Jerry D. Cameron and Jo Ann Cameron v. Terrell & Garrett, Inc. ( 1981 )

IN THE SUPREME COURT OF TEXAS
NO. B-9609
JERRY o. CAMERON, ET ux., x
Petitioners X
FROM TARRANT COUNTY
v. X SECOND DISTRICT
TERRELL & GARRETT, INC., x
Respondent X
This is a deceptive trade practice case. Jerry D. Cameron
and Jo Ann Cameron, purchasers of a house, brought this suit for
treble damages against the seller's real estate agent, Terrell &
Garrett,
Inc., for a misrepresentation of the square footage in
the house. The primary question presented is whether the Camerons
are consumers within the meaning of the Deceptive Trade Practices——
Consumer Protection Act (DTPA).l/ The trial court rendered a take—
nothing judgment non obstante veredicto for Terrell & Garrett. The
court of civil appeals affirmed but on different grounds. The court
of civil appeals held that the Camerons were not consumers and,
therefore, could not bring a private lawsuit against Terrell & Gar—
rett for a deceptive trade practice violation. 599 S.W.2d 680. We
hold the Camerons are consumers. We also hold that there is some
evidence to support the jury verdict for the Camerons. Accordingly,
we reverse the judgment of the court of civil appeals and render
judgment for the Camerons in accordance with the verdict.
In October 1975 the Camerons purchased a house in Arlington,
Texas. The sellers, who are not parties to this lawsuit, had listed
the house for sale with Terrell & Garrett, a real estate brokerage
1/ A11 statutory references are to Vernon's Texas Business and Commerce Code, un-
Tess otherwise noted. The DTPA is found in section 17.41, et seq. Other sta—
tutory references are to Vernon's Texas Revised CiviT Statutes Annotated. ATT
emphases are ours.
and agency firm. In listing the house for sale, the sellers were
required to execute a listing agreement whereby they were to pay
Terrell & Garrett a commission of six percent of the purchase
price if Terrell & Garrett obtained a sale within a certain period.
As part of its normal business practice, Terrell & Garrett then
listed the house in the Multiple Listing Service (MLS) guide of the
Arlington Board of Realtors. In doing so, Terrell & Garrett sub-
mitted some general information about the house for publication in
the MLS guide. Included in this information was a statement that
the house contained 2400 square feet. There is testimony that this
statement was made to represent the number of square feet of heated
and air conditioned space in the house.
On September 6, 1975, the Camerons were driving with their
own real estate agent and looking for a house when they found the
house in question. While stopped in front of the house, their real—
tor showed them the statement in the MLS guiderthat it contained
2400.5quare feet. The Camerons testified that they relied on the
statement to mean that the house had 2400 square feet of heated
and air conditioned space. Also, the Camerons testified that they
agreed to purchase the house for $52,957.04 in reliance on this
statement because they thought they were purchasing a house with
2400 square feet of heated and air conditioned space for $22.06 per
square foot.
After purchasing and moving into the house, the Camerons had
it measured and found out it actually contained only 2245 square feet
of heated and air conditioned space -- 155 feet less than represented
by Terrell & Garrett. However, they also discovered that if the
garage, porch, and wall space were included, the house would have
had a total of 2400 square feet of space.
The Camerons sued Terrell & Garrett for damages, alleging a
cause of action under the DTPA for a misrepresentation made in a real
estate transaction. The basis of the Camerons' deceptive trade
practice claim is that Terrell & Garrett falsely represented in the
II
a
_|,
I
Camerons are also entitled to treble damages, reasonable attorney's
fees, and costs as authorized by the DTPA.
Justice
OPINION DELIVERED: March 4, 1981.
.ll_
THE SUPREME COURT OF TEXAS
CHIEFJUSTICE RO. BOX 12248 CAPITOL STATION CLERK
505 n GREENHILL AUSTIN TEXAS 787“ GARSON R. JACKSON
nxnaio EMKmnmmwr
JMX PE WMMMLWMHS
SEARSMCGEE March 4, 1981
JAMES G. BENTON
CHARLES W BARROW
ROBERT M.
