# No. 12- 14 -00007- CV

In the Court of Appeals
Twelfth Court of Appeals District
Tyler, Texas

REX SMITH and NANCY SMITH, Appellants

v.



### KELLY DAVIS AND AMBER DAVIS Appellees

Appealed from the 294th Judicial District Court

Van Zandt County, Texas

A PPELLEES’ MOTION FOR REHEARING OF OPINION RENDERED FEBRUARY 18, 2015

ATTORNEY FOR APPELLEES: S. Gary Werley Law Office of S. Gary Werley

Texas State Bar No. 21187000 1840 Acton Highway, Suite 102 Granbury, Texas 76049

817 -573-7700

817 -573-7710

- fax sgwerley@werleylaw.com ACCEPTED

12-14-00007
TWELFTH COURT OF APPEALS

TYLER, TEXAS
3/2/2015 5:06:34 PM
CATHY LUSK
CLERKAppellee’s Motion for Rehearing Page ii TABLE OF CONTENTS

TABLE OF CONTENTS

................................ ................................ ................................ ................ ii

INDEX OF AUTHORITIES

................................ ................................ ................................ .......... iii

RESPONSE

................................ ................................ ................................ ................................ . 1

- 7

PRAYER

................................ ................................ ................................ ................................ ......... 7

CERTIFICATE OF COMPLIANCE

................................ ................................ ............................... 7

CERTIFICATE OF SERVICE

................................ ................................ ................................ ........ 8Appellee’s Motion for Rehearing Page iii INDEX OF AUTHORITIES

Cases Cited Page

Flores v. Millennium Interests, Ltd.

, 185 S.W.3d 427, 429 (Tex. 2005)

................................ ................................ .... 4, 5 , 6

Henderson v. Love

, 181 S.W.3d 810 (Tex.App.

- Texarkana 2005), no pet.)

................................ ....... 4 , 6

Morton v. Nyugen , 412 S.W.3d 506, 509

- 10 (Tex. 2013)

................................ .................. 3

Nacogdoches Memorial Hospital v. Justice

, 694 S.W.2d 404, 207(Tex.App.

- Tyler 1985)

................................ ........................... 3

Skelly Oil Company v. Medical & Surgical Clinic, 418 S.W.2d 574, Tex.Civ.App.

- Tyler 1967, p. 578)

................................ ............... 3

Codes and Statutes Page

Texas Property Code §5.069

................................ ................................ ................................ 2 Texas Property Code §5.07 0

................................ ................................ ................................ 2 Texas Property Code §5.072

................................ ................................ ................................ 2 Texas Property Code §5.072(d)

................................ ................................ ........................... 2 Texas Property Code §5.077

................................ ................................ ................................ 4

Business & Commerce Code §17.46

................................ ................................ ................... 2 Texas Business & Commerce Code, §1750(d)

................................ ................................ .... 3 Texas Rules of Civil Procedure, Rule 279

................................ ................................ ........... 3 Texas Rules of Civil Procedure, Rule 92

................................ ................................ ............. 4Appellees’ Motion for Rehearing Page 1

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES, Kelly Davis and Amber Davis, Appellees, and files this Motion for

Rehearing of the Court’s Opinion Rendered on February 18, 2015, and for same would show unto

the Court the following:

I.

Appellees requested the Court view its opinion o f February 18, 2015 and reverse its ruling

on the amount of the reimbursement to be paid to the Davis’, as found by the Trial Court in its

Judgment. Appellant did not raise an issue as to the amount of the reimbursement, only whether

or not the refund was due.

The jury question on actual damages was:

“What sum of money, if any, if paid now in cash, would fairly and reasonably compensate

Kelly Davis and Amber Davis for their damages, if any, that resulted from such fraud?”

The jury was instructed to “ Consider the amount of money received by Rex Smith from

Kelly and Amber Davis and the taxes paid by the Davises on the property ”

. ( CR 319 )

.

The Jury found the amount of $33,664.41

.

Plaintiffs’ Exhibit 1 shows a down payment of $1,000.00. Plaintiffs’ Exhibit 5 shows

payments of $472.00 on Tract 9 for 25 payments. Kelly Davis testified that the monies paid on

Tract 9 would be applied to Tract 7. ( RR Vol. 2, p. 74)

. Plaintiffs’ Exhibit 5 shows payments of

$565.00 on Tract 7. Plaintiffs’ Exhibit 3 sho ws a down payment of $3,700.00, and that payments

beg i n on April 22, 2005. Plaintiffs’ Exhibit 5 shows some, but not all payments from April 2005

to November 2007. Amber Davis testified that the Exhibit was not complete and had gaps. (RR

33). Mr. Davis testified that they paid the prope rty taxes on the properties. ( RR Vol. 2, p. 53, 66)

.

