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Click here for the full text of this decision FACTS:Mike Jabri owns several Houston-area convenience stores, and his corporation, with the initials “JABRI,” operated them. Jabri leased one of the stores to Sam and Nisreen Khatib, who paid $100,000 for the store’s good will, and a separate amount, plus monthly rent of $4,000, for the store’s contents. The corporation leased another store to Kifah Wajih Alsayyed. He paid $120,000 for the good will, $44,0085 for inventory and paid $5,000 in monthly rent. Both stores were in high-crime areas. Though Jabri promised profits of $10,000 per month, neither the Khatibs nor Alsayyed realized those profits. The three sued Jabri and the corporation for fraud and violations of the Deceptive Trade Practices Act. The jury, finding Jabri had engaged in an unconscionable action or course of action that produced the plaintiffs’ injuries, awarded $50,000 to the Khatibs and $60,000 to Alsayyed in actual damages. They were awarded $12,500 and $5,000, respectively, in mental anguish damages. The Khatibs settled, and final judgment was entered for Alsayyed. On appeal, Jabri argues: 1. the evidence was insufficient to support the actual damages; 2. the jury compensated Alsayyed twice for the same injury; 3. the DTPA does not apply to Alsayyed’s purchase of good will; 4. Alsayyed should not have been permitted to intervene in the Khatibs’ lawsuit; 5. the evidence was insufficient to support a damage award against the corporation; 6. the evidence was insufficient to support mental anguish damages; and 7. the trial court erred in bifurcating the trial. HOLDING:Affirmed in part; reversed and remanded in part; reversed and rendered in part. The evidence was legally sufficient to support the jury’s verdict. Jabri represented that the convenience store was an on-going business with an established customer base and that Alsayyed would make a profit immediately after taking over the business. Alsayyed testified that when he took over the business, he discovered the store was in a high crime area and frequented by drug dealers, prostitutes and vagrants. He also testified that the store was routinely robbed and that customers frequently drove away without paying for gasoline. In order to operate the business, Alsayyed was required to install outdoor lighting, a new lock on the front door, a cash register and an ice machine. When Alsayyed decided he no longer wanted to operate the business, Jabri recommended that he find another tenant. Alsayyed testified that he placed an advertisement in the newspaper and received several inquiries about leasing the store, but no one would agree to the terms, especially when he told them that they wouldn’t get anything in return for the $120,000 paid out for the store’s good will. Alsayyed further testified that much of the grocery and over-the-counter drug inventory could not be sold because the expiration dates on the items had passed. On the other hand, Jabri’s expert, an accountant, testified that in accounting terms, good will is the benefit of an ongoing business. Jabri testified that he had operated the store and it was a going concern at the time he leased it to Alsayyed. Jabri contends that the jury’s answers to questions about the corporation’s liability to be contradictory. The jury found that the corporation engaged in false, misleading or deceptive acts, but found Alsayyed suffered zero damages from this conduct. Yet, the jury found that Jabri and the corporation had engaged in an unconscionable action or course of action, and awarded Alsayyed $60,000 for this conduct. The questions aren’t about the same material fact, the court concludes. Their predicate questions were worded differently, and the jury could have found some of the defendant’s conduct to be deceptive, and some conduct to be unconscionable. Furthermore, the evidence was sufficient to find that Jabri was acting on the corporation’s behalf, so an award of damages against the corporation was justified. The lease agreement is listed in Jabri’s name, but the invoice for property taxes was in the corporation’s name. Plus, Jabri said he was the sole shareholder and director of the corporation, and that the corporation owned no assets and does not maintain books and records. The court, however, finds the evidence insufficient to uphold the award of mental anguish damages. Though Alsayyed testified to the many terrible things that happened at the store — robberies, murder — as well as to the lack of an indoor restroom for employees, the court also notes how any fear Alsayyed claimed to have felt was not linked to any conduct by Jabri or the corporation. Alsayyed’s fear stemmed from the high crime in the area, not from the defendants’ misrepresentations. And his fear was no more than mere worry, anxiety, vexation, embarrassment or anger. The court rejects Alsayyed’s attempt to shoehorn the mental anguish findings into Jabri’s failure to disclose the condition of the property. Non-disclosure is neither fraudulent nor negligent without a duty to disclose, and there is no general duty to disclose between parties contemplating a contract. The court also agrees with Jabri and the corporation that the jury’s $60,000 award included double recovery. The damages Alsayyed sought were for the misrepresentations made to him by Jabri, individually, and on behalf of the corporation. Alsayyed’s injury was not divisible between the two defendants. Therefore, the trial court erred in not requiring Alsayyed to elect between the damages awarded as a result of Jabri’s unconscionable conduct and the damages awarded as a result of the corporation’s unconscionable conduct. In this case, however, the damage awards were identical. Therefore, the court remands to the trial court for Alsayyed’s election between the damages awarded as a result of Jabri’s unconscionable conduct and those awarded as a result of the corporation’s unconscionable conduct. The court rejects the notion that Alsayyed was not a consumer under the DTPA: he was a purchaser or lessee of goods or services. Finally, the court rules that the trial court abused its discretion in allowing Alsayyed to intervene in the Khatibs’ lawsuit. Neither had an interest in the outcome of the other’s suit. Nonetheless, as the evidence supported the claims made by Alsayyed, the error was harmless. OPINION:Eva M. Guzman, J.; Hedges, Frost and Guzman, JJ.

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