At page 707 Determining value of furniture in chattel mortgage dispute39 citing cases“the amount of exemplary damages should be reasonably proportioned to the actual damages found.”
- Houston Livestock Show & Rodeo, Inc. v. T. L. Hamrick, Connie S. Hamrick, Leslie Hamrick, Craig Barton, Jacque Barton, Jimmy Barton & Kevin Copeland, No. 03-01-00211-CV (Tex. App.—Austin July 24, 2003).published(It has long been the law in Texas that the amount of exemplary damages should be reasonably proportioned to the actual damages found.)
- Wallace v. Perry (In Re Perry), 423 B.R. 215 (Bankr. S.D. Tex. 2010).publishedCo. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970) (citing Fort Worth Elevators Co. v. Russell, 123 Tex. 128 , 70 S.W.2d 397, 409 (1934)).
- Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555 (Tex. App.—Austin 2003).published(It has long been the law in Texas that the amount of exemplary damages should be reasonably proportioned to the actual damages found.)
- Gunn Infiniti, Inc. v. O'BYRNE, 18 S.W.3d 715 (Tex. App.—San Antonio 2000).publishedCo. v. Neeley, 452 S.W.2d 705, 707-08 (Tex.1970), in support of its decision to remand.
- Gunn Infiniti, Inc. v. O'BYRNE, 996 S.W.2d 854 (Tex. 1999).published Co. v. Neeley, 452 S.W.2d 705, 707-08 (Tex.1970); see also Tatum v. Preston Carter Co., 702 S.W.2d 186, 188 (Tex. 1986).
- Sam B. Hiller, Fed. Signal Corp. v. Mfrs. Prod. Rsch. Grp. of North Am., Inc., Intervenor-Plaintiff-Appellee v. Duravision, Inc., Duravision, Inc., Duravision, Inc., Duravision, Inc. v. Fed. Signal Corp., 59 F.3d 1514 (5th Cir. 1995).published([T]he amount of exemplary damage should be reasonably proportioned to the actual damages found.)
- Hiller v. Mfrs. Prod. Rsch. Grp. of North Am., Inc., 59 F.3d 1514 (5th Cir. 1995).published ([T|he amount of exemplary damage should be reasonably proportioned to the actual damages found.)
- Lee-Wright, Inc. v. Hall, 840 S.W.2d 572 (Tex. App.—Houston [1st Dist.] 1992).publishedCo. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970).
- Tracy v. Annie's Attic, Inc., 840 S.W.2d 527 (Tex. App.—Tyler 1992).publishedSouthwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970).
- Commonwealth Lloyd's Ins. Co. v. Thomas, 825 S.W.2d 135 (Tex. App.—Dallas 1992).publishedCo. v. Neeley, 452 S.W.2d 705, 707-08 (Tex.1970).
Show 26 more citing cases
- Transmission Exch. Inc. v. Long, 821 S.W.2d 265 (Tex. App.—Houston [1st Dist.] 1991).published Co. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970); Nabours, 700 S.W.2d at 904 .
- Texas Employers Ins. Ass'n v. Puckett, 822 S.W.2d 133 (Tex. App.—Houston [1st Dist.] 1991).publishedCo. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970).
- Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648 (Tex. App.—Houston [14th Dist.] 1987).publishedAlamo National Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981); Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970).
- Preston Carter Co. v. Tatum, 708 S.W.2d 23 (Tex. App. 1986).published We have had difficulty determining the effect of the supreme court’s present opinion in the light of Alamo and Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707-08 (Tex.1970).
- Techcraft, Inc. v. Van Houten, 709 S.W.2d 688 (Tex. App.—San Antonio 1986).publishedAlamo National Bank v. Kraus, 616 S.W.2d 908, 909 (Tex.1981); Southwestern Investment Co. v. Neely, 452 S.W.2d 705, 707 (Tex.1970).
- Wilson v. Johns-Manville Sales Corp., 107 F.R.D. 250 (S.D. Tex. 1985).publishedCo. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970).
- Neeley v. Bankers Trust Co., 757 F.2d 621 (5th Cir. 1985).published“the amount of exemplary damages should be reasonably proportioned to the actual damages found”
- United States Court of Appeals, Fifth Circuit, 757 F.2d 621 (5th Cir. 1985).unpublished“the amount of exemplary damages should be reasonably proportioned to the actual damages found”
- Accent Builders Co. v. Sw. Concrete Sys., Inc., 679 S.W.2d 106 (Tex. App.—Dallas 1984).publishedAlthough exemplary damages should be reasonably proportioned to actual damages, Southwestern Investment Co. v. Nelley, 452 S.W.2d 705, 707 (Tex.1970), there is no set rule as to the ratio allowable between actual and exemplary damages.
