Elias v. Mr. Yamaha Inc.

• Decision Date: 12 October 2000
• Docket Number: No.08-99-00100-CV,08-99-00100-CV
• Citation: 33 S.W.3d 54
• Parties: (Tex.App.-El Paso 2000) MARK ELIAS, Appellant, v. MR. YAMAHA, INC., d/b/a TEAM MR. HONDA, YAMAHA, appellee.
• Court: Texas Court of Appeals

Page 54

33 S.W.3d 54 (Tex.App.-El Paso 2000)

MARK ELIAS, Appellant, v. MR. YAMAHA, INC., d/b/a TEAM MR. HONDA, YAMAHA, appellee.

No.08-99-00100-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS,EL PASO.

October 12, 2000

Appeal from 34th District Court of El Paso County, Texas (TC# 98-2458) [Copyrighted Material Omitted] Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

Mark Elias (Elias) filed suit against Mr. Yamaha, Inc., d/b/a Team Mr. Honda, Yamaha (Mr. Yamaha) for violations of the Texas Deceptive Trade Practices Act (DTPA), breach of contract, fraud, and conversion arising out of Elias's attempted purchase of a jet ski. Following a bench trial, the court found that Mr. Yamaha committed fraud, had breached its contract to sell a jet ski to Elias, and had converted the jet ski offered by Elias as a trade-in on the purchase of a new jet ski. The court awarded actual damages in the total amount of $1,738, attorneys' fees through the entry of judgment in the sum of $11,000, and punitive damages in the sum of $3,000. On appeal, Elias attacks the trial court's adverse finding on his DTPA claim, and the amounts awarded for loss of use and attorneys' fees. We modify the damage award, reform the judgment, and affirm as reformed.

FACTUAL SUMMARY

On March 28, 1998, Elias visited the sales floor of Mr. Yamaha where he had purchased several jet skis in the past. He saw on display a red 1998 GSX Limited Sea-Doo jet ski and spoke to Ryan Seavey, a salesperson he knew from prior dealings. After negotiating a base sales price of approximately $7,999 and discussing the possibility of using his 1996 Sea-Doo as a trade-in, Elias decided to purchase the GSX Limited. He left a $100 deposit with Seavey, explaining that he did not want the display model sold to someone else as had happened to him the previous year. Seavey assured Elias that the display model would be his. Elias agreed to bring his 1996 Sea-Doo into the store for appraisal on April 1 and his brother, Matthew Elias, delivered the jet ski on that date.¹ The following day, Elias entered into a written contract with Mr. Yamaha for purchase of the GSX-Limited for the total price of $9,986.33. Because Elias was "upside down"² with respect to his trade-in, the purchase price included the $989 difference between the trade-in value and the amount Elias still owed on it. Mr. Yamaha did not inform Elias that it had sold the display model red GSX-Limited to Ricardo Lopez on April 1.³

Elias initially intended to finance the purchase through his local bank, Bank CNB. However, he agreed to seek financing from a company known as HRSI based upon Seavey's representations that HRSI might structure the deal with no down payment and no payments for nine months. Elias was familiar with HRSI because the company had financed his 1996 Sea-Doo. Although he did not expect to have any difficulty obtaining financing, he told Seavey to utilize Bank CNB in the event HRSI refused funding. As it turned out, Seavey called Elias on April 3 and told him that HRSI had refused to finance the purchase. Consequently, Elias called Robert Juarez, his loan officer at Bank CNB. Juarez agreed to approve financing, called Michelle at Mr. Yamaha, told her that Bank CNB would provide financing, and asked her to fax him the purchase order. The purchase order faxed to Juarez lacked a serial number and Juarez informed Elias that he needed the serial number in order to complete the loan. Elias, in turn, called Seavey who told him for the first time that Mr. Yamaha had sold the GSX-Limited to someone else. Seavey promised Elias that they would order one and that it would be available in one or two weeks. Since it was clear they would not obtain a serial number immediately, Juarez put the deal "on the back burner" until April 20, when he learned that Seavey had told Elias that the jet ski should arrive "any day." Elias went to the bank on April 22 to sign a loan application. According to Juarez, the financing would have been completed in less than a day once he received the serial number. The jet ski did not arrive in April. In early May, Mr. Yamaha once again led Elias to believe that the jet ski would be delivered soon, but it did not arrive in May either. Unbeknownst to Elias, Mr. Yamaha had not even ordered the jet ski despite Seavey's representations to the contrary.

