Gunn Buick, Inc. v. Rosano

• Court: Texas Court of Appeals
• Writing for the Court: Before CHAPA; CHAPA; GREEN; GREEN
• Citation: Gunn Buick, Inc. v. Rosano, 907 S.W.2d 628 (Tex. App. 1995)
• Decision Date: 16 August 1995
• Docket Number: No. 04-94-00307-CV,04-94-00307-CV
• Parties: GUNN BUICK, INC., Appellant, v. Frank A. ROSANO & Elizabeth Rosano, Appellees.

Page 628

907 S.W.2d 628

GUNN BUICK, INC., Appellant, v. Frank A. ROSANO & Elizabeth Rosano, Appellees.

No. 04-94-00307-CV.

Court of Appeals of Texas San Antonio.

Decided Aug. 16, 1995.

Rehearing Denied Sept. 15, 1995.

Jonathan Yedor, San Antonio, for Appellant.

Peter Torres, Jr., Law Office of Peter Torres, Jr., P.C., San Antonio, for Appellees.

Before CHAPA, C.J., and STONE and GREEN, JJ.

CHAPA, Chief Justice.

Appellant, Gunn Buick, Inc., appeals an adverse judgment in favor of appellees Frank A. Rosano and Elizabeth Rosano, based on alleged violations of the Texas Deceptive Trade Practices-Consumer Protection Act ¹ and the Texas Consumer Credit Code. ² The issues before this court are whether:

(1) there is legally insufficient evidence to sustain the jury findings of violations of the Deceptive Trade Practice Act or the Texas Consumer Credit Code;

(2) there is factually insufficient evidence to sustain the jury findings of violations of the Deceptive Trade Practice Act or the Texas Consumer Credit Code;

(3) the trial court committed reversible error in submitting question no. 1 to the jury over appellant's timely objection that it was not supported by appellees' pleadings; and

(4) the trial court committed reversible error in failing to submit appellant's tendered question.

Initially, appellant contends that there is legally and factually insufficient evidence to sustain the jury findings of violations of the Deceptive Trade Practices Act or the Texas Consumer Credit Code.

In considering a "no evidence" or legal insufficiency point, we consider only the evidence and reasonable inferences favorable to the decision of the trier of fact and disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

In considering a factual insufficiency point, we may not substitute our judgment for that of the jury, but must assess all the evidence and reverse for a new trial only if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, shocks the conscience, or clearly demonstrates bias. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). "In considering an 'insufficient evidence' point, we must remain cognizant of the fact that it is for the jury, as the trier of fact, to judge the credibility of the witnesses, to assign the weight to be given their testimony, and to resolve any conflicts or inconsistencies in the testimony." Commonwealth Lloyd's Ins. Co. v. Thomas, 678 S.W.2d 278, 289 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.); Texas Employers Ins. Ass'n v. Jackson, 719 S.W.2d 245, 249-50 (Tex.App.--El Paso 1986, writ ref'd n.r.e.).

The record reflects that in 1992, appellees went to the appellant seeking to purchase a new car based on an advertisement they had seen in the newspaper. According to the appellees, the advertisement indicated that the appellant was offering to sell new cars with a $2,500.00 discount and a $1,000.00 rebate. Extended and difficult negotiations took place with appellant's salesman Maurice Andrade that reflected appellees' insistence in obtaining all discounts and rebates they were entitled to. As a result, appellees purchased a 1992 Buick Century automobile and traded in their 1987 Buick LeSabre. Thereafter, upon receiving their copy of the Retail Installment Contract through the mail, appellees discovered that no mention was made of the discount and/or rebate in any of the documents. Upon confronting Andrade, appellees were told that they would have to discuss the matter with the general manager, which they did. Appellees were advised by the general manager that the custom was merely to include any rebates and/or discounts in the trade-in figure without any further designation in the Retail Installment Contract, and that their rebates and discounts had already been included in the trade-in figure. Because appellees insisted they were never told at the time of the sale that the discounts and/or rebates were included in the $6,486.00 trade-in credit, they contacted an attorney. This lawsuit followed.

