Cameron v. Terrell & Garrett, Inc.
| Decision Date | 04 March 1981 |
| Docket Number | No. B-9609,B-9609 |
| Citation | 242 Tex.Sup.Ct.J. 265,618 S.W.2d 535 |
| Parties | Jerry D. CAMERON et ux., Petitioners, v. TERRELL & GARRETT, INC., Respondent. |
| Court | Texas Supreme Court |
Davison & Gilmore, J. Marshall Gilmore, Hurst, for petitioners.
W. McFarland Bagby, Arlington, for respondent.
This is a deceptive trade practice case. Jerry D. Cameron and Jo Ann Cameron, purchasers of a house, brought this suit for treble damages against the seller's real estate agent, Terrell & Garrett, Inc., for a misrepresentation of the square footage in the house. The primary question presented is whether the Camerons are consumers within the meaning of the Deceptive Trade Practices-Consumer Protection Act (DTPA). 1 The trial court rendered a take-nothing judgment non obstante veredicto for Terrell & Garrett. The court of civil appeals affirmed but on different grounds. The court of civil appeals held that the Camerons were not consumers and, therefore, could not bring a private lawsuit against Terrell & Garrett for a deceptive trade practice violation. 599 S.W.2d 680. We hold the Camerons are consumers. We also hold that there is some evidence to support the jury verdict for the Camerons. Accordingly, we reverse the judgment of the court of civil appeals and render judgment for the Camerons in accordance with the verdict.
In October 1975 the Camerons purchased a house in Arlington, Texas. The sellers, who are not parties to this lawsuit, had listed the house for sale with Terrell & Garrett, a real estate brokerage and agency firm. In listing the house for sale, the sellers were required to execute a listing agreement whereby they were to pay Terrell & Garrett a commission of six percent of the purchase price if Terrell & Garrett obtained a sale within a certain period. As part of its normal business practice, Terrell & Garrett then listed the house in the Multiple Listing Service (MLS) guide of the Arlington Board of Realtors. In doing so, Terrell & Garrett submitted some general information about the house for publication in the MLS guide. Included in this information was a statement that the house contained 2400 square feet. There is testimony that this statement was made to represent the number of square feet of heated and air conditioned space in the house.
On September 6, 1975, the Camerons were driving with their own real estate agent and looking for a house when they found the house in question. While stopped in front of the house, their realtor showed them the statement in the MLS guide that it contained 2400 square feet. The Camerons testified that they relied on the statement to mean that the house had 2400 square feet of heated and air conditioned space. Also, the Camerons testified that they agreed to purchase the house for $52,957.04 in reliance on this statement because they thought they were purchasing a house with 2400 square feet of heated and air conditioned space for $22.06 per square foot.
After purchasing and moving into the house, the Camerons had it measured and found out it actually contained only 2245 square feet of heated and air conditioned space 155 feet less than represented by Terrell & Garrett. However, they also discovered that if the garage, porch, and wall space were included, the house would have had a total of 2400 square feet of space.
The Camerons sued Terrell & Garrett for damages, alleging a cause of action under the DTPA for a misrepresentation made in a real estate transaction. The basis of the Camerons' deceptive trade practice claim is that Terrell & Garrett falsely represented in the MLS guide the number of square feet in the house. They alleged actual damages of $3,419.30, which they computed by multiplying the cost of the house per square foot as represented ($22.06) times the square footage deficiency (155 feet). The Camerons sought treble damages, reasonable attorney's fees and court costs under section 17.50(b) of the Act. 2
The case was submitted on special issues to the jury for a violation of the general prohibition in section 17.46(a) as authorized by section 17.50(a)(1). 3 The jury returned a verdict for the Camerons. Terrell & Garrett then filed motions to disregard jury findings and for judgment notwithstanding the verdict, challenging in part the legal sufficiency of the evidence to support the jury's answers to special issues. The trial court sustained Terrell & Garrett's motions on the basis there was no evidence to support the jury's answers to the following special issues:
"SPECIAL ISSUE NO. 2
....
"Do you find from a preponderance of the evidence that the Defendant's representation that the house in question contained two thousand four hundred square feet was false, misleading or deceptive act or practice?
....
....
"Do you find from a preponderance of the evidence that the Defendant's representation of the quantity of square feet in the house in question was a producing cause of actual damages sustained by the Plaintiffs?
....
....
The trial court rendered a take-nothing judgment against the Camerons notwithstanding the verdict.
