Summary
recognizing that "Rutherford's [i.e., the shareholder's] use of the Atwood funds allowed Triad [i.e. Rutherford's company] to pay personnel and suppliers on other jobs, to offset overdrafts on Triad's NationsBank account, and to continue to do business on other jobs . . ." but concluding nonetheless that such ". . . evidence fails to show that Rutherford's draws from Triad's account either related to the transaction at issue, i.e., the remodeling contract between Triad and the Atwoods, or were primarily for Rutherford's direct personal benefit."
Summary of this case from Morgan v. FullerOpinion
No. 01-00-00113-CV.
Opinion Delivered August 29, 2003.
Appeal from the County Civil Court at Law Number 2, Harris County, Texas, Trial Court Cause No. 681,538.
For Appellant: Robert D. Green, Robert D. Green Assoc., P.C., 440 Louisiana Street, Suite 1600, Houston, TX 77002.
For Appellee: Eric Lipper, Hirsch Westheimer, P.C., 700 Louisiana, 25th Floor, Houston, TX 77002.
James Michael Andersen, P.O. Tox 58554, Webster, TX 77598-8554.
Daniel Kistler, 4151 Southwest Frwy, Suite 420, Houton, TX 77027.
MEMORANDUM OPINION
James Rutherford, the individual defendant, and Ronald and Dana Atwood ("the Atwoods"), the plaintiffs, both appeal the plaintiff's judgment for damages and attorney's fees arising from an uncompleted home restoration and remodeling job. The trial court entered a joint and several liability judgment against Rutherford, individually, and Triad Home Renovators, Inc. ("Triad"), in favor of the Atwoods upon jury findings of fraud, DTPA violations, and negligence. Rutherford, Triad's sole officer, director, and stockholder, appeals the judgment against himself, individually. The Atwoods appeal the trial court's refusal to enter judgment for all the damages awarded them in answers to jury questions. We reverse in part, affirm in part, and remand to the trial court.
BACKGROUND
On May 22, 1995, the Atwoods' home was rendered uninhabitable by a fire. The next morning, Keith Boeman and Dale Pond approached the Atwoods, introduced themselves as representatives of Triad, made a remodeling contract proposal, and convinced the Atwoods to hire Triad to restore their damaged home. Triad was a residential and commercial construction business, and a majority of its work at that time was fire restoration.
This surname appears in other documents than the Reporter's Record as "Bauman" or "Bowman."
Boeman and Pond represented to the Atwoods that Triad's payment would come entirely from the Atwoods insurance proceeds; that the Atwoods would have no out-of-pocket expenses; and that Triad would receive payment in three equal installments at the start of the project, during the reconstruction of the home, and when the project was complete. Boeman also represented that Triad's payments would be made by draws from an escrow account that would be created for the Atwoods' insurance proceeds at the Atwoods' mortgage company. The Atwoods signed the contract, and Boeman and Pond signed for Triad. The Atwoods and their insurance company came to an agreement that the Atwoods would receive about $84,000. Because the Atwoods' home was subject to a mortgage lien held by NationsBank Mortgage Corporation ("NationsBank Mortgage"), the Atwoods' insurance carrier made the insurance proceeds payable to both Ronald Atwood and NationsBank Mortgage.
No reference to an escrow account appears in the prepared written contract Boeman presented to the Atwoods and that Boeman, Pond, and the Atwoods signed.
The insurance company withheld $21,000 in a depreciation hold-back to ensure that the work was done to all parties' satisfaction. In order to receive the $21,000, the work was required to be completed in 365 days, with a 180-day extension if requested.
The insurance carrier issued four checks at intervals; each was endorsed by Ronald Atwood and Kenneth Scudder, a NationsBank officer acting for its wholly-owned subsidiary, NationsBank Mortgage. Because of an agreement between NationsBank and its subsidiary, Scudder was authorized as a bank officer to endorse the mortgage company's checks. After Atwood and Scudder endorsed the insurance checks, Scudder authorized their deposit directly into Triad's business account. No escrow account was ever established for the Atwoods' insurance proceeds. Ronald Atwood testified that when he endorsed each check, he relied upon Boeman's representation that the funds were going into a NationsBank Mortgage escrow account, and that he would not have endorsed the checks if he had known they were being deposited directly into Triad's account.