ADMINISTRATIVE ASS'T
MARY ANN DEFIBAUGH
CAMPBELL
FRANKLIN S. SPEARS
C.LRAY
JAMES P \X’ALLACE
Mr. J. Marsha11 Gi1more, Atty
Davison & GiTmore
1060 w. PipeTine Road
Hurst, Texas 76053
Mr. w. McFarTand Bagby, Atty
1194 West Pioneer Parkway
Ar1ington, Texas 76013
RE: 8-9609. JERRY D. CAMERON ET UX. vs. TERRELL & GARRETT, INC.
No. 18304 in the Second Court,of Civi1 Appea1$
No. V567—38362-76 in the 67th District Court
Gent1emen.
Today, the Supreme Court of Texas de1ivered an opinion in
the above referenced cause.
The opinion by Justice McGee reversed the judgments of
the courts be1ow and rendered judgment judgment for the
Camerons.
Copies of the enc1osed opinion are being mai1ed to Justice
w. A. Hughes, Second Court of Civi1 Appea1s, Judge, C1yde
Ashworth, 67th District Court, and Tarrant County District
C1erk, Mr. J. w. Boorman.
Very tru1y yours,
GARSON R. JACKSON, C1erk
By 47/
. Wakefie1
Chi Deputy
Enc1: opinion
THE SUPREME COURT OF TEXAS
CHIEFJUSTICE PO. BOX 12248 CAPITOL STATION CLERK
JOE R. omemmu “Jva TEXAS 7871 1 CARSON R JACKSON
nsnaa mmannmAsT
JACKPOPE March 5, 1981 “WULMMLVWUJS
SEARS McGEE
HUD ADMflflflRflflmA$T
JAMES 6' D N MARYANN DEFIBAUGH
CHARLES W BARROW
ROBERT M. CAMPBELL
FRANKLIN S. SPEARS
C. L RAY
JAMES P WALLACE
Mr. J. Marsha11 Gi1more, Atty
Davison & Gi1more
1060 w. Pipe1ine Road
Hurst, Texas 76953
Mr. w. McFar1and Bagby, Atty
1194 West Pioneer Parkway
Ar1ington, Texas 76013
RE: 8-9609: JERRY D. CAMERON ET UX.
VS.
TERRELL & GARRETT, INC.
Gent1emen:
Enc1osed p1ease find a copy of the judgment of the Supreme Court
of Texas in the above referenced cause as said Judgment appears in
the minutes of this Court under the date of March 4, 1981.
This is the judgment that wi11 issue in mandate form to the
1ower court if no motion for rehearing is fi1ed or if a fi1ed
motion for rehearing is overru1ed.
Very tru1y yours,
GARSON R. JACKSON; C1erk
Mary M akefie1d
Chief eputy
Enc1. cOpy of judgment
0"
THE SUPREME COURT OF TEXAS
CHIEF JUSTICE PO. BOX 12248 CAPITOL STATION CLERK
JOE R GREENHILL AUSTIN. TEXAS 7871 1 CARSON R JACIGON
JUSTICES EXECUTIVE ASS'T
JACK POPE . WILLIAM L WILLIS
SEARSMcCEE AprI1 2, 1981
ADMINISTRATIVE ASST
JAMES C. DEN’DON
CHARLES W BARROW MARY ANN DEFIBAUGH
ROBERT M. CAMPBELL
FRANKLIN s. SPEARS
c L RAY
JAMES P WALLACE
Mr. J. w. Boorman
District CTerk
Tarrant County Courthouse
Fort Worth, Texas 76102
Re. JERRY D. CAMERON ET UX. vs. TERRELL & GARRETT, INC.
NO. 8—9609 in the Supreme Court
NO. 67-39362-76 in the 67th District Court, Tarrant County, Texas
Dear Mr. Boorman:
The judgment of the Supreme Court of Texas is now finaT in the above
referenced cause. As RuTe 507, Texas Ru1es of Civi1 Procedure, has
been satisfied, we have issued the mandate as of this date.
