Peter J. Parenti v. Kinsey Moberg--Appeal from Probate Court No 1 of Bexar County

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MEMORANDUM OPINION
No. 04-06-00497-CV
Peter J. PARENTI,
Appellant
v.
Kinsey MOBERG,
Appellee
From the Probate Court No. 1, Bexar County, Texas
Trial Court No. 2001-PC-3017B
Honorable Polly Jackson Spencer, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

 

Sitting: Alma L. L pez, Chief Justice

Sandee Bryan Marion, Justice

Rebecca Simmons, Justice

 

Delivered and Filed: May 30, 2007

 

AFFIRMED A jury found Peter J. Parenti liable for breaching his fiduciary duty to Kinsey Moberg and for knowingly aiding and abetting Moberg's mother and stepfather in breaching their fiduciary duty to Moberg. Parenti raises four issues on appeal, contending that: (1) Parenti had no fiduciary duty to Moberg; (2) Moberg was not entitled to mental anguish damages; (3) the award of attorney's fees from an underlying probate action as actual damages was improper; and (4) the exemplary damages award is grossly excessive. We affirm the trial court's judgment.

Background

Kinsey Moberg was sexually assaulted when she was a young child. Her mother and stepfather, Michele Adams-Thompson and Larry Adams-Thompson (collectively "the Thompsons"), filed suit in California against the federal government on behalf of themselves and Moberg regarding Moberg's assault. The parties reached a settlement, which was approved by the California court. Consistent with the settlement, the court ordered the federal government to pay $334,720 to the Thompsons "on their own behalf and on behalf of their minor child, [Moberg]." The Thompsons kept fifty percent of the money and created a trust for Moberg with the remaining fifty percent. Peter Parenti was hired to draft the trust, which was titled "The Kinsey Almond Adams-Thompson Living Trust" ("the Trust"). The Thompsons were named as trustees. The Trust provided that Moberg would become a co-trustee when she turned eighteen but that she would not have exclusive control of the Trust until she was fifty years old. The Trust also provided that if Moberg did not accept and sign the Trust within one month of turning eighteen, the Trust assets would go to the Thompsons unless Moberg was disabled or the Thompsons waived the requirement or extended the deadline for her to sign.

When Moberg was thirteen years old, she moved in with her biological father. Later, as Moberg approached her eighteenth birthday, her father's attorney sent a letter to Parenti requesting that Parenti send a copy of the Trust to Moberg or her father. Moberg had not seen a copy of the Trust since it was executed when she was twelve years old. Parenti responded in a letter that the trust documents prohibited the trustees from disclosing the trust documents except pursuant to a court order. He also stated in the letter that he advised Moberg's mother as trustee that if she disclosed the documents to Moberg, she could be sued for damages. In addition, the letter stated that Parenti would provide a copy of the Trust to Moberg when she turned eighteen and became a co-trustee.

Moberg turned eighteen on September 1, 2001. Seventeen days later, Parenti sent her a letter stating that she should soon receive a copy of the Trust and explaining her responsibilities as a co-trustee and beneficiary of the Trust. Ten days after that, Moberg was served with a lawsuit filed against her by her stepfather, who was represented by Parenti. The lawsuit was a declaratory-judgment action seeking a judicial declaration that the Trust was valid and that the terms of the Trust should be followed, including a specific request for enforcement of the provision stating that Moberg must accept and sign the Trust by a certain date or all assets of the Trust would be distributed to the Thompsons. The deadline for her to sign the Trust was extended to November 1, 2001. Moberg filed a counterclaim against the Thompsons for breach of their fiduciary duties and to declare the trust unenforceable.

The probate court ultimately terminated the Trust and ordered all trust assets distributed to Moberg. Moberg then brought this suit against Parenti for breach of fiduciary duty and for aiding and abetting the Thompsons in breaching their fiduciary duty. After a jury trial, the jury found that an attorney-client relationship existed between Parenti and Moberg in the creation of the trust and that Parenti was liable on both of Moberg's claims. The jury awarded Moberg $55,000 in damages for the attorney's fees she incurred in the declaratory-judgment suit. The jury also awarded Moberg mental anguish damages in the amount of $5,000 and exemplary damages in the amount of $300,000. Because Moberg had previously been awarded $13,500 of the attorney's fees she incurred in the declaratory-judgment action, the trial court applied a credit of $13,500 to the damages awarded by the jury. The trial court also reduced the exemplary damage award to $200,000. This appeal followed.

