Boyce Iron Works, Inc. v. Southwestern Bell Telephone Co.
| Decision Date | 06 April 1988 |
| Docket Number | No. C-6376,C-6376 |
| Parties | BOYCE IRON WORKS, INC., Petitioner, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent. |
| Court | Texas Supreme Court |
Robert J. Hearon, Jr., Graves, Dougherty, Hearon & Moody, Austin, Marlin L. Gilbert, San Antonio, David H. Donaldson, Jr., Pamela Stanton Baron, Graves, Dougherty, Hearon & Moody, Austin, for respondent.
Mack Kidd, Thomas R. Harkness, Kidd, Whitehurst, Harkness & Watson, Douglas W. Alexander, Brown, Maroney, Rose, Barber & Dye, Austin, for petitioner.
Boyce Iron Works, Inc. sued Southwestern Bell Telephone Company on alternative theories of negligence and violations of the Deceptive Trade Practices--Consumer Protection Act when a fire destroyed Boyce's offices. In accordance with a jury verdict, the trial court rendered judgment on Boyce's DTPA claim, awarding $229,596.88 actual damages, $110,937.99 in prejudgment interest, and $500,000.00 in additional damages and attorneys' fees. The court of appeals reversed and rendered judgment that Boyce take nothing. 726 S.W.2d 182. We reverse the judgment of the court of appeals and remand the cause to that court for further consideration.
Boyce maintained a silent burglar alarm to secure its premises. At approximately 5 p.m. on Friday, October 9, 1981, Boyce employees became aware of a problem in the telephone line that connected the system to the alarm company's office. Boyce officials did not notify Southwestern Bell because they believed that it was Southwestern Bell's policy that no repairs were performed after business hours, and that Monday would be the earliest that the line could be repaired.
During the early morning hours on October 10, 1981, burglars started a fire that consumed the Boyce premises. Boyce brought suit against Southwestern Bell and Master Burglar Alarm. The case was tried on alternative theories of negligence and violations of the DTPA. The jury found that Master Burglar Alarm was negligent and the judgment awarded Boyce $25,000.00 in damages. Master Burglar Alarm is not a party on appeal. The jury answered issues against Southwestern Bell on both theories of recovery. A judgment was rendered against Southwestern Bell, granting the more favorable relief available under the DTPA. The judgment incorporated the jury's verdict "for all purposes." The court of appeals reversed concluding that no evidence supported the finding that Southwestern Bell's misrepresentations were a "producing cause" of Boyce's actual damages. 726 S.W.2d at 187. In cross-point, Boyce urged that if the court reversed the DTPA judgment, it should nevertheless render judgment for Boyce on its alternative negligence theory. The court of appeals rendered judgment that Boyce take nothing, concluding that Boyce waived its cross-point because no complaint was made in the trial court.
Boyce's first point of error, regarding the cross-point before the court of appeals, is dispositive in this case. When a party tries a case on alternative theories of recovery and a jury returns favorable findings on two or more theories, the party has a right to a judgment on the theory entitling him to the greatest or most favorable relief. Hargrove v. Trinity Universal Insurance Co., 152 Tex. 243, 256 S.W.2d 73 (1953). See also 31 J. Wicker, Texas Practice § 306 (1985). Furthermore, under Tex.R.Civ.P. 301 the trial court's judgment must award the...
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