*3 facts, undisputed ences or conclusions from SPARLING, Before WHIT- VANCE and thereby raising jury. issues HAM, JJ. Nix testified that when she entered WHITHAM, Justice. place McDavid Pontiac’s of business on Nix, Appellee, brought September Frances this ac- 13 she told the salesman that Deceptive tion under Trade among things “green Practices— other she wanted Act, day, Consumer Protection car.” agreed TEX.BUS. & Later that Nix in writ- §§ (Vernon ing ANN. purchase COM.CODE 17.41-17.63 a described automobile Supp.1982-1983), appellant, David from McDavid Pontiac for The Pontiac, McDavid equipment, options Inc. action arises contract detailed certain of a of an out sale automobile. The features of the That auto- automobile. Judg- yellow. dispute, issues in day answered all Nix’s favor. mobile was On a parties purchase of Nix dam- ment favor awarded actual abandoned sale of ages yellow restoration of the consideration automobile because wanted did green rejection McDavid Pontiac effective after he has had an automobile. green have a identical to automobile opportunity inspect goods. automobile; however, yellow do “we not.” Since answered green
Pontiac obtained a automobile challenge jury’s finding to the there was it to Nix on another dealer delivered accept delivery that Nix did not green auto- September Nix drove the automobile, accept we must away from McDavid Pontiac mobile finding. mid day kept it until or late October spe- liability of the We now consider two she it to McDavid Pontiac when returned evi- undisputed issues in cial selling driving after it 1200 miles. The selling price an for both dence of identical September on a 19 retail installment Special bearing automobiles. contract signature identi- Nix’s was number nine reads: —the *4 yellow selling of the automobile cal you of preponderance Do find from a September purchase on. the 13 contract. the that the Defendant David evidence green many of the The automobile lacked Pontiac, Inc. represented McDavid on, of, equipment options and features green the Pontiac Plaintiff that 1979 yellow the automobile. 2Q69Y9P258582 they Bonnevillé V.I.N. agreement that under her Nix contends character- selling were to Plaintiff had a Pontiac, green the McDavid automo- with or which it did not istic characteristics yellow identical the auto- was bile ultimately have? September in the 13 con- mobile described jury “Yes.” It is answered obvious was because tract and that she defrauded special nine was sub- that was green the automobile delivered to her light provisions the of sections mitted yellow not identical to the automobile. (char- 17.50(a)(1) 17.46(b)(5)of the Act green concedes the McDavid Pontiac that goods). Special issue acteristics of the yellow not identical to the automobile was number twelve reads: contends, automobile. McDavid Pontiac however, agreed purchase the you preponderance that Nix from a Do find green because it is the automo- evidence that Defendant David September retail in the 19 bile described Pontiac, Inc., through its offi- however, The jury, installment contract. employees, express cers or made an war- all, most, rejected if not of the evidence 13, Plain- ranty September 1979 to the grounds its upon which McDavid Pontiac Plaintiff a they tiff that deliver to would jury found that contention because green Pontiac Bonneville V.I.N. 1979 delivery green of the auto- accept did not 2Q69X9P187663 equipped a 350 V-8 challenge sub- does mobile. McDavid carburetor, engine GR 78 with a 4-barrell mission, finding or as to instruction sidewalls, heavy duty battery, white following special issue three: power reclining specified gauges, certain preponderance you Do find from seats, headlamps, tungsten vinyl top, air accept- that FRANCES NIX the evidence guards, con- conditioning, fender cruise Bonne- Pontiac delivery ed mirror, trol, sport mir- glass, tinted visor ville, Number VIN Vehicle Identification 8-track, locks, ror, tilt power door stereo 2069Y9P258582? covers? wheel and wire wheel answering special this purposes For “yes.” is obvious jury It answered “Accept- you instructed that are was sub- that issue number twelve buyer: goods ance” of occurs when provisions of section mitted in- (1) opportunity After reasonable warranty). 17.50(a)(2) (express of the Act signifies the seller spect goods special issue The automobile described in goods conforming he are or that yellow auto- number twelve described the inspite of their take or retain them will (2) painted green. an mobile but
non-conformity; to make Fails
