fundamental error reviewable on appeal
    even when not preserved in the trial court. See In re B.L.D., 
    113 S.W.3d 340
    ,
    350 (Tex. 2003) (stating civil doctrine of fundamental error is “discredited” and
    is only recognized “in rare instances” when the record shows a jurisdictional
    13
    preserved was whether the trial court erred by awarding three times the amount
    of prejudgment interest on the Sprays’ actual damages.
    A.     Standard of Review
    We apply an abuse of discretion standard to review the trial court’s award
    of prejudgment interest. 31    Under this standard, we will not disturb a trial
    court’s findings on factual issues unless the court reasonably could have
    reached only one decision and it failed to do so. 32 However, “[a] trial court has
    no ‘discretion’ in determining what the law is or applying the law to the
    facts.” 33    Accordingly, the abuse of discretion standard applies to the trial
    court’s factual findings as they relate to prejudgment interest; but the de novo
    standard applies to the trial court’s application of the law to the facts.34
    defect or when certain types of error are committed in juvenile delinquency
    cases), cert. denied, 
    541 U.S. 945
    (2004); see also Pirtle v. Gregory, 
    629 S.W.2d 919
    , 919–20 (Tex. 1982). Therefore, the Ramseys waived these three
    grounds as bases for challenging the trial court’s interest award. See Tex. R.
    App. P. 33.1(a).
    31
    … Toshiba Mach. Co., Am. v. SPM Flow Control, Inc., 
    180 S.W.3d 761
    ,
    785 (Tex. App.—Fort Worth 2005, pet. granted, judgm’t vacated w.r.m.) (op.
    on reh’g); J.C. Penney Life Ins. Co. v. Heinrich, 
    32 S.W.3d 280
    , 289 (Tex.
    App.—San Antonio 2000, pet. denied).
    32
    … Walker v. Packer, 
    827 S.W.2d 833
    , 839–40 (Tex. 1992); 
    Heinrich, 32 S.W.3d at 289
    .
    33
    … 
    Walker, 827 S.W.2d at 840
    ; 
    Heinrich, 32 S.W.3d at 289
    .
    34
    … 
    Toshiba, 180 S.W.3d at 785
    ; 
    Heinrich, 32 S.W.3d at 289
    .
    14
    B.   Prejudgment Interest and Treble Damages Under the DTPA
    Section 17.50(b)(1) of the Texas Business and Commerce Code permits
    only economic damages to be trebled on DTPA claims. 35        Section 17.50(e)
    states that “prejudgment interest may not be considered” in computing such
    damages.36 When a trial court calculates “additional” damages under section
    17.50(b), the amount of the “additional damages” “is to be based upon the
    actual damages only, not actual damages plus prejudgment interest.” 37
    Here, the trial court ordered that the Sprays recover “trebled pre-judgment
    interest of 7.75%” on the actual damages award of $190,445.70 in repair
    costs. Therefore, the trial court abused its discretion as a matter of law in
    awarding treble prejudgment interest. Accordingly, we sustain the preserved
    portion of the Ramseys’ third issue on appeal.
    VI.     MENTAL ANGUISH DAMAGES
    In their fourth issue, the Ramseys argue that the evidence is not legally
    sufficient to support the $100,000 awards of mental anguish damages to Mrs.
    Spray and Mr. Spray.
    35
    … Tex. Bus. & Com. Code Ann. § 17.50(b)(1).
    36
    … 
    Id. § 17.50(e).
         37
    … Aetna Cas. & Sur. Co. v. Garza, 
    906 S.W.2d 543
    , 556 (Tex.
    App.—San Antonio 1995, writ dism’d) (reversing portion of judgment awarding
    trebled prejudgment interest).
