*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 independent 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 operation 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, modification, 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 sale 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 both 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 consideration 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 actual 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 allowed. 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 acts, 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 682 S.W.2d 257 660, tate, 664,244 S.W.2d 661 150 Tex. Shell, DTPA negligence a cause reviewing factual (1951). questions In pleaded the alternative action had been weigh insufficiency, we must consider against of its dealers. Shell Shell and one of, evidence, support both all the negligence, and the was found liable for finding. challenged The contrary supreme The for DTPA violation. dealer find that upheld unless we finding must be complaint by to rule on the court refused manifestly is so weak as the evidence recovery that the dealer about the double Estate, King’s unjust. In re erroneous or negligence result is the The trier of fact 661. 244 S.W.2d at severally jointly awarded were witness- credibility judge of the sole court found that the both defendants. The given their testimo- weight to be failing es preserved error dealer had not

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 baler 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 contents. 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 commercial 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 a 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 (paper 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 along 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 manager 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 technician; (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.e.); 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 recovery

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 support 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, 66 L.Ed.2d 474 U.S. 101 S.Ct. special attorney’s fees was that issue on (1980). recognized Benavidez support no submis- there was evidence to prejudgment statutory or contractual (which legal appellate services sion may predicated prayer interest on a anyway). Appel- to award declined general nei relief. Id. at have, therefore, right waived their to lants the DTPA nor contract before this segregate ther complain failure to about specifically prejudgment provides for the broad attor- Court by objecting fees to is on a Savings interest. Nor this a suit written ney’s fees issue. Home Ass’n. v. (Tex.1987). Guerra, ascertaining payable contract a sum S.W.2d Savings ruling bring would bar The Home date to it under Tex.Rev.Civ. certain fees, segregate (Vernon 1987). on the failure based art. 5069-1.03 Stat.Ann. fees, jointly attorney’s well as the award Republic Nat’l Bank Northwest See severally. because Bank, (Tex. 116-17 Nat’l four, point holding of error of our on 1978). signing a Appellee contends that DTPA and of contract causes of breach stating stipulation (signed parties), all remain, allow attor- both interest, any, prejudgment from when ney’s fees. accrue, appellants any objec waived prejudgment interest. tion appellant’s agree fourth “if argue very reason the term that the is ground insufficient that the evidence any” placed stipulation, in the $70,000, because the support an award of stipulation being con from prevent testimony by offered was only evidence agreement pay prejudgment sidered an Goforth, attorney, Daniel based signing do not find that interest. We showing computer charges of print-out on a any ob stipulation, appellants waived $51,507 attributed to this suit. in awarding prejudgment jection to the in re- Point of error nine sustained terest. insufficiency gards of evidence $70,000 attorney’s award error 10 is sustained. Point of fees. points of appellant’s Having sustained 10, appellants ten, chal (in four, part), we modi- nine error awarding prejudgment lenge the court’s the trial court accord- fy judgment of pleadings there were (1) interest because the total reduce ingly, argues he was Appellee $72,271 for interest. against appellant Miner awarded interest as a mat prejudgment entitled (DTPA) against appellant Baler law, Quality relying $6,010 ter Cavnar ($165,964 DTPA and $171,974 Parking, Control chal- that was not of contract for breach (Tex.1985), recognized attorney’s lenged), the award reduce *8 However, in prejudgment in tort. interest $51,507, severally, to fees, jointly and subsequent supreme a decision appellants take that reverse render court, holding in limited its Cav the court inter- way prejudgment nothing in the of Co., 726 v. Isles Const. nar. Benavidez the trial court judgment of est. The (Tex.1987). The Benavidez S.W.2d 23 modified is affirmed. not explained “we do that Cavnar pleading requirement for dispense with the Justice, upon COHEN, concurring sought at common pre-judgment interest Rehearing. Motion Denial of law, suspend Rule 301 nor do we submission, we sustained original Upon to the judgment to conform requires the court’s challenge trial appellant’s pleadings.” The actual at 25. On the interest. pre-judgment award of DTPA have been under the recoverable authority requiring any all, Benavidez Isles Constr. notice at unless there (Tex.1987), Co., 726 S.W.2d 23 we held that harm. pre-judgment not recover in- could Requiring specific pleading only a plead terest because it did not for it. Be- one of pre-judgment form an interest sets gener- prayer navidez held that a mere unnecessary trap plaintiff for the without relief, nothing, al which notifies of almost giving any protection valuable nor- support statutory will an award of or con- mally Moreover, situated defendant. while interest, pre-judgment tractual a but that requires Tex.R.Civ.P. 301 that a specific prayer required an pleadings, conform to the that rule should pre-judgment law award common inter- mechanically applied to reverse Benavidez, 726 est. S.W.2d at 25. judgments in the absence of harm. See Benavidez, uphold But for I would 81(a) Tex.R.App.P. authorizing reversal pre- trial court’s award of common law probably for errors caused the plead- purpose interest. The rendition of an improper judgment. ings give is to the defendant fair notice Awarding pre-judgment in- common-law the claim. Tex.R.Civ.P. 45. Even without terest pleadings was not “such notice, expect plain- defendants should rights appellants) denial as was pre-judgment will seek tiffs interest ev- reasonably calculated proba- to cause and ery possible basis, including at common bly did improper cause the rendition Moreover, plaintiff law. notice that judgment” 81(a). Instead, Tex.R.App.P. pre-judgment rarely seeks will interest af- the record reflects harmful denial fect the defense case. rights Nevertheless, occurred. I am pre-judgment interest join bound majority Benavidez require any proof does not evidentiary point of sustaining error 10. simply requires trial. It a mechanical

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, 726 S.W.2d at 26. notice

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