Bavarian Autohaus, Inc. v. Holland

• Decision Date: 20 July 1978
• Docket Number: No. 17124,17124
• Parties: BAVARIAN AUTOHAUS, INC., et al., Appellants, v. David C. HOLLAND, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 110

570 S.W.2d 110

BAVARIAN AUTOHAUS, INC., et al., Appellants, v. David C. HOLLAND, Appellee.

No. 17124.

Court of Civil Appeals of Texas, Houston (1st Dist.).

July 20, 1978.

Barlow, Lacy, Smith & Pollard, John H. Harris, Houston, for appellant Bavarian Autohaus, Inc.

Orgain, Bell & Tucker, Paul W. Gertz, Beaumont, for appellant BMW of North America, Inc.

David C. Holland, pro se.

PEDEN, Justice.

Bavarian Autohaus, Inc. and BMW of North America, Inc. (BMW) appeal by writ of error from a default judgment in favor of David Holland, who claimed unliquidated damages under the Deceptive Trade Practices and Consumer Protection Act (Tex.Bus. & Com.Code, Chapter 17) as a result of the defendants' alleged misrepresentations concerning the quality of their automobiles and their repair service. The trial court heard testimony on the plaintiff's damages and entered a judgment of $5,000 plus costs against the defendants jointly and severally. Bavarian Autohaus asserts error in the trial court's finding that citation was served on it, and both appellants contend that the plaintiff did not offer adequate proof of damages. The appellee has not responded. We reverse and remand.

Mr. Holland alleged in his petition that in March of 1974 he bought a used 1973 BMW Bavaria automobile from an individual. It had been driven 12,000 miles and was in excellent overall condition. Bavarian Autohaus, an authorized sales and service dealership for BMW, performed normal service work requested by plaintiff in September of 1974 and charged $169.57 for it. Four months later, when the car's odometer showed 25,425 miles, Holland consigned it to a used car dealer who located a purchaser willing to pay $6,950 if its engine could be made to operate smoothly and properly. Holland took the car to Bavarian Autohaus and was charged $138.35, but the rough running condition was not corrected, and the prospective purchaser cancelled the sale. In February of 1975, appellee returned the car to Bavarian Autohaus for the same problem. It kept the car until June 18, 1975, did not repair the malfunction and charged Holland $78.00. The fourth time Holland returned the car to Bavarian Autohaus, no work was done and no charges were made, but it kept the car from July 21 through November of 1975.

Appellee further alleged that the automobile's exterior paint began to crack and peel in early 1975, and although he asked the appellants to rectify this condition, they took no action.

During the time in question, BMW advertised itself as the importer of very high quality automobiles and encouraged the owners of its cars to have their service work performed exclusively at its factory authorized facilities such as Bavarian Autohaus. This authorization was designed to create an impression on the owners of BMW cars that the mechanics at Bavarian Autohaus were trained at the BMW factory and that the service they gave was of the highest possible calibre. Despite its allegations of highest quality service, Bavarian Autohaus was unable to repair the malfunction in his car on any of its four efforts to do so; "Bavarian Autohaus thus misrepresented to plaintiff its expertise in the area of BMW service and in fact, performed the work in a substandard manner." Holland pleaded that the defendants represented that the services they offered to the public, and to the plaintiff in particular, were of a particular standard, quality, or grade, when in fact they were of another, as expressly prohibited by Sec. 17.46(A )(7) of the Texas Business and Commerce Code, V.T.C.A. (should be Sec. 17.46(B )(7) of the Code).

Plaintiff's petition also alleged that BMW misrepresented that its cars were free from manufacturing defects that were incurable by its own service agents.

The petition stated that the automobile had been diminished in value by the defendants' misrepresentations; their failure or inability to properly repair its engine and paint prevented his selling it at an agreed price of $6,950, and its current market value is approximately $4,500. "Plaintiff claims the approximately $2,450 difference between the agreed sale price in 1975 and the current market as his measure of damages and further asserts his right under Sec. 17.50(b)(1) of the Texas Bus. & Com.Code, V.T.C.A., to treble damages, court costs and reasonable attorney's fees." He also prayed for general relief.

