ON MOTION FOR REHEARING
Our оpinion of March 4, 1987, is hereby withdrawn, and the following is substituted therefor.
This appeal is brought by Town East Ford Motor Company as the result of a judgment for Fred Gray arising from the sale to him of a 1983 LTD Ford automobile. Town East presents sixteen points of error. For the reasons stated hereinafter, we reverse the judgment in part and reform it, and, as reformed, we affirm it.
The facts of this case are fairly simple, but the complexity arises from the manner in which the case was tried and, particularly, the manner in which it was presented to the jury. The facts as they must have appeared to the jury are as follows: Gray went to the Town East dealership on February 11, 1983 to purchase a new automobile. There he met Smith, a salesman for Town East, who assisted Gray. Gray told Smith he wanted to purchase a new Ford LTD, but that he had been experiencing problems with the carburetor of his old 1979 LTD and he wanted assurances about the new 1983 model. Smith satisfied Gray about the new 1983 LTD, explaining that they had put a nеw model of carburetor in the 1983 LTDs. Gray purchased the automobile that very day, trading in his old 1979 LTD for $2,500.00 on the brand new 1983 LTD. Part of the purchase price was financed by Gray through Ford Motor Company’s lending agency.
Almost immediately Gray experienced the very problems he feared: the carburetor was defective. Less than a week after he bought the car, Gray returned to Town East and asked for his money and his old car back. Town East refused, stating that they had already sold his other car. Instead, Town East offered to service the car to repair it. Town East repeatedly serviced the automobile and eventually replaced the carburetor twice. In the meantime, another problem arose: the braking system developed a defect and this was also serviced by Town East. Over a period of six months, Town East installed four new master brake cylinders in an attempt to correct the problem. When Gray grew dissatisfied with Town East’s service on the brakes, he tоok the car to Weaver Spring and Brake. The first time that Gray took the car to Weaver Spring, Weaver recommended that a new master brake cylinder be installed. Weaver sent Gray back to Town East for the work because the car was still under warranty. The second time that Gray went to Weaver was on August 9, 1983, whereupon Weaver once again tested the car and recommended that a new master brake cylinder be installed. Weaver installed the new master brake cylinder, but wrote a letter to Gray stating that, because of the history of the car’s brake problems, it could not guarantee the work. Town East also installed two brake boosters over the six months period.
The testimony also revealed that Gray had tried to return the car to Town East and get his money back on several other occasions, but Town East refused. Finally, after the second repair by Weaver, the brake system and carburetor problems were apparently curеd, and the car was working satisfactorily. However, since Gray had no assurances that the problems were permanently cured, he was concerned about the vehicle’s safety. Because he was concerned about the safety of his family, Gray parked the automobile in his garage on August 15, 1983, with 10,000 miles on the odometer, and bought another automobile.
Gray then sued Town East for deceptive trade practices under the Deceptive Trade *801 Practices Act (DTPA) 1 and for fraud under the common law on the purchase of the 1983 LTD Ford. The jury returned a verdict for Gray under both causes of action, and, pursuant to the doctrine of election of remedies, the trial court awarded Gray damages under the DTPA, including prejudgment interest, of $21,246.45. The trial court then trebled the damages, awarding Gray a total of $63,739.35 plus attorney’s fees.
I. ACTUAL DAMAGES
Because of the complexity of this case, we will address the points of error in groups, not necessarily in numerical order. In their second and third points of error, Town East claims that there is no evidence, or in the alternative, insufficient evidence, to support the jury’s findings of actual damages. We agree as to the damages based on the value of the car and the damages for mental anguish, and we reverse and render on those points. We affirm the damages based on loss of use of the car.
In reviewing “no evidence” points of error, our standard of review requires us to consider only that evidence, and reasonable inferences therefrom which, viewed in its most favorable light, supports the jury finding. We must reject all evidence and inferences to the contrary.
Glover v. Texas General Indemnity Company,
A. Market Value of the Car
We first address Town East’s point that there was no evidence to support the jury finding of $8,632.45 as damages for “the differеnce between the actual cost of the 1983 Ford LTD automobile and the value of the automobile in its defective condition.” This is the correct
measure
of damages in a DTPA action based upon the sale of an automobile.
