Featherston v. Weller, No. 03-05-00770-CV (Tex. App. 7/3/2009)

• Decision Date: 03 July 2009
• Docket Number: No. 03-05-00770-CV.,03-05-00770-CV.
• Parties: ROSS FEATHERSTON, Appellant, ROBERT N. WELLER, TOM KEILMAN & SON AUCTIONEERS, INC., BUD KEILMAN, AND TOM KEILMAN, Cross-Appellants, v. ROBERT N. WELLER, TOM KEILMAN & SON AUCTIONEERS, INC., BUD KEILMAN AND TOM KEILMAN, Appellees, ROSS FEATHERSTON, Cross-Appellee.
• Court: Texas Court of Appeals

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ROSS FEATHERSTON, Appellant ROBERT N. WELLER, TOM KEILMAN & SON AUCTIONEERS, INC., BUD KEILMAN, AND TOM KEILMAN, Cross-Appellants, v. ROBERT N. WELLER, TOM KEILMAN & SON AUCTIONEERS, INC., BUD KEILMAN AND TOM KEILMAN, Appellees ROSS FEATHERSTON, Cross-Appellee.

No. 03-05-00770-CV.

Court of Appeals of Texas, Third District, Austin.

Filed: July 3, 2009.

Appeal from the District Court of Travis County, 261st Judicial District, No. GN303353, Honorable Gisela D. TRIANA-Doyal, Judge Presiding.

Affirmed.

Before Justices PURYEAR, PEMBERTON and WALDROP.

MEMORANDUM OPINION

DAVID PURYEAR, Justice.

Ross Featherston appeals from a jury verdict on several claims he brought against Tom Keilman & Son Auctioneers, Inc. ("Keilman & Son"), Bud Keilman, Tom Keilman (collectively, "the Keilmans"), and Robert N. Weller. Featherston purchased a historical pistol at a Keilman & Son auction. When the pistol's authenticity proved less certain than advertised, he asked the Keilmans to return his money. They refused, and he sued under theories of fraud, negligent misrepresentation, negligence, and the Texas Deceptive Trade Practices Act ("DTPA"). See Tex. Bus. & Com. Code Ann. §§ 17.41-.63 (West 2002 & Supp. 2008). Featherston recovered under only his negligence theory. He appeals the quantity of that recovery as well as his failure to recover anything under the DTPA. The Keilmans cross-appeal, arguing that Featherston should have recovered nothing at all because he agreed to buy the pistol "as is." We will affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Ross Featherston, himself a professional auctioneer, learned that Keilman & Son would be auctioning a pistol that had purportedly belonged to William F. "Buffalo Bill" Cody. Keilman & Son published a pre-auction catalog that contained a description of the pistol and a copy of the pistol's "provenance," i.e., the collection of documents that purportedly illustrated the pistol's authenticity. The front page of the catalog listed "CONDITIONS OF SALE" for the auction that included the following:

• "The auctioneer assumes no responsibility for the authenticity or condition of any item sold."

• "All merchandise will be sold `as is, where is' `no warranties, no guarantees' in accordance with the conditions of the sale."

The catalog's affirmative description of the pistol as "Buffalo Bill Cody's Colt" differed from the more accurate description that Keilman & Son had used in an earlier catalog. Keilman & Son had previously auctioned the same pistol in 1996 after advertising it as "supposedly" once belonging to Cody. Robert Weller purchased the pistol under that description in 1996, but when he consigned the pistol back to Keilman & Son for inclusion in its 2003 auction he omitted the word "supposedly" when he described the pistol in his transmittal letter. Keilman & Son maintained that omission in its 2003 pre-auction catalog and internet "press releases"; the latter simply described the pistol as having been "presented to Buffalo Bill in 1909."

Clint Baermann, an antique firearms expert whom the Keilmans regularly hired to conduct research on auction items, penned the 2003 catalog description of the Cody pistol. Besides examining the provenance that came with the pistol, Baermann independently researched the pistol's history in determining how to describe the pistol in the catalog.

On the day of the auction, Featherston personally inspected the pistol and a copy of its provenance. To bid on the pistol, Keilman & Son required Featherston to sign a "bid agreement" and obtain a "bid card." The bid agreement was imprinted with "TERMS" that included the following: "I, the purchaser agree that items are sold AS IS, WHERE IS and with all Faults. NO WARRANTY OR GUARANTEE IS EXPRESSED OR IMPLIED AND EACH ITEM IS THE SOLE RESPONSIBILITY OF THE PURCHASER FROM THE MOMENT THE AUCTIONEER DECLARES THE ITEM SOLD." Similarly, the bid card was imprinted with "Terms of Sale" that included the following: "All descriptions of items are believed to be correct as described by owner. No warranties or guarantees expressed or implied on anything sold at this sale. Examine items before bidding." The bid card was also imprinted with "SOLD AS IS—WHERE IS."

