Cape Conroe Ltd. v. Specht, 1179

• Decision Date: 11 June 1975
• Docket Number: No. 1179,1179
• Citation: 525 S.W.2d 215
• Parties: CAPE CONROE LIMITED dba U.S. Land Development Company, et al., Appellants, v. Edith Mary SPECHT, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 215

525 S.W.2d 215

CAPE CONROE LIMITED dba U.S. Land Development Company, et al., Appellants, v. Edith Mary SPECHT, Appellee.

No. 1179.

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

June 11, 1975.

Rehearing Denied July 2, 1975.

Michael K. Swan, Reynolds, White, Allen & Cook, Houston, for appellant.

William Dean Leikam, Houston, for appellee.

MAJORITY OPINION

TUNKS, Chief Justice.

This is a case wherein Edith Mary Specht, as the purchaser of two lots from Cape Conroe Limited, doing business as U.S. Land Development Co. and Ves-Tex Land Development, Inc., sued those sellers, Joe Reynolds, a limited partner of Cape Conroe Limited, and John L. Buvens, the trustee in a deed of trust securing purchase money notes, for alleged violations of the Deceptive Trade Practices-Consumer Protection Act, Tex.Bus. & Comm.Code Ann., Chapter 17, Subchapter E, V.T.C.A. The case was tried to the court without a jury.

On October 12, 1972, the plaintiff and defendants entered into a written contract wherein plaintiff agreed to buy and defendants agreed to sell two lots in Cape Conroe subdivision. That contract contained the sellers' guarantee that all paved streets, underground utilities, and certain recreational facilities would be completed by December 31, 1973, or the buyer would be refunded all monies paid plus ten percent interest. Later, at the plaintiff's request, that contract was replaced by two other contracts, each relating to one of the two lots. The new contracts specifically recite that they replace the original contract of October 12. Those contracts also bear the date October 12, 1972, but they were actually executed at a later date. The new contracts did not have in them the above mentioned guarantee or warranty as to the completion date for the utilities, streets and recreational facilities. On January 2, 1973, deeds, notes and deeds of trust were executed pursuant to these contracts.

There was evidence establishing the fact that appellants, by advertising media and orally, represented that the utilities, streets and recreational facilities would be completed by December 31, 1973. They were not so completed. On December 31, 1973, the plaintiff had paid $6,199.55 toward the purchase price of the lots. She demanded of the defendants the return to her of that sum, together with ten percent interest. The defendants refused to comply with her demand. The evidence showed, and the court found, however, that these representations were all made before May, 21, 1973, the effective date of the Deceptive Trade Practices Act. The trial court concluded as a matter of law that the Deceptive Trade Practices Act did not apply to those representations and promises made before its effective date and declined to render judgment for the plaintiff for the measure of damages provided by the Act at Section 17.50--that is, three times the actual damages together with court costs and attorney's fees. It then concluded, as a matter of law, that '. . . the pleadings of Plaintiff, taken as a whole, support a cause of action in favor of Plaintiff based upon a breach of contract theory.' He thereupon rendered judgment for plaintiff against the defendants, Cape Conroe Limited, doing business as U.S. Land Development Co. and Ves-Tex Land Development, Inc., for $6,819.55 with interest at six percent. The judgment, in effect, rescinds the purchase of the lots, restoring to the plaintiff the money she paid, relieving her of liability for the balance of the purchase price, and restoring to the defendants title to the two lots in question. The trial court rendered judgment that the plaintiff take nothing from the defendants, Reynolds and Buvens. Cape Conroe and Ves-Tex have appealed.

The appellants' principal contention on their appeal is that the judgment rendered by the trial court is not supported by plaintiff's pleadings. That contention is sustained.

Plaintiff proceeded to trial on her original petition. The opening words of that pleading read as follows:

This lawsuit arises out of the advertisement and sale of real property, concerning the general provisions of Chapter 17, Sub-Chapter E, Business and Commerce Code of Texas, otherwise known as the DECEPTIVE TRADE PRACTICES--CONSUMER PROTECTION ACT (hereinafter called DTP--CPA).

In the body of her petition plaintiff listed seven specific acts of defendants on which her cause of action was based and alleged that each of them was a violation of a given section of the Deceptive Trade Practices Act. In her prayer she asked that she recover judgment for triple damages '. . . pursuant to the provisions of the Deceptive Trade Practices-Consumer Protection Act . . ..' She asked that she recover reasonable attorney's fees '. . . pursuant to the provisions of the Deceptive Trade Practices-Consumer Protection Act . . ..' She asked for '. . . further relief, as provided for in the Deceptive Trade Practices-Consumer Protection Act . . ..' She asked for post judgment interest and had the usual prayer for general relief.

No language of plaintiff's pleadings states that a contract arose between her and the defendants and that she is asserting a cause of action either under that contract or for its breach. During the oral submission of this case, counsel for plaintiff was asked to identify the contract upon which the trial court's judgment could be sustained. He stated that it was the original written contract of sale, dated October 12, 1972, in which there was the written guarantee as to the completion of the utilities, streets and recreational facilities. This contention was made in spite of the fact that the only contracts plaintiff offered in evidence were those subsequently executed ones, each covering one of the two lots, omitting the written guarantee, and reciting in each that it 'replaces' the contract of October 12, 1972. This contention was also made in spite of the fact that plaintiff's counsel, in objecting to a question by defendants on cross-examination of the plaintiff, said: 'There is no allegation made that she was relying on a written contract making this kind of guarantee of any sort.'

' The judgment of the court shall conform to the pleadings . . ..' Texas Rules of Civil Procedure 301. In this case the trial court erred in concluding that the plaintiff's pleadings entitled her to recover damages for breach of contract or to a judgment rescinding sale of the property in question. In Oil Field Haulers Ass'n v. Railroad Commission, 381 S.W.2d 183, 191 (Tex.Sup.1964), the Court said: 'That a plaintiff may not sustain a favorable judgment on an unpleaded cause of action, in the absence of trial by consent, is the general rule . . ..'

The defendants' attorney here specifically recited his objection to trial under any contract theory of recovery. When plaintiff offered in evidence the two contracts which recited that they replaced the contract of October 12, 1973, counsel for defendants said:

I want to state for the record and make it clear that I am not, by not objecting to this contract, waiving any objection as to trying this lawsuit on other theories. In his pleadings, as I understand it, he stated he is going strictly under the Deceptive Trade Practice Act. So he may have some other remedies, I don't think his pleadings support that and I don't want to sit here by consent and try it on some other issue, so for the limited purpose of whether it is under this act, I have no objection to it.

At another place in the record defendants' counsel said, 'Your Honor, may we have a running objection to all documentation and testimony occurring prior to May 21, 1973?' The court answered, 'Yes, you may have your objection.'

Neither the language of plaintiff's pleadings, nor any issues tried by consent justified the court's rendition of a judgment for damages for the breach of, or upon, a contract nor a judgment rescinding any contract. For that reason the trial court's judgment was erroneously rendered.

The trial court held as a matter of law that '. . . all representations, advertisements, statements of fact, guaranties or warranties made by any Defendants . . . were made prior...