*1 Further, earlier, as we noted the Knowlton favor of Shell. Because we have sustained plaintiffs’ affidavits plaintiffs’ points attached their re- the Knowlton first and third sponse error, summary judgment to the summary motion judgment we reverse the they bought against showed that granted homes on them in favor of U.S. Brass (Knowltons), (Sells), March July plain- Celanese. We sever the Knowlton (Stones), November March 1988 tiffs and theft causes of action from the trial (Febbos), (Anderson). 4,May judgment court’s and remand them to the short, according summary to the judgment trial court. evidence, all plaintiffs of the Knowlton filed Except respect negligence to the 21 years suit less than they purchased two after plaintiffs appeal discussed in connection with their homes. above, number 01-90-00825-CV affirm we appeal, plaintiffs argue On the Knowlton judgment. remainder of the trial court’s negate U.S. Brass and Celanese failed to discovery rule. U.S. Brass answers that plaintiffs privity the Knowlton are with the former (litigants owners of their homes
Diehl), knowledge and the of the former imputed owners is plaintiffs. the Knowlton BARRETT, Barrett, John Sabrina Lars According to (relying privity), Bengston, Cynthia Bengston, Gilbert plaintiffs because the Knowlton filed their Bennett, Bennett, Karen Pauline Bor years lawsuits more than two after the for- ski, Cantu, Cantu, Joe Rosemarie Louie thefts, mer owners filed plain- Knowlton Casias, Sr., Casias, Patti John Christen tiffs recovery by are barred from limitations. sen, Kristy Christensen, Gudrun Colon- Because we have summary judg- found the Pomales, Kenny Dingle, Kathy Dingle, ment evidence privity insufficient to establish Ditges, Ditges, Farris, Kurt Elke Adam plaintiffs the Knowlton between and the for- Farris, Fish, Fish, Annie James Joan mer litigation homeowners the Diehl for Jackson, Cynthia Jackson, Charles Wil purposes of the affirmative defense of res Jacobs, Jacobs, Lang liam Anita John judicata, it is also insufficient to establish man, Love, Love, David Tammie Dan privity purposes of a limitations defense. Patterson, Pop, Pop, Melena John Peter Moreover, summary judgment Reaux, Reaux, Riley, Jeannette Charlie does not establish plain- that the Knowlton Riley, Jeffrey Schultz, Timothy Deanne tiffs filed suit years later than two after theft Sisk, Sisk, Stanfill, Allison Kevin Car cause of action accrued or after discov- Stanfill, Terdin, Cynthia Sy men M.C. ered or should have discovered the facts kora, Thumann, Steve Adelcida Thu giving rise to a action. mann, Jeffrey Turner, Turner, Tenisa We sustain the plaintiffs’ Knowlton third Yeates, Sonja Yeates, Ap Richard point unnecessary of error. It is for us to pellants Cross-Appellees, point discuss the fourth of error. Mandatory doubling damages UNITED STATES BRASS plaintiffs, The DTPA point in the fifth CORPORATION, Appellee error, contend the trial in failing court erred Cross-Appellant. to double actual excess of No. 01-91-01279-CV. $1,000 short, for each husband and wife. In $4,000 claim per couple, entitlement to Texas, Appeals Court of $2,000per couple trial awarded (1st Dist.). Houston point court. overrule of error be- Aug. 1993. plaintiff cause homeowners limited their Opinion Overruling Motions for appeal take-nothing judgment against Rehearing Oct. plaintiffs. the Knowlton Because we have sustained the Knowlton error,
plaintiffs’ first we reverse the
summary judgment against granted in them *5 P.C., O’Brien, O’Brien, Flem- Mike
Mike George M. ing, Hovenkamp Grayson, & Hovenkamp, R. Fleming, A. James Mark Houston, P.C., Moriarty, Moriarty, R. James for appellants. Zeidman, Nelson, T. & Kurt Mark
Nelson Zeidman, Rea, Houston, for R. Loreta H. appellee. BASS,* SAM DUNN
Before PRICE,** JJ.
OPINION BASS, SAM Justice. appellants appeal judg- from a final denying recovery the De-
ment them under (DTPA)1 ceptive Trade Practices Act granting appellee, States Brass United (U.S. Brass), judgment notwith- Corporation standing the on their DTPA cause of verdict brings cross-points chal- action. U.S. Brass recovery neg- their lenging ligence any potential of action and recovery on DTPA cause of action. *6 (1) are asked to decide three issues: un- appellants the who recovered Should negligence der be allowed to recover under (2) DTPA of action? the Should take-nothing appellants who four received under their judgment be allowed to recover (3) DTPA cause action? Should one or recovery appellants be denied more negligence cause of action? under their judgment of the trial court is affirmed The part part. The detailed and reversed disposition is forth in the conclusions at set opinion. the end this Summary History the Procedural 19,1988, appellants On these 27 December plaintiff among home- were several hundred companies, nine defendant owners who sued Brass, including alleging that misrepresented polybutylene the systems plaintiffs’ homes to installed [**] * The sitting by assignment. tice, Houston, The Honorable FRANK C. Appeals, Honorable SAM Court of sitting First District of Texas Appeals, BASS, assignment. First retired PRICE, District of Justice, at former Houston, Texas Court Jus- 1987). TexBus. & Com.Code Ann. 17.41 § etseq. (Vernon bodies, homebuilders, code city jury findings and officials. against able and nine whom plaintiffs brought causes of action based plaintiffs verdict was The 23 directed. DTPA, on violations of the negligence, and recovering negligence under and these four liability. They sought strict damages, claim- appeal judgment against them on their ing system leaked, the plumbing necessitat- DTPA cause of action. ing repair replacement causing and and personal injuries, including anguish, mental Summary of Relevant Facts
property damage, and diminution in the val- ue of their homes. polybutylene plumbing system A consists (Celcon) plastic fittings, po- molded insert The trial plaintiffs court divided the into lybutylene pipe polybutylene extruded from groups. two appellants These in a resin, copper and aluminum crimp rings. group of 36 homeowners2 who to trial went plumbing system by Plumbers install defendants, as a group. test except All placing crimp ring over the end of group, settled with before either pipe, pushing fitting pipe, inside the trial, judg- after the verdict but before using crimp then crimp ring tool for, ment was entered. U.S. Brass moved pipe received, fitting. around outside of the respect directed verdict with pressure crimp ring plaintiffs.3 to nine With four deforms exceptions,4the jury pipe fitting and the water-tight found in to make a favor these 27 their negligence fitting. seal with the compa- and DTPA The defendant causes of action. Two5 of did polybutylene plastic, these who nies either made the receive favorable findings, judgment fittings plastic, moved for notwithstand- molded from the or ex- ing verdict, denied, which was pipe. while U.S. particular, truded the U.S. Brass6 judgment Brass’ motion for on the verdict designed fittings and molded the from the respect with granted. to all four material, Celcon, provided by Hoechst Cela- (Celanese), Corporation nese pipe extruded Twenty-three plaintiffs of the for 36 moved polybutylene provided from the resin judgment in accordance the verdict and (Shell), Company designed Shell Oil elected to recover under the DTPA. The plumbing system, tool, designed crimping motions, trial court granted denied these assembling issued instructions for judgment Brass’ motion notwith- system using crimp tool. U.S. Brass standing the disregard verdict fittings wholesalers, pipe sold the questions through answers to one six *7 is, plumbing supply houses. The plaintiffs’ action, wholesalers on the DTPA cause of and wholesalers, plumbers, sold to other or judgment who- plaintiffs entered for the 23 based jury, had on the on ever else use for it. Homebuilders con- negligence verdict cause plumbing action. of The trial court tracted with subcontractors to fur- also entered a take-nothing judgment against systems of nish install plumbing the and in the plaintiffs: the four who did not receive favor- homes. number, purposes Loedler, For
2. Kirby, Kathy of this a and Cheryl husband Wanda Paul and Mallett, wife are one McQuaide. counted as because own a Kelly They and Mark and do Amstadts, single home. The were the the appeal. not Askins, Barretts, Cantus, Bengstons, the the the Christensens, Bennetts, Borski, the the Pauline Colon-Pomales, Patterson, 4. Gudrun Dan Steve Casiases, Campbell, Changs, Daniel the the Gu- Thumann, Sonja and Adelcida Richard and and Colon-Pomales, Dingles, Ditges, drun Farrises, the the the They take-nothing judgment Yeates. received a Fishes, Fitches, Jacksons, the the the action, negligence on the DTPA causes of but Jacobses, Kirbys, the Langman, the John the challenge judgment not do the adverse to Leodlers, Loves, McQuaides, Cheryl the the Mal- negligence them the of on action. lett, Patterson, Reauxes, Pops, Dan the the the Schultz, Sisks, Stanfills, Rileys, Jeffrey the the Colon-Pomales the Thumanns moved for a Thumanns, Turners, Sykora, Terdin and the the JNOV. and the Yeateses. Amstadt, bought company Qest 3. Robert and Toni James and Richelle 6. U.S. Brass a known as Askins, Product, Campbell, Kung fittings. "Qest” Daniel San and Sue which made the Celcon Fitch, Chang, Samual and Deborah is reference B.D. also a to U.S. Brass. production. Watson had not built fraction of total appellants homes the were of homebuilders, litigation. in by fittings the between 1978 examined of Brothers, Monarch, Jacobs, & Wood Fox witness, Chudnovsky, plaintiffs’ expert the Genex, American, NPC, Weekley, or Great by were a testified that the failures caused subdivisions, Champion, in various degradation and chemical combination of by 1982 and bought the between degradation chemical led He said the stress. appellants purchased 1988.7 Some of micro-cracks, that the formation builder; their homes “new” from the others degradation by accelerated chemical was purchased previous from or as them a owner stress, and the stresses were the imme- polybutyl- all foreclosure. homes had propagation. He cause of crack based diate systems. per- plumbing ene One hundred sampling opinion his on an examination fittings in cent of the four of the homes were case, fittings as well as a review in (Qest). made Two He he had not done of documentation. said fittings. homes had no U.S. Brass any testing determine if the mechanical homes, anywhere per- remaining from nine fitting producing forces alone involved percent fittings cent to 95 were made fitting installing produce and in would (Qest).8 Almost all of the U.S. Brass