Opinion
No. 10-17-00046-CV
05-23-2018
APPLE-SPORT CHEVROLET, INC., Appellant v. ROBERT CHASE ROLSTON, Appellee
From the County Court Falls County, Texas
Trial Court No. C-850
MEMORANDUM OPINION
In three issues, appellant, Apple Sport Chevrolet, Inc. ("Apple"), challenges a judgment entered in favor of appellee, Robert Chase Rolston, for damages resulting from the repair of Rolston's pickup truck. Because we sustain Apple's complaints as to damages, we affirm, in part, and modify the judgment, in part, conditioned on a remittitur of $2,902.38.
I. BACKGROUND
Here, Rolston asserted a DTPA claim against Apple, claiming that he "sought services on or about July 26, 2014 by taking his 2007 Chevrolet pickup in for repairs," which were "not done properly causing the vehicle to be towed." In a DTPA-demand letter that was attached as an exhibit to his original petition, Rolston stated the following, in relevant part:
After you [Apple] represented to Mr. Rolston that his vehicle was ready for pick up on 7-29-14 and after driving approximately 7-10 miles the vehicle stopped and would not restart necessitating him incurring a tow bill of $125 and taking it to a diesel mechanic in Franklin, Texas.
My investigation in this matter reveals that this vehicle was taken to Garcia's Auto Repair on 7-25-14 and Mr. Garcia did not see any leaks on the fuel filter or the housing. The bill from Apple-Sport reports that there was leaking on the housing which was not true. Also Apple-Sport recommended replacing all of the injectors on the engine for a total of approximately $10,000, which was not true. Dwayne, the diesel mechanic at CBS in Franklin, Texas examined it and said the injectors were fine.
Apple-Sport Chevrolet has clearly misrepresented its repair bill and did not fix the problem after billing Mr. Rolston $706.31.
Demand is hereby made for the repayment of the repair bill of $706.31 plus $125 in towing fees. This notice if being sent under the Texas Deceptive Trade [Practices] Act for the knowing conduct of Apple-Sport Chevrolet in misrepresenting the bill and not properly repairing the vehicle in question.
In response to Rolston's original petition, Apple filed an answer, asserting numerous affirmative defenses. Apple also filed motions for summary judgment, which were denied. This case proceeded to a jury trial.
At the conclusion of the trial, the jury found that: (1) Apple engaged in unconscionable conduct that caused Rolston damages; and (2) Apple knowingly engaged in false, misleading or deceptive acts that Rolston relied on to his detriment and that was the producing cause of his damages. The jury awarded Rolston $706.31 in benefit-of-the-bargain damages, $75 in out-of-pocket damages, $50 in expenses, $250 in lost profits, $80 in lost time, $5,000 in exemplary damages, and $2,500 in attorney's fees. Subsequently, the trial court entered a final judgment reflecting the jury's findings, including a damages award of $8,661.31 against Apple.
Thereafter, Apple filed a motion for JNOV, which was denied by the trial court. Apple also filed a motion for new trial that was overruled by operation of law. See TEX. R. CIV. P. 329b(c). This appeal followed.
II. DTPA CLAIM
In its first issue, Apple challenges the jury's DTPA finding, arguing that this situation presented "the classic claim fracturing that has been barred by Texas courts." Apple further contends that: "When the real underlying duty is one to exercise ordinary care, an attempt to transform an alleged breach of duty into a deceptive trade practice is not permitted."
"'The rule against dividing or fracturing a negligence claim prevents legal-malpractice plaintiffs from opportunistically transforming a claim that sounds only in negligence into other claims.'" Riverwalk Cy Hotel Partners Ltd. v. Akin Gump Strauss Hauer & Feld, LLP, 391 S.W.3d 229, 236 (Tex. App.—San Antonio 2012, no pet.) (quoting Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.)); Won Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied) ("The anti-fracturing rule prevents plaintiffs from converting what are actually professional negligence claims against an attorney into other claims such as fraud, breach of contract, breach of fiduciary duty, or violations of the DTPA." (citing Beck v. Law Offices of Edwin J. (Ted) Terry, Jr, P.C., 284 S.W.3d 416, 426-27 (Tex. App.—Austin 2009, no pet.)). In the instant case, legal malpractice is not an issue. Furthermore, Apple does not cite to any relevant authority applying the claim-fracturing analysis to cases not involving legal malpractice.