Initially, the Atwoods were pleased with the progress of the reconstruction. This included additional, non-insurance funded work on a sun-room addition and an extension to the house, which the Atwoods requested and negotiated directly with Rutherford, and for which they paid Triad $14,500 of their own funds up front. However, by October 1995, work had come to a stand-still. At one point during the work delay, Rutherford explained to the Atwoods that he was waiting for a check from the mortgage company's escrow account in order to purchase brick. In December 1995, Dana Atwood, frustrated by the delays and slow progress, telephoned NationsBank Mortgage and learned that no escrow account existed. When she confronted Rutherford about it, he told her that NationsBank Mortgage had failed to set up the escrow account, and that Triad had run out of money and could not finish the Atwoods' house.
In December 1995, after terminating Triad, the Atwoods used their own funds to hire workmen and purchase materials and fixtures to make the unfinished house minimally habitable. The Atwoods were forced to move back into their unfinished house at the beginning of 1996, when their insurance carrier's housing allowance to them was exhausted. Without funds to hire a new contractor, they were unable to finish the renovation, and the entire $21,000 of the insurance depreciation hold-back was forfeited because the work was not completed in the allotted time.
The Atwoods sued Triad, Rutherford individually, and NationsBank. NationsBank obtained a take-nothing summary judgment and is not a party to this appeal. The Atwoods proceeded to jury trial against Triad and Rutherford. The jury answered questions finding that both Rutherford and Triad: (1) committed fraud against the Atwoods (Question One); (2) engaged in DTPA violations that were a producing cause of damages to the Atwoods (Questions Six and Seven); (3) did so knowingly (Question Nine); and (4) negligently and proximately caused damages to the Atwoods (Questions 10 and 11). The jury awarded the Atwoods attorney's fees of $45,333 for the trial, $15,000 in the event of appeal to the court of appeals, and $15,000 in the event of appeal to the Texas Supreme Court (Question 15). Lastly, the jury found that Rutherford was responsible for Triad's conduct. (Question 16).
Rutherford urges three issues on appeal; Triad, in bankruptcy, does not appeal. The Atwoods assert a single issue on their appeal.
I. RUTHERFORD'S APPEAL — ANALYSIS
A. Sufficiency of the Evidence
In his first issue, Rutherford asserts the trial court erred in entering a judgment against him in his individual capacity, because the evidence was legally and factually insufficient to support the jury's answers finding him responsible for Triad's conduct and individually liable for fraud, DTPA violation, and negligence.
In deciding legal sufficiency points, we consider only the evidence tending to support the finding of fact and disregard all evidence and inferences to the contrary. Mancorp, Inc. v. Culpepper , 802 S.W.2d 226, 232 (Tex. 1990). When we review factual sufficiency points, we weigh all the evidence and set aside the jury's verdict only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996). When both legal and factual sufficiency points are raised, we must first examine the legal sufficiency point. Glover v. Tex. Gen. Indem. Co. , 619 S.W.2d 400, 401 (Tex. 1981).
1. Piercing the Corporate Veil
The jury's answer to question 16 found that Rutherford was responsible for Triad's conduct. Question 16 reads, in pertinent part:
Is Rutherford responsible for the conduct of Triad?
In deciding whether there was such unity between Triad and Rutherford that the separateness of Triad had ceased, you are to consider the total dealings of Triad and Rutherford, including:
1.the degree to which Triad's property had been kept separate from that of Rutherford;
2.the amount of financial interest, ownership, and control Rutherford maintained over Triad; and
3.whether Triad had been used for the personal purposes of Rutherford, or that Rutherford used Triad for the purpose of perpetrating and did perpetrate an actual fraud on the Atwoods primarily for the direct personal benefit of Rutherford.
In deciding whether Rutherford caused Triad to be used for the purpose of perpetrating a fraud on the Atwoods for his direct personal benefit, you must find that Rutherford committed the fraud in relation to the damages that Triad caused to the Atwoods and that Rutherford directly benefitted from these fraudulent acts.
Article 2.21A(2) of the Business Corporation Act, concerning liability of shareholders with respect to a corporation's obligations, places severe restrictions on a claimant/obligee's ability to pierce corporate protection of stockholders. Article 2.21(A)(2) reads in pertinent part:
Tex. Bus. Corp. Act Ann. art. 2.21(A)(2) (Vernon Supp. 2003).