835 Kinslow, undisputed (Tex.Civ.App. It that McDavid 915 S.W.2d selling price' writ) put Pontiac’s for the way -Dallas no we it this the same amount. automobiles was brought a case under Act: undisputed always That facts are does not the Act does not define “actual Since right finding. If eliminate the to a fact damages” as term is used in can infer reasonable minds draw different 17.50(b)(1)], interpret expres [§ facts, undisputed ences or conclusions from damages. sion to mean common-law Commercial presented. a fact issue is Postage Corp. Kammeyer, v. United Davis, Insurance Standard Co. (Tex.Civ.App. S.W.2d - Dallas (1940). Although Tex. hand, writ).... On the other points to to ex McDavid Pontiac paid, restoration of the consideration as plain why admittedly two dissimilar auto 17.50(b)(3)], authorized is a statu [§ selling price, the identical mobiles had tory recognition equitable remedy conclude that such evidence raised issues restitution, of rescission and based on properly for the to determine. We theory complaining party conclude that in the case reason contract, may elect to avoid the surren different inferences able minds could draw received, and recover der benefits undisputed or conclusions facts. We Nevertheless, parted that he with.... because, reach this conclusion if the sales mutually two exclu [the remedies] identical, prices were could reason sive, recovery since one is based on (1) ably infer or conclude under the contract and the benefits *5 represented automobile was to have charac other on avoidance of the contract. Con have, ultimately teristics which it did not sequently, hold in a suit for i.e., yellow the characteristics of the auto warranty, complaining par breach of the September described in the 13 sales mobile ty three may recover times his actual nine) (2) (special contract and (1) damages under or restora subdivision express that McDavid Pontiac made an paid of under tion the consideration sub warranty September 13 that it would both, but not (3), (emphasis division equipped deliver a as de (some omitted). added) citations September scribed the 13 sales contract conclude, therefore, may that Nix twelve). (special According damages and the recover for both actual ly, we hold that evidence of an identical follows, paid. It and we so consideration selling price both the and hold, awarding that the trial court erred sup automobiles was sufficient evidence to damages judgment Nix for both actual of port of submission issues numbers paid and consideration of $360.20 $2118.15. jury’s findings nine and and the twelve follows, therefore, these issues. It and we Restoration the Paid Consideration of hold, so that Nix established McDavid Pon liability tiac’s under the Act. points In of various of error Pontiac, by raised McDavid we must deter
Monetary
Relief
mine
Nix is entitled to recover
whether
First,
remedy.
under
consider
either
Next, we turn to the relief afford
paid.
In
of the consideration
restoration
jury
ed
the trial court. The
found
Nix
point,
fifth
David McDavid asserts that
its
actual
It was undis
$360.20.
evidence, or insufficient evi
there was no
payment of
puted that Nix made a down
dence,
remedy
support the
of rescission
$2,118.15
on the
automobile. The
paid
and restoration of the consideration
judgment for
trial court awarded Nix
both
any time offer to
because Nix did not at
damages of
and the con
the actual
$360.20
she re
return the value of
benefits
$2,118.15
tre
paid
sideration
and then
using
green automobile for
ceived from
Awarding
actual
bled both.
both
driving it
and
paid
approximately one month
and restoration of the consideration
v.
considering “no evi-
1200 miles.
Smith
are inconsistent
remedies.
When
points,
dence”
we can consider
the maxim
equity
equi-
“he who seeks
must do
tending
evidence and
ty.”
inferences
Accordingly,
we conclude that
there
awards,
findings
judgment
was no
remedy
evidence
be,
may
as the case
disregard
and must
all
rescission and restoration of the considera-
evidence
inferences to the contrary.
paid
tion
and sustain McDavid Pontiac’s
Alviar,
Garza v.
(Tex.
395 S.W.2d
point.
fifth
If
point
a “no evidence”
1965).
“factually
In reviewing
insufficient
proper procedural steps
sustained and the
points
evidence”
we consider all the evi
taken,
finding
have been
under attack
dence, including any
contrary
to may
entirely
disregarded
judgment
Motyka,
Burnett v.
findings.
appellant
the inter-
rendered for
unless
(Tex.1980).
S.W.2d
another trial. Gar-
require
ests of justice
za,
prin-
Applying
S.W.2d at 823.
We conclude that Nix’s
re
demand for
ciple
case,
we conclude
paid
turn
consideration
is not con
awarding
judg-
the trial court erred in
Nix
involving
sistent
the rules of law
ment
paid
for the consideration
in the
Bog
v.
rescission of
Villarreal
contracts.
amount
It
that we
follows
Co.,
gus Motor
471 S.W.2d
619-20
point
must sustain McDavid Pontiac’s fifth
(Tex.Civ.App. Corpus Christi
writ
-
judgment
reverse the trial court’s
inso-
n.r.e.).
ref’d
Those rules
found
judgment
far as
awards Nix
for the
it
Rosson,
Equipment
Mathis
Co.
paid in
consideration
amount
(Tex.Civ.App. Corpus
869-70
-
render
n.r.e.):
Christi
'd
writ ref
nothing
take
as to
amount of considera-
buyer
Before a
can avail himself of the
paid.
