*1 POWER, INC., Appellant, SUN ADAMS,
John Adams Office d/b/a Machines, Appellee.
No. 2-86-268-CV. Texas, of Appeals
Court
Fort Worth.
May 1988.
OPINION LATTIMORE, Justice. appeal brought
This is an from an action Deceptive under the Trade Practices-Con- (“DTPA”), arising sumer Protection Act dispute pertaining out of a to the sale of a court, subsequent trial issues, answers jury’s ren- notwithstanding the judgment dered ver- appeals dict. Appellant take-nothing judgment rendered the court. error, points raises four in alleging failing the trial court erred in judgment render accordance with rendering judgment findings; and in affirmatively plead failed who accord and satisfaction.
We reverse render. court and error, By its first and seсond the trial court contends that failing to erred in enter Sun Power”) Power, (“Sun in Inc. accordance findings of in violation of jury, with the 301. Specifically, TEX.R.CIV.P. argues should trial court have jury findings issues accepted the 5c, 5a, 5b, as follows: numbers NO. 5 SPECIAL ISSUE (a) preponderance you find from a Do that the action course the evidence of JOHN ADAMS connection action of cash with the sales service ADAMS MACHINES isters OFFICE POWER, has been unconss- SUN INC. cionable? [sic] answering You are instructed action or course action issue that an is to a per- if it “UNCONSCIONABLE” son’s detriment and Whitten, Loveless, Kelsey, Gregory, (a) advantage Holt of the lack of takes Kelsey, knowledge, experience, D. or ca- Phillips, ability, H. David & Richard Denton, grossly Garcia, person unfair pacity of a degree; or Hammerle, Lewisville, Virginia Nelson (b) disparity gross be- results appellee. and consider- the value received tween involving SPURLOCK, II, in a paid, ation transaction JOE Before LATTIMORE, transfer of consideration. JJ. KELTNER stating By Answer “We do” or “We do the term “EXEMPLARY DAM- not”. AGES,” as used in this Issue is Special WE, JURY, sum of THE meant а ANSWER: WE injured DO compensate person his ac- damage punish tual loss but to (a) If you have answered Subdivision wrongdoer for his event, you “We conduct and to deter do” and then *3 following shall answer the him and others from similar behavior. Subdivision— (b) you Do preponderance find from a may question your You this in answer any that such unconscion- by stating in discretion a sum able conduct of JOHN caused ADAMS by stating cents or dollars and “None”. produced any damages and or adverse WE, JURY, THE ANSWER: POWER, effects to SUN INC.? $2,239.17 or Answer “Yes” “No.” Special issue pertains number 5 to sec WE, JURY, THE YES ANSWER: 17.50(a)(3) of the DTPA under which a (b) If you have answered Subdivision may consumer maintain a cause action event, “Yes” in and that an- then or any where unconscionable action course following swer the Subdivision— producing of action constitutes a cause of (c) money, paid What sum if now in damages. actual See TEX.BUS. & GOM. cash, reasonably fairly and com- 1987). 17.50(a)(3)(Vernon CODE sec. ANN. POWER, pensate any SUN INC. for Supreme The Texas Court clarified has damages and adverse effects? types damages three in section allowed stating any you may Answer sum 17.50(b)(1)under the to 1979 amendment cents; otherwise, so find in dollars may the statute: the trier of award fact answer “None”. damages; damages actual if actual are WE, JURY, THE ANSWER: found, mandatory it court statutory damages by award tre additional SPECIAL ISSUE NO. 10 bling portion damages of the actual If in Special one or more of Issues not exceed in all DTPA does 1, 3, 4, Nos. Charge you of this cases; finally, the in fact, trier its dis ADAMS, have found that JOHN D/B/A cretion, may award not more than three (or MACHINES, ADAMS OFFICE acted damages times аmount of in actual act) “KNOWINGLY,” failed to as that $1,000 in in excess of cases which de term has defined you been to and that ceptive practice or act is found to have doing his conduct in so caused in fact knowingly, been committed or alternative produced damages or adverse effects ly, them not award at all. Jim Walter See POWER, INC., to SUN shall you then Homes, Valencia, Inc. v. following question: answer the (Tex.1985); see also Martin v. McKee Inc., (Tex. Realtors, any, if 1984). money, What sum if any, if damages spe- in jury The actuаl cash, you now in find prepon- do from a they found cial issue number where would, your derance of the evidence in appellee acts of were unconscionable and opinion, as adequate be sufficient and producing cause of dam- damages exemplary punish said ages, damages ADAMS, and assessed $700. OF- JOHN D/B/A ADAMS damages MACHINES, exemplary further awarded making any FICE false $2,239.17 number issue make representation, failing material finding ap- fact, allegedly upon a fulfilling any premised a disclosure of or in wrongful рellee’s conduct found express implied warranty or SUN POWER, knowingly. you in issue number was committed