PPG Industries Inc. v JMB/Houston Centers Partners Limited Partnership

• Decision Date: 08 March 2001
• Citation: 41 S.W.3d 270
• Parties: <!--41 S.W.3d 270 (Tex.App.-Houston 2001) PPG INDUSTRIES, INC., Appellant v. JMB/HOUSTON CENTERS PARTNERS LIMITED PARTNERSHIP, Appellee NO. 14-98-00154-CV Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 270

41 S.W.3d 270 (Tex.App.-Houston [14th Dist.] 2001)

PPG INDUSTRIES, INC., Appellant v JMB/HOUSTON CENTERS PARTNERS LIMITED PARTNERSHIP, Appellee

NO. 14-98-00154-CV

Court of Appeals of Texas, Houston (14th Dist.).

March 8, 2001.

On Appeal from the 127th District Court Harris County, Texas Trial Court Cause No. 94-035566

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Chief Justice Murphy and Justices Anderson and Hudson.

OPINION

Hudson, Justice

Defendant PPG Industries, Inc., appeals from an adverse judgment in a lawsuit in which JMB/Houston Centers Partners Limited Partnership asserted claims for violations of the Deceptive Trade Practices Act and for breach of warranty. We affirm the judgment.

Houston Center Corporation constructed a forty story office building in downtown Houston during the mid-1970s known as One Houston Center. Over ninety percent of the exterior surface is glass. Approximately 12,219 units of a PPG product called Twindows, an insulating dual-pane glass window product, were used to sheath the building.

In December 1989, Houston Center Corp. sold the building to JMB. In July 1994, after many of the windows had fogged up and/or discolored, JMB sued PPG, alleging breach of warranty and violations of the DTPA. Jurors found in JMB's favor on both its DTPA and breach of warranty claims and determined that JMB had sustained $4,745,037 in damages. Electing the greater remedy provided by the DTPA, the trial court awarded treble damages under the 1973 version of the DTPA. Thus, JMB was awarded $14,235,111 in damages and prejudgment interest from June 14, 1994. After a bench trial, the trial court also awarded $1,716,181 in attorney fees for the trial and $412,400 in appellate attorney fees for this appeal.

Treble Damages

The Deceptive Trade Practices Act has undergone numerous revisions. The 1973 version of the DTPA provided for mandatory trebling of damages.¹ The 1979 amendment to the DTPA provided for discretionary trebling of damages if there was a knowing violation of the statute.². Likewise, the 1989 amendment to the DTPA also speaks in terms of a discretionary trebling of damages.³ The trial court applied the 1973 version of the statute and trebled the damages. In its first issue, PPG contends the 1989 statute was the appropriate version to be applied by the court; thus, the trial court erred in awarding mandatory treble damages.

The issue regarding which version of the statute should have been applied by the trial court is a question of law, which we review de novo. See Lozano v. Lozano, 975 S.W.2d 63, 66 (Tex. App.-Houston [14th Dist.] 1998, pet. denied) (statutory interpretation a question of pure law over which judge has no discretion). The date of the deceptive acts that give rise to the cause of action under the DTPA determines the applicability of the act. See Woods v. Littleton, 554 S.W.2d 662, 666 (Tex. 1977).

To determine which version of the statute applies, we first review the deceptive acts alleged by JMB. Among the deceptive acts alleged by JMB is the original sale of defective window units which occurred in 1976. Accordingly, unless the 1979 or 1989 versions have retroactive applicability, the 1973 version of the statute is effective.

As for the 1979 amendment, the legislature expressly provided that it would have prospective application only; that is, the amendment does not apply to a cause that "arose in whole or in part" prior to the effective date of the amendment, i.e., August 27, 1979. See Act of May 11, 1979, 66th Leg., R.S. ch. 603, § 9, 1979 Tex. Gen. Laws 1327, 1332; Barrett v. U.S. Brass Corp, 864 S.W.2d 606, 625 (Tex. App.--Houston [1st Dist] 1993), rev'd on other grounds, 919 S.W.2d 644 (Tex. 1996). Because the representations and sale of defective window units occurred prior to August 27, 1979, the 1979 amendment does not apply.

As for the 1989 amendment, it applies to all actions or claims "commenced" on or after the effective date of the amendment, i.e., September 1, 1989. See Act of May 22, 1989, 71st Leg., R.S., ch. 380, § 6, 1989 Tex. Gen. Laws 1490, 1493. A civil suit commences in district court by the filing of the petition with the office of the clerk. See Tex. R. Civ. P. 22. Here, the original petition was filed July 21, 1994, after the effective date of the amendment. Nevertheless, we find the amendment is not applicable because of the limited scope of the amendment.