tion
recission,
right
(assuming
that he has
same),
proper grounds for the
he must
Damages
Actual
proceed
timely
to give
notice to the seller
Second, we consider McDavid Ponti
being
contract is
rescinded and
challenges
ac’s
to the award of actual dam
return, or,
return,
either
at least offer to
ages
point,
In its first
$360.20.
property
he has received
*6
issue,
damage
Pontiac
that
the
contends
any
may
of
value
he
have derived
benefit
eleven,
special
an in
states
possession.
requiring
from its
The rule
improper
damages.
correct and
measure of
buyer desiring
th'e
to rescind to take
points,
In its
third
McDavid
second and
the
such action is based on
view that
Pontiac
that
there
no evi
contends
was
granted,
a
can
the
before
rescission
be
dence,
evidence,
or insufficient
parties
placed
quo,
in status
must be
special issue
eleven
submission of
number
equity
the
maxim “He who seeks
Special
damages.
or the
of actual
award
equity.”
proof
do
The
is
must
burden
issue
eleven reads:
number
party seeking rescission
on the
to estab-
preponderance
he
a
of the evi-
equitably
lish that
is entitled
to such
Find from
difference, if
the
any,
dence
relief.
the
between
value of the 1979 Pontiac Bonneville
present
The
is
record in the
2Q96Y9P258582
to the
V.I.N.
delivered
tender,
tender,
or offer
silent as
Ponti-
Plaintiff
the value of the 1979
the
by
Pontiac of
Nix McDavid
value
2Q69X9P187663
ac
as
Bonneville V.I.N.
using
from
the benefits Nix received
represented by the Defendant.
approximately one
for
charge
The
“$360.20.”
The
answered
driving
miles. Restora
month and
it 1200
following
instruction:
contained
equitable remedy
tion of
is an
consideration
Smith,
VALUE”,
MAR-
“FAIR
See
than
law.
598
“MARKET
rather
one at
VALUE”,
VAL-
KET
“CASH MARKET
Consequently,
we conclude
S.W.2d
MARKET VAL-
proof
“FAIR CASH
that Nix
meet her burden of
UE” and
failed to
They
must,
expressions.
therefore,
equita
synonymous
denied the
UE” are
be
money
may
as
amount
according
relief of
to the
be defined
ble
rescission
sell,
agreed upon by
parties
person desiring to
to the sale of
that a
but
so, could,
personal property may
within a reason-
taken as the
bound to do
be
procure
property
parties
time
such
able
market value of that for which
citing Chrysler Corp.
buy,
contracted,”
person
a
desires and is able to
who
proper- Schuenemann,
(Tex.Civ.
purchase
is not
but
bound
Seventy hours $7,000.00. Seventy hours equal cannot Attorney’s Fees equal eighty-five times dollars cannot 17.50(d) provides Section obvious, however, $7,000.00. It is that the prevails shall be consumer who “[e]ach upon attorney’s testimony jury seized Nix’s reasonable and awarded court costs and changed to my that “in 1983 rate was $100 attorneys’ necessary fees.” every an hour for each and hour of time a reasonable found that would be had spent that I on a case where a client of Nix’s attorney’s fee for the services hourly ability pay,” multiplied attorneys. The trial court awarded finding of by seventy and arrived at a rate Pontiac contends that amount. McDavid conclude, however, that tes- evidence, or insufficient that there was no timony per hour as to a rate of $100.00 evidence, and neces of the reasonableness trial for an existence weeks before Nix’s attor sity fees. Nix’s having ability “the attorney’s clients following hourly rate ney testified to the any probative evi- pay” does not constitute for certain clients as follows: structure finding in the jury’s dence however, first took on this case back When we Implicit, in the tes- present case. could charging clients who seventy-five 1980 we were timony of counsel is that both type (at least) of work at a rea- pay for us to handle hour would be dollars an present case. hourly hour. rate in the the rate of an sonable $65 the testi- Consequently, conclude that changed to $75 our rates were be sufficient mony of both counsel would hour, my in 1983 rate was an $5,250.00, or seven- an award for each and changed to an hour $100 seventy hours. an hour times ty-five dollars spent I on a case every hour of time that Schuenemann, Chrysler Corp. v. ability pay. had the where a client (Testimony spent hours S.W.2d at 807 February to trial present case went reasonably hourly charge considered attorney further testified Nix’s support attorney fee award sufficient seventy on the expended hours he had Act). Moreover, TEX.R.CIV.P. under the opinion his expressed the au- appeals a court of 440 vests time for the 70 hours of “that in this case “if such suggest a remittitur thority to usual spent that a fair and that had been the verdict and opinion court is customary fee and reasonable court is excessive judgment of the trial County, in Dallas type of services those for that reversed that said cause should be McDa- Texas, an hour.” be $75.00 would may ex- appeals only.” A court of reason counsel, as a witness called vid Pontiac’s suggest a remittitur power to ercise its Nix, testified: there is appellant complains that *8 when your you Q rate have billed At what support an award to insufficient evidence client? agrees, finds appeals but and the court of to is sufficient evidence an hour at that there client at my $75 IA billed Corp. Marine award. Baker lesser See case which started beginning of the required TEX. inflation factor calculations present case in 1. Since actual 6.06(b) 4413(36), § $1,000 art. ceiling REV.CIV.STAT.ANN. section 17.- in less than (Vernon Supp.1984). 50(b)(1), dealer reach the new car do not
