PPG Industries3/8/2001
Defendant PPG Industries, Inc., appeals from an adverse judgment in a lawsuit in which JMB/Houston Centers Partners Limited Partnership asserted claims for violations of the Deceptive Trade Practices A ct and for breach of warranty. We affirm the judgment.
Houston Center Corporation constructed a forty story office building in downtown Houston during the mid-1970s known as One Houston Center. Over ninety percent of the exterior surface is glass. Approximately 12,219 units of a PPG product called Twindows, an insulating dual-pane glass window product, were used to sheath the building. In December 1989, Houston Center Corp. sold the building to JMB. In July 1994, after many of the windows had fogged up and/or discolored, JMB sued PPG, alleging breach of warranty and violations of the DTPA. Jurors found in JMB's favor on both its DTPA and breach of warranty claims and determined that JMB had sustained $4,745,037 in damages. Electing the greater remedy provided by the DTPA, the trial court awarded treble damages under the 1973 version of the DTPA. Thus, JMB was awarded $14,235,111 in damages and prejudgment interest from June 14, 1994. After a bench trial, the trial court also awarded $1,716,181 in attorney fees for the trial and $412,400 in appellate attorney fees for this appeal.
TREBLE DAMAGES
The Deceptive Trade Practices Act has undergone numerous revisions. The 1973 version of the DTPA provided for mandatory trebling of damages. The 1979 amendment to the DTPA provided for discretionary trebling of damages if there was a knowing violation of the statute. . Likewise, the 1989 amendment to the DTPA also speaks in terms of a discretionary trebling of damages. The trial court applied the 1973 version of the statute and trebled the damages. In its first issue, PPG contends the 1989 statute was the appropriate version to be applied by the court; thus, the trial court erred in awarding mandatory treble damages.
The issue regarding which version of the statute should have been applied by the trial court is a question of law, which we review de novo. See Lozano v. Lozano, 975 S.W.2d 63, 66 (Tex. App.-Houston [14 th Dist.] 1998, pet. denied) (statutory interpretation a question of pure law over which judge has no discretion). The date of the deceptive acts that give rise to the cause of action under the DTPA determines the applicability of the act. See Woods v. Littleton, 554 S.W.2d 662, 666 (Tex. 1977).
To determine which version of the statute applies, we first review the deceptive acts alleged by JMB. Among the deceptive acts alleged by JMB is the original sale of defective window units which occurred in 1976. Accordingly, unless the 1979 or 1989 versions have retroactive applicability, the 1973 version of the statute is effective.
As for the 1979 amendment, the legislature expressly provided that it would have prospective application only; that is, the amendment does not apply to a cause that "arose in whole or in part" prior to the effective date of the amendment, i.e., August 27, 1979. See Act of May 11, 1979, 66 th Leg., R.S. ch. 603, § 9, 1979 Tex. Gen. Laws 1327, 1332; Barrett v. U.S. Brass Corp, 864 S.W.2d 606, 625 (Tex. App.--Houston [1 st Dist] 1993), rev'd on other grounds, 919 S.W.2d 644 (Tex. 1996). Because the representations and sale of defective window units occurred prior to August 27, 1979, the 1979 amendment does not apply.
As for the 1989 amendment, it applies to all actions or claims "commenced" on or after the effective date of the amendment, i.e., Se ptember 1, 198 9. See Act of May 22, 1989, 71 st Leg., R.S., ch. 380, § 6, 1989 Tex. Gen. Laws 1490, 1493. A civil suit commences in district court by t
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