Gjp, Inc. v. Ghosh

• Decision Date: 28 March 2008
• Docket Number: No. 03-04-00611-CV.,03-04-00611-CV.
• Citation: 251 S.W.3d 854
• Parties: GJP, INC.; Richard D. Herting; Classic Jaguar, Inc. and Dan Mooney, Appellants, v. Avijit GHOSH, Appellee.
• Court: Texas Court of Appeals

251 S.W.3d 854

GJP, INC.; Richard D. Herting; Classic Jaguar, Inc. and Dan Mooney, Appellants, v. Avijit GHOSH, Appellee.

No. 03-04-00611-CV.

Court of Appeals of Texas, Austin.

March 28, 2008.

Rehearing Overruled April 18, 2008.

Richard E. Greenblum, Samuel D. McDaniel, J. Woodfin Jones, Alexander Dubose Jones & Townsend, Austin, for Appellants.

Elizabeth Marie Branch, Merica & Bourland, PC, Austin, for Appellee.

Before Justices PATTERSON, PEMBERTON and HENSON.

OPINION

BOB PEMBERTON, Justice.

This appeal concerns a dispute arising from the purchase of a used 1967 Jaguar sports car by appellee, Avijit Ghosh, from appellants GJP Inc. and Richard D. Herting. Complaining that he had been misled regarding the Jaguar's condition, Ghosh filed suit against appellants and two other defendants, alleging violations of the Texas Deceptive Trade Practices Act, among other claims. His claims were tried to a jury. Based on the jury's favorable findings on Ghosh's DTPA claims, the trial court rendered judgment against all defendants, jointly and severally, for $11,500 in actual damages and $112,500 in attorney's fees; $20,000 in additional damages against appellants, jointly and severally, based on findings of knowing conduct; plus another $3,000 in damages against GJP. Appellants bring twenty-seven points of error challenging, among other things, the trial court's personal jurisdiction over them, its refusal to apply South Dakota law, the jury charge, and the sufficiency of the evidence to support the jury's findings regarding liability and actual damages. For the reasons explained herein, we will affirm the judgment.

BACKGROUND

According to the evidence presented at trial, GJP is a South Dakota-based company principally engaged, at relevant times, in the plastering business. At pertinent times, GJP was owned by Gerald Johnson, a South Dakota resident.¹ Johnson testified that the company, in addition to its primary business focus, also held title to approximately a dozen Jaguar automobiles. Johnson explained that acquiring and restoring Jaguars was a hobby of his and that he found it "convenient" to place the cars' title in his company. Richard Herting, a longtime friend of Johnson and fellow South Dakota resident, was an authorized agent of GJP who handled various business dealings of the company. He also shared Johnson's interest and work with his Jaguar collection. Appellants concede that, at all relevant times, Herting was acting within his authority as an agent of GJP.

Among the Jaguars in the collection was a red 1967 E-type Jaguar convertible. When purchased by GJP in 1999, this vehicle had been partially disassembled and was missing bumpers, door handles, most of the interior, and parts of the engine. Johnson and Herting reassembled it and, among other work, repainted it red, installed an interior and top, cleaned out and "redid" the gas tank, got "most of the wiring to work," and installed new wheels and tires. Johnson explained that he later chose to resell the 1967 E-type because he was restoring a 1968 E-type and "just didn't need two of them"; he added that he had lost interest in the 1967 vehicle once the "puzzle" of repairs had been completed. GJP had not previously sold one of its Jaguars, and Johnson denied that he had purchased the car with the intent to resell it. At trial, Ghosh questioned this explanation, suggesting that appellants had chosen to sell the car because they were aware of problems with it.

Herting advertised the red Jaguar on three websites around the world where, he testified, such vehicles were sold or traded—eBay, based in California; Jag-Lovers, based in Bergen, Norway; and Classic Jaguar, an Austin-based company that specialized in restorations of E-type vehicles. Herting explained that he chose Classic Jaguar because it was well-known and well-respected among Jaguar enthusiasts worldwide; there was also evidence that Herting and GJP had previously purchased parts from Classic Jaguar for use in their restorations, including the red Jaguar. Classic Jaguar is owned by Dan Mooney. Herting emailed information regarding the car to Mooney, who crafted, and Herting approved, an advertisement that Mooney placed on a portion of the Classic Jaguar website dedicated to similar "for sale" postings. The ad displayed two photographs of the red E-type and stated, "Believed low mileage (30,000) matching number car," "Strong mechanicals," and "New floors, sills, paint, interior (less seats), windshield, wiring, brakes, suspension, tyres² and wheels." It listed an asking price of $38,000 and directed inquires to Herting's South Dakota telephone number, also providing Herting's email address.

