JEFFREY MCCARTHY AND MELISSA MCCARTHY v. WISCH AUTO GROUP INC BAYWAY CHEVROLET (2026)

OPINION

Appellants Jeffrey McCarthy (“Jeffrey”) and Melissa McCarthy (“Melissa”) executed a retail installment contract with appellee Wisch Auto Group, Inc. d/b/a Bayway Chevrolet (“Bayway Chevrolet”) to purchase a Chevy Silverado. In the contract, appellants promised to make monthly payments for a fixed number of months to Bayway Chevrolet for the unpaid cost of the truck, including a finance charge, and Bayway Chevrolet promised to sell appellants the vehicle for that monthly payment and to accept their Nissan as a trade-in for the transaction. The contract did not condition the sale on Bayway Chevrolet securing a lender to finance appellants' purchase, and even if it contained such a provision it would be void as a matter of law. See Tex. Fin. Code Ann. § 348.1015(a) (“A retail installment contract may not be conditioned on the subsequent assignment of the contract to a holder.”), (b) (“A provision in violation of this section is void.”).

After the contract's execution and after appellants received the Silverado, Bayway Chevrolet learned that the conditional approval it had secured to finance appellants' purchase was declined after one of the conditional stipulations could not be satisfied. Bayway Chevrolet then demanded that appellants return the Silverado and undertook actions to obtain its return, despite appellants' attempts at making payments on the outstanding balance to Bayway Chevrolet. Bayway Chevrolet also failed to payoff appellants' loan on the Nissan traded in as a part of the transaction, despite being required to do so by law. See id. § 348.408(c) (“A retail seller must pay in full the outstanding balance of a vehicle traded in not later than the 25th day after the date that: (1) the retail installment contract is signed by the retail buyer and the retail buyer receives delivery of the motor vehicle; and (2) the retail seller receives delivery of the motor vehicle traded in and the necessary and appropriate documents to transfer title from the buyer.”).

Appellants filed the underlying lawsuit against Bayway Chevrolet and asserted numerous causes of action, and Bayway Chevrolet filed counterclaims in part for breach of contract and fraud. Following a jury trial, the trial court entered a take nothing judgment in favor of Bayway Chevrolet based on the jury's findings. In ten issues, appellants argue: the trial court erred in (1) granting Bayway Chevrolet's motion for partial summary judgment and (2) denying appellants' motion in limine; and (3–10) there is factually insufficient evidence supporting several of the jury's findings. Because we conclude there is factually insufficient evidence supporting the necessary findings for the take nothing judgment on appellants' claims for violations of the Deceptive Trade Practices Act (“DTPA”), violations of the Debt Collection Act (“TDCA”), fraud, and violation of Finance Code § 348.408, we reverse the part of the trial court's judgment on these four claims and remand them for a new trial. We also reverse part of the partial summary judgment granted to Bayway Chevrolet as to appellants' claim for violation of the Equal Credit Opportunity Act (“ECOA”) based on Bayway Chevrolet being a creditor for the Silverado's purchase and remand this claim for further proceedings. We affirm the remainder of the judgment.

I. BACKGROUND

Jeffrey has been employed at Cajun Industries since November 2017. On December 21, 2018, Jeffrey went on medical leave from his employer following surgery on his foot. While on medical leave, Jeffrey received a large portion of his normal salary through his medical leave benefits. Jeffrey's last paycheck from his employer before going on medical leave was issued on December 28, 2018.

On January 11, 2019, appellants visited Bayway Chevrolet and purchased a Jeep Wrangler after filling out credit applications with the assistance of Bayway Chevrolet's employee, and they financed the purchase through a third-party lender, Flagship Credit Acceptance. Appellants testified they informed Bayway Chevrolet's employee about Jeffrey's medical leave but were informed it would not be a problem as long as he had a paystub from the last thirty days. Bayway Chevrolet's employee filled out the credit application listing Jeffrey's regular income with Cajun Industries, and appellants signed the credit application. Appellants purchased the Jeep through the execution of a Motor Vehicle Retail Installment Sales Contract (“RISC”) with Bayway Chevrolet.

A few days after purchasing the Jeep, appellants contacted Bayway Chevrolet about purchasing a Silverado they had also viewed on January 11. On January 17, 2019, appellants returned to the dealership and negotiated the price of the Silverado, and Bayway Chevrolet submitted a separate credit application on appellants' behalf to GM Financial, another third-party lender, to finance the purchase.¹ That same day, Bayway Chevrolet learned that GM Financial had conditionally approved appellants' credit application with certain stipulations, including the verification of Jeffrey's income. The conditional approval was valid until February 14, 2019.

Without informing appellants that the approval was conditional, Bayway Chevrolet and appellants then executed at the same time: (1) a Conditional Delivery Agreement (“CDA”) for the Silverado, stating that the agreement's purpose was to allow appellants to use the Silverado for no more than fifteen days and that it “shall be void upon the execution of [an RISC] for the sale of the vehicle”² ; and (2) a RISC for the Silverado, stating that Bayway Chevrolet was the “Seller/Creditor” in the transaction. Under the terms of the RISC, appellants promised to pay the “amount financed,” plus a finance charge, through eighty-four monthly payments of $831.72 to Bayway Chevrolet. The RISC also memorialized the trade-in of appellants' Nissan.

The RISC recognized that “[t]his contract may be transferred by the Seller” and “[w]e may transfer this contract to another person. That person will then have all our rights, privileges, and remedies.” It also provides that “[f]or questions or complaints about this contract, contact GM Financial ․” The RISC noted that appellants would be in default if they gave false, incomplete, or misleading information on a credit application. And if appellants were in default, then the RISC allowed Bayway Chevrolet to repossess the Silverado, sell the vehicle at auction, and use the proceeds of the sale to satisfy the unpaid balance. Finally, the RISC states that it is an integrated contract: “This contract contains the entire agreement between you and us relating to the sale and financing of the vehicle.” It expressly disallows any amendment unless in writing: “Any change to this contract must be in writing. Both you and we must sign it. No oral changes to this contract are enforceable.” Appellants made a downpayment on the Silverado, drove the vehicle home that day with temporary tags, and transferred possession of the Nissan to Bayway Chevrolet.³

Fifteen days later on February 1, 2019, Bayway Chevrolet began the process with GM Financial to finance appellants' purchase, and GM Financial asked for Bayway Chevrolet's assistance in gathering information needed to fully approve the loan. Appellants provided some documents in attempts to verify Jeffrey's income, but Jeffrey's medical leave benefits were set to expire on February 4, 2019, although an extension through April 8 had been requested and was expected to be approved. GM Financial's conditionally-approved loan offer expired on February 14, 2019. On February 14 at 3:41 p.m., Jeffrey informed Bayway Chevrolet that the extension had been approved and sent a picture of an email to Bayway Chevrolet.⁴

On February 15, 2019, GM Financial returned the contract to Bayway Chevrolet and declined appellants' credit application, stating “income short.”⁵ Bayway Chevrolet then requested that appellants return the Silverado and pick up the Nissan, but appellants refused. Bayway Chevrolet also failed to pay off the loan on the Nissan, and the Nissan was ultimately repossessed after Bayway Chevrolet informed the Nissan's third-party lender that the car had been abandoned at their parking lot. Bayway Chevrolet charged that lender $1,000.00 to remove the Nissan, and the car was subsequently sold at an auction, leaving an unsatisfied loan balance of $10,778.25.

In attempts to regain possession of the Silverado, Bayway Chevrolet: sent appellants a letter threatening to file criminal charges; filed a report with the Pearland Police Department accusing appellants of stealing the Silverado and submitting false information on a credit application, leading to the issuance of warrants for their arrest; hired a repossession agent to recover the Silverado and provided the agent with keys to the vehicle, which the repossession agent used to set off the Silverado's alarm on numerous nights at odd hours while it was parked in appellants' garage; and texted and called appellants' phones repeatedly. Appellants then filed the underlying lawsuit against Bayway Chevrolet, seeking injunctive relief and asserting claims for common-law fraud, violations of the DTPA, violations of Finance Code § 348.408, violations of the TDCA, violations of the Truth in Lending Act (“TLA”), violations of the ECOA, and IIED. Bayway Chevrolet filed counterclaims for breach of contract and common-law fraud.

Appellants obtained an ex parte temporary restraining order against Bayway Chevrolet preventing it from repossessing the Silverado. Despite being served with the order, Bayway Chevrolet nevertheless called a police officer to retrieve the vehicle from appellants' home alleging it was stolen. Because appellants possessed the RISC for the Silverado's purchase, law enforcement dismissed the arrest warrants that had been issued for their arrest. On May 3, 2019, approximately four months after they executed the RISC and after Jeffrey had returned to work, Bayway Chevrolet and appellants executed a second RISC for the Silverado, this time without the Nissan included as a trade in, and with GM Financial providing the financing.⁶

Before trial, the trial court granted Bayway Chevrolet's motion for partial summary judgment on appellants' claim for violations of the ECOA. Appellants' remaining claims and Bayway Chevrolet's counterclaims were tried before a jury, and the jury heard testimony from Jeffrey; Melissa; Officer Dennis Gassen, a patrol officer with the City of Pearland; and Bayway Chevrolet's Chief Operating Officer, James Blair (“Blair”). The jury also received documentation of the parties' communications and transactions, as well as copies of the agreements executed and appellants' credit applications. The jury found against appellants in all their claims and found for Bayway Chevrolet's counterclaim that appellants had committed fraud in the purchase of the Silverado, and that appellants failed to comply with the RISC. The trial court entered a judgment that appellants take nothing, and this appeal followed.

II. SUMMARY JUDGMENT

In their first issue, appellants argue the trial court erred when it granted Bayway Chevrolet's motion for partial summary judgment as to their claim for violations of the ECOA.

A. STANDARD OF REVIEW

We review the trial court's ruling on a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). After an adequate time for discovery, a party may move for a no-evidence summary judgment asserting that no evidence exists to support one or more essential elements of a claim on which the adverse party bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); see LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006) (per curiam). The burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the challenged elements of his claim. Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence summary judgment is improper if the nonmovant brings forth more than a scintilla of probative evidence raising a genuine issue of material fact. Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003).

To obtain a traditional summary judgment, the movant must produce evidence showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019). The nonmovant may raise a genuine issue of material fact by producing more than a scintilla of evidence establishing the existence of the challenged element. Id.

Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Forbes Inc., 124 S.W.3d at 172. More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Id. We view the evidence in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, 206 S.W.3d at 582.

B. ECOA

The ECOA prohibits discrimination by any “creditor” with respect to any credit transaction. 15 U.S.C. § 1691(a). It defines “creditor” as any person who regularly extends, renews, or continues credit; any person who regularly arranges for the extension, renewal, or continuation of credit; or any assignee of an original creditor who participates in the decision to extend, renew, or continue credit. Id. § 1691a(e).

If a creditor takes any “adverse action” against an applicant's credit application, then the ECOA requires the creditor to provide written notice of the reason for the adverse action to the applicant. Id. § 1691(d). “Adverse action” means a denial or revocation of credit, a change in the terms of an existing credit arrangement, or a refusal to grant credit in substantially the amount or on substantially the terms requested, but it does not include a refusal to extend additional credit under an existing credit arrangement where the applicant is delinquent or otherwise in default, or where such additional credit would exceed a previously established credit limit. Id. § 1691(d)(6).

Where a creditor has been requested by a third party to make a specific extension of credit directly or indirectly to an applicant, the notification and statement of reasons required by this subsection may be made directly by such creditor, or indirectly through the third party, provided in either case that the identity of the creditor is disclosed.

Id. § 1691(d)(4). Any creditor who fails to comply with the ECOA's notice requirement shall be liable to the aggrieved applicant for any actual damages sustained by such applicant. See id. § 1691e(a).

C. ANALYSIS

In their live pleading, appellants alleged they filled credit applications with Bayway Chevrolet; Bayway Chevrolet used the credit applications in its attempts to secure financing for the Silverado's purchase; Bayway Chevrolet “represented to [appellants] that it would be assigning its interest in the [Silverado's] RISC to GM Financial, despite the fact that [Bayway Chevrolet] already knew that GM Financial had denied [appellants'] original credit application, and it had only conditionally approved the second credit application submitted on their behalf”; and “[p]ursuant to the terms of the RISC, [appellants'] first payment towards the Vehicle in the amount of $831.72 was due and owing to [Bayway Chevrolet] on March, 17, 2019.” As to their ECOA claim specifically, appellants alleged that Bayway Chevrolet “did not provide any adverse action letter to Plaintiffs when it took an adverse action on Plaintiffs' credit applications, as was required under the [ECOA].”

In its motion for summary judgment, Bayway Chevrolet argued that it was entitled to judgment as a matter of law as to appellants' ECOA claim because “[t]here is no evidence that Bayway Chevrolet participated in GM Financial's credit decisions beyond referring Plaintiffs' credit application and forwarding documents Plaintiffs submitted to GM Financial” and “[b]ecause Bayway Chevrolet was not required to send Plaintiffs notice of GM Financial's adverse actions on their credit application ․” We construe Bayway Chevrolet's motion as arguing there was no evidence that it took adverse action on appellants' credit application with GM Financial. Because there is no evidence that Bayway Chevrolet took any adverse action on appellants' credit application with GM Financial, the trial court correctly granted Bayway Chevrolet summary judgment to the extent appellants' ECOA claim was based on their credit application with GM Financial. See id. § 1691(d)(2) (“Each applicant against whom adverse action is taken shall be entitled to a statement of reasons for such action from the creditor.”).⁷

However, appellants also argued in their response to Bayway Chevrolet's summary-judgment motion that:

[Bayway Chevrolet], in this case, decided to unilaterally cancel the RISC when it could not obtain financing for [appellants]. Since [Bayway Chevrolet] was the only creditor in this transaction, it has to provide adverse action notices to [appellants] when it decided to take an adverse action against [appellants], in this case, cancel the contract and demand return of the vehicle.

This allegation is supported by a fair and liberal reading of appellants' live pleading. See Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) (“Texas follows a ‘fair notice’ standard for pleading, in which courts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy.”); see also Tex. R. Civ. P. 45, 47, 301. And appellants' response to Bayway Chevrolet's summary judgment motion included a copy of the RISC for the Silverado and an affidavit by Jeffrey. The RISC is executed solely between appellants and Bayway Chevrolet, lists Bayway Chevrolet as the “Seller/Creditor,” and provides that appellants agree to pay Bayway Chevrolet the amount financed, the finance charge, and any other charges in the RISC by paying a fixed monthly amount for a fixed number of months. Jeffrey's affidavit provides that Bayway Chevrolet processed credit applications for the Silverado's purchase and that Bayway Chevrolet demanded that appellants return the Silverado after GM Financial declined to finance the purchase.

Here, appellants' claim for violation of the ECOA includes allegations that Bayway Chevrolet processed their credit applications for the Silverado, was a creditor to them for the purchase of the Silverado as provided for under the RISC's terms, and failed to give them notice of its adverse decision on their credit application when it sought to unilaterally rescind the parties' existing credit agreement, as required by the ECOA. See 15 U.S.C. §§ 1691(d)(6), 1691a(e), 1691e(a). And Bayway Chevrolet's motion did not challenge appellants' ECOA claim based on the allegation that Bayway Chevrolet was a creditor that failed to give them notice of its adverse action when it sought a change in the terms of an existing credit arrangement, nor did its motion advance any argument for disposition of such a claim. See Tex. R. Civ. P. 166a(c) (“The motion for summary judgment shall state the specific grounds therefor.”), (i) (“The motion must state the elements as to which there is no evidence.”). Accordingly, to the extent appellants alleged an ECOA claim based on these actions by Bayway Chevrolet as the creditor for appellants' purchase of the Silverado, we conclude the trial court erred when it granted summary judgment to Bayway Chevrolet. See Tex. R. Civ. P. 166a.

We sustain appellants' first issue in part and overrule it in part.

III. SUFFICIENCY OF THE EVIDENCE

In their third through ninth issues, which we address next, appellants challenge the factual sufficiency of the evidence as to the jury's findings necessary to support the trial court's take nothing judgment on their claims for violations of the DTPA, violations of the TDCA, fraud, IIED, and violation of Finance Code § 348.408.⁸ Specifically, appellants challenge the jury's findings that: Bayway Chevrolet did not engage in any false, misleading, or deceptive act or practice that appellants relied on to their detriment; Bayway Chevrolet did not engage in an unconscionable action or course of action; Bayway Chevrolet did not engage in unfair debt collection; Bayway Chevrolet did not engage in fraud; appellants' harm did not occur from fraud; Bayway Chevrolet did not intentionally inflict emotional distress on appellants; Bayway Chevrolet did not fail to pay the outstanding balance on appellants' loan for the Nissan; Bayway Chevrolet was not a creditor; the credit extended to appellants was not for personal, family, or household purposes; and Bayway Chevrolet did not fail to comply with the RISC for the Silverado.

A. STANDARD OF REVIEW

When reviewing a factual sufficiency challenge, we “must consider and weigh all of the evidence,” not just the evidence that supports the factfinder's finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We must review the evidence in a neutral light. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). If we set aside a judgment on the basis that a vital finding is not supported by factually sufficient evidence, then we must detail the evidence that is relevant to the issue and specify how the contrary evidence greatly outweighs the evidence that supports the finding. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). If a party challenges the factual sufficiency of an adverse finding on an issue for which it had the burden of proof at trial, then it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem., 46 S.W.3d at 242. We can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. We measure the sufficiency of the evidence based on the jury charge. See Barnes v. Mathis, 353 S.W.3d 760, 764 (Tex. 2011) (per curiam); Romero v. KPH Consol., Inc., 166 S.W.3d 212, 221 (Tex. 2005).

B. DTPA

In their third issue, appellants argue there is factually insufficient evidence supporting the jury's findings that (1) Bayway Chevrolet did not engage in any false, misleading, or deceptive act that appellants relied on to their detriment; and (2) Bayway Chevrolet did not engage in an unconscionable action or course of action.

1. Applicable Law

The DTPA protects consumers from deceptive trade practices in the purchase and lease of goods and services. See Tex. Bus. & Com. Code Ann. §§ 17.46, 17.50; Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996); Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex. 1980). We liberally construe and comprehensively apply the provisions of the DTPA to promote its underlying purpose, which is the protection of consumers. Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731, 743 (Tex. App.—Fort Worth 2005, no pet.); see Tex. Bus. & Com. Code Ann. § 17.44(a). The elements of a cause of action for violation of the DTPA are that (1) the plaintiff is a consumer, (2) the defendant can be sued under the DTPA, (3) the defendant committed a wrongful act under the statute, and (4) the defendant's actions were the producing cause of the plaintiff's damages. See Tex. Bus. & Com. Code Ann. §§ 17.45(a), 17.46; Amstadt, 919 S.W.2d at 649.

Producing cause is an efficient, exciting, or contributing cause, which in a natural sequence produced injuries or damages complained of, if any. Rourke v. Garza, 530 S.W.2d 794, 801 (Tex. 1975); Bartlett v. Schmidt, 33 S.W.3d 35, 39 (Tex. App.—Corpus Christi–Edinburg 2000, pet. denied). The producing cause must be “a substantial factor in bringing about the injury.” Metro Allied Ins. Agency, Inc. v. Lin, 304 S.W.3d 830, 834 (Tex. 2009) (per curiam). In this analysis, “Texas courts require consideration of intervening and superseding causes.” Daugherty v. Jacobs, 187 S.W.3d 607, 617 (Tex. App.—Houston [14th Dist.] 2006, no pet.). A “plaintiff must show that there is some unbroken causal connection between the allegedly deceptive act and the actual damages suffered.” Bartlett, 33 S.W.3d at 39. If the defendant proves there is a new and independent basis for the injuries, then this may negate that the defendant's acts were the producing cause of the injury. Id.

