Sunshine Datsun, Inc. v. Ramsey
| Decision Date | 08 November 1984 |
| Docket Number | No. 07-83-0063-CV,07-83-0063-CV |
| Citation | 680 S.W.2d 652 |
| Parties | SUNSHINE DATSUN, INC., Appellant, v. Bette RAMSEY, Appellee. |
| Court | Texas Court of Appeals |
Marvin Jones, Amarillo, for appellant.
John Judge, Amarillo, for appellee.
Before REYNOLDS, C.J., and DODSON and BOYD, JJ.
Sunshine Datsun, Inc., brings this appeal from a judgment, rendered on a jury verdict, decreeing its monetary liability to Bette Ramsey in her action to recover damages authorized by the Deceptive Trade Practices-Consumer Protection Act (DTPA). Tex.Bus. & Com.Code Ann. § 17.41 et seq. (Vernon Supp.1984). Because Mrs. Ramsey's pre-suit notice of her claim against Sunshine Datsun was insufficient to satisfy the statutory notice required as a prerequisite to filing suit, we reverse and remand.
When the new 1981 Datsun automobile Mrs. Ramsey purchased from Sunshine Datsun was delivered, the hood was not properly positioned and the body side moldings were missing. The salesman took the car to be fixed, telling Mrs. Ramsey she could pick it up two days later. After Mrs. Ramsey unsuccessfully attempted to obtain the car for twelve days following the date it was to be repaired, her attorney made a written demand on Sunshine Datsun. Approximately a week or ten days after the demand, Sunshine Datsun notified Mrs. Ramsey's husband that the car was ready and, when Mrs. Ramsey did not pick up the car, it was delivered to her home forty-seven days after it had been taken to be repaired. Upon delivery of the car, its odometer registered an additional 150 miles and its upholstery on the passenger seat had sustained four cigarette burns.
Mrs. Ramsey instituted her DTPA action and obtained a favorable verdict from a jury. The trial court rendered judgment, and Sunshine Datsun brought this appeal predicated on twelve points of error. By its second point, Sunshine Datsun contends that Mrs. Ramsey's letter did not meet the DTPA's notice-of-claim requirement which is made a prerequisite to the filing of her suit. We agree and sustain the point, thereby pretermitting an address of the other points which should not recur in the same form in the event of further proceedings.
The letter sent by Mrs. Ramsey's attorney advised Sunshine Datsun of the specifics of, as well as the circumstances giving rise to, her complaints, and then stated:
Demand is hereby made for the immediate return of my client's vehicle together with a sum of money representing the fair rental value of the vehicle for each day that it has been in your possession subsequent to August 19, 1981 [the day the car was taken by Sunshine Datsun to be repaired].
The letter was sent thirty days before the filing of Mrs. Ramsey's suit, which was filed three days before the car was redelivered to her by Sunshine Datsun. No other written notice of claim for monetary redress from Sunshine Datsun was given.
Mrs. Ramsey's suit is predicated on section 17.50 of the DTPA, which authorizes an action by a consumer subjected to deceptive trade acts or practices, and she seeks damages measured by the provisions of section 17.50(b)(1), together with reasonable attorney's fees allowed by section 17.50(d). To maintain the action for damages, section 17.50A(a) requires that
As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 ... against any person, a consumer shall give written notice to the person at least 30 days before filing the suit advising the person of the consumer's specific complaint and the amount of actual damages and expenses, including attorneys' fees, if any ....
The language is a clear expression that the mandatory requirement for filing suit is the written notice setting forth the matters specified. Thus, the notice of the claim must include the actual damages and attorney's fees as a prerequisite to recovery under section 17.50(b)(1). Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983).
It is at once apparent that Mrs. Ramsey's notice letter does not comply with the statutory requirement to advise Sunshine Datsun of the amount of actual damages and attorney's fees claimed as a prerequisite to filing her suit by which she sought specific amounts of damages and attorney's...
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