author: SHANNON, Justice.

text:
    Lloyd CHARPING, Individually and d/b/a Charping Construction Company, Appellant, v. Glenn LIGHT et al., Appellees.
    No. 12860.
    Court of Civil Appeals of Texas, Austin.
    Feb. 21, 1979.
    Davis Bragg, Bragg, Barron & Phillips, Killeen, for appellant.

      James 0. Cure, Temple, for appellees.
   SHANNON, Justice.

Appellees Glenn Light and his mother, Ida V. Light, sued appellant Lloyd Charp-ing in the district court of Bell County. Appellees sought treble damages for alleged violation of Tex.Bus. & Comm.Code Ann. § 17.41 et seq. (Supp.1978), the Deceptive Trade Practices — -Consumer Protection Act. After trial to a jury, the district court entered judgment for appellees for $6,300.00 damages, that sum representing three times the amount of actual damages, and $4,500.00 attorney’s fees. We will affirm the judgment.

Appellant called upon appellees at their house in Temple on April 27, 1977. The purpose of appellant’s call was to persuade appellees to enter into a contract for appellant to install steel siding on appellees’ house. Appellant was successful in convincing appellees of the need for the siding job, and on the same day appellees signed a form contract for the purchase and installation of the siding for $4,280.00. Appellant testified, and appellees denied, that he told appellees they had a right to cancel the contract. It is undisputed that the Lights signed two documents furnished by appellant that set out appellees’ right to cancel or rescind the contract within a certain period of time.

After a few minutes reflection, appellees decided that the contract price was too high and that they were unable to afford the siding job. Appellees accordingly told appellant that they wished to cancel the contract. Appellant became angry and, according to appellees, refused to agree to a cancellation of the agreement, but offered to do the siding job in exchange for Glenn Light’s 1976 pickup truck. The truck had been damaged in a collision and was at that time in a repair shop. A part of the proposed trade was that Light would pay the costs of repair of the truck from the proceeds of his collision insurance policy. Ap-pellees testified that appellant persuaded them to agree to the new trade, although the value of the pickup, when repaired, was $5,250.00. Glenn Light transferred title to the pickup to appellant.

Within two days and after consultation with their builder, appellees had second thoughts about their need for the siding job. Ida called appellant to cancel the siding contract. Appellant or his secretary told Ida that the contract could not be canceled, that appellant had already ordered the siding, and that the pickup truck had already been sold.

Ida Light claimed she had several telephone conversations with appellant or his secretary concerning the price appellant would pay appellees for the pickup if he did not do the siding job. Appellant finally offered $2,166. According to Ida, appellant’s secretary told her that the Lights could accept $2,166 or receive nothing at all for the truck. Appellees, pleaded that on May 6, Ida, under duress, accepted for her son appellant’s draft in the sum of $2,166.00 in payment for the truck and signed a release of any claims she or her son might have had that arose from the siding job contract.

Appellant testified that appellees signed the contract for the siding job for a consideration of $4,280. In every other major respect, appellant’s testimony concerning his transaction with appellees conflicted with appellees’ evidence.

Appellees pleaded that appellant violated § 17.46 of the Deceptive Trade Practices Act by representing to them that they had no right to cancel the agreement by the terms of which they traded the pickup for the siding job. Appellees pleaded that by virtue of Tex.Rev.Civ.Stat.Ann. art. 5069-13.02 (Supp.1978), they were entitled to cancel the contract at any time prior to midnight of the third business day after the contract was executed.

The charge of the court contained thirteen special issues. The jury answered, inter alia, that appellant misrepresented to appellees their right to cancel the contract. The jury also found that appellant’s action or course of action by which he obtained the pickup truck was “unconscionable.” Appel-lees were adversely affected by both appellant’s misrepresentation and his “course of action,” and such misrepresentation and course of action were producing causes of appellees’ damage. The jury answered further that appellees accepted payment for the pickup truck and signed the release under duress.

“Duress” was defined in the charge as existing “. . . where one possessing and exercising the power of physical position or of financial advantage over another compels him by any of such means to do or to refrain from doing some act contrary to his own free will or to submit to a situation or conditions against his own volition or interests.” Appellant did not object to the court’s definition of duress.

Appellant’s single point of error is that “[t]he evidence is insufficient as a matter of law that Appellees were under duress from Appellant at the time of the accord and satisfaction.” Appellant’s point of error, standing alone, does not indicate whether appellant is complaining that there was “no evidence” or that there was “insufficient evidence” to support the jury’s finding with respect to duress. Further analysis is required. The controlling consideration in ascertaining the character of a point of error directed to the state of the evidence is not whether the point uses the preferable, or even the proper, terminology, but instead whether the point is based upon and related to a particular procedural step in the trial and appellate process and is a predicate for the relief sought in the appellate court. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 362 (1960).

“No evidence” points are points which call for reversal of a trial court’s judgment and rendition of judgment for appellant. “Insufficient evidence” points of error are those which call for a reversal of the trial court’s judgment and remand of the cause for retrial. Calvert, id., 362, 365. The rules with respect to the relief sought are not helpful in determination of the character of appellant’s point since an examination of appellant’s brief shows that it contains no prayer for either rendition or remand.

The procedural foundation for appellant’s point of error is his motion for judgment non obstante veredicto. It is, accordingly, a “no evidence” point and the fact that the point speaks of “insufficient evidence” cannot make it otherwise. Calvert, id., 362.

Appellant relies upon the definition of duress as found in Dale v. Simon, 267 S.W. 467 (Tex.Com.App.1924, jdgmt. adopted); and Lawrence v. J. M. Huber Corporation, 347 S.W.2d 5, 6 (Tex.Civ.App.1961, no writ). In Lawrence, Justice Frank Wilson wrote with respect to duress:

“ ‘There can be no duress unless [1] there is a threat to do some act which the party threatening has no legal right to do. [2] Such threat must be of such character as to destroy the free agency of the party to whom it is directed. It must overcome his will and cause him to do that which he would not otherwise do, and which he was not legally bound to do. [3] The restraint caused by such threat must be imminent. [4] It must be such that the person to whom it is directed has no present means of protection.’ [5] Where the demand is wrongful and it is necessary for the demanding party to resort to the courts to enforce it, there is no duress. [6] ‘But where the party making the demand has, or is supposed to have, the power to injure the business or property interests of the one upon whom the demand is made, without resort to the courts to enforce the demand, and threatens to do an act which would cause such injury, and which he has no right to do, and thereby enforces compliance with his demand, [7] against the will of such party through fear of injury to his business or property * * *, such threats amount to duress, [8] if it appears that the party making such demand * * * ought not in good conscience to retain the benefit received by reason thereof.’ Dale v. Simon, Tex.Com.App., 267 S.W. 467, 470, adopted.”

Appellees’ evidence of duress was that appellant’s secretary told Ida Light that she and her son could accept the $2,166 tendered for the truck or receive nothing at all. Mrs. Light testified that she accepted the check and signed the release even though she felt her son was not receiving enough money for the truck, because “. we were afraid that his secretary said that if we didn’t take that, well, didn’t think we’d get anything at all, so we were kind of afraid that we wouldn’t get anything for the truck.”

Appellant argues that the evidence just referred to does not constitute duress as defined in Dale v. Simon, supra, and in Lawrence v. J. M. Huber Corporation, supra. That may be true. The charge in this case, however, did not submit duress as defined in Dale and Lawrence. Duress, as defined in the court’s charge, was submitted in terms more general and less rigorous than in Dale and Lawrence. Appellant must have been satisfied with the court’s definition when it was given since he voiced no objection. Any error in the definition of duress was waived by appellant’s failure to object. Tex.R.Civ.P. 274.

We next examine the record to ascertain whether there exists evidence of duress as defined by the court’s charge. In considering a “no evidence” point, the reviewing court must reject all evidence contrary to the jury’s findings and consider only the facts and circumstances which tend to support those findings. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696 (1914). Appellant had possession of and title to the pickup truck. Through his agent, appellant told the Lights that they could take what money he offered for the truck or they would get nothing at all. Ida Light believed that she had no choice but to take the sum tendered or receive nothing. She knew that the truck had already been sold. Viewing the evidence most favorably to the jury’s finding, we must conclude that there is some evidence in support of the jury’s finding that appellees accepted payment for the truck and signed the release under duress, as defined in the charge.

The judgment is affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Floyd L. MARTINE, Appellant, v. The BOARD OF REGENTS, STATE SENIOR COLLEGES of TEXAS, et al., Appellees.
    No. 1241.
    Court of Civil Appeals of Texas, Tyler.
    Feb. 22, 1979.
    Rehearing Denied March 22, 1979.

      Kent M. Rider, Douglass D. Hearne, Stayton, Maloney, Hearne & Babb, Austin, for appellant.
    John L. Hill, Atty. Gen. of Texas, David M. Kendall, Jr., First Asst. Atty. Gen., Robert Steve Bickerstaff, Jr., Nathan Johnson, Asst. Attys. Gen., Austin, for appellees.
   McKAY, Justice.

This is a suit by a university faculty member to review and overturn a decision by the Board of Regents, State Senior Colleges of Texas, terminating his employment, and for reinstatement as a tenured faculty member. The trial court sustained several exceptions to the petition for failure to state a cause of action, and when appellant failed to amend his petition, the trial court dismissed the case without prejudice.

