Full opinion text
OPINION WANDA McKEE FOWLER, Justice. Appellant CA Partners sued appellees Marshall Spears and CitiFinancial, Inc., seeking reformation of a deed of trust and judicial foreclosure of real property owned by Spears and subject to a security interest held by CitiFinancial. Spears counterclaimed, asserting causes of action for, among other things, violation of the Deceptive Trade Practices Act, the Fair Debt Collection Practices Act, and the Texas Finance Code. CitiFinancial also counterclaimed, seeking a declaratory judgment that its lien was superior to any held by CA Partners on Spears’s real property. After a bench trial, the trial court granted relief to Spears and CitiFinancial on their counterclaims. CA Partners then brought this appeal. Factual and Procedural Background In December 1989, Spears contracted with Lyle Construction Company to remodel his home, located at 7314 Nightingale in Texas City. Spears financed the remodeling work through Goldome Credit Corporation, and executed a promissory note (“the Note”) and a deed of trust (“the Deed”), granting Lyle Construction Co. a lien on his real property. The Deed described Spears’s real property as follows: Lto [sic] 84, Block 4, SOUTH ACRE MANOR, SECTION 3, an Addition in Galveston County, Texasm [sic] according to the map or plat thereof recorded in Volume 1616, Page 106, recorded in the Office of the County Clerk of Galveston County, Texas. However, Spears’s home was actually located on Lot 85; Spears did not own Lot 84. The terms of the Note required Spears to make payments in 120 monthly installments, the first of which was due on February 1, 1990. The Deed further provided that “[s]aid Note is payable to [Lyle Construction Co.] in 120 equal successive monthly installments of $217.25 each, except the final installment, which shall be the balance then due on the Note.” Spears eventually defaulted on the Note, but the Note was never accelerated. In August 2005, the Note and the Deed were assigned to CA Partners, a sole proprietorship of which Randall B. Johnson is “managing partner” and sole owner. CA Partners sent two notices of default and demands for payment to Spears: one in September 2005, in the amount of $14,760.05, and the second in October 2005, in the amount of $15,013.04. The second notice was accompanied by a “NOTICE OF FORECLOSURE SALE WITH NOTICE OF DESIGNATION OF SUBSTITUTE FORECLOSURE TRUSTEE,” which provided, among other things, that Johnson was designated as substitute trustee to foreclose CA Partners’s lien on the property described in the Deed, and that a foreclosure sale would be held in the lobby of the Galveston County Courthouse on November 1, 2005. CA Partners was the sole, and therefore winning, bidder at the foreclosure sale. Johnson, acting in his capacity as substitute trustee, executed a “SUBSTITUTE TRUSTEE DEED” (“the Trustee Deed”), which purported to convey Spears’s interest in the real property located at 7314 Nightingale, together with “all right, title, and interest of [Spears], if any, in and to any personal property located thereon,” to CA Partners. CA Partners then sent a “Notice Terminating Right of Occupancy” to Spears, notifying him that he had thirty days from the date of receipt to vacate the premises located at 7314 Nightingale. When Spears failed to do so, CA Partners sued to evict Spears from the property. On appeal from the eviction, Spears notified the court that the Deed contained an incorrect property description, and the court dismissed the eviction action. CA Partners then filed this suit against Spears and CitiFi-nancial, seeking reformation of the Deed and judicial foreclosure of Spears’s real property. Spears counterclaimed, alleging tortious interference with contract, slander of title, and violations of the Deceptive Trade Practices Act, the Fair Debt Collection Practices Act, and the Texas Finance Code. Spears also sought a declaratory judgment that the Deed did not provide a lien on his personal property, and that the debt and lien were barred by the statute of limitations. Spears filed a motion for partial summary judgment, arguing that the statute of limitations had run on both collection of the Note and reformation of the Deed. Spears asserted that his last payment on the Note was due — and therefore limitations began to run — on January 1, 2000. Because CA Partners did not file suit until April 28, 2006, Spears argued that all of CA Partners’s causes of action were barred by the applicable four- and six-year statutes of limitations. CA Partners responded, arguing that the statute of limitations had not run on the debt, in part because Spears had continued to make payments on the Note until May 2004. CA Partners submitted an affidavit sworn to by Johnson to substantiate its assertion. Spears objected to Johnson’s affidavit, arguing (1) the entirety of the affidavit is hearsay within hearsay, not falling within any of the exceptions to the hearsay rule, (2) the affidavit contains no supporting records, and (3) it is conclusory. The trial court sustained Spears’s objections, struck Johnson’s affidavit, and then refused CA Partners’s request under Rule 166a(f) of the Texas Rules of Civil Procedure to supplement Johnson’s affidavit with supporting records. Ultimately, the trial court granted Spears’s motion for partial summary judgment. The parties then tried their remaining claims to the bench. On the second day of trial, CitiFinancial filed a motion for leave to file a counterclaim, which the trial court granted over CA Partners’s objection. Ci-tiFinancial then counterclaimed, seeking a declaratory judgment that its lien “holds a priority position over any lien on the property held by Plaintiff CA Partners.... ” That same day, Spears requested a trial amendment on his counterclaim naming the counterdefendant as “CA Partners and Randall Johnson doing business as CA Partners.” The trial court granted Spears’s request for a trial amendment, again over CA Partners’s objection. The trial court ultimately granted relief to Spears and CitiFinancial on their counterclaims. It entered judgment against Johnson, individually and doing business as CA Partners, for violating the DTPA, the Fair Debt Collection Practices Act, and the Texas Finance Code, and awarded Spears $2,500 in actual damages, $25,000 in mental anguish damages, and $55,000 in additional damages for a “knowing” violation of the DTPA. The trial court also awarded Spears $1,000 in additional damages under section 1692k(a)(2)(A) of the Fair Debt Collection Practices Act. In addition, the trial court granted Spears a declaratory judgment against Johnson, individually and doing business as CA Partners, that (1) the Deed did not create a lien on Spears’s personal property; and (2) Johnson has no lien on Spears’s real property. The trial court also granted CitiFinancial a declaratory judgment against Johnson, individually and doing business as CA Partners, that (1) Johnson has no lien on Spears’s real property; and (2) CitiFinancial’s lien is superior to any other lien on Spears’s property. The trial court further ordered that Johnson be permanently enjoined from (1) engaging in debt collection until he posts a surety bond with the Secretary of State in accordance with section 392.101 of the Texas