*1 rights existing immediately after Nettie’s
death based upon possible extinguishment TRUCKS, INC., Appellant, SUPERIOR by Nettie. Whether Nettie ex- effectively tinguished appellant’s prior right not only with the first bank but also with appel- ALLEN, al., Appellees. et lee successor Bank was not addressed in the trial court’s findings of fact and conclusions No. 01-82-0297-CV. law, nor does the Bank argue that it was. Texas, Appeals Court of Nor argued is it that waiver occurred in (1st Dist.). Houston 1974. We find no necessity to address this matter on appeal. Dec. 1983. further, trial court did conclude Rehearing Denied Dec. 1983.
and appellant challenges conclusion, could not “properly pru dently manage the estate of the Ward” and disqualified thus to be appointed
guardian of the estate. Section
Probate Code provides the following per
sons shall not be appointed guardians:
(g) Those who reason inexperience
or lack of education or for good other
reason, are shown incapable to be
properly and prudently managing and
controlling the ward or his estate.
TEX.PROBATE CODE 110(g) ANN. §
(Vernon 1980).
The trial court had before it the evidence
and the witnesses. It could believe or
disbelieve any witness. Chitsey v. Pat Win
ston, ante. The court could properly draw
this conclusion from the evidence before it.
Point of error three is overruled.
In view of disposition our of the first error,
three points of we do not find it
necessary disposition to make of the re-
maining five. They challenge the trial
court’s findings regarding keeping
records, receipts want of of expenditures,
requests for funds to be used for her family Ward,
and not solely for the and that appel-
lant lacked for truth credibility and veraci- that,
ty. We will state appellant’s while
testimony nervousness, possibly reflects counsel,
non-attention to questions
many self-serving statements, it just as
strongly uncle, reflects a love for her family
concern, and think the family pride. We
court wisely appointed guardian her the person. judgment is affirmed.
139
him him what he needed. told McDonough haul- he was familiar with the T. Inc. business, ing had sold a lot of trucks there, people who worked and that he knew just what Jumel needed. Jumel called sev- eral at ap- times and looked trucks on the lot, rejected pellant’s they them but because were too for purpose. old intended McDonough telephoned later told good him that he had located a truck him, truck, for tires, a 1973 with new and a new dump bed added National Truck. instructions, On Jumel and McDonough’s Richard went to see truck at National’s yard, and test-drove it. Ju- Richard When sale, McDonough mel called to discuss him, “I again good assured know it’s a truck ... I it and it’s good looked at truck.” $3,500 After accumulating pay- down Adams, Wayne Elskes, Earl James Hous- ment, Jumel went to close the sale with ton, for appellant. appellant. financing The remainder of the *5 Houston, Larry Watts, for appellees. was As- arranged by appellant through appel- soсiates The owner of the Finance. SMITH, Before COHEN, BULLOCK and lant company personally intervened to JJ. transfer truck from to title to the National the appellant, and Jumel and Richard OPINION picked yard at the up appellant’s the truck BULLOCK, Justice. shortly thereafter. This is an appeal judgment from a en- appellant’s manager Although the credit after jury tered a for the appellees verdict company’s policy testified that it was his in an action for of the violations Texas a and “make-ready” that all trucks have Deceptive (DTPA) Trade Act Practices and dangerous that no truck the lot in a leaves express warranty breach of in connection condition, McDonough testified he was and with the sale of a truck. manager responsible for the credit giving Allen,
In Jumel one all specifications of the two the information on the appellees, truck, decided hauling including year, employee to enter busi- Allen, ness. Richard other truck appellee appellant and bothered to examine the brother, was, fact, Jumel’s was to do the driv- to determine that in a 1973 going ing. Early body April of Jumel contact- model or that was bolted Inc., carrier, ed local as weld- opposed being T. and determined frame of the cab to if he testified not McDonough obtained a used truck that ed. that he did was too mat- good condition, not old and examine to ascertain these was in the truck company give hauling would him ters. contract. Inc., Cobb of