Vista Chevrolet, Inc. v. Lewis,
Q: “Do you have an opinion about what the market value of that automobile is to you as it is sitting in that garage right now?” [October 21, 1985] (Date supplied).
A: “Zero.”
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Q: “Do you have an opinion concerning current market value of that automobile that you own?” [October 21, 1985] (Date supplied).
A: “I consider it to be zero.”
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Q: “Mr. Gray, when you purchased that car if you knew the problems you were going to encounter would it have been worth what you paid for it?”
A: “No.”
Q: “What would it have been worth to you if you had known the problems you were going to have?”
A: “It would have been worth zero to me at that time.”
Q: “What do you think the market value would have been as it was delivered given those problems?”
MR. PAULEY: “Object, Your Honor. He hasn’t laid a proper predicate for that question.”
*802 THE COURT: “Overruled.”
Q: [By Mr. Sifford]: “What would have been the market value?”
A: “As far as I’m concerned it would have been a zero at that time.”
(Emphasis added.) This testimony is no evidence of the market value of the car at the time it was delivered. Proof of market value at the time of trial is no evidence of value at the time of acceptance.
Overseas Motors Corp. v. First Century Christian Church,
Gray claims that, even if he was not qualified to testify about the value of the car, another witness, Dennis Washkowiak, was qualified, and that his testimony is sufficient evidence of the car’s market value at the time Gray received it. Washkow-iak was an appraiser for an insurance cоmpany, often appraised automobiles, and was familiar with that 1983 LTD because he rode to work with Gray on a regular basis. However, although Washkowiak may have been qualified to testify concerning the market value of the car when Gray received it in its defective condition, he did not do so. The sum of Washkowiak’s testimony on this issue reads as follows:
Q: “Now, is it your testimony today [June 18, 1984] that this car is totally valueless?” (Date supplied).
A: “Yes.”
Q: “It has no scrap value?”
A: “It has some salvage to it, I guess. It’s got no value to me. I wouldn’t want it.
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Q: “Potentially, every car has some value to somebody?”
A: “Yes.”
Q: “Just not this car to you at this time?”
A: “Well, I don’t believe if a car is functional, can be functionally used, it has no value at all. It may have salvage value if you are dealing with an insurance claim or something like that. But I don’t believe the car has any value right now. It’s not being used, it’s not worth anything. You can’t use it. It’s not worth anything.”
Washkowiak’s testimony clearly refers to the market value of the car at the time of trial, not at the time Gray received it.
Gray called three other witnesses, who also testified that they would not want his car as it wаs and would not have paid anything for it. None of this testimony concerns the actual market value of the car as of the time it was received in its defective condition. As stated earlier, we infer from the figure arrived at by the jury that the jury found the market value of the car, as delivered in its defective condition, to be $2,500. There is no basis whatsoever for this finding. The only place in the record where any figure of $2,500 appears is on the sales invoice, where $2,500 is the amount Gray was allowed for the trade-in
*803
value of his 1979 LTD. This has no relationship to the 1983 LTD and is, therefore, no evidence of the market value of the 1983 LTD at the time it was received in its defective condition. Accordingly, we reverse the award of damages in the amount of $8,632.45 and render that Gray take nothing on this point.
Vista Chevrolet, Inc. v. Lewis,
B. Mental Anguish.
Town East also claims that there is no evidence to support the finding of $5,000 in damages for aggravation and mental anguish. We agree. In the first place, there is no cause of action for damages for aggravation. Aggravation may be one element of damages for mental anguish, but it is not a cause of action in and of itself.
See K-Mart Corporation Store No. 7441 v. Trotti,
Q: “Have you had a lot of time to think about this case?”
A: “Almost three years.”
Q: “Have you been anguished about it?”
A: “You bet.”
Q: “Will you tell the Jury generally what it’s been like to be involved in this kind of litigation with these kinds of claims?”
A: “Well, it is a continuing strain. Originally it was strain because of the lack of confidence in the brakes, but once the car was set up and not driven any more then it became a strain of hopefully at some point reaching a reasonable disposition of the case and some satisfaction.”