Finance Code; and (2) using the name CA Partners as an assumed name in debt collection in the State of Texas. Finally, the trial court entered a judgment against Johnson, individually and doing business as CA Partners, for Spears’s and CitiFinancial’s attorney’s fees, awarding attorney’s fees in the amounts of $124,450 to Spears and $45,975 to CitiFi-nancial, and for pre- and post-judgment interest and costs. CA Partners timely filed its notice of appeal. It then requested the trial court to file findings of fact and conclusions of law, which the trial court ultimately did. Issues on Appeal In eight issues, CA Partners challenges various aspects of the trial court’s judgment. In its first and second issues, CA Partners contends that the trial court erred in granting Spears’s motion for partial summary judgment. In its third issue, CA Partners argues that the trial court erred in refusing to reform the Deed to state the correct lot number for Spears’s residence. In its fourth and sixth issues, CA Partners asserts that the trial court erred in granting Spears’s counterclaims for violations of the DTPA, the Fair Debt Collection Practices Act, and the Texas Finance Code. In its fifth issue, CA Partners argues that the trial court erred in awarding judgment against Johnson individually, and in issuing permanent injunctions against Johnson. In its seventh issue, CA Partners asserts that the trial court erred in awarding attorney’s fees to Spears because he failed to segregate time incurred between fee-recoverable and non-fee recoverable matters, and because the amount of appellate attorney’s fees awarded was “extravagant” and excessive. In its final issue, CA Partners contends that the trial court erred in allowing CitiFinan-cial to file a counterclaim in the middle of trial. We agree only with CA Partners’s seventh issue, that Spears was required to segregate attorney’s fees. Because the trial court’s award of attorney’s fees to Spears was based upon evidence of unsegregated fees, we reverse that portion of the trial court’s judgment awarding attorney’s fees to Spears, sever that portion of file judgment, and remand the cause to the trial court for a new trial on Spears’s recoverable attorney’s fees. We overrule the remainder of CA Partners’s issues and affirm the trial court’s judgment in all other respects. Analysis of CA Partners’s Issues I. The Trial Court Did Not Err in Granting Spears’s Motion for Partial Summary Judgment and in Refusing to Reform the Deed. In its first and second issues, CA Partners contends that the trial court erred in granting Spears’s motion for partial summary judgment because (1) the trial court improperly struck Johnson’s affidavit and refused to grant leave to amend the affidavit, and the affidavit created a fact issue on limitations; (2) the maturity date of the last installment on the Note did not trigger the running of the statute of limitations; and (3) the evidence proved that Spears’s last payment on the Note was made within the limitations period and the Note was accelerated within the limitations period. In its third issue, CA Partners contends that the trial court erred in refusing to reform the Deed, because a limitations bar — if it applies — only destroys the remedy, and not the underlying debt. We consider each of appellant’s arguments in turn. A. The Trial Court Did Not Err in Striking Johnson’s Affidavit and Refusing to Grant Leave to Amend the Affidavit. CA Partners first argues that the trial court erred in striking Johnson’s affidavit as being conclusory and containing hearsay, and in refusing to grant leave to amend the affidavit. CA Partners asserts that Spears’s objections to Johnson’s affidavit were unfounded because (1) the statement “the last payment on the Note at issue from Marshall Spears was for $111.50, received in May 2004” is a statement of fact, and therefore not conclusory; and (2) the affidavit is a business records affidavit, admissible under Rule 803(6) of the Texas Rules of Evidence, and thus is not objectionable on hearsay grounds. CA Partners finally asserts that, under Rule 166a(f) of the Texas Rules of Civil Procedure, the trial court should have granted leave to amend Johnson’s affidavit with the payment documents from 2003-2004, citing us to our holding in Martin v. Durden, 965 S.W.2d 562, 565 (Tex.App.-Houston [14th Dist.] 1997, pet. denied). Because we agree with Spears that Johnson’s affidavit is conclusory, we conclude that the trial court did not err in striking or in refusing to grant leave to amend the affidavit. Therefore, as we explain below, we overrule CA Partners’s first issue. 1. Standard of Review and Applicable Law We review a trial court’s decision to strike an affidavit submitted in response to a motion for summary judgment for an abuse of discretion. See Owens-Coming Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998) (stating that evidentiary rulings are committed to the trial court’s sound discretion). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. See Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). A trial court also abuses its discretion when it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co., L.P., 226 S.W.3d 400, 403 (Tex.2007). In a motion for summary judgment, supporting and opposing affidavits must be made on personal knowledge, must set forth such facts as would be admissible in evidence, and must show affirmatively that the affiant is competent to testify to the matters stated therein. Tex.R. Civ. P. 166a(f); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Conclusory statements in an affidavit unsupported by facts are insufficient to defeat summary judgment. 1001 McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex.1997)); see Ryland Group, Inc., 924 S.W.2d at 122 (stating that con-clusory affidavits are insufficient to raise fact issues that will preclude summary judgment). A conclusory statement is one that does not provide the underlying facts to support the conclusion. 1001 McKinney Ltd., 192 S.W.3d at 27; see Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex.1999) (stating that a witness’s affidavit is conclu-sory if it fails to explain the basis of the witness’s statements to link his conclusions to the facts). Furthermore, challenges to summary judgment affidavits as conclusory allege a defect in substance rather than form. See Tex.R. Civ. P. 166a(f); EOG Res., Inc. v. Killam Oil Co., 239 S.W.3d 293, 302 (Tex.App.-San Antonio 2007, pet. denied). If a defect in a summary judgment affidavit is one of substance, the trial court is not required to provide an opportunity to amend. See TexR. Civ. P. 166a(f); EOG Res., Inc., 239 S.W.3d at 302 (citing Clendennen v. Williams, 896 S.W.2d 257, 260 (Tex.App.-Texarkana 1995, no writ)). 