Leyendecker and Associates Inc. v. Wechter
| Decision Date | 22 December 1983 |
| Docket Number | No. A14-82-810CV,A14-82-810CV |
| Citation | 667 S.W.2d 822 |
| Parties | LEYENDECKER AND ASSOCIATES INCORPORATED, et al., Appellants, v. William Raymond WECHTER, et al., Appellees. Houston (14th Dist.) |
| Court | Texas Court of Appeals |
Barry G. Flynn, Barry Snowden, Morris, McCanne, Tinsley, Snowden, Ellis & Wilson, Houston, for appellants.
Scott Ramsey, Robert Wallis, Haynes & Fullenweider, Houston, for appellees.
Before J. CURTISS BROWN, C.J., and DRAUGHN and ELLIS, JJ.
This is an appeal from a judgment for recovery of damages on a contract to convey real estate based on the Texas Deceptive Trade Practices Act and for libel. Appellants, Leyendecker and Associates, A.S.C. Versailles, Inc. and Chris Hilliard, appeal from a judgment against them in favor of William and Mildred Wechter. After a jury trial, the trial judge entered a judgment that appellants, Leyendecker and Associates and A.S.C. Versailles, Inc. owed jointly and severally actual damages of $9,644 for misrepresentation of the land and their rights under the contract, plus $4,500 for construction defects and $4,000 exemplary damages, that appellants Leyendecker and Associates, A.S.C. Versailles and Chris Hilliard, owed jointly and severally $1,500 for libel, that appellant, Chris Hilliard, owed $4,000 exemplary damages, and that Leyendecker and Associates and A.S.C. Versailles owed $9,700 in attorney's fees plus $5,000 if an appeal was taken and the Court of Appeals granted none of the relief sought by appellant.
Appellants bring thirteen points of error. In points of error one, two, three, four and five, appellants claim that the judgment against Leyendecker and Associates and A.S.C. Versailles for $9,644 actual damages contained in paragraph two of the court's judgment was incorrect because: 1) it was not supported by the pleadings in this case, 2) it was based on an incorrect and inapplicable period of time, 3) it was precluded by the jury's finding that there was no difference in the value of the land as represented and as delivered at the time of the contract, 4) it was not supported by the evidence and 5) the evidence was insufficient to support the award.
In point of error six, appellants complain that the evidence was legally insufficient to support the award of $4,500 for repairs for damages to appellee's personal property contained in paragraph three of the court's judgment. Point of error seven alleges that the award of attorney's fees was improper because the DTPA does not allow attorney's fees when there are no actual damages found.
Points of error eight, nine and ten complain that the award of $1,500 contained in paragraph five of the court's judgment is incorrect because: 8) there was no evidence to support a cause of action for libel, 9) the evidence was legally insufficient to support a cause of action for libel and 10) there were no pleadings to support an award of damages for mental anguish.
In points of error eleven and twelve, appellants claim that the court's award of exemplary damages contained in paragraphs six and seven of the court's judgment was improper because an award for exemplary damages does not lie when actual damages have not been properly proven, and there were neither pleadings nor proof of any malice which would justify an award of exemplary damages. Finally, point of error thirteen claims that the judgment of exemplary damages against appellant Chris Hilliard, was improper because he was at all times acting within the scope of his employment and, under the doctrine of respondeat superior, judgment should have been entered only against his employer.
Appellees bring six points of error. Point of error one asserts that the trial court erred by failing to treble the actual damages for the 2411 square feet contained in paragraph one of the trial court's judgment. Point of error two claims alternatively to point of error one that the trial court should have trebeled the sum of the 1976 value of the 2411 square feet and the loss of use of the land.
In point of error three, appellees claim that the trial court should have awarded and trebled damages for surveyor's fees. Point of error four claims alternatively to point of error three that the trial court should have allowed recovery of the surveyor's fees as a disbursement to the recovery of attorney's fees.
In point of error five, appellees assert that the trial court erred in failing to award Mrs. Wechter damages for libel. Finally, point of error six alleges the trial court erred in conditioning appellees' recovery of attorney's fees in the Court of Appeals and denying attorney's fees in the Supreme Court.
We affirm in part and reverse and render in part.
In 1975, Mr. and Mrs. Wechter moved from New York City to Houston and began looking for a home to buy. On June 6, 1976, they executed an earnest money contract to purchase a townhouse from the defendant corporations. At that time, the townhouse had not been constructed, but appellees were told they would get an end house on a slightly larger lot. The Wechters did not receive a metes and bounds description of the property until closing on November 22, 1976.
