Cars & Concepts, Inc. v. Funston

• Decision Date: 19 June 1980
• Docket Number: No. 18251,18251
• Citation: 601 S.W.2d 801
• Court: Texas Court of Appeals
• Parties: CARS & CONCEPTS, INC., Appellant, v. Randy FUNSTON, d/b/a Tex-Hide Paint Industries, Appellee.

Page 801

601 S.W.2d 801

CARS & CONCEPTS, INC., Appellant, v. Randy FUNSTON, d/b/a Tex-Hide Paint Industries, Appellee.

No. 18251.

Court of Civil Appeals of Texas, Fort Worth.

June 19, 1980.

Rehearing Denied July 24, 1980.

Fillmore, Lambert, Purtle & Lee, and Larry L. Lambert, Wichita Falls, for appellant.

Banner, McIntosh & Dobbs, and Juanita Pavlick, Wichita Falls, for appellee.

OPINION

MASSEY, Chief Justice.

We reverse judgment by default in this treble damages case for want of jurisdiction of the person of the defendant.

Randy Funston, as plaintiff, brought suit, under the Tex.Bus. & Comm.Code Ann., Subchapter E. "Deceptive Trade Practices and Consumer Protection", § 17.41, et seq, and including § 17.46, "Deceptive Trade Practices Unlawful" (in sub. (b) "(5) representing that goods . . . have . . . characteristics, . . . benefits, or quantities which they do not have . . .").

Date suit originally brought was June 26, 1978, and in plaintiff's petition the defendants named were Morgan Motor Company, Inc., from which company Funston had purchased a certain automobile, and Chrysler Corporation, the manufacturer for which Morgan Motor Company was dealer-distributor. Thereafter, pursuant to discovery procedures which indicated advisability that such be done, plaintiff filed an amended petition in which there was added to the original defendants the new defendants, Safelite Industries, Inc., and Cars and Concepts, Inc. For purposes of default judgment the pleadings were sufficient to present allegations entitling plaintiff to the relief for which he prayed from each of these defendants.

In answer to the suit all the defendants, save and except Cars and Concepts, Inc., filed answer in opposition. On May 3, 1979, plaintiff took an interlocutory default judgment against Cars and Concepts, Inc. for the amount of $37,292.00, being treble the purported difference in value of the automobile he had purchased as represented to be delivered from the value thereof as delivered; plus a sum representing treble the expenditure to obtain a substitute automobile for over a year; and plus $5,000.00 as attorney's fees. (The measure of damages used was error, but by our action that fact becomes immaterial.)

As of the time of the default judgment the defendants (other than Cars and Concepts, Inc.) remained as parties to the suit. It was for this reason the judgment was interlocutory merely. The trial court not only retained jurisdiction of the entire case as it existed against the remaining defendants, but it also retained jurisdiction as applied to the suit against Cars and Concepts, for that defendant could not then appeal. This situation obtained until date of June 20, 1979, when, upon motion by plaintiff, his case against all the defendants other than Cars and Concepts was severed and redocketed for trial under a new case number in the trial court. Under the original number the only defendant was Cars and Concepts; by reason of the severance, Cars and Concepts became the only defendant and no impediment being existent, the judgment originally interlocutory became a final and appealable judgment on June 20, 1979. This judgment decree, whether considered as rendered May 3, 1979 or as rendered June 20, 1979, was never interfered with at any time.

At the same hearing held June 20, 1979, pursuant to which there was the order of severance, the court heard the motion of Cars and Concepts to set aside and vacate the default judgment, then interlocutory, which had been rendered on May 3, 1979. Upon having received the usual postcard notice from the clerk of the trial court that a default judgment had been rendered against it, Cars and Concepts began action. On May 21, 1979 its Michigan attorney filed a motion to set aside the interlocutory default judgment. By June 12, 1979 it had employed Wichita Falls attorneys, and these attorneys filed a supplemental motion in embellishment, and appended thereto they attached the general denial they desired to file. Therein they plead that Cars and Concepts did not permit the default to be taken by design, willfully, or by intentional failure, but by excusable accident or mistake. It was averred that upon receipt of citation the same was turned over to its regular attorney who in turn forwarded suit papers to its insurance agent; that it was assured that an answer would be filed; and that it had no...