In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-24-00075-CV
MARGARET HOSSEINI-BROWDER, APPELLANT V. ARMANDO MENDEZ, JOSUE SANTIAGO, AND WE CARE WILDLIFE SANCTUARY, APPELLEES
On Appeal from the 198th District Court Bandera County, Texas Trial Court No. 33 No. CVOC-XX-XXXXXXX, Honorable Dennis Powell, Presiding
June 26, 2025 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.
Appellant, Margaret Hosseini-Browder sued Appellees Armando Mendez, We
Care Wildlife Sanctuary (WCWS), and Josue Santiago over ownership of two capuchin
monkeys—“Malcolm” and “Elvis,” and disputes involving income tax and business
services. From these core issues arose multiple claims and counterclaims. Hosseini-
Browder sued for breach of contract, violation of the Texas Theft Liability Act1 (TLA),
1 TEX. CIV. PRAC. & REM. CODE ANN. §§ 134.001–.005 (TLA).
1 intentional infliction of emotional distress, and defamation per se. Mendez filed a
counterclaim against Hosseini-Browder alleging, inter alia, defamation, violations of the
DTPA2 and fraud. WCWS also brought a counterclaim alleging similar claims.
The trial court granted summary judgment for Mendez and WCWS on all of
Hosseini-Browder’s claims except breach of contract. Hosseini-Browder obtained a
default judgment that was rendered against Santiago, and that case was severed.
After Hosseini-Browder withdrew her breach of contract claim, Mendez’s and
WCWS’s claims for defamation, fraud, and DTPA violations proceeded to trial before a
jury. The jury found against Mendez and WCWS on their fraud claim but returned a
unanimous verdict in their favor on their defamation and DTPA claims. The trial court
signed a judgment on November 3, 2023, awarding Mendez and WCWS in excess of
$1.4 million; it overruled Hosseini-Browder’s motion for new trial.
This appeal followed.3 For the reasons discussed below, we affirm the take-
nothing summary judgment on Hosseini-Browder’s claim for violations of the TLA claim.
We affirm the final judgment in favor of Mendez and WCWS for their defamation claims.
We reverse and render a take-nothing judgment on Mendez’s DTPA claims, and reverse
and remand for a new trial WCWS’s DTPA claims. We also remand for proper segregation
of recoverable attorney’s fees, if any.
2 Texas Deceptive Trade Practices—Consumer Protection Act (DTPA), TEX. BUS. & COM. CODE ANN.
§§ 17.41–.63. 3 This appeal was originally filed in the Fourth Court of Appeals and was transferred to this Court
by a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
2 BACKGROUND
This dispute arose from the relationship between exotic animal owners in Texas
and Florida. In March 2016, Mendez formed WCWS as a non-profit wildlife sanctuary in
Florida. In 2017, Malcolm the monkey was donated to WCWS.
In March 2018, Hosseini-Browder allegedly persuaded Mendez and his partner,
Santiago, to move WCWS from Florida to Texas. Mendez delivered Malcolm to Hosseini-
Browder for temporary care while WCWS completed its move to Texas. This was
performed pursuant to a “transfer of ownership” agreement prepared by Hosseini-
Browder and executed by her, Mendez, and Santiago. The parties dispute whether this
document transferred ownership or merely granted temporary possession. What is
undisputed is that approximately three months later, Hosseini-Browder returned Malcolm
to Mendez and WCWS.
Hosseini-Browder allegedly represented to Mendez and WCWS that she was a
CPA and tax expert who could assist with their federal tax returns and help establish
WCWS as a nonprofit entity in Texas. According to WCWS’s allegations, Hosseini-
Browder had been criminally convicted in April 2018 of preparing false and fraudulent
federal tax returns and was prohibited from providing tax advice during a five-year
probation period. WCWS alleges Hosseini-Browder failed to disclose this conviction
when she offered tax services.
The parties’ relationship deteriorated in 2020. In February 2020, Hosseini-Browder
placed her monkey, Elvis, with WCWS. When Hosseini-Browder demanded the return of
Elvis and Malcolm, disputes arose over ownership of both primates.
3 After this falling out, Hosseini-Browder allegedly published statements on social
media claiming that Mendez stole monkeys, was a drug addict, and did not properly care
for the animals at WCWS. She also allegedly contacted WCWS donors and supporters
directly with these allegations. These statements form the basis of the defamation claims
that proceeded to trial.
