Ciminelli v. Ford Motor Credit Co.
| Decision Date | 12 February 1981 |
| Docket Number | No. 1720,1720 |
| Citation | 612 S.W.2d 671 |
| Parties | John CIMINELLI, Appellant, v. FORD MOTOR CREDIT COMPANY and Tradewinds Ford Sales, Inc., Appellees. |
| Court | Texas Court of Appeals |
This is an appeal by John Ciminelli, plaintiff in the trial court, from a summary judgment in favor of Ford Motor Credit Company and Tradewinds Ford Sales, Inc., defendants in the trial court, and from an order which sustained the defendants' pleas in abatement, on claims made by plaintiff under the Texas Consumer Credit Code, Tex.Rev.Civ.Stat.Ann. art. 5069-2.01 et seq. (1971), hereinafter referred to as the "Credit Code."
Plaintiffs John Ciminelli and Reyes Gonzales sued on two theories. First, they alleged and contended that the transaction made the basis of this suit was a "retail installment transaction" within the provisions of Chapter 14 (Art. 5069-14.01-14.28) of the Credit Code. Second, they alleged a cause of action under Chapter 7 of the Credit Code. The actions will hereafter be referred to as the "Chapter 7 action" and the "Chapter 14 action," respectively.
The trial court, prior to the signing of the summary judgment and the order which sustained the pleas in abatement dismissed plaintiffs' Chapter 14 action, struck all of the pleadings by the plaintiff Gonzales and dismissed him from the case. Gonzales did not complain of that action and is not an appellant in this appeal. Ciminelli appeals from both the summary judgment and the order granting the pleas in abatement. We affirm.
On November 1, 1977, Gonzales purchased a used 1972 Cadillac from Tradewinds Ford Sales, Inc. Immediately preceding the date of purchase, Gonzales requested that Ciminelli, his employer, co-sign the contract in order for him to buy the automobile on credit. Ciminelli consented and signed a contract, whose blanks had not been filled in by the salesman, Gonzales, or anyone else. Subsequently, Gonzales and the salesman worked out a purchase for a total deferred payment price of $4,567.52, and filled in the blanks in the contract.
Shortly thereafter, Gonzales defaulted in his payments and the automobile was repossessed. Ciminelli attempted to satisfy the payments under the note and take possession of the car, but was unable to do so since the title was in the name of Gonzales.
We first address plaintiff's second point of error, wherein he contends that the trial court erred in granting the defendants' pleas in abatement and in dismissing his cause of action under Chapter 14 of the Credit Code, because the repeal of Chapter 14 (Art. 5069-14.01 to 14.28) of the Credit Code by the 66th Legislature did not destroy his cause of action. The point cannot be sustained.
The original petition in this case was filed on July 7, 1978. Ciminelli became a plaintiff on October 11, 1978, when plaintiffs' first amended petition was filed. The repeal of Chapter 14 of Credit Code became effective on August 27, 1979. The order granting defendants' pleas in abatement and dismissing plaintiff Ciminelli's Chapter 14 action was signed on February 20, 1980. The Act which repealed Chapter 14 did not contain a savings clause pertaining to pending suits.
In Dickson v. Navarro County Levee Imp. Dist. No. 3, 135 Tex. 95, 139 S.W.2d 257, 259 (Sup.1940), the Court stated:
Also relevant to the disposition of plaintiff's second point is the language in the opinion of National Carloading Corp. v. Phoenix-El Paso Express, 142 Tex. 141, 176 S.W.2d 564, 570 (1943), to wit:
"If, before rights become vested in particular individuals, the convenience of the State induces amendment or repeal of the laws upon which they are based, these individuals are left without any remedy at law to enforce their claims; and if final relief has not been granted before the repeal goes into effect it cannot be granted thereafter, even if a judgment has been entered and the cause is pending upon appeal." (Emphasis supplied.)
Applying the rules set forth in Dickson and National Carloading Corp., supra, we are of the opinion that the repeal of Chapter 14, without a savings clause, effectively destroyed any claim in which final relief had not been granted by August 27, 1979. The cause of action in the present case, therefore,...
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...saving clause, it is considered, except as to transactions past and closed, as though it had never existed. See also Ciminelli v. Ford Motor Credit Co., 612 S.W.2d 671, 672 (Tex.Civ.App.-Corpus Christi), rev'd on other grounds, 624 S.W.2d 903 (Tex.1981); Jim Walter Homes, Inc. v. Gibbens, 6......
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Ciminelli v. Ford Motor Credit Co.
...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 judgme......