Opinion
NUMBER 13-16-00497-CV
02-01-2018
MELISSA GALLEGOS, Appellant, v. RAUL QUINTERO D/B/A JR'S MOTORS, Appellee.
On appeal from the County Court at Law No. 1 of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Longoria, and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant Melissa Gallegos filed suit against appellee Raul Quintero d/b/a JR's Motors (Quintero) for violations of the Texas Deceptive Trade Practices—Consumer Protection Act (DTPA) and for breach of contract related to the purchase of a vehicle. Gallegos argues on appeal that the trial court erred by: (1) finding that Quintero substantially performed; (2) failing to award her attorney's fees; and (3) failing to grant her relief on her DTPA claim. We affirm in part and reverse and remand in part.
I. BACKGROUND
Gallegos bought a Chevrolet Lumina from Quintero. However, she returned the Lumina and received a credit of $700. Gallegos originally wanted to purchase a Jeep Cherokee, but Quintero did not have one in stock. On December 9, 2011, Gallegos applied her $700 credit toward the purchase of a used 1996 Saturn. Gallegos claims she purchased the Saturn with the understanding that she would be able to trade it in later for a Jeep Cherokee. Quintero acknowledges on appeal that the agreement between the parties was "poorly drafted and confusing." Nothing in the written contract required for Gallegos to pay any taxes on the Saturn. Gallegos testified that she believed the $2,155 sales price for the Saturn included taxes; in total, Gallegos paid Quintero $2,200. When Gallegos asked Quintero about the title for the vehicle, he informed Gallegos that he can't give her title because only the State can do that once taxes were paid and the registration complete. Without the title, Gallegos could not receive license plates and could not legally operate the vehicle. According to Quintero, the parties allegedly made an oral agreement in which Gallegos agreed to pay the taxes on the Saturn. Gallegos claims that she was never told what amount of taxes to pay.
In July of 2012, Gallegos filed suit against Quintero, alleging several violations of the DTPA. In 2016, Gallegos filed for a trial amendment to add a claim for breach of contract and attorney's fees. The trial court allowed the amendment. A bench trial was held, and the trial court determined that there was no evidence of a DTPA claim, both parties substantially performed under the contract, and Quintero breached the contract. The trial court ordered that Quintero pay the costs to cover the taxes, title, and registration of the vehicle. Further, the trial court held that attorney's fees would be "borne by the person who incurred them." This appeal ensued.
II. DISCUSSION
In five issues, which we renumber as three, Gallegos argues that: (1) the trial court erred by finding that Quintero substantially performed under the contract; (2) the trial court was required to award her attorney's fees because she was the prevailing party; and (3) the great weight and preponderance of the evidence established her DTPA claim.
A. Substantial Performance
Substantial performance means
that there has been no willful departure from the terms of the agreement and no omission in essential points and that the agreement has been honestly and faithfully performed in its material and substantial particulars and the only variance from the strict and literal performance consists of technical or unimportant omissions or details.Patel v. Ambassador Drycleaning Co., Inc., 86 S.W.3d 304, 307 (Tex. App.—Eastland 2002, no pet.) (quoting Balcones Corp. v. Sutherland, 318 S.W.2d 691, 694 (Tex. Civ. App.—San Antonio 1958, writ ref'd n.r.e.)). A conclusion of substantial performance is a finding of fact. Smith v. Smith, 112 S.W.3d 275, 279 (Tex. App.—Corpus Christi 2003, pet. denied). When challenged, a trial court's factual findings are "reviewed for legal and factual sufficiency of the evidence by the same standards applied when reviewing evidence supporting jury findings." Id. at 280. A no-evidence challenge fails if there is more than a scintilla of evidence to support the finding. Id. A factual sufficiency challenge succeeds only if the "challenged findings shock the conscience, clearly demonstrate bias, or are so against the great weight and preponderance of the evidence as to be manifestly unjust." Pagel v. Whatley, 82 S.W.3d 571, 574 (Tex. App.—Corpus Christi 2002, pet. denied).
Gallegos first argues that it was an error for the trial court to find that Quintero substantially performed under the contract because Quintero never pled substantial performance. We agree with Gallegos in that Quintero never pled, and thus waived, substantial performance as a counterclaim. See Smith, 112 S.W.3d at 280. However, substantial performance can also be raised as an affirmative defense. Id. Gallegos specifically argues that substantial performance is not an available defense to her DTPA claim, but she never asserts that Quintero failed to plead substantial performance as a defense to the breach of contract claim or that substantial performance was not tried by consent as an affirmative defense. Thus, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, this argument has been inadequately briefed. See TEX. R. APP. P. 38.1(h); see also Smith, 112 S.W.3d at 280 (holding that appellant's argument that appellee failed to plead substantial performance was inadequately briefed because appellant addressed substantial performance as a counterclaim but failed to address it as an affirmative defense).
Gallegos continues by arguing that even if Quintero is entitled to a substantial performance counterclaim or defense, there is either no evidence or insufficient evidence to support the trial court's finding that Quintero substantially performed. Gallegos claims that because Quintero refused to pay taxes on the car and deliver the title, the car was "essentially worthless to her" because she could not legally drive the car without license plates. Thus, Gallegos argues that she was denied the main purpose of the contract itself: owning a vehicle that she can legally drive. However, as Gallegos concedes, the contract itself made no mention of who would pay taxes on the car. Instead, the contract primarily considered the transfer of physical possession of the vehicle from Quintero to Gallegos. Gallegos admits that she has been in possession of the car for over six years. We conclude that this is more than a scintilla of evidence that Quintero fulfilled the essential terms of the contract; thus, the evidence was legally sufficient to support the trial court's finding that Quintero substantially performed. See Smith, 112 S.W.3d at 279.
