Sears, Roebuck and Co. v. Nichols

• Decision Date: 24 October 1991
• Docket Number: No. B14-90-00965-CV,B14-90-00965-CV
• Parties: SEARS, ROEBUCK AND COMPANY, Appellant, v. Willie Mae NICHOLS and Bill Nichols, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 900

819 S.W.2d 900

SEARS, ROEBUCK AND COMPANY, Appellant, v. Willie Mae NICHOLS and Bill Nichols, Appellees.

No. B14-90-00965-CV.

Court of Appeals of Texas Houston (14th Dist.).

Oct. 24, 1991.

Rehearing Denied Dec. 19, 1991.

Rick Gibson, Houston, for appellant.

Gary Bowers, Humble, for appellees.

Before MURPHY, ELLIS and MORSE (Sitting by Designation), JJ.

OPINION

ELLIS, Justice.

This is a Deceptive Trade Practices-Consumer Protection Act (DTPA) implied warranty case. Appellees sued Sears, Roebuck and Company (Sears) for personal injury damages allegedly resulting from repairs to the appellees' riding lawn mower. Appellees alleged that Sears was negligent and breached the implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner, constituting a violation of the DTPA. TEX.BUS. & COM.CODE ANN. § 17.41 et seq. Following a non-jury trial, the trial court entered judgment in favor of appellees finding that Sears had been negligent and had breached the implied warranty to repair in a good and workmanlike manner. The trial court awarded the appellees actual damages, additional damages for a knowing violation under the DTPA, attorney's fees, and prejudgment and postjudgment interest. We reverse and render judgment for Sears.

In June 1987, appellee Willie Mae Nichols took the family riding lawn mower to Sears' East Little York Service Center, Houston, Texas, for repairs. Sears informed Mrs. Nichols that the mower needed replacement motor mounts. After receiving information concerning the cost of the repairs, Mrs. Nichols instructed Sears to make the repairs. When Mrs. Nichols returned home and told her husband Bill Nichols she had authorized repairs to the motor mounts, he stated: "You want to pay the labor to Sears when we could put on the motor mounts?" During his testimony Mr. Nichols stated he had maintained and serviced the mower since it was purchased and he believed he could save money by doing the repair work himself. In fact, the evidence showed that Mr. Nichols and his son had replaced the engine on the mower in June of 1986, and had purchased a belt from an auto parts store and placed it on the mower after a second trip to the auto parts store to find the correct belt to fit the mower.

Once Mrs. Nichols left the mower with Sears to be repaired it was assigned to technician Kenneth King. During the course of his work, Mr. King determined that the transmission belt on the mower, the one previously replaced by Mr. Nichols, would not properly fit the mower after the authorized repairs were completed. Knowing that the estimate given to Mrs. Nichols for the repairs did not include a new belt and labor costs for replacing that belt, Mr. King telephoned appellees. Mr. King spoke to Mr. Nichols and attempted to obtain authorization to replace the transmission belt. Mr. King told Mr. Nichols that the belt would not fit the mower after the repairs, because the belt was too small, and as a result the mower would not operate properly because the old belt would not allow the mower to shift properly and would not disengage the transmission. Mr. King was aware from the paperwork on the mower that Mr. Nichols had previously replaced the mower's engine. Having been informed that further repairs were necessary for the mower to operate properly, Mr. Nichols disregarded Mr. King's warning and stated: "Leave that damn belt alone. I just bought it at an auto supply." After being told again that the mower was not going to work properly Mr. Nichols told Mr. King to leave the belt alone.

After the telephone conversation with Mr. Nichols, Mr. King completed the authorized repairs and wrote on the service order "Trans Belt Will Not Disengauge [sic]." Sears notified appellees that the mower could be picked up. Mrs. Nichols told her husband that she was going to pick up the mower. Mrs. Nichols took her son with her to pick up the mower. When Mrs. Nichols arrived at Sears she received a copy of the service order which contained the above quoted notation. Mrs. Nichols and her son took the mower home and unloaded it. Mrs. Nichols stood approximately five feet in front of the mower as her son started it. When the son tried to put the mower into reverse, the gear would not engage; he then tried to put the mower into a forward gear. The mower moved forward toward Mrs. Nichols. Once in motion, the mower would not stop when the clutch was depressed because the transmission belt was too small and would not disengage the transmission. The mower struck Mrs. Nichols, pinning her between the mower and the Nichols' pick-up truck. As a result of the accident, Mrs. Nichols required medical treatment, including arthroscopic knee surgery, and will require further medical treatment. The Nichols' brought suit against Sears for the personal injuries resulting from this accident. On July 10, 1990, the trial court signed a Final Judgment awarding $42,800 to Willie Mae Nichols, $10,000 to Bill Nichols, $13,200 in additional DTPA damages based on a knowing violation ¹, $21,120 in attorney's fees, $8,311.88 in prejudgment and postjudgment interest. Sears requested findings of fact and conclusions of law and now brings this appeal.

