David Barr Realtors Inc. v. Sadei6/25/1998
ON MOTION FOR REHEARING
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT NO. 146,484-B, HONORABLE JOE CARROLL, JUDGE PRESIDING
To address certain issues raised in the motion for rehearing we withdraw our earlier opinion and judgment issued May 21, 1998, and substitute this one in its place.
Appellee Bhruce Sadei sued appellant David Barr Realtors, Inc. for negligence, common law conversion, and violations of several Texas statutes, including the Texas Deceptive Trade Practices and Consumer Protection Act (DTPA). Appellee's claims arose out of the allegedly unlawful execution of a residential landlord's lien. The jury found in favor of Sadei on all theories of liability. The trial court ordered remittitur, which appellee accepted. Having prevailed on its motion for remittitur, Barr Realtors nonetheless challenges the sufficiency of the evidence in five points of error; in a cross-point of error, appellee claims the trial court erred in ordering remittitur. We will reverse the order of remittitur and reinstate the judgment on the jury's verdict.
FACTUAL AND PROCEDURAL BACKGROUND
During the relevant period, Bhruce Sadei was a residential tenant of an apartment building managed by Barr Realtors. In the course of executing a landlord's lien on Sadei, Barr Realtors's agents removed from Sadei's apartment two computers containing a children's on-line educational network program, entitled "Magic One Educational Network," created by appellee. The computers remained in the custody of Barr Realtors from July 9 to July 26, 1993. At trial, Sadei alleged that when the computers were returned, his Magic One program, all related data, and his financial records had been permanently erased from the hard drives of both computers.
After viewing the evidence, the jury first determined that the loss of Sadei's programs occurred while the computers were in appellant's possession. The jury then found for Sadei on all theories of liability presented in the charge: negligence, common law conversion, violations of Chapter 54 of the Texas Property Code, Chapters 31 and 33 of the Texas Penal Code, Chapters 41, 134, and 143 of the Texas Civil Practice and Remedies Code, and a violation of the DTPA. After the verdict was approved by the trial court, Sadei elected to recover damages under the DTPA and section 54.046 of the Texas Property Code. Accordingly, the trial court rendered judgment awarding appellee actual damages of $50,000, mental anguish damages of $10,000, mandatory additional damages under the DTPA of $2,000, discretionary additional damages of $118,000, and attorney's fees of $60,000. Further, pursuant to section 54.046 of the Texas Property Code, appellee was awarded the sum of $500. The total award was $240,500.
Barr Realtors filed a motion for new trial, or in the alternative, a motion for remittitur. The trial court ordered a remittitur and then granted the motion for new trial conditioned upon Sadei filing the remittitur. In accordance with the trial court's order, Sadei submitted a remittitur totaling $160,000, resulting in a judgment of $80,500 in his favor. This appeal followed. In five points of error, appellant claims there is no evidence, or in the alternative, factually insufficient evidence, to support the findings and damages. Through his cross-point of error, Sadei claims the trial court erred in ordering a remittitur.
STANDARD OF REVIEW
In deciding a no-evidence point, we consider only the evidence and inferences tending to support the finding of the trier of fact and disregard all evidence and inferences to the contrary. See Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (T
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