The DTPA provides a nonexclusive list of prohibited deceptive practices. Tex. Bus. & Com. Code Ann. § 17.46(b). The prohibited deceptive practices include the making of a representation that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law. Id. § 17.46(b)(12). A defendant can also violate the DTPA by undertaking an unconscionable action or course of action. Id. § 17.50(a)(3). Violations of §§ 17.46 (deceptive practices) and 17.50(a)(3) (unconscionable conduct) are distinct and either basis will support recovery. Mays v. Pierce, 203 S.W.3d 564, 571–72 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

A consumer who prevails in a DTPA claim may recover:

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; or if the trier of fact finds the conduct was committed intentionally, the consumer may 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 damages for mental anguish and economic damages ․

Tex. Bus. & Com. Code Ann. § 17.50(b)(1). “Economic damages” means compensatory damages for pecuniary loss, including costs of repair and replacement. Id. § 17.45(11). The term does not include exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society. Id. Mental anguish includes mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, and public humiliation. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

2. Deceptive Practices

The jury charge asked the jury: “Did Bayway Chevrolet engage in any false, misleading, or deceptive act or practice that Jeffrey and Melissa McCarthy relied on to their detriment and that was a producing cause of damages[⁹ ] to Jeffrey and Melissa McCarthy?” The charge stated in relevant part that Bayway Chevrolet violated the DTPA if Bayway Chevrolet represented that an agreement conferred or involved rights, remedies, or obligations which it did not have or involve, or which are prohibited by law. See Tex. Bus. & Com. Code Ann. § 17.46(b)(12); Leal v. Furniture Barn, Inc., 571 S.W.2d 864, 865 (Tex. 1978). The jury found Bayway Chevrolet did not engage in any false, misleading, or deceptive act or practice that appellants relied on to their detriment and that was a producing cause of their damages.

Appellants' factual sufficiency argument on appeal is based only on § 17.46(b)(12), which prohibits Bayway Chevrolet from misrepresenting the parties' rights under their agreements. See Tex. Bus. & Com. Code Ann. § 17.46(b)(12); Tex. R. App. P. 38.1(i). Specifically, appellants argue the evidence is factually insufficient because Bayway Chevrolet falsely represented that it was selling the Silverado to them without conditions, that financing for the Silverado's purchase had been secured through GM Financial, and then, after-the-fact, that the sale was not actually final and that appellants had to return the Silverado and pick up the Nissan. Appellants also argue the evidence is factually insufficient because Bayway Chevrolet had them sign a CDA at the same time as the RISC even though the CDA was void as a matter of law once the RISC was signed.

We agree with appellants there is factually insufficient evidence that Bayway Chevrolet did not violate the DTPA when it represented that an agreement, the RISC, conferred or involved rights, remedies, or obligations which it did not have or involve, or which were prohibited by law. The RISC is unambiguous. See Tex. Bus. & Com. Code Ann. § 17.46(b)(12); DeWitt Cnty. Elec. Co-op., Inc. v. Parks, 1 S.W.3d 96, 100 (Tex. 1999) (“When a court concludes that contract language can be given a certain or definite meaning, then the language is not ambiguous, and the court is obligated to interpret the contract as a matter of law.”); St. Paul Oil & Gas Corp. v. Trijon Expl., Inc., 872 S.W.2d 27, 28–29 (Tex. App.—Corpus Christi–Edinburg 1994, writ denied) (stating that § 17.46(b)(12) generally protects consumers against false statements of fact concerning their rights under an unambiguous contract). Under the RISC's plain and unambiguous language, Bayway's sale of the truck to appellants was a final sale.

Nonetheless, the undisputed evidence also shows that Bayway Chevrolet incorrectly represented to appellants that the sale was not final and instructed them to return the Silverado. Specifically, the RISC executed by Bayway Chevrolet and appellants states:

The Buyer is referred to as “you” or “your.” The Seller is referred to as “we” or “us.” This contract may be transferred by the Seller. PROMISE TO PAY: The credit price is shown below as the “Total Sales Price.” The “Cash Price” is also shown on page 2 of this contract. By signing this contract, you choose to purchase the vehicle on credit according to the terms of this contract. You agree to pay us the Amount Financed, Finance Charge, and any other charges in this contract. You agree to make payments in U.S. funds according to the Payment Schedule in this contract.

(emphasis added). The evidence is also undisputed that Bayway Chevrolet misrepresented that funding had been secured through GM Financial and that it was assigning its interest in the RISC to GM Financial. And the evidence is also undisputed that Bayway Chevrolet misinterpreted the RISC when it informed appellants that the sale was not final and that they needed to return the Silverado and pick up the Nissan due to GM Financial declining their credit application. This is because the RISC does not contain any language providing for any such action and because any such action is prohibited by law. See Tex. Bus. & Com. Code Ann. § 17.46(b)(12); Tex. Fin. Code Ann. § 348.408(c); City of Keller v. Wilson, 168 S.W.3d 802, 807, 822–23 (Tex. 2005).

Both Jeffrey's and Melissa's undisputed testimony provides that they would not have entered into the RISC if they knew financing had not been approved or if it was only conditional, because they were interested in purchasing a vehicle and would have purchased one elsewhere if they had been made aware of this. Both Jeffrey's and Melissa's undisputed testimony provides that they were not interested in driving a car for a short period of time only to potentially have to return it, and that they believed Bayway Chevrolet executed the RISC to keep them from purchasing a vehicle elsewhere.

Jeffrey testified that they were seeking $10,778.25 in damages—the unpaid balance on the Nissan's loan following its repossession and sale. Further, it is undisputed that this amount remained outstanding on the Nissan's loan, and that appellants were financially responsible for the balance, thus causing them economic damages. It is also undisputed that Bayway Chevrolet promised to pay off the Nissan's loan by accepting it as a trade in in the RISC, and Bayway Chevrolet later misrepresented to appellants the rights and duties under the RISC by telling them they must pick up the Nissan and return the Silverado. And it is undisputed that appellants were unable to use the Silverado after the temporary tags expired, yet they were still responsible for the monthly payments and attempted to make those monthly payments to Bayway Chevrolet, thereby supporting their claim of loss-of-use damages. And as discussed in detail further below, Jeffrey and Melissa presented undisputed testimony supporting their claim for mental-anguish damages under the DTPA.¹⁰ See Parkway Co., 901 S.W.2d at 444; Valley Nissan, Inc. v. Davila, 133 S.W.3d 702, 712 (Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (affirming DTPA mental-anguish damages and loss-of-use damages after car-dealership's salesman misrepresented to the plaintiff that she had been approved for financing, plaintiff traded in another vehicle and purchased a truck, and then was forced to return the truck and did not receive her trade-in in return); Lone Star Ford, Inc. v. Hill, 879 S.W.2d 116, 120–21 (Tex. App.—Houston [14th Dist.] 1994, no writ) (affirming DTPA mental-anguish damages when car-dealership's salesman engaged in deceptive practices during sale of an automobile and plaintiff testified as to a relatively high degree of distress resulting from dealership's deceptive actions).

Furthermore, the entire underlying dispute and the damages sought by appellants stem from Bayway Chevrolet's failure to secure financing for appellants' purchase of the Silverado and the misrepresentations it made concerning the RISC, and thus the misrepresentations complained of were a substantial factor in bringing about appellants' injuries. See Metro Allied Ins. Agency, Inc., 304 S.W.3d at 834. The entire evidence in the record, both testimony and documentation, shows that Bayway Chevrolet took actions and made misrepresentations that caused these alleged damages to appellants because GM Financial declined to accept the assignment of the RISC for the Silverado. Accordingly, we conclude there is factually insufficient evidence that Bayway Chevrolet's misrepresentations were not the producing cause of appellants' damages. See City of Keller, 168 S.W.3d at 807, 822–23; Davila, 133 S.W.3d at 712; Hill, 879 S.W.2d at 120–21.

To the extent that appellants argue Bayway Chevrolet violated the DTPA when it had appellants sign the CDA, we conclude the evidence is factually sufficient that any misrepresentation in the CDA was not the producing cause of their damages. We reach this conclusion because, contrary to appellants' argument in their brief on appeal, the portion of the record cited does not support their assertion that Bayway Chevrolet attempted to repossess the vehicle pursuant to the CDA, and we have found no evidence presented at trial supporting this assertion.¹¹ Appellants do not otherwise present any argument addressing how the execution of the CDA was a producing cause of their damages. See Tex. R. App. P. 38.1(i). Thus, we reject this argument.

Here, no evidence was presented disputing or contradicting appellants' testimony as to the content of what Bayway Chevrolet communicated to them at the time of the transaction or after GM Financial declined their credit application. Although Blair, Bayway Chevrolet's COO, testified Bayway Chevrolet does not offer in-house financing for clients and that the RISC was conditional and dependent on the assignment of the contract to GM Financial, we cannot ignore the plain and unambiguous language of the RISC providing that appellants were purchasing the Silverado on credit from Bayway Chevrolet and establishing that relationship, nor could a reasonable juror have done so. See City of Keller, 168 S.W.3d at 807, 822–23; see also Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1963) (“[P]arties to a contract have an obligation to protect themselves by reading what they sign.”); Smith v. Alderson Enters., L.P., No. 07-08-0344-CV, 2010 WL 890157, at *4 (Tex. App.—Amarillo Mar. 12, 2010, no pet.) (mem. op.) (“In its simplest terms, a contract is established when proven by a preponderance of the evidence that an offer is accepted, accompanied by consideration.”).

We note that Jeffrey testified he “understood” he was not borrowing money from Bayway Chevrolet to purchase the Silverado. However, this testimony by Jeffrey likewise does not support the jury's findings because the plain language of the RISC states that appellants purchased the vehicle on credit from Bayway Chevrolet, and because under a transaction such as this one it is clear that appellants are not literally borrowing money from Bayway Chevrolet to then give back to Bayway Chevrolet for the price of the vehicle. See Dorsett v. Hisp. Hous. & Educ. Corp., 389 S.W.3d 609, 613 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“To recover on a promissory note, the plaintiff must prove: (1) the note in question; (2) the party sued signed the note; (3) the plaintiff is the owner or holder of the note, and (4) a certain balance is due and owing on the note.”). Furthermore, Jeffrey also testified:

I believed I was buying the vehicle from Bayway Chevrolet on a Retail Installment Sales Contract that they were assigning -- that they assigned the financing on it to GM Financial; but I was buying the vehicle from Bayway, through Bayway and they were assigning the financing to GM Financial.

․

I have a Retail Installment Sales Contract that says I bought the vehicle from Bayway Chevrolet, not from GM Financial.

A reasonable juror could not have ignored the unambiguous RISC in favor of Jeffrey's testimony that he “understood” he was not borrowing money from Bayway Chevrolet to find that Bayway Chevrolet did not misrepresent the parties' rights and duties under the RISC. See City of Keller, 168 S.W.3d at 807, 822–23.

