Hart v. Berko, Inc.

guish the facts before us from those involved Armendarez, cited cases. See (opinion rehearing). at 309 In-

deed, wholly ignores the State’s brief this authority.

line of

This record is devoid of evidence that Dr. unique government

Stinnett’s duties were uniquely from the same different services

provided by private dentists sector. shown,

He has not that he is entitled status, although

protection quasi-judicial certainly precluded doing

he is from so court,

following remand to the trial should Armendarez,

the facts it. See at 311. Dr. Stinnett has thus failed requirement for dismissal set

to meet the

forth in Tex.Civ.PRAC. & Rem.Code Ann. plaintiffs petition argu-

§ has no Appellant

able basis law or fact. Jack- of Error Three is sustained.

son’s Point

CONCLUSION

Dr. motion to dismiss and ac- Stinnett’s

companying evidence neither established his immunity

official to suit nor that Jackson’s arguable

lawsuit otherwise has no basis

law or fact. He was therefore not entitled to

dismissal under Tex.Civ.PRAC. & Rem.Code disposition 13.001. Because of our

Ann. Three, of Error we do not reach Point Jack- remaining complaints.

son’s We reverse case, dismissing

trial court’s order proceedings.

remand for further Enterprises, HART Inc.

Phil and D.J. Associated Insurance

d/b/a

Agency, Appellants,

BERKO, Encanto, Appellee. El INC. d/b/a

No. 08-93-00083-CV. Texas, Appeals of

Court of

El Paso.

July 1994.

Rehearing Aug. Denied Pierce, Scott, Hulse, Marshall,

David R. Feuille, Thurmond, Paso, Finger & El for appellants. $358,000. James, Paso, Beck, Berko was El

E. Link Beck & counter- Appellants on their also found for appellee. trebling and add- claim. After C.J., BARAJAS, and KOEHLER Before attorney’s fees ing prejudgment interest and LARSEN, JJ. counter- subtracting the amount of the claim, on the judgment rendered the court Appel- against OPINION favor of Berko and verdict in $1,218,805. approximately lants for KOEHLER, Justice. seven appeal, contend this brought provisions under This is a suit was either points error there Deceptive Practices Act and Texas Trade al- that the insufficient evidence evidence or policy the own- the Texas Insurance Code producing a leged misrepresentation was damages against agent its insurance er two); injury (points one and cause of Berko’s alleged repre- arising dispute out of a over the pleаdings nor that neither Berko’s concerning amount of in- the fire sentations trebling of findings support an automatic coverage a in effect at the time of surance damages, of DTPA Sec- an unlisted violation fire loss. The found in an- substantial 17.46(a) mandatory trigger not the tion does to it question to a broad-form submitted swer damage provisions of Tex.Ins.Code treble agent engaged had in one or more of that the 16, and the court erred art. Ann. being required four acts of conduct without judgment for be- rendering treble agent specify which act acts the had jury question conduct cause on Hart’s the engaged. affirm. We allеged to be segregate failed to the one act violation from the three an Insurance Code FACTS RELEVANT four, three, (points alleged acts and not so Berko, January ‍​​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌​​‌​‌‌‌​‌​​​​​​​‌‌​‌​​​​​‌‌​‍1990, In Inc. El five); judg- entering that the court erred d/b/a (Berko), President, through Encanto its Vice incorrectly ment on the answer to an based Blaugrund requested (Blaugrund), Sara that the worded where (Hart), employed Phil Hart D.J. Enter could, Hart com- may, have found that and prises, Agency Inc. Associated Insurance deceptive act misleading d/b/a mitted “a .J.)1, (D increase the amount of insurance separate findings that he practice” without $242,000 coveragе building on its from act that such act specific a and committed $650,000. According Blaugrund, Hart six); false, misleading (point or deceptive represented to her had fire that he obtained imposing trial court and that the erred $600,000 coverage building. on the On liability finding Hart based on a that his on 27, 1990, February building the was com may merely conduct have been destroyed day pletely seven). a fire. On the after (point fire, Blaugrund the Hart notified the only $242,000 coverage. OF EVIDENCE