2. Application of Law to the Facts Here, we cannot conclude that the trial court abused its discretion in sustaining Spears’s objection that Johnson’s affidavit is conclusory. We begin by reviewing Johnson’s affidavit, in its entirety: I am Randall Johnson. I am Managing Partner of CA Partners. I am over the age of eighteen (18) years and have never been convicted of a felony. I am fully authorized to make this affidavit. The facts stated herein are within my personal knowledge and are true and correct. I have reviewed [CA Partners’s] Response to [Spears’s] Motion for Summary Judgment. I hereby certify in my official capacity as Managing Partner of CA Partners, that the last payment on the Note at issue received from Marshall Spears was for $111.50, received in May 2004. In deducing this amount and date of payment, I have consulted records which were made and kept in the course of a regularly conducted business activity. It was the regular practice of the business activity to make such records. The records were made at or near the time of the event that it records. The records were made by, or from information transmitted by, a person with knowledge acting in the regular course of business. It is immediately apparent that Johnson did not state any facts upon which he based his conclusion that Spears’s last payment on the Note was for $111.50 and received in May 2004. Nowhere does Johnson provide readily controvertible facts personally known to him, much less link his conclusion to these facts. He does not identify the company where payments were made, how he knew that the records were kept in the regular course of business, or which company kept the records in the regular course of business. Most notably, he does not aver that the records were kept in the regular course of business by CA Partners or a predecessor owner. For these reasons, Johnson’s affidavit is conclusory, and the trial court did not abuse its discretion in striking the affidavit. See Earle, 998 S.W.2d at 890. Moreover, because Johnson’s affidavit is conclusory — which is a defect in substance — the trial court was not required to provide CA Partners an opportunity to amend the affidavit. See TexR. Civ. P. 166a(f); EOG Res., Inc., 239 S.W.3d at 302; Clendennen v. Williams, 896 S.W.2d at 260. We therefore overrule CA Partners’s first issue. B. The Trial Court Correctly Ruled that Limitations Barred CA Partners’s Claims. CA Partners next contends that the trial court erred in granting Spears’s motion for partial summary judgment because (1) the maturity date of the last installment on the Note did not trigger the running of the statute of limitations; and (2) the evidence proved that Spears’s last payment on the Note was made within the limitations period and the Note was accelerated within the limitations period. CA Partners asserts that Spears made payments on the Note until May 2004. CA Partners also claims that limitations did not begin to run on the maturity date of the last installment — January 1, 2000 — because its predecessor-in-interest never accelerated the maturity of the Note. CA Partners argues that, under the holding of the Texas Supreme Court in Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566-67 (Tex.2001), its cause of action did not accrue — and therefore limitations did not begin to run — until it actually accelerated the maturity of the Note and demanded payment in September 2005. Spears asserts that the statute of limitations had run on the debt because the date of maturity triggered the running of the statute of limitations, and CA Partners did not file suit until after the limitations period had expired. Spears further asserts that none of the payments allegedly made reaffirmed the debt, and that if CA Partners wanted to contend that any of his payments constituted a reaffirmation agreement, then it should have sued on the reaffirmation and not the original debt. 1. Standard of Review We review the trial court’s grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex.2004). To prevail on a traditional motion for summary judgment, the movant must show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Aguirre v. Vasquez, 225 S.W.3d 744, 750 (Tex.App.-Houston [14th Dist] 2007, no pet.). We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Joe, 145 S.W.3d at 157; Aguirre, 225 S.W.3d at 750. A defendant seeking summary judgment on the basis of limitations must conclusively establish that defense. Tex.R. Civ. P. 166a; Holy Cross Church of God in Christ, 44 S.W.3d at 566. In this situation, the defendant/movant must prove when the cause of action accrued. See Holy Cross Church of God in Christ, 44 S.W.3d at 566; KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary-judgment proof raising a fact issue in avoidance of the statute of limitations. KPMG Peat Marwick, 988 S.W.2d at 748. 2. Accrual and Limitations By statute, if a note payable in installments is secured by a lien on real property, limitations does not begin to run until the maturity date of the last installment. Tex. Civ. PRAC. & Rem.Code § 16.035(e); see Holy Cross Church of God in Christ, 44 S.W.3d at 566. Section 16.035 modifies the general rule that a claim accrues and limitations begins to run on each installment when it becomes due. Holy Cross Church of God in Christ, 44 S.W.3d at 566. If a note or a deed of trust secured by real property contains an optional acceleration clause, default does not start limitations running on the note. Id. Rather, the action accrues only when the holder actually exercises its option to accelerate. Id. However, the holder of a note may only “accelerate” the maturity date of the note if its last installment is not yet due. See BlaCK’s Law DICTIONARY 12 (8th ed. 2004) (defining acceleration as “[t]he advancing of a loan agreement’s maturity date”). Once the maturity date of the last installment has passed, the holder may not “accelerate” the note. Rather, the holder’s cause of action accrues — and therefore limitations begins to run — on the maturity date of the final installment. Tex. Civ. Prac. & RemCode § 16.035(e). Under Texas law, a suit for foreclosure of a real-property lien or a sale of real property under a power of sale in a deed of trust that creates a real-property lien must be made not later than four years after the day the cause of action accrues. Tex. Civ. PraC. & Rem.Code § 16.035(a), (b); Holy Cross Church of God in Christ, 44 S.W.3d at 567. When this four-year period expires, the real-property lien and the power of sale to enforce the lien become void. Tex. Civ. Prac. & Rem.Code § 16.035(d). However, this four-year limitations period can be suspended by filing a written agreement in the county clerk’s office where the real property is located. Id. § 16.036. 3. Application of Law to the Facts CA Partners’s argument — that its cause of action accrued when it actually “accelerated” the maturity of the Note and demanded payment in September 2005 — is premised on the belief that the Note did not mature on a date certain. That is without merit. The maturity date is the date upon which the final installment is due. See Tex. Civ. Prao. & Rem.Code § 16.035(e) (stating that, if a note payable in installments is secured by a real property lien, the four-year limitations period begins to run on the maturity date of the last installment). Here, the Note required Spears to make 120 successive monthly installments of $217.25, beginning on February 1, 1990. Thus, the Note matured on January 1, 2000, the date upon which Spears’s final installment was due. See id.; Holy Cross Church of Christ, 44 S.W.3d at 567; see also Smith v. Windstar Fin., Inc., No. 14-98-00589-CV, 1999 WL 740444, at *3 (Tex.App.