Enc105ed with the mandate is a certified copy of our cost b111
showing the charges and payments as ref1ected by the record for
your use in settTement between the parties.
Very tru1y yours,
CARSON R. JACKSON, Clerk
By??? /
Mary M akefier
Chief eputy
CC: Mr. J. Marsha11 Gi1more-Hurst (Letter on1y)
Mr. N. McFarTand Bagby-Ar1ington ” ”
Enc1. mandate w/opinion
cost b111
MLS guide the number of square feet in the house. They alleged
actual damages of $3,419.30, which they computed by multiplying the
cost of the house per square foot as represented ($22.06) times the
square footage deficiency (155 feet). The Camerons sought treble
damages, reasonable attorney's fees and court costs under section
l7.50(b) of the Act.3/
The case was submitted on special issues to the jury for a
violation of the general prohibitign in section l7.46(a) as
authorized by section l7.50(a)(l)._ The jury returned a verdict
for the Camerons. Terrell & Garrett then filed motions to disre-
gard jury findings and for judgment notwithstanding the verdict,
challenging in part the legal sufficiency of the evidence to support
the jury‘s answers to special issues. The trial court sustained
Terrell & Garrett's motions on the basis there was no evidence to
support the jury's answers to the following special issues:
"SPECIAL ISSUE N0. 2
"Do you find from a preponderance of the evidence
that the Defendant's representation that the house in
question contained two thousand four hundred square
feet was false, misleading or deceptive act or practice?
"Answer 'we do' or 'We do not.‘
"ANSWER: 'We do.I
2/ Section l7.50(b)(l) provideS'
"(b) In a suit filed under this section, each consumer
who prevails may obtain
"(l) three times the amount of actual damages
plus court costs and attorneys' fees
reasonable in relation to the amount of
work expended;..."
3/ Section l7.50(a)(l) was amended in 1979 so that a private cause of action is
no longer available under section l7.46(a). The provisions of the DTPA in
effect on the date the alleged misrepresentation occurred, September 6, l975,
govern the disposition of this case. See Riverside National Bank v. Lewis,
603 S.W.2d 169, 172 (Tex. 1980), and wBSHs v. Littleton, 554 S.W.2d 662, 666
(Tex. l977).
"SPECIAL ISSUE N0. 3
"Do you find from a preponderance of the evidence
that the Defendant's representation of the quantity of
square feet in the house in question was a producing
cause of actual damages sustained by the Plaintiffs?
"Answer 'We do' or 'We do not.I
"ANSWER: 'We do'"; and
"SPECIAL ISSUE N0. 4
"What sum of money, if any, if paid now in cash,
do you find from a preponderance of the evidence would
fairly and reasonably compensate the Plaintiffs for
their actual damages, if any?
"Answer in dollars and cents, if any.
5/
"ANSWER: $3,4l9.30.”
The trial court rendered a take—nothing judgment against the Camerons
notwithstanding the verdict.
On appeal, the Camerons contended that the trial court erred
in setting aside the jury verdict because there was some evidence to
support the jury's answers to special issues number 2, 3, and 4.
However, to vitiate the verdict, Terrell & Garrett contended by
crosspoint that the Camerons could not bring a private lawsuit under
the DTPA because the Camerons were not consumers, as defined in sec-
tion l7.45(4), as to them. The court of civil appeals sustained the
contentions of both parties and, as a result, affirmed the trial
court's take-nothing judgment. In this case, the Camerons' sole con—
tention is that the court of civil appeals erred in holding they were
not consumers as defined in section l7.45(4).
4/ In this case, the trial court failed to place an explanatory in-
struction in the charge instructing the jury as to the proper
elements to consider in measuring the Camerons' actual damages.