premature failure. But he also stated the experienced or more leaks homes one fail, system designed to designed, as was plumbing system. He properly even if installed. also stated physically What caused leaks? The examined, fittings he one leak that in the had conflicting. was evidence trial fitting pipe had had occurred where the employee Watson a former was away pulled each other because managed operations had who enough; crimp ring compressed hard wasn’t Elkhart, Indiana, plant and worked nonplastic happened others had because of analysis Qest fittings during on failure failures; very and in a few exam- company 1982. He retired from the at the ples, appeared in the splitting a residual had that, by deposition end of 1982. He testified that, pipe Chudnovsky also itself. stated opinion, system his the leaks in the were opinion, his unsuitable materi- Celcon an abuse, by misapplication byis caused or basically it reliable. al because fails and misapplication installation error. He defined He false that Celcon had 50- said was gauged as the use tools been durable, life, year and would not corrode. incorrectly gauged, applied tools Stivala, expert for the another witness fitting angle ring and at an or double fittings plaintiffs, visually examined things crimped, doing specified that were not if molecular tested them to determine actually against warned the litera- weight from that on inside was different ture, failing or com- follow instructions outside, indicating degradation mon sense. He also saw of chemi- had occurred in a result of chemical reaction attack, cal which in some Celanese confirmed He testified that Celcon was interior. most instances. The common attack came *8 fitting polybu- in a not as an insert suitable flux, assembly from solder used to ease the tylene plumbing system particular cleaning components, compounds. the and suscepti- community inherently it because is He also testified that “excessive forces” oxidation, long and as the water ble to so guarded to be against, needed but stated that any medium that could oxidize the contained design parameters plumbing sys- the the surface, it do so. He a Celcon would stated tem were such that the material was not any commu- fitting years not last would overstressed. He admitted some the nity its water and that goods problem that adds chlorine to production returned showed a However, he error, it and fail. ad- manufacturing but stated the in- would corrode degra- that the tiny minor mitted on cross-examination stances were and constituted 1982; only not 7. the June 8. U.S. Brass was the manufacturer Six of homes were built before systems. its com- polybutylene plumbing Two of built June The con- 10 homes were after petitors Vanguard Marine. were and Admiral are struction dates of homes unknown. beyond dation gone layer had not against surface were warned in the instructions. He testing and that he done had not testified deter- inner whitened surface of ifmine there was connection the fitting degraded between the Celcon—did not cause — degradation part. failure of and the cracks that leaks in the caused houses. say He was which fittings unable to of the Thames, expert another witness for the leaked, pointing out it was difficult unless a plaintiffs, fittings visually looked failed at person saw coming the sediment out from by Fourier transform infrared spectroscopy. tubing. underneath the Kardos testified that He determined white material on the Celcon in properly could be designed used fitting degraded inside of the was Celcon. water, parts potable installed includ- He compared also the area of fitting ing systems, pointing chlorinated water out ring where crimp had been and an area being that the same material used in com- crimp ring. where there was no He stated pression fittings problem. with no cracked, both were where there crimp- representations What did U.S. Brass ing pressure and where there was not. He make? testified that Celcon was not suitable for use fitting as a application, that it was not repre- Manis had been a manufacturer’s reliable, and would not last when sentative for from 1979 to 1984. exposed hot, chlorinated water for an ex- It up plumbing supply was his function to set period tended of time. He admitted that in directly houses. He did not sell builders fitting he examined plumbers. under the paid electron He was a commission. microscope, gone had not through presentations crack He made polybutyl- about the fitting yet. bodies, the wall of plumbing ene system city to code officials, builders, contractors. Kardos, expert witness, Celanese’s looked meetings Manis said he sat in on with the fittings plaintiffs’ from all the houses. He Plumbing Houston Review Board two or fittings testified that causes failures times, three gave Qest the board cata- gone through cracks that had the wall logs. He did not recall the dates of the fittings. There were two kinds of meetings. meeting Manis recall did not cracks: those that ran from the inside to the any of the builders of the homes involved in outside of fitting and those that ran from litigation, except for Great American. the outside to the inside. He stated those agreed probably plaintiffs’ Manis he used that ran from the inside the outside were 117,118,120,121, making exhibits and 122 in prevalent more primarily located under- presentations plumbing system. about ring. neath crimp opinion, In his He was asked: overstressing, cracks came from which had Q: polybutylene long plumb- How will a (1) major four overcrimping sources: ing system last? You were asked that (2) ring; placement crimp ring too question you gave out these brochures (3) shoulder; close cocking of the tool before, right, [PX 117] sir? (4) tool; during bending closure of the out, gave yes. A: I them fitting the entire nipple after the tube and Q: And the “Tests answer was: inde- crimp have been installed. He said a crack pendent testing laboratories and authori- did necessarily go way all the through project years. ties life of 50 normal Over the fitting fitting wall at time a million recreational houses and struc- overstressed. If the stress was high tures have been built manufactured us- enough keep going, temp- the crack later ing polybutylene plumbing within the last performance erature and fluctuations would *9 years problems 10 have and service been slowly through stress and load the crack basically your virtually nil.” That was an- system, causing ultimately go the crack to swer, right? through fitting some months or even Yeah, might A: that have been. years after installation. Kardos was unfamil- fitting iar with would manufacturers’ installa- Manis also admitted he have used a (PX 120), Qest tion opinion catalog instructions had no and he would have and about whether representations the installation errors or made the kinds of it dis- mistakes
615 During plumbing a contractor. quicker, easier Irwin is positive connections cussed— 1981-1985, polybutyl- installed company his and corrosion. no systems housing, in plumbing new tract ene 117, Qest question-and- a Plaintiffs’ exhibit did not places, although he among other Qest polybutylene brochure about the answer plumbing any know if he had installed (1) was plumbing system, states: there no He that he houses. testified plaintiffs’ (2) system danger damage, of freeze Plumbing meetings before the participated pro- for carry boiling could water or steam city of Board for the Houston Review longed debilitating damage periods without approved plumbing The and board 1982. (3) agencies system, testing projected city In products for use in the of Houston. system, years life of for normal and meeting in particular, he remembered (4) polybutylene there was corrosion and polybutylene where stated Shell was most and bases. resistant acids system use resi- plumbing was suitable for 118, question-and- Plaintiffs’ exhibit also a systems in Houston. He plumbing dential Qest, answer brochure from contains sub- identify attendee at did U.S. as an not stantially the as PX 117. same information meetings Brass made or state that U.S. Qest 120 and 121 are a Plaintiffs’ exhibits if representations. He did not recall systems catalog, polybutylene plumbing dat- representatives came his from U.S. Brass They Qest ed characterize June 1979. employees how to in- company to show his crimp tools as better and more reliable than plumbing system. polybutylene stall the systems; pro- other tool state Celcon employee of me- Clements was a former vides no-leak construction and is inert that installed air condi- chanical contractor chemicals, eliminating corrosion. Plaintiffs’ systems heating, plumbing tioning, and Qest polybutylene plumbing 122 is a exhibit homebuilder, early In the Fox & Jacobs. systems catalog, August dated 1981. It 1980’s, investigating poly- was the contractor Qest systems warrants will corrode butylene systems if it plumbing to determine years leak for when installed accor- system inexpensive was more a better and warranty specifications. dance with the The currently than in use. testi- ones Clements “potable systems.” is limited to water It him Brass told representatives fied repeats the information of earlier bro- literature, 117,120, including PX showed him that the tools are and Celcon chures reliable essence, poly- stating, and is corrosion-resistant. copper butylene system better than simpler install, would not be affected or Runyon has worked for Brass since chemicals, exist in a damaged by and could manager product development 1981 as en- years problems. family home for 50 without gineering polybutylene for its product line. represen- employer relied on the He said his January he assumed Watson’s re- deciding use Brass in tations of U.S. sponsibility analysis. for failure He testified product. testimony From of Tammie joint deposition that had made can inferred that Love and Annie Farris it be presentations approval hearings. at code Frymire original contrac- place hearings time homes, built tor on Love and Farris identity specified. code bodies was Fox & Jacobs. provided He a limited said 25-year warranty polybutylene plumb- following ap- on its homebuilders built Monarch,9 Jacobs,10 ing warranty system, pellants’ and that the was made Fox & homes: Brothers,11 builders, customers, Weekley,12 Great Ameri- unspecified and man- Wood can,13NPC,14 Genex,15 Champion.16 representatives. ufacturers’ Christensen, Barrett, Borski, Casias, Bennett, Dingle, Ditg- 13. Fish. 9. Pauline es, Schultz, Terdin, Jeffrey Sykora Tur- ner. 14. Colon-Pomales and Sisk. Gudrun Farris, Love, Langman, 10. John and Reaux. Pop. 15. Jacobs, Jackson, Bengston, and Stanfill. *10 Cantu, Patterson, Thumann, Riley.