Floyd L. Martine, appellant, brought this action against the Board of Regents, State Senior Colleges of Texas (“Board”), and the individual members thereof, appellees. Appellant alleged that he was employed as a member of the faculty of Southwest Texas State University since 1959 and that he had attained tenured status there. In 1967, he was appointed to the additional position of Dean of Student Affairs, one of the duties of which was to administer a health insurance program for students at the University. Appellant further alleged that from approximately September 1967 until April 1975, he continued to function as the administrator of this health insurance program, and that during this entire time no complaints were made by the appellees or by Blue Cross-Blue Shield of Texas, the insurance carrier, concerning the manner in which appellant administered the program.

In 1975, an audit of the program was conducted by state officials who reported certain irregularities in its administration by appellant. As a result, according to appellant’s allegations, he was informed by Dr. Lee H. Smith, President of the University, that if he did not resign he would be fired. Appellant alleges that he then tendered to Smith his resignation as Dean of Students on April 29, 1975. The resignation was accepted immediately by Smith, and by the appellees on May 23, 1975.

Appellant further alleged that he did not resign as a tenured member of the faculty of the University but only as Dean of Student Affairs. The allegedly limited resignation, however, was treated by the University president as a resignation also from his position as a tenured faculty member. Appellant appealed this action by Smith through a faculty advisory committee to the Faculty Hearing Committee which recommended that he be entitled to continue in his position as a tenured faculty member. The allegations continued that Smith refused to review the recommendation of the hearing committee and instead passed the decision to the Board. The petition states,

“On September 12, 1975, a hearing was conducted by the [Board], following which they unanimously found ‘by a preponderance of the evidence, that one, Mr. Martine’s conduct in withdrawing funds from the Blue Cross Varsity Insurance Fund for private purposes constituted moral turpitude, and adequate cause for dismissal, and, two, that Mr. Martine’s failure to account properly for expenditures from the Blue Cross Varsity Insurance Fund constituted gross neglect of his professional responsibilities, and professional incompetence and adequate cause for his dismissal.’ The [Board] therefore ‘ordered that Mr. Martine be dismissed in his capacity as a faculty member at Southwest Texas State University’ effective September 12, 1975.”

The decision by the Board, appellant alleges, has no support in substantial evidence and that although there exists no statutory appellate procedure for review of decisions of the Board, by virtue of appellant’s expectancy of continued employment as a tenured member of the faculty of the University, he has the right at common law to have judicial review of such a decision without consent of the Legislature of the State of Texas. He further states that he has sought to obtain such consent but that it was denied to him.

Alternatively, appellant alleged that the actions of appellees in terminating him as a tenured member of the faculty of the University constituted a deprivation of property rights guaranteed to him by the Fourteenth Amendment to the United States Constitution and by Article I, sec. 19 of the Texas Constitution. He alleged he had a cause of action for reinstatement under these constitutional provisions, the common law of the State of Texas, and under Title 42, U.S.C., sec. 1983. In this alternative plea, appellant further alleged that his due process rights under the aforementioned constitutional provisions, common law and statute were violated in the course of the hearing before the Board because an Assistant Attorney General for the State of Texas, who had served as appellees’ attorney in proceedings before the Faculty Hearing Committee and at the hearing before appel-lees, was present in the hearing room during appellees’ deliberations.

Appellant further alleged that the consent of the Texas Legislature is not required for him to maintain this suit.

Further in the alternative appellant alleged that in view of the refusal of the Legislature of the State of Texas to permit him to bring suit against the State, he has no adequate remedy at law, contrary to the provisions of Article I, sec. 13 of the Texas Constitution. He concludes that the action of appellees in terminating his employment as a tenured member of the faculty of the University should be set aside and appellees should be mandatorily enjoined to reinstate him to the position which he held as of September 12, 1975.

The Board answered by general denial and stated that its lawful name is The Board of Regents, Texas State University System. The Board also specially alleged that it was a component part of the government of the State of Texas and as such was vested with governmental immunity as against the allegations of appellant’s petition. The Board further specially excepted to appellant’s petition on the grounds that appellant failed to state a cause of action because (1) he failed to obtain legislative permission to institute suit against the State; (2) there was no cause of action stated under 42 U.S.C. sec. 1983 since the Board is not a “person” thereunder; (3) the action of the Board is not subject to judicial review under the provisions of secs. 95.01 and 95.21, Texas Education Code, which the Board alleges placed the employment, discharge, and salaries of teachers and the management and control of the University within the sole discretion of the Board; and (4) the allegations were too vague to permit the Board to properly prepare a defense. The individual appellees interposed basically the same special exceptions.

The answer continued that appellant alleged no cause of action against the individual appellees because all actions taken by the individual appellees were clearly in their official capacity, appellant did not seek any relief against appellees individually, and appellant’s action is barred by the Eleventh Amendment to the U. S. Constitution.

The Board affirmatively alleged that any contract which purported to employ appellant as a tenured member of the faculty of the University was void for reasons having to do with the Board being prohibited from paying appellant any sum of money beyond the period for which the contract was supposedly made.

The trial court, at a hearing on the Board’s and the individual appellees’ special exceptions, ordered that all of the special exceptions except those alleging vagueness be sustained. Appellant was ordered to replead in accordance with Rule 68, T.R. C.P., and when he did not do so, the trial court further ordered that appellant’s case be dismissed without prejudice to its refiling.

Where the trial court has sustained the defendant’s special exceptions and has dismissed the plaintiff’s case on the grounds that he has failed to allege a cause of action, the appellate court is required to consider that all of the facts alleged by the plaintiff are true and, in determining whether the action of the trial court was erroneous, it must consider all such allegations and the reasonable inferences to be drawn therefrom which would tend to establish a cause of action or give rise to an issue of fact that should be determined by a trier of fact. Bush v. Stone, 500 S.W.2d 885, 887 (Tex.Civ.App.—Corpus Christi 1973, writ ref’d n. r. e.); In re H D, Jr., 511 S.W.2d 615, 618 (Tex.Civ.App.—Amarillo 1974, no writ); Yarborough v. Industrial Accident Board, 538 S.W.2d 19, 21 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.).

Appellant brings three points of error. Point of error one complains that legislative consent was not necessary to the maintenance of this action, and point of error two asserts that the action of the Board is subject to judicial review. He urges that his status as a tenured faculty member was a vested property right, the denial of which gives rise to an inherent right of appeal to the courts, notwithstanding the lack of a statutorily created procedure therefor. He further contends that the Education Code does not preclude judicial review, and that the existence of such an inherent right of appeal obviates the requirement for legislative consent to sue the State. It is undisputed that appellant did not receive legislative permission in order to bring this action in the trial court. Appellees reply by their first three counterpoints that appellant’s right to due process was satisfied by his being provided with a hearing by the Board and that due process does not require judicial review of the Board’s determination; that a suit against the Board is one against the State requiring legislative permission because it operates to control state action and affects the State’s property interest; and that there is no inherent right of appeal of the Board’s action to the courts.

The general rule is that the State of Texas, by virtue of its status as a sovereign entity, is immune from suit and thus cannot be sued in its own courts without its consent. Hosner v. DeYoung, 1 Tex. 764, 769 (1847); 81A C.J.S. States sec. 298 at 942 (1977). Moreover, a suit against an agency of the State is considered to be a suit against the State, Lowe v. Texas Tech University, 540 S.W.2d 297, 298 (Tex.1976), and where the purpose of a proceeding against State officials is to control the action of the State or to subject it to liability, the suit is one against the State which cannot be maintained without legislative consent. Griffin v. Hawn, 161 Tex. 422, 341 S.W.2d 151, 152 (1960). That the Board of Regents, Texas State University System (formerly the Board of Regents, State Senior Colleges), is an agency of the State is not controverted. See Texas Education Code secs. 95.01, et seq. This, therefore, is in effect a “suit against the State.” We note, however, that “it has . . . been said that the doctrine of governmental immunity from suit is currently in disfavor, and that today courts are disposed to hear an action against the state unless good reason stands, in the way. The current trend of legislative policy and judicial thought has been declared to be toward abandonment of the doctrine.” 72 Am.Jur.2d States, Territories and Dependencies, sec. 101 at 493 (1974) [footnotes omitted].

The Board also argues that the Eleventh Amendment to the United States Constitution bars appellant’s suit against an agency of the State. Said Amendment, however, applies to suits brought in federal court, not state courts. Prudential Insurance Company of America v. Murphy, 207 S.C. 324, 35 S.E.2d 586, 588 (1945), affirmed, 328 U.S. 408, 66 S.Ct. 1142, 90 L.Ed. 1343 (1946).

Appellant’s contention that he does not require legislative consent for this suit proceeds from the aforementioned rule that we must take as true the allegations of his petition. There he alleges that a de facto system of tenure existed at the University by virtue of which he believed himself to be a tenured member of the faculty and created in him an expectancy of continued employment. This tenure, appellant claims, is a vested property right, the denial of which gives him an inherent right of appeal to the courts despite a lack both of consent by the Legislature and of specific statutory provisions allowing judicial review of decisions by the Board. We agree.