INC. have found damages requested court enter a produced any fact the trial caused and Power, jury findings Inc.? favor of adverse effects Sun Power, allowing appellant corpo- Sun to recover them to continue business until the register repaired. actual as found ration’s cash jury, prejudgment interest at the rate Hill testified he told that it 10%, statutory critically important additional his business provided functioning as for within the DTPA. The triаl have a cash disregarded find- jury’s given court instead “loaner” an RC ings, granted appellee’s Allen; department motion for a four was a Appel- ister, opposed eighteen non obstante veredicto. to an department argues improperly register lant the trial court such as the ESPER. Scott disregarded him; jury’s findings granting stated that of no it was use to agree. judgment. register capability We re- insufficient gard inventory control. stated appellate for an court to order days it would take several in granting sustain trial court a motion *4 ESPER. Scott Hill was told that the RC veredicto, non obstante it given a Allen was “loaner” to customers no evi must be determined there is appellee order for to obtain business. upon dence the could have made which discussing After in the finding upon. new innovations Corp. the relied v. Exxon Quinn, industry, appellant (Tex.1987); appellee sold a new 19 Na S.W.2d Dist., ister, an RC Temple Independent Allen Scott varette Sch. (Tex.1986). making Hill the represented In testified that Adams register compatible is more appellant’s this determination of whether there was personal a evidence the IBM was computer, than scintilla of and all that finding, the to their jury could have made we must needed transfer information from original the in the favor the was light review most to new machine finding, considering only connecting the the two able the “hardware” —a wire support the Hill he not evidence and inferences which machines. Scott testified that knowledge finding any special opera- and in the rejecting the evidence and have register contrary finding. functioning and ferences See cash Bennett, appellee’s computer, and that he relied on Williams v. (Tex.1980); Laundry expertise Ma his business. Miller v. Bock Co., (Tex. chine 649-50 manual, Upon operator’s Hill reading the 1977). Allen not com- found that the RC 250 was IBM, present confirmed patible case is a under with the was claim pay for the Deceptive arising by appellee. Appellant from did not Trade Practices Act appellee. by appellant a cash Allen at the instruction of a sale RC cоrporation purchased then a second register. is the of Adams The owner Machines, and Allen appellee, services machine from RC which sells and Office IBM at that machines, including registers. represented compatible as cash also office time; purchase appellant do- all had to was family-owned corporation do Appellant S”), picked (“C software. The loaner had been ing & Beer Barn & business as C S store, pur- the first machine mostly pack- up by when selling a convenience No beer, chased was delivered aged goods, gasoline, and wine. appellant the loan- charge Hill. was is run made day-to-day Scott business charged, paid for of all er. Ninety-nine percent nine-tenths was 540; payment was the RC Allen are in cash. sales done receipt $2,239.17 given was appellant began hav- the Hills In October of Adams. register, their an ing difficulties programmed legi- 540 was model; printer not The RC Allen would ESPER Rick, was never appellee’s employee, tapes. Hill bly print on the Scott numbers comput- up pеrsonal re- he hooked appellee, who stated that contacted computer was days A few after registers. Appellee er. ESPER cash paired installed, entire told that the enable was register to gave the Hills a “loaner” register that, had to be sent California Hill testified after attempting installed, tickets, order disk to reconcile reasonable for a be and that estimate much resulting how cash lost from the ready software December. accounting procedure ruined the 540 given testifiеd that he was probably six was or seven hundred dollars. prior paying this information for the Hill testified that he does not what know time, mean Allen RC is, Titan 20/40 machine never discussed improperly calculating receipts 540 was buying machine, bought such never such a cash; the Hills control over appellee, machine from and was never their problems cash flow. This caused billed for a machine. with control over the as well register reprogrammed Hill, taxes. The was Hill’s Ernestine mother night bookkeeper family of C by Rick. business & S, represented testified Adams time, At this the ESPER was still perform the initial machine would all func- repaired by appellee; register re- necessary tions to their business. She also turned to in late December with told to pay testified Adams them not repairs, although printer invoice for per- for the machine because would not repaired. ESPER had not