Jim Walter Homes, Inc. v. Chapa

• Decision Date: 12 February 1981
• Docket Number: No. 1680,1680
• Citation: 614 S.W.2d 838
• Parties: JIM WALTER HOMES, INC., Appellant, v. Javier CHAPA, Appellee.
• Court: Texas Court of Appeals

Page 838

614 S.W.2d 838

JIM WALTER HOMES, INC., Appellant, v. Javier CHAPA, Appellee.

No. 1680.

Court of Civil Appeals of Texas, Corpus Christi.

Feb. 12, 1981.

Rehearing Denied April 23, 1981.

Charles C. Murray, Atlas & Hall, McAllen, for appellant.

Hector Gonzalez, Sinton, Robert J. Patterson, Law Offices of Latham & Patterson, Corpus Christi, for appellee.

OPINION

NYE, Chief Justice.

This is an appeal by Jim Walter Homes, Inc., defendant-appellant, from a judgment in favor of Javier Chapa, plaintiff-appellee. Appellant was found to have violated the Texas Deceptive Trade Practices Consumer Protection Act, Tex.Bus. & Com. Code Ann. § 17.41 et seq. (hereinafter "DTPA") and the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-1.01 et seq. (hereinafter "Credit Code") in the sale of a new home to plaintiff. The alleged violations under the DTPA were tried to a jury, while the alleged violations under the Credit Code were tried to the Court. Judgment was rendered upon all violations in the amount of $55,201.00.

The defendant, in the trial below, challenges the sufficiency of the evidence to sustain the jury findings, the manner in which the special issues regarding the alleged DTPA violations were submitted, and the attempted cure of the alleged violations under the Credit Code claim.

On February 14, 1976, plaintiff signed a contract wherein defendant agreed to construct a new house on the plaintiff's unencumbered property in Zapata County, Texas. The cash price of the house was $12,385.00, the finance charge was $13,463.00, for a total sales price of $25,848.00. To secure the payment of the debt, defendant required that plaintiff execute a Mechanic's Lien Contract. The total amount was to be repaid in 180 monthly installments of $413.00 each. The Building Contract disclosed that an annual percentage rate of 11.4% interest was charged.

At the time of the purchase, several written and oral representations were made to plaintiff by the defendant or his representative. Included was defendant's promise that the house would comply with the local codes including a promise of at least one electrical outlet on each wall, and that the construction would be performed in a "good, substantial and workmanlike manner."

During the middle of May, 1976, plaintiff and his wife moved into the new home. Approximately two weeks after they moved in, plaintiff began to notice defects in the construction of the house. The sheetrock began to sag, the plumbing leaked, the electricity would arbitrarily cut off, and he noticed numerous problems with the floors and windows. Plaintiff then called defendant's Laredo office in an attempt to have the problems corrected. After repeated calls little, if anything, was repaired.

On October 24, 1978, plaintiff filed suit against the defendant, Jim Walter Homes, Inc., alleging numerous violations of the DTPA and the Credit Code. During the trial of the case, plaintiff testified as to the representations made to him by the salesman and other employees concerning the defects that appeared in the house after he moved in, and the documents he signed. George Clower, an architect and expert witness, was called by plaintiff, Clower testified as to how much he believed it would cost to repair the house to bring it in compliance with the local building code. This testimony was rebutted by defendant's expert witness.

The jury found three violations of the DTPA. They were as follows: 1) defendant represented in the Mechanic's Lien Contract that the home was to be built in a "good, substantial and workmanlike manner" when it wasn't; 2) defendant advertised to plaintiff that the electrical package would be installed according to local codes, with an intent not to sell as advertised; and 3) that defendant charged plaintiff for local codes, when no such codes were in force; and that the charge was a false, misleading or deceptive act or practice. The jury found that the reasonable cost of repairs for the first two violations was $8,500.00, and assessed a penalty of $925.00 for the last violation. Exemplary damages were awarded in the amount of $6,000.00. Judgment was entered on the jury findings under the DTPA, trebling the actual damages of $9,425.00 to $28,275.00. In addition, the trial court awarded $26,926.00 for violations of the Credit Code, that amount being twice the time-price differential of $13,463.00. The exemplary damages were not awarded by the trial court because plaintiff failed to move for judgment on them.

Appellant Jim Walter Homes, Inc., first contends that plaintiff's claim under the DTPA concerning the representations made in the Mechanic's Lien Contract should be governed by the two-year statute of limitation set out in Article 5526, Tex.Rev.Civ.Stat.Ann. (1958). He argues that plaintiff's claim is barred by his failure to bring suit within two years of the discovery of his cause of action. Article 5526 (in effect at the time of this action) requires that an action for debt, where the indebtedness is not evidenced by a contract in writing, be brought within two years. Article 5527 provides that in actions for a debt where the indebtedness is evidenced by or founded upon any contract in writing, the same may be brought within four years after the cause of action accrued.

Liability, in the instant case, arises out of the written Mechanic's Lien Contract; accordingly, the four-year statute of limitations applies. Plaintiff's DTPA action was filed well within four years. Appellant's eleventh and twelfth points of error are overruled.

Next, defendant complains that the special issues regarding the DTPA violations were incorrectly submitted. Jim Walter Homes argues that several additional elements, such as reliance, materiality and proximate cause, which are not in the text of the DTPA, should have been included in the submitted special issues.

When submitting special issues to the jury under a DTPA claim, the issue should be submitted in terms as similar as possible to the statute itself. The language used in the submission of the issue may, of course, be altered somewhat to conform to the evidence in the case. Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.Sup.1980). Reviewing the submitted issues, we find that they closely follow the wording of the statute with only minor alterations or deletions to conform to the pleadings and evidence. All of appellant's points of error regarding issue submission are overruled.

Next, appellant Jim Walter Homes, Inc., contends that the jury findings are based upon insufficient evidence, or in the alternative, that there is no evidence to support the findings. In deciding the no-evidence points, we are guided by the law as set out in In re King's Estate 150 Tex. 662, 244 S.W.2d 660 (1951) and Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). After carefully reviewing the record in light of these cases, we conclude that the evidence fully supports the findings of the court and jury. These...