SOUTHWESTERN BELL YELLOW PAGES, INC., AND SOUTHWESTERN BELL MEDIA, INC., Appellant s v. A. CAMERA CENTER, INC. (FORMERLY KNOWN AS METRO PHOTO II), AND DAVID N. AKIN, INDIVIDUALLY, Appellees

Affirmed and in part, Reversed and Remanded in part and Opinion filed on March 22, 1990
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-89-00553-CV
............................
SOUTHWESTERN BELL YELLOW PAGES, INC., AND
SOUTHWESTERN BELL MEDIA, INC., Appellant
s
 
V.
A. CAMERA CENTER, INC. (FORMERLY KNOWN AS METRO PHOTO II),
AND DAVID N. AKIN, INDIVIDUALLY, Appellees
 
.................................................................
On Appeal from the 160th District Court
Dallas County, Texas
Trial Court Cause No. 87-2627-H
.................................................................
O P I N I O N
Before Chief Justice Enoch and Justices Preslar FN:1 and Smith FN:2
Opinion By Chief Justice Enoch
        Southwestern Bell Yellow Pages, Inc. and Southwestern Bell Media, Inc. (Bell), appeal a judgment rendered for A. Camera Center (Metro), for violations of the Deceptive Trade Practices Act arising out of the solicitation and sale of Yellow Pages advertising in the 1985-86 Dallas and Fort Worth directories. FN:3 A jury found that Bell had engaged in an unconscionable act or course of action and awarded Metro $80,000 in actual damages, plus attorney's fees. The trial court, however, ordered a remittitur of twenty percent of the amount of Metro's actual damages as found by the jury. In addition, Bell prosecuted a counterclaim for sums due from Metro for Yellow Pages advertising in directories other than the 1985-86 Dallas and Fort Worth directories. Bell raises nineteen points of error on appeal, most challenging the legal and factual sufficiency of the evidence. Metro asserts one cross point. For the reasons discussed below, we affirm in part and reverse and remand in part.
FACTS
        Metro is a retail camera business owned by Mr. and Mrs. David N. Akin. In the years prior to 1985 and 1986, a large portion of the business had been based upon the sale of specialty and replacement parts for different name brand cameras. The business has since expanded to include the sale of guns, audio equipment, and other goods.
        In 1985, Akin discussed with Bell's sales representative, Mr. Byrd, his desire to alter Metro's advertising format from a single page advertisement listing to various trade sub-listings (TSL) in which Metro's name and telephone number would appear in the Business Yellow Pages under the various trade names of the camera manufacturers that had authorized Metro to sell their products to the public. Akin requested TSL ads with specific manufacturers that included Kodak, Minolta, Nikon, Olympus, Yashica, and Canon. Byrd drafted the TSL order forms which Akin signed. The parties' contract obligations were specifically conditioned upon the manufacturers' concurrence.
        When the 1985-86 Dallas and Fort Worth directories came out, all but one of the TSL ads contracted for were absent from both sets of Yellow Pages. The text in the contracts had been lined out by Mr. Byrd as to all but one TSL ad. At the bottom of the page on the line for advertisers signature was the notation "per phone authorization." It was Bell's position that Metro did not appear under these manufacturer's names because Bell did not receive the necessary manufacturer authorization. Disputed at trial and at issue on appeal is whether Bell had the duty to obtain the manufacturer verifications.
        The trial court submitted Metro's claims to the jury on three theories arising under the Deceptive Trade Practices Act. Tex. Bus. & Com. Code Ann. § 17.41 et seq. (Vernon 1987). The jury failed to find that Bell represented that the advertising listings had characteristics, uses, ingredients or benefits which they did not have, and also failed to find that Bell had not disclosed material information concerning its advertising services. However, the jury did find that Bell had engaged in an unconscionable action or course of action. On Bell's counterclaim, the jury found that Metro owed Bell $5,588.48 for other listings.
        Because Bell asserts in several points of error that the evidence is both legally and factually insufficient, we set forth in detail the evidence concerning the negotiations between Metro and Bell.
THE INITIAL ORDER
        On February 27, 1985, Akin met with Byrd to discuss the purchase of Yellow Pages advertisements for Metro. In the previous year, Metro had purchased a quarter page display ad. Byrd considered such a purchase to be a major account. During this meeting, Byrd suggested that Metro purchase an even larger display ad that would include manufacturers' logos. To the contrary, Akin requested the TSL ads. With Byrd's assistance, Akin ordered several TSL ads for Metro in both the Dallas and Fort Worth directories and signed several order forms entitled "Agreement for Directory Advertising." Akin claims that although Byrd did not discuss whether Metro was authorized at the time the TSL ads were ordered to list his business under the manufacturers names, he did discuss whether the camera manufacturers would provide cooperative advertising dollars to pay for the ads. That is to say, whether the advertising dollars could be shared between Metro and one or more manufacturers. Akin claims that Byrd was going to contact the manufacturers regarding the payment of co-op dollars on Metro's ads and was going to inform Akin as to which ads would be paid for by them. Byrd, however, claims that he never told Akin that he would attempt to contact the manufacturers.
FIRST TELEPHONE CONVERSATION
        Bell has a department known as "brand name control," its function is to inform the sales representatives whether a customer, to be listed under a manufacturer's trademark, has been approved by that manufacturer. In early March 1985, Byrd told Akin that Metro was not authorized to appear under the various manufacturer's trade names, and that before Metro's ads could get into the Yellow Pages, Akin would have to call the manufacturers and then have the manufacturers call Byrd with the proper authorization. FN:4
        Byrd made the following statements on direct examination with regard to this first telephone conversation:
        Q.        And did you have a telephone conversation with Mr. Akin?
 
