*1 only plaintiff credit to and that its motion new and in it extended for trial its sustained seller, Ford, really point the contract involved error Galleria Area Inc. disagreed only grant Etex. The Court and held that states that the court failed to inextricably “Etex so inter- Under and IHCC were its motion. such circumstances this equally may twined in transaction as remand the case back to the sale,” responsible for Shafer, the conduct trial court. Rosas v. 415 S.W.2d (Tex.1967); Gillespey Sylvia, 389. 1973, (Tex.Civ.App. S.W.2d 234 Paso — El respon- We do not find that kind of dual writ). reverse and remand for case, sibility existing in at least as judg Area Ford and affirm the Galleria Ford, management Area Inc.. Galleria Marque ment La Ford. agreement provided that or losses debts etc., arising out of business transaction 17,
occurring midnight prior November responsibility became the sole of La Ford,
Marque Marque, and Ronald M. La
personally. Obviously it was not the intent parties on November 1985 when
entering agreements preliminary into the dealership’s appel- eventual sale Kechler, Laughter
lant Messrs Bott and Marque’s past should become liable La BALER COMPANY and AMERICAN Moreover, statutory torts violations. Associates, Inc., Appellants, Miner only indepеndent indicating evi- conduct operations by dence of takeover of Galleria Ford, Area appellees’ SYSTEMS, INC., Inc. while truck was Appellee. dealership, still entrusted No. 01-86-00907-CV. change way dealership in the answered phone. The three individuals started Texas, Appeals Court over their take of the sales division of the (1st Dist.). Houston and, dealership apparently, they simulta- Jan. 1988. neously phone instructed the to be answer- This, more, ed Galleria Ford. does Rehearing Denied March probative not constitute evidence that Ford, respon- Galleria Area Inc. became dealership, past
sible for the entire
present, by representing dealership,
past present, by representing general public
Browns and the ongo-
dealership being conducted
ing business. appellant’s
Since we sustain first
point dispositive it is of this remaining dowe not reach the sustaining
points now before court. In error,
appellant’s point “no we evidence” generally
are mindful the law calls
reversal trial court’s appellant. rendition Cal “
vert, ‘no evidence’ and ‘Insufficient Evi Error”,
dence’ Points 38 Tex.L.Rev. (1960). asserted
this no evidence first time *2 Houston, O’Connor, Ripen,
Michol Fred appellants. Goforth, Houston, appellee. Daniel 0. DUNN, WARREN and Before COHEN, JJ.
DUNN, Justice. This is an of a based findings, awarding damages against causes two defendants on four different Act Deceptive Trade Practices action: contract, violation, fraud, (DTPA) breach four negligent misrepresentation. All sale and/or relate to the causes conveyor in the installation of a baler and (SRS), appellee Systems fall of 1979to hauling opеration a commercial trash Ameri- Doug Looney. Appellant owned (Baler), Company is the manufac- can Baler baler, Miner turer Associates, (Miner), repre- sales Inc. appellee SRS both sentative who sold conveyor. baler and the day operation, appellee From the first Af- system. baling problems with the had by appel- attempts many ter unsuccessful appellee con- remedy problems, lants to expend consid- he forced to was tends that shredder, he adding money erable partic- necessary was not was told arising causes of action out of the same baler, modifying sys- ular the entire tem, practices, acts building because including the it was which was required to elect its remedy. pur- the landfill he housed. request, denied, had filed losing money chased due to less require appellee remedy. Ap- to elect his predicted of garbage than volume baled. *3 pellants argue entering judgment that Appellee further contends that because of DTPA, upon fraud, negligent and mis- process inability certain baler representation causes of in action resulted materials, modificаtion, even after he had recovery damages. double Appel- actual many accounts, to cancel of his and even- challenge lants any possible do tually was forced to sell his business to recovery under the DTPA and breach Ferris, Browning Inc. action, contract causes of which were based brought Baler, Appellee against suit Min- on different acts. further ar- er, and Mayfran Conveyor Company (May- gue appellee pleaded that these causes fran), conveyor, manufacturer