On appeal, the Camerons contended that the trial court erred in setting aside the jury verdict because there was some evidence to support the jury's answers to special issues number 2, 3, and 4. However, to vitiate the verdict, Terrell & Garrett contended by crosspoint that the Camerons could not bring a private lawsuit under the DTPA because the Camerons were not consumers, as defined in section 17.45(4), as to them. The court of civil appeals sustained the contentions of both parties and, as a result, affirmed the trial court's take-nothing judgment. In this case, the Camerons' sole contention is that the court of civil appeals erred in holding they were not consumers as defined in section 17.45(4).
In Riverside National Bank v. Lewis, 603 S.W.2d 169, 173 (Tex.1980), we recognized that a person must qualify as a consumer as that term is defined in section 17.45(4) to maintain a private cause of action for treble damages under section 17.50 of the Act. To the same effect are Rutherford v. Whataburger, Inc., 601 S.W.2d 441, 444 (Tex.Civ.App. Dallas 1980, writ ref'd n.r.e.), Ferguson v. Beal, 588 S.W.2d 651, 653 (Tex.Civ.App. Houston (14th Dist.) 1979, writ ref'd n.r.e.), Hi-Line Electric Co. v. Travelers Insurance Co., 587 S.W.2d 488, 490 (Tex.Civ.App. Dallas 1979), writ ref'd n.r.e. per curiam, 593 S.W.2d 953 (1980), and Russell v. Hartford Casualty Insurance Co., 548 S.W.2d 737, 741 (Tex.Civ.App. Austin 1977, writ ref'd n.r.e.). Section 17.45(4) defines consumer as "an individual, partnership, or corporation who seeks or acquires by purchase or lease, any goods or services."
We have also recognized at least two requirements that must be established for a person to qualify as a consumer under the DTPA. One requirement is that the person must have sought or acquired goods or services by purchase or lease. Riverside National Bank v. Lewis, supra at 174; see Woods v. Littleton, 554 S.W.2d 662, 666 (Tex.1977). Another requirement recognized by this Court is that the goods or services purchased or leased must form the basis of the complaint. Riverside National Bank v. Lewis, supra at 175; Woods v. Littleton, supra at 666; see also Rutherford v. Whataburger, Inc., supra at 444; Delaney Realty, Inc. v. Ozuna, 593 S.W.2d 797, 800 (Tex.Civ.App. El Paso), writ ref'd n.r.e. per curiam, 600 S.W.2d 780 (1980); and Ferguson v. Beal, supra at 653. If either requirement is lacking, the person aggrieved by a deceptive act or practice must look to the common law or some other statutory provision for redress. 5
The Camerons satisfy both of these requirements in the case at hand. Although the Camerons alleged that they "sought or acquired the services" of Terrell & Garrett, it is clear that their complaint is not based on any alleged misrepresentation of the quality or quantity of services rendered by Terrell & Garrett. Instead, the Camerons' complaint is based solely on an alleged misrepresentation of the quantity of square feet in the house. At the time of this alleged deceptive trade practice, section 17.45(1) defined goods to include "... real property purchased ... for use."
Terrell & Garrett seeks to have this Court impose a type of privity requirement into the definition of consumer. It contends that a person must seek or acquire goods or services furnished by the person he is suing to qualify as a consumer under the DTPA. To be a consumer, it is submitted that if this requirement were imposed, a defendant would have to be in the same chain of title with the good or service on which the complaint is based. It argues that under this requirement the Camerons could not be consumers as to Terrell & Garrett because it was the seller's agent and did not furnish any goods or services that were sought or acquired by the Camerons. As authority for the imposition of this additional requirement to the qualifications of a consumer, Terrell & Garrett cites Hi-Line Electric Co. v. Travelers Insurance Co., 587 S.W.2d 488 (Tex.Civ.App. Dallas 1979), writ ref'd n.r.e. per curiam, 593 S.W.2d 953 (1980), and Barthlow v. Metcalf, 594 S.W.2d 143 (Tex.Civ.App. Houston (1st dist.) 1979, writ dism'd), where it was held that a consumer is one who seeks or acquires goods or services furnished by the defendant.
In the case of Delaney Realty Co. v. Ozuna, 593 S.W.2d 797 (Tex.Civ.App. El Paso), writ ref'd n.r.e. per curiam, 600 S.W.2d 780 (1980), a seller of a house represented to the purchaser that the house was not subject to flooding. The...
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