On appeal, Bayway Chevrolet argues the evidence is factually sufficient because appellants breached the RISC and were in default, per the RISC's own terms, when they provided false, incomplete, or misleading information concerning Jeffrey's income on their credit application, thus allowing Bayway Chevrolet to repossess the Silverado at that point. We agree that the RISC contains this language, but this does not obviate the legal significance of Bayway Chevrolet's misrepresentations about the parties' rights and duties under the contract. The RISC does not provide that Bayway Chevrolet could then unilaterally void or rescind the RISC to declare the sale was not final, to ignore its obligation to pay off the Nissan, and to reject its acceptance of the parties' agreement or appellants' payments. Notably, the RISC provides that the proceeds from the sale of the repossessed vehicle shall be applied towards the balance under the RISC, which in this case had been calculated with the Nissan's trade in. Again, a reasonable juror could not ignore the RISC and the substantial evidence that Bayway Chevrolet misrepresented the parties' rights and duties under it as a result of also finding that appellants committed fraud in their transaction with Bayway Chevrolet. See City of Keller, 168 S.W.3d at 807, 822–23.

Considering and weighing all of the evidence in the trial record, we conclude the jury's finding that Bayway Chevrolet did not engage in any false, misleading, or deceptive act or practice that appellants relied on to their detriment and that was a producing cause of their damages is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Dow Chem., 46 S.W.3d at 242. Therefore, there is factually insufficient evidence supporting this finding by the jury.

3. Unconscionable Conduct

“Unconscionable action or course of action” is defined as “an act or practice which, to a consumer's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly unfair degree.” Tex. Bus. & Com. Code Ann. § 17.45(5); see Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 677 (Tex. 1998); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex. 1998). “Grossly” means the resulting unfairness must be “glaringly noticeable, flagrant, complete and unmitigated.” Chastain v. Koonce, 700 S.W.2d 579, 583 (Tex. 1985) (op. on reh'g). Unconscionability under the DTPA is an objective standard for which scienter is irrelevant. Bradford v. Vento, 48 S.W.3d 749, 760 (Tex. 2001). Furthermore, the unconscionable act or practice does not have to occur simultaneously with the purchase of goods by the consumer. Flenniken v. Longview Bank & Tr. Co., 661 S.W.2d 705, 707 (Tex. 1983). But the unconscionable act or practice must occur within the context of the purchase of goods or services. Id.

Appellants argue there is factually insufficient evidence supporting the jury's finding that Bayway Chevrolet did not engage in an unconscionable course of action. Specifically, appellants argue on appeal only that Bayway Chevrolet engaged in an unconscionable course of action by having appellants sign the CDA and RISC at the same time, despite knowing it had not secured financing for appellants, thereby taking appellants “out of the credit marketplace,” and by attempting to repossess the vehicle pursuant to the CDA, which was void as a matter of law. We will limit our review to appellants' arguments on appeal.¹²

As noted earlier, the evidence is factually sufficient that Bayway Chevrolet's action of having appellants sign the CDA was not the producing cause of appellants' damages, and thus appellants' complaint based on the CDA is unmeritorious. However, we conclude there is factually insufficient evidence supporting the jury's finding that Bayway Chevrolet did not engage in an unconscionable course of action when it had appellants sign the RISC under the impression that funding was secured through GM Financial and that GM Financial was being assigned the RISC.

Question 4 of the charge asked the jury: “Did Bayway Chevrolet engage in any unconscionable action or course of action that was the producing cause of damages to Jeffrey and Melissa McCarthy?” It defined “producing cause” as “a cause that was a substantial factor in bringing about the damages, if any, and without which the damages would not have occurred[, and there] may be more than one producing cause”; and it further provided “[a]n 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 jury answered “No.”

Bayway Chevrolet is a car dealership and an experienced and sophisticated party in vehicle sales. It is undisputed that the RISC was executed by the parties and that it is unambiguous. Under it, Bayway Chevrolet sold the Silverado to appellants and represented it was assigning the RISC to GM Financial. Between the parties, only Bayway Chevrolet knew that GM Financial's approval was conditional and when financing would actually be approved for appellants. And the evidence that Bayway Chevrolet did not disclose to appellants that the approval was conditional is undisputed. Bayway Chevrolet's subsequent representations to appellants that the RISC was void, unenforceable, irrelevant, or invalid because of GM Financial's rejection of appellants' credit application is prohibited by law. See Tex. Fin. Code Ann. § 348.1015(a). This evidence indicates that Bayway Chevrolet took advantage of appellants' lack of knowledge, ability, experience, or capacity to a grossly unfair degree, and a reasonable juror could not have ignored it. See City of Keller, 168 S.W.3d at 807, 822–23; see, e.g., Bossier Chrysler-Dodge II, Inc. v. Riley, 221 S.W.3d 749, 755–56 (Tex. App.—Waco 2007, pet. denied) (“The evidence that Bossier Country had Riley sign the installment contract before financing was actually approved would support a finding that Bossier Country engaged in unconscionable conduct.”). For the same reasons previously discussed in our analysis of appellants' deceptive-practices claim under the DTPA, we further conclude there is factually insufficient evidence supporting the jury's implied finding that appellants did not suffer any damages as a result of Bayway Chevrolet's unconscionable actions.

The evidence in the record supporting the jury's finding is the same evidence we noted under our previous section discussing the factual sufficiency of the evidence supporting the jury's finding as to appellants' DTPA deceptive-practices claim. For the same reasons stated there, considering and weighing all of the evidence in the trial record, we conclude the jury's finding that Bayway Chevrolet did not engage in an unconscionable act or course of conduct that caused appellants damages is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Dow Chem., 46 S.W.3d at 242; Pool, 715 S.W.2d at 635.

We sustain appellants' third issue in part and overrule it in part.

C. TDCA

In their fourth issue, appellants argue there is factually insufficient evidence supporting the jury's finding that Bayway Chevrolet did not violate the TDCA. In their eighth and ninth issues, appellants argue there is factually insufficient evidence supporting the jury's findings that Bayway Chevrolet was not a creditor and that the credit extended by Bayway Chevrolet was not for personal, family, or household purposes—both necessary findings for appellants' claim under the TDCA. We address these three issues together.

1. Applicable Law

The TDCA prevents creditors from preying upon a consumer's fears and ignorance of the law to pursue allegedly delinquent debts, and it prohibits debt collectors from using wrongful practices in the collection of consumer debts. See Brown v. Oaklawn Bank, 718 S.W.2d 678, 680 (Tex. 1986). A consumer may sue under the TDCA for threats, coercion, harassment, abuse, unconscionable collection methods, or misrepresentations made in connection with the collection of a debt. See Tex. Fin. Code Ann. §§ 392.301–392.305. In relevant part, the TDCA prohibits a debt collector from using threats, coercion, or attempts to coerce that employ: (1) accusing falsely or threatening to accuse falsely a person of fraud or any other crime; (2) threatening that the debtor will be arrested for nonpayment of a consumer debt without proper court proceedings; or (3) threatening to file a charge, complaint, or criminal action against a debtor when the debtor has not violated a criminal law. See id. § 392.301(a)(2), (5), (6). The TDCA also prohibits a debt collector from oppressing, harassing, or abusing a person by causing a telephone to ring repeatedly or continuously, or making repeated or continuous telephone calls, with the intent to harass a person at the called number. Id. § 392.302(4).

A consumer is “an individual who has consumer debt.” Id. § 392.001(1). “Creditor” means a party, other than a consumer, to a transaction involving a consumer who has “consumer debt.” Id. § 392.001(1)–(3). “Consumer debt” means “an obligation, or an alleged obligation, primarily for personal, family, or household purposes and arising from a transaction or alleged transaction.” Id. § 392.001(2).

A person can recover actual damages sustained as a result of a violation of the TDCA. Id. § 392.403(a)(2). The plaintiff must prove she suffered actual, foreseeable injury as a result of the defendant's wrongful act. See id. § 392.403(a)(2); Brown, 718 S.W.2d at 680; Elston v. Resol. Servs., 950 S.W.2d 180, 184–85 (Tex. App.—Austin 1997, no writ). The plaintiff must prove her injury was a result of the defendant's wrongful act; evidence that the plaintiff suffered injury as a result of simply owing the debt does not support a finding of injury. E.g., Elston, 950 S.W.2d at 184–85 (concluding plaintiff suffered no actual damages because evidence of plaintiff's anxiety, physical ailments, and stress related to plaintiff's inability to pay debts, not to defendant's collection methods).

2. Analysis

On appeal, appellants argue Bayway Chevrolet violated the TDCA by (1) falsely accusing or threatening them of fraud and theft, see Tex. Fin. Code Ann. § 392.301(a)(2); (2) threatening appellants with arrest for the nonpayment of consumer debt without proper court proceedings, see id. § 392.301(a)(6); (3) threatening to file a charge, complaint, or criminal action against appellants when appellants had not violated a criminal law, see id. § 392.301(a)(5); and (4) causing appellants' phones to ring repeatedly or continuously, or making repeated or continuous telephone calls, with the intent to harass appellants at the called number. See id. § 392.302(a)(4). As noted, to violate the TDCA, the complained-of actions must involve a creditor's attempts to collect a consumer debt, which is defined as a debt primarily for personal, family, or household purposes and arising from a transaction or alleged transaction. See id. § 392.001(2). The jury was asked in separate granulated questions whether Bayway Chevrolet was a creditor, and whether the debt was for personal, family, or household purposes. It answered no to both questions.

a. “Personal, Family, or Household Purposes”

Here, the evidence is undisputed that appellants purchased the Silverado for them to use as a family, and the RISC provides that the Silverado was purchased for personal, family, or household purposes. A reasonable juror could not have ignored this evidence indicating the Silverado was purchased for personal, family, or household purposes. See City of Keller, 168 S.W.3d at 807, 822–23. Furthermore, we have searched the record from trial and have not found any evidence supporting this finding by the jury.

Considering and weighing all the evidence in the record, we conclude the jury's finding that the credit extended to appellants by Bayway Chevrolet was not for personal, family, or household purposes is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Dow Chem., 46 S.W.3d at 242; Pool, 715 S.W.2d at 635. Accordingly, there is factually insufficient evidence supporting this finding by the jury.

b. “Creditor”

The jury charged asked the jury:

Was Bayway Chevrolet a “creditor” during Jeffrey and Melissa McCarthy's purchase of the 2018 Chevy Silverado on January 17, 2019?

