RRTM Restaurant Corp. v. Keeping

• Decision Date: 29 December 1988
• Docket Number: No. 05-87-01324-CV,05-87-01324-CV
• Citation: 766 S.W.2d 804
• Parties: RRTM RESTAURANT CORPORATION, Appellant, v. Jim KEEPING, d/b/a Jim Keeping Eq., Appellee. Dallas
• Court: Texas Court of Appeals

Page 804

766 S.W.2d 804

RRTM RESTAURANT CORPORATION, Appellant, v. Jim KEEPING, d/b/a Jim Keeping Eq., Appellee.

No. 05-87-01324-CV.

Court of Appeals of Texas,

Dallas.

Dec. 29, 1988.

Rehearing Denied Feb. 22, 1989.

William J. Teitelbaum, Dallas, for appellant.

Thomas A. Melody, Dallas, for appellee.

Before DEVANY, McCLUNG and LAGARDE, JJ.

McCLUNG, Justice.

Appellant appeals an adverse take-nothing judgment in a suit brought under the Texas Deceptive Trade Practices Act (DTPA). Appellant alleges that the trial court erred in failing to find a deceptive trade practice or unconscionable conduct on the part of appellee, finding no breach of warranty or of contract, and in finding that an oven sold by appellees to appellant was in good working order within the thirty-day express warranty period. Because we hold that the trial court's finding that there was no violation of the DTPA section 17.46(b)(5) was against the great weight and preponderance of the evidence, we reverse and remand to the trial court.

Appellee Keeping owns and manages a store that sells used restaurant equipment. The store is divided into two sections: a repair section, that contains ovens in the process of being repaired, and a showroom that contains repaired ovens ready for sale.

Appellant's agent (Agent) agreed to purchase a used oven that was then in the repair section of appellee's store on February 20, 1985. Appellee's salesman (Salesman) understood that the agent was purchasing an oven to be used in a restaurant in Kansas and that the agent was seeking an operational oven, i.e., not for the purpose of resale. The salesman stated that although the oven was not presently in working order, it would be properly repaired and would be made operational for the agent when he returned to pick it up. Appellant paid $1,751.06 for the oven at this time, stating that he would return for it at a later date.

When the agent returned to appellee's store on the agreed date, the oven was not repaired. In order to close the sale, the salesman took the agent to the showroom section of the store and showed him a Appellant attempted repairs, for which it received an estimate of $1,200 from a reputable repair service. At this point the testimony is in conflict. Appellant alleges, and the testimony of appellee's salesman supports this allegation, that appellee was contacted with regard to these repairs. Appellant's agent testified that he spoke to the salesman and that the salesman approved the repairs, saying that appellee would cover the cost. The salesman stated that he told appellant to undertake repairs after speaking directly with Keeping and getting his authorization to pay for the repairs to the oven. On the basis of these assurances, appellant had the oven serviced. The actual cost of repairing the oven was $1,911.50. When appellant demanded reimbursement, appellee Keeping denied authorizing any repairs and refused the repair expenses. Keeping testified that he did not authorize any repairs nor did he authorize his salesman to do so.

different oven that he suggested be substituted for the one that appellant had chosen and paid for earlier. As stated before, it was understood by the agent and the salesman that it was necessary that the oven be functional; indeed, the salesman testified that he thought that he was furnishing the agent with an oven in good working order. The oven was taken to Kansas and later installed in a restaurant that appellant was preparing to open. Approximately 78 days later, this oven was tested for the first time and completely failed to function.

After working for a short period of time the oven failed again. Appellant was advised by the repair service that any further attempts to repair this oven would be futile because the oven sold by appellee was merely a shell, missing many parts to be completely operational; therefore, no subsequent repairs were attempted. Appellant brought this suit claiming damages under the DTPA sections 17.46(b)(5), (7), and (13); however, we deal here only with the allegations regarding subsection (5).