Independent Ground to Support Judgment

On appeal, Parenti challenges only one of two theories of liability submitted to the jury. The jury found Parenti liable under both theories. When a separate and independent ground that supports the judgment is not challenged on appeal, the appellate court must affirm. See Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77, 83 (Tex. 1977); San Antonio Press, Inc. v. Custom Bilt Mach., 852 S.W.2d 64, 65 (Tex. App.-San Antonio 1993, no writ).

Parenti does not raise a separate issue challenging the jury's finding that Moberg was Parenti's client. Parenti's challenge to that finding is subsumed in his issue challenging the jury's finding that he failed to comply with his fiduciary duty to Moberg, which was only one of the theories of liability submitted to the jury. The second theory of liability - knowingly aiding and abetting Moberg's parents in violating their fiduciary duty to Moberg - does not rest on the existence of an attorney-client relationship between Parenti and Moberg but only upon the existence of a fiduciary relationship between Moberg and her parents. Therefore, based on the manner in which Parenti presented his issues and based on his failure to challenge the second theory of liability, this court is unable to reach the issue of whether an attorney-client relationship legally existed between Parenti and Moberg. Accordingly, this opinion should not in any way be read as addressing that issue.

Because Parenti fails to challenge the second theory of liability, which is a separate and independent ground that supports the judgment, we affirm the trial court's judgment as to liability. Nobility Homes of Tex., Inc., 557 S.W.2d at 83; San Antonio Press, Inc., 852 S.W.2d at 65. We now turn to Parenti's remaining issues regarding damages. Mental Anguish Damages

In his second issue, Parenti contends that the trial court erred in awarding Moberg mental anguish damages because: (1) Moberg's actual damages were economic; (2) the evidence in support of an award of mental anguish damages is legally insufficient; and (3) there is no causal link between Parenti's conduct and Moberg's mental anguish.

A. Recovery of Mental Anguish Damages When Actual Damages are Economic

Parenti argues that Moberg cannot recover mental anguish damages because her actual damages are economic in nature. In support of his argument, Parenti cites two cases in which the Texas Supreme Court held that mental anguish damages are not recoverable in cases involving certain negligence claims. See Douglas v. Delp, 987 S.W.2d 879, 885 (Tex. 1999) (holding that plaintiff cannot recover damages for mental anguish when mental anguish is consequence of economic losses caused by attorney's negligence); City of Tyler v. Likes, 962 S.W.2d 489, 497 (Tex. 1997) (mental anguish based solely on negligent property damage not compensable as matter of law). However, Moberg did not allege negligence in this case. Further, courts have held that mental anguish damages are recoverable in some cases where the defendant's conduct is intentional or malicious. See Likes, 962 S.W.2d at 495 (stating that mental anguish damages are recoverable for some common law torts involving intentional or malicious conduct); Farmers & Merch. State Bank of Krum v. Ferguson, 617 S.W.2d 918, 921 (Tex. 1981) (upholding award of mental anguish damages under section 4.402 of the UCC for wrongful dishonor where jury found bank acted with malice); Beaumont v. Basham, 205 S.W.3d 608, 620 (Tex. App.-Waco 2006, pet. denied) (holding that plaintiff could recover mental anguish damages under the Theft Liability Act where jury found defendants acted with malice when they committed theft). Here, the jury found that Parenti acted with malice, and Parenti does not challenge that finding. Therefore, because the jury found that Parenti acted with malice, we hold that the trial court did not err in awarding mental anguish damages to Moberg. See Likes, 962 S.W.2d at 495; Ferguson, 617 S.W.2d at 921; Basham, 205 S.W.3d at 620.

B. Legal Sufficiency of Evidence to Support Mental Anguish Damages

Parenti asserts that the evidence is legally insufficient to support a finding that Moberg suffered mental anguish. To survive a legal sufficiency challenge, Moberg was required to show by direct evidence "the nature, duration, and severity of [her] anguish, thus establishing a substantial disruption in [her] daily routine," or show by other evidence "a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger." Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Moberg testified that she became physically sick when she received the declaratory-judgment action brought by her stepfather and signed by Parenti. She testified that she thought Parenti was her lawyer and that she was shocked to see that he was representing her stepfather against her. She testified that she had trouble sleeping and that she had to miss work at times because she was crying and vomiting to such an extent that she could not work. She stated:

"I told my husband to call in because I couldn't speak because I was crying too hard and I had been up all night and I just couldn't stop throwing up. And it was several days just like that. I didn't go back right away. And it continued for a while, because this stuff tends to follow you and kind of snowball as it gets going. So I can't remember when it actually stopped, because I just, instead of - I guess I gained control of myself physically at one point, and then it was just not being able to sleep and not, you know, wanting to eat a lot. And so I just - I - was able to put in my normal work day and still try and get stuff done. I guess you could say I was coping. I was able to learn to cope with it."