12. 16. Dan Yeates. Ashford, Brothers, found no in concerning formerly evidence the record of Wood re- NPC, Genex, Champion what influenced or having membered contact with Shell polybutylene' plumbing systems to use in the Vanguard representatives. He seen homes built. is no While there evidence Vanguard sales brochures and the de- stated concerning what influenced Great American buy sys- polybutylene plumbing cision to polybutylene system, plumbing to use Man- partly tem was based on such He literature. ís, representative testified any having did not recall contact with U.S. he met with that Great American. Brass. Spears, a employee, former Monarch testi- Weekley, Weekley David the owner of by deposition fied that he did recall Inc., Homes, testified that he was introduced receiving any representations from U.S. polybutylene plumbing systems trade at concerning polybutylene plumbing Brass starting in in placed shows 1982. It first was system. attending He pro- remembered homes he built While he was presentation talking motional at Shell and sure, completely display he believed the Chantos, a representative manufacturer’s for polybutylene plumbing the trade on show Vanguard. Vanguard competitor was a systems sponsored by found was Shell. He Brass polybutylene pipe and also made plumbing system approved by out the all was fittings. and Celcon He said he relied on and, bodies the code because code bodies Spears Chantos Shell. remembered it usually very pro- are approval strict being indicated him polybutylene that a cess, Additionally, gave him comfort. plumbing system application was suitable for plumbing system was manufactured in Monarch homes and that it corrosion was large companies, and seemed to be a reason- Treece, resistant. also a Monarch former copper galvanized able alternative employee, by deposition testified that Mon- pipe freeze. that could representations arch relied on Shell’s de- ciding polybutylene sys- to use the plumbing Weekley testified that him the Shell told He speaking tem. did not remember use, product suitable for his desirable prob- until and that concerned Houston, good. residential use and was system. with lems operations He also that his director of stated Davis, a former employee, Wood Brothers polybutylene sys- on plumbing did research by deposition testified that he first learned of tems, spoke with (Vanguard’s Chantos polybutylene systems at a plumbing home Weekley po- representative). decided to use building convention 1982. He did not lybutylene plumbing systems based on spoke, recall with whom he he but did not from the trade show and his information dealing anyone remember from U.S. operations Weekley also director’s research. Qest. representa- He stated that marketing person- testified that his sales and suppliers tions of the manufacturers or pro- passed representations nel polybutylene plumbing system pri- plumbing systems to polybutylene moters of mary why adopted reason Wood Brothers verbally dis- homebuyers, through both polybutylene, but he recall who did not plays at offices. sales suppliers the manufacturers or were. He polybutylene represented as said any appel- There is no evidence that freeze, expand able to of a being the event any representa- lants heard U.S. Brass’ lived, buildup, long to mineral and a resistant tions, any of its brochures or litera- saw product. quality exception ture. of Fox & Jacobs With American, there is no and Great Cooper, also a Brothers em- former Wood any appellants’ homebuilders ployee, polybutyl- said the decision to use representations, or any heard of U.S. Brass’ Davis, system ene rested with any In his saw of its brochures literature. presenta- Davis based his decision on closing arguments, counsel together. Vanguard made Shell and tions their DTPA cause of action represen- not recall summarized He did contact with tatives U.S. Brass. follows:
617 denied); TexR.Civ.P. 301. directed in testified writ plaintiffs this case have A special findings companies proper is when issue they upon relied like Cela- verdict Brass_ Shell, they support have in the nese, way re- are immaterial or no 701; Eubanks, at they home 420 upon bought them evidence. S.W.2d lied systems. They Winograd, 811 plumbing didn’t S.W.2d with their roles companies those or their know about judg- for ground In the of its motion first in their internal memorandums. it or verdict, notwithstanding the U.S. Brass ment They that. received They had no idea of disregard jury’s the argued the court should of the chain of distribution because one there was question answers to because system they years found out any representations it made no evidence that did later would woi’k and after any representation made plaintiffs or to the false, that, out the after found about plaintiffs which part transaction to misleading deceptive practic- acts argument This is tanta- were consumers. group companies es from some- of this asserting jury’s affirmative mount to for one in the form of counsel [another causation, violations, findings on DTPA immediately plaintiffs], they brought damages plain- immaterial the because today. on lawsuit that we’re here the test” tiffs did meet “consumer-status error, appellants In points of the assert DTPA, necessary recovery for a under general- disregarding the trial court erred in Supreme Brass claims the Texas which U.S. ly jury’s questions one answers to motion has enunciated. In their for Court six, through disregarding answers such entry judgment, plaintiffs argued they were because the evidence established test.” there is such “consumer-status consumers under the DTPA as U.S. grounds seeking In next for disregarding such answers because verdict, notwithstanding judgment legally to support evidence was sufficient there no evidence that Brass contended automatically findings, failing treble false, engaged misleading, deceptive it ver- their actual because the 1977 engaged in an practices, acts or it final, applied. sion of the DTPA In the action or course of action. unconscionable point, appellants eleventh contend reviewing whether trial court erred in granting trial court erred mo- U.S. Brass’ judgment for granting the motion notwith judgment tion regarding on the verdict standing the “no verdict based on evidence” appellants four of the because the evidence grounds, we must determine whether there is conclusively proved as a matter law that jury could have upon evidence which the U.S. Brass violated the DTPA. Temple findings. v. In made its Navarette cross-points, challenges In two (Tex. Dist., dep. 706 S.W.2d Sch. judgment favor of some of the 23 1986). light in the We review record negligence ac cause of finding, considering most favorable cross-points, tion. In six U.S. Brass affirma support only the and inferences that evidence tively judgment not defends trial court’s disregarding finding the evidence withstanding the in its verdict favor on finding. contrary to the Id. and inferences appellants’ DTPA of action further competent than a scintilla of If there more factually insufficient asserts the evidence was finding, jury’s then support jury’s findings. several of the judgment notwithstanding the verdict 324(c). Tex.R.Civ.P. Id. be reversed. will grounds, asserted In its final Notwithstanding Judgment the Verdict two, questions answers to judgment notwithstanding the A four, 5A, three, five, and six were immaterial proper only verdict verdict is when directed DTPA it not violated the because Winn, proper. would have been Eubanks v. (Tex.1967); granted Brass’ motion Winograd The trial court Auth., City on the basis of “consum- for JNOV either Clear Lake Water argument or because found (T ex.App.—Houston er-status test” [1st Dist.] *12 618 support
there was no evidence to nor application section 17.45 limits the findings acts, deceptive deceptive or unconscionable DTPA practices by committed respectively, response questions persons goods one who furnish the or services on and 1A. complaint which the is based or describes against may bring whom a consumer suit.
Elements
a DTPA
Cause of Action
Cameron,
a transaction in
or services.