It is clear from the record that the jury measured damages by
multiplying the cost of the house per square foot as represented
($22.06) times the square footage deficiency (155 feet) and also
included the value of the land in determining the square footage
price of the house. However, Terrell & Garrett waived any error
committed by the jury in measuring damages and in considering the
value of the land by failing to object to this evidence (continued)
In Riverside National Bank v. Lewis, 603 S.W.2d 169, 173
(Tex. 1980), we recognized that a person must qualify as a consumer
as that term is defined in section 17.45(4) to maintain a private
cause of action for treble damages under section 17.50 of the Act.
To the same effect are Rutherford v. Whataburger, Inc., 601 S.W.2d
441, 444 (Tex. Civ. App.—-Da11as 1980, writ ref'd n.r.e.), Ferguson
v. Beal, 588 S.W.2d 651, 653 (Tex. Civ. App.-—Houston [14th Dist.]
1979, writ ref'd n.r.e.), Hi-Line Electric Co. v. Travelers Insurance
92;, 587 S.W.2d 488, 490 (Tex. Civ. App.--Dallas 1979), writ ref'd
n.r.e. per curiam, 593 S.W.2d 953 (1980), and Russell v. Hartford
Casualty Insurance Co., 548 S.W.2d 737, 741 (Tex. Civ. App.-—Austin
1977, writ ref'd n.r.e.). Section 17.45(4) defines consumer as an
individual, partnership, or corporation who seeks or acquires by
purchase or lease, any goods or services."
We have also recognized at least two requirements that must
be established for a person to qualify as a consumer under the DTPA.
One requirement is that the person must have sought or acquired
goods or services by purchase or lease. Riverside National Bank v.
Lewis, supra at 174; see Woods v. Littleton, 554 S.W.2d 662, 666
(Tex. 1977). Another requirement recognized by this Court is that
the goods or services purchased or leased must form the basis of the
complaint. Riverside National Bank v. Lewis, supra at 175; Woods v.
Littleton, supra at 666; see also Rutherford v. Whataburger, Inc.,
supra at 444; Delaney Realty, Inc. v. Ozuna, 593 S.W.2d 797, 800
(Tex. Civ. App.--E1 Paso), writ ref'd n.r.e. per curiam, 600 S.W.2d
780 (1980); and Ferguson V. Beal, supra at 653. If either require—
4/ (Continued)
and by failing to request an instruction on the proper measure
of damages in substantially correct form. §gg Jefferson County
Drainage Dist. No. 7 v. Herbert, 244 S.W.2d 535 (Tex. Civ. App.——
Austin 1952, writ ref'd n.r.e.).
ment is lacking, the person aggrieved by a deceptive act or prac—
tice must look to the common law or some other statutory provision
for redress.§/
The Camerons satisfy both of these requirements in the case
at hand. Although the Camerons alleged that they "sought or ac—
quired the services" of Terrell & Garrett, it is clear that their
complaint is not based on any alleged misrepresentation of the
quality or quantity of services rendered by Terrell & Garrett. In-
stead, the Camerons' complaint is based solely on an alleged mis-
representation of the quantity of square feet in the house. At the
time of this alleged deceptive trade practice, section l7.45(l) de—
fined goods to include "... real property purchased ... for use."
Terrell & Garrett seeks to have this Court impose a type of
privity requirement into the definition of consumer. It contends
that a person must seek or acquire goods or services furnished by
the person he is suing to qualify as a consumer under the DTPA. To
be a consumer, it is submitted that if this requirement were imposed,
a defendant would have to be in the same chain of title with the
good or service on which the complaint is based. It argues that
under this requirement the Camerons could not be consumers as to
Terrell & Garrett because it was the seller's agent and did not
furnish any goods or services that were sought or acquired by the
Camerons. As authority for the imposition of this additional re-
quirement to the qualifications of a consumer, Terrell & Garrett
cites Hi—Line Electric Co. v. Travelers Insurance Co., 587 S.W.2d
488 (Tex. Civ. App.—-Dallas 1979), writ ref'd n.r.e. per curiam,
593 S.W.2d 953 (1980), and Barthlow v. Metcalf, 594 S.W.2d 143 (Tex.
Civ. App.--Houston [lst Dist.] 1979, writ dism'd), where it was held
\
5/ The question raised in Woods v. Littleton, 554 S.W.2d 662, 666
(Tex. 1977), of whether a person other than a consumer could
bring a private cause of action for treble damages under the
DTPA was foreclosed in Riverside National Bank v. Lewis, 603
S.W.2d 169, 174.
that a consumer is one who seeks or acquires goods or services
furnished by the defendant.
