Charlie Thomas Chevrolet, Ltd D/B/A Champion Chevrolet Gulf Freeway v. Genaro Martinez ( 2019 )

Opinion issued August 8, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00830-CV
———————————
CHARLIE THOMAS CHEVROLET, LTD D/B/A CHAMPION
CHEVROLET GULF FREEWAY, Appellant
V.
GENARO MARTINEZ, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2012-27666
OPINION
Genaro Martinez sued Charlie Thomas Chevrolet, LTD d/b/a Champion
Chevrolet Gulf Freeway for instigation of false imprisonment and for violations of
the Deceptive Trade Practices Act (DTPA). Martinez had acquired a new pickup
truck from Champion Chevrolet and a few weeks later was briefly detained by police
when paperwork mistakes by Champion Chevrolet led it to believe that Martinez’s
truck had been stolen from Champion Chevrolet.
At trial, a jury found Champion Chevrolet liable for instigation of false
imprisonment and for DTPA violations and awarded Martinez $25,500 in actual
damages, $75,000 in additional damages, and $21,900 for attorney’s fees through
trial, along with conditional attorney’s fees on appeal. The jury also found Martinez
to have been negligent and 15% responsible. Martinez elected to recover on his
DTPA claim, and the trial court entered judgment for Martinez on his damages
(reduced by 15%) and for attorney’s fees.
Asserting one issue with numerous sub-issues, Champion Chevrolet argues
that the judgment on the DTPA claims must be reversed and that judgment should
not have been rendered for instigation of false imprisonment. We reverse the
judgment and render judgment that Martinez take nothing on his DTPA claims. We
remand the case to the trial court for consideration of the jury’s alternative finding
that Champion Chevrolet instigated the false imprisonment of Martinez.
Background
In November 2011, Martinez went to Champion Chevrolet, a former Houston
auto dealership, to buy a new truck. He dealt with salesman Lupe Garcia. They
attempted to complete deals on two used trucks, but Martinez had poor credit and
could not obtain financing on either of them. Seeking a solution, Garcia suggested
2
that Martinez find a co-signer, so Martinez left and later returned with his co-worker
Andrew Cisneros, who was to be his co-signer.
Martinez test drove both a new black and a new white Chevrolet Silverado
truck and selected the black one. Garcia then completed the Retail Purchase
Agreement for the sale of the black Silverado, but to get around Martinez’s poor
credit, the agreement was made between Champion Chevrolet and Cisneros, rather
than with Martinez. Garcia was aware, however, that Martinez would be using the
truck following its purchase by Cisneros.
In filling out the Retail Purchase Agreement, Garcia made a critical error.
Although Martinez had selected the black Silverado, Garcia erroneously filled in the
Vehicle Identification Number (VIN) for the white Silverado that Martinez had also
test-driven. Garcia also erroneously indicated in the agreement that the white
Silverado was being purchased, rather than the black one. This error resulted in
Champion Chevrolet’s records reflecting that the white Silverado had been sold and
was no longer in the dealership’s inventory and that the black Silverado Martinez
had driven off the lot was still in the inventory. Martinez was given a copy of the
Retail Purchase Agreement signed by Cisneros but did not notice that it erroneously
referenced the white Silverado.
A couple of weeks after the sale, Champion Chevrolet performed its monthly
inventory reconciliation. During that process, it discovered that the black Silverado
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was not on the lot and became concerned that it was missing and possibly stolen.
After learning that the black Silverado was missing, General Sales Manager Tania
Eubanks asked an employee to look for it on the lot. After that search was
unsuccessful, Eubanks obtained the “key report” for the black Silverado, and it
showed that the salesman Garcia was the last person in possession of the black
Silverado’s keys.
After Champion Chevrolet management learned that Garcia had shown the
black Silverado to Martinez, Garcia was asked to call Martinez to make sure that he
was not in the incorrect vehicle. Garcia was asked to have Martinez read to him the
VIN off the body of the vehicle and to make sure the Retail Purchase Agreement
was for the correct vehicle.