    15
    A.    Standard of Review
    We may sustain a legal sufficiency challenge only when (1) the record
    discloses a complete absence of evidence 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 evidence offered to prove a vital fact is no more
    than a mere scintilla; or (4) the evidence establishes conclusively the opposite
    of a vital fact.38 In determining whether there is legally sufficient evidence to
    support the finding under review, we must consider evidence favorable to the
    finding if a reasonable factfinder could and disregard evidence contrary to the
    finding unless a reasonable factfinder could not.39
    38
    … Uniroyal Goodrich Tire Co. v. Martinez, 
    977 S.W.2d 328
    , 334 (Tex.
    1998) (op. on reh’g), cert. denied, 
    526 U.S. 1040
    (1999); Robert W. Calvert,
    "No Evidence" and "Insufficient Evidence" Points of Error, 
    38 Tex. L. Rev. 361
    ,
    362–63 (1960).
    39
    … Cent. Ready Mix Concrete Co. v. Islas, 
    228 S.W.3d 649
    , 651 (Tex.
    2007); City of Keller v. Wilson, 
    168 S.W.3d 802
    , 807, 827 (Tex. 2005).
    16
    B.    Mental Anguish Damages Under the DTPA
    Section 17.50(b)(1) of the Texas Business and Commerce Code allows
    the award of mental anguish damages on a DTPA claim if the trier of fact finds
    that the conduct of the defendant was committed “knowingly.” 40 To recover
    mental anguish damages under the DTPA, the plaintiff must present “direct
    evidence of the nature, duration, and severity of the[] mental anguish, thus
    establishing a substantial disruption in the [plaintiff’s] daily routine.” 41 Proof of
    a physical manifestation of mental anguish is not required.42 The plaintiff’s
    direct evidence may include the plaintiff’s own testimony or that of a third party
    or expert witness.43 If there is no direct evidence of mental anguish, we apply
    traditional no-evidence standards to determine whether the record reveals any
    40
    … Tex. Bus. & Com. Code Ann. § 17.50(b)(1). The Ramseys do not
    challenge on appeal the jury’s finding that they committed “knowing” DTPA
    violations.
    41
    … Latham v. Castillo, 
    972 S.W.2d 66
    , 69–70 (Tex. 1998); see also
    Parkway Co. v. Woodruff, 
    901 S.W.2d 434
    , 444 (Tex. 1995); Anderson v.
    Long, 
    118 S.W.3d 806
    , 811 (Tex. App.—Fort Worth 2003, no pet.).
    42
    … City of Tyler v. Likes, 
    962 S.W.2d 489
    , 495 (Tex. 1997); 
    Parkway, 901 S.W.2d at 443
    .
    43
    … 
    Parkway, 901 S.W.2d at 444
    .
    17
    evidence of a “high degree of mental pain and distress” that is “more than mere
    worry, anxiety, vexation, embarrassment, or anger.” 44
    We are directed to “closely scrutinize” awards of mental anguish
    damages.45 “Simply because a plaintiff says he or she suffered mental anguish
    does not constitute [legally sufficient] evidence” to support a mental anguish
    damages award.46 Even a plaintiff’s own testimony of extreme fright, constant
    worry, extreme apprehension, extreme embarrassment, nervousness on a daily
    basis, and loss of sleep does not, without more, present more than a scintilla
    of evidence to support an award of mental anguish damages. 47
    C.    Marianne Spray
    To support her mental anguish claim, Marianne Spray testified at trial
    regarding her mental state and the impact the damage to the house has had on
    her life. She testified that she feels “more comfortable in a hotel” than in her
    house and that this has been the cause of “uncomfortable” discussions
    44
    … 
    Latham, 972 S.W.2d at 70
    ; see 
    Parkway, 901 S.W.2d at 444
    ;
    
    Anderson, 118 S.W.3d at 811
    .
    45
    … Gunn Infiniti, Inc. v. O'Byrne, 
    996 S.W.2d 854
    , 860 (Tex. 1999); see
    Universe Life Ins. Co. v. Giles, 
    950 S.W.2d 48
    , 54 (Tex. 1997).
