Supreme Court of Texas.
Dutch HINES, Petitioner,
C.W. HASH, Jr., Respondent.
Dec. 9, 1992.
Rehearing Overruled Jan. 27, 1993.
Attorneys & Firms
*465 William F. Warnick, Lubbock, for petitioner.
Tom J. Brian, Crosbyton, Ralph H. Brock, Lubbock, for respondent.
The Texas Deceptive Trade Practices—Consumer Protection Act provides that “[a]s 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 application 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 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 Chrysler–Plymouth City, Inc. v. Guerrero, 620 S.W.2d 700, 706 (Tex.Civ.App.—San Antonio 1981, no writ).
In 1979, the statutory provision was amended as follows:
§ 17.50A Notice: Offer of Settlement
(a) As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 of this subchapter against any person, a consumer shall give written notice to the person at least 30 days before filing the *467 suit advising the person of the consumer’s specific complaint and the amount of actual damages and expenses, including attorneys’ fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant.
Act approved June 13, 1979, 66th Leg., R.S., ch. 603, § 5, 1979 Tex.Gen.Laws 1327, 1330. This provision was in effect when the events of this case occurred and suit was filed, and it therefore governs this case. See Wolfe, 664 S.W.2d at 103–104.1
Within 30 days of receiving the required notice, a person may tender a written offer to settle, and if the consumer rejects the offer and does not recover substantially different damages at trial, recovery is limited to the amount of the offer. (e). A person may also within the same period tender payment of the actual damages and expenses claimed, and then may assert that tender in complete defense to an action for damages under the DTPA. Id. § 17.506(d).
Unlike the 1977 provision, the 1979 version places the burden on plaintiff to plead that he gave notice. See Silva v. Porowski, 695 S.W.2d 766, 768 (Tex.App.—El Paso 1985, writ ref’d n.r.e.).
The notice requirement of the DTPA is clearly mandatory, but that feature alone does not determine the consequences for failure to comply with it. The Legislature may prescribe the consequences for failure to comply with statutory requirements, as it did in 1977 by providing that a failure to give notice limited plaintiff to recovery of actual damages, attorney fees and court costs. Hines argues that it has also done so in the 1979 provision by making notice “a prerequisite to filing a suit”. Hines cites three cases in support of his argument. *468 Lubbock, 626 S.W.2d at 614 (“notice is now a prerequisite to filing suit”). All three cases merely recite the statutory language. The issue is not whether notice is a prerequisite to a DTPA action for damages—clearly, it is—but what the effect of lack of notice is. As we read the 1979 provision, it does not specify the consequences for noncompliance.
When the statute is silent, we have looked to its purpose for guidance. Thus, in Hutchinson v. Wood, 657 S.W.2d 782 (Tex.1983).
Three courts have concluded that if notice is not given under the DTPA, plaintiff is limited to recovering actual damages and cannot obtain additional damages allowed by the Act. Boyd Int’l, Ltd. v. Honeywell, Inc., 837 F.2d 1312, 1316 (5th Cir.1988). Although this was the result expressly prescribed by the 1977 notice provision, it was removed from the 1979 version. We presume the Legislature intended by its 1979 amendment that the failure to give notice should no longer result in a limitation of damages. Since the provision is now silent on the effect of noncompliance, we must consider the purpose of the statute as we would in other cases.4
The purpose of the DTPA notice provision is the same as that of the Medical Liability and Insurance Improvement Act: “to discourage litigation and encourage settlements of consumer complaints.” Sunshine Datsun, Inc. v. Ramsey, 680 S.W.2d 652, 654–55 (Tex.App.—Amarillo 1984, no writ).
We therefore conclude that if a plaintiff files an action for damages under the DTPA without first giving the required notice, and a defendant timely requests an abatement, the trial court must abate the proceedings for 60 days. TEX.BUS. & COM.CODE art. 17.505(a); see $435,000, 842 S.W.2d at 645. Defendant may wait until appeal from the final judgment to seek review of a denial of abatement, but the trial court’s error must be shown to have been harmful to obtain reversal. TEX.R.APP.P. 81(b)(1). Ordinarily, this would require a showing that defendant was unable to limit his damages under the statute by tendering a settlement offer.