Jack T. testified that although began driving As Richard planned, firm was lease a willing his 1973 used Inc., truck, building materials for T. hauling with dump body, truck a new they would operating profit. at a and the business given not have Jumel a contract оn a truck T. Inc. testified that managers old as 1969. job them, for and did a appellees good elsewhere, looking reasonably expected could After Jumel the contract contacted however, weeks, seven McDonough, for After Bert salesman to continue. appel- lant, Inc., while Trucks, in the middle Superior collapsed and explained the truck Issues ad- hauling. for Richard was head truck was suitable hauling a load. Richard’s exem- malice, and cab, anguish, hit the back of force of the mental dressing breaking blow in his mouth. Al- plate were also submitted. plary damages though the collapse ruined the brakes all appellees found for fuel tank dragging ground left the on the exemplary to claim Jumel elected issues. leaking fuel, managed diesel Richard for damages awarded escaped by the truck off the steer road treble rather than warranty, breach breaking out a window. The trial court the DTPA. damages under collapse, appellees After the discover- 11 which issue no. disregarded frame ed for the first time that the truck for mental compensation awarded Jumel been welded instead of bolted as it had anguish. It collapsed along should have been. had compen- judgment for The court entered appellant the weld seam. Jumel called the $21,568.80 the amount of damages in satory to have to find out what to do and was told $73,137.60 for damages of exemplary “fix yard the truck towed to National’s for $5,000 under the DTPA Jumel and for The wrecker driver the non- up.” placed Richard injuries suffered personal National, garage drivable truck in the at collapsed. the truck when yard. but it was later moved into the fenced points thirteen National, urges The аppellant At Jumel promises rebuffed error, two cross- appellees present and the money pocket in his and a new truck if he points. told a lie as to the true condition
truck. is af- the trial court judgment McDonough
Jumel called and told again firmed as reformed. the truck McDo- him that was “totaled.” error, ar- point In his first nough told Jumel that if he did not do what rendering the trial court erred gues that do, help. him to he National asked could permitted appellee, which judgment however, Jumel, still to lie and was refused for a Allen, exemplary damages to recover upset by these communications. He very *6 which, according to the warranty breach of called assistance in attorney getting his for disregard a malicious or wanton jury, “was there- appellant. Shortly a truck from the Jumel Allen.” We plaintiff, of the rights after, disap- he learned that the truck had agree. peаred from National’s The truck yard. has not located. been exemplary is clear that Texas law that Subsequently, appellees learned of con are not allowed for breach damages Florida as originally the truck was titled in Alexander, v. tract. Amoco Production Co. model, altered a 1969 but the title had been (Tex.1981); A.L. Carter 563 622 S.W.2d after it show it as a 1973 model sometime 523, 526, Saide, 168 140 Tex. Lumber Co. v. possession. came into National’s 629, (1943). Even if the breach 631 S.W.2d exem malicious, capricious, or is intentional In addition to the DTPA and breach unless not be recovered plary damages may claims, pled also warranty appellees Amo alleged proved. is and a distinct tort special fraud. The trial court submitted Co., Corp. Prods. supra; City co Production DTPA, inquir- issues to the under Berman, (Tex.1980); 450 610 v. S.W.2d adversely whether or not Jumel was ing for Co., A suit supra. Lumber A.L. Cаrter by found by misrepresentations affected warranty, such express an breach of court; was ad- whether or not Richard governed and is here, based on contract misrepresentation versely by affected Kinslow, contracts. the law of Smith by uses, benefits of of the characteristics or (Tex.Civ.App. 910 truck, money and as to the amount of — Dallas Thus, proof and pleading absent writ). each fairly compensate which would an tort, suffered; the breach independent an loss any regarding them for mali- warranty, even committed express warranty express that the breach 142
ciously wantonly, fraud, or will an of actionable elements however, exemplary damages following: are the recovery. (1) that a was appellees urge representation material that such a distinct made;
tort, fraud, namely was both pled, proved, and, therefore, and found by jury, false; (2) that was award of exemplary damages proper. that, it, (3) when the made he speaker Alternatively, they urge that any element it recklessly knew it was false or made of fraud not expressly found by jury is without of its truth and as a knowledge supported by evidence and should be assertion; positive implied pursuant to Tex.R.Civ.Pro. 279. (4) that he made it with the intention contentions, however, Neither of these upon by party; that it should be acted supported by the record or the law of this (5) party upon that acted in reliance State. it; and In order to recover on an express (6) thereby injury. that he suffered warranty, appellees had the burden of Inc. v. Texas Bank & Leasing, Custom establishing: Dallas, (Tex. Trust Co. of 516 138 S.W.2d (1) made; that a warranty was 1974). The that all appellees argue (2) breached; it was were by elements of actionable fraud found to its answers to the (3) that, jury pursuant breach, as a result of the