Chrysler Corp. v. McMorries

• Citation: 657 S.W.2d 858
• Decision Date: 04 August 1983
• Docket Number: No. 07-82-0022-CV,07-82-0022-CV
• Parties: CHRYSLER CORPORATION, Appellant, v. James W. McMORRIES, Jr., Appellee.
• Court: Court of Appeals of Texas

Page 858

657 S.W.2d 858

CHRYSLER CORPORATION, Appellant, v. James W. McMORRIES, Jr., Appellee.

No. 07-82-0022-CV.

Court of Appeals of Texas,

Amarillo.

Aug. 4, 1983.

Gibson, Ochsner & Adkins, Marvin W. Jones, Amarillo, for appellant.

Saul, Smith & Davis, Don Davis, Hereford, Rex Easterwood, for appellee.

Before DODSON, COUNTISS and BOYD, JJ.

BOYD, Justice.

Appellant Chrysler Corporation appeals from a judgment entered in favor of appellee James W. McMorries, Jr. in which appellee recovered $18,000 plus interest and attorney's fees. For the reasons hereinafter set out, we reverse the judgment and remand for a new trial.

This lawsuit arose out of a sale of a 1978 Chrysler automobile by Jones Motors of Hereford, Texas to the appellee. The appellee intended to use the automobile in his business and he wanted it to have trailer towing capabilities to pull a camper trailer he used in his work. The appellee informed Dale Jones, the owner of Jones Motors, of his particular needs for the car. Jones showed appellee a Chrysler brochure which discussed a towing package that could serve the appellee's needs. The appellee agreed to and did pay Jones $9,500 for the car.

The car was delivered to the appellee on March 3, 1978. Chrysler's written warranty was also delivered at that time. Soon thereafter, the appellee began experiencing difficulties with the car. Many of the problems were corrected at no cost by the appellant, under the terms of the warranty. However, the appellee claimed that many other problems were not corrected to his satisfaction. Contending that he was dissatisfied with the car, the appellee brought the car back to Jones Motors on July 10 1978 and instructed Jones to sell it to someone else because he (the appellee) wanted nothing more to do with it. Jones eventually sold the car at an auction in Lubbock for $6,500.00.

On March 7, 1979, the appellee brought suit against the appellant for damages arising from appellant's alleged violations of the Texas Deceptive Trade Practices and Consumer Protection Act, Tex. Bus. & Com. Code Ann. § 17.41 et seq. (Vernon Supp.1982). Specifically, appellee alleged that appellant had made fraudulent misrepresentations and had breached express and implied warranties concerning the condition of the car, in violation of Section 17.46 of the Act. As a result of these alleged malfactions, appellee sought actual damages in the amount of $15,496.00 and further alleged he was entitled to have these damages trebled. Appellant's answer to the suit contained, inter alia, an exception to the claim for treble damages, asserting appellee failed to give written notice of the claim before suit was filed.

After appellant had filed its answer and some depositions had been taken, but prior to the beginning of the actual trial, appellee elected to take a nonsuit. Soon thereafter, appellee gave appellant written notice of his intent to bring suit against the appellant for the alleged deceptive trade practices. After the passage of more than thirty days, appellee filed a second suit identical, in all its particulars, to the suit filed on March 7, 1979.

At trial, the jury found appellant had misrepresented the condition of the car and had not repaired or replaced the defects in the car in compliance with its warranty, with resulting actual damages to appellee in the amount of $6,000.00. Based upon these findings, the court entered the judgment from which appellant has perfected its appeal.

The appellant raises four points of error in this appeal. In its first point, the appellant argues that the trial court erred in submitting special issue no. 15, which asked the jury to determine the amount of actual damages the appellee suffered, and in awarding judgment based thereon, because this special issue allegedly contained an erroneous and improper standard for measuring damages. Appellant contends, in his second point of error, that the trial court also erred in submitting special issue no. 15 and in awarding judgment based thereon because this special issue failed to properly instruct the jury as to the elements of damages to be considered in answering the issue. Appellant further asserts, in his third point of error, that the trial court erred in submitting special issue no. 15 to the jury and in awarding judgment based thereon because there was no evidence of any legally recoverable damages to support the submission of such issue or the award of damages based thereon. Finally, in his fourth point of error, the appellant maintains that the trial court erred in rendering judgment for treble damages under Tex.Bus. & Com.Code Ann. § 17.50 (Vernon Supp.1982) because the appellee allegedly failed to give notice of his claim before suit was filed, as is required by Tex.Bus. & Com.Code Ann. § 17.50A(a) (Vernon Supp.1982). For the reasons explained below, we sustain appellant's first two points of error, overrule its third and fourth points, reverse the judgment and remand the case for a new trial.