building had SUFFICIENCY ap points first on subsequently against Ap- Appellants’ two Berko filed suit sufficiency peal legal factual pellants alleging of the Texas De- attack the and violations support “producing the ceptive Trade Protec- evidence Practices —Consumer (DTPA) with both finding. cause” When confronted Act and the Texas Insurance tion sufficiency points, we are against legal factual Appellants counterclaimed and Code. legal sufficiency ques unpaid premiums on first examine Berko for earned sever- Arts, Conveyor Co. v. 857 tion. Texmarc jury, policies. Trial was to a al insurance 743, [14th (Tex.App 745 violations of the S.W.2d which found certain . —Houston considering 1993, In Dist.] Hart writ DTPA and Insurance Code sufficiency point, we con legal damage, that acts “no evidence” producing cause of infer- evidence and reasonable knowingly, and that sider were committed opinion. Enterprises, and Inc. will be 1. Phil Hart D.J. collectively "Appellants” in this referred to

506 Products, (Tex.Civ. Inc., support jury’s

enees which tend find 614 455 S.W.2d ings disregard ail evidence inferenc App. [14th ref'd Dist.] — Houston contrary. n.r.e.). Stafford, es to the v. 726 Stafford (Tex.1987); Alviar, v. S.W.2d Garza Blaugrund assert that because S.W.2d If there is had testified even “if known that she more than a scintilla of yet Hart obtained the additional fire questioned finding, the “no evidence” coverage February on would she not have point Stafford, 16; fails. S.W.2d for other [sic] looked insurance not would she Arias, Worshаm Steel Co. S.W.2d against precautions have taken 1992, writ); (Tex.App. Paso no Fuentes — El Therefore, goes, argument fire.” Berko McFadden, 825 S.W.2d 772 — El alleged cannot show that it relied Hart’s on writ). predicate producing statement cannot solely Blaugrund’s “mistaken cause belief’ sufficiency case of a factual $600,- coverage had a Berko total fire challenge, the court must first examine all of building. evidence, Royal 000 on its reliance on Corpora Their v. Texas Brine Lofton tion, Consultants, Inc., (Tex.1986); Globe Ins. Co. v. Bar (Tex.1979), considering misplaced. 694-95 weighing after all evidence, Royal may Although Globe terms of the court set reads aside only contrary being if overwhelming adversely injured it is so to the insured affected weight clearly of as wrong agent’s misrepresenta- the evidence to be when it relied on the unjust. Bain, 175, v. coverage, opinion Cain 709 tion S.W.2d of it is clear from that (Tex.1986). 176 appellate subsequent Since an court only is cases that the “reliance” finder, may a it pass upon believing not fact not the entañed it was covered when it was credibility covered, of the witnesses or its substitute not so not that it would have taken fact, judgment for that the trier of even if if it that other action had known it was not support thе evidence would a different result. 577 covered. S.W.2d at 694. Clancy Corporation, 820, v. Zale 705 S.W.2d parties Both Farm Fire cite State & n.r.e.). 1986, (Tex.App.