Garcia first called Cisneros, who unsurprisingly did not have the black
Silverado, and then Martinez. Garcia told Martinez that the dealership was missing
a vehicle. He then asked Martinez to go outside and read to him the VIN off the body
of the truck. Martinez replied that it was dark outside and instead read to Garcia the
VIN on his copy of the Retail Purchase Agreement, which was of course identical
to the VIN on Garcia’s copy. Because the VIN read by Martinez matched the VIN
on Garcia’s copy of the Retail Purchase Agreement, the VIN mix-up was not
discovered. This conversation reinforced the dealership’s belief that Martinez did
not have the black Silverado.
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Martinez disputed Garcia’s version of that phone call. He testified that Garcia
called him one night and told him that he needed the VIN on the truck. Martinez told
him that he had the paperwork, that it was cold and he was not going outside at that
time, and that he read to Garcia the VIN off of the paperwork. Martinez then asked
Garcia if everything was all right, and Garcia told him not to worry about it and to
enjoy his truck. Champion Chevrolet did not go to Martinez’s residence to inspect
the VIN, ask Martinez to bring his truck to the dealership for inspection, or even ask
him what color his truck was.
Champion Chevrolet continued its efforts to locate the missing black
Silverado, searching its body shop and “make ready” area. Finally, it called Onstar,
which the vehicle was equipped with, and requested that Onstar locate the truck
electronically.1 Onstar would not activate its location system unless the police were
notified that the truck had been stolen, so Champion Chevrolet called the police and
reported the black Silverado as stolen.
Houston Police Department records reflect that Champion Chevrolet called to
report that the black Silverado was stolen. Under the report section entitled “Details
of Offense,” the report states: “Complainant’s vehicle was stolen. Complainant will
1
According to Champion Chevrolet, Onstar provides subscription-based
communications, in-vehicle security, emergency services, hands-free calling, turn-
by-turn navigation, and remote diagnostics for vehicles.
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prosecute. No suspect. No arrest.” The report did not mention Martinez at all,
including as a suspect.
In response to the report, Officer G. Olvera was dispatched. Officer Olvera
testified that the call to the police “dropped as a tracked vehicle,” which meant that
someone (in this case Onstar) was tracking it. He was in the area and went to the
location that Onstar had electronically fixed for the truck and had provided to police.
That location was the apartment complex where Martinez lived. By that time, Onstar
had remotely deactivated the truck. Officer Olvera parked and watched the truck,
and when its headlights came on, he called for backup, approached the truck, and
found Martinez with it.
Officer Olvera testified that, before the event, no one from Champion
Chevrolet had told him that Martinez was a thief or had stolen the truck and that
Champion Chevrolet never requested that he target or arrest Martinez. Officer
Olvera did not know that Martinez was going to be there when he arrived at the
address where the truck had been located.
Officer Olvera testified that the police announced themselves to Martinez and,
as part of normal police procedure, handcuffed him and told him that he was being
detained for questioning because they were tracking a possibly stolen vehicle.
Officer Olvera could not remember if he or any other officer drew their weapons
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when they approached Martinez, but he said that if they did, it would have been
proper police procedure for the investigation of a stolen vehicle.
Martinez testified that shortly before he was detained by the police, he had
gotten into his truck to pick up some food for his family for dinner, but his truck
would not start—unknown to him, it had been disabled by Onstar. Martinez called
Champion Chevrolet because he thought there was something wrong with his truck,
and he was told to get his other key and try to start it again. Martinez went back into
his home to get his other key, and when he returned to the truck to attempt to start it
again, police were there. There was a “gun behind” his back and he heard “Put your
hands up in the air.” Martinez complied, and he was handcuffed.
Martinez testified that he was handcuffed and detained from forty-five
minutes to an hour while police investigated. Officer Olvera testified that Martinez
was detained during the investigation for possibly as long as an hour.