 

We conclude that Moberg's testimony that she cried, lost sleep, vomited, and missed work for "several days" is sufficient to support the jury's finding. See Ortiz v. Furr's Supermarkets, 26 S.W.3d 646, 653 (Tex. App.-El Paso 2000, no pet.) (stating that mental anguish damages are warranted where mental anguish causes plaintiff to have difficulty eating, sleeping, working, socially interacting, or carrying on any other activity that, until time of alleged injury, she could accomplish on daily basis without difficulty). Because evidence exists in the record to support the jury's finding, we decline to sit as a thirteenth juror and overturn the decision of the jury. See Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 108 (Tex. App.-San Antonio 2000, pet. dism'd by agr.). We therefore overrule Parenti's legal sufficiency challenge.

C. Causation

Parenti contends that Moberg did not provide evidence establishing that her mental anguish was caused by Parenti. Moberg testified that her mental anguish was the result of being served with the declaratory-judgment action. Parenti argues that Moberg did not differentiate between the mental anguish caused by the Thompsons' lawsuit and that caused by Parenti's involvement in the lawsuit, and that it is more likely that her anguish was the result of being sued by her own parents. Parenti cites two Texas Supreme Court cases in support of his argument. See Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 861 (Tex. 1999) (mental anguish damages not recoverable where plaintiff's testimony indicated his anguish was result of issues unrelated to defendant's DTPA violations); Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997) (stating that consequential damages must be related to misrepresentation). Both cases stand for the same proposition: that a plaintiff's mental anguish must relate to the defendant's conduct. Here, Parenti's argument fails because Moberg's testimony does relate to Parenti's conduct. The jury found Parenti liable for knowingly aiding and abetting the Thompsons in the violation of their fiduciary duty to Moberg, and Parenti does not challenge that finding on appeal. Moberg's testimony that her mental anguish was caused by a lawsuit that was filed by her stepfather and drafted and signed by Parenti directly relates to the jury's finding that Parenti knowingly assisted the Thompsons in violating their fiduciary duty to Moberg.

D. Conclusion Regarding Mental Anguish Damages

We emphasize once more that Parenti does not challenge the jury's finding of malice. Applying the governing law, without the benefit of reviewing the unchallenged finding, we hold that the trial court did not err in awarding Moberg mental anguish damages. See Likes, 962 S.W.2d at 495.

Attorney's Fees From Previous Case As Actual Damages

In his third issue, Parenti contends that the trial court erred in awarding Moberg attorney's fees from a previous case as actual damages because: (1) the previous judgment awarding attorney's fees was res judicata; (2) Moberg is entitled to only one satisfaction of her attorney's fees award; and (3) it is improper to award attorney's fees that were incurred in a prior suit. Parenti also contends that the trial court erred in excluding evidence of Moberg's previous attorney's fees award.

A. Res Judicata

Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Res judicata requires proof of the following elements: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were raised or could have been raised in the first action. Id. Here, res judicata does not apply because Parenti does not establish that he was a party or in privity with a party in the declaratory-judgment suit. Parenti was not a party in the declaratory-judgment suit because he was serving as an attorney representing a party in that suit. With respect to privity, people can be in privity in at least three ways: (1) they can control an action even if they are not a party to it; (2) their interest can be represented by a party; or (3) they can be successors in interest, deriving their claim through a party. Id. at 653. Parenti has not cited, and we have not located, any authority for the proposition that Parenti fits into any of the three categories. Because Parenti cannot show that he was a party or in privity with a party in the declaratory-judgment suit, res judicata does not apply.

B. One-Satisfaction Rule

Parenti argues that the one-satisfaction rule bars Moberg's recovery of attorney's fees from the declaratory-judgment suit as actual damages in this case because the trial court already awarded Moberg some of the same attorney's fees she requested in the declaratory-judgment suit. The purpose of the one-satisfaction rule is to prevent a plaintiff from obtaining more than one recovery for the same injury. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991). Here, Moberg's injury was that she was required to incur attorney's fees in defending against a declaratory-judgment action brought by her stepfather.

