Full opinion text
OPINION SAM BASS, Justice. The appellants appeal from a final judgment denying them recovery under the Deceptive Trade Practices Act (DTPA) and granting the appellee, United States Brass Corporation (U.S. Brass), judgment notwithstanding the verdict on their DTPA cause of action. U.S. Brass brings cross-points challenging the appellants’ recovery on their negligence cause of action and any potential recovery on their DTPA cause of action. We are asked to decide three issues: (1) Should the 23 appellants who recovered under negligence be allowed to recover under their DTPA cause of action? (2) Should the four appellants who received a take-nothing judgment be allowed to recover under their DTPA cause of action? (3) Should one or more of the 23 appellants be denied recovery under their negligence cause of action? The judgment of the trial court is affirmed in part and reversed in part. The detailed disposition is set forth in the conclusions at the end of this opinion. Summary of the Procedural History On December 19,1988, these 27 appellants were among several hundred plaintiff homeowners who sued nine defendant companies, including U.S. Brass, alleging that they had misrepresented the polybutylene plumbing systems installed in the plaintiffs’ homes to code bodies, homebuilders, and city officials. The plaintiffs brought causes of action based on violations of the DTPA, negligence, and strict liability. They sought damages, claiming the plumbing system leaked, necessitating its repair and replacement and causing personal injuries, including mental anguish, property damage, and diminution in the value of their homes. The trial court divided the plaintiffs into two groups. These 27 appellants were in a group of 36 homeowners who went to trial as a test group. All defendants, except U.S. Brass, settled with this group, either before trial, or after the verdict but before judgment was entered. U.S. Brass moved for, and received, a directed verdict with respect to nine plaintiffs. With four exceptions, the jury found in favor of these 27 appellants on their negligence and DTPA causes of action. Two of these who did not receive favorable findings, moved for judgment notwithstanding the verdict, which was denied, while U.S. Brass’ motion for judgment on the verdict with respect to all four was granted. Twenty-three plaintiffs of the 36 moved for judgment in accordance with the verdict and elected to recover under the DTPA. The trial court denied these motions, granted U.S. Brass’ motion for judgment notwithstanding the verdict and to disregard the jury’s answers to questions one through six on the plaintiffs’ DTPA cause of action, and entered judgment for the 23 plaintiffs based on the jury, verdict on their negligence cause of action. The trial court also entered a take-nothing judgment against 13 of the plaintiffs: the four who did not receive favorable jury findings and the nine against whom a verdict was directed. The 23 plaintiffs recovering under negligence and these four appeal the judgment against them on their DTPA cause of action. Summary of Relevant Facts A polybutylene plumbing system consists of molded plastic (Celcon) insert fittings, po-lybutylene pipe extruded from polybutylene resin, and aluminum or copper crimp rings. Plumbers install the plumbing system by placing the crimp ring over the end of the pipe, pushing the fitting inside the pipe, and then using a crimp tool to crimp the ring around the outside of the pipe and fitting. The pressure from the crimp ring deforms the pipe and the fitting to make a water-tight seal with the fitting. The defendant companies either made the polybutylene or plastic, molded the fittings from the plastic, or extruded the pipe. In particular, U.S. Brass designed and molded the fittings from the material, Celcon, provided by Hoechst Cela-nese Corporation (Celanese), extruded pipe from the polybutylene resin provided by Shell Oil Company (Shell), designed the plumbing system, designed the crimping tool, and issued instructions for assembling the system and using the crimp tool. U.S. Brass sold the fittings and pipe to wholesalers, that is, plumbing supply houses. The wholesalers sold to other wholesalers, plumbers, or whoever else had use for it. Homebuilders contracted with plumbing subcontractors to furnish and install plumbing systems in the homes. The homes of the 27 appellants were built between 1978 and 1985 by homebuilders, Monarch, Fox & Jacobs, Wood Brothers, Weekley, Great American, NPC, Genex, or Champion, in various subdivisions, and bought by the appellants between 1982 and 1988. Some of the appellants purchased their homes “new” from the builder; others purchased them from a previous owner or as a foreclosure. The homes all had polybutyl-ene plumbing systems. One hundred percent of the fittings in four of the homes were made by U.S. Brass (Qest). Two of the homes had no U.S. Brass fittings. In the remaining homes, anywhere from nine percent to 95 percent of the fittings were made by U.S. Brass (Qest). Almost all of the homes experienced one or more leaks in the plumbing system. What physically caused the leaks? The evidence at trial was conflicting. Watson was a former U.S. Brass employee who had managed the operations of the U.S. Brass plant in Elkhart, Indiana, and worked on failure analysis of Qest fittings during 1982. He retired from the company at the end of 1982. He testified by deposition that, in his opinion, the leaks in the system were caused by misapplication or abuse, that is by installation error. He defined misapplication as the use of tools that had been gauged incorrectly or not gauged, tools applied to the ring and the fitting at an angle or double crimped, doing things that were not specified or were actually warned against in the literature, or failing to follow instructions or common sense. He also saw evidence of chemical attack, which Celanese confirmed in some instances. The most common attack came from solder flux, used to ease assembly of the components, and cleaning compounds. He also testified that “excessive forces” needed to be guarded against, but stated that the design parameters of the plumbing system were such that the material was not overstressed. He admitted that some of the returned goods showed a production problem or manufacturing error, but stated the instances were minor and constituted a tiny fraction of total production. Watson had not examined any of the fittings in this litigation. Chudnovsky, the plaintiffs’ expert witness, testified that the failures were caused by a combination of chemical degradation and stress. He said the chemical degradation led to the formation of micro-cracks, that the chemical degradation was accelerated by stress, and that the stresses were the immediate cause of crack propagation. He based his opinion on an examination of a sampling of the fittings in the case, as well as a review of documentation. He said he had not done any testing to determine if the mechanical forces alone involved in producing the fitting and in installing the fitting would produce a premature failure. But he also stated the system as designed, was designed to fail, even if properly installed. He also stated that in the fittings he had examined, one leak had occurred where the pipe and fitting had pulled away from each other because the crimp ring wasn’t compressed hard enough; others had happened because of nonplastic plumbing