The United States Supreme Court, in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) and its companion case, Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), held generally that “A person’s interest in a [governmental] benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing . . . .” Sindermann, supra 92 S.Ct. at 2699, and Roth, supra 92 S.Ct. at 2709, and held specifically that a college teacher may have a property interest in reemployment despite the absence of an explicit contractual tenure provision if such a provision may be implied from the words and conduct of the college administration, Sindermann, supra 92 S.Ct. at 2699-2700. Such a college teacher, the court held, was entitled to the protection of procedural due process, including notice and a hearing on the reasons for his nonretention. Additionally it was held that where one’s good name, reputation, honor, or integrity is at stake because of some government action taken against him, notice and an opportunity to be heard are essential. Roth, supra, 92 S.Ct. at 2707. See also Gay v. Wheeler, 363 F.Supp. 764, 778 (S.D.Tex.1973).

In the instant case, therefore, it is clear that appellant, assuming the truth of the allegations of his petition, has a sufficient property right in his job so as to merit the requirements of due process before he may be divested of that property right. In addition, his good name, reputation, honor, and integrity have been impugned. The next determination to be made, then, is the extent of due process to which appellant is entitled, i. e., whether the notice and hearing already provided by the Board are sufficient by themselves or whether appellant’s rights to due process extend to a right of judicial review of the Board’s action despite the rule requiring legislative consent for suits against the State. This question was not before the court in either Sindermann or Roth.

The pertinent provisions of the Education Code are as follows:

“Sec. 95.01. Board of Regents
“The organization, control, and management of the state university system is vested in the Board of Regents, Texas State University System.”
“Sec. 95.21. General Responsibilities of Board
“The Board is responsible for the general control and management of the universities in the system and may . employ and discharge presidents or principals, teachers, treasurers, and other employees . . . .”

The Board argues that due process has been satisfied by the granting of a hearing without the requirement of judicial review. For this proposition, it cites Shirer v. Anderson, 88 F.Supp. 858 (E.D.S.C.1950). We, however, do not find this case to be persuasive authority for the Board’s contention. That case concerned the revocation by the State of South Carolina of the teaching certificates of some teachers in that state’s public school system, and not the dismissal of a tenured member of a state university faculty as we have here. The court there stated, “the teacher’s certificate relates only to the right to teach in the service of the state; and it cannot be a denial of due process for the state to provide for revocation of such certificate by administrative action without provision for judicial review.” Id. at 862.

Appellant cites several Texas cases for the contention that an inherent right of appeal to the courts exists here. Brazosport Savings and Loan Association v. American Savings and Loan Association, 161 Tex. 543, 342 S.W.2d 747 (1961), concerned an action by several savings and loan associations against a newly chartered association and the State Banking Commissioner to have declared void the charter awarded by the Commissioner to the new association. The trial court dismissed the suit for lack of jurisdiction and the court of civil appeals affirmed. The Supreme Court held that the objects and business of savings and loan associations are matters of public interest and they are thus considered to be quasi-public institutions and that the plaintiff associations had vested property interests in their own franchises which the plaintiffs alleged were infringed upon by the action of the Commissioner. The court stated, “When a vested property right has been adversely affected by the action of an administrative body so as to invoke the protection of due process, an inherent right of appeal is recognized,” [emphasis added] id. 342 S.W.2d at 750, and went on to hold that the plaintiff associations “are entitled to an opportunity to prove their allegations that the Commissioner’s action was illegal or without support in substantial evidence, and to appropriate relief if this be proved,” citing the due process clauses of the Constitutions of the United States and of the State of Texas. Id. 342 S.W.2d at 752.

Appellant also cites Chemical Bank & Trust Company v. Falkner, 369 S.W.2d 427 (Tex.1963), a similar case involving banks rather than savings and loan associations. The court held unconstitutional a provision of the Banking Code which allowed a trial de novo on appeal to the courts of State Banking Board orders. It nevertheless stated at p. 433:

“Holding the above provision of the statute unconstitutional does not mean that intervenors [two banks challenging the granting of a charter to a third bank] do not have a right of appeal. When a vested property right, as each intervenor has in its charter, has been affected by the action of an administrative agency, thereby invoking the protection of due process of law, there is an inherent right of appeal.”

Board of Insurance Commissioners v. Title Insurance Association of Texas, 272 S.W.2d 95 (Tex.1954), is also cited by appellant. There it was held that a provision of the Insurance Code that no action should be brought by any person other than the Board of Insurance Commissioners to interfere with the business of a title insurance company, would not preclude the maintenance of an action against the Board and two title insurance companies by other title insur-anee and abstract companies to enjoin the Board from approving an agency contract between the two defendant companies. The court further held,

“There is no provision in the statute for an appeal from an order of the Board approving a contract of the nature of the one under review, but the right of proper parties to subject such an order to judicial review must be implied. The property rights of parties cannot be determined by orders of an administrative agency, without a right of judicial review of such orders.” Id. 272 S.W.2d at 97.

Finally, appellant cites Texas Optometry Board v. Lee Vision Center, Inc., 515 S.W.2d 380 (Tex.Civ.App.—Eastland 1974, writ ref’d n. r. e.), where two corporate opticianries appealed from an order of the State Optometry Board suspending their advertising permits for five days. The Texas Optometry Act made no provision for such an appeal to the courts, but nevertheless the court in that case held that a vested property right was affected by the Board’s action and therefore the plaintiffs had an inherent right of appeal. Id. 515 S.W.2d at 382. Appellant argues persuasively that if an administrative suspension of an opticianry’s advertising permit for a mere five days is sufficient deprivation of a property right so as to give rise to an inherent right of appeal to the courts, then surely the administrative permanent dismissal from a tenured position on a university faculty comprises a deprivation equally if not more sufficient to give rise to the same right here.

In City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788 (1951), the court states at pages 790-1,

“[T]he legislature may simply be silent upon the subject [of whether judicial review of the administrative action may be had]. Although the legislature specifically denies judicial review, decisions of an administrative body may be attacked in court if they violate some provision of the State or Federal Constitution. . [T]he courts should recognize an inherent right of appeal from an administrative body created by an act silent on the question of appeal only where the administrative action complained of violates a constitutional provision. .
“So, in order to sustain the jurisdiction of the district court here, plaintiff must bring himself within the protection of the due process clause. To do that, the right affected adversely here by the action of this administrative body must be a vested property right.”

The statute involved in the instant case is silent on the subject of judicial review, but appellant meets the condition of City of Amarillo by claiming that his vested property right in his tenured job has been adversely affected by the action of the Board. See also Bloom v. Texas State Board of Examiners of Psychologists, 475 S.W.2d 374, 378 (Tex.Civ.App.—Austin 1972), reversed on other grounds, 492 S.W.2d 460 (Tex.1973).

As a general proposition, we do not feel that the recognition of an inherent right to access to the courts for judicial review of a determination by an administrative agency of the State which infringes upon one’s vested property rights is necessarily at variance with the doctrine of sovereign immunity. Indeed, in Ybarra v. City of the Town of Los Altos Hills, 503 F.2d 250 (9th Cir. 1974), the court stated at p. 252, “State and municipal officials whose acts violate constitutional rights are not protected by the state’s sovereign immunity or the Eleventh Amendment.” None of the cases cited by appellant contained a contention, or a holding thereon, that sovereign immunity applied to prevent the plaintiff from maintaining his action against the State or its agency or officials for judicial review of an adverse administrative ruling; neither did any of the courts find it necessary to raise the issue sua sponte. Appellees attempt to distinguish Brazosport Savings and Loan Association alone, on the basis that savings and loan associations are affected with a public interest. We do not consider this a material distinguishing feature. Appellant states that he “has lost not just a job terminable at will but a vested right on a par with the savings and loan franchise in Brazosport Savings, supra, the bank charter in Chemical Bank, supra, the agency contract in Board of Insurance Commissioners, supra, and the advertising permits in Texas Optometry Board, supra.”

We agree, and accordingly, we hold that appellant has an inherent right to appeal to the courts the adverse effect of a decision by an administrative agency on his vested property interest in his position as a tenured member of the faculty of a state university, despite the lack of a statutory provision therefor, and obviating the requirement of legislative consent for a suit against the State through its agency, the Board of Regents, Texas State University System. Such judicial review would be limited to a question of law, i. e., whether the decision of the Board to dismiss appellant has support in substantial evidence as reflected in the proceedings before said Board. Chemical Bank & Trust Company v. Falkner, supra; see also Green v. Board of Regents of Texas Tech University, 474 F.2d 594, 595 (5th Cir. 1973). The trial court, therefore, erred in sustaining the Board’s special exceptions to the effect that appellant failed to state a cause of action because of his failure to allege legislative consent to institute this suit and to the effect that he failed to state a cause of action because the action of the Board was not subject to judicial review. Appellant’s points one and two are sustained.

