709 Fed.Appx. 263 (5th Cir. 2017), 16-10166, Becker v. Continental Motors, Inc.

Docket Nº:16-10166
Citation:709 Fed.Appx. 263
Opinion Judge:PER CURIAM:
Party Name:Ronald G. BECKER, Plaintiff-Appellee v. CONTINENTAL MOTORS, INCORPORATED, Defendant-Appellant
Attorney:George William Vie, III, Mills Shirley, L.L.P., Galveston, TX, Christopher Guy Lyster, Lacy Lyster Malone & Steppick, P.L.L.C., for Plaintiff-Apellee Steven Dominic Sanfelippo, Michael Ross Cunningham, Esq., Cunningham Swaim, L.L.P, Dallas, TX, Geffrey W. Anderson, Anderson & Riddle, L.L.P., Fort...
Judge Panel:Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge.
Case Date:October 03, 2017
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 263

709 Fed.Appx. 263 (5th Cir. 2017)

Ronald G. BECKER, Plaintiff-Appellee

v.

CONTINENTAL MOTORS, INCORPORATED, Defendant-Appellant

No. 16-10166

United States Court of Appeals, Fifth Circuit

October 3, 2017

UNPUBLISHED

Editorial Note:

Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.

Page 264

Appeal from the United States District Court for the Northern District of Texas, USDC No. 4:13-CV-520

George William Vie, III, Mills Shirley, L.L.P., Galveston, TX, Christopher Guy Lyster, Lacy Lyster Malone & Steppick, P.L.L.C., for Plaintiff-Apellee

Steven Dominic Sanfelippo, Michael Ross Cunningham, Esq., Cunningham Swaim, L.L.P, Dallas, TX, Geffrey W. Anderson, Anderson & Riddle, L.L.P., Fort Worth, TX, Defendant-Appellant

Before JONES and OWEN, Circuit Judges, and ENGELHARDT,[*] District Judge.

Opinion

PER CURIAM: [**]

Ronald Becker filed this suit against Continental Motors, Inc. ("Continental" ), alleging breach of express warranty and violations of the Texas Deceptive Trade Practices Act ("DTPA" ) in relation to an allegedly defective engine that Becker purchased for his private aircraft. By the parties’ consent, a magistrate judge tried the case and found for Becker, granting him damages, attorneys’ fees, and a declaratory judgment. Although we AFFIRM the magistrate judge’s declaratory judgment as to the existence of a defect, we REVERSE the conclusions that Continental breached its express warranty or violated the DTPA. We therefore also REVERSE the award of attorneys’ fees.

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BACKGROUND

Becker, a resident and citizen of Texas, purchased a new aircraft engine from Continental, a Delaware corporation with its principal place of business in Alabama. Becker purchased Continental’s engine based in part on the engine and cylinder warranties that accompanied the purchase. The engine warranty provided that Continental would at its option repair or replace on an exchange basis any engine, component or part manufactured or supplied by it which ... is returned to a [Continental] representative authorized to handle the engine covered by this warranty and which upon examination is found to the satisfaction of [Continental] to be defective in material or workmanship....

The warranty continued: [Continental] will pay for reasonable labor costs associated with repairs or replacements ... and for "troubleshooting" costs associated with identifying the need for such repairs or replacements, when coordinated through an authorized [Continental] representative.

The cylinder warranty was materially indistinguishable.

Becker had the engine installed by Stephen Sherman, an experienced aircraft mechanic at Dugosh Aircraft Service Company ("Dugosh" ), who installed the engine in accordance with Continental’s instructions and specifications. Becker flew the aircraft with the new engine for a total of 336.5 hours over seventeen months— within the warranty period— before taking the aircraft back to Dugosh for routine maintenance. While at Dugosh for the maintenance, Becker informed Sherman that he believed the engine had a high oil consumption rate.

Sherman reported the oil issue to Roger Gradle, Continental’s Warranty Administrator, who instructed Sherman to complete and submit a warranty claim, which Sherman did. Continental then asked Sherman to remove the cylinders from the engine and send them to G&N Aircraft, Inc. ("G&N" ). G&N was authorized by Continental to inspect and repair the cylinders pursuant to the warranty. G&N inspected and overhauled the cylinders, and the magistrate judge found that G&N "rejected some of the parts/materials contained in the Cylinders, specifically the exhaust guides." G&N’s work order reflected that the work was done pursuant to Continental’s warranties, and Continental paid for the work. G&N returned the cylinders to Dugosh, who reinstalled them.

The oil issue not only persisted, but worsened. The magistrate judge found that Sherman at Dugosh properly reinstalled the cylinders on the engine, though Continental contends that Sherman did not follow the proper "break in" procedure to ensure "that adequate lubrication [was] being provided to newly installed components and that the piston ring seating [would] occur as soon as possible." Continental contends that Sherman did not properly perform the "ground phase" of the break-in procedure by failing to "cowl" the engine and did not attempt the "test flight" phase. Sherman did not perform the test flight portion because he determined the plane was not airworthy.

Sherman and Continental continued to troubleshoot the issue, and Gradle again instructed Sherman to return the cylinders to G&N for further inspection or repair. G&N was again authorized by Continental to inspect and repair the cylinders, and Continental again paid G&N for the work pursuant to the warranties. After performing inspection and maintenance work, G&N returned the cylinders to Dugosh.

Sherman reinstalled the cylinders, but the problems persisted. Sherman again refused

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Gradle’s suggestion to break in the cylinders by flying the plane because he considered the plane not airworthy. Sherman did, however, perform a ground run to simulate flights.

About four months after Becker reported the oil problem to Sherman, Gradle called Becker and, in a voicemail, requested that Becker return the engine to Continentals factory in Alabama. After Becker later responded that returning the engine seemed like a "path forward," Gradle informed Becker that he would need to sign a work order authorizing Continental to do work on the engine. This conversation concerned Becker because it indicated that the engine issues might not be...

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