Cielo Dorado Development, Inc. v. Certainteed Corp. , 31 Tex. Sup. Ct. J. 176 ( 1988 )

GONZALEZ, Justice,

dissenting.

I dissent. In my opinion, Cielo Dorado Development, Inc., failed to meet its burden of showing that the notice it gave satisfied the statutory requirements of § 17.50A(a) of the DTPA (now § 17.505(a)). Therefore, I would affirm the judgment of the court of appeals.

As a prerequisite to filing a suit under the Act, the consumer must give notice of its claim to the other side. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex.1983). The requirements of that notice are set forth in Section 17.50A(a) as follows:

As a prerequisite to filing a suit seeking damages ... against any person, a consumer shall give written notice to the person at least thirty days before filing the suit advising the person of the consumer’s specific complaint and the amount of actual damages and expenses, including attorney’s fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant.

The purpose of the notice requirement is to facilitate the settlement of consumer complaints. The recipient is given an opportunity to negotiate the claim and settle the dispute rather than expose itself to the additional damages and attorney’s fees which will result if a lawsuit is successfully prosecuted. Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d 239, 242 (Tex.1985). To fulfill this purpose, the demand letter must meet the requirements of section 17.-50A(a). The plaintiff must prove that notice: (1) which complied in all respects with Section 17.50A(a); (2) was sent to the defendant. Under the 1979 amendment to the Act, there is no question that this burden rests solely on the plaintiff once the issue of notice is joined. See e.g., Silva v. Porowski, 695 S.W.2d 766, 768 (Tex.App.—El Paso 1985, writ ref’d n.r.e.); Barnard v. Mecon, 650 S.W.2d 123, 127 (Tex.App.—Corpus Christi 1983, writ ref’d n.r.e.). The majority’s apparent attempt to open this question by the use of the word “assuming” is not supportable under the facts of this case or prior case law. In this suit, the issue of notice was clearly joined by Cielo Dorado's trial pleading alleging notice “in compliance with the Texas Deceptive Trade Practices Act” and Certainteed’s first amended original answer denying compliance with Section 17.50A(a).

The plaintiff’s burden requires elements of both fact and law. The plaintiff must establish as a matter of fact that notice was timely given, and must further establish as a matter of law that such notice was legally sufficient. The majority confuses these requirements, and in so doing reaches what in my opinion is the wrong result.

The sole evidence of notice given by Cielo Dorado’s attorney, who testified at trial, was as follows:

Ladies and gentlemen of the jury, on June 2,1981, a demand letter was sent to Certainteed Products Corporation by Mr. Tom Gilstrap, who was the lawyer representing Cielo Dorado at that time. This letter was sent out pursuant to the Deceptive Trade Practices Act.

The demand letter was not offered into evidence, nor was any testimony presented about its contents. The testimony of Cielo Dorado’s attorney did not constitute proof as to “the consumer’s specific complaint and the amount of actual damages and expenses ... incurred” as required by section 17.50A. Rather, this testimony is merely a restatement of the issue required to be proven by that lawyer; it is a legal conclusion unsupported by any factual evidence of compliance. Even under the liberal interpretation which we have traditionally given to this statute, see e.g., Singleton v. Pennington, 606 S.W.2d 682 (Tex.1980), the single word “pursuant” does not establish that all the requisites of section 17.50A(a) were met. In my opinion, Cielo Dorado has failed to satisfy the legal requirement of establishing the sufficiency of its notice.

Furthermore, the deemed finding rule cannot be invoked to save Cielo Dorado as the majority believes. While it is undisputed that a fact issue existed as to whether proper notice was sent and that this issue could be deemed found in support of the! judgment, this is not the question before this court. The true inquiry before this court is whether the notice requirements of the DTPA were satisfied by Cielo Dorado. This is a question of law which cannot be deemed found in support of the judgment.

For these reasons, I would affirm the judgment of the court below remanding this case to the trial court for abatement.