It does
subject
DTPA,
provisions
may
to the
purport
to define a consumer in terms
subject the creditor to a transaction to liabili
person’s relationship
of a
party
he is
ty
17.45(4)
under the DTPA.
suing.
nothing
Section
does
more
persons
than describe the class of
who can
Knight,
plaintiff
entered into a re-
bring a
suit for treble
under sec-
tail
purchase
installment contract to
a used
say
tion 17.50. It does not
who a consum-
International
dump
Harvester
truck from a
er can
decep-
sue under section 17.50 for a
company called Etex.
any, [plaintiffs’ names]? testimony represen- The of Manis and Clements and Thames is some that such evidence 117, 118, 120, 121, plaintiffs’ exhibits and 122 tations There is no evidence were false. NPC, Genex, are some evidence that or U.S. Brass made whether homebuilders representations Champion representations to the homebuilders received from Great Jacobs, Representatives American and Fox & about lon- U.S. Brass.20 of homebuild- Monarch, Brothers, gevity susceptibility Weekley21 and lack of to corrosion ers Wood polybutylene plumbing system.19 they of its had no recollection of testified Stivala, testimony Chudnovsky, promotional representations literature or Farris, Love, Barrett, Bennett, Borski, Langman, 19. The and Reaux built the homes 21. Monarch Casias, by Schultz, Terdin, were built tensen, Fox & Chris- Dingle, Ditges, Jacobs. and Turner by and Fish homes were built Great Bengston, Wood Brothers built the Jack homes. son, Jacobs, American. Weekley and Stanfill homes. built Patterson, Thumann, Cantu, and Yeates 20. NPC built the Colon-Pomales and Sisk homes. Pop Champion homes. Genex built the home. Rileys. built the mobile home of the
623 However, damages. is some Brass; they there evi- pro- lants’ recalled representations representations Brass’ motional literature dence that U.S. appellants Either the Vanguard plumbing products and Shell. to be used in caused its any questions about what were not asked and Fox American & homes built Great representations them or made to Accordingly, there is some Jacobs. seen, or testi- what brochures producing representations any repre- fied heard or seen they had not Casiases, the Chris- damages cause of Brass. sentations from U.S. Fishes, tensens, Farrises, Lang- John man, Loves, the Reauxes. “efficient, exciting,
A an producing cause is cause, contributing which in a natural point appellants’ third We sustain the injuries sequence, produces Casiases, the Chris- error as it relates to the Media, complained of.” Southwestern Bell Fishes, tensens, Farrises, Lang- John (Tex. 488, Lyles, Inc. v. 825 S.W.2d 496 Reauxes, man, Loves, and the over- 1992, denied); App. Dist.] writ [1st — Houston it as it the remainder of 23 rule relates to Estate, Jacobs, Danny Darby Real Inc. v. appellants. 1988, (Tex.App. S.W.2d — Dallas Texaco, Inc., denied); writ MacDonald error, In their fourth (Tex.App. Corpus — court erred in assert the trial writ). 1986, no has Producing Christi cause question disregarding answer factual also been described as causation. Ja judgment notwithstanding granting 1A and cobs, 716; Hycel, Inc. v. 760 S.W.2d legally the verdict because the evidence Wittstruck, (Tex.App.— sufficient to the answer that U.S. dism’d). Waco writ engaged in unconscionable act or an representa- There is no evidence that the producing course of action that was fittings tions of U.S. Brass caused its damages. of their pipe in the to be used homes built separate charges plaintiff, jury each Brothers, Monarch, NPC, Weekley, Wood following, jury question 1A Genex, Therefore, asked Champion. there is no responded affirmatively for each of the 23 any misrepresentations evidence that of U.S. producing appellants: cause of appel- Brass were those
QUESTION 1A NO. parties engage any action or Did of the listed below unconscionable damages, [plaintiffs’ producing any, of action that a of if to course names]? Chastain, 582; (Tex.1988); 700 S.W.2d
The DTPA defines an “uncon 17.45(5)(A), § or course of an act Tex.Bus. (B) scionable action action” as Ann. & Com.Code (Vernon 1987). which, practice supreme court has em person’s or to a detriment: (A) action advantage knowledge, phasized lack unconscionable must takes of the of grossly to a the consumer ability, experience, capacity person advantage of a to take of (B) “gross” degree, that the term grossly degree; in a unfair and said unfair results meaning glar of given ordinary gross should be disparity between value received noticeable, complete, and un ingly flagrant, paid, and in a in consideration transaction Chastain, at 583. It mitigated. volving of consideration. Brown v. transfer Inc., took Ford, enough the defendants un is not Area Galleria purchasers, advantage supervisor telling but the worked under his him to fair advantage grossly destroy couple pages report. must be Id. at the last unfair. false, misleading, deceptive 582. Like “a instance, Tripp also stated that in one actionable, practice,” alleged act or to be Visaba, California, bags he found of “T” fit- producing unconscionable act must be a tings factory that had been sent from the Miller, 739; damage. cause of 648 S.W.2d at fitting being “T” with one side of the too 17.50(a)(3). § Tex.Bus. Com.Code Ann. & arrangements to small. U.S. Brass made According appellants, charge to the to bags replace take the back and them with 17.45(5)(A). jury on section based good parts. Tripp testified that he a lot saw appellants point deposition testi- plumbing jobs, “sloppy” and it was obvious Gottfried, Celanese, mony employee an causing problem. what was He also saw Brass, Tripp, employee former of U.S. good plumbing jobs, yet there were stib prove to the unconscionable action or course leaks. of action of U.S. Brass. testimony From the of Gottfried and al- Gottfried testified Celanese had Tripp, alleged U.S. Brass’ unconscionable ac- ways recommended its customers being tion or course of action consisted of prototype part make a check it nonresponsive to Celanese’s recommendation expected under the severest conditions sharp fit- to round the internal corners of against premature end use to ensure failure. Visaba, sending fittings tings, defective He said that Celanese had recommended California, attempting destroy the last application in Celcon to U.S. Brass for page report, Tripp’s which stated that plumbing system, provided Celanese’s recom- problems be enormous stib needed to over- having design mendations to do with come and recommended a serious research molding techniques were followed. Accord- development program perfect Gottfried, ing major his recommendation tools, fittings, rings. Brass’ There is no report found in a June “sharp or de- evidence that internal corners” always sharp to round internal cor- produc- fittings fective sent to were a Visalia prevent possibility breakage in ners to ing in the cause of leaks those corners. Gottfried testified it was his plumbing system. impression respon- that U.S. Brass was not Tripp’s report meeting he summarized sive to recommendations concern- Celanese’s 13, 1982, January had in California on ing molding techniques. house, supply Lange Plumbing Supply, a Tripp product development specialist awas Homes, builder, Budget Plumb- Ward for in a area on the seven-state plumbing Budget. ing, a contractor April west coast from December 1980 to agenda There were two items: two recent Among 1983. Texas was not in his area. plumbing Budget homes and reim- failures things, inspected plumbers other he the work Lange bursement to for defective doing in the field. He testified that as parts. continually seeing prob- time went he was *18 fittings Budget brought eight in types main failures and Ward lems. He said the of (1) fittings recently The were pipe pulling fitting that had failed. were: the off (2) intact, or three homes. ring ring snapping or from either two homes with the the (3) coming Budget’s was not reimbursement fracturing, the actual barb concern and the but identification of fitting. out of the He felt the failure of the from U.S. excessive, future problem how to correct it to avoid fittings was and felt there was a and Qest plumbing installed discrepancy company between what the failures. Ward had homes, the approximately taught product systems him about and what he the 15 of those problems limited to 10 or seeing point, Tripp in the field. At one homes, 18, 1982, mostly Tripp took some in one tract. report January a dated to his sent fittings, the summarizing seeing measurements of broken supervisors what he was there inspection a concluded questioning system. He testified he from visual influencing the failures. might four factors got telephone from someone who be a call those, deep ing judgment notwithstanding a the verdict on the barb not One of ribs Casiases, against appellants, enough, already seven of the had been addressed Fishes, Christensens, Farrises, Two deepening Brass the ribs. of those Loves, Langman, the and the Reauxes being properly adjust- John related to the tool not on their DTPA cause of action. ed, plumber or a either as result of error problem design tool or instructions. Some point first of error appellants’ rings, the failures involved unannealed of jury’s questions to summarizes the answers recently stopped using which U.S. Brass had six, of through one sets forth the standard rings. of in favor annealed JNOV, and without review for a concludes report of argument does not discuss status record that the evi references plumbing parts the defective returned support dence was substantial previously, Lange findings. some 10 months but do not consider it. We Tex. R.App.P. 15,000 (f). 74(d), any event, Lange’s does discuss stock of some its sub In previous fittings rings, Lange and annealed which in our discus stance addressed two, Tripp three, purchased years points two recom- four before. sion of of error cross-points our of accept mended U.S. Brass these back in ex- discussion below the change for new material. The record does of U.S. Brass. what show action U.S. took appellants’ We also do not consider the
response to Tripp’s recommendation. seven, five, nine, points eight, of error grant court did because the trial whole, Tripp’s report
Taken as a of events judgment notwithstanding the verdict based provides in California no evidence that such jury’s respons- on no evidence to a producing damage events were cause of three, five, two, four, questions and six. es appellants, or that U.S. took ad- response appropriate Where to U.S. Brass’ knowledge, vantage ability, of the lack of cross-points, appellants’ consider we will experience, capacity person of a reply points. points of as error thereby grossly degree, committing unfair an unconscionable action. Mandatory Damages Treble appellants’ overrule fourth point We of error, point In their sixth of error. appellants the trial erred contend court appellants are We have found the consum- automatically failing treble the and, therefore, their ers sustained second actual under the DTPA because point of error. Because we have concluded applied DTPA mat as a version any there was no evidence unconsciona- this error point ter of law. consider act of producing ble U.S. Brass was a cause grant have found it was error to because we and, therefore, damage appellants notwithstanding judgment the verdict error; overruled fourth against appellants. seven of there because we have concluded was no 17.50(b) part In section read false, misleading, decep- follows: producing tive act of U.S. Brass was a (b) section, under each a suit filed and, damage to 16 of the there- may prevails obtain: consumer who fore, point of sustained their third error for (1) amount dam- three times the actual only appellants, hold seven we the trial attorneys’ ages plus costs and fees court properly judgment granted court notwith- amount of in relation reasonable standing against appel- the verdict 16 of the expended.... work Barretts, Bengstons, lants: the the Ben- *19 143, 1973, R.S., Cantus, 21, Leg., netts, Borski, May Act of 63rd ch. Pauline the the Din- 322, 1, Jacksons, (emphasis Ditgeses, § 1973 327 gles, the Tex.Gen.Laws Jacobs- 1979, added). es, Schultz, Pops, Rileys, Jeffrey This section amended 27, 1979,22 Sisks, Stanfills, read as fol- Sykora, August effective Terdin and grant- erred in lows: the Turners. The trial court 1327, 4, 13, 1979, R.S., 603, Leg., § A subse- Tex.Gen.Laws 1330.