been represented by form the functions as him. Appellee sent repairman the same re- present She when second machine machine, pair the who told Hill he could bought, and she the invoice printer. Appellant pay did not $2,289.17 charge of for the RC Allen 540. *5 bill; the the machine still a was under problems She was aware of the the with 90-day warranty, but repaired. bunching was never as cartridge the ribbon problems printer per- and with the which The Allen printer again RC broke months, sistently occurred three thus later; day one ordered newa removing inventory necessary control printer which was not installed for a few keep the books. at She testified that no days. printer replaced was three labor, parts, time & S for did bill C times, repaired; never charge was anything respect any or else with ma- appellant. made to The ribbon on the ma- 540,plus appel- chine other than the the bill printer chine’s repaired. was also Appel- pay. lee instructed her not to She testified repairman, Rick, lee’s Hill told that the damaged was as a result purchased he from Adams was the worst time, records, the loss of funds and lemon had ever years he seen in his in the up which were tied and could not be uti- registеr Appellant finally business. personally spent lized. She extra five bought register a new cash from another week, days per day, hours seven company replace 540; totally the it is compute trying three sales. weeks the compatible with computer the IBM hour, at per She estimated her time $10 problems there been no using have it. approximately corpo- which is purchase had to ration also another During time, appellee represented ister. sold, that he serviced the machines hе stood behind all of his work. Adams told Hill, father, Hill’s share- Claude Scott warranty Hill was the with Adams he holder of Sun Power testified that be-
only, appellant, and not issued to who nev- came involved with Adams when Adams factory warranty. er received Allen also they told the initial Allen them RC give appellant refused to the 800 number compatible bought would not the with products, wanting Hill, RC Allen Hill represented IBM he had as Scott have discussion with the manufacturer. register he com- but that had a which was attempts After the a number new patible. Claude Hill wаs told that the 540, appellee enabling told Hill package Claude computer woulcThave problem any longer; computers that it his he in De- up wasn’t him hook the two appellant’s money pick refused to refund The 540 installed. The first cember. was up problem printer, broke the 540 was with the testimony printer Adams
many repaired. major times but was never When as to the arose, constantly breaking was that the Hills or problems the the machine pulling employees paper their the out Hill could not balance the cash and Claude fast, breaking pins of the machine too totals, register great which caused a print paper. Adams later Claude deal of trouble for business. problem admitted that could be with Hill testified that the 540 machine was opposed pins, defective solenoids to the repaired appellee, and three never paper receipt will not feed after initial months contact upward pins printing. are finished until Adams, requested appellee Hill Claude he approximately Hе also testified that had pick up machine come his and stand behind training hours of which the six if promise his to take it back was part. printer component is a satisfied; completely Adams refused. Adams stated that ESPER re- appel- to refund Adams further refused having prob- paired, but the Hills were still money. Adams’ to re- lant’s After refusal Hills for labor lems with it. He billed the machine, purchase price on the fund the Adams and service on the ESPER at $155. warranty Hill Adams told Claude that the he to be further testified that wanted made to and he did not know Adаms pertaining RC for the invoice warranty was. where $1,779.75, although the invoice billed that the Hills had Claude testified “Void” his own handwrit- was marked register never had a with the tradename ing. agreed He he Ernestine Hill told corpora- Titan 20/40. He stated that the bill, pay not to decided to damaged had been its charge they the Hills after filed a claim probably up years tied which was two against him. $3,800; corporation bought worth orally he Adams testified that warranted personally spent machine. He another days; warranty 540 for 90 states dealing problems to 80 hours with the defective, if the breaks or is machines; caused a reasonable gave fix He never the Hills he would it. hour, hourly per rate his time *6 though warranty, he factory the even $2,000. approximately is which money. not their return previ- he had John Adams testified that agreed that Hill to Adams testified Scott ously attempted get the to Hills’ business. his for a Titan 20/40 because trade RC 540 comput- knowledge had He ESPER get away the dot matrix he wanted to from for er, printer when he took