Dennis Washkowiak also gave the following testimony on this issue:
Q: “Do you know why he quit using the car?”
A: “I believe he finally got so frustrated with the unsafeness of the car that he had to put it in thеre. Because other people would ride with him. He’s got two children and the car, in his opinion and my opinion, was totally unsafe.”
In order to establish mental anguish, “a plaintiff must show more than mere worry, anxiety, vexation, embarrassment, or anger.”
Roberts v. U.S. Home Corporation,
The term “mental anguish” implies a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, [resentment], or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.
Gray cites us to
North Star Dodge Sales, Inc. v. Luna,
C. Loss of Use
Next, we address Town East’s complaint that there was no evidence, or in the alternative, insufficient evidence, to support the jury award to Gray of $4,906.05 in damages for loss of use of the car. We also address Town East’s complaint that the jury used the incorrect measure of damages in determining loss of use. First, we address Town East’s claim that the measure of damages was incorrect. Gray did not seek damages for the periods that the LTD was in the repair shop from February to August. Rather, he sought damages from the time he parked the car in his garage in August until the time of trial. Gray did not seek damages for the reasonable rental value of a replacement car; rather, he sought to recover the cost of buying a replacement car. That cost amounted to the $500 downpayment on the replacement vehicle, the $395.00 payment for tax, title and license, and his $160.43 monthly car payment on the replacement vehicle for the 26 months from the time he parked the LTD until the time of trial. The jury awarded precisely this amount, for a total of $4,906.45.
According to Luna,
[I]n order to prove loss of use of an automobile, the plaintiff need not rent a replacement automobile or show any amounts actually expended for alternative transportation. We agree with the Washington Supreme Court in Holmes v. Raffo,60 Wash.2d 421 ,374 P.2d 536 (1962):
If we were to hold that a plaintiff who has lost the use of his pleasure automobile ... cannot be compensated because he has not hired a substitute automobile, we would be plаcing upon recovery a condition of financial ability to hire another automobile to take the place of the injured automobile. The law cannot condone such a condition. He would be denied compensation for his inconvenience resulting from the defendant’s wrongful act.
[Citations omitted].... To prove up loss of use, the reasonable rental value of a substitute automobile is sufficient evidence to support an award of actual damages. The period of compensatory loss will be the amount of time the plaintiff was deprived of the loss of use [sic] of the automobile.
Luna,
II. THE SPECIAL ISSUES
In its fourth point of error, Town East complains that the trial court erred in overruling their objection to Special Issue No. 10, because (1) it is a comment on the weight of the evidence, (2) it authorizes an improper and incorrect measure of damages, and (3) it authorizes recovery of “aggravation” damages which are not recoverable under the DTPA or under common law. Special Issue No. 10 requested the jury to find the amount of damages Gray was entitled to for the value of the car, loss of use, and mental anguish. Since we have already reversed the damage awards for the value of the car and for mental an *806 guish, we need only address these claims insofar as they relate to the issue on loss of use.
Special Issue No. 10 reads, in pertinent part,
Find from a preponderance of the evidence the amount of money which fairly and reasonably compensates Fred J. Gray for his actual damages, if any, which you have found from a preponderance of the evidence resulted frоm the transaction in question.
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2. The loss of use of the 1983 Ford LTD automobile.
Answer in dollars and cents.
ANSWER:_
First, Town East claims that the court’s failure to include the phrase, “if any” immediately following the phrase, “the amount of money” is a comment on the weight of the evidence. We disagree. The failure to include the phrase “if any” is not a comment on the weight of the evidence such that it would affect the jury’s judgment. The issue does include the phrase “if any” after the word “damages”; therefore, the jury could infer that a finding of damages and an award of money was not mandatory. Although the issue could possibly have been worded better, we hold that the wording of special issue 10 was, at worst, harmless error.
See Alvarez v. Missouri-Kansas-Texas Railroad Company,
Town East also claims that Special Issue No. 10 contained an improper measure of damages in that it only asked the jury to find damages for “the loss of use of the 1983 Ford LTD automobile.” Town East claims that the issue was overly broad and that it should have limited recovery to the period from February 11, when Gray bought the car, to August 15, when he parked it permanently in his garage. We have already addressed this argument in our discussion under points of error two and three. Town East’s fourth point of error is overruled.