22. Act of June 66th ch. 1979 626 1980’s,
(b) section, plumbing systems in the could In a under this each suit filed against prevails may not have had a cause of action consumer who obtain: plumbing sys- the manufacturer of the (1) damages the amount of actual found they complain, before then. tem about which In the court the trier of fact. addition portion of shall award two times that point sixth of We overrule damages actual that does not exceed error. If the trier $1000. of fact finds conduct was committed of defendant Patterson, Colon-Pomales, The may knowingly, the trier of fact award not Thumanns, & Yeateses more than three times the amount actu- of Appellants damages al in excess $1000.... of error, point appel- In their eleventh 17.50(b)(1)(Ver- § & Ann. Tex.Bus. Com.Code granting lants assert the trial court erred added). Supp.1993) (emphasis non new judgment motion on the ver- U.S. Brass’ prospectively only. wording applied It did Colon-Pomales, Patter- respect dict with affect, substantively, procedurally or son, Thumanns, and the Yeateses be- part or in cause of action that arose whole conclusively proved cause the evidence as a 27, August before 1979.23 It is clear Brass violated the matter law 27, 1979, mandatory August before it was DTPA. recovering plaintiff that a receive the award Littleton, damages. jury questions “no” to of treble Woods answered (Tex.1977). 662, 1A, if en For causes of one and which asked U.S. Brass S.W.2d date, arising gaged any misrepresentations action after that the trier of or uncon discretion, fact, producing could award additional scionable actions Colon-Pomales, Patterson, damages damage to exceed three times the Thumanns, appellants amount of actual awarded in excess or the Yeateses. The $1,000, judgment notwithstanding if it found the defendant’s viola- filed a motion for knowingly. Thu- committed Martin v. on Colon-Pomales and the tions were the verdict Realtors, Inc., 446, They postjudgment motions 447 manns. filed no McKee S.W.2d (Tex.1984). Yeateses, nor on Patterson or the did object judgment against Patter any way assert, brief, in accordance with the son or Yeateses record, without reference to the verdict, object to U.S. nor did representations acts or and unconscionable judgment on the verdict Brass’ motion for concerning the course of action U.S. Brass Colon-Pomales, Patterson, respect polybutylene plumbing system began before Thumanns, According or the Yeateses. 27, 1979, date of the August the effective concerning ly, preserved has not been error They to the DTPA. do 1979 amendments Tex.R.App.P. Patterson and the Yeateses. in the record in not refer us to 74(d). 52(a), appellants’ ar address the Therefore, support of assertion. we gument only as it concerns Colon-Pomales error. need not consider their Sal the Thumanns. Garcia, 197, 200-201 dana v. (Tex.1955). legal appellant attacks the anWhen finding issue
Furthermore, sufficiency to an of an adverse our review of the record proof, first we representa- on which it had the burden earliest date of a shows that the supporting 120, record for evidence Qest catalog June examine the PX dated tion was ignoring all evidence jury finding, while 1, that home- There is no evidence 1979. contrary. v. Marathon Oil Plumbing Sterner Houston Council builders or the (Tex.1989). Second, Co., All catalog August 1979. saw this before support the fact no evidence to pur- if there is appellants negotiated for answer, entire record must then the polybutylene finder’s their homes with the chased R.S., 13, 1979, 17.50(b)(1) Leg., 66th ch. June quent in 1989 23. Act of amendment to section 9,§ important 1979 Tex.Gen.Laws to our discussion here. is not *20 false, Therefore, any mislead- Brass. contrary proposi see if the U.S. be examined to Id.; practices or ing, acts or uncon- deceptive a matter of or tion is as law. established (Tex. Watts, 694, by Brass could not have Holley scionable action U.S. 1982). damage. producing a cause been supports jury’s the in record evidence the 220.13 that Plaintiffs’ exhibit showed Thumanns. finding adverse on the fittings all of in the home of Colon- the eleventh We overrule the by Vanguard, by not Pomales were made of error. however, Brass; in pipe all of the the U.S. by home U.S. Brass. Colon-Po- was made Brass of U.S. Cross-Points fittings in males that the her home testified agreed that some of the were bad. She also cross-point, Brass contends In its first U.S. fittings from her removed home were denying in the trial court erred motion expert, Chudnovsky, given plaintiffs’ the judgment notwithstanding the verdict and to Chudnovsky did not the to examine. discuss questions disregard jury’s answers to particular, fittings in but of Colon-Pomales seven, 7A, respect eight, and nine with to the explained fittings he the failure appellants’ negligence cause of action be- attack combination of chemical and mechani it as a matter of law cause was established fitting. cal on the We have found no stress appellants recovery are barred record, appellants and the do evidence in the on of limitations. based the statute U.S. any, in us to that shows the leaks refer plead Brass the affirmative defense limita- by the home of Colon-Pomales were caused tions, relating negli- but limitations issue Therefore, pipe by made U.S. Brass. jury. gence was not submitted false, misleading, deceptive acts found, jury response in Because the practices by or unconscionable action seven, negligence of question producing not have been a cause could proximate cause of of damage to Colon-Pomales. The evidence plaintiffs, required ques- answer supports in the record adverse eight. Question eight asked: tion finding on Colon-Pomales. you [plaintiffs’names] Do did not find 220.38 all of Plaintiffs’ exhibit showed that discover nor in the exercise reasonable fittings in the home of the Thumanns discovered, neg- diligence, have should by Brass; by Vanguard, made Defendants, ligent any you if conduct of pipe by half of in the home was made found, appropriate to [date have before by Vanguard. U.S. Brass and half Mr. Thu- particular plaintiffs]? leak, mann their home had testified one answered, jury plaintiff, For “Plain- each garage. which in occurred There is no discover, have tiffs did not nor should discov- testimony direct about whether the leak oc- ered.” curred fittings pipe. as a result of the However, negligence argues that a Thumann said he had wrongful plumber in the leak to of action when the act ef- replace come after accrues ones, plain- when the fittings copper suggesting injury, regardless fects an injury, Vanguard fittings tiff learns of and that discov- were the source of the ery this case. There- inapplicable in the rule is leak. have found fore, record, appel- according do not refer us to to U.S. leak more than two any, in the lants who had a first that shows home of leaks were barred by years they before filed suit24 pipe caused made Thumanns were 1982; July they bought bought Fishes their home in 24. their home December The Cantus 1986; 1984; 1986; they April they February had their filed suit their first leak in first leak had 22, 31, bought they The Jacksons their December Casi- on October 1988. filed suit on 1988. The 1983; 1984; they April they September had their first bought ases home in their home 1986; 1984; they January suit on September they leak in filed Decem- their leak in filed suit first bought home August bought ber The Jacobses their on 1988. The Farrises 1988. 1983; 1982; August they first April they had their leak home had their leak in first 1983; 1982; May May filed suit on 1988. December filed suit December *21 628 1986) asserting (February March
the statute of limitations from
their
their leaks
1985 and
negligence
resulting damage
claim.
and the
occurred more
they
years
than two
before
filed
suit
negligence
A cause of action for
22,
Accordingly,
agree
December
1988.
we
governed by
two-year
statute of limita
negligence
with U.S. Brass that the Loves’
tions. American Centennial Ins. Co. v. Ca
by
cause of action was barred
the statute of
Co.,
246,
nal Ins.
