Pontiac v. Elliott, 01-88-00689-CV

• Decision Date: 15 June 1989
• Docket Number: No. 01-88-00689-CV,01-88-00689-CV
• Citation: 775 S.W.2d 395
• Parties: Lester Goodson PONTIAC, Appellant, v. Rhea ELLIOTT, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 395

775 S.W.2d 395

Lester Goodson PONTIAC, Appellant, v. Rhea ELLIOTT, Appellee.

No. 01-88-00689-CV.

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

June 15, 1989.

Rehearing Denied Aug. 3, 1989.

Candace Sturdivant and David A. Gibson, P.C., Houston, for appellant.

L.T. Bradt, Houston, for appellee.

Before WARREN, DUNN and HUGHES, JJ.

OPINION

WARREN, Justice.

This is an appeal from an award in a deceptive trade practices act case. Trial was to the court, which awarded appellee $17,320 in actual damages, $5,000 in mental anguish damages, $2,000 in damages under the DTPA provision for automatic doubling of the first $1,000 in actual damages, plus attorney's fees of $7,000, costs, and interest.

Appellee sued appellant for damages under the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. sec. 17.41 et seq. (Vernon 1987) (DTPA), and common law fraud, based on its sale of a GMC Suburban vehicle to appellee.

Appellee alleged that appellant: engaged in false, misleading, or deceptive acts or practices; engaged in unconscionable actions or course of action; committed fraud; breached the implied warranty of merchantability; breached the implied and express warranties of fitness for use; and breached the express warranty that the vehicle purchased was new.

In three points of error, appellant: (1) challenges the sufficiency of the evidence to support the award of $17,320 in actual damages; (2) contends that the trial court erred in awarding damages for mental anguish; and, (3) contends that the trial court erred in entering judgment under the DTPA because there was no finding that appellant's action was the producing cause of damages to appellee. Appellee brings two cross-points contending that: (1) the trial court erred in allowing appellant's expert witness to testify at trial; and (2) the trial court erred in not awarding the amount of attorney's fees requested by appellee's counsel at trial. Because appellant challenges the sufficiency of the evidence, a detailed review of the facts is required.

On May 10, 1985, appellee purchased a 1985 GMC Suburban from appellant for a total price of $17,320. At the time of purchase, appellee and her husband test drove the vehicle and noted that there were about 50 miles registered on the vehicle's odometer. The odometer statement, prepared by appellant and signed by appellee, indicated there were 10 miles on the odometer. Both parties knew that the odometer statement was not accurate. Appellee received a copy of a non-negotiable title to the vehicle, which described it as a new vehicle.

Previously, on April 18, 1985, appellant sold a 1985 GMC Suburban to Cathy Lamb. Mrs. Lamb drove the vehicle to her home that evening and returned it to the dealership the next day complaining of noises in the engine. Appellant allowed her to return the vehicle and sold her a different one. A repair order, contained in appellee's exhibits, shows that appellant performed adjustments on the engine. The vehicle identification number on the repair order shows that this was the same vehicle later sold to appellee. Appellant did not disclose to appellees that the vehicle had been sold to Lamb, nor did it tell them of the engine repairs.

Appellee testified that she would not have purchased the vehicle had she known of either the prior delivery and attempted sale, or the engine repairs. Appellee testified that the vehicle was worth nothing to her in the condition it was in at the time of the sale because it was defective, unsafe, and because of the prior ownership and damage. She testified that the vehicle was worth approximately $6,000 in the condition in which it existed at the time of trial. Appellee is still driving the vehicle, and has driven it over 61,500 miles since the sale. Appellee's husband, an attorney, was qualified by the court as an expert on mechanical work. He testified that, as an owner, the vehicle was worth nothing to him when purchased. He further testified that he had taken the vehicle to a dealership that sold Suburbans, told them about its problems, and the dealership told him the vehicle was worth $7,000 at the time of trial.

Dottie Allred, appellee's expert witness concerning the value of the vehicle, testified that she has been in the car business for a number of years. In her opinion, the market value of the vehicle at delivery would have been either, $2,500 or 25% less than its original sticker price, because the prior delivery made it a used vehicle. She testified that this vehicle would have been worth no more than $15,777 when purchased by appellee.

