NUMBER 13-11-00001-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

STATE OF TEXAS, Appellant,

v.

BURNS MOTORS, INC., Appellee.

On appeal from the 275th District Court of 

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Vela

Memorandum Opinion by Justice Garza 

Appellant, the State of Texas, sued appellee, Burns Motors, Inc. (“Burns”), for 

alleged violations of the Deceptive Trade Practices Act (“DTPA”). See TEX. BUS. & COM.

CODE ANN. § 17.46(a), (b)(9) (West 2011). A jury found in favor of Burns. By a single 

issue, the State contends that the trial court erred in submitting a definition of “price 
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bumping”—a “non-laundry list” violation of the DTPA—that improperly required 

intentional conduct. We conclude that the error, if any, committed by the trial court was 

harmless, see TEX. R. APP. P. 44.1(a)(1), and affirm the trial court’s judgment.

I. BACKGROUND

In the 1990s, Burns and other local car dealerships experienced excessive 

vehicle thefts. Threatened with the loss of its business insurance coverage, Burns 

instituted several measures to address the problem, including the installation of alarms 

on all vehicles that lacked a manufacturer-installed alarm. Burns sold the alarm and a 

dealer-installed fabric protectant together as a “Protection Package” for $799. 

Testimony at trial established that if a customer did not wish to purchase the alarm, 

Burns removed it. Some customers negotiated the price of the Protection Package and 

paid less than $799. Burns pre-printed the term “Security System” along with the $799 

fee on its “Salesman’s Worksheet,” a two-sided form used by salesmen to negotiate the 

final price of a vehicle with customers. Burns paid its salesmen a $20 bonus for each 

alarm sold on a new vehicle. Approximately nine out of ten customers purchased the 

alarm. 

The State sued Burns, alleging that Burns’s business practices violated the 

DTPA during the relevant time period between July 1, 2000 and June 30, 2001. 

Specifically, the State alleged that Burns: (1) “advertis[ed] vehicles at a sales price with 

the intent not to sell them as advertised,” see TEX. BUS. & COM. CODE ANN. § 17.46(b)(9) 

(providing that “advertising goods or services with intent not to sell them as advertised” 

is a false, misleading, or deceptive act or practice); and (2) engaged in the false, 

misleading, or deceptive practice of “bumping up the price of vehicles” by using a 
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worksheet pre-printed with the $799 charge for the “Protection Package,” see id. §

17.46(a) (permitting the State to sue for any act or practice alleged to be false, 

misleading, or deceptive). With regard to the “bait advertising” or intent-not-to-sell-asadvertised claim, the State’s petition alleged:

13. Defendant Burns Motors did not intend to sell the new vehicles at the 

advertised sales price because it intended to add the mark-up cost of a 

security system and/or fabric protectant to the advertised sales price of the 

new vehicles at the time of the sale-purchase transaction. For example, 

an inconspicuous footnote in the newspaper advertisements indicated that 

the cost of a[n] anti-theft system and/or protection package was to be 

added to the advertised sale price.

As to the “price-bumping” claim, the petition alleged:

14. Defendant Burns Motors failed to include the mark-up cost of the 

security system and/or fabric protectant in the advertised sales price 

although defendant, pursuant to established operating procedure, installed 

the security system and fabric protectant on new vehicles at the time they 

were received into inventory from the manufacturer. Additionally, from the 

outset, defendant meant to charge more than the advertised sales price 

(that is, bump up the price) of vehicles and had a strategy in place to 

accomplish this. For example, defendant used a preprinted sales form, 

called the “salesman’s worksheet” that already had the term “Protection 

Package” or “Security System” and the associated charge of “[$]799.00” 

printed on the line item for accessories. Because the salesman’s 

worksheet is a dealership form used during the price negotiation with 

customers, the preprinting itself makes it appear that the purchase of the 

protection package/security system is required and implies that the fee is 

non-negotiable. 

At the charge conference, Burns argued that because the State’s pleadings and 

theory of the case alleged that Burns intentionally engaged in price-bumping, the 

definition of price-bumping in Question Two should include the word “intentionally.” The 

State’s proposed definition did not differ significantly from Burns’s proposed definition 

except that it did not include “intentionally.” The State argued—and asserts on 

appeal—that it was not required to prove intent, but only that (1) Burns engaged in 
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price-bumping and (2) such a practice was false, misleading, and deceptive. The trial 

court overruled the State’s objection and permitted the addition of “intentionally” to the 

definition of price-bumping. By answering “no” to Question Two, the jury found that 

Burns did not engage in price-bumping. By its only issue, the State contends that (1) 

the trial court erred in permitting the definition of price-bumping to include an intent

element, and (2) the error was harmful because it improperly increased the State’s 

burden of proof. 

II. STANDARD OF REVIEW AND APPLICABLE LAW

“The trial court enjoys wide discretion in framing a jury charge and is given broad 

latitude to determine the propriety of explanatory instructions and definitions.” Hatfield 

v. Solomon, 316 S.W.3d 50, 62 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing 

H. E. Butt Grocery Co. v. Bilotto, 985 S.W.2d 22, 23 (Tex. 1998)); see also Shupe v. 

Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (“We review a trial court’s decision to 

submit or refuse a particular instruction under an abuse of discretion standard.”); Doe v. 

Mobile Video Tapes, Inc., 43 S.W.3d 40, 50 (Tex. App.—Corpus Christi 2001, no pet.). 