A. A holder of shares . . . of the corporation shall be under no obligation to the corporation or its obligees with respect to:
* * *
(2)any contractual obligation of the corporation . . . on the basis that the holder . . . is or was the alter ego of the corporation, or on the basis of actual fraud or constructive fraud, a sham to perpetrate a fraud, or other similar theory, unless the obligee demonstrates that the [share] holder . . . caused the corporation to be used for the purpose of perpetrating and did perpetrate an actual fraud on the obligee primarily for the direct personal benefit of the [share] holder. . . .
Under the jury charge given, the Atwoods were required to prove that Rutherford: (1) caused Triad to be used for the purpose of perpetrating an actual fraud on them; (2) did perpetrate an actual fraud on them; and (3) did so primarily for his own direct personal benefit.
Was Rutherford's conduct "primarily for [his own] direct personal benefit"?
Rutherford asserts that, assuming arguendo his personal conduct constituted actual fraud on the Atwoods, article 2.21(A)(2) shields him as a corporate shareholder because the evidence does not show that such fraud was perpetrated "primarily for the direct personal benefit of the [share]holder," Rutherford. We agree. Boeman, testifying for the Atwoods, stated that at the time he obtained the Atwood contract for Triad, Triad was working on 18 other renovation/remodeling contracts, using four or five superintendents. Evidence undisputedly showed that Rutherford was the only person with authority to issue checks for Triad; that he took no regular draw; that he drew money from Triad's corporate bank account when he needed it for personal matters such as car payments, his personal home mortgage, or investments; and that he issued corporate checks to his wife, although she rendered no services to Triad. The Atwoods urge that Rutherford's draws for his own personal and family use constitute the sort of fraud for his direct personal benefit that article 2.21(A)(2) proscribes. Menetti v. Chaver s was a suit by homeowners for faulty repairs against an incorporated home repair company and the husband and wife who were the corporation's sole shareholders. 974 S.W.2d 168 (Tex.App.-San Antonio 1998, no pet.). The court of appeals found, as a matter of law, that the alleged misrepresentations to the homeowners that were the basis of the suit were not false, and were, therefore, insufficient to support a finding of actual fraud necessary to pierce the corporate veil. Id. at 174-75. Although dicta to its decision, Menetti states the rule as to the required direct personal benefit: "Evidence that the Menettis bought their groceries or paid their credit card bills from the corporate account is insufficient [to show that they personally benefitted from any misrepresentations], because the fraud must relate to the transaction at issue , the contract between the Menettis and the Chavers." Id. at 175. (Emphasis added.) By contrast with Menetti and the case before us, Farr v. Sun World Sav. Ass'n , 810 S.W.2d 294 (Tex.App.-El Paso 1991, no pet.), illustrates the required fraud that "must relate to the transaction at issue." Farr, a mortgage company's principal shareholder and president, fraudulently retained a pledged promissory note from SunWorld, the secured party, promising to return or repay the note in full within an agreed time. Id. at 295. Farr sold the note and deposited the proceeds into his mortgage company's general account. Instead of paying off the note, Farr applied the proceeds to the corporation's and his own indebtedness. Id. The El Paso Court of Appeals held: Farr used company funds for his own personal benefit when he paid on his personal stock purchase loans. This supports the lower court's finding of alter ego . . ., and supplies the direct personal benefit element of shareholder liability under Article 2.21(A)(2). Id . at 298.
The misused funds related to the transaction at issue because Farr's agreement with SunWorld was that the proceeds from the sale of the note, if it was sold rather than returned, would be paid to SunWorld. In the case before us, there is no evidence Rutherford's personal draws related to the contract between Triad and the Atwoods.
Further, no evidence traces or times Rutherford's draws to the Atwood deposits to show that the Atwood funds were used primarily for Rutherford's direct personal benefit. Triad essentially used the overdraft mechanism as a line of credit at NationsBank. Rutherford's use of the Atwood funds allowed Triad to pay personnel and suppliers on other jobs, to offset overdrafts on Triad's NationsBank account, and to continue to do business on other jobs until NationsBank fired Scudder and "froze" Triad's and Rutherford's accounts.
