Reverse and Render and Opinion Filed August 13, 2018




                                                       S
                                        Court of Appeals
                                                             In The


                                 Fifth District of Texas at Dallas
                                                   No. 05-16-01235-CV

    JULIO FERREIRA, INDIVIDUALLY AND D/B/A THE PAW DEPOT, INC. AND
            FORTIVUS COMMERCIAL CONTRACTORS, Appellants
                                  V.
                        TERRY RUSSELL, Appellee

                             On Appeal from the 162nd Judicial District Court
                                          Dallas County, Texas
                                  Trial Court Cause No. DC-13-02106

                                       MEMORANDUM OPINION
                                  Before Justices Bridges, Evans, and Whitehill
                                          Opinion by Justice Whitehill
         This DTPA case arises from the parties’ dispute about an oral agreement to build-out a pet

supplies store following the sale of a franchise.1 Following a bench trial, the trial court entered

judgment for the franchisee, Terry Russell, based on his claims that the franchisor, Julio Ferreira,

did not disclose that there would be construction delays and that surplus and repurposed equipment

would be used in the store.

         In ten issues that we distill into four categories, Ferreira argues that the trial court’s

judgment is in error because: (i) there is legally, or factually, insufficient evidence of the elements

required for a DTPA § 17.46(b)(24) failure-to-disclose claim; (ii) the delayed completion of



   1
       Deceptive Trade Practices Act. See TEX. BUS. & COM. CODE § 17.50.
construction claim is a contract rather than a DTPA claim; (iii) the trial court’s $20,000 damage

award is an improper calculation of benefit of the bargain damages and restitution; and (iv) Russell

is not entitled to attorney’s fees.

            Among other things, we conclude that the evidence is legally insufficient to support the

judgment because there is insufficient evidence that (i) when the parties entered into their

agreement Ferreira knew and failed to disclose that construction would be delayed and (ii) there is

insufficient evidence that Ferreira intended to mislead Russell regarding the use of repurposed

materials in the store. Therefore, Russell cannot recover under the DTPA. Because there is no

basis for recovery, Russell is not entitled to recover his attorney’s fees and we need not reach

Ferreira’s other issues. We thus reverse the trial court’s judgment and render judgment that Russell

take nothing.

                                                            I. BACKGROUND

            In August 2011, Ferreira agreed to sell Russell a “Paw Depot” franchise so he could open

a store selling holistic pet supplies.2 The only written agreement between the parties, however, is

a “noncompete agreement” that references a fee for “$35,000 per one franchise zone.”

            The parties also had an oral agreement for Ferreira’s construction company to build-out the

store. Russell believed that for the $35,000 referenced in the noncompete, he was getting a Paw

Depot franchise and a completely built-out store, including shelves stocked with product. On the

other hand, Ferreira believed that the $35,000 was only for the franchise and Russell would also

pay the construction costs.

            The parties found an agreeable location for the store, and Ferreira negotiated with the

landlord the terms of a commercial lease that Russell signed. The parties planned to complete the

build-out in sixty to ninety days, which was within the lease’s rent free period. But there were


    2
        Because the facts are well known to the parties, we discuss them here only to the extent necessary to decide the case.

                                                                       –2–
unexpected construction delays due to issues with existing electrical wiring, uncooperative

neighboring tenants, the landlord’s failure to provide blueprints, the need for additional plumbing

excavation, and waiting for city approvals. However, the rent free period in the lease was

extended, and Russell admitted he was not damaged by paying rent on a facility he could not use.

       In August 2012, Ferreira requested an additional $10,000 to finish the build-out. Russell

refused, hired a new general contractor, and opened the store under another name in January 2013.

       Russell then sued Ferreira, Fortivas Commercial Contractors (Ferreira’s construction

company) and Carolina Serrano De Paula (Ferreira’s wife) alleging several “laundry list” DTPA

violations. Following a bench trial, the judge ruled for De Paula and Fortivas. But the trial court

entered judgment against Ferreira for $20,000 in damages and $11,250 in attorney’s fees based on

failure to disclose under DTPA § 17.46(b)(24). Ferreira appeals from that judgment.

                                          II. ANALYSIS

A.     Standard of Review and Applicable Law

       We may sustain a legal sufficiency challenge only when (i) the record discloses a complete

absence of evidence of a vital fact, (ii) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact, (iii) the evidence offered to prove

a vital fact is no more than a mere scintilla, or (iv) the evidence establishes conclusively the

opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on

reh’g). In determining whether there is legally sufficient evidence to support the finding under

review, we must consider evidence favorable to the finding if a reasonable factfinder could and

disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168

S.W.3d 802, 807, 827 (Tex. 2005).

       Anything more than a scintilla of evidence is legally sufficient to support the finding.

Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996). More than a scintilla of


                                                –3–
evidence exists if the evidence furnishes some reasonable basis for differing conclusions by

reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co.,

77 S.W.3d 253, 262 (Tex. 2002).

        If the evidence is legally insufficient to support the judgment, we need not consider the

factual sufficiency points. See Glover v. Tex. Gen, Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981)

(court should rule on no evidence point first); TEX. R. APP. P. 47.1.

