*3 JUNELL, Before ROBERTSON and CANNON, JJ.
OPINION ROBERTSON, Justice. appeal
This is from a entered judgment appellee a concerning favor of in suit of a construction home. While issues complex, themselves are not especially large case has made complex been number of the extent of pleadings, testimo- (in ny pages), excess the number of (38) issues appeal. Basically, appellants’ conten- (1) tions concern the amount entitled to as an offset the contract evidence; price; (2) (3) the state issues; (4) failure to submit conflicts answers; (5) error in awarding rent- al damages; value of home as an element of home 9)failed to find pre- fees and (6) the award work- interest, (7) failure to not judgment manner; manlike We reform the damages. award treble judgment to delete the award of reasonable failed to com- 10) failed to home, rental but otherwise value within reasonable plete the home affirm. time; money not lose 11) appellants did found pertinent on Octo- facts indicate that home; other did on the sale of their parties contract signed ber 1976 the addi- funds for spend additional a home providing would build money loan did lose tional paid for which he would home on value of rental representing or plus his costs lesser of 15% actual built; being of construction The estimated cost time for and the estimated prac- 12) specific five of six acts *4 was months.
completing about, construction six to have occurred inquired tices The interim loan was closed on false, construction to mislead- but none have been com- November 1976. Construction deceptive; or ing July month of following menced the and 13) misrepresent did appellee found moved into the house. appellants services; or materials work They complained appellee about of acts and 14) any find that failed to ap- were yet completed. Appellants an practices constituted unconsciona- closing proved permanent for a loan and a action; of ble action course 1977, then initially August was set for of for 15) fees found reasonable following for the This rescheduled month. attorney; appellants’ did not litigation parties ensued and the of rental value 16) the reasonable found agreement December come a final until time appellants the house from closing permanent 1977 when on $4,200; closing was moved until commitment finally loan held. substantially per- 17) appellee found address properly order contract; formed error, jury: points of we note that taking July home in 18) found that 1) cost to construct the found actual work contract accepted to contract and according house performed appellee; would have agreement parties of and between kitchen 19) found bar $70,000; been good a was not constructed in den 2) profit in con- found the reasonable manner; workmanlike $7,500; struction of house would be utility oven and 20) to find the failed 3) appellee express made an war- found not constructed room wall were all ranty for work under the contract manner; good workmanlike year; for one containing 21) the kitchen cabinets found 4) had a defect in work- found house in a were not constructed stove manship; manner; workmanlike 5) found failed correct appellee given was not 22) appellee failed to defect; cure de- a opportunity reasonable 6) proximate found failure construction; fects appellants; damages cause of written had no 23) appellee failed to find 7) failure to correct to find such mislocation complaint notice area; appel- adversely
the defect affected oven room wall and utility lants; written notice 24) had no appellee found cabinets kitchen repair complaint about 8) cost to found the reasonable stove; $2,500; containing correct defect would 25) argument found had no written notice further this issue As on an complaint about bar contend entitled to between den; price offset the full contract from
kitchen and they performed including value of work 26) money have owed to complete cost and cost supervision, appellee since closing; date of request No issues were correct. 27) found reasonable attorney’s fees for offsets; therefore, appellants ed for these appellee. time complain ap cannot for first peal. through Points of error one five are In points of error through one overruled. five, grouped discussion, for the issue presented is the amount to which appellants next group are entitled as an offset the con complain of the state the evidence. price.
tract
Appellants argue the trial
numbers six and seven appellants complain
court erred in failing to enter a
sufficiency
take noth
evidence to support
ing judgment
compensate
answer of
appellee because “he
profit.
failed to
for his
The contract ex
furnish evidence
properly
meas
pressly provided
profit
of the lesser of
ure the deductions and omissions to be sub
15%or
This contract price was evi
tracted from the contract price.” This issue
dence
probative
value supporting the
is not properly preserved for our considera
jury finding. Montclair
N.
Corp.
