Connell Chevrolet Co., Inc. v. Leak

• Decision Date: 09 April 1998
• Docket Number: No. 03-97-00125-CV,03-97-00125-CV
• Citation: 967 S.W.2d 888
• Parties: CONNELL CHEVROLET CO., INC., Appellant, v. George R. LEAK, Sr., Appellee.
• Court: Texas Court of Appeals

Page 888

967 S.W.2d 888

CONNELL CHEVROLET CO., INC., Appellant, v. George R. LEAK, Sr., Appellee.

No. 03-97-00125-CV.

Court of Appeals of Texas Austin.

April 9, 1998.

Geoffrey H. Bracken, Allison Freeman Logan, Gardere Wynne, L.L.P., Dallas, for Appellant.

Brian Lee Risinger, Bryan, for Appellee.

Before CARROLL, C.J., and JONES and KIDD, JJ.

JONES, Justice.

This deceptive trade practices case involves representations made during the sale of a truck from appellant Connell Chevrolet Company ("the dealership") to appellee George R. Leak, Sr. Based on jury findings that the dealership had violated the Texas Deceptive Trade Practices Act ("DTPA"), Tex. Bus. & Com.Code Ann. §§ 17.41-.63 (West 1987 & Supp.1998), the trial court rendered judgment that Leak recover economic damages, additional damages, mental anguish damages, attorney's fees, and prejudgment interest. The dealership does not challenge the jury's finding that it violated the DTPA. By eight points of error, however, the dealership contends that (1) the evidence was legally and factually insufficient to support certain other jury findings, (2) the trial court erred by refusing to submit the dealership's jury question regarding revocation, and (3) the assessment of post-judgment sanctions was improper. We will reverse and render in part and affirm in part the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1994, Leak went to the dealership and told a salesman he wanted to trade his standard transmission, six-cylinder pickup truck for a truck with an eight-cylinder The jury found that the dealership had knowingly engaged in a false, misleading, or deceptive act or practice that was a producing cause of damages to Leak, found economic damages of $10,000 and mental anguish damages of $11,000, and assessed $30,000 additional damages. The trial court rendered judgment in accordance with the verdict, adding awards of prejudgment interest and attorney's fees. The dealership perfected this appeal.

engine. The salesman indicated a particular truck on the lot as having an eight-cylinder engine. Without the salesman accompanying him, Leak went out on the lot and looked at the truck. Relying on the salesman's representation that the truck had an eight-cylinder engine, Leak bought the truck. An assistant manager completed the loan paperwork that indicated Leak bought a truck with an eight-cylinder engine. In fact, all of the paperwork Leak received the day of the sale indicated that the truck had an eight-cylinder engine. Six months later, Leak discovered that the truck actually had a six-cylinder engine. Leak spoke with Mitch Connell, the president of the dealership, and complained about the misrepresentation. Connell attempted, without success, to find the same type of truck with an eight-cylinder engine at another dealership. Leak tried five or six times to get the dealership to replace the truck but was unsuccessful. After six weeks, the dealership told Leak that it would not deal with him further and that he should get a lawyer. Leak notified NationsBank, the lender, that he was stopping payments on his truck note because of the dealership's misrepresentations; he then commenced this DTPA lawsuit.

DISCUSSION

Damages

Economic Damages

By points of error six and seven, the dealership contends the evidence was legally and factually insufficient to support the jury's award of $10,000 as economic damages. The dealership concedes that Leak presented sufficient evidence of $7,895.57 in out-of-pocket damages, but contends that insufficient evidence supports any sum over that amount.

In assessing the legal sufficiency of the evidence, we consider only the evidence and inferences tending to support a finding and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985); e.g., Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986). In determining the factual sufficiency of the evidence, we consider and weigh all of the evidence and set aside the judgment only if the evidence is so weak that the verdict is clearly wrong and unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). Regarding damages, a reviewing court cannot substitute its conclusions for those of the jury so long as the aggregate evidence for all of the damage elements supports the entire award. Haryanto v. Saeed, 860 S.W.2d 913, 922 (Tex.App.--Houston [14th Dist.] 1993, writ denied).

The trial court defined economic damages as "compensatory damages for pecuniary loss including loss of bargained for value, consideration paid, out of pocket expenses and damage to one's credit. The term does not include additional damages or damages for mental anguish." The dealership first asserts that Leak cannot recover both benefit-of-the-bargain damages and out-of-pocket damages. We agree. We disagree, however, with the dealership's second contention: that no evidence or factually insufficient evidence exists to support Leak's recovery of damage to his credit.

Leak claimed that the dealership's misrepresentations directly caused his credit to be damaged. Once Leak learned that the truck he bought was a six-cylinder, he told NationsBank that he would no longer make payments on the truck because of the dealership's misrepresentations. After telling the dealership about the truck and getting no relief, Leak went to another dealership and attempted to buy a truck. There, he was denied a loan to purchase a truck due to his bad credit report from the dealership.

Loss-of-credit damages are recoverable when damage to credit is the usual or probable result of the defendant's conduct. Mead v. Johnson Group, Inc., 615 S.W.2d 685 (Tex.1981). To prove that credit is harmed is to prove only nominal damages; not until a loan is actually denied or a higher interest rate charged is there proof of actual damages that may be compensated. St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 41 Tex. Sup.Ct. J. 380, 381, --- S.W.2d ----, ---- (February 13, 1998). Moreover, the amount of loss suffered when one's credit is injured is not always capable of exact ascertainment. See Provident Am. Ins. Co. v. Castaneda, 914 S.W.2d 273, 282 (Tex.App.--El Paso 1996, writ granted) (citing Commonwealth Lloyd's Ins. Co. v. Thomas, 825 S.W.2d 135, 146 (Tex.App.--Dallas 1992), writ granted w.r.m., 843 S.W.2d 486 (Tex.1993)). When the amount of damages is not capable of definite ascertainment, determination of the amount is necessarily lodged in the discretion of the jury. See Castaneda, 914 S.W.2d at 282 (citing Bradbury v. Scott, 788 S.W.2d 31, 39 (Tex.App.--Houston [1st Dist.] 1989, writ denied)).

We conclude that the evidence was sufficient for the jury to assess $2,104.43 as damages to credit, i.e., to assess a combined total of $10,000 in economic damages. The jury could have determined that the damage to Leak's credit was the usual or probable result of the dealership's conduct. The jury could also have concluded that, but for the dealership's misrepresentation, Leak would not have been seeking to buy another truck. In short, the jury could have determined that because Leak was denied a loan to purchase another truck, his credit suffered in the amount of $2,104.43. We overrule points of error six and seven.

Additional Damages

By point of error four, the dealership contends the evidence was legally and factually insufficient to support the jury's finding that the dealership knowingly engaged in a false, misleading, or deceptive practice when representing the truck as having an eight-cylinder rather than a six-cylinder engine.

Only upon a finding that the conduct of the defendant was committed "knowingly" may the trier of fact award additional damages of up to three times the amount of actual damages in excess of $1,000. Act of May 29, 1989, 71st Leg., R.S., ch. 380, § 2, 1989 Tex. Gen. Laws 1440, 1491 (DTPA § 17.50(b)(1), since amended). ¹ To act knowingly means to act with "actual awareness of the falsity, deception, or unfairness of the act or practice giving rise to the consumer's claim." Act of May 16, 1979, 66th Leg., R.S., ch. 603, § 2, 1979 Tex. Gen. Laws 1327 (DTPA § 17.45(9), since amended). The Texas Supreme Court recently clarified the standard for finding actual awareness:

"Actual awareness" does not mean merely that a person knows what he is doing; rather, it means that a person knows that what he is doing is false, deceptive, or unfair. In other words, a person must think to himself at some point, "Yes, I know this is false, deceptive, or unfair to him, but I'm going to do it anyway."

St. Paul Surplus Lines, 41 Tex. Sup.Ct. J. at 382, --- S.W.2d at ----. Actual awareness is more than conscious indifference to another's rights or welfare. Id. Nonetheless, actual awareness may be inferred where objective manifestations indicate that the person acted with actual awareness. Id. at 381, --- S.W.2d at ----.

The only witnesses to testify about relevant events were Leak and Connell. Leak testified that the salesman told him that the truck he purchased had an eight-cylinder engine. The dealership's assistant manager prepared the loan paperwork and an application for an extended warranty. All of the paperwork and the application for the warranty indicated that the truck had an eight-cylinder engine. Only when the extended warranty was returned from the underwriter did it show that the truck had a six-cylinder engine. Leak argues that, because the dealership provided the information to the underwriter for the extended warranty, someone at the dealership must have known the truck had a six-cylinder rather than an eight-cylinder engine. The dealership responds that it simply made a mistake by representing to Leak the truck had an eight-cylinder engine.

We agree that the evidence supports the proposition that the dealership must have had information from which it could have determined that the truck...