    46
    … Gunn 
    Infiniti, 996 S.W.2d at 861
    .
    47
    … 
    Anderson, 118 S.W.3d at 811
    (citing 
    Latham, 972 S.W.2d at 69
    –70).
    18
    between herself and her husband.            Mrs. Spray testified that she has
    experienced “anxious feelings,” “anxiousness, anxieties, frustration, humiliation,
    [and] embarrassment,” that she wakes up at night, and that she has not slept
    “well” since moving into the house. In addition, although in the past the Sprays
    entertained “quite a bit” for Mr. Spray’s work, Mrs. Spray stated that she is
    now “reluctant” to bring people to their house.
    Mrs. Spray also testified at trial that she feels “cheated” and like her soul
    has been “raped.” The situation regarding her house makes her “very angry”
    and causes her to “question all the things that [she] believe[s] in and [her]
    faith.” Mrs. Spray stated that there “really hasn't been much quality of life in
    this house” and that it has been “a nightmare” “[t]o an extreme degree.”
    Mrs. Spray cried at trial, stating that her crying was due to the “buildup
    of . . . frustration”; she testified that she also has cried in private over the
    situation regarding her house. And Mr. Spray testified at trial that he has seen
    Mrs. Spray cry “over this problem” on two or three occasions. In addition, Mrs.
    Spray testified that she does not feel safe because “there’s carbon monoxide
    in the house” and that she suffers from hypertension as a result of the
    “emotional issues” she experienced regarding the house.
    Viewed in the light most favorable to Mrs. Spray, her conclusory
    testimony does not present more than a scintilla of evidence that her alleged
    19
    mental anguish caused a substantial disruption in her daily routine or amounted
    to a “high degree of mental pain and distress” that is more than mere worry,
    anxiety, vexation, embarrassment, or anger.48 Accordingly, we sustain this
    portion of the Ramseys’ fourth issue on appeal.
    D.    James Spray
    To support his mental anguish claim, James Spray testified at trial that
    he is “pretty embarrassed” and “pretty angry” and has felt “anxiety” over his
    house. He feels that the Ramseys have breached his trust, and he “kick[s]
    [him]self” because he feels that he has been “cheated.” Mr. Spray cried at
    trial, which he testified was attributable to his “continuous” and “extreme”
    feelings of anger toward the Ramseys. Mr. Spray also testified that he felt
    “violated” and like a “failure.”
    Viewed in the light most favorable to Mr. Spray, his testimony does not
    present more than a scintilla of evidence that his alleged mental anguish caused
    a substantial disruption in his daily routine or amounted to a “high degree of
    mental pain and distress” that is more than mere worry, anxiety, vexation,
    48
    … 
    Latham, 972 S.W.2d at 69
    –70; see 
    Parkway, 901 S.W.2d at 444
    ;
    
    Anderson, 118 S.W.3d at 811
    ; see also Cont'l Coffee Prods. Co. v. Cazarez,
    
    937 S.W.2d 444
    , 450 (Tex. 1996) (“Anything more than a scintilla of evidence
    is legally sufficient to support the finding.”).
    20
    embarrassment, or anger.49 Accordingly, we hold that the evidence is legally
    insufficient to support an award of mental anguish damages to Mr. Spray. We
    sustain the remaining portion of the Ramseys’ fourth issue.50
    VII.   ACTUAL DAMAGES RELATED TO FENCE REPAIR
    In their fifth issue, the Ramseys argue that the evidence is legally and
    factually insufficient to support $15,000 of the $190,445.70 actual damages
    award because $15,000 is attributable to the repair of a hail-damaged fence
    and this damage does not relate to the Sprays’ DTPA claim. The Sprays argue
    that the Ramseys did not preserve error on this issue in part because the actual-
    damages question submitted to the jury did not segregate, nor did the Ramseys
    ask the trial court for it to segregate, the cost to repair the fence from other
    actual damages awarded. According to the Sprays, it is therefore impossible
    to determine what amount the jury did or did not award for the repair of the
    fence.
