Leggett v. Brinson

• Decision Date: 02 October 1991
• Docket Number: No. 08-91-00098-CV,08-91-00098-CV
• Citation: 817 S.W.2d 154
• Parties: Doug LEGGETT d/b/a Modern Appliances, Appellant, v. Homer BRINSON and Anna Mae Brinson, Appellees.
• Court: Texas Court of Appeals

Page 154

817 S.W.2d 154

Doug LEGGETT d/b/a Modern Appliances, Appellant, v. Homer BRINSON and Anna Mae Brinson, Appellees.

No. 08-91-00098-CV.

Court of Appeals of Texas El Paso.

Oct. 2, 1991.

Jeffrey F. Thomason, Todd, Barron & Thomason, P.C., Odessa, for appellant.

Shelby J. Bush, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, for appellees.

Before OSBORN, C.J., and WOODARD and KOEHLER, JJ.

OPINION

WOODARD, Justice.

This is an appeal from a bench trial judgment for $4,126.00 that was based upon an action brought under the Deceptive Trade Practice-Consumer Protection Act (DTPA). We reverse and remand in part and affirm in part.

Point of Error No. One complains of the trial court's failure to file findings of fact and conclusions of law. Subsequent to the trial, the trial judge left office due to an expired term. His successor recused himself from the case. Findings of fact and conclusions of law were filed after the filing of the briefs. Generally, late filing is harmless unless injury is shown. Gomez v. Gomez, 577 S.W.2d 327, 330 (Tex.Civ.App.--Corpus Christi 1979, no writ). In addition, the issue has not been briefed and is, therefore, waived. Valero Transmission Company v. Wagner & Brown, 787 S.W.2d 611, 614 (Tex.App.--El Paso 1990, dism. by agr.). Point of Error No. One is overruled.

Point of Error No. Two contends the trial court erred in admitting the testimony of the plaintiffs. It is alleged that interrogatories were made requesting disclosure of all persons having knowledge of the case, and the plaintiffs failed to list themselves, and, therefore, should have been precluded from testifying. There are no interrogatories of record before us. The burden is on the Appellant to see that a sufficient record is presented to show error requiring reversal. Tex.R.App.P. 50(d); Haynes v. McIntosh, 776 S.W.2d 784 (Tex.App.--Corpus Christi 1989, writ denied). Point of Error No. Two is overruled.

In that many of the following points of error concern legal and factual insufficiency assertions, we set forth here the standards of review we apply to such points to avoid repetition under each of them. In considering a "no evidence" legal insufficiency point, we consider only the evidence which tends to support the trial court's findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). A factual insufficiency point requires us to examine all of the evidence in determining whether the finding in question is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951). The reviewing court cannot substitute its conclusions for those of the fact finder. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Carrasco v. Goatcher, 623 S.W.2d 769 (Tex.App.--El Paso 1981, no writ). It is not within the province of the court to interfere with the fact finder's resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Benoit v. Wilson, 239 S.W.2d 792 (Tex.1951). Where there is conflicting evidence, the fact finder's finding on such matters is generally regarded as conclusive. Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508 (Tex.1947); Clark v. National Life & Accident Ins. Co., 145 Tex. 575, 200 S.W.2d 820 (1947).

Point of Error No. Three alleges legal and factual insufficiencies of the evidence to support attorney's fees. There was no evidence offered in respect to attorney's fees. Appellees contend that the trial court may take judicial notice of the reasonableness of attorney's fees under Tex.Civ.Prac. & Rem.Code § 38.001 et seq. (Vernon 1986). In actions under the DTPA, reasonableness of the fee claimed must be established by evidence. Smith v. Smith, 757 S.W.2d 422 (Tex.App.--Dallas 1988, writ denied). Appellees claim a collateral action of breach of warranty would warrant an award under § 38.001 et seq. The third amended petition is grounded solely under the DTPA, and judgment is expressly based upon violations of the DTPA. The judgment must conform to the pleadings. Tex.R.Civ.P. 301. No exception to the judgment was made to the trial court by the Appellees, and any recovery under a breach of warranty was waived. Wm. S. Baker, Inc. v. Sims, 589 S.W.2d 492 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.). Appellant has prayed for a reversal and rendering of judgment by this Court. The amount and reasonableness of attorney's fees is a question of fact to be determined by the court or jury as any other fact issue and as such is required to be supported by competent evidence. Boaz Well Service, Inc. v. Carter, 437 S.W.2d 38 (Tex.Civ.App.--Fort Worth 1969, no writ). While this issue resembles any other issue in that respect on the trial level, the issue takes on an additional and unique characteristic on the appellate level. In determining whether an award of attorney's fees is excessive, it is the responsibility of the Court of Appeals to draw on the common knowledge of the justices of the Court and their experience as lawyers and judges, taking into consideration the testimony, the record and the amount in controversy. Terminix International, Inc. v. Lucci, 670 S.W.2d 657 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.); Jack Roach Ford v. De Urdanavia, 659 S.W.2d 725 (Tex.App.--Houston [14th Dist.] 1983, no writ); Argonaut Insurance Company v. ABC Steel Products Co., Inc., 582 S.W.2d 883 (Tex.Civ.App.--Texarkana 1979, writ ref'd n.r.e.). The Court of Appeals must exercise this responsibility in determining that an award of attorney's fees is arbitrary. Gunter v. Bailey, 808 S.W.2d 163 (Tex.App.--El Paso 1991, no writ).