ANALYSIS
I. Hosseini-Browder’s Claims Under the Theft Liability Act
Hosseini-Browder argues the trial court erred by granting Appellees’ motions for
summary judgment4 on her claim under the TLA. In her live petition, she alleged Malcolm
and Elvis were unlawfully appropriated by Appellees.
Under the TLA, a person “who commits theft is liable for the damages resulting
from the theft.” TEX. CIV. PRAC. & REM. CODE ANN. § 134.003. In relevant part, the statute
defines theft as unlawfully appropriating property as described by §§ 31.03 through 31.07
and 31.11 through 31.14 of the Texas Penal Code. Id. at § 134.002(2). Of those sections,
only Penal Code § 31.03 is potentially relevant here. It provides that a person commits
theft if he unlawfully appropriates property with intent to deprive the owner of it. TEX.
PENAL CODE ANN. § 31.03(a). The intent to deprive must exist at the time of the taking or
exchange. First State Bank, N.A. v. Morse, 227 S.W.3d 820, 826 (Tex. App.—Amarillo
2007, no pet.). Voluntary transfers do not constitute theft under the Act unless there is
4 We review summary judgments de novo according to well-established standards that require no
reiteration here. See Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).
4 proof of intent to deceive at the time. Id. Hughes v. Montee, No. 05-15-00129-CV, 2016
Tex. App. LEXIS 7635, at *11 (Tex. App.—Dallas July 18, 2016, pet. denied) (mem. op.).
The summary judgment record contains Hosseini-Browder’s March 2020 affidavit
filed with her original petition. In relevant part, it states that in February 2020 she “entered
into a binding agreement with Armando Mendez whereby he and Josue Santiago
represented that they would care for Elvis while I was working with my tax preparation
business through tax season.”
On appeal, Hosseini-Browder argues her ownership of Elvis was never disputed;
she refers to the 2018 “transfer of ownership” agreement as proof that she also held title
to Malcolm. However, these arguments are not material to the summary judgment issues.
Under relevant Texas law, an “owner” is defined to include those with title and with those
holding possession. TEX. PENAL CODE ANN. § 1.07(35). There is no summary judgment
evidence that Appellees intended to deprive Hosseini-Browder of any title to monkeys at
the time she transferred possession to them.5 Because the summary judgment record is
conclusive that these transfers were voluntary at the time they occurred, Appellees did
not unlawfully appropriate property claimed by Hosseini-Browder as a matter of law.
Within her summary judgment argument, Hosseini-Browder also complains the
trial court abused its discretion by sustaining oral objections and excluding certain
documents from the summary judgment record. Because the substance of these
documents would not change our conclusion that Appellees did not violate the Act as a
5 Moreover, when there exists a bona fide dispute about the who owns property, the evidence is
legally insufficient to sustain a theft conviction. See Bokor v. State, 114 S.W.3d 558, 560 (Tex. App.—Fort Worth 2002, no pet.).
5 matter of law, it is unnecessary to reach the merits of this evidentiary complaint. TEX. R.
APP. P. 44.1(a). Hosseini-Browder’s first issue is overruled.
II. Appellees’ Defamation Claims
By her next issue, Hosseini-Browder asserts the jury’s findings that she defamed
Appellees were not supported by sufficient evidence. The defamation findings were that
Hosseini-Browder falsely published statements that Mendez stole a monkey, did not
properly care for animals at WCWS, and was a drug addict. The jury made similar related
findings concerning statements Hosseini-Browder published about WCWS.
A party challenging the legal sufficiency of an adverse finding on which it did not
have the burden of proof at trial must show no evidence supported the challenged finding.
Graham Cent. Station, Inc. v. Pena, 442 S.W.3d 261, 263 (Tex. 2014) (per curiam). We
view the evidence in the light most favorable to the verdict, “crediting favorable evidence
if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors
could not.” In re Est. of Matthews, 510 S.W.3d 106, 117 (Tex. App.—San Antonio 2016,
pet. denied) (cleaned up). “The final test for legal sufficiency must always be whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict
under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
When a party challenges the factual sufficiency of an adverse finding on which it
did not have the burden of proof, it must show there is insufficient evidence to support the
finding. Laredo Tex. Hosp. Co., L.P. v. Cabrera, No. 04-24-00028-CV, 2024 Tex. App.
