Opinion
No. 04-05-00921-CV
Delivered and Filed: March 14, 2007.
Appeal from the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-13069, Honorable Lori D. Massey, Judge Presiding.
The Honorable Michael Peden is the presiding judge of the 285th Judicial District Court, Bexar County, Texas. However, the Honorable Lori D. Massey, the presiding judge of the 288th Judicial District Court, Bexar County, Texas, presided over the bench trial and signed the judgment that is at issue in this appeal.
Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
In the underlying litigation, Jessica Lumpkin sued Ernest Harris, d/b/a Sharp Cars, for damages and attorney's fees resulting from a transaction in which Lumpkin purchased a vehicle from Harris. Lumpkin asserted claims for breach of contract, violations of the Deceptive Trade Practices Act ("DTPA"), and fraud. The trial court found Harris breached the contract and violated the DTPA. However, the trial court determined Harris did not knowingly violate the DTPA and did not commit fraud. The trial court entered a take-nothing judgment against Lumpkin, concluding she was not entitled to damages or attorney's fees. Lumpkin complains of the trial court's decision in two issues on appeal. We affirm.
BACKGROUND
In December 2003, Lumpkin purchased a Saturn vehicle from Sharp Cars, which is owned by Harris. At the time Lumpkin purchased the vehicle, it had approximately 60,268 miles on it. After Lumpkin took possession of the vehicle, Harris informed Lumpkin that he would send the title to her within two weeks. Lumpkin repeatedly contacted Harris in an attempt to obtain the title, and Harris explained he was waiting for the title from the auction house where he purchased the vehicle. Harris testified that in March 2004, Lumpkin came to his dealership and he attempted to sign over the title to her. However, Harris claimed Lumpkin refused to accept the title because she was not satisfied with the vehicle. Although Lumpkin admitted she went to Harris's dealership in March 2004, she denied that Harris attempted to sign the title over to her. Harris testified that in April 2004, he put the title to the Saturn in his own name because Lumpkin refused to accept the title and he felt the title had to be updated. Lumpkin claimed that because she was unable to get the title from Harris, she was prevented from updating both the inspection sticker and the registration sticker on the vehicle. Lumpkin also alleged that in April 2004 she was stopped by a police officer and was given a verbal warning to not drive the Saturn because her inspection and registration stickers were both expired. She testified that as a result of the expired stickers, she only used the Saturn in May, June, and July, when she "had to use it."
On May 20, 2004, Lumpkin's attorney sent a letter to Harris demanding that Harris deliver the original title to Lumpkin and seeking $4,250 in damages. Harris failed to respond to the demand letter; however, on August 18, 2004, he offered to give Lumpkin another vehicle in exchange for the Saturn. After Lumpkin inspected and drove two vehicles, she accepted a Chevy Malibu in exchange for the Saturn. Both Harris and Lumpkin testified they considered it "an even swap." About six days after the trade, Harris sold the Saturn to another customer, and at that time Harris noted the Saturn had 12,000 more miles on it than when he first sold it to Lumpkin. Lumpkin admitted she put approximately 8,000 miles on the vehicle between December and April, but she claimed she only drove the vehicle intermittently in May, June, and July. Harris testified he did not believe it was possible that he put the additional 4,000 miles on the Saturn in the few days between the trade with Lumpkin and the sale of the Saturn to another customer.
Following a bench trial, the trial court made the following findings of fact: (1) Harris breached the contract with Lumpkin; (2) Harris violated the DTPA, although not knowingly; (3) Harris did not commit fraud; (4) Lumpkin did not incur any damages; and (5) Lumpkin did not suffer mental anguish. On the issue of damages, the trial court specified that Lumpkin made full use of the vehicle, suffered no loss of use, and accepted another vehicle in exchange for the Saturn as "an even swap." Also, the trial court made the following conclusions of law: (1) Lumpkin was not entitled to recover attorney's fees because there were no compensatory damages awarded; and (2) Lumpkin was not entitled to mental anguish damages or exemplary damages based on the court's findings.
DAMAGES
In her first issue on appeal, Lumpkin challenges both the legal and factual sufficiency of the trial court's finding of no damages. Specifically, Lumpkin claims she is entitled to $4,350 in out-of-pocket damages,and (2) $1,800 for the loss of use of the Saturn. "Findings of fact in a case tried to the court have the same force and dignity as a jury's verdict upon questions" and are reviewable for legal and factual sufficiency. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). We review the trial court's conclusions of law de novo. Copeland v. Alsobrook, 3 S.W.3d 598, 605 (Tex.App.-San Antonio 1999, pet. denied). When the appellate record contains a complete reporter's record of the trial, as is the case here, the findings of fact are not conclusive. Id. Therefore, the findings are subject to the same standards used to review the evidence supporting a jury's verdict. Id.
On appeal, Lumpkin also claims she was entitled to $303.13 for the amount of taxes on the Saturn because Harris allegedly failed to pay the taxes to the State of Texas. However, the $303.13 in taxes were included in the $4,850 total sales price, and, therefore, we will not address the damages for the sales tax separately.