In the meantime, Ghosh, a Houston resident, had been searching websites with an interest in purchasing a used E-type Jaguar. Ghosh explained that since his boyhood in Great Britain, he had harbored dreams of some day owning an E-type Jaguar and that these dreams had been rekindled by his spotting an E-type at a Houston car wash. Ghosh began searching websites. There was evidence that before purchasing the car at issue in this case, Ghosh negotiated the purchase of a Jaguar on the East Coast and even had it inspected before the deal fell through. Ghosh found the Classic Jaguar website, and inquired with Classic and Mooney about a blue Jaguar featured in one of the site's "for sale" ads. During a discussion about the blue car and the difficulty of finding reasonably priced E-types in general, Ghosh claims that Mooney mentioned, "Well, actually, there's an excellent car on our website right now," and referred him to appellants' ad for the red Jaguar.

Ghosh testified that Mooney vouched for Herting's experience and capability as a Jaguar restorer and his work on the red Jaguar in particular, indicating that Herting had used parts purchased from Classic Jaguar. Relying on Mooney's remarks about Herting and the car, Ghosh called Herting at his South Dakota phone number. The parties gave differing accounts of ensuing events. Ghosh testified that he called Herting four to five times before the Jaguar came to Texas. Herting testified that he received several calls from Ghosh, among a "few dozen" he received inquiring about the car. Ghosh claimed that during their first call, Herting made various representations echoing the statements in the website ad, explained the work he had done to the car,³ and stated that the car drove well and was in fine running order,⁴ that it was "rust-free," and that he had been storing the car in a heated garage. Ghosh claimed that he was impressed by Herting's apparently extensive knowledge of Jaguars and the fact that he had maintained and worked on so many other Jaguars in the GJP collection. Ghosh gained further confidence in Herting, he testified, because Herting made apparently forthcoming acknowledgments that the hood "didn't fit exactly right," the seats had not been replaced, and the right rear quarter of the car was not original. After their first phone conversation, Herting emailed Ghosh approximately twenty photographs of the red Jaguar. Ghosh added that, at some point, he inquired about having the Jaguar inspected in South Dakota, but Herting had dissuaded him by claiming that Ghosh would be unable to find an impartial opinion because all of the potential inspectors knew him. Herting, by contrast, explained that while any potential South Dakota inspectors would know him because he and Johnson had essentially the only Jaguar collection in the state, he had suggested that Ghosh have the car inspected in a neighboring state.

Ghosh called Herting and offered him a price of $35,000, $3,000 below the asking price. Herting testified that Ghosh offered that price in exchange for taking the car "as-is" and without inspection. Both Herting and Johnson testified that it was not unusual in the marketplace for buyers to purchase used Jaguars without inspection, and that they had previously done so. Ghosh denies that he offered to purchase the car "as-is." He admits that he elected not to have the car inspected, blaming Herting and Mooney for inducing him into such a high level of confidence in the red Jaguar that he believed none was warranted.

In response to Ghosh's offer, Herting indicated that he needed to consult with his partner and asked Ghosh to call him back later. When Ghosh called, Herting accepted the offer on behalf of GJP. The parties agreed that they would meet at Classic Jaguar in Austin to conclude the transaction. It is undisputed that this location was chosen because Herting had previously planned a trip to Austin with an empty trailer to pick up a race car GJP had purchased from Classic Jaguar. Johnson and Herting added that these terms were part of the parties' deal: they claimed that Ghosh agreed to forego an inspection if Herting would deliver the car to Texas at no charge.

On the following morning, Ghosh sent the following email to Herting:

Richard

I wanted to say thanks to you and your partner on agreeing to the deal we discussed by phone last night. As my very first E-Type this will be a boyhood ambition realised.

When convenient perhaps you could let me know the VIN so I can organise insurance etc. I am looking forward to meeting you at Dan's [Mooney's] Jaguar . . . I shall bring a certified cheque in favour of "G.J.P. Inc."

Similarly, Ghosh arranged with Mooney, in advance of his meeting with Herting, to have work done on the red Jaguar, including a hood realignment and installation of seat belts.⁵ He also made plans to drive the car over the weekend (the agreed-upon meeting date was a Friday) before returning the car to Classic on the following Monday to have the work performed. But Ghosh, at trial, dismissed as "complete nonsense" the notion that he had agreed to purchase the Jaguar while it was still in South Dakota. Instead, he characterized the parties' "deal" as being limited only to the price Ghosh would pay if he decided to purchase the...