*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. 303 S.W.2d 359 charge states that submitted reviewing point, a no evidence all, they “may any part, or believe none tend the court considers the evidence witness....” We finding, viewing in the ing support find is some evidence and that it that there finding, giving light most favorable to the is sufficient to there effect all reasonable inferences this issue. from, disregarding contrary all conflicting evidence. Gen Glover Texas argues next (Tex. Co., Indemnity eral admitting opinion expert trial court erred in 1981). points require Insufficient evidence testimony by that was not David Hickman weigh we consider and all the evi princi “recognized based on standards and *4 Estate, 150 Tex. King’s dence. In re contending testimony that ples,” since his of improper was based on an standard valu light Examining testimony the ation, probative Century it has no force. verdict, posi- most favorable to the there is only this the 21 contends that was neigh- testimony by next tive Childers’ door valuation, this on that amounted to evi bor, reg- Donley, septic tank Vicki that the this should not have dence and that issue ularly and that she went malfunctioned the is jury. There suffi been submitted personally in- Century 21’s office and as a qualify cient evidence to Hickman real Jones, realtor, Brenda formed the Century 21 does not appraiser, estate sign up immediately after the sale went qualified not as suggest that Hickman was ei- problem if not remedied that the were Century 21 contends expert. an Rather next, the would ther this owner or she reaching of his conclusion that his method them. sue upon which The factual basis was invalid. this contends under also opinion goes to expert an arrives at his the ig- Donley’s testimony point must be that weight testimony and not to the of his her nored because it interwoven with Peterson, admissibility. Grayce Co. v. Oil the testimony that she had also informed (1936); Tenng 128 781 Tex. 98 S.W.2d Naghad sewage prob- purchaser about the Fischer, Gathering asco Co. Gas could not have argues lem. It that the (Tex.App.-Corpus Christi S.W.2d testi- part Donley’s that of concluded the complains of Century writ ref’d knowledge was mony Naghad’s from his percent Hickman’s ten deduction the remainder accepting while the original appraisal, represents which val However, testimony not does this true. trial, at time of ue of the the state conversation value at determine the fair market order to oc- presence realtor the a in this time of transaction involved the the house, and sale of the curred before the aware testified that he was case. Hickman testimony such a conversation there is that occurred changes in that had value sale. place several weeks after its took date the date the the trial between adjustment the purchase and that his judge

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. 605 S.W.2d 401 value it would have had if it had been as 1980, writ). (Tex.Civ.App.-Beaumont no represented. value, The difference in if Century object 21 did to the issue on the any, shall be determined at the time and damages. basis that it contained double place purchased. when the house was However, jury may a verdict have more Answer: acceptable damages, than one measure of plaintiff may and in that a situation be recovery Had granted been on all of required prior to elect to the and these, might that contention be correct. surplus findings respect waive the to Naghad elected solely to recover under one Note, damages. Kish v. Van 692 S.W.2d jointly issue. 21 was held and (Tex.1885). plaintiff 463 If the fails to severally liable for assessed at elect alternative measures of dam between $35,000, fees, plus agreed attorney’s costs ages, the trial court should utilize the find and penalty Deceptive a under the Birch ing affording greater recovery. the Trade Practices Act. Tex.Bus. & Com. Hospital, v. Texarkana Memorial field (Vernon 1987). Ann. 17.50 Code It is (Tex.1987). 361 747 S.W.2d clear that the amount was taken from the special issue on the dimunition of cost and the dimin value always the house. If a contains reme verdict more than ished value are not exclusive pleads acceptable damages, plaintiff properly one measure of so dies. the When long findings proves as the irrec there be diminished do cause an will conflict, made, plaintiff repairs he is oncilable elect value after the are even Hargrove v. Trin recovery he desires. measures of entitled to both Co., Homes, McAdams, 737 ity Brighton Universal Ins. Inc. v. 152 Tex. 256 (Tex.1953); Joseph’s Butler v. (Tex.App.-Houston S.W.2d 73 S.W.2d 340 [14th Dist.] n.r.e.); Unitrust, Inc., Shop, Inc. v. (Tex. 1987, Wine 926 ref’d S.W.2d writ Corp., (Tex.App- Jet Fleet App.-Houston ref’d 673 S.W.2d 619 writ [14th Dist.] n.r.e.). 1984, writ); Terminix Interna Dallas no

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