Star Houston, Inc. v. Shevack

• Decision Date: 08 September 1994
• Docket Number: No. 01-93-00440-CV,01-93-00440-CV
• Citation: 886 S.W.2d 414
• Parties: STAR HOUSTON, INC. d/b/a Star Motor Cars, Appellant, v. Steve SHEVACK, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 414

886 S.W.2d 414

STAR HOUSTON, INC. d/b/a Star Motor Cars, Appellant, v. Steve SHEVACK, Appellee.

No. 01-93-00440-CV.

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

Sept. 8, 1994.

Rehearing Overruled Sept. 29, 1994.

Josh M. Harrison, Woodlands, for appellant.

William J. Robertson, Houston, for appellees.

Before MIRABAL, COHEN and HUTSON-DUNN, JJ.

OPINION

MIRABAL, Justice.

Steve Shevack sued Star Houston, Inc. d/b/a Star Motor Cars (Star), alleging breach of contract, common-law fraud, and violation of the Texas Deceptive Trade Practices Act (DTPA), TEX.BUS. & COM.CODE ANN. §§ 17.41-17.63 (Vernon 1987 and Supp.1993), in connection with repair work Star performed on Shevack's automobile. Star counterclaimed for breach of contract, and also sought attorneys' fees and costs from Shevack under section 17.50(b) of the DTPA, asserting that his DTPA action was groundless and was brought in bad faith or for harassment. The trial court entered judgment, on a jury verdict, that Shevack recover from Star $4,776.47 in actual damages, $15,000 in exemplary damages, and $10,000 in attorneys' fees, as well as pre- and post-judgment interest, and additional attorneys' fees in the event of appellate proceedings; and that Star take nothing on its counterclaim. Star appeals, raising 17 points of error. We reform the judgment, and affirm.

One evening in 1989, Shevack was driving in his 1982 Mercedes 380SEL automobile on the Southwest Freeway in Houston, when his engine suddenly went completely dead. He and his companions pushed the car to a nearby gas station on the service road, and Shevack had it towed to a repair shop. The next morning, that shop told Shevack it appeared there was a serious problem with his car's timing chain; he told them not to do anything to the car, and called the factory representative at Mercedes North America (Mercedes). Shevack relayed the repair shop's assessment, and answered other questions asked of him. Mercedes told Shevack that if the trouble was indeed a timing chain problem, then Mercedes would pay half the bill. At Mercedes' suggestion, Shevack had the car towed to Star. Star took approximately 10 days to inspect Shevack's car, and communicated the results to Shevack in the following letter:

August 10, 1989

....

Dear Mr. Shevack,

....

The estimation on the repair of your 1982 380 SEL is as follows:

                                 PARTS                  $9,619.66  (incl. tax)
                                 LABOR                   3,020.00
                                                       ----------
                                 TOTAL ESTIMATE        $12,639.66
                

Please keep in mind this is just an estimate. As per our telephone conversation, Mercedes-Benz has agreed to pay 50% of the entire bill.

If you will simply sign the authorization at the bottom of the page and return to me as soon as possible, we can begin the repairs.

Sincerely,

STAR MOTOR CARS

/s/ Ken Clements

Ken Clements

Service Advisor

KC/cs

I AUTHORIZE STAR MOTOR CARS TO PERFORM REPAIRS TO MY CAR AS PER THE ESTIMATION.

/s/ Steve Shevack

Steve Shevack After Shevack signed the letter and returned it to Star, Star began the repair work on his car. Five or six weeks later, Ken Clements called Shevack and told him the car would be ready the next day. When Shevack was given the bill, Mike Martini, Star's service manager, told Shevack that there were certain items on the bill that Mercedes would not pay for because they were normal wear and tear items, and that Star was charging those items one hundred percent to Shevack. The total bill was $12,433. To get his car back, Shevack paid, under protest, $7,596.30 of that amount. This suit followed.

In its points of error one, two, three, and nine, Star complains of a number of the trial court's actions. ¹ Star has waived one of those complaints, ² and the remainder all rest on Star's assertion that there was no evidence to support the jury's answer to Shevack's jury question number two, that Star had committed a fraud which was a proximate cause of damages to Shevack.