826 'd writ ref — Dallas Gros, (Tex. Casualty Co. v. 818 908 S.W.2d 1991, writ), way, Appellants App. to Stated another no their — Austin positions assert that is either respective presence there no evidence not or absence Gros, enough prove alleged producing question to the evidence that Hart’s cause. misrepresentation misrepresentation producing alleged was a cause of was whether damages. recog agent damage Berko’s This Court has insurance to that damages nized that in to from resulting order recover insureds’ home landslide covered, deceptive under producing acts Article 21.21 the would was a cause of be Code, plaintiff required Insurance is loss the insureds’ where the showed prove question that conduct in was a that the insureds could not have obtained the producing damages coverage cause from source. Al sustained. desired other Company First though Am. Title El Paso v. the Gros Court muddied the water Prata, 697, (Tex.App. might 783 701 on what speculating S.W.2d the insureds have — El they Paso writ See also Tex.Ins. done if had known that from (Vernon covered, Supp. primary 21.21 & was not art. 1981 landslidе hold Code Ann. 17.50(a) 1994); ing insureds was effect that the were Comm.Code & Tex.Bus. Ann. (Vernon Supp.1994); required prove & v. available insur 1987 Weitzel Barnes, coverage producing 691 A S.W.2d 600 ance order to establish efficient, cause, producing exciting, they only cause “an need show that as a result of ” cause,.... Garza, misrepresentation, contributing they Rourke believed that v. Prato, (Tex.1975); they they covered when S.W.2d were insurance Globe, covered, Royal citing S.W.2d at 701. The evidence must establish were not so damages alleged factually at 694. neither Although were reliance Prata, foreseeability necessary caused defendant’s are elements of conduct. nor 701; Ring recovery, 783 S.W.2d at Rotello v. Around the evidence establish that must enough. 600,000, was act misleading, alleged get. all I could That’s plaintiffs actual producing cause of action. damages, there is cause of otherwise cross-examination, Blaugrund re- On further ata, also at 701. See Pr rely- testimony her that she was peated Texas Bank Laredo v. United South Nat’l cov- ing on to obtain additional Hart 278, 280 F.Supp. Fire State Ins. erage: (Absence (S.D.Tex.1985) allegations (Plaintiffs if have Attorney): Now he would injured upon plaintiff had relied or was Sara, get you, trying I’m told alleged misrepresentation required by the yet, dismissal). gotten I haven’t insurance but try go him you let ahead would have following Royal It is from cases clear place the insurance? necessary not a ele that reliance is Globe Yes, go him I let (Blaugrund): would have prove that a must in order ment consumer on. 17.50(a)(4) of the under Section recover DTPA or Article 21.21 of (Plaintiffs you liked Attorney): have Would Weitzel, 691 S.W.2d Texas Insurance Code. get why have he wasn’t able known Coats, 600; Co. Celtic Ins. Life date? it as 1992) (Tex.App. — Austin (Blaugrund): No. (Tex., modified, 1994 WL 278107 aff'd Garcia, 22, 1994); & June Co. (Plaintiffs Okay. Crawford Attorney): — El said (Blaugrund): probably wouldn’t have I denied); Prata, 783 S.W.2d at 701. anything. proof need establish that the factually by the mis ‍​​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌​​‌​‌‌‌​‌​​​​​​​‌‌​‌​​​​​‌‌​‍caused defendant’s (Plaintiffs just Attorney): You’d let him Crawford, at representation. 817 S.W.2d go on? fact in 101. Unlike the situations Crawford do, he (Blaugrund): needed Whatever Praia, that there was where no evidence right. that’s representation the conduct or of the defen damages producing dants were the causes of cases, by plaintiffs in sustained those (Defendants’ you’ve already Attorney): And Blaugrund

