Hash v. Hines
Decision Date | 20 September 1990 |
Docket Number | No. 07-89-0285-CV,07-89-0285-CV |
Citation | 796 S.W.2d 312 |
Parties | C.W. HASH, Jr., Appellant, v. Dutch HINES, Appellee. |
Court | Texas Court of Appeals |
Jung & Brian, Tom J. Brian, Crosbyton, Ralph H. Brock, Lubbock, for appellant.
Rush S. Wells, P.C., William F. Warnick, Lubbock, for appellee.
Before REYNOLDS, C.J., and DODSON and POFF, JJ.
C.W. Hash, Jr., appeals from an adverse judgment decreeing his monetary liability to Dutch Hines under the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). Tex.Bus. & Com.Code Ann. § 17.41 et seq. (Vernon 1987; Vernon Supp.1990). By two points of error, Hash, representing that Hines affirmatively plead and introduced uncontroverted evidence of his own failure to fulfill the notice requirement of the DTPA, contends the trial court erred (1) by rendering judgment for Hines or, alternatively, (2) by failing to abate the lawsuit for service of notice. On the rationale expressed, we will reverse and remand.
In May of 1985, Hines, whose home had sustained interior water damage due to leaks in the roof, contracted with Hash for the construction of a new roof. After Hash completed the new roof, it leaked even more during subsequent rains. Hash responded to Hines' several telephoned complaints by effecting some minor repairs, but they were ineffective since the Hines residence sustained further interior water damage.
Hines filed suit predicated on section 17.50 of the DTPA, which authorizes an action by a consumer who suffers damages produced by a breach of an express or implied warranty, and sought damages measured by the provisions of section 17.50(b)(1), together with reasonable attorney's fees allowed by section 17.50(d). As a predicate to maintaining the action for damages, the version of the DTPA in effect at the time provided:
§ 17.50A. Notice: Offer of Settlement
(a) As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 of this subchapter against any person, a consumer shall give written notice to the person at least 30 days before filing the suit advising the person of the consumer's specific complaint and the amount of actual damages and expenses, including attorneys' fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant.
Act of May 11, 1979, 66th Leg., R.S., ch. 603, § 17.50A, 1979 Tex.Gen. and Spec.Laws, 1330 (emphasis added).
In his original petition filed on December 16, 1986, and in each amended petition alleging DTPA violations, Hines pleaded that
notice was sent by certified mail return receipt requested and was returned unclaimed on October 11, 1986, copy of the returned envelope attached here to as Exhibit B. No response was received from Defendant.
Hash answered and, construing the failure of notice to be an issue in bar, raised it solely as an affirmative defense. Pleading that Hines take nothing by his action, Hash then cross-claimed, charging Hines with filing a bad faith suit and requesting costs and attorneys' fees.
At the trial on the merits, Hines presented testimony that notice was sent by certified mail, return receipt requested, to Hash at the address listed by his name in the telephone directory, and that such notice was returned unclaimed. The notice letter, dated September 24, 1986, and its envelope were admitted into evidence. The envelope bore post office notations indicating attempted delivery on a date that was illegible, and subsequent notices on September 26 and October 4, with return on October 11.
After Hines presented his evidence, Hash moved for an instructed verdict on the ground that Hines had presented no evidence of timely notice of his DTPA claim and, instead, had presented affirmative evidence of nondelivery of such notice. His motion was denied.
Hash then introduced his evidence, among which was his own testimony that he had never received any written notice from Hines concerning the roof. He maintained that at the time the post office was attempting delivery of the notice letter he was working in another town, leaving his house early and returning late, and had neither the opportunity to get to the post office during operating hours nor anyone to send to pick up the letter for him. He claimed to have no reason to suspect, and no knowledge, that the letter might be a demand concerning Hines' roof.
Before the charge was submitted to the jury, Hash requested submission of a jury question on the issue of notice, again moved for an instructed verdict on the ground previously urged, and objected to submission of any issues to the jury on the ground that Hines was not entitled to recovery under the DTPA because of his failure to give the prerequisite notice of claim. His request and motion were denied; his objection was overruled.
Upon submission, the jury found that Hash had engaged in false, misleading or deceptive trade acts or practices, had taken unconscionable action, and had breached an express or implied warranty; that each of these actions was done knowingly; and that actual damages sustained by Hines were $9,249.00 with an additional $3,850.00 in attorney's fees. Judgment was rendered decreeing that Hines recover treble damages, attorney's fees, and pre- and post-judgment interest for a total award of $35,822.67, plus post-judgment interest.
Hash develops his two points of error to point out that the notice provision is mandatory, Sunshine Datsun, Inc. v. Ramsey, 680 S.W.2d 652, 654 (Tex.App.--Amarillo 1984, no writ), and delivery of the required written notice is a prerequisite to recovery under section 17.50(b)(1) of the DTPA. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983). Hash then invites us to revisit our Sunshine Datsun holding that lack of the required notice does not call for the rendition of a take-nothing judgment, but calls for a reversal, remand and abatement of the action to afford an opportunity for notice....
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Hines v. Hash
...a lack of uniformity in the cases applying the notice requirement in the DTPA, held that the DTPA mandates actual delivery of notice. 796 S.W.2d 312. The court reasoned that the purpose of the notice requirement, "to afford the opportunity for presuit negotiations and settlement in avoidanc......
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... ... Hash v. Hines, 796 S.W.2d 312, 315 (Tex.App.--Amarillo 1990, writ granted); Sunshine Datsun, Inc. v. Ramsey, 680 S.W.2d 652, 655 (Tex.App.--Amarillo ... ...
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...writ ref’d n.r.e.), §§10.22, 10.23 Hartford Accident and Indem. Co. v. McCardell , 369 S.W.2d 331 (Tex. 1963), §8.10 Hash v. Hines , 796 S.W.2d 312 (Tex. App.—Amarillo 1990), §3.02 Hash v. Hines , 843 S.W.2d 464 (Tex. 1992), §6.01.1 Head v. U.S. Inspect DFW, Inc ., 159 S.W.3d 731, 739 (Tex.......
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Giving Notice and Responding to an Offer
...of appeals has held that a notice letter sent by certified mail but returned unclaimed does not satisfy the statute. Hash v. Hines , 796 S.W.2d 312 (Tex. App.—Amarillo 1990), rev’d on other grounds, Hines v. Hash , 843 S.W.2d 464 (Tex. 1992) (not reaching the issue). If the defendant raises......