Charles Pennington v. J. W. Singleton
SUPREME COURT OF TEXAS
606 S.W.2d 682; 1980 Tex. LEXIS 380; 23 Tex. Sup. J. 58
September 12, 1980

This suit was brought by the purchaser of a boat for damages for misrepresentations made by the seller to induce the sale. The trial court rendered judgment for the plaintiff. The court of civil appeals, on motion for rehearing, reversed and rendered judgment that the plaintiff take nothing. 568 S.W.2d 367. We reverse the judgment of the court of civil appeals and affirm that of the trial court.

The facts, as found by the trial court, are as follows: In May of 1975 J. W. Singleton sold his used boat, motor, and trailer to Charles Pennington. Singleton had never sold a boat before and was not in the business of selling boats. Singleton made oral statements to Pennington to the effect that the boat, motor, and trailer had just had $ 500 worth of work done, making the boat and motor in "excellent condition," "perfect condition," and "just like new." These statements were made as statements of material fact, and not as merely opinion or puffing. The statements were false because the gear housing of the motor had been cracked and inadequately repaired. Singleton did not know the statements were false, nor did he make the statements recklessly because he had not experienced any difficulty with the boat after it was repaired. Pennington relied on the statements and would not have purchased the boat without them.

In July of 1975 the gear housing required repairs costing $ 481.68 because at the time of the sale to Pennington, the gear housing was not in adequate condition for its intended use. The statements made by Singleton were found to have caused an unconscionable result.

The trial court's conclusions of law were that 1) Pennington had not proved the elements of common law fraud, and 2) that he had proved a cause of action under the Texas Deceptive Trade Practices-Consumer Protection Act. Accordingly, the trial court found that Pennington was entitled to an amount equal to three times his actual damages of $ 481.68. Before trial, however, the parties had agreed to a $ 500 limit on exemplary damages, if such damages were recoverable. Because of this stipulation the trial court's judgment was reduced to $ 981.68.

On appeal to the court of civil appeals, Singleton contended that the Deceptive Trade Practices-Consumer Protection Act (DTPA) is inapplicable when the person misrepresenting goods or services is not in the business of selling or leasing those goods or services. The court of civil appeals, with one judge dissenting, disagreed and affirmed the trial court's judgment. In his motion for rehearing, Singleton contended that the treble damages provision of the DTPA could not be constitutionally applied.  The court of civil appeals agreed, holding that none of the subdivisions of § 17.46(b) were applicable, and that Singleton could not be held liable for treble damages under § 17.46(a) or § 17.50(a)(3) without a showing that his misrepresentations were made knowingly or with wrongful intent. Accordingly, the court of civil appeals reversed the judgment of the trial court and rendered judgment that Pennington take nothing.

Pennington's application for writ of error to this court was granted to consider whether the court of civil appeals correctly construed the DTPA as applied to a private cause of action.

In Woods v. Littleton, 554 S.W.2d 662 (Tex. 1977), the principles applicable in construing the DTPA were set out. The primary emphasis is on the intention of the legislature, keeping in view "the old law, the evil and the remedy." Legislative intent should be determined from the language of the entire Act and not isolated portions. The court is not necessarily confined to the literal meaning of the words used, and the legislative intent rather than the strict letter of the Act will control. The Act itself provides in § 17.44 that it "shall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection." Id. at 665.

To provide individual consumers with a method and incentive to discourage deceptive trade practices, the legislature included § 17.50, thereby creating a private cause of action for mandatory treble damages. Woods v. Littleton, supra at 670. Section 17.50(a) has four subdivisions, which list categories of prohibited conduct. A finding that the defendant's acts fall within one of these subdivisions may entitle the plaintiff to the remedies allowed by § 17.50(b). Sections 17.50(a) and (b) provide in pertinent part:

"Sec. 17.50. Relief for Consumers

(a) A consumer may maintain an action if he has been adversely affected by any of the following:
(1) the use or employment by any person of an act or practice declared to be unlawful by Section 17.46 of this subchapter;
(2) breach of an express or implied warranty;
(3) any unconscionable action or course of action by any person; or
(4) the use or employment by any person of an act or practice in violation of Article 21.21, Texas Insurance Code, as amended, or rules or regulations issued by the State Board of Insurance under Article 21.21, Texas Insurance Code, as amended.

(b) In a suit filed under this section, each consumer who prevails may obtain:
(1) three times the amount of actual damages plus court costs and attorneys' fees reasonable in relation to the amount of work expended; . . .

With these considerations in mind, we will determine whether Pennington has proved one or more causes of action under § 17.50(a), and if so, whether Singleton is liable for treble damages as provided in § 17.50(b).

