Bossier Chrysler Dodge II v. Rauschenberg
| Decision Date | 14 June 2006 |
| Docket Number | No. 10-05-00140-CV.,10-05-00140-CV. |
| Citation | 201 S.W.3d 787 |
| Parties | BOSSIER CHRYSLER DODGE II, INC., d/b/a Bossier Country, Appellant, v. Bryan RAUSCHENBERG, Appellee. |
| Court | Texas Court of Appeals |
J. Bruce Bennett, Cardwell Hart & Bennett LLP, William R. Crocker, Austin, for Appellant.
Brandon Belt, Gatesville, for Appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
Bryan Rauschenberg filed suit against Bossier Chrysler Dodge II, Inc. dba Bossier Country alleging DTPA violations, breach of express and implied warranties, and breach of contract, all arising from his purchase of a diesel pickup from Bossier Country. A jury found in favor of Rauschenberg and awarded actual damages of $8,412, additional damages of $5,000, and attorney's fees. Bossier Country presents thirteen issues for review. We will affirm in part, reverse and render in part, and suggest a remittitur.
Bossier Country contends in its issues that:
• Rauschenberg lacks standing or is not entitled to recover in his individual capacity;
• there is no evidence or factually insufficient evidence to support the jury's award for (a) lost profits, (b) loss of use of the truck, (c) the reasonable value of Rauschenberg's time attempting to correct the problems with the repair of the truck, and (d) out-of-pocket expenses; (four issues)
• there is no evidence or factually insufficient evidence that Bossier Country engaged in the deceptive trade practices alleged;
• Rauschenberg disclaimed all warranties as a matter of law;
• there is no evidence or factually insufficient evidence that Bossier City failed to comply with any express or implied warranty;
• there is no evidence or factually insufficient evidence that Bossier City intentionally or knowingly engaged in the deceptive trade practices alleged; (two issues);
• there is no evidence or factually insufficient evidence to support the jury's award of additional damages • Rauschenberg is not entitled to attorney's fees because he failed to prove the alleged DTPA violations; and
• the attorney's fee award must be modified because there is no evidence or factually insufficient evidence to prove all or part of the damages awarded.
Rauschenberg purchased a 2001 Dodge 3500 diesel pickup from Bossier Country in May 2000. He also purchased an extended service contract for the pickup which provided some coverages for up to 60 months or 100,000 miles.1
Rauschenberg bought the truck for his son Kelly to use in a "hot-shotting" business.2 Rauschenberg made the monthly payments on the truck with money Kelly gave him from hot-shotting receipts.3 They agreed that Kelly would keep all monthly net receipts above and beyond the monthly truck payment until Kelly had satisfied some other debts he owed. After that, they intended to share the net receipts equally.
The truck worked well for them with relatively few problems until November 2000. During a delivery to North Carolina, Kelly noticed that the pickup was using an excessive amount of oil. He took it to a dealership in Alabama where it was determined that the front seal was leaking. Kelly returned to Texas, checking and replenishing the oil regularly along the way as recommended. Kelly then took the pickup to Bossier Country for repair. A Bossier Country mechanic concluded that the problem lay with the turbocharger. After consulting with the engine manufacturer, the mechanic replaced the turbocharger and other parts and completed the job six days after Kelly brought the pickup in.
Rauschenberg testified that the pickup still had an oil leak when he brought it home and that it could not pull a trailer. He returned the pickup to Bossier Country on December 26 complaining that it had an oil leak and an engine knock, was blowing blue smoke, and was getting "5 mph loaded — 10 empty."4 Bossier Country replaced the injector pump and recommended that the fuel system be flushed because it was dirty. The mechanic's handwritten notes indicate that oil on the front of the motor was from the breather trap, which needed cleaning. However, there is nothing in the service record to indicate that this was done. Rauschenberg declined Bossier Country's suggestion that the fuel system be flushed. The repairs were completed on January 3.
Rauschenberg testified that the pickup was still leaking oil after these repairs. He returned it to Bossier Country for the last time on January 11. This time, he complained that it had an oil leak and an engine knock and was running rough. Bossier Country prevailed this time in the recommendation to flush the fuel system. The mechanic determined that the pickup was leaking oil around the front engine seal and replaced it. Bossier Country spent several weeks making repairs. Afterward, the engine was steam cleaned, and no additional oil leaks were detected.