following testimony that Hart you that us if he had told told that her he cover told had obtained additional date, “Look, trying get the insur- I’m age producing of the cause of was evidence ance,” just you have him con- would let $358,000: Berko’s loss in the amount оf it, try get tinue to correct? (Plaintiffs Now, Attorney): con after that versation, Blaugrund, you make Mrs. did Yes, (Blaugrund): sir. any try effort to obtain insurance (Defendants’ you agree Attorney): Wouldn’t elsewhere? said, get the trying if he “I’m (Blaugrund): No. insurance,” any you wouldn’t have taken (Plaintiffs Attorney): you try maybe Did time, fire precautions against if your out consult with husband to find you? would you get insurance elsewhere? should have. (Blaugrund): I wouldn’t (Blaugrund): No. testimony evi- Blaugrund’s amounts to some (Plaintiffs you Attorney): try Did to under- scintilla, dence, producing more than a pro- of efforts better take kind for Furthermore, only evi- because the cause. tection of the store? he cоntrary is Hart’s denial that to the dence No, really. (Blaugrund): representation, such such made (Plaintiffs Attorney): Why not? support factually sufficient to is also understood, finding. Error One jury’s Points of Nos. (Blaugrund): told me I’ve I he figured I are overruled. got three. And I Two three and TREBLE DAMAGES answering “yes” ulous.” After ques- to the conduct, deceptive tion on Hart’s jury third, fourth, points, Ap- their and fifth then found that producing his conduct was a pellants contend that the trial court in erred damages cause of Berko’s and that his con- imposing damages treble under the automat- regard duct with deceptive acts was trebling provision ic of Tex.Ins.Code Ann. undertaken him 16(b) “knоwingly.” 21.21, § art. for the reason that such damages supported by were not plead- Under Section 16 of 21.21 Article evidence, ings, jury or findings as a Code, plaintiff may Insurance recover Specifically, they matter of law. argue that damages treble “prac violations of those pleadings since the failed to assert a cause of tices defined” Section 17.46 of the DTPA. action damages, would treble (Vernon 17.46 “unequivocal” there was no Tex.Bus. & Com.Code Ann. finding by Supp.1994). Supreme & that Hart The Court in was liable under Article 21.21, Watson, improper. treble Allstate Ins. Co. v. 876 S.W.2d 145 (Tex.1994), deciding party that a third on Hart’s conduct private does not cause of аction for form, was submitted to the in broad practices unfair claim against settlement an listing possible grounds court four liability party’s 21.21, insurer under Article disjunctive, only which the could 16(a), again Section confirmed once that the “yes” answer with or “no” and did in fact section, phrase in “any practice defined “yes” answer with no indication of which DTPA, Section 17.46” of meant those ground grounds or finding.2 The first practices expressly made actionable Sec grounds two were based on acts or tion 17.46.3 County See Mobile Mut. Ins. practices set forth in Article Section Jewell, (Tex. Co. v. 4(1) 910-11 (2), the third related to number 12 1977), Civ.App. n.r.e., 17.46(b) ref 'd “laundry оf the list” — El DTPA, S.W.2d 295 fourth, recog Allstate while asking whether Hart nizing Vail v. engaged Texas Farm Bureau Mut. “in Ins. decep- or (Tex.1988) practice,” tive act defining as con phrase tinuing decep “an act or series of to be the law as to capaci- acts which has the actionable ty tendency average practices tive or unfair deceive an between the insurer ordinary insured, person, though person actually even and the modifies Vail may ignorant, have been unthinking making 21.21, or cred- applicable Article Section 16 jury charge 2. The prudent in the person is as to a false conclusion of the follows: material facts. "False, misleading deceptive prac- or Question No. 1 act or engage any following Did Phil Hart tice" in of the means an act or series of acts which has the February respect capacity tendency conduct on Berko, average 1990 with or to deceive an or ordinary person, Inc.? though person may even Making causing any a. ignorant, or to be made unthinking state- have been or credulous. terms, benefits, misrepresenting ment or advantages 21.21, policy; of an insurance provides private or 3. "Art. section 16 cause Making, directly indirectly causing b. or or any practice of action for section 17.46 defined made, assertion, any representation, be or deceptive prac- the DTPAas an unlawful trade respect statement 21.21, with to insurance that was tice. Tex.Ins.Code Ann. art. 'Un- untrue, deceptive misleading; or or practices’ among claim fair settlement is not Representing agreement c. that an confers or enumerated items defined section 17.46 as an remedies, rights, obligations involves or deceptive practice. unlawful trade While section involve; which it not have or or does may complete 17.46 not be a list of unlawful false, Engaging any mislеading d. in or de- deceptive practices purposes trade of assert- ceptive practice. act or DTPA, ing expressly claims under the art. 21.21 that, practices makes actionable those acts or fact, answering Ques- You are instructed that in are defined in section 17.46 as unlawful 1, "misrepresentation” any deceptive practices. tion No. means trade Unfair claim settle- following: and, therefore, practices the (a) they ment are not listed fact; 21.21, untrue statement of a material or are not actionable under art. section 16 of (b) Watson, making The statements in such a the Insurance Code.” Allstate Co. v. Ins. reasonably manner or order as to mislead a 876 S.W.2d 145 they separately. not practices defined should be submitted specifically 17.46(b) false, (b), “any rather than unlisted And it allows the to consider Section false, practice deceptive practices that is determined to mis- be or acts or Vail, leading, deceptive.” alleged, or is the other than the one conclude, therefore, 135. We that Article misrepresentation pled, that has been 21.21, recovery 16 does not gone Section allow that all of the evidence has to. nothing simple finding based on mоre than a “false, misleading, deceptive or acts or

