Freedom Homes of Texas, Inc. v. Dickinson, 1495

• Decision Date: 24 April 1980
• Docket Number: No. 1495,1495
• Citation: 598 S.W.2d 714
• Parties: FREEDOM HOMES OF TEXAS, INC., Appellant, v. Jane DICKINSON, Appellee.
• Court: Texas Court of Appeals

Page 714

598 S.W.2d 714

FREEDOM HOMES OF TEXAS, INC., Appellant, v. Jane DICKINSON, Appellee.

No. 1495.

Court of Civil Appeals of Texas, Corpus Christi.

April 24, 1980.

Rehearing Denied May 15, 1980.

William L. Hubbard, Bonner & Bonner, Harlingen, for appellant.

Robert H. Kern, III, McAllen, for appellee.

OPINION

NYE, Chief Justice.

Plaintiff, Mrs. Jane Dickinson, brought suit under the provisions of the Texas Deceptive Trade Practices-Consumer Protection Act ¹ against defendant, Freedom Homes, Inc., to recover damages which she alleged resulted from violations of the Act connected with her purchase of a mobile home. The cause was tried before a jury, and, in response to special issues, the jury found defendant had engaged in deceptive trade practices but awarded plaintiff damages for only mental anguish and attorney's fees. Defendant appeals.

Plaintiff alleged that she purchased a mobile home from defendant in August of 1977. During the course of the sale, defendant's agent, Margaret Tomlinson, represented to plaintiff that the mobile home in question would be fit for habitation during the entire period of the 15-year mortgage and that the home would be installed and maintained in a good and workman-like manner by defendant during such warranty period. Plaintiff alleged that these representations were false, and adversely affected her so that, as a direct and producing cause of the deceptive trade practices, she had been required to expend the sum of $4,629.00, and was incurring additional damages at the rate of $172.00 per month. Plaintiff also alleged that, in all probability, she would be required to pay the difference between the balance of the mortgage owed on the mobile home and the fair market value of the mobile home, which was an amount equal to $5,000.00. Additionally, plaintiff alleged that she had suffered mental anguish, for which she should be compensated. In accordance with these allegations, plaintiff sought treble damages, damages for mental anguish she had suffered, plus attorney's fees.

Evidence was introduced at trial which showed that plaintiff, a surgical nurse, and her son had moved to Texas to be near her relatives after the death of her husband and daughter. She planned to place the mobile home that she had purchased on property she had leased adjacent to the home of her elderly parents. After the mobile home was delivered, plaintiff noticed several problems in the home which she reported to the defendant and also to her finance company. There is considerable testimony concerning the defects and defendant's efforts to make necessary repairs to the mobile home. There is testimony in the record to the effect that plaintiff never lived in the mobile home but moved into her parents' small home and paid rent to them rather than live in the mobile home. Plaintiff's son did, however, spend nights in the mobile home. After some of the repairs had been made, plaintiff was still dissatisfied. She refused to permit additional repairs and filed this suit.

In response to numerous special issues, the jury found, in substance, that: 1) the representation by the salesperson that plaintiff's mobile home would be fit for habitation for a period of fifteen years with proper care and maintenance was a representation that the mobile home had uses which it did not have and that plaintiff was adversely affected by such representation; 2) the same statement was a representation that plaintiff's mobile home was of a particular quality when, in fact, it was not and that plaintiff was also adversely affected by this representation; and 3) the warranty by the salesperson that plaintiff's mobile home would be installed in a good and workman-like manner was breached. The jury failed to find that such breach was a deceptive trade practice or that plaintiff had been adversely affected by such breach. The jury also failed to find that the representation that the warranty work would be performed in a good and workman-like manner was breached or that there was a difference in the fair market value of the mobile home as represented by the salesperson and as delivered to plaintiff. The jury did find, however, that the sum of $4,352.00 would fairly compensate plaintiff for the "mental anguish" she had suffered and that the sum of $9,000.00 would compensate plaintiff for attorney's fees during the course of the trial and on appeal. The trial court then entered judgment awarding plaintiff damages for such mental anguish and attorney's fees.

Defendant appeals, assigning four points of error. Plaintiff presents two cross-points. The major appellate dispute is set forth in point of error one which complains that the trial court erred in entering judgment allowing plaintiff to recover damages for mental anguish when such damages are not recoverable under the Act, absent actual physical injuries. Plaintiff appellee, on the other hand, contends that the Supreme Court case of Woods v. Littleton, 554 S.W.2d 662 (Tex.1977) authorizes her to recover damages for mental anguish.

