Preston II Chrysler-Dodge, Inc. v. Donwerth

• Decision Date: 04 August 1987
• Docket Number: INC,No. 05-86-00386-CV,CHRYSLER-DODG,05-86-00386-CV
• Citation: 744 S.W.2d 142
• Parties: PRESTON II, Appellant, v. Harvey E. DONWERTH and Dorothy E. Donwerth, Appellees.
• Court: Texas Court of Appeals

Page 142

744 S.W.2d 142

PRESTON II CHRYSLER-DODGE, INC., Appellant, v. Harvey E. DONWERTH and Dorothy E. Donwerth, Appellees.

No. 05-86-00386-CV.

Court of Appeals of Texas Dallas.

Aug. 4, 1987.

Rehearing Denied Sept. 15, 1987.

Kevin Cook, DeHay & Blanchard, Dallas, for appellant.

Allen Landerman, Landerman, Dunlap & Jacobs, Dallas, for appellees.

Before DEVANY, STEWART and ROWE, JJ.

ON MOTION FOR REHEARING

ROWE, Justice.

Appellant's motion for rehearing is granted, and appellee's motion for rehearing is overruled. Our prior opinion of July 7, 1987, is withdrawn. The following is now our opinion.

Preston II Chrysler-Dodge (Preston II) filed suit for damages and an injunction against Harvey and Dorothy Donwerth (the Donwerths) alleging defamation and libel. The Donwerths counterclaimed for damages under the Deceptive Trade Practices Act (the DTPA), TEX.BUS. & COM.CODE ANN. §§ 17.41-. 63 (Vernon Supp.1987), arising from their purchase of a used car from Preston II. Preston II appeals from the judgment rendered against it on its claim for damages and from the judgment in favor of the Donwerths on their DTPA counterclaim.

In eight points of error, Preston II contends: (1) and (2) that there is no or insufficient evidence to support the jury finding that Preston II represented that the used automobile was of a particular standard, quality, or grade when it was of another, (3) and (4) that there is no or insufficient evidence to support the jury finding of the difference in value between the automobile as purchased by the Donwerths and as represented by Preston II, (5) that there was irreconcilable conflict between the jury finding that the Donwerths' DTPA claim was groundless and brought in bad faith, and the jury finding that Preston II represented that the used automobile was of a particular standard, quality, or grade when it was of another, (6) that the trial court erred in disregarding the jury finding that the Donwerths' DTPA claim was groundless and brought in bad faith, (7) that the trial court erred in admitting evidence, over objection, of other sales by Preston II, and (8) that the jury finding that the Donwerths did not act with malice is against the great weight and preponderance of the evidence. In two cross-points, the Donwerths allege that the trial court erred in not awarding them the full amount of their damages and their attorney fees on appeal. We sustain Preston II's first point of error that there is no evidence to support the jury finding that Preston II represented that the automobile it sold to the Donwerths was of a particular standard, quality, or grade when it was of another. Because we agree with this contention, we need not address Preston II's points of error two, three, four, five, and seven. Because we have sustained Preston II's first point of error, we also sustain Preston II's sixth point of error regarding attorney fees. We need not address Preston II's point of error eight since it is conditioned on this case being remanded. In the absence of a cost bond and a transcript preserving any trial court error, the Donwerths have failed to perfect their cross-appeal. Therefore, the Donwerths' two cross-points, seeking affirmative relief, are dismissed for want of jurisdiction. Accordingly, we reverse and render judgment that the Donwerths take nothing and that Preston II recover attorney fees in the amount to which it was found entitled by the jury.

In its first point of error, Preston II alleges that there is no evidence to support the finding of the jury that Preston II represented that the used automobile it sold to the Donwerths was of a particular standard, quality, or grade when it was of another. In deciding a "no evidence" point of error, an appellate court must consider only the evidence and the inferences tending to support the jury's findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Connecticut General Life Insurance Co. v. Stice, 640 S.W.2d 955, 957 (Tex.App.--Dallas 1982, writ ref'd n.r.e.).

The Donwerths allege that Preston II misrepresented the quality of the car's brakes. The record reflects that the Donwerths purchased a used car from Preston II, and, prior to the sale, Harvey Donwerth (Harvey) got into the car and "mashed" on the brake pedal. It felt "spongy," and he commented that there was "something wrong" with the brakes. The salesman responded that he had used this car as his "personal car," that it was a "good car," and that there "wasn't anything wrong" with the brakes. After the salesman made this statement, Harvey drove the car, and the brakes worked properly. The brakes didn't squeal, and the car didn't pull to either side. Harvey did not make any visual inspection of the brakes at that time, and other than the spongy feel of the brakes, the record reflects that he had no personal knowledge that there was anything wrong with the brakes when he spoke with the salesman. Six months and 3200 miles later, the brakes required a complete overhaul. Applying the "no evidence" test, we conclude that there is no evidence from which the jury could have reasonably found that Preston II misrepresented the standard, quality, or grade of the brakes. While there is some evidence as to the quality of the car and its brakes, there is no evidence that the quality of the car or its brakes was other than as represented by the salesman. There is no evidence to link "spongy brakes" with poor quality or substandard brakes.

Next, the Donwerths allege that Preston II misrepresented that the odometer reading...