After being detained, Martinez showed Officer Olvera his truck keys, and they
unsuccessfully attempted to start the truck. Martinez’s wife came outside with the
paperwork for the truck, and the police looked it over and then called Champion
Chevrolet. The dealership, after hearing the information reported by the police,
realized that the truck had, in fact, been purchased but that the VIN in the paperwork
had been mixed up and so informed the police. While he was in handcuffs, the police
handed Martinez the phone to talk to the salesman Garcia about the error, and
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according to Martinez, Garcia laughed about it. At that point, the police released
Martinez. Martinez was not arrested or taken to jail, and he was not charged with a
crime.
Champion Chevrolet’s General Manager Eubanks was present when the
police called the dealership. Her reaction was that a terrible mistake had been made.
The police were told that a mistake had been made and that the wrong VIN was on
Martinez’s paperwork. The dealership called a tow truck to bring the deactivated
Silverado to the dealership for reactivation, and Martinez rode in the tow truck. The
dealership apologized to him, and the sales documents were redone to reflect the
correct vehicle and VIN. Martinez testified that dealership employees laughed at him
when he got there, but Garcia denied that he or any other employee laughed at
Martinez.
Martinez sued Champion Chevrolet, asserting as causes of action negligence,
negligent misrepresentation, false imprisonment, conversion, trespass to chattels,
fraud, DTPA violations, malicious prosecution, and breach of contract. The trial
court granted summary judgment on the breach of contract claim, and at trial,
Martinez abandoned his claims of malicious prosecution, fraud, negligent
misrepresentation, conversion, and trespass to chattels. Also at trial, Martinez
acknowledged that Champion Chevrolet had not “falsely imprisoned” him but
proceeded on the theory that it was liable for “instigation of false imprisonment.”
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After both sides rested, the trial court granted Champion Chevrolet’s motion
for directed verdict on Martinez’s negligence and gross negligence claims but denied
the motion as to the claims for instigation of false imprisonment and for DTPA
violations. The jury made the following findings on those claims:
1. Champion Chevrolet instigated the false imprisonment of Martinez.
2. Martinez’s negligence was a proximate cause of the occasion in
question.
3. In the sale of the truck to Cisneros, Champion Chevrolet violated the
DTPA either by representing that goods are of a particular style or
model if they are another or by representing that an agreement confers
or involves rights that it did not have or involve, and the violation was
a producing cause of Martinez’s damages.
4. In reporting the truck as stolen, Champion Chevrolet violated the DTPA
either by representing that goods are of a particular style or model if
they are another or by representing that an agreement confers or
involves rights that it did not have or involve, and the violation was a
producing cause of Martinez’s damages.
5. In the sale of the truck to Cisneros, Champion Chevrolet engaged in an
unconscionable action or course of action that was a producing cause
of Martinez’s damages.
6. In reporting the truck as stolen, Champion Chevrolet did not engage in
an unconscionable action or course of action that was a producing cause
of Martinez’s damages.
7. In the sale of the truck to Cisneros and in reporting the truck as stolen,
Champion Chevrolet engaged in the conduct intentionally and
knowingly.
8. Martinez’s percentage of responsibility was 15% and Champion
Chevrolet’s percentage was 85%.
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9. Martinez was awarded $25,000 for mental anguish in the past, $500 for
loss of use of the truck, and nothing for mental anguish in the future.
10. Martinez was awarded $75,000 in additional damages for Champion
Chevrolet’s intentional DTPA violations.
Martinez elected to recover under the DTPA because it provided a greater
recovery. After denying Champion Chevrolet’s motion to disregard jury answers and
to enter judgment notwithstanding the verdict (JNOV), the trial court signed a final
judgment in Martinez’s favor on his DTPA claims. Champion Chevrolet’s motion
for new trial was overruled by operation of law, and this appeal followed.
Analysis
Champion Chevrolet asserts that the trial court erred in entering judgment
for Martinez on his DTPA claims because: (1) the DTPA claims are an
impermissible attempt to recast his instigation-of-false-imprisonment allegations
as an unintentional tort; (2) Champion Chevrolet did not commit a DTPA
violation; (3) the allegedly actionable conduct was not a producing cause of harm
to Martinez; (4) Martinez presented no evidence of economic damages; (5) there
was no knowing or intentional conduct to support an award of mental anguish or
enhanced damages; and (6) there was no evidence of mental anguish sufficient to
support an award of damages for mental anguish.