LEXIS 8559, at *8–9 (Tex. App.—San Antonio Dec. 11, 2024, no pet.) (mem. op.); In re
Marriage of Thrash, 605 S.W.3d 224, 230 (Tex. App.—San Antonio 2020, pet. denied).
6 We examine all the evidence but may not reverse unless “the evidence which supports
the jury’s finding is so weak as to be clearly wrong and manifestly unjust.” Flying J Inc. v.
Meda, Inc., 373 S.W.3d 680, 690–91 (Tex. App.—San Antonio 2012, no pet.) (cleaned
up).
A defamation claim requires proof of four essential elements: (1) a false statement
of fact was published to a third party without legal excuse, (2) that was defamatory
concerning the plaintiff, (3) that was made with the requisite degree of fault, and
(4) damages. Durant v. Anderson, No. 02-14-00283-CV, 2020 Tex. App. LEXIS 2319, at
*52 (Tex. App.—Fort Worth Mar. 19, 2020, pet. denied) (mem. op.).
1. Statements that Mendez stole a monkey and WCWS possessed a stolen monkey
Hosseini-Browder argues her statement that Mendez “stole” a monkey was
substantially true, and that the jury’s findings lack factually sufficient evidence. The
charge defined “substantially true” as a statement that “in the mind of the average person,
is no more damaging to the person affected by it than a literally true statement would have
been.” See also Dall. Morn. News v. Tatum, 554 S.W.3d 614, 641 (Tex. 2018);
Consultants in Pain Med. v. Duncan, PLLC, 690 S.W.3d 739, 757 (Tex. App.—San
Antonio 2024, pet. denied). We disagree with Hosseini-Browder: words accusing
someone of committing a crime carries more potential for reputational damage than
saying they are in a custody dispute over an animal.
Hosseini-Browder’s claim that Mendez “stole” Elvis was disputed by Mendez and
other witnesses. Even Hosseini-Browder testified that she voluntarily left Elvis at WCWS.
When Hosseini-Browder requested Elvis’s return, Mendez did not refuse but attempted
7 to meet the request. The problem was compounded when Hosseini-Browder’s daughter,
Cricket, contacted law enforcement claiming ownership of Elvis and seeking his return.
Veterinarian Stephen Sells testified that Mendez called him to assist in capturing Elvis at
the WCWS compound. Elvis was eventually captured and returned to Hosseini-Browder.
The jury had the opportunity to resolve the conflicting evidence and determine the veracity
of Hosseini-Browder’s remarks.
As for Malcolm, the evidence is conflicting, permitting the jury’s resolution of
evidence and assessment of credibility. Malcolm was not originally claimed by Hosseini-
Browder in her original petition. The evidence shows Hosseini-Browder acknowledged
he belonged to Mendez. As an example, when WCWS senior board member Carol Bolte
visited Hosseini-Browder in 2018 and inquired about Malcolm, Hosseini-Browder
explained she “was just babysitting him for” Mendez while he moved to Texas. Appellant
never told her she owned Malcolm but was “watching” him.
2. Statements that “Mendez did not properly care for the animals” and WCWS was “not taking care of the animals.”
We agree with Hosseini-Browder that conclusions Mendez and WCWS did not
properly take care of the animals is a statement of opinion because it is not susceptible
of being proven true or false given the entire context. See Bentley v. Bunton, 94 S.W.3d
561, 581 (Tex. 2002) (adopting test from Milkovich v. Lorain J. Co., 497 U.S. 1, 21 (1990)).
Whether a statement is an opinion is a question of law. Scripps NP Operating, LLC v.
Carter, 573 S.W.3d 781, 794–95 (Tex. 2019). Specifically, statements of individual
judgment that “rest[] solely in the eye of the beholder” are non-actionable statements of
opinion. See Mogged v. Lindamood, No. 02-18-00126-CV, 2020 Tex. App. LEXIS 9445,
8 at *44 (Tex. App.—Fort Worth Dec. 3, 2020, pet. denied) (mem. op.); Falk & Mayfield,
L.L.P. v. Molzan, 974 S.W.2d 821, 824 (Tex. App.—Houston [14th Dist.] 1998, pet.
denied).
Animal care, like beauty, lies in the eye of the beholder. When we construe
Hosseini-Browder’s statements as a whole and in light of the surrounding circumstances
based on how a person of ordinary intelligence would receive them, we conclude that her
remarks about the level of care provided by Mendez and WCWS constitute non-
actionable opinion. See Yiamouyiannis v. Thompson, 764 S.W.2d 338, 341 (Tex. App.—
San Antonio 1988, writ denied). What constitutes “proper” care for exotic animals involves
subjective judgments about standards, methods, and priorities that reasonable people
can debate.