of for alternative, thus, action in the judg- and damages purchase sustained from the and ment be accordingly. must rendered (baler baling system installation of the and Appellee contends that the three causes conveyor). violations, pleaded He DTPA of action were based on different acts. contract, fraud, negligent breach of However, special issues on the DTPA misrepresentation. allega- Appellee’s main violations, fraud, negligent misrepre- tion was misrepresented that alleged sentation were misrep- all based on system that could bale materials in surrounding resentations the salе of the damages waste stream. The Therefore, system. they baler we find that sought from three co-defendants to- were all based on the same acts. The main million, taled (including $10 almost treble question then becomes whether the DTPA DTPA), damages plus under attorney’s recovery damages allows double for actual answer, Mayfran fees. failed to and a under inconsistent or causes of concurrent judgment default against was rendered it. action based on the same acts. jury The damages awarded SRS under against all four causes action The cumulative remedies section Baler, except and under all breach of con- 17.43, DTPA, section was amended in against appellant Miner, tract plus attor- and now reads: fees, ney’s punitive but no damages. The provisions subchapter The are not court rendered for the total provided in exclusive. The remedies amount found under all causes any other subchapter are addition action, interest, plus pre-judgment procedures provided for remedies follows: however, provided, that law; other Miner Baler permitted under shall 70,271 163,964 DTPA subchapter another law bоth this Mandatory additional 2,000 2,000 damages penalties both actual (2 damages 1st x practice. (Added same act $1,000) Breach of Contract 6,010 underlined.) language 35,136 35,135 122,973 Fraud Negligent Misrepresen- 40,991 Ann., (Ver- 17.43 & Com.Code sec. Tex.Bus. tation 1987). non $142,543 TOTAL $335,938 parties several cases Both cite arguments regarding double recov- Attorney’s fees, of their jointly and severally $70,000 damages ery the DTPA. for actual under In four, supreme court deci- appellants argue we find the that the trial implications, Mayo v. John entering sion, court judg- erred and its against ment Co., defendants for cumulative Ins. Hancock Mutual Life damages for inconsistent and (Tex.1986) concurrent controlling. summary object special Mayo
The
court reversed a
issue
negligence,
barred a DTPA
acts
which was based on the
decep-
company
an insurance
both defendants.
at 259. The
did
of an insur-
practices
tive trade
the sale
hold
the DTPA
allows double re-
granted
had
policy.
covery
ance
lower court
these
under
inconsistent theories.
plain-
summary judgment
fact,
because the
the court remanded the case for
puni-
already
had
recovered actual
tiffs
indemnity
considеration
contribution and
company
damages from the insurance
tive
between
co-defendants. Id. at 259-60.
failing
claim
pay
days
within
We therefore find that
the trial
valid,
21.21,
pursuant to
jury found
article
requiring
in not
plaintiff
court erred
16 of the Texas Insurance Code.
section
elect between the actual
awarded
Holding
misinterpret-
the lower court
DTPA, fraud,
negligent
under
mis
17.43,
Mayo
the revised section
ed
*4
representation causes of action. Where
merely
a
held
“the statute
limits
court
prevailing party
the
fails
elect between
recovering
puni-
and
plaintiff from
аctual
damagé
under
causes of
awards
alternative
under
damages
specific
for a
act
one
tive
action,
findings
the
utilize
court should
the
puni-
recovering actual and
law and then
affording
recovery
greater
the
and render
very
act
damages for the
same
under
tive
accordingly.
judgment
See Birchfield
provisions of the DTPA.” Id. at 6.
the
Hosp., 747 S.W.2d
Texarkana Memorial
the two claims were based
dif-
Because
(Tex.1987).
damages
361
Because the
acts, the court held that the second
ferent
by
jury for the DTPA viola
awarded
the
Mayo
The
court
suit should be allоwed.
attorney's
greatest, and
fees
tion were the
however,
plaintiffs
explained,
that should
DTPA
only under the
were recoverable
trial,
prevail
their
the second
action,
appellee
we hold that
was
cause
by
should be
the amount
actual
offset
recovery
DTPA
under the
entitled
damages
prior
recovered in the
trial. Id.
of action.
cause
Therefore,
Mayo
court held
7.
while
four is sustained.