    49
    … 
    Latham, 972 S.W.2d at 69
    –70; see Cont’l 
    Coffee, 937 S.W.2d at 450
    ; 
    Parkway, 901 S.W.2d at 444
    ; 
    Anderson, 118 S.W.3d at 811
    .
    50
    … Because we sustain this issue on other grounds, we do not address,
    and express no opinion regarding, the Ramseys’ contention that the Sprays
    failed to establish a causal link between the Sprays’ alleged mental anguish and
    the Ramseys’ DTPA violations.
    21
    When a damages question is submitted to the jury that includes multiple
    possible elements, to preserve error challenging the sufficiency of the evidence
    supporting one but not all of the elements of damages a defendant is required
    to object and ask the trial court to either exclude that element from the
    damages question or submit damages elements separately.51
    In this case, the Sprays presented evidence of fence and other repair
    costs to the jury. The Ramseys failed to object to the submission of the actual
    damages question on the ground that it may include fence repair costs.52 They
    also failed to request the submission of an alternate question that either
    excluded or segregated fence repair costs from other actual damages. 5 3
    Accordingly, we hold that the Ramseys failed to preserve error regarding the
    sufficiency of the evidence supporting the portion of the actual damages they
    51
    … Tagle v. Galvan, 
    155 S.W.3d 510
    , 515–16 (Tex. App.—San Antonio
    2004, no pet.) (holding that, because defendant did not ask for separate
    damage findings, it could only challenge “sufficiency of the evidence supporting
    the whole verdict” (citing Thomas v. Oldham, 
    895 S.W.2d 352
    , 360 (Tex.
    1995))); see also Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a)(1).
    52
    … Jury question number eight asks, in part: “Answer in dollars and
    cents, for damages, if any, for: . . . c. Reasonable and necessary costs of
    repairing the home: Answer: $_______.”
    53
    … Although the Ramseys objected that the actual damages award was
    excessive in their motion for suggestion of remittitur, they did so on grounds
    unrelated to the $15,000 fence repair charges.
    22
    contend is attributable to fence repair costs.54 We overrule the Ramseys’ fifth
    issue.55
    VIII.   CONCLUSION
    In conclusion, we hold that the trial court erred by failing to apply
    $400,000 in settlement credit against the award of economic damages; by
    awarding the Sprays more than three times the amount of their economic
    damages; and by awarding three times the amount of prejudgment interest on
    the Sprays’ actual damages.      We further hold that the evidence is legally
    insufficient to support the mental anguish damages awards in favor of the
    Sprays.
    We, therefore, reverse that part of the trial court’s judgment awarding the
    Sprays their economic damages, and remand that part of the judgment to the
    trial court for recalculation of those damage awards and application of the
    settlement credit, pursuant to this opinion. In addition, we reverse the trial
    court’s award of “trebled pre-judgment interest of 7.75% from January 24,
    2005[,]” assessed on the Sprays’ actual and mental anguish damages, and
    render judgment that they recover interest of 7.75% from January 24, 2005,
    54
    … See 
    Thomas, 895 S.W.2d at 360
    ; 
    Tagle, 155 S.W.3d at 519
    .
    55
    … Because the Ramseys failed to preserve error, we also do not address
    their unpreserved claim that the $15,000 cost to repair the fence was not
    reasonable and necessary.
    23
    only on the amount of the damages, if any, that they are entitled to recover
    upon application of settlement credit. We further reverse the trial court’s award
    of $100,000 each in mental anguish damages to Mr. and Mrs. Spray and render
    judgment that they take nothing from the Ramseys on their claims for mental
    anguish damages. In all other respects, the trial court’s judgment is affirmed.
    PER CURIAM
    PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
    DELIVERED: December 23, 2009
    24