Winkle Chevy-Olds-Pontiac, Inc. v. Condon

• Decision Date: 30 April 1992
• Docket Number: CHEVY-OLDS-PONTIA,No. 13-91-235-CV,INC,13-91-235-CV
• Citation: 830 S.W.2d 740
• Parties: WINKLEAppellant, v. Ralph J. CONDON, Appellee.
• Court: Texas Court of Appeals

Page 740

830 S.W.2d 740

WINKLE CHEVY-OLDS-PONTIAC, INC. Appellant, v. Ralph J. CONDON, Appellee.

No. 13-91-235-CV.

Court of Appeals of Texas,

Corpus Christi.

April 30, 1992.

Rehearing Overruled June 30, 1992.

Jerry W. Bussell, Sugar Land, Steven L. Weltman, Houston, for appellant.

Betty Clark, Houston, for appellee.

Before NYE, C.J., and SEERDEN, and BISSETT ¹, JJ.

OPINION

NYE, Chief Justice.

Winkle Chevy-Olds-Pontiac, Inc. appeals a jury award of $51,566 in damages, plus attorney's fees, for appellant's repossession of a van leased to Ralph Condon. The jury found for Condon on all theories of recovery--breach of contract, conversion, and deceptive trade practices. ² By thirteen points of error, appellant complains that the trial court erred in awarding punitive damages, in granting double recovery, in granting relief under the DTPA, in awarding damages in excess of the pleadings, and in awarding improper measures of damages.

Appellant and Condon entered a forty-eight month lease agreement on a van. After approximately thirty months, appellant repossessed the vehicle. A series of attempts to obtain return of both the van and the construction tools in the van availed nothing, and Condon filed suit in federal court for conversion and breach of contract. The parties agreed to dismiss the federal suit, and Condon refiled the action in state court, adding a claim for actual and punitive damages under the Texas Deceptive Trade Practices Act. At trial, appellant claimed it repossessed the van because Condon's payments were late. Condon had made late payments in the past. He argued that since appellant accepted them he was not in default, and appellant's repossession was wrongful. The case was submitted to a jury, which found for Condon on all issues, on all causes of action, and awarded him $51,566 in damages.

By its third point of error, appellant claims insufficient evidence exists to support the finding that appellant acted with conscious indifference; consequently, the trial court erroneously awarded common-law punitive damages. To be entitled to exemplary damages, the injured party must show that the tort-feasor's act warranted actual damages and was of a wanton and malicious nature. Southwest Inv. Co. v. Alvarez, 453 S.W.2d 138, 141 (Tex.1970); Transfer Prod., Inc. v. TexPar Energy, Inc., 788 S.W.2d 713, 715 (Tex.App.--Corpus Christi 1990, no writ); See also First Nat'l Bank v. Gittelman, 788 S.W.2d 165, 170 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Here, the charge instructed the jury to award punitive damages if they found that appellant acted with conscious indifference to Condon's rights. Appellant now challenges the sufficiency of the evidence to support that finding.

A challenge to the sufficiency of the evidence requires us to consider, weigh, and examine all of the evidence which supports and is contrary to the jury's determination. We set aside the jury's verdict only if the evidence standing alone is too weak to support the finding, or the answer is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Plas-Tex, Inc. v. U.S. Steel Corp, 772 S.W.2d 442, 445 (Tex.1989); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Automobile Ins. Co. v. Davila, 805 S.W.2d 897, 905 (Tex.App.--Corpus Christi 1991, writ denied). Punitive damages may not be awarded when the tort-feasor acts with a good-faith belief that he is exercising some right. Gardner v. Jones, 570 S.W.2d 198, 201 (Tex.App.--Houston [1st Dist.] 1978, no writ). The jury found that appellant converted the van and acted with conscious indifference to Condon's rights and welfare. We find that sufficient evidence exists to support the jury's verdict.

Appellant called no witnesses. Consequently, the record contains no direct evidence of the knowledge or intentions of appellant or appellant's agents. Appellant's counsel argued at trial that appellant merely exercised its right to repossess the van because Condon defaulted. Counsel established that Condon began making late payments. However, appellant did not dispute that it accepted all twenty-eight payments Condon made on the van, some of which were late. Neither did appellant claim that Condon missed any payments. It was further undisputed that the lease agreement required appellant to notify Condon of any default. Appellant claims it mailed Condon notice by certified mail. Condon testified that he never received any notice that appellant considered him in default or that appellant was going to repossess the van.

