Spicer v. Great Service, Inc., 16142

• Decision Date: 07 March 1979
• Docket Number: No. 16142,16142
• Citation: Spicer v. Great Service, Inc., 580 S.W.2d 14 (Tex. Ct. App. 1979)
• Parties: Donald SPICER and wife Alice Spicer, Appellant, v. GREAT SERVICE, INC., Appellee.
• Court: Texas Civil Court of Appeals

Page 14

580 S.W.2d 14

Donald SPICER and wife Alice Spicer, Appellant, v. GREAT SERVICE, INC., Appellee.

No. 16142.

Court of Civil Appeals of Texas, San Antonio.

March 7, 1979.

Robert I. Kahn, San Antonio, for appellant.

Forrest A. Bennett, Bennett & Leger, San Antonio, for appellee.

OPINION

MURRAY, Justice.

Appellants, Donald and Alice Spicer, brought suit against Great Service, Inc., and Clyde Deckard under the Deceptive Trade Practices Consumer Protection Act, Tex.Bus. & Comm.Code Ann. § 17.41, et seq. (Vernon Supp.1978-1979). ¹ Clyde Deckard entered into a settlement agreement with appellants prior to trial. The case was tried before a jury, and at the conclusion of appellee's evidence the trial court granted an instructed verdict for defendant, Great Service, Inc. Appellants then perfected their appeal to this court.

This suit arose out of the transaction in which the Deckards sold their home to appellants. During the negotiations for the sale, appellants requested as a condition of the purchase that the plumbing and the heating and air conditioning systems be completely inspected. The realtor chose and paid Great Service, Inc., to make the inspection and file an inspection report. The inspection report stated, "The Carrier central air conditioning system and the Coleman central heating system are both in good working order." The inspection report, which was made on November 11, 1976, the day after the inspection, also stated that this report "represents the actual condition of the above equipment as of the date of this inspection and is not a warranty for future use of the equipment."

Appellants moved into the house on December 22, 1976, and in March 1977 the furnace became inoperable. Appellants then called County Wide Equipment Company, who replaced the furnace and heating system. As a result, appellants brought this action contending that the representation made by Great Service, Inc., in its inspection report was false, misleading, and deceptive because the furnace was not in good working order at the time of the inspection. Appellants alleged that Great Service, Inc., violated sections 17.46(a), (b) (7), and (b)(13) of the DTPA by engaging in false, misleading, and deceptive conduct. Appellants further alleged that appellee's conduct was unconscionable as defined by section 17.45(5) of the DTPA.

The only issue presented on appeal is whether there was any evidence of appellants' cause of action to raise a material fact issue for the jury's determination. The rule is well settled that it is error to instruct a verdict when the evidence raises any material fact issue. In passing upon the question of the authority of the trial court to instruct a verdict, the evidence must be considered in the light most favorable to the party against whom the verdict is instructed. An instructed verdict is warranted only when the evidence shows that no other verdict can be rendered and the winning party is entitled to judgment as a matter of law. When there is any conflicting evidence, either direct or circumstantial, in the record of a probative nature, a determination of the issue is for the jury. Texas Employers Insurance Ass'n v. Page, 553 S.W.2d 98 (Tex.1977); Air Conditioning, Inc. v. Harrison-Wilson-Pearson, 151 Tex. 635, 253 S.W.2d 422 (1952); White v. White, 141 Tex. 328, 172 S.W.2d 295 (1943); Stevens v. Karr, 119 Tex. 479, 33 S.W.2d 725 (1930). To make this determination, the trial court, without passing upon the credibility of the witnesses, must accept as true all evidence which, when liberally construed in favor of the adverse party to the motion for instructed verdict, tends to support the adverse party's contention. The trial court must also indulge every reasonable inference deductible from the evidence in the adverse party's favor and disregard all contradictory evidence favorable to the movant. If this evidence amounts to more than a scintilla, a fact issue is raised. Humphreys v. Haragan, 476 S.W.2d 880 (Tex.Civ.App. Amarillo 1972, no writ); 3 R. McDonald, Texas Civil Practice § 11.28.2 (1970).

In deciding this case, it is necessary to summarize the evidence in the light most favorable to appellants. Here, both Donald and Alice Spicer testified that when they first looked at the home in October 1976, they noticed a musty animal-like smell, which seemed to permeate the house. The odor was present before and after the inspection by Great Service, Inc., on November 10, 1976, and continued until the furnace and heating system were...