Lucas v. Nesbitt, 1754

• Decision Date: 28 April 1983
• Docket Number: No. 1754,1754
• Citation: 653 S.W.2d 883
• Parties: Benjamin D. LUCAS, Appellant, v. Delores M. NESBITT, Appellee.
• Court: Texas Court of Appeals

Page 883

653 S.W.2d 883

Benjamin D. LUCAS, Appellant, v. Delores M. NESBITT, Appellee.

No. 1754.

Court of Appeals of Texas Corpus Christi.

April 28, 1983.

Rehearing Denied June 16, 1983.

Benjamin D. Lucas, San Antonio, William G. Burnett, Sinton, for appellant.

Francis I. Gandy, Jr., Corpus Christi, for appellee.

Before NYE, C.J., and UTTER and GONZALEZ, JJ.

OPINION

NYE, Chief Justice.

This is a legal malpractice case. Delores M. Nesbitt, appellee, sued attorney Benjamin D. Lucas, appellant, for damages for negligence and violations of the Texas Deceptive Trade Practices Act. ¹ Appellee alleged that these acts occurred during the course of her 1978 divorce when appellant represented her as her attorney. After the jury answered certain special issues generally favorable to the appellee, the trial court entered judgment in the total amount of $332,000.00 for appellee.

The trial court submitted the case to the jury on 35 special issues. The first twelve special issues submitted concerned acts or omissions of malpractice constituting negligence and proximate cause of financial injury to the appellee. These were all answered favorably to the appellee. Next, the jury answered special issues concerning acts and omissions that were false, misleading or deceptive acts or practices which the jury also found favorably to the appellee. In addition, the jury found that each was a producing cause of adverse effects on appellee which the court instructed the jury to mean "to sustain economic harm or damage" to appellee.

The jury was then asked to answer certain special issues concerning negligence of the appellee. In at least one of the issues, the jury found no negligence or proximate cause. In another issue concerning appellee's separate property, the jury found that she was negligent and that her negligence was a proximate cause of damages sustained by her. The jury then found that the percentage of negligence attributable to each of the parties was 80% appellant and 20% appellee. Special issue 31 inquired about the financial loss sustained by appellee "resulting from the acts of Benjamin D. Lucas while representing her in cause number 78-113-B and from relying upon his advice during the time he represented her. Answer in dollars and cents. Answer: $83,000.00."

In special issue 32, the jury found that the difference between the value of appellant's services for representing her and the amount charged was $2,000.00.

In special issues 33, 34 and 35, the jury found that the appellant should pay the appellee $10,000.00 in exemplary damages.

Based on the jury answers concerning the negligence of the appellant, the trial court found that plaintiff was entitled to recover the sum of $83,000.00. The trial court further found that the plaintiff was entitled to recover from the defendant-appellant, (based on the answers of the jury relating to the deceptive trade practice) the sum of $249,000.00 by tripling the $83,000.00 award. The trial court refused to award any monies relating to the exemplary damages found by the jury, nor did the court consider in any way the $2,000.00 difference the jury found between the value of appellant's services and the amount charged by appellant. The total judgment awarded to the plaintiff against the appellant was $332,000 .00. This amount was four times the amount found by the jury as being the amount that would reasonably compensate appellee for her financial loss resulting from the acts of appellant while representing her.

Appellee contends that she is entitled to the full $332,000.00; first to the $83,000.00, based on the negligence of the appellant; and then, to three times this amount (i.e., $249,000.00) under the Deceptive Trade Practices and Consumer Protection Act. This, according to appellee, is because the remedies under the DTPA and CPA are in addition to other procedures or remedies provided for in any other laws.

At the outset, the appellant challenges the legal and factual sufficiency of the evidence to support four of the jury findings:

1) that the failure to file pleadings alleging the existence of the appellee's separate real property was a proximate cause of injury to the appellee;

2) that the false, misleading or deceptive act of representing that the appeal instruments were on file when they were not was a producing cause of adverse effects on appellee;

3) that testifying that the value of his services to the appellee was $7,840.00 and then billing her for nearly $35,000.00 was an unconscionable action or course of action; and

4) that the unconscionable action or course of action referred to in 3) above was a producing cause of adverse effects on the appellee.

In determining whether the evidence is "legally" sufficient, we are required to consider only the evidence tending to support the jury's findings and reasonable inferences therefrom, disregarding all evidence and inferences contrary thereto. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). In reviewing the evidence for "factual" sufficiency, we look at all the evidence to decide whether the supporting evidence is so weak or the contrary evidence so overwhelming that the findings should be set aside and a new trial ordered. Garza v. Alviar, supra at 823. In this case, we have reviewed the entire record, and find that there was ample evidence to support the jury's findings that appellant's failure to file proper pleadings in the trial court and his misrepresentation concerning the filing of the appeal were causes of financial damage to the appellee. These points of error are overruled.

However, we find that there was no evidence to support the jury's finding that the appellant's conduct in billing the appellee for approximately four times the amount which he had testified to under oath at the divorce trial as the value of his services constituted an unconscionable action or course of action, or that such conduct was a cause of adverse effects on the appellee. At all times involved in this suit, the DTPA defined unconscionable action or course of action as:

"An act or practice which, to a person's detriment:

A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or

B) results in a gross disparity between the value received and the consideration paid in a transaction involving transfer of consideration."

1977 Tex.Gen.Laws, Ch. 216, § 1, at 600. There is no evidence in the record to show that the appellant took advantage of the appellee . Likewise, there is no evidence of any consideration actually paid by appellee to appellant in gross disparity to the value received. In short, there is no evidence that this reprehensible conduct on the part of appellant was in any...