Mercedes-Benz of North America, Inc. v. Dickenson

• Decision Date: 06 November 1986
• Docket Number: MERCEDES-BENZ,No. 2-86-022-CV,2-86-022-CV
• Parties: OF NORTH AMERICA, INC., and Ryan Oldsmobile, Inc., Appellants, v. David Vincent DICKENSON, Appellee.
• Court: Texas Court of Appeals

Page 844

720 S.W.2d 844

MERCEDES-BENZ OF NORTH AMERICA, INC., and Ryan Oldsmobile, Inc., Appellants, v. David Vincent DICKENSON, Appellee.

No. 2-86-022-CV.

Court of Appeals of Texas,

Fort Worth.

Nov. 6, 1986.

Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., Dallas, for Mercedes-Benz.

Gandy, Michener, Swindle, Whitaker & Pratt, J. Shelby Sharpe, Fort Worth, for Ryan Olds.

Shannon, Gracey, Ratliff & Miller, Tim G. Sralla, Fort Worth, for appellee.

Before FENDER, C.J., and BURDOCK and HILL, JJ.

OPINION

FENDER, Chief Justice.

Defendants, Ryan Oldsmobile, Inc. (hereinafter "Ryan") and Mercedes-Benz of North America, Inc. (hereinafter "Mercedes") appeal from a judgment against them and in favor of plaintiff, David Vincent Dickenson, in an action brought for breach of warranty, negligence, and deceptive trade practices in the sale and repair of a 1982 Mercedes-Benz 300D. Dickenson originally only sued Ryan, the dealer, who impleaded Mercedes, the manufacturer, in a cross-claim for indemnity. The jury found Ryan and Mercedes jointly and severally liable for $8,679.30 in actual damages, plus attorney's fees. The jury awarded Dickenson additional damages of $3,000 from Ryan and $7,000 from Mercedes based on their finding that the defendants' actions were committed knowingly. The judgment further ordered Mercedes to fully indemnify Ryan. Mercedes also appeals from the judgment on the question of Ryan's right to indemnity.

We affirm.

In April, 1982, Dickenson bought a 1982 Mercedes automobile from Ryan, an authorized Mercedes dealer, in Fort Worth. Ryan's salesman made a number of representations as to the quality and characteristics of the car in question. Dickenson signed a contract which included a disclaimer purporting to exclude all warranties except those found in the Mercedes warranty booklet to be delivered with the car. Dickenson did not receive a copy of the warranty booklet until the car was delivered. The warranty, running from the manufacturer only, limited Dickenson's remedies to repairs or replacements necessary to correct defects in material or workmanship. The repairs were to be performed by any authorized Mercedes-Benz dealer. This warranty and any warranties implied by law were limited to the first 36 months or 36,000 miles.

Within three weeks, Dickenson began experiencing trouble with the car, including a defect in the transmission. Numerous other defects appeared over the next eight months. Dickenson returned the car for repairs at least seven times during that period. The transmission was replaced at least two times and still did not operate properly. Several other defects were never corrected despite repeated attempts by the appellants to do so.

In December 1982, Dickenson offered to return the car to Ryan for a full refund or replacement with a car which was not defective. Both appellants refused this offer. Dickenson then solicited four bids on the car and sold it, in April 1983, to the highest bidder.

The jury's answers to the special issues can be summarized as follows:

1) Ryan knowingly represented that the car was of a particular standard, quality, or grade with respect to its transmissions when it was of another, which was a producing cause of damage to the plaintiff, see TEX.BUS. & COM.CODE ANN. secs. 17.50(a)(1), 17.46(b)(7) (Vernon Pamph.Supp.1986);

2) Ryan knowingly represented that its repair services were of a particular standard, quality, or grade when they were of another, which was a producing cause of damage to the plaintiff, see id.;

3) Mercedes knowingly engaged in an unconscionable act or course of action in failing to provide proper replacement parts in connection with repair made to the car, which was a producing cause of damage to the plaintiff, see TEX.BUS. & COM.CODE ANN. sec. 17.50(a)(3) (Vernon Pamph.Supp.1986);

4) Ryan knowingly made untrue express warranties to the effect that:

a) the car was of the highest quality and the best car Mercedes had yet produced;

b) the car would get 33 miles to the gallon on the highway and 27 miles to the gallon in town; and

c) Ryan could or would and had properly repaired the car,

each of which were a producing cause of damage to the plaintiff, see TEX.BUS. & COM.CODE ANN. sec. 17.50(a)(2) (Vernon Pamph.Supp.1986);

5) Ryan and Mercedes were negligent in failing to properly repair the car and in failing to provide or install proper replacement parts for the car, each of which was a proximate cause of damage to the plaintiff; and

6) the car was not reasonably fit for its ordinary intended purposes when purchased, see TEX.BUS. & COM.CODE ANN. sec. 2.314 (Tex.UCC) (Vernon 1968); TEX.BUS. & COM.CODE ANN. sec. 17.50(a)(2).