Moreover, the statements do not imply assertions of objective fact. In
Yiamouyiannis, the court explained that references to someone as “a quack, a hoke artist,
and a fearmonger” were “assertions of pure opinion” and “vintage hyperbole” not “capable
of proof one way or the other.” 764 S.W.2d at 341. The terms were “the speaker’s
shorthand way of opining” about credibility and qualifications rather than statements of
verifiable fact. Id. Similarly, Hosseini-Browder’s criticisms of animal care standards
represent her subjective assessment rather than assertions capable of objective
verification.
3. Statements that Mendez is a drug addict
Mendez’s uncontroverted testimony was that he did not use drugs or alcohol.
Hosseini-Browder did not testify to any personal knowledge of Mendez using drugs.
9 Other than a photograph of marijuana paraphernalia6 that was not shown to belong to
Mendez, there was no evidence showing the substantial truth of Hosseini-Browder’s claim
that Mendez is a drug addict. The jury found it was not substantially true based on the
uncontroverted testimony.
4. Whether the statements can be imputed to WCWS
Hosseini-Browder argues that no witness testified she made false statements
about WCWS. Several witnesses testified, however, of false disparaging statements
made by Hosseini-Browder concerning WCWS. For example, Carol Bolte testified
Appellant made negative statements in social media posts about WCWS to its donors,
contractors, and subcontractors, resulting in a loss of donors, donations, and volunteers.
She characterized the statements generally as “This is who you’re donating to,” followed
by disparaging remarks about Mendez and WCWS.
5. Award of damages for Mendez
Hosseini-Browder argues the evidence fails to meet legal standards required for
liability and damages in defamation cases. For example, she argues that the jury’s
awards do not comport with those categories of damages traditionally recognized in
defamation cases. But this case was decided by a jury using a specific charge that
contained only broad-form damage questions asking for money to “fairly and reasonably
compensate [plaintiff] for the damages, if any” resulting from defamation. The jury
6 Even Hosseini-Browder must hedge her conclusion on this point. She argues the photo “reasonably appears to be a sufficient number of ‘weed’ bongs and pipes to suggest possible drug addiction.” (emphasis added). But that equivocal assessment bears no resemblance to her unqualified public accusation that Mendez is a drug addict. It is the difference between “maybe” and “definitely.”
10 received no guidance on specific damage items, calculation methods, or legal standards
for assessing damages. Moreover, the charge directed jurors to the same damage
question regardless of whether they answered “yes” to one, two, or all three defamation
findings for each plaintiff. Because no party objected to this charge, we measure the
sufficiency of evidence against the charge as given—not against legal standards found
elsewhere. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); Pena v. Guerrero, No. 04-
19-00874-CV, 2020 Tex. App. LEXIS 9565, at *14 (Tex. App.—San Antonio Dec. 9, 2020,
no pet.) (mem. op.); see also TEX. R. CIV. P. 274.
“Defamation per se refers to false statements so obviously harmful that general
damages may be presumed. General damages ordinarily include non-economic losses,
such as mental anguish and loss of reputation.” Anderson v. Durant, 550 S.W.3d 605,
618 (Tex. 2018). When damages are for non-economic losses, the jury must be given
latitude because these general damages are incapable of precise mathematical measure.
Brady v. Klentzman, 515 S.W.3d 878, 886 (Tex. 2017).
Mendez testified that following Hosseini-Browder’s negative social media posts
and contacts with WCWS’s donors, contractors, volunteers, and supporters, he became
“like a recluse” and experienced anxiety, depression, and sleepless nights worrying over
how WCWS could “stay afloat.” Other witnesses testified regarding facts showing that
Mendez suffered mental anguish after the defamation. Bolte testified that when she first
met Mendez he “was very outgoing . . . very personable” but after the defamation “he’s
been very stressed.” Roxanne Salinas testified that it has been a “very stressful three
years” for Mendez and he was “stressed out and things that people say about him is just
upsetting because it is not true.”