A few days after the Wechters moved in, appellants' employees built a fence around the lot. Mr. Wechter, noticing that the fence did not conform with his deed, contacted the builder, who sent him back to the title company. The title company offered the Wechters a correction deed which conformed with the fence, making their lot substantially smaller, but no one offered any compensation for the difference. The Wechters refused to sign the correction deed. Furthermore, the Wechters claimed to find defects in the construction and materials used in their townhouse. Appellants' attempts to repair these defects were not satisfactory to appellees.
The Wechters retained an attorney and a surveyor, who was to determine the extent of the problem and the adequacy of the proposed correction deed. The surveyor determined that the correction deed encroached on property already deeded to the Wechters' northern neighbor and that the difference in the land they were deeded originally and the correction deed was 2411 square feet. The surveyor charged the Wechters $4,788.30 for his services.
Mr. Wechter testified that the value of the 2411 square feet was between $2-2.50 per foot in 1976 and between $4-4.50 per foot in 1982.
Appellees complained to the Greater Houston Builders Association; appellants responded with a letter by Chris Hilliard, in the course of his employment, to the Greater Houston Builders Association, a copy which was sent to the Veteran's Administration. The letter falsely accused the Wechters of suing their neighbors over a small portion of the common area and of asking Leyendecker and Associates to make fraudulent insurance claims.
In answers to Special Issues, the jury made the following findings:
1) a willful violation of Tex.Bus. & Com.Code Ann. § 27.01 (Vernon 1968); which concerns fraud in real estate transactions.
2) with respect to the lot, two violations of the Texas Deceptive Trade Practices Act which were the producing cause of appellee's damages:
a. misrepresentation of characteristics, uses, benefits or quantities; and
b. misrepresentation of rights and obligations in the contract and deed;
3) deceptive trade practices relating to the construction;
4) that the letter written to the Greater Houston Builders Association by Chris Hilliard was libelous to appellees;
5) that the 2411 square feet in dispute was worth $2.00 per foot in 1976 and $4.00 per foot in 1982;
6) that there was no difference in value as represented and as delivered and at the time of contract;
7) that the reasonable value for loss of use of the land from 1976 to 1982 was $500;
8) that each appellee was entitled to $1,500 actual damages for libel;
9) that appellees were entitled to $4,000 exemplary damages from Chris Hilliard, the author of the libelous letter, and $4,000 exemplary damages from the corporate employer;
10) $1,500 damages for building defects;
11) attorneys fees:
a. $9,700 through trial
b. $5,000 through the Court of Appeals
c. $2,500 to the Supreme Court; and
12) that the reasonable and necessary expense of the title and boundary search was $4,800.
The trial court in its final judgment:
a) awarded plaintiffs $9,644 for the 2411 sq. ft. conditioned upon plaintiffs executory a correction deed but did not treble (Issue No. 19);
b) awarded $1,500 to Mr. Wechter for libel (Issue No. 21);
c) refused to award Mrs. Wechter $1,500 for libel (Issue No. 21);
d) awarded plaintiffs $4,000 in exemplary damages against the individual defendant, Hilliard, and $4,000 against the corporate defendant (Issue No. 22);
e) awarded plaintiffs the $1,500 for building defects and trebeled it (Issue No. 23);
f) awarded attorney's fees in the trial court, conditionally awarded attorney's fee in the Court of Appeals and denied attorney's fees in the Supreme Court (Issue No. 24); and
g) refused to award plaintiffs their surveyors expenses or to treble same.
Paragraph two of the trial court's judgment awarded appellees $9,644.00 for the misrepresentation of the property and of appellees' rights under the deed. Appellants claim that this judgment was incorrect first, because the proper measure of damages is the difference in the value of the land as represented and as delivered, an amount which the jury found to be zero and second, because the trial judge used the 1982 figure to estimate the value rather than the 1976 time of contract value.
Under the rule of Johnson v. Willis, 596 S.W.2d 256 (Tex.Civ.App.--Waco 1980, no writ), loss of bargain, the difference between the value of the land as represented and as received, is a correct measure of damages under the Texas Deceptive Trade Practices Act. The jury found this amount to be zero because of the way the Special Issue No. 19A was worded. Common sense,...
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Leyendecker & Associates, Inc. v. Wechter
...for the Wechters. The court of appeals substantially affirmed that judgment but reformed the measure of damages for misrepresentation. 667 S.W.2d 822. We affirm in part the judgment of the court of appeals, and we reverse and render in part. On June 6, 1976, the Wechters executed an earnest......