-Houston [14th Dist.] Sept. 23,1999, no pet.) (not designated for publication) (concluding that promissory note payable in installments matured on due date of final installment). And, pursuant to section 16.035(e), the four-year limitations period began to run on that date. Tex. Civ. Prac. & Rem.Code § 16.035(e). Furthermore, any payments made by Spears after January 1, 2000 had no effect on the accrual of CA Partners’s cause of action. Essentially, CA Partners argues that the acceptance of payments by its predecessor-in-interest after the date the final installment was due had the effect of restoring the Note to its “original terms.” By “original terms,” CA Partners means that the Note merely required Spears to make monthly payments on the Note so long as the holder continued to accept them and until he made 120 total payments or paid the remaining balance. In other words, CA Partners would have this Court construe the Note as having no fixed maturity date, or one that is contingent upon the good will of the holder. This conception of the Note’s terms ignores the plain language of the Deed, which required Spears to make “120 equal successive monthly installments of $217.25 each, except the final installment, which shall be the balance then due on the Note.” The Note — by its express terms— matured on the due date of the final installment, which was January 1, 2000. Moreover, the cases cited by CA Partners in its brief involve notes whose maturity dates were accelerated, either by the holder of the note, or by the occurrence of an express condition specified in the note. See Holy Cross Church of God in Christ, 44 S.W.Bd at 567 (holder accelerated maturity date of note); San Antonio Real-Estate, Bldg. & Loan Ass’n v. Stewart, 94 Tex. 441, 61 S.W. 386, 388 (1901) (borrower’s default on three installments had effect of accelerating maturity date of note). In fact, CA Partners’s argument makes sense only in the context of acceleration. Acceptance of late payments can restore a note to its “original terms,” i.e., restore the note’s maturity date, which, by statute, is the due date of the final installment. See Tex. Crv. PRAC. & Rem.Code § 16.035(e). However, here the parties concede that neither CA Partners nor its predeeessors-in-interest accelerated the maturity date of the Note. The final installment on the Note was already overdue — and therefore the Note had matured — by the time CA Partners acquired its interest in the Note. Thus, the four-year limitations period began to run before CA Partners even acquired any interest in the Note. Acceptance of late payments by CA Partners’s predecessor-in-interest could not “restore” a maturity date that had already passed. Finally, any payments accepted by CA Partners’s predecessors-in-interest after January 1, 2000 did not toll the running of limitations. Partial payment on a promissory note neither interrupts the running of limitations, nor constitutes an acknowledgment of the debt. Gabriel v. Alhabbal, 618 S.W.2d 894, 897 (Tex.App.-Houston [1st Dist.] 1981, writ refd n.r.e.). And, even if CA Partners were to claim that any of Spears’s payments constituted an acknowledgment of the debt — which it does not — CA Partners would have had to bring suit on the acknowledgment and not on the original debt in order to avoid the limitations bar. See Eldridge v. Collard, 834 S.W.2d 87, 89 (Tex.App.-Fort Worth 1992, no writ); Siegel v. McGavock Drilling Co., 530 S.W.2d 894, 896 (Tex.Civ. App.-Amarillo 1975, writ refd n.r.e.); see also Sheffield Capital Cojp. v. Konen, No. [ AXX-XX-XXXXX ]-CV, 1995 WL 128250, at *2 (Tex.App.-Houston [14th Dist.] Mar. 23, 1995, no writ) (not designated for publication). Therefore, the statute of limitations expired on CA Partners’s claim for foreclosure on January 1, 2004, but CA Partners did not file suit until April 2006. The trial court did not err in granting Spears’s motion for partial summary judgment on the basis of limitations. We overrule CA Partners’s second issue. C. The Trial Court Did Not Err in Refusing to Reform the Deed. Finally, CA Partners contends that the trial court erred in refusing to reform the Deed. CA Partners asserts that Findings of Fact 38 and 39 — by which the trial judge found that the Deed did not create a lien on Spears’s real property, and that Johnson, individually and doing business as CA Partners, has no lien on Spears’s real property — are both incorrect. CA Partners argues that this is a case of mutual mistake, and that reformation of the Deed to state the correct lot number for Spears’s property is warranted. See Long Bell Lumber Co. v. Lowry, 31 S.W.2d 345, 348 (Tex.Civ.App.-Amarillo 1930, no writ) (“Not only are the grantor and grantee entitled to a reformation of the instrument in case of mutual mistake, but those acquiring the rights of the original parties are entitled to such relief”). CA Partners further asserts that, even if limitations has run on its foreclosure claim, the limitations bar only affects the remedy, and does not destroy the debt. See Cent. Nat’l Bank v. Latham & Co., 22 S.W.2d 765, 768 (Tex. CivApp.-Waco 1929, writ ref d) (explaining that a limitations bar affects the remedy only, and does not destroy the debt). According to CA Partners, a moral obligation to pay the debt would survive, allowing it to seek judicial reformation of the Deed, notwithstanding the running of limitations. Spears contends that its lien and the power of sale to enforce the lien are now void, because the limitations period expired before CA Partners filed suit. He asserts that the law does not require a futile act, and argues that reformation of the Deed would be futile because CA Partners’s lien is void. We agree with Spears. Even if we assume that the trial court erred in finding that the Deed created no lien on Spears’s real property — a question we are not required to decide — we would still conclude that the trial court properly refused to reform the Deed. CA Partners’s lien is void and it has no power of sale to enforce the lien. See Tex. Civ. Prac. & Rem.Code § 16.035(d). It would be an exercise in futility to reform a document creating a lien on real property when the lien is void and no power of sale to enforce it remains. The law does not require a futile act. See City of Gladewater v. Pike, 727 S.W.2d 514, 518 (Tex.1987) (stating the equitable maxim that “a court should not require the doing of a useless thing”). The cases cited by CA Partners do not support its position. See Woodside Assurance, Inc. v. N.K. Res., Inc., 175 S.W.3d 421, 426 (Tex.App.-Houston [1st Dist.] 2005, no pet.); Latham, 22 S.W.2d at 768. Section 16.035(b), Woodside Assurance, Inc., and Latham make it clear that, while repayment of Spears’s debt may remain a moral obligation, under the facts of this case there is no legal remedy for its enforcement. See Tex. Civ. PRAC. & Rem.Code § 16.035(b); Woodside Assurance, Inc., 175 S.W.3d at 426 (citing Machac v. Hajek, 437 S.W.2d 325, 328 (Tex.Civ.App.