Point
error
prosecution of
that the DTPA
two
allowed
recovery
legal
challenges
double
for
causes
action and
one
Point
error
аcts,
punitive damages
on different
based
sufficiency
factual
of evidence
and
for
findings regarding
it made clear
double
port
violations
all
allowed,
damages would not be
even
DTPA,
actual
the trial court’s denial of
and
though
by different acts. There-
caused
n.o.v. and
appellants’ motions
fore,
recovery for actual
double
determining
evidence
a
trial.
In
new
by
the same acts would
caused
and
points,
to consider the evidence
we are
DTPA.
Kish v.
allowed
See also
support the find-
that tend to
inferences
(Tex.1985).
Note,
463
692 S.W.2d
Van
disregard
and
ings,
all evidence
and we
Bauer,
contrary. King v.
inferences to the
supreme
Appellee
contends
(Tex.1985).
845,
If there is
846
recovery for the in-
court
allowed
support
probative force to
any evidence of
DTPA
theories of
violation
consistent
finding,
point must be overruled
negligence
Chapman,
Co. v.
Shell Oil
King’s
re
Es-
finding upheld. In
and the
(Tex.1984). However, in
247 ny. Rego Brannon, Co. v. regardless tained S.W.2d how business (Tex.App. [1st described. Dist.] — Houston n.r.e.). may ref writ d not substitute corporate Appellee’s tax return merely opinion might our because we have credit, claiming energy IRS tax which is reached a different conclusion. Benoit v. equipment purchased available for Wilson, 273, 281, Tex. S.W.2d paper recycling, garbage but col- (1951). lection. findings All of the DTPA under Age Magazine article Waste 4. An pertain alleged cause mis- appellee. based on an interview with surrounding representations sale (Entered by appellants). into evidence issue, system. key balеr deter- our supreme cite two cases supports mination of whether the evidence support their contention that these doc finding misrepresentation, ap- a is how judicial uments were admissions. We find pellee described his business distinguishable. Stanolind Oil both are purpose and the he which was interest- State, Gas v. 5, 145 136 Tex. installing baling system. Appel- ed in (1940), party held bound admis lants contend that told them he sions in records he admitted to his process converting was in the his com- position, any explanation or modifi hauling business, pres- mercial trash cation of their contеnts. In the instant *5 ently paper, paper recy- handled into a 80% case, appellee did not admit these doc cling operation. pro- Based on information proof position uments his on he as of how by appellee, appellants vided sold him a 410 business, described the of nature his but baler, which in was described the brochure measure, ap more as as a defensive even handling as paper. pellants suggest in their brief. Further Appellee contends he always that de- more, Stanolind, in party appel- unlike the scribed his business as a commеrcial trash give explanation lee did of the informa hauling operation, and in- that he never in The tion contained these documents. to solely paper tended convert it into a credibility explanations of these was an recycling plant. Appellee further contends jury. issue for the purpose baling that systems the the to bale trash as so to reduce the volume Fidelity Mendoza v. Guaran landfill, trash taken charged which Underwriters, ty Ins. based on the cubic volume of trash (Tex.1980), out the set the test dumped, appellants and that him assured are quasi-judicial for when admissions to be particular that the baler sold handle could judicial The first treated as admissions. his current waste stream. prong that of the test the declaration
Appellants argue during judicial that certain documents was made the course by appellee entered into proceedings. evidence the Documents admitted were equivalent admissions, judicial prior at made others that show statements to admissions, quasi-judicial least by appellee, trial, with to which are inconsistent state conclusively prove appel- trial, that he told alleged ments at meet in, in, lants that he planning prong. first also cite numerous paper recycling business. appellate regarding court cases documenta evidence, ry all of which we find distin particular describing The ap- documents guishable from facts of case. pellee’s paper oper- as recycling business ation are as follows: find that these documents therefore law,
