North Star Dodge Sales, Inc. v. Luna

Decision Date18 May 1983
Docket NumberNo. 04-81-00314-CV,04-81-00314-CV
Citation653 S.W.2d 892
PartiesNORTH STAR DODGE SALES, INC., Appellant, v. Yolanda LUNA, Appellee.
CourtTexas Court of Appeals

Harry B. Adams, III, Larry D. Brockman, Universal City, for appellant.

Barry Snell, San Antonio, for appellee.

Before BUTTS, TIJERINA and DIAL, JJ.

OPINION

BUTTS, Justice.

This is an appeal from a judgment for appellee, Yolanda Luna, against appellant, North Star Dodge Sales, Inc., in a suit alleging violations of the Texas Deceptive Trade Practices--Consumer Protection Act (D.T.P.A.), 1 the Texas Consumer Credit Code (Motor Vehicle Installment Sales), Tex.Rev.Civ.Stat.Ann. arts. 5069-7.01--5069-7.10 (Vernon Supp.1982-1983), the Truth-In-Lending Act, 15 U.S.C. § 1601 et seq. (1982), and Federal Reserve Board Regulation Z, 12 C.F.R. § 226.1 et seq. The jury awarded damages totaling $66,600.00. The trial court, after remittitur, entered judgment for $55,400.00.

Appellant brings twenty-four points of error: points one and two are predicated on an improper question concerning appellant's financial stability; points six through eight assert the impropriety of the award of damages for mental anguish; points four, nine, ten through twelve and sixteen challenge the award of damages for loss of use of the vehicle; points three, eleven and seventeen contend actual damages were computed improperly; points eighteen and twenty-two challenge appellee's reliance as a consumer on the warranty; points fourteen and fifteen controvert the measure of damages for breach of warranty; point eighteen claims recovery under the Texas Consumer Credit Code was improper; points twenty-three and twenty-four challenge the evidence supporting the finding of unconscionability, and; points twenty-one and twenty-two proclaim the invalidity of the award of attorney's fees. We affirm in part and reverse and render in part.

Appellee Luna purchased a 1980 Dodge Omni from North Star Dodge in March 1980. At that time, appellant offered a 30 day/1,000 mile "money back guarantee" whereby a dissatisfied purchaser could receive a refund of the purchase price. The only conditions were that the request be made prior to the expiration of 30 days from the date of purchase or before the mileage limitation occurred. Luna elected to participate in the warranty program.

Soon after taking possession of the vehicle, appellee returned to North Star Dodge complaining of mechanical difficulties, specifically steering column vibration. Luna testified she made numerous requests for a refund under the warranty program, a fact which was controverted by appellant. Appellee ultimately left the automobile at North Star Dodge, at which time appellant notified her the warranty program had expired due to the mileage exceeding 1,000 miles. Appellee brought suit. The judgment, after remittitur, awarded $55,400.00. 2

Points of error one and two are premised on the assertion that appellant's counsel improperly interjected the element of motive by questioning a witness as to the financial solvency of appellant. Appellant complains of the following colloquy between Snell, appellee's counsel, and Patricia Crawford, appellant's finance manager:

Q: [Snell] And North Star Dodge is just about to go down the tubes, isn't it?

A: [Crawford] No, that is not true.

* * *

* * *

Q: If Mr. Yedor has told me that they are about to file bankruptcy, is that right or not, if he has told me they are on the verge of bankruptcy?

Appellant objected and moved for a mistrial contending the issue of motive was irrelevant and that the question had improperly created a bad faith motive which could not be purged from the minds of the jurors by a curative instruction. Appellee rejoined that pending bankruptcy was an element relative to the establishment of appellant's motive in failing to refund the purchase price. At the close of the evidence, the motion for mistrial was denied and an instruction to disregard the bankruptcy comment, drafted by appellant, was given.

At the time the case was submitted to the jury, appellee had pled causes of action pursuant to § 17.46(b)(5), (7), (12), 3 and § 17.50(a)(2), (3). 4 Appellant is correct in contending that these specific subdivisions do not require proof or a finding of knowledge or scienter. See Smith v. Baldwin, 611 S.W.2d 611, 616-617 (Tex.1980). However, Luna sought treble damages under § 17.50(b)(1) which provides, in pertinent part:

(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 $1,000.00. If the trier of fact finds 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 $1,000.00. [Emphasis added.]