- K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex. App.—Houston [1st Dist.] 1984).published Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970). [A]n appellate court should not substitute its verdict on damages for that of the jury unless the record indicates that the jury was influenced by passion, prejudice, i…
- Beatrice Mae Hansen v. Johns-Manville Prods. Corp., Johns-Manville Sales Corp., 734 F.2d 1036 (5th Cir. 1984).publishedSouthwestern Investment Co. v. Neeley, supra, at 708.
- Sw. Bell Tel. Co. v. Baker, 650 S.W.2d 467 (Tex. App. 1983).publishedSouthwestern Investment Company *472 v. Neeley, 452 S.W.2d 705, 707 (Tex.1970).
- Dahl v. Akin, 645 S.W.2d 506 (Tex. App.—Amarillo 1982).published Southwestern Investment Company v. Neeley, 452 S.W.2d 705, 707 (Tex.1970).
- Fed. Sec. L. Rep. P 98,777, 11 Fed. R. Evid. Serv. 781 Chemetron Corp., Cross-Appellant v. Bus. Funds, Inc., Cross-Appellees, 682 F.2d 1149 (5th Cir. 1982).published The first, that exemplary damages be reasonably proportional to actual damages, see Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970), is governed primarily by statute in cases of fraud — art. 4004 permits exemplary dam…
- Charles D. McDonald v. Charles M. Bennett & James v. Belvedere, Charles M. Bennett v. Charles D. McDonald, 674 F.2d 1080 (5th Cir. 1982).published“It has long been the law in Texas that the amount of exemplary damages should be reasonably proportioned to the actual damages found”
- Fed. Sec. L. Rep. P 97,872 Lila A. Miley v. Oppenheimer & Co., Inc., Anthony L. Geller & John W. Hamilton, 637 F.2d 318 (5th Cir. 1981).publishedSouthwestern Investment Company v. Neeley, 452 S.W.2d 705, 707 (Tex.1970); Estate of Arrington v. Fields, 578 S.W.2d 173, 183 (Tex.Civ.App. — Tyler 1979, writ ref’d n.r.e.).
- Geders v. Aircraft Engine & Accessory Co., 599 S.W.2d 646 (Tex. Civ. App.—Dallas 1980).publishedAlthough exemplary damages must be proportionate to actual damages, Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707 (Tex.1970), these damages should not be set aside unless it is obvious that the jury was swayed by passion, prej…
- Kenneth D. Sorrels & Cent. Arkansas Livestock Sales v. Texas Bank & Trust Co. of Jacksonville, Texas, 597 F.2d 997 (5th Cir. 1979).published“[i]n the first instance, the amount to be awarded rests in the discretion of the jury”
- Est. of Arrington v. Fields, 578 S.W.2d 173 (Tex. Civ. App.—Tyler 1979).published Southwestern Investment Company v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Russell v. Truitt, 554 S.W.2d 948, 955 (Tex.Civ.App.—Fort Worth 1977, ref’d n. r. e.); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687, 692 (Tex.Civ.App.—Fort Wort…
- Christopher v. Gen. Comput. Sys., Inc., 560 S.W.2d 698 (Tex. Civ. App.—Dallas 1977).published Co. v. Neeley, 452 S.W.2d 705, 707-08 (Tex. 1970).
- Phillips v. Wertz, 546 S.W.2d 902 (Tex. Civ. App.—Dallas 1977).published
- Carter v. Barclay, 476 S.W.2d 909 (Tex. Civ. App.—Amarillo 1972).published
- City Prods. Corp. v. Berman, 610 S.W.2d 446 (Tex. 1980).published
- Seegers v. Spradley, 522 S.W.2d 951 (Tex. Civ. App.—Beaumont 1975).published
- Maxey v. Freightliner Corp., 665 F.2d 1367 (5th Cir. 1982).published
- Stewart & Stevenson Servs., Inc., Cross-Appellee v. Rod Pickard, Marine Dynamics Corp., Cross-Appellant. Marine Dynamics Corp., Cross-Appellant v. Stewart & Stevenson Servs., Inc., Cross-Appellee, Detroit Diesel Allison, Etc., 749 F.2d 635 (11th Cir. 1984).published
At page 708 Considering jury ratio when remitting actual damages21 citing casesactual damages assessed included improper allowance for conversion of property by third person
- Chu v. Chong Hui Hong, 185 S.W.3d 507 (Tex. App.—Fort Worth 2006).published Co. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970).