The term “creditor” refers to a person who both (1) regularly extends, whether in connection with loans, sales of property or services, or otherwise, consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required, and (2) is the person to whom the debt arising from the consumer credit transaction is initial [sic] payable on the face of the evidence of indebtedness or, if there is no such evidence of indebtedness, by agreement.

An auto dealer and a bank have a business relationship in which the bank supplies the dealer with credit sale contracts that are initially made payable to the dealer and provide for the immediate assignment of the obligation to the bank. The dealer and the purchaser execute the contract only after the bank approves the creditworthiness of the purchaser. Because the obligation is initially payable on its face to the dealer, the dealer is the only creditor in the transaction.

The jury answered “No.”

We conclude there is factually insufficient evidence supporting the jury's finding that Bayway Chevrolet was not a creditor. The RISC explicitly identifies “Bayway Chevrolet” as the “Seller/Creditor” for the Silverado. The RISC sets forth “federal truth-in-lending disclosures,” gives Bayway Chevrolet a security interest in the Silverado, and—after specifying that Bayway Chevrolet “is referred to as ‘we’ or ‘us’ ” in the contract—details “how we figure the finance charge.” The RISC sets forth the amount financed, the finance charge, the monthly payment, and the eighty-four installments for such payments. The RISC uses permissive language, not mandatory language, allowing Bayway to choose whether to assign the contract to a third party.

Thus, the agreement's plain and unambiguous language is clear that under it appellants promised to pay the unpaid balance on the Silverado to Bayway Chevrolet unless the contract was assigned to another entity. See Senior Care Living VI, LLC v. Preston Hollow Cap., LLC, 695 S.W.3d 778, 811 (Tex. App.—Houston [1st Dist.] 2024, pet. denied) (“A promissory note is a contract evincing an obligation to pay money.”); Jim Maddox Props., LLC v. WEM Equity Cap. Invs., 446 S.W.3d 126, 132 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (same). And as noted, the only evidence in the record is that appellants' debt for the Silverado is “consumer debt” because it was primarily for personal, family, or household purpose, and there is no dispute about the terms of the contract or any assertion that it is ambiguous. See City of Keller, 168 S.W.3d at 807, 822–23.

The only evidence in the record supporting the jury's finding is Jeffrey's statement that he did not believe he was borrowing money from Bayway Chevrolet for the purchase of the Silverado by signing the RISC and Blair's testimony that the Bayway Chevrolet does not lend money to its customers for the purchase of its vehicles. As previously noted, we cannot ignore the plain and unambiguous language of the RISC executed by the parties. The evidence shows that the RISC is a fill-in-the-blank form, which Bayway also used to sell appellants the Jeep they purchased just before they purchased the Silverado. Both clearly provide that appellants purchased the vehicles on credit from Bayway Chevrolet, and a reasonable and fair-minded juror could not have ignored this evidence. See City of Keller, 168 S.W.3d at 807, 822–23. Further, Jeffrey's statement does not support the jury's findings because the plain language of the RISC states that appellants purchased the vehicle on credit from Bayway Chevrolet, and because under a transaction such as this one, it is clear that appellants are not literally borrowing and receiving money from Bayway Chevrolet to then give back to Bayway Chevrolet for the price of the vehicle. See Dorsett 389 S.W.3d at 613.

Considering and weighing all the evidence in the record, we conclude the jury's finding that Bayway Chevrolet was not a creditor in the transactions memorialized in the RISCs for the Jeep and the Silverado is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Dow Chem., 46 S.W.3d at 242; Pool, 715 S.W.2d at 635. Accordingly, there is factually insufficient evidence supporting this finding by the jury.

c. Bayway Chevrolet's Collection Efforts

Here, the jury charge asked the jury:

Did Bayway Chevrolet engage in unfair debt collection that was a producing cause of damages to Jeffrey and Melissa McCarthy?

Unfair debt collection occurs when -

1. Bayway Chevrolet, Inc., is a debt collector;

2. Bayway Chevrolet, Inc., committed a wrongful act;

3. The wrongful act was committed against Jeffrey and Melissa McCarthy; and

4. Jeffrey and Melissa McCarthy were injured as a result of the defendant's wrongful act.

The charge further correctly defined producing cause, debt collector, and debt collection and listed the wrongful acts enunciated in the TDCA. The jury answered “No.”

It is undisputed that Bayway Chevrolet mailed appellants the following letter dated March 12, 2019:

This letter is a demand for action. Bayway Chevrolet has attempted to recover our property from the above address. This recovery is due to GM Financial declining to fund the auto loan in your names because of fraudulent income.

This letter serves as notice that if our property is not recovered within 10-days from the date of this letter, the vehicle will be reported stolen to the local authorities.

This letter clearly and undisputably threatens “to file a charge, complaint, or criminal action” against appellants and “threatens to accuse” appellants of theft. See Tex. Fin. Code Ann. § 392.301(a)(2),(6). It is also clear that appellants did not violate a criminal law because Bayway Chevrolet executed a contract selling the Silverado to appellants, accepted appellants' downpayment and Nissan as part of the transaction, voluntarily transferred possession of the Silverado to appellants, and allowed appellants to leave with the Silverado and temporary tags. According to the plain and unambiguous language of the RISC, appellants became the owners of the Silverado, and thus there is zero evidence in the record appellants committed a crime and any such accusation is false. See id.

It is also undisputed that Bayway Chevrolet filed a criminal complaint against appellants with the Pearland Police Department accusing them of stealing the Silverado, for which felony warrants were issued for appellants' arrests. And it is undisputed that Bayway Chevrolet told Jeffrey that the inmates in Harris County “would love him” and “tear him up.” This is a prohibited threat of violence to cause harm to a person under § 392.301(a)(1) of the TDCA or an implicit threat to have him arrested for nonpayment of a consumer debt without proper court proceedings. See id. § 392.301(a)(5). Finally, Jeffrey and Melissa testified that Bayway Chevrolet's repossession agent called her over fourteen times a day and that appellants had to put their cellphones on airplane mode as a result. The evidence is undisputed that Bayway Chevrolet called appellants' phones repeatedly and continuously, and that the intent of the communications was to harass appellants. See id.

The evidence is also undisputed that, at Bayway Chevrolet's bequest, numerous police officers went to appellants' home to execute the warrants and seize the Silverado. Appellants testified that the officers threatened them with the removal of their three children by Child Protective Services, and that their neighbors witnessed this ordeal. Both appellants testified that their children played with their neighbors' children frequently but that this stopped and their neighbors shunned them after law enforcement's visit. Both appellants testified of the toll Bayway Chevrolet's collections efforts had on them.

Jeffrey testified:

It destroyed me. I've worked my whole life honest. I've been an honest employee. I've never taken shortcuts on anything. I've worked for everything that I have. I've never taken a handout from anybody. I've never taken and tried to get anything over on anybody. My dad raised me that there's no blessing in that. That's the way I've raised my kids to be. I'm honest. I'm brutally honest to the point that it gets me in trouble on stuff. I've had incidents happen at work, Hey, did you do this?

Nobody seen it, but my conscience, my morals tells me that I have to be honest on it. So I'm taking and raising my kids that way. Trying to stay strong through all of this, be strong for my wife, be strong for my kids has taken a toll. Anxiety-wise, I was through the roof. I could not sleep. I could not eat. If I did eat, it was binging, overeating. I'm not an alcoholic. I'm not a drinker. I'm not a drug person. So I didn't do any of that. So I turned to food or lack of food. Couldn't sleep. I tried burying myself in work more to make it go away, but that didn't happen. I work to provide for my family. We live pretty much paycheck to paycheck. We don't have the luxury of having 401(k). I don't have the luxury of retirement fund. I don't have a rainy-day fund. We take and work to live; and I couldn't take time off during my work week to take and get myself checked in and go talk to somebody. So on the weekend, if we had any elective day at work – which ended up being on March 16th. I took myself into the VA to see somebody about the anxiety that was amounting that I was at the point that I couldn't handle it no more.

Jeffrey further testified that these events put “so much strain on our marriage that I didn't think we were going to make it.” And Jeffrey explained how he feared for his job and family:

[I]f I would have been arrested on that, I would have lost my job. I would have lost my clearance. I would have lost my TWIC card. I would not have been able to take and continue on in my career. So it wasn't just right there that I had the chance of losing everything. It was -- I had the chance of losing everything in my life at that point. I had my kids that were worried that daddy is going to get arrested or our vehicle is going to get taken from us unlawfully, unrightfully, that they had no right to take from us, lost time at work, dealing with the court ․

Melissa testified:

I don't even know where to start. Like, when you have kids and that's what you worry about, they walk in and they tell you your kids are about to get taken away from you over a lie that a dealership has told. And this whole time you're thinking you own this truck, and they're going to walk in and steal this truck from you that you haven't even been able to drive for months because it's been locked in a garage. My husband has warrants out for his arrest. Everything crumbled within seconds of that dealership making a lie up about us.

․

It put a huge strain on our marriage. We fought over this over and over. You take a guy that is this big, tough guy, and it tears him down mentally to think he failed as a person because of all this stuff that they threw at us, all the stuff they lied about; and it made him feel like he was less of a person. And so it just -- it ate at us. He went out of state for a few months and worked there because we didn't know if we were going to survive.

Considering and weighing all of the evidence in the record, we conclude the jury's implicit finding that appellants suffered no damages from Bayway Chevrolet's wrongful debt-collection attempts is so against the great weight and preponderance of the evidence so as to be clearly wrong and unjust. See Brown, 718 S.W.2d at 680; Parkway Co., 901 S.W.2d at 444; see, e.g., Davila, 133 S.W.3d at 716 (“We hold that the evidence presented at trial which showed the public humiliation of having one's truck repossessed provides some evidence to support the jury's finding on mental anguish.”); Hill, 879 S.W.2d at 120–21 (“Hill's shock, severe disappointment, disbelief, depression, sleeplessness, and bitterness reflect a relatively high degree of distress.”).