Appellant alleges in its first point of error that the trial court erred in finding no deceptive trade practice or unconscionable conduct on the part of appellee because such finding is against the great weight and preponderance of the evidence and there is no evidence to support such a finding. Appellant has in this point of error raised both a factual and legal sufficiency challenge to the court's finding on this point. In a trial to the court a trial court's findings of fact are reviewable for factual and legal sufficiency by the same standards as are applied in reviewing the factual and legal sufficiency of evidence supporting a jury's answers to jury questions. 1st Coppell Bank v. Smith, 742 S.W.2d 454, 459 (Tex.App.--Dallas 1987, no writ); Baker v. Baker, 719 S.W.2d 672, 674-75 (Tex.App.--Fort Worth 1986, no writ); Okon v. Levy, 612 S.W.2d 938, 941 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.). We will first address appellant's legal sufficiency argument.

LEGAL SUFFICIENCY

In reviewing the legal sufficiency claim we must consider only the evidence and reasonable inferences drawn therefrom, which, when viewed in their most favorable light, support the trial court's finding. The Court must disregard all evidence and inferences to the contrary of the fact finding. If there is more than a scintilla of evidence to support the finding, the challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

We first note that appellant does not style his legal sufficiency argument properly. When the complaining party had the burden on the issue and it was answered adversely, the point should be styled as a "matter of law" rather than a "no evidence" point, because the fact finder's failure to find a fact need not be supported by the evidence. The only time such a failure can be error is when the fact has been established conclusively or as a matter of law. Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 TEX.B.J. 439, 440 (1983). The initial review of this "matter of law" point is the same as that required for a "no evidence" point; however, in addition to finding no probative evidence to support the finding, this Court must also Appellant alleges that appellee violated DTPA section 17.46(b)(5). Subsection (5) prohibits representing that goods have characteristics or uses which they do not in fact have. TEX.BUS. & COMM.CODE ANN. § 17.46(b)(5) (Vernon 1987). A good may lack its claimed characteristics or fail to bring about its claimed uses or benefits because it is not in good mechanical condition. Pennington v. Singleton, 606 S.W.2d 682, 687 (Tex.1980). While there is no evidence that the oven was ever represented by the salesman to be "like new," or even in "excellent condition," the testimony of both the agent and the salesman is clear that there was an expectation by each of these men that the oven purchased was to be in good working order. This is not a case where a salesman attempted to, and did, deceive a customer into buying a good through purposeful misrepresentation; but there was nevertheless a representation that this particular oven were operational. The law is clear that the misrepresentation is enough; it need not be purposeful. Intentional misrepresentation is not required to show a violation of this subdivision, so long as the misrepresentation is not mere "puffing." Parks v. U.S. Home Corporation, 652 S.W.2d 479, 484 (Tex.App.--Houston [1st Dist] writ dism'd w.o.j.). See also Smith v. Baldwin, 611 S.W.2d 611 (Tex.1981).

find that the contrary proposition is established as a matter of law. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982).

As noted above, there is uncontradicted testimony that there was an agreement that the oven which was originally chosen by the agent was to be repaired so that it would be in good working order when the agent returned to pick it up. Since the oven had not been repaired, the salesman offered a substitute from the showroom floor. The salesman testified that he meant to furnish the agent with a good working oven and that he thought that the ovens from the showroom were in good working order.

There is no evidence showing that the characteristics (that it was in good working order) of the oven were true to the salesman's representations; in fact, the facts seem to point to the contrary. Appellant must go further than this, however. In order to sustain this legal sufficiency challenge we must, disregarding all evidence adverse to the fact finding, find that the contrary proposition is established as a matter of law. Holley, 629 S.W.2d at 696. The problem here is that there is no evidence that shows as a matter of law that, at the time of the sale, the oven either did or did not possess those characteristics that it was represented to possess. At best, appellant was able to show that the oven was not in working order some 78 days after delivery. Consequently, we cannot sustain appellant's legal sufficiency argument.

FACTUAL SUFFICIENCY

Appellant also raises an "against the great weight and preponderance of the evidence" factual sufficiency argument with regard to the failure of the trial...