CONSUMER CAUSES OF ACTION UNDER § 17.50(a)

Section 17.50(a)(1) provides that a consumer may maintain an action for violations of § 17.46. Section 17.46(a) declares unlawful any "(f)alse, misleading, or deceptive acts or practices in the conduct of any trade or commerce." Section 17.46(b) lists a number of more specifically defined acts that are prohibited as being unlawfully false, misleading, or deceptive. Section 17.46(a) and the relevant subdivisions of § 17.46(b) provide:

Sec. 17.46. Deceptive Trade Practices Unlawful

        (a) False, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

        (b) The term "false, misleading, or deceptive acts or practices' includes, but is not limited to, the following acts:

            (5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval,                     status, affiliation, or connection which he does not;

            (7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another; . . .


Pennington contends that subdivisions (5) and (7) of § 17.46(b) are applicable to the misrepresentations made about the boat.

Subdivision (5) prohibits representing that a good has characteristics, uses, or benefits that it does not have. The boat sold to Pennington was represented to have the characteristics of a "new" boat or a boat in "excellent" or "perfect" condition. The boat did not have these characteristics because of the cracked gear housing. The boat was also represented to produce the uses and benefits of a "new" boat or a boat in "excellent" or "perfect" condition. Because of the cracked gear housing, the boat could not produce those benefits. A good may lack its claimed characteristics or fail to bring about its claimed uses or benefits because it is not in good mechanical condition, or for other reasons such as its design or manufacture. In United Postage Corp. v. Kammeyer, 581 S.W.2d 716 (Tex.Civ.App.-Dallas 1979, no writ), a vending machine was represented to have a certain selling capacity. Because it lacked that capacity, it was held to lack its claimed characteristics, uses, or benefits. Id. at 721. We do not agree with Singleton's argument that false statements about the boat's mechanical condition did not relate to its characteristics, uses, or benefits. Regardless of the reason, when a good does not have the characteristics it is represented to have, or perform as represented, the injury to the consumer is the same. There is no justification for excluding some misrepresentations and including others on the basis of the reason for their falsity.

Subdivision (7) prohibits representing that a good is of a particular standard, quality, grade, style, or model if it is of another. Quality is a measure of degree; as to particular goods quality may be calibrated by standard or grade, as with eggs or meat, or specified by style or model, as with machinery. Even when specific categories are not devised, the good may still be described with more general words of quality. Words like "excellent" and "perfect" are words indicating a high degree of quality. Because the boat was in poor mechanical condition, its condition was of poor quality and the representations were false.

The terms used in § 17.46(b)(5) and (7) such as "characteristics" or "quality" are not defined in the DTPA. Therefore, they must be given their ordinary meanings. The general objective of subdivisions (5) and (7) is to ensure that descriptions of goods or services offered for sale are accurate. Misrepresentations, so long as they are of a material fact and not merely "puffing" or opinion, are nevertheless actionable even though they are broad descriptions such as were made to Pennington. The DTPA prohibits false general descriptions about the good, as well as misrepresentations pertaining to more specific information.

APPLICABILITY OF THE DTPA TO NONMERCHANTS

By cross-point Singleton urges that the DTPA does not apply to an isolated sale of a good by one who is not engaged in the business of selling that good. We agree with the court of civil appeals' first opinion, which held that the Act cannot reasonably be construed as so restricted. Section 17.46 prohibits false, misleading, or deceptive acts in "trade or commerce." "Trade" and "commerce" are broadly defined in § 17.45(6) as "the advertising, offering for sale, sale, lease, or distribution of any good or service, of any property, tangible or intangible, real, personal, or mixed, and any other article, commodity, or thing of value, wherever situated, and shall include any trade or commerce directly or indirectly affecting the people of this state." Section 17.50(a)(1) allows a private cause of action for "any person's" unlawful trade practice. "Person" is defined in § 17.45(3) as "an individual, partnership, corporation, association, or other group, however organized." No exception is provided for persons engaged in trade or commerce who are not in the business of selling; other exemptions are allowed in § 17.49.

The legislature explicitly defined the type of transactions included within the DTPA and the persons against whom a private action may be brought. No indication is made that persons not in the business of selling are to be excluded. Furthermore, it is reasonable to assume that the private action was included in the DTPA to provide a remedy for one-time abuses that could not be adequately handled by state enforcement. For these reasons, we hold that a private cause of action is available against nonmerchants as well as merchants.

CONCLUSION

The judgment of the court of civil appeals is reversed and that of the trial court is affirmed.