Jacobs v. Danny Darby Real Estate, Inc.

750 S.W.2d 174, 31 Tex. Sup. Ct. J. 444, 1988 Tex. LEXIS 58, 1988 WL 48368

• Court: Texas Supreme Court
• Decided: May 18, 1988
• Docket: C-7115
• Status: Published

Opinions

OPINION

GONZALEZ, Justice.

This is a case brought under the DTPA.¹ Charles Ray Jacobs sued Danny Darby Real Estate, Inc. to recover for alleged misrepresentations in advertising certain property for sale under the land purchase program of the Texas Veterans Land Board. Pursuant to a jury verdict, Jacobs was awarded a judgment in his favor by the trial court. The court of appeals reversed the judgment of the trial court and remanded the cause for a new trial. 740 S.W.2d 18 (Tex.App.1987). We reverse the judgment of the court of appeals and remand to that court for consideration of Darby’s points of error presented to but not considered by the court of appeals.

Darby advertised for sale several tracts of land near Greenville, Texas. The advertising indicated that financing was available through the Texas Veterans Land Board. As a veteran, Jacobs was eligible to participate in the program. In reliance upon Darby’s advertisement, Jacobs signed an earnest money contract on October 6, 1979. This contract provided that the sale was contingent on Jacobs obtaining financing from the Board. Jacobs, allegedly relying on Darby’s representations that financing would be obtained, purchased a mobile home and installed it on the tract. Jacobs also constructed a driveway, and obtained telephone, water, sewage and electrical services for the property.

On December 27, 1979, Jacobs filed an application for financing and contract of sale with the Board. In February 1980 the Board informed Jacobs that it would not finance the sale. Shortly thereafter, Darby commenced eviction proceedings against Jacobs.

Jacobs brought suit against Darby alleging violations of the DTPA based upon Darby’s representation that Jacobs would be able to obtain financing through the Board. The jury answered the issue favorably to Jacobs. The court of appeals reversed and remanded, holding that Jacobs ‘offered no evidence that his expenses were reasonable and necessary....” 740 S.W.2d at 19.

Jacobs has presented only one point of error to this court by which he asserts that the court of appeals erred in holding that there was no evidence that the expenses he incurred as a result of Darby’s alleged misrepresentation were reasonable and necessary.² In reviewing this no evidence point, we must consider only the evidence and inferences which tend to support the finding, and disregard all evidence and inferences to the contrary. Stranglin v. Keda Development Corp., 713 S.W.2d 94, 95 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Jacobs incurred out-of-pocket expenses in moving a mobile home on the property for his family and in establishing utility services for the home. Jacobs personally installed a driveway, a septic tank and equipment for electric and water utilities. Jacobs purchased the septic tank from his cousin at wholesale price. His cousin, who was in the busines of selling and installing septic tanks, installed the tank with Jacobs’ assistance.

Jacobs purchased and installed the equipment necessary for electrical service and water service; he also purchased crushed rock to build a 400 foot driveway, and rented a maintainer to smooth the stone once it was laid. Because he rented the maintainer from a friend, his rental costs were reduced from $400 per day to $400 per month. Jacobs’ only other expenses incurred as a result of his improvements were for the telephone hookup service, rock for the septic tank, fuel for the maintainer, and the cost of hiring someone to operate the maintainer. Jacobs did not request compensation for the value of his services. The expenses which Jacobs asked to be reimbursed for as damages in this suit totalled less than $1500.

We hold that there is some evidence to support a finding that the work performed and the expenses incurred incident to that work were reasonable and necessary. Accordingly, we reverse the judgment of the court of appeals and remand the cause to that court for consideration of the remainder of Darby’s points of error.

KILGARLIN, J., concurs, and RAY, J., joins.

1 . Texas Deceptive Trade Practices — Consumer Protection Act found in Tex.Bus. & Comm.Code Ann. §§ 17.41-17.63 (Vernon Supp.1988).

2 . It has not been asserted by point of error to this court that the court of appeals erred in requiring Jacobs to prove that the damages he suffered from the alleged misrepresentation were reasonable and necessary. We need not decide the correctness of this requirement today, as it has not been preserved for consideration by point of error. If Jacobs was in fact required under the DTPA to establish that his expenses were reasonable and necessary, such must be deemed found in support of the judgment, as no issue on this element was submitted or requested. Tex.R.Civ.P. 279.