failures; and in a very few examples, a residual splitting had appeared in the pipe itself. Chudnovsky also stated that, in his opinion, Celcon was an unsuitable material because it basically fails and is not reliable. He said it was false that Celcon had a 50-year life, was durable, and would not corrode. Stivala, another expert witness for the plaintiffs, visually examined the fittings and tested them to determine if the molecular weight on the inside was different from that on the outside, indicating that degradation as a result of chemical reaction had occurred in the interior. He testified that Celcon was not suitable as an insert fitting in a polybu-tylene plumbing system in the particular community because it is inherently susceptible to oxidation, and so long as the water contained any medium that could oxidize the surface, it would do so. He stated a Celcon fitting would not last 25 years in any community that adds chlorine to its water and that it would corrode and fail. However, he admitted on cross-examination that the degradation had not gone beyond the surface layer and that he had not done testing to determine if there was any connection between the degradation and the failure of the part. Thames, another expert witness for the plaintiffs, looked at failed fittings visually and by Fourier transform infrared spectroscopy. He determined that the white material on the inside of the fitting was degraded Celcon. He also compared the area of the fitting where the crimp ring had been and an area where there was no crimp ring. He stated both were cracked, where there was crimping pressure and where there was not. He testified that Celcon was not suitable for use as a fitting in the application, that it was not reliable, and that it would not last when exposed to hot, chlorinated water for an extended period of time. He admitted that in the fitting he examined under the electron microscope, the crack had not gone through the wall of the fitting yet. Kardos, Celanese’s expert witness, looked at fittings from all the plaintiffs’ houses. He testified that the causes of fittings failures were cracks that had gone through the wall of the fittings. There were two kinds of cracks: those that ran from the inside to the outside of the fitting and those that ran from the outside to the inside. He stated those that ran from the inside to the outside were more prevalent and primarily located underneath the crimp ring. In his opinion, the cracks came from overstressing, which had four major sources: (1) overcrimping the ring; (2) placement of the crimp ring too close to the shoulder; (3) cocking of the tool during closure of the tool; and (4) bending of the entire fitting nipple after the tube and crimp have been installed. He said a crack did not necessarily go all the way through the fitting wall at the time the fitting was overstressed. If the stress was not high enough to keep the crack going, later temperature and performance fluctuations would stress and load the crack slowly through the system, ultimately causing the crack to go through the fitting some months or even years after installation. Kardos was unfamiliar with the fitting manufacturers’ installation instructions and had no opinion about whether the installation errors or mistakes were warned against in the instructions. He testified that the whitened inner surface of the fitting — degraded Celcon — did not cause the cracks that caused leaks in the houses. He was unable to say which of the fittings leaked, pointing out it was difficult unless a person saw the sediment coming out from underneath the tubing. Kardos testified that Celcon could be used in properly designed and installed parts in potable water, including chlorinated water systems, pointing out that the same material is being used in compression fittings with no problem. What representations did U.S. Brass make? Manis had been a manufacturer’s representative for U.S. Brass from 1979 to 1984. It was his function to set up plumbing supply houses. He did not sell directly to builders or plumbers. He was paid a commission. He made presentations about the polybutyl-ene plumbing system to code bodies, city officials, builders, and plumbing contractors. Manis said he sat in on meetings with the Houston Plumbing Review Board two or three times, and gave the board Qest catalogs. He did not recall the dates of the meetings. Manis did not recall meeting with any of the builders of the homes involved in this litigation, except for Great American. Manis agreed he probably used plaintiffs’ exhibits 117,118,120,121, and 122 in making presentations about the plumbing system. He was asked: Q: How long will a polybutylene plumbing system last? You were asked that question and you gave out these brochures [PX 117] before, right, sir? A: I gave them out, yes. Q: And the answer was: “Tests by independent testing laboratories and authorities project a normal life of 50 years. Over a million houses and recreational structures have been built or manufactured using polybutylene plumbing within the last 10 years and service problems have been virtually nil.” That was basically your answer, right? A: Yeah, that might have been. Manis also admitted he would have used a Qest catalog (PX 120), and he would have made the kinds of representations it discussed — positive connections quicker, easier and no corrosion. Plaintiffs’ exhibit 117, a Qest question-and-answer brochure about the Qest polybutylene plumbing system, states: (1) there was no danger of freeze damage, (2) the system could carry boiling water or steam for prolonged periods without debilitating damage to the system, (3) testing agencies projected a normal life of 50 years for the system, and (4) there was no corrosion and polybutylene was resistant to most acids and bases. Plaintiffs’ exhibit 118, also a question-and-answer brochure from Qest, contains substantially the same information as PX 117. Plaintiffs’ exhibits 120 and 121 are a Qest polybutylene plumbing systems catalog, dated June 1, 1979. They characterize Qest crimp tools as better and more reliable than other tool systems; they state Celcon provides no-leak construction and is inert to chemicals, eliminating corrosion. Plaintiffs’ exhibit 122 is a Qest polybutylene plumbing systems catalog, dated August 1, 1981. It warrants that Qest systems will not corrode or leak for 25 years when installed in accordance with the specifications. The warranty is limited to “potable water systems.” It repeats the information of the earlier brochures that the tools are reliable and Celcon is corrosion-resistant. Runyon has worked for U.S. Brass since 1981 as manager of product development engineering for its polybutylene product line. In January 1983, he assumed Watson’s responsibility for failure analysis. He testified by deposition that U.S. Brass had made joint presentations at code approval hearings. The time and place of the hearings and the identity of the code bodies was not specified. He said that U.S. Brass provided a limited 25-year warranty on its polybutylene plumbing system, and that the warranty was made to unspecified builders, customers, and manufacturers’ representatives. Irwin is a plumbing contractor. During 1981-1985, his company installed polybutyl-ene plumbing systems in new tract housing, among other places, although he did not know if he had installed the plumbing in any of the plaintiffs’ houses. He testified that