As a result of the delay, Elias was required to make the April and May payments on his 1996 Sea-Doo which he intended to trade in for the new model.⁴ Although Elias did not yet know it, Mr. Yamaha had sold the trade-in to Richard Escobar on May 6, 1998 for $4,668. Mr. Yamaha did not immediately deliver title to Escobar since it had not completed the deal with Elias and paid off the loan. Mr. Yamaha told Escobar that he would receive the title within three to four weeks. In the meantime, a Parks and Wildlife officer stopped Escobar at an area lake, questioned him about title to the jet ski, and warned him that he would be given a ticket. When Escobar called to inquire at Mr. Yamaha, he was told that the bill of sale would serve the purpose until they received his title. Escobar subsequently received another warning and then a ticket for not having the title. He again inquired with Mr. Yamaha, but they continued to make excuses, telling him that the lienholder had not released the lien. Finally, around June 11, Escobar received his title from Mr. Yamaha. By admittedly back-dating the title and other documents to May 6, 1998, Mr. Yamaha had made the title transfer based upon a power of attorney purportedly bearing Elias's signature. Elias denied ever signing the power of attorney and claimed it was a forgery.

On June 2, Seavey called Elias and tried to sell him an XP Limited jet ski, a model Elias considered inferior. When Elias refused, the conversation abruptly concluded. A few minutes later, Mike McIntyre, one of the owners of Mr. Yamaha, called Elias and asked what could be done to resolve the problem. McIntyre also tried to convince Elias to buy the XP Limited. Elias replied that they could not resolve the dispute because Mr. Yamaha did not have the jet ski he wanted. Instead, he demanded that McIntyre return his old jet ski so that he could take his business elsewhere. McIntyre said he could not return it because it had been sold; he then became angry and uttered an obscenity⁵ before hanging up. Elias and his brother immediately went to Mr. Yamaha. Upon seeing Elias walk into the office, McIntyre asked someone to call the police. Elias demanded the return of the jet ski that had been brought in for repairs, but McIntyre refused and told him they would have to "take it to court and settle it there." Elias waited for the police to arrive and, with their assistance, retrieved his jet ski. A few days later, Elias bought a GSX-Limited jet ski from a dealer in Las Cruces, New Mexico.

On July 14, 1998, Elias filed suit against Mr. Yamaha for breach of contract, DTPA violations, fraud, and conversion. The trial court found in favor of Elias on the breach of contract, fraud, and conversion actions, but found the evidence insufficient to establish the DTPA violations. The court awarded actual damages, punitive damages, and attorneys' fees.

DPTA CLAIM

In his first issue on appeal, Elias challenges the trial court's adverse finding on his DTPA claim pertaining to the sale of his trade-in. He asks us to reform the judgment to include an award of treble damages in the sum of $27,742 for a knowing violation of the DTPA. Although he does not specifically raise his contention in terms of either legally or factually insufficient evidence, we interpret his argument to be that he established the DTPA violation as a matter of law.⁶ See Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989).

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which he had the burden of proof, i.e., challenging the trial court's finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. Sterner, 767 S.W.2d at 690; Kratz v. Exxon Corp., 890 S.W.2d 899, 902 (Tex.App.--El Paso 1994, no writ); Chandler v. Chandler, 842 S.W.2d 829, 832 (Tex.App.--El Paso 1992, writ denied). A party attempting to overcome an adverse fact-finding as a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Kratz, 890 S.W.2d at 902. Only if the contrary position is conclusively established will the point of error be sustained. Kratz, 890 S.W.2d at 902; Chandler, 842 S.W.2d at 832.

Citing Apple Imports, Inc. v. Koole, 945 S.W.2d 895 (Tex.App.--Austin 1997, writ denied), Elias contends that Mr. Yamaha breached an implied representation that it would not sell his trade-in before completing the purchase of the new jet ski. In Apple Imports, the plaintiffs visited the defendant automobile dealership on a Saturday, decided to purchase a used Mazda MX-3, and orally agreed to trade in their Dodge Dynasty. Apple Imports, 945 S.W.2d at 897. Because it was late in the day, they could not complete the transaction by executing the necessary documents before the dealership closed for the weekend. Id. The plaintiffs left their Dodge at the dealership and took the Mazda home for the weekend, intending to return on Monday and complete the deal. Id. During the course of the weekend, however, they changed their minds about the purchase. Id. When they returned to the dealership on Monday, they discovered that their Dodge had already been sold...