Chrysler-Plymouth City, Inc. v. Guerrero, CHRYSLER-PLYMOUTH

• Decision Date: 03 June 1981
• Docket Number: CHRYSLER-PLYMOUTH,No. 16472,16472
• Citation: 620 S.W.2d 700
• Parties: 32 UCC Rep.Serv. 433 CITY, INC., Appellant, v. Robert S. GUERRERO and wife, Maria E. Guerrero, Appellees.
• Court: Texas Court of Appeals

Page 700

620 S.W.2d 700

32 UCC Rep.Serv. 433

CHRYSLER-PLYMOUTH CITY, INC., Appellant, v. Robert S. GUERRERO and wife, Maria E. Guerrero, Appellees.

No. 16472.

Court of Civil Appeals of Texas, San Antonio.

June 3, 1981.

Rehearing Denied June 30, 1981.

Frank S. Morrill, Jack M. McGinnis, San Antonio, for appellant.

Paul B. Keller, San Antonio, for appellees.

OPINION

KLINGEMAN, Justice.

This is a suit by Robert S. Guerrero and Maria E. Guerrero to recover treble damages and attorney's fees for breach of an express warranty under the Texas Business and Commerce Code and for false, misleading or deceptive acts or practices under the Texas Deceptive Trade Practices and Consumer Protection Act. The Guerreros, appellees here, purchased a used automobile from Chrysler-Plymouth City, appellant here, and received a written warranty. The automobile had, prior to coming into possession of appellant, been involved in a collision which caused it substantial damage. Appellees were not aware of such previous wreck at the time they purchased the automobile and were not told about it. Appellees experienced a number of difficulties with the car which were never satisfactorily resolved by appellant. About a year after appellees purchased the car it was involved in another accident, causing some damage to the right front fender and to other parts of the car. At this time appellees first learned that the car had been involved in a previous collision which had caused damages to the car. Appellees then brought this suit. Trial was to a jury who found that Chrysler-Plymouth City represented that the car was of a particular condition or quality when it was of another; that such representation was a producing cause of damages to plaintiffs; that Chrysler-Plymouth failed to disclose to the plaintiffs that the car had been previously damaged, repaired and sold for salvage; that such failure to disclose was a false, misleading or deceptive act or practice; that such failure to disclose was a producing cause of damage to plaintiffs; that Chrysler-Plymouth City made an express warranty to plaintiffs that the car was of top quality; that the car was not of top quality; that such breach of express warranty was a producing cause of damages to plaintiffs; that the plaintiffs actually paid $3,993.50 for the car; that the fair market value of the car as delivered to the plaintiffs was $2,500; that reasonable attorney's fees for the plaintiffs' attorneys would be $3,500 in the trial court, $1,000 additional if appealed to the court of civil appeals, and $500 additional if an application for writ of error to the supreme court were made. Based upon the verdict of the jury, the court awarded plaintiffs $4,480.50, which was the actual damages trebled; $3,500 attorney's fees; and $1,500 additional attorney's fees if the case is appealed as high as the supreme court.

On September 19, 1975, Mrs. Guerrero visited the used car lot of Chrysler- Plymouth City to purchase a used car she had seen in a newspaper advertisement. The car advertised was no longer available so she talked to Dean Billet, a salesman, about another car on the lot, a 1974 Monte Carlo. Mrs. Guerrero and her sister-in-law, who had accompanied her to the lot, drove the Monte Carlo to Mr. Guerrero's place of employment. He returned with them to the lot and the Guerreros, after negotiating the sale and securing financing, purchased the car. The car was financed through Lackland National Bank. The car was sold to the Guerreros with a written warranty which was entitled "Chrysler-Plymouth City Top Quality Warranty". The warranty listed the particular parts which it covered and it was signed by Mr. Guerrero. Shortly thereafter, the Guerreros began experiencing problems with the Monte Carlo including carburetor, battery, and steering trouble. They noticed the steering wheel was off-center and the car tracked sideways. They returned the car a number of times to Chrysler-Plymouth City for these repairs and were never charged for such work on the car. The Guerreros were still not satisfied with the repair results and, after the warranty expired and after being told by Chrysler-Plymouth that it could not repair the car forever, the Guerreros began taking the car to other places for repairs.

In October of 1976, Mrs. Guerrero was driving the Monte Carlo when she was involved in a collision. The car was taken to Mission Chevrolet where it was discovered that the car had sustained major damage in a previous accident. The car was covered with Bondo, or body filler, over about 90 per cent of its surface.

