Milt Ferguson Motor Co. v. Zeretzke

• Decision Date: 31 December 1991
• Docket Number: No. 04-91-00038-CV,04-91-00038-CV
• Citation: 827 S.W.2d 349
• Parties: MILT FERGUSON MOTOR COMPANY and General Motors Corporation, Appellants, v. Norbert ZERETZKE and Jerry A. Zeretzke, Appellees.
• Court: Texas Court of Appeals

Page 349

827 S.W.2d 349

MILT FERGUSON MOTOR COMPANY and General Motors Corporation, Appellants, v. Norbert ZERETZKE and Jerry A. Zeretzke, Appellees.

No. 04-91-00038-CV.

Court of Appeals of Texas,

San Antonio.

Dec. 31, 1991.

Kathleen Gillette Rosenblum, Foster, Lewis, Langley, Gardner & Banack, Inc., San Antonio, for appellants.

Peter Torres, Jr., Law Offices of Peter Torres, Jr., San Antonio, for appellees.

Before BUTTS, CHAPA and STEPHENS ¹, JJ.

OPINION

STEPHENS, Justice (Retired).

Appellants, Milt Ferguson Motor Company and General Motors Corporation bring ten points of error in support of their appeal from a joint and several judgment against them in a suit brought by Norbert and Jerry A. Zeretzke, Appellees. Suit was for damages for breach of contract, breach of the duty of good faith and fair dealing, failure of consideration, and violations of the Texas Deceptive Trade Practices--Consumer Protection Act, arising out of the purchase and ownership of a 1987 Pontiac Grand Am automobile. Appellants counterclaimed against appellees for attorney's fees under Section 17.50 of the Texas Deceptive Trade Practices--Consumer Protection Act. Trial before the court resulted in a joint and several judgment in the amount of $29,500.00.

Points of error number one through five, seven, eight, and ten complain that there is no evidence or insufficient evidence to support certain findings of fact and conclusions of law. Points of error number six and nine, complain that the trial court abused its discretion by the admission of certain testimony at the trial, over timely objection.

Appellees bring one cross-point of error in which they assert that the trial court erred in failing to award appellees attorney's fees for appeal.

We disagree with each of appellants points of error, and with appellees cross-point of error, and, accordingly, we affirm the judgment of the trial court.

STANDARD OF REVIEW

After trial to the court, the court entered its findings of fact and conclusions of law. Such findings of fact are of the same force and dignity as a jury's verdict upon special issues. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.). In reviewing the sufficiency of the evidence to support the findings of fact, we must consider only the evidence and the reasonable inferences that can be drawn therefrom. Cameron v. Terrell & Garrett, 618 S.W.2d 535, 541 (Tex.1981). In considering no evidence points the court will consider only the evidence tending to support the finding, viewing it in the most favorable light in support of the finding, giving effect to all reasonable inferences that may properly be drawn therefrom and disregarding all contrary or conflicting evidence. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981).

Furthermore, this court may not substitute our conclusions for that of the finder of fact. Only when we find the evidence to be so against the great weight and preponderance of the evidence as to be manifestly wrong or unjust may we reverse the findings of the trier of fact. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 Tex.B.J. 439. Suffice it to say that the trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.).

FACTS

On June 26, 1987, the Zeretzkes, husband and wife, purchased a car from Milt Ferguson Motor Company. The vehicle was sold with a new car warranty of 5 years/60,000 miles.

Three months after purchase, the car lost oil pressure, and Mr. Zeretzke returned the vehicle to the dealership and, after it was repaired, was told "the repairs were done." Less than thirty days later, water leaked on the floorboard. That problem was not properly repaired because three weeks later, four inches of water covered the floorboard.

In May 1988, after complaints about engine noise, Ferguson Motor Company replaced the cam shafts, the bearings and cam gears and lifters and told appellee that the work had been done and that the car was in good shape. After the repairs the engine noise continued, and when Mrs. Zeretzke took the car in on two occasions to complain, she was told each time by the service manager that he could not hear the noise. Thus no further repairs were made. The oil leak problems continued through 1989 as did the noise in the engine.

In February, 1989 they took the vehicle to an independent repairman, a Mr. Wardell Gray. At this time the vehicle had 68,000 to 69,000 miles on it. Mr. Gray is not a certified mechanic, nor has he had any formal training with regard to GM engines. After Mr. Gray's inspection of the vehicle, he told them that there were cracks in the engine block. When inspected by the dealership, on July 3, 1989, the cam gear noise was verified.