above, and, special three issues outlined injury resulted. addition, by its answers issues no. Co., Inc., Indust-Ri-Chem. Lab v. Par-Pak inquired: and which 282 (Tex.Civ.App. — Dallas no writ). Allen, The appellee, Jumel sus SPECIAL ISSUE NO. tained this burden pleading proving you preponderance Do find from a of the action, his cause of the result of which Plaintiff, Allen, rea- evidence that prompted affirmative responses to the fol sonably upon representation relied lowing special issues: Defendant, Trucks, Superior made by Inc., question that the truck in was fit for SPECIAL NO. 4 ISSUE hauling use in his business to his detri- Do you preponderance find from a ment? Defendant, evidence Superior do,” Answer: “We or “We do not.” Trucks, Inc., through its authoriz- which the “We do.” [To answered] agent, ed expressly warranted truck Plaintiff, was suitable for use by *7 NO. 12 Allen, SPECIAL ISSUE
Jumel in his hauling business? of the evi- preponderance Find from a sji % Sfc ifc sk si! if that money, any, dence what sum of SPECIAL NO. 6 ISSUE Plaintiff, Allen, should be awarded youDo find from a of the preponderance Defendant, Trucks, Inc., Superior against Defendant, evidence that Superior damages? as exemplary Trucks, Inc., express breached the war- means an amount “Exemplary damages” ranty? in discretion award you may your which sj: s}: ‡ % # penalty an to others and as a example SPECIAL ISSUE NO. in addition to by way punishment, or of been found may amount which have any the you preponderance Do find from a of by damages. as actual you Defendant’s, Superior evidence that cents, if any. in dollars and Answer Trucks, Inc’s, express warranty breach of “$73,- jury the if the proximate damages, was cause of which answered] [To Plaintiff, any, by suffer Jumel Allen? 137.60.” is tanta- a Analysis finding representation of of false necessary of each element simply It fraud, warranty. and mount to breach of light special in issues submitted, reverse of the that the instruction that were discloses does not follow the urged by the now appellees’ argument: error in the in Datsun holding Valley is warranty of (i.e., that a breach appellee (1) representation: Material al- is representation) a false tantamount to instructed, alia, jury express inter that warranty Indeed, express an ways true. by “any warranties are created affirmation the existence of without can breached promise by factor made the seller to the whatsoever. any representation false buyer goods which relates to becomes part bargain.” basis of the In order the or dis (8) Knowing falsity reckless to the satisfy retrospectively rep “material to respect this regard of truth: With fraud, appellee resentation” element of fraud, appellee refers crucial element contends: jury in which special us to no. issue definition, By is express warranty breach of appellant’s concluded that made when an affirmation fact or a wanton a malicious or disre warranty “was promise made a seller by buyer to a ap gard rights [appellee].” (is goods material) which to the relates as tantamount to a pellee finding views this part of the becomes basis of knew the finding that either speaker bargain (induces buyer into enter made reck representation was false or the transaction). The jury, answer to its lessly knowledge of truth. any without Special Issue No. found that Appellant can be disagree. representation We A warranted that the expressly truck was will, grudge (i.e., or sрite made with ill suitable for use by Appellee Jumel Allen knowledge made with malice), and not be business, in his hauling which defini- by Furthermore, finding that a falsity. its materia] tion representation, was a made or recklessly made in cal representation is bargain, basis of the for purpose rights (i.e., disregard lous of an individual’s of inducing Appellee buy the truck. finding that the wantonly) equal does not Finding “an affirmation of fact prom- or a any without knowl statement was made ise goods” to the relating does not establish Indeed, recklessly). edge (i.e., of its truth automatically representation is ma- stated that previously this court has terial. appellant’s express warranty committed “whether inten breach [a was] that the truck was suitable for use with reckless tionally, maliciously or disre appellee hauling is, in his business under plaintiffs] for gard rights [the material; record, however, precise pleadings, immaterial” absent definite issue presented was not tort. a distinct Tash proof findings of thus was not determined. Tashnek, 653 (Tex.App.— nek v. 1981, writ). Houston [1st Dist.] False
(2)
representation: As to this
element,
appellee
refers
this court
(4)
respect
reliance: With
Intended
issue no.
the answer to which
requirement
representation
that the
found
had
that the
breached the
with intent that it
was made
the speaker
express warranty,
appellee thereby
con
nothing
there is
upon,
should be acted
cluding
that “the
further
found
arguably
which even
jury’s findings
appellant’s
representation was
false.”