11 Because of the breadth of the damage question, the jury was permitted to base its
monetary finding on whichever defamation findings it chose and in accordance with
virtually no guidance on what items of damages could be considered. Unlike specific
damage elements common to defamation cases—like mental anguish, loss of reputation,
or economic harm—this broad-form question gave the jury complete discretion to
determine the categories of damages, the criteria for assessing them, and their monetary
value. The charge’s only reference to causation was equally broad, asking for damages
“as a result of defamation” without any standard for how to assess cause and effect. This
ethereal causation standard and the expansive evidentiary framework prevents the Court
from parsing which defamation findings contributed to a particular award or whether the
jury followed conventional damage calculations at all. We conclude legally and factually
sufficient evidence supported the amount of the jury’s damage finding under this broad
standard. Moreover, an award of mental anguish damages in the amount of $95,998 was
not excessive given the jury’s wide latitude to assess harm from any or all defamatory
statements.
6. Award of damages for WCWS
An identical broad-form damage question was posed for WCWS, giving the jury
the discretion to determine categories of damages, assessment criteria, and monetary
value without specific guidance.7 The evidence showed comprehensive harm to WCWS’s
operations and reputation.
7 In addition, the damages question was predicated on a “Yes” answer for any defamation of WCWS
and/or Mendez.
12 Before Hosseini-Browder’s remarks, WCWS was described as a “great place,”
“peaceful,” “therapeutic,” and “very clean and safe.” Mendez testified it was “a place
where people could actually see animals and interact with animals—where people were
excited to come out and bring their friends and family from out of town.” After Hosseini-
Browder’s campaign, “it went to nothing.” Mendez testified that WCWS’s reputation
“tanked,” and people in the community became “skeptical” and “just mean.” One family
told WCWS they “could not be associated with We Care until this all got taken care of”
because of concerns at their children’s Christian school.
Evidence shows Hosseini-Browder contacted donors directly by telephone and
Facebook messenger, telling supporters not to leave their animals at WCWS. Board
member Maritza Martinez testified donations were stable from 2018 until 2020, when they
went down “significantly” and “real quick.” WCWS was told Hosseini-Browder was
“reaching out to people to stop the donations.” Due to lost donations, WCWS became
unable to fully pay veterinary and other necessary bills.
Bolte testified WCWS lost over fifty percent of their volunteers after Hosseini-
Browder’s statements. Five or six families specifically told WCWS they would not return
to volunteer because of the defamatory statements. For example, volunteer and
fundraiser Alicia Alaniz testified her family had planned significant involvement with
WCWS but decided “to not pursue that” after the negativity. As Alaniz explained, “What I
was trying to do was protect my family. So I removed my family from getting mixed up
any deeper into that type of environment.”
13 Given the broad damage question’s lack of constraints on both damage categories
and causation, coupled with evidence of comprehensive harm to reputation, economic
standing, and community support flowing from Hosseini-Browder’s defamatory campaign,
we conclude the $168,000 award was supported by legally and factually sufficient
evidence and was not excessive. As with Mendez’s award, the jury could base WCWS’s
damages on any defamatory statement it found proven, providing multiple pathways to
justify the monetary award.
7. Complaints of evidentiary rulings
Within this issue, Hosseini-Browder complains the trial court committed error
through two evidentiary rulings. We review a trial court’s ruling admitting or excluding
evidence for an abuse of discretion. Estate of Denman, 362 S.W.3d 134, 140 (Tex. App.—
San Antonio 2011, no pet.). An abuse of discretion occurs when a trial court acts without
reference to any guiding rules or principles; that is, arbitrary and unreasonable. Cire v.
Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). To obtain reversal for an erroneous
exclusion or admission of evidence, the appellant must establish the error was harmful—
that it was calculated to cause and probably did cause the rendition of an improper
judgment. See TEX. R. APP. P. 44.1(a)(1); Estate of Denman, 362 S.W.3d at 141. “Errors
in admission or exclusion of evidence are generally not reversible unless the appellant
can show the whole case turns on the complained of evidence.” Estate of Denman, 362
S.W.3d at 141 (cleaned up).
First, Hosseini-Browder complains about the trial court’s exclusion of one of her
Facebook posts. Under Rules of Evidence 401 and 403, the trial court excluded any
14 reference to a 2018 Florida charge alleging that Mendez and Santiago had falsely
reported the theft of WCWS’s animals to police. The court also excluded a link to a news
story entitled “woman reunited with pet monkey,” above which Hosseini-Browder posted
“I see I’m not the only one they’ve done this to.” And the court excluded several
paragraphs of discussion whereby Hosseini-Browder explains Mendez’s and Santiago’s
history in other states.