practices in the conduct of trade or false, object mis- to the definition of We 17.46(a) commerce” under of DTPA. Section practice leading deceptive or act or be- again, permit it the finder of cause would complaint Appellants in this fact under the definition to find a appeal includes the assertion that Berko was deceptive practice misleading act or utilizing foreclosed from the treble finding misrepresenta- specific without 16(b) 21.21, provision of Article since Section jury might so believe that pled tiоn allege it did not that Hart violated Article misrepresenta- Mr. Hart not make a did violating provisions 21.21 of the tion, find him but nevertheless liable. 17.46(b), judg and that Section therefore the supported by pleadings. ment was not object it conditioned We also because Berko, fact, The record indicates that had false, misleading on the submission of the pleadings, having made such claim in its practice question act maintained that “Defendants’ actions ... one, object to and we both of those. 17.46(b)(5), constitute a violation of Section objections These are based on a claim of (7) (12) constitute violatiоn of Art. redundancy complaint and a ...,” although 21.21 does mention the was not limited to consideration of the mis section, 16(b), statutory penalty section until representation that was the basis of this paragraphs Appellants argue two later. lawsuit, complaint regarding appli not a imposition of treble was also cability trebling provisions of the of Article erroneous because of the multifarious nature 16(b). 274; 21.21, Section See Tex.R.Civ.P. jury question of the “conduct” which allowed Kidwell, Ry. Fort Worth & D.C. Co. Tex. answer “Yes” without (1922) (Objection 245 S.W. 667 is suffi engaged Hart specific conduct which reasonably cient if it can be construed to give would rise under Article error.). fairly present point With 16(b) damages. to treble See Wm. H. regard damage complaint, to their treble we Schick, McGee & Inc. v. adequately conclude that did not 1990), dism’d, — Eastland alleged apprise the trial court of the error. ‍​​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌​​‌​‌‌‌​‌​​​​​​​‌‌​‌​​​​​‌‌​‍(Tex.1992).4 By failing to attack at the trial court level Appellants contend that a liberal adequacy pleadings appellate requires construction of the rules judgment by making sufficiently not by preserved that we find that the error was objection specific charge the to inform the to objections following proposed the to the complaints, Ap court of the nаture of their charge: pellants preserve to error. Tex. have failed R.App.P. 52(a). Porowski, object part question We also to d under See also Silva v. one, false, engaging any misleading (Tex.App in or 768 . —El n.r.e.). (a), deceptive A practice, act or because it is writ ref d trial court must be specific laundry given opportunity redundant with a ele- a fair to correct non- list Jansen, jurisdictional Dickey in— v. 731 ment under the D.T.P.A. submitted errors. false, laundry (Tex.App the list element [1st defines the S.W.2d 583 . —Houston n.r.e.). misleading deceptive practice or act or writ ref'd Dist.] Schick, prong endorsing, jury 4. In Eastland Court found that it was the could the since practices merely jury affirmatively the found that the defendants have found that the acts or "unfair,” engaged deceptive in “unfair acts or which would not un- and/or Schick, practices,” specifically announcing without DTPA. 792 S.W.2d at 517. der the 510 Three, Four, engaged in specific of Error act or conduct Hart