Champion Chevrolet also asserts that the trial court erred in entering
judgment for Martinez on his instigation-of-false-imprisonment claim because: (1)
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Champion Chevrolet did not instigate Martinez’s detention by the police;
(2) Martinez elected to recover on his DTPA claims; (3) the trial court failed to
define “instigation” or instruct the jury on it; and (4) Champion Chevrolet’s
actions were privileged and justified.
The elements of a claim for false imprisonment are: (1) willful detention;
(2) without consent; and (3) without authority of law. Wal-Mart Stores, Inc. v.
Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A party can be liable for instigation of
false imprisonment if the plaintiff proves that the party “clearly directed or
requested” the arrest or detention of the plaintiff. Id. at 507; see Davis v. Prosperity
Bank, 383 S.W.3d 795, 799–800 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
The intentional tort of false imprisonment, like the related intentional tort of
malicious prosecution, has stringent standards for recovery. See Rodriguez, 92
S.W.3d at 510 (declining “to hold that negligently providing inaccurate or
incomplete information to legal authorities will make a reporting party liable for
false imprisonment”); Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71, 73 (Tex.
App.—Corpus Christi 1991, writ denied). The policy behind such stringent
standards is to avoid discouraging the reporting of crimes. See Smith v. Sneed, 938
S.W.2d 181, 184–85 (Tex. App.—Austin 1997, no writ); Medina, 814 S.W.2d at 73–
74; see also Rodriguez, 92 S.W.3d at 510 (“All citizens have a clear legal right to
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report criminal misconduct to law enforcement authorities. In fact, the law
encourages such communication.”).
“There is no guarantee in our society that only guilty persons will be accused
and arrested.” Smith, 938 S.W.2d at 184 (citing Baker v. McCollan, 443 U.S. 137,
145 (1979)). The balance “between protecting against wrongful prosecution and
encouraging the reporting of crime,” Smith, 938 S.W.2d at 184, is “heavily weighed
against the wrongly accused.” Medina, 814 S.W.2d at 73. These policies may result
in “something less than natural justice.” Smith, 938 S.W.2d at 184–85 (quoting Louis
v. Blalock, 543 S.W.2d 715, 719 (Tex. Civ. App.—Amarillo 1976, writ ref’d n.r.e.));
Medina, 814 S.W.2d at 73 (same). In those cases where the wrongly accused or
arrested plaintiff cannot meet the stringent standards for recovery, the plaintiff’s
damages are damnum absque injuria.2 Medina, 814 S.W.2d at 74.
A plaintiff cannot circumvent the stringent standards for recovery of the
intentional torts of false imprisonment and malicious prosecution by pleading other
claims based on the same facts. See, e.g., Delese v. Albertson’s, Inc., 83 S.W.3d 827,
830 (Tex. App.—Texarkana 2002, no pet.); ITT Consumer Fin. Corp. v. Tovar, 932
S.W.2d 147, 155–56 (Tex. App.—El Paso 1996, writ denied); Kale v. Palmer, 791
S.W.2d 628, 631–32 (Tex. App.—Beaumont 1990, writ denied); see also Smith, 938
2
Damnum absque injuria and damnum sine injuria, BLACK’S LAW DICTIONARY
449–50 (9th ed. 2009) (“Damage without wrongful act.”).
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S.W.2d at 185 (“To hold, as Smith would have us do, that Sneed’s negligence is
actionable would in substance convert the tort of malicious prosecution to one of
negligent prosecution.”). The true nature of a cause of action depends on the facts
alleged in the petition, the rights asserted, and the relief sought, not on the descriptive
terms or labels used. Delese, 83 S.W.3d at 830; Kale, 791 S.W.2d at 631.