The award of damages was based on these findings. Further findings were the basis for the award of indemnity. Those findings were:

1) Ryan followed Mercedes' factory guidelines in regard to the repair work it did on the car 2) there was a defect or defects in the car when it left Mercedes' possession; and

3) such defects were the reason Ryan was unable to repair the car so as to make it reasonably fit for its ordinary intended purposes.

Finally, the jury found that 30% of the negligence which caused the plaintiff's damages was attributable to Ryan while 70% was attributable to Mercedes.

On appeal Ryan brings three points of error contesting the judgment in favor of Dickenson. Mercedes brings nineteen points of error also contesting that judgment. In addition, Mercedes brings five points of error contesting the judgment for indemnity of Ryan.

In its first point of error, Ryan claims that the judgment cannot stand because no evidence of damages was offered at trial. Ryan contends that the only offer of such evidence, Dickenson's opinion as to the market value of the car when purchased, was legally insufficient to establish the car's market value when purchased. Ryan asserts that Dickenson's testimony was "no evidence" of market value because, even though Dickenson was the owner of the car, he failed to show two things: 1) that he was familiar with the market value at the time of purchase of a car with defects such as his had, and 2) that his opinion referred to market value as opposed to personal value. See Vista Chevrolet, Inc. v. Lewis, 704 S.W.2d 363, 371 (Tex.App.--Corpus Christi 1985), rev'd on other grounds, 709 S.W.2d 176 (Tex.1986); see also, Porras v. Craig, 675 S.W.2d 503, 505 (Tex.1984).

The actual damages to which a plaintiff is entitled in a DTPA case are the same as damages recoverable at common law. See Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980). The common law measure of damage for a case such as this one is the difference between the market value of the property as warranted and the market value of the property as delivered. See Johnson v. Willis, 596 S.W.2d 256, 262 (Tex.Civ.App.--Waco), writ ref'd n.r.e. per curiam, 603 S.W.2d 828 (Tex.1980). It is uncontested that the owner of property can testify as to its market value even though he cannot qualify to testify about the value of like property belonging to someone else. See Porras, 675 S.W.2d at 504. The Court in Porras explained further:

Even an owner's testimony, however, is subject to some restrictions. In order for a property owner to qualify as a witness to the damages to his property, his testimony must show that it refers to market, rather than intrinsic or some other value of the property. This requirement is usually met by asking the witness if he is familiar with the market value of his property. [Cites omitted.]

Id. at 504-05.

Appellant Ryan interprets the above language as a modification of the general rule that an owner may testify as to the market value of his property. Ryan contends that unless the owner at some point declares he is "familiar with" or "knows" the market value of his property, he is not qualified to give an opinion of the property's market value. Without such a declaration, Ryan urges an owner's testimony is "no evidence" even where he states that his opinion refers to market rather than intrinsic value. We do not interpret Porras to make such a requirement.

The facts in Porras clearly show that the property owner's testimony of his property's value in no way referred to market value. The owner was asked, "Mr. Craig, what in your opinion was the value of the property...." Id. at 505. The owner was not asked if he had an opinion of his property's market value. Mr. Craig replied, "[a]bout fifteen [thousand dollars]." Id. When asked the basis for this opinion Mr. Craig answered:

Well I bought this land to build a retirement home on and I am fifty-seven and my wife is fifty-six and she's not--she's crippled so she wants to get out in the country, too. And we bought that for that reason and now we are afraid to build out there. And the reason we're afraid is because of the exotic animals that will be put next to us. Also they patrol the fence with guns. A sign on their fence [sic] they'll shoot if you go across that fence. And about a month ago there was a fire started on the grass on my property and burned in under my trees and if my wife had been there by herself she couldn't have got away.

Id.

Although the Court found such testimony constituted no evidence, the language immediately following that determination shows that Ryan's interpretation of Porras is incorrect. The Court continued:

We should not be understood as retreating from the general rule that an owner is qualified to testify about the market value of his property. Moreover, this is not just a case in which the lawyer failed to ask his client if he was familiar with the market value of the property. Instead, in this case the owner's testimony affirmatively showed that he referred to personal rather than market value. See Stinson v. Cravens, Dargan & Co., 579 S.W.2d 298 (Tex.Civ.App.--Dallas 1979, no writ). Mr. Craig was qualified to...