In addition to the foregoing, Apple argues that the complained-of actions constitute professional opinions that are not deceptive acts, even if they turn out to be incorrect. Though the DTPA was designed 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," the Act provides an exemption from liability to those who render professional services when the essence of that service is based on providing advice, judgment, or opinion. TEX. BUS. & COM. CODE ANN. §§ 17.44, 17.49 (West 2011 & Supp. 2017). A professional service is one that arises "out of acts particular to the individual's specialized vocation." Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114, 122 (Tex. App.—San Antonio 2002, no pet.). "An act is not a professional service merely because it is performed by a professional; rather, it must be necessary for the professional to use his specialized knowledge or training." Id. This Court has adopted the Eastland Court of Appeals's characterization of professionals as those who engage in work involving mental or intellectual rather than physical labor; such work requires special education to be used on behalf of others; and the professional earns profits dependent mainly on these considerations. Retherford v. Castro, 378 S.W.3d 29, 34 (Tex. App.—Waco 2012, pet. denied) (citing Duncanville Diagnostic Ctr., Inc. v. Atlantic Lloyd's Ins. Co., 875 S.W.2d 788, 790 (Tex. App.—Eastland 1994, writ denied); Md. Cas. Co. v. Crazy Water Co., 160 S.W.2d 102, 104-05 (Tex. Civ. App.—Eastland 1942, no writ)). Apple does not direct us to evidence or authority demonstrating that the opinions of Apple's mechanics, who engage in physical labor, would satisfy the above-mentioned criteria for professional opinions. Accordingly, we are not persuaded by Apple's argument that this case merely involves a professional opinion that is exempt from the DTPA. As such, we reject Apple's challenge to the jury's DTPA finding and overrule Apple's first issue.
III. DAMAGES
In its second and third issues, Apple complains about the jury's damages awards contained in questions three and five of the jury charge. In its third issue, Apple contends that Rolston cannot recover both out-of-pocket and benefit-of-the-bargain damages in his DTPA action. To recover both would constitute an impermissible double recovery. Furthermore, in its second issue, Apple contends that the trial court's judgment erroneously awarded "exemplary damages" in excess of the statutory maximum under the DTPA. We agree with Apple in both issues.
Whether the trial court applied the proper measure of damages is a question of law, which we review de novo. Saulsberry v. Ross, 485 S.W.3d 35, 51 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (citing Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)). In question three of the charge, the jury awarded Rolston $706.31 as damages for the loss of the benefit of the bargain and $75 in damages for out-of-pocket expenses, among other things. Additionally, in question five of the charge, the jury awarded Rolston $5,000 in "exemplary damages." We first analyze the jury awards contained in question three of the charge.
The DTPA provides that a consumer may recover "economic damages," defined as "compensatory damages for pecuniary loss, including costs of repair or replacement." See TEX. BUS. & COM. CODE ANN. § 17.45(11) (West Supp. 2017); see also id. § 17.50(b)(1) (West 2011). However, under the damages scheme of the DTPA, a prevailing consumer cannot recover both out-of-pocket and benefit-of-the-bargain damages; rather, a prevailing consumer may recover either out-of-pocket or benefit-of-the-bargain damages, whichever is greater. Matheus v. Sasser, 164 S.W.3d 453, 459 (Tex. App.—Fort Worth 2005, no pet.) (citing W.O. Bankston Nissan v. Walters, 754 S.W.2d 127, 128 (Tex. 1988)); see Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997) (noting that, under the DTPA, a plaintiff may recover under the damage theory that provides the greater recovery). Because the jury impermissibly awarded Rolston both benefit-of-the-bargain and out-of-pocket damages for his DTPA claim, and because the benefit-of-the-bargain damages are the greater damage award, we conclude that the jury's out-of-pocket damage award of $75 constitutes an impermissible double recovery and, thus, lacks sufficient evidentiary support.
Next, we examine the jury's "exemplary damages" award of $5,000 contained in question five of the charge. In an action for a violation of the DTPA, the plaintiff cannot recover exemplary damages under Chapter 41. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.003(a)(1) (West 2015); TEX. BUS. & COM. CODE ANN. § 17.50(g); see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 304 n.6 (Tex. 2006). However, the DTPA authorizes the recovery of treble damages for conduct that was committed knowingly. TEX. BUS. & COM. CODE ANN. § 17.50(b)(1); see Bossier Chrysler-Dodge II, Inc. v. Riley, 221 S.W.3d 749, 759 (Tex. App.—Waco 2007, pet. denied) ("Therefore, a prevailing plaintiff who establishes that the defendant acted 'knowingly' can recover 'economic damages,' mental anguish damages, and additional damages of up to three times the amount of economic damages awarded.").