On this appeal appellant basically contends (1) that there is either no evidence or factually insufficient evidence to support the jury finding that the fair market value of the automobile as delivered to plaintiffs was $2,500; (2) that the court erred in admitting Robert Guerrero's testimony as to market value of the automobile because he was not qualified to give such an opinion; (3) that there is either no evidence or factually insufficient evidence that appellant made an express warranty to plaintiffs that the automobile was of top quality; (4) that the court erred in entering judgment on the verdict that a warranty of top quality was given since the warranty given was expressly limited to parts and repairs for a given period of time; (5) that the trial court erred in permitting the introduction of testimony and documentary evidence and submitting special issues which referred to the automobile as "sold for salvage" or "salvaged"; (6) that the trial court erred in submitting special issues containing reference to a fact not shown in the evidence, that is, that the automobile had been "sold for salvage"; (7) that the trial court erred in admitting the title history of the automobile; (8) that the trial court erred in entering judgment for the plaintiffs because they failed to submit an issue and secure a finding that appellant's breach of express warranty was a proximate cause of any loss sustained by plaintiffs; (9) that the trial court erred in refusing to submit the definition of proximate cause properly requested by appellant; (10) that there is either no evidence or factually insufficient evidence that appellant's breach of express warranty was a proximate cause of any loss sustained by plaintiffs; (11) that there is either no evidence or factually insufficient evidence to support the jury's finding as to reasonable attorney's fees of plaintiffs' attorney; (12) that there is no evidence appellant was given written notice of plaintiffs' complaint before suit was filed; and (13) that the trial court erred in instructing the jury that a "false, misleading, or deceptive act or practice" means any conduct which is either false or has the capacity or tendency to mislead or deceive the ignorant, the unthinking and credulous.

In this opinion we will discuss the points of error under the following general areas: (1) evidence of fair market value; (2) express warranty of top quality; (3) sold for salvage; (4) deceptive trade practice; (5) notice of complaint; (6) proximate cause; and (7) attorney's fees.

FAIR MARKET VALUE

By three points of error appellant contends: (1) that there is either no evidence or factually insufficient evidence to support the jury's finding that the fair market value of the automobile as delivered to appellees was $2,500; and (2) that the court erred in admitting Robert Guerrero's testimony as to the market value of the automobile because he was not qualified to give such an opinion.

It is well settled that the owner of personal property can testify as to its value. Classified Parking System v. Kirby, 507 S.W.2d 586 (Tex.Civ.App. Houston (14th Dist.) 1974, no writ); Barstow v. Jackson, 429 S.W.2d 536 (Tex.Civ.App. San Antonio 1968, no writ). This court in Barstow v. Jackson, supra, said:

The owner of property can testify as to his opinion of the value of such property though he may be unable to qualify himself as such a witness to like property belonging to another.

Hillin v. Hagler, 286 S.W.2d 661 (Tex.Civ.App. Fort Worth 1956, no writ); 3 Wigmore, Evidence, § 716, p. 48 (1940). This Court in Cortez v. Mascarro, 412 S.W.2d 342 (1967, no writ), said: 'The general rule is that anyone familiar with the value of the thing in question is competent to give his opinion as to value. In the absence of a request for voir dire examination, the competency of the witness is established by his statement that he knows the value of the article in question. 2 McCormick, Texas Law of Evidence, § 1422, p. 260 (1956). The strength or weakness of the qualifications of the witness is merely a factor to be considered in weighing his testimony. Johnson v. Egert, 233 S.W.2d 958 (Tex.Civ.App. 1950, writ ref'd n. r. e.).'

Id. at 538. The testimony of the owner that he knows the value of the property is sufficient to qualify him to give an opinion. National Surety Corporation v. Seale, 499 S.W.2d 753 (Tex.Civ.App. Dallas 1973, aff'd, 506 S.W.2d 579 (Tex.1974).

It is well settled that the qualifications of a witness to testify on the question of value is primarily to be determined by the trial court, and the ruling of the trial judge will not be disturbed on appeal unless it is so clearly wrong as to show an abuse of discretion. Slack v. Magee Heirs, 252 S.W.2d 274, (Tex.Civ.App. Galveston 1952), aff'd, 152 Tex. 427, 258 S.W.2d 797 (1953); Foley Bros. Dry Goods Co. v. Settegast, 133 S.W.2d 228 (Tex.Civ.App. Galveston 1939, writ ref'd).

Mr. Guerrero testified that he was the owner of the car and that he knew its fair market value as delivered to him. He stated the value at $1,200. Mr. Guerrero testified that he had owned a number of automobiles and that he had bought and sold such cars that he had owned. There was other testimony as to the value of the automobile on the date involved and there was quite a variance of opinion with a range of testimony ranging from a low of $1,200 to a high...