Appellant purports to sue not only the Board itself but also the members thereof. Although he has stated in oral argument before this court that they are sued in their official, not individual, capacities, this is not at all clear from his petition, and it is the petition, of course, to which special exceptions were made and sustained. There he states that he is complaining of “the individual members” of the Board. Nowhere does he indicate that he is suing them in their official capacities and nowhere does he allege facts that would tend to show liability on the part of the Board members as individuals. No relief is sought from the individual appellees. Where the gravamen of the petition in a civil rights suit is that the members of an agency acted improperly in depriving the constitutional rights of the plaintiff and there is no complaint of individual action by a member of the agency, the individual members are entitled to the dismissal of the suit as against them. Abel v. Gousha, 313 F.Supp. 1030, 1031 (E.D.Wis.1970). Appellant, in his petition, named the members of the Board “and their successors in office.” It is clear that an essential element of a civil rights claim is that the particular defendant be personally involved in the alleged denial of a constitutional right. Washington v. Anderson, 387 F.Supp. 412, 414 (E.D.Okla.1974). Appellant’s addition of the words “and their successors in office” confirms the conclusion that his quarrel is with the Board and not its members. We, therefore hold that the individual appellees are entitled to the dismissal of appellant’s suit as against them.

Appellant argues in his third point of error that the trial court erred in sustaining the Board’s special exception that there was no cause of action under 42 U.S.C. Sec. 1983 because the Board is not a “person” thereunder. That statute reads as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” [Emphasis added.]

We feel, however, that the district court lacked jurisdiction of a cause of action against the Board under sec. 1983 for a reason other than the definition of the word “person.”

In Pierre v. Jordan, 333 F.2d 951 (9th Cir. 1964), cert. denied, 379 U.S. 974, 85 S.Ct. 664, 13 L.Ed.2d 565 (1965), a suit was brought to obtain declaratory and injunc-tive relief to forestall the formation and financing of a county waterworks district. The suit was brought as a class action by an owner of property within the proposed district on behalf of herself and other property owners similarly situated. The individual plaintiff predicated her suit on the provisions of several federal statutes, including sec. 1983. The court stated,

“Her prime objective in bringing the suit is to undo the purported formation of [the waterworks district] . . . . In her effort to accomplish this she has . alleged that certain state statutes governing the manner in which such districts are to be formed, are violative of the Due Process Clause of the Fourteenth Amendment. She has also alleged that in various particulars not involving the validity of state statutes she, and those whom she undertakes to represent in this suit, have been deprived of their rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. As before indicated, however, the prime purpose of the suit is not to redress these asserted constitutional deprivations per se but, on these and other grounds, to put the waterworks district out of business.
“The purpose of [the civil rights statutes sued under] is to provide a means of obtaining effective redress in the federal courts against those who, acting under color of state law have subjected, or have caused to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws of the United States. But these statutes contemplate that the prime objective of the federal suit is to redress such rights. Where there is some other principal objective of the litigation, and the deprivation of constitutional rights is asserted only as a means of achieving that objective, the subject matter is not cognizable under the Civil Rights Act, and district court jurisdiction thereunder is lacking.” [Footnotes omitted.] Id. at 957-8.

So it is with the instant case. Appellant’s counsel stated in oral argument before this court, “What Martine is basically trying to get out of this lawsuit is judicial review of [the] decision by the appellees to fire him.” Significantly, he characterizes the alleged cause of action under the provisions of sec. 1983 as “an alternate cause of action that we threw in.” We note that appellant has alleged no discriminatory or unreasonable conduct by the Board; neither he has made any allegations that the Board acted in bad faith, for a constitutionally impermissible reason, or beyond the authority granted it by statute — except to allege that he should be accorded the right to judicial review of the determination made by the Board to dismiss him. He prays, not for damages, but for reinstatement to his former position. If every appeal to the courts from the decision of an administrative agency for review under the substantial evidence rule were to also engender a cause of action under sec. 1983, the resulting hindrance to the functioning of such agencies would be intolerable.

Appellant’s primary objective in this suit is not to secure redress for some asserted deprivation of constitutional rights per se, but rather is plainly to secure judicial review of an administrative agency decision. Inasmuch as we have granted appellant’s request for judicial review, by virtue of our disposition of his first and second points of error herein, he has obtained all the relief he is seeking by this action.

In our view the trial court correctly sustained the special exceptions that appellant failed to state a cause of action under 42 U.S.C. sec. 1983, not necessarily for the reason relied on by the trial court, but because the case pled here is controlled by the decision in Pierre v. Jordan, supra. Appellant’s point of error three is overruled.

For the reasons stated the order of the trial court dismissing the case is reversed, and the cause is remanded to that court for judicial review pursuant to the substantial evidence rule.


author: RALEIGH BROWN, Justice.

text:
    Donald P. DOWLING, Appellant, v. NADW MARKETING, INC., et al., Appellees.
    No. 5269.
    Court of Civil Appeals of Texas, Eastland.
    Feb. 22, 1979.
    Rehearing Denied March 15, 1979.
    Larry J. Dowling, Dowling & Wilson, Austin, for appellant.
    Lamar Holley, Holley & Holley, Dallas, for appellees.
   RALEIGH BROWN, Justice.

Donald P. Dowling, a Texas resident, sued NADW Marketing, Inc., a Louisiana corporation not registered to do business in Texas, and Henry Primeaux, a resident of Louisiana, alleging deceptive trade practices and alternatively fraud. Defendants’ motion for dismissal for want of jurisdiction was granted. Dowling appeals. We reverse and remand.

The plea to the jurisdiction was based on a prior written agreement between the parties which included the following provisions:

XII. CONTRACT INTERPRETATION
This contract shall be interpreted and construed under the laws of the State of Louisiana. Any action brought hereunder by DISTRIBUTOR shall be brought in the District Court of the Parishes of Orleans or Jefferson, in the State of Louisiana.

Primeaux executed the agreement on behalf of NADW Marketing, Inc. and Dowl-ing for himself as a distributor.

If the trial court has founded its order on that portion of the cited provision which attempts to set venue in the Parishes of Orleans or Jefferson in the State of Louisiana, such a dismissal would be error. Like provisions have been declared invalid in Texas.

The court in International Traveler’s Ass’n v. Branum, 109 Tex. 543, 212 S.W. 630 (1919), considering a stipulation in an insurance policy fixing exclusive venue in the county of the insurer’s residence, said:

We are convinced that it is utterly against public policy to permit bargaining in this state about depriving courts of jurisdiction, expressly conferred by statute, over particular causes of action and defenses. Eaton v. International Travelers’ Ass’n of Dallas, Tex.Civ.App., 136 S.W. 817. . . .

In Fidelity Union Life Insurance Company v. Evans, 477 S.W.2d 535 (Tex.1972), considering the fixing of venue by contract, the court said:

We hold that the fixing of venue by contract, except in such instances as permitted by Article 1995, § 5, is invalid and cannot be the subject of private contract. Clark, Venue in Civil Cases, 9 (1953).

The fact that the cited provision requires the contract to be interpreted and construed under the laws of the State of Louisiana does not make this cause subject to a dismissal.

Texas courts have long recognized that parties to a contract, under certain circumstances, may choose the law applicable to the transaction in which they are engaging. Dugan v. Lewis, 79 Tex. 246, 14 S.W. 1024 (1891).

The court in Securities Investment Company of St. Louis v. Finance Acceptance Corporation, 474 S.W.2d 261 (Tex.Civ.App.Houston (1st Dist.) 1971, writ ref’d n. r. e.) said:

Where the parties to a contract specify in the instrument that it is to be governed by the law of a particular state, that law will apply if it has a reasonable relationship to the contract. Teas v. Kimball, 257 F.2d 817 (5th Cir., 1958); 16 Am.Jur.2d, Conflict of Laws, § 41, pp. 64-65.

In the case at bar, Dowling has pleaded appellees violated the Texas Deceptive Trade Practices Act and alternatively has pleaded fraud in the inducement of the contract. Appellees answered the allegations without challenging the jurisdiction of the court by a limited appearance.

The court in Campsey v. Brumley, 55 S.W.2d 810 (Tex.Comm.App.—1932) said:

The jurisdiction of a court is determined, not by the judgment rendered, but by the petition. City of Fort Worth v. Zane-Cetti (Tex.Com.App.), 29 S.W.2d 958. It is settled that the petition must affirmatively show jurisdiction .
Jurisdiction of a court is the power or authority by which it takes cognizance of, and decides, cases. . . . Jurisdiction may be said to be of two kinds; of the subject-matter, and of the person. Consent may give jurisdiction of the person, but cannot do so as to the subject-matter. . . .

The court, having jurisdiction of both the subject matter and the person, erred in granting the motion to dismiss. See Foote v. City of Houston, 361 S.W.2d 247 (Tex.Civ.App.—Houston 1962, writ ref’d n. r. e.).

The judgment is reversed and the cause remanded.


author: NYE, Chief Justice.

text:
    Andres CORTEZ a/k/a Andy Cortez, Appellant, v. NATIONAL BANK OF COMMERCE OF BROWNSVILLE, Appellee.
    No. 1351.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 22, 1979.
    Rehearing Denied March 22, 1979.

      Lee Arnett, Brownsville, for appellant.
    Franklin T. Graham, Jr., Brownsville, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit on a guaranty agreement. Plaintiff, National Bank of Commerce of Brownsville, Texas, sued defendant, Andres Cortez, for breach of a written agreement guaranteeing payment of a certain note executed by Cortez on behalf, of Southmost Motors, Inc., d/b/a Southmost Dodge, and payable to plaintiff bank. After a trial to the court without the intervention of a jury, the court entered judgment awarding the bank judgment of $19,979.56 representing the total principal and interest due on the underlying obligation and attorney’s fees. Cortez appeals.

The bank’s original petition alleged that Southmost Motors, Inc., a Texas corporation, while doing business as Southmost Dodge, by and through defendant Cortez, executed a promissory note in the principal amount of $17,800.00 payable in installments commencing on August 14,1976, and ending on July 14, 1977; and that South-most defaulted on the note leaving a principal balance due and outstanding of $16,-592.62 plus interest. The bank further alleged that, on July 14,1976, Cortez contemporaneously with the execution of the note, executed and delivered an agreement guaranteeing the payment of the note that was executed by him on behalf of Southmost. Cortez, in addition to the filing of a general denial, specifically pled that the guaranty agreement was unsupported by consideration.

The evidence introduced at trial established that Southmost Motors, Inc., was a closely held Texas corporation organized sometime in 1969 and was now defunct. Cortez was a principal officer of the corporation. Cortez, his wife and brother each owned one-third of all of the corporation’s stock. On July 31, 1975, the corporation “went out of business.” The Small Business Administration and Chrysler Credit Corporation “took over” all of the corporate assets. The corporation has received no income since it ceased business operations. Its franchise taxes have remained unpaid since that time.

Sometime in 1974, while the corporation was still in operation, it executed a note in the principal amount of $25,000.00 payable to the bank. Cortez testified that the Small Business Administration guaranteed the note and “paid 18 months in advance.” After the corporation went out of business, no further payments were made to the bank. In 1976, when the final payment on this note became due, Cortez testified that Mr. George Nelson, the bank’s president, contacted him to discuss the unpaid balance due on the note. Pursuant to their discussions, Cortez testified that he then executed, on behalf of the corporation, a second note payable to the bank in a principal amount of $17,800.00 which represented a “renewal and extension” of the then outstanding balance due on the prior note. The terms of the renewal note required payments on the principal to be made in eleven equal monthly installments of $100.00 with a final twelfth installment of the remaining principal amount plus interest due on August 14, 1977. Cortez, contemporaneously with the execution of the note on behalf of the corporation, executed a personal guaranty agreement guaranteeing the payment of the $17,800.00 note. The guaranty agreement Cortez executed was a form contract entitled “Continuing Guaranty.”

Richard Hinojosa, senior vice president of the bank, testified that the bank had received no payments since July 14, 1977, the date the last payment on the renewal note had been made. Cortez testified that he received no money or any other remuneration for signing the guaranty agreement. The trial court entered its judgment in favor of the bank. No findings of fact or conclusions of law were requested or filed.

On appeal, Cortez asserts in a single point of error that the guaranty agreement was unenforceable because it was not supported by consideration. First we consider the bank’s contention that under the provisions of the Texas Uniform Commercial Code, no consideration was necessary.

Section 3.408 of the Texas Uniform Commercial Code, Tex.Bus. & Comm.Code (1968), entitled “consideration,” provides, in relevant part, as follows:

“Want or failure of consideration is a defense as against any person not having the rights of a holder in due course (Section 3.305), except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind. Nothing in this section shall be taken to displace any statute outside this title under which a promise is enforceable notwithstanding lack or failure of consideration.”

The applicability of Article 3, of which Section 3.408 is a part, is limited to commercial paper, including, drafts, checks, certificates of deposit and notes as defined in Section 3.104(a)(2). See Tex.Bus. & Comm.Code § 3.103 and comment 1 (1968). An “instrument” within the meaning of Section 3.408 is “a negotiable instrument.” Tex.Bus. & Comm.Code § 3.102(a)(5) (1968). One of the purposes of Section 3.408 is to remove the necessity for new consideration in certain instances such as the execution of a note or draft as payment of or as security for a debt already owed by the party giving it. James Pair, Inc. v. Gentry, 134 Ga.App. 734, 215 S.E.2d 707, 708 (1975); Tex.Bus. & Comm.Code § 3.408, comment 2 (1968).

The bank did not seek to enforce the debt evidenced by the promissory note. It sued Cortez to enforce his obligation under the terms of the contemporaneously executed guaranty agreement. This guaranty agreement is not a negotiable instrument and is not governed therefore by the provisions of the Texas Uniform Commercial Code. See Tex.Bus. & Comm.Code § 3.104 (1968); United States Gypsum Co. v. Sampson, 496 S.W.2d 687, 691 (Tex.Civ.App.—Amarillo 1973, no writ); Eikel v. Bristow Corp., 529 S.W.2d 795, 799 (Tex.Civ.App.— Houston [1st Dist.] 1975, no writ); James Pair, Inc. v. Gentry, 134 Ga.App. 734, 215 S.E.2d 707, 708 (1975); 2 Anderson, Uniform Commercial Code § 3-408:7. Anderson in his treatise on the Uniform Commercial Code said:

“Code § 3-408 governs only the liability of a party on commercial paper. It does not purport to regulate agreements which may be entered into collaterally with the execution of commercial paper. Whether consideration is required for such other agreements and whether it exists will be determined by pre-Code principles which continue in force because not displaced.” 2 Anderson, Uniform Commercial Code, § 3-408:7 (2d Ed. 1971).

We must, therefore, examine appellant’s point of error in light of other Texas statutory and common law principles.

All written contracts, including guaranty agreements, are presumed, at the outset, to be supported by consideration. This statutory presumption is designed to import consideration in the absence of the formality of a seal. Unthank v. Rippstein, 386 S.W.2d 134, 138 (Tex.Sup.1964); Maykus, Jr. v. Texas Bank & Trust Company of Dalias, 550 S.W.2d 396, 398 (Tex.Civ.App.—Dallas 1977, no writ); Waters v. Waters, 498 S.W.2d 236, 240-41 (Tex.Civ.App.—Tyler 1973, writ ref’d n.r.e.); Tex.Rev.Civ.Stat. Ann. art. 27 (1969). Since the guaranty agreement in question presumptively imports a valid consideration, the burden was upon Cortez to plead and prove the absence of such consideration. Maykus, Jr. v. Texas Bank & Trust Company of Dallas, 550 S.W.2d 396, 398 (Tex.Civ.App.—Dallas 1977, no writ); Newton v. Newton, 77 Tex. 508, 14 S.W. 157, 158 (1890); Decor Dimensionals v. Smith, 494 S.W.2d 266, 268 (Tex.Civ.App.—Dallas 1978, no writ); see Rule 94, Texas Rules of Civil Procedure. Cortez relies on the evidence adduced at the trial that neither he nor Southmost Motors received an extension of additional credit nor additional money at the time the renewal and extension note and the guaranty agreement were signed.

In considering Cortez’ single point of error, we must keep in mind the familiar rules governing the scope of our review. In cases, such as the one before us, where there are no findings of fact and conclusions of law and none have been requested, the trial court’s judgment will be affirmed if it can be upheld on any legal theory that is supported by the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968); Bishop v. Bishop, 359 S.W.2d 869 (Tex.Sup.1962); Mobile County Mutual Insurance Co. v. Jacobs, 531 S.W.2d 436, 438 (Tex.Civ.App.—Corpus Christi 1975, no writ). It is assumed at the outset that the trial court resolved every issue of fact that was supported by the evidence in the appellee bank’s favor. We view such evidence in the light most favorable to such implied findings, disregarding all evidence that is contrary thereto. James v. Dyre, 159 Tex. 321, 320 S.W.2d 319 (1959); Loyd W. Richardson Construction Corporation v. Corpus Christi State National Bank, 513 S.W.2d 287 (Tex.Civ.App.—Corpus Christi 1974, no writ).

Even assuming the testimony introduced by Cortez for the purpose of showing the absence of consideration was sufficient to rebut the statutory presumption that a written contract is supported by consideration, there remains ample evidence in the record to support the trial court’s implied finding that, contrary to appellant’s assertion, the guaranty agreement in question was supported by consideration. By the express terms of the guaranty agreement, Cortez agreed to guarantee the obligations of Southmost Motors “for the purpose of enabling SOUTHMOST MOTORS, INC., d/b/a SOUTHMOST DODGE ... to obtain credit or other financial accommodations from [appellee Bank] . . . ” The undisputed evidence introduced by both parties established that, at the time the “renewal and extension” note and the guaranty agreement were executed, Southmost Dodge was in default of its obligations under the terms of a pre-existing, past due promissory note. Cortez admitted signing the “extension and renewal” note on behalf of Southmost Dodge and that its recited principal amount of $17,800.00 represented the outstanding, past due balance and interest Southmost Dodge owed to the bank on a previous note.

A number of courts, including our Supreme Court, has held that to support a contract of guaranteeship, it is not necessary that any consideration pass directly to the guarantor. A consideration moving to the principal alone will suffice to bind the guarantor where the note evidencing the primary obligation and the guaranty agreement are executed contemporaneously. See Bonner Oil Co. v. Gaines, 108 Tex. 232, 191 S.W. 552 (1917); Gubitosi v. Buddy Schoellkopf Products, Inc., 545 S.W.2d 528 (Tex.Civ.App.—Tyler 1976, no writ); Hargis v. Radio Corp. of America, Electronic Components, 539 S.W.2d 230, 232 (Tex.Civ.App.—Austin 1976, no writ); Diamond Paint Company of Houston v. Embry, Jr., 525 S.W.2d 529, 533 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n.r.e.); Waller v. Missouri City State Bank, 482 S.W.2d 40, 43 (Tex.Civ.App.—Tyler 1972, writ ref’d n.r.e.); Dean v. Allied Oil Co., 261 S.W.2d 900 (Tex.Civ.App.—Waco 1953, writ dism’d). Cortez’ contention that the corporation did not receive a benefit from the execution of the “renewal and extension” note is without merit. We hold that there is ample evidence in the record to support the trial court’s implied finding that the guaranty agreement in question was supported by consideration.

Although appellant makes some general arguments concerning the evidence that the corporate entity, Southmost Dodge, is no longer engaged in business and that its franchise taxes remain unpaid, there is no evidence that the debts of the corporation evidenced by the “renewal and extension” note had been subject to bankruptcy proceedings or otherwise legally discharged. See Schwab v. Schlumberger Well Surveying Corp., 145 Tex. 379, 198 S.W.2d 79 (1946). Appellant’s point of error is overruled.

The judgment of the trial court is affirmed.

      . Tex.Bus. & Comm.Code (1968) Section 1.103 provides as follows:
      “Unless displaced by the particular provisions of this [Act] the principles of law and equity, including the law merchant and the law relative to capacity to contract, principal and agent, estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, or other validating or invalidating cause shall supplement its provisions.”


author: BISSETT, Justice.

text:
    James S. BENSON, Appellant, v. Ray JONES and James Pemelton, Appellees.
    No. 1423.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 22, 1979.
    Rehearing Denied March 15, 1979.

      Randall P. Crane, San Benito, for appellant.
    Mark L. Vanberg, Mercedes, for appel-lees.
   OPINION

BISSETT, Justice.

This appeal involves the interpretation of the rental provision in a written farm lease agreement. James S. Benson, John T. Benson, Ruby 0. Benson and Pamela Benson brought suit against Ray Jones and James Pemelton to recover $2,955.85, alleged to be due them under the lease agreement for past due rental and interest on the rental for the year commencing September 1, 1976, and terminating August 31, 1977 (the first year of the lease), for damages to the land covered by the lease agreement, and for attorney’s fees. Trial was to the court, sitting without a jury. Judgment was rendered that plaintiffs take nothing by their suit. Plaintiffs have appealed only from those portions of the judgment concerning their action to recover $2,955.85 for past due rentals and interest on such rental, together with attorney’s fees.

Findings of fact were neither requested nor filed. Two points of error are presented. First, it is contended that the trial court erred in rendering a judgment which varied the terms of a clear and unambiguous written lease agreement. Next, it is asserted that the court erred in rendering a judgment which rescinded or modified a portion of the written lease agreement.

The lease agreement involved was executed by plaintiffs, as “lessor”, and by defendants, as “lessees.” It was signed on March 14, 1977, and in pertinent part, provided:

“LESSOR has this day and does by these presents lease and demise unto LESSEES the following described lands situated in Cameron County, Texas, to-wit:
954.3 tillable acres of land, more or less, known as the Benson Farms . for a period from the 1st day of September, 1976 to the 31st day of August, 1978, for rental price of $50 per acre per year based on the net tillable acres in the property above described based on ASCS measurements payable as follows:
1.One year’s total rental, plus interest since the start of the lease on this amount as it accrues at the rate of 9% per annum, which total sum is payable on September 15, 1977.”
* * * * * *
“. . . LESSEES agree to grow no sugar cane on the property without the consent of the LESSOR, notwithstanding the above provisions, LESSEES shall be allowed to use that portion of the property which is presently planted in sugar cane ... in the production of sugar cane for the period of the 1977-1978 sugar cane harvest season . . . ”

In September, 1977, defendants paid plaintiffs $49,053.50 as rental and interest on rental for the period commencing September 1, 1976 and terminating August 31, 1977. Plaintiffs demanded an additional payment of $2,955.85, which they claim is the unpaid balance on the rental and interest on rental due them for the first year’s lease under the terms of the lease agreement. Defendants refused to pay the $2,955.85, and suit was then instituted by plaintiffs. Rental for the second year of the lease, September 1, 1977 to August 31, 1978 is not involved in this case.

It was stipulated at the trial:

1. The leased land contained 954.3 tillable acres according to ASCS measurements;
2. Plaintiffs are entitled to one-third of the amount of any judgment rendered in their favor as reasonable attorney’s fees;
3. Plaintiffs had a sugar cane crop on part of the land under lease that was not removed from the land until May 4, 1977.

Plaintiffs contend that under the plain and unambiguous provisions of the lease that the rental for the first year is computed at 954.3 X $50, totalling $47,715.00, and that the interest thereon amounts to $4,294.35, making a total of $52,009.35 due on September 15, 1977. Defendants contend that the lease provisions require only a total payment of $49,053.50 (including rental and interest on rental), which they paid to plaintiffs, since, under the terms of the lease, no rental was due on that portion of the land which remained in plaintiffs’ possession from September 1, 1976, until May 4, 1977, when the sugar cane which was growing on the land on September 1, 1976, was removed from the land under lease. It is admitted by all parties that the total amount due under plaintiffs’ theory is $52,-009.35 and the amount due under defendants’ theory is $49,053.50, a difference of $2,955.85. We are asked to reverse the judgment of the trial court and to render judgment for plaintiffs in the sum of $2,955.85, together with attorney’s fees in the amount of $985.28, and for interest thereon.

It is conclusively established by the evidence that: the parcel of land, 85.7 acres, upon which sugar cane was growing on September 1,1976 (the “start” of the lease) was also growing on such acreage on March 14, 1977, when the lease was signed; from September 1, 1976, to May 4, 1977, when the sugar cane was harvested by plaintiffs, who kept all of the proceeds of the harvest, the possession of the 85.7 acres in sugar cane remained in plaintiffs; defendants were in possession thereof from and after May 4, 1977; defendants cultivated the sugar cane stubble after they obtained the possession of the sugar cane acreage on May 4, 1977, and harvested a crop therefrom during the 1977-1978 sugar cane season.

It is undisputed that checks in the total amount of $49,053 were accepted by defendants from plaintiffs. It is also undisputed that for the year September 1, 1975 to August 31, 1976, 810 acres out of the 954.3 acres were under a written lease from plaintiffs, as lessors, to defendants, as lessees, which provided for “cash” rent in the amount of $29,000.00 on 730 acres, and a fractional share of the crops produced from 80 acres thereof. There is testimony offered by defendants to the effect that it is the custom of farmers in the vicinity of the 954.3 acres to use a cash per acre rental figure as opposed to a lump sum cash figure for the entire tract when they intend to pay as rental only a dollar amount for each acre delivered to them under an agreement of lease.

In support of their points, plaintiffs contend that the trial court permitted defendants to introduce parol testimony which varied the terms of the written lease agreement, and that the trial judge, in accepting such testimony “as true,” in effect, rendered a judgment which is supported only by testimony in violation of the extrinsic evidence rule. In particular, they say that to allow defendants to introduce any parol evidence with regard to the rental due under the lease other than to establish the tillable acres measurement by the ASCS would result in the establishment of a rental which is different from the formula set out in the lease. On the other hand, defendants assert that such testimony was admissible because the lease agreement clearly contemplated that a rental based on the net tillable acres, as established by ASCS measurements, could only be construed as being rental determined by the number of tillable acres actually delivered to them, multiplied by $50. Under defendants’ contention, no rental for the period of time from September 1, 1976, to May 4, 1977, with respect to the sugar cane acreage was due and payable under the lease. Plaintiffs contend otherwise.

Plaintiff James S. Benson testified that plaintiffs leased 954.3 acres of land to defendants; that “the agreed rental for that land” was $50 per acre; that the “defendant agreed to pay $50 per acre on the total leased acres”; and that the harvesting season for sugar cane is mid-October to mid-April. He further testified:

“Q Isn’t it true that you withheld possession of the property where the sugar cane was until May 4, 1977?
A Yes, sir.
Q And yet you still ask that the defendants pay rental on this property?
A Absolutely.
Q You did receive all the proceeds of that harvest of sugar cane?
A Yes, sir.
Q You want the harvest and the rent? A Yes, sir.”

Defendant Ray Jones, in essence, testified that defendants did not intend or agree to rent the land that had sugar cane growing on it for the period September 1, 1976, to date of harvest, but intended to rent such land only for the second year of the lease. In particular he stated:

“. . .1 got it (the sugar cane land) for the second year. That’s the only reason the 954.3 acres was on there, because we were talking about two years. If we had been talking about one year, then, we wouldn’t have had the sugar cane property in there. It could have been something like 954.3 less something.”

He further testified in answer to questions propounded by plaintiffs’ counsel, as follows:

“Q Does it (the lease agreement) say anywhere in here that you will pay for anything other than 954.3 acres or the acreage based on the ASCS measurements?
A Part of that is $50 per acre per year. That’s a continuation of the sentence based on the net tillable acres. We did not receive 954.3 tillable acres.”
* * * * * *
“Q What was the purpose of the per-acre basis?
A To pay for what I had received, for what I had use of.
Q And you never intended to pay for the cane property until you got possession?
A No, sir.”
* * * * * *
“Q Well, why was nothing put in the lease to that effect, then, to the effect that you were not paying for what you had not gotten up till (sic) that point?
A There never was an assumption that that was to be paid for.
Q You don’t think by signing that lease on March the 14th you waived any objection you might have had to not having gotten possession of that land?
A No, I don’t feel like I was entitled to pay for it. As I said yesterday, it was based on acreage. If it had been a lump sum and I had accepted that acreage as a lump sum, it might have been a little different story. But it’s based on acres, $50.00 an acre of tillable acres that was leased.”

The extrinsic evidence rule is not a rule of evidence, but is a rule of substantive law; consequently, evidence adduced by parties to a written instrument in violation of that rule is incompetent, has no probative force, and even though admitted without objection, cannot support the verdict of a jury or findings of fact by the trial court, or a judgment based on such verdict or findings. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30 (1958). As a general rule, the written instrument should be construed so as to give effect to the parties’ intention, as revealed from a consideration of the instrument as a whole. Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953). However, our Supreme Court has on several occasions held that even in the case of an unambiguous written instrument, as is the case here, a trial court may properly admit extrinsic evidence, such as parol testimony of the facts and circumstances surrounding or pertaining to the making of the agreement, in order that the court may apply the language used in the instrument to the facts and circumstances then existing for the purpose of ascertaining the true intention of the parties. The following language which appears in Murphy v. Dilworth, 137 Tex. 32, 151 S.W.2d 1004 (1941), is applicable to this case:

“It is true that, even though a written contract be unambiguous on its face, pa-rol evidence is admissible for the purpose of applying the contract to the subject with which it deals; and if by reason of some collateral matter an ambiguity then appears, proof of the facts and circumstances under which the agreement was made is admissible, in order that the language used in the contract may be read in the light thereof for the purpose of ascertaining the true intention of the parties as expressed in the agreement. In other words, if the meaning of the language used in a written contract becomes uncertain when an attempt is made to apply it to the subject matter of the contract, though not otherwise uncertain, parol evidence is permissible to aid in making the application. First National Bank v. Rush, Tex.Com.App., 210 S.W. 521; Klueter v. Joseph Schlitz Brewing Co., 143 Wis. 347, 128 N.W. 43, 32 L.R.A.,N.S., 383; 22 C.J. 1192. . . .”

It was said in Guardian Trust Co. v. Bauereisen, 132 Tex. 396, 121 S.W.2d 579 (1938).

“. . . It is proper to consider parol testimony as to the circumstances surrounding the parties out of which the contracts grew, not to add to or vary their terms, but to apply the contracts to the subjects with which they deal for the purpose of ascertaining the real intention of the parties. First National Bank of Amarillo v. Rush, Tex.Com.App., 210 S.W. 521; Ryan v. Kent, Tex.Com.App., 36 S.W.2d 1007. ...”

In the case at bar, both the plaintiff James S. Benson and the defendant Ray Jones testified as to the intention of each at the time the terms of the lease were agreed upon on September 1, 1976, and when it was reduced to writing and signed on March 14, 1977. We do hot understand such testimony had the effect of varying, enlarging or contradicting the terms of the written agreement. The written agreement clearly purports to lease 954.3 “tillable acres” of land to defendants. Rent, however, was to be based, not upon the gross acres specified in the leasing clause, but upon “net” tillable acres according to ASCS measurements, with no explanation in the instrument of how to ascertain such “net” amount of “tillable” acres. The use of the word “net” by the parties in the rental clause is significant as it indicates some type of deduction in quantity from the “954.3 tillable acres” demised and leased in the leasing clause. Black’s Law Dictionary 1192 (4th Ed. 1951). Without further elucidation in the lease, as is the case here, rent according to the “net tillable acres,” as determined by ASCS measurements, becomes uncertain in its meaning. Therefore, parol evidence was admissible, not for the purpose of varying, enlarging or contradicting the terms of the written agreement, but to show facts and circumstances surrounding the execution of the lease in order to ascertain the true intent of the parties in their use of the word “net” as it appears in the rental formula set out in the written agreement.

We have concluded that the trial court rendered a correct judgment. We have carefully examined the record and have considered all of plaintiffs’ points of error. The points are overruled.

AFFIRMED.


text:
    VALLEY DATSUN, Appellant, v. Jose MARTINEZ, Appellee.
    No. 1427.
    Court of Civil Appeals of Texas, Corpus Christi.
    Feb. 22, 1979.

      Thomas G. Sharpe, Jr., Brownsville, for appellant.
    Randall P. Crane, San Benito, for appel-lee.
   OPINION

BISSETT, Justice.

This is a suit for damages flowing from the alleged failure of a newly purchased used automobile to function properly. In July of 1977, Jose Martinez, hereinafter referred to as “plaintiff,” purchased a 1971 Volkswagen camper from Valley Datsun, Inc.; hereinafter referred to as “defendant.” Some two days after it was picked up from the defendant’s lot, the camper sustained a burned-out clutch and thrown rod. Thereafter, plaintiff brought suit against defendant to recover damages.

Trial was to a jury which found favorably to the plaintiff in response to special issues. Judgment was rendered for plaintiff in the amount of $4,300, $1,800 of which represented a trebling of the jury’s finding that the reasonable repair cost was $600, and $2,500 of which represented the jury’s finding of reasonable attorney’s fees. Defendant has appealed.

In general, plaintiff accused defendant of misrepresenting the quality of the camper at the time of the sale. Defendant responded with a general denial, allegations of misuse and failure to mitigate damages, and an allegation of an “as is” sale of the camper to plaintiff.

Three points of error are brought forward. In point 1, it is contended that the trial court erred in awarding treble damages and attorney’s fees to plaintiff “since there was no finding that any of the conduct of appellant constituted a deceptive trade practice.” In point 2, it is asserted that the trial court erred in submitting special issues 1 through 8 because there were no pleadings to support such issues. In point 3, it is claimed that the trial court erred in submitting special issues 1 through 8 because there was no evidence offered which would support the submission of those issues. We first consider points 2 and 3.

Fourteen (14) special issues were submitted to the jury. It was found: defendant represented to plaintiff at the time of purchase that the vehicle was in “good mechanical condition” (No. 1); that such representation was untrue (No. 2); that such representation was a producing cause of an adverse effect on plaintiff (No. 3); that defendant sold the vehicle “as being suitable for driving under normal conditions” (No. 4); that the vehicle “was not suitable for driving under normal conditions” at the time of the sale in question (No. 5); that such failure was a producing cause of an adverse effect on plaintiff (No. 6); that defendant’s action “at the time of the sale took advantage of plaintiff’s lack of knowledge, ability, experience or capacity” as to be grossly unfair (No. 7); that such conduct was a producing cause of an adverse effect on plaintiff (No. 8); that $2,500.00 would be reasonable attorney’s fees (No. 9); that it would cost $600.00 to properly repair the vehicle (No. 10); that by the use of the term “as is” in the sales contract the parties were referring only to “the upholstery, muffler, trim and inspection sticker” (No. 14); that the manner in which plaintiff drove the vehicle after it was delivered to him did not constitute a misuse of the vehicle (No. 11). Special issues numbers 12 and 13 were not answered by the jury. Special issues numbers 1 through 8 and number 14 were submitted over defendant’s objections.

In view of the challenge made by point 2, we deem it necessary to set out in full the factual allegations made by plaintiff in his trial petition. They are found in Sections I, II, III, IV and V of the petition.

Plaintiff’s pleadings do not warrant the submission of special issues 4, 5 and 6; however, his pleadings do warrant the submission of special issues 1, 2, 3, 7 and 8. The pleadings alleged facts which advised defendant of the occurrences upon which plaintiff’s action was based and gave defendant ample notice of the theory, or theories, of recovery asserted by plaintiff. We sustain point 2 with respect to the submission of special issues 4, 5 and 6, but overruled the point with respect to special issues 1, 2, 3, 7 and 8.

We now turn to point 3 wherein defendant complains that special issues 1 through 8 should not have been submitted on the ground of “no evidence.” In addressing point 3, we consider only the evidence and the inferences which support the submission of the issues, and reject the evidence and the inferences which are contrary thereto. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965).

Tex.Bus. & Comm.Code § 17.50(a)(3) (Supp. 1978-1979) provides that “a consumer may maintain an action if he has been adversely affected by . any unconscionable action ... by any person.” Section 17.45(5)(A) of the Code defines “unconscionable action” as “an act or practice which, to a person’s detriment takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree . . . .”

There was evidence that plaintiff lacked knowledge, ability and experience with respect to the workings of an automobile’s clutch assembly, and for that matter, automobile engines in general. We can find no evidence, however, that defendant took advantage of the situation to a grossly unfair degree. First, while it can be argued that the deal may have been unfair to plaintiff, we find no evidence that it was “grossly” unfair. Second, and more importantly, we find no evidence of a wrongful intent to take advantage of plaintiff. Singleton v. Pennington, 568 S.W.2d 367, 382 (Tex.Civ.App.—Dallas 1978, no writ). Plaintiff was not affected by an unconscionable action by defendant. Point 3 with respect to issues 7 and 8 is sustained. Although we have already held that points 4, 5 and 6 are not supported by pleadings, we further hold that they are not supported by any evidence. Therefore, the point as to those issues is sustained.

Special issues 1, 2 and 3 basically presented the question of whether plaintiff was adversely affected by the representation made by defendant’s salesman that the camper, at the time of purchase, was in good mechanical condition, as found by the jury. Both plaintiff and his wife testified that the salesman stated to them that the vehicle in question was “in excellent condition.” Plaintiff further testified that after he drove the vehicle for a short distance, he asked the salesman “about a noise that I thought I heard in the engine ... a knocking or slapping noise,” and that the salesman told him “that was just a typical Volkswagen noise,” and that the engine noise “was probably the muffler.” The salesman based his representation on the fact that he had driven the camper “about three miles”; he assumed that plaintiff relied on his representation.” It was undisputed that after only 120 miles of driving by plaintiff, the camper sustained a burned-out clutch and thrown rod, which occurred only two days after the camper was picked up from the defendant’s lot. A Volkswagen mechanic testified that the camper’s clutch burned up because of overheating due to slippage. He further testified that slippage could have been caused by any number of things, only one of which could have been attributable to plaintiff himself. According to the mechanic, slippage could be attributable to the driver “riding the clutch.” Both plaintiff and his wife, however, testified that they did not “ride the clutch.” Moreover, an issue submitted to the jury concerning misuse of the camper by the plaintiff was answered in the negative. Defendant does not attack that finding in this appeal. We, therefore, regard it as a fact issue in the case whether the camper’s clutch overheated because of slippage due to some defect or condition of the clutch assembly itself. Moreover, the finding by the jury that it would cost $600.00 to repair the camper shows that plaintiff was adversely affected by the representation made by defendant’s salesman. There was sufficient evidence to support the submission of special issues 1, 2 and 3. Point 3 with respect to the contention that special issues 1, 2 and 3 should not have been submitted because of “no evidence” is overruled.

We next consider point 1. The issue to be decided is whether the jury’s answers to special issues 1, 2 and 3 authorized the rendering of a judgment against defendant for treble damages and attorney’s fees under the provisions of the Texas Deceptive Trade Practices Act.

Tex.Bus. & Comm.Code § 17.-50(a)(2), in pertinent part, reads:

“(a) A consumer may maintain an action if he has been adversely affected by
(2) breach of an express or implied warranty.”

One of plaintiff’s theories for a recovery under the Act is predicated upon an implied warranty of merchantability. Tex.Bus. & Comm.Code, § 2.314 (1968). The implied warranty of merchantability, however, does not attach to the sale of used goods where the purchaser knows they are used. Chaq Oil Company v. Gardner Machinery Corporation, 500 S.W.2d 877 (Tex.Civ.App.—Houston [14th Dist.] 1973, no writ). Because plaintiff’s lawsuit clearly involved the purchase of a used car, his pleadings expressly negated any cause of action based upon the implied warranty of merchantability. Therefore, he cannot recover under his theory that there has been a breach of an implied warranty of merchantability. The problem remaining is to determine whether or not there has been a breach of an express warranty.

Tex.Bus. & Comm.Code § 2.313 (1968) provides:

“(a) Express warranties by the seller are created as follows:
(1) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(2) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
(3) Any sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model.
(b) It is not necessary to the creation of an express warranty that the seller use formal words such as ‘warrant’ or ‘guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller’s opinion or commendation of the goods does not create a warranty.”

The test of whether a salesman’s statement constituted “affirmations of fact” going to the very “basis of the bargain” is whether the salesman was asserting a fact of which the buyer was ignorant, or whether he was merely declaring his belief with reference to a matter of which he had no special knowledge and of which the buyer may also have been expected to have an opinion. United States Pipe & Foundry Co. v. City of Waco, 130 Tex. 129, 108 S.W.2d 432 (1937); General Supply and Equipment Company, Inc. v. Phillips, 490 S.W.2d 913 (Tex.Civ.App.—Tyler 1972, writ ref’d n. r. e.). Here, the salesman, when he told plaintiff that the camper was in “excellent condition,” was obviously asserting a fact of which plaintiff was ignorant. Under the circumstances existing, this statement was more than mere “dealer’s talk” because knowledge of the seller, in conjunction with the buyer’s relative ignorance, operates to make the slightest divergence from mere praise into representations of fact, which become effective as a warranty. United States Pipe, supra. The statement constituted an express oral warranty.

The jury found that the defendant’s representation (through its salesman), was untrue, which was tantamount to a finding that the express warranty was breached. This is because a breach of an express warranty is essentially the failure of a product to comply with a definite warranty established by competent evidence. Elanco Products Company v. Akin-Tunnell, 474 S.W.2d 789 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.).

Defendant, in point 1, challenges its liability only, and no complaint is registered as to the measure of damages. The record shows that the camper was not repaired at the time of the trial and the $600.00 for the costs of repair, as found by the jury, is amply supported by the evidence. Ordinarily, in a breach of warranty case, either expressed or implied, the measure of damages in the sale of equipment is not the cost of repair, but the difference in market value of the condition in which it was delivered and its market value in the condition which it should have been delivered according to the contract of the parties. Davis Bumper To Bumper, Inc. v. American Petrofina Co., 420 S.W.2d 145 (Tex.Civ.App.—Amarillo 1967, writ ref’d n. r. e.); Texas Construction Rentals, Inc. v. Harrison, 410 S.W.2d 482 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.); Lawler v. Aramco, Inc., 447 S.W.2d 189 (Tex.Civ.App.—Houston [1st Dist.] 1969, writ ref’d n. r. e.); Neuman v. Spector Wrecking & Salvage Co., Inc., 490 S.W.2d 875 (Tex.Civ.App.—Beaumont 1973, no writ); Chaq Oil Co. v. Gardner Machinery Corporation, supra. In this case defendant does not contend by a point of error that the court erred because the wrong measure of damages was submitted to the jury or that the judgment was based upon the application of the wrong measure of damages. Point 1, when viewed in its entirety, cannot be extended to include a contention that the judgment is based on a wrong measure of damages. Therefore in the absence of such a point, we must enforce the judgment since no other reason is shown why it should be disturbed.

Under the record here presented, the defendant’s breach of an express warranty made it mandatory that the trial court treble the actual damages awarded by the jury and award attorney’s fees to plaintiff. Woods v. Littleton, 554 S.W.2d 662 (Tex.Sup.1977); Allen v. Parsons, 555 S.W.2d 522 (Tex.Civ.App.—Texarkana 1977, writ dism’d). Point 1 is overruled.

AFFIRMED.

      . “II On or about July 27, 1977, Plaintiff purchased a 1971 Volkswagen Camper from Defendant paying therefore the sum of $2,190.00. Prior to purchasing the vehicle, Plaintiff was told by a salesman working for Defendant, that the vehicle in question was in good mechanical condition, that the engine had recently been refitted with new heads. When the salesman was questioned by Plaintiff concerning unusual ‘engine noises’ Plaintiff was told that this was the normal sound for a Volkswagen. The salesman assured Plaintiff that the car was in sound mechanical condition. Plaintiff took possession of the Volkswagen on July 28, 1977. On July 29, 1977, after driving the auto in question less than 150 miles, the car began losing power and shortly thereafter a loud noise was heard and smoke began pouring from the engine compartment. Plaintiff immediately informed Defendant of the mechanical difficulties experienced. Thereafter, Defendant was notified in writing, 30 days prior to filing this cause of action, that Plaintiff demanded his purchase money returned or in the alternative demanded that Defendant put the vehicle in question in good mechanical condition. Defendant, however, refused and has since continued to refuse to either repair the vehicle or to refund the Plaintiffs payment therefore after having been given a reasonable opportunity to do the same all to Plaintiff’s damage.
      III
      As a direct result of Defendant’s failure to abide by its expressed warranty that the car was in good mechanical condition; as a direct result of Defendant’s failure to abide by its implied warranty that the vehicle sold to Plaintiff was suitable for driving under normal conditions; and, as a direct result of the Defendant’s unconscionable actions which took advantage of Plaintiffs lack of knowledge, ability and experience with Volkswagen automobiles to sell to Plaintiff a vehicle worth far less than the amount charged, Plaintiff has suffered damages in the amount of $2,190.00 which represents the purchase price of the vehicle in question.
      IV
      In the alternative, without waiving any of the above and foregoing, should the above be an incorrect measure of the damages sustained by Plaintiff, Plaintiff would show that the difference between the reasonable market value of the vehicle sold to Plaintiff and the amount paid is the sum of $1,500.00. Plaintiff maintains this cause of action under the Deceptive Trade Practice-Consumer Protection Act, Article 17.50(a), Business and Commerce Code, Texas Revised Civil Statutes and prays that he be awarded three (3) times his actual damages of $1,500.00 for a total of $4,500.00 plus attorney’s fees reasonable in relation to the amount of work expended all as provided in Article 17.50(b)(1) of said Act.
      V
      Again in the alternative, without waiving any of the above and foregoing, should both the above be incorrect measures of damages sustained by Plaintiff, Plaintiff would show that the cost of repairing the Volkswagen engine sold to him will be the sum of $750.00. Plaintiff maintains his cause of action under the Deceptive Trade Practice-Consumer Protection Act, Article 17.50(a)(2), Business and Commerce Code, Texas Revised Statutes and prays that he be awarded three (3) times his actual damages of $750.00 for a total of $2,250.00 plus attorneys fees reasonable in relation to the amount of work expended all as provided in Article 17.50(b)(1) of said Act.”