Points Nos. false, that act was a Five are overruled. whether or conduct practice. misleading, deceptive or act or Spradling, 566 S.W.2d at 563-64. OF IN THE IMPOSITION LIABILITY ABSENCE OF SPECIFIC Although previously held we FINDINGS Appellants’ objections charge error, Appel- point Under their sixth specific preserve enough were not to error by lants contend that trial court erred the trebling respect automatic with the entering judgment jury’s general on lia- the damages question, not reach the we do same finding, having re- bility jury the not been adequacy as to the of some the conclusion quired separate findings specific make on objections liability question. same on the conduct. unartfully Appellants’ expressed, ob While jections to subsection “d”7 the submission of Berko contends that failed to sufficiently specific to inform the court in this their fail- were preserve error instance complained matter at least object of the of and one specifically the court’s refusal ure to submitted, objection. ground for the As sub separate for each ele- questions “to submit 17.46(a) jury charge section “d” of the allowed the Berko ment of the Section claim.” deceptive act find a or or of submis- further asserts method the misrepresen practice based unnamed only in form not within the sion broad Eagle Spencer made v. Star by Tex. tation Hart. court’s discretion but is mandated (Tex. America, which, submits, Ins. in effect Co. S.W.2d R.CivP. Berko 1994); Montgomery Hernandez Ward & superseded requirements set the submission (Tex.1983). Williams, Spradling v. S.W.2d forth in submitting trial court erred subsection disagree con- We with these objection. Appellants’ “d” over tentions. discussed, conclusion, Having previously As has been reached charge inquiring step is to a harmless the in the the next conduct error whether require, analysis. about Hart’s conduct or even order to determine an did harmful, jury appel charge an permit, separate make a error pleadings of practices as to each of four or listed5. late court must consider the acts trial, result, impossible parties, presented it is tell whether As a just engaged charge entirety. in its Island found Hart had Recre Repub presents Development Corporation all one of the acts or four. This ational Association, because, possible Savings acts problem of the four lic Texas Robles, listed, (Tex.1986); first unlaw Turk v. three are law 755, 759 deceptive practices [1st trade DTPA ful under — Houston 17.46(b) or Article Error is deemed to Dist.] Insurance Code Section hand, only if, light 4.6 On the other be reversible when viewed circumstances, totality requires findings as to what amounted fourth further one, object part question also d under 5. See footnote 7."We false, misleading engaging requirement some 6. Because-of the "scienter” (b), practice, it allows act or because ... laundry practices list acts or under DTPA false, misleading deceptive acts to consider 17.46(b) and Code 21.- Section 21, Insurance Article alleged, practices which is other than one 4, pled proved each and such act pled, misrepresentation and that has been separately each is be since a should submitted object gone We all of the evidence to.... has unlike, example, separate ground recovery, of of the definition negligence may sub action have several a permit practice again, it would act because negligence acts of should be submitted in set fact definition find a the finder of under the Eagle Properties, Schar form. See Ltd. v. broad bauer, false, misleading practice deceptive act or 714, (Tex.1990). also 807 S.W.2d 724 See finding misrepresentation specific without Wolfram, P. Wolfram and Carol L. Walter Strate pled....” Texas, gic (State of Of The DTPA Bar 16th Grasp Course, 1993). Advanced Annual Civil Trial 511 (Tex. 827, rights complain- Keyser, a ker v. 540 S.W.2d 830-31 to such denial of of the writ). ing party reasonably 1976, that was calculated Civ.App. Corpus Christi — probably cause and did cause rendition of com In order to conclude that the error Turk, improper judgment. an 810 S.W.2d at Tex.R.App.P. plainеd degree of harm of resulted 81(b)(1). 759; 81(b)(1), required by we must deter Rule 81(b)(1), Appellants Under Rule sup mine whether or not there is evidence persuasively must demonstrate to this Court any porting of the an affirmative answer they have suffered harm from submis legal propounded in other three theories portion liability of sion the defective of the Question Company v. 1. See Ford Motor Turk, 759; question. at Nacol v. 810 S.W.2d Pool, 879, (Tex.App 688 S.W.2d 882 . —Texar McNutt, 153, 797 S.W.2d 156 1985), part, part, kana aff'd in rev’d 1990, [14th Dist.] —Houston writ We (error (Tex.1986) special issue S.W.2d 629 Appellants believe that have not met theory liability as to one of harmless where Appellants dispute burden. do nоt that the support properly there was evidence to liability other three theories of contained in (c) (a), (b), theory legal submitted set forth same properly subsections jury supported by submitted to the question); are see also Bernstein v. Portland pleadings Association, and the evidence. The fact Savings and Loan 850 S.W.2d that this Court is unable to determine wheth (Tex.App —Corpus Christi . (d) jury “yes” er the answered to subsection denied) (jury writ on three differ instructed opposed of the other three subsec acts, ent fraudulent but instruction as to one dispositive tions is not of the harm issue erroneous; jury type of was fraud because affirmatively because it does not demonstrate jury question, found fraud on broad-form probably8 that the error caused the rendition court could not determine which of three acts improper judgment. of an possi While it is by jury; if fraud was found to determine finding ble that the made an affirmative harmful, jury’s error court examined whether upon improperly theory based submitted finding supported was under other fraud liability, possibility is not a sufficient fraud). types If two the evidence does not 81(b)(1). showing under Rule When faced support finding an affirmative on question, with a similar the Waco Court of submitted, other theories then it would be conсlusion, Appeals reached the same proper to conclude harm is shown. See charge error harmless where it un Pool, Ford Motor Co. 688 S.W.2d 882. able to determine from the broad-form sub hand, if supports On the other the evidence negligence mission of the question whether jury’s finding other theo negligence upon inferred an based ries, Appellants then have failed demon ipsa loquitur erroneous res instruction or likely strate that it is more than not that an whether the found that the defendant improper judgment resulted from the error. specific negli committed one or more acts of Industries, gence. Dresser Page Inc. v. Pe light the fact that (Tex. troleum, Inc., 821 S.W.2d sufficiency legal not attacked the factual or 1991), App. part, part, aff'd in rev’d in — Waco regal'd to affirmative the evidence with an There are sever subsections, finding on the other three contrary, al cases that hold to the but in “yes” because there is so, doing fail to conduct a harmless error (a), (b), (c), answer to subsections we are Nesbitt, analysis: Lucas 653 S.W.2d portion unable to conclude that the erroneous (Tex.App. Corpus Christi writ — Question probably caused the rendition n.r.e.); Willis, ref'd Johnson v. judgment. 1980), improper of an For these rea- (Tex.Civ.App. — Waco n.r.e., (Tex.1980); sons, ref'd 603 S.W.2d 828 Par- we overrule Point of Error No. Six. "Probably” meaning proba ing likely Corpo is defined as "in a than not.” Fibreboard of "more Railway Pool, ble manner.” Aultman v. Dallas & Ter (Tex.App ration v. . — Co., 509, 596, minal 152 Tex. 260 S.W.2d 1991, Texarkana writ (1953). "probable" conveys The word a mean (Vernon Supp.1993) IMPOSITION OF LIABILITY ON 5069-1.05 modified Cav- prejudgment MISLEADING nar so as to allow on CONDUCT interest recognizing damages. future While that Tex. point Appellants under their seventh § prohibit 41.006 Civ.Prac. & Rem.Code Ann. entering judg in assert error the court prejudgment punitive damages ed interest on finding ment liability on the because the injury, involving personal property in cases the permitted as submitted damage, wrongful ground actions death find, found, may to it have negligence liability, in tort the ed strict misleading. merely some conduct of Hart was majority only spec of the court on this issue objection by Appellants ‍​​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌​​‌​‌‌‌​‌​​​​​​​‌‌​‌​​​​​‌‌​‍We find no which “[p]erhaps pre in dictum ulated footnote point this to relates to of error. Failure judgment pu interest would be available on objection timely make a to the submission of 41.006, § ... nitive awards not covered issue, special pre a definition or instruction including treble awards under appellate charge based cludes review Deceptive Texas Trade Practices and Con on asserted error relative to such sub Act, & sumer Protection Tex.Bus. Com.Code Capital mission. Title Inc. v. Donald 17.41, seq.” Tex.Sup.Ct.J. et son, 384, (Tex.App. — Houston cross-point is Berko’s overruled. Tex.R.App.P. 52(a). 1987, writ); [1st Dist.] no point The seventh is overruled. Having Appellants’ points all overruled of cross-point, judgment Berko’s error and FAILURE TO TREBLE PREJUDGMENT affirmed.