In McClung v. Wal-Mart, a federal case that we find persuasive, the plaintiff
bought a telephone and handset extension cord at a Wal-Mart, and because the
cashier did not remove the magnetic security chip attached to the phone, the store’s
security alarm was activated when the plaintiff left the store. 866 F. Supp. 306, 308
(N.D. Tex. 1994). Wal-Mart employees stopped the plaintiff in the parking lot and
asked him to return to the store, but the parties disagreed on the amount of force that
was used to return the plaintiff to the store. Id. The plaintiff asserted common law
liability theories, but he also attempted to allege that Wal-Mart violated the DTPA
when its employees allegedly assaulted and falsely arrested him:
Plaintiff attempts to invoke the DTPA’s remedies by stating that he was
sold a defective telephone, one with the inventory control device still
attached. As a result of this defect, he was assaulted by the Defendant.
....
Plaintiff also alleges that Wal-Mart failed to provide him with
numerous services its advertising promised, or the services it provided
were defective. First, Plaintiff states that the service of removing or
deactivating the inventory control chips was inadequate, or of
insufficient quality or expertise, and defective. Second, Plaintiff asserts
that Wal-Mart “advertises and promises a superior overall shopping
transaction—a superior shopping experience” that it failed to provide
13
because he was assaulted by a Wal-Mart employee and the manager
lied to him about rectifying the situation. Third, Plaintiff asserts that
“Wal-Mart expressly promises satisfaction with every transaction and
a superior level of friendliness” (emphasis in original) which it failed
to provide. In regard to this element, Plaintiff asserts that his shopping
experience was “such a variance that it is an unconscionable violation
of the DTPA.” Fourth and finally, the Plaintiff asserts that Wal-Mart
failed to provide a quick and fair resolution of his problem to his
satisfaction as the company promises.
Id. at 308–09 (footnotes omitted).
Wal-Mart argued that the DTPA was not the proper vehicle for the plaintiff’s
common law claims and that the DTPA claims in the plaintiff’s complaint failed to
state a cause of action for which relief could be granted. Id. at 308. The federal court
agreed, first finding that the plaintiff’s claims arose out of post-transaction conduct
wholly unrelated to the quality or suitability of the phone he had purchased: “[W]hat
the Plaintiff complains of was incidental to, rather than in connection with, his
purchase of a telephone and cord from Wal-Mart.” Id. at 309. The court next held
that the plaintiff did not assert a claim that Wal-Mart had committed an
unconscionable action or course of action under the DTPA:3 “In short, this remedy
is aimed at economic results, not whether the Plaintiff had his arm twisted in the
3
The DTPA defines “[u]nconscionable action or course of action” as “an act or
practice which, to a consumer’s detriment, takes advantage of the lack of
knowledge, ability, experience, or capacity of the consumer to a grossly unfair
degree.” TEX. BUS. & COM. CODE § 17.45(5).
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parking lot. . . . Unconscionable is defined in the statute and is limited to economic
outcomes associated with commercial transactions.” Id. at 310–11.
This court has similarly held that a security guard’s guided escort of a
customer out of a department store after she had violated a directive not to shop there
and not to return merchandise there was not unconscionable under the DTPA as a
matter of law and that the trial court properly granted a directed verdict. Scruggs v.
Franke, No. 01-96-00794-CV, 1998 WL 224022, at *7 (Tex. App.—Houston [1st
Dist.] May 7, 1998, no pet.) (not designated for publication) (citing McClung, 866
F. Supp. at 310).
Champion Chevrolet’s principal sub-issue on Martinez’s DTPA claims is that
the trial court erred in denying its motion to disregard and for JNOV on the ground
that Martinez had improperly recast his instigation-of-false-imprisonment claim as
DTPA claims.