Earl
tion because
presented
it was never
to the
Co.,
Lightfoot Paving
Inc.,
ror to sum of if do find award price the full contract from preponderance of the evidence only by offset the damages the repair would be the reasonable cost to the jury they for what contend was a breach of workmanship? defect in express warranty. we What have said applies above equally to this contention. There no objections were to this issue nor offered; Evidence was the issue was sub were additional requested instructions on jury; jury mitted the the answered the the amount of damages appellants. Evi- issue, and the judgment. court entered The dence was concerning submitted defects in argument is without merit. workmanship and the cost of remedying good in a was constructed the home jury
those and the found some defects manner,” the against great as good and workmanlike performed the work was not overwhelming preponderance weight place We refuse workmanlike manner. not what the this was Again, evidence. that the upon jury the limitation answer it to find that found; jury duty jury It appellants litigants do. is the in a and work- was not constructed jury pre- to isolate the issues discussion The same manlike manner. appellate serve the so court can record of error. point to this applies made above appellants any If had pass upon issues. and, obviously, conflicting issue, The evidence they should objection special appellee’s much of jury chose believe trial; it have it at cannot make made quality the issue concerning However, evidence appeal. for the first time on say simply cannot We of construction. $2,500 insufficient, attacking the award as favorably their failure evi- they presented maintain thir- Point of error evidence. weight of the $5,890 $6,290 damages, of which dence is teen overruled. we they claim was not rebutted. While that the amount was question the assertion fourteen, fif rebutted, evidence, even if uncon- com teen, and nineteen eighteen troverted, binding jury. was not issues answers plain jury Co., 142 Tex. Coxson v. Atlanta. Life Ins. practices trade concerning deceptive (1944). The S.W.2d overwhelming weight and great testimony ap- was free to disbelieve the We decline evidence. preponderance expert. The award of pellants’ jury’s have as appellants these issues to address weight is so great 418(e) failing violated Tex.R.Civ.P. overwhelming ev- preponderance Appellants’ issues. properly brief these manifestly unjust. Appel- idence to be assertions factual bold continually make tenth of error is overruled. lants’ record. to the citation any without 911 pages is in this case facts Point of error eleven attacks statement of This court are 111 exhibits. jury’s long answer to issue No. 31 “that and there *6 record the to search utility the room wall was constructed in a is not required un position appellants’ and manner.” This is good supporting workmanlike evidence error, and in this found; of points failed to jury jury particular not what the the der These points in we to so search. good find that it was constructed a case refuse not merely This are and workmanlike manner. overruled. to meet their bur appellants
means failed sev and Points of error sixteen However, will of the we proving den fact. other answers to jury’s the enteen attack as a contest construe contention al concerning issues parts special the being to find jury to the failure of the so as Trade Deceptive the leged violations overwhelming great weight the and the had (DTPA). Appellants Practices Act evidence, preponderance proper thus the elements to establish all of proof burden finding Prun ly invoking powers. our fact appel In sixteen their claims. DTPA Bank, (Tex. v. Post ty Oak S.W.2d 645 appel- that answer jury’s the argue lants Civ.App. Dist.], 1973, writ [14th — Houston would house that the “representation lee’s evidence, n.r.e.). Looking ref’d to all the workmanlike good in a and constructed be have say may we cannot that since the wall false, misleading or a manner ... was not at with been constructed in dimensions odds against the practice, is so or deceptive act jury the desires of therefore a overwhelming preponder and great weight was not constructed in finding that the wall manifestly be of the evidence ance was re good a manner and workmanlike fail to understand unjust.” We overruled. This of error is quired. jury found complaint. While the (to in a be built representation attacks the made the of error thirteen Point manner) they failed 9, “that workmanlike good issue No. and jury’s special answer favorably above, and answered issue, jury find mitted to the in as discussed another not have de Alamo, the a the answers would that house was not constructed in recover the sum good right and workmanlike manner. The an- feated Moulton’s swers are consistent and since we overruled in to issue No. jury answer by found the thirteen, point of error error six- point of was correct We believe the trial court 45.” teen is appel- without merit. In seventeen instruc requested denying appellants’ argue jury’s lants appellees answer that relating and issues to failure tions “representations adequate, competent that if the issue of failure consideration. Even qualified and supervision provided would be have been could be said to consideration false, ... was not a misleading deceptive consent, “the substance by tried we believe or practice, act is so against great issues was substan requested each weight and overwhelming preponderance of tially submitted in other issues contained the evidence as unjust.” manifestly Miller, charge.” main Cree v. court’s Again, jury found the representations 255 S.W.2d (T ex.Civ.App.