The 1989 amendment revised Section 17.50(b) of the Business and Commerce Code to bring it into compliance with tort reform changes to Chapters 33 and 41 of the Civil Practices and Remedies Code. The 1989 amendment limited damages awarded for: (1) death; (2) personal injury other than mental anguish or distress associated with a violation of a particular subchapter of the statute that did not involve death or bodily injury; or (3) damage to property other than the goods acquired by purchase or lease that is involved in the consumer's action or claim if that damage arose out of an occurrence that involved death or bodily injury. See Act of May 22, 1989, 71st Leg., R.S., ch. 380, § 2, 1989 Tex. Gen. Laws 1490, 1491. Here, however, the damages were not associated with death or personal injury, but were purely property related.⁴ Moreover, while the legislature specifically provided that "This Act" applies to all actions commenced on or after September 1, 1989, the reference to "This Act" applies not to the entire DTPA, but only to the 1989 amendatory language.⁵

Thus, we find the trial court correctly applied the 1973 version of the DTPA. Accordingly, we overrule PPG's first issue.

Consumer Status

The DTPA provides a cause of action only for "consumers." In 1975, shortly before Houston Center Corp. purchased the window units from PPG, the DTPA definition of "consumer" was expanded to include corporations.⁶ Thus, under the DTPA, Houston Center Corp. was a "consumer." But while Houston Center Corp. may have had a right to sue under the statute, PPG contends that JMB is not a "consumer" in its own right and a cause of action under the DTPA is a personal, punitive right that cannot be assigned. Thus, in its second issue, PPG claims JMB cannot lawfully bring a DTPA claim.

Assignability

In general, one may assign all property rights, including choses in action. See Doty v. Caldwell, 38 S.W. 1025 (Tex. Civ. App. 1897). A cause of action is a property right capable of being assigned in whole or in part. See Brown v. King, 196 S.W. 884, 887 (Tex. Civ. App.-San Antonio 1917), aff'd, 111 Tex. 330, 235 S.W. 522 (1921). Causes of action based on breach of contract, or breach of implied or express warranty are assignable. See Roach v. Schaefer, 214 S.W.2d 128, 130 (Tex. Civ. App.--Fort Worth 1948, no writ) (insurer's cause of action for unpaid premiums assignable); Tolar v. South Tex. Dev. Co., 153 S.W. 911, 913-14 (Tex. Civ. App.--El Paso 1913, writ ref'd) (cause of action for specific performance assignable); see also Tex. Bus. & Com. Code Ann. § 2.210(b) (Vernon Supp. 2000) (Tex. UCC) ("right to damages for breach of the whole contract or a right arising out of the assignor's due performance of his entire obligation can be assigned despite agreement otherwise"). A claim for tortious injury to property also is assignable. See Wichita City Lines, Inc. v. Pucket, 288 S.W.2d 122, 124 (Tex. Civ. App.--Fort Worth), aff'd, 156 Tex. 456, 295 S.W.2d 894 (1956).

Although there is a split of authority on the issue, several courts of appeals have either found, or assumed, that DTPA claims are assignable. See Allstate Ins. Co. v. Kelly, 680 S.W.2d 595, 610 (Tex. App.--Tyler 1984, writ ref'd n.r.e.) (assignment extended to actions brought under DTPA); see also Hart v. First Fed. Sav. & Loan Ass'n, 727 S.W.2d 723, 725 (Tex. App.--Austin 1987, no writ) (guarantors denied recovery under DTPA because debtor did not assign them DTPA action); Rosell v. Farmer Tex. County Mut. Ins. Co., 642 S.W.2d 278, 279 (Tex. App.--Texarkana 1982, no writ) (plaintiff-assignee denied DTPA recovery because assignor was not DTPA consumer).

Further, assignability of a DTPA cause of action is in accord with the legislature's purpose for enacting the DTPA. The Legislature intended that the DTPA be "liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, breaches of warranty and to provide efficient and economical procedures to secure such protection." See Tex. Bus. & Com. Code Ann. § 17.44 (a) (Vernon Supp. 2000).

Because questions of assignability and survivability are linked, we find it helpful to view the survivability of an action to help determine its assignability. In Texas, at common law, if an action survives the death of a claimant, the cause of action is assignable. See Harding v. State Nat'l Bank of El Paso, 387 S.W.2d 768, 769 (Tex. Civ. App.--El Paso 1965, no writ). While lower courts have differed in their holdings, the Texas Supreme Court has reserved the issue of the survivability of a DTPA cause of action. See Shell Oil Co. v. Chapman, 682 S.W.2d 257, 259 (Tex. 1984).

The San Antonio court, finding a DTPA treble-damage claim did not survive, held that the DTPA was a private cause of action and "clearly punitive in nature." See First Nat'l Bank of Kerrville v. Hackworth, 673 S.W.2d 218, 221 (Tex. App.--San Antonio 1984, no writ) (en banc). The Fort Worth court declined to follow Hackworth, finding that several purposes underlay the treble-damages provision of the DTPA, punishment of the specific wrongdoer being only one. See Thomes v. Porter, 761 S.W.2d 592, 595 (Tex. App.--Fort Worth, 1988, no writ). The treble-damage provisions also discourage violations of the DTPA by other sellers. See id. Further, survivability accords with legislative intent. See id.; see also Mahan Volkswagen, Inc. v. Hall, 648 S.W.2d...