A motion for JNOV should be granted when a legal principle precludes
recovery. Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d 46, 77 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). “A trial court may disregard a jury’s
findings and grant a motion for JNOV only when a directed verdict would have been
proper.” Id. at 76. A motion for directed verdict should be granted when (1) a defect
in the opponent’s pleading makes it insufficient to support a judgment, (2) the
evidence conclusively proves facts establishing the movant’s right to judgment, or
15
negates the nonmovant’s right to judgment, as a matter of law, or (3) the evidence is
legally insufficient to raise a fact issue on a proposition necessary to entitle the
nonmovant to judgment. Neller v. Kirschke, 922 S.W.2d 182, 187 (Tex. App.—
Houston [1st Dist.] 1995, writ denied).
A denial of a motion for directed verdict may be reversed where the
evidence conclusively proves a fact that establishes a party’s right to
judgment as a matter of law and there is no evidence to the contrary.
McCarley v. Hopkins, 687 S.W.2d 510, 512 (Tex. App.—Houston [1st
Dist.] 1985, no writ). In reviewing the denial of an instructed verdict,
we consider all the evidence in the light most favorable to the
nonmovant and disregard all evidence to the contrary. Harris County v.
Demny, 886 S.W.2d 330, 333 (Tex. App.—Houston [1st Dist.] 1994,
writ denied). Every reasonable inference is resolved in favor of the
nonmovant. Id.
Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712 (Tex. App.—Houston [1st
Dist.] 1996, no writ).
The “true nature” of Martinez’s cause of action is his complaint about the
post-transaction stolen-vehicle report and his detention by the police. See McClung,
866 F. Supp. at 308 (“this [detention] is the conduct giving rise to Plaintiff’s
claims”); id. at 309 (“Plaintiff’s claims arise out of post-transaction conduct wholly
unrelated to the quality or suitability of the goods he purchased.”); Scruggs, 1998
WL 224022, at *6 (“Scruggs’s complaints really concern her treatment on the day
in question after being refused to make returns and after being told to leave. These
events, while unpleasant to Scruggs, had nothing to do with taking advantage of her
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lack of knowledge, ability, experience, or capacity to a grossly unfair degree in some
type of consumer or economic transaction.”).
Like the Wal-Mart cashier in McClung who mistakenly failed to remove the
magnetic security chip attached to the phone purchased by the plaintiff, Champion
Chevrolet mistakenly put the incorrect VIN on the paperwork for the truck purchased
by Martinez through Cisneros. Martinez’s claims arose out of post-transaction
conduct—the report of the truck as stolen and the police detention—that is wholly
unrelated to either the quality or suitability of the truck that he purchased through
Cisneros or to any representations by Champion Chevrolet to Martinez about the
Retail Purchase Agreement.4 And the VIN mistake in the paperwork was not an
4
Regarding the two DTPA “laundry list” violations found by the jury, Champion
Chevrolet notes that there is no evidence that it represented to Martinez that the
truck was of a particular style or model when it was of another. See TEX. BUS. &
COM. CODE § 17.46(b)(7); cf. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299,
305 & n.15 (Tex. 2006) (car dealership promised plaintiff she would receive
premium-model vehicle but delivered base-model vehicle). Champion Chevrolet
sold to Martinez, through Cisneros, the black Silverado that Martinez wanted to buy.
There is no evidence that the black Silverado was not the particular style or model
that Champion Chevrolet represented it to be, and the paperwork error had nothing
to do with the particular style or model of the black Silverado.
Champion Chevrolet further notes that there is no evidence that it made a
representation to Martinez that the Retail Purchase Agreement conferred or
involved rights that it did not have or involve. See TEX. BUS. & COM. CODE
§ 17.46(b)(12); cf. Bossier Chrysler-Dodge II, Inc. v. Riley, 221 S.W.3d 749, 753
(Tex. App.—Waco 2007, pet. denied) (car dealership misrepresented buyer’s right
to cancel installment contract). For liability under section 17.46(b)(12), the
defendant must have made an affirmative misrepresentation to the plaintiff about or
outside the agreement. See Ken Petroleum Corp. v. Questor Drilling Corp., 24
S.W.3d 344, 357 (Tex. 2000) (citing Best v. Ryan Auto Grp., Inc., 786 S.W.2d 670,
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unconscionable act that took advantage of Martinez to a grossly unfair degree in the
sale of the truck to him through Cisneros. See TEX. BUS. & COM. CODE § 17.45(5);
McClung, 866 F. Supp. at 310–11; see also Scruggs, 1998 WL 224022, at *6.