- William Chu v. Chong Hui Hong, No. 02-04-00279-CV (Tex. App.—Fort Worth Oct. 20, 2005).publishedCo. v. Neely , 452 S.W.2d 705, 708 (Tex. 1970).
- Citizens Nat'l Bank & Lender Asset Recovery, Inc., & Don Lawson v. Allen Rae Investments, Inc., Ruth Narramore, Ruth Ann Taylor & Erika Taylor, No. 02-02-00095-CV (Tex. App.—Fort Worth July 15, 2004).publishedCo. v. Neeley , 452 S.W.2d 705, 708 (Tex. 1970); Gray v. Allen , 41 S.W.3d 330, 332 (Tex. App.—Fort Worth 2001, no pet.); Transmission Exch., Inc. v. Long , 821 S.W.2d 265, 272 (Tex. App.—Houston [1 st Dist.] 1991, writ denied). 58: Baribe…
- Citizens Nat'l Bank v. Allen Rae Investments Inc., 142 S.W.3d 459 (Tex. App.—Fort Worth 2004).publishedCo. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Gray v. Allen, 41 S.W.3d 330, 332 (Tex.App.-Fort Worth 2001, no pet.); Transmission Exch., Inc. v. Long, 821 S.W.2d 265, 272 (Tex.App.-Houston [1st Dist.] 1991, writ denied). 58 .
- Thomas Retzlaff v. Joel S. McDonald, No. 03-03-00319-CV (Tex. App.—Austin Mar. 18, 2004).publishedCo. v. Neeley , 452 S.W.2d 705, 708 (Tex. 1970); Preston Carter Co. v. Tatum , 708 S.W.2d 23 (Tex. App.--Fort Worth 1986, writ ref'd).
- Foley v. Parlier, 68 S.W.3d 870 (Tex. App.—Fort Worth 2002).publishedCo. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Gray, 41 S.W.3d at 332 ; Transmission Exch., Inc. v. Long, 821 S.W.2d 265, 272 (Tex.App.-Houston [1st Dist.] 1991, writ denied).
- Gray v. Allen, 41 S.W.3d 330 (Tex. App.—Fort Worth 2001).publishedCo. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Transmission Exch.
- Stewart Title Guar. Co. v. Aiello, 911 S.W.2d 463 (Tex. App.—El Paso 1995).publishedCo. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970), and will not be disturbed on appeal on the grounds of exces-siveness if there is any probative evidence to support it.
- Ellis Cnty. State Bank v. Keever, 913 S.W.2d 605 (Tex. App.—Dallas 1995).publishedCo. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Transmission Exch.
- Haynes & Boone v. Bowser Bouldin, Ltd., 864 S.W.2d 662 (Tex. App.—San Antonio 1993).published Co. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970).
Show 9 more citing cases
- Ellis Cnty. State Bank v. Keever, 870 S.W.2d 63 (Tex. App.—Dallas 1992).publishedCo. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Transmission Exch.
- Texas Farmers Ins. Co. v. Soriano, 844 S.W.2d 808 (Tex. App.—San Antonio 1992).published Co. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970), and will not be disturbed on appeal on the grounds of excessiveness if there is probative evidence to support it.
- Lawson-Avila Constr., Inc. v. Stoutamire, 791 S.W.2d 584 (Tex. App.—San Antonio 1990).publishedCo. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970), and will not be disturbed on appeal on the grounds of excessiveness if there is any probative evidence to support it.
- Firestone Tire & Rubber Co. v. Battle, 745 S.W.2d 909 (Tex. App. 1988).publishedSouthwestern Investment Co. v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632, 640 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).
- Preston Carter Co. v. Tatum, 708 S.W.2d 23 (Tex. App. 1986).published We have had difficulty determining the effect of the supreme court’s present opinion in the light of Alamo and Southwestern Investment Co. v. Neeley, 452 S.W.2d 705, 707-08 (Tex.1970).
- Wilson v. Donze, 692 S.W.2d 734 (Tex. App.—Fort Worth 1985).publishedSouthwestern Investment Company v. Neeley, 452 S.W.2d 705, 708 (Tex.1970).
- Beatrice Mae Hansen v. Johns-Manville Prods. Corp., Johns-Manville Sales Corp., 734 F.2d 1036 (5th Cir. 1984).publishedSouthwestern Investment Co. v. Neeley, supra, at 708.
