Reversed and Rendered and Majority, Concurring, and Dissenting Opinions filed
December 15, 2011.




                                                 In The

                          Fourteenth Court of Appeals

                                        NO. 14-10-00344-CV

                               RED ROOF INNS, INC., Appellant

                                                    V.

                     DONNA JOLLY AND JAMES GLICK, Appellees

                           On Appeal from the 125th District Court
                                   Harris County, Texas
                             Trial Court Cause No. 2008-47688



                                 MAJORITY OPINION1

        A motel owner appeals a trial court’s judgment in favor of motel guests based
upon jury findings that the motel owner violated the Texas Deceptive Trade Practices
Act, asserting that the evidence at trial would not enable reasonable and fair-minded
people to find that the motel owner represented that the motel was secure. Because we



1
  This opinion is a majority opinion as to Section III.B. Justice Jamison concurs in the disposition but not
the reasoning in this opinion as to Section III.A.
conclude the evidence is legally insufficient to support the trial court’s judgment, we
reverse and render judgment in favor of the motel owner.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       Plaintiffs/appellees Donna Jolly and James Glick (hereinafter ―the Guests‖)
brought suit against defendant/appellant Red Roof Inns, Inc. (hereinafter, the ―Motel‖),
asserting claims for negligence and violations of the Texas Deceptive Trade Practices Act
(―DTPA‖) following their stay at an establishment owned and operated by the Motel.
According to the pleadings, the Guests traveled to the Houston area to visit a relative in a
hospital. The Guests attempted to lease a motel room from three or four different
establishments, but none had vacancies. The Motel had a room available at its location in
West Houston. According to the testimony at trial, there was a security guard on duty in
the motel lobby at the time the Guests checked in between 2:30 a.m. and 3:00 a.m., and
received a card key to their room. The Guests alleged that during their stay at the motel,
their room was burglarized and jewelry valued at $50,000 was taken from the room and
never recovered.

       The Guests brought suit against the Motel, alleging the Motel was negligent and
that it engaged in a false, misleading, or deceptive act or practice in leasing the motel
room by (1) representing that goods or services are or would be a particular standard,
quality, or grade when they were of another, and (2) failing to disclose information about
goods or services that was known at the time of the transaction and that such failure to
disclose information was intended to induce the Guests into a transaction they would not
have entered had the information been disclosed. Following a trial on the merits, the jury
found as follows:

       The Motel had been negligent and that its percentage of responsibility was five
       percent.
       The Motel had engaged in a false, misleading, or deceptive act or practice that the
       Guests relied upon to their detriment and that was a producing cause of the

                                             2
       Guests’ damages. ―False, misleading, or deceptive act or practice‖ was defined as
       a violation of subsection (7) or (24) of section 17.46(b) of the DTPA.
       The Motel did not knowingly violate the DTPA or engage in any unconscionable
       action or course of action.
       The Guests suffered damages of $25,000 as a result of the occurrence in question.
       A reasonable fee for the necessary services of the Guests’ attorney through trial is
       $25,000.
The Guests elected to recover under their DTPA claim, and the trial court rendered
judgment on this claim, awarding the Guests $25,000 in damages, pre-judgment interest,
$25,000 in attorney’s fees, and court costs.

       On appeal, the Motel asserts in three issues that (1) the evidence is legally
insufficient to support the jury finding that the Motel violated the DTPA; (2) the evidence
is factually insufficient to support the jury finding that the Motel violated the DTPA; and
(3) the trial court erred by not applying the percentage of responsibility found by the jury
in rendering judgment on the Guests’ DTPA claim.

                                 II. STANDARD OF REVIEW

       When reviewing the legal sufficiency of the evidence, we consider the evidence in
the light most favorable to the challenged finding and indulge every reasonable inference
that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We
must credit favorable evidence if a reasonable factfinder could and disregard contrary
evidence unless a reasonable factfinder could not.         See id. at 827.     Our task is to
determine whether the evidence at trial would enable reasonable and fair-minded people
to find the facts at issue. See id. The factfinder is the only judge of witness credibility
and the weight to give to testimony. See id. at 819.