The evidence fails to show that Rutherford's draws from Triad's account either (1) related to the transaction at issue, i.e., the remodeling contract between Triad and the Atwoods, or (2) were primarily for Rutherford's direct personal benefit. The evidence is, therefore, legally insufficient to pierce the corporate veil and make Rutherford responsible for Triad's conduct, as the jury found in its answer to Question 16. Accordingly, we sustain that portion of Rutherford's first issue complaining that the court erred in entering a judgment against him jointly and severally with Triad.
2. Rutherford's individual liability
Rutherford next urges in his first issue that there is no legally or factually sufficient evidence to support the jury answers to questions regarding his individual liability for fraud, DTPA violations, and negligence.
(a) Fraud
The jury found in answer to Question One that Rutherford committed fraud against the Atwoods. Question One defined "fraud" to the jury as follows:
Fraud occurs when —
a. A party makes a material misrepresentation,
b. the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion,
c. the misrepresentation is made with the intention that it should be acted on by the other party, and
d. the other party acts in reliance on the misrepresentation and thereby suffers injury.
"Misrepresentation" means:
a. A false statement of fact, or,
b. A promise of future performance made with an intent not to perform as promised, or,
c. A statement of opinion based on a false statement of fact, or and
d. An expression of opinion that is false, made by one claiming or implying to have special knowledge of the subject matter of the opinion.
"Special knowledge" means knowledge or information superior to that possessed by the other party and to which the other party did not have equal access.
Ins. Co. of N. Am. v. Morris , 981 S.W.2d 667, 674 (Tex. 1998).
All of the representations made to and relied upon by the Atwoods concerning the creation of an escrow account were spoken by Boeman. However, Boeman testified that he made the representations at Rutherford's direction.
To prove an action for common-law fraud, or fraudulent misrepresentation, a plaintiff must prove that the defendant made a false representation either directly or indirectly. Neuhaus v. Kain , 557 S.W.2d 125, 138 (Tex.App.-Corpus Christi 1977, writ ref'd). A defendant commits fraud indirectly when he makes a false representation to a third party with the intent that it be repeated to deceive the plaintiff. Atl. Richfield Co. v. Misty Products, Inc., 820 S.W.2d 414, 418 (Tex.App.-Houston [14th Dist.] 1991, writ denied); O'Connor's Texas Causes of Action (2001-02) Fraud Common-Law Fraud, pp. 189-91.
Boeman testified that, although he had no specific conversation with Rutherford about the Atwood contract before he went to Atwood's home to solicit the contract, Rutherford had told him earlier to tell every prospective customer that insurance proceeds would go directly into a mortgage company escrow account. Boeman was present when Rutherford met with the Atwoods at their home in December 1995, and heard Rutherford tell them that the failure to establish an escrow account was a mistake on NationsBank part, and that the insurance checks should have been deposited into an escrow account. Boeman testified that Rutherford's statement was false; that Rutherford knew that the Atwood insurance funds had gone directly into Triad's account; and that Rutherford had Triad's and his other banking accounts on a computer program and was able to check them in his office daily.
Ron Scudder, the former NationsBank vice-president and loan officer who handled all of Rutherford's accounts, including Triad, testified that NationsBank Mortgage never had in place any type of escrow accounts to receive insurance funds to be paid out, and that he never discussed with Rutherford setting up escrow accounts for the Atwood job or Triad's one other job involving NationsBank Mortgage. Scudder testified that he was familiar with the insurance payments made to NationsBank Mortgage and the Atwoods; that Rutherford brought the matter to his attention; that he, Scudder, agreed to endorse those checks as part of NationsBank's relationship with its wholly-owned subsidiary, NationsBank Mortgage; and that after his endorsement, the checks were deposited directly into Triad's account.
Thus, we find the evidence is both legally and factually sufficient to support the jury's finding in Question One that Rutherford personally committed fraud against the Atwoods. We overrule the portion of Rutherford's first issue concerning fraud.
(b) DTPA
Rutherford next complains that there is no evidence or factually insufficient evidence to support the jury's findings that Rutherford, individually, engaged in a deceptive trade practice. Jury questions Six, Seven, and Nine read as follows:
Question 6
Did Triad or Rutherford engage in any false, misleading, or deceptive act or practice that was a producing cause of damages to the Atwoods?