Likewise, we will only set aside the verdict under a factual sufficiency challenge if the trial court's findings shock the conscience or are so against the great weight of the evidence as to be manifestly unjust. See Pagel, 82 S.W.3d at 574. The trial court could have concluded that delivering the vehicle to Gallegos was the essential component of the contract and that paying the taxes and delivering title were just "technical" details. Patel, 86 S.W.3d at 307. Viewing all the evidence, we conclude that there was factually sufficient evidence for the trial court to find that Quintero substantially performed under the contract. See Pagel, 82 S.W.3d at 574; see also. We overrule Gallegos's first issue.
B. Attorney's Fees
In her second issue, Gallegos claims that the trial court was required to award her attorney's fees because: (1) she was the prevailing party; (2) Quintero did not controvert her evidence that the attorney's fees were reasonable and necessary; and (3) Gallegos satisfied all the requirements to recover attorney's fees.
Section 38.001 of the Texas Civil Practice and Remedies Code provides that a person may recover reasonable attorney's fees in addition to damages if the claim is for an oral or written contract. TEX. CIV. PRAC. & REM. CODE § 38.001 (West, Westlaw through 2017 1st C.S.). "The awarding of fees under section 38.001 is mandatory if there is proof of the reasonableness of the fees." Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 775 (Tex. App.—Corpus Christi 2007, no pet.). We review a trial court's award or denial of attorney's fees for an abuse of discretion. See id.
Gallegos presented evidence at trial that the reasonable attorney's fees in this case was $5,723.88; Quintero did not challenge this amount as unreasonable or present any evidence in regard to the attorney's fees. In response, Quintero argues that the trial court did not award Gallegos attorney's fees because she failed to segregate the fees between those related to her DTPA claim and those related to her breach of contract claim. However, the trial court never made any such comment; looking at the record, we find zero evidence that the trial court refused to grant attorney's fees because Gallegos failed to segregate them. The trial court merely stated that attorney's fees would be "borne by the person who incurred them."
However, Quintero additionally contends that Gallegos waived any error by failing to object to the trial court's refusal to award attorney's fees. We disagree. By requesting attorney's fees below, Gallegos preserved error on the matter, despite failing to object to the trial court's denial of said request. See TEX. R. APP. P. 33.1; see also Ramchandani v. Jimenez, 314 S.W.3d 148, 154 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that appellant preserved error on her complaint that the trial court erred in denying her request for attorney's fee simply by making a request for attorney's fees to the trial court); Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 55 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (same). The record reflects that Gallegos met the elements of section of the Texas Civil Practice and Remedies Code 38.001 and that she provided unrefuted evidence that her attorney's fees were necessary and reasonable. Thus, it was an abuse of discretion to entirely refuse to grant attorney's fees. See Mercier, 214 S.W.3d at 775 ("The trial court has discretion to fix the amount of attorney's fees, but does not have discretion to deny attorney's fees entirely if they are proper."). We sustain Gallegos's second issue.
C. DTPA Claim
In her third issue, Gallegos argues that the trial court erred in finding that there was insufficient evidence to support her DTPA claim. Gallegos insists that the great weight and preponderance of the evidence establishes that Quintero violated the DTPA by "taking advantage of Ms. Gallegos, causing Ms. Gallegos to pay for a car she could not legally drive and had no value to her." Gallegos further claims that the trial court's admonishment of Quintero provides more evidence for her DTPA claim; the trial court labeled the manner in which Quintero handled this entire transaction as "bad business." As Gallegos correctly points out, a plaintiff in a DTPA claim must establish that: (1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts; and (3) the deceptive acts constituted a producing cause of the consumer's damage. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995); TEX. BUS. & COM. CODE ANN. § 17.46(b) (West, Westlaw through 2017 1st C.S.). However, Quintero argues that a DTPA action is inappropriate in this case and further that there is no evidence to support a DTPA claim. We agree with Quintero.
"An allegation of a mere breach of contract, without more, does not constitute a 'false, misleading or deceptive act' in violation of the DTPA." Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14 (Tex. 1996) (quoting Ashford Dev., Inc. v. USLife Real Estate Servs., 661 S.W.2d 933, 935 (Tex. 1983)). Gallegos's main contention is that Quintero misrepresented to her that he would deliver title once she paid for the vehicle in full. But as the supreme court held in Crawford, a misrepresentation that is based on nothing more than a failure to perform a contractual promise cannot be the basis for a DTPA claim. See id. More importantly, even though Gallegos contends vaguely that Quintero committed deceptive trade practices and "took advantage" of her, she does not actually allege that Quintero committed any specific act within the DTPA's "laundry list" of violations. See TEX. BUS. & COM. CODE ANN. § 17.46(b). Therefore, we conclude that the trial court did not err in denying Gallegos relief on her DTPA claim. See Crawford, 917 S.W.2d at 14. We overrule Gallegos's third issue.
D. Summary
We overrule Gallegos's first and third issues, but we sustain her second issue on attorney's fees. Because the reasonableness of attorney's fees is a fact question that must be determined by the trier of fact and because a claim for attorney's fees is severable, we have discretion to reverse and remand in part concerning attorney's fees. See Elliott, 118 S.W.3d at 59.
III. CONCLUSION
We reverse the trial court's judgment in part and remand to the trial court to determine the amount of attorney's fees to which Gallegos is entitled. We affirm the remainder of the trial court's judgment.
NORA LONGORIA
Justice Delivered and filed the 1st day of February, 2018.