Galveston County Fair and Rodeo, Inc. v. Kauffman

• Decision Date: 19 October 1995
• Docket Number: No. 08-93-00285-CV,08-93-00285-CV
• Citation: 910 S.W.2d 129
• Parties: The GALVESTON COUNTY FAIR AND RODEO, INC., Appellant, v. Daniel S. KAUFFMAN, Jr., Individually and As Next Friend of Travis Kauffman, Appellee.
• Court: Texas Court of Appeals

Page 129

910 S.W.2d 129

The GALVESTON COUNTY FAIR AND RODEO, INC., Appellant, v. Daniel S. KAUFFMAN, Jr., Individually and As Next Friend of Travis Kauffman, Appellee.

No. 08-93-00285-CV.

Court of Appeals of Texas El Paso.

Oct. 19, 1995.

Rehearing Overruled Dec. 6, 1995.

Kenneth C. Kaye, League City, for Appellant.

Mark L. Aschermann, Houston, for Appellee.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Appellee, Daniel S. Kauffman, Jr. ("Kauffman"), sued Appellant, The Galveston County Fair and Rodeo, Inc. (the "Fair"), alleging violations of the Deceptive Trade Practices-Consumer Protection Act (the "DTPA"), breach of contract, negligence, and gross negligence. The jury returned findings favorable to Kauffman on all causes of action, and Kauffman elected recovery under the DTPA. The Fair brings this appeal, challenging: (1) the contents of the jury charge; (2) the sufficiency of the evidence; (3) a duplicative recovery of damages; (4) consumer status for purposes of the DTPA; and (5) the propriety of an award of attorneys' fees. We affirm as modified.

SUMMARY OF THE EVIDENCE

Travis Kauffman ("Travis") purchased a red Limousin-cross steer in June of 1991 for $1,750. He named the steer "Reebok" and spent several months caring for the steer by washing, grooming, and training it, which took some three hours per day. Travis entered the steer show at the 1992 Fair by paying the required $10 fee and submitting his application. The application required Travis to abide by the rules of the Fair regarding the steer show. Entry in the steer contest entitles a competitor to a stall for his animal and the chance to have his animal sold at auction if it places well in the competition. The Fair is entitled to an 8 percent commission of the auction price for its services. Travis took Reebok to the fairground on April 27, 1992 for weigh-in. The actual showing of the steers occurred the next evening. Reebok placed first in the heavyweight County Bred Class, and was named County Bred Champion out of the three weight class winners. ¹ As County Bred Champion, Reebok made the cut for the Grand Champion Class, but this award went to the Exotic Champion owned by Eric Glover ("Eric"). Travis went on to win the showmanship award for his handling of Reebok. Sometime between winning the County Bred championship and showing in the Overall Champion Class, the troubles for Travis began.

The steer show was judged by Charlie Phillip ("Phillip"). Phillip is a cattle breeder from Boerne, Texas, who maintains some three hundred cows on his ranch. Judging the steers required Phillip to physically handle and examine them closely. Phillip testified that when he selected a steer champion of a class, he slapped it on the rump. As to the 1992 competition, Phillip thought several steers violated the Fair's rules regarding fitting, as they had been "aired." "Airing" is a process which involves the injection of air under the hide or into the fat layer of a steer to improve its overall appearance. After the competition, Phillip told several members of the Fair's Board of Directors that he believed the show to be one of the "dirtiest" he had seen and that there were several steers he had positioned lower in the heavyweight class rankings because he believed them to have been aired. He maintained that despite his handling of Reebok during the heavyweight class competition, he did not notice a problem until he slapped Reebok during the announcement of County Bred Champion. Phillip did not say anything about Reebok once he determined the steer was aired, but he claimed he did not consider Reebok for Overall Champion. He did, however, select Travis for the showmanship award, despite the fact that the announcement for this award came after he purportedly determined that Reebok had been aired. Phillip also told Board members that he thought he had made a mistake and that he did not know how to "undo" it in that the steer he selected as Grand Champion had been aired. Significantly, the Grand Champion was shown by Eric, not Travis. At no time during the competition did Phillip disqualify either Travis or Eric.