The taxes for one year, on Tract 9, a smaller tract than Tract 7, were $250.00. (Plaintiffs’ Exhibit

5)

. The facts of this lawsuit covered five years, from 2003 thr ough 2007.Appellee’s Motion for Rehearing Page 2 Down payment 2003, Pl. Exh. 1 $1,000.00

Down payment 2005, Pl. Exh. 3 $3,700.00

25 monthly payments Tract 9, Pl. Exh. 1, 2, 5 $11,800.00

32 monthly payments Tract 9, Pl. Exh. 3, 4, 5 $18,080.00

Minimum taxes 03 (partial)

- 09 $1, 680.00

Total $36,260.00

The answer by the jury to the question was supported by the evidence and is not against the

overwhelming weight and preponderance of the evidence so as to be manifestly unjust. The Courts

judgment is supported by the evidence.

Recessio n damages should start at $33,664.41 , as found by the jury and the Courts

judgment affirmed in that regard

.

II.

Appellees request a rehearing on the right to attorney’s fees §5.0 69 , §5.07 0

, and §5.0 72 of

the Texas Property Code . Each of the above

- stated Code sections provide that a violation (failure

to provide information required by 5.069 (a); failure to provide information required by §5.070

(a); failure to provide notice required by §5.072(d)) is false

, misleading or deceptive, or practice

with in the meaning of §17.46 , Business & C ommerce Code and is actionable thereunder. Pursuant

to the statutory requirements, Plaintiffs’ Second Amended Petition alleged in paragraphs IV, V,

and VI violation s of §5.069, §5.07 0 , and §5.072 , and that each one of the above acts were a “false,

misleading or deceptive act or practice within the meaning of the Deceptive Trade Practice

Consumer Protection Act and allows a purchaser to cancel and rescind executory contract and

receive a full refund of all payments made to the Defendants. (CR 16 4 ). There were no special

exceptions filed against the Petition or heard by the Court

. The Property Code sections state that

the conduct constitutes a false, misleading, or deceptive act within the meaning of Section 17.46,Appellee’s Motion for Rehearing Page 3

and allows the remedies to flow therefrom. No other jury questions need to be requested; same

would be redundant and asking a legal question: i.e.

, “ Do you find the conduct to be false,

misleading or deceptive as stated by the Legislature a nd signed into law by the Governor ? ” T here

was a finding by the jury of a violation of the Texas Property Code, which is also a violation of

the Texas Deceptive Trade Practice

- Consumer Protection Act. P ursuant to §17

. 50(d) of the Texas

Business & Commerce Code, the Appelle es are entitled to attorney’s fees.

The Court stated “however, as in Morton

, that the Davis’ d id not recover under the DTPA.”

Morton v. Nyugen , 412 S.W.3d 506, 509

- 10 (Tex. 2013) was a bench trial. The Da vis’ did recover

under the DTPA. T he law in T exas is that if there is a finding on an element of a cause of action

and judgment is rendered thereon, any missing element is an implied finding by the Court. As

there was no objection to the charge on this issue, this Court must presume that the trial c ourt made

implied findings on any missing element to support the judgment. Nacogdoches Memorial

Hospital v. Justice , 694 S.W.2d 404, 207 (Tex.App.

- Tyler 1985). See Skelly Oil Company v.

Medical & Surgical Clinic, 418 S.W.2d 574, 578 (Tex.Civ.App.

- Tyler 1 967) which stated that

Rule 279 of the Texas Rules of Civil Procedure provides the grounds for recovery or defense

consist of one or more element; that is, requires more than one (1) issue to submit them, and the

Courts submits some of the elements and omi ts others and there is no objections to the failure to

submit same, the parties are placed in the same position of having agreed to waive a jury trial on

the unsubmitted elements and to have submitted them to Court for his determination. Under the

r ule of i mplied f

indings

, the jury verdict and the j udgm ent rendered by the Court require the award

of attorney’s fees on rehearing

. The award and amount of the attorney’s fees should be affirmed

as stated in the judgment.Appellee’s Motion for Rehearing Page 4 III.

Application of C hapter 41 of the Texas Civil Practice & Remedies Code to §5.077 of the

Texas Property Code.

Defendant did not plead the unconstitutionality of any statute and therefor waived same as

an affirmative defense. (T.R.C.P. Rule 92). Defendant did not raise any issue on this question in

pretrial or post

- trial motion filed with the Court. Failure to bring this issue to the Court’s attention

before the appeal is a waiver of this issue.