1. A letter from to Texas establish, a matter of do not as Department Health, licensing to avoid appellants nature of described to business required garbage operations. However, given by appellee. they must be Appellee’s determining in the factual application to Gulf Coast consideration Disposal Authority supporting the sufficiency Waste cost low evidence financing, findings misrepresentation. have could been ob- trying remedy in continued to
Appellants place all their reliance (4) challenging insufficiency problems; trying the evi- Baler was to move Loo- on the inconsistencies between industry, dence in to into the solid waste addition how he ney’s testimony regarding de- recycling, speech, in а paper Baler’s appellants, his to and how scribed business manager referred the 410 sales to baler who described his business others he (not being paper used in transfer stations in- and in the various documents testified Houston, operations) referring in recycling evidence, as incon- into well on troduced prob- appellee, Chicago, where allegations pleadings. his sistencies experienced; were lems similar to trial, Looney offered the ex- partic- Baler sold fact that planation his fit total- that business did not baler, knowing would not be ular it ly (pаper recy- type one of business just paper, is further used bale station, hauling), cling, but transfer trash engineer ported by a memo from Baler’s instead, that, he did a little of each. (sent study prob- down Houston he his fact that described business being experienced), advised lems best suited documents the manner that square off to one that “we need back indicative, perhaps is not purpose, while his every component, we are analyze since he his conclusive of how described business game.” new ball in an entire it appellants. was after Appellants argue that the entire case Looney accompanied Miner’s salesman hangs Looney’s credibility. While there repre- attorney Austin to meet with an Looney’s testimony, are inconsistencies Department, Health sentatives contrary jury’s strong evidence decided, purpose for the it was inconsistencies, verdict, or at there are also document, Looney Department Health lapses memory, in the least convenient paper his as a should describe business witnesses, testimony appellants’ some recycling operation. supporting jury’s аlong with evidence Appellants argue that evi *6 evidence, weighing the After all verdict. favoring the testimo dence the verdict was as is not so weak find that the evidence we Looney employees that ny of and one of his findings misrepresenta- on to render the garbage. Looney always intended to bale manifestly DTPA errone- tions under tes we find other uncontroverted unjust. or ous employ timony by Looney and of his two is of error one overruled. Point admissions, ees, albeit certain well as Russell, reluctant, by John Fred Miner and seven, eight six, and fur- Points of error Baler, sup mаnager also sales findings under challenge specific ther portive. the follow This evidence includes (1) advertising goods with DTPA (1) the land ing: Miner’s salesman visited advertised, (2) to them as sell intent sale, prior to the Looney using fill need for about the misleading statements composition of the exact viewed first-hand advantage appel- (3) taking repair, and stream; in appellee’s materials waste all of these knowledge. While lack of lee’s technician, help to with Baler’s sent down under are actionable specific acts start-up, complained the initial DTPA, necessary to are of them none manager not de plant the baler was under port the award of material signed to bale the kinds by the other DTPA, supported which however, it; using follow they which were of character- misrepresentation findings of conversation, by ap phone initiated ing a servic- equipment istics and benefits manager, techni pellee’s plant between harm- Therefore, any would be error es. manager in involved and Baler’s sales cian less. sale, complaints made no were further seven, eight are six, of error Points techniсian; (3) Looney never by the overruled. writing, in notified Miner Baler challenge three of error two Points bale the orally, baler could not fact, sufficiency of the evidence stream; and, materials in his waste
