Lester v. Logan

• Decision Date: 08 December 1994
• Docket Number: No. 13-93-031-CV,13-93-031-CV
• Citation: 893 S.W.2d 570
• Parties: Tom E. LESTER, Appellant, v. Raymond "Butch" LOGAN, Appellee.
• Court: Texas Court of Appeals

Page 570

893 S.W.2d 570

Tom E. LESTER, Appellant, v. Raymond "Butch" LOGAN, Appellee.

No. 13-93-031-CV.

Court of Appeals of Texas Corpus Christi.

Dec. 8, 1994.

Rehearing Overruled Jan. 19, 1995.

Steven R. Brown, Gonzales, for appellant.

Houston Munson, Gonzales, for appellee.

Before KENNEDY, GILBERTO HINOJOSA and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Tom Lester appeals from a jury finding that he breached the implied warranty of fitness for a particular purpose when he sold hay to his neighbor Raymond Logan. Lester brings nine points of error. We affirm the trial court's judgment.

Lester grew hay on his property in Gonzales county. On December 23 or 24, 1990, Logan asked Lester to sell him some hay so he could feed his cattle. On January 1, 1991, Lester delivered 28 round bales of hay to Logan. That day, Logan put four of the round bales in different locations on his property as feed for his cattle. On January 2, 1991, Logan found that seven of his cows had died and on January 3, 1991, he found that six more cows had died. In addition, seven other cows aborted their fetuses. Logan claimed that thirteen cows had died and seven had aborted their fetuses after eating the hay he purchased from Lester.

Logan filed suit on May 24, 1991, and the case proceeded to trial. The jury found that the hay was not unfit for the ordinary purpose for which hay is used, thus finding no breach of the implied warranty of merchantability. The jury, however, found that the hay was unfit for the particular purpose of livestock consumption, thus finding a breach of the implied warranty of fitness for a particular purpose. The jury assessed damages and attorney's fees against Lester. The trial court entered judgment on the jury's verdict.

By his eighth point of error, Lester complains that Logan did not comply with the notice provision of the Deceptive Trade Practices-Consumer Protection Act (DTPA). Lester contends that Logan did not give him written notice of any implied warranty of fitness for a particular purpose claim before filing suit. Therefore, Lester argues, the trial court erred 1) in denying his second plea in abatement and 2) in admitting evidence on the issue of implied warranty of fitness for a particular purpose.

As a prerequisite to filing a suit seeking damages under the DTPA against any person, a consumer must give written notice to the person at least 60 days before filing suit, advising the person in reasonable detail of the consumer's specific complaint and the amount of actual damages and expenses, including attorney's fees, if any, reasonably incurred in asserting the claim. TEX.BUS. & COMM.CODE ANN. § 17.505(a) (Vernon Supp.1994). A demand letter is sufficient if it identifies the nature of the consumer's complaint and the various amounts required to make him or her whole. U.S. Steel Corp. v. Fiberex, Corp., 751 S.W.2d 628, 638 (Tex.App.--Dallas 1988), rev'd in part on other grounds, Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex.1989); Silva v. Porowski, 695 S.W.2d 766, 767 (Tex.App.--El Paso 1985, writ ref'd n.r.e.). Section 17.505 does not require the consumer to threaten suit or specify what section he thinks is violated. U.S. Steel Corp., 751 S.W.2d at 638 (citing Jim Walter Homes, Inc. v. Valencia, 679 S.W.2d 29, 36 (Tex.App.--Corpus Christi 1984), aff'd as modified, 690 S.W.2d 239 (Tex.1985)). The purpose of the DTPA notice provision is "to discourage litigation and encourage settlements of consumer complaints." Hines v. Hash, 843 S.W.2d 464, 468 (Tex.1992) (quoting Jim Walters Homes Inc., 690 S.W.2d at 241).

Logan's attorney sent the following demand letter, dated February 12, 1990, to Lester:

I represent Raymond "Butch" Logan in connection with the damages he has sustained through the death loss of thirteen bred cows and seven other cows that lost their calves and related damages all caused by hay that was sold to my client by you. A chemical analysis was obtained on the hay that was fed to his livestock and the lab reports show a very high level of nitrate poisoning which caused the death of the thirteen cows and loss of an additional seven calves.

