O'Connor v. Miller
| Decision Date | 17 December 2003 |
| Docket Number | No. 10-01-374-CV.,10-01-374-CV. |
| Citation | 127 S.W.3d 249 |
| Parties | Robert O'CONNOR, Appellant, v. Boyd A. MILLER and Trim-Aire Aviation, Inc., Appellees. |
| Court | Texas Court of Appeals |
Bruce Perkins, Byrne, Head & Harrison, L.L.P., James V. Sylvester, Attorney At Law, Austin, for Appellant/Relator.
Travis Williamson, Travis Williamson & Associates, Austin, for Appellee/Respondent.
Before Chief Justice GRAY, and Justice BILL VANCE (Former Chief Justice DAVIS not participating).*
Robert O'Connor complains of a take-nothing judgment rendered against him after a jury trial on claims he made against Boyd Miller and Trim-Aire Aviation, Inc. for breach of contract, deceptive trade practices, fraud, and negligent misrepresentation. O'Connor had purchased six used airplane engines from Trim-Aire, and he alleged that the condition of the engines was misrepresented. O'Connor raises nine issues on appeal:
1. The knowledge of the person who brokered the sale of the six engines about the sale being "as is" cannot be imputed to O'Connor, because that person did not act as O'Connor's agent with O'Connor's best interest in mind.
2. Because O'Connor did not know, imputed or otherwise, that the sale was "as is," that alone cannot, as a matter of law, defeat the "producing cause" elements of his claims.
3. The jury's finding that Miller and Trim-Aire did not engage in deceptive trade practices is not supported by the evidence as a matter of law.
4. The jury's finding that Miller and Trim-Aire did not engage in deceptive trade practices is against the great weight and preponderance of the evidence.
5. O'Connor proved his damages as a matter of law.
6. The jury's finding that Miller and Trim-Aire did not breach a contract with O'Connor is not supported by the evidence as a matter of law.
7. The jury's finding that Miller and Trim-Aire did not breach a contract with O'Connor is against the great weight and preponderance of the evidence.
8. The jury's finding that Miller and Trim-Aire did not defraud O'Connor is not supported by the evidence as a matter of law.
9. The jury's finding that Miller and Trim-Aire did not defraud O'Connor is against the great weight and preponderance of the evidence.
We will affirm the judgment.
Jack Wall purchased six used airplane engines and had Trim-Aire, Inc., a company owned by Boyd Miller, pick them up. Trim-Aire is an aircraft maintenance company in Mexia which also deals in airplane engine parts. Trim-Aire was to review, appraise, and sell the engines. The "heart" of this type of engine is composed of six parts which rotate and which have limited lives. The use of these parts is regulated by the Federal Aviation Administration. Once their lives expire, based on the number of rotations expended, their resale value is insignificant. Log books are routinely kept on airplane engines to, in part, keep track of the useful time remaining on these parts. Sellers of engines also create specification sheets ("spec sheets") which are supposed to be based on the information in the log books, although sometimes the information in previous spec sheets is merely carried over to new spec sheets. The spec sheets contain basic information about the life remaining on the time-limited parts. The log books and spec sheets are delivered to each successive owner of an engine. If these written records are not clear or accurate, or the serial number on a part is unreadable or does not match those in the records, the life remaining on that part cannot be determined and it loses resale value.
The condition of some of the time-limited parts can be checked by partially disassembling the engines, examining the parts and their serial numbers, and studying the logs. But other parts are deeply imbedded in the engine, and special tools for disassembly are required which some businesses, like Trim-Aire, do not have. For these imbedded parts, the log books and spec sheets are used to help verify the parts' useful lives. Although it is not uncommon for purchasers to rely solely on spec sheets to determine the life remaining on time-limited parts, this entails a significant risk because the spec sheets may be inaccurate.