John Gilbert, appellant's expert and agent, testified that the market value of the vehicle at the time of purchase was the same as its purchase price. He further stated that a vehicle does not decline in value by a fixed amount when it is classified as used. He could not state how much this vehicle declined in value after the attempted sale to Lamb.

In its Findings of Fact and Conclusions of Law, the trial court found that: (1) the total consideration paid by appellee was $17,320; (2) appellant did not disclose the delivery of the vehicle to Lamb nor did it disclose the prior repairs to the engine; (3) appellee would not have purchased the vehicle had the prior delivery or engine repairs been disclosed; (4) appellant concealed and misrepresented facts in order to induce appellee into the sale; (5) appellant committed fraud in selling the vehicle to appellee as new; and (6) the vehicle had no value at the time it was delivered to appellee. The trial court also found that appellant did not present any evidence of the vehicle's value at the time of the sale.

In its first point of error, appellant complains that there is no evidence, or insufficient evidence, to support the trial court's finding that the vehicle had no value at the time of purchase. It specifically argues that the appellee's testimony as to value was non-probative as a matter of law, and that the only evidence of a difference in the market value of the vehicle "as represented" and "as sold" was Allred's testimony that the difference was approximately $1,543.

Appellant's argument raises both no evidence and factual insufficiency points of error. When both "no evidence" and "insufficient evidence" points are raised, the court should rule upon the "no evidence" point first. Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). If there is probative evidence, more than a scintilla, in support of the finding, the point will be overruled and the judgment will be affirmed, unless a factual insufficiency point has also been raised and the court sustains it on the basis of a full review of the evidence. Mercer v. Bludworth, 715 S.W.2d at 697.

In deciding a "no evidence" point, we will consider only the evidence and inferences that, viewed in their most favorable light, tend to support the finding, and we must disregard all evidence and inferences to the contrary. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In deciding a "factual insufficiency" point, we are required to review all the evidence, including any evidence contrary to the finding of the court, and decide whether the judgment is so against the great weight and preponderance of the evidence as to be unjust. Mercer v. Bludworth, 715 S.W.2d at 697.

Findings of fact are not conclusive on appeal when, as in this case, a statement of facts appears in the record. Rather, the findings of fact are binding on the appellate court only if supported by evidence of probative force. Stephenson v. Perlitz, 537 S.W.2d 287, 289 (Tex.Civ.App.--Beaumont 1976, writ ref'd n.r.e.). Further, because a statement of facts is before us, we will review the legal conclusions drawn from the facts found, to determine their correctness. Mercer v. Bludworth, 715 S.W.2d at 697.

The court found that appellant had committed fraud and violated the DTPA, which finding is supported by the record. Thus, appellee is entitled to actual damages. In W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex.1988), a DTPA case arising out of the purchase of a pickup truck, the Texas Supreme Court held:

This court has defined actual damages as those recoverable at common law. Under common law, there are two measures of damages for misrepresentation: (1) the "out of pocket" measure, which is the "difference between the value of that which was parted with and the value of that which was received"; and (2) the "benefit of the bargain" measure, which is the difference between the value as represented and the value actually received. The DTPA permits a plaintiff to recover either the "out of pocket" or the "benefit of the bargain" damages, whichever is greater.

754 S.W.2d at 128 (citations omitted).

Appellee's burden of proof was to show either the difference between the fair market value of the vehicle as delivered and as represented, or the difference in value between that with which she parted and that which she received. W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d at 128 (suit under DTPA); Woodyard v. Hunt, 695 S.W.2d 730, 732 (Tex.App.--Houston [1st Dist.] 1985, no writ) (suit for fraud). The evidence offered to support the judgment, which awarded the full purchase price of the vehicle as her actual damages, includes appellee's testimony that her assessment of the value of the car at delivery "is zero in light of the fact that [there was] prior ownership and prior damage to the vehicle. And the repairs, had I known that, no, I would not have bought the vehicle. It would not be worth a cent to me." In addition, appellee's husband testified that, "[a]s owner of the vehicle I would believe it has no value."

Appellant contends that the testimony of appellee and her husband was not probative, as a matter of law, because it concerned the intrinsic value of the vehicle to them, rather than its market value. The Texas Supreme Court, in Porras v....