- Est. of Arrington v. Fields, 578 S.W.2d 173 (Tex. Civ. App.—Tyler 1979).published Southwestern Investment Company v. Neeley, 452 S.W.2d 705, 708 (Tex.1970); Russell v. Truitt, 554 S.W.2d 948, 955 (Tex.Civ.App.—Fort Worth 1977, ref’d n. r. e.); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687, 692 (Tex.Civ.App.—Fort Wort…
- Jack Criswell Lincoln Mercury, Inc. v. Tsichlis, 549 S.W.2d 255 (Tex. Civ. App.—Beaumont 1977).published Southwestern Investment Company v. Neeley, 452 S.W.2d 705, 708 (Tex.1970).
At page 705 POPE, Justice. This suit for conversion of household furniture was brought by Claude D. Neeley and wife, Beverly June Neeley, against Southwestern Investment…1 citing case
- Gannett Outdoor Co. of Texas v. Kubeczka, 710 S.W.2d 79 (Tex. App. 1986).publishedSouthwestern Investment Co. v. Neeley, 452 S.W.2d 705, 705 (Tex.1970).
v.
Claude D. NEELEY Et Ux., Respondents
This suit for conversion of household furniture was brought by Claude D. Neeley and wife, Beverly June Neeley, against Southwestern Investment Company. The first time this case was before us, we reversed the judgment and remanded the cause for a new trial. 430 S.W.2d 465. On retrial, the jury awarded plaintiffs $5,200.00 actual damages and $20,000.00 exemplary damages. After the Neeleys remitted a part of the actual damages, the trial court rendered judgment for $4,500.00 actual damages and $20,000.00 exemplary damages. The court of civil appeals then suggested a remittitur of an additional $3,800.00 actual damages. The Neeleys filed such a remittitur, and the court of civil appeals affirmed the judgment for $700.00 actual damages and $20,000.00 exemplary damages. 443 S.W.2d 573.
We granted the application of Southwestern Investment Company, hereinafter called S.I.C., upon its point that the court of civil appeals erred in suggesting a re-mittitur of $3,800.00 of the $4,500.00 awarded by the trial court as actual damages while simultaneously affirming the $20,000.00 awarded as exemplary damages in the trial court. We have carefully considered the other points and arguments presented by the parties, but we are still of the opinion that this is the only point that we need to discuss on this appeal.
In April 1962, the Neeleys executed a note for $1,490.16 payable to S.I.C. in 24 monthly installments of $62.09 each. This[*707] note was secured by a chattel mortgage that listed specific items of furniture belonging to the Neeleys at that time. In March 1963, Mrs. Neeley desired to pay off this note and another note the Neeleys had made to S.I.C. She telephoned the S.I.C. office and was told that $837.01 would pay off the two notes at that time. The next day, Mrs. Neeley went to the S.I.C. office and argued.that $837.01 was' too high a payoff figure, but she finally relented and gave S.I.C. a check for this amount marked “In full of account.” S. I.C. accepted and deposited this check. Several months later, S.I.C. discovered that one of the previous payments had mistakenly been credited twice to the Neeley account and thus the payoff figure quoted Mrs. Neeley was $62.09 too small. Subsequently, S.I.C. contacted the Neeleys several times, but the Neeleys refused to pay the $62.09 since they believed thé account had been paid in full.
In early 1964, the Neeleys moved their furniture to a house in Wichita Falls which they rented from one Lambert. In the summer of 1964, they left the furniture in the Lambert house and went to live with Mr. Neeley’s parents in Strawn, Texas. S.I.C. found out where the furniture was being stored and contacted one Brumbelow, a used furniture dealer. After Brumbelow had personally viewed the furniture, Scott Allred, a collection manager for S.I.C., went to the county clerk’s office and made a list of the furniture covered by the chattel mortgage. Allred, acting for S.I.C., gave this list to Brumbelow, and sold him all the furniture listed for the sum of $62.-09. Brumbelow then went to the Lambert house and apparently took possession of all the furniture there, which included a number of items not listed in the chattel mortgage.
At the retrial, Mrs. Neeley testified that all of the furniture in the house was worth approximately $4,500.00. Mr. Neeley testified that all of the furniture in the house was worth something between $4,500.00 and $5,000.00. On crossexamination by counsel for S.I.C., Brumbelow testified that the furniture on the list he purchased from S.I.C. was worth from $700.00 to $800.00. The court of civil appeals held that S.I.C. converted the property which was described on the list and which it sold to Brumbelow, but held further that S.I.C. was not responsible for Brumbelow’s taking the other pieces of the Neeleys’ furniture. Accordingly, the court of civil appeals ordered a remittitur of all actual damages down to the sum of $700.00 which was the undisputed value of the items included on the list.