Here, Apple does not challenge the jury's finding of knowing conduct. Instead, it complains about the $5,000 "exemplary damage" award. However, to analyze this complaint, we must look at the jury's damages award in question three of the charge. As noted above, the $75 out-of-pocket damage award was improper and should be not considered when calculating treble damages. In any event, the jury's answers to question three are as follows, in relevant part:
• Loss of the benefit of the bargain: $706.31Apple does not challenge the aforementioned calculations of actual damages done by the jury. Moreover, the sum total of these damages (not including the $75 out-of-pocket damages from earlier) is $1,086.31. Furthermore, a trebling of these damages equates to $3,258.93—a figure that is significantly lower that the jury's $5,000 award. We therefore conclude that the jury's $5,000 "exemplary damages" award exceeds the statutory maximum and, thus, lacks evidentiary support.
• Expenses: $50
• Loss of use $0
• Lost profits $250
• Lost time $80
• Mental anguish $0
If we determine that a part of a damages award lacks sufficient evidentiary support, our proper course is to suggest a remittitur of that part of the damages. See Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex. 1987); see also Hannon, Inc. v. Scott, No. 02-10-00012-CV, 2011 Tex. App. LEXIS 3624, at *30 (Tex. App.—Fort Worth May 12, 2011, pet. denied) (mem. op.). The party prevailing in the trial court should be given the option of accepting the remittitur or having the cause remanded. See Larson, 730 S.W.2d at 641. Based on the foregoing, we suggest a remittitur of $2,902.38 from the $8,661.31 damages award contained in the final judgment. This remittitur figure is derived from the following:
$8,661.31 (damage award from the final judgment)We therefore sustain Apple's second and third issues.
- $1,086.31 (actual damages after the $75 out-of-pocket damages are subtracted)
- $2,172.62 (when added to Rolston's actual damages provides for the trebling of his economic damages)
- $2,500 (attorney's fees)
$2,902.38 (remittitur).
In his brief, Rolston suggests that he should be awarded his actual damages, plus the trebling of his actual damages. However, such an award would amount to a quadrupling of Rolston's actual damages, which would violate the DTPA's damages scheme. See TEX. BUS. & COM. CODE ANN. § 17.50(b)(1) (West 2011) ("If the trier of fact finds that the conduct of the defendant was committed knowingly . . . the trier of fact may award not more than three times the amount of economic damages . . . ."); see also Dal-Chrome Co. v. Brenntag Sw., Inc., 183 S.W.3d 133, 144 (Tex. App.—Dallas 2006, no pet.) ("Dal-Chrome agrees that the trial court may not award both actual damages plus three times actual damages.").
IV. CONCLUSION
In accordance with Texas Rule of Appellate Procedure 46.3, we suggest a remittitur in the amount of $2,902.38. See TEX. R. APP. P. 46.3; see also Hannon, Inc., 2011 Tex. App. LEXIS 3624, at *31 (citing Mahon v. Caldwell, Haddad, Skaggs, Inc., 783 S.W.2d 769, 772 (Tex. Civ. App.—Fort Worth 1990 no writ)). If Rolston files in this Court within fifteen days of this memorandum opinion, a remittitur of $2,902.38, then our subsequent judgment will modify the trial court's judgment in accordance with the remittitur and, as modified, affirm that judgment in favor of Rolston. See Mahon, 783 S.W.2d at 772; see also Hannon, Inc., 2011 Tex. App. LEXIS 3624, at *31. If the suggested remittitur is not filed, we will reverse the trial court's judgment and remand this entire cause to the trial court for a new trial. See Guevara v. Ferrer, 247 S.W.3d 662, 670 (Tex. 2007); see also Downing v. Burns, 348 S.W.3d 415, 427-28 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that a separate trial on unliquidated damages cannot be ordered when liability is contested (citing TEX. R. APP. P. 44.1(b))).
AL SCOGGINS
Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins
Affirmed, in part, modified, in part, conditioned on remittitur
Opinion delivered and filed May 23, 2018
[CV06]