*1 requirement satisfaction January (Tex.Civ.App.-Corpus S.W.2d 492 Christi met, letter ref’d Northwest writ $47,500. liable to Cranetex for forth, For the reasons judg set ment is reversed and rendered to the ex Northwest also contends that even discharged tent that it North Northwest. if the indebtedness did accrue as of June west is liable to Cranetex in the sum of 20, 1984, the time elements were not in $47,500jointly with Precision compliance strict with Section 70.001 et. Crane and is also lia seq. of the Property Texas Code. North attorney’s ble with Precision Crane for fees west is correct in this contention. Pursu original amount set forth in the statute, ant to the Cranetex should have subject to the remittiturs sixty days waited after the established date provided therein. requesting June 20 before the owner to pay unpaid charge under Section 70.-
005. The demand August letter was dated premature. which was Under Section Property Code,
70.005 of the Texas if the
charges paid are not before the eleventh
day demand, after the the lienholder is required give notice of the sale. The CENTURY PAGE ONE notice August 21, of sale letter went out REALTY, Appellant, which was more than days eleven after the making of the demand letter. That statute requires that the lienholder sell the NAGHAD, Hooshang Appellee. public at a twenty days’ sale after No. 9571. notice. The property was not sold until
September gave Northwest more Appeals Texas, Court of twenty days. than Northwest did not seek Texarkana. enjoin contest it in Sept. fashion until brought this suit was to re Rehearing Denied Oct. cover the remainder of costs.
The time errors prematurity consisted of sale; demand and the notice of how
ever, the sale was not conducted until the
ninety-first day after charges accrued. prematurity of these two notices could
only work to the benefit of Northwest
giving more notice required by time than compliance
statute. Substantial as found
by the trial court in this case satisfies 70.005,
Section long so as the time of sale
is not shortened.
Cranetex contends that Nothwest’s liability several with Precision Crane attorney’s
includes agree. fees. We
record indicates pled that Cranetex
proved attorney’s its fees. This evidence controverted; therefore,
was not
of fact and conclusion required. of law are Jackman,
Jackman v.
(Tex.Civ.App.-San 1975, writ); Antonio
City Corpus Arnold, Christi v.
Uncontroverted shows that the house had a latent foundation resulted in cracked interior and exterior roof, walls and caused leaks and that improperly designed it had an and installed system, liquid tank which bled sew- age onto backyard. the surface of the Wa- *3 room, living ter also leaked into the sunken which occurred within a few weeks after Naghad possession took of the house. Na- ghad alleges Century 21 and Childers represented defects, that the house had no although they knowledge had of these con- ditions. jury
The
found that each of these defects
Naghad
existed in the home at the time
purchased it in
engaged
that Childers
false,
in
misleading
deceptive
or
acts as to
defects,
each of these
but that
engaged
false, misleading
in
or deceptive
acts
septic sys-
with reference to the
jury
tem defect. The
also found that the
activities of both defendants were uncon-
knowing
scionable and
and that
Elliott,
Jeffrey
Russell,
C.
Atchley,
Wal-
incurred
in the amount of $803.10
Hlavinka,
drop
Texarkana,
&
appellant.
flooding
living area, $17,610
for
for
repair
damage
from the cracked foun-
Dodson, Young,
Richard N.
Patton &
dation, $4,120
septic
faulty
Folsom, Texarkana,
appellee.
for
tank,
$35,000
difference
val-
actually
ue of the house as it
was when
GRANT, Justice.
opposed
to its
Page
Realty (hereafter
One
represented.
house had been as
21)
appeals
called
ren-
Stanley
appealed
Childers has not
against
seller,
dered
it and a home
Stanley
him,
judgment against
appeal
and this
Childers,
for
pur-
incurred
pursued solely by Century
judg-
21. The
chaser, Hooshang Naghad, on the basis of
provides
ment
that both defendants are
deceptive practices
their
in the sale of
$35,000
liable for
actu-
Childers’ house.
$1,000
damages,
al
an
for
additional
ac-
cordance with Tex.Bus. & Com.Code Ann.
Naghad purchased the house from Child-
(Vernon 1987) (Deceptive
17.50
Trade
15,1982.