In its fifth point of error, Town East claims that the trial court erred in overruling its objections to Special Issue No. 10(1) and 10(2) because the issue is unsupported by Gray’s pleadings. We disagree. Again, since we have sustained Town East’s points of error concerning the damages for the value of the car and for mental anguish, we address this point only as it relates to the issue for loss of use. Gray’s pleadings state that he was without the use of the car on several listed dates. The pleadings also state that Gray was required to purchase an additional vehicle and that he “should be reimbursed for the costs of the additional automobile purchased by him.” That is exactly what the jury awarded him. Town East’s fifth point of error is overruled.
In its sixth point of error, Town East complains that the trial court erred in failing to submit its special issue concеrning mitigation of damages. We disagree. Since we have affirmed only the damage award for loss of use, we need only consider the mitigation issue as it relates to that point. We agree that an injured party has a duty to minimize his loss; however, the burden of proof as to the extent to which the damages were or could have been mitigated lies with the party who has caused the loss.
See Copenhaver v. Berryman,
In its ninth, tenth, eleventh, twelveth and thirteenth points of error, Town East claims that the trial court erred in submitting the special issues which asked the jury to determine (1) whether Town East engaged in an unconscionable course of action, (2) whether Town East represented to Gray that the car had characteristics, uses and benefits which it did not have, (3) whether Town East’s acts were a producing cause of Gray’s damages, and (4) *807 whether Town East’s acts were committed knowingly. Town East claims that there is no evidence, or in the alternative, insufficient evidence, to support the submission of these issues to the jury.
In discussing these points of error, we again apply the principles for no evidence and insufficient evidence points, as we discussed earlier. For a no evidence point, we consider only that evidence which tends to support the jury finding, and we disregard all evidence to the contrary. If there is more than a scintilla of evidence to support the jury’s findings, we must uphold them.
Dixon v. Van Waters and Rogers, a Division of Univar Company,
1. Unconscionable Conduct.
In its ninth point of error, Town East claims that the trial court should not have submitted the special issues to the jury asking whether Town East engaged in unconscionable conduct. Under § 17.45(5), an “unconscionable action or course of action” is defined as follows:
... an act or practice which, to a person’s detriment:
(A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or
(B) results in a gross disparity between the value received and consideration paid in a transaction involving transfer of consideration.
TEX.BUS. & COMM.CODE ANN. § 17.-45(5) (Vernon Supp.1987). Town East claims that there is no evidence, or in the alternаtive, insufficient evidence to support the jury’s finding of unconscionable conduct on the part of Town East. We disagree. The evidence at trial showed that, while Town East was very experienced about automobiles, Gray knew little about the mechanical operation of a car. Gray bought the car relying on Town East’s expertise. The evidence also showed that Town East refused Gray’s demands to rescind the purchase, even after repeated attempts to repair the car had failed. There was some evidence that, on some visits, no work at all was done by Town East on the car. Numerous witnesses testified as to the car’s defects. For six months, Gray attempted to resolve the problems with the car with Town East, and received no relief. Furthermore, the record is replete with evidence that there was a gross disparity between the value of the Ford LTD received by Gray and the price that he paid for it. We hold that there is some evidence to support the jury’s finding that Town East engaged in an unconscionable course of action, and that, examining the record as a whole, there is sufficient evidence to support the jury’s finding. Town East’s ninth point of error is overruled.
2. Representations.
In its tenth and eleventh points of error, Town East claims that the trial court erred in submitting the special issues to the jury concerning whether Town East made representations to Gray about the standard and quality of the Ford LTD and the standard and quality of the repairs, and whether these representations were false. Town East claims that there is no evidence to support the submission of these issues to the jury, or, in the alternative, that there is insufficient evidence to support the jury’s findings. We disagree. The evidence showed that Gray specifically told the salesman, Dennis Smith, that he had had carburetor problems with his 1979 LTD, and that he did not want another LTD *808 unless the carburetor problems had been fixed. Smith assured him that Ford had corrected the prоblem in the 1983 models. Smith also told Gray that the car would provide good, dependable transportation. The car required three carburetors, five master brake cylinders, and two brake boosters over a period of six months. Each time Gray picked up the car from Town East’s repair shop, he was assured that the problems were fixed, but they continued to occur. We hold that there was ample evidence to support the submission of these issues to the jury, and sufficient evidence to support the jury’s findings on these issues. Town East’s tenth and eleventh points of error are overruled.
3. Producing Cause.
In its twelfth point of error Town East claims that there was no evidence, or, in the alternative, insufficient evidence, to support the jury’s findings that the acts and practices of Town East were a producing cause of Gray’s damages. Again, we disagree. Town East contends that Gray’s damages were caused by his own action of parking the car in his garage while it was in good working condition. We have discussed Gray’s action earlier in this opinion and we are persuaded that it was not unreasonable. The brakes had been unreliable for over six months, and no repair job would fix them. Furthermore, Weaver Brake had written Gray a letter that they could not guarantee the last repair job on the brakes because of the history of the car’s problems. The evidence clearly showed that the car was defective from the time Gray bought it at Town East. We hold that the evidence was sufficient to support the jury’s findings that Town East’s actions were responsible for Gray’s damages. Town East’s twelfth point of error is overruled.
4. Knowingly.
In its thirteenth point of error, Town East claims that the trial court erred in overruling its motion for judgment non obstante verdicto and its motion for new trial because there was no evidence, or in the alternative, insufficient evidence, to support the jury’s finding that Town East’s acts were committed knowingly. According to
Jim Walter Homes, Inc. v. Valencia,
III. THE EXHIBITS
In its fourteenth point of error, Town East claims that the trial court erred when it refused to send defendant’s exhibit number 28 into the jury room. This exhibit was a letter from Town East’s attorney to Gray’s attorney, containing an offer to settle. Town East claims that the trial judge admitted the exhibit into evidence and then refused to submit it to the jury. If this was what occurred, it would be error.
See First Employees Insurance Co. v. Skinner,
In its fifteenth point of error, Town East claims that the trial court erred in refusing to admit Defendant’s Exhibits Nos. 5 and 6 into evidence. Exhibit No. 5 was the automobile purchase invoice dated February 11, 1983, containing both the front and the back sides of the document. The trial court had previously admitted Gray’s Plaintiff’s Exhibit No. 1, which was the front side only of the same document. Gray’s attorney objected to admission of Defendant’s Exhibit No. 5 because Town East had only submitted the front of the document to Gray in its response to Gray’s request for production. In response, Town East’s attorney stated that he had provided a copy of both the front and back of the purchase invoice to Gray at Gray’s deposition, but Gray’s attorney denied that it was attached to the deposition. The trial court sustained Gray’s objection and refused to allow the admission of Defendant’s Exhibit No. 5.
Paragraph number 10 on the back side of Defendant’s Exhibit No. 5 contains a limitation of express or implied warranties on Town East’s part. Town East also offered Defendant’s Exhibit No. 6, the “1983 Warranty Facts Booklet for Ford and Mercury Cars and Ford Light Trucks.” Gray’s attorney objected to its admission, and the triаl court sustained the objection. Town East claims the exclusion of these two documents was harmful error. It claims that, since Gray’s petition contained allegations that Town East had breached express warranties, the documents should have been admitted, because they were the only evidence of limitation of express and implied warranties by Town East.
We disagree with these contentions. With respect to Defendant’s Exhibit No. 5, the trial court had the right to exclude the evidence since Town East had failed to produce the back side of the invoice in discovery. Under Rule 215 of the Texas Rules of Civil Procedure, the trial court has the authority to sanction abuses of discovery. One available sanction is to exclude otherwise admissible evidence.
Olin Corporation v. Dyson,
Town East sought to admit Defendant’s Exhibit No. 5 becаuse it contained Town East’s standard language concerning the limitation of warranties. Under § 17.42 of the DTPA, it is mandated that a seller may not use such language to escape liability on a DTPA cause of action.