*8
finding.
resembles
a
such
Thus,
appellee’s position
it is the
that a
Reliance;
(5)
Injury:
remain
finding
warranty
of
of breach
is tanta
found
the
fraud were
ing elements of
representation being
mount
To
false.
is,
ap
found that the
jury.
jury
That
support
position,
aрpellee
this
cites Val
representation
pellee
upon
relied
Martinez,
ley Datsun v.
injured thereby.
was
Christi
(Tex.Civ.App. Corpus—
however,
are insufficient
writ).
case,
there
Concluding
In that
the reverse
said;
recovery based on
is,
findings
support
jury
the court held that a
fraud, we turn to the appellee’s
lips,
alternative
145 evidence resulted warranty recovery, rather of the express the than a preponderance question? in a fraud from the occurrence recovery. cents, if in dollars and separately Answer that all Concluding the elements of following the to each of any, respect with and, by fraud were not found the elements: alternatively, appellee the is not aided mod- bargain year a. on Loss of based operation the Rule of we hold that el: the trial in allowing recovery court erred of $6,500.00. Answer: exemplary damages based on a “malicious bargain b. based on character- Loss of or wanton” of express warranty, breach it did benefits or uses which istics or Co., Amoco Production and we supra, sus not have: appellant’s tain the first ground of error. $6,500.00 Answer: apрellant’s The second points and third of addition, was instructed that In the urge error the trial court erred in means “the difference be- bargain” “loss of failing grant its motion for an instructed of and its tween the value what is received verdict based the upon appellee’s failure to value represented.” as present evidence of damages regarding loss in of bargain upon appellant urges, points of based misrepresentation of seven, is no through model” error there “year (point 2) no. four error and of “characteristics, jury’s findings the with benefits evidence to (point or uses” damages bargain for loss of 3). respect error no. “characterics, and on “year based on model” overruling of a motion for alternative, the uses.” In the benefits or verdict instructed will be reviewed on are findings submits that these appeal only if it was in a recited formal against great weight prepon “so the or in judgment. Drilling order the Ellis manifestly as to be derance of the evidence McGuire, Corporation v. 321 911 S.W.2d unjust.” we note that Preliminarily, (Tex.Civ.App. 1959, writ ref’d — Eastland points. the latter two appellant mislabels n.r.e.); Smith, v. Lewis 198 598 S.W.2d challenged on When the vital fact is one (Tex.Civ.App. Worth writ — Fort opponent which had complaining party’s dism’d); Southwestern Materials v. Co. factu proof, point raising burden George Consol, Inc., (Tex. “in insufficiency properly al labeled an Civ.App. 1972, writ [14th Dist.] — Houston However, when point. sufficient evidence” n.r.e.); Bost, ref’d Steed S.W.2d 385 fact was one on which challenged 1980, writ). (Tex.Civ.App. — Austin burden, complaining party had presently record before court is void of this was finding is that the adverse proper point requisite recitation in either form against great weight preponder of аn order entered the trial court or in ance evidence. McDonald Tex.Civ. of the judgment. complaint Since this Here, produc Prac. the burden of 18.14. § record, preserved not so it cannot be support findings evidence to ing sufficient appeal. considered on of the measure proper elements Points of two are error and three over- on damages appellee, plaintiff. rested ruled. Schuenemann, Chrysler Corp. v. (Tex.Civ.App. [1st Dist.] Regarding appellant’s points error — Houston Thus, n.r.e.). ap since the ref’d writ through seven, the following four rele- proof had burden of pellant’s opponent Special inquired vant: no. 3a issue and b issue, damage points six and seven jury: “great labeled improperly which are Find from a preponderance evi- insuf will be considered as weight” points, any, dence if if money, paid what sum points. ficient evidence cash, fairly now would and reasonably standards of review under compensate Jumel Allen for the The applicable losses he sustained, points if .. .: any, you has which find from such *10 146
