Keller Industries, Inc. v. Reeves, 13647

• Decision Date: 20 July 1983
• Docket Number: No. 13647,13647
• Parties: KELLER INDUSTRIES, INC., et al., Appellants, v. O.O. REEVES, et ux., Appellees.
• Court: Texas Court of Appeals

Page 221

656 S.W.2d 221

KELLER INDUSTRIES, INC., et al., Appellants, v. O.O. REEVES, et ux., Appellees.

No. 13647.

Court of Appeals of Texas,

Austin.

July 20, 1983.

Rehearing Denied Sept. 7, 1983.

George B. Butts, Scott R. Kidd, Brown, Maroney, Rose, Baker & Barber, Austin, for appellants.

Tommy Jacks, Lloyd Doggett, Doggett & Jacks, Austin, for appellees.

Before SHANNON, POWERS and GAMMAGE, JJ.

GAMMAGE, Justice.

This is an appeal from a judgment for personal injuries under the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. § 17.41 et seq. (Supp.1982) (hereafter DTPA), by which appellees were awarded $212,900 actual damages, trebled to $638,700, and $97,037 attorneys' fees. Under the judgment, certain credits, based upon the extent of appellate review pursued by appellants, are allowed against the attorneys' fees. We will affirm the judgment of the trial court.

In April, 1979, Keller Industries, Inc. (hereafter Keller) manufactured a six-foot aluminum stepladder which was purchased by Lilyan Kalar Reeves from Gibson Products Company of Austin, Inc. (hereafter Gibson), on June 9, 1979. On August 5, 1979, the ladder failed while being used by O.O. Reeves, resulting in his severe injury. The Reeves' filed suit against both Keller and Gibson alleging causes of action under the doctrine of strict liability in tort and violations of §§ 17.46(b)(5), (7) of the DTPA, which ultimately resulted in the judgment recited above.

Appellants bring eight points of error, arguing that the trial court improperly applied the DTPA in trebling damages and awarding attorneys' fees; that appellants are entitled to have the judgment reversed and the cause remanded because they were unable to obtain a complete statement of facts; that there was no evidence or insufficient evidence to support the jury's answer to Special Issue No. 10(d), which served as a partial basis for the trial court's judgment; that there was insufficient evidence to support the jury's answer to Special Issue No. 10(b), which served as a partial basis for the trial court's judgment; that the trial court improperly failed to submit a special issue inquiring whether O.O. Reeves relied on representations made to him by appellants because reliance is a necessary element of appellees' cause of action; that the trial court improperly awarded attorneys' fees to appellees for work done preparatory to, and during, an earlier mistrial of this case because the mistrial resulted from a change in theory on the part of an expert witness of appellees; and that the trial court improperly admitted two exhibits into evidence because no proper predicate was laid for their admission.

The following provisions of the DTPA, including 1977 amendments, are applicable to the case at bar:

§ 17.44 Construction and Application

This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.

§ 17.46 Deceptive Trade Practices Unlawful

(a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

(b) The term 'false, misleading, or deceptive acts or practices' includes, but is not limited to, the following acts:

* * *

* * * (5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;

* * *

* * *

(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; ....

§ 17.50. Relief for Consumers

(a) A consumer may maintain an action if he has been adversely affected by any of the following:

(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subchapter; ....

* * *

* * *

(b) In a suit filed under this section, each consumer who prevails may obtain:

(1) three times the amount of actual damages plus court costs and attorneys' fees reasonable in relation to the amount of work expended; ....

* * *

* * *

17.50A. Damages: Defenses

In an action brought under Section 17.50 of this subchapter, actual damages only and attorney's fees reasonable in relation to the amount of work expended and court costs may be awarded where the defendant:

(1) proves that the action complained of resulted from a bona fide error notwithstanding the use of reasonable procedures adopted to avoid the error; ....