During the abatement the notice required by statute must be given, “advising the person in reasonable detail of the consumer’s specific complaint and the amount of actual damages and expenses, including attorneys’ fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant.” Pool Co., 681 S.W.2d at 219.
In this case, Hash waived notice under the DTPA by failing to request abatement. Therefore, the court of appeals erred in holding that the trial court committed reversible error and that the case must be remanded to allow plaintiff to give notice. Other courts of appeals have reached similar results, and to that extent we disapprove those decisions. *470 Sunshine Datsun, 680 S.W.2d at 655.
Accordingly, the judgment of the court of appeals is reversed and the judgment of the trial court is affirmed.
Per Curiam concurring opinion.
Concurring opinion by DOGGETT, J., joined by MAUZY, J.
Concurring opinion by GAMMAGE, J.
PER CURIAM concurring.
For the reasons expressed in our per curiam concurring opinions in Greathouse v. Charter National Bank–Southwest, 35 Tex.S.Ct.J. 1017, 1021, 1992 WL 379408 (July 1, 1992, motion for rehearing pending), we disagree with the conclusions of the concurring justices regarding the timeliness of our disposition of this matter.
DOGGETT, Justice, concurring.
Unfortunately today’s decision—limited to a single legal question, based on facts stipulated by the parties, and unanimous in result—is not timely, issued more than thirteen months after oral argument was heard in 1991. Every case deserves our prompt and careful attention whether the party seeking review in this court is a homeowner like Dutch Hines, a rape victim like Andrea Delaney,1 or a business, large or small.2
For the reasons I have previously expressed, I concur in the judgment but not the manner in which it has been disposed. See 843 S.W.2d at 473 (per curiam concurring opinion), only indicates that Texans can expect more delays from a justice system that is not functioning in a proper manner.
MAUZY, J., joins in this concurring opinion.
GAMMAGE, Justice, concurring.
I concur in the opinion and judgment of the court. I do not join in either of the other concurrences accompanying this opinion, nor will I join in any such unfortunate, unnecessary and contentious writings in the future.
The statute has since been amended further, but the differences between the 1979 version and the current notice provision are not significant to our analysis. One change was in 1987, when section 17.505. Act approved May 25, 1987, 70th Leg., R.S., ch. 167, § 5.02(4), 1987 Tex.Gen. & Spec.Laws 1338, 1361. The only other changes were in 1989, when the provision was amended to increase the notice required from 30 days to 60 days, and to add after the words, “advising the person”, the words, “in reasonable detail”. Act approved June 14, 1989, 71st Leg., R.S., ch. 380, § 3(a), 1989 Tex.Gen.Laws 1490, 1491–92.
Notice is excused if it “is rendered impracticable by reason of the necessity of filing suit in order to prevent the expiration of the statute of limitations or if the consumer’s claims is asserted by way of counterclaim”. TEX.BUS. & COM.CODE § 17.505(b).
This language is dicta in Cail because it was undisputed there that plaintiff gave notice and defendant received it; the issue was the sufficiency of the defendant’s settlement offer in response. As noted above, we do not decide whether the DTPA requires actual delivery of notice or merely sending.
Many other statutes require notice before actions or claims can be filed. E.g., TEX.REV.CIV.STAT.ANN. art. 1524(h) (Vernon 1980) (appeal to district court by low income housing corporations); id. art. 5221k, § 6.01 (Vernon 1987) (suits for violations of the Commission on Human Rights Act); id. art. 8308–5.01 (Vernon Supp.1992) (claims under the Workers’ Compensation Act); TEX.FAM.CODE § 36.07(a) is not allowed if the notice required by that provision is not given. Weirich did not specifically address this issue, although it did disallow recovery because of the lack of notice. In any event, we express no opinion whether the purpose of that provision would warrant a different consequence for noncompliance than failure to give notice under the DTPA.
Delaney v. University of Houston, 835 S.W.2d 56, 61 (Tex.1992) (Doggett, J., concurring).
Schick v. Wm. H. McGee & Co., 843 S.W.2d 473 (Tex.1992) (Doggett, J., concurring opinion on order granting motion to dismiss).