                                       III. ANALYSIS

       In its first issue, the Motel asserts the evidence is legally insufficient to support the
jury’s finding that the Motel violated the DTPA by either (1) representing that its goods
or services are or would be of a particular standard, quality, or grade when they were of
                                             3
another, or (2) failing to disclose information about goods or services that was known at
the time of the transaction if such failure to disclose information was intended to induce
the Guests into a transaction they would not have entered had the information been
disclosed. See TEX. BUS. & COM. CODE ANN. § 17.46(b)(7),(24) (West 2002).

A.      Is the evidence legally sufficient to support the jury’s finding under DTPA
        section 17.46(b)(7)?

        Under the applicable standard of review, the evidence is legally insufficient to
support a finding that the Motel made an express representation that its goods or services
would be of a particular standard, quality, or grade when they were of another.2 The
Guests do not argue that the record contains legally sufficient evidence of such an express
misrepresentation. The Guests argue that the evidence is legally sufficient to support a
finding that the Motel represented that its premises was ―a safe, secure, and monitored
property‖ when the motel was actually ―a crime-afflicted property that was not operated
or monitored in a secure manner.‖ The Guests do not assert that the record contains
evidence of an express representation in this regard; rather, the Guests argue that there is
legally sufficient evidence of such a representation based upon the following:

        (1)     evidence that Glick inquired at the front desk as to whether there
                were safes available for the Guests’ use and that the clerk told him
                that safes were not available because the safe at the front desk was
                only for the Motel’s property;

        (2)     evidence that a security guard was present in the lobby when the
                Guests checked into the motel; and



2
  The dissenting justice cites a general definition of ―false, misleading, or deceptive acts or practices‖
taken from Spradling v. Williams, 566 S.W.2d 561, 562 (Tex. 1978). See post at p.2 (citing two cases for
general definition taken from the Spradling case). But the jury charge in the case under review did not
contain this definition. Such a general definition does not apply under the version of the DTPA
applicable to the case under review; the applicable version of the DTPA limits the term ―false,
misleading, or deceptive acts or practices‖ to the acts enumerated in the subdivisions of section 17.46(b).
See Tex. Bus. & Comm. Code Ann. §§ 17.46(d), 17.50(a)(1) (West 2011).

                                                    4
       (3)    evidence that the clerk in the lobby gave the Guests a card key to
              gain entry to their room.

       Regarding the evidence that the front-desk clerk told Glick that safes were not
available for the Guests’ use and that the safe at the front desk was only for the Motel’s
property, under the applicable standard of review, this evidence would not allow
reasonable and fair-minded people to find the Motel represented that its premises were
secure. See West Anderson Plaza v. Feyznia, 876 S.W.2d 528, 534 (Tex. App.—Austin
1994, no pet.) (holding that statement was too vague to imply representation that the
tenant had only one day under the lease to hire a guard).
       1.     What is the legal standard for determining if a representation may
              be implied under the DTPA?