After discovering that the van was gone, Condon contacted Tom Winkle at appellant's office. Winkle promised to find Condon's file and call him back. Condon never received a return call. Although Condon and his wife called several times daily during the next two weeks, all further attempts to speak to Winkle were futile. Winkle either hung up when Condon identified himself, or he would not speak with Condon at all.

The evidence showed that Condon kept his construction tools in the van because he used it as a "shop on wheels" for his construction business. With both the van and the tools gone, he was unable to make his living. Some time after repossession, Condon successfully contacted appellant's agent, who was storing the van, in an attempt to retrieve his construction tools. In response, the agent suggested a late-night meeting behind a Whataburger restaurant where Condon would turn over his van keys and his driver's license, and the agent would then "see about" getting Condon's tools returned to him. The tools were later returned, but not before Condon lost two lucrative construction contracts because of his inability to complete them without his tools.

The evidence also showed that Condon retained an attorney who wrote to appellant requesting the vehicle's return. The attorney got no response. After filing suit, Condon learned through discovery that appellant had sold the van. Condon testified that all of this occurred without him ever having discovered the reason why the van was seized.

At trial Condon's attorney read to the jury portions of appellant's admissions and answers to interrogatories. Appellant's answers were desultory and contradictory. Condon originally leased the van from The Vette Store. Appellant claimed that The Vette Store merely assigned the lease contract to it sometime after Condon entered the agreement. However, The Vette Store had provided Condon with a coupon payment booklet bearing appellant's name and address, and Condon made all payments to appellant. Appellant admitted that the coupon payment booklet had been provided to Condon. However, it denied ever having provided the booklet itself and denied knowing who did. Appellant further admitted that it had always been the owner of the van and that The Vette Store leased the van to Condon. Yet, appellant denied ever having allowed The Vette Store to lease vehicles on its behalf.

All of the foregoing facts constituted ample evidence to support the jury's finding that appellant acted with conscious indifference to Condon's rights. The punitive damages award was not without support in the record. Point three is overruled.

By its thirteenth point of error, appellant complains that the trial court erred in allowing Condon to testify to appellant's state of mind. Condon stated that he thought appellant knew that it was "stealing" the van from him by taking it and selling it for a profit. Appellant believes the answer prejudiced the jury and resulted in the jury finding conscious indifference and awarding a large amount of exemplary damages. We find that the error here, if any, did not amount to such a denial of appellant's rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment. See Amoco Production Co. v. Alexander, 622 S.W.2d 563, 571 (Tex.1981); Tex.R.App.P. 81(b)(1). Condon's statement was merely his own summary of events. Appellant had already admitted that it repossessed the van and sold it. Condon had testified earlier, without objection, that he felt the van had been stolen and that appellant had not complied with its obligations under the lease agreement. Objections to evidence are inefficacious when similar evidence is introduced and received without objection. Ford Motor Co. v. Nowak, 638 S.W.2d 582, 591 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). Point thirteen is overruled.

By point four, appellant complains that the trial court improperly allowed Condon a double recovery of punitive damages. Appellant argues that Condon's different theories of recovery encompass the same act or practice and the same actual damages. As such, appellant claims the trial court erred in awarding both DTPA treble damages and common-law punitive damages. We disagree. Appellant cites § 41.004(b) of the Civil Practice and Remedies Code as controlling. This provision prevents a plaintiff from recovering punitive damages if his damages are multiplied under another statute. TEX.CIV.PRAC. & REM.CODE ANN. § 41.004 (Vernon Supp.1992). However, this provision applies only to certain statutory actions and does not apply to actions brought under the DTPA. TEX.CIV.PRAC. & REM.CODE ANN. § 41.002 (Vernon Supp.1992). The only limitations upon Condon's entitlement to both treble and punitive damages are those specified in the DTPA itself and by case law.

Remedies authorized under the DTPA are cumulative of those provided by other laws. Kish v. Van Note, 692 S.W.2d 463, 466, 467 (Tex.1985); BUS. & COM.CODE ANN. § 17.43 (Vernon 1987). However, the Act states "no recovery shall be permitted under both this subchapter and another law of both actual damages and penalties for the same act or practice." Mayo v. John Hancock Mut. Life Ins. Co., 711 S.W.2d 5, 6-7 (Tex.1986); BUS. & COM.CODE ANN. § 17.43 (Vernon 1987). Condon's recovery of both DTPA treble damages and common law punitive damages does not...