he participated in meetings before the Plumbing Review Board for the city of Houston in 1981 and 1982. The board approved plumbing products for use in the city of Houston. In particular, he remembered a meeting in 1982 where Shell stated that the polybutylene plumbing system was suitable for use in residential plumbing systems in Houston. He did not identify U.S. Brass as an attendee at the meetings or state that U.S. Brass made representations. He did not recall if any representatives from U.S. Brass came to his company to show his employees how to install the polybutylene plumbing system. Clements was a former employee of a mechanical contractor that installed air conditioning, heating, and plumbing systems for homebuilder, Fox & Jacobs. In the early 1980’s, the contractor was investigating poly-butylene plumbing systems to determine if it was a better and more inexpensive system than ones currently in use. Clements testified representatives of U.S. Brass told him or showed him literature, including PX 117,120, 121, and 122 stating, in essence, that a poly-butylene system was better than copper and simpler to install, would not be affected or damaged by chemicals, and could exist in a family home for 50 years without problems. He said his employer relied on the representations of U.S. Brass in deciding to use the product. From the testimony of Tammie Love and Annie Farris it can be inferred that Frymire was the original plumbing contractor on the Love and Farris homes, built by Fox & Jacobs. The following homebuilders built the appellants’ homes: Monarch, Fox & Jacobs, Wood Brothers, Weekley, Great American, NPC, Genex, and Champion. We found no evidence in the record concerning what influenced NPC, Genex, or Champion to use polybutylene' plumbing systems in the homes they built. While there is no evidence concerning what influenced Great American to use a polybutylene plumbing system, Man-ís, a representative of U.S. Brass, testified that he met with Great American. Spears, a former Monarch employee, testified by deposition that he did not recall receiving any representations from U.S. Brass concerning the polybutylene plumbing system. He remembered attending a promotional presentation at Shell and talking to Chantos, a manufacturer’s representative for Vanguard. Vanguard was a competitor of U.S. Brass and also made polybutylene pipe and Celcon fittings. He said he relied on Chantos and Shell. Spears remembered it being indicated to him that a polybutylene plumbing system was suitable for application in Monarch homes and that it was corrosion resistant. Treece, also a former Monarch employee, testified by deposition that Monarch relied on Shell’s representations in deciding to use the polybutylene plumbing system. He did not remember speaking to U.S. Brass until 1987, and that concerned problems with the system. Davis, a former Wood Brothers employee, testified by deposition that he first learned of polybutylene plumbing systems at a home building convention in 1982. He did not recall with whom he spoke, but he did not remember dealing with anyone from U.S. Brass or Qest. He stated that representations from manufacturers or suppliers of the polybutylene plumbing system were the primary reason why Wood Brothers adopted the polybutylene, but he did not recall who the manufacturers or suppliers were. He said that polybutylene was represented as being able to expand in the event of a freeze, resistant to mineral buildup, long lived, and a quality product. Cooper, also a former Wood Brothers employee, said the decision to use the polybutyl-ene plumbing system rested with Davis, and that Davis based his decision on presentations made by Shell and Vanguard together. He did not recall any contact with representatives of U.S. Brass. Ashford, formerly of Wood Brothers, remembered having contact with Shell and Vanguard representatives. He had seen Vanguard sales brochures and stated the decision to buy the polybutylene plumbing system was based partly on such literature. He did not recall having any contact with U.S. Brass. David Weekley, the owner of Weekley Homes, Inc., testified that he was introduced to polybutylene plumbing systems at trade shows starting in 1982. It was first placed in homes he built in 1984. While he was not completely sure, he believed the display at the trade show on polybutylene plumbing systems was sponsored by Shell. He found out the plumbing system was approved by all of the code bodies and, because code bodies are usually very strict in their approval process, that gave him comfort. Additionally, the plumbing system was manufactured by large companies, and seemed to be a reasonable alternative to copper and galvanized pipe that could freeze. Weekley testified that Shell told him the product was suitable for his use, desirable for residential use in Houston, and was good. He also stated that his director of operations did research on polybutylene plumbing systems, and spoke with Chantos (Vanguard’s representative). Weekley decided to use po-lybutylene plumbing systems based on the information from the trade show and his operations director’s research. Weekley also testified that his sales and marketing personnel passed on the representations of the promoters of polybutylene plumbing systems to homebuyers, both verbally and through displays at sales offices. There is no evidence that any of the appellants heard any of U.S. Brass’ representations, or saw any of its brochures or literature. With the exception of Fox & Jacobs and Great American, there is no evidence that any of the appellants’ homebuilders heard any of U.S. Brass’ representations, or saw any of its brochures or literature. In his closing arguments, the appellants’ counsel summarized their DTPA cause of action as follows: The plaintiffs in this case have testified that they relied upon companies like Cela-nese, Shell, Brass_ The way they relied upon them was they bought a home with their plumbing systems. They didn’t know about those companies or their roles in it or their internal memorandums. They had no idea of that. They received because of the chain of distribution a plumbing system that they found out years later would not woi’k and after they did that, after they found out about the false, misleading and deceptive acts and practices of this group of companies from someone in the form of [another counsel for plaintiffs], they immediately brought this lawsuit that we’re here on today. In 10 points of error, the appellants assert the trial court erred in disregarding generally the jury’s answers to questions one through six, in disregarding such answers because the evidence established they were consumers under the DTPA as to U.S. Brass, in disregarding such answers because the evidence was legally sufficient to support the findings, and in failing to automatically treble their actual damages because the 1977 version of the DTPA applied. In the final, eleventh point, the appellants contend the trial court erred in granting U.S. Brass’ motion for judgment on the verdict regarding four of the appellants because the evidence conclusively proved as a matter of law that U.S. Brass violated the DTPA. In two cross-points, U.S. Brass challenges the judgment in favor of some of the 23 appellants on their negligence cause of action. In six cross-points, U.S. Brass affirmatively defends the trial court’s judgment notwithstanding the verdict in its favor on the appellants’ DTPA cause of action and further asserts the evidence was factually insufficient to support several of the jury’s findings. Tex.R.Civ.P. 324(c). Judgment Notwithstanding the Verdict A judgment notwithstanding the verdict is proper only when a directed verdict would have been proper. Eubanks v. Winn, 420 S.W.2d 698, 701 (Tex.1967); Winograd v. Clear Lake City Water Auth., 811 S.W.2d 147, 154 (Tex.App.