After the decision of Flores v. Millennium Intere sts, Ltd. , 185 S.W.3d 427, 429 (Tex. 2005)

the legislature amended §5.077 of the Texas Property Code to place a cap on damages. This

Court’s opinion as stated in 2014 WL 4104167 was a correct application of the statute, which

stated as follows:

“ APPLICAB ILITY OF TEXAS CIVIL PRACTICE AND REMEDIES CODE CHAPTER 41 In their third issue, the Smiths contend that the trial court was required to apply Texas Civil Practice and Remedies Code Chapter 41 in awarding damages under Texas Property Code Section

5. 077 and it failed to do so.

Standard of Review and Applicable Law The meaning of a statute is a question of law, which we review de novo to ascertain and give effect to the legislature’s intent. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) ; Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 457 (Tex.App.

- Houston [1st Dist.] 2007, no pet.) . When construing a statute, we begin with its language. Our primary objective is to determine the legislature’s intent, which, when possible, we discern from the plain meaning of the words

chosen. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006) . We presume the legislature intended a just and reasonable result by enacting the statute. City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex.2008) . Where text is clear, it is determinative of that intent. Entergy Gulf States, 282

S.W.3d at 437 . When a statute’s language is clear and unambiguous, it is inappropriate to resort to

rules of construction or extri nsic aids to construe the language. City of Rockwall, 246 S.W.3d at

626

.

Discussion The Smiths contend that the trial court was required to apply Chapter 41 because of the Texas Supreme Court’s holding in Flores v. Millennium Interests, Ltd., 185 S.W.3d 427 (Tex.2005)

. They also contend that we should consider the discussion on this issue in Henderson v. Love, 181 S.W.3d 810 (Tex.App.

- Texarkana 2005, no pet.) . The Davises reply that these two cases involve a prior version of Texas Property Code Section 5.077 , and therefore are not applicable to the facts

of this case.Appellee’s Motion for Rehearing Page 5

The current version of Section 5.077 states as follows:

§ 5.077 . Annual Accounting Statement

(a) The seller shall provide the purchaser with a n annual statement in January of each year for the term of the executory contract. If the seller mails the statement to the purchaser, the statement must be postmarked no t later than January 31.

(b) The statement must include the following information:

( 1) The amount paid under the contract;

(2) The remaining amount owed under the contract;

(3) The number of payments remaining under the contract;

(4) The amounts paid to taxing authorities on the purchaser’s behalf if collected by the seller;

(5) The amounts paid to insure the property on the purchaser’s behalf if collected by
the seller;

*5 (6) If the property has been damaged and the seller has received insurance proceeds, an accounting of the proceeds applied to the property; and

(7) If the seller has changed insurance coverage, a legible copy of the current policy, binder, or other evidence that satisfies the requirements of Section 5.070(a)(2).

(c) A seller who conducts less than two transactions in a 12

– month period under this section

who fails to comply with Subsection (a) is liable to the purchaser for:

(1) Liquidated damages in the amount of $100 for each annual statement the seller fails to provide to the purchaser within the time required by subsection (a); and

(2) Reasonable atto rney’s fees.

(d) A seller who conducts two or more transactions in a 12

– month period under this section who fails to comply with Subsection(a) is liable to the purchaser for:

(1) Liquidated damages in the amount of $250 a day for each day after January 31 that the seller fails to provide the purchaser with the statement, but not to exceed the fair market value of the property; and

(2) Reasonable attorney’s fees.

TEX. PROP.CODE ANN. § 5.077 (West Supp.2014). The pre

– 2005 version of Section 5.077 did not include the limitation in (d)(1), which states “but not to exceed the fair market value of the property.” See Act of June 18, 2005, 79th Leg., R.S., c h. 978, § 5, 2005 Tex. Gen. Laws 3282,

3284.Appellee’s Motion for Rehearing Page 6

In Flores

, the Texas Supreme Court answered certified questions from the United States Court of Appeals for the Fifth Circuit. The c ourt concluded that (1) Section 5.077 is penal in nature, (2) a deficient annual statement representing a good faith effort to provide the statement does not trigger the liquidated damages provision in Section 5.077 , and (3) that if the provision is triggered, the statutory damages do not require actual harm as a predicate to recovery. See Flores, 185 S.W.3d

at 434 . The c ourt went on to state that “because the incomplete annual statement here did not invoke the liquidated damages provision of Section 5.077(c) , we decline to decide at this time whether these statutory damages are also ‘exemplary damages’ within the meaning of Chapter 41.”

Id. Since the court did not decide whether Chapter 41 applied in this circumst ance, Flores is not instructive in our analysis.