A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference 

to any guiding principles. Doe, 43 S.W.3d at 50–51. “A judgment should not be 

reversed because of a failure to submit other and various phases or different shades of 

the same question.” Krishnan v. Ramirez, 42 S.W.3d 205, 220 (Tex. App.—Corpus 

Christi 2001, pet. denied) (quoting Sheldon L. Pollack Corp. v. Falcon Indus., Inc., 794 

S.W.2d 380, 383 (Tex. App.—Corpus Christi 1990, writ denied)). To determine whether 

an alleged error in the jury charge is reversible, we consider the pleadings of the 

parties, the evidence presented at trial, and the charge in its entirety, and we reverse 
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the trial court only when the error in the charge amounted to such a denial of the rights 

of the complaining party that it probably caused the rendition of an improper judgment. 

Doe, 43 S.W.3d at 51; see TEX. R. APP. P. 44.1(a)(1); Wal-Mart Stores, Inc. v. Johnson, 

106 S.W.3d 718, 723 (Tex. 2003); Recognition Commc’ns, Inc. v. Am. Auto. Ass’n, Inc., 

154 S.W.3d 878, 885 (Tex. App.—Dallas 2005, pet. denied). Charge error is generally 

considered harmful if it relates to a contested, critical issue. Columbia Rio Grande 

Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009). “Submission of an 

improper jury question can be harmless error if the jury’s answers to other questions 

render the improper question immaterial.” City of Brownsville v. Alvarado, 897 S.W.2d 

750, 752 (Tex. 1995). “A jury question is considered immaterial when its answer can be 

found elsewhere in the verdict or when its answer cannot alter the effect of the verdict.” 

Id. 

III. DISCUSSION

Question One, which submitted the State’s bait-advertising claim to the jury, 

asked, in pertinent part:

Did defendant, Burns Motors, Inc., acting through its agents, servants, and 

employees, engage in a false, misleading, or deceptive act or practice in 

the conduct of trade or commerce?

“False, misleading, or deceptive act or practice” means advertising goods 

with intent not to sell them as advertised.

The jury answered, “No.” Question Two asked, in pertinent part:

Did defendant, Burns Motors, Inc., acting through its agents, servants, and 

employees, engage in the practice of price-bumping in the conduct of 

trade or commerce?

“Price-bumping” means a scheme or plan used by Burns Motors, Inc. to 

charge more than the advertised sales price by intentionally making the 

purchase of the alarm system and fabric protection appear as if it is 
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required and by implying that the fee is non-negotiable when the alarm 

system and fabric protection was installed before the vehicle was sold to 

any customer.

As noted, the State’s only objection was that “intentionally” should not be 

included in the definition of price-bumping. The State’s proposed definition stated:

“Price-bumping” means a scheme or plan used by a[n] auto dealership, at 

the closing of the sales transaction, to increase the total cost of a vehicle 

by automatically adding—to the vehicle’s sales price—a standard charge 

for an accessory (or accessories), such as an alarm system or fabric 

protection, that was installed on the vehicle before the customer is given 

an opportunity to order it as an add-on to the vehicle the customer is 

purchasing.

Assuming, without deciding, that the trial court erred by including “intentionally” in 

the definition of price-bumping, we conclude that any error was harmless. As noted 

above, to determine whether alleged charge error is reversible, we consider the parties’ 

pleadings, the evidence presented, and the entire charge, and reverse only if the 

alleged error probably caused the rendition of an improper judgment. Doe, 43 S.W.3d 

at 51; see TEX. R. APP. P. 44.1(a)(1). 

Here, as Burns notes, the submitted definition of price-bumping conformed to the 

pleadings. See TEX. R. CIV. P. 278. The State’s pleadings alleged that “from the outset, 

[Burns] meant to charge more than the advertised sales price (that is, bump up the 

price) of vehicles and had a strategy in place to accomplish this.” In opening argument, 

the State told the jury that Burns’s practice of automatically adding the $799 for the 

Protection Package (the alleged price-bumping) was “evidence of their intent not to sell 

at the advertised price.” It also told the jury that this case was about “a scam,” that 

Burns’s “tactic” of price-bumping was a “trick to jack up car prices,” that Burns 

“orchestrated a deceptive sales scheme known as price-bumping,” and that the jury 
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would be asked to decide whether Burns was “cheating” by the manner in which it sold 

alarm systems. Moreover, the State’s proposed definition of price-bumping defined the 

term as a “scheme or plan” to increase the vehicle’s sales price. A “scheme” is “a 

systemic plan” or “an artful plot or plan, usu[ally] to deceive others.” See BLACK’S LAW 

DICTIONARY 1462 (9th ed. 2009). A “plan” is “a method of achieving an end” and “always 

implies mental formulation,” whereas “scheme” “stresses calculation of the end in view 

and may apply to a plan motivated by craftiness and self-interest.” See MERRIAM 

WEBSTER’S COLLEGIATE DICTIONARY 889 (10th ed. 1996). We conclude that by defining 

price-bumping as “a scheme or plan,” the State’s own definition encompassed 

intentional conduct. Because the submitted definition of price-bumping conformed to 

the pleadings and the State’s theory of the case as argued to the jury, and because the 

State’s proposed definition encompassed intentional conduct, we cannot say that any 

error in including “intentionally” in the definition probably caused the rendition of an 

improper judgment or prevented the State from properly presenting its case on appeal. 

See TEX. R. APP. P. 44.1(a). We overrule the State’s sole issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

________________________

DORI CONTRERAS GARZA

Justice

Delivered and filed the 

8th day of March, 2012.