Charlie Hillard, Inc. v. Heath, 18495
Decision Date | 12 November 1981 |
Docket Number | No. 18495,18495 |
Citation | 624 S.W.2d 758 |
Parties | CHARLIE HILLARD, INC., Appellant, v. Robert HEATH, Appellee. |
Court | Texas Court of Appeals |
Akin, Gump, Hauer & Feld, Paul E. Galvin, Dallas, Baker & Botts, Randall A. Hopkins, Houston, for appellant.
Maples, Maloney, Debusk, Phillips, Lollar & Mallory, Carl E. Mallory, Fort Worth, for appellee.
Before MASSEY, C. J., and SPURLOCK and HOLMAN, JJ.
This is an appeal from a judgment in favor of a purchaser of an automobile under a motor vehicle installment sales contract rendered on the basis of alleged violations of the Texas Consumer Credit Code, art. 5069-7.07-Prohibited Provisions.
We affirm.
In June, 1977, Robert Heath (hereafter buyer) purchased a new Ford LTD from Charlie Hillard, Inc. (hereafter seller) in Forth Worth, Texas, financing the purchase by executing a retail installment contract which was subsequently assigned to Ford Motor Credit Company (hereafter FMCC). Two and one-half years later and prior to any action on the part of seller or FMCC to attempt to repossess the automobile (in fact, the record shows that buyer was current in his obligations under the contract), buyer filed suit against seller to recover a statutory penalty and reasonable attorneys' fees for alleged violations of the Texas Consumer Credit Code (hereafter Credit Code) in the contract provisions at paragraph 19 entitled "Default". Both parties moved for summary judgment. The trial court granted buyer's motion finding that the contract violated art. 5069-7.07(3) and (4) and ordered seller to pay buyer a penalty in the amount of $3,570.84 plus stipulated attorneys' fees in the amount of $1,400.00.
By six points of error seller claims that the trial court erred in granting judgment for buyer because the installment contract did not violate the Credit Code in the specific instances found by the court.
The trial court found that (1) the language in the challenged repossession clause violates sec. 7.07(3) in that it is susceptible to the interpretation that the seller is granted the right freely to enter wherever the vehicle may be found in order to repossess it and (2) the provision dealing with the retention of personal property in or attached to the vehicle violates sec. 7.07(4) since it amounts to a contractual waiver of any right of action for the return of unsecured personalty wrongfully detained by the act of repossession. The court also observed that the unilateral imposition of twenty-four (24) hour notice by a restricted type of mail is unreasonably short and is calculated to deprive the owner of his property.
The language appearing in paragraph 19 "Default" of the sales contract reads as follows:
By its first two points, seller challenges the trial court's finding that the "free right of entry" language violates sec. 7.07(3). This court has already upheld the "free right of entry" language in Woolard v. Texas Motors, Inc., 616 S.W.2d 706 (Tex.Civ.App.-Fort Worth 1981, no writ) and Dub Shaw Ford, Inc. v. Jackson, 622 S.W.2d 664 (Tex.App.-Fort Worth, 1981).
In addressing this issue in Woolard v. Texas Motors, Inc., supra, we stated:
See also, Tradewinds Ford Sales, Inc. v. Caskey, 600 S.W.2d 865 (Tex.Civ.App.-Eastland 1980), rev'd in part on other grounds, aff'd in part, and , 616 S.W.2d 935 (Tex.1981).
We hold that the language of paragraph 19 does not...
To continue reading
Request your trial-
Gonzalez v. Gainan's Chevrolet City, Inc.
...never addressed the question presently before us. Similarly, the cases cited by the court of appeals are not applicable: Charlie Hillard, Inc. v. Heath, 624 S.W.2d 758 (Tex.App.--Fort Worth 1981, no writ); Dub Shaw Ford, Inc. v. Jackson, 622 S.W.2d 664 (Tex.App.--Fort Worth 1981, no writ); ......
-
Hinojosa v. Castellow Chevrolet Oldsmobile, Inc.
...Worth 1980, no writ), where a contract authorizing a "right to peaceably enter" was approved. See also Charlie Hillard, Inc. v. Heath, 624 S.W.2d 758 (Tex.App.--Fort Worth 1981, no writ); Dub Shaw Ford, Inc. v. Jackson, 622 S.W.2d 664 (Tex.App.--Fort Worth 1981, no writ); and Woolard v. Tex......
-
Gonzalez v. Gainan's Chevrolet City, Inc.
...peaceful, non-trespass repossessions, would allow seller to repossess property only where he found free right of entry. Charlie Hillard, Inc. v. Heath, 624 S.W.2d 758 (Tex.App.--Fort Worth 1981, no writ); Dub Shaw Ford, Inc. v. Jackson, 622 S.W.2d 664 (Tex.App.--Fort Worth 1981,, no writ); ......
-
Trevino v. Castellow Chevrolet-Oldsmobile, Inc.
...he found free right of entry. See Ormsby v. Parker Square Bank, 610 S.W.2d 246 (Tex.Civ.App.--Fort Worth 1980, no writ); Charlie Hillard, Inc. v. Heath, 624 S.W.2d 758 (Tex.App.--Fort Worth 1981, no writ); Dub Shaw Ford, Inc. v. Jackson, 622 S.W.2d 664 (Tex.App.--Fort Worth 1981, no writ); ......