In reviewing legal insufficiency or "no evidence" points, the reviewing court considers only the evidence and inferences that, when viewed in their most favorable light, tend to support the finding, and disregards all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987); Alm v. Aluminum Co. of America, 717 S.W.2d 588, 593 (Tex.1986); King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985). If there is more than a scintilla ³ of evidence to support the finding, the "no evidence" point must be overruled and the finding upheld. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988).

The elements of actionable fraud in Texas are (1) that a material representation was made; (2) that it was false; (3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that the party thereby suffered injury. Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983). The jury was so charged.

Shevack testified that Star represented to him that Mercedes would pay 50 percent of the entire bill for work Star did on his car. Clements' letter was admitted into evidence; the letter, and Shevack's signature on it, tend to show, respectively, Star's intention to induce Shevack to act upon that representation by giving Star a signed, written authorization to proceed with the repairs, and that Shevack did rely on that representation. Clements testified that at the time he wrote the letter, he knew that Mercedes was not going to pay for parts and labor that were not related to the timing chain. Clements also testified that Star performed certain additional repairs, not related to the timing chain and not considered in its August 10 letter, that Star decided were "needed," without getting prior permission from Shevack. Shevack testified that he paid more than half of the entire bill.

There was evidence of each element of fraud; that evidence was legally sufficient to support the jury's answer to jury question number two. We overrule points of error one, two, three, and nine.

In its points of error four, five, six, and eight, Star complains of the trial court's instruction, over Star's objection, that the jury consider mental anguish suffered by Steve Shevack, if any, as an element of Shevack's damages (along with the difference between the dollar amount Shevack was charged for the car repairs and the amount as represented or contracted for). Star raises other complaints in these points as well. ⁴ All of these points rest on the assertion that there was no evidence that Shevack suffered any mental anguish. In its point of error seven, Star asserts the trial court erred in admitting, over Star's objection, evidence offered by Shevack in support of his mental anguish claim.

Shevack first testified summarily that the problems with Star had caused him mental anguish, and elaborated as follows:

At the time I took the car in to be serviced, I had gone through some very bad times. I didn't want to bring it up.... I had been diagnosed with pancreatic--Counsel, I only have a few more months to go--I had gone through a severe financial problem and I had lost my business. My credit was already terrible. I had several judgments.

Counsel for Star objected at that point, that this testimony was irrelevant and unduly prejudicial. After the objection was overruled, Shevack continued:

I had lost my business and lost my house. Several banks were suing me. I had a tremendous amount of medical bills, unpaid medical bills; and then this happened at a time when I was just, you know, just another thing that was just hitting me. And it was nothing I could do. I had to borrow money from my sister to make repairs on the car. There was just no other place I could go and it was just a tremendous hardship at this particular time.

I thought the car would be ready in a week or so. I had to go rent a car and spend another $1700 for five weeks because they couldn't get the car out on time which was another expense I certainly didn't need.

It was just adding insult to injury at this particular time.

Finally, Shevack also testified that the problem with Star had induced him to consult a doctor about his mental anguish.

Just as with any physical injuries he causes another, a tortfeasor whose actions cause another to suffer mental anguish or emotional distress takes his plaintiff as he finds him. Coates v. Whittington, 758 S.W.2d 749, 752-53 (Tex.1988). Regardless of any special susceptibility on the injured party's part, that party is entitled to recover for the mental distress he proves the incident caused him, conditioned as he was at the time of the incident. Id. Shevack's testimony concerning his state of mind in his particular situation at the time of his contact with Star was relevant to his allegations of mental anguish.

In Texas, a party may recover damages for mental anguish without having suffered any physical injury. St. Elizabeth Hosp. v. Garrard, 730 S.W.2d 649, 654 (Tex.1987); Cronin v. Bacon, 837 S.W.2d 265, 269 (Tex.App.--Fort Worth 1992, writ denied). However, to recover damages for mental anguish, one must show more than mere worry, anxiety, vexation, embarrassment, or anger. Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710, 712 (Tex.App.--Houston [1st Dist.] 1993, writ denied); Elliott v. Dow, 818 S.W.2d 222, 225 (Tex.App.--Houston [14th Dist.] 1991, no writ). Mental anguish is defined as a high degree of mental suffering, beyond disappointment, anger, resentment, or embarrassment, although it may include all of these. Phar-Mor, 853 S.W.2d at 712; Cronin, 837 S.W.2d at 269. The proof must show such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, or...