Bossier Country notified Rauschenberg on Friday, February 2 that the pickup was ready. He came the next day, although Bossier Country's regular business hours are Monday through Friday. No one was there to release the pickup to him. Bossier Country called Rauschenberg twice the following week offering to deliver the pickup to him in Gatesville, about 100 miles from the dealership,5 but Rauschenberg did not respond to these offers and left the pickup at Bossier Country.
Rauschenberg filed a lemon-law complaint in April seeking repurchase of the pickup by Bossier Country.6 At some point however, it was determined that Rauschenberg's only option was to have the pickup repaired by another dealer, apparently because he did not file his complaint within six months after the pickup had been driven 24,000 miles.7 Rauschenberg retrieved the pickup from Bossier Country in early July. He testified that the pickup continued to leak oil and not run well. At DaimlerChrysler's suggestion, Rauschenberg took the pickup to a dealership in Killeen for repair on July 24. The Killeen dealership did extensive work on the engine and determined that it was leaking from a cracked timing cover housing. Repairs were completed, and the pickup was returned to Rauschenberg three days after he took it there.
Rauschenberg drove the pickup for several days and determined that the engine was "still leaking [oil] a little bit." He returned it to the Killeen dealership on August 1. The dealership identified two additional places where the engine was leaking oil and repaired them. The pickup was returned to Rauschenberg on August 3. By this time, Rauschenberg was "fed up" with the pickup and traded it in.
Rauschenberg's petition alleges that Bossier Country committed the following DTPA laundry-list violations:
• represented that goods or services were of a particular standard, quality, or grade, or that goods were of a particular style or model, when they were of another;
• knowingly made false or misleading statements of fact concerning the need for parts, replacement, or repair service; and
• represented that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced.
See TEX. BUS. & COM.CODE ANN. § 17.46(b)(7), (13), (22) (Vernon Supp. 2005).
The petition alleges that Bossier Country breached implied warranties of fitness for a particular purpose and of good and workmanlike performance and breached the extended warranty which Rauschenberg purchased when he bought the pickup. The petition also alleges a general claim for breach of contract.8
Bossier Country responded with a general denial and with a verified denial that Rauschenberg was entitled to recover in his individual capacity.
The jury found in Rauschenberg's favor on all theories submitted. The jury awarded actual damages of: $2,100 for loss of use of the pickup; $5,000 for lost profits; $1,000 for the reasonable value of Rauschenberg's time used while attempting to have the pickup repaired; and $312 for out-of-pocket expenses. The jury awarded additional damages of $5,000 because it found that Bossier Country acted intentionally and knowingly. Finally, the jury awarded attorney's fees of: $6,750 for trial; $2,500 for an appeal to this Court; and $2,500 for an appeal to the Supreme Court.
Bossier Country contends in its first issue that Rauschenberg does not have standing to pursue the claims asserted in his petition.
Standing is generally a question of law which we determine by review of the factual allegations of the plaintiff's pleadings. See West v. Brenntag Sw., Inc., 168 S.W.3d 327, 334 (Tex.App.-Texarkana 2005, pet. denied); MET-Rx USA, Inc. v. Shipman, 62 S.W.3d 807, 809-10 (Tex. App.-Waco 2001, pet. denied). We construe the pleadings in favor of the plaintiff. See West, 168 S.W.3d at 334; MET-Rx USA, 62 S.W.3d at 810.
A plaintiff must be a "consumer" to maintain a DTPA suit. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 386 (Tex.2000); Bynum v. Prudential Residential Servs., Ltd. P'ship, 129 S.W.3d 781, 792 (Tex.App.-Houston [1st Dist.] 2004, pet. denied); Cook-Pizzi v. Van Waters & Rogers, Inc., 94 S.W.3d 636, 644 (Tex.App.-Amarillo 2002, pet. denied). The DTPA defines a "consumer" in pertinent part as "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 2002); see also Crown Life Ins. Co., 22 S.W.3d at 386; Cook-Pizzi, 94 S.W.3d at 644. To have standing then, a DTPA plaintiff must be one who has purchased or leased goods or services, and the goods or services must form the basis of the plaintiff's complaint. Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 572 (Tex.App.-Austin 2003, no pet.); Bohls v. Oakes, 75 S.W.3d 473, 479 ...
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