Building Concepts, Inc. v. Duncan

• Decision Date: 16 February 1984
• Docket Number: No. A14-82-675CV,A14-82-675CV
• Citation: 667 S.W.2d 897
• Parties: BUILDING CONCEPTS, INC., Appellant-Appellee, v. Marvin Woodrow DUNCAN, et ux, Appellees-Appellants. (14th Dist.)
• Court: Texas Court of Appeals

Page 897

667 S.W.2d 897

BUILDING CONCEPTS, INC., Appellant-Appellee, v. Marvin Woodrow DUNCAN, et ux, Appellees-Appellants.

No. A14-82-675CV.

Court of Appeals of Texas Houston (14th Dist.).

Feb. 16, 1984.

Rehearing Denied March 8, 1984.

Jacalyn D. Scott, Bonham, Carrington & Fox, Houston, for appellant-appellee.

Atreus M. Clay, Mike Cokins, Law Offices of Atreus M. Clay, Houston, Thomas F. Lay, Pasadena, for appellees-appellants.

Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.

DRAUGHN, Justice.

Mr. and Mrs. Marvin Duncan instituted this suit against Building Concepts, Inc. and Southmore Savings Association ("Southmore"), seeking damages under the Deceptive Trade Practices Act (Tex.Bus. & Com.Code Ann. § 17.41 et seq.) ("DTPA"). The suit arose from a breach of contract for construction of their residence. Building Concepts, Inc. counterclaimed for recovery under the contract, or in quantum meruit, for labor done and materials furnished in constructing the Duncans' residence.

At the conclusion of plaintiffs' case, the trial court directed a verdict for Southmore. Based upon a jury verdict, the court awarded the Duncans treble damages of $34,050, plus attorney's fees. In addition it cancelled the mechanic's lien assigned to Southmore by Building Concepts. Building Concepts, Inc., in turn, recovered $49,625.60 in damages ($38,490 for labor and material furnished and $10,855.60 in prejudgment interest), plus attorney's fees. Both parties have appealed from the judgment below. We affirm in part, and reverse and render in part.

On or about October 12, 1976, the Duncans and Building Concepts, Inc. entered into a mechanic's and materialman's lien contract with power of sale, whereby Building Concepts agreed to construct a residence on the Duncans' property. The Duncans paid Building Concepts a total of $1,500 as a down payment, and executed a mechanic's lien note for $44,300. Building Concepts assigned the note and lien to Southmore Savings Association to secure an interim construction loan of $44,300. In a separate transaction, Southmore made a commitment for nine months to the Duncans for a permanent loan on their home at the conclusion of its construction. In August 1977, Southmore gave the Duncans, at no charge, a two month extension on their permanent loan commitment, because Building Concepts had not completed the house. The house was still unfinished at the end of this two month period, and the Duncans purchased another one and one-half month extension from Southmore for $215. In November 1977, Building Concepts ceased work on the Duncans' home. The house was never completed by Building Concepts, the Duncans never paid the contract price, and this litigation resulted.

In answer to special issues, the jury found the following:

(1) Building Concepts failed to construct the Duncans' house in accordance with the plans and specifications;

(2) such failure was a producing cause of damages to the Duncans;

(3) Building Concepts did not fail to construct the house in a good and workmanlike manner;

(4) Building Concepts did not represent that the Duncans' house would be built in 120 days;

(5) Building Concepts represented to the Duncans that it would supervise and adequately inspect the work of its employees, sub-contractors, and/or agents;

(6) such representation was false, misleading, or deceptive;

(7) such representation was a producing cause of damages to the Duncans;

(8) Building Concepts abandoned the construction of the house in November 1977;

(9) Building Concepts did not substantially perform the contract;

(10) the reasonable cost of completing the Duncans' house in a good and workmanlike manner according to the plans and specifications in October 1977 was $7,500;

(11) the reasonable cost of completing the house in a good and workmanlike manner according to plans and specifications at the time of trial was $15,000;

(12) the reasonable value of the labor and material furnished by Building Concepts to construct their residence was $38,490;

(13) the market value of the Duncans' home as constructed in November 1977 was $44,790;

(14) the Duncans suffered damages in the following amounts: (a) value of commitment money paid to Southmore--$820; (b) value of stolen carpet--$500; (c) expense of storing furniture--$2,530;

(15) the value of unauthorized improvements made by Building Concepts was $4,520;

(16) the value of the Duncans' attorney's fees was $15,300;

(17) the value of Building Concepts' attorney's fees was $3,975.

