Opinion
No. 14-03-01287-CV
Opinion filed October 13, 2005.
On Appeal from the 11th District Court, Harris County, Texas, Trial Court Cause No. 02-17946.
Affirmed.
Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
Hong Huang, Latonia Calamease, Isaak Golbraykh, Zhi Yuan Liu, Juan Ramon Mejia, Lie Kai Pon, Yan Fen Xian, Guoyue Yu, Jing Yan Zhou, Chi-Chih Tsa, Jian-Feng Li, and Chiu K. Lee appeal a take nothing judgment in favor of Don McGill Toyota. In four issues, appellants contend (1) they presented sufficient evidence of fraud, deceptive trade practices, and damages, and (2) the evidence is legally and factually insufficient to show Golbraykh and Mejia's claims are barred by accord and satisfaction. We affirm.
Latonia Calamease filed a separate notice of appeal, but her name does not appear on appellant's brief. Because no brief was filed on her behalf, her appeal is dismissed for want of prosecution. See TEX. R. APP. P. 42.3(b).
I. FACTUAL AND PROCEDURAL BACKGROUND
Lured by an advertisement for zero percent interest, each of the appellants, except Latonia Calamease, went to Don McGill Toyota seeking to purchase a vehicle. Each appellant negotiated with a salesperson through a translator, if necessary, and signed lease documents for a Toyota vehicle. Appellants testified at trial that they intended to purchase a vehicle and were led to believe they were purchasing a vehicle. When appellants discovered the agreements they signed were lease agreements as opposed to purchase agreements, they went back to Don McGill Toyota and complained. Some appellants testified they were told they had purchased the vehicle, but the lease agreement was necessary to obtain zero percent interest. One appellant, Isaak Golbraykh, returned to Don McGill Toyota, rescinded his lease agreement, and entered into a purchase agreement. Another appellant, Juan Ramon Mejia, returned the used vehicle he originally leased and entered into another lease agreement for a new vehicle. All appellants testified they still own the vehicles leased or purchased from Don McGill Toyota.
Appellants filed suit against Don McGill Toyota alleging, among other things, fraud in the inducement, and violations of the Texas Deceptive Trade Practices Act (DTPA). See TEX. BUS. COM. CODE ANN. § 17.01 et. seq. Appellants sought damages for out-of-pocket expenses, including, but not limited to cash payment, cost of insurance, and attorney's fees, and the loss of the benefit of the bargain. Trial was to the court. At the conclusion of appellants' evidence, appellee moved for an "instructed verdict" because appellants had failed to prove appellee's action caused them any damage. The trial judge granted the motion and entered judgment that appellants take nothing.
II. LIABILITY AND DAMAGES
In their first issue, appellants contend the trial court erred in entering judgment for appellee because there was sufficient evidence before the court of fraud and/or deceptive trade practices. In their second issue, appellants contend they presented sufficient evidence of damages.
A. Standard of Review
A directed verdict is proper in the following circumstances: (1) a defect in the opponent's pleadings makes the pleadings insufficient to support a judgment, (2) the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law, or (3) the evidence offered on a cause of action is insufficient to raise an issue of fact. Sherman v. Elkowitz, 130 S.W.3d 316, 319 (Tex.App.-Houston [14th Dist.] 2004, no pet.). When reviewing a directed verdict, we must decide whether there is any evidence of probative value to raise an issue of fact on the material questions presented. Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 304 (Tex. 1988). If there is any conflicting evidence of probative value on any theory of recovery, a directed verdict is improper and the case must be reversed and remanded for the jury's determination of that issue. Szczepanik v. First Southern Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). We must consider all the evidence in a light most favorable to the party against whom the verdict was instructed, disregarding all contrary evidence and inferences, and give the losing party the benefit of all reasonable inferences created by the evidence. Id. B. Proof of Damages
To recover either under the DTPA, or for fraud in the inducement, appellants must show they suffered some harm that was caused by appellee. See TEX. BUS. COM. CODE ANN. § 17.50(b)(1) and Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). The record reflects the trial court granted the motion for instructed verdict on the ground that appellants failed to produce evidence of damages caused by appellee.