. . . .
"False, misleading, or deceptive act or practice" means any of the following:
a. Representing that goods or services had or would have characteristics that they did not have, or
b. Representing that goods or services are or will be of a particular quality if they were of another, or
c. Representing that an agreement confers or involves rights that it did not have or involve, or
d. Failing to disclose information about goods or services that was known at the time the transaction with the intent to induce the Atwoods into a transaction they otherwise would not have entered into if the information had been disclosed.
Question 7
Did Triad or Rutherford engage in any unconscionable action or court of action that was the producing cause of damages to the Atwoods?
. . . .
An unconscionable action or course of action is an act or practice that, to a person's detriment, takes advantage of the lack of knowledge, ability, experience, or capacity of a person to an unfair degree.
Question 9
Did Rutherford or Triad engage in any such conduct knowingly?
Corporate agents and directors can be held individually liable for their own acts that violate the DTPA. Weitzel v. Barnes , 691 S.W.2d 598, 601 (Tex. 1985) (finding corporate officers liable under DTPA in their individual capacities for their own misrepresentations even though they acted on behalf of corporation); Barclay v. Johnson , 686 S.W.2d 334, 338 (Tex. App.-Houston [1st Dist.] 1985, no writ) (holding "corporate veil' does not have to be pierced in order to impose personal liability upon a corporate officer who knowingly participated in the wrongful transaction").
In addition to the indirect fraudulent representations that the jury found Rutherford made to the Atwoods through Boeman concerning the escrow account, the jury could further have found that (1) Rutherford misrepresented that he needed $1,400 for brick, (2) Rutherford took and deposited a $1,400 personal check for the brick from the Atwoods, (3) Rutherford never ordered any brick for the Atwoods' home, (4) Rutherford falsely assured the Atwoods that he had spoken to NationsBank Mortgage to have it release money from the escrow account, and (5) Rutherford knew that no escrow account existed. We hold that more than a scintilla of evidence supports the jury's answers to questions six, seven, and nine. Rutherford contends that he made no misrepresentations; however, the jury could have found from the evidence above that Rutherford did make misrepresentations and took advantage of the Atwoods by using his knowledge of the non-existence of the escrow account to his advantage. Moreover, the jury's answers to questions six, seven, and nine are not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We overrule that part of Rutherford's first issue concerning DTPA violation.
(c) Negligence
Rutherford's final complaint in his first issue asserts that the evidence is legally and factually insufficient to show that he was negligent "solely with respect to the repairs and construction of the house in question," as inquired about in Question 11. We agree.
The evidence is undisputed that Rutherford did not engage in or supervise any of the repairs and construction on the house, but hired contract superintendents and subcontractors. Nothing in the record shows negligence by Rutherford, individually, rather than by Triad under respondeat superior . We sustain that portion of Rutherford's first issue pertaining to the jury finding in Question 11 of negligence by Rutherford individually.
In summary, we sustain Rutherford's first issue complaints as to piercing the corporate veil and negligence. We overrule Rutherford's first issue complaints as to his personal liability for fraud and DTPA violation.
B. Double Recovery
In his second point of error, Rutherford contends the judgment for $25,000 against him, individually, together with the judgment for $25,000 against Triad, constitutes a double recovery. We agree.
Texas law does not allow a plaintiff to recover twice for the same injury. See Parkway Co. v. Woodruff , 901 S.W.2d 434, 441 (Tex. 1995). The jury awarded the Atwoods damages in the amount of $25,000 against both Triad and Rutherford, based on a finding of deceptive trade practice. Because the Atwoods would recover twice for a single DTPA violation, the $50,000 award constitutes a double recovery. Accordingly, we reverse the award for $50,000 and render judgment for $25,000 against Triad and Rutherford, jointly and severally.
C. Attorney's Fees
In his third point of error, Rutherford argues that the evidence is legally and factually insufficient to support the award of attorney's fees. Further, Rutherford argues that the Atwoods did not properly segregate their attorney's fees between the prosecution of their case against Triad and Rutherford, on the one hand, and NationsBank on the other.