810 S.W.2d
255
limitations as a matter of law.
(Tex.App.—Houston 1991),
part
[1st Dist.]
aff'd
(Tex.1992);25
part,
rev’d in
M.C. Terdin identified several were removed from their home. His testi- cause none of the evidence shows whether mony Brass, does not indicate who made the fit- Vanguard, the leaks came from U.S. tings, if all or even the leaks were caused Marine, Wrightway fittings. We Admiral fittings. testimony cracked His does show cross-point only discuss this relates damaged that some the same areas in leaks those of the 19 for whom we sustained the the home. Farrises, point of error: the third Fishes, Langman, and the John Loves.32 pieces pipe Turner identified tak-
Tenisa leaked; pipe en out of the house that had original peti- In their eleventh amended pieces jury. testi- were tendered to the She tion, plaintiffs asserted that U.S. fied one leak was the result of the cracked Marine, Vanguard, and other manu- Admiral pipes percent pipe. The Turners’ were 100 plumbing components facturers of the violat- Vanguard according damage to their sum- *25 (1) by: representing goods ed the DTPA mary. pieces of She also identified a failed sponsorship, approval, had char- or services leak, fitting pieces that caused a and the acteristics, uses, they and did benefits jury. were tendered to the There was no (2) have; representing goods or ser- fitting indication if the made Van- standard, quality, particular vices were of a guard testimony or Brass. Her shows U.S. fact, another; grade, or when in were of damaged that some of the leaks the same (3) failing and to disclose information con- areas the house. cerning goods or services that were no We conclude that there was and known at the time of the transaction jury could have determined which in- such failure to disclose information was Brass, fittings pipe and made to U.S. consumers, including to tended induce by Vanguard, the exclusion of those made plaintiffs, into a transaction into which leaked and caused the homes and to had the information would not have entered property appellants personal of the 19 dis- been disclosed. cross-point. cussed under this cross-point, sustain Brass’ second We U.S. (in jury questions one and The was asked Loves, except negli- as it concerns the whose 1A) un- deceptive practices or whether gence action have found cause of we barred Shell, Celanese, U.S. conscionable actions by limitations. Brass, producing cause Vanguard or were damage and the Loves. to the Farrises argument to its in cross- Similar affirmatively jury for all de- answered two, cross-point, point in its third U.S. fendants. For both the Farrises and contends the trial court did not err disre Loves, jury percent allocated 15 garding jury’s finding question five (what percent liability to U.S. Brass and 15 money compensate the sum of would Vanguard. plaintiffs for the defendants’ violations of the Qest, Marine, Vanguard, 31. The 19 are those Admiral discussed in con- 22% 45% cross-point nection with U.S. Vanguard. Brass' two. See pipe The Loves was 100% note 29. fittings Vanguard and had that were 33% 67% Qest, pipe specified. maker was not We and the fittings 32. The Farrises had that were Van- 50% third of error also sustained Qest, guard pipe and the maker was not 50% Christensens, but U.S. Brass on the Casiases and specified. fittings The Fishes had that were 90% cross-point them. does not address this Qest, pipe White and that was 10% 100% Langman Qest. fittings John that were 33% dam- them for other reimburse homes and to Langman, question respect to John With Shell, ages. deceptive practices of if the one asked Celanese, Brass, and Admi- Vanguard, acknowledges, As U.S. dam- producing cause of ral Marine are not admis settlement generally, offers of jury “yes” to answered age to him. LaCoure, 820 v. LaCoure sible in evidence. Brass, Celanese, Vanguard, Shell, 1991, 228, Paso (Tex.App. 235-36 S.W.2d — El Question 1A Marine. “no” to Admiral but denied); Covington, 795 Evans v. writ Shell, actions of if the unconscionable asked (Tex.App. — Texarkana Brass, Celanese, Vanguard were Alamo writ); County Ranch Co. Duval Lang- damage to John cause of producing (Tex.App.— Co., Lumber “yes” to all defen- jury answered man. The n.r.e.). Rule 408 of ref 'd Amarillo writ percent of the jury allocated 20 dants. The provides: Evidence Rules of Civil the Texas percent to Van- liability to U.S. (1) offering or furnishing Evidence to Admiral Marine. guard, and none ... a valuable con promising to furnish Fishes, decep- jury found the For the attempting compromising or sideration actions of unconscionable practices tive disputed compromise a claim which Celanese, pro- Shell, Brass were a and U.S. is not validity or amount as to either damage, ducing but answered prove liability for, or inval admissible questions negatively for defendant same its amount.... idity of, the claim or percent of jury allocated 30 Wrightway. The require exclusion does not This rule also none to liability Brass and to U.S. another when the evidence offered for Wrightway. prejudice proving purpose, bias such testimony Farris- discussed the party, negativ witness or a or interest of a es, Fishes, Loves Langman, and the John delay, proving of undue ing a contention cross- U.S. Brass’ second connection with investiga criminal an effort obstruct point. prosecution. tion or *26 there is no evidence We conclude added.) not re- Rule 408 does (Emphasis jury the liabil- could have allocated which the offered the evidence when quire exclusion of ity Brass and Van- as it did between U.S. proving that of purpose other than for a Wrightway Admiral guard,33 excluded or its invalidity of the claim liability for or liability. Accordingly, sus- Marine from we excep- is how far can this amount. The issue cross-point, that there tain U.S. Brass’ third it over- before the rule be extended tion to damage to no evidence of causation of was rule. See underlying the policy comes personal property of the Far- the homes and Rauch, 1097, F.2d v. 644 Ramada Dev. Co. Fishes, rises, Langman, and the John Cir.1981).35 (5th 1107 Loves. Savings and Portland Brass cites to Bernstein, four, 716 S.W.2d v. cross-point in connection Loan Association In 1985, action, writ (Tex.App. Corpus Christi DTPA 532 with — 1016, denied, n.r.e.), 106 475 U.S. cert. argues the trial court erred ref'd (1986), for the L.Ed.2d 313 excluding of its settlement letter S.Ct. enu purposes” “other proposition that appellants34 to offers made to 15 of the Bern 408 are not exclusive. merated in rule replumbing underwrite the cost Evidence is Federal Rules of September 35. Rule 408 filed before 33. This cause was date, rights Accordingly, un- we 1989. Before contribution identical to Tex.R.Civ.Evid. 408. governed by chapter 32 of the interpreting der the DTPAare 408 federal rule cases consult and Remedies Code. See Texas Civil Practice scope applicability of our guidance about the Sterling, Stewart Title Guar. Co. State, 839 See Cole v. Texas rule. (Tex.1991). parties brief or do not n. (Tex.Crim.App. 1990). argue this matter. Borski, Casias, Christensen, Barrett, Dingle, 34. Love, Farris, Fish, Jackson, Langman, Ditges, Reaux, Schultz, Sisk, and Stanfill. for, of, appeal sustaining liability invalidity an an
stein was
from order
the claim or its
appellees’ special appearance.
amount.
Id.
provisions
long-arm
of the Texas
Under
provides
We also note that
the DTPA
statute,
proof
alleged
there must be
mechanism for a defendant to use a settle-
Texas,
ly tortious act was committed in
but
“mitigate” damages.
ment offer to
Under
jurisdictional
liability
ultimate
in tort is not a
17.505(c), any person
section
who receives
fact, and the merits of the cause of action are
notice of a consumer’s DTPA claim under
not at issue.
Id. at 536.
It is within this
17.505(a)may
section
tender to the consumer
Corpus
context that
Christi Court
specified
a written settlement offer within a
Appeals stated:
period of time. Tex.Bus. & Com.Code Ann.
(c) (Vernon
17.505(a),
By cross-point, appellees argue
Supp.1993).