-Corpus Christi 1968, writ refd n.r.e.)); Latham, 22 S.W.2d at 767-68 (explaining the meaning of the terms “pledged property” in the context of the limitations bar). We therefore overrule CA Partners’s third issue. II. The Trial Court Did Not Err in Awarding Mental Anguish Damages to Spears, and in Issuing Permanent Injunctions Against Johnson. In its fourth and sixth issues, CA Partners contends that the trial court erred in granting Spears’s counterclaims for violations of the DTPA, the Fair Debt Collection Practices Act, and the Texas Finance Code because (1) the evidence showed that any violation was unintentional and the result of bona fide error; (2) there was no evidence or insufficient evidence of a “knowing” violation to support the award of additional damages under the DTPA; and (3) there was insufficient evidence to support the award of mental anguish damages under the DTPA. In its fifth issue, CA Partners argues that the trial court erred in awarding judgment against Johnson individually, and in issuing permanent injunctions against Johnson. We first examine CA Partners’s arguments regarding Johnson’s individual liability, and then turn to its remaining arguments. A. The Trial Court Did Not Err in Awarding Judgment Against Johnson Individually. CA Partners first argues that the trial court erred in awarding judgment against Johnson individually because (1) there was no pleading by Spears asking for a judgment individually; and (2) there was no basis for the trial court granting Spears’s requested trial amendment to add Johnson as a party over its objection. CA Partners concedes that it is a sole proprietorship, but nonetheless argues that “[t]here was simply no basis for adding Johnson as a party to this action.” We disagree. 1. Spears Complied With Texas Rule of Civil Procedure 28 by Requesting a Trial Amendment. Rule 28 of the Texas Rules of Civil Procedure governs suits against individuals doing business under an assumed name. Rule 28 expressly provides that (1) an individual doing business under an assumed name may be sued in his assumed name for the purpose of enforcing against him a substantive right; and (2) on the motion of any party or on the court’s own motion, the true name may be substituted. See Tex.R. Civ. P. 28. However, while Rule 28 requires that the correct legal name be substituted, it does not mandate the procedural method by which substitution may be accomplished. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 53 (Tex.2003). The Texas Supreme Court has held that, for the purposes of Rule 28, the correct legal name may be substituted by filing either a motion requesting substitution, or a pleading that substitutes the correct legal name for the assumed name. See id. The party seeking to substitute the party’s correct name must do so “at some point before judgment.” See Chil-kewitz v. Hyson, 22 S.W.3d 825, 829 (Tex. 1999); Sixth RMA Partners, 111 S.W.3d at 53. Whether Johnson used the name CA Partners as an assumed name when collecting debts was a question of fact for the trial court. See id. In Finding of Fact 14, the court found that “C.A. Partners ... is an assumed name of Randall B. Johnson.” In an appeal following a bench trial, the trial court’s findings of fact have the same weight as a jury verdict; we thus review the legal and factual sufficiency of the evidence as we would following a verdict. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). If there is more than a mere scintilla of evidence supporting a finding of fact, we will overrule a legal sufficiency challenge. Formosa Plasties Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex.1998). In reviewing a factual sufficiency challenge, we consider all of the evidence and set aside a finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996). At trial, Johnson testified that CA Partners is a sole proprietorship, that he is its sole owner, and that he is in the business of buying, selling, and collecting bad debt. This evidence is legally and factually sufficient to support the trial court’s finding that Johnson used the name CA Partners as an assumed name when collecting debts. See Formosa Plastics Corp., 960 S.W.2d at 48; Ortiz, 917 S.W.2d at 772. Thus, Spears could properly substitute the correct legal name by filing either a motion requesting substitution, or a pleading substituting Johnson’s name for the assumed name “CA Partners.” See TexR. Civ. P. 28; Sixth RMA Partners, 111 S.W.3d at 53. Spears did so by requesting a trial amendment to add Johnson in his individual capacity. We next examine whether the trial court properly granted Spears’s requested trial amendment. 2. The Trial Court Properly Granted Spears’s Requested Trial Amendment. Rule 66 of the Texas Rules of Civil Procedure governs trial amendments. Rule 66 provides that, if during trial any defect, fault, or omission in a pleading is called to the attention of the court, the court may allow the pleadings to be amended, and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him in maintaining his action or defense upon the merits. Tex.R. Civ. P. 66. A court may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice; or (2) the amendment asserts a new cause of action or defense, and thus is prejudicial on its face. State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.1994). The burden of showing surprise or prejudice rests on the party resisting the amendment. Id. If the trial amendment is not mandatory, then the decision to permit the amendment rests within the trial court’s sound discretion. TexR. Crv. P. 66; Kilpatrick, 874 S.W.2d at 658. In such a case, the court’s decision to allow the trial amendment may be reversed only if it is a clear abuse of discretion. Kilpatrick, 874 S.W.2d at 658. Under Texas law, a sole proprietorship has no separate legal existence apart from the sole proprietor. CU Lloyd’s of Tex., 126 S.W.3d at 684 (citing Ideal Lease Serv., Inc., 662 S.W.2d at 952). The law treats the sole proprietor and the sole proprietorship as one and the same person. See id. In this case, the trial amendment requested by Spears was mandatory. As noted above, a trial amendment is mandatory if the opposing party fails to present evidence of surprise or prejudice, and the amendment does not assert a new cause of action or defense. See Kilpatrick, 874 S.W.2d at 658. Although CA Partners objected when Spears requested the trial amendment, CA Partners failed to present any evidence of surprise or prejudice. Furthermore, the proposed trial amendment did not assert a new cause of action. Rather, through his requested trial amendment, Spears merely sought to substitute Johnson’s true name for his assumed name, as Spears was required to do under Rule 28. Thus, the trial court did not err in granting Spears’s requested trial amendment and awarding judgment against Johnson individually. We overrule CA Partners’s fifth issue. B. The Trial Court Did Not Err in Finding that CA Partners’s Violations of the Fair Debt Collection Practices Act and the Texas Finance Code Were Not the Result of Bona Fide Error. CA Partners next argues that the trial court erred in granting Spears’s counterclaims for violations of the Fair Debt Collection Practices Act and the Texas Finance Code because the evidence showed that any violation was unintentional and the result of bona fide error. CA Partners argues that the evidence showed that CA Partners never seized any of Spears’s personal property, and that the Trustee’s Deed — which indicated that seizure of Spears’s personal property might occur— was the result of bona fide error. CA Partners contends that it is therefore entitled to the bona fide error defense to alleged violations of the Fair Debt Collection Practices Act and the Texas Finance Code. We disagree. 