To recover attorney's fees under the DTPA, a plaintiff must prove that the fees were both reasonable and necessary to the case. Tex. Bus. Comm. Code Ann. § 17.50(d). (Vernon 1998); see Arthur Anderson Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997). Factors to be considered by a fact finder in making an award of attorney's fees include:
(1) the time and novelty and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
(2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and the ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent on results obtained.
Id . at 818.
The Atwoods' attorney testified that he had practiced law for 15 years, and had a contingent fee agreement with the Atwoods that allowed him an attorney's fee of 40% of any recovery awarded them if the case went to trial. He testified that contingent fee contracts were customary and reasonable in Harris County. He met with his clients and witnesses, conducted legal research, filed the lawsuit and subsequent pleadings, and worked on the case with another attorney for 250 hours. The total cost in trying the case, apart from attorney's fees, was $4,000. We find that there is legally and factually sufficient evidence to support an award of attorney's fees.
However, Rutherford also complains that attorney's fees were not properly segregated between the Atwoods' case against Triad and himself, on the one hand, and NationsBank, with its successful summary judgment, on the other. The Atwoods had the duty to show that attorney's fees incurred in the prosecution of their claim against Triad and Rutherford were reasonable and necessary. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10-11 (Tex. 1991). An exception to the segregation requirement arises when attorney's fees are rendered in connection with claims arising out of the same transaction, or when claims are so interrelated that they involve essentially the same facts. See id. at 11.
The Atwoods' attorney testified on cross-examination that the claims against the bank were completely different from the claims against Triad and Rutherford; that only two depositions were taken in the case against Triad and Rutherford; that an expert was hired to testify in the case against NationsBank; and that the Atwoods sought to recover part of the expenses of their case against NationsBank from Triad and Rutherford. Accordingly, we hold that the trial court erred in awarding the Atwoods the total and unsegregated $45,333 in attorney's fees against Rutherford and Triad, jointly and severally. We sustain Rutherford's third issue, and we remand to the trial court for a determination of the amount of attorney's fees to be awarded the Atwoods against Rutherford and Triad only. See id. at 12.
II. THE ATWOOD'S APPEAL — ANALYSIS
In their sole issue on appeal, the Atwoods contend that the trial court erred in not entering judgment for all the damages awarded to them by the jury.
As stated above, Texas law does not allow a plaintiff to recover twice for the same injury. Parkway Co., 901 S.W.2d at 441.
The jury charge on damages read as follows:
ANSWER SEPARATELY IN DOLLARS AND CENTS, IF ANY, FOR EACH OF THE FOLLOWING ELEMENTS OF DAMAGES:
A. The difference, if any, between the value of the home remodeling and repair work agreed to by the parties and the value of the home remodeling and repairs actually performed. The difference in value, if any, shall be determined at the time and place the home remodeling and repair services were performed.
Answer: $32,159.00
B. The reasonable and necessary cost to the Atwoods to complete the remodeling and repairs to date.
Answer: $23,340.00
C. Reasonable and necessary expenses incurred in attempting to have their home repaired.
Answer: $12,300.00
The trial court disregarded the jury's answers to sub-parts B and C, and entered judgment awarding damages of $32,159 for the repairs on the Atwoods' home. The jury's calculation of damages in sub-part A includes the damages awarded in sub-part B. An award of $23,340 on top of the jury's award of $32,159 would amount to a double recovery. However, the award of $12,300 in sub-part C should not have been disregarded; it constitutes the out-of-pocket expense the Atwoods would not have incurred, but for the wrongful acts of Rutherford and Triad. The $12,300 award in sub-part C was therefore erroneously disregarded. Accordingly, we affirm the trial court's judgment disregarding the jury's $23,340 award in sub-part B; we reverse the trial court's judgment disregarding the $12,300 award in sub-part C of the damage issue. The Atwood's issue is sustain in part.
CONCLUSION
The award of $25,000 in damages for deceptive practices against both Triad and Rutherford is modified and reduced, so that Triad and Rutherford are jointly and severally liable for $25,000. The case is remanded to the trial court for determination of fees to be awarded the Atwoods' attorneys for prosecution of their suit against Triad and Rutherford only. The Atwoods are awarded the damages of $12,300 in expenses disregarded in sub-part C of the damages question.