The pistol was one of several hundred items that Keilman & Son auctioned off on the day in question. When the pistol came up for bid, the auctioneer, Tommy Carson, a Keilman & Son employee, slowed the auction's rapid pace for the first time. Tom Keilman asked Clint Baermann to speak to the audience about the pistol. Baermann did so and made several representations of fact, including:

• Nebraska senator George Norris gave the pistol to Cody at a "Buffalo Bill Cody Day" event in 1909.

• The emperor of Japan was present when Cody received the pistol.

• Cody used the pistol in his "Wild West Show" from 1909 until 1917.

• The pistol was "the real deal. [It was] Buffalo Bill's gun."

• The documentary evidence linking the pistol to Cody "goes on forever."

In fact, each of these representations was either false or unverified. Auctioneer Carson added representations of his own, saying that "we have the documentation and all the paperwork that goes with it" and "[g]uarantee you won't find one with more documentation to back it up. Goes all the way back. It's the right thing, the real deal, and the right kind." Tom and Bud Keilman stood nearby as Baermann and Carson made these representations and did nothing to indicate disagreement with them.

Bidding on the pistol began immediately after Baermann and Carson spoke. Featherston won the pistol for $22,000, which included a $20,000 bid and a $2,000 buyer's premium.¹ Featherston obtained a receipt when he paid for the pistol that described it unqualifiedly as "Buffalo Bill Cody's Colt" and contained the following language: "Purchaser agrees above items were sold AS IS, WHERE IS and with all faults. No WARRANTY or Guarantee is expressed or implied and each item is the sole responsibility of the purchaser from the MOMENT the AUCTIONEER DECLARES THE ITEM SOLD."

A few weeks after buying the pistol, Featherston decided to sell it. He contacted Greg Martin Auctions of San Francisco, which had experience auctioning Cody-related items. Featherston sent the pistol and its provenance to Greg Martin Auctions for evaluation. Greg Martin Auctions examined them and informed Featherston that the provenance was problematic: it contained a transportation manifest that purported to be from a Wells Fargo express company in 1921, but the company in question actually went out of business in 1918. As a result, the pistol's authenticity was questionable, and the pistol was worth only $ 2,000.²

Upon learning this, Featherston tendered the pistol to Keilman & Son and asked for a refund. Tom Keilman refused to give him one. Keilman informed Robert Weller of the situation, but Weller declined to get involved. Featherston never contacted Weller directly, and Weller never took it upon himself to offer Featherston a refund of his auction proceeds.

In August 2003, Featherston sued the Keilmans, Weller, and Baermann for fraud, negligence, negligent misrepresentation, and violations of the DTPA. The suit proceeded through trial, though Featherston nonsuited Baermann before it went to the jury. See Tex. R. Civ. P. 162. The jury found that no defendant had committed fraud or negligent misrepresentation, but it found that Keilman & Son, Bud Keilman, and Baermann had acted negligently and had violated the DTPA (albeit unknowingly and unwittingly). See Tex. Bus. & Com. Code Ann. § 17.50 (West Supp. 2008). In addition, the jury found that Weller had ratified the other defendants' actions and statements. The jury found, however, that those defendants had an affirmative defense to their DTPA violations, namely that they had notified Featherston in writing of their reliance on written representations by third parties. See id. § 17.506 (West 2002). Thus, Featherston recovered under only his negligence theory.

The jury calculated Featherston's damages at $18,000. It assigned thirty-four percent of the responsibility for these damages to Keilman & Son, thirty-three percent to Baermann, and thirty-three percent to Featherston himself. Because Featherston had nonsuited Baermann, the court awarded Featherston only Keilman & Son's thirty-four-percent share of his damages, or $6,120.

Featherston filed a motion asking the court to disregard the jury findings on his DTPA claims. He also filed a motion to modify the final judgment to include actual damages, prejudgment interest, and attorney's fees against Weller, Keilman & Son, and Bud Keilman. The trial court denied both motions. The Keilmans filed their own motion to disregard jury findings, arguing that the "as is" language in the parties' contract precluded recovery. The trial court denied that motion as well. Featherston and the Keilmans both appealed.

STANDARD OF REVIEW

We review the denial of a motion to disregard jury findings as a legal sufficiency challenge. See Excel Corp. v. McDonald, 223 S.W.3d 506, 508 (Tex. App.-Amarillo 2006, pet. denied). We will sustain such a challenge only when no more than a scintilla of evidence supported the jury's finding. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists when reasonable and fair-minded people could differ in their conclusions. Id. We review the evidence in a light that tends to support the jury's finding and disregard all evidence and inferences to the contrary unless doing so would be unreasonable. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

We review the denial of a motion to modify a judgment for abuse of discretion. See Wagner v. Edlund, 229 S.W.3d 870, 879 (Tex. App.-Dallas 2007, pet. denied). Under this standard, we may only reverse if the trial court acted unreasonably or in an arbitrary manner, without reference to...