dissenting.
I respectfully dissent in that I would affirm the judgment rendered for PPG in this cause. Basically, I agree with the reasoning in the majority opinion but have to disagree with the disposition of appellant’s point of error ten. In the first place, Flenniken v. Longview Bank and Trust Company, 661 S.W.2d 705 (Tex.1983) effectively disposes of the Fina argument that, as no transfer of consideration occurred between Fina and PPG, Fina could not have engaged in unconscionable conduct. The majority opinion concludes that there was no gross disparity between value received and consideration paid. I disagree. According to the evidence PPG paid Ayres Oil $1,080,000 in 1977 for the purchase of three million gallons of diesel fuel. Ayres Oil in turn paid Fina $1,039,500 for the purchase of three million gallons of diesel fuel. PPG requested delivery of the fuel in 1981. Fina refused to deliver. The jury also had before them an interoffice memo from Robert Low, vice president of Fina, to P.D. Meek, president of Fina. That memo stated:
Basically, we’ve had the use of the customer’s $1 million for four years, and now they want to take their product (which we’ve also had the use of for that time.)
Under the definition of unconscionable conduct, the jury had sufficient evidence before them to find that a gross disparity resulted between the value received and the consideration paid. Miller v. Soliz, 648 S.W.2d 734 (Tex.App.—Corpus Christi 1983, no writ); R.S. Assoc. Gen. Bldg. Contractors v. Devona, 610 S.W.2d 190 (Tex.Civ.App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.). Appellant’s tenth point of error should be overruled in light of TEX. BUS. & COM.CODE ANN. sec. 17.44 (Vernon Supp.1984), which requires that the Act be:
[LJiberally construed and applied to promote its underlying purposes, which are to protect consumers against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty and to provide efficient and economical procedures to secure such protection.
Point of error ten should be overruled.
We turn now to the points of error regarding damages under the DTPA. In their eleventh and twelfth points of error, Fina complains that there was no finding of actual damages on the part of PPG by the jury. In its charge, the court submitted five different dates and asked the jury to find the fair market value of diesel fuel on those dates. We fail to see the reason for submitting five different dates. The court then entered its judgment awarding $3,240,000 actual damages. It appears that the trial court simply multiplied $1.08 (the fair market value found by the jury on October 1, 1981) by 3 million (the number of gallons PPG purchased).
Fina complains that the issues as submitted were evidentiary. The parties are also in dispute as to what the proper measure of damages is under the DTPA.
The proper measure of damages to be assessed is a question of law for the court. Johnson v. Willis, 596 S.W.2d 256 (Tex.Civ.App.—Waco), writ ref'd n.r.e. per curiam, 603 S.W.2d 828 (Tex.1980). The court stated in its judgment that it was awarding PPG the benefit of their purchase.
Section 17.50 of the DTPA allows recovery of the amount of actual damages found by the trier of fact. Actual damages has been defined as those damages which are *761recoverable at common law. Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980). The courts have interpreted sec. 17.50 as allowing recovery of the greatest amount of actual damages pled and proven. Johnson v. Willis, 596 S.W.2d at 263; Woo v. Great Southwestern Acceptance Corp., 565 S.W.2d 290 (Tex.Civ.App.—Waco 1978, writ ref’d n.r.e.).
Here the greatest amount of damages would be the loss of the benefit of their bargain. All but one of the facts necessary to determine the amount of damages were uncontroverted and found by the court. The only fact remaining to be found was the fair market value of the fuel on the date the breach occurred. Therefore, asking the jury to find fair market value of the fuel was not an evidentiary issue. Under TEX.R.CIV.P. 279, only controlling issues are to be submitted to the jury. Since the fair market value was the only fact undetermined it was not necessary to frame the issue in terms of what amount of money, if any, would fairly and reasonably compensate plaintiffs for their actual damages.
The trial court made the finding in its judgment that the date the fuel was requested and delivery was refused was October 1, 1981. In their reply brief, Fina argues that the use of the fair market value on October 1 was improper because the uncontroverted evidence shows that PPG first learned of Fina’s refusal to deliver on September 18, 1981. PPG did not submit any issue which asked the jury to determine when PPG learned of the breach. The only issue submitted asked:
Do you find that it was on or about September 18, 1981, that Ayres first learned of Fina’s refusal to deliver the diesel fuel referred to in the contract between Ayres and Fina dated September 1, 1977?
The evidence at trial showed that in September 1981, PPG inquired into the delivery of 1.4 million gallons of fuel. On or about September 18, 1981, PPG learned from Ayres Oil that the fuel would not be made available. On October 1, 1981, PPG, Ayres Oil and Fina met face to face. Fina was requested to deliver the full three million gallons of fuel and delivery was refused by Fina. The evidence supports the court’s finding that all the fuel was requested and delivery refused on October 1, 1981. The eleventh and twelfth points of error should have been overruled.
I agree with the majority opinion that the argument complained of in point of error thirty-two was improper and should not have been made. I do not condone the attacks made upon the professional ethics of counsel on the other side of a lawsuit.
We cannot presume, however, that the improper argument was harmful. In Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex.1979), the Supreme Court set out the factors to be considered in determining harm from improper jury argument. The complainant must show:
(1) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the- argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine
(2) the argument’s probable effect on a material finding.
(3) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.
In view of my opinion on appellant’s other points of error and my review of the entire record I do not find the argument to be reversible error. PPG presented sufficient evidence that entitled it to some sort of recovery from Fina and the probabilities are that the jury would have reached its *762same conclusion on liability from the evidence without regard to PPG’s argument.
The judgment granted in favor of PPG should be affirmed.
I do not disagree with the majority opinion in its reversal of the Ayres suit against Fina.