—Houston [1st Dist.] 1991, writ denied); TexR.Civ.P. 301. A directed verdict is proper when special issue findings are immaterial or have no support in the evidence. Eubanks, 420 S.W.2d at 701; Winograd, 811 S.W.2d at 154. In the first ground of its motion for judgment notwithstanding the verdict, U.S. Brass argued the court should disregard the jury’s answers to question one because there was no evidence that it made any representations to the plaintiffs or made any representation as part of a transaction to which plaintiffs were consumers. This argument is tantamount to asserting that the jury’s affirmative findings on DTPA violations, causation, and damages were immaterial because the plaintiffs did not meet the “consumer-status test” necessary for a recovery under the DTPA, which U.S. Brass claims the Texas Supreme Court has enunciated. In their motion for entry of judgment, the plaintiffs argued there is no such “consumer-status test.” In its next grounds for seeking judgment notwithstanding the verdict, U.S. Brass contended there was no evidence that it engaged in false, misleading, or deceptive acts or practices, or that it engaged in an unconscionable action or course of action. In reviewing whether the trial court erred in granting the motion for judgment notwithstanding the verdict based on “no evidence” grounds, we must determine whether there is any evidence upon which the jury could have made its findings. Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986). We review the record in the light most favorable to the finding, considering only the evidence and inferences that support the finding and disregarding the evidence and inferences contrary to the finding. Id. If there is more than a scintilla of competent evidence to support the jury’s finding, then the judgment notwithstanding the verdict will be reversed. Id. In its final grounds, U.S. Brass asserted that the jury’s answers to questions two, three, four, five, 5A, and six were immaterial because it had not violated the DTPA The trial court granted U.S. Brass’ motion for JNOV either on the basis of the “consumer-status test” argument or because it found there was no evidence to support the jury’s findings of deceptive or unconscionable acts, respectively, in response to questions one and 1A. Elements of a DTPA Cause of Action To recover under the DTPA, a plaintiff must establish that he is a “consumer,” that there were false, misleading, or deceptive acts or an unconscionable act, and that the act or acts constituted a producing cause of damage. Custom Controls Co. v. MDS Qantel, Inc., 746 S.W.2d 261, 268 (Tex.App.—Houston [1st Dist.] 1987), rev’d, Qantel Business Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302 (Tex.1988); Miller v. Soliz, 648 S.W.2d 734, 739 (Tex.App.—Corpus Christi 1983, no writ); Bormaster v. Henderson, 624 S.W.2d 655, 660 (Tex.App.—Houston [14th Dist.] 1981, no writ); Tex.Bus. & Com.Code Ann. § 17.50(a)(1), (3) (Vernon 1987). A “consumer” is “an individual, partnership, corporation, this state, or a subdivision or agency of this state who seeks or acquires by purchase or lease, any goods or services— ” Tex.Bus. & Com.Code Ann. § 17.-45(4) (Vernon 1987). A person who brings a private lawsuit under section 17.50 must be a consumer, as defined in section 17.45(4). Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 351 (Tex.1987); Sherman Simon Enter., Inc. v. Lorac Serv. Corp., 724 S.W.2d 13, 15 (Tex.1987); Flenniken v. Longview Bank & Trust Co, 661 S.W.2d 705, 706 (Tex.1983); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 538 (Tex.1981); Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 173 (Tex.1980); see also Knight v. International Harvester Credit Corp., 627 S.W.2d 382, 388 (Tex.1982). The Texas Supreme Court has also stated: We have recognized at least two requirements to establish DTPA consumer status. First, the plaintiffs must have sought or acquired goods or services by purchase or lease. Second, the goods or services purchased or leased must form the basis of the complaint. Melody Home Mfg. Co., 741 S.W.2d at 351—52 (citations omitted) (citing Sherman Simon Enter., Inc., 724 S.W.2d at 15 and Cameron, 618 S.W.2d at 539). Neither section 17.50 nor section 17.45 limits the application of the DTPA to deceptive practices committed by persons who furnish the goods or services on which the complaint is based or describes against whom a consumer may bring suit. Cameron, 618 S.W.2d at 540-41. In their second point of error, the appellants argue all that is required to be a consumer under the DTPA is that: (1) they have sought or acquired goods or services for purchase or lease, and (2) those goods or services must form the basis of their complaint. See Sherman Simon Enter., 724 S.W.2d at 15; Tex.Bus. & Com.Code Ann. §§ 17.45(4), 17.50(a). They point out it is undisputed that they acquired the polybutyl-ene plumbing system designed, manufactured, marketed, and sold by U.S. Brass when they purchased their homes, and that the polybutylene plumbing system forms the basis for their complaint. The appellants also rely on the following language in Birchfield v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex.1987): Equally unpersuasive is [the hospital’s] contention that [the infant] Kellie Birch-field was not a consumer within the meaning of the D.T.P.A. A plaintiff establishes her standing as a consumer in terms of her relationship to a transaction, not by a contractual relationship with the defendant. Id. at 368 (citing Flenniken, 661 S.W.2d at 707). U.S. Brass does not contest the consumer status, in general, of the appellants. However, it responds that the appellants are not consumers as to U.S. Brass, pointing to the language in Cameron and Melody Home Mfg. Co. that states a consumer is defined in section 17.45(4) only in terms of a person’s relationship to a transaction in goods or services. Therefore, according to U.S. Brass, because the appellants have no relationship to any transaction with U.S. Brass, they are not consumers with respect to U.S. Brass. U.S. Brass cites in support of its position Taylor v. Burk, 722 S.W.2d 226 (Tex.App.