§
that these
If re-
jected,
negotiations
may
[for the return of GNMA se-
settlement offer
be filed with
curities,
along
certifying
an
participated
in which Bernstein
court
affidavit
letters,
rejection.
§
calls,
17.-
through
to Texas]
and visit
Tex.Bus. & Com.Code Ann.
505(d) (Vernon Supp.1993).
If the amount
privileged
are
under Tex.R.Cxv.Evid.
However,
settlement offer is the
tendered
same
rule
does
“[t]his
408....
also
than,
if
as or more
the court finds the
require
exclusion when the evidence is
as,
“substantially
amount to be
the same”
purpose_”
another
offered for
Tex.
finder,
damages
actual
awarded
the fact
ne-
R.Civ.Evid. 408. The evidence
may
not recover an
consumer
amount
gotiations
appellant
Legel
between
of the amount tendered
the settle-
excess
[represented by
Bernstein]
Braswell
ment
or the amount of actual
offer
prove liability
for the
admitted
finder,
found
the fact
whichever is less.
claim; rather,
to show the state-
17.505(d).
§
But
Ann.
alleged
misrepre-
Tex.Bus. & Com.Code
ments which
be
17.505(d) specifically
section
states that the
Appellees’ cross-point
sentations.
is over-
offer is not
as evidence
settlement
admissible
ruled.
jury.
not show
before a
The record does
Bernstein,
short,
635
Rhea,
665,
(Tex.App
666
760 S.W.2d
practiee(s), or the unconscionable action
or
. —Hous
denied).
1988,
action,
will
writ
any,
[1st Dist.]
if
before
date
ton
[the
or course of
only if the
is so
years
they
set aside the verdict
evidence
suit]?
two
before
filed
finding
against
great
is so
weak or the
disposition
Because of our
weight
preponderance of the evidence
appellants’ points
four and
of error three and
unjust.
clearly wrong and
Cain v.
that it is
point with
because U.S. Brass raises this
(Tex.1986);
Bain,
175,
Otis
709
176
S.W.2d
only
appellants,
respect to
certain
we address
920,
Joseph, 749
Elevator Co. v.
S.W.2d
Casiases,
only
this
of error
1988,
(Tex.App.
[1st Dist.]
— Houston
Fishes, and the Loves.
writ).
following
The DTPA contains the
statute
25,
August
on
of limitations:
The Casiases filed suit
1984,
bought
They
1988.
their home
brought
subehapter
All
actions
under
three leaks in
they experienced their first
years
within
after
must be commenced
two
July
August
September
false, misleading,
the date on which
brought
he
suit
Louie Casias testified that
deceptive
practice
act or
occurred or with-
years of the time he learned of
within two
years
after the
two
consumer discovered
false, misleading,
deceptive acts or
diligence
or in the exercise
reasonable
practices
years
of U.S.
and within two
should have discovered the occurrence of
plumbing system
of the time he learned their
false, misleading,
deceptive
acts or
He decided he had a defec
was defective.
practice.
system in
1988 when
plumbing
tive
October
(Vernon
§
17.565
Ann.
&
Tex.Bus.
Com.Code
meeting.
he was at a homeowners’
While
1987).
provision in-
The DTPA’s limitations
probative
evidence of
force to
this is some
corporates
discovery
rule. Willis v.
jury’s finding that the Casiases
Maverick,
(Tex.1988).
put them
not discover sufficient facts to
did
rule,
discovery
plaintiff
Under the
has
potential
DTPA violations before
notice of
plead, prove,
the burden
and secure favor-
25, 1986,
that in
August
there is no evidence
Mercer,
findings.
able
M.
Woods William
diligence,
the exercise of reasonable
Inc.,
(Tex.1988); Willis,
discovered such sufficient
should not have
testified that the time necessary effort to make the calculations us- point of Because the eleventh we overruled by ing supplied data would have Celanese we affirm take- appellants, error determination, and up come with a different Colon-Pomales, nothing against judgment Brass had done so. Patterson, Thumanns, and the Yeateses. poly- testified that the Watson judgment affirm trial court’s not- system butylene plumbing tested had been DTPA on the withstanding the verdict independent laboratories and listed following appellants because of action Foundation, National the Canadi- Sanitation third we have overruled the Association, an and the American Standards points applied to them: the fourth of error Testing Society of and Materials. Bennetts, Barretts, Pauline Bengstons, Bor- Jacksons, Cantus, ski, Dingles, Ditgeses, Ja- concerning Brass relied on Celanese Schultz, Sisks, cobses, Jeffrey Pops, Rileys, chemistry of Celcon. The evidence Stanfílls, Sykora, and Turners. January Terdin and shows that U.S. Brass had *31 (3) theory; judgment enter ac- judgment gence not- and affirm the trial court’s Lang- withstanding cordingly on the DTPA cause for the Farrises and John the verdict and Fishes because of action of the Casises man. cross-point sixth of
we have sustained the the first cross- Because we have sustained Brass, holding no evidence there was on the Loves on their point of U.S. Brass diligence of reasonable that the exercise action, negligence of and the sixth cause not have discovered sufficient should the Loves on cross-point of U.S. Brass on potential of put facts to them on notice action, DTPA of reverse the their cause we DTPA violations. judg- judgment of the trial court and render Because we have sustained U.S. Brass’ nothing against take ment that the Loves cross-point, that there is no evidence second negligence DTPA under their and U.S. Brass damages prove causation of to the homes causes of action. applied Bar- personal property, and as Bennetts, Borski, retts, Bengstons, Pauline appellants’ Because we have sustained the Fishes, Jacksons, Cantus, Dingles, Ditgeses, them, point respect to we third of error with Stanfills, Schultz, Sisks, Pops, Rileys, Jeffrey notwithstanding the judgment conclude that Turners, Sykora, Terdin and .and we reverse granted against verdict should not have been damages the amount of awarded them under Reauxes,36 and the and we the Christensens action, negligence cause of and remand their judg- part of the trial court’s reverse negligence judgment on the cause ment. Because U.S. Brass did not attack appellants action of these 16 to the trial court recovery negligence cause under their re-compute damages with instructions to action, negli- DTPA and we remand the by appellants these are entitled to which gence causes of action of the Christensens deleting any damages by jury awarded to the trial and Reauxes with instructions 9(a) (b). response question and award, elect, them to court that it or allow negligence theory or the damages under the have sustained the Because we theory, judgment DTPA enter accord- and error, third there was some ingly. misrepresentations evidence U.S. Brass’ producing damage, were a cause of and sus- Except provided opin- in this as otherwise tained Brass’ second and third cross- ion, judgment of the trial court is af- points, prove there is no firmed. damages per- causation of to the homes and property, applied sonal to the Farrises J., DUNN, concurring part Langman, and John we reverse the amount dissenting part. negli- damages awarded them under their action, gence judgment cause of reverse the Justice, DUNN, dissenting. concurring and notwithstanding the on the DTPA verdict action, judgment remand majority points on all I concur with the negligence DTPA action of causes of appellee’s cross-points error other than the appellants court with in- these to the trial one, two, from which I of error and three (1) re-compute damages to structions to: respectfully dissent. appellants are under which these entitled Cross-point One action negligence their DTPA and causes of majority’s Initially, disagree I with the damages respectively, by deleting any award- 5(a) finding as to when the cause of action assert- jury response questions by ed Further, 9(a) (2) I (b) award, by appellants accrued. (b); ed or allow elect, analysis applied by disagree "with the Langman the Farrises and John majority. theory negli- the DTPA under argue percent U.S. Brass. U.S. Brass did tations two homes had 100 These jury fittings, respect & Jacobs or were built either Fox to these American, for which the two homebuilders finding discovery’’ Great was without of "no polybutyl- use of the is some evidence that there the evidence. represen- system was the result of ene negligence. trial court Corp. Brass asserts Metal Structures *32 (Tex. Inc., 93, Textiles, denying judg- Brass’ for Plains 98 erred in motion 470 S.W.2d n.r.e.). 1971, notwithstanding Civ.App the re- ment verdict with writ ref'd . —Amarillo Therefore, negligence negligence ac- spect cause of a cause of action for disregard years must be the brought day and motion to the an- within two of tion 7, 7A, 8, breached, duty ordinary of question numbers and 9 the care is even swers though injury may apparent as the it was established a matter of law not be because plaintiff may negligence 11 were barred in the be unaware of the breach. limitations. by the statute of applies discovery rule to causes of complains Initially, inherently Brass the action that characterized as can be applicable negli- Abbey, discovery rule is not undiscoverable. Johnson v. 737 68, gence appellants, (Tex.App. [14th of these causes of action 11 S.W.2d 69 — Houston writ). 1987, discovery suit rule Dist.] filed more that two no is a inasmuch judicially-created years excep the date of their leak and test that acts as an after first by the for general negli barred limitations. U.S. tion to rule of accrual were therefore Inc., appellants’ negli- gence. Sterling Drug, these argues Moreno 787 348, (Tex.1990). accrued, gence pur- discovery of action the If the cause for S.W.2d 353 limitations, applies, pose period of the rule limitations does not of the statute on date the leak, discovers, begin until plaintiff through i.e. that of or of their first the statute the diligence began to run on There- the exercise of reasonable care limitations this date. discover, fore, injury. the appel- concludes 11 should the nature of that the 805, Botts, negligence of action for were Rose v. Baker 816 S.W.2d 810 lants’ causes & (Tex.App. untimely the writ de [1st Dist.] filed inasmuch first leak of each — Houston nied). appellants occurred of the 11 more than two years before the action was filed. case, plaintiffs the stated cause of negligence against accrual of of action for