On October 19, 1989, this suit was instituted. The parties waived a jury trial and tried the cause to the judge, who, at the close of the evidence found for the Zeretzkes and awarded damages for repairs, loss of use and mental anguish.

POINT OF ERROR NO. 1

Under point of error one, appellants contend that there is no evidence or insufficient evidence to support Finding of Fact No. 2 and Conclusion of Law No. 3 that defendants misrepresented that the goods or services were of a particular standard, quality or grade.

The trial court entered its Finding of Fact No. 2 that:

Plaintiffs are 'CONSUMER' as defined in § 17.45 of the DTPA.

Based upon this finding, the trial court entered its Conclusion of Law No. 3 that:

The Defendants, GENERAL MOTORS CORPORATION and MILT FERGUSON MOTOR COMPANY violated TEX.BUS. & COM.CODE ANN. § 17.46(B)(5) AND (7), in representing to Plaintiffs in May, 1988, that repairs had been properly performed and such conduct was the producing cause of Plaintiffs' damages.

A careful reading of appellant's Point of Error No. 1, reveals no complaint as to the Finding of Fact No. 2 that plaintiffs are consumers; accordingly, despite the language of the point of error, we need not address the court's finding that plaintiffs are consumers, absent a challenge; however we agree with the trial court that plaintiffs are consumers under the DTPA.

The gist of appellant's argument under Point of Error No. 1, is twofold; first, that the representations made by Ferguson Motor Company to the Zeretzkes concerning both the purchase and the repairs of the automobile were mere puffing and thus not actionable; and second, that there was no finding of agency between Ferguson Motor Company and General Motors, and that absent such finding, General Motors Corporation cannot be held liable.

First, we disagree with the contentions of appellants that because General Motors Corporation had no direct contact with the appellees when the automobile was purchased, it cannot be liable.

Appellees alleged, without exception, that:

Defendants' acts in selling said motor vehicle were committed knowingly and were the producing cause of Plaintiffs' damages as more fully set out hereafter. These were committed knowingly because Defendants herein knew of the problems Plaintiffs had with the vehicle and assured the Plaintiffs that the problems had been resolved when in fact they had not as evidenced by the fact that Plaintiffs had to return the vehicle for the same problems and the same problems still exist.

In support of these allegations, evidence was adduced that the vehicle was purchased as a new vehicle, on which a manufacturer's warranty was issued. During trial evidence was presented that the engine had a crack of manufacturer's origin. Before purchase, appellees were told that they would get better service out of the new vehicle than the Calais that they were driving which had been driven 80,000 miles without significant mechanical difficulties. After purchase, when mechanical difficulties arose, the car was taken in for repair, and appellees were assured that the problems of which they complained had been properly repaired when in fact the problems continued to exist.

In May 1988 Ferguson Motor Company replaced the cam shafts, the bearings and cam gears and lifters and told appellees that the work had been done and that the car was in good shape. After these repairs the engine noise continued, and when Mrs. Zeretzke took the car in on two occasions to complain, she was told each time by the service manager of Ferguson Motors that he could not hear the noise; yet when inspected on July 3, 1989, by the dealership, the cam gear noise was verified.

Evidence was adduced that before purchase of the car both Mr. and Mrs. Zeretzke had read pamphlets at the dealership, magazine and newspaper articles concerning the quality of the car as a "good, excellent motor vehicle." Furthermore, the salesman at the Ferguson Motor Company kept telling them "how good the car was and the quality of it," that it was a better car than the Calais that we had." The salesman told them that they would get as good or better service out of the car, than they had from the Calais.

It has been held that a consumer, without regard to privity, can recover against a manufacturer whose defective product causes the consumer to suffer injury. Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77, 81 (Tex.1977). In Ford Motor Co. v. Lemieux Lumber Co., 418 S.W.2d 909 (Tex.Civ.App.--Beaumont 1967, no writ), the court permitted recovery directly against Ford who contended that no cause of action was proved against it because it was not a party to the sales contract. The court relied on the case of United States Pipe and Foundry Co. v. City of Waco, 130 Tex. 126, 108 S.W.2d 432 (1937) for the proposition that a manufacturer, who had made representations as to what the product would do even though there was no privity of...