Neily v. Arron, 2-85-222-CV

Citation724 S.W.2d 908
Decision Date28 January 1987
Docket NumberNo. 2-85-222-CV,2-85-222-CV
PartiesScott W. and Loretta L. NEILY, Appellants, v. Calvin AARON, d/b/a Quality Manufactured Housing, and Quality Mobile Homes; and National Mortgage Company of America, Appellees.
CourtCourt of Appeals of Texas

Crampton, Crampton & Estrada and Holly Crampton, Wichita Falls, for appellants.

Banner, McIntosh & Dobbs, and Jack Banner, Wichita Falls, for appellee Aaron.

Calhoun, Gump, Spillman & Stacy, and Jack C. Spillman, and William C. Smith Dallas, for Appellee Nat. Mortg. Co.

Before HOPKINS, FARRIS and KELTNER, JJ.

OPINION

KELTNER, Justice.

This is a revocation of acceptance case. The appellants, Scott and Loretta Neily, sought to revoke their acceptance of a mobile home bought from Quality Mobile Homes because it did not conform to the contract of sale. Trial was to the court and resulted in a take-nothing judgment and a judgment against the Neilys for the unpaid balance on the mobile home, attorneys' fees and foreclosures of various security interests.

We affirm.

The Neilys purchased the mobile home from Quality Mobile Homes in September of 1981. Quality is owned by Calvin Aaron who also does business as Quality Manufactured Housing. Quality ordered the home from the manufacturer, Melody Manufacturing, another defendant in the case. Once the mobile home was delivered, it was inspected and accepted by the Neilys. They signed an installment sales contract, including a limited warranty, and a security agreement for the mobile home itself and various appliances therein. Quality transferred title of the home to the Neilys and assigned the installment sales contract and securities agreement to National Mortgage Company, another appellee in this appeal.

Concurrently with the sale, the Neilys contracted with Aaron to "set up, block and tie down" the mobile home on a lot selected by them in a mobile home park. The Neilys became dissatisfied with the home after they noticed it was not level. They claimed that the home shook with any movement, the windows failed to close, various cabinets were not flush to the walls, and that due to the unlevel condition of the home, the doors would not open and close. These problems were reported to Quality, who directed individuals to try to remedy the situation. Also, the manufacturer was called in to see whether the frame of the trailer was in a damaged condition. However, the problems were not remedied to the Neilys' satisfaction. As a result, eight months later, the Neilys notified Quality that they revoked their acceptance of the home. Subsequently, they brought suit against Quality, Melody and National Mortgage, claiming breach of warranty and that they had revoked their acceptance of the mobile home due to its failure to conform to the contract of sale. They prayed for cancellation of the note and actual damages, including payments they had made on the note and attorneys' fees. The Neilys also sought a restraining order against National Mortgage from foreclosing its security interests on the mobile home or the contents therein. The trial court, upon agreement of National Mortgage, granted a temporary injunction that remained in effect during the pendency of the trial, a period of over forty months. National Mortgage counter-claimed for breach of installment sales contract and asked that the security interests be foreclosed.

At trial, the Neilys abandoned their breach of warranty claims and proceeded only on their theory of revocation of acceptance under sec. 2.608 of the Uniform Commercial Code. TEX.BUS. & COM.CODE ANN. sec. 2.608 (TEX.UCC) (Vernon 1968). Specifically, the Neilys claimed that the frame to the trailer collapsed when it was jacked up during the "set up, blocking, and tie down" procedure. They claimed this collapse caused the damages which prevented the mobile home from conforming to the contract. At the end of the plaintiffs' evidence, Melody Mobile Homes was dismissed from the lawsuit.

The trial court rendered judgment against the Neilys and granted judgment to National Mortgage for breach of the installment sales contract and granted judicial foreclosure. The court filed fifty-two conclusions of law and findings of fact, none of which have been directly challenged by the Neilys.

The Neilys bring three points of error.

At the outset, we must address whether the Neilys properly perfected their appeal. Quality contends that the Neilys' motion for new trial was a nullity because of its general allegations and as a result, it did not extend the time to file the appeal bond under TEX.R.CIV.P. 356(a). 1 Specifically, Quality complains of the "Motion for New Trial and Corrected Decree" which was filed by the Neilys. That document actually contains two motions. The first was to correct the final decree to conform with the oral announcement of judgment made in open court by the judge. The second part of the document is a motion for new trial. That motion simply asks for new trial without assigning any alleged error, stating:

NOW COMES Scott W. Neily and Loretta Neily, Plaintiffs herein and move this court to grant a new trial in this case.... Plaintiffs pray the Court grant a new trial in this cause....