1. Applicable Law Section 1692k of the Fair Debt Collection Practices Act and section 392.401 of the Texas Finance Code provide a “bona fide error” defense for debt collectors accused of statutory violations. See 15 U.S.C. § 1692k(c); Tex. Fin.Code § 392.401. Section 1692k provides, A debt collector may not be held liable in any action brought under this sub-chapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. 15 U.S.C. § 1692k(c). Similarly, section 392.401 states that “[a] person does not violate this chapter if the action complained of resulted from a bona fide error that occurred notwithstanding the use of reasonable procedures adopted to avoid the error.” Tex Fin.Code § 392.401. A “bona fide error” is an error which is made in the course of a good-faith attempt at compliance with statutory requirements. Callaway v. East Tex. Gov’t Credit Union, 619 S.W.2d 411, 415 (Tex.Civ.App.-Tyler 1981, writ ref d n.r.e.). However, in order to utilize this defense, the debt collector must show that reasonable procedures were used to prevent the error which caused the violation in question. See Cent. Adjustment Bureau, Inc. v. Gonzales, 528 S.W.2d 314, 316 (Tex.Civ.App.-San Antonio 1975, no writ) (interpreting former version of state act); Johnson v. Riddle, 443 F.3d 723, 729 (10th Cir.2006) (interpreting federal act). In the absence of such a showing, a debt collector may not successfully assert the bona fide error defense under either the state or the federal act. See Cent. Adjustment Bureau, Inc., 528 S.W.2d at 316; Johnson, 443 F.3d at 729. 2. Application of Law to the Facts The trial court found that, by representing in the Trustee’s Deed that nonpayment of the debt would result, and did result, in the sale of Spears’s personal property, Johnson violated section 1692e(4) of the Fair Debt Collection Practices Act and section 392.304(a)(8) of the Texas Finance Code. CA Partners contends that the representation made in the Trustee’s Deed regarding the sale of Spears’s personal property was the result of bona fide error, thereby attempting to invoke the bona fide error defense. However, the record contains no evidence that CA Partners instituted reasonable procedures to prevent the error which caused the violations of the Fair Debt Collection Practices Act and the Texas Finance Code. Without any proof that it instituted preventative procedures, CA Partners is not entitled to the protection of the bona fide error defense under either the state or federal acts. The trial court did not err in finding that Johnson’s violations were not the result of bona fide error. See Cent. Adjustment Bureau, Inc., 528 S.W.2d at 316; Johnson, 443 F.3d at 729. We overrule CA Partners’s fourth issue. C. There Is Legally and Factually Sufficient Evidence of a “Knowing” Violation to Support the Award of Additional Damages Under the DTPA. CA Partners also challenges the legal and factual sufficiency of the evidence supporting the trial court’s finding that Johnson knowingly engaged in conduct that violated the DTPA. CA Partners asserts that Spears was never actually evicted from his home, and that none of his personal property was ever removed from his home. CA Partners further asserts that it halted the eviction proceedings to correct the typographical error in the Deed as soon as it was discovered, and that the second notice of default — in which CA Partners represented that Spears contracted with and owed a debt to Western Building and Supply Co. — was a mistake. CA Partners argues that even if it violated the DTPA, it did not do so “knowingly,” and the award of additional damages was therefore improper. Again, we disagree. 1. Standard of Review and Applicable Law We have already set forth the standard that applies to appellate review of the trial court’s findings of fact. See Catalina, 881 S.W.2d at 297. We will sustain a legal sufficiency challenge if there is no more than a mere scintilla of evidence supporting a finding of fact. See Formosa Plastics Corp., 960 S.W.2d at 48. We will sustain a factual sufficiency challenge only if a finding of fact is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772. The DTPA provides for the award of additional damages for statutory violations that are committed “knowingly.” See Tex. Bus. & Com.Code § 17.50(b)(1). The DTPA defines “knowingly” as “actual awareness, at the time of the act or practice complained of, of the falsity, deception, or unfairness of the act or practice giving rise to the consumer’s claim ... but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.” Id. § 17.45(9). Actual awareness does not mean merely that a person knows what he is doing. Daugherty v. Jacobs, 187 S.W.3d 607, 618 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (citing St. Paul Surplus Lines Ins. Co. v. Dab-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex.1998)). Rather, it means that a person knows what he is doing is false, deceptive, or unfair. Id. (citing St. Paul Surplus Lines Ins. Co., 974 S.W.2d at 54). Actual awareness is more than conscious indifference to another’s rights or welfare. Id. (citing St. Paul Surplus Lines Ins. Co., 974 S.W.2d at 54). The burden is on the plaintiff to prove that the defendant acted knowingly. See Bossier Chrysler-Dodge II, Inc. v. Riley, 221 S.W.3d 749, 758 (Tex.App.-Waco 2007, pet. denied). 2. Application of Law to the Facts The trial court’s Findings of Fact related to Johnson’s alleged DTPA violations are as follows: 18. The Substitute Trustee Deed executed by Randall B. Johnson purported to sell not only Marshall Spears’s real property, but also all personal property located on the premises located at 7314 Nightingale Texas City, Texas 77591. This would, per force, include items of personal property that are exempt under §§ 42.001 and 42.002, Tex. PROP.CODE. 19. There was no lien on “all personal property” or even on any personal property located at 7314 Nightingale Texas City, Texas 77591. No such lien is mentioned in the original deed of trust that Randall B. Johnson claims to be the assignee of. 20. Any such lien would have been void under §§ 42.001 and 42.002, Tex. Prop.Code. Randall B. Johnson is charged, as a matter of law, with knowledge of the exemptions granted by such statutes. 21. By purporting to convey the personal property located on the premises at 7314 Nightingale Texas City, Texas 77591, Randall B. Johnson claimed that the agreement conferred or involved rights, remedies or obligations that it did not have or involve or that are prohibited by law. This was a violation of § 17.46(b)(12), Tex. Bus. & Com. Code. 22. By the Trustee’s Deed, Randall B. Johnson represented that the nonpayment of the debt would result, and did result in the sale of property that could not be lawfully sold. This was a violation of 15 U.S.C. § 1692e(4) and § 392.304(a)(8), Tex. Fin.Code. 31. Acting through his attorneys, Randall B. Johnson demanded that Marshall Spears pay $14,760.05. That letter misrepresented the character, legal status, and amount of the debt. 32. Also acting through his attorneys, Randall B. Johnson also demanded Marshall Spears pay $15,013.04 on a debt on which Marshall Spears had no liability. That letter misrepresented the character, legal status, and amount of the debt. 33. The actions of Randall B. Johnson were not the result of any bona fide error. 