—Eastland made, to have been but find failed to n.r.e.). writ ref’d Points error representations false, misleading, etc. eight and nine are overruled. The evidence conflicting, was and as we Next, discussion, grouped for are read the answers are all consistent. contending of error irreconcilable We say cannot answers are point of jury conflict in answers. In error great weight of the evidence. Points of jury twelve assert conflict in an error sixteen and seventeen are overruled. 9, 30, swers to and 32. special issues Nos. In points eight and jury answer No. 19 nine, discussion, grouped for appellants con that in a house was constructed tend the trial court refusing erred in good Appel and workmanlike manner. submit their jury issues on failure consid a argument finding lants’ that this is that eration. Failure of is an consideration af good the home constructed firmative defense which must be raised workmanlike manner has been re already verified pleading. 93(j), Tex.R.Civ.P. 94. jected. jury issue No. 30 Failure of plead. consideration was not bar between the kitchen den While it might be said the issue was tried work by consent we would not be comfortable in manlike manner and in No. 32 so holding. The evidence adduced at trial kitchen cabinets the stove were containing which could be said relate to the issue of not so constructed. There is no conflict failure of consideration relates much more between answers. These points are directly to issues raised the pleadings overruled. already submitted to the other *7 special issues. Examples include substan In error point twenty appellants of performance tial and most of the issues special contend that the answer to issue No. relating allegations to under the DPTA. In 18 in jury where the to find that cer the leading subject case on this Moulton v. tain acts “false, which occurred were a mis Alamo Inc., Ambulance Service, 414 S.W.2d leading deceptive practice” is in irreconcil (Tex.1967), 444 the Supreme Texas Court able conflict with their answers to issues No. expressed its proce dissatisfaction with the 30 and 32 above. We to fol discussed fail dure of including issues pertaining logic low and cannot discern to an affirmative defense when such issues error twenty conflict. Points of twelve and have already been submitted in another are overruled. form. remarked, As the court the result Next, would be proliferation grouped “a for are issues in discussion an area already mired in a three error prolixity contending it was to complicated $4,200 issues.” Id. at 448. The court award as reasonable rental further commented at 449 “it is obvious the constructed home from date ap that had the requested pellants issues been sub moved in until the date of closing.
882
31,
8, 1977 to December
July
house from
challenges our consideration of
Appellee
this contention
presented
is
in
1978. While this contention
for failure of
appel
points,
only
three
we need
sustain
error
particular
attention to the
direct our
point
twenty-one.
lants’
of error
we
it
sufficiently
but
believe
is
upon,
relied
review. Both
designated
authorize our
attorney’s
The next issue concerns
fees.
the Texas
Court
parties agree
Supreme
that
point
twenty-four,
In
case,
Smith,
624
Baldwin
586 S.W.2d
failure to enter
complain of the trial court’s
on other
(Tex.Civ.App. Tyler),
rev’d
—
in
favor for the amount
judgment
their
(Tex.1981), is the
611
611
grounds,
S.W.2d
jury.
by
such fees as found
Appellee
on this issue.
ar
controlling case
express
an
breached
had
us
gues
requires
uphold
that Smith
the DTPA.
a violation
warranty,
argue
Appellants
court’s award.
that
trial
will
we
assume
discussing
this
result
is
due to the
contrary
required
$2,500 was at
jury’s award of
agree
We
distinguishable facts of Smith.
express
of an
“breach
part
least
warranty.” Appellants
Smith,
the contract
appellants.
with
acknowledge that
$31,300.
price was fixed at
The house
art.
applying
TEX.REV.CIV.STAT.ANN.
be
on or before
question was to
courts
(Vernon Supp.1982-1983),
29, 1977,
9,
January
1977. On
March
un
fees
attorney’s
award
have refused to
purchaser
and the
complete
house was 98%
recovery. They
has a net
party
less the
in with the builder’s
moved his furniture
not be
rule should
however, the same
argue,
occupan
physical
March 12
permission. On
the DTPA because
under
applied to claims
although
began. The
that
cy
jury found
provides
specifically
17.44 thereof
Section
substantially performed,
builder had
the
there were defects in need
act are to
of the
purposes
the underlying
repair
false, mislead
consumers
“protect
period
amounting
During
un
practices,
business
ing,
deceptive
1978,
28,1977
February
until
from March
the
war
breaches
conscionable actions
prohibited by
purchaser
builder
economi
efficient and
ranty
provide
except for a
going
premises
from
on the
Fur
action.”
procedures
cal
ther,
to secure
through
from November 8
thirty day period
December
offset and
an
permit
“to
they say,
judge
when the trial
decisions
the rationale
then follow
to vacate
enable
purchaser
ordered
corrections to
(appellants)
deny
2226 and
under Article
be made. The builder had
de
would
fees
attorney’s
recovery of
fi
agreed
pay
interest on
interim
cit
purposes,”
underlying
feat the DTPA’s
paid
but the
nancing,
purchaser actually
Brumlow,
630 S.W.2d
1982,
ing Guerra v.