§
ers for
on June
Childers
Act),
$7,500agreed attorney’s
Practices
had the house built as his
residence
fees,
jury
and for all costs. The
did not
He listed the house
through
for sale
Centu-
exemplary damages against
award
either
21, 1982,
ry
May
on
with
realtor
defendant.
Brenda Jones. Jones did not communicate
Naghad prior
and the
Century 21 first contends that there is
liability Century
21 is based on the mul-
support
insufficient or no evidence to
tiple listing agreement
prepared,
she
false,
which jury finding
engaged in
mis-
that it
stated
during
that the house had no known de-
leading
deceptive
or
acts
its sale of
Naghad.1
fects.
found that
the house to
17.50(a)(1) (Ver-
17.46(b).
&
§
Tex.Bus. Com.Code Ann.
tained in
Tex.Bus. & Com.Code
1987) provides
17.46(b) (Vernon 1987)
non
that a consumer
main-
contains the fol-
§Ann.
tain an action where
misleading
uses a
lowing provisions:
deceptive
practice
act or
con-
ny
refer-
these acts in
of a witness
between witnesses.
that it
system
Biggers
System,
ence to a
v. Continental Bus
knowingly.
so
did
Tex.
juryA
is the exclusive
time interval was
for this
value to allow
weight
to be attached
credibility and the
knowledge. We find
expert
upon
is based
his
witness,
testimony of
a
and had
testimony was admissible
the testimo-
this
the conflicts within
to resolve
(23)
information con-
(5)
to disclose
goods
have
the failure
representing
or services
characteristics,
cerning goods
known
ingre-
which was
services
sponsorship, approval,
uses, benefits,
they
if such failure
dients,
at
time of the transaction
quantities
which
intended to
information was
sponsor-
such
has
disclose
do
have or
not
affiliation,
status,
a transaction into
into
ship,
induce
consumer
approval,
or connec-
not;
not have entered
consumer would
he
tion which
does
disclosed.
been
had the information
probative
sufficient
force to serve as a
21 further contends that
jury’s finding
judgment
improper
basis for the
because it does not
specify how the court arrived at the dam-
argues
21 also
that the submis-
age
judgment
amount. A
must conform to
error,
sion of the issues on
301),
(pursuant
the verdict
to Tex.R.Civ.P.
they provided
recovery
because
for double
unambig-
but we find the
to be
plaintiff.
was asked
uous and to set out the liabilities of the
special issue
money
what sum of
would
conformity
defendants in
with the verdict.
conduct,
compensate Naghad for such
error,
point
its last
were divided in accordance
contends that the trial court erred in ren-
with the various defects:
dering judgment against
upon
based
(a)
necessary
reasonable
cost to
7(d).
special
answer to
issue
evi-
repair
damage,
any, resulting
if
from
special
dence in
of the answer to
flooding,
any.
if
7(d)
Hickman,
was the
issue
Answer: $803.10
appraisal expert
real estate
called
(b)
necessary
reasonable and
cost to plaintiff. Throughout
testimony, Hick-
his
repair
damage,
any, resulting
if
from
clearly
man
stated that his evaluations
foundation,
any.
the cracked
if
dealt
with the
He
foundation defects.
Answer:
testify
did
as to
variation in the
(c)
necessary
reasonable and
cost to
of the house due to the
tank
damage,
any,
resulting from defect.
*5
faulty septic
lines,
the
tank and field
if
contends that
21
any.
rights
complain
waived its
to
an im
$4,120.00
Answer:
proper
charge
measure of
in the
(d)
difference,
the
in
any,
the value
by failing
object
charge
to
to the
on that
of the house as it
and
was
the
Baker,
basis. Small v.