        Under the DTPA, a consumer may maintain an action when the defendant uses or employs

a false, misleading, or deceptive act or practice that is specifically enumerated in § 17.46 and relied

on by the consumer to his detriment. See TEX. BUS. & COM. CODE § 17.50(a)(1). Section 17.46

provides a “laundry list” of specifically prohibited acts. See TEX. BUS. & COM. CODE §17.46(b);

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 501 (Tex. 2001). The prohibited acts include

“failing to disclose information concerning goods or services which was known at the time of the

transaction if such failure to disclose such information was intended to induce the consumer into

the transaction into which the consumer would not have entered had the information been

disclosed.” TEX. BUS. & COM. CODE §17.46(b)(24).

        Thus, to prevail on a § 17.46(b)(24) failure-to-disclose claim, the plaintiff must prove: (i)

a failure to disclose material information concerning goods or services that was (ii) known at the

time of the transaction, (iii) intended to induce the consumer into a transaction, and (iv) that the

consumer would not have entered had the information been disclosed. See id.; Ryan Constr. Servs.

L.L.C. v. Robert Half Int’l, Inc., 541 S.W.3d 294, 304–05 (Tex. App.—Houston [14th Dist.] 2017,

no pet.).




                                                 –4–
B.         Construction Delay Issues

           1.         Ferreira’s First Issue: Was there legally sufficient evidence that Ferreira
                      knew at the time of the agreement that the construction delays would occur?

           Ferreira’s first issue argues that the evidence is legally insufficient to establish that he knew

at the time of the agreement that the construction delays would occur. We agree.3

           Our record review does not yield any direct or circumstantial evidence that Ferreira had

such knowledge when he and Russel entered into their agreement.                                                  Moreover, that these

circumstances later arose is no evidence that Ferreira had fore knowledge that they would do so.

See Pfeiffer v. Ebby Halliday Real Estate, Inc., 747 S.W.2d 887, 889–91 (Tex. App.—Dallas 1988,

no writ) (no evidence listing agent had knowledge of foundation problems).

           Similarly, Ferreira’s acknowledgment to Russell that their sixty-day estimate was

optimistic does not reasonably infer knowledge that these particular problems could arise. At most

this would be evidence (i) of undifferentiated, common knowledge that delays can occur in

construction projects and (ii) that this schedule was optimistic. Furthermore, to the extent that

Ferreira’s acknowledgment reflects his awareness that the schedule was optimistic it suggests that

Ferreira disclosed his knowledge to Russell. Thus, there is legally insufficient evidence that

Ferreira knew of potential construction delays beyond what he admittedly told Russell.

           2.         Ferreira’s Second Fourth, and Fifth Issues: Was there legally sufficient
                      evidence of (i) intent to mislead, (ii) reliance, or (iii) damages.

           Ferreira’s second, fourth, and fifth issues assert that there is no evidence, or factually

insufficient evidence, that (i) Ferreira intended to induce by not disclosing the forthcoming

construction delays; (ii) Russell would not have entered into this arrangement had he known those

delays would happen; and (iii) Ferreira’s nondisclosure of those delays damaged Russell. Having

concluded that there is legally insufficient evidence showing that Ferreira at the time the parties


     3
       Russell combined both legal and factual sufficiency arguments under his first two issues. Because we reverse on legal sufficiency arguments,
we do not reach the factual sufficiency arguments. See Glover, 619 S.W.2d at 401.

                                                                      –5–
entered into their transaction knew of the future construction delays about which Russell

complains, we need not and do not address Ferreira’s remaining issues regarding construction

delays. See TEX. R. APP. P. 47.1.

C.           Surplus and Repurposed Equipment Issues

            1.         Ferreira’s Third Issue: Was there legally sufficient evidence that Ferreira
                       failed to disclose that surplus or repurposed materials would be used for
                       construction with the intent to mislead Russell?

            Ferreira’s third issue argues that the evidence is legally insufficient to establish that he

failed to disclose that surplus and repurposed materials would be used for construction with the

intent to mislead Russell.4 We agree.

            Mere nondisclosure of material information is not enough to establish an actionable DTPA

claim. Patterson v. McMickle, 191 S.W.3d 819, 827 (Tex. App.—Fort Worth 2006, no pet.). The

information that was known at the time must be withheld for the purpose of inducing the consumer

to enter into the transaction. See Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 480

(Tex. 1995). Moreover, according to one of our sister courts, there must be direct evidence of

intent to induce; intent may not be presumed. Arlington Home, Inc. v. Peak Environmental

Consultants, Inc., 361 S.W.3d 773, 782 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

            As to direct evidence, there is no evidence that Ferreira failed to tell Russell that surplus

and repurposed materials would be used on this project with the intent to induce Russell into the

transaction.