In the case of Delaney Realty Co. V. Ozuna, 593 S.W.2d 797(Tex. Civ. App.——El Paso), writ ref'd n.r.e. per curiam, 600 S.W.2d
780 (1980), a seller of a house represented to the purchaser that
the house was not subject to flooding. The seller's real estate
agent, however, made no representation about the tendency of the
house to flood. The house did flood. The purchaser sued the seller
and seller's agent under the DTPA, alleging that the seller misrep—
resented that the house was not susceptible to flooding and the
seller's agent should have ascertained this condition of the house,
and should have warned them about the susceptibility of the house to
flooding. The court of civil appeals held that since the purchaser
did not purchase any goods or services from the seller's agent, the
purchaser did not fall within the definition of consumer and thus
could not bring suit under the DTPA. In a per curiam opinion, we
agreed with the judgment of the court of civil appeals stating there
was no evidence that the seller's agent made any misrepresentation
about flooding. However, we refused the purchasers' application for
writ of error, no reversible error, stating:
"This action should not be interpreted as an
implied approval of the lower court's dis-
cussion concerning the [purchasers'] failure
to qualify as 'consumers' under the DTPA with
respect to [the seller's agent]... . We re—
serve this question of statutory construction
for the future."
600 S.W.2d at 782.
We are now called upon to answer this question of statutory
construction expressly reserved in Delaney. In all interpretations
of the Act, our primary objective is to ascertain the legislature's
intent. Woods v. Littleton, supra at 665. To do that, we must look
to the Act as a whole, and not its isolated provisions, keeping in
mind at all times "the old law, the evil, and the remedy." Id. The
legislature itself directed that the Act "shall be liberally con-
strued to promote its underlying purposes which are to protect con—
sumers against false, misleading, and deceptive acts or practices,
unconscionable actions and breaches of warranty and to provide
efficient and economical procedures to secure such protection."
Section 17.44.
The breadth of the Act is evidenced by section 17.49 which
sets out the exemptions to the DTPA. That section does not provide
an exemption for deceptive trade practices by persons who do not
furnish the goods or services on which the complaint is based.
Rather, it only exempts from the Act certain media owners and em—
ployees who publish and disseminate deceptive advertisements of goods
and services for third parties. That same exemption, however, does
not extend immunity from the Act where the media defendants (l)
knew of the deception in the advertisement or (2) had a direct or
substantial financial interest in the unlawfully advertised good or
service. These media defendants, of course, do not furnish the
goods or services that they advertise for third parties. Conse-
quently, if the Act already excluded defendants who do not furnish
the goods or services, as argued by Terrell & Garrett, there would
have been no need for the legislature to exempt media defendants
from liability or to have provided that media defendants could be
sued in the two situations mentioned above. The legislature is
never presumed to have done a useless act. Red River National Bank
v. Ferguson, 109 Tex. 287, 206 S.W.2d 923 (1918); Brown v. Memorial
Villages Water Authority, 361 S.W.2d 453 (Tex. Civ. App.—-Houston
1962, writ ref'd n.r.e.).
Similarly, if the legislature had intended to place such a
restriction on the class of persons who could be sued under the Act
for deceptive trade practices, it could easily have done so by
simply drafting the restriction into the definition of consumer or
some other provision of the Act. See Maxwell, Public & Private
Rights & Remedies Under the Deceptive Trade Practices——Consumer Pro-
tection Act, 8 ST. MARY'S L.J. 617, 655 (1977). It is a rule of
statutory construction that every word of a statute must be presumed
to have been used for a purpose. Eddins-waicher Butane Co. 6. Calvert, 156 Tex.