        A.        Yes, I did.
 
        Q.        In that conversation was there anything said about trying to get verification that he was or was not authorized by various manufacturers?
 
        A.        Basically, I informed Mr. Akin that he was not authorized for certain trade name, trademark listings, and I told him that I needed some more information from him to dispute that if I was going to get it in the book.
 
        Q.        Okay. And what did Mr. Akin say he would do in that connection?
 
        A.        He would get people to call me, the camera companies to actually contact me personally and let me know.
 
        Q.        He said that he would have the manufacturer, Kodak, Yashika [sic], Nikon, Olympus, Minolta, and Canon call you and give you authorization to appear under those trademarks in the books correct?
 
        A.        That's Correct
 
        Q.        Now did you ever get a call or a letter or anything else from any of the camera manufacturers saying that Mr. Akin was authorized to appear under their trademarks in connection with the 1985 directories?
 
        A.        No, I did not.
 
        Not inconsistently, Akin testified:
 
                Mr. Byrd called me back and said that they had contacted all those camera companies I had requested TSLs under and said that I wasn't an authorized dealer.
 
                Well, he [Byrd] just told me that I was going to have to get in contact with the camera companies and get authorization to run the yellow pages.
 
Akin said, thereafter, he contacted each camera manufacturer to obtain authorization, based upon his conversations, he believed he was authorized, and he felt there was nothing further he needed to do to become authorized. However, Akin also said that he was not present on the telephone or in person during any conversation that Byrd may have had with any manufacturer telling Byrd that Metro was authorized to use the manufacturer's name.
        Mrs. Akin confirmed being personally present at the time her husband called the various camera dealers to verify whether Metro was authorized as a dealer. She too believed Metro had proper authorization to be listed in the TSL ad.
SECOND TELEPHONE CONVERSATION
        Akin called Byrd to relate his conversations with the manufacturers. According to Akin, Byrd responded, "okay" and that he, Byrd, would "take care of it." Byrd and Akin had no further contact until after the close dates for the Dallas and Fort Worth directories. At that time, Akin received a bill for Yellow Pages advertising that was below the amount stated on the original purchase order. He later learned that he had not been charged for the ads that did not appear in the directories. When the Dallas Yellow Pages came out in October of 1985, Akin learned that many of Metro's ads would not run in the Yellow Pages and that the TSL ads he requested had been lined out on the order form. Akin testified that he had not authorized anyone to scratch out the TSL ads.
 
