Lone Star Ford, Inc. v. Hill

• Decision Date: 28 April 1994
• Docket Number: No. C14-93-00816-CV,C14-93-00816-CV
• Citation: 879 S.W.2d 116
• Parties: LONE STAR FORD, INC., Appellant, v. Howard R. HILL, Jr., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 116

879 S.W.2d 116

LONE STAR FORD, INC., Appellant, v. Howard R. HILL, Jr., Appellee.

No. C14-93-00816-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 28, 1994.

Rehearing Denied May 26, 1994.

Dale M. Tingleaf, Houston, for appellant.

John W. Havins, Jeffry P. O'Dea, John Gorman, Houston, for appellee.

Before ROBERTSON, CANNON and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

This appeal is from a judgment after a jury verdict awarding damages for conversion and violation of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). TEX.BUS. & COM.CODE ANN. §§ 17.41-.63 (Vernon 1987 & Supp.1994). Appellee, Howard R. Hill, Jr. ("Hill") sued appellant, Lone Star Ford, Inc. ("Lone Star"), for damages after Lone Star sold him a used car it had already sold to someone else. We affirm as modified.

On appeal, Lone Star raises twelve points of error, most of which attack the legal sufficiency of the evidence supporting the jury's findings. In reviewing no evidence points, we consider only the evidence and inferences tending to favor the jury's findings and disregard all contrary evidence and inferences. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). We must uphold the jury's findings if we find any evidence of probative force to support them. Id. Thus, a legal insufficiency challenge fails if more than a scintilla of evidence supports the jury's findings. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 228 (Tex.1990). The jury is the sole judge of the credibility of the witnesses and the weight to be given to the testimony, and is entitled to resolve any conflicts or inconsistencies in the evidence. Rego v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

Accordingly, we present the facts tending to support the jury's findings. Hill had sought for about a year to buy a used 1984 Volvo 280GLE with low mileage. In late January 1989, he answered Lone Star's newspaper ad featuring such a car. Lone Star's salesman, Maurice Pinkney ("Pinkney"), told him the car had been sold. Pinkney later called Hill back to say the sale of the Volvo had fallen through. Consequently, Hill and his fiancee (now his wife) met Pinkney at the dealership the next morning to look at the car. After a test drive, Hill negotiated with Pinkney to buy the car. They agreed on a price of $8,900, Pinkney prepared the paperwork, Hill put down $500 and traded in his 1982 Mercury Lynx for $500. Lone Star also agreed to replace the car's missing stereo system. Pinkney told Hill he could pick up the car that afternoon after the previous prospective buyer had picked up her deposit check.

Later that afternoon, Hill and his fiancee returned to the dealership to pick up the Volvo. Pinkney told them the other buyer had picked up her deposit check and they were free to take the car. Hill then transferred his possessions to the Volvo, left his Lynx as a trade-in and drove the Volvo home, with the understanding that Lone Star would install a new stereo system as soon as it received a suitable one in stock. Hill drove the car for several days before Lone Star notified him that the new stereo was in stock. He then took the Volvo to the dealership, was told the stereo installation would not be completed that afternoon, and was given a loaner car. When Hill went back to pick up the Volvo, he returned the loaner car. A sales manager then told him Lone Star sold the Volvo to someone else. Hill was devastated. His deposit was returned, and he left the dealership in the Lynx he had traded in.

Hill later learned Lone Star sold the Volvo to Dora Chavez ("Chavez"), the woman Pinkney claimed had picked up her deposit check. Chavez had also dealt with Pinkney about purchasing the Volvo and agreed to buy the car on January 26, 1989, two days before Hill did. Lone Star similarly agreed to install a new stereo system for Chavez, and she left the car with the dealership for that purpose. A dispute arose over the quality of the system to be installed, and Pinkney tried to discourage Chavez from taking the car. Despite this problem, Chavez never told Pinkney she wanted to cancel the deal or that she wanted her deposit back. Instead, she went to the dealership about the dispute and was infuriated to learn the car had been sold to someone else. She threatened to sue and demanded the car. Realizing the Volvo was in its garage, Lone Star removed Hill's belongings and gave the car to Chavez.