The record shows that in the declaratory-judgment suit, the trial court awarded some of the attorney's fees requested in that case. Parenti contends that the trial court's award in the declaratory-judgment suit constitutes full satisfaction for Moberg's injury. However, the record does not provide us with sufficient information to determine that the trial court's initial award of attorney's fees in the declaratory-judgment suit constitutes a full satisfaction of Moberg's damages. The record is unclear as to the trial court's reasoning for awarding only some of the attorney's fees requested by Moberg in the declaratory-judgment action. In fact, at a pre-trial hearing in this case, the trial court indicated that it could not remember why it awarded only some of the attorney's fees presented to it in the declaratory-judgment suit. The court stated that it was unsure if it had awarded only some of the fees because it felt that amount was reasonable or whether it was because there was one party not before the court at the time. The record also does not include the trial court's final judgment in the declaratory-judgment suit. It is at least clear that Moberg's total recovery of attorney's fees was no more than the amount she actually incurred in the declaratory-judgment suit because the trial court's judgment in this case shows that the court credited the amount awarded in the declaratory-judgment suit to the award in this case. Without further information in the record about the trial court's award of attorney's fees in the declaratory-judgment suit, we cannot conclude that the award of damages in this case violates the one-satisfaction rule.

C. Awarding Attorney's Fees From First Suit as Damages in Second Suit

Generally, expenses incurred in prosecuting or defending a suit are not recoverable as costs or damages unless recovery is expressly provided for by contract or statutory provisions. Turner v. Turner, 385 S.W.2d 230, 233 (Tex. 1964). However, equitable principles may allow the recovery of attorney's fees where a party was required to prosecute or defend the previous suit as a consequence of a wrongful act of the defendant. See Massey v. Columbus State Bank, 35 S.W.3d 697, 701 (Tex. App.-Houston [1st Dist.] 2000, pet. denied); Nationwide Mut. Ins. Co. v. Holmes, 842 S.W.2d 335, 341 (Tex. App.-San Antonio 1992, writ denied); Baja Energy, Inc. v. Ball, 669 S.W.2d 836, 838 (Tex. App.-Eastland 1984, no writ). Here, Moberg's stepfather filed a declaratory-judgment action against her seeking a judicial declaration that the Trust was valid and enforcement of the trust provisions. Parenti drafted the Trust and served as the stepfather's attorney in the declaratory-judgment action. Moberg was required to defend herself in the declaratory-judgment suit, in which the court ultimately concluded that the Trust was unenforceable and should be terminated. In the case before us, Moberg alleged that Parenti aided and abetted her mother and stepfather in breaching their fiduciary duties to Moberg by knowingly creating an invalid trust and then filing a declaratory-judgment action against Moberg seeking a declaration that the Trust was valid. The jury found Parenti liable on this claim, and Parenti does not appeal that finding. Because of Parenti's actions, Moberg was required to pay attorney's fees in defending the declaratory-judgment action. Therefore, we conclude that based on equitable principles, the trial court did not err in awarding Moberg her attorney's fees from the declaratory-judgment suit as actual damages in this case. See Massey, 35 S.W.3d at 701; Baja Energy, 669 S.W.2d at 838.

D. Exclusion of Evidence Showing Previous Attorney's Fees Award

Parenti contends that the trial court erred in excluding evidence of the attorney's fees awarded to Moberg in the declaratory-judgment suit. We review the trial court's decision to exclude evidence for an abuse of discretion. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). An abuse of discretion occurs when the trial court acts without regard to any guiding rules or principles. Alvarado, 897 S.W.2d at 754. If error is found in the exclusion of evidence, we examine the entire record to assess the harm caused by the error. See Cortez v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 119 (Tex. App.-San Antonio 2004), aff'd, 159 S.W.3d 87 (Tex. 2005). We reverse based on the erroneous exclusion of evidence only if the proponent of the evidence shows error that was calculated to cause and probably did cause the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1); Alvarado, 897 S.W.2d at 753; Vela v. Wagner & Brown, Ltd., 203 S.W.3d 37, 52 (Tex. App.-San Antonio 2006, no pet.). Accordingly, the proponent of the evidence must demonstrate that the excluded evidence was both controlling on a material issue and not cumulative of other evidence. Able, 35 S.W.3d at 617; Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995). Erroneous evidentiary rulings are usually not harmful unless the case as a whole turns on the particular evidence in question. Alvarado, 897 S.W.2d at 753-54; Sommers v. Concepcion, 20 S.W.3d 27, 41 (Tex. App.-Houston [14th Dist.] 2000, pet. denied).

