Glockzin v. Rhea

• Decision Date: 07 January 1988
• Docket Number: No. 01-86-00881-CV,01-86-00881-CV
• Citation: 760 S.W.2d 665
• Parties: Emanuel H. GLOCKZIN, Jr., Appellant, v. Leon RHEA d/b/a Leon's Truck Shop, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 665

760 S.W.2d 665

Emanuel H. GLOCKZIN, Jr., Appellant, v. Leon RHEA d/b/a Leon's Truck Shop, Appellee.

No. 01-86-00881-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 7, 1988.

Rehearing Denied March 10, 1988.

Stuart F. Lewis, Dillon, Lewis, Elmore, & Smith, Bryan, for appellant.

Jay B. Goss, Vancee, Bruchez & Goss, Bryan, for appellee.

Before EVANS, C.J., and DUGGAN and HOYT, JJ.

OPINION

EVANS, Chief Justice.

The appellant Emanuel H. Glockzin, Jr., who is engaged in the heavy construction and trucking business, initiated this action against the appellee, Leon Rhea, d/b/a Leon's Truck Shop, a truck repair company, to secure possession and recover damages for the loss of use of his 1973 Peterbilt truck. Rhea filed a counterclaim seeking to recover the sum of $12,038.80, which he represented to be the unpaid balance due by Glockzin for repairs made on the truck. The trial court granted an ex parte temporary restraining order directing the return of the truck to Glockzin, but the record does not show that a hearing was held on the application for a temporary injunction. The cause proceeded to trial before a jury, which found all issues in favor of Rhea. The jury refused to find that Rhea had breached an oral agreement with Glockzin to repair Glockzin's truck in a good and workmanlike manner, and it also refused to find that Rhea had made any misrepresentations or engaged in any unconscionable conduct with respect to his repair warranty. The jury also found that Glockzin had suffered "0" damages and that Rhea was entitled to the sum of $10,038.80 plus attorney's fees for the parts used and services performed in the repair of Glockzin's truck.

In seven points of error, Glockzin asserts: (1) that the evidence established, as a matter of law, that Rhea breached a "severable" contract for repair services; (2) that the jury's failure to find a breach of such contract is against the great weight of the evidence; (3) that the evidence established, as a matter of law, Rhea's misrepresentation of the repair warranty in violation of the Deceptive Trade Practices Act; (4) that the jury's failure to find such misrepresentation is against the great weight and preponderance of the evidence; (5) that there is no evidence to support the award of $10,038.80 to Rhea; (6) that the jury's finding in that respect is not supported by factually sufficient evidence; and (7) that because the evidence is insufficient to support an award of actual damages to Rhea, attorney's fees should not have been awarded.

To determine a "matter of law" or "no evidence" point, this Court must disregard all evidence contrary to the verdict, and if there is any remaining evidence that would support the verdict, the trial court's judgment must be upheld. McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex.1986). In reviewing the factual sufficiency of the evidence, this Court is to consider and weigh all the evidence in the case and to set aside the verdict if it concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We may not substitute our opinion for that of the trier of fact merely because we might have reached a different conclusion. Thompson v. Wooten, 650 S.W.2d 499, 501 (Tex.App.--Houston [14th Dist.] 1983, writ ref'd n.r.e.).

There is evidence in the record from which the jury could reasonably have decided that Rhea did not breach his contract with Glockzin regarding the repairs on Glockzin's truck. There was a history of past dealings between Glockzin and Rhea, and Glockzin had several truck repairs made at Leon's Truck Shop. Their standard arrangement was for payment for all repairs to be made in 30 days, and all repairs had a 90-day warranty on parts and labor. In December 1984, Glockzin took his truck to Rhea for an "in-frame overhaul," and Rhea's invoice dated December 20, 1984, shows that the charges for that overhaul work totaled $9,518.78. It was agreed that Glockzin would pay one-half of that amount in 30 days with the balance due in 60 days. On January 9, 1985, Glockzin returned the truck to Rhea for an additional repair service, and Rhea issued an invoice of $1,338.61, which amount was added to Glockzin's account. On January 31, 1985, a third repair service was rendered by Rhea, and a charge of $1,181.41 was added to Glockzin's account.

At that point, Glockzin had not made any payment toward reduction of his account with Rhea, so that the unpaid balance totaled $12,038.80.

On February 12, 1985, the truck had a breakdown due to overheating, and Glockzin had the truck towed to Rhea's shop. Rhea told Glockzin that he would look at the truck, and if the repairs were the fault of his materials or workmanship, he would repair the truck under warranty. If, on the other hand, the problem was not due to his repair work, Glockzin would have to pay for the repairs. On February 13, 1985, Glockzin issued a check to Rhea for $5,000. The check stub bears invoice numbers indicating that the check was partial payment of the December 20, 1984, and January 9, 1985 invoices.

Rhea proceeded to perform a second "in-frame overhaul" on the truck, and on February 14, 1985, Rhea presented Glockzin with an invoice for that work in the amount of $6,184.13. When Glockzin refused to pay that amount, Rhea refused to surrender possession of the truck. On March 15, 1985, Glockzin recovered possession of his truck under the temporary restraining order after issuing a check to Rhea for $1,184.13 dated March 15, 1985. At trial, Glockzin testified that the $5,000 check was partial payment for the December 1984 invoice. He testified at one point that the $1,184.13 payment was made to obtain release of the truck, but he later testified that it was in payment of the January 31, 1985, invoice, which was for $1,181.41. He said that he considered the February overhaul to be warranty work for which there should have been no charge.

On March 28, 1985, Glockzin returned the truck to Rhea for additional work, and Rhea again repaired the truck and issued an additional bill for $402.13. Glockzin issued a check for $402.13 and picked up the truck on April 3. That same day, the truck had a breakdown and was towed to Rhea's shop. Rhea advised Glockzin that the breakdown was covered by the warranty from the second overhaul performed on February 14, 1985, but that he would not perform any work under the warranty until Glockzin's entire bill in the amount of $12,038.80 was paid.

On April 8, 1985, Glockzin paid $2,000 to Rhea, but Rhea still refused to do the work. The jury's award to Rhea was the claimed amount of $12,038.80, less the credit of $2,000 for the April 8 payment.

On appeal, Glockzin contends that the undisputed evidence shows that the repairs made on February 14 and March 29 were fully paid for, and that the earlier repairs made on December 20, January 9, and January 31, remained "on account" and did not justify Rhea's refusal to meet his warranty obligations for the February 14 repair work. Thus, Glockzin argues that each of the five repair transactions was performed under a "severable...