Champion Chevrolet is correct that this case is only an instigation-of-false-
imprisonment case. See Delese, 83 S.W.3d at 830 (concluding that true nature of
plaintiff’s fraud and conspiracy claims was malicious prosecution); Tovar, 932
S.W.2d at 155–56 (holding that plaintiff could not avoid strict elements of malicious
prosecution action by labeling it negligence); Kale, 791 S.W.2d at 631–32
(concluding that true nature of plaintiffs’ fraud and conspiracy to defraud claims was
malicious prosecution). Accordingly, the trial court erred in denying Champion
Chevrolet’s motion to disregard and for JNOV, which asserted this complaint. The
trial court should have found for Champion Chevrolet as a matter of law on
Martinez’s DTPA claims on this basis and should have rendered judgment that
Martinez take nothing on his DTPA claims. We sustain Champion Chevrolet’s sub-
issue that Martinez improperly recast his instigation-of-false-imprisonment claim as
671–72 (Tex. 1990) (holding that evidence of representations outside contract was
legally sufficient evidence to support section 17.46(b)(12) claim)); Wyly v. Integrity
Ins. Sols., 502 S.W.3d 901, 907–08 (Tex. App.—Houston [14th Dist.] 2016, no
pet.). There is no evidence that Champion Chevrolet made any representations to
him about the Retail Purchase Agreement, including any representations to him
about the VIN in the agreement.
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DTPA claims. Because we sustain this sub-issue, we need not address Champion
Chevrolet’s other sub-issues on Martinez’s DTPA claims.
Having determined that Martinez take nothing on his DTPA claims, we turn
to Champion Chevrolet’s sub-issues on the jury’s finding that it instigated the false
imprisonment of Martinez. We first address Champion Chevrolet’s sub-issue that
complains that the trial court entered judgment on both Martinez’s DTPA claims and
on his instigation-of-false-imprisonment claim. We disagree. While the judgment
incorporated the jury finding on instigation of false imprisonment, see Boyce Iron
Works, Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 786–87 (Tex. 1988), Martinez
elected recovery on his DTPA claims and the judgment awarded him damages on
only his DTPA claims. No double recovery was awarded. We therefore overrule this
sub-issue.
In electing recovery on his DTPA claims, Martinez did not waive his
alternative claim for instigation of false imprisonment. When “a party tries a case on
alternative theories of recovery and a jury returns favorable findings on two or more
theories, the party has a right to a judgment on the theory entitling him to the greatest
or most favorable relief.” Boyce Iron Works, 747 S.W.2d at 787; see, e.g., Landing
Cmty. Improvement Ass’n, Inc. v. Young, No. 01-15-00816-CV, 2018 WL 2305540,
at *24 & n.11 (Tex. App.—Houston [1st Dist.] May 22, 2018, pet. filed) (mem. op.);
Strebel v. Wimberly, 371 S.W.3d 267, 286 (Tex. App.—Houston [1st Dist.] 2012,
19
pet. denied). If the judgment is reversed on appeal, the party may seek recovery
under the alternative theory on remand. Boyce Iron Works, 747 S.W.2d at 787;
Landing Cmty. Improvement Ass’n, 2018 WL 2305540, at *24 & n.11; Strebel, 371
S.W.3d at 286. Because Martinez may be entitled to seek judgment on his alternative
instigation-of-false-imprisonment claim, we remand this case to the trial court for
consideration of the jury’s alternative finding. See Landing Cmty. Improvement
Ass’n, 2018 WL 2305540, at *24 & n.11.
Conclusion
We reverse the trial court’s judgment and render judgment that Martinez take
nothing against Champion Chevrolet on his DTPA claim. We remand the case to the
trial court for consideration of the jury’s alternative finding that Champion Chevrolet
instigated the false imprisonment of Martinez.
Richard Hightower
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
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