839 Moseley, 486, (Tex. 645 S.W.2d 490-91 since the in verdict was her favor and 1982, App. Corpus Christi ref'd writ n.r. grossly negli McDavid Pontiac’s conduct - e.). malicious, We conclude that in the gent and the trial court abused there is sufficient evidence to denying injunctive its discretion in re $7,000.00, wit, lesser award than to sought. Historically, injunctive lief relief $5,250.00. Accordingly, our we condition deter, Ron designed punish. is not attorney’s affirmance of the in fee award Corp., 422 49, Paper deau v. Mosinee U.S. appellee’s filing this case on a remittitur in 62, 2069, 2078, L.Ed.2d 12 95 S.Ct. 45 $1,750.00, plus any applica the amount of (1975). sought conclude that the relief We ble interest. designed punish McDavid Pontiac for in it manner which dealt with Nix. Injunctive Relief Moreover, conclude that absent a show By crosspoint, Nix contends that the trial ing sought enjoined the acts to be refusing court abused its discretion in occurring were as to other consumers or permanently enjoin McDavid Pontiac from: that McDavid Pontiac intended to do those having sign 1. customers retail in- future, permanent injunction acts in the blank; agreements stallment in forbidding improper. future acts would be representing 2. re- to customers that Injunctions prevent are issued im agreements tail installment confer or in- Granata, minent harm. Chacon v. 515 rights, obligations volve remedies or denied, 922, (5th Cir.1975), cert. F.2d 925 involve; they which do not have or 423 U.S. 46 L.Ed.2d S.Ct. representing 3. to customers Worldwide, Inc., Lloyd v. Alaska (1975); they par- will deliver an automobile of a (Tex.Civ.App. 550 S.W.2d - Dallas standard, ticular quality or color or Clark, writ); Wooten v. no which has certain characteristics or uses (Tex.Civ.App. - Austin have; which these automobiles do not writ). conclude, therefore, We correctly the trial court denied the knowingly making false or mis- sought by permanent injunctive relief Nix. leading concerning statements of fact follows, hold, It and we so the trial standard, color, use, quality, characteris- denying court did not abuse its discretion equipment tics or an automobile has injunctive sought by relief Nix. when it does not have same. disposition appeal, In view of our of this 17.50(b)(2)provides Section a suit filed “[i]n unnecessary we consider it to address section, under this pre- each consumer who points McDavid Pontiac’s other of error. may enjoining vails obtain ... an order judgment affirm the trial court’s inso- We Smith, such acts or failure to act.” injunc- permanent far as it denies Nix the S.W.2d at 915 we noted: sought. tive relief We reverse the trial § 17.50(b) recognize that since is not judgment court’s as it insofar awards phrased disjunctive, the remedies the sum of We render enumerated its four subdivisions are in favor of Nix and David McDavid expressly mutually not made exclusive. $1,080.60 plus in the amount of interest Thus, treble under subdivision (9%)percent per thereon at the rate of nine preclude (1) may injunction an un- 2, 1983, May annum from the date the trial (2) restraining der subdivision future de- respect judgment. court rendered its With (emphasis ceptive practices, trade add- fees, attorney’s judg- the trial court’s ed). if ment will reformed and affirmed with- 17.50(b), however, opin- twenty days the date of this Section $1,750.00, speaks injunctive prevailing plus con ion relief a Nix files a remittitur obtain; may not shall obtain. any applicable If this remittitur sumer interest. Thus, judg- grant timely, is not trial court’s the trial court had discretion to filed reversed, that, deny ment for fees will be injunctive argues relief. Nix *9 attorney’s
and the issue of fees will be
severed from the the case and remainder of
remanded to trial court for trial. All
costs this court trial court are against
taxed Pontiac. TO
ON FAILURE FILE REMITTITUR suggested
Nix did not file our remittitur.
Accordingly, portion reversed,
awarding attorney’s fees the issue of fees is severed and re-
from the remainder of the case for retrial. court
manded All costs appeal in the trial court before this
taxed McDavid Pontiac.
Johnny LONG, Appellant, Texas, Appellee. STATE
No. B14-83-725CR. Texas, Appeals
Court Dist.). (14th
Houston
Nov.