       Pointing to the evidence that a security guard was in the lobby when the Guests
checked in and that the Motel clerk gave them a card key, the Guests argue that a
misrepresentation can be implied from this conduct. Actionable representations may be
oral or written. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 502 (Tex. 2001).
Neither this court nor the Supreme Court of Texas has ever concluded that an actionable
representation under the DTPA may be implied based solely upon a defendant’s conduct.
All of the justices on this panel agree that an actionable representation under the DTPA
may be implied solely based upon conduct. Nonetheless, there is still the issue of when
and under what circumstances such a representation may be implied. The parties have
not cited and research has not revealed any case dealing with the legal standard to be used
to determine whether and when a representation should be implied under the DTPA
based upon a party’s conduct. In these circumstances, when confronting an issue of first
impression in an undeveloped area of the law, courts often examine how similar issues
are considered in related areas of the law. This is the approach our high court has
modeled. See, e.g., Methodist Healthcare Sys. of San Antonio v. Rankin, 307 S.W.3d
283, 288–89 (Tex. 2010) (examining cases involving similar issues in analogous areas of
the law in other states in determining issue of first impression under Texas Constitution’s
                                              5
open courts provision). Thus, the logical first step in the analysis in this case is to
consider how courts view implied statements in other contexts.
       Texas has a large body of law regarding the circumstances under which a covenant
may be implied in a contract. Texas law does not favor implied covenants. Chapman
Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 437 (Tex. App.—Houston
[14th Dist.] 2000, pet. denied). As a general rule, Texas courts look only to the written
contract to discern the obligations of the contracting parties. Id. Therefore, in this
context, courts will look beyond the written agreement and imply a covenant only if it is
necessary ―to effectuate the intention of the parties as disclosed by the contract as a
whole.‖ Id. (quoting Danciger Oil & Ref. Co. v. Powell, 154 S.W.2d 632, 635 (Tex.
1941)). An implied covenant is sufficiently necessary to the parties’ intentions only if the
obligation ―was so clearly within the contemplation of the parties that they deemed it
unnecessary to express . . . .‖ Id. (quoting Danciger Oil & Ref. Co., 154 S.W.2d at 635).
Texas courts will not imply a covenant simply because it is needed to make the contract
fair, wise, or just. Id. The parties’ clear contemplation of the thing to be implied is the
touchstone. See id.
       Whatever the parameters of implied representations under the DTPA may be, they
certainly could not be less than the law requires for recognition of an implied covenant in
a contract. Accordingly, this court should not imply a representation based upon a
party’s conduct unless that representation was clearly contemplated by the party charged
with making it. A representation should be implied from conduct only when, under the
circumstances at the time the party engaged in that conduct, the only reasonable
interpretation of that conduct is that the party meant to convey the representation in
question.

       2.     Is there more than one reasonable interpretation of the Motel’s conduct
              in having a security guard on duty in the motel lobby?

       One of the Guests, James Glick, testified as follows:


                                             6
          Glick entered the motel lobby between 2:30 a.m. and 3:00 a.m.

          There was a clerk and a security guard on duty in the lobby, and Glick
          ―felt secure.‖

          Glick asked the clerk in the lobby if a motel room was available, and the
          clerk responded that a room was available.

          Other than the clerk’s statement that there was a room available, nothing
          that the clerk said convinced Glick and his wife to stay at the motel.

          Glick did not ask the clerk about criminal activity in the area or about
          the safety or security of the motel.

          No representative of the Motel said anything false or misleading to the
          Guests before they checked into the motel.

      Under the circumstances at the time in question, a representation that the motel
was secure is not the only reasonable interpretation of the Motel’s conduct in having a
security guard on duty in the lobby. A review of the evidence reveals that any alleged
representation by conduct would have to be based upon the Guests’ assumptions rather
than any unambiguous meaning conveyed by the Motel’s conduct. To the extent that the
mere presence of a security guard in the motel lobby between 2:30 a.m. and 3:00 a.m.,
when the Guests checked into the motel, is conduct, it is ambiguous conduct.

      It would not be reasonable to conclude that the presence of the security guard in
the lobby at this time constituted an assertion that the motel was secure. See Mills v.
Mest, 94 S.W.3d 72, 75 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (holding
that conduct consistent with nonmarital relationships was not sufficient to raise a fact
issue as to whether couple had represented to others that they were married); West
Anderson Plaza, 876 S.W.2d at 534. The presence of the security guard in the lobby at
this time reasonably could be interpreted as any number of things, including:

             no assertion at all;


                                            7
                an assertion that the Motel is providing a security guard only late at
                night;

                an assertion that the Motel is providing a security guard 24 hours a
                day;

                an assertion that the Motel is providing a security guard, but only in
                the lobby area;

                an assertion that the Motel is providing a security guard, but only to
                protect personal safety and not to protect personal property;

                an assertion that the Motel is providing a security guard to
                discourage crime on the premises but not to patrol and secure the
                premises;

                an assertion that the Motel is providing a security guard for a special
                event that is taking place on the premises; or

                various other assertions.