By accepting a remittitur that reduced actual damages from $4,500.00 to $700.00 while leaving exemplary damages of $20,-000.00, the court of civil appeals permitted the ratio between exemplary damages and actual damages to go from approximately four to one to approximately twenty-eight to one. It is the correctness of this action that we are now questioning.
In finding that exemplary damages were not excessive in this case, the court of civil appeals quoted from Mayer v. Duke, 72 Tex. 445, 10 S.W. 565 (1889). This case correctly states that in determining whether exemplary damages are excessive, a court of civil appeals is to consider such matters as the degree of outrage produced by the evil, the frequency of the evil, and the size of an award needed to deter similar wrongs in the future. However, these are not the only matters that a court of civil appeals should consider in a case in which the trial court has awarded both actual and exemplary damages and the court of civil appeals has decided to suggest a remittitur substantially reducing actual damages.
It has long been the law in Texas that the amount of exemplary damages should be reasonably proportioned to the actual damages found. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W. 2d 397, 409 (1934); P. J. Willis & Bros. v. McNeill, 57 Tex. 465, 480 (1882); Flanary v. Wood, 32 Tex.Civ.App. 250, 73 S.W.[*708] 1072 (1903, writ ref.); 17 Tex.Jur.2d Damages, § 187; 17 A.L.R.2d 527, 548; 33 A.L.R. 384, 399. In the first instance, the amount to be awarded rests in the discretion of the jury. Tynberg v. Cohen, 76 Tex. 409, 13 S.W. 315, 317 (1890); Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687, 692 (Tex.Civ.App.1964, writ ref. n. r. e.).
We now hold that when a court of civil appeals suggests a remittitur of a substantial portion of the actual damages found by a jury, the court of civil appeals is under an obligation to give consideration to the ratio between exemplary and actual damages as established by the jury in passing on the further question of excessiveness of exemplary damages. Particularly is this true when the jury and trial court have determined actual damages on the premise that the defendant has wrongfully converted all the items in a building and the court of civil appeals has fixed the maximum permissible actual damages on the basis that the defendant has wrongfully converted only some of the items in the building. Commercial Credit Corp. v. Patterson, 248 S.W.2d 965 (Tex.Civ.App.1952, writ ref. n. r. e.).
This is not to say that a court of civil appeals must rigidly adhere to the ratio as found by the fact finder whenever the court of civil appeals suggests a remittitur of some portion of actual damages. We are not to be understood as holding that the ratio between exemplary damages and actual damages found by the jury, to the exclusion of every other consideration, is of controlling importance in estimating the exemplary damages after a remittitur of a portion of actual damages. However, in addition to considering the other relevant factors, a court of civil appeals should also take into consideration the ratio between exemplary damages and actual damages as found by the jury, if the court of civil appeals has decided to order a substantial reduction in the actual damages awarded. Thus, although this issue was not faced squarely in Higginbotham v. O’Keeffe, 340 S.W.2d 350 (Tex.Civ.App.1960, writ ref. n. r. e.), this court found it was not reversible error for the court of civil appeals there to accept a remittitur of $25,000.00 of the $150,000.00 actual damages awarded while leaving undisturbed the award of $20,000.00 for exemplary damages.
The only case that we have found that directly confronted the problem now before us is Flame Coal Co. v. United Mine Workers, 303 F.2d 39, 97 A.L.R.2d 1136 (6th Cir. 1962), cert. den. 371 U.S. 891, 83 S.Ct. 186, 9 L.Ed.2d 125. There the trial court awarded $54,845.00 compensatory damages and $50,000.00 punitive damages. The appellate court suggested and accepted a remittitur of all but $8,225.00 of the compensatory damages while upholding the award of $50,000.00 punitive damages. The court there expressly noted, however, that the controlling Kentucky law had clearly stated the rule that an award of punitive damages need not bear a proportional relationship to the award of actual damages. As stated above, the rule in Texas is clearly to the contrary.
A determination of excess by a court of civil appeals is one of fact and, as such, is not reviewable by the Supreme Court. Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916). But since the court of civil appeals in passing on excessiveness of exemplary damages here followed an erroneous rule of law by failing to take into consideration the ratio established by the jury between exemplary and actual damages, we must remand the cause to that court for further consideration. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835, 841 (1959). See also, 14 Sw.L.J. 150, 155 (1960).
The judgment of the court of civil appeals is reversed, and the cause is remanded to that court for further consideration in accordance with this opinion.