—Amarillo 1986, writ ref'd n.r.e.), where the Amarillo Court of Appeals stated: In this instance, there is no evidence in the record to show that B.O. Burk was con nected with the real estate transaction between Taylor and the Millers. It is undisputed, conclusively established, and admitted to by Taylor that B.O. Burk made no representations to him about the house. In fact, Taylor admitted that he never talked to B.O. Burk about the house when Taylor purchased it from the Millers. Id. at 228-29 (emphasis original). The court concluded that the trial court did not err in granting Burk’s motion for judgment notwithstanding the jury’s verdict that he had violated the DTPA and damaged Taylor. The Amarillo Court of Appeals did not hold that Taylor was not a “consumer,” but it did quote from Cameron in reaching its result. Id. at 228. We disagree with U.S. Brass. We do not believe the Texas Supreme Court has grafted onto the definition of a consumer under the DTPA a requirement that, in order to be a “consumer,” representations must be made directly by the defendant to the plaintiff or that the representations must be made in connection with a transaction between the plaintiff and the defendant. This becomes clear from a careful reading of Flenniken and Cameron. In Flenniken, the Flennikens entered into a contract to have a home built, giving the contractor cash down and signing a mechanics’ lien note. 661 S.W.2d at 706. The note was secured by a deed of trust on the Flen-nikens’ property, which named the bank vice-president as trustee. The contractor assigned the note and contract lien to the bank in exchange for interim financing. The bank made payments to the contractor totaling more than half the note, but the contractor abandoned the project after completing only 20 percent of it. When the Flennikens and the bank failed to agree on what to do with the unfinished house, the bank foreclosed on their property. The Flennikens sued the bank under the DTPA for unconscionable action. Id. The bank did not challenge the jury’s finding of unconscionability, but argued the Flennikens were not consumers because they did not seek or acquire any goods or services from the bank. Id. The supreme court found there was only one transaction — the purchase of a house, and that the Flennikens were consumers to all parties who sought to enjoy the benefits of that transaction, including the bank. Id, at 707. The supreme court stated in Flenniken: Under section 17.50(a)(3), there is no requirement that the defendant’s unconscionable act occur simultaneously with the sale or lease of the goods or services that form the basis of the consumer’s complaint. 661 S.W.2d at 707 (emphasis added). In Cameron, Terrell & Garrett was the real estate agent for the sellers of the home purchased by the Camerons. 618 S.W.2d at 537. Terrell & Garrett made a representation in the MLS guide about the amount of square footage in the house; the Camerons discovered after moving in that the amount was wrong; and the Camerons sued Terrell & Garrett. The trial court rendered a judgment notwithstanding the verdict for Terrell & Garrett; the court of appeals affirmed, holding that the Camerons were not consumers, but otherwise finding there was evidence to support the jury verdict. Id. at 538. The only issue before the supreme court was whether the Camerons were consumers. Id. The supreme court recognized in Cameron “at least two requirements” for a person to qualify as a consumer under the DTPA: (1) a person must have sought or acquired goods or services by purchase or lease; and (2) the goods or services purchased or leased must form the basis of the complaint. Id. at 539. The court overruled several courts of appeals’ opinions, including one from this Court, which had held that a consumer is one who seeks or acquires goods or services furnished, by the defendant Id. The court said: Consumer is defined in section 17.45(4) only in terms of a person’s relationship to a transaction in goods or services. It does not purport to define a consumer in terms of a person’s relationship to the party he is suing. Section 17.45(4) does nothing more than describe the class of persons who can bring a suit for treble damages under section 17.50. It does not say who a consumer can sue under section 17.50 for a deceptive trade practice violation. With respect to whom a consumer can sue, section 17.-50(a)(1), the subsection under which this suit was tried, expressly states that a consumer can bring a suit if he has been adversely affected by “the use or employment by any person of an act or practice declared to be unlawful in section 17.46.” Terrell & Garrett is a person under the Act. We, therefore, hold that a person need not seek or acquire goods or services furnished by the defendant to be a consumer as defined in the DTPA. 618 S.W.2d at 541 (citations omitted) (emphasis original). We have quoted at length from Cameron for the purpose of showing that the supreme court was concerned with explaining that the absence of a relationship between the plaintiff and the defendant in a DTPA ease did not deprive the plaintiff of consumer status. We do not read Cameron as establishing that to be a consumer, in addition to the requirements in section 17.45(4), a plaintiff must have a relationship to a transaction with the defendant. If anything, the supreme court has plainly indicated in Flenniken and Cameron that it will not narrow the definition of “consumer” under section 17.45(4) of the DTPA. See also Kennedy v. Sale, 689 S.W.2d 890, 892 (Tex.1985) (to accept the construction that only direct purchasers can be consumers, would be to read additional or different language into the DTPA, in contravention of its mandate of liberal construction). We find additional support for our conclusion that the appellants are consumers to U.S. Brass by analogy to Knight v. International Harvester Credit Corp., and Holland Mortgage & Investment Corp. v. Bone, 751 S.W.2d 515 (Tex.App.—Houston [1st Dist.] 1987, writ ref'd n.r.e.). Knight and Bone discuss when the extension of credit, which alone is ordinarily not a good or service subject to the provisions of the DTPA, may subject the creditor to a transaction to liability under the DTPA. In Knight, the plaintiff entered into a retail installment contract to purchase a used International Harvester dump truck from a company called Etex. 627 S.W.2d at 383. The transaction was financed by International Harvester Credit (IHCC). Id. at 389. In fact, the contract was drafted by IHCC, bore its logo, and contained a clause assigning the contract to IHCC. Id. The supreme court had no difficulty in finding the plaintiff was a “ ‘consumer’ as to IHCC,” finding the seller of the truck, Etex, and IHCC “so inextricably intertwined in the transaction as to be equally responsible for the conduct of the sale.” Id. Similarly, in Bone, the plaintiffs established some evidence of a “tie-in” relationship between the builder of their home and the lender of the funds to build it. 751 S.W.2d at 518. The builder recommended the lender and arranged for an appointment between the plaintiffs and the lender, and the contract between the builder and the plaintiffs provided for inspections by the lender and completion of the builder’s obligations after the lender’s final inspection. Id. This Court concluded that because there was some evidence of a tie-in relationship between the builder and lender, the trial court did not err in deciding that the plaintiffs were consumers to all parties, the builder and lender, who sought to enjoy the benefits of the sale. Id. A “tie-in” or “inextricable intertwining” between a seller and lender may cause a plaintiff to be a consumer with respect to the financing company as well as to the seller of the goods. See Qantel Business Sys., 761 S.W.2d at 305. In Qantel, the issue was whether the manufacturer (Qantel) of the computer system could be liable for the deceptive practices of its distributor, who settled before trial. The supreme court stated “inextricably intertwined” was not an additional theory of vicarious liability, but might be used to establish equal responsibility for wrongful conduct. We read Qantel as suggesting that if two parties are inextricably linked, in ways other than seller and lender, a plaintiff may be a consumer with respect to both of