Even if it were reasonable to interpret the security guard’s presence in the lobby as an
assertion that the motel was safe, secure, or monitored, this interpretation would not be
the only reasonable interpretation of this conduct.3

        One of the Guests, Glick, stated that, after seeing the security guard, he ―felt
secure‖ and ―a little bit more at ease that we had security on the premises.‖ When a party
chooses to make an assumption that may or may not be accurate rather than inquire about
the unknown thing, the assumption is only a possibility, not a fact, and certainly not an
actionable representation.         A deception may be inferred from facts but not from


3
 The dissenting justice asserts that this court should not consider the various inferences from the presence
of a security guard or the giving of a card key, because these inferences cannot be considered if there is
direct evidence. But there is no direct evidence of a representation by the Motel that its goods or services
would be of a particular standard, quality, or grade when they were of another. There is direct evidence
of the presence of a security guard and the giving of a card key, but these matters are not part of the
Guests’ burden of proof.

                                                     8
imagination. At most, the Guests demonstrated that they made assumptions, not that the
Motel made representations.
       To qualify as an implied representation, the representation must be so obvious that
it did not need to be stated. More importantly, there must be one and only one thing that
the implied representation reasonably could mean.           The law will not imply a
representation when a party is said to have represented one thing by its conduct and the
same action or conduct reasonably could be construed to have a different meaning.

       3.     Is there more than one reasonable interpretation of the Motel’s conduct
              in giving the Guests a card key?

       Under the circumstances at the time of the conduct, a representation that the motel
was a secure property is not the only reasonable interpretation of the Motel’s conduct in
giving the Guests a card key. The fact that the lobby clerk gave one of the Guests a card
key to enter their room is ambiguous conduct. Providing a card key to motel guests
cannot reasonably be interpreted solely as an assertion that the motel is secure. See Mills,
94 S.W.3d at 75; West Anderson Plaza, 876 S.W.2d at 534. Providing a card key
reasonably could be interpreted as any number of things, including:

              no assertion at all;

              a representation only that the card key is used to enter and exit the
              Guests’ room but that the motel is generally open to the public;

              a representation that the card key is used to enter and exit the
              Guests’ room and, during the night, for accessing the lobby;

              a representation that the card key is used to enter and exit the
              Guests’ motel room and, during the night, for accessing the side
              doors to the motel;

              a representation that a card key will be required for the Guests to
              enter their room;



                                             9
              a representation that a card key will be required for the Guests to
              enter their room, and to enter the lobby and side doors of the motel
              at night; or

              various other assertions.
Even if it were reasonable to interpret the Motel’s provision of a card key to a motel
guest as an assertion that the motel premises was secure, this interpretation would not be
the only reasonable interpretation of this conduct.

       If the Guests assumed that, because Glick received a card key, the motel premises
were secure or all motel doors required a card key at all times, these assumptions were
unreasonable. In addition, providing a card key cannot reasonably be interpreted as a
representation that motel employees do not have access to the rooms of the Guests or that
other motel guests with card keys could not access the motel. A reasonable person under
the same circumstances might have concluded that the card key would give him access to
his room, that other motel guests would be able to access the premises, that motel
employees would have card keys to gain access to motel rooms, and that, under these
circumstances, any valuables left in the motel room would not be secure.              It is
unreasonable to imply a broad representation that the motel premises were secure from
the quotidian act of giving a guest a card key.

       4.     Would it be consistent with precedent from the Supreme Court of Texas
              to imply a representation that the motel premises were secure merely from
              the presence of a security guard or merely from the giving of a card key?