[emphasis added]

Appellants' first point of error, arguing that these provisions of the DTPA were improperly applied in this case, is apparently grounded upon a theory that a set of facts which give rise to a cause of action in strict liability for a defective product cannot also be the subject of a cause of action under the DTPA. Their argument makes extensive references to the legislative history of the DTPA and quotes at length testimony of nonlegislator proponents of the original legislation as a purported basis for determining what the legislature intended.

Both the application of the DTPA to personal injury cases and the question of legislative intent as determined by legislative history were addressed in the recent case of Litton Industrial Products, Inc. v. Gammage, 644 S.W.2d 170 (Tex.App.1982, writ granted on other points), as follows:

It is a fundamental principle of statutory construction that the courts only look behind the law as to legislative intent and public policy where the statute is unclear, uncertain or ambiguous. [citation omitted]. If there is no ambiguity, the statute itself is the public policy. We are of the opinion that the DTPA is clear and unambiguous and, therefore, it is not necessary to consider legislative intent beyond that expressly stated in the statute itself....

The DTPA clearly states that all actual damages are to be trebled, regardless of whether they are personal injury or property damages. Upon our review of the applicable legislative history, we found that the purpose of the DTPA was to deter that behavior expressly prohibited by the DTPA. It would be totally illogical to conclude that the prohibited practices are better deterred by trebling property damage awards than by trebling personal injury awards. We can only, in all reasonableness, conclude that it is in keeping with the deterrent function of the DTPA to treble personal injury damages when the proper circumstances warrant it....

644 S.W.2d at 175, 176.

Other cases either holding or recognizing that the DTPA applies to actions for personal injuries include: Hurst v. Sears, Roebuck & Company, 647 S.W.2d 249 (Tex.1983) (Supreme Court recognized trebling of damages for physical pain and suffering under the DTPA, reversing on other grounds); Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980) (Supreme Court impliedly recognized that a personal injury action under the DTPA is appropriate while holding against a recovery for mental anguish under the DTPA where those damages were not otherwise recoverable at common law); Woods v. Littleton, 554 S.W.2d 662 (Tex.1977) (Supreme Court recognized trebling of damages for mental anguish under the DTPA); Mahan Volkswagen, Inc. v. Hall, 648 S.W.2d 324 (Tex.App.--Houston [1st Dist.] 1982, writ ref'd n.r.e.) (directly affirmed awarding of treble damages for personal injuries under the DTPA); Tom Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815 (Tex.App.1982, writ ref'd n.r.e.) (recognized awarding of treble damages under the DTPA for medical expenses, physical pain, mental anguish and property damage).

Appellants' first point of error is overruled.

Appellants' second point of error, that they are unable to obtain a complete statement of facts and are therefore entitled to have the judgment reversed and the cause remanded as a matter of law, is also without merit.

Missing from the statement of facts in this appeal are bench conferences containing arguments and objections concerning the admissiblity of testimony of certain of appellees' witnesses and exhibits. In the record is an affidavit of the court reporter stating that she was unable to hear all of what was said during these bench conferences because of noise from an air hammer being operated just outside the courtroom. The affidavit further states that the reporter was not requested to transcribe the first of these bench conferences and it was covered only by her tape recorder. While counsel for appellants did request the reporter to take stenographic notes on all subsequent bench conferences, she advised both court and counsel that she was having difficulty hearing all that was said due to the noise interference from the air hammer.

Objections made during some of these bench conferences were referred to in a non-specific manner during objections to the testimony of these and other witnesses later in the trial. The court reporter, however, was unable to provide an accurate verbatim transcription of the complete arguments and objections made during the bench conferences which served as the basis for the subsequent non-specific objections.

It is well settled that an appellant who is unable to obtain a proper record of the evidence is entitled to a new trial where his right to have the cause reviewed on appeal cannot be preserved in any other way. Gilbert v. Singleton, 611 S.W.2d 163 (Tex.Civ.App.1981, no writ).

In determining whether this right can otherwise be preserved, this Court has long recognized the options offered by Rules 377 and 378, Tex.R.Civ.P.Ann. (1967):

Even though an appellant has not waived the unavailability of the statement of facts, ...