Kissman v. Bendix Home Systems, Inc.
| Decision Date | 03 October 1979 |
| Docket Number | No. B-8229,B-8229 |
| Citation | 587 S.W.2d 675 |
| Parties | Martin W. KISSMAN et al., Petitioners, v. BENDIX HOME SYSTEMS, INC., Respondent. |
| Court | Texas Supreme Court |
Kuhn, Collins & Alexander, Richard W. Alexander, Austin, for petitioners.
Kendall, Randle, Finch & Osborn, Terrence Kendall, Austin, for respondent.
This case began as a deceptive trade practice case involving the sale of a mobile home. The primary question on this appeal is whether the pleadings were sufficient to allow evidence of cost of repairs. Plaintiff, Kissman, in a nonjury trial, recovered judgment against Laney, seller of the mobile home for $1.00, and against Bendix, the manufacturer, for $23,748.81 plus attorney's fees and court costs. Only Bendix appealed, and the Court of Civil Appeals reversed the trial court judgment and rendered judgment that Kissman take nothing. 582 S.W.2d 471.
The petition alleged:
(1) Kissman ordered from Laney a modular mobile home but received a "double-wide" mobile home;
(2) Representing "double-wide", to be "modular" was an express warranty of description under the Texas Business and Commerce Code and was a deceptive trade practice;
(3) There were 18 defects in the home, some of which were never repaired;
(4) The defects rendered the mobile home "unfit" as a home, breaching an implied warranty of fitness;
(5) Their order was incorrectly taken by Laney;
(6) The failure of Laney and Bendix to negotiate was a violation of Laney's implied warranty of merchantability;
(7) Kissman revoked his acceptance;
(8) Kissman sought to recover the market price of a mobile home ($22,000.00) as warranted by Laney and Bendix and incidental and consequential damages of the cost of moving to a replacement home and expenses for temporary lodging as provided by Section 2.715, Texas Business & Commerce Code.
Kissman prayed judgment against defendants, jointly and severally, for three times the actual damages as outlined above, ($72,000.00), attorney's fees, costs, and for such further relief to which they may be justly entitled.
Kissman, by his last witness, attempted to offer evidence on the cost of repairs. Bendix's objection, the trial court's remarks, and the witness' answer is as follows:
(To the Witness) Go ahead.
In its findings of fact, the trial court found the reasonable cost of repairing the damages to be $7,916.27, and entered judgment for three times this amount. Because Kissman did not assert a cause of action nor seek damages for cost of repairs, the Court of Civil Appeals held evidence on cost of repairs was not admissible.
Evidence of cost of repairs is not admissible if pleadings allege only the difference in the market value before and after a collision. Tinney v. Williams, 144 S.W.2d 344 (Tex.Civ.App. Amarillo 1950, no writ). Evidence of market value before and after a collision is not admissible under allegations of cost of repairs. South Plains Ready-Mix, Inc. v. McDermett, 278 S.W.2d 575 (Tex.Civ.App. Amarillo 1954, no writ).
Pleadings are sufficient under the Rules of Civil Procedure if they give fair and adequate notice to the adversary. Stone v. Lawyers Title Insurance Corporation, 554 S.W.2d 183 (Tex.1977). Rule 45, T.R.C.P. provides:
Pleadings in the district and county courts shall
(a) be by petition and answer.
(b) consist of a statement in plain and concise language of the plaintiff's cause of action or the defendant's grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be ground for objection when fair notice to the opponent is given by the allegations as a whole.
Kissman's trial pleadings do not give fair notice of a claim for reasonable and necessary cost of repairs. The variance between the pleadings and proof is substantial, misleading, and prejudicial and therefore, fatal. Stone v. Lawyers Title Insurance Corporation, supra.
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...relief consistent with the theory of the claim reflected in the petition may be granted under a general prayer. Kissman v. Bendix Home Sys., 587 S.W.2d 675, 677 (Tex.1979). The only viable theory of recovery alleged in Kline's Original Petition was for breach of contract. The general prayer......
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