Larry Miller D/B/A Mobile Mechanic v. State

• Court: Court of Appeals of Texas
• Decided: November 18, 2003
• Docket: 14-02-00884-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 18, 2003

Affirmed and Memorandum Opinion filed November 18, 2003.

In The

Fourteenth Court of Appeals

____________

NO. 14-02-00884-CV

LARRY MILLER, d/b/a MOBILE MECHANIC, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 01-41557

M E M O R A N D U M   O P I N I O N

The trial court found appellant liable for violations of the Deceptive Trade Practices-Consumer Protection Act, awarded a permanent injunction against appellant, and assessed the penalty at a civil fine of $20,000, restitution to consumers of $247,652.50, and attorneys= fees of $84,536.65.  In two issues, appellant challenges the sufficiency of the evidence supporting damages and accuses the Attorney General and his staff of manufacturing testimony.  We affirm.

BACKGROUND

Appellant owned and operated two Amobile mechanic@ shops.  As part of this business operation, mechanics would travel to consumers= vehicles.  The State sued appellant under the Deceptive Trade Practices-Consumer Protection Act, alleging the following: (1) disconnecting parts on consumers= vehicles so the vehicles would have to be towed to one of the shops; (2) giving low estimates which were increased once the vehicles were under appellant=s control; (3) charging consumers for work which had not been performed; (4) threatening consumers with having their vehicles impounded for not paying inflated bills; (5) foreclosing bogus mechanics= liens on vehicles; and (6) converting vehicles for personal use.  In support of these claims, the State presented approximately forty consumers as witnesses.

ANALYSIS

In two issues in this pro se appeal, appellant challenges the sufficiency of the evidence supporting damages and accuses the Attorney General and his staff of manufacturing evidence.

In his first issue, appellant challenges the sufficiency of the evidence as to the civil penalty and restitution damages.^[1]   In his argument, appellant primarily attempts to rebut the testimony of each witness.  However, appellant has provided no record citations to support any of the assertions he presents, and he apparently relies on matters that were not offered or submitted as evidence at trial.  It is not the duty of an appellate court to make an independent search of the record for evidence that supports a party=s position.  Stevens v. Stevens, 809 S.W.2d 512, 513 (Tex. App.CHouston [14th Dist.] 1991, no writ).  Nor may an appellate court consider evidence outside the record, other than for limited exceptions not relevant here.  Nguyen v. Intertex, Inc., 93 S.W.3d 288, 292B93 (Tex. App.CHouston [14th Dist]. 2002, no pet.).  Because appellant does not demonstrate how the testimony by any witness is insufficient to support a finding for the State, and appellant does not point to any competent evidence to the contrary, we conclude that the evidence is legally and factually sufficient to support the trial court=s finding.

We further note that appellant has not provided any explanation of how damages were calculated by the trial court.  The trial court awarded a single restitution amount and did not break it down as to individual complainants.  Appellant bases his argument on a Arestitution log,@ but the restitution log fails to comport with either the testimony at trial^[2] or the amount actually awarded.^[3]  Because we cannot determine the amount actually awarded any complainant, we cannot determine if that amount is supported by the evidence.  See Thomas v. Oldham, 895 S.W.2d 352, 359B60 (Tex. 1995).

Appellant complains that he was not allowed to present his evidence as to each of the State=s witnesses after each witness testified.  During the State=s case, the trial court limited appellant to cross-examination of the State=s witnesses.  This limitation comports with the Rules of Civil Procedure, which provide that the plaintiff is to present all of its evidence first, and then the defendant is to present his evidence.  See Tex. R. Civ. P. 262, 265.  Although appellant had the opportunity to present his evidence during his case-in-chief, he apparently elected not to present evidence on the matters he now wishes us to consider.

Appellant also complains that a number of claims against him were barred by the statute of limitations.  See Tex. Bus. & Com. Code 17.47(d) & 17.565.  The trial court was made aware of the statute of limitations, but the court did not expressly rule as to whether it applied.  Even assuming the trial court impliedly ruled the statute of limitations did not apply, appellant did not present this complaint as an issue, and it is therefore waived.  See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987).   Further, appellant has also waived this complaint by citing no legal authority as to whether the statute of limitations applies in this case.^[4]  See Raitano v. Tex. Dept. of Pub. Safety, 860 S.W.2d 549, 554 (Tex. App.CHouston [1st Dist.] 1993, writ denied).  Appellant=s first issue is overruled.

In his second issue, appellant accuses the Attorney General and his staff of manufacturing evidence.  However, appellant has not presented any evidence from the record in support of his claims.  Appellant=s second issue is overruled.  See Nguyen, 93 S.W.3d at 292B93.

The judgment of the trial court is affirmed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed November 18, 2003.

Panel consists of Justices Yates, Fowler, and Frost.

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^[1]  Appellant filed an Aaddendum@ to his brief challenging the sufficiency of the evidence supporting attorneys= fees.  Although the rules allow for an appellant to file a reply brief addressing any matter in the appellee=s brief, appellant=s Aaddendum@ was both untimely and raised an issue not previously addressed.  See Tex. R. App. P. 38.3, 38.6(c).  Thus, we do not consider this issue.

^[2]  For example, the restitution log lists John Bajor as being entitled to $2,000 in restitution.  However, the State admitted at trial that Bajor had obtained a judgment against appellant and that he would not be entitled to an additional recovery, and Bajor stated that he was not seeking any recovery. But, appellant appears to assume in his brief that the trial court awarded $2,000 to Bajor nevertheless.

^[3]  The restitution log calculates the total restitution due as $96,754.73.  In its closing argument, the State sought $84,536.65, which the trial court awarded.  Appellant provided no explanation of the $12,218.08 difference, nor is the difference apparent from the Restitution Log.

^[4]  The State apparently presented the trial court with authority for the proposition that the statute of limitations in section 17.47 applies only to actual damages, not restitution.  See Tex. Bus. & Com. Code ' 17.47(d).  Because the question of whether the statute of limitation applies is not properly before this court, we do not rule on it.