We need not decide whether the exclusion of the evidence was improper because even assuming the trial court erred, we conclude the error was harmless. In the judgment in this case, the trial court credited the amount already awarded to Moberg in the declaratory-judgment suit to the amount awarded to her by the jury in this case. Because the amount previously awarded to Moberg was never made a part of the judgment against Parenti in this case, Parenti cannot demonstrate that the case turned on the excluded evidence or that the exclusion of the evidence probably caused the rendition of an improper judgment. Accordingly, we hold that any error in the exclusion of the evidence was harmless.

Parenti also argues that the court should have admitted affidavits of Moberg's attorneys detailing attorney's fees in the declaratory-judgment suit because the affidavits were admissible based on inconsistent statements. However, Parenti does not provide citations to the record in support of his argument. Although Parenti cites to Moberg's testimony about the amount of attorney's fees she had to pay in the first action, he did not seek to admit the affidavits at that point in the record, and he does not cite to a place in the record where he did seek to admit the affidavits. As a result, he has waived this argument. See Tex. R. App. P. 38.1(h) (requiring brief to contain appropriate citations to record); Flume v. State Bar of Tex., 974 S.W.2d 55, 62 (Tex. App.-San Antonio 1998, no pet.) (failure to cite to relevant portions of record waives appellate review).

Exemplary Damages

In his final issue, Parenti challenges the $200,000 exemplary damage award on the ground that it deprives him of due process under the Fourteenth Amendment to the United States Constitution because it is grossly excessive. In determining whether an exemplary damages award violates due process, we consider three guideposts: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between actual or potential harm suffered by the plaintiff and the exemplary damages award; and (3) the difference between the exemplary damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418 (2003); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 308 (Tex. 2006); Baribeau v. Gustafson, 107 S.W.3d 52, 63 (Tex. App.-San Antonio 2003, pet. denied).

A. Reprehensibility of Parenti's Misconduct

The reprehensibility of the defendant's misconduct is the most important of the guideposts. State Farm, 538 U.S. at 419; Tony Gullo Motors, 212 S.W.3d at 308. In determining the reprehensibility of Parenti's conduct, we consider whether: (1) the harm caused was physical as opposed to economic; (2) the tortious conduct evinced an indifference to or reckless disregard of the health or safety of others; (3) the target of the conduct had financial vulnerability; (4) the conduct involved repeated actions or was an isolated incident; and (5) the harm was the result of intentional malice, trickery, or deceit, or mere accident. State Farm, 538 U.S. at 419; Tony Gullo Motors, 212 S.W.3d at 308. Here, the third and fifth factors are met. First, Moberg was financially vulnerable at the time that Parenti filed the declaratory-judgment action against her on behalf of her stepfather. She had only recently graduated from high school, turned eighteen, and moved into her own apartment when she was served with the lawsuit. As a result of the action, she had to enter into a contingency-fee contract to hire an attorney. By the time the court ultimately terminated the Trust and ordered the trust assets distributed to Moberg, she had incurred approximately $54,000 in attorney's fees.

Second, the jury found that the harm to Moberg was the result of malice, and Parenti does not appeal that finding. The record shows that Parenti was untruthful in a letter to an attorney representing Moberg's father in a custody dispute. The attorney had requested that Parenti send a copy of the Trust to Moberg or her father. In response, Parenti stated that the Trust prohibited the trustee from disclosing the trust documents to anyone except pursuant to a court order. However, Parenti admitted on the stand that his statement was not true. The Trust actually provided that the trustee was not required to disclose the trust documents to anyone who was not a beneficiary, did not have the approval of a beneficiary, or was not requesting the documents pursuant to a court order. Parenti stated that he made the false statement because the attorney was representing Moberg's father in a child support and custody dispute against Moberg's mother. When asked if he made the false statement to frustrate the attorney's attempt to get information that he needed, Parenti answered, "[n]ot necessarily." Parenti's letter also includes the statement that he advised Moberg's mother as trustee that if she were to violate the prohibition in the Trust, she could be sued for damages. However, since there is no such prohibition in the Trust, he also was untruthful with his client. Further, Parenti contradicted his letter when he testified at trial that the reason he refused to disclose a copy of the Trust was because the Thompsons refused to give him permission for the disclosure.