THIRD TELEPHONE CONVERSATION
        Akin contacted Mr. Brock, Byrd's supervisor, and informed him of the situation. According to Akin, Brock said that "somebody made a mistake" and led Akin to believe that it was sales representative, Byrd. Brock referred Akin to an individual in the adjustment department to obtain a rebate on the ad.
STANDARD OF REVIEW
        We state the principles we must follow in determining no evidence and insufficient evidence. In reviewing legal sufficiency, we must consider only the evidence and reasonable inferences therefrom, which, when viewed in their most favorable light, support the jury verdict. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985). The Court must disregard all evidence and inferences to the contrary of the fact finding. If there is more than a scintilla of evidence to support the finding, the challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).
        When reviewing a factual sufficiency point, we consider all of the evidence that is in the record and relevant to the fact being challenged. We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
        Applying these principles, we must first determine if there is evidence of probative value to support the jury's verdict. If a no evidence point is sustained and the proper procedural steps have been taken, the finding under attack may be disregarded entirely and judgment rendered for the appellant, unless the interests of justice require another trial. United States Fire Ins. Co. v. Carter, 473 S.W.2d 2, 3 (Tex. 1971); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). Therefore, when both "no evidence" and "insufficient evidence" points of error are raised, the court should rule on the "no evidence" point first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).
UNCONSCIONABLE ACTION
        In points of error one through five, Bell alleges that the trial court erred when it overruled Bell's Motion for Instructed Verdict, Motion for Judgment Notwithstanding the Jury's Answers to Certain Issues, and Motion for New Trial because there is no evidence or alternatively, insufficient evidence to support the jury's answers as to Bell's unconscionable conduct. In Question No. 5, the jury found that Bell "engaged in an unconscionable action or course of action." Unconscionable action or course of action is defined by statute to describe an act which:
(A) Takes advantage of the lack of knowledge, ability, or capacity of a person to a grossly unfair degree; or
 
(B) Results in gross disparity between the value received and the consideration paid in a transaction involving a transfer of consideration.
 
(Emphasis added.) Tex. Bus. & Com. Code Ann. § 17.45(5) (Vernon 1987).
        The trial court submitted Question No. 5 asking the jury:
        Do you find that Defendants engaged in an unconscionable action or course of action, as defined herein, in the solicitation and sale to Plaintiffs of the ads in question?
 
        "Unconscionable action or course of action" as used herein, means 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.
 
Answer "yes" or "no"
 