Bayway Chevrolet presented no evidence contradicting any of appellants' testimony or providing a different version of what occurred. Blair did not testify as to any of the underlying interactions between appellants and Bayway Chevrolet because he was not present when the RISC was executed and did not work for Bayway Chevrolet at the time. On appeal, Bayway Chevrolet argues the evidence is factually sufficient because the jury found that appellants committed fraud in the transaction for the Silverado's purchase and Jeffrey testified he “understood” he was not borrowing money from Bayway Chevrolet. However, a civil finding of fraud is not the same as a criminal conviction for fraud; that appellants were found civilly liable by the jury for fraud does not render Bayway Chevrolet's collection efforts acceptable under the TDCA or their allegations of criminal conduct true. As previously noted, the RISC is unambiguous and its plain language provides that Bayway Chevrolet was a creditor as to the Silverado's sale. A reasonable juror could not have disregarded the evidence noted above that contradicts this finding. See City of Keller, 168 S.W.3d at 807, 822–23.

Unquestionably, the threat of criminal prosecution is one of the most frightening and embarrassing ordeals to which an individual can be subjected․ Our Constitution has steadfastly adhered to the fundamental principle that a person is innocent until his guilt is established beyond a reasonable doubt. Pursuant to that mandate, an intricate system of procedural protections is maintained to protect the individual against spurious allegations. To allow creditors or their representatives to circumvent proper procedures would make a mockery of that system․ We decline to accept a standard giving the creditor the power and authority to determine the guilt or innocence of an individual debtor. Similarly, a trial court cannot assume that responsibility in a civil proceeding to enforce the debt.

Brown, 718 S.W.2d at 680.

Considering and weighing all the evidence in the record, we conclude that the jury's finding that Bayway Chevrolet did not violate the TDCA is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Dow Chem., 46 S.W.3d at 242; Pool, 715 S.W.2d at 635. Accordingly, there is factually insufficient evidence supporting the jury's finding that Bayway Chevrolet did not violate the TDCA. See Tex. Fin. Code Ann. §§ 392.301(a)(2), (4)–(6), 329.302(a)(4); see, e.g., Brown, 718 S.W.2d at 680 (“We ․ hold that Oaklawn's threats of criminal prosecution violate the Debt Collection Act as a matter of law.”); Peters v. Quinney, No. 03-01-00043-CV, 2001 WL 1627650, at *5 (Tex. App.—Austin 2001, no pet.) (concluding that defendant's criminal complaint against that falsely alleged theft of vehicle by plaintiff violated Finance Code § 392.301(a)(2)); Lloyd v. Myers, 586 S.W.2d 222, 227 (Tex. App.—Waco 1979, writ ref'd n.r.e.) (concluding that defendant's initiation of false criminal charges against plaintiffs violated former article 5069-11.02(b), now Finance Code § 392.301(a)(2)).

We sustain appellants' fourth, eighth, and ninth issues.

D. FRAUD

In their fifth issue, appellants challenge the factual sufficiency of the evidence supporting the jury's finding that Bayway Chevrolet did not engage in fraud and that appellants did not suffer any harm from the alleged fraud.

1. Applicable Law

To prove an action for common-law fraud, the plaintiff must establish the defendant knowingly made a material false representation with the intent that the plaintiff act on it, the plaintiff acted on it, and the misrepresentation caused the plaintiff damages. Int'l Bus. Machs. Corp. v. Lufkin Indus., 573 S.W.3d 224, 228 (Tex. 2019); JPMorgan Chase Bank v. Orca Assets G.P., 546 S.W.3d 648, 653 (Tex. 2018); Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015). Actual damages available for common-law fraud include both general or direct damages and special or consequential damages. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997); Airborne Freight Corp. v. C.R. Lee Enters., 847 S.W.2d 289, 295 (Tex. App.—El Paso 1992, writ denied).

Exemplary damages are recoverable where a plaintiff proves by clear and convincing evidence that the harm for which he seeks exemplary damages resulted from fraud. Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)(1). “Clear and convincing” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Id. § 41.001(2).

2. Analysis

The jury charge correctly instructed the jury on fraud and the applicable law, providing in relevant part that fraud occurs when:

(a) a party fails to disclose or actively conceals a material fact within the knowledge of that party, and

(b) the party knows that the other party is ignorant of the fact and does not have an equal opportunity to discovery the truth, and

(c) the party intends to induce the other party to take some action or refrain from acting by failing to disclose the fact, and

(d) the other party suffers injury as a result of acting without knowledge of the undisclosed fact.

The jury found that Bayway Chevrolet did not commit fraud in its dealings with appellants. The jury also found that appellants did not prove by clear and convincing evidence that they suffered any harm from fraud or malice.

Appellants argue that Bayway Chevrolet committed fraud by representing that GM Financial would be the lender for the Silverado's sale and that Bayway Chevrolet would be assigning its interest in the RISC to GM Financial, despite Bayway Chevrolet knowing that GM Financial had not approved appellants' credit application. Appellants also argue that Bayway Chevrolet committed fraud when it represented to appellants that Jeffrey's medical leave would not be a problem in obtaining financing. Appellants argue Bayway Chevrolet made these misrepresentations with the goal of inducing appellants to purchase the vehicle and enter a final cashable contract while also removing appellants from “the credit marketplace.” In other words, appellants complain that Bayway Chevrolet misrepresented that the financing for the purchase of the Silverado was secured and complete with the intent that they act on that misrepresentation and execute the RISC purchasing the Silverado.

It is undisputed that: Bayway Chevrolet knew Jeffrey was on medical leave before any of the credit applications were submitted; Bayway Chevrolet informed appellants this was not an issue as long as Jeffrey had a paystub from the last thirty days; Bayway Chevrolet knew GM Financial's approval was conditional; the RISC was signed the same day GM Financial informed Bayway Chevrolet of its conditional approval; Bayway Chevrolet listed GM Financial in the RISC as the party to contact for that contract, even though GM Financial had not yet accepted it; Bayway Chevrolet represented to appellants on January 17 that the sale was final; Bayway knew these representations were false when it made them; the misrepresentations were made with the intention that appellants sign the RISC for the Silverado; and appellants acted in reliance on those misrepresentations.

Jeffrey testified that if he and Melissa had known that financing was not secured through GM Financial and that Bayway Chevrolet would not accept their monthly payments, then they would never have purchased the Silverado and consequently suffered the damages they seek to recoup. And the evidence that appellants suffered economic and noneconomic damages as a result of Bayway Chevrolet's misrepresentations is undisputed. Bayway Chevrolet again argues the evidence is factually sufficient because the jury found that appellants committed fraud as to the Silverado's purchase, but that finding by the jury does not negate appellants' claim for fraud or the evidence in support of it. Considering and weighing all the evidence in the record, we conclude that the jury's finding that Bayway Chevrolet did not commit fraud is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See City of Keller, 168 S.W.3d at 807, 822–23. Thus, there is factually insufficient evidence supporting this finding by the jury.

Appellants also argue Bayway Chevrolet committed fraud when it sent a letter to appellants informing them that they would be filing a police report against them if they did not bring the vehicle back in ten days. Appellants, however, fail to elaborate on how this was a representation that induced them into executing the RISC and purchasing the Silverado. See Tex. R. App. P. 38.1(i). The same is true of appellants' argument that Bayway Chevrolet committed fraud when it dated the RISC for January 31, 2019, instead of the date when the parties executed the RISC, January 17. Accordingly, we reject these arguments.

As to appellants' argument that Bayway Chevrolet committed fraud when it represented in the RISC that it was the original creditor yet subsequently refused to accept appellants' payments, we note that Bayway Chevrolet was the creditor in the transaction, as stated explicitly in the RISC, and thus this was not a misrepresentation. As to Bayway Chevrolet's refusal to accept appellants' payments on the Silverado, we note that Bayway Chevrolet promised under the RISC to accept appellants' payments. Appellants also complain that Bayway Chevrolet committed fraud because it did not pay off the balance on the Nissan, despite promising to do so in the RISC. However, a breach of a promise is not a misrepresentation of a material fact unless there was no intention to perform at the time the future promise was made. Int'l Bus. Machs. Corp., 573 S.W.3d at 228 (“In a fraudulent-inducement claim, the ‘misrepresentation’ occurs when the defendant falsely promises to perform a future act while having no present intent to perform it.”); see Lindale Auto Supply, Inc. v. Ford Motor Co., No. 14-96-00563-CV, 1998 WL 104953, at *11 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“To establish a cause for negligent misrepresentation ․ there must be proof of the false representation of an existing fact, not the breach of a future promise.”); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 674–75 (Tex. App.—Houston [1st Dist.] 1996, no pet.) (“[W]e conclude that Farah's fraud and negligent misrepresentation causes of action in the underlying suit were based upon the breach of a promise and therefore contractual in nature.”). Here, there is no evidence that Bayway Chevrolet did not intend to pay off the Nissan at the time it executed the RISC, and there is no evidence that Bayway Chevrolet did not intend to accept appellants' payments at the time it executed the RISC. Therefore, we also reject these arguments.

Finally, appellants challenge the jury's finding as to their claim for punitive damages for fraud by asserting: “[t]he jury's failure to find ․ that the harm Appellants suffered did not result from fraud ․ was contrary to the overwhelming weight and preponderance of the evidence.” However, the jury charge required the jury to make this finding on their special damages based on clear and convincing evidence. Appellants' brief fails to present any argument discussing the facts of the case and relevant controlling authority and applying the higher standard of proof to address why the evidence was factually insufficient. See Tex. R. App. P. 38.1(i); Lion Copolymer Holdings v. Lion Polymers, LLC, 614 S.W.3d 729, 733 (Tex. 2020) (per curiam) (noting that a party must demonstrate on appeal how the evidence supporting the adverse finding is factually insufficient); In re C.H., 89 S.W.3d 17, 25 (Tex. 2002) (“As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.”). We are prohibited from making this argument for them. See Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Servs., 716 S.W.3d 572, 576 (Tex. 2025) (per curiam) (“The court certainly is not obligated itself to perform, and is indeed forbidden from performing, the task of litigating the case on any party's behalf.”). Accordingly, we conclude that appellants failed to show there is factually insufficient evidence supporting the jury's finding as to their punitive-damages request. See Lion Copolymer Holdings, 614 S.W.3d at 733.

We sustain appellants' fifth issue in part and overrule it in part.

E. IIED

In their sixth issue, appellants argue there is factually insufficient evidence supporting the jury's findings that Bayway Chevrolet did not intentionally inflict emotional distress on either Jeffrey or Melissa.