Boyd Miller worked out a fee arrangement with Pete Miller (no relation) for Pete to find purchasers for the six engines. But Pete also worked out an arrangement with O'Connor, who owned an FAA-approved machine shop called Gas Turbine Services, for Pete to find airplane engines which O'Connor would purchase. On sale of the reconditioned parts in the engines, they would split the profits equally. Boyd provided spec sheets for the six engines on Trim-Aire letterhead for Pete and potential purchasers to examine. The information in these spec sheets came primarily from the spec sheets provided to Boyd by the previous owner of the six engines. Boyd also made the log books available for Pete to examine. Pete told O'Connor about the engines at Trim-Aire, and O'Connor sent his employee, David Doig, to examine the engines. Eventually Pete arranged for O'Connor to purchase the six engines for $150,000. O'Connor had no direct dealings with Boyd, who paid Pete $5,000 for his efforts in brokering the sale. Boyd and O'Connor each testified at trial that he did not know at the time of the sale about the other's financial arrangement with Pete; Boyd testified he knew only that Pete had a financial backer. Boyd also testified that he told Pete the information in the spec sheets and log books was unverified, and that the sale was "as is." Pete's testimony confirmed that the sale was "as is." O'Connor testified he relied solely on the spec sheets provided by Trim-Aire, which he thought were accurate, and he did not know that the sale was "as is."
After purchase, O'Connor had the engines completely disassembled in preparation for reconditioning and selling the parts. He discovered that (a) parts which, according to the spec sheets, were supposed to be in certain engines had been substituted with other parts, (b) serial numbers on some parts were unreadable, and (c) information in the spec sheets did not always match information in the log books. Ultimately, O'Connor sold the useable parts from the six engines for over $280,000. But he determined that nine parts could not be used, and he demanded that Boyd pay him approximately $62,000, an amount O'Connor claimed he could have sold those parts for if they had been as represented. This occurred about one year after O'Connor bought the engines. Boyd offered to examine the log books to help resolve the complaints. He testified at trial that the log books O'Connor sent him had been altered from what he provided O'Connor at the time of the sale. Boyd also offered to buy the engines back, but apparently it was impractical to reassemble them. O'Connor eventually filed suit against Boyd and Trim-Aire for breach of contract, violations of the Texas Deceptive Trade Practices Act (DTPA), fraud, and negligent misrepresentation. A jury found against O'Connor on all claims, and the court rendered a take-nothing judgment.
We will first address O'Connor's six sufficiency-of-the-evidence issues (3-4, 6-7, & 8-9) on the jury's failure to find a breach of contract, violations of the DTPA, or fraud. We will then review the "as is" provision of the agreement as it applies to the first six issues. Finally, we will address the fifth issue on damages only if O'Connor prevails on other issues that would entitle him to damages.
Six of O'Connor's nine issues concern challenges to the legal and factual sufficiency of the evidence. We will use the following standards to review these issues.
When a party who had the burden of proof brings a "legal insufficiency" issue complaining of an adverse finding, that party must demonstrate that the evidence establishes conclusively, i.e., as a matter of law, all vital facts in support of the finding sought by the party. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). We first examine the record for evidence supporting the adverse finding, ignoring all evidence to the contrary. Id. If more than a scintilla of evidence supports the adverse finding, our inquiry ends; but if no evidence supports the adverse finding, we review the entire record to determine if the contrary proposition is established as a matter of law. Id.
When a party who had the burden of proof complains of the factual insufficiency of an adverse finding, it must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence. Dow Chemical, 46 S.W.3d at 242; Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651-53 (Tex.1988). We weigh all the evidence and set aside the adverse finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Dow Chemical, 46 S.W.3d at 242. In doing so, we must detail the evidence and state in what regard the contrary evidence greatly outweighs the evidence in support of the adverse finding. Id. We must also remember that it is within the province of the jury to determine the credibility of the witnesses and the weight to be given their testimony. Brush v. Reata Oil & Gas Corp., 984 S.W.2d 720, 725-26 (Tex.App.-Waco 1998, pet. denied). The trier of fact may believe one witness and disbelieve another. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). It may resolve inconsistencies in the testimony of a witness, and it may accept lay testimony over that of experts. Id. We may not pass upon a witness's credibility or substitute our judgment for that of the jury, even if the evidence might clearly support a different result. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex.1998) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 634 (...
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