The amount of actual damage recoverable under the DTPA is the total loss sustained by the consumer as a result of the deceptive trade practice. Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d 812, 816 (Tex. 1997); Henry S. Miller Co. v. Bynum, 836 S.W.2d 160, 162 (Tex. 1992). While the DTPA does not define "actual damages," the term has been construed to mean common law damages. W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex. 1988). Appellants alleged they were deceived by a fraudulent misrepresentation. The common law affords two measures of damages for fraudulent misrepresentation: (1) the out-of-pocket measure, which is the difference between the value of that which was parted with and the value of that which was received, and (2) the benefit-of-the-bargain measure, which is the difference between the value represented and the value actually received. Formosa Plastics, 960 S.W.2d at 49. A plaintiff may recover either the out-of-pocket or the benefit-of-the-bargain damages, whichever is greater. Arthur Andersen, 945 S.W.2d at 817. To recover common law damages, the consumer must show proof of the difference in value between that which the plaintiff parted with and that which he received. Waterloo Leasing Co. v. McNatt, 620 S.W.2d 194, 199 (Tex.Civ.App.-Waco 1981, no writ).
In this case, appellants presented no evidence of the difference in value between that which appellants parted with, the lease payments, and that which they received, the vehicles. Appellants' complaint is that they were duped into leasing a car instead of purchasing a car. They presented no evidence as to how they were injured by this deception. Appellants testified they suffered no out-of-pocket damages other than the payments they agreed to make and regular maintenance on the vehicles. Further, appellants received their benefit of the bargain. They presented no evidence as to how they were injured by entering into lease agreements as opposed to purchase agreements. Appellants did not seek to void the agreements, nor, with the exception of Isaak Golbraykh, did they attempt to return the vehicles and enter into purchasing agreements.
Viewing the evidence in a light most favorable to appellants and giving them the benefit of all reasonable inferences that may be drawn from that evidence, we find no evidence of any damages. Appellants' second issue is overruled. Our disposition of appellants' second issue pretermits a discussion of their first issue. Even if this court found sufficient evidence of liability, appellants would not be entitled to recover damages.
III. ACCORD AND SATISFACTION
In their third and fourth issues, appellants contend the evidence was legally and factually insufficient to support the trial court's finding that Golbraykh's and Mejia's claims were barred by accord and satisfaction. When Isaak Golbraykh first discovered he had mistakenly leased a vehicle from Don McGill Toyota, he returned to the dealership and executed a sales agreement for the same vehicle. Several weeks after Juan Mejia leased a used vehicle from Don McGill Toyota, a salesperson from the dealership called him and told him he could lease a new vehicle for the same monthly payment as the used vehicle. Mejia returned the first vehicle to Don McGill Toyota and executed a second lease agreement. In its conclusions of law, the trial court found Golbraykh's and Mejia's claims were barred by accord and satisfaction.
The defense of accord and satisfaction rests on a contract in which the parties agree to the discharge of an existing obligation by means of a subsequent payment tendered and accepted. Lopez v. Munoz, Hockema Reed, L.L.P., 22 S.W.3d 857, 865 (Tex. 2000). Appellee contended at trial that by executing a second agreement, Golbraykh and Mejia satisfied their dispute with the dealership. For the accord and satisfaction defense to prevail, there must be evidence that there was a dispute between the parties and they specifically and intentionally agreed to discharge the party's obligations. Id.
With regard to Golbraykh, it appears appellee met that burden. When Golbraykh discovered he had signed a lease agreement, he was dissatisfied and returned to the dealership to execute a sales agreement. Therefore, Golbraykh's execution of the sales agreement constituted an accord, which was satisfied when appellee paid off the lease agreement prior to execution of the sales agreement. Golbraykh made no complaint about the purchase agreement.
With regard to Mejia, appellee has not proved the defense of accord and satisfaction. When Mejia returned the first vehicle, he executed another lease agreement on a second vehicle. Mejia claimed at trial he was duped into executing a lease agreement in both transactions. Therefore, the second agreement did not constitute and accord and satisfaction. The failure of the accord and satisfaction defense, however, does not require reversal of the trial court's judgment. Mejia also failed to produce evidence of any damages resulting from the lease of the second vehicle. Because neither Golbraykh, nor Mejia, produced evidence of damages, the trial court did not err in entering the take nothing judgment. Appellants' third and fourth issues are overruled.
The judgment of the trial court is affirmed.