Selig v. BMW of North America, Inc., C14-91-00669-CV

• Decision Date: 21 May 1992
• Docket Number: No. C14-91-00669-CV,C14-91-00669-CV
• Parties: 1992-2 Trade Cases P 69,891 Robert E. SELIG and Laura M. Selig, Appellants, v. BMW OF NORTH AMERICA, INC., BMW Credit Corporation, and Bavarian Autohaus, Inc. d/b/a David Hobbs BMW, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 95

832 S.W.2d 95

1992-2 Trade Cases P 69,891

Robert E. SELIG and Laura M. Selig, Appellants, v. BMW OF NORTH AMERICA, INC., BMW Credit Corporation, and Bavarian Autohaus, Inc. d/b/a David Hobbs BMW, Appellees.

No. C14-91-00669-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

May 21, 1992.

Rehearing Denied June 18, 1992.

Philip A. Masquelette, Houston, for appellant.

Geoffrey H. Bracken, Margaret A. Wilson, Houston, for appellee.

Before JUNELL, ROBERTSON and DRAUGHN, JJ.

OPINION

ROBERTSON, Justice.

Robert and Laura Selig appeal the trial court's grant of summary judgment in favor of appellees on the Selig's liability claims and on appellee's counterclaims that the Selig's suit was groundless and in bad faith. Appellants raise four points of error. We affirm.

In August 1987, appellants bought a new BMW automobile from appellee, Bavarian Autohaus, Inc. d/b/a David Hobbs BMW ("Hobbs"). The distributor for this automobile was appellee, BMW of North America, Inc. ("BMW NA"). Appellee, BMW Credit Corporation ("BMW CC") provided financing.

Approximately six months after purchasing this vehicle, Laura Selig claimed that the BMW suddenly accelerated as she attempted to stop at a donut shop, causing the BMW to collide with a parked vehicle and the side of the building. When Hobbs refused to rescind the purchase contract for the vehicle, appellants brought suit, alleging strict liability, breach of warranty, violations of the Texas DTPA, of the Texas Consumer Credit Code, and of the Magnuson-Moss Warranty Act. Appellants filed a motion for partial summary judgment on their causes of action under the DTPA and the Texas Credit Code. Following a hearing, the trial court entered an order granting the motion to the extent of the following findings: (1) that appellants are consumers under the DTPA; (2) that appellants met the notice requirements under the DTPA; (3) that appellants entered into a written purchase and sale contract with appellee, Hobbs; (4) that this contract included a Motor Vehicle Purchase Order; (5) that this Purchase Order contained a provision that neither Hobbs nor BMW NA would be liable for failure to effect delivery; (6) that this Purchase Order contained a disclaimer by Hobbs of any express or implied warranties and that any warranties made were those by BMW NA; (7) that appellants are consumers and Hobbs is a supplier under the Magnuson-Moss Act; (8) that there was a written warranty made to appellants; (9) that appellants and Hobbs entered into a BMW Quality Continuation Plan Vehicle Service Agreement Registration document which constituted a service contract under the Magnuson-Moss Act; (10) that appellants entered into a Texas Retail Installment Contract and Security Agreement which included a provision disclaiming any warranties of merchantability, suitability, or fitness for purpose; (11) that appellants' BMW was a motor vehicle and appellants were Retail Buyers as defined in the Texas Credit Code; (12) that Hobbs was a Retail Seller under this Code; (13) that the sale transaction constituted a Retail Installment Transaction and a Retail Installment Contract under this Code; and (14) that the Motor Vehicle Purchase Order, BMW Quality Continuation Plan Vehicle Service Agreement Registration, and Texas Retail Installment Contract and Security Agreement were documents executed and delivered to appellants in a single transaction.

Appellees subsequently filed counterclaims alleging that appellants' suit was groundless, in bad faith, and brought for the purpose of harassment and filed motions for summary judgment on all causes of action alleged by appellants. The trial court granted appellees' motions and, finding appellants' suit groundless and in bad faith, awarded appellees BMW NA and BMW CC $21,352.50 in attorney's fees and costs. The trial court conditionally awarded appellees, BMW NA and BMW CC $5,000.00 in fