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Click here for the full text of this decision FACTS:Milton Mosk III appeals from a judgment ordering him to pay $17,500 in attorneys’ fees for bringing a frivolous suit under �17.50(c) of the Texas Deceptive Trade Practices Act. HOLDING:Affirmed. The Texas Supreme Court has held the term “groundless” has the same meaning in the DTPA and Texas Rule of Civil Procedure 13, i.e., “[n]o basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law.” Donwerth v. Preston II Chrysler-Dodge Inc., 775 S.W.2d 634 (Tex. 1989). Moreover, the same conduct may implicate both �17.50(c) and Rule 13, and some courts have categorized the award of attorney fees under �17.50(c) as a sanction. However, the court does not deem the award of attorneys’ fees under the DTPA as punitive sanctions. While a sanction may include the award of attorney fees, restitution is not punishment; it is simply the restoration of a loss caused by one’s own misfeasance or malfeasance. The trial court was authorized to award attorneys’ fees to Cheryl Thomas under the theory that Mosk’s suit was “groundless.” The standard for determining whether a suit is groundless considers “whether the totality of the tendered evidence demonstrates an arguable basis in fact and law for the consumer’s claim.” Selig v. BMW of N. Am. Inc., 832 S.W.2d 95 (Tex. App. – Houston [14th Dist.] 1992, no writ). Moreover, here the trial court was authorized to award attorneys’ fees if Mosk’s suit was groundless either in law or fact; whether a suit is groundless in law is a legal question. Thus, while Mosk raises issues regarding sufficiency of the evidence, the court reviews a trial court’s determination to award attorneys’ fees under �17.50(c) is a question of law under an abuse of discretion standard. Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for asserting error, but are relevant factors in assessing whether the trial court abused its discretion. Gray v. Gray, 971 S.W.2d 212 (Tex. App. – Beaumont 1998, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or when it acts without reference to any guiding rules or principles. Beaumont Bank N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991). The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate justice in a similar circumstance does not demonstrate that an abuse of discretion occurred. Downer v. Aquamarine Operators Inc., 701 S.W.2d 238 (Tex. 1985). An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859 (Tex. 1978). Furthermore, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Holley v. Holley, 864 S.W.2d 703 (Tex. App. – Houston [1st Dist.] 1993, writ denied). The evidence establishes that Mosk’s suit was groundless in law. Mosk was not entitled to bring a DTPA suit because he was not a “consumer” as that term is defined by the act. A “consumer” is defined under the act as “an individual . . . who seeks or acquires by purchase or lease, any goods or services.” �17.45(4). Whether a plaintiff is a consumer under the DTPA is a question of law to be determined by the trial court from the evidence. Ford v. City State Bank of Palacios, 44 S.W.3d 121 (Tex. App. – Corpus Christi 2001, no pet.). Here, Mosk’s own pleadings admit that he acquired the Pembroke property not by purchase or lease, but by virtue of a property settlement in a divorce proceeding. Therefore, Mosk was not a “consumer” and was not authorized to bring a DTPA suit. By finding this suit “frivolous,” the trial court did not abuse its discretion in granting attorney fees to Thomas. In his third issue, Mosk contends the trial court abused its discretion in ordering “sanctions.” The trial court did not abuse its discretion in awarding attorney fees to Thomas. However, here Mosk specifically complains that the trial court should have assessed Thomas’ attorneys’ fees not against him personally, but against his attorney who filed the frivolous suit. Mosk cites no direct authority in support of his position, and this court finds none. Section 17.50(c) sets out a mechanism for a defendant to recover his or her attorney fees. Moreover, it is well established that attorney fees can be assessed against a party in a DTPA action. Accordingly, the court finds the trial court did not abuse its discretion in ordering Mosk to pay Thomas’s attorney fees. Mosk’s third issue is overruled. OPINION:Hudson, J.

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