Bavarian Autohaus argues under its first eight points of error that the default judgment should be set aside because the record does not affirmatively show that citation was properly served upon it. Ordinarily, presumptions are made in support of due service when it is recited in the judgment but not when a direct attack is made upon a default judgment. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex.1965). In that case, jurisdiction must affirmatively appear on the face of the record. Flynt v. City of Kingsville,125 Tex. 510, 82 S.W.2d 934 (1935).

The citation recites that it was to be issued to Bavarian Autohaus, Inc., a Texas corporation, by serving its agent, Charles Vann. The original sheriff's return states that it was delivered to "Clint Hughes V. Pres."

The amended return states:

"Received this writ on the 3 day of FEB, 1977, at 10:49 o'clock A.M., and executed the same in Harris County Texas, on the 9 day of FEB, 1977, at 2:50 o'clock P.M., by summoning the BAVARIAN AUTOHAUS, INC., a corporation by delivering to Clint Hughes, in person Vice President of the said Corporation a true copy of this writ, together with accompanying certified copy plaintiff's original petition."

The amended return relates back and is regarded as filed when the original return was filed. Lafleaur v. Switzer, 109 S.W.2d 239, 241 (Tex.Civ.App.1937, no writ); Nash v. Boyd, 225 S.W.2d 649 (Tex.Civ.App.1949, no writ); 2 McDonald Texas Civil Practice 406, § 9.19 (1970).

Article 2.11 of the Texas Business Corporation Act makes the president, all vice presidents and the registered agent of a corporation agents for service of process. The original officer's return did not state that Bavarian Autohaus was served by serving "Clint Hughes V. Pres." It did not recite, as it must, that process was delivered to the defendant, Bavarian Autohaus, through its named agent. Brown-McKee, Inc. v. J. F. Bryan & Associates, 522 S.W.2d 958, 959 (Tex.Civ.App.1975, no writ); Firman Leather Goods Corp. v. McDonald & Shaw, 217 S.W.2d 137, 140 (Tex.Civ.App.1948, no writ).

This original return was fatally defective, but the appellee procured an amended return sometime prior to the day of the hearing. Rule 118, Texas Rules of Civil Procedure, provides:

"At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued."

When this case was before the trial judge for assessment of damages, he noted that the court file did not show service of citation on Bavarian Autohaus, whereupon the appellee produced the amended return described above from his file and related that his secretary had taken it to the constable's office for correction. Further discussion followed, outside the hearing of the court reporter.

It is obvious that the trial court allowed the amended return to be filed before entering judgment next day. Although the statement of facts does not show that the provisions of Rule 118 were specifically invoked in the trial court, it appears that they were complied with. Bavarian Autohaus has not asserted that it was misled by the earlier return on the citation. We cannot say the trial court erred in allowing the already-amended return to be filed or in not requiring that notice of the amendment be given to Bavarian Autohaus.

Bavarian Autohaus argues that the amended return fails to comply with Rule 107, Texas Rules of Civil Procedure, because it does not show the manner of service. More specifically, Bavarian Autohaus asserts that the use of the words "writ" and "summoning" in the return render it defective, pointing out that "writ" was used prior to the adoption of the Rules of Civil Procedure and is still being used when referring to citations. See 2 McDonald, Texas Civil Practice 398, § 9.16 (1970). A return should be given a fair, reasonable and natural construction to its plain intent and meaning. Brown-McKee, Inc. v. J. F. Bryan & Associates, 522 S.W.2d 958, 959 (Tex.Civ.App.1975, no writ). In our case the citation was directed by the clerk to the defendant; it referred both to service of "this citation" and to service of "this writ." We hold that the return in this case fairly states the manner of service as required by Rule 107.

Bavarian Autohaus' ninth point asserts error in the court's entry of a default judgment without adequate proof of damages. BMW's first three points contend that the record contains no evidence or insufficient evidence to support a finding of damages regardless of the measure used. In point of error four, BMW argues that there is no evidence to support the judgment if the measure applied is the difference between the value of the automobile accepted and the value of the automobile if it had been as warranted. BMW's point 5 contends that the evidence is insufficient to support a finding on diminution in value from the date of purchase to the date of the hearing. Points six and seven state that the record contains no evidence or insufficient evidence to show that any repairs were reasonable and necessary. Appellant BMW argues in its...