1. Applicable Law

Generally, IIED is a “gap-filler” tort intended to be used only where “a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffmann–La Roche, Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). IIED can be an independent cause of action if the actor intended to cause severe emotional distress or if severe emotional distress is the primary risk created by the actor's reckless conduct. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 63 (Tex. 1998). “Courts should consider the entire set of circumstances surrounding the conduct, such as the defendant's course of conduct, the context of the parties' relationship, whether the defendant knew the plaintiff was particularly susceptible to emotional distress, and the defendant's motive or intent.” MVS Int'l Corp. v. Int'l Adver. Sols., LLC, 545 S.W.3d 180, 203 (Tex. App.—El Paso 2017, no pet.) (citing GTE SW., Inc. v. Bruce, 998 S.W.2d 605, 615 (Tex. 1999)). IIED as a cause of action depends less on a particular set of facts and more on the overall essence of the plaintiff's complaint. Hoffmann-La Roche Inc., 144 S.W.3d at 447.

To recover damages for IIED, a plaintiff must show (1) the conduct was intentional or reckless; (2) the conduct was extreme and outrageous; (3) the conduct caused the claimant emotional distress; and (4) the emotional distress was severe. Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993). Emotional distress includes all highly unpleasant mental reactions, such as fright, humiliation, embarrassment, anger, and worry. Behringer v. Behringer, 884 S.W.2d 839, 844 (Tex. App.—Fort Worth 1994, writ denied).

For a plaintiff to recover, the distress must be so severe that no reasonable person should be expected to endure it. Id. The plaintiff must prove that she suffered more than “mere worry, anxiety, vexation, embarrassment, or anger.” Regan v. Lee, 879 S.W.2d 133, 136 (Tex. App.—Houston [14th Dist.] 1994, no writ). Feelings of anger, depression, and humiliation are insufficient evidence of severe distress. Id. at 136–37. For example, emotional distress has been found to be sufficiently severe in these cases: Behringer, 884 S.W.2d at 844–45 (plaintiff feared for his life, slept with a pistol, cried in public, and lost his appetite); Motsenbocker v. Potts, 863 S.W.2d 126, 135 (Tex. App.—Dallas 1993, no writ) (plaintiff was so disturbed, uncomfortable, worried, and frightened that he considered suicide); and Tidelands Auto. Club v. Walters, 699 S.W.2d 939, 945 (Tex. App.—Beaumont 1985, writ ref'd n.r.e.) (plaintiff refused to speak or see anyone, became ill and disoriented, and experienced extreme anger). Emotional problems such as crying spells, emotional outbursts, nausea, stomach disorders, headaches, difficulty in sleeping and eating, stress, anxiety, and depression which required medical treatment and medication is legally sufficient evidence to support a finding of severe emotional distress. GTE SW., 998 S.W.2d at 618–19.

2. Analysis

The charge asked the jury whether Bayway Chevrolet intentionally inflicted emotional distress on Jeff and Melissa and provided:

Intentional infliction of emotional distress occurs when the defendant acts intentionally or recklessly with extreme and outrageous conduct to cause the plaintiff emotional distress and the emotional distress suffered by the plaintiff was severe.

“Extreme and outrageous conduct” occurs only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.

The jury found Bayway Chevrolet did not intentionally cause emotional distress to either Jeffrey or Melissa. As part of appellants' sufficiency challenge to this finding by the jury, appellants must demonstrate there is factually insufficient evidence supporting the jury's implied finding that their emotional distress was not severe.

Severe emotional distress is distress that is so severe that no reasonable person could be expected to endure it. Bruce, 998 S.W.2d at 618. Although appellants certainly presented some evidence of a high level of emotional distress, we cannot conclude the jury's finding is against the great weight and preponderance of the evidence. See Dow Chem., 46 S.W.3d at 242. While appellants testified they were extremely affected by warrants issued for their arrest, the evidence is undisputed that appellants were aware of the warrants and criminal charges against them for one or two days at most before the warrants were dismissed when appellants showed law enforcement the RISC. And although both appellants testified as to the emotional toll and stress caused by Bayway Chevrolet's actions on Jeffrey and their marriage following the purchase of the Silverado, appellants offered little details as to the duration and severity of their anxiety and how any distress was unendurable. Instead, Jeffrey testified he continued to go to work, that he visited a doctor once, and that did not take any medication other than melatonin to help him sleep because he did not like medication or pills. This evidence also supports the jury's finding that Jeffrey's emotional distress was not severe. Melissa provided little testimony of her emotional distress, and there is no evidence that she sought professional help.

Considering and weighing all the evidence, we conclude there is factually sufficient evidence supporting the jury's implied finding that appellants' emotional distress was not severe. See MVS Int'l Corp., 545 S.W.3d at 204–05; see, e.g., Regan v. Lee, 879 S.W.2d 133, 136–37 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (concluding that testimony that plaintiff was “very angry,” humiliated, and suffered from depression but did not seek professional help failed to meet burden of establishing severe emotional distress).

We overrule appellants' sixth issue.

F. TRADE-IN PAYOFF

In their seventh issue, appellants argue there is factually insufficient evidence supporting the jury's finding that Bayway Chevrolet did not fail to timely pay the third-party lender the outstanding balance on appellants' loan for the trade-in Nissan.

The charge asked the jury:

Did Bayway Chevrolet, Inc., fail to pay the outstanding balance of Jeffrey and Melissa McCarthy's Trade-in vehicle to [the Nissan's third-party lender] not later than the 25th day after the date that:

(1) the retail installment sales contract for the Vehicle was signed by Jeffrey and Melissa McCarthy, and Jeffrey and Melissa McCarthy received delivery of the Vehicle; and

(2) Bayway Chevrolet received delivery of the Trade-in Vehicle, and the necessary and appropriate documents to transfer title from the Jeffrey and Melissa McCarthy.

The jury answered “No.”

A car dealer owes special duties to his or her customers pursuant to various statutes. As relevant to this case, a car dealer in Texas who accepts a trade-in in exchange for the purchase of a new car has a statutory obligation to pay off the lienholder of the trade-in within twenty-five days. See Tex. Fin. Code Ann. § 348.408. A retail car seller who violates § 348.408 is liable to the retail buyer in an amount computed by adding: (1) three times the difference between the amount tendered and the amount sought by the holder at the time of tender; (2) interest; (3) reasonable attorney's fees; and (4) costs. Id. § 348.409; see id. § 348.001(3).

Here, the evidence is undisputed that Bayway Chevrolet and appellants executed the RISC for appellants' purchase of the Silverado; Bayway Chevrolet accepted the Nissan as part of the transaction and signed the RISC memorializing this; appellants transferred possession of the Nissan to Bayway Chevrolet and executed the necessary documents to transfer title from appellants; and Bayway Chevrolet failed to pay off the Nissan's remaining loan balance, resulting in the Nissan's repossession by the finance company. See id. § 348.408. We conclude that a reasonable juror could not disregard this evidence. See City of Keller, 168 S.W.3d at 807, 822–23. Because Bayway Chevrolet contractually accepted the Nissan as part of the transaction as a trade in, it was required by law to pay off appellants' loan on the Nissan within twenty-five days of January 17, 2019. See Tex. Fin. Code Ann. § 348.408.

Bayway Chevrolet argues that the jury's finding “must stand” because the jury found that appellants committed fraud when they provided inaccurate and incomplete income information. Bayway Chevrolet further argues that if appellants had provided truthful information, then GM Financial would have funded the transaction, and the loan for the Nissan would have been paid off. We reject Bayway Chevrolet's argument because it overlooks the plain and unambiguous language of the RISC it executed in which it promised to sell the Silverado to appellants, to accept monthly payments from them, and to accept the Nissan as a trade-in. As previously noted, the contract was not conditioned on GM Financial approving appellants' credit applications, nor could it have been. See id. § 348.1015(a); see also Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976) (“A condition precedent may be either a condition to the formation of a contract or to an obligation to perform an existing agreement.”). Furthermore, there is no language in the RISC that allowed Bayway Chevrolet to unilaterally cancel or modify the contract. Although the RISC provides that the “fraud” Bayway Chevrolet alleges—giving incomplete or inaccurate information on a credit application—results in appellants' default on the RISC, the RISC does not excuse Bayway Chevrolet's performance under it and Texas law to pay off the balance on appellants' Nissan. The remedies under the RISC available to Bayway Chevrolet's due to the buyer's default were to demand payment in full of the amount financed and to repossess the Silverado, sell it, and apply the proceeds towards the balance in the RISC. This balance included the Nissan's trade-in balance. Finally, we note that Bayway Chevrolet agrees the RISC was an executed contract because it bases its arguments and claims on the existence of the agreement, and it sought to recover damages from appellants for a breach of that contract in its counter claim.

Considering and weighing all the evidence in the record, we conclude the jury's finding that Bayway Chevrolet did not fail to pay the outstanding balance on the Nissan is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See City of Keller, 168 S.W.3d at 807, 822–23. Accordingly, there is factually insufficient supporting the jury's finding that Bayway Chevrolet did not fail to pay off the loan on the Nissan.

We sustain appellants' seventh issue.

G. APPELLANTS' FRAUD & FAILURE TO COMPLY WITH THE RISC

In their tenth issue, appellants argue there is legally and factually insufficient evidence supporting the jury's findings that they failed to comply with the RISC for the Silverado's purchase and that they committed fraud.

Here, the jury made findings in favor of Bayway Chevrolet on its counterclaims for fraud and for breach of contract; however, the trial court's judgment did not award any damages or relief to Bayway Chevrolet on either claim. When a judgment is entered after a conventional trial, we presume that the judgment is final and that any relief not included in the judgment is denied. North E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897–98 (Tex. 1966); see Vaughn v. Drennon, 324 S.W.3d 560, 561 (Tex. 2010) (“A judgment following a conventional trial on the merits need not dispose of every party and claim for the Aldridge presumption of finality to apply.”). This presumption only applies, however, in the absence of a contrary showing in the record. See Aldridge, 400 S.W.2d at 898; see also Martinez, 875 S.W.2d at 313–14.