INTEREST KOEHLER, Justice, presents point, dissenting. Berko one cross contending that court in fail the trial erred Having the opinion of the Court authored ing prejudgment award. to treble interest based on we believe to be control- what Although Berko attached its motion law, may ling statutory and case it consid- be entry judgment proposed judgment a I unusual that I add a dissent. ered rather provision trebling included a the sum which so, however, express strong a convic- do damages prejudgment of the actual application tion that of the automatic interest, preserve this was er insufficient trebling damages provision of TexJns. may appellee complain ror. an on Before 16(b) Article under Code Ann. appeal cross-point, part judgment by a a produced outrageous an the facts of this case excepted judgment, filed must result. point, a motion for new trial on the or in ease, simple aрpropriate some manner In this we have at most a indicated jury, misrepresentation, it has with as found trial court dissatisfaction way in benefit judgment Group entered. Medical which resulted Service, on which Blau- Surgical Leong, Inc. v. 750 either (and Berko), (Tex.App. grund therefore her own Paso — El detrimentally denied); admission, rely in the Pipeline Corp. did not Delhi Gas Lamb, anything would have done sense that she — El n.r.e.). However, exactly Hart her what he writ ref'd even different had told Although I preserved, told her. have no properly if had been we claimed he error jury finding, holding quarrel this case was constrained to follow our with would bе trebling basically swearing a match which could have Leong and refuse to allow the way. easily gone prejudgment Prejudgment either In order activate interest. interest trebling damages provision, punitive specifically disal the automatic was “knowing- Quality Parking, that Hart Control find lowed Cavnar of, Inc., complained ly” the act or acts committed Nationwide, pretty much “auto- Inc. v. would be recent case of C H & reasonably con- 1994 matic” could Thompson, Tex.Sup.Ct.J. unless (June 22, 1994), know what he Supreme clude that Hart did not WL 278167 attorney saying. Although twice art. Berko’s Court held Tex.Rev.Civ.Stat.Ann. argument final assured the

