dissenting opinion on motion for rehearing.
I respectfully dissent. In reversing the judgment of the court of appeals, the court relies solely on its holding that there is some evidence to support the jury’s finding that Galleria Area Ford, Inc. (Galleria) engaged in an unconscionable act or course of action. The court ignores the fact, however, that Galleria also challenged the trial court’s express findings on producing cause. Because there is no evidence to support any of the trial court’s express findings on producing cause, I would affirm the judgment of the court of appeals.
In response to issues, the jury found that Galleria knowingly made three misrepresentations regarding its repair services and engaged in an unconscionable act or course of action in the repair of the Browns’ truck. The Browns failed to submit any issues on producing cause to the jury, but no objection was made by Galleria. Upon the Browns’ motion, the trial court made express findings pursuant to TEX.R.CIV.P. 279 that Galleria’s acts in violation of section 17.46 of the Deceptive Trade Practices Act were a producing cause of the Browns’ damages. Rule 279 allows the trial court to make express findings on omitted elements of an independent ground of recovery when “there is sufficient evidence to support a finding thereon.” Thus, even assuming that there is some evidence in the record to support the jury’s finding that Galleria engaged in an unconscionable act or course of action in the repairs of the Browns’ truck, there must also be some evidence in the record to support the trial court’s express finding that this violation of the DTPA was a producing cause of the Browns’ damages under Rule 279. See Hawes v. Central Texas Production Credit Ass’n, 503 S.W.2d 234, 236 (Tex.1973); Rodriguez v. Higginbotham-Bailey-Logan Co., 172 S.W.2d 991, 993 (Tex.Civ.App.—San Antonio 1983, writ ref’d).
Although not ruled on by the court of appeals, Galleria challenged the trial court’s express findings on producing cause by point of error in its brief before that court. This court may refer to those points not passed on by the court of appeals to determine whether the court of appeals’ judgment could be affirmed on some other basis. McKelvy v. Barber, 381 S.W.2d 59, 64 (Tex.1964).
In reversing the court of appeals’ judgment, the court holds that unrebutted evidence of a gross disparity between the value received and the consideration paid for the repair of the Browns’ truck supports the jury’s finding that Galleria engaged in an unconscionable act or course of action. It also holds that Galleria’s failure to apprise the Browns of the internal working relationship and agreements that allocated responsibility and liability between Galleria and LaMarque is some evidence that the Browns were taken advantage of to a grossly unfair degree. Assuming such evidence is sufficient to show that Galleria (as opposed to LaMarque or the three promoters of Galleria) violated the DTPA, this in no way presents any evidence that these acts constituted a producing cause of the Browns’ basis for complaint — the substandard repair of their truck. There is absolutely no nexus between what Galleria purportedly did (deceive the Browns into believing LaMarque was really Galleria) and the damages which the Browns seek (poor repair). No evidence was presented that Galleria itself performed any of the repair work, nor is there the slightest indication that the Browns would have taken the truck elsewhere for repairs had they been aware that Galleria was, in fact, still LaM-arque.
*118A different situation would be presented, for example, if Galleria’s alleged deception caused the Browns to sue the wrong party, thereby causing the statute of limitations to run on their claim against LaMarque. In that event, the deceptive act is a producing cause of damages. In the instant case, however, the Browns did not allege or prove any damages which resulted from their confusion concerning the identity of the defendants.
Not only is there no evidence to support the trial court’s express finding that Galleria’s unconscionable act or course of action was a producing cause of the Browns’ damages, but also there is no evidence to support jury’s findings of misrepresentation or the trial court’s express findings of producing cause as to the other three DTPA violations. In response to issues, the jury found that Galleria knowingly represented its repair services: (1) had characteristics or benefits which they did not have; (2) were of a particular standard when they were of another; and (3) would restore the Browns’ truck to its preaccident condition and then did not in fact do so. After carefully reviewing the record, I simply cannot find any evidence to support these jury findings. No evidence was presented that any agent or employee of Galleria made representations regarding the repair of the Browns’ truck. Furthermore, even assuming such representations were made, no evidence exists to support the trial court’s express findings of producing cause for the reasons stated previously herein.
The Browns also contend that the jury’s affirmative findings of DTPA violations as to LaMarque are imputable to Galleria on the theory that LaMarque and Galleria are “inextricably interwined.” Even assuming this theory is applicable under the facts of this case, this theory of liability was not raised before the trial court, nor were any findings obtained. Failure to submit this independent ground of recovery constitutes waiver on appeal. TEX.R.CIV.P. 279.
Because there is no evidence to support any of the trial court’s express findings of producing cause or the jury’s findings of misrepresentation, I would affirm the court of appeals’ judgment.
WALLACE, GONZALEZ and CULVER, JJ., join in this dissenting opinion.