       In analyzing the implied representation issue it is appropriate to consider whether
implying the representations in question would be consistent with precedent from the
Supreme Court of Texas. The implied representations at issue in this case concern the
safety and security of premises. Generally, a person has no legal duty to protect another
from the criminal acts of a third person. See Timberwalk Apart., Partners, Inc. v. Cain,
972 S.W.2d 749, 756 (Tex. 1998). But, a landowner who controls the premises does
have a duty to use ordinary care to protect invitees from criminal acts of third parties if

                                             10
the owner knows or has reason to know of an unreasonable and foreseeable risk of harm
to the invitee. See Timberwalk, 972 S.W.2d at 756. The central issue is whether the
owner knew or should have known of an unreasonable and foreseeable risk of criminal
conduct on the premises. See id. at 756–57. The Supreme Court of Texas requires that
courts, in making this determination, consider whether any criminal conduct previously
occurred on or near the property, how recently the conduct occurred, how often it
occurred, how similar the conduct was to the conduct in question, and what publicity was
given the occurrences to indicate that the property owner knew or should have known
about them. See id. at 757.

       If a misrepresentation under the DTPA could be implied from the presence of a
security guard in the lobby or from giving motel guests a card key, a landowner who
neither knew nor should have known of an unreasonable and foreseeable risk of criminal
conduct on the premises still could be held liable for actual damages and attorney’s fees
regarding losses from criminal conduct on the premises. Such a holding would expand
landowners’ potential liability for damages from third-party crime significantly beyond
that recognized in Timberwalk. This unwarranted expansion is yet another reason why a
representation should not be implied under the facts of this case. See Lively v. Adventist
Health Sys./Sunbelt, Inc., 2004 WL 1699913, at *5 (Tex. App.—Fort Worth July 29,
2004, no pet.) (mem. op.) (holding that warranty by landowner that premises are safe
should not be implied given the existence of Timberwalk duty that covers the same
subject matter).

       Under the applicable standard of review, the evidence at trial would not enable
reasonable and fair-minded people to find that the Motel represented that its goods or
services would be of a particular standard, quality, or grade when they were of another.
See TEX. BUS. & COM. CODE ANN. § 17.46(b)(7). Therefore, the evidence is legally
insufficient to support the jury’s finding that the Motel violated section 17.46(b)(7) of the
DTPA.

                                             11
B.     Is the evidence legally sufficient to support the jury’s finding under DTPA
       section 17.46(b)(24)?

       We next examine whether the record contains legally sufficient evidence that the
Motel failed to disclose information about goods or services that was known at the time
of the transaction and that such failure to disclose information was intended to induce the
Guests into a transaction they would not have entered had the information been disclosed.
See TEX. BUS. & COM. CODE ANN. § 17.46(b)(24). To prevail on a claim for failure to
disclose, the Guests must have presented evidence of the following: (1) a failure to
disclose material information concerning goods or services, (2) which was known at the
time of the transaction, (3) if such failure was intended to induce the consumer into a
transaction, (4) which the consumer would not have entered had the information been
disclosed. See id.; Head v. U.S. Inspect. DFW, Inc., 159 S.W.3d 731, 744 (Tex. App.—
Fort Worth 2005, no pet.).
       The Guests claim that the Motel failed to disclose the following:
              In the prior two years, 152 service calls to a local law enforcement agency
              involving the motel had been placed, including 15 calls for burglary of
              motor vehicles;

              The electronic key lock on the outside door to the property was inoperable;

              The Motel was unable to generate an accurate electronic key report
              indicating who had entered and left a guest’s motel room at certain times;

              The Motel did not have security cameras monitoring dark hallways;

              The Motel’s housekeeping staff engaged in a practice of propping exterior
              doors open with towels and leaving doors open while working in other
              rooms; and

              The Motel’s policy of not having a security guard on duty at all times
              despite the Guests’ expressed safety concerns as evidenced by their inquiry
              of the availability of a safe to store valuables.