We fail to see how such evidence is relevant given the remaining causes of action
being litigated at trial. However, in light of the jury charge—which allowed the jury to find
she had defamed Mendez and WCWS in a variety of ways—we further fail to see how
the court’s evidentiary ruling, even if in error, probably resulted in an improper judgment.
See TEX. R. APP. P. 44.1(a)(1).
Second, Hosseini-Browder complains about improper rebuttal testimony. The trial
court allowed Cricket, Hosseini-Browder’s daughter, to testify in rebuttal; her testimony
suggested that Elvis belonged to her, not Hosseini-Browder. Cricket testified that when
Elvis came as a rescue to Hosseini-Browder, her mother told her “if I took on all the care,
that he would belong to me and he was my responsibility.” Hosseini-Browder argues this
testimony was material to Appellees’ case-in-chief and should not have been presented
only in rebuttal. She further contends Cricket’s testimony was factually insufficient to
establish ownership because any purported gift was conditional, Cricket never mutually
assented to the terms, and the timeframe of the alleged conversation was too vague for
the jury to rely upon.
15 However, the judgment awards damages based on multiple defamation findings:
that Hosseini-Browder published statements claiming Mendez was a monkey thief and
was a drug addict. Because of the charge structure, Appellees could have prevailed on
other findings without considering Cricket’s possible ownership. Appellant cannot show
the admission of this evidence affected “the whole case.” See Denman, 362 S.W.3d at
141. Accordingly, even if the trial court erroneously allowed Cricket’s rebuttal testimony,
Hosseini-Browder has not shown reversible error. See TEX. R. APP. P. 44.1(a)(1).
III. Claims Under the Deceptive Trade Practices Act
By her next issue, Hosseini-Browder argues the jury’s liability and damages
findings for violations of the Texas DTPA are not supported by legally and factually
sufficient evidence.
According to Appellees, Hosseini-Browder engaged in false, misleading, or
deceptive acts and unconscionable conduct violating the DTPA. They claim to have relied
upon false representations that she was a certified public accountant, a tax expert, and
capable of setting up WCWS to operate in Texas as a not-for-profit LLC. They further
point to her failure to disclose a federal conviction—with five-year prohibition including a
prohibition on giving tax advice—for preparing false and fraudulent tax returns as an
unconscionable action. See TEX. BUS. & COM. CODE ANN. § 17.45(5)(A) (taking advantage
of a consumer’s lack of knowledge, ability, experience, or capacity to a grossly unfair
degree). Hosseini-Browder does not dispute that her actions violated the DTPA. She
argues instead that her conduct did not cause the claimed injuries or warrant the jury’s
damage award.
16 The DTPA grants consumers a cause of action for false, misleading, or deceptive
acts or practices. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996); see
TEX. BUS. & COM. CODE ANN. § 17.50(a). To prevail on a DTPA claim, the plaintiff must
prove: (1) it was a consumer; (2) the defendant either engaged in false, misleading, or
deceptive acts8 or engaged in an unconscionable action or course of action; and (3) the
DTPA violation or unconscionable action was a producing cause of the plaintiff’s injury.
Amstadt, 919 S.W.2d at 649; Sadler v. Tex. Farm Bureau Mut. Ins. Cos., No. 04-12-00789-
CV, 2013 Tex. App. LEXIS 11300, at *5–6 (Tex. App.—San Antonio Sept. 4, 2013, no pet.)
(mem. op.). At trial, the jury instructions required proof of producing cause, but the
damages questions asked for damages proximately caused by Hosseini-Browder’s
conduct.9 Again, because no party objected to the jury charge’s use of proximate
causation for damages, that becomes the governing standard on appeal.