The record also includes a letter from Parenti to the attorney representing Moberg's mother in the custody dispute. In the letter, Parenti states that Texas courts are notorious for upholding the terms of such a trust, that Moberg's challenge to the Trust would likely be unsuccessful, that the trustees could defend the Trust with trust assets, that Moberg "would be spending her education money on litigation which is a very expensive way to get an education," and that Moberg "would end up paying all court costs and all attorney's fees on both sides of any litigation." Moberg's expert, Chris Heinrichs, testified that it was incorrect for Parenti to state in the letter that Moberg's challenge would be unsuccessful. Heinrichs testified that a minor has the right upon turning eighteen to void an agreement that she entered into or that was entered into on her behalf when she was a minor. Further, even though Parenti demonstrated in the letter that he knew that a lawsuit involving the validity of the Trust would be expensive for Moberg, he himself drafted a petition for a declaratory judgment against her on behalf of her stepfather before she had even seen a copy of the Trust. The petition drafted by Parenti requested among other things that the court award attorney's fees and enforce the forfeiture provision in the Trust requiring Moberg to sign the Trust by a certain date or lose the trust assets to the Thompsons. Thus, if the declaratory-judgment action had been successful and Moberg had refused to sign a trust that she felt was objectionable, she would have lost the trust corpus and been required to pay her attorney's fees and Parenti's fees. If she had signed the Trust, she would still be required to pay her attorney's fees and Parenti's fees.

Heinrichs also testified that the Trust itself had improper provisions. He testified that he had seen the property of a minor withheld until she turned eighteen, twenty-one, or twenty-five, but that he had never seen it withheld until she turned fifty as it was here. In addition, Heinrichs testified that it was improper for Parenti to put estate-planning provisions in the Trust because the law does not allow a minor to write a will. Heinrichs also stated that the provision stating that Moberg's father could never be a beneficiary or heir under the Trust was not permitted by law.

After considering Parenti's conduct as a whole, we conclude that the evidence of Parenti's wrong-doings supports the exemplary damages award.

B. Disparity Between Actual or Potential Harm and Exemplary Damages

The U.S. Supreme Court has declined to adopt a bright-line ratio between actual or potential damages and exemplary damages, but it has stated that few awards exceeding a single-digit ratio will satisfy due process. State Farm, 538 U.S. at 425. The Court has also concluded that an exemplary damages award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety. Id. Here, the jury awarded Moberg $55,000 in actual damages and $5,000 in mental anguish damages, for a total of $60,000 in compensatory damages. Because the $200,000 exemplary damages award is less than four times the compensatory damages award, the disparity between the two awards is within the Supreme Court's accepted ratio. Further, the potential harm to Moberg is much more substantial. If the Thompsons would have enforced the forfeiture provision in the Trust, Moberg would have lost the entire trust corpus, which was approximately $162,000 at the time it was distributed. Thus, the ratio between the potential harm to Moberg and the exemplary damages award is well within the accepted ratio.

C. Difference Between Exemplary Damages and Civil Penalties in Similar Cases

Section 41.008(b) of the Texas Civil Practices and Remedies Code caps exemplary damages at the greater of: (1) noneconomic damages plus two times economic damages, not to exceed $750,000; or (2) $200,000. See Tex. Civ. Prac. & Rem. Code Ann. 41.008(b) (Vernon Supp. 2007). Thus, the $200,000 exemplary damages award in this case does not violate the statute's limitations. Although Parenti points out that the Deceptive Trade Practices Act (DTPA) authorizes only three times the amount of actual damages as exemplary damages, he does not cite caselaw or provide examples of DTPA claims that are comparable to the claims in this case, nor does he provide any other cases similar to this case that would support his argument. We therefore conclude that the third guidepost supports the exemplary damages amount awarded in this case. See Springs Window Fashions Div., Inc., v. Blind Maker, Inc., 184 S.W.3d 840, 891 (Tex. App.-Austin 2006, pet. granted, remanded by agr.) (holding exemplary damage award reasonable because within amount authorized by section 41.008(b)); Citizens Nat'l Bank v. Allen Rae Inv., Inc., 142 S.W.3d 459, 486 (Tex. App.-Fort Worth 2004, no pet.) (fact that exemplary damage award was within amount authorized by section 41.008(b) supported award).

Because each of the three guideposts supports the exemplary damages award, we hold that the award does not violate Parenti's due process rights.

Conclusion

We affirm the trial court's judgment.

Alma L. L pez, Chief Justice