MR. AND MRS. DUNCAN

In their first point of error, Mr. and Mrs. Duncan contend the trial court erred in directing a verdict for Southmore Savings. We disagree. In determining the propriety of a directed verdict for Southmore, we must view the evidence in the light most favorable to the party against whom the verdict is instructed. Where there is any evidence of probative value in favor of the losing parties, the issue must be determined by the jury. A directed verdict is warranted only when the evidence shows that no other verdict can be rendered and the winning party is entitled to judgment as a matter of law. Texas Employers Insurance Ass'n. v. Page, 553 S.W.2d 98 (Tex.1977); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943). We do not quarrel with the Duncans' standing to pursue a cause of action under the DTPA against Southmore in this case. See Flenniken v. Longview Bank & Trust Company, 661 S.W.2d 705 (Tex.1983). However, in accordance with § 17.50(a) of the DTPA, the Duncans were still required to show that they were adversely affected ¹ by a false, misleading or deceptive act or an unconscionable action, if any, committed by appellee Southmore. To support the contention that they were adversely affected by Southmore's actions, the Duncans rely on one or more conversations they had with an employee of Southmore. The discussion involved the possibility that Southmore might be forced to foreclose the Duncans' lien assigned to them by Building Concepts, if Building Concepts failed to pay on its note. We find nothing in the record to show how such discussions harmed the Duncans. In fact, Southmore did not at any time institute proceedings, nor did they tell the Duncans they were in the process of instituting any proceeding. In addition, there is no evidence that the Duncans relied on the conversations, causing delay and damages in the completion of their house. We hold the trial court properly directed a verdict for Southmore Savings Association, and overrule the Duncans' first point of error.

In point of error two, the Duncans argue the trial court erred by failing to allow recovery for the reasonable cost of completing their house as of the trial date, rather than the date Building Concepts breached its construction contract.

The DTPA was intended to permit a plaintiff to recover the greatest amount of "actual damages" he has alleged and proved to be caused by defendant's conduct, including related reasonable and necessary expenses. Hyder-Ingram Cheverolet, Inc. v. Kutach, 612 S.W.2d 687 (Tex.Civ.App.--Houston [14th Dist.] 1981, no writ); Woo v. Great Southwestern Acceptance Corp., 565 S.W.2d 290 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.). However, the Act does not extend the scope of "actual damages" beyond the rules of common law. American Transfer and Storage Co. v. Brown, 601 S.W.2d 931, 939 (Tex.) cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980); Harrison v. Dallas Court Reporting College, Inc., 589 S.W.2d 813, 816 (Tex.Civ.App.--Dallas 1979, no writ).

We find nothing in the record to support the Duncans' contention that any deceptive acts of Building Concepts in 1976 and in 1977 caused delay in completion of the home until the trial in 1982. Mr. and Mrs. Duncan testified that Building Concepts' lien on their property prevented them from having the house completed, because they did not have cash available for the needed repairs. However, Mr. Duncan admitted that while he thought about having the repairs made, he never obtained an estimate for the cost of repairs, and knew only that it would "cost money." He further testified that he had questioned only one contractor, some time prior to November 1979, about making any necessary repairs, and was told he would have to pay cash.

While it is established that actual damages may extend beyond the immediate time of a deceptive act, we believe the damages alleged must bear some reasonable relation in time and circumstances to the producing cause of such damages. The Duncans have failed to adequately show such a relationship. We overrule appellants' second point of error.

In point of error three, appellants contend the trial court erred by refusing to allow evidence on additional damages for

(a) the increased interest costs to finance a home since the date of their original loan commitment, and (b) the taxes and insurance costs paid on the property.

Upon review of the record, it is apparent that the Duncans were allowed to present some evidence regarding increased financing costs from 1976 to the time of trial, despite objections by defendant. Therefore, we find no merit in this contention. The Duncans also attempted to introduce into evidence the costs of insurance and taxes paid subsequent to the breach. The trial court sustained Building Concepts' objections to the introduction of testimony and exhibits concerning these matters. At the time the objections were sustained, the Duncans agreed to make a bill of exceptions at the close of their case; however, they failed to do so. Thus, any error alleged has been waived. See American Transfer & Storage, 601 S.W.2d at 936.

In their fourth point of error, the Duncans claim the trial court erred in awarding prejudgment interest on the damages sustained by Building Concepts. The court rendered judgment in favor of Building Concepts for the value of work done and materials furnished, and allowed prejudgment interest at the rate of six percent (6%)...