1) bargain?” is, of “loss That Legal insufficiency points: legal Where what is the insufficiency raised, are points such as “no value between the of the truck difference law”, evidence” or “as a matter of this of and the value the truck as as delivered court charged is with reviewing only the More specifically, warranted? what is the evidence which tends to the find value difference between the of 1969 a ings. We must also give effect to all rea (the delivered) truck truck as and a 1973 sonable inferences that may prop be drawn (the warranted)? truck truck as Upon erly from findings and must disregard case, of the no as appellee’s closе evidence all contrary or conflicting evidence. price Clearly to this existed. differential Texas, McClure v. Allied Stores of 608 in appellee had not carried his burden 901, (Tex.1980); S.W.2d 904 Butler v. Han respect. Chrysler Corp., supra. this There- son, 942, (Tex.1970); 455 S.W.2d 944 Garza after, to appellant offered evidence as Alviar, 821, v. (Tex.1965). 823 damages through testimony Barry of 2) Factual insufficiency points: Where fac- damage a Morgan, self-employed appraiser raised, tual insufficiency points are such as Morgan of heavy vehicles. testified that “insufficient “great weight”, evidence” or 1977, 1973 the market value of a truck in this court charged examining is with all the $2,000 would more than approximately evidence, including any contrary evidence some to Although 1969 model. evidence as to the finding the jury special presented, differential was price Estate, issues. rе King’s See In 150 Tex. $6,500 findings pursuant jury’s (1951). 244 660 S.W.2d no. 3A issue cannot withstand “no evi- challenge. dence”
From a substantive standpoint, best summary principles is found in what is the difference Similarly, Chrysler supra, Corp., wherein Chief Justice truck’s between the value of the character Coleman stated: istics, as delivered its benefits or uses general principle governing damages characteristics, or uses as warrant benefits for breach of contract is that com respect, appellee, ed? In this recover, plaining is party entitled to the Allen, testified that the truck’s value to him necessary amount as put good him in twenty thirty was between thousand position as if contract per had been it, and, when he after the purchased dollars formed. In a case a sale involving nothing. him was collapse, the value to personal property the of dam measure argues rule in Texas ages is the difference between cash goods is that owner of must show market of the value article as delivered value, as qualified testify he is to their and what its value would have if it been language of this court citing following had been absence as warranted. In the Autohaus, Holland, v. in Bavarian Inc. of other proof market value war (Tex.Civ.App. - Houston ranted, price agreed upon between 1978, writ): [1st Dist.] the parties may be taken as the market of a witness qualifications In Texas the value of that for which parties con testimony knowledge are value give
tracted.
If an article sold and warranted
general
things
in
value-standard
value,
has
complaining party
some
particular
knowledge
class
recover the
he
entitled to
full amount
to be valued. The
particular
thing
paid,
has
is limited
but
to the difference
knowledge must have a
witness
in value as above stated.
If the article
one)
(if there
the vicin-
market value
all,
paid
has no value at
then the amount
degree
some
ity, and it must be based
Kinslow,
may be recovered.
Smith
.
personal
observation.
S.W.2d 910 (Tex.Civ.App. — Dallas
no writ).
however,
ignores the lan-
appellant,
following the above cit-
The issue
a simple
guage immediately
under consideration is
one:
it is said:
passage,
What was the
ed
wherein
appellee’s/plaintiff’s
*11
Nothing.
I was out
Nothing.
A.
When
testify
the owner
to
goods
seeks
value,
supplied).
(Emphasis
to their
as
their
...
distinguished from
him,
value
that he
to
the Texas rule is
the
for
Thus,
by
found
damages
$6500
so;
must
qualified
show that he is
to do
misrepresen-
due
bargain
the
to
the
loss
prima
he is
it if
facie
to state
he
qualified
is
benefits,
or characteristics
uses
tation of
declares he knows the market value. 37
of testi-
range
the
and within
conservative
998, citing many
A.L.R.2d
cases.
Id. mony presented.