them. The appellants here did not buy windows, a roof, or a plumbing system. They bought a completed home, ready for move-in. The evidence generally established that the homebuilders contracted with others to furnish and install plumbing systems in the homes; the installers obtained plumbing supplies from the supply houses; manufacturers, like U.S. Brass and Vanguard, sold their plumbing products to the supply houses and advertised the merits of their products to homebuilders, plumbing contractors, and municipal code bodies. There is the same “inextricable intertwining” here that the supreme court and this Court found sufficient to make buyers “consumers” with respect to both the seller and financier of the transactions in Knight and Bone. We sustain the appellants’ second point of error. Therefore, if the trial court granted U.S. Brass’ motion for judgment notwithstanding the verdict based on its “consumer-status test” argument, the trial court erred. However, for a plaintiff to be a “consumer” is no guarantee of recovery under the DTPA. The plaintiff must still establish a deceptive or unconscionable act, which is a producing cause, of actual damages. See, e.g., Qantel Business Sys., Inc., 761 S.W.2d at 305 (reaffirming Guerra); Home Sav. Ass’n v. Guerra, 733 S.W.2d 134, 136 (Tex.1987) (consumer must show that defendant has committed a deceptive act that is the producing cause of the consumer’s damages); Sherman Simon Enter., 724 S.W.2d at 14 (despite plaintiffs consumer status, it failed to recover because defendant had made no misrepresentation); Weitzel v. Barnes, 691 S.W.2d 598, 600 (Tex.1985) (disapproving of dicta in court of appeals decision that DTPA requires proof of “reliance” for recovery; relief for consumers is specified in section 17.50 and the operative words are “producing cause”). We note that in Taylor v. Burk, the Amarillo Court of Appeals never expressly held that Taylor was not a consumer. The Taylor decision is also consistent with the plaintiff, Taylor, failing to establish that Burk (who sold the house to the Millers) made any misrepresentation to him, or that the Millers, from whom Taylor purchased the house, provided any specific information that they had received from Burk. See id. at 227, 228-29. Therefore, we proceed to review the legal sufficiency of the evidence to support the jury’s findings. Legal Sufficiency of the Evidence Typically, in a DTPA cause of action, the plaintiff sues the party who used a false, misleading, or deceptive act against it, breached an express or implied warranty to it, or committed an unconscionable action against it. See, e.g., Birchfield, 747 S.W.2d at 368 (parents’ DTPA cause of action grounded in defendant hospital’s failure to disclose inadequacies in nursery to them); Melody Home Mfg. Co., 741 S.W.2d at 351 (buyers sued company who manufactured and sold to them their mobile home for breach of implied warranty to them); Sherman Simon Enter., 724 S.W.2d at 14 (plaintiff company sued car rental agency for misrepresentation in agreement signed by plaintiffs employee/agent); Chastain v. Koonce, 700 S.W.2d 579, 580 (Tex.1985) (buyers of land sued sellers of land claiming sellers had made misrepresentations and committed an unconscionable action in connection with the transaction); Kennedy, 689 S.W.2d at 891 (insured under a group policy sued insurance agent for misrepresenting preexisting condition coverage to him, although no misrepresentation made to employer); Flenniken, 661 S.W.2d at 706 (property owners sued bank for its unconscionable conduct to them after the contractor who partially built the house and arranged the financing left the scene); Cameron, 618 S.W.2d at 537 (buyer of real estate sued broker for misrepresentation made in MLS guide that buyer read). It is undisputed in this case that the appellants did not see or hear or read any representations from U.S. Brass, and in fact, had no contact with U.S. Brass before or during the purchase of their homes. For three reasons, we do not believe the absence of knowledge of the representations and of contact with the party making them at the time they purchased their homes automatically ends the appellants’ right to recovery under the DTPA. First, in Flenniken, 661 S.W.2d at 707, the supreme court noted that section 17.50(a) contains no requirement that the defendant’s act occur simultaneously with the sale or lease of the goods or services that form the basis of the consumer’s complaint. Second, under Weitzel, 691 S.W.2d at 600, the supreme court disapproved of dicta in the court of appeals decision, which read into the DTPA a requirement of proof of reliance on the misrepresentation before a consumer could recover. The court said that the plaintiffs’ pleading, that the equipment and systems in the home were represented by the defendants as being in accordance with the city’s code when in truth such misrepresentations were false, misleading, and deceptive, was sufficient. Id. According to the court, the operative words under section 17.50(a) were “producing cause.” Id. We understand the dicta in Weitzel to mean the proper inquiry is not the reliance of the consumer, but whether the representations were a producing cause of damage. Third, in Guerra, 733 S.W.2d at 136, the supreme court stated a consumer, under the DTPA, need not establish contractual privity with the defendant, but must show that the defendant has committed a deceptive act that is the producing cause of the consumer’s damages. The supreme court also said that the DTPA does not attach derivative liability to a defendant based on innocent involvement in a business transaction. Both statements have been reiterated by the court in Qantel Business Sys., 761 S.W.2d at 305. In accordance with the dictates of Weitzel and Guerra, we focus on the issue of producing cause. In their third point of error, the appellants contend the trial court erred in disregarding the jury’s affirmative answer to question one and in granting a judgment notwithstanding the verdict because the evidence was legally sufficient to support the answer that U.S. Brass’ false, misleading, or deceptive acts were a producing cause of their damages. In separate charges for each plaintiff, jury question one asked the following, and the jury responded affirmatively for each of the 23 appellants: QUESTION NO. 1 Did any of the parties listed below engage in any false, misleading or deceptive aet(s) or practice(s) that were a producing cause of damages, if any, to [plaintiffs’ names]? The testimony of Manis and Clements and plaintiffs’ exhibits 117, 118, 120, 121, and 122 are some evidence that U.S. Brass made representations to the homebuilders Great American and Fox & Jacobs, about the longevity and lack of susceptibility to corrosion of its polybutylene plumbing system. The testimony of Chudnovsky, Stivala, and Thames is some evidence that such representations were false. There is no evidence whether homebuilders NPC, Genex, or Champion received representations from U.S. Brass. Representatives of homebuild-ers Monarch, Wood Brothers, and Weekley testified that they had no recollection of any promotional literature or representations from U.S. Brass; they recalled the promotional literature and representations of Vanguard and Shell. Either the appellants were not asked any questions about what representations U.S. Brass made to them or what brochures they had seen, or they testified they had not heard or seen any representations from U.S. Brass. A producing cause is an “efficient, exciting, or contributing cause, which in a natural sequence, produces the injuries or damages complained of.” Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 496 (Tex.App.—Houston [1st Dist.] 1992, writ denied); Danny Darby Real Estate, Inc. v. Jacobs, 760 S.W.2d 711, 716 (Tex.App.—Dallas 1988, writ denied); MacDonald v. Texaco, Inc., 713 S.W.2d 203, 205 (Tex.App.—Corpus Christi 1986, no writ). Producing cause has also been described as factual causation. Jacobs, 760 S.W.2d at 716; Hycel, Inc. v. Wittstruck, 690 S.W.2d 914, 922 (Tex.App.—Waco 1985, writ dism’d). There is no evidence that the representations of U.S. Brass caused its fittings and pipe to be used in the appellants’ homes built by Monarch, Wood Brothers, Weekley, NPC, Genex, or Champion. Therefore, there is no evidence that any misrepresentations of U.S. Brass were a producing cause of those appellants’ damages. However, there is some evidence that U.S. Brass’ representations caused its plumbing products to be used in homes built by Great American and Fox & Jacobs. Accordingly, there is some evidence that its representations were a producing cause of damages to the Casiases, the Chris-tensens, the Farrises, the Fishes, John Lang-man, the Loves, and the Reauxes. We sustain the appellants’ third point of error as it relates to the Casiases, the Chris-tensens, the Farrises, the Fishes, John Lang-man, the Loves, and the Reauxes, and overrule it as it relates to the remainder of the 23 appellants. In their fourth point of error, the appellants assert the trial court erred in disregarding the jury’s answer to question 1A and granting a judgment notwithstanding the verdict because the evidence was legally sufficient to support the answer that U.S. Brass engaged in an unconscionable act or course of action that was a producing cause of their damages. In separate charges for each plaintiff, jury question 1A asked the following, and the jury responded affirmatively for each of the 23 appellants: QUESTION NO. 1A Did any of the parties listed below engage in any unconscionable action or course of action that a producing cause of damages, if any, to [plaintiffs’ names]? The DTPA defines an “unconscionable action or course of action” as an act or practice which, to a person’s detriment: (A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or (B) results in a gross disparity between the value received and consideration paid, in a transaction involving transfer of consideration. Brown v. Galleria Area Ford, Inc., 752 S.W.2d 114, 116 (Tex.1988); Chastain, 700 S.W.2d at 582; Tex.Bus. & Com.Code Ann. § 17.45(5)(A), (B) (Vernon 1987). The supreme court has emphasized that the unconscionable action must take advantage of the consumer to a grossly unfair degree, and said that the term “gross” should be given its ordinary meaning of glaringly noticeable, flagrant, complete, and unmitigated. Chastain, 700 S.W.2d at 583. It is not enough that the defendants took un fair advantage of the purchasers, but the advantage must be grossly unfair. Id. at 582. Like “a false, misleading, or deceptive act or practice,” to be actionable, the alleged unconscionable act must be a producing cause of damage. Miller, 648 S.W.2d at 739; Tex.Bus. & Com.Code Ann. § 17.50(a)(3). According to the appellants, the charge to the jury was based on section 17.45(5)(A). The appellants point to the deposition testimony of Gottfried, an employee of Celanese, and Tripp, a former employee of U.S. Brass, to prove the unconscionable action or course of action of U.S. Brass. Gottfried testified that Celanese had always recommended to its customers that they make a prototype part and check it under the severest conditions expected in end use to ensure against premature failure. He said that Celanese had recommended Celcon to U.S. Brass for application in the plumbing system, provided Celanese’s recommendations having to do with design and molding techniques were followed. According to Gottfried, his major recommendation to U.S. Brass, found in a report of June 1982, was always to round the sharp internal corners to prevent the possibility of breakage in those corners. Gottfried testified it was his impression that U.S. Brass was not responsive to Celanese’s recommendations concerning molding techniques. Tripp was a product development specialist for U.S. Brass in a seven-state area on the west coast from December 1980 to April 1983. Texas was not in his area. Among other things, he inspected the work plumbers were doing in the field. He testified that as time went on he was continually seeing problems. He said the main types of failures were: (1) the pipe pulling off of the fitting with the ring intact, (2) the ring snapping or fracturing, and (3) the actual barb coming out of the fitting. He felt the failure of the fittings was excessive, and felt there was a discrepancy between what the company taught him about the product and what he was seeing in the field. At one point, Tripp sent a report dated January 18, 1982, to his supervisors summarizing what he was seeing and questioning the system. He testified he got a telephone call from someone who worked under his supervisor telling him to destroy the last couple pages of the report. Tripp also stated that in one instance, in Visaba, California, he found bags of “T” fittings that had been sent from the factory with one side of the “T” fitting being too small. U.S. Brass made arrangements to take the bags back and replace them with good parts. Tripp testified that he saw a lot of “sloppy” plumbing jobs, and it was obvious what was causing the problem. He also saw good plumbing jobs, yet there were stib leaks. From the testimony of Gottfried and Tripp, U.S. Brass’ alleged unconscionable action or course of action consisted of being nonresponsive to Celanese’s recommendation to round the sharp internal corners of fittings, sending defective fittings to Visaba, California, and attempting to destroy the last page of Tripp’s report, which stated that enormous problems stib needed to be overcome and recommended a serious research and development program to perfect U.S. Brass’ fittings, tools, and rings. There is no evidence that “sharp internal corners” or defective fittings sent to Visalia were a producing cause of the leaks in the appellants’ plumbing system. Tripp’s report summarized a meeting he had in California on January 13, 1982, with Lange Plumbing Supply, a supply house, Budget Homes, a builder, and Ward Plumbing, a plumbing contractor for Budget. There were two agenda items: two recent plumbing failures in Budget homes and reimbursement to Lange for defective plumbing parts. Budget and Ward brought in eight fittings that had recently failed. The fittings were from either two homes or three homes. Budget’s concern was not reimbursement from U.S. Brass, but identification of the problem and how to correct it to avoid future failures. Ward had installed Qest plumbing systems in approximately 140 homes, and the problems were limited to 10 or 15 of those homes, mostly in one tract. Tripp took some measurements of the broken fittings, and from a visual inspection concluded there might be four factors influencing the failures. One of those, ribs on the barb not deep enough, had already been addressed by U.S. Brass deepening the ribs. Two of those related to the tool not being properly adjusted, either as a