Martin v. Lou Poliquin Enterprises, Inc.,
IV. CUMULATIVE ERROR
In its sixteenth point of error, Town East claims that, even if none of its other fifteen points of error have validity, the cumulative effect of the trial court’s actions amounted to “cumulative error” requiring us to reverse and remand for a new trial. In support of this argumеnt, Town East cites us to
Smerke v. Office Equipment Co.,
Furthermore, in order for Town East to prevail on a cumulative error point, it would have to show that, based on the record as a whole, but for the alleged errors, the jury would probably have rendered a verdict favorable to Town East. Sendejar v. Alice Physicians аnd Surgeons Hospital, Inc., 555 S.W.2d 879, 888 (Tex.Civ.App.—Tyler 1977, writ ref’d n.r. e.). The errors we have reversed in Town East’s favor all concern the proof of damages, not liability. The jury unquestionably found that Town East was liable to Gray for common law fraud and for violations of the DTPA. We have reviewed the cases concerning cumulative error, but we fail to see how they are germane to the matter before us. In light of our disposition of Town East’s other points of error, we disagree with Town East’s contentions. Town East's sixteenth point of error is overruled.
V. PREJUDGMENT INTEREST
In its seventh point of error, Town East claims that the trial court erred in awarding prejudgment interest to Gray because Gray failed to properly plead for prejudgment interest, and alternatively, because there can be no prejudgment interest on mental anguish damages in a DTPA case as a matter of law. While Gray may have failed to properly plead for prejudgment interest, Town East has waived this point by failing to support it with arguments and authоrities as required by Rule 414 of the Texas Rules of Civil Procedure. In its brief, Town East’s seventh point of error is followed by a different argument concerning the trial court’s alleged error in
trebling
the prejudgment interest. The arguments and authorities in the text of the brief are unrelated to the point of error concerning Gray’s failure to plead for prejudgment interest. In Texas, unsupported points of error are waived and cannot be grounds for reversal.
Blardone’s Estate v. McConnico,
V. TREBLING OF DAMAGES
In its first point of error, Town East complains that the trial court erred in trebling the actual damages because Gray failed to submit a special issue and obtain a jury finding on DTPA discretionary damages. We agree. Thе trial court submitted the entire jury charge and special issues that were requested by Gray. In its response to Special Issue No. 10 the jury found actual damages in the amount of $18,538.50. The court added $2,707.95 in prejudgment interest for a total of $21,-246.45. The court then trebled this entire amount and awarded Gray judgment in the amount of $63,739.35. We hold that it was error for the court to do so.
Prior to the 1979 amendments to the DTPA, the DTPA required the trial court to treble the actual damages.
See Woods v. Littleton,
In the instant case, the jury did find that Town East’s acts were committed knowingly; however, Gray failed to request a spеcial issue on DTPA discretionary damages. By failing to request such an issue, he has waived these damages and it was error for the trial court to treble the actual damages in excess of $1,000. The Texas Supreme Court considered this very point in
Martin v. McKee Realtors, Inc.,
The wording of § 17.50(b)(1) compels the conclusion that, in a jury trial based upon the DTPA, a plaintiff who seeks to recover discretionary damages must request a jury issue on such damages. The plaintiff’s failure to do so results in a waiver of those damages.
Martin,
VI. ELECTION OF REMEDIES
Gray presents a cross-point wherein he contends that, in the event that we hold that the trial court erred in trebling the damages, it was also error for the trial court to apply the doctrine of election of remedies so as to award Gray damages under the DTPA rather than under common law fraud. It is proper for us to consider such a cross-point.
See Chessir v. First State Bank of Morton, Texas,
The Court further finds and determines that the verdict of the jury indicates that the Defendant was guilty of misrepresentation and actual malice and common law fraud to entitle the Plaintiff to recover his actual damages, attorney’s fees and the amounts awarded for exemplary damages from the Defendant; however, pursuant to the doctrine of election of remedies, the Court finds and determines that the Plaintiff has elected to proceed under the deceptive trade practices claim because such claim renders the higher amount of total damages and recovery in connection with this case.
Because the trial court erroneously trebled the DTPA damages, it also assumed that Gray had elected to proceed under the DTPA, because thosе damages constituted a greater recovery. Under the doctrine of election of remedies, if a plaintiff pleads more than one theory of recovery, he need not make an election between them until after the verdict.