(Emphasis supplied).
four and
of error
points
The appellant’s
Allen,
Clearly,
appellee,
testified
model”,
sustained.
six,
are
addressing “year
as to the value of
to him and
property
seven, addressing “charac-
and
Points five
to
qualified
he
not
do
thus
need
have been
uses”,
overruled.
are
teristics, benefits and
so:
of er-
eighth point
his
The
appellant,
By Mr. Watts:
Allen,
ror,
Richard
appellee,
that the
argues
Q.
truck
What was the value of the
to
under the
a “Consumer”
does
as
qualify
not
you?
inquiry
that
re-
Concluding
DTPA.
that,
Mr.
to
to
object
Adams: We
him
negative response, the
quires a
that
that
answering
grounds
on the
that
$5,000
award under
challenges
thereby
is
damages
not the measure of
injuries
for
suffered
personal
the DTPA
case,
would
and
not be relevant
a result of the truсk’s
Allen as
Richard
qualified
opinion.
be
to
an
give
expert
collapse.
owner,
As
let
Court:
I will
him
specifically
defined
“Consumer”
answer.
that definition therefore
in the Act and
him, please.
Answer
Products,
Ring
v.
Around
Rotello
controls.
A.
me?
for
To
The whole total cost
me?
Inc.,
(Tex.Civ.App
614 S.W.2d
. —Hous
Q.
was
truck
What
the value
that
to
1981,
n.r.e.).
writ ref’d
Sec
ton [14th Dist.]
you in 1977?
“an
as
indi
17.45(4)
tion
defines consumer
A.
twenty
thirty
About
or
thousand.
who
vidual,
corporation
or
partnership
Q.
you obligated yourself
Is that what
lease, any
or
acquires by purchase
seeks or
to pay for it?
In Cameron
Terrell
goods or services.”
(Emphasis
A. Yes.
supplied).
Inc.,
Garrett,
(Tex,
&
note,
this
we
respect,
In
as heretofore men-
1981),
Supreme Court instructed:
tioned,
in the
proof
that
absence
other
recognized at
least
two
We have also
warranted,
price
market
as
value
for
that must be еstablished
requirements
agreed upon
parties may
between the
under
person to
consumer
qualify
taken as to the
value of that for
market
is that
requirement
the DTPA. One
parties
Chrysler
which the
contracted.
acquired
or
person
sought
must have
Corp., supra.
appellee also testified as
or
by purchase
goods or
services
follows:
recog-
requirement
lease....
Another
By Mr. Watts:
or
goods
is that
Court
nized
Q. What was the value of the truck to
must form
or leased
purchased
services
Road
you after
broke down
Federal
If
complaint....
either
the basis
you?
and Interstate
to
lacking,
ag-
person
requirement
Mr.
He
Objection,
practice
Adams:
Your Honor.
or
deceptive
act
grieved by
qualified
give
opinion
has not been
to
law or some
to the common
must look
any
before and after of
damages.
redress.
for
statutory provision
other
objection.
I’ll
Court:
overrule that
respect
are met with
Both requirements
Mr. Watts:
By
The record
Allen.
Richard
appellee,
Allen,
Richard
appellee,
Q.
was
What
the value
in June of
reflects
you
acquired for
the truck
truck,
drive
going
after it had
broken
hauling busi-
into the
of going
purpose
down on Federal Road
Interstate
10?
ness
a contract with
dence,
T. Inc.
against
under
Before
great
weight
prepon
the purchase, both the appellees arranged
evidence,
derance of the
no pleadings.
Inc.;
job
for the
with T.
both
appellees
The record further
reflects
appel
that the
went
truck;
to National’s yard to see the
objected
lant’s counsel
issue 14 in
inspected
truck;
Richard
and test-drove the
the issue
vague
was “too
and needs
he also went with his brother
to receive
type
some
of instruction as to what ele
delivery of the truck from
appellant.
damages
ments of
the jury might consider.”
*12
Whereas, it was Jumel Allen
“acquired
who
The appellant’s objection to pleading was
goods
by
...
purchase”, Richard Allen
language
The
of this court in
waived.
Ma
“sought goods
Cameron,
...
purchase.”
Hall,
Volkswagen
han
v.
A
disclose. How-
сontrary position would be untenable.
ever,
Indeed,
issues 19
special
and 20 were sub-
appellee
best summarizes the
objection
mitted to the jury
result
without
if a contrary position were taken:
counsel, except
general
Astro’s
a
upon
The denial of recovery
Appellee
to
Rich-
objection
objections
form
requested as
ard Allen
say wrongdoers
would
to
that
“A,”
“D,”
“B,” “C,”
parties
and
which the
they may escape the consequences of
agree
evidence,”
meant “no
“insufficient
their misdeeds when the goods
they
that
evidence,” “against
great weight
and
sold,
have
as a consequence of their mis-
preponderance
evidence”,
of
and “no
representation
uses,
of its
characteristics
pleadings.”
or benefits, happen
injure
someone
Objections to a
must
charge
specific
оther than the
be
party who literally signed
distinct,
and
Brown v. American Transfer
purchase
agreement.