The parties have not pointed our attention to any evidence in the record showing that the presumption of finality does not apply, nor have we found any. See Aldridge, 400 S.W.2d at 898. Accordingly, we conclude that the trial court's judgment is final, that it disposed of Bayway Chevrolet's counterclaims, and that it denied Bayway Chevrolet any damages or relief. See, e.g., Butler v. Amegy Bank, N.A., No. 14-15-00410-CV, 2016 WL 3574685, at *6 (Tex. App.—Houston [14th Dist.] June 30, 2016, no pet.) (mem. op.); see also Good v. Baker, 339 S.W.3d 260, 265 (Tex. App.—Texarkana 2011, pet. denied); Remigio v. Armenta, No. 02-21-00298-CV, 2022 WL 2526943, at *2 (Tex. App.—Fort Worth July 7, 2022, no pet.) (mem. op.). Therefore, we must conclude that appellants' tenth issue challenging these findings by the jury is moot. See Glassdoor, Inc. v. Andra Grp., 575 S.W.3d 523, 527 (Tex. 2019) (“[A] case becomes moot during the pendency of the litigation if, since the time of filing, there has ceased to exist a justiciable controversy between the parties—that is, if the issues presented are no longer live, or if the parties lack a legally cognizable interest in the outcome.”) (internal quotation marks omitted).¹³

We overrule appellants' tenth issue.

H. SUMMARY

For the reasons stated above, we conclude there is factually insufficient evidence supporting the jury's findings that: (1) Bayway Chevrolet did not violate the DTPA by misrepresenting the rights and duties of the parties under the RISC or by engaging in unconscionable act or course of conduct; (2) Bayway Chevrolet did not violate the TDCA; (3) Bayway Chevrolet did not commit fraud in their dealings with appellants; and (4) Bayway Chevrolet did not fail to pay off the loan on the Nissan used as a trade-in in the transaction for the Silverado. Accordingly, we conclude there is factually insufficient evidence supporting the trial court's judgment that appellants take nothing via these claims.

IV. MOTION IN LIMINE

In their second issue, appellants argue the trial court erred when it did not grant their motion in limine and when it admitted into evidence documents showing that appellants and Bayway Chevrolet settled their dispute over the Silverado by executing a second RISC.

Here, appellants filed a motion in limine as to the second RISC executed for the Silverado, and the trial court overruled their request. Appellants did not object when the second RISC was offered into evidence or referenced at trial. See Tex. R. App. P. 33.1(a). Furthermore, appellants' motion in limine recognizes that it is not seeking a ruling on the admissibility of the evidence, instead stating that they were requesting that the trial court prevent Bayway Chevrolet from mentioning the second RISC for the Silverado “until such matters have been first called to the attention of the Court out of the presence and/or hearing of the jury, and a favorable ruling obtained from the Court as to the admissibility and relevance ․”

The purpose of a motion in limine is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. Hartford Acc. & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963). And the overruling of a motion in limine is never reversible error. Id.

If a motion in limine is overruled, a judgment will not be reversed unless the questions or evidence were in fact asked or offered. If they were in fact asked or offered, an objection made at that time is necessary to preserve the right to complain on appeal that such questions asked or such evidence tendered were so prejudicial that the mere asking or tendering should require a reversal. In neither case-(1) questions not asked or evidence not offered, or (2) questions asked or evidence offered-should the error of the trial court in overruling the motion in limine be regarded as harmful or reversible error.

Id.; see Tex. R. App. P. 33.1(a); see, e.g., State v. Wood Oil Distrib., 751 S.W.2d 863, 866 (Tex. 1988) (noting that appellate complaint on the trial court's ruling on motion in limine presented nothing for review). Even if the trial court makes an erroneous ruling on a motion in limine, there is no reversible error unless the court erroneously admits or excludes evidence or allows or prevents statements or questions over a proper objection at trial. Acord v. Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984).

Because appellants' argument that the trial court erred in admitting evidence of the second RISC is premised on the trial court's denial of their motion in limine, and because a motion in limine does not preserve error as to the admission of evidence, we reject appellants' argument and overrule their second issue.

V. CONCLUSION

We reverse the part of the trial court's judgment ordering that appellants take nothing via their claims for: (1) violation of the DTPA, based on Bayway Chevrolet's misrepresentations of the parties rights and duties under the first RISC for the Silverado and on Bayway's unconscionable act or course of conduct; (2) violations of the TCPA, based on Finance Code §§ 392.301(a)(2), (4)–(6); (3) common-law fraud based on Bayway Chevrolet's misrepresentation that funding for the Silverado had been secured through GM Financial and that it was assigning its interest in the RISC to GM Financial; and (4) violation of Finance Code § 348.408. We remand for a new trial on these claims. We also reverse the part of the trial court's order granting summary judgment to Bayway Chevrolet as to appellants' claim for violation of the ECOA based on Bayway Chevrolet being a creditor for the Silverado's purchase and on its failure to give notice of its adverse action to appellants and remand for further proceedings on this claim. We affirm the remainder of the judgment.

FOOTNOTES

1.   Appellants testified they did not sign a second credit application that day because they were told the prior one was still “valid.” Nevertheless, Bayway Chevrolet introduced into evidence a credit application for GM Financial that Bayway Chevrolet advanced as having been filled out and signed by appellants on January 17, 2019. The GM credit application is handwritten, undated, and lists Jeffrey's employer and his full income. Jeffrey testified he did not sign that document, that the signature on the document is not his signature, and that the signature on the credit application with GM Financial was different from his signatures on all the other documents he signed with Bayway Chevrolet. The signature on the application with GM Financial is markedly different from Jeffrey's signature on all other documents he signed with Bayway Chevrolet.

2.   “Conditional delivery agreement” means “a contract between a retail seller and prospective retail buyer under the terms of which the retail seller allows the prospective retail buyer the use and benefit of a motor vehicle for a specified term.” Tex. Fin. Code Ann. § 348.013(a). A CDA is “void on the execution of a retail installment contract between the parties of the conditional delivery agreement for the sale of the motor vehicle that is the subject of the conditional delivery agreement.” Id. § 348.013(c)(2).

3.   Although the contracts for the Silverado were signed on January 17, 2019, they were dated for January 31, 2019. It is undisputed that on January 17 appellants executed the paperwork for the Silverado's purchase, transferred possession of the Nissan to Bayway Chevrolet, executed the necessary documents for the Nissan's transfer, and drove the Silverado home with temporary tags. Bayway Chevrolet's trial counsel asked Jeffrey whether the documents were dated for January 31 so that appellants could receive certain incentives towards the Silverado purchase, but Jeffrey testified “We knew we were getting the incentives. We didn't know it had anything to do with the date of January 31, 2019.” Apart from counsel's questions, which are not evidence, there is nothing else in the record supporting counsel's contention that the RISC was dated for January 31 because of the incentives.

4.   This email is not in the record.

5.   It is unclear whether this decision was based on an inability to confirm Jeffrey's income as listed on the application by the conditional-approval's expiration date; or on Jeffrey's income being short based on the email Jeffrey sent on January 14; or on the inability to confirm the extension of Jeffrey's benefits past February 4, 2019, before the conditional approval expired. GM Financial's notes from February 14, 2019, as to appellants' credit application provided: “proof of income and will need to verify when returning to work, need actual stub from who is paying buyer, cannot use bank statement, spoke to agent handling claim and he stated the extension has not been finalized, stated maybe 02/15 ․”

6.   Appellants testified they executed the second RISC so that they could receive license plates for the Silverado, as they had been unable to drive the vehicle since the temporary tags expired.

7.   It is undisputed that GM Financial provided appellees with notice of its adverse action.

8.   In their brief, appellants present the standard of review applicable for legal sufficiency, but the substance of their arguments for issues three through nine only challenge the factual sufficiency of the evidence by arguing only that the findings are against the great weight and preponderance of the evidence. See Tex. R. App. P. 38.1(i); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). Furthermore, appellants' prayer for relief requests that this Court “reverse the trial court's judgment and remand the cause to the trial court for further proceedings consistent with the opinion of this court of appeals, and for such other and further relief, both in law and in equity, to which Appellants may be justly entitled.” Accordingly, we construe appellants' issues three through nine as challenging only the factual sufficiency of the evidence. See Wright Way Spraying Serv. v. Butler, 690 S.W.2d 897, 898 (Tex. 1985) (per curiam) (“The court of appeals has no jurisdiction to render based on a great weight and preponderance of the evidence point.”); Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam) (“If the court of appeals sustains the point finding the evidence factually insufficient, it must reverse the judgment of the trial court and remand for new trial.”); see also Green v. Villas on Town Lake Owners Ass'n, Inc., No. 03-20-00375-CV, 2021 WL 4927414, at *5 (Tex. App.—Austin Oct. 22, 2021, pet. denied) (mem. op.) (“Because the Greens make only legal sufficiency arguments and request that we reverse and render judgment in its favor, we construe this issue as a legal sufficiency challenge.”). Furthermore, appellants failed to preserve any legal-sufficiency argument as to issues three through nine by failing to assert such a challenge in their motion for new trial. See Tex. R. Civ. P. 324(b)(2).

9.   The charge did not define “damages” under Question 3, which asked the jury to determine whether Bayway Chevrolet engaged in deceptive practices violating the DTPA, and neither party objected to this. Instead, the jury charge asked the jury to determine appellants' damages categorically in Question 9 and defined damages under that question.

10.   To recover mental-anguish damages under the DTPA, the plaintiff must secure a finding that the defendant acted knowingly or intentionally. Here, the jury did not make that determination because it found in Questions 3 and 4 that Bayway Chevrolet did not violate the DTPA. Questions 6 and 7 of the charge, which addressed whether Bayway Chevrolet acted knowingly or intentionally, asked the jury to answer these two questions only if they answered “yes” to Questions 3, 4, or 5.

11.   Appellants' brief also points to filings in the case included in the clerk's record indicating that Bayway Chevrolet was undertaking actions pursuant to the CDA, but these filings were not admitted into the record at trial, and thus we cannot consider them.

12.   Appellants do not advance any argument addressing or mentioning Bayway Chevrolet's other efforts and conduct at regaining possession of the Silverado and whether they were unconscionable, despite addressing this evidence as to their IIED claim. See Tex. R. App. P. 38.1(i).

13.   See also Robinson v. Alief Indep. Sch. Dist., 298 S.W.3d 321, 324 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (“The mootness doctrine precludes a court from rendering an advisory opinion in a case where there is no live controversy.”); Thompson v. Ricardo, 269 S.W.3d 100, 103 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“[I]f a judgment cannot have a practical effect on an existing controversy, the case is moot and any opinion issued on the merits in the appeal would constitute an impermissible advisory opinion.”).

Brad Hart Justice