34. The actions of Randall B. Johnson were committed knowingly. 36. Randall Johnson’s violations of the Texas Finance Code are also violations of the Texas Deceptive Trade Practices Act. 37. As Randall Johnson’s conduct was committed knowingly, Marshall Spears should recover judgment against Randall B. Johnson, individually and doing business as CA Partners, for the sum of $55,000.00 as additional damages under the Texas Deceptive Trade Practices Act. This sum represents twice the mental anguish damages of $25,000 plus twice the attorney’s fees of $2,500 paid in connection with the appeal of the forcible entry and detainer judgment. CA Partners specifically challenges findings 18-22 and 32-36, arguing that any representations in the Trustee’s Deed relating to Spears’s personal property were not made knowingly, and the notice of default that stated that Spears owed a debt for which he had no liability was a mistake. However, the following evidence supported the above findings: • Johnson is “in the business of buying, selling and collecting bad debt,” and has been in the business for thirteen years. • The business of CA Partners is “[n]ot a hundred percent, but largely” collecting debts that are assigned to it, and that other than buying, selling, and collecting debts, CA Partners is not engaged in any other business. • Johnson was the substitute trustee, he executed the Trustee’s Deed, which purported to convey the personal property, and conducted the foreclosure sale of Spears’s real property. • In the Trustee’s Deed, Johnson represented that the Deed created a lien on any and all of Spears’s personal property located at 7314 Nightingale, Texas City, TX, 77591, and that Spears’ interest in this personal property was now conveyed to CA Partners through the foreclosure sale. • Contrary to Johnson’s representation in the Trustee’s Deed, the Deed did not create a lien on any of Spears’s personal property. • Johnson sent a second notice of default to Spears representing that Spears owed $15,013.04 to CA Partners as a result of nonpayment of a debt that originated from the “Contract for Labor and Materials and Trust Deed” Spears executed with Western Building and Supply Co. • Spears never executed a “Contract for Labor and Materials and Trust Deed” with Western Building and Supply Co., and Johnson knew this, yet a letter was sent to Spears demanding payment for this debt. Thus, the record contains some evidence that Johnson knowingly engaged in conduct that violated the DTPA. Johnson’s own testimony establishes that he was engaged in the business of debt collection for thirteen years, and that, with respect to Spears’s debt, he (1) represented in the Trustee’s Deed that the Deed created a lien on Spears’s personal property (which it did not); and (2) represented that Spears owed a debt that originated from a contract executed with Western Building and Supply Co. (which he did not). A reasonable fact finder could infer from this testimony that Johnson made these representations with “actual awareness” that these representations were false. See Tex. Bus. & Com.Code § 17.45(9) (“actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness”); see also Bossier Chrysler-Dodge II, 221 S.W.3d at 758 (finding evidence legally sufficient to support jury’s finding that defendant knowingly engaged in conduct that violated DTPA; evidence indicated that defendant “engaged in countless transactions of a similar nature on a daily basis,” and supported inference that defendant made misrepresentations to plaintiff and failed to disclose the falsity of the representations with “actual awareness” of their falsity). Therefore, the evidence is legally sufficient to support the trial court’s finding that Johnson knowingly engaged in conduct that violated the DTPA. With respect to factual sufficiency, the following evidence contradicts that trial court’s findings: • Johnson testified that he did not realize that the Trustee’s Deed contained representations regarding Spears’s personal property when he filed the document, “and if we did it was a mistake.” • Johnson testified that the second notice of default had two different amounts in it, that the amount of $14,633.91 stated in the body of the notice “is not accurate” and “incorrect,” that the information at the top of the notice is “accurate,” and that the notice “mistakenly” recites that the contract was with Western Building and Supply Co. instead of Lyle Construction Co. While this evidence does contradict the trial court’s findings, we must defer to the fact finder’s resolution of this disputed issue. See Pulley v. Milberger, 198 S.W.3d 418, 426-27 (Tex.App.-Dallas 2006, pet. denied) (stating that, in a factual sufficiency review, an appellate court will not pass on the credibility of the witnesses or substitute its judgment for the trier of fact); see also Precision Homes, Inc. v. Cooper, 671 S.W.2d 924, 929 (Tex.App.-Houston [14th Dist.] 1984, writ ref d n.r.e.) (stating that it is the sole province of the trier of fact to judge the credibility and weight to be given the testimony and to resolve conflicts in the testimony of the witnesses). We cannot say that the trial court’s finding that Johnson knowingly engaged in conduct that violated the DTPA is so against the great weight and preponderance of the evidence as to be manifestly unjust. Furthermore, CA Partners’s contentions have no bearing on the question of whether Johnson knowingly engaged in conduct that violated the DTPA. The fact that Spears was never actually evicted from his home or that none of his personal property was ever removed from his home is irrelevant to the question of whether Johnson knowingly made the representations at issue in either the Trustee’s Deed or in the notices of default. And, even if we were to accept CA Partners’s argument that it halted the eviction proceedings to correct the typographical error in the Deed as soon as it was discovered, this does not demonstrate that the representations in the Trustee’s Deed or in the notices of default were not made knowingly. Moreover, regardless of whether Johnson “admitted” or testified that the second notice of default — in which CA Partners represented that Spears contracted with and owed a debt to Western Building and Supply Co. — was a mistake, as the trier of fact, the trial court was free to disbelieve any or all of Johnson’s testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986); see also Tagle v. Galvan, 155 S.W.3d 510, 518 (Tex.App.