Co.,
Storage
(Tex.1980),
&
601
931
S.W.2d
The appellant’s eighth
of
point
error
objection
spe
and
form
which does not
overruled.
cifically inform the trial
court of
na
appellant
The
urges,
in his ninth
issue,
ture of the
in a special
defect
will
point
error,
of
that the trial court erred in
preserve
error. Monsanto Company
failing to sustain the appellant’s objection
Milam,
(Tex.1973).
v.
534
S.W.2d
to the submission of special issue no. 14
list” of
“laundry
Since Astro used
ob
based on the proposition that
the theory of
issues,
jections
to each of the
recovery incorporated therein has never
sufficiently apprise
did not
the trial court
pled;
is,
been
that
the appellee, Richard
submission
objected
that
it
of is
Allen, pled only negligence and not а DTPA
sues 19
ground
and 20 on the
that
action, and, therefore,
cause of
error,
it was
un
pleadings
support
would not
a claim
over objection, to submit special issue no.
der the
Act
Deceptive Trade Practices
disagree.
14. We
disclose,
objec
based on a failure to
that
The appellant
objected
contends that it
tion must be deemed
Tex.R.
waived.
the submission of the special
ques-
issue in
Civ.P. 274.
tion “based upon
being
there
no pleading to
The
ninth
error is
appellant’s
point issue”,
support the submission of the
yet we
overruled.
are not referred to the portion of the record
reflecting
objection.
Instead,
such
appellant urges,
The
in his tenth
appellant urged
error,
record reflects that the
erred in
point
its
trial court
“A”, “B”,
list” of
“laundry
objections
“C”,
pursuant
evidence
to the collater
excluding
“D”,
rule,
which counsel previously
payment
on an insur
stated
al source
evidence,
mean
would
no
insufficient
was made to the Associate Fi-
policy
evi-
ance
probable
losses.
computation
basis for
Company
promissory
nance
which held
(Tex.Civ.
as Bank Trust & presence to re by in order (Tex.1974) dispelled should have been that a show exemplary fraud a must plaintiff regarding cover for issues of the special made a recklessly or knowingly defendant I Consequently, malice. damages fact in of a material representation false by as rendered judgment would affirm it, and tending plaintiff rely upon that the the trial court. upon plaintiff actually rely must therefrom. injury suffer mali- appellants found that the warranty, by
ciously express breached fact, name- a material
falsely representing the appel- the truck sold to
ly, age of ap- found that
lees. The further material, on this malicious
pellees relied misrepresentation their detrimеnt. CARR, et Bivens Ben Addie Thus, all, if not of the elements many, al., Appellants, In this by jury. fraud were found situation, 279 of the I would hold that Rule al., HUBBARD, Appellees. et Darryl us requires Texas Rules of Civil Procedure issues, any, sup- to deem if the omitted No. 01-83-00120-CV. of the trial court. Rule port judgment Texas, Appeals of provides ground that where a of recov- Court Dist.). (1st ery consists of more than one issue Houston necessary some of the issues to sustain 15, 1983. Dec. recovery, necessarily refera- ground with thereto, jury, ble are answered record, in the then the
evidentiary support
omitted issues shall be deemed found judgment,
court in a manner to
when, case, *15 objection as in this was made jury issues from the
to the omission of such
charge. were neces
The issues found to a cause of action for
sarily referable
fraud, of the fact especially view issue, exemplary regarding
another
damages, was submitted and answered was nec appellees. of the That issue
favor the cause of action
essarily only referable damages can exemplary
for fraud because fraud, any not for recovered for but jury. action submitted to
other cause of exem Texas law that
It is well established for a cannot be recovered
plary damages
malicious, gleeful, even a breach indeed v. Alexan Amoco Production Co.
contract. Therefore,
der, (Tex.1981). a whole and charge
from a review I believe parts, as a series of isolated ap in the any
that if there was confusion charge mind when the
pellant’s