Ciminelli v. Ford Motor Credit Co.

• Decision Date: 09 December 1981
• Docket Number: No. C-253,C-253
• Citation: 624 S.W.2d 903
• Parties: John CIMINELLI, Petitioner, v. FORD MOTOR CREDIT COMPANY et al., Respondents.
• Court: Texas Supreme Court

Page 903

624 S.W.2d 903

John CIMINELLI, Petitioner, v. FORD MOTOR CREDIT COMPANY et al., Respondents.

No. C-253.

Supreme Court of Texas.

Dec. 9, 1981.

Marcel S. Greenia, Corpus Christi, for petitioner.

Baker & Botts, Randall A. Hopkins and Lee H. Gudel, Houston, Porter, Gonzalez & Rogers, Fredrick F. Rogers, Jr., Corpus Christi, Sorrell, Anderson & Sorrell, Andrew J. Lehrman, Corpus Christi, for respondents.

POPE, Justice.

Reyes Gonzales and John Ciminelli brought suit against Ford Motor Credit Company, hereinafter called Ford Credit, and Tradewinds Ford Sales, Inc., hereinafter called Tradewinds, for violating provisions of Chapters 7 and 14 of Texas' consumer credit laws and for penalties under Chapter 8 of the laws. ¹ Because Gonzales failed to appear at his deposition, the trial court granted Ford Credit's and Tradewinds' motion to impose sanctions upon him by striking his pleadings from the record and by dismissing his suit. See Tex.R.Civ.Pro. 170, 215a(b). Ford Credit and Tradewinds thereafter moved for summary judgment against Ciminelli upon grounds that he had no standing to sue as a "Retail Buyer" or "Buyer" under article 5069-7.01(b), Tex.Rev.Civ.Stat.Ann. The trial court granted defendants' motion for summary judgment against Ciminelli, and the court of civil appeals affirmed the judgment. ² 612 S.W.2d 671. The question presented is whether Ciminelli had standing to sue as a "Buyer" or a "Retail Buyer." We hold that he did. We reverse the judgments of the courts below and remand the cause to the trial court.

Reyes Gonzales during the fall of 1977 wanted to replace his 1964 Ford automobile with a newer car. His employer, Ciminelli, agreed to help him purchase the automobile from Tradewinds. Ciminelli went to Tradewinds' offices and spoke with Mr. Eddie de los Santos about the transaction. De los Santos directed Ciminelli to sign a series of papers and indicated to Ciminelli where he should sign.

Ciminelli signed the instrument titled "Texas Automobile Retail Instalment Contract" as a co-buyer. The first part of the contract contained spaces for the names and addresses of the buyer (and co-buyer), and only Reyes Gonzales' name and address were typed in the blank space. Immediately under these blanks appeared the following printed statement:

Buyer (which means the undersigned Buyers and Co-buyers, jointly and severally) having been quoted both a deferred payment price and a lesser cash price hereby purchases from Seller on a deferred payment price basis, upon the terms and conditions set forth on the face and reverse sides hereof, the following property (hereinafter called the "Property") delivery and acceptance of which in good order are acknowledged by Buyer.

The contract then included descriptions of the automobile, trade-in vehicle, optional insurance, and other details of the transaction (e.g., cash price of the car, unpaid balance, finance charge, annual percentage rate, payment schedule, and deferred payment price). In addition, terms relating to use of the vehicle and default appeared in the contract and stated the buyer's obligations. Gonzales signed his name on the line denoted, "Buyer signs", and Ciminelli signed on the line denoted, "Co-Buyer signs." It is significant that Ciminelli contracted as a co-buyer and as such, had all of the obligations of a buyer. We also regard as significant the fact that the contract had a separate section that was titled "Guaranty" with a blank space for a signature of a guarantor. That blank space was left unsigned.

After Gonzales signed the papers completing the purchase, he took possession of and title to the automobile. Gonzales, however, failed to make any payments on the car, and Ciminelli explained at his deposition that he would pay Tradewinds and deduct that amount from Gonzales' wages. Ciminelli paid at least three of the installments in this manner.

Several months after the purchase, Ford Credit representatives informed Ciminelli that Gonzales had fallen behind on the payments and that they could not locate him or the car. Ciminelli explained that Gonzales no longer worked for him, but gave Ford Credit Gonzales' address and phone number. Ford Credit representatives called Ciminelli again three weeks later and informed him that they still had not located Gonzales. After the conversation, Ciminelli went to Gonzales' address and found him and the car. Ciminelli told Gonzales that he was going to take the car, and Gonzales did not protest. Ciminelli towed the car to Ford Credit's office. Speaking with Ford Credit representatives a few days later, Ciminelli offered to pay Ford Credit the balance due on the car in exchange for the automobile, but did not tender the amount. Ford Credit refused the offer because Gonzales held title to the vehicle.

Ciminelli then instituted this suit complaining that Tradewinds and Ford Credit had violated articles 5069-7.03(1), -7.06(3), -7.07(1), and 5069-14.17(4) and asking for penalties and attorney fees under articles 5069-8.01, -8.02, and 5069-14.19(i).

Chapter 7 of Texas' consumer credit laws regulates credit transactions between a "Retail Buyer" or "Buyer" of a motor vehicle on one hand, and, on the other, a "Seller" of the vehicle or "Holder" of the installment contract. To qualify for the protections afforded under the statutes, a person must be a "Retail Buyer" or "Buyer." The statute defines those terms as follows:

"Retail Buyer" or "Buyer" means a person who agrees to buy or buys a motor vehicle other than principally for the purpose of resale, from a retail seller in a retail installment transaction.

Tex.Rev.Civ.Stat.Ann. art. 5069-7.01(b). In determining the meaning of "buy" or "buys" as contained in article 5069-7.01(b), this court will give the words their usual and ordinary meaning. National Life Co. v. Stegall, 140 Tex. 554, 559, 169 S.W.2d 155, 157 (1943).

Webster's New International Dictionary (2d ed. unabridged) defines "buy" as "To acquire (property) by giving an accepted price or consideration therefor, or by agreeing to do so." To qualify as a "Retail Buyer" or "Buyer" under the statute, Ciminelli must have acquired or agreed to acquire a motor vehicle other than principally for the purpose of resale, from a retail seller in a retail installment transaction.

Here, Ciminelli signed the operative document, the "Texas Automobile Retail Instalment Contract," as a co-buyer. Under the terms of the contract, the co-buyer agreed to joint and several liability with the Buyer, and the term "Buyer" encompassed both buyers and co-buyers who signed the contract. The contract stated that the "Buyer" purchased the vehicle from the seller on a specified deferred payment basis and upon the contract's other terms and conditions. In addition, the buyer acknowledged the delivery...