questions they being CURLIN, v. asked to answer Appellant, Albert Evans punitive damages, were not about that was

exactly “knowingly” question what the Texas, Appellee. The STATE of about. Nos. 05-92-01535-CR 05-92-01537- Very recently, Supreme the United States CR and 05-92-01650-CR. Court, Oberg, in Honda Motor Ltd. - U.S. -, -, 2331, 2339, 114 S.Ct. Texas, Appeals Court (1994), Oregon jury L.Ed.2d 336 reversed an Dallas. punitive damage awai’d and remanded July case to the courts state for further consideration, stating the court that “Ore

gon’s abrogation of a com well-established protection against deprivations

mon law

property presumption proce raises that its Clause[,]”

dures violate the Due Process

adding that “[pjunitive damages pose an danger arbitrary

acute deprivation

property.” Oregon apparently law does not judicial

allow jury puni review of the size of damage

tive awards if there is punitive the award. If

awards perni can sometimes be require judicial

cious and thus some over

sight procedures, then what can be said mandatory statutory

about trebling provi

sions, subject judicial scrutiny, espe

cially applied when to eases similar to the just

one we have affirmed? Under Honda

Motor, trebling provision may the automatic

well amount an depriva unconstitutional personal property

tion of process without due

of law. opinion, In this writer’s the automa trebling

tic damages provision of Article 16(b)

21.21, Section needs be modified to

provide for punitive damages assessment of ‍​​‌‌‌​​‌​‌​‌​​​‌‌‌‌‌​​‌​‌‌‌​‌​​​​​​​‌‌​‌​​​​​‌‌​‍finder, subject the fact judicial to normal

review.

Case Details

Case Name: Hart v. Berko, Inc.

Court Name: Court of Appeals of Texas

Date Published: Jul 14, 1994

Citation: 881 S.W.2d 502

Docket Number: 08-93-00083-CV

Court Abbreviation: Tex. App.