The jury awarded Mendez $2 (which the judgment doubled to $4), for Hosseini-
Browder’s knowing false, misleading, or deceptive representations or unconscionable
conduct. The record contains no evidence, however, that any violation of the DTPA was
the proximate cause of damage to Mendez individually. When asked at trial if he had an
issue with preparation of his personal tax returns, Mendez stated, “no, there was no
issue.” Further, he made no claim of suffering mental anguish as a result of a DTPA
8 Section 17.46(b) of the DTPA provides a “laundry list” of per se deceptive trade practices. See Hurst v. Sears, Roebuck & Co., 647 S.W.2d 249, 251 (Tex. 1983). 9 Under the DTPA, a plaintiff must produce evidence showing an “unbroken causal connection”
between the actionable misrepresentation and the injury. James V. Mazuca & Associates v. Schumann, 82 S.W.3d 90, 95 (Tex. App.—San Antonio 2002, pet. denied) (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995)). Proximate cause, by contrast, requires proof of both cause in fact and foreseeability. Tenaris Bay City Inc. v. Ellisor, No. 23-0808, 2025 Tex. LEXIS 423, at *6 (Tex. May 23, 2025). Cause in fact has two components: the defendant’s conduct must be both a “but for” cause (without which “the harm would not have occurred”) and “a substantial factor in bringing about an injury.” Id. (cleaned up).
17 violation by Hosseini-Browder. We sustain Hosseini-Browder’s third issue as it pertains
to Mendez’s individual DTPA claim and render judgment that Mendez take nothing by that
claim.
Regarding WCWS’s DTPA claim, Hosseini-Browder argues there is legally and
factually insufficient evidence of any connection between any DTPA violations and the
jury’s damages award of $336,000. She contends that the March 2020 “falling out”
between the parties was an intervening cause that cuts off any liability, and that WCWS’s
own failure to hire accountants or file returns for four years after the dispute began was
the real cause of its problems. Additionally, she argues that many of the claimed damages
are either speculative, not recoverable under the DTPA, or relate to a separate legal entity
(the LLC) for which WCWS has no standing to recover.
WCWS argues the evidence supporting the jury award for DTPA damages
included:
• Loss of donations, including the Bingo project donations
• Cost to hire tax professional to correct problems created by Hosseini- Browder
• Cost to recreate documents wrongfully withheld by Hosseini-Browder
We discuss this evidence below.
1. Lost donations
WCWS points to several examples of how Appellant’s alleged DTPA violations
caused injury. For instance, Appellees called Sasha Wengler, who operates an animal
sanctuary similar to WCWS, to testify about potential lost fundraising opportunities.
18 According to Wengler, certain bingo parlors select nonprofit organizations as beneficiaries
for their events, with participating nonprofits receiving donations ranging from $60,000 to
$120,000 every quarter. She recommended the opportunity to WCWS.
Wengler testified that WCWS initially could not participate “because there were a
lot of interruptions” and delays in getting an application approved, allegedly due to
Hosseini-Browder’s actions and withheld documents. She believed WCWS might now
participate in such a program but was uncertain.
Despite this testimony, there is no evidence that WCWS was ready, willing, or able
to participate in any bingo program at the time. This testimony presents no reasonable
degree of certainty regarding any lost monetary benefit. See Sw. Battery Corp. v. Owen,
131 Tex. 423, 115 S.W.2d 1097, 1098 (1938). The claimed lost bingo revenue was
remote, uncertain, and purely conjectural, and amounts to no evidence at all. See Arthur
Andersen & Co. v. Perry Equip., 945 S.W.2d 812, 816 (Tex. 1997).
In addition, the evidence reveals that Mary Smith was WCWS’s largest donor,
contributing between $1.5 to $2 million for real property, improvements, animal feed, and
a swimming pool. She testified she ceased donating because “I think it was towards the
end where the pool was built and, you know, got a notice about that bill and pretty much
realized I was being taken advantage of [by WCWS] at that point.” Importantly, Smith had
already ceased donating when she first met Hosseini-Browder in February 2021. During
her testimony, Smith specifically acknowledged Hosseini-Browder was not the reason she
stopped donating to WCWS.
19 Like the bingo revenue evidence, the evidence regarding Smith’s donations fails
to show how Hosseini-Browder’s DTPA violations was the cause of lost donations from
Smith. Likewise, we find no evidence that her actionable DTPA violations were the cause
of other lost donations to WCWS. Accordingly, we conclude there is no evidence that
WCWS lost donations as a result of Hosseini-Browder’s DTPA violations.
2. Cost of remedial accounting services and reconstruction of withheld documents
WCWS also claims DTPA damages from two related sources: the cost to recreate
financial documents that Hosseini-Browder allegedly withheld, and the cost of remedial
accounting services to correct the problems her actions created.
Several witnesses testified about problems caused by a banker’s box of financial
documents in Hosseini-Browder’s possession. Appellees argue that her refusal to return
these records made it impossible for WCWS to file its 2019 tax return and prevented filing
subsequent returns.