587, 298 S.W.2d 93, 96 (1957). Likewise. we believe every word excluded from a
statute must also be presumed to have been echuded for a purpose. Only when it
is necessary to give effect to the clear legislative intent can we insert addi—
tional words or requirements into a statutory provision. Mauzy v. Legisiative
Redistricting Board, 47] S.W.2d 570, 572 (Tex. 1971); §2g_Texas & N.0. R. Co. v.
Texas Railroad Comm., 145 Tex. 541, 200 S.W.2d 626, 629 (1947).
We find no indication in the definition of consumer in section
17.45(4), or any other provision of the Act, that the legislature
intended to restrict its application only to deceptive trade practices
committed by persons who furnish the goods or services on which the
complaint is based. Nor do we find any indication that the legis-
lature intended to restrict its application by any other similar
privity.requirement. In contrast, privity requirements have been
dispensed with altogether in negligence suits, in implied warranty
suits for economic loss, and, for the most part, privity require—
See
ments have also been abolished in strict liability suits.
Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex. 1977).
The Act is designed to protect consumers fromLany deceptive trade
practice made in connection with the purchase or lease of any goods
or services. Hi~Line Electric Co. v. Travelers Insurance Co., supra
at 490. To this end, we must give the Act, under the rule of
liberal construction, its most comprehensive application possible
without doing any violence to its terms.
Consumer is defined in section l7.45(4) only in terms of a
person's relationship to a transaction in goods or services. It
does not purport to define a consumer in terms of a person's rela-
tionship to the party he is suing. Section 17.45(4) does nothing
more than describe the class of persons who can bring a suit for
treble damages under section 17.50.
Riverside National Bank v.
Lewis, suEra at 173. It does not say who a consumer can sue under
section 17.50 for a deceptive trade practice violation. With res-
pect to whom a consumer can sue, section l7.50(a)(l), the subsection
under which this suit was tried, expressly states that a consumer
i!
I
can bring a suit if he has been adversely affected by "the use or
employment by any person of an act or practice declared to be un-
lawful in section 17.46." Terrell & Garrett is a person under the
Act. We, therefore, hold that a person need not seek or acquire
goods or services furnished by the defendant to be a consumer as
defined in the DTPA.
To the extent that language in Hi—Line Electric Co. v. Trav-
elers Insurance Co., supra, and Barthlow V. Metcalf, supra, is in-
consistent with this opinion, it is disapproved. We have con-
sidered both cases and find their respective holdings to be sup-
ported on other grounds announced therein. Whether the Act should
be so restricted is a matter for the legislature and not this Court.
Accordingly, we hold the Camerons are consumers because they pur-
chased the goods on which their complaint is based.
Because we have held that the court of civil appeals erred
on the grounds on which it affirmed the judgment of the trial court,
we must consider Terrell & Garrett's crosspoints before this Court
to see if there are any grounds presented therein to affirm the
court of civil appeals' judgment. In doing so, we find three
crosspoints challenging the court of civil appeals' ruling there is
some evidence to support the jury findings to special issue numbers
2, 3, and 4, which are set out above. The jury answered each special
issue in favor of the Camerons. For that reason, we are required to
consider only the evidence and the reasonable inferences that can
be drawn therefrom, in their most favorable light, to support these
jury findings. East Texas Theatres, Inc. V. Rutledge, 453 S.W.2d
466 (Tex. 1970), Garza v. Alviar, 395 S.W.2d 821 (Tex. 1965). We
have considered each of these crosspoints and we agree with the ruling
of the court of civil appeals on the legal sufficiency of the evi:
dence to support these jury findings.
We, therefore, reverse the judgments below and render judg-
ment for the Camerons in accordance with the jury verdict. The
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