Donnelley Marketing v. Lionel Sosa, Inc.

• Decision Date: 29 August 1986
• Docket Number: No. 13-86-091-CV,13-86-091-CV
• Citation: 716 S.W.2d 598
• Parties: 2 UCC Rep.Serv.2d 862 DONNELLEY MARKETING, Appellant, v. LIONEL SOSA, INC., D/B/A Sosa & Associates, Appellee.
• Court: Texas Court of Appeals

Page 598

716 S.W.2d 598

2 UCC Rep.Serv.2d 862

DONNELLEY MARKETING, Appellant, v. LIONEL SOSA, INC., D/B/A Sosa & Associates, Appellee.

No. 13-86-091-CV.

Court of Appeals of Texas Corpus Christi.

Aug. 29, 1986.

Rehearing Denied Sept. 30, 1986.

Ross H. Hemphill, Jill Hall, Dallas, for appellant.

Joseph Casseb, San Antonio, for appellee.

Before UTTER, KENNEDY and SEERDEN, JJ.

OPINION

UTTER, Justice.

Lionel Sosa, Inc., d/b/a Sosa & Associates (Sosa), appellee, brought suit against Donnelley Marketing (Donnelley), appellant, alleging causes of action based upon the Texas Deceptive Trade Practices Act (DTPA), ¹ breach of contract, breach of warranty, negligence, and gross negligence. The jury found in favor of Sosa on all liability issues and the trial court entered a judgment that Sosa recover $134,534.38, court costs, and attorney's fees. We reverse and render in part, reform the judgment, and as reformed, affirm in part.

Sosa is a marketing-advertising agency, specializing in the Hispanic market. National List Services, a division of Donnelley, is a provider of direct-mail marketing information services. In short, Donnelley compiles lists of names and addresses of people, tailor-made to a client's marketing plan. Sosa's client, Hyram Walker, manufacturer of the liquor Canadian Club, desired to "raise awareness for Canadian Club" among the Hispanic population of the United States. The plan was to mail a bilingual recipe book directly to Hispanic households. Sosa hired Donnelley to compile the list. Sosa contended that it ordered a list of Hispanic names only. It is undisputed that 66% of the names in the list actually supplied to Sosa were non-Hispanic names. Ernest Bromley, director of marketing research for Sosa, testified that he placed "an order for Hispanic names in Los Angeles and Miami, they were to have household incomes of twenty-five thousand or more [and] they were to live in areas of Hispanic concentration 25% percent or more...." What Sosa got was a general list of names from areas in which Hispanics make up 25% of the population.

Thomas Geis, a sales account coordinator for Donnelley, took this particular order from Bromley. Geis testified that he explained two options for selecting Hispanic areas. One option was to compile a general list of names from certain selected Hispanic areas from the 1980 census data. The other option was to specifically select Hispanic surnames. Bromley testified that he was never informed of these two options and that he clearly indicated to Geis that he desired a list of exclusively Hispanic names from areas of 25% Hispanic population density.

Before the computer tapes containing the names were sent out, Sosa received two "Order Specifications/Acknowledgment" forms. Bromley testified that he read the forms and was satisfied that they reflected the order which he placed. Sosa's expert, Carl Rove, is the president of his own direct marketing firm in Austin. He testified about the computer terms and abbreviations used in Donnelley's Order Specifications/Acknowledgment forms. In his opinion, the order form acknowledged an order for "households with income of $25,000.00 or more who are Hispanic in areas where the concentration of Hispanics was twenty-five percent of the population or greater." He also testified that the form is subject to more than one interpretation.

Donnelley has raised thirty points of error, many of which are duplicative and multifarious. However, due to our determination of the nature of this case and our disposition of certain points of error we find it unnecessary to address the majority of Donnelley's points of error. We have reorganized the controlling issues.

Twenty separate special issues were submitted to the jury encompassing nine distinct DTPA violations. Donnelley's points of error sixteen through thirty challenge the submission of and the jury's answers to these DTPA issues. However, in light of our disposition of points of error 13, 14, and 15, we find it unnecessary to address them. TEX.R.CIV.P. 451.

By points of error thirteen, fourteen, and fifteen, Donnelley challenges the legal sufficiency of the evidence to support the submission of and the jury's answer to Special Issue 31. Special Issue 31 asked the jury to award damages suffered by Sosa as a result of the DTPA violations previously found to have been committed by Donnelley. By point of error thirteen, Donnelley contends that Special Issue 31 contained "an erroneous and improper standard for measuring damages." Special Issue 31 read as follows:

What sum of money, if any, do you find from a preponderance of the evidence would fairly and reasonably compensate the plaintiff, Sosa & Associates, for damages sustained as a result of the actions of defendant, Donnelley Marketing?