This letter is notice of my representation of Mr. Logan and also represents our demand of you under the Deceptive Trade Practices Act of the State of Texas (DTPA). Specifically, you have violated section 17.46(b)(5) in that you represented the hay in question to have characteristics, ingredients, uses and benefits which it did not have; you further violated section 17.46(b)(7) in that you represented the hay in question to be of a particular quality or grade when it obviously was not of merchantable quality; and you have violated section 17.50(a)(2) in that you have breached the implied warranty that the hay in question was fit for the purposes and uses to which it was intended as well as the warranty of merchantability.

The hay in question was the producing cause of my client's damages and loss. To date, his damages have been evaluated as follows. The thirteen bred cows that died as a result of the contaminated hay had a value of $9,100.00. He further has sustained the loss from the seven aborted calves in an amount estimated to be approximately one-half of the value of the cow or $350.00 per animal. According to his appraiser and his veterinarian, there is a question whether these cattle would rebreed and straighten up from the damage sustained to their system. However, Mr. Logan will accept the sum of $2,400.50 for the loss of the seven calves. He has sustained out-of-pocket expenses of $158.50 for veterinarian expenses, for running the tests and analyzing the causation for the death of the cattle and has incurred attorney's fees of $1,000.00 through the writing of this demand letter.

I urge you to consult an attorney of your own choosing to respond to this DTPA letter so that he might make you aware of not only the ability of Mr. Logan to collect actual damages but the DTPA provides for punitive damages as well. That can be as high as triple the amount of actual damages plus the payment of his attorney's fees and expenses.

I understand that Mr. Logan has attempted to work out a settlement with you direct. As a matter of fact when Mr. Logan first approached my office, I suggested that he meet again with you in hopes of working it out between you all without the intervention of attorneys or the court system. Apparently, that has not been effected and therefore I now place you on the enclosed notice.

The letter meets the requirements of § 17.505. It expresses Logan's specific complaints (that the hay was not fit for feeding livestock because it had a high level of nitrates and that it had caused the death of Logan's cattle), advises Lester of the amount of actual damages which Logan had incurred ($12,659.00), and was sent at least 60 days before filing suit. Moreover, the letter meets the legislative objective of encouraging settlements and discouraging litigation. Appellant's eighth point of error is overruled.

By his first and second points of error, Lester contends that no evidence exists or alternatively, that insufficient evidence exists to support the jury's finding that he breached the implied warranty of fitness for a particular purpose because the hay was not fit for livestock consumption.

When we review a "no evidence" or legal sufficiency of the evidence point, we consider only the evidence and reasonable inferences that tend to support the jury's finding, and we disregard all evidence and inferences to the contrary. Responsive Terminal Sys. Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989). We overrule the point and uphold the finding if we find any evidence to support the finding. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

When we review an "insufficient evidence" or factual sufficiency of the evidence point, we consider, weigh and examine all of the evidence which supports or undermines the jury's finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). We set aside the verdict only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

When a seller, at the time of contracting, has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for such purpose. TEX.BUS. & COMM.CODE ANN. § 2.315 (Vernon 1994).

Lester testified that he had been selling hay to Logan and his other neighbors for thirteen to fourteen years. Logan testified that he had consulted with Lester about other feeds for his cattle. Logan stated that he relied on Lester's skill and judgment in getting hay that would be fit for his cattle to consume. According to Logan, Lester delivered the 28 round bales to a pasture and then drove over to where Logan was working and told him that the hay had a little mold on it where it had turned to sugar but that the hay would be all right. Logan testified that Lester stated, "it won't hurt your cattle," to which Logan said he responded, "you know more about it than I do."

Dr. Janecek, a local veterinarian, took eyeball and other tissue samples from the dead cows, samples of hay from the dead cows' stomachs, and a sample of hay from the remaining portion of the hay bale from which the cattle had eaten. Dr. Janecek submitted the samples to Dr. Reagor at the Texas Veterinary Medical Diagnostic Lab. Dr. Reagor tested the samples and found large amounts of nitrates in the samples. It was Dr. Reagor's opinion that the cows had died from nitrate poisoning and that the hay was not fit for livestock consumption. Dr....