Jacobs v. Danny Darby Real Estate, Inc.

• Decision Date: 18 May 1988
• Docket Number: No. C-7115,C-7115
• Citation: 750 S.W.2d 174
• Parties: Charles Ray JACOBS, Petitioner, v. DANNY DARBY REAL ESTATE, INC., Respondent.
• Court: Texas Supreme Court

Page 174

750 S.W.2d 174

Charles Ray JACOBS, Petitioner, v. DANNY DARBY REAL ESTATE, INC., Respondent.

No. C-7115.

Supreme Court of Texas.

May 18, 1988.

Charles M. Wilson, III and B. Scott Kruka, Carter, Jones, Magee, Rudberg & Mayes, Dallas, for petitioner.

Harold F. Curtis, Jr. and D. Robert Smith, Curtis & Paris, Greenville, for respondent.

OPINION

GONZALEZ, Justice.

This is a case brought under the DTPA. ¹ Charles Ray Jacobs sued Danny Darby Real Estate, Inc. to recover for alleged misrepresentations in advertising certain property for sale under the land purchase program of the Texas Veterans Land Board. Pursuant to a jury verdict, Jacobs was awarded a judgment in his favor by the trial court. The court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. 740 S.W.2d 18 (Tex.App.1987). We reverse the judgment of the court of appeals and remand to that court for consideration of Darby's points of error presented to but not considered by the court of appeals.

Darby advertised for sale several tracts of land near Greenville, Texas. The advertising indicated that financing was available through the Texas Veterans Land Board. As a veteran, Jacobs was eligible to participate in the program. In reliance upon Darby's advertisement, Jacobs signed an earnest money contract on October 6, 1979. This contract provided that the sale was contingent on Jacobs obtaining financing from the Board. Jacobs, allegedly relying on Darby's representations that financing would be obtained, purchased a mobile home and installed it on the tract. Jacobs also constructed a driveway, and obtained telephone, water, sewage and electrical services for the property.

On December 27, 1979, Jacobs filed an application for financing and contract of sale with the Board. In February 1980 the Board informed Jacobs that it would not finance the sale. Shortly thereafter, Darby commenced eviction proceedings against Jacobs.

Jacobs brought suit against Darby alleging violations of the DTPA based upon Darby's representation that Jacobs would be able to obtain financing through the Board. The jury answered the issue favorably to Jacobs. The court of appeals reversed and remanded, holding that Jacobs "offered no evidence that his expenses were reasonable and necessary...." 740 S.W.2d at 19.

Jacobs has presented only one point of error to this court by which he asserts that the court of appeals erred in holding that there was no evidence that the expenses he incurred as a result of Darby's alleged misrepresentation were reasonable and necessary. ² In reviewing this no evidence point, we must consider only the evidence and inferences which tend to support the finding, and disregard all evidence and inferences to the contrary. Stranglin v. Keda Development Corp., 713 S.W.2d 94, 95 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Jacobs incurred out-of-pocket expenses in moving a mobile home on the property for his family and in establishing utility services for the home. Jacobs personally installed a driveway, a septic tank and equipment for electric and water utilities. Jacobs purchased the septic tank from his cousin at wholesale price. His cousin, who was in the busines of selling and installing septic tanks, installed the tank with Jacobs' assistance.

Jacobs purchased and installed the equipment necessary for electrical service and water service; he also purchased crushed rock to build a 400 foot driveway, and rented a maintainer to smooth the stone once it was laid. Because he rented the maintainer from a friend, his rental costs were reduced from $400 per day to $400 per month. Jacobs' only other expenses incurred as a result of his improvements were for the telephone hookup service, rock for the septic tank, fuel for the maintainer, and the cost of hiring someone to operate the maintainer. Jacobs did not request compensation for the value of his services. The expenses which Jacobs asked to be reimbursed for as damages in this suit totalled less than $1500.

We hold that there is some evidence to support a finding that the work performed and the expenses incurred incident to that work were reasonable and necessary. Accordingly, we reverse the judgment of the court of appeals and remand the cause to that court for consideration of the remainder of Darby's points of error.

KILGARLIN, J., concurs, and RAY, J., joins.

KILGARLIN, Justice, concurring.

I concur in the court's judgment reversing the court of appeals. However, I would additionally hold that proof of reasonableness and necessity is not required under the DTPA. Tex.Bus. & Com. Code §§ 17.41-17.63 (Vernon 1987). The statute itself imposes no such requirement, nor should we engraft one where the legislature has refused to do so.

In concluding that Jacobs was required to offer evidence that his expenses were reasonable and necessary, the court of appeals relied on Great American Homebuilders, Inc. v. Gerhart, 708 S.W.2d 8, 12 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.), and Oakes v. Guerra, 603 S.W.2d 371, 373 (Tex.Civ.App.--Amarillo 1980, no writ). The decisions in Gerhart and Guerra support the ruling of the court of appeals. However, both Gerhart and Guerra rely erroneously on Royal Globe Insurance Co....