Woods v. Littleton, No. B-6270

• Court: Supreme Court of Texas
• Writing for the Court: SAM D. JOHNSON; Justice YARBROUGH
• Citation: 554 S.W.2d 662
• Parties: Jackie WOODS et ux., Petitioners, v. B. L. LITTLETON et al., Respondents.
• Docket Number: No. B-6270
• Decision Date: 29 June 1977

Page 662

554 S.W.2d 662 Jackie WOODS et ux., Petitioners,
v.
B. L. LITTLETON et al., Respondents. No. B-6270. Supreme Court of Texas. June 29, 1977.
As Corrected On Denial of Rehearing July 26, 1977.

Page 663

Hitt & Pesek, Cahill Hitt, Texarkana, for petitioners.

Atchley, Russell, Waldrop & Hlavinka, Norman C. Russell, Texarkana, for respondents.

SAM D. JOHNSON, Justice.

Alleging the existence of a defective sewer system and faulty repair work, Jackie and Cheryl Woods sued B. L. Littleton and Joe S. Thomson, doing business as Superior Construction Company, asserting as one of their grounds for recovery a violation of the Deceptive Trade Practices-Consumer Protection Act, Texas Business and Commerce Code, Section 17.41, et seq. ¹ Two issues must be resolved: (1) whether the Consumer Protection Act applies to the circumstances of the instant case; and, if so, (2) whether treble damages are mandatory. The trial court, on the basis of a jury verdict, held the Consumer Protection Act applicable and that the act of the defendants was a deceptive practice. The trial court then rendered judgment for Jackie and Cheryl Woods. Although the trial court assessed the court costs against Littleton and Thomson and awarded the couple reasonable attorneys' fees pursuant to Section 17.50(b) (1) of the Consumer Protection Act, ²

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it declined to treble the actual damages, which consisted of awards for mental anguish and the diminished value of the home. The court of civil appeals held the evidence was insufficient to support the jury findings on the diminished value of the home and that the special issue regarding mental anguish was defective. In remanding to the trial court, the court of civil appeals commented that the Consumer Protection Act did not apply. 538 S.W.2d 800. We affirm the judgment of the court of civil appeals, which remanded the cause to the trial court.

The couple purchased their newly constructed home on November 10, 1972 from Superior Construction and within a month they experienced difficulties with their sewer system and septic tank. These problems included water backing up from the commode, the washing machine, and the bathtub. Mr. Woods, on numerous occasions, complained to Mr. Joe S. Thomson, a partner in Superior Construction. Several attempts were made by Superior Construction to correct these problems and, according to Mr. Woods, the last one made was in June or July 1973. At that time pipe was added to one of the septic tank's field lines, which extended the field line to within seven or eight feet of the street in front of Mr. Woods' home. Mr. Woods stated this additional field line solved the previous difficulties he had experienced, but created a new one. He asserted the field line came to the surface of his front yard and allowed sewage to run directly onto the land and into the street. In support of this testimony, the record reveals that Mr. Woods was summoned to appear before the Justice Court of Bowie County "for (his) trial upon the penal offense of allowing sewage to flow into a public street." He testified he was assured by a representative of Superior Construction that the additional field line would cure any problems. When the additional field line caused sewage to run into the street, Mr. Woods stated he renewed his complaints to Mr. Thomson.

Byron Littleton, Jr., who was a work supervisor for Superior Construction, also described the steps taken to solve Woods' sewer problems. First, as a temporary measure, the workers dug to the end of a field line to relieve the pressure forcing the sewage back into the house. Next, this hole was enlarged and eight yards of wash rock was placed in it in the hope that this work would solve the problems. The problems persisted, however, and Superior Construction returned and added approximately 100 feet to the field line on which they had previously worked. This additional 100 feet extended the field line to the front of Woods' yard and, according to Littleton, Jr., was at least eight inches below the surface. He also testified that these repairs were completed by March 1973.

Mr. Joe S. Thomson, a partner in Superior Construction, testified that at the time of purchase the house was substantially complete and that a one-year warranty was given to the purchasers, Jackie and Cheryl Woods, to do whatever was necessary to put the house in final shape and to repair anything that went wrong.

