Reedy Co., Inc. v. Garnsey
| Decision Date | 27 October 1980 |
| Docket Number | No. 20401,20401 |
| Citation | 608 S.W.2d 755 |
| Parties | The REEDY COMPANY, INC. et al., Appellants, v. Thomas Armstrong GARNSEY, Appellee. |
| Court | Texas Court of Appeals |
Randall L. Freedman, Dallas, for appellants.
Josephine M. Jenkins, Jackson, Walker, Winstead, Cantwell & Miller, Dallas, for appellee.
Before AKIN, CARVER and STOREY, JJ.
This is an appeal by defendants The Reedy Company, Inc. and Don Reedy from an order of the trial court declining to set aside a default judgment rendered in favor of plaintiff Thomas A. Garnsey under the Deceptive Trade Practices Act. By cross-point Garnsey also appeals asserting that the trial judge erred in refusing to award him all of the damages to which he was entitled. We affirm the denial of a new trial on the ground that appellants failed to present evidence at the hearing on the motion for new trial establishing that their failure to answer was not intentional or the result of conscious indifference, but was rather the result of mischance or of mistake. We overrule appellee's cross-point on the ground that no competent evidence to support a finding of additional damages was introduced at the hearing on the default judgment. Accordingly, we affirm the judgment.
Plaintiff Thomas Garnsey sued The Reedy Company, Inc., Lynn Rubin, and Don Reedy, the latter two individually and as agents of The Reedy Company, for damages under the Deceptive Trade Practices Act stemming from a misrepresentation with respect to an aborted sale of a condominium by The Reedy Company to Garnsey. Garnsey sought to recover the benefit of his bargain as well as his earnest money. The alleged misrepresentation was that Garnsey could obtain a loan from a closely affiliated mortgage company for 95% of the purchase price. Acting on this representation, Garnsey signed the contract of sale and delivered $1,500 to The Reedy Company as earnest money. The mortgage company refused the loan, and The Reedy Company declined to return Garnsey's earnest money.
Although served with process, the defendants failed to answer and on October 26, 1979, Garnsey presented evidence of his damages to the trial judge. The evidence established that he paid the $1,500 earnest money to the defendant The Reedy Company. Garnsey also sought to obtain damages for the loss of the benefit of his bargain under his contract. In this respect, he testified that he investigated the market value of other condominiums in Dallas County by reading the classified advertisements in newspapers and by talking with the sales manager of The Reedy Company. Additionally, he tendered into evidence a contract on another condominium unit located in the same complex as the unit he attempted to buy. That contract showed a sales price of $51,000, whereas his contract was for $43,500. Thus, he asserted that he was entitled to the $7,500 difference between the two contract prices as damages representing his loss of the benefit of his bargain and that he was entitled to have that sum trebled under the Deceptive Trade Practices Act. The trial judge declined to award Garnsey the alleged benefit of his bargain on grounds that Garnsey was not qualified as an expert witness to testify as to market values of condominiums and that the contract on the second unit was not authenticated. Consequently, the judge awarded Garnsey damages of $1,500, representing the unreturned earnest money, and trebled that sum to $4,500 pursuant to the provisions of the Deceptive Trade Practices Act. The judge also awarded Garnsey $750 in attorney's fees as provided for under the Deceptive Trade Practices Act, as well as an additional attorney's fee of $750 if the cause is appealed to the court of civil appeals and a further $750 if writ of error is sought from the supreme court.
We consider first Garnsey's cross-point complaining that the judge erred in refusing to award him $22,500 ($7,500 trebled) because that was the proper measure of damages. We need not pass on whether this would be a proper measure of damages under the Deceptive Trade Practices Act because of the failure to present any competent evidence to support it. Although we agree that a plaintiff who is a victim of deception in a real estate...
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Jackson v. Mares
...at 214; Averitt v. Bruton Paint & Floor Co., 773 S.W.2d 574, 576 (Tex.App.--Dallas 1989, no writ); Reedy Co. v. Garnsey, 608 S.W.2d 755, 757 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.); Dallas Heating Co. v. Pardee, 561 S.W.2d 16, 20 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.); Healy ......
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Roberts v. Roberts
...appellant on his excuse; and this determination supports the order overruling the motion. Reedy Co., Inc. v. Garnsey, 608 S.W.2d 755, 757 (Tex.Civ.App. Dallas 1980, writ ref'd n. r. e.) The divorce judgment made the following division of the parties' property: was awarded the "home" (includ......
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Southland Paint Co., Inc. v. Thousand Oaks Racket Club, A Div. of Country Club Condominiums, Ltd.
...failure to answer was not intentional or due to conscious indifference, but rather was due to accident or mistake. Reedy Co., Inc. v. Garnsey, 608 S.W.2d 755, 757 (Tex.1980). Since appellant presented no testimony, the trial court did not err in refusing to set aside the default judgment an......