it but the Gitelman, representative printer; A1 sales repair. Adams testified that he told Titan, company the who makes the for RC Allen the first the Hills the Rick, pro- employee, present. Adams’ IBM appellant, machine delivered for Adams grammed the Titan compatible. He then delivered the order, special the Titan was a testified that mistake in appellant. He realized his $1,995. price fair market of There with a accom- the could representing what Titan, no for sales purchase is no order the He then and took the machine back. plish, nor memo of ticket and no written contract Hill, suggested the Allen 540 to Scott RC compari- In ordering the Tital. Scott purchased. which son, initial RC 205 there a bill for the is Hill not Ernestine Adams instructed trial, testimony gave At Adams extended register. pay for potential as to the demonstrations print- expert the an dot matrix on himself out to be problems the Adams holds field, rely expects people he did did not fix He testified that in his er. piece is printers he makes. He printer; three the advice and statements $300 20/40, damages for the Titаn requesting into but Adams admitted put and resold was returned paid for them. the RC RC Allen he loss, did printers pins because at a keeps $700 five dot matrix stock pay for. all the time. they break Al Gitelman testified that he received peated attempts provide unsuccessful Hill, verbal order a Titan for parts, resulting gross but in a disparity there no received); were written orders. The machine between value and value order, cost Sales, retail and Town East Ford Gray, Inc. v. although regular there is a established 807 (Tex.App. — Dallas rеgister, writ) (unconscionable market very and it is a part conduct on the Further, pro- salesman, saleable item. supported by dealers automobile suf gram computer speci- showing customer’s ficient buy seller refused fications, they easily repro- can er’s purchase, demand rescind after even grammed. It repeated attempts failed). takes ten seconds to return car had zero, program repro- and one hour to We find that could have gram the machine. reasonably determined that either Medina, repairman Rick for appellee, tes- advantage took grossly to a tified he had never dealt with the degree gross unfair or that there was a problem that the Hills had 540 disparity in the value received and con appellee sold them. He stated that was Therefore, paid. sideration with reference possible he that made mistake on last issue number first repair, missing chip. to a due calendar He and second of error are sustained. did pins not know how on appel- broke Appellant is entitled to dam actual lant’s ages machine. Medina had Further, never worked jury. it is on pro- another nor had 17.50(a) he ever mandatory under section that the grammed type only court, upon award actual dam training Adams, he had ages, came from portion who two award times that of actu testified he training $1,000. had six hours of al that does not exceed Finally, himself. eight Therefore, it took min- Medina appellant is entitled to actual its change printers utes to damages multiplied 540. equalling two $1,400; together, appellant’s added recov reviewing jury’s finding of uncon- ery equals scionability in special issue number we note the special incorporates issue In its motion two definitions of “unconscionable” as verdict, appellant prayed prejudgment promulgated by Supreme the Texas Court. interest. Where are established Koonce, See Chastain v. a definite time and the there amount (Tex.1985). The court further defined determinable, definitely interest is recov “gross” the term within the DTPA as right erable as a matter of the date “given ordinary meaning glaringly its injury Concepts, Building loss. Inc. v. noticeable, flagrant, complete and unmiti- Duncan, *7 897, (Tex.App.— 667 S.W.2d 902 gated”. Id. 1984, n.r.e.). Houston writ ref d [14th Dist.] present case, damages In the the award of The courts have unconscionability found finding unconscionability a of in cases several similar to the before case under section 17.50 of DTPA. In re this Leasing court. Tri-Continental v. record, viewing is in there one 604, Office, (Tex.App. Law 710 S.W.2d 607 specific stance in amount of 1985, n.r.e.) —Houston writ ref’d [1st Dist.] fol is Scott Hill testified as mentioned. (salеsman position in superior a knowl of lows: edge advantage taken of lessee a Q. any way give Is can you there grossly degree by representing unfair jury a reasonable estimate of how much copy perform its intended accounting in you cash that have lost function); Mercedes-Benz Amer North procedure up? that was fouled Dickenson, 844, ica v. 720 S.W.2d 855-56 1986, writ) My A. an- (Tex.App. Worth no accountant would love the — Fort (court Oh, probably of ac swer to six or seven found unconscionable course that. by failing provide proper replace of cash that is hundred dollars’ worth supported by just— parts, ment evidence of re