In its above stated first two points of error, the appellant contends that the trial court erred in submitting special issue no. 15 to the jury and in awarding judgment based on the jury's answer to this special issue because said special issue did not correctly state the proper measure of damages for this type of case and because it did not instruct the jury as to the correct measure of damages.

Special issue no. 15, which was submitted to the jury, reads as follows:

What sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would fairly and reasonably compensate James W. McMorries, Jr. for his actual damages, if any?

This was the only special issue concerning damages which was submitted to the jury. Thus, the initial question which we must determine is whether special issue no. 15 was subject to the vices asserted by appellant.

The trial court has broad discretion to submit separate questions with respect to each element of a case or to submit issues broadly. Tex.R.Civ.P. 277. When the trial court exercises its discretion in submitting special issues to the jury, an appellate court will only reverse when a clear abuse of that discretion is shown. DeAnda v. Home Ins. Co., 618 S.W.2d 529 (Tex.1980). In reviewing the trial court's exercise of its discretion, this court recognizes that, under Rule 277, the trial court's discretion is subject only to the requirement that the issues submitted must fairly submit the disputed issues for the jury's determination. Baker Marine Corp. v. Moseley, 645 S.W.2d 486 (Tex.App.--Corpus Christi 1982, writ ref. n.r.e.); Cactus Drilling Co. v. Williams, 525 S.W.2d 902 (Tex.Civ.App.--Amarillo 1975, writ ref'd n.r.e.). While the form of submission of a particular special issue is left to the sound discretion of the court, it is essential that the submission be sufficient to enable the jury to make an award of damages on proper grounds and correct principles of law. Jackson v. Fontaine's Clinics, Inc., 499 S.W.2d 87 (Tex.1973); Sawyer v. Fitts, 630 S.W.2d 872 (Tex.App.--Fort Worth 1982, no writ). A submission is fatally defective if it fails to guide the jury to a finding on any proper legal measure of damages. Jackson v. Fontaine's Clinics, Inc., supra; Sawyer v. Fitts, supra. With these guidelines in mind, we will review the propriety of the court's action in submitting special issue no. 15 to the jury.

As the appellee's pleadings make clear, the appellee's cause of action was based on the appellant's alleged violation of the Texas Deceptive Trade Practices and Consumer Protection Act, Tex.Bus. & Com.Code Ann. § 17.41 et seq. ¹ Specifically, the appellee alleged that the appellant had fraudulently misrepresented the condition of the car and had breached its warranty in violation of Section 17.46 of the Act, that he had sustained damages as a result of the appellant's malfeasance, and that he was entitled to the relief authorized by Section 17.50(b)(1).

Section 17.50(b)(1) states in relevant part:

(b) In a suit filed under this section, each consumer who prevails may obtain:

(1) the amount of actual damages found by the trier of fact ... [emphasis added.]

The term "actual damages" is not defined in the Act. However, the Texas Supreme Court has indicated that, under the Act, the term "actual damages" should be construed to mean those damages which are recoverable at common law. Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 939 (Tex.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474. In a later case, the Court held that "[t]he actual damages suffered under § 17.50(b)(1) are determined by the total loss sustained by the plaintiff as a result of the deceptive trade practices." Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex.1980).

When submitting special issues to the jury under a Deceptive Trade Practices Act claim, the issue should be submitted in terms as similar as possible to the statute itself. Brown v. American Transfer and Storage Co., supra. In the instant case, while the court submitted the issue of damages in terms identical to the statute, it made no attempt to explain the meaning of the term "actual damages" to the jury. Under the common law, the proper measure of damages is a question of law for the court and the court's charge should limit the jury's consideration to facts that are properly a part of the damages allowable. Johnson v. Willis, 596 S.W.2d 256, 262 (Tex.Civ.App.--Waco 1980, writ ref. n.r.e.). It is therefore necessary for us to determine whether special issue no. 15 limited the jury's consideration in this way.

Three recent decisions by the Texas Courts of Appeals are enlightening in this matter. In Johnson v. Willis, supra, the trial court submitted a special issue on damages, in a Deceptive Trade Practices Act suit, which is similar to the one submitted by the trial court in the case at bar. The special issue submitted by the court read as follows: "What sum of...