Appellees further testified that the car they traded in had been purchased from appellant a few years before for approximately $8,000.00, and that it was worth around $6,000.00 at the time of the disputed sale, which resulted in the $6,486.00 trade-in figure in the Retail Installment Contract. On the other hand, appellant's employees conceded during the trial that no discount and/or rebate appears in any of the documentation of the sale, but explained that the $6,486.00 trade-in figure included $3,986 for the vehicle traded in, a $1000.00 rebate, and a $1,500.00 discount. However, these amounts do not appear in the Retail Installment Contract introduced into evidence. ³ Moreover, during the trial, appellant's salesman Andrade admitted that when testifying in deposition under oath, he had agreed that he had made a representation to the appellees "that the $6,486 was going to be the amount of his trade-in." He also stated, however, that the statement in the deposition had been a mistake on his part.

The question of credibility was clearly before this jury, and this court has no authority to substitute its judgment on the credibility of the witnesses, the assignment of weight to be given to their testimony, or the resolution of any conflicts or inconsistencies in the testimony. Commonwealth, 678 S.W.2d at 289. There is justification for this doctrine, for where this court deals with a cold-blooded record of words, the jury has the advantage of not only hearing the testimony, but also seeing the witnesses and all the surrounding circumstances that play a part in the processes of determining credibility. Considering the standard of review for both legal and factual insufficiency points and the deference that must be paid to the fact finders, we cannot conclude that there is no evidence to sustain the jury finding of violations of the Deceptive Trade Practices Act or the Texas Consumer Credit Code. Davis, 752 S.W.2d at 522. We further cannot conclude that the findings as to the violations are so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Pool, 715 S.W.2d at 635. The points are rejected.

Appellant next complains that the trial court erred in submitting Question No. 1 to the jury over appellant's timely objection that it was not supported by appellees' pleadings. ⁴

In the absence of special exceptions, we must liberally construe a petition in favor of the pleader. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982); see TEX.R.CIV.P. 45. The petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. Roark, 633 S.W.2d at 810.

In view of the fact that appellant failed to file special exceptions to the pleadings of the appellees, we must liberally construe appellees' pleadings. Roark, 633 S.W.2d at 809. Appellant's objection stems from taking one sentence from the pleadings out of context without regard to the totality of the pleadings. A review of the entire pleadings of the appellees reveals that they gave clear, fair, and adequate notice to appellant of the facts upon which the appellees based their claim. Id. at 810. Moreover, the fact that appellant found no need to file special exceptions and was obviously well prepared to defend the limited issues involved during trial also justifies our conclusion that appellant was properly notified by the pleadings of the allegations against which it was to defend. The point is rejected.

Finally, appellant contends that the trial court erred in failing to submit appellant's tendered question. ⁵

The trial court has wide discretion in determining the proper issues and instructions to be submitted to the jury. Scott v. Ingle Bros. Pacific, Inc., 489 S.W.2d 554, 557 (Tex.1972); see Royal Ins. Co. v. Goad, 677 S.W.2d 795, 800-01 (Tex.App.--Fort Worth 1984, writ ref'd n.r.e.). Broad-form submission is encouraged. Rule 277 of the Texas Rules of Civil Procedure provides in pertinent part: "In all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions. The court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict." TEX.R.CIV.P. 277; see Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass'n, 710 S.W.2d 551, 555 (Tex.1986); Lemos v. Montez, 680 S.W.2d 798, 801 (Tex.1984). Simplicity in the jury charge must be an overriding concern. Lemos, 680 S.W.2d at 801. The Pattern Jury Charge is an invaluable guide in the preparation of special issues and instructions. See Texas Employers Ins. Ass'n v. Duree, 798 S.W.2d 406, 413 (Tex.App.--Fort Worth 1990, writ denied). "[I]t is error to burden the jury with excess instructions which emphasize extraneous factors to be considered in reaching a verdict." First Int'l Bank v. Roper Corp., 686 S.W.2d 602, 605 (Tex.1985). "A judgment should not be reversed because of a failure to submit other and various phases or different shades of the same question." Sheldon L. Pollack Corp. v. Falcon Indus., Inc., 794 S.W.2d 380, 383 (Tex.App.--Corpus Christi 1990, writ denied); see TEX.R.CIV.P. 278.

Therefore, which explanations and definitions of legal terms may be necessary to enable the jury to answer each issue is within the sound discretion of the court. Consequently, reversal will not lie because a requested issue or instruction is refused, in the absence of a showing of a clear abuse of discretion.

"The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90...