Deal v. Madison,
Gray requested jury issues under both the DTPA and common law fraud. He did not make an election prior to the verdict; instead, the judge made the election for him when he believed that the DTPA produced the greater amount of damages. But since Gray did not request a special issue on discretionary damages under the DTPA, the trial court erred in trebling the damages. The erroneous trebling of the damages caused the trial judge to assume that the DTPA offered the greater recovery.
The question we face on this appeal is: which theory of recovery now provides the greater relief? If Gray is
*812
awarded his damages under the DTPA, he will receive his $4,906.05 in actual damages for loss of use of the car, plus $2,000 after doubling the first $1,000 of that award, as is mandated by the statute. TEX.BUS. & COMM.CODE ANN. § 17.50(b)(1) (Vernon Supp.1987). Gray is also entitled to recover court costs and attorney’s fees under the DTPA.
Id.,
§ 17.50(d). The parties stipulated that Gray would be entitled to attorney’s fees of $44,923.26 if Gray prevailed on any cause of action for which he would be entitled to recover attorney’s fees. We then must decide whether we may consider attorney’s fees and court costs in determining which cause of action affords Gray the greater relief. We conclude that we may. Attorney’s fees are mandatory when a consumer prevails under the DTPA.
Joseph v. PPG Industries, Inc.,
Therefore, Gray’s recovery under the DTPA would include $4,906.05 in actual damages, $2,000 after doubling the first $1,000 of actual damages, $44,963.26 in attorney's fees, and court costs, for a total recovery of $51,869.31 plus court costs.
Under his common law fraud claim, Gray would be entitled to $4,906.05 in actual damages and $15,000 in punitive damages. Gray would not be entitled to attorney’s fees under his common law fraud claim.
Bray v. Curtis,
As an appellate court, we may render the judgment that the trial court should have rendered where the record indicates that the judgment should be modified and justice requires it.
Dawson v. Garcia,
We have further concluded that, even after our modification of Gray’s damage award, his DTPA cause of action still affords the greater recovery. Therefore, we reform the judgment to award Gray his damages based on his DTPA cause of action. Pursuant to our discussion above, we reform the judgment to delete the treble damages erroneously awarded by the trial court. We delete the trial court’s award of $5,000 for mental anguish, and $8,632.45 for the difference in the market value of the car and the value as received by Gray. We award Gray $4,906.05 in actual damages for loss of use of the car, plus $2,000 by doubling the first $1,000 in damages as required by the statute. We also award Gray the $44,923.26 in attorney’s fees and his court costs. The prejudgment interest calculated by the trial court in the amount
*813
of $2,707.95 is deleted. We award prejudgment interest to the date of the trial court’s judgment, which amounts to $720.36 on the actual damages only. “[Pjrejudgment interest is not recoverable for exemplary damages.”
Monsanto Company v. Johnson,
In its motion for rehearing, Town East complains that the evidence is insufficient to support the jury’s award of $15,000 in punitive damages based on the common law fraud claim. Since we have concluded, pursuant to the doctrine of election of remedies, that Gray should receive the greater recovery afforded by his DTPA cause of action, we need not address this point.
VII. ATTORNEYS FEES
In its eighth point of error, Town East claims that the trial court erred in granting judgment for Gray for the stipulated attorney’s fees of $44,963.26, because there was no evidence, or in the alternative, insufficient evidence, of actual damages. We disagree. We have already held that Gray did produce sufficient evidence for actual damages for the loss of use of the car. The parties further stipulated that if Town East were unsuccessful on an appeal of this case, a reasonable attorney’s fee for Gray for defending the appeal would be $15,000. However, because Town East was successful in attacking two of the three elements of actual damages on appeal, that portion of the judgment awarding $15,000 to Gray is reduced by two-thirds. Therefore, the judgment is further reformed reducing Gray’s attorney’s fees from $15,000 to $5,000 for this appeal.
As a prevailing plaintiff under the DTPA, Gray is entitled to recover his court costs. TEX.BUS. & COMM.CODE ANN. § 17.50(d). Therefore, the costs of this appeal are assessed against Town East.
The judgment of the trial court is reversed in part and reformed, and as reformed, affirmed.