An appellate court is not authorized to reverse the judgment of a trial court on the grounds that the case has not been fully developed. It may only reverse for error committed at trial. Sears, Roebuck & Company v. Marquez, 628 S.W.2d 772 (Tex.1982). The award of reasonable and necessary attorney's fees under the DTPA is mandatory. Satellite Earth Stations East, Inc. v. Davis, 756 S.W.2d 385 (Tex.App.--Eastland 1988, writ denied). Drawing upon my experience as a lawyer and a judge, the record reflects some evidence of reasonable and necessary attorney's fees due and owing. The trial court determined the amount under the erroneous theory of judicial notice. This constitutes reversible error and requires the case to be remanded for a new trial. When a trial court grants an award of attorney's fees without any evidence in the record to support such an award, the proper action on appeal is to remand that part of the judgment awarding attorney's fees for a determination of the reasonableness of the amount of attorney's fee to be awarded. Smith at 426. Point of Error No. Three is sustained as to insufficiency of the evidence only.

Point of Error No. Four contends that the Appellant is not liable in his individual capacity, as his actions were solely the actions of an agent for his corporation. Tex.R.Civ.P. 93(2) requires a verified pleading to establish that a defendant is not liable in the capacity in which he is sued. His failure to do so in this case results in a waiver of the right to complain under this point of error. Horton v. Robinson, 776 S.W.2d 260, 266-267 (Tex.App.--El Paso 1989, no writ). Point of Error No. Four is overruled.

What appears to be Point of Error No. Five and the argument thereunder, is the following statement:

In the case of Aguilar vs. Autohaus, Inc., [sic] 794 S.W.2d 459, (Tex.Civ.--Dallas, 1990 writ refused), the Court found too general to be an actionable misrepresentation a salesman's representation that "Mercedes-Benz was the best engineered car in the world". (Appellant's Brief at 10).

The Autohaus, Inc. case held that "puffing" can be a defensive matter under the DTPA. The evidence does not support this proposition in this case. Point of Error No. Five is overruled.

Point of Error No. Six alleges that the trial court erred in finding that the "Appellant" [sic] was entitled to recover against the Appellant when there is no evidence, or insufficient evidence, that the Appellant was given a reasonable opportunity to cure the alleged defects in the refrigerator. There are references to evidence in the argument under the point, but there is no reference to their location in the record as "required" by Tex.R.App.P. 74(e) [Inpetco, Inc. v. Texas American Bank/Houston, 729 S.W.2d 300 (Tex.1987) ] and which is so much appreciated by the intermediate courts.

A buyer is required to notify a seller that a breach of warranty has occurred in order to allow the seller an opportunity to cure the defect, if any. Tex.Bus. & Com.Code Ann. § 2.607(c)(1) (Vernon 1968); Miller v. Spencer, 732 S.W.2d 758 (Tex.App.--Dallas 1987, no writ).

The Appellant sold the Appellees a top of the line, expensive refrigerator. There were installation and door adjustment problems. These were cured. There were also ice maker problems. A repair company that was a service agent for the manufacturer of the refrigerator made several unsuccessful attempts to repair the unit. The agent for the Appellant also unsuccessfully attempted to repair the unit. According to the testimony of the Appellant and his agent, a new unit was finally purchased, but when the agent took it to the home of the Appellees, he was refused admittance. This was after the initiation of the lawsuit.

The Appellant pleaded that the Appellees failed to give a reasonable opportunity to repair as a defense. The trial court made no specific findings in reference to this issue. No additional findings were requested, although this Court takes note that the original findings were filed after the briefs in this case were filed. The trial court did, however, impliedly find against the Appellant on this issue by finding the new unit was not offered until after the commencement of...