Answer: Yes
 
Therefore, our inquiry is to determine the existence of evidence upon which the jury could have made the findings relied upon by Metro and to view any such evidence in a light most favorable to Metro, with every reasonable inference from that evidence indulged in Metro's favor. Such inquiry focuses on the evidence that Bell took advantage of Metro's lack of knowledge, ability, or capacity to a grossly unfair degree. See Chastain v. Koonce, 700 S.W.2d 579, 582 (Tex. 1985).
        The term "gross" should be given its ordinary meaning of glaringly noticeable, flagrant, complete, and unmitigated. Chastain, 700 S.W.2d at 583. Taking advantage of a consumer's lack of knowledge to a grossly unfair degree thus requires a showing that the resulting unfairness was glaringly noticeable, flagrant, complete, and unmitigated. Chastain, 700 S.W.2d at 584; Pfeiffer v. Ebby Halliday Real Estate, 747 S.W.2d 887, 891 (Tex. App.--Dallas 1988, no writ).
        We turn, therefore, to consider only the evidence and inferences tending to support the jury verdict disregarding all evidence and inferences to the contrary. Because an appellate court is not a fact finder, it may not pass upon the credibility of the witnesses or substitute its judgment for that of the trier of fact. This is true even if there is conflicting evidence upon which a different conclusion could be supported. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.--Dallas 1998, writ ref'd n.r.e.).
        When Akin informed Byrd of his continued belief that he was an authorized dealer, Akin testified that Byrd answered, "okay, he'd [Byrd] take care of it." Thus, there is some evidence that shows Bell undertook the duty to verify manufacturer authorization for Metro's ads. In addition, Akin testified that Brock led him to believe that Byrd had made a mistake with regard to Metro's ads. After considering only the above evidence and inferences therefrom, we conclude that there is some evidence of probative value to support the jury verdict. We overrule Bell's fourth point of error.
        Because of the foregoing, we conclude that the trial court did not err in overruling Bell's Motion Instructed Verdict and Motion for Judgment Notwithstanding the Jury's Answer to Question No. 5. Consequently, we overrule Bell's first and second points of error.
        We now face the task of deciding whether the evidence is factually sufficient to support the jury verdict. In determining that question, this Court must consider and weigh all the evidence, including any evidence contrary to the jury verdict. Cain, 709 S.W.2d at 176. The evidence in support of the jury verdict is summarized above in our disposition of the "no evidence" point. Thus, we focus on the evidence which is contrary to the jury verdict.         
        Metro's TSL ads were expressly subject to authorization from the manufacturers. Byrd told Akin very specifically that it was Akin's duty to obtain manufacturer authorization. Akin was to contact the manufacturers for authorization and have the manufacturers contact Byrd. Byrd testified that he did not receive a call, letter or other authorization from the manufacturers at issue. Further, Akin had, in prior years, placed ads in the Yellow Pages and had been listed under various manufacturers' names. He testified that he is a knowledgeable and capable businessman. Interestingly, the record does not reflect specific statements by Byrd in which he or Bell assumed a duty to act to obtain manufacturer authorization for Metro's ads. We are aware of Akin's testimony where he claims that Byrd said "he'd take care of it." However, even when viewed in the light most favorable to Metro, the statement is very general and by itself is insufficient to impose a duty on Bell. Moreover, there is no evidence in the record, besides the Akins' testimony, that Metro was indeed an authorized dealer at the time the ads were requested.
        The evidence in the record does not support a recovery by Metro under subdivision A of section 17.45(5) and is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. After a review of the entire record, we hold that the evidence is factually insufficient to support the jury verdict and conclude that the trial court erred in overruling Bell's Motion for New Trial. Accordingly, we sustain Bell's third and fifth points of error.
BELL'S COUNTERCLAIM
        In point of error eighteen, Bell alleges that it was entitled to recover, as a matter of law, the sum of $14,160.42 from Metro for Yellow Pages advertising in the 1986 and 1987 Dallas and Fort Worth directories. The jury awarded only $5,588.48. The review of a "matter of law" point is the same as that required for a "no evidence" point. However, in addition to finding no probative evidence to support the jury finding, the court must also find that a contrary finding is established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982).
        We quote from Holley, "As discussed previously, we must first examine evidence in support of the trial court's findings, ignoring any evidence to the contrary. If there is no evidence that supports its findings, then and only then may we look to the evidence that supports Bell's cause of action. If there is any evidence of probative force which supports the adverse finding, then [Bell's] point must fail." Holley, 629 S.W.2d at 696. We, therefore, consider only the evidence and inferences tending to support the jury verdict disregarding all evidence and inferences to the contrary.
        A review of the record before us does reveal evidence which supports the jury finding. Akin said that there had been numerous errors in Metro's ads in the 1987 Yellow Pages directories. Akin complained that there were ad omissions from both regular and bold listings under photographic supplies retail, that there was an absence of various trade sublistings and trademarks, and that an incorrect telephone number had been listed. After considering only the above evidence and inferences therefrom, we conclude that there is some evidence of probative value to support the jury verdict awarding Bell only $5,588.48 as compensation for the services it provided Metro in 1986 and 1987. We overrule Bell's eighteenth point of error.
        In points of error six, eight, and twelve respectively, Bell alleges that there is no evidence to support the following jury findings: (1) that Bell's unconscionable action was a producing cause of Metro's damages; (2) that the sum of $80,000 would fairly and reasonably compensate Metro for the loss in net worth of its business; and (3) that the sum of 26,400 attorneys' fees awarded for legal services rendered were reasonable and necessary. We have applied the principles above stated and upon review of the testimony and evidence given at trial, we hold that there was some evidence of probative value to support the jury findings to submitted Question Nos. 6, 9, and 10(a). We overrule these points of error.
        In light of our disposition of Bell's third and fifth points of error, we need not address Bell's points of error seven, nine through eleven, thirteen through seventeen and nineteen, nor need we address Metro's cross point. In sum, there is insufficient evidence to support the jury finding that Bell acted unconscionably under the Texas DTPA. For the above reasons, we AFFIRM the trial court's judgment as to Bell's recovery from Metro of $5,588.48 and REVERSE the trial court's judgment and REMAND the balance of the cause for a new trial.
 
 
                                                          
                                                          CRAIG TRIVELY ENOCH
                                                          CHIEF JUSTICE
 
Do Not Publish
Tex. R. App. P. 90
 
890553F.U05
 
FN:1 The Honorable Stephen F. Preslar, Chief Justice, retired, Court of Appeals, Eighth District of Texas at El Paso, sitting by assignment.
FN:2 The Honorable Jackson B. Smith, Jr., Justice, retired, Court of Appeals, First District of Texas at Houston, sitting by assignment.
FN:3 Defendant below, Southwestern Bell Publications, Inc., was nonsuited at the close of trial. David N. Akin was also named plaintiff below. However, the judgment against Bell was rendered solely in favor of the corporate plaintiff, A. Camera Center, Inc. (formerly known as Metro Photo II). Mr. Akin has not challenged the judgment in that regard.
FN:4 The close date for the Dallas directory was May 13, 1985, and for the Fort Worth directory, the date was March 12, 1985. A close date is the last day a customer may order or remove ads from the directory. However, once the ad has been ordered, Bell will accept a manufacturer's authorization for a period of six to eight weeks after the close date.
File Date[03-22-90]
File Name[890553F]