At trial, CPA John Buxie was asked to estimate the cost of recreating the withheld
documents. He declined to provide a firm estimate, explaining:
Without knowing whatever the documents are, how much was there, how much went in the banks, how much was spent, it’s really hard to say that. Normally, the minimum I charge is $300 a month for bookkeeping. So a minimum charge would have been $3,600 to do an annual 12 months of bookkeeping. I would say if we do it, it could take that much just trying to recreate the records, but it could be more. It’s 150 bucks an hour.
We conclude this cost evidence for recreating missing records amounts to no more than
surmise and speculation; as such, it was no evidence.
20 Buxie provided more concrete testimony about other costs, however. He testified
that restoring WCWS’s 501(c)(3) status would require preparation of tax returns for four
years, gathering information for those returns, and filing form 1023 with the Internal
Revenue Service. He estimated preparation of returns for each of the four tax years
would cost $2,000 per year, and the filing fee for form 1023 would be $800. The record
also shows WCWS paid a $100 fine to the Texas comptroller’s office.
We conclude the noted dollar amounts Buxie testified to, along with the fine paid
to the comptroller, constitute some evidence of an amount necessary to compensate
WCWS for damages allegedly caused by Hosseini-Browder’s DTPA violations. However,
this total stands in gross disproportion to the $336,000 awarded by the jury. The evidence
is factually insufficient to support the amount of damages awarded. We accordingly
reverse the judgment and remand for a new trial of WCWS’s DTPA claims against
Hosseini-Browder. See TEX. R. APP. P. 44.1(b).
IV. Attorney’s Fees
In her final issue, Hosseini-Browder argues the trial court erred by awarding
Mendez and WCWS improper and excessive attorney’s fees. The requests for attorney’s
fees were tried to the bench. The trial court made three awards: (1) $166,575.50 to
attorney Per Hardy for representing both Mendez and WCWS on their DTPA claims;
(2) $48,195.00 to attorney George Carroll for representing WCWS on DTPA claims,
defense of Hosseini-Browder’s Theft Liability Act claim, and “inextricably intertwined
claims”; and (3) conditional appellate fees.
21 1. DTPA-related attorney’s fees
The DTPA provides that “[e]ach consumer who prevails shall be awarded court
costs and reasonable and necessary attorneys’ fees.” TEX. BUS. & COM. CODE ANN.
§ 17.50(d). Because Mendez did not prevail on his individual DTPA claim and we are
remanding WCWS’s DTPA claims for a new trial, neither party currently qualifies as a
prevailing consumer under the DTPA. See Cordrey v. Armstrong, 553 S.W.2d 798, 799
(Tex. Civ. App.—Beaumont 1977, no writ) (holding prevailing-consumer status entitling
the plaintiff to recover attorney’s fees under the DTPA requires the plaintiff obtain some
relief by its suit such as an award of damages, restoration, or an injunction). We therefore
reverse and render judgment that Mendez and WCWS10 take nothing on their claims for
DTPA attorney’s fees.
2. Theft Liability Act-related attorney’s fees
In addition, attorney’s fees are potentially available under the Theft Liability Act.
TEX. CIV. PRAC. & REM. CODE ANN. § 134.005(b). The trial court awarded WCWS
$48,195.00 for attorney’s fees covering DTPA claims, successful defense of Hosseini-
Browder’s Theft Liability Act claim, and “inextricably intertwined claims.” However,
because this award commingles fees for DTPA claims (which we reverse), Theft Liability
Act defense (which WCWS won), and other claims, we vacate the $48,195.00 award. On
remand, the trial court shall determine the proper amount attributable solely to WCWS’s
successful defense of the Theft Liability Act claim.
10 Should WCWS prevail in its DTPA claims on remand, it may again seek attorney’s fees under
the statute.
22 CONCLUSION
For the reasons stated, we affirm in part, reverse and render in part, and reverse
and remand in part.
We affirm the trial court’s summary judgment dismissing Hosseini-Browder’s Theft
Liability Act claim.
We affirm the judgment and award of damages to Mendez and WCWS on their
respective defamation claims.
We reverse and render judgment that Mendez take nothing on his individual DTPA
claim and DTPA attorney’s fees.
We reverse and remand for: (1) a new trial on WCWS’s DTPA claims; and
(2) determination of the proper amount of attorney’s fees attributable solely to WCWS’s
Lawrence M. Doss Justice