Texas Judiciary Online - HTML Opinion

Viewed in the light = most=20 favorable to the verdict, some or all of these actions indicated = the=20 Council=3Ds refusal to repair = the floor=20 was disingenuous, it did not address the Durhams=3D complaint in a = commendable=20 manner, and arguably it engaged in deceptive conduct. = However, none=20 of these actions constituted a representation that the Declaration = Aconfers or involves = rights that=20 it did not have or involve.@ Moreover, the = definition=20 of Afalse, misleading, or = deceptive=20 act or practice@ submitted to the = jury did not=20 include any other conduct outlined in section 17.46(b) of the DTPA = or=20 Aunconscionable@ actions in = general. =20 See Tex. Bus. = & Com.=20 Code Ann. ' 17.46(b) (Vernon = Supp. 2007)=20 (containing extensive and non-exclusive list of Afalse, misleading, or = deceptive=20 acts or practices@ that may be = actionable under=20 DTPA); Tex. Bus. & = Com. Code=20 Ann. ' 17.50(a)(3) (Vernon = Supp.=20 2007) (providing that a consumer may maintain DTPA action when=20 Aany unconscionable = action or=20 course of action@ is the producing = cause of=20 damages). Instead, the trial court submitted a very narrow=20 definition of Afalse, misleading, or = deceptive=20 act or practice@ that did not = encompass the=20 above-cited conduct. See Osterberg, 12 S.W.3d at 55; = CDI=20 Eng=3Dg Group, Inc., = 222 S.W.3d at = 548.

In sum, the evidence = is legally=20 insufficient to support the jury=3Ds finding that the = Council=20 knowingly committed a false, misleading, or deceptive act or=20 practice. Therefore, we sustain the Council=3Ds fourth = issue.

The jury=3Ds award of $20,000 in = exemplary=20 damages was predicated solely on the finding that the Council = knowingly=20 committed a false, misleading, or deceptive act or practice. = Accordingly, we modify the trial court=3Ds judgment to delete = the award=20 of $20,000 in exemplary damages and affirm as modified.

/s/ =20 Charles W. Seymore

Justice

Judgment rendered and = Opinion=20 filed November 20, 2007.

Panel consists of = Justices=20 Frost, Seymore, and Guzman.

^{^[1]} At one point, the = Council=3Ds maintenance supervisor and a = contractor arrived=20 at the unit to purportedly perform the repair. However, Mrs. = Durham=20 did not permit them to proceed. She testified they did not = plan to=20 repair the floor to the extent necessary, and she was unable to = contact=20 her own engineer to supervise. Later, the Council offered to = Arepair the floor to the original=20 design,@ including any structural defect, and = allow=20 oversight by the Durhams=3D consultant. It is unclear why the = repair=20 was not performed pursuant to this offer, although Mrs. Durham = indicated=20 Athat wasn=3Dt because of me.@ Nevertheless, the floor remained = unrepaired=20 at the time of trial.

^{^[2]} The Council has satisfied the = portions of=20 the judgment constituting actual damages and the Durhams=20 attorney=3Ds fees through trial.

^{^[3]} Although the Council does not = seek reversal=20 of the actual damages, it essentially challenges the exemplary = damages on=20 the ground it is not liable for an underlying DTPA violation.=20 Specifically, the Council contends the trial court erred by = submitting=20 jury questions on the Durhams=3D DTPA claim because they were not = Aconsumers@ as a matter of law; alternatively, the = evidence=20 is insufficient to support the jury=3Ds finding that the Durhams were = Aconsumers@; and the evidence is insufficient to = support the=20 jury=3Ds finding that the Council committed a = DTPA=20 violation.

^{^[4]} Although the Council was = unresponsive to=20 many of the Durhams=3D communications, it appears the Council = made the=20 following statements to the Durhams regarding its refusal to = repair the=20 floor: (1) when Mrs. Durham initially requested the repair, a = board member=20 generally suggested that one who purchases a home is obligated to = make=20 necessary repairs; (2) six weeks later, the Council=3Ds office manager informed Mrs. Durham = generally=20 that the Council board learned from its attorney the repair was = the=20 Durhams=3D responsibility; (3) a few months later, = a Council=20 board member told Mrs. Durham an engineering report supported its=20 position; when Mrs. Durham replied that she also had an = engineering=20 report, the board member suggested she file suit if she felt so = strongly=20 about her position; and (4) after several more months, the=20 Council=3Ds attorney advised the Durhams that the = Council=20 believed there was no structural defect.

^{^[5]} The Council does not challenge = the=20 jury=3Ds finding that it breached the=20 Declaration.

^{^[6]} Mrs. Durham testified that a = cosmetic=20 repair, such as a crack in the concrete which does not affect the = support=20 of the unit, is the owner=3Ds responsibility. Moreover, = several former=20 or current board members, including witnesses presented by the = Durhams,=20 testified the Council is obligated to repair structural defects = while the=20 owner is required to remedy cosmetic problems.

^{^[7]} According to the = Durhams=3D engineer, the problem was caused, in = essence, by=20 poor workmanship with respect to installation of a beam in the = subfloor=20 that caused deflection. The engineer also described an issue = with=20 the concrete patch, but he indicated the issue was not merely=20 cosmetic. Rather, the concrete was too heavy which = contributed to=20 the floor deflection. Further, a city building official and = fire=20 marshal, who viewed the floor, indicated the problem was = structural and=20 merely replacing the concrete patch would be=20 insufficient.

^{^[8]} The Council cites cases = recognizing that=20 mere misinterpretation of a contract does not rise to the level of = a DTPA=20 violation. See, e.g., Quitta v. Fossati, 808 S.W.2d = 636, 644=20 (Tex. App.CCorpus Christi 1991, writ denied); = Group Hosp.=20 Servs., Inc., 704 S.W.2d at 888B89. We note the law is somewhat = unsettled on=20 the standard for deciding when an erroneous representation that an = agreement confers or involves certain rights, remedies, or = obligations is=20 elevated from mere contract misinterpretation to a false, = misleading, or=20 deceptive act or practice actionable under the DTPA. See = W.=20 Anderson Plaza v. Feyznia, 876 S.W.2d 528, 532B33 (Tex. App.CAustin 1994, no writ) (explaining = various=20 standards applied by courts). Nevertheless, the authority = cited by=20 the Council is inapplicable because there was no erroneous = assertion in=20 the first place that the Declaration Aconfers or involves rights that it did = not have or=20 involve.@