Cielo Dorado Development, Inc. v. Certainteed Corp.

744 S.W.2d 10, 31 Tex. Sup. Ct. J. 176, 1988 Tex. LEXIS 2, 1988 WL 2489

• Court: Texas Supreme Court
• Decided: January 20, 1988
• Docket: C-6522
• Status: Published

Opinions

KILGARLIN, Justice.

This case involves the question of proper notice under the Deceptive Trade Practices-Consumer Protection Act. Tex.Bus. & Com.Code Ann. §§ 17.41-17.63 (Vernon 1987) (DTPA). The trial court rendered judgment for Cielo Dorado Development, Inc. against Certainteed Corporation based on Cielo Dorado’s DTPA claims. The court of appeals reversed that judgment based on its conclusion that Cielo Dorado failed to prove proper notice under DTPA § 17.50A(a). 733 S.W.2d 247. (The DTPA’s notice provision has recently been renumbered as § 17.505(a), eff. 9/1/87.) We reverse the judgment of the court of appeals and remand to that court for consideration of other points which it chose not to consider in its original opinion.

The facts of this case, briefly, are as follows: Certainteed sold pipe to Cielo Do-rado for an irrigation system. The system failed and Cielo Dorado sued Certainteed and others. In its answer, Certainteed pleaded that Cielo Dorado failed to comply with the DTPA’s notice requirement. At trial, Cielo Dorado’s attorney testified, without objection, that notice had been given pursuant to the DTPA. After Cielo IDorado rested, Certainteed moved for a [directed verdict on the DTPA claims based ⅛ part on Cielo Dorado’s alleged failure to give notice of claim as required by the DTPA. After denying Certainteed’s motion, the trial court submitted Cielo Dora-do’s DTPA claims to the jury. No issue on notice was requested or submitted, and Certainteed did not object to the trial court’s failure to submit such an issue.

Even if we assume arguendo that notice under DTPA § 17.50A was an element of Cielo Dorado’s case, Cielo Dorado’s attorney testified without objection that notice was given pursuant to the DTPA. In these circumstances, Tex.R.Civ.P. 279 requires that the issue of notice under the DTPA be deemed as found by the trial court in support of its judgment. Certainteed did plead noncompliance with DTPA § 17.50A, but even if proper DTPA notice was Cielo Do-rado’s issue, Certainteed still had to object to its non-submission under the clear language of Rule 279:

Failure to submit an issue shall not be deemed a ground for reversal of the judgment, unless its submission, in substantially correct wording, has been requested in writing and tendered by the party complaining of the judgment; provided, however, that objection to such failure shall suffice in such respect if the issue is one relied upon by the opposing party.

The testimony by Cielo Dorado’s attorney was conclusory, but it came in without objection. We hold that constituted some evidence of proper notice under the DTPA. Again, assuming proper notice was Cielo Dorado’s issue, Certainteed was required to object to its non-submission. Certain-teed made no such objection, and there is some evidence to support a finding that notice was properly given under the DTPA. In these circumstances, Tex.R.Civ.P. 279 requires that the omitted issue of notice under the DTPA be deemed as found by the trial court in support of its judgment.

The judgment of the court of appeals is reversed, and this cause is remanded for consideration of other points which the court of appeals chose not to consider in its original opinion.

GONZALEZ, J., dissents, joined by PHILLIPS, C.J., and WALLACE, J.