ON APPLICATION FOR WRIT OF ERROR TO THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS.
For Petitioner: Mr. Rush S. Wells, ATT 021158500 806/765-7711, Law Office of Rush S. Wells, P.C., P. O. Box 5741, Lubbock, TX 79417, Mr. William F. Warnick, ATT 029879000 806/763-4363, 2022 Broadway, Lubbock, TX 79401.
For Respondent: Mr. Tom J. Brian, ATT 002973500 806/675-2434, Jung & Brian, P.O. Box 456, Crosbyton, TX 79322, Mr. Ralph H. Brock, ATT 003041300 806/762-5671, P. O. Box 959, Lubbock, TX 79408-0959.
Hecht, Doggett, Mauzy, Gammage
The Texas Deceptive Trade Practices--Consumer Protection Act provides that "as a prerequisite to filing a suit seeking damages" under the Act, "a consumer shall give written notice" to the defendant of his complaint. TEX. BUS. & COM. CODE § 17.505(a). We granted writ of error in this case to consider the proper appglication of this provision.
Dutch Hines sued C. W. Hash, Jr. for damages under the DTPA, complaining that the roof Hash had installed on his home leaked. In his original petition Hines alleged that notice of his claim had been sent to Hash by certified mail, return receipt requested, and had been returned unclaimed. In his original answer, Hash asserted as an affirmative defense that he had never received any notice of Hines' complaint until he was served with suit papers, and therefore had not been able to tender Hines a settlement offer. However, Hash never requested the trial court to abate the suit so that he could make such an offer, nor does it appear that he was prevented from making a settlement offer even without the abatement. The evidence at trial concerning notice was undisputed. The notice letter to Hash and the envelope in which it was sent were admitted into evidence, showing three unsuccessful attempts at delivery before it was returned to Hines. Hash did not dispute that the envelope was accurately addressed to him. In fact, he testified he knew at the time that he had a certified letter at the post office but did not pick it up because he was leaving town each morning before the post office opened to work in another city and was not returning home until after the post office closed. He also testified that it was not convenient for him to arrange to have someone else pick up the letter. Hines did not challenge Hash's explanation for not having received the letter. Hash moved for an instructed verdict after Hines rested and again at the close of all the evidence, urging lack of notice as a complete bar to Hines' claim. The trial court denied Hash's motions and refused Hash's requested jury question on the issue of notice. The jury found that Hash knowingly violated the DTPA in several particulars and assessed Hines' actual damages at $9,249.00. The trial court rendered judgment on the verdict for a total of $35,822.67, which included actual damages, twice that sum in statutory damages, prejudgment interest of $4,225.67, and attorney fees of $3,850.00.
The court of appeals, noting a lack of uniformity in the cases applying the notice requirement in the DTPA, held that the DTPA mandates actual delivery of notice. 796 S.W.2d 312. The court reasoned that the purpose of the notice requirement, "to afford the opportunity for presuit negotiations and settlement in avoidance of lengthy and costly litigation", could be preserved only if notice is actually received by the defendant, either by certified mail as prescribed in the statute, or "by other means readily available." Id. at 315. The court also cited our decision in Cail v. Service Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983), where we stated that "[a] prerequisite to recovery [of damages under the DTPA] is delivery of written notice . . . ." The court concluded that Hines' failure to deliver notice to Hash was reversible error, and that the case should be remanded for a new trial with instructions to the trial court to abate proceedings for not more than 60 days to allow Hines to comply with the notice requirement. 796 S.W.2d at 315. To Hash's argument that this result allowed Hines to disregard the statutory notice requirement without penalty, the court answered that a new trial was penalty enough. Id.
Hines argues that the notice required by the DTPA is given when it is mailed to the defendant at the correct address, regardless of whether it is actually received. Thus, Hines contends that he fully complied with the DTPA. He also argues that even if actual delivery is required, his failure to give notice should not result in reversal of the trial court's judgment and remand for proper notice and a new trial. We find it necessary to address only the latter argument. Before we do, we examine the history of the statutory provision and the cases applying it.
There was no notice provision in the DTPA as originally enacted in 1973. Deceptive Trade Practices--Consumer Protection Act (approved May 21, 1973), 63rd Leg., R.S., ch. 143, § 1, 1973 Tex. Gen. Laws 322. It was added in 1977 by the following provision:
§ 17.50A. Damages: Defenses
In an action brought under Section 17.50 of this subchapter, actual damages only and attorney's fees reasonable in relation to the amount of work expended and court costs may be awarded where the defendant:
(2) proves that he had no written notice of the consumer's complaint before suit was filed, or that within 30 days after he was given written notice he tendered to the consumer (a) the cash value of the consideration received from the consumer or the cash value of the benefit promised, whichever is greater, and (b) the expenses, including attorney's fees, if any, reasonably incurred by the consumer in asserting his claim against the defendant . . . .
Act approved May 23, 1977, 65th Leg., R.S., ch. 216, § 6, 1977 Tex. Gen. Laws 600, 604.
The 1977 version of the statute placed the burden on defendant to plead and prove lack of notice. If defendant met this burden, the statute expressly provided that plaintiff could recover only actual damages and not additional statutory damages. See Wolfe Masonry, Inc. v. Stewart, 664 S.W.2d 102, 103-104 (Tex. App.--Corpus Christi 1983, no writ); Lubbock Mort. & Inv. Co. v. Thomas, 626 S.W.2d 611, 614 (Tex. App.--El Paso 1981, no writ); Jim Walter Homes, Inc. v. Geffert, 614 S.W.2d 843, 845 (Tex. Civ. App.--Corpus Christi 1981, writ ref'd n.r.e.). One court suggested that if plaintiff did not give notice as required before filing suit, he could non-suit, give notice, and then refile the identical suit. See Chrysler Corp. v. McMorries, 657 S.W.2d 858, 867-868 (Tex. App.--Amarillo 1983, no writ). Two others held that defendant's failure to plead and prove that he did not receive notice waived any defense. Bolton v. Alvarado, 762 S.W.2d 215, 216-217 (Tex. App.--Houston [1st Dist.] 1988, writ denied) (trial court did ...