tional, Lucci, (Tex. defect, v. sewer but she did not amend the Inc. App.-San ref’d multiple listing Antonio writ agreement reflect case, present Naghad’s pleadings In the information.2 No issue submitted enough are both broad cover measures on the issue contested as to wheth- however, damages; is no there in er Jones acted in concert with Childers repairs as to the diminished after the defect; failing to reveal the sewer how- have been made. ever, upon testimony seller’s this based trial by issue could be deemed found special issue answer judgment pursuant court in found that in According to Tex.R.Civ.P. Pros- deceptive to W. misleading or acts the sale of ser, system Handbook Law house as to Torts § negated deceptive (4th specifically prac- 1971): a at ed. but drainage tice as a defect or a foundation who, pursuance All those of a common Thus, Century it defect. 21 contends that act, plan design or to commit tortious $35,000 damage could for not be liable it, part or actively take further 7(d), amount found because cooperation request, or or lend aid who the sole on this diminished value encouragement wrongdoer, damage upon the foundation was based their ratify adopt his acts done for defect. benefit, him. equally are liable with alleged Naghad had that both necessary, Express is not Century 21 had committed Childers and required and all that is there be they for should be fraudulent acts understanding. tacit jointly When two or liable. complains that this conten- persons in the jointly engage more commis pled Naghad, Naghad’s tion was not but tort, they are sion of pleadings allege were that both defendants Hamilton, 214 liable. S.W.2d Winter prayed act involved fraudulent 1948, writ). (Tex.Civ.App.-Eastland liability. objections made No were hand when concert On other there *6 pleadings to on this basis. unity design people are act of and two tortiously causing ing independently and in a tor- party participates aWhen is distinct harm for which there reasonable (in the with another tious act concert according for division to contribu basis of present inducement case fraudulent each, subject liability of to tion each house), purchase it makes Naghad harm he portion of total that by damage inflicted difference (Second) has himself caused. Restatement party joint tortfeasor what that exceeds Torts of v. might anticipated. Thompson See have Childers, seller, Stanley testi Cir.1950). Johnson, (5th 180 F.2d septic system fied that he disclosed Furthermore, Century jointly prior defect Brenda Jones 27.01(b) of severally liable under Section in spite that of the house. He testified Code the Texas Business and Commerce being lodged being complaint aware time this trans- in effect at the that was line, “no sewer field she listed about the as follows: action3 which states agreement. multiple listing defects” on the represen- a false person A who makes been told denied that she had Brenda Jones who person promise, or false tation by Childers. the sewer defects representation from false benefits that neighbor There also that de- the fraud promise, commit Brenda Jones of or false Childers later informed until after actually had never met sell the da Jones Brenda Jones did 2. property. sale of the Naghad, under the multi- but another realtor ple listing was involved the sale 1983, 68th Acts 3. This section was amended property. The indicates that Bren- 1, 2, Sept. 1983. Leg., p. ch. eff. §§
3H (a)4 scribed in awarding Naghad $35,- Subsection of this section the verdict jointly and are 000.00 in jury. liable awarded defrauded for actual undisputed evidence shows 21 did share in the commis sion on property. the sale of this There
fore, Century 21 benefitted from the false
representations which induced the making
thus them lia TRUST, ARTOC BANK AND along ble with the seller for the LIMITED, Appellant, awarded the jury. of the trial court is af- firmed. TERMINALS, SUN MARINE INC., Appellee. CORNELIUS, Justice, Chief No. 9611. concurring. Texas, Appeals Court of I imposition concur Texarkana. liability against
several 27.01(b) the basis of Section of the Texas Sept. Business & Commerce Code as it existed Rehearing Denied Nov. when this cause of action I arose. do not agree liability against Century 21 for
damages resulting from the foundation de-
fect can be based on Century 21’s “action
in concert” with Childers. The tort in this
case was not fraudulent pur- inducement to
chase the house. It was the failure to
reveal defects. There is pleading
evidence of concerted action respect
the foundation and there is a Century 21 participated only in
the failure to reveal the system de-
fect. Liability on the basis of concerted
action would therefore be unauthorized.
BLEIL, Justice, concurring. *7 join
I in the Court’s affirming decision judgment. trial court’s The evidence
supports jury’s findings misleading decep-
tive acts in connection with the sale of the Naghad. result,
house to As a a house worth less represented
than as by Century 21. The properly
trial court entered (a) (A) 4. Subsection person purpose of Tex.Bus. & Com.Code Ann. made to a (Vernon 1987) following: § 27.01 contract; states the inducing person to enter into a (a) involving Fraud in a transaction real es- corporation tate or stock in a (B) stock entering relied on into company consists of a that contract. (1) representation past existing false of a fact, representation material when the false