Parks v. U.S. Home Corp.

• Citation: 652 S.W.2d 479
• Decision Date: 07 April 1983
• Docket Number: No. 01-82-0871-CV,01-82-0871-CV
• Parties: Steven A. PARKS, et al., Appellant, v. U.S. HOME CORPORATION, Appellee. (1st Dist.)
• Court: Court of Appeals of Texas

Page 479

652 S.W.2d 479

Steven A. PARKS, et al., Appellant, v. U.S. HOME CORPORATION, Appellee.

No. 01-82-0871-CV.

Court of Appeals of Texas Houston (1st Dist.).

April 7, 1983.

Rehearing Denied May 26, 1983.

Dale W. Felton, Missouri City, for appellant.

Patricia Hair, Houston, for appellee.

Before WARREN, BULLOCK and BASS, JJ.

OPINION

BASS, Justice.

This is an appeal from the denial of an application for a temporary injunction.

The judgment is affirmed.

Appellants, Parks and twenty-four other homeowners, filed their original petition alleging that they had purchased homes in Westbranch Village from appellee, U.S. Home Corporation. Appellants alleged that appellee's sales agent, Wilmeth, had represented to them that all remaining homes in Westbranch Village would be of the same price range ($89,950 to $100,950) and Victorian style, and that they had relied on such representations.

Appellants further alleged that after they had purchased their homes appellee's agent informed them that appellee did not intend to construct homes of the same price range and Victorian style on the remaining lots in Westbranch Village. Appellants complained that the lower priced homes would seriously diminish or destroy the market value of their homes.

Appellants contended that all property is unique, and that "one of the characteristics of the uniqueness of each piece of property is the nature and use of adjacent and nearby property and the value of the improvements thereon." They alleged that part of the consideration for which they paid the purchase price was the "representation, affirmation, and guarantee" by appellee, through its agent, that Westbranch Village would be completed with homes of the same style and price range as those they had purchased.

Appellants alleged that the appellees had violated § 17.46(b)(23) of the Deceptive Trade Practices Act, in that at the time of closing the sale to appellants, appellee knew that it did not intend to comply with its representations. They further alleged that failure to disclose this information induced appellants to purchase their homes and, thus, constituted a false, misleading, or deceptive act or practice under the DTPA.

They alleged that appellee had also violated § 17.46(b)(5) of the Deceptive Trade Practices Act, in that appellee clearly and unequivocally represented and guaranteed that the homes purchased by appellants would be located in a subdivision made up of homes of the same style and price range. They alleged that the appellees had, therefore, represented that the homes purchased by appellants had characteristics, benefits, or qualities which they did not, in fact, have.

Appellants further contended that appellee had violated § 17.50(a)(3) by following an unconscionable action or course of action (the proposed building of lower priced homes in Westbranch Village) which would cause the value of appellants' homes to be seriously diminished or destroyed, and which would result in a gross disparity between the value of their homes and the consideration paid.

Appellants alleged that they had no adequate remedy at law for the damage done or threatened by appellee, because the real property involved was unique. They alleged that monetary damages were therefore wholly inadequate, and prayed for both temporary and permanent injunctions enjoining appellee from constructing homes in Westbranch Village selling for less than $89,000.

Appellee answered by way of general denial.

The temporary injunction hearing was held on October 13, 1982, at which the following evidence was introduced:

Appellants were led to appellee's subdivision by billboard advertisements stating "Westbranch Village--Victorian Homes, from the '80's." Appellants dealt solely with appellee's sales agent, Ms. Rosie Wilmeth, whose business card was entitled, "Westbranch Village--Home of the Victorian." Three models of Victorian homes were available, ranging in price from $89,950 to $100,950.

Ms. Wilmeth told appellants that on each lot in the area designated on her sales map as "Westbranch Village" there would be constructed one of the three Victorian models. She stated that no lesser-priced home, or style other than the three Victorian models, would be constructed in Westbranch Village. Ms. Wilmeth admitted that she had made such representations, but denied that she had made any "guarantees." Appellants testified that they would not have purchased their homes but for the representations.