This broad request and prayer for new trial does not conform with TEX.R.CIV.P. 321 and 322. Rule 321 requires that the motion for new trial refer to the particular matter complained of, "in such a way that the objection can be clearly identified and understood by the court." Rule 322 states emphatically that, "Grounds of objections couched in general terms ... shall not be considered by the court." The Neilys' motion for new trial did not direct the court's attention to any alleged error and as a result, the motion preserves no error for appeal. See Darryl v. Ford Motor Co., 440 S.W.2d 630, 633 (Tex.1969); Wagner v. Foster, 161 Tex. 333, 336, 341 S.W.2d 887, 891 (1960) (per curiam).

The question presented to this court is whether a timely filed motion for new trial that does not conform to the requisites of TEX.R.CIV.P. 321 and 322, thus preserving no error for appeal, nonetheless extends the time for perfecting appeal. TEX.R.CIV.P. 356(a) 2 mandates that an appeal bond must be filed within thirty days after the signing of the judgment, or, within ninety days after the judgment if a timely filed motion for new trial is filed. Appellants' appeal bond was filed 90 days after the judgment was signed.

This is a matter of first impression in Texas. We do not condone motions for new trial that do not aid the trial court by pointing out alleged error. There is a strong policy behind the requirements of rules 321 and 322. That policy is that the trial judge be fully aware of the errors complained of by an aggrieved party. Otherwise, the trial court cannot intelligently rule on a motion for new trial.

However, TEX.R.CIV.P. 356 3 states the time for filing an appeal bond is extended if a "timely motion for new trial" is filed. The rule does not state that the motion for new trial must comply with TEX.R.CIV.P. 321 and 322. The Neilys' motion for new trial was filed on the thirtieth day after judgment and as a result, is timely filed. We also note that the trial court did modify the judgment by order after the motion was filed to correct the discrepancy between the announcement of judgment in open court and the written judgment. Therefore, we hold that the motion for new trial did extend the time for filing the appeal bond until ninety days after the judgment was signed. The appeal bond was properly filed within that time period.

The first point of error complains of the trial court's exclusion of evidence of Mr. Neily's comparison of his mobile home's performance in thunder and windstorms with performance of other mobile homes in alleged similar circumstances. The trial court sustained objections that the evidence was not supported by the pleadings; the testimony was not probative because of dissimilar conditions; the testimony was a self-serving opinion; and the testimony was irrelevant and immaterial. The record presents us with a lengthy bill of exceptions in which Scott Neily testified that he had lived in two other mobile homes prior to occupying the mobile home that was the subject matter of this suit. He testified on the bill of exceptions that he had no problems during windstorms that were substantially similar to the ones that occurred while he presided in the Quality mobile home. However, he admitted that one of the other mobile homes was skirted and he could not testify that it was "anchored and tied down" in a similar manner to the Quality mobile home. He also admitted that the soil conditions in Arizona were different (dry) than Wichita Falls (wet). We do not have to reach the question of whether this testimony was properly excluded because Neily was allowed to testify to substantially the same information in previous testimony. Neily was allowed to testify that the mobile home in the instant case would shake considerably in storms; the shaking was not similar to the shaking he experienced in other mobile homes because, while the walls of those homes vibrated, the floors did not shake; he had never experienced this type of difficulty with other mobile homes; and a lack of "tie downs" made the Quality mobile home unsafe.

The Neilys' counsel tendered the bill of exception on the following basis:

Your Honor, we tender the bill for purposes of showing that the basis on which Mr. and Mrs. Neily moved out of the mobile home, the basis on which they felt when it came to be springtime they could not continue to stay in this mobile home with its condition as has been shown by Plaintiff's, particularly Plaintiff's Exhibit No. 29, and the basis on which Mr. Neily arrived at his personal opinion, that he needed to move out. Now, as far as showing, you know, why he took the actions he did, we do not tender it on our breach of warranty allegations whatsoever....

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