-San Antonio 2004, no pet.). Thus, there is legally and factually sufficient evidence supporting the trial court’s finding that Johnson knowingly engaged in conduct that violated the DTPA. We next examine the sufficiency of the evidence supporting the trial court’s award of mental anguish damages to Spears. D. The Evidence Is Legally and Factually Sufficient to Support the Award of Mental Anguish Damages Under the DTPA. CA Partners further contends that the trial court erred in awarding mental anguish damages to Spears. CA Partners challenges Finding of Fact 29, wherein the trial court found that Johnson’s actions in foreclosing on Spears’s real and personal property and in bringing the forcible entry and detainer action were calculated to and did cause Spears to suffer mental anguish, and that this mental anguish continued until the forcible entry and detainer were dismissed on appeal. CA Partners asserts that Spears’s testimony — the only evidence of mental anguish damages he presented at trial — showed “mere worry, anxiety, vexation, embarrassment, or anger,” and did nothing but cite the existence of “mere emotions.” CA Partners argues that the evidence is therefore both legally and factually insufficient to support the award of mental anguish damages under the DTPA. Because we find that the evidence presented at trial addressed the nature, duration, and severity of Spears’s mental anguish, thus establishing a substantial disruption in his daily routine, we conclude that the evidence is legally and factually sufficient to support the award of mental anguish damages under the DTPA. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). 1. Standard of Review and Applicable Law As explained above, we will sustain a legal sufficiency challenge if there is no more than a mere scintilla of evidence supporting a finding of fact. See Formosa Plastics Corp., 960 S.W.2d at 48. We will sustain a factual sufficiency challenge only if a finding of fact is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. See Ortiz, 917 S.W.2d at 772. A plaintiff who establishes that the defendant knowingly engaged in conduct that violated the DTPA may recover damages for mental anguish. See Tex. Bus. & Com.Code § 17.50(b)(1). However, to obtain mental anguish damages under the DTPA, the plaintiff must either (1) introduce direct evidence of the nature, duration, and severity of his mental anguish, establishing a substantial disruption in his daily routine; or (2) present evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See Parkway, 901 S.W.2d at 444. Not only must there be evidence of the existence of compensable mental anguish, there must also be some evidence to justify the amount awarded. Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex.1996). Texas courts, including this Court, have held that evidence of a claimant’s physical and emotional state, coupled with his/her inability to eat and sleep, constitutes legally and factually sufficient evidence to support the award of mental anguish damages. See Stevens v. Nat’l Educ. Ctrs., Inc., 990 S.W.2d 374, 379 (Tex.App.-Houston [14th Dist.] 1999), pet. denied, 11 S.W.3d 185 (Tex.2000) (determining evidence that plaintiff felt “devastated” and depressed, did not eat for a long time, lost weight, and became “very moody” was legally and factually sufficient to support award of mental anguish damages); Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 395-97 (Tex.App.-Dallas 2000, pet. denied) (concluding evidence that plaintiff, among other things, felt “devastated” going to work, lost her appetite, could not sleep, and took prescription medication for insomnia was legally and factually sufficient to support award of mental anguish damages); Burleson State Bank v. Plunk-ett, 27 S.W.3d 605, 617-18 (Tex.App.-Waco 2000, pet. denied) (determining evidence that plaintiff was unable to sleep and suffered from, among other things, vomiting, diarrhea, and depression supported finding of “ ‘high degree of mental pain and distress,’ which caused a serious disruption in his daily routine,” and was legally and factually sufficient to support award of mental anguish damages); Norwest Mortgage, Inc. v. Salinas, 999 S.W.2d 846, 862-63 (Tex.App.-Corpus Christi 1999, pet. denied) (concluding evidence that plaintiff was unable to sleep, suffered severe stomach cramps, was often unable to eat, and felt “desperate” supported finding that plaintiff suffered “ ‘a high degree of mental pain and distress’ that caused a serious disruption in [her] daily routine” and was legally and factually sufficient to support award of mental anguish damages). Such evidence can take the form of the claimant’s own testimony. Parkway, 901 S.W.2d at 444. We have been instructed to “closely scrutinize” awards of mental anguish damages. Gunn Infiniti v. O’Byme, 996 S.W.2d 854, 860 (Tex.1999). With this in mind, we examine the parties’ arguments. 2. Application of Law to the Facts CA Partners asserts that Spears’s trial testimony only showed “mere worry, anxiety, vexation, embarrassment, or anger,” and argues that this evidence is insufficient under the standard adopted by the Texas Supreme Court in Parkway to support the award of mental anguish damages. This argument is without merit. At trial, Spears testified that • He is a 64-year-old retired longshoreman, with a high school education. • He had worked as a longshoreman from 1968 until he retired in 2004. • He was devastated when the justice of the peace court granted the forcible entry and detainer suit. • He was devastated because he was faced with the realization that he didn’t have anyplace to go, that he and his son were “going to be put out,” and that he only had seven days to figure out how to fight the eviction. • He was unable to sleep and was “not hardly” able to eat. • He was unable to sleep and eat because he was thinking about where he was going to live, that he had grown up wishing he had a home of his own, that he had worked for “all these years” to have a home of his own, and suddenly his home was taken by someone he didn’t know and from whom he had never borrowed money. • Thinking these thoughts was devastating to him. • His thoughts continued — at a minimum — until the forcible entry and de-tainer was reversed on appeal. • He was forced to hire a lawyer to appeal the forcible entry and detainer suit to county court, and paid $2,500 in attorney’s fees in connection with that appeal. • He was seeking mental anguish damages “for harassment and the grief and everything [he was] going through.” Contrary to CA Partners’s contention, Spears’s trial testimony is sufficient under Parkway to support the award of mental anguish damages under the DTPA. His testimony constitutes “direct evidence of the nature, duration, and severity of [his] mental anguish,” and established “a substantial disruption in [his] daily routine.” See Parkway, 901 S.W.2d at 444. Spears’s testimony did more than cite the existence of “mere emotions,” as CA Partners contends. We find that the evidence is legally sufficient to support the award of mental anguish damages under the DTPA. See Stevens, 990 S.W.2d at 379; Tex. Farmers Ins. Co., 24 S.W.3d at 395-97; Burleson State Bank, 27 S.W.3d at 617-18; Norwest Mortgage, Inc., 999 S.W.2d at 862-63. Furthermore, we find that the above evidence is factually sufficient to support the trial court’s award of mental anguish damages. CA Partners has not presented evidence contradicting Spears’s testimony regarding his mental anguish. Absent such evidence, Spears’s testimony is factually sufficient to support the award of mental anguish damages. See Stevens, 990 S.W.2d at 379. Therefore, the evidence is legally and factually sufficient to support an award of mental anguish damages under the DTPA. We overrule CA Partners’s sixth issue. E. The Trial Court Did Not Err in Issuing Permanent Injunctions Against Johnson. Finally, CA Partners contends that the trial court erred in permanently enjoini