The date of the the cause plumbing other question of law. v. Maver manufacturers action is Willis (Tex.1988). ick, components, they failed to asserting 644 ad- 760 S.W.2d To de date, plumbing system; equately design we must the cause failed termine this address plaintiff adequately plumbing sys- and the act manufacture action asserted adequately components; If the act is tem or its failed to complains complained of. he system unlawful, injury inspect plumbing or its at the time test the then occurs committed, components; give adequate instruc- and the of limi failed to the act is statute installation; give any failed to begins to run from the of the act. tions tations date Crosland, regarding the limitation adequate warnings Atkins v. S.W.2d (Tex.1967). system compo- complained legal plumbing of use of the If the act of is committed, nents; system plumbing represented time it was then the action housing. If their injury until the occurs. Id. was suitable for site-built does not accrue correct, apparent is A are negligence of action for accrues assertions duty when the ordinary ordinary care was breached duty of care is breached when the omission, plumbing system was installed though even defective some act or homes, though injury respective immediately apparent, even injury and the is plain- apparent time and plaintiff was not at the may be unaware the cause of There- of the breach. tiffs not aware American Centennial Ins. Co. v. Ca action. fore, at the Co., accrued time the cause of action nal Ins. 810 S.W.2d (Tex.App.—Houston However, parties 1991), because part and of installation. Dist.] [1st aff'd home, (Tex.1992). including the purchased completed part, As rev’d in system, concealed within rule, be defective general the statute limitations homes, there respective negligent the walls of the gins run commission of the the defects act, way for them to discover negligent the inva if the act constitutes occurred time as events alleged until such legally-protected of an sion of the interest should have know or other, injured from which would if the one unaware of even producing the defective duty by the were involved alleged breach of known of However, ma- Therefore, unlike the plumb- plumbing system. because the defendants. damage concealed, duty is jority, the breach of I find that ing system is would undiscoverable, discovery injury, and hold inherently and the indivisible property was an Johnson, 737 applied. jointly rule be and sever- companies should are that all four liable, at 69. a remand ally would necessitate which liability comparative a determination decide, jury It was for defendants, including Vanguard, between Court, plaintiff did majority of the when each *33 per- mean a different possibly could which have discovered that he discover or should Brass. centage attributable to U.S. plumbing system as this a defective she had Mortgage Bond Coyel an of fact. v. is issue damages that while the argues Brass U.S. Co., 204, (Tex.Civ.App.— 124 206 S.W.2d plumbing system replacement of the for the writ). found, 1939, jury no Waco inju anguish are the mental indivisible answering eight, that each question number ries, person repairs to the home and discover, plaintiff nor the exercise “did plumbing system by the property al caused diligence, should have discover of reasonable in a class of not be considered leaks should ed, negligent Defendants.” conduct injuries damages were since the indivisible not assert that this Because U.S. Brass does They cite specific leaks. associated with finding against great weight is Realty Naghad, Century Page 760 21 One evidence, finding jury that 1988, (Tex.App. S.W.2d 305 — Texarkana plaintiffs’ application of action after writ). discovery rule within the statute of is injury injury “an which An is indivisible prevails. limitations apportioned with its nature cannot be cross-point I of error one. would overrule wrong- certainty individual to the reasonable Cross-point Two Water Landers v. East Texas Salt doers.” two, cross-point In of error U.S. Co., Tex. 248 S.W.2d Disposal denying trial court erred in asserts the (Tex.1952). the tortious acts of “Where notwithstanding the judgment motion for wrongdoers join produce to an more two or disregard verdict and to answers wrongdoers injury, ... all of the indivisible (what money question nine sum of would jointly severally hable.” Id. will be held reasonably compensate plaintiffs for the that ah four of this case There is conduct) negligent defendants’ because there involved in the manufac- companies were prove is no evidence to the causation of dam- systems turing of the defective ages personal to the homes respective in each of the which were installed property. argues because part of impossible is to tell which homes. It appellants offered no evidence to show actually each system caused the defective by given which leaks were caused manufac- system The entire was de- respective leak. product damage resulted turer’s what fective. leaks, no evidence to from those there is the rule of Torts states The Restatement liability damages by support for the caused in this case. applicable to the facts interpret I Brass’ those leaks. two or more conduct of Where the tortious complaint is no error to be a there harm bring about has combined to actors jury’s response to support the evidence to one or more of plaintiff, negligence of the question seven that liability on the limit his actors seeks to proximate cause of other defendants was a appor- capable of that the harm is ground plaintiffs, but that of Van- them, proof among the burden of tionment guard was not. upon each such apportionment as to the does, hold, majority I would as the actor. finding there is no evidence 433B(2) § (Second) negligent to Restatement were that the other defendants Of Torts (1963). Thus, in fact has a defendant when Vanguard. There is evi- the exclusion may plaintiff, he to the companies caused harm in the record that all of the dence judgment and render accord- escape liability merely the harm he Remedies Code because ingly. harm inflicted had combined with similar has wrongdoers. other See Restate
inflicted 433B(2) § cmt. d (Second) ment Of Torts ON MOTION OPINION (1963). FOR REHEARING the harm to the U.S. Brass asserts that among rehearing, In its motion Shell, apportioned can between be Brass, things, appellee, argues other Celanese, Vanguard, and itself. this case judgment is affirmed that where a trial court Shell, there is evidence that U.S. Ce- part part the court of and reversed Vanguard negligent in man- lanese and here, appeals, happened costs should not ufacturing totally plumbing sys- defective totally against appellee. be taxed See negligence in- tem. This combined to cause (Tex. Walker, Walker v. jury appellants. Damage to each n.r.e.); Civ.App. Tyler writ ref'd — proven negligence home due (Tex. McNeill, 904, 905 Pundt v. necessary under the indivisible the extent *34 writ); Civ.App. Corpus no Christi — Therefore, injury theory. the burden shifted Tex.R.App.P. Accordingly, agree. 89. We apportion damages to the defendants to appeal will be assessed the costs of this among themselves as set out herein above appellee appellants, Bar equally against (Second) of Torts. the Restatement et al. U.S. Brass’ rett We OVERRULE cross-point I would sustain two as to Van- rehearing. motion for I cause to the guard, and would remand this appor- rehearing, among other trial court for a redetermination of In their motion for al., among interpret damages things, appellants, tionment of the four defen- Barrett et overruling Brass’ seventh cross- dants. our of U.S. only point applying to the Chris- of error as Cross-point Three cross- and Reauxes. In its seventh tensens three, cross-point of error no point, Brass contended there was the trial court did not err asserts factually insufficient evidence evidence disregarding question (regard- five number knowingly jury’s finding that it support the ing money compensate what sum of would cross-point DTPA. The violated the plaintiffs for the defendants’ violation of limit its cross- general. Brass did not DTPA) because there is no evidence overruled point to certain homeowners. We appel- prove the causation only cross-point generally, not as to personal property. I inter- lants’ homes or OVER- and Reauxes. We Christensen pret cross-point arguing there is as rehearing. appellants’ motion for RULE allocation of 6A, liability response question DUNN, J., majority agrees with the con- Wrightway exclusion of Admiral Marine and relating to cross- cerning the clarification liability, none of the evidence because seven, grant the motion for but would the leaks came from U.S. shows whether expressed in her rehearing the reasons Marine, Brass, Vanguard, Admiral per- opinion and allocate costs 75 dissenting Wrightway fittings. against percent against appellee and cent appellants. hold, does, majority
Again, I would holding support a that there is no evidence to Vanguard liability against Brass and Wrightway and Admiral
to the exclusion of However, for the reasons set out
Marine. two, I find
my cross-point would dissent from injuries were indivisible. companies are
I hold that all four would severally in accordance
jointly and liable Practice and
chapter 32 of the Texas Civil