It is a rule of statutory construction that every word of a statute must be presumed to have been used for a purpose. Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981). The statutory language clearly makes it incumbent upon a plaintiff seeking treble damages to establish the conduct of defendant was committed knowingly. We find the inquiry into appellant's financial solvency relevant to the establishment of the actual awareness of the deception or unfairness in refusing appellee's refund. Moreover, assuming arguendo that the statement of counsel was improper, the trial court did not err by waiting until the close of evidence to instruct the jury to disregard. A trial judge is vested with wide discretion in determining the manner and method in which objections to evidence are disposed. Keith v. Allen, 153 S.W.2d 636, 637 (Tex.Civ.App.--Galveston 1941, no writ). No ground of error is afforded a complaining party where an instruction to disregard a statement objected to is not contemporaneous with the initial objection. See Prudential Insurance Co. v. Uribe, 595 S.W.2d 554, 565 (Tex.Civ.App.--San Antonio 1979, writ ref'd n.r.e.). Points of error one and two are denied.

Point of error seven challenges the existence of any evidence supportive of the recovery of damages for mental anguish. The D.T.P.A. provides for the recovery of actual damages, which are those recoverable at common law. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.1980). The recovery of damages for mental anguish is dependent on the establishment of (1) an intentional tort, gross negligence, willful and wanton disregard, or (2) accompanying physical injury. Farmers and Merchants State Bank of Crum v. Ferguson, 617 S.W.2d 918, 921 (Tex.1981).

In the instant case, the jury specifically found the unconscionable acts and the refusal to return appellee's money upon request had been done knowingly by appellant. Appellee incorrectly contends that "knowingly," as defined in § 17.45(9), is the legal equivalent of "willful" or "willfulness" as required for the recovery of mental anguish. See Duncan v. Luke Johnson Ford, Inc., 603 S.W.2d 777 (Tex.1980); Brown v. American Transfer and Storage Co., supra. In Duncan, supra, and Brown, supra, treble damages were allowed, indicating a finding of knowingly pursuant to § 17.50(b)(1), while damages for mental anguish were denied. We find there was no allegation or proof of willfulness as required.

Physical trauma exceeding worry, vexation, disappointment, anger or resentment is required for the establishment of mental anguish. Dennis Weaver Chevrolet, Inc. v. Chadwick, 575 S.W.2d 619, 622 (Tex.Civ.App.--Beaumont 1978, writ ref'd n.r.e.). The symptoms evidencing physical injury must emanate directly from the complained of acts and not from contemporaneous or subsequent circumstances. Freedom Homes of Texas, Inc. v. Dickinson, 598 S.W.2d 714, 718 (Tex.Civ.App.--Corpus Christi 1980, writ ref'd n.r.e.).

Luna testified to receiving medical attention for migraine headaches which began several months after the purchase of the automobile from North Star Dodge. In a colloquy between appellant and her counsel, as to the producing cause of the headaches, appellant stated:

A: I get nervous. I get depressed. I get mad.

Q: Anger?

A: Sometimes, because I feel like there is nothing I can do but wait. I get angry because I feel like I was done wrong, and I feel like I am right. And I feel like this should not have happened the way it did.

Q: Okay. We have worry, anger, nervousness, anxiety, flustration [sic]. What else, or does that cover it?

A: What else is there. I guess that is about it.

Appellee also testified the prescribed medication "makes me miss work, and makes me sleepy." The deleterious side effects of the drug prompted Luna to consult Joseph A. Ward, psychotherapist, in an effort to develop alternative means of treatment which would alleviate, or lessen, her need to continue the medication.

In discussing the causes of appellee's anxiety and tension, Ward testified:

There seem to be a few contributory factors for her anxiety and tension. It seems to me that at the top of the list was her loss of independence; or phrased another way, having to depend on other people. Ms. Luna is a very bright and yet independent type person. And when you remove some of her independence it causes anxiety and resulting at times in migraine headaches. She experiences loss of independence specifically by having to depend on others to take her to work, pick her up from work. In other words, a loss of transportation. She became unhappy because she was unable to participate in any of the usual activities. Also coupled with that were some other factors, the problems that she has had preparing for Court, and also an impending marriage that she is contemplating, and also some academic problems that she has had with her younger son.

Ward, not being a physician, testified only from a psychosocial standpoint. Mental anguish is not established by the...

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