First Nat. Bank of Kerrville v. Hackworth

• Decision Date: 29 February 1984
• Docket Number: No. 04-81-00259-CV,04-81-00259-CV
• Citation: 673 S.W.2d 218
• Parties: FIRST NATIONAL BANK OF KERRVILLE, Appellant, v. Estate of Rubelle HACKWORTH, Lena Rabensburg and Mattie B. Denson, Appellees.
• Court: Texas Court of Appeals

Page 218

673 S.W.2d 218

FIRST NATIONAL BANK OF KERRVILLE, Appellant, v. Estate of Rubelle HACKWORTH, Lena Rabensburg and Mattie B Denson, Appellees.

No. 04-81-00259-CV.

Court of Appeals of Texas San Antonio.

Feb. 29, 1984.

Rehearing Denied May 29, 1984.

Darrell Lochte, Kerrville, Stanley E. Crawford, Jr., Pat Sheehan, Cox & Smith, San Antonio, for appellant.

Richard F. Jacobs, David M. Ward, Wilson & Grosenheider, Austin, E. Bruce Curry, Kerrville, for appellees.

Before the court en banc.

OPINION

BUTTS, Justice.

The First National Bank of Kerrville appeals from a judgment following a jury trial in favor of the estate of Rubelle Hackworth, and the representatives of the estate, Lena Rabensburg and Mattie Denson. The court trebled actual damages of $53,480.00 and awarded attorney's fees as provided by TEX.BUS. & COM.CODE ANN. § 17.50 (Vernon Supp.1982-1983). It further awarded pre-judgment interest trebled. We affirm in part, as reformed, and reverse and render in part.

The evidence established that Rubelle Hackworth, who maintained a checking account with the defendant Bank, brought suit against it to recover $53,480.00, the sum she claimed the Bank wrongfully paid from her account when it honored four checks in May, 1978. She claimed three of the checks, totalling $33,480.00, were forged, and the fourth was altered from $20.00 to $20,000.00. The record shows the two accused of committing the forgeries and alteration were Ruth E. and Bob Martin, employees of the elderly Hackworth. After she filed suit, but before trial, Hackworth died. Her estate was substituted as plaintiff.

The Bank assigns thirty-seven points of error, many of which directly or indirectly challenge the applicability of the Texas Deceptive Trade Practices Act. We sustain point of error seven: that the cause of action Rubelle Hackworth possessed, if any, to recover treble damages and attorney's fees as authorized by the Deceptive Trade Practices Act, § 17.50, was extinguished upon her death and did not survive in favor of her estate or representatives.

The survivability of a cause of action is dependent on whether the cause is controlled by common law principles or a statute which provides for survival. United States Casualty v. Rice, 18 S.W.2d 760, 761 (Tex.Civ.App.--Dallas 1929, writ ref'd). The common law is the applicable rule of decision unless directly supplanted by a survival statute. Id. At common law, actions affecting primarily property and property rights survived, whereas an action asserting a purely personal right terminated with the death of the aggrieved party. Johnson v. Rolls, 97 Tex. 453, 79 S.W. 513, 514 (1904). The right to recover punitive damages is considered a purely personal right. Scoggins v. Southwestern Electric Service Co., 434 S.W.2d 376, 379 (Tex.Civ.App.--Tyler 1968, writ ref'd n.r.e.).

Damages allowed as punishment to the wrongdoer and not as compensation for actual damages suffered are punitive in nature. Burlington-Rock Island Rail Co. v. Newsom, 239 S.W.2d 734, 737 (Tex.Civ.App.--Waco 1951, no writ). The conceptual intendment of punitive damages is to protect the interwoven interests of the aggrieved party and the general public by setting an example which deters the defendant and others from the commission of similar offenses. J.S. Abercrombie Co. v. Scott, 267 S.W.2d 206, 212 (Tex.Civ.App.--Galveston 1954, writ ref'd n.r.e.).

The underlying purposes of the DTPA are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, breaches of warranty, and to provide efficient and economical procedures to secure such protection. Woods v. Littleton, 554 S.W.2d 662 (Tex.1977); § 17.44, supra. In order to better effectuate these purposes the Legislature created a private cause of action for treble damages and attorney's fees. Woods v. Littleton, supra at 670; § 17.50, supra. In discussing treble damage liability the Supreme Court stated in Pennington v. Singleton, 606 S.W.2d 682, 690-91 (Tex.1980):

Another purpose of liability in excess of actual damages is to deter violations of the act.... Additionally, not only the defendant, but other sellers must be discouraged from deceptive and misleading trade practices.