            Furthermore, assuming that the required intent can be proved by circumstantial evidence,

there is legally insufficient circumstantial evidence to that effect as well.5 Specifically, as to what


       4
         Ferreira also points to his testimony that he told Russell that surplus and repurposed materials would be used on the project. But Russell
testified that he assumed that only new materials would be used and that he never asked Ferreira whether that would be the case. Construing the
evidence most favorably to Russell as we must do in this context, see City of Keller, 168 S.W.3d at 807, 827, we assume that there is some evidence
that Ferreira failed to disclose to Russell that surplus and repurposed materials would be used on this project as Russell logically would not have
had that assumption had Ferreira told him that surplus or repurposed materials would be used for this project.
     5
         Any ultimate fact can be proved by circumstantial evidence. See Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993).

                                                                      –6–
was said about the type of equipment to be used, Russell admitted that he did not ask Ferreira to

use only new materials and that Ferreira did not specifically say the materials would all be new.

When Russell was asked whether Ferreira told him he had a warehouse full of new equipment, he

replied, “He said he had a warehouse with equipment.” As to the specific representation Ferreira

made, Russell said he was told that the materials would be suitable for a commercial building and

would meet code. Russell further admitted that he simply assumed the material would all be new

or first class and that it would not have been used. Reviewing Russell’s testimony most favorable

to him, we find nothing in it suggesting that Ferreira had the required intent.

       Likewise, nothing in Ferreira’s testimony shows that he had the required intent.

Specifically, Ferreira testified (without contradiction) that his company was doing the build-out

for Russell because Russell could not afford any of the other companies they looked at, and that

Ferreira was doing the work “for no profit.” According to Ferreira, both he and Russell knew that

some of the materials used to build the store would be new, some would be surplus (unused

materials left over from other projects), and some would be repurposed (used) so that they could

keep the cost within Russell’s budget. We don’t include Ferreira’s testimony to negate any

plausible inference that he lacked the required intent. Rather we refer to it to show that what he

testified to does not raise a reasonable inference that he had that intent.

       Because there is nothing in the parties’ testimony or the surrounding circumstances that

would raise a reasonable inference supporting Russell on the intent element regarding the nature

of the equipment to be used, we sustain on legal sufficiency grounds Ferreira’s third issue as it

concerns Russell’s claim regarding the equipment that was furnished for this store.




                                                 –7–
       2.      Ferreira’s Fourth and Sixth Issues: Was there legally sufficient evidence of
               reliance and damages?

       Having disposed of the surplus and repurposed equipment claims based on the legal

sufficiency grounds in Ferreira’s third issue, we need not and do not address his fourth and sixth

issues concerning surplus or repurposed equipment. See TEX. R. APP. P. 47.1.

D.     Ferreira’s Seventh, Eighth, and Ninth Issues: Did the trial court award improper
       damages?

       Ferreira’s remaining issues argue that: (i) Russell cannot recover for the delayed

completion of construction because this is a contract rather than a DTPA issue (Issue Seven); (ii)

the trial court erred by awarding $20,000 because it is an improper calculation of benefit of the

bargain damages (Issue Eight); and (iii) alternatively, the $20,000 damage award is an improper

“application of restitution.” (Issue Nine). Our resolution of Ferreira’s first three issues obviates

the need to consider these remaining issues. See TEX. R. APP. P. 47.1.

E.     Ferreira’s Tenth Issue: Is Russell entitled to attorney’s fees?

       A prevailing consumer under the DTPA is entitled to recover court costs and reasonable

attorney’s fees. TEX. BUS. & COM. CODE §17.50(d). Before a party can prevail under the DTPA,

he must incur actual damages. Hamra v. Gulden, 898 S.W.2d 16, 19 (Tex. App.—Dallas 1995,

writ dism’d w.o.j.). Thus, a party who does not recover actual damages or for mental anguish is

not entitled to attorney’s fees under the DTPA. See Gulf States Utils. Co. v. Low, 79 S.W.3d 561,

567 (Tex. 2002).

       Here, we have concluded that Russell is not entitled to recovery because there is

insufficient evidence to support a DTPA violation. Consequently, he is not entitled to recover

attorney’s fees. Ferreira’s tenth issue is sustained.




                                                 –8–
                                       III. CONCLUSION

       Having sustained Ferreira’s legal sufficiency and attorney’s fees challenges, we reverse the

trial court’s judgment and render judgment that Russell take nothing on his DTPA claim.




                                                  /Bill Whitehill/
                                                  BILL WHITEHILL
                                                  JUSTICE


161235F.P05




                                               –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 JULIO FERREIRA, INDIVIDUALLY                        On Appeal from the 162nd Judicial District
 AND D/B/A THE PAW DEPOT, INC.                       Court, Dallas County, Texas
 AND FORTIVUS COMMERCIAL                             Trial Court Cause No. DC-13-02106.
 CONTRACTORS, Appellants                             Opinion delivered by Justice Whitehill.
                                                     Justices Bridges and Evans participating.
 No. 05-16-01235-CV         V.

 TERRY RUSSELL, Appellee

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that Terry Russell take nothing on his claims.


       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered August 13, 2018.




                                              –10–