Hill sued Lone Star for breach of contract, negligence, gross negligence, bad faith, fraud, conversion and intentional and negligent infliction of emotional distress. After conducting discovery, Hill added his DTPA claim. He later abandoned breach of contract, bad faith, and negligent infliction of emotional distress claims. The trial court granted an instructed verdict in favor of Lone Star on Hill's claims of negligence, gross negligence, intentional infliction of emotional distress, and conversion of the car. The jury awarded Hill $500 for his mental anguish based on a knowing violation of the DTPA, and $5,000 additional damages. While the jury found Lone Star had defrauded Hill, it found no damages as a result of this fraud. The jury found Lone Star maliciously converted Hill's personal property, and awarded $90 in actual damages and $600 in exemplary damages. The jury also awarded Hill attorney's fees. The trial court apparently added all the damages together and entered judgment for $6,190, plus attorney's fees and interest.

In Lone Star's fourth, eleventh and twelfth points of error, it complains the trial court erred in calculating the final judgment. It contends the court should not have included the $5,000 additional damages in calculating the judgment amount. Hill concedes on appeal that the trial court erred in entering judgment for $6,190, when the correct amount, according to the jury's answers and the statute, is $2,190. Section 17.50(b)(1) of the DTPA provides in relevant part as follows:

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

(1) the amount of actual damages found by the trier of fact. In addition the court shall award two times that portion of the actual damages that does not exceed $1,000. If the trier of fact finds that the conduct of the defendant was committed knowingly, the trier of fact may award not more than three times the amount of actual damages in excess of $1,000....

TEX.BUS. & COM.CODE ANN. § 17.50(b)(1) (Vernon Supp.1994). According to the statute, Hill was allowed to recover $500 plus twice that amount for a total of $1,500. Then, the damages for conversion and the exemplary damages should be added to total $2,190. Since the actual damages awarded under the DTPA were less than $1,000, there was no statutory basis for the court to award additional damages. We sustain Lone Star's points of error four, eleven and twelve. Accordingly, we reform the judgment of the trial court to reflect an award of $2,190, plus interest and attorney's fees.

In its first point of error, Lone Star contends there is no evidence it engaged in any false, misleading or deceptive act or practice that was a producing cause of damages to Hill. It argues that at most, Hill would have a claim for breach of contract and relies on a line of cases holding that mere breach of contract, without more, does not constitute a false, misleading or deceptive act in violation of the DTPA. See, e.g., Ashford Development, Inc. v. USLife Real Estate Services Corp., 661 S.W.2d 933, 935 (Tex.1983); Quitta v. Fossati, 808 S.W.2d 636, 644 (Tex.App.--Corpus Christi 1991, writ denied) and cases cited therein.

We do not disagree with this general proposition, but find that in this case there was certainly some evidence of deceptive and misleading acts, in addition to any breach of contract claim, to support the jury's answer. Jury question one defined "false, misleading or deceptive act" in accordance with the statutory language as "failure to disclose information concerning goods or services which was known at the time of the transaction with the intention to induce another person into a transaction." See TEX.BUS. & COM.CODE ANN. § 17.46(b)(23) (Vernon Supp.1994). Lone Star is liable for the torts of its agents acting within the course and scope of their employment. Guilbeau v. Anderson, 841 S.W.2d 517, 519 (Tex.App.--Houston [14th Dist.] 1992, no writ). Hill testified Pinkney told him Chavez had cancelled the deal, the Volvo was available for purchase, and Chavez had picked up her deposit check. Chavez denied she had cancelled the deal and she never picked up her deposit check. The evidence supports a finding that Lone Star concealed its prior sale to Chavez.

The evidence also shows Lone Star knew it sold the same car twice. Lone Star is bound by the knowledge of its agents acquired in the course and scope of their employment. La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 563 (Tex.1984). The same salesman, Pinkney, sold the Volvo to both Hill and Chavez, and both sales were approved by the sales manager. Lone Star's knowledge is also evidenced by the information contained in its records; Chavez's prior purchase was recorded in its Buyer's Order and Invoice, daily sales log, due bill, and worksheet. In addition, Pinkney testified he knew about Chavez's deposit on the Volvo, "[b]ut what [he] was really trying to do was to put pressure on [Hill] to buy the car."

There is evidence Pinkney's failure to disclose that the pending deal had not been cancelled induced Hill to buy the car. Pinkney told Hill he could take the car after Chavez picked up her deposit and "that he had been on the phone with her and that she would come up and pick up her check." When the Hills returned to the dealership later that day, Pinkney told them Chavez had picked up her check and they could take the Volvo. Mrs. Hill testified the "first thing" she asked Pinkney was "has the lady picked up her deposit check"...