$2,900
financing interest. The
in interim
writ).
no
Antonio
(Tex.App. — San
purchaser
court allowed the
to be
supreme
Guerra
that since
(There
held
the court
$2,900 expended plus
for the
reimbursed
trade
deceptive
of his
on one
recovered
damages,
required
but
was not
claims,
though he
practice
even
against the reasonable
amount be offset
neverthe
recovery, he was
a net
awarded
This result
of the house.
is
rental value
of his
portion
recover a
less entitled to
the builder’s
given
the fact that
justified
respect
due
fees.) With all
attorney’s
interest
it
financing
for interim
liability
Court, we
Antonio
opinion
San
move
purchaser
would be unfair
disagree.
respectfully
running
completion
up
thus
prevent
in and
the re
authorizing
price
on a fixed
contract
Article
the builder’s cost
the “Act
fees,
provides
could
be ob
permanent financing
covery
since
its
to promote
complete.
liberally
until construction was
construed
shall
tained
Appellees
that
out
pointed
us
to hold
As
purposes.”
would have
read Smith
underlying
expressly
likewise
buyer
pay
law a
must
the DTPA
a matter of
appellants,
*8
construction, but Sec
if moves in before
provides
contractor rent
he
for a liberal
the
permanent financing
ques
the time in
17.50(b)(in
is
We do
effect at
obtained.
tion
such
recovery In the
broadly.
tion)
authorizing
the case so
case
in
not read
con
$4,029.86
actions, provided “each
us,
in inter
appellants paid
before
in DTPA
fees
costs
may
court
prevails
of the construction
obtain
part
im interest as
sumer who
and
(There
attorney’s
is
(reasonable)
that to
fees.”
permit
We believe
cost.
wording
for the reasonable rental
difference
meaningful
further recover
no
statute.) Upon
allow
provision
present
the house would
effect
in the
value of
recovery
this
two
in the
strikingly
sustained. Thus
so
similar
damages
wording
statutes,
be
the same rule should
the trial court committed error
we believe
we hold
$4,200
We therefore
the rental value of the
under both statutes.
awarding
applied
as
of action the
that in DTPA cause
shall recover
judgment,
party
hold
original
(as consumers) were not entitled
shall
court but
higher
the
the costs
attorney’s
they pre-
recover
fees unless
of the court be-
pay
costs
adjudged
low
”
vailed,
be-
they
prevail
and that
did not
Accordingly,
appeal
costs of this
....
cause
were not awarded a net recov-
against appellee.
are adjudged
twenty-fourth
is
ery. Appellants’
overruled.
point
is
rehearing
motion for
over-
Appellants’
ruled.
twenty-five
Point of error
asserts
awarding
in the
fees to
error
Appellee was
to attor
entitled
appellee.
pursuant
to TEX.REV.CIV.
fees
ney’s
2226,
(Vernon
arts.
5472d
STAT.ANN.
twenty-
Point of
Supp.1982-1983).
error
is overruled.
five
PARTIN,
ux., Appellants,
et
C.H.
of error twenty-eight ap
v.
pellants
assert error
the trial court’s fail
ure to award them treble damages.
HOLDEN,
al.,
Appellees.
et
Zula
rule is well established that absent a net
No. 13811.
recovery in
favor appellants are not
entitled to treble damages.
Durham St.
Texas,
Appeals of
Court of
John,
(Tex.1983).
to appellants. Since have suf fered a net judgment them, trial court was correct in awarding prejudg ment interest to appellee. Black Pipe Lake Line Co., Co. v. Inc., Union Const. S.W.2d 96 (Tex.1976). Appellants’ points of error twenty-six and twenty-seven
are overruled. The judgment is reformed to delete therefrom the award to appellee of value, reformed, rental and as so is affirmed.
OPINION ON APPELLANTS’ MOTION
FOR REHEARING discussing appellants’ eighth and ninth
points of original error our opinion, we stated that failure of consideration was not pled. is While issue not crucial to the these disposition points, what we intend- toed was that failure say of consideration not properly pled pleading since such not verified required by affidavit 93(j). Tex.R.Civ.P. Appellants further contend we were in assessing appeal error in the costs agree. We apply them. We
provisions pro- of Tex.R.Civ.P. 139 which appealed, court judg- a case is if the against vide “When *9 higher ment of the but for less amount than the appellant,