In Henderson

, the Texarkana C ourt of A ppeals determined that the pre

– 2005 “liquidated damages”

version of Section 5.077 without any limitation on the amount of damages fell squarely within Chapter 4 1’s definition of exemplary damages. Henderson, 181 S.W.3d at 817

. Unlike

Henderson

, however, the current version of Section 5 .077 applies to this case. 3 Texas Civil

Practice and Remedies Code Section 41.002 states in pertinent part that

(a) This chapter ap plies to any action in which a claimant seeks damages relating to a

cause of action.

(b) This chapter establishes the maximum damages that may be awarded in an action subject to this chapter, including an action for which damages are awarded under

anothe r law of this state. This chapter does not apply to the extent another law establishes a lower maximum amount of damages for a particular claim.

*6 TEX. PRAC. & REM.CODE ANN. § 41.002(a)

, (b) (West 2008). In accordance with Section 41.002(b) , the current version of Section 5.077 is “another law” that “establishes a lower maximum amount of damages” for this “particular cl aim.” For that reason, Henderson does not apply to the facts of this case.

At trial, Rex Smith testified that the fair market v alue of lot seven was $65,100 . The jury found that the Smiths failed to provide the annual statements to the Davises in 2006, 20 07, and 2008.

The evide nce established that the $250 per day payment was applicable to the Smiths. The jury answered in special issue number 17 that the value of lot seven at the time of sale was $65,100

. The trial court rendered judgment for damages under Section 5.077 in the amount of $65,100

. This complies with Section 5.077(d)(1)

.

Under Chapter 41, exemplary damages are limited to the greater of (1) twice the amount of economic damages plus an amount equal to no neconomic damages found by the jury, not to exceed $750,000; or (2) $200,000. TEX. CIV. PRAC. & REM.CODE ANN. § 41.008(b) (West Supp.2014). Since twice the amount of economic damages plus noneconomic damag es here is

less t han $750,000 , the cap on exemplary damages in this case if Chapter 41 applied would be $200,000. See id. As we have sta ted, the jury awarded $65,100 for the Section 5.077 violations

, which is less than $200,000

.

Because Section 5.077 is “an other law” establishing a lower amount of damages for this “particular claim,” the damages provision in Section 5.077 controls, and Chapter 41 is inapplicable to this

suit. See TEX. PROP.CODE ANN. § 5.077(d)(1) ; TEX. CIV. PRAC. & REM.CODE ANN. §Appellee’s Motion for Rehearing Page 7

41.002(b) ; see also In re Dodson, No. 06

– 11952

– CAG, 2008 WL 4621293, at *9

– 11 (Bankr.W.D.Tex. Oct. 16, 2008) (mem.op.) (applying same analysis).

The Smiths’ third issue is overruled. ”

This application of the law to the facts was correct and should now be applied to this case

awarding the damages and attorney’s fees found by the jury. The opinion on rehearing failed to

discuss the amendment and cap on damages. As Chapter 41 is not applicable

, there is no

requirement of a unanimous verdict based on clear and convinci ng evidence; in the alternative

, the

requirement of unanimous verdict on clear and convincing evidence was either waived by the

defendant by failure to object to the trial court

, or placed in the hands of the trial court under the

rule of implied findings as discussed above.

WHEREFORE, PREMISES CONSIDERED, Appellee requests that this Court revise its

Opinion on Rehearing rendered on February 18, 20 15

, and affirm the T rial C ourt’s Judgment

, as

r endered

, in all respects.

LAW OFFICES OF S . GARY WERLEY

BY:___ /s/ S. Gary Werley

__________________ S. GARY WERLEY

State Bar No. 21187000

1840 Acton Highway, Suite 102 Granbury, Texas 76049 (Telephone) 817

- 573

- 7700 (Facsimile) 817

- 573

- 7710

ATTORNEY FOR APPELLEES

WORD COUNT

I hereby certify that the word count for this brief is 2,430

.

___ /s/ S. Gary Werley

__________________ S. GARY WERLEYAppellee’s Motion for Rehearing Page 8 CERTIFICATE OF SERVICE

I do hereby certify that a true and correct copy of Appellees ’ Motion for Rehearing has

been forwarded to the follow ing attorney s of record on this 2nd day of March , 2015 :

Via email or efiling Jeffrey C. Irion

P. O. Box 5527 Gun Barrel City, TX 75147

- 5012

Greg Smith Ramey & Flock, PC 100 E. Ferguson, Suite 500 Tyler, Texas 75202

__ /s/ S. Gary Werley

__________________ S. GARY WERLEY