696 Titan, put pertaining on
Q. Disappeared?
after Scott Hill testified that he knew noth-
Disappeared, that
is no idea
A.
there
ing
all
about
or,
know,
you
got
it
it is
how
where
really
is
where it is. So
is—that
satisfaction is an
Accord and
af
figure,
park
just a ball
too.
specifical
firmative
which must be
defense
relating
damages
not
established
ly pleaded.
Lynch,
v. Merrill
Fortner
period.
definite time
We therefore
Pierce,
8,
Etc.,
(Tex.App.—
13
687 S.W.2d
pre
is not
hold that
entitled to
n.r.e.).
1984,
Dallas
writ ref’d
Unless there
Tom
judgment interest. See
Benson Chev
consent,
improper
is
it is
Alvarado,
815,
rolet,
v.
636
Inc.
S.W.2d
judgment
trial court to submit or render
on
1982,
(Tex.App.
824
Antonio
writ
necessary plead
such a
defense absent
—San
n.r.e.);
Quintero
compare
ref’d
v. Jim ings.
Ind. Sch. D. v. Valero
Hays Cons.
Inc.,
(Tex.
Homes,
697 jury, mandatory statutory interest and reversing judg the trial court’s damages. dispute Because of the between rendering judgment ment and for Sun Pow parties interprеtation on er, the correct of provide did post-judgment we for the jury findings, agree we cannot judgment interest. a trial When court’s is appellee’s by contention of trial consent. erroneous the of the judgment court of Corp. See Miner-Dederick Const. v. Mid- appeals place, its and appellant must take Rental, Cty. (Tex. 603 S.W.2d 198 is entitled to interest from the date of the 1980). Appellant’s judgment motion for judgment. erroneous See Thornal v. Car posture was consistent its here and at Inc., (Tex. gill, 384-85 trial; therefore, there has been no waiver 1979). post-judg Sun is Power entitled to as to accord and satisfaction. See Litton percent, ment interest at ten Office Con of Products, Indus. Inc. Gammage, Commissioner, Tex.Reg. sumer Credit (Tex.1984). (1986), from the date of trial judgment, court’s October 1986.
A judgment
correspond
must
is
pleadings,
sues raised
of
nature
We
reform
judgment
therefore
of
proved
Texaco,
the case
and the verdict.
this court to read as follows:
Wolfe,
(Tex.
Inc. v.
This cause
on
came
heard
on
App.
1980, writ ref’d
[1st Dist.]
— Houston
transcript of the record and the
hav-
same
n.r.e.). Because there
pleadings
are no
ing
opinion
been reviewed it is the
of the
support appellee’s allegations of accord and
Court
there was error in the judgment
satisfaction,
and in absence
trial
of
con
of
judgment
the trial court. The
of the
sent,
we sustain
third and
trial court is reversed
is
rendered
fourth
of error.
In answer to the
is entitled to actual
pertaining
issues
to the Titan 20/40
$700.00, multiplied by
equaling
two
register,
the jury refused to award dam
$1,400.00,
$2,100.00.
By
sum
ages
and,
therefore,
no harm
stiрulation
parties, appellant
is
was done.
$9,000.00
fees,
in attorney’s
awarded
con-
judgment
The
of the trial
improper-
court
$7,000.00
sisting
for the initial
ly consisted, in major portion, of a trial
$2,000.00
appeal
Appel-
to this court.
brief or
improper
memoranda.
It is
post-judgment
lant
entitled
is
interest at
these items to be
transcript
within the
per
the rate of
annum from the
10%
date
appeal. Litton,
Appellant’s rehearing motion is here-
by granted. opinion court will
stand, judgment being re-
formed.