249 jury’s findings regarding Clinics, 87, (Tex.1973); fraud and 499 S.W.2d 90 negligent misrepresentation. Having elimi- Chrysler Corp. McMorries, v. any nated recovery under these alternative 858, (Tex.App. 1983, writ) 864 — Amarillo theories, points we need not address these (both finding damage decisions similar is of error. fatally sues defective in the absence proper legal damages). measure of While five, point appellants appellants reply raise this their brief as argue refusing that the trial court erred argument point additional under of er give special inquiring a issue about the ror challenging five submission separate damages, items of as tendered general issue, damage appear this would Miner, assigning gen instead of error, be a appel new damage eral issue to each cause of action. lants required were to seek leave separate damage The court submitted a Tex.App. Court raise. 1st Dist. R. 1:74. for each issue cause of action on each defendant, special following similar appellants cannot on DTPA issue violation: complain of the lack of an in Special Issue No. 7: What amount of damages, struction on the measure of if cash, money, paid you if now do find they object failed to distinctly point out fairly reasonably compensate ground objection, and tender a damages, if any, SRS for caused substantially correct instruction in accord engaged in by acts Miner Asso- ance with Tex.R.Civ.P. 279. Osoba Bas ciates, you have found to be a sichis, (Tex.App.— S.W.2d producing cause n.r.е.); Houston writ ref’d [14th Dist.] Special violation], Issues 1 and 3 [DTPA Barnhill, Light Texas Power & Co. you have so found? (Tex.App. S.W.2d 334-35 — Texarkana Appellants argue that because the n.r.e.). writ ref’d specify was not asked to what award was objec- While made numerous conduct, related they to which are unable damages (as tions to the issues on well as challenge any possible recovery, special submitted), they to all 30 issues did alleged damages as well as some were “point distinctly” out of a lack (i.e., not recoverable losses attributable damages, compliance measure purchase landfill.) Bond, Tex.R.Civ.P. 274. See Wilgus v. The trial court has wide discretion in the (Tex.1987). Appellant Min- special manner in which issues are sub- *7 request er did and tender a list of all dam- mitted, and “it objectionable shall not be ages alleged by to be added to question general that a is or includes a issue; however, damage each this list was combination of elements or issues.” Tex. provide, provide, not intended to nor did it Furthermore, R.Civ.P. 277. appellants proper damages of measure each were not harmed because we have eliminat- cause of action. problem ed the possible of recovery Point of error five is overruled. disposition point our of error four. Also, damages while the to attributable nine, point In of error chal- might landfill losses been recover- have lenge awarding trial attor- court’s able, alleged damages, the other not chal- (1) ney’s grounds: based on three fail- fees lenged appellants, by are sufficient to segregate among ure to four fees port damages the amount of awarded. action, do not causes of two which allow (fraud neg- brief, attorney’s reсovery
In fees reply appellants argue their (2) ligent misrepresentation); failure to submitting trial court erred on issues segregate among co-defendants damages any limiting fees instructions (Mayfran) had regarding jury what because a third co-defendant was to consider it, arriving damage finding, rendered ab- at or without default fees; attorney defining itemizing requested any the elements to be sent award of considered, (3) citing attorney’s jointly and Jackson v. Fontaine's award of the fees
250
(4)
to mean those
that are
severally;
legal
and factual insuffi-
construed
ciency
supрort
to
evidence
recoverable at common law. Brown v.
Co.,
award.
601
Storage
American
Transfer
denied,
(Tex.),
449
S.W.2d
cert.
Appellants’ only objection at trial to the
575,
application of the Cavnar formula
trial court after the has verdict been being case,
returned. This Benavi-
dez’ trial amendment could not have any surprise prejudice
caused to Isles Company.
Construction
Benavidez,
Thus,
after verdict was held sufficient Be- CHAMBLESS, Appellant, John navidez. I prefer would hold that the failure to
plead Texas, pre-judgment did Appellee. interest The STATE harm for the same reasons that No. 12-85-00287-CR. post-trial amendment Benavidez caused no harm. This conclusion seems Texas, Appeals Court especially appropriate here because the Tyler. parties stipulated pre-judg the dates that Feb. 1988. interest, recoverable, begin. ment circumstances, upheld similar we have Rehearing Denied March take-nothing judgment unpleaded based on contributory negligence where the absence pleadings plaintiff. did not harm the Industries,
Compare Turner v. Lone Star (Tex.App . —Hous *9 n.r.e.). ton writ ref’d Dist.] [1st
If notice to the defendant after the sufficient,
has its reached verdict is as it Benavidez,
in I see no reason for