                                            12
       According to the Guests, the information was material, the Motel knew such
information would deter guests from staying there, and by the Motel’s withholding of
such information, the Guests were induced into the transaction of leasing a motel room.
A ―transaction‖ contemplates an act or acts by which an alteration of legal rights occurs.
See Head, 159 S.W.3d at 744. The Guests claim that had they known about these safety
issues, they would not have chosen to stay at the Motel’s establishment.

       The record contains no evidence to suggest that the Motel withheld any
information, known or otherwise, with the intention of inducing the Guests to lease a
motel room. According to the record, Vincent Vittatoe, the senior director of safety and
security for the Motel, testified that during the pendency of this lawsuit, he learned that
law enforcement authorities had responded to 152 calls involving the West Houston
motel in the prior two years. There is no evidence that Vittatoe knew this information
when the Guests checked into the motel. Tammy Watkins was the general manager of
the establishment from August 2007 until April 2009. From the time she began working
on the motel premises, she was not aware of any allegations or reported incidents in
which a guest room had been broken into or that a Motel employee had stolen something
from a guest room using a key. The record contains no evidence that Watkins, Vittatoe,
or any other Motel agent was aware of the 152 calls or any incidents in which property
had been reported stolen from a guest room. Jolly also testified that after filing suit, an
ensuing investigation revealed the 152 service calls for law enforcement to the motel.

       The Guests claim that the jury reasonably could have inferred that the Motel was
put on notice of the number of crime incidents involving the motel, referring to Vittatoe’s
testimony that an incident report should be completed each time an incident occurs on the
motel premises. The Guests claim that there is a discrepancy between the number of
incident reports generated by the Motel and the high number of service calls to which law
enforcement officers responded in the two years preceding the transaction. Vittatoe
testified that an internal report is not generated each time law enforcement officers enter

                                            13
the motel premises. According to Vittatoe, officers who are ―just marking out at the
[Motel] property will show as a call for service.‖ Vittatoe, as a former law enforcement
officer, testified that a call for service may be related to traffic or multiple officers
responding to a single call, as well as calls to report alleged criminal incidents. Vittatoe
explained that, for this reason, the bare assertion of 152 service calls, without an
evaluation of the types of calls for law enforcement or the reasons for the law-
enforcement response, is not reflective of the security measures or crime at the motel.4
Vittatoe also stated that, as a result of a merger of two corporations in 2007, when he
became involved with this Motel property, he did not ―get a lot of incident reports as
would typically be reported.‖ But, Vittatoe stated that he examined corporate records and
spoke with his counterparts within the company and learned that no agent of the Motel
was aware of any report reflecting a claim for a break-in of a guest room in the prior two
years. An internal incident report was filed in this case.

        There is no evidence that the Motel was aware of any time when the exterior door
lock was inoperable before the Guests’ transaction or that it knew of any unlit areas on
the premises at the time of the transaction. There is no evidence suggesting that Watkins,
Vittatoe, or any other Motel agent knew the key lock to the Guests’ room would render
an incorrect key log report until after they attempted to retrieve data from the lock
following the Guests’ report of the incident.

        Vittatoe acknowledged that he was aware housekeeping staff would prop open
doors from time to time, but that the Motel discouraged this practice. Similarly, the
record reflects that the Motel did not contract for services for a security guard during the
daytime because there were more Motel employees on duty at that time. Even if this

4
  According to Vittatoe’s testimony, of the 152 service calls, 43 calls did not reflect the reason officers
responded and 35 calls were duplicates of another previous call. Vittatoe testified that of the 152 calls for
service, only 18 or 19 warranted concern. In his review of those 18 or 19 calls, one involved a 2007
aggravated robbery of the motel. Another call involved a 2007 sexual assault in which there were no
arrests, leading Vittatoe to believe that the allegations warranting the service call were unfounded. With
the exception of the alleged incident in this case, the remaining calls involved burglary of a motor vehicle.
                                                    14
information were known by the Motel at the time the Guests engaged in the transaction,
there is no evidence that the Motel intentionally withheld this information with the intent
of inducing the Guests to lease a room from the Motel. See Patterson v. McMickle, 191
S.W.3d 819, 827 (Tex. App.—Fort Worth 2006, no pet.).

