TOYOTA OF DALLAS, INC., Appellant v. JOSE ANTONIO URQUIDI, Appellee

Affirmed and Opinion filed October 23, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00215-CV
............................
TOYOTA OF DALLAS, INC., Appellant
v.
JOSE ANTONIO URQUIDI, Appellee
 
.................................................................
On Appeal from County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC87-10956-D
.................................................................
O P I N I O N
Before Justices Stewart, Lagarde and Burnett
Opinion By Justice Burnett
        Toyota of Dallas, Inc. appeals from a judgment, against it and in favor of Jose Antonio Urquidi, in which a jury found that Toyota violated the Deceptive Trade Practices - Consumer Protection Act (DTPA), Tex. Bus. & Com. Code Ann. § 17.41-.63 (Vernon 1987). Toyota contends that the trial court erred in admitting hearsay into evidence. Toyota further contends that the trial court erred in rendering judgment for Urquidi because, excluding the improperly admitted hearsay, there is no evidence or insufficient evidence to support the jury's finding that Toyota violated provisions of the DTPA. Toyota also contends that the trial court erred in awarding Urquidi a judgment exceeding the amount of Toyota's settlement offer to Urquidi. We disagree with Toyota's contentions and, for the reasons discussed herein, affirm the judgment of the trial court.
        Urquidi purchased a truck on October 7, 1986, from Toyota for $3,658. Urquidi received a document in connection with the purchase in which Toyota certified that the odometer had a reading of 12,240 miles, and the reading was, to the best of Toyota's knowledge, the actual mileage of the truck. About a week after the purchase, Urquidi discovered a repair order for his truck on Caraway Motor Company stationary in the glove compartment of the truck. The repair order, which was dated November 6, 1985, listed, among other repairs, the replacement of the speedometer. The repair order indicated the odometer had a reading of 46,122 miles at the time it was replaced.
        Urquidi then sent to Toyota a written notice of its damages, claiming that the truck "had in fact mileage of 46,122 miles, according to a Mazda dealer who serviced the vehicle almost a year prior to [Urquidi's] purchase of it." Toyota responded to Urquidi three weeks later by letter, which stated in part:
 
    Toyota has contacted the previous owner of [the truck] and has been made aware that the speedometer was replaced due to a parts failure. . . . [A] copy of the original repair order from the repair station, is being made available to us and a copy will be forthcoming to your office under separate cover.
        Two months later, Toyota sent to Urquidi a copy of the repair order attached to a letter signed by Wayne Stephens, owner and general manager of Toyota. The letter stated in whole:
 
    Attached is a repair order dated 11/6/85 indicating speedometer replacement prior to our possession. If I may help further please contact my office.
        Urquidi's complaint to the trial court was that Toyota represented at the time of the sale that the truck had 12,240 miles when it actually had at least 58,000 miles. The jury found violations of the DTPA and awarded Urquidi actual damages of $1,000, attorneys' fees of $1,500 and statutory damages of $2,000.
        In points of error one through nine, Toyota contends that the repair order is hearsay and that the trial court erred in admitting it into evidence. Toyota argues that, without the admission of the repair order, there is no evidence or insufficient evidence to support the jury's findings that Toyota's sale of the truck to Urquidi violated the DTPA. Toyota contends that because the parties to the original repair order were not present at trial and Toyota was not able to cross-examine them as to the contents of the repair order, the repair order is hearsay and should not have been admitted into evidence.
        A statement is not hearsay if the party against whom the statement is offered manifests an adoption or belief in the truth of the statement. Tex. R. Civ. Evid. 801(e)(2)(B). While Toyota's only knowledge of the repair order is based on hearsay, it could still adopt the statements contained in the repair order as its own. See Allright, Inc. v. De Wint, 487 S.W.2d 276, 279 (Tex. Civ. App.--Houston [1st Dist.] 1972, no writ). By first sending Urquidi a letter stating it was aware of the existence of a repair order indicating the speedometer on the truck had been replaced, and by then sending Urquidi a copy of the repair order attached to a cover letter, Toyota manifested its adoption in the truth of the repair order's contents. Because the repair order was offered against Toyota, and Toyota had made an admission as to it, the repair order is not hearsay, and thus, it is admissible into evidence. See Mathis v. Charter Oak Fire Ins. Co., 707 S.W.2d 234, 242 (Tex. App.--Tyler 1986, writ ref'd n.r.e.); Commercial Standard Ins. Co. v. Barron, 495 S.W.2d 276, 279 (Tex. Civ. App.--Tyler 1973, writ ref'd n.r.e.); Snyder v. Schill, 388 S.W.2d 208, 214 (Tex. Civ. App.--Houston 1964, writ ref'd n.r.e.). We overrule Toyota's points of error one through nine.
        In its point of error ten, Toyota contends that the trial court erred in awarding a total judgment exceeding the amount of Toyota's settlement offer. Section 17.505 of the DTPA provides that any person receiving written notice of a complaint for deceptive trade practices may, within thirty days, "tender to the consumer a written offer of settlement, including an agreement to reimburse the consumer for the attorneys' fees, if any, reasonably incurred by the consumer in asserting his claim up to the date of the written notice." Tex. Bus. & Com. Code Ann. § 17.505(c) (Vernon 1987). If the consumer fails to accept a settlement offer that is substantially the same as the amount of the actual damages found by the trier of fact, the consumer "may not recover an amount in excess of the amount tendered in the settlement offer or the amount of actual damages found by the trier of fact, whichever is less." Id. at § 17.505(d).
        Toyota's entire settlement offer consisted of the following sentence in its letter responding to Urquidi's claim for damages: "We are prepared to reimburse your client his monies and, thus buy back the vehicle in question." This language represents only an offer to rescind the contract between Toyota and Urquidi. It does not agree to compensate Urquidi for his actual damages. Thus, as a matter of law, Toyota's offer to buy back the truck from Urquidi is insufficient as a DTPA section 17.505(c) settlement offer.
        In addition, Toyota's settlement offer did not include an agreement to reimburse Urquidi for his attorneys' fees. In order for a settlement offer to limit damages pursuant to DTPA section 17.505(c), the settlement offer must strictly comply with the statute. A failure to include an agreement to reimburse the consumer for reasonable attorneys' fees in the settlement offer renders the offer insufficient as a matter of law. Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983). Accordingly, we overrule Toyota's point of error ten.
        Also, we deny Urquidi's request for damages for delay pursuant to Tex. R. App. P. 84.
        The judgment of the trial court is affirmed.
 
 
 
 
                                                          
                                                          JOE BURNETT
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
 
890215.U05
 
 
File Date[10-23-89]
File Name[890215]