The question of whether or not damages for mental anguish are recoverable under the Act has been considered in several other intermediate appellate decisions. In each such case, the question has been decided adversely to plaintiff's contention. These cases hold that the "actual damages" recoverable under Section 17.50 of the Act refer to common law damages only. See Young v. DeGuerin, 591 S.W.2d 296, 300 (Tex.Civ.App. Houston (1st Dist.) 1979, no writ); Am. Tr. & Storage Co. v. Brown, 584 S.W.2d 284, 297 (Tex.Civ.App. Dallas 1979, writ granted); Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619, 622 (Tex.Civ.App. Beaumont 1978, writ ref'd n. r. e.); Cantrell v. First Nat. Bank of Euless, 560 S.W.2d 721, 727 (Tex.Civ.App. Fort Worth 1977, writ ref'd n. r. e.). These cases uniformly hold that damages for mental anguish cannot be recovered under the Act absent actual physical injuries or circumstances in which such damages would be recoverable under common law principles.

The question of whether Woods v. Littleton, 554 S.W.2d 662 (Tex.1977), is authority for recovery under the Act for damages due to mental anguish, as appellant contends, was discussed in the recent cases of Young v. DeGuerin, 591 S.W.2d 296, 298 (Tex.Civ.App. Houston (1st Dist.) 1979, no writ) and Am. Tr. & Storage Co. v. Brown, 584 S.W.2d 284, 297 (Tex.Civ.App. Dallas 1979, writ granted). These cases point out that the Supreme Court did not decide the question of whether damages for mental anguish were recoverable under the Act because the Supreme Court merely affirmed the judgment of the Court of Civil Appeals on the point that the mental anguish special issue was defective. It is noteworthy that the Court of Civil Appeals in the Woods case expressly declined to reach the question of whether the Act authorized a recovery of damages for mental anguish. See Littleton v. Woods, 538 S.W.2d 800, 802 (Tex.Civ.App. Texarkana 1976), aff'd Woods v. Littleton, 554 S.W.2d 662 (Tex.1977).

Chief Justice Guittard, addressed the subject in Am. Tr. & Storage v. Brown, 584 S.W.2d 284, 297 (Tex.Civ.App. Dallas 1979, writ granted) ² by saying:

"The demands on the judicial system for reparation of substantial monetary losses are so great that only in exceptional circumstances should courts be required to take account of the emotional distress unaccompanied by physical injury. If such damages are recoverable, whenever a property loss is claimed, the plaintiff can always testify concerning his subjective reactions and thus inject an element of damage that can rarely be rebutted, has no monetary measure, and is subject to no limits but the sympathy of the jury and the conscience of a reviewing court." Citing Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81, 86 (1953).

A careful review of all of the authorities cited leads us to hold that there is no provision under the Act for the recovery of damages for mental anguish not otherwise recoverable under common law principles. Appellant's point of error one is sustained.

Plaintiff argues, however, that even if we should require a further jury finding of physical injury or other circumstances (such as willfulness on the part of appellant in committing the deceptive trade practices in this case), we must consider such issues as "omitted issues" and deem them found in support of the trial court's judgment, citing Rule 279, Texas Rules of Civil Procedure. The Rule upon which plaintiff relies does not apply to the case before us. Here, appellant specifically objected to the submission of the mental anguish issue on the grounds that it did not require the jury to find that there was a specific intent on the part of the appellant. It is well settled that favorable jury findings on some of the elements of a cause of action or defense are of no effect where some issues are omitted and proper complaint is made by the opposing party. See Grubb v. Grubb, 525 S.W.2d 38, 43 (Tex.Civ.App. El Paso 1975, writ ref'd n. r. e.).

We are also of the opinion that the evidence is insufficient to raise an issue that plaintiff's emotional distress, if any, was accompanied by some physical injury. Omitted issues will be deemed found in support of a judgment only if such omitted issues find support in the evidence. Fawcett v. Bellah, 556 S.W.2d 598 (Tex.Civ.App. Corpus Christi 1977, no writ); Rule 279, Texas Rules of Civil Procedure. The only evidence concerning a physical injury was plaintiff's testimony to the effect that she suffered diarrhea and gas pains. She stated that she lacked privacy because she was required to live with her parents. She testified that she had difficulty sleeping in her parents' home because her father, who was hard of hearing, watched television late at night with the sound volume high. She said she also had crying spells. However, she did not testify as to the frequency or duration of such crying spells, or as to any other physical...