Najarian v. David Taylor Cadillac

• Decision Date: 13 February 1986
• Docket Number: No. 01-85-0647-CV,01-85-0647-CV
• Parties: Joe NAJARIAN, Appellant, v. DAVID TAYLOR CADILLAC, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 809

705 S.W.2d 809

Joe NAJARIAN, Appellant, v. DAVID TAYLOR CADILLAC, Appellee.

No. 01-85-0647-CV.

Court of Appeals of Texas Houston (1st Dist.).

Feb. 13, 1986.

Joe R. Blackburn, Blackburn, Gamble, Henderson & Grubb, Houston, for appellant.

Barton T. Westmoreland, Johnson, Wurzer & Westmoreland, Houston, for appellee.

Before EVANS, C.J., and JACK SMITH and WARREN, JJ.

OPINION

WARREN, Justice.

This is an appeal from a summary judgment that dismissed appellee as a defendant in a deceptive practices case.

On August 30, 1982, Maurice A. Levine traded a 1979 Cadillac Sedan DeVille to appellee as part of the purchase price of a new Cadillac. On or before September 3, appellee, a new and used car dealer, sold the 1979 Cadillac to William Rogers, agent of Laura Roberts d/b/a R & R Auto Sales (R & R Auto), a used car dealer, and furnished an odometer mileage statement showing that the vehicle had been driven 89,510 miles. R & R Auto did not pay for the car upon delivery, and it did not receive a certificate of title at that time. Pursuant to an existing agreement between appellee and R & R Auto, appellee allowed Rogers to remove the vehicle from the premises and to submit a draft for payment at a later date.

On September 8, Rogers, acting on behalf of R & R Auto, sold the 1979 Cadillac to appellant for $5,876. An odometer mileage statement furnished by R & R Auto showed the mileage as "unknown." However, appellant claims that Rogers told him before the sale that an odometer reading of 45,500 miles, which had appeared earlier on the vehicle's speedometer, was correct.

After appellant bought the vehicle, he began having trouble with it and incurred repair bills of $739.01.

On February 10, 1983, appellant sued Laura Roberts d/b/a R & R Auto Sales and Rogers, individually, alleging violation of Tex.Bus. & Com.Code Ann. sec. 17.46 (Vernon Supp.1986) (the Deceptive Trade Practice-Consumer Protection Act). He also sued appellee alleging that it negligently entrusted the automobile to R & R Auto and that an agency relationship existed between appellee and R & R Auto.

Appellee filed a motion for summary judgment together with supporting affidavits, documents, and deposition testimony.

Appellant filed a response to the summary judgment contending that under Tex.Rev.Civ.Stat.Ann. art. 6687-1, secs. 33 and 53 (Vernon 1977) (the Certificate of Title Act (the Act), no title to any motor vehicle shall pass or vest until the title is transferred; therefore, appellee was liable to appellant for his damages. Appellant submitted no evidence in support of his response. On June 4, 1984, the trial court granted appellee an interlocutory summary judgment, which became final after judgment was entered in favor of appellant against R & R Auto on June 7, 1985.

In his sole point of error, appellant argues that because there had been no transfer of the certificate of title from appellee to R & R Auto on the date of appellant's purchase, the sale of the vehicle to R & R Auto was void, despite the purchase contract between R & R Auto and appellant. Therefore, appellant contends, a fact issue exists as to whether appellee, as actual owner on September 8, 1982, is liable to appellant under the claims raised in appellant's pleading.

A defendant is entitled to prevail on a motion for summary judgment if he establishes, as a matter of law, that there exists no genuine issue of material fact as to one or more elements of plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Federated Department Stores, Inc. v. Houston Lighting & Power Co., 646 S.W.2d 509, 511 (Tex.App.--Houston [1st Dist.] 1982, no writ). Once the defendant has negated, as a matter of law, such elements of plaintiff's cause of action, plaintiff has the burden of introducing evidence that raises issues of fact with respect to the elements negated by defendant's summary judgment evidence. Federated Dept. Stores, 646 S.W.2d at 511. This evidence must be of probative force. Woolhouse v. Tolchin Instruments, Inc., 601 S.W.2d 106 (Tex.Civ.App.--Dallas 1980, no writ).

These facts are undisputed: R & R Auto took possession and control of the vehicle from appellee prior to appellant's purchase of the vehicle; appellee did not receive payment for the vehicle until after appellant had purchased it from R & R Auto; the certificate of title did not transfer the vehicle to R & R Auto prior to appellant's purchase of the vehicle.

On appeal, appellant has confined his argument to whether appellee was the owner of the vehicle at the time of appellant's purchase. This issue raises a question concerning the legal effect of the Act upon the transfer of the vehicle from appellee to R & R Auto. As such, the determination of such legal effect is a question of law. Smith v. Allstate Insurance Co., 467 F.2d 104, 106 (5th Cir.1972).

Appellee presented evidence in support of its motion for summary judgment that at the time of the purchase by R & R Auto, appellee was a licensed new and used automobile dealership. As such, it was exempt from the requirement of making application for a certificate of title before selling or disposing of the automobile. National Automobile & Casualty Insurance Co. v. Alford, 265 S.W.2d 862, 865 (Tex.Civ.App.--Eastland 1954, writ ref'd n.r.e.); First State Bank v. Austin, 315 S.W.2d 390 (Tex.Civ.App.--San Antonio 1958, writ ref'd). However, appellant contends that under no circumstance does the purchaser get ownership and title until there is compliance with the Act. The case law does not support appellant's contention.

The legislative intent of the Certificate of Title Act was to lessen and...