An award of treble damages and attorney's fees pursuant to § 17.50, supra, is clearly punitive in nature. See Singleton v. Pennington, 568 S.W.2d 367, 376 (Tex.Civ.App --Dallas 1977), rev'd on other grounds, 606 s.w.2D 682 (Tex.1980).

The Deceptive Trade Practices Act does not provide for survivability of a decedent's cause of action. In ascertaining the intent of the Legislature we must consider the existing condition of the law at the time of the statutory enactment with respect to the established rules applicable to its subject matter. State v. Dyer, 145 Tex. 586, 200 S.W.2d 813, 815 (1947). Statutes are presumed to be enacted by the Legislature with full knowledge of the existing condition of the law and subject thereto unless the contrary is clearly demonstrated. Allen Sales & Servicenter, Inc. v. Ryan, 525 S.W.2d 863, 866 (Tex.1975). The failure of the Legislature to provide for the survival of the statutory penalty requires the implementation of common law principles. Johnson v. Rolls, supra, 79 S.W. at 514.

We hold the cause of action, if any, of Hackworth under the DTPA did not survive. We further hold the estate and representatives of her estate cannot recover in this action under the DTPA because they are not "consumers" as defined in § 17.45(4): "[A]n individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease, any goods or services." Compare this statement (on survival of a cause of action under the Act) in Mahan Volkswagen, Inc. v. Hall, 648 S.W.2d 324, 334 (Tex.Civ.App.--Houston [1st Dist.] 1982, no writ) (on motion for rehearing):

After considering the motions for rehearing, we have concluded our prior holding was in error, insofar as it approved a treble recovery of damages under the wrongful death statute, and we hold that while the plaintiffs were entitled to recover in their own right under the wrongful death statute, that was not a cause of action which survived to them under the provisions of article 5525. [In Mahan, treble damages were awarded under the DTPA § 17.50.]

Additionally, in this case the award of attorney's fees rested entirely upon § 17.50 of the Deceptive Trade Practices Act. Therefore we sustain the objection to the award in point of error thirty-three. We further sustain point of error thirty-one in which the Bank argues the pre-judgment interest awarded by the court should not have been trebled under the Act.

We have heretofore stated that appellees were not consumers under the Act. We do not here determine whether Hackworth was a "consumer" for purposes of the Act, in view of our holding that the cause of action, if any, did not survive her death. Points of error four, five, and six are thus sustained as to appellees' lack of "consumer" standing.

Other challenges to the sufficiency of the evidence to show liability under the Act are rendered merely theoretical by our ruling, and we do not address points of error seventeen through twenty-two, twenty-six through twenty-nine, and point of error thirty-two.

The Bank argues special issues one and two should not have been submitted to the jury because no evidence or insufficient evidence existed to show the three checks were forged (special issue one) and the fourth one altered (special issue two). The issues inquired whether the checks were forged and altered. The jury found they were.

The Bank and appellees each presented the testimony of a qualified expert. The appellees' expert, a former officer with the Austin Police Department who worked in "forgery" for eighteen years, testified that three of the checks were forgeries and one was altered. He made comparisons with the genuine writing of Hackworth and stated his conclusion to be "beyond a reasonable doubt." The Bank offered the testimony of an examiner of questioned documents, who also possessed extensive qualifications. Her conclusion was that the body of each of the four checks was written by Ruth Martin and that Hackworth signed all of them. She did not believe the checks were forged or altered. The direct and cross-examination of each of the handwriting experts consumed much time at trial and many pages of the statement of facts. The jury examined and compared some of the evidence in the courtroom and took the evidence into the jury room. It was never questioned that the four checks at trial were not in fact the subject matter of the suit. No one ever denied the checks in court were true copies of the checks claimed to be altered and forged. What appellees were bound to prove to the satisfaction of the jury by a preponderance of the evidence was that three of the checks had been forged and the fourth one altered.

In addition to the experts' statements regarding the four checks, the Bank's vice-president, Joe C. Mosty, recounted, when questioned by counsel for the Bank, the circumstances of Hackworth's visit to the Bank on July 5, 1978. His conversation with her at that time resulted in confirmation by her not only that one altered check had been charged against her account, but discovery that three allegedly forged checks had been also charged. Further, Mosty called the police to the Bank to investigate the case. The Bank argues on appeal that Mosty's testimony of his conversation with Hackworth is hearsay. We find no merit in the Bank's hearsay argument. See 1A R. Ray, TEX.LAW OF EVIDENCE § 862 (1980).

The jury is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given their testimony. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951). This Court may not set aside a jury verdict merely because the jury could have drawn different inferences or conclusions. Id. 239 S.W.2d at 797. It is...