Despite the fact that Phillip had raised the prospect of airing, no effort was made to examine the winning steers before the auction on April 29. Eric's steer was sold to Del Papa for $13,500, while Reebok was sold to OFM, Inc. for $7,000. On May 3, Reebok was transported to Bubba Harrington for slaughter at the request of OFM. Harrington later testified that the steer acted oddly, as if it were in pain. Jim Shurtleff, who transported Reebok to the slaughterer, thought the steer was aired and told Harrington of his suspicion. Harrington in turn called Janet Blake, the auction superintendent, on May 4. Blake is the mother of Travis' best friend, Tommy, and had been a surrogate mother to Travis since his parents' divorce. She is also the daughter of the owner of OFM and is employed by OFM as the office manager. The executive committee of the Fair met on May 6. Ricky Joseph Abernathy, livestock superintendent, reported the rumors of steers having been aired, but the committee made no decision to act. Abernathy began to do some investigation on his own, one reason being that his son was defeated by Travis in the competition for County Bred Champion. Part of this investigation included an examination of Reebok by Dr. Donald Cleary, a veterinarian, who happens to be the father of Jennifer Cleary, the other losing contestant for County Bred Champion. Reebok was slaughtered on May 8. Harrington thought the carcass was sticky, noted that it contained air bubbles, and made a videotape of the carcass. On May 11, the full Board of Directors met and the rumors were again discussed. Although the Board decided to investigate, there was no discussion of disqualifying any of the entrants at that time. On May 18, Edith Bishop, the superintendent of the arts and crafts segment of the Fair, went to Harrington's to videotape Reebok's carcass. A second veterinarian, Lelve Gayle, was contacted by Bishop so that she might know what to look for with regard to an aired steer. By this time, rumors were abounding and the Fair had employed a private investigator and an attorney. Members of the press were calling the Fair president, Larry Hinze, for information, and Hinze called a press conference for May 18 or 19, at which he announced that the Fair was investigating allegations of unethical fitting and the possibility of disqualification. Stories eventually appeared in the Houston Chronicle, the Houston Post, The Galveston Daily News, the Santa Fe Bulletin, the Texas City Sun, and in papers from Dallas, San Antonio, Waco, and Florida. Even CNN carried the story. Travis was not mentioned by name in any publication, but all parties admitted that the rumor mill was fast at work.

Members of the Board also notified the purchasers of Eric's and Travis' steers that there were allegations that the steers had been unethically fitted and that the Fair did not condone such conduct. Thus, on May 19, Janet Blake typed a letter on behalf of OFM in which it reneged on its agreement to purchase Reebok. A special executive committee meeting was conducted on May 20 and the members specifically discussed Travis and Eric. They voted to disqualify the boys and determined to refer the issue of disqualification to the full Board of Directors for a vote. They further recommended that a letter be sent to Travis and Eric. The first letter to Travis, dated May 22, indicated that the Fair had decided to disqualify his steer, but it mistakenly referred to it as the Exotic Class Champion. A second letter, dated May 23, corrected the mistake and indicated that a motion to disqualify the steer would be considered by the full Board at a specially called meeting on June 1. Phillip did not attend the meeting, but his statements were repeated by various members. The minutes of the meeting reflect that Phillip had made the comment at the end of the steer show that one of the steers had been "blown up." Contrary to Phillip's own testimony, the minutes also reflect that Phillip told Hinze that it was not until he slapped the Grand Champion steer that he felt air. The Grand Champion belonged to Eric and that competition occurred after Reebok won County Bred Champion. The June 1 meeting was attended by the Fair's attorney. Eric had requested the opportunity to be present, but his request was denied. Travis did not ask to attend since Eric had been rejected. Noticeably absent from this meeting were Dr. Cleary and Harrington. The minutes of the meeting reflect that two veterinarians had stated that they would testify that the steers were aired. At trial, it was established that only Cleary had examined Reebok.

A final letter was mailed to Travis on July 14, advising him that the Board had met on July 13 to reach a decision on the disciplinary sanctions arising from his disqualification. He was banned from participating in the 1993 Fair, but by that time, Travis had already purchased his new steer, which cost $3,500, and a heifer calf, for which he paid $1,500.

At trial, the Fair admitted that Board members had contacted both buyers and that both buyers had backed out of their auction bids by May 19, before either steer was disqualified. The Fair also admitted that it would have been required to "cough up" $20,000 in purchase money to cover the loss of these sales unless the steers were disqualified. Hinze and Paulette Pickett, the Fair manager, could not remember when they first heard of the airing accusations, whom they had heard it from, or the specifics of what they heard. Janet Blake admitted that she knew that Eric's status as Grand Champion was in jeopardy the night of the steer show and that even as auction superintendent, she did nothing to prevent the auction of Eric's steer. She testified that Abernathy and Cleary had done the bulk of the investigation, that each had a child...