result of plumber error or a problem in tool design or instructions. Some of the failures involved unannealed rings, which recently U.S. Brass had stopped using in favor of annealed rings. The report does not discuss the status of the defective plumbing parts returned by Lange some 10 months previously, but it does discuss Lange’s stock of some 15,000 fittings and annealed rings, which Lange had purchased two years before. Tripp recommended U.S. Brass accept these back in exchange for new material. The record does not show what action U.S. Brass took in response to Tripp’s recommendation. Taken as a whole, Tripp’s report of events in California provides no evidence that such events were a producing cause of damage to the appellants, or that U.S. Brass took advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree, thereby committing an unconscionable action. We overrule the appellants’ fourth point of error. We have found the appellants are consumers and, therefore, sustained their second point of error. Because we have concluded there was no evidence that any unconscionable act of U.S. Brass was a producing cause of damage to the appellants and, therefore, overruled their fourth point of error; and because we have concluded there was no evidence that any false, misleading, or deceptive act of U.S. Brass was a producing cause of damage to 16 of the appellants and, therefore, sustained their third point of error for only seven of the appellants, we hold the trial court properly granted a judgment notwithstanding the verdict against 16 of the appellants: the Barretts, the Bengstons, the Ben-netts, Pauline Borski, the Cantus, the Dingles, the Ditgeses, the Jacksons, the Jacobs-es, the Pops, the Rileys, Jeffrey Schultz, the Sisks, the Stanfills, Terdin and Sykora, and the Turners. The trial court erred in granting a judgment notwithstanding the verdict against seven of the appellants, the Casiases, the Christensens, the Farrises, the Fishes, John Langman, the Loves, and the Reauxes on their DTPA cause of action. The appellants’ first point of error summarizes the jury’s answers to questions one through six, sets forth the standard of review for a JNOV, and concludes without record references or argument that the evidence was substantial to support the jury’s findings. We do not consider it. Tex.R.App.P. 74(d), (f). In any event, its substance is addressed in our previous discussion of points of error two, three, and four and our discussion below of the cross-points of U.S. Brass. We also do not consider the appellants’ points of error five, seven, eight, nine, and 10 because the trial court did not grant the judgment notwithstanding the verdict based on no evidence to support the jury’s responses to questions two, three, four, five, and six. Where appropriate in response to U.S. Brass’ cross-points, we will consider the appellants’ points of error as reply points. Mandatory Treble Damages In their sixth point of error, the appellants contend the trial court erred in failing to automatically treble the appellants’ actual damages under the DTPA because the 1977 version of the DTPA applied as a matter of law. We consider this point of error because we have found it was error to grant a judgment notwithstanding the verdict against seven of the appellants. In 1977, section 17.50(b) read in part as follows: (b) In a suit filed under this section, each consumer who prevails may obtain: (1) three times the amount of actual damages plus court costs and attorneys’ fees reasonable in relation to the amount of work expended.... Act of May 21, 1973, 63rd Leg., R.S., ch. 143, § 1, 1973 Tex.Gen.Laws 322, 327 (emphasis added). This section was amended in 1979, effective August 27, 1979, to read as follows: (b) In a suit filed under this section, each consumer who prevails may obtain: (1) the amount of actual damages found by the trier of fact. In addition the court shall award two times that portion of the actual damages that does not exceed $1000. If the trier of fact finds that the conduct of the defendant was committed knowingly, the trier of fact may award not more than three times the amount of actual damages in excess of $1000.... Tex.Bus. & Com.Code Ann. § 17.50(b)(1) (Vernon Supp.1993) (emphasis added). The new wording applied prospectively only. It did not affect, procedurally or substantively, a cause of action that arose in whole or in part before August 27, 1979. It is clear that before August 27, 1979, it was mandatory that a recovering plaintiff receive the award of treble damages. Woods v. Littleton, 554 S.W.2d 662, 671 (Tex.1977). For causes of action arising after that date, the trier of fact, in its discretion, could award additional damages not to exceed three times the amount of actual damages awarded in excess of $1,000, if it found the defendant’s violations were committed knowingly. Martin v. McKee Realtors, Inc., 663 S.W.2d 446, 447 (Tex.1984). In their brief, the appellants assert, without reference to the record, that the representations and unconscionable acts or course of action by U.S. Brass concerning the polybutylene plumbing system began before August 27, 1979, the effective date of the 1979 amendments to the DTPA. They do not refer us to any evidence in the record in support of this assertion. Therefore, we need not consider their point of error. Saldana v. Garcia, 285 S.W.2d 197, 200-201 (Tex.1955). Furthermore, our review of the record shows that the earliest date of a representation was PX 120, the Qest catalog dated June 1, 1979. There is no evidence that home-builders or the Houston Plumbing Council saw this catalog before August 27, 1979. All of the appellants negotiated for and purchased their homes with the polybutylene plumbing systems in the 1980’s, and could not have had a cause of action against U.S. Brass, the manufacturer of the plumbing system about which they complain, before then. We overrule the appellants’ sixth point of error. The Colon-Pomales, Patterson, Thumanns, & Yeateses Appellants In their eleventh point of error, the appellants assert the trial court erred in granting U.S. Brass’ motion for judgment on the verdict with respect to Colon-Pomales, Patterson, the Thumanns, and the Yeateses because the evidence conclusively proved as a matter of law that U.S. Brass violated the DTPA. The jury answered “no” to questions one and 1A, which asked if U.S. Brass engaged in any misrepresentations or unconscionable actions that were a producing cause of damage to Colon-Pomales, Patterson, the Thumanns, or the Yeateses. The appellants filed a motion for judgment notwithstanding the verdict on Colon-Pomales and the Thu-manns. They filed no postjudgment motions on Patterson or the Yeateses, nor did they in any way object to judgment against Patterson or the Yeateses in accordance with the jury’s verdict, nor did they object to U.S. Brass’ motion for judgment on the verdict with respect to Colon-Pomales, Patterson, the Thumanns, or the Yeateses. Accordingly, error has not been preserved concerning Patterson and the Yeateses. Tex.R.App.P. 52(a), 74(d). We address the appellants’ argument only as it concerns Colon-Pomales and the Thumanns. When an appellant attacks the legal sufficiency of an adverse finding to an issue on which it had the burden of proof, we first examine the record for evidence supporting the jury finding, while ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). Second, if there is no evidence t