Joyce Scott v. Vidal Ramirez d/b/a Vidal's Used Cars--Appeal from County Court of Johnson County

NO. 10-90-167-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JOYCE SCOTT,

Appellant

v.

VIDAL RAMIREZ d/b/a VIDAL'S USED CARS,

Appellee

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From County Court at Law

Johnson County, Texas

Trial Court # C89-00011

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O P I N I O N

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Joyce Scott bought a used automobile from Vidal's Used Cars owned by Vidal Ramirez. She sued Ramirez after she allegedly spent $1,000 repairing the vehicle during the nine months following its purchase. Scott complains that the court erred when it awarded her only $350 in actual damages and failed to award her any attorney's fees in a bench trial. The judgment will be affirmed.

Scott's first point is that the $350 damage award was against the great weight and preponderance of the evidence. She contends uncontroverted evidence established her actual damages at $7142.70.

An interested witness's uncontradicted testimony only raises a fact issue unless it is clear, direct and positive, and there is nothing to discredit or impeach it. Anchor Casualty Company v. Bowers, 393 S.W.2d 168, 169 (Tex. 1965). Furthermore, in a nonjury trial, when the evidence consists solely of the testimony of interested parties, the court must weigh the evidence and determine the true facts. Carroll Instrument Co. v. B.W.B. Controls, 677 S.W.2d 654, 657 (Tex. App.--Houston [1st Dist.] 1984, no writ).

Scott's only documentary evidence of repairs to the vehicle consisted of one bill for $125, which she admitted Ramirez had already reimbursed. Rather than offering into evidence receipts from the repairs allegedly made, she merely speculated that the repairs cost "over a $1,000, right at a $1,000, something like that." Considering Scott's testimony as an interested witness and the record as a whole, the court did not err when it weighed the evidence and awarded her only $350 in damages.

Scott also contends the court should have awarded her twice the actual damages that did not exceed $1,000 because her recovery was under the Deceptive Trade Practices Act (DTPA). See Tex. Bus. & Com. Code Ann. 17.50(b)(1) (Vernon Supp. 1991). Scott alleged causes of action under the DTPA, Part 455 of 16 Code of Federal Regulations, and common-law fraud. Although a letter from the trial judge to the attorneys appears in the transcript, we cannot consider the purported findings in the letter. See Tejas Trail Property Owners Association v. Holt, 516 S.W.2d 441, 444 (Tex. Civ. App.--Fort Worth 1974, no writ). If the judgment--which does not reflect the basis of recovery--is interpreted as being based on DTPA violations, then it is clearly erroneous because the court had to award Scott an additional $700 under section 17.50(b)(1), i.e., twice the amount of actual damages that did not exceed $1,000. See Tex. Bus. & Com. Code Ann. 17.50(b)(1) (Vernon Supp. 1991). However, the judgment is proper if it is interpreted as a recovery based on common-law fraud.

We must presume the court intended to "adjudge correctly." See Austin v. Conaway, 283 S.W. 189, 192 (Tex. Civ. App.--Eastland 1926, no writ). Thus, because the judgment is correct under one interpretation but erroneous under another, this court must choose that which makes it correct. See id. The judgment will, therefore, be interpreted as based upon a recovery of actual damages for common-law fraud, which does not entitle Scott to the additional recovery she seeks under the DTPA. Point one is overruled.

Scott's second point, that the court erred when it refused to award her attorney's fees under the DTPA, is overruled because her recovery was based on common-law fraud, which does not entitle her to recover attorney's fees. The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed April 25, 1991

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