The jury found that either Joe S. Thomson or B. L. Littleton, after May 21, 1973 (the effective date of the Consumer Protection Act), told Woods that the sewer system was in good working order and further found such statement was a "deceptive trade practice." ³ The jury then proceeded to find: (1) $5,000 would compensate Jackie and Cheryl Woods for the mental anguish they suffered; (2) the lack of a properly working septic tank system diminished the value of the home by $5,000; (3) $2,000 would be reasonable attorneys' fees for the trial of the cause; (4) $1,000 would be reasonable attorneys' fees for an appeal to the court of civil appeals; (5) $500 would be

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reasonable attorneys' fees for applying for a writ of error to the supreme court; and (6) $500 would be reasonable attorneys' fees for the amount of time expended if the application for writ of error was granted.

To resolve the issues in this appeal, this court must interpret the Consumer Protection Act. The Legislature has declared that "(i)n all interpretations, the court shall look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy." Article 10, Section 6, Texas Revised Civil Statutes Annotated. Expanding upon the command of the Legislature to diligently look for its intention, this court wrote:

"The fundamental rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed therein. That intention should be ascertained from the entire act, and not from isolated portions thereof. This Court has repeatedly held that the intention of the Legislature in enacting a law is the law itself; and hence the aim and object of construction is to ascertain and enforce the legislative intent, and not to defeat, nullify, or thwart it. . . . It is settled that the intention of the Legislature controls the language used in an act, and in construing such act the court is not necessarily confined to the literal meaning of the words used therein, and the intent rather than the strict letter of the act will control." City of Mason v. West Texas Utilities Co., 150 Tex. 18, 237 S.W.2d 273, 278 (1951).

With respect to the statute in question, the Consumer Protection Act, the Legislature gave additional, and even more explicit, guidance for the construction and application of the Act by declaring:

"This subchapter shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection." Texas Business and Commerce Code, Section 17.44.

The initial issue to be decided is whether there has been a violation of the Consumer Protection Act. The statute provides: "The provisions of this subchapter apply only to acts or practices occurring after the effective date (May 21, 1973) of this subchapter, . . . " (Section 17.63). In the instant case the jury found: (1) Thomson or Littleton, after May 21, 1973, told Woods the sewer system was in good working order; and (2) such statement was a deceptive practice. Although the sale which initiated the chain of events which led to the act complained of occurred prior to the effective date of the Act, that fact does not preclude recovery under the Consumer Protection Act for a deceptive practice occurring after the effective date of the Act, May 21, 1973. Two courts of civil appeals have already so held, and a third has indicated approval of these holdings.

In Town & Country Mobile Homes, Inc. v. Stiles, 543 S.W.2d 664 (Tex.Civ.App. El Paso 1976, no writ), Stiles purchased, on September 6, 1972, a mobile home manufactured by Town & Country. Stiles complained of numerous defects in the home and Town & Country sent a service representative to make repairs on two occasions; the last time on June 18, 1973. Town & Country's representative worked on a heat duct, installed an extra heat register in one bedroom, and repaired a leaking back door. On July 10, 1973 the service manager of Town & Country wrote Stiles and stated in part: "I hope you are liking your mobile home a lot better, now that you have it all fixed up." The court concluded that even though the mobile home was sold before the effective date of the Consumer Protection Act a cause of action existed under the Act, Section 17.46(b)(13), ⁴ because Town & Country made repairs after May 21, 1973 and

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also stated after May 21, 1973 that the mobile home was "all fixed up."

A similar result obtained in Crawford Chevrolet, Inc. v. McLarty, 519 S.W.2d 656 (Tex.Civ.App. Amarillo 1975, no writ). Prior to the effective date of the Act, on January 12, 1973, McLarty purchased an automobile from Crawford Chevrolet. The vehicle was ordered by Crawford Chevrolet from the manufacturer shortly thereafter. However, the vehicle did not arrive until July 9, 1973, or after the effective date of the Act. On that same day, July 9, 1973, McLarty was told by the owner of the dealership, Crawford, that the sales representative who sold the automobile to McLarty did not have authority to negotiate the final terms of the sale and demanded an additional $234.76 on the purchase price, which McLarty paid. The record was uncontradicted that the sales representative did have the authority to negotiate the final terms of the sale and the jury found that Crawford's statement to the contrary was a deceptive...