Stewart v. Moody

• Court: Texas Civil Court of Appeals
• Writing for the Court: CLAYTON
• Citation: Stewart v. Moody, 597 S.W.2d 556 (Tex. Ct. App. 1980)
• Decision Date: 03 April 1980
• Docket Number: No. 8427,8427
• Parties: Alton M. STEWART et al., Appellants, v. Asa MOODY, Appellee.

Page 556

597 S.W.2d 556

Alton M. STEWART et al., Appellants, v. Asa MOODY, Appellee.

No. 8427.

Court of Civil Appeals of Texas, Beaumont.

April 3, 1980.

Rehearing Denied April 24, 1980.

John Fulbright, Beaumont, Dickinson & Ewalt, Houston, for appellants.

Jon Burmeister, Port Arthur, for appellee.

CLAYTON, Justice.

Appellee (Moody) filed this suit seeking damages arising from his purchase of a "double mobile home," naming as defendants Mid-County Rental Services, Inc., Alton Stewart (Stewart), individually and doing business as Mid-County Mobile Homes Sales and Service, First Financial Corporation, and Equitable Insurance Exchange. Appellee sought damages resulting from violation of the Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. § 17.46(b)(5), (7) (Vernon 1978), and the Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-7.07(3), (4) (Vernon 1971). Appellee settled with and non-suited Mid-County Rental Services, Inc.

Trial was to a jury which found that appellee sustained damages in the amount of $5,000 resulting from misrepresentations in violation of the Deceptive Trade Practices Act, and found that certain violations of article 5069-7.02 existed as to the installment contract executed by appellee and awarded escalated attorney fees. The trial court trebled the $5,000 damages and entered judgment thereon in the sum of $15,000. In addition to this sum, the trial court found that the finance charge on the retail installment contract executed by appellee was $22,455.20, and, because there had been a violation of article 5069-7.02, this amount was doubled and judgment entered in the sum of $44,910.40. The court further found that Equitable Insurance Exchange had in full force and effect a bond in the amount of $25,000 wherein Stewart was principal and Equitable Insurance Exchange was the surety, to cover any liability against Stewart for damages. Judgment was entered against Alton Stewart, individually and doing business as Mid-County Mobile Homes Sales and Service in the sum of $59,910.40, together with certain sums as escalated attorney fees, and against Equitable Insurance Exchange for the "first $25,000 of this judgment." Alton Stewart and Equitable Insurance Exchange have appealed.

Appellee purchased a "double mobile home" from a salesman employed by Stewart. Appellee's cause of action is based upon certain misrepresentations made by the salesman, in violation of the Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. § 17.46(b)(5) and (7) (Vernon 1960), wherein appellee asserted the salesman represented that the ceiling joists and rafters, in the mobile home, "were of 2 X 6 material, as well as the floor beams being of 2 X 6 material," when in truth and in fact the ceiling joists and rafters "were of 2 X 2 material. . . . " Appellee further alleged, as a part of his cause of action, the retail installment contract executed by him was not signed and dated by the seller which was in violation of Tex.Rev.Stat.Ann. art. 5069-7.02 (Vernon 1971).

By his seventh point of error, appellant complains of the damage issue submitted by the trial court. This issue inquired of the jury as to "what sum of money, if any, if paid now in cash, do you find from a preponderance of the evidence would reasonably and fairly compensate the plaintiff for the damages, if any, he has suffered as a result of the occurrence in question?"

The trial court submitted an issue inquiring of the jury as to the misrepresentations made by the salesman, and the jury answered that such misrepresentations were made. This was followed by an issue inquiring if the retail installment contract, which was signed by the plaintiff (appellee), was not dated and not signed by the seller, to which the jury answered in the affirmative. This issue was immediately followed by the damage issue about which complaint is made. There were no instructions as to what elements of damage should or could be considered by the jury in arriving at their answer to this issue. This issue, as worded, permitted the jury to take into account anything that it considered as constituting "damages." Appellee plead that "it would cost him $10,000 to have all the deficiencies corrected," or in the "alternative . . . that the . . . home . . . as represented was worth $21,000, but that the fair market value of the mobile home as it existed was only worth $11,000. . . . " The jury could have considered either or both of the allegations as to damages "suffered as a result of the occurrence in question," when the proper measure of damages, as to either allegation, was not given or included in this damage issue. Moreover, the damage issue followed the issue inquiring as to the failure to sign and date the retail installment contract, and under the damage issue the jury could have considered damages arising from such failure to sign and date the contract. There were no instructions or limitations with reference to the elements of damage to be considered by the jury. Appellant made proper objections to this issue, and this damage issue, as worded, was erroneously submitted to the jury. See Securities Investment Company of St. Louis v. Finance Acceptance Corporation, 474 S.W.2d 261 (Tex.Civ.App. Houston (1st Dist.) 1971, writ ref'd n. r. e.). This point is sustained.

By his ninth point, appellant urges error by the trial court in overruling his "motion for judgment N.O.V. and in failing to render judgment that appellee take nothing by virtue of his cause of action based on (Tex.Rev.Stat.Ann. art. 5069-7.02 and 8.01 (Vernon 1971)) the Consumer Credit Code because said statutes do not apply to the sale of the mobile home in question."

Appellee alleged a violation of article 5069-7.02 " . . . because the . . . c ontract in question is not dated and is not signed by...