In its first point of error Sears alleges that the trial court erred as a matter of law in concluding that Sears had breached the implied warranty to repair in a good and workmanlike manner.

Conclusions of law are always reviewable by an appellate court. Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985). Although a trial court's conclusions of law may not be challenged for factual insufficiency, the conclusions of law drawn from the facts may be reviewed to determine their correctness when a statement of facts is filed with the trial court's findings of facts and conclusions of law. Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). Conclusions of law must be attacked as erroneous as a matter of law. Id. Incorrect conclusions of law will not require a reversal, however, if the controlling findings of fact will support a correct legal theory. Valencia v. Garza, 765 S.W.2d 893, 898 (Tex.App.--San Antonio 1989, no writ).

Appellant argues the trial court erred as a matter of law in finding that it breached the implied warranty to repair in a good and workmanlike manner. Appellant contends that a finding of breach of the implied warranty on the facts of this case is unnecessary and unjustified. We agree.

In 1987, the Texas Supreme Court held that the sale and furnishing of a service carries with it the implied warranty that the service will be performed in a skillful and workmanlike manner and that the breach of this warranty is actionable under the DTPA. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex.1987). In reaching this conclusion, the Court noted that the United States has shifted from a goods to a services oriented economy, and that with this change there has resulted a marked decrease in the quality of services. Id. at 353. The Court stated that such problems led the court and the legislature to apply the implied warranty theory to products, goods, and new houses. Id. citing Humber v. Morton, 426 S.W.2d 554, 562 (Tex.1968) (new houses); McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 789 (Tex.1967) (products); Jacob E. Decker & Sons v. Capps, 139 Tex. 609, 164 S.W.2d 828, 832 (1942) (food sales). The Court reasoned that certain public policies favored the extension of the implied warranty theory to service transactions. The Court looked to Professor Prosser and his article, The Assault Upon the Citadel, 69 Yale L.J. 1099, 1120-24 (1960), and determined that four policy concerns justified the extension of the implied warranty to services:

1. The public interest in protecting consumers from inferior services is paramount to any monetary damages imposed upon sellers who breach an implied warranty.

2. A service provider is in a much better position to prevent loss than is the consumer of the service. Many services are so complicated that a consumer is unable to independently determine quality and must depend on the experience, skill, and expertise of the service provider.

3. A consumer should be able to rely upon the expertise of the service provider. The application of an implied warranty to services would encourage justifiable reliance on the service providers who would have more incentive to increase and maintain the quality of the services they provide.

4. A service provider is better able to absorb the cost of damages associated with inferior services through insurance and price manipulation than is the individual consumer.

Melody Home, 741 S.W.2d at 353-54. The Court noted that the question was one of protecting the helpless consumer, the consumer who takes what he gets because he does not know enough technically to test and judge what is before his eyes. Id. at 353 n. 6, quoting Llewellyn, On Warranty of Quality and Society: II, 37 Colum.L.Rev. 341, 404 (1937). The caveat emptor rule as applied to services such as repairs is an anachronism out of line with modern service buying practices. Melody Home, 741 S.W.2d at 354. The "buyer beware" rule does a disservice to the prudent purchaser and to the industry by encouraging shoddy workmanship. Id.

In Melody Home, Mr. and Mrs. Barnes ordered a pre-fabricated home from Melody Home. After the couple moved in, they had puddles and dampness inside the house. They eventually discovered that a sink was not connected to the drain in one of the interior walls. The leak caused damage to the sheetrock, insulation, and flooring. The couple contacted Melody Home who sent out repairmen. The efforts of the repairmen failed and additional damages were caused by the shoddy repair work. The Barneses filed suit under the DTPA and the jury found that Melody Home had...