        The Guests assert that this court should presume that the Motel’s non-disclosure
was intentional, citing Jones v. Ray Insurance Agency, 59 S.W.3d 739, 750 (Tex. App.—
Corpus Christi 2001), pet. denied, 92 S.W.3d 530 (Tex. 2002) (per curiam). Under
Jones, in the absence of direct evidence of intent to induce, intent may be presumed if the
undisclosed information was material and the information was known to the defendant.
See id. at 750. Neither this court nor the Supreme Court of Texas has adopted this legal
rule and we see nothing in the text of the statute that would suggest the Texas Legislature
intended the defendant to carry the burden of proof in this circumstance. Accordingly, we
decline to adopt the legal rule set forth in Jones.5

        The Guests’ arguments in support of legal sufficiency lack merit.6 Considering
the evidence in the light most favorable to the jury’s verdict, indulging every reasonable
inference that would support it, crediting favorable evidence if a reasonable factfinder
could, and disregarding contrary evidence unless a reasonable factfinder could not, the
evidence at trial would not enable reasonable and fair-minded people to find that any
failure to disclose information by the Motel was intended to induce the Guests into a


5
   In any event, although the Guests assert that the undisclosed information was material, the record
evidence belies this assertion. According to the record, the Guests inquired only about the availability of
a room and the availability of a safe for use by motel guests. Despite the unavailability of a safe for the
Guests’ needs, the Guests leased a room, indicating that a safe was immaterial to a decision to enter the
transaction and that the Guests instead based their decision only on the vacancy at the motel. On this
basis, the Guests’ claims that an inquiry as to the availability of a safe equates with an inquiry as to the
general security of the motel premises demonstrates the immateriality of the information.
6
  The Guests rely upon Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162 (Tex. App.—San Antonio 1993,
writ denied). This case is factually distinguishable. The case under review does not involve an affirmative
liability claim against any other party, as did Hartnett. See id. at 166. Moreover, there is no issue in the
case sub judice that the trial court erred in failing to submit any question to the jury or in submitting a
question to the jury in improper form. See id.
                                                    15
transaction they would not have entered had the information been disclosed.                            See
Patterson, 191 S.W.3d at 827; Head, 159 S.W.3d at 744. Therefore, the evidence is
legally insufficient to support the jury’s finding that the Motel violated the section
17.46(b)(24) of the DTPA.

                                           IV. CONCLUSION

        The evidence is legally insufficient to support the jury’s finding in response to
question 5 of the jury charge that the Motel violated the DTPA. Accordingly, we sustain
the Motel’s first issue,7 reverse the trial court’s judgment in favor of the Guests, and
render a take-nothing judgment in favor of the Motel.8




                                                 /s/      Kem Thompson Frost
                                                          Justice


Panel consists of Justices Frost, Jamison, and McCally. (Jamison, J., concurring)
(McCally, J., dissenting).




7
 Because we sustain the Motel’s first issue, we need not and do not address its second and third issues.
8
  The Guests argue that appellate costs should be taxed against the Motel under Texas Rule of Appellate
Procedure 43.4, entitled ―Judgment for Costs in Civil Cases.‖ They assert good cause exists because the
Motel requested 370 pages of the clerk’s record that they claim was unnecessary to the appeal. See TEX.
R. APP. P. 43.4 (―In a civil case, the court of appeal’s [sic] judgment should award to the prevailing party
the appellate costs—including preparation costs for the clerk’s record and the reporter’s record—that
were incurred by that party. But the court of appeals may tax costs otherwise as required by law or for
good cause.‖). We find no good cause to tax costs against the prevailing party.
                                                    16