When the party who had the burden of proof at trial complains of the legal sufficiency of an adverse finding, that party must demonstrate the evidence establishes conclusively ( i.e., as a matter of law) all vital facts in support of the finding sought. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). We first examine the record for evidence supporting the adverse finding, ignoring all evidence to the contrary. Id. If more than a scintilla of evidence supports the adverse finding, our inquiry ends. Id. "More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, `rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (citations omitted). If there is no evidence to support the finding, the entire record must be examined to determine if the contrary proposition is conclusively established. Dow Chem. Co., 46 S.W.3d at 241. The issue will be sustained if the contrary proposition is conclusively established. Id.
When a party who had the burden of proof at trial complains of the factual sufficiency of the evidence, that party must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence. Dow Chem. Co., 46 S.W.3d at 242. All of the evidence must be weighed and the adverse finding will only be set aside if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. 1. Out-of-Pocket Damages
On appeal, Lumpkin argues she was entitled to her out-of-pocket damages, which she asserts totaled $4,350. An injured party is entitled to recover for the actual injury suffered, which is measured by the difference between the value parted with and the value received. See Leyendecker Associates, Inc. v. Wechter, 683 S.W.2d 369, 373 (Tex. 1984) (out-of-pocket recovery is permitted under both common law and the DTPA). Lumpkin contends she paid $4,850 for the Saturn and the value of the Saturn without the title at the time she traded it for the Malibu was only $500. She asserts Harris's failure to offer any evidence of the fair market value of the Saturn or the Malibu at the time of the trade supports her contention that the Saturn's fair market value was $500. Therefore, she argues she is entitled to the difference of $4,350. However, this argument fails to address the implications of the "even swap" of the Saturn for the Malibu. Because the trade was regarded by both parties as "an even swap," there was no difference between the value Lumpkin parted with and the value of what she received. Therefore, the evidence is legally and factually sufficient to support the trial court's finding of no damages for out-of-pocket expenses.
2. Loss of Use Damages
A vehicle owner is entitled to damages for the loss of use of their vehicle for the entire amount of time they are deprived of the vehicle's use. See Luna v. N. Star Dodge Sales, Inc., 667 S.W.2d 115, 119 (Tex. 1984). Loss of use may be proved by evidence of the reasonable rental value of a substitute vehicle. Id. However, a party is entitled to be compensated only for "the injury done." See Luna, 667 S.W.2d at 119. At trial, Lumpkin argued that without the title, the inspection and registration stickers had expired, rendering the vehicle unusable during May, June, and July. She testified her loss was valued at $20 per day for those three months. However, Lumpkin provided no evidence of specific instances in which she was prevented from using the Saturn. In fact, she admitted she used the Saturn when she "had to use it." Also, Harris testified he attempted to sign over the title to Lumpkin in March 2004, prior to when Lumpkin's alleged loss of use arose. The only evidence weighing against the trial court's finding is Lumpkin's testimony that she was limited in her use of the Saturn because of the expired inspection and registration stickers. However, there was evidence presented at trial that over 12,000 miles were put on the Saturn between December and August. Lumpkin claimed she only put approximately 8,000 miles on the Saturn, primarily between the months of December and April, but admitted at trial that she drove the Saturn during May, June, and July. Lumpkin testified that "after my registration expired and I got pulled over, I only used it when I had to use it."Lumpkin's own testimony acknowledging she drove the Saturn during May, June, and July supports the trial court's finding that she was not deprived of the vehicle's use during that time, and, therefore, there was no injury done that would entitle her to compensation. In addition, Lumpkin provides no support for the argument that the expired stickers entitle her to loss of use damages even though she continued to drive the vehicle. After reviewing the record, we find the evidence both legally and factually sufficient to support the trial court's finding of no damages for loss of use.
On appeal, Lumpkin asserts she only used the vehicle for "limited, necessary travel."
ATTORNEY'S FEES
In her final issue on appeal, Lumpkin asserts the trial court abused its discretion in denying her attorney's fees. We review a decision by the trial court denying or granting attorney's fees under an abuse of discretion standard. EMC Mortgage Corp. v. Davis, 167 S.W.3d 406, 418 (Tex.App.-Austin 2005, pet. denied). A party can only recover attorney's fees if it is permitted by statute or contract. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999) (per curiam). This lawsuit involved both breach of contract and DTPA claims. Lumpkin asserts she "conclusively proved her actual damages," and is therefore entitled to recover her attorney's fees. While a prevailing party is entitled to attorney's fees on both a breach of contract claim and a DTPA claim, the prevailing party must recover actual damages. See Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195, 201 (Tex. 2004) (per curiam) (breach of contract); Gulf States Utilities Co. v. Low, 79 S.W.3d 561, 567 (Tex. 2002) (DTPA). Because Lumpkin was not awarded actual damages on her claims, she was not entitled to recover her attorney's fees. Therefore, the trial court did not abuse its discretion in declining to award attorney's fees to Lumpkin.
CONCLUSION
Accordingly, we overrule Lumpkin's issues on appeal and affirm the trial court's judgment.