Ms. Wilmeth admitted that she had been informed of appellee's change of plans as of August 31, 1982, prior to several closings, but failed to inform appellants of this fact because she "didn't think it was important." Although she asserted that she would have informed appellants, had they asked, appellants offered testimony that on at least one occasion she failed to disclose such information after direct inquiry.

Appellants testified that they were concerned that their property values would decline and that the character of the neighborhood would change, should lesser priced homes of another style be built around their homes. However, appellee's representatives testified that there was nothing unique about the lots located in Westbranch Village, and no one passing from the other section of the subdivision into Westbranch Village would be aware of any differentiation. The discontinuation of the construction of the Victorian models had not diminished the asking price for those Victorian homes not yet sold, nor had it caused a change in the character of the subdivision. Appellee's representatives further testified that Westbranch Village had not been planned as a Victorian home community in order to create or enhance property values, but that, in fact, the only reason Westbranch Village had been designated as the location for the Victorian models had been to avoid confusion among appellee's sales people at its two sales offices.

Appellee's representative Dennis Bailey, Division President, testified that continuing to build the Victorian home product line would result in monthly losses of $30,000.00 over a four year period. Total cessation of construction in Westbranch Village would result in yearly losses of $250,000.00 in interest payments. Mr. Bailey testified that only residences selling for at least $70,000.00 would be built in Westbranch Village.

At the close of the evidence, the trial court entered its order denying the application for temporary injunction. The order contained the following findings of fact and conclusions of law:

(1) Defendant erected a billboard which stated that homes in the Westbranch Village would consist of homes from the $80's.

(2) Oral statements were made by defendant or its representative to the plaintiffs that homes within Westbranch Village would consist of homes with a sales price of at least $80,000 and be constructed only with a Victorian front elevation.

(3) Plaintiffs relied on such statements when they purchased their homes.

(4) Defendant has since changed its position and now intends to build homes in the subject area with a sales price of less than $80,000 but not less than $70,000 and with a front elevation consisting of styles in addition and different than Victorian.

(5) There exist no deed restrictions pertaining to the subject property at all relevant times which required defendant to build only homes (i) at sales price of not less than $80,000 and (ii) with Victorian style front elevations.

(6) Plaintiffs failed to meet their burden of proof that irreparable harm will be caused by defendant's action if not abated by a temporary injunction, or that plaintiffs were entitled to a temporary injunction as a matter of law.

(7) Any harm or damage, if any, caused by defendant to plaintiff could be compensable in damages, if any, because the defendant was financially solvent and one of the largest home builders in the nation.

Appellants requested the following additional findings of fact:

(1) Each of the plaintiffs purchased one of three (3) models shown to them by the defendant's representative.

(2) As of July 19, 1982, the sales price of the smallest of the three (3) models shown to plaintiffs was $89,950.

(3) Defendant or its representative made oral statements to the plaintiffs that all of the homes to be built in Westbranch Village would be of the same price and style as the three (3) models shown to plaintiffs.

(4) Plaintiffs would not have purchased their homes from the defendant had the defendant or its representative disclosed that lesser priced homes than the three (3) models shown to plaintiffs would be built throughout the remainder of Westbranch Village.

(5) One characteristic or quality of a home is the size, price, and style of other homes built nearby in the same subdivision.

(6) If the defendant constructs homes throughout the remainder of Westbranch Village of a lower price and of a different style than the models shown to plaintiffs, the homes purchased by plaintiffs would not have a characteristic or quality as represented by the defendant.

The court refused all requested findings except numbers one and four.

Appellants assert three points of error on appeal, and consolidate them in their argument:

(1) The trial court abused its discretion as a matter of law in denying the temporary injunction because appellants showed a probable right to injunctive relief and a probable injury.

(2) The trial court abused its discretion as a matter of law because it failed to apply the law correctly to the undisputed facts.

(3) The trial court abused its discretion in apparently basing the denial of the temporary injunction on the fact that appellants have an adequate remedy at law in damages.

Appellants contend, as an initial matter, that they have standing as "consumers" to sue under the Texas Deceptive Trade Practices Act (DTPA), because the Act applies to consumers of new homes, citing Norwood Builders, Inc. v. Toler, 609 S.W.2d 861 (Te...