Ridco, Inc. v. Sexton, 18551

• Decision Date: 04 November 1981
• Docket Number: No. 18551,18551
• Citation: 623 S.W.2d 792
• Parties: RIDCO, INC. d/b/a the Venture Company and Grover Riddle, Individually, Appellants, v. Joyce SEXTON, Appellee.
• Court: Texas Court of Appeals

Page 792

623 S.W.2d 792

RIDCO, INC. d/b/a the Venture Company and Grover Riddle, Individually, Appellants, v. Joyce SEXTON, Appellee.

No. 18551.

Court of Appeals of Texas, Fort Worth.

Nov. 4, 1981.

Robert F. Vecchio, Arlington, for appellants.

Thompson & Knight and Stephen F. Fink, Dallas, for appellee.

Before HUGHES, JORDAN and BROWN, JJ.

OPINION

JORDAN, Justice.

This is an appeal from an adverse judgment in a case involving a contract for the sale of a "townhouse" in the City of Grand Prairie, Texas. Appellee contracted with appellants for the purchase of the townhouse but refused to consummate the contract because, as she alleged, she discovered several serious construction defects in the structure before closing of the sale. She brought suit for rescission of the contract and for damages for fraud and misrepresentation under Tex.Bus. & Comm.Code Ann. (1968) § 17.46(a), (b)(5) (Supp.1980-81) and § 27.01. Trial was to a jury.

We affirm the judgment of the trial court.

Appellants urge six points of error. In their first and fifth points of error appellants argue that the trial court erred in overruling their motions for directed verdict for the reason that appellee failed to plead and prove that she was a "consumer" as defined in § 17.45(4). They contend, correctly, that before any recovery under the Deceptive Trade Practices Act may be had it is necessary to plead and prove that the complaining party is a "consumer." Woods v. Littleton, 554 S.W.2d 662, (Tex.1977); Delaney Realty, Inc. v. Ozuna, 593 S.W.2d 797, (Tex.Civ.App.-El Paso 1980, writ ref'd n. r. e.), 600 S.W.2d 780. It is true that appellee, in her pleadings in this case, did not specifically spell out the allegation that she was a "consumer" under the Deceptive Trade Practices Act (§ 17.45(4)). She did not say "I am a consumer under this act for the following reasons." However, she did, in her first amended petition, allege the following: that in April, 1977 she and appellant entered into a written contract of sale for the purchase by her of a certain described "townhouse" in Grand Prairie, Texas, for a purchase price of $65,000; that she deposited $1500 earnest money with the defendants; that prior to and at the time of the execution of this contract defendants represented to her that the "townhouse" was or would be built in a good and workmanlike manner and that the "best materials available" would be used in the construction; that these representations and warranties were false in certain specified particulars and that these misrepresentations and breach of warranties constituted breach of the common law of warranties and fraud and also constituted violations of § 17.46(a), (b)(5) and 27.01 of the Business and Commerce Code. We hold that appellee quite clearly pled that she was a consumer under the pertinent sections of the Deceptive Trade Practices Act.

By overruling appellant's motions for directed verdict the trial court concluded and held that appellee was a consumer under this act. In this action we think the trial court was correct in this holding under the evidence introduced at trial. Ordinarily, the determinative question of whether or not the plaintiff is a consumer in a case such as this is one of law to be determined by the trial court from the evidence. This is so because the question of whether or not a person is a consumer under this act involves construction of § 17.45(4) of the statute, as it applies to each case. Of course, if some of the basic ingredients of the question of consumer are in dispute, those questions should be submitted to the jury. In all of the cases we have examined on this question, either the trial court or the appellate court has concluded as a matter of law from the evidence, that the plaintiff in a deceptive trade practices case is or is not a "consumer" under the Act. If the trial court were to conclude that a plaintiff in a case was not a consumer, he would not submit questions as to the violation of the terms of the Act to the jury.

The main thrust of appellant's argument in their first and fifth points of error is that appellee never consummated the contract for the purchase of the townhouse, but instead filed suit to rescind the contract and for damages under the Deceptive Trade Practices Act. This argument is quickly refuted by the language of § 17.45(4) defining the term "consumer." That language defines a "consumer" as "an individual, partnership, corporation, or governmental entity who seeks or acquires by purchase or lease, any goods or services." There is voluminous evidence in this case to show conclusively that appellee did in fact seek to purchase this townhouse from appellants. She signed a contract for such purchase, paid $1500 down, made arrangements for a loan to purchase it, visited the construction site many times, and then, when the construction defects such as exterior and interior cracks became obvious to her, she hired a housing engineer and a soil engineer to advise her about the problems which had arisen in the construction of the townhouse.

This precise argument was urged and rejected in Anderson v. Havins, 595 S.W.2d 147, (Tex.Civ.App.-Amarillo 1980, no writ) under a similar fact situation. We overrule appellant's first and fifth points of error.

By their second point of error appellants contend that the trial court erred in overruling their objections to the submission of special issues nos. 1, 2, and 3 for the reason that there is no evidence or insufficient evidence to prove that the alleged misrepresentations were made or that such misrepresentations induced appellee to enter into the contract. Special issue no. 1 inquired of the jury as to whether appellants represented to appellee that the townhouse would be built in a good and workmanlike manner and would be constructed using the best materials available. Special issue no. 2 asked whether either of the representations, if they were made, induced appellee to enter into the contract. Issue no. 3, based on an affirmative answer to issue no. 1, inquired as to whether or not the townhouse was constructed in a good and workmanlike manner or was constructed using the best materials available. All these issues were found as appellee desired.

First, appellants say there is no evidence that appellants represented that they would construct the townhouse in a good and workmanlike manner. The record, however, does not support this assertion. Appellants admitted in response to appellee's ...