Donnelley objected to the submission of this special issue on the basis that the phrase "actual damages" should have been included in the issue instead of just "damages." Donnelley now argues that "as phrased the issue was so broad and general that it permitted the jury to speculate and find losses not pleaded or supported by any competent evidence." Donnelley's original objection to the court's charge was, "the word 'actual' should be in front of damages on line three," and that " 'actual' is used in the code." In the court below, Donnelley made no attempt at all to inform the trial court of its grounds for including the word "actual," which it now advances on appeal. In its brief, Donnelley argues at length its reasons why the word "actual" should have been included in Special Issue 31. The purpose of making objections to the court's charge is to give the trial court an opportunity to correct any errors in the charge. "A party objecting to a charge must point out distinctly the matter to which he objects and the grounds of his objection." TEX.R.CIV.P. 274 [emphasis ours]. Failure to make an objection specifically pointing out the matter complained of and the grounds of the objection results in a waiver of that complaint on appeal. Monsanto Co. v. Milam, 494 S.W.2d 534, 537 (Tex.1973). Donnelley did not preserve error on this point because its objection did not "make it apparent that the trial court, though fully cognizant of the ground of complaint, nevertheless chose to submit the issue." Texas Power & Light Co. v. Barnhill, 639 S.W.2d 331, 334 (Tex.App.--Texarkana 1982, writ ref'd n.r.e.). Furthermore, Donnelley did not request an instruction or definition of the term "actual damages" in order to explain the difference between "actual damages" and the general term "damages." Even had the trial court been made "fully cognizant" of the grounds of Donnelley's complaint, we find no error in failing to include the word "actual" in Special Issue 31 in light of the failure to request an appropriate explanatory instruction to assist the jury. Point of error thirteen is overruled.

By point of error fourteen, Donnelley contends that Special Issue 31 "failed to properly instruct the jury as to the elements of damages to be considered." The trial court did not submit any instruction advising the jury on the proper measure of damages. Nor was it requested to do so by either party. In its brief under this point, Donnelley argues that the jury should have been instructed to award damages based upon "the out-of-pocket rule" or "the loss of bargain rule," whichever is greater. Donnelley also argues that the court should have submitted two special issues inquiring of damages under each rule. We do not reach the merits of Donnelley's fourteenth point of error because we find that Donnelley has waived the right to complain of the lack of any such instructions due to its failure to object on these grounds and tender written instructions on the proper measure of damages in substantially correct wording. Texas Power & Light Co. v. Barnhill, 639 S.W.2d at 334-35. Point of error fourteen is overruled.

By point of error number fifteen, Donnelley contends that there is no evidence to support the submission of, or the jury's answer to, Special Issue 31. By its answer to Special Issue 31, the jury awarded $134,534.38 as "damages sustained as a result of the actions [DTPA violations found] of ... Donnelley."

Testimonial and documentary evidence was presented showing that Sosa suffered damages in the amount of $59,534.38. Although there is evidence to support the submission of the issue, there is no evidence to support an award in excess of $59,534.38. Point of error fifteen is sustained.

By points of error two and four, Donnelley challenges the legal sufficiency of the evidence to support the submission of Special Issues 6, 7, 8, 9, 10, 12, and 13. By point of error three, Donnelley challenges the factual sufficiency of the evidence to support the jury's answers to Special Issues 6, 7, 8, 9, 10, and 13. These special issues were submitted to the jury on theories of negligence and gross negligence. By its answers, the jury found that Donnelley was negligent in compiling the list and that such negligence was gross negligence. The jury awarded $59,534.38 as damages and $75,000.00 as exemplary damages. We agree with Donnelley that there is no evidence to support the submission of these special issues. We find that this matter is controlled by Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex.1986). The issue in Reed was whether an independent tort existed to support an award of exemplary damages. Id. at 617. The Reeds sued Jim Walter Homes seeking damages arising out of the sale and construction of their house. The jury found that Jim Walter Homes had breached the warranty of good workmanship and was grossly negligent in the supervision of the construction of the house. The jury found actual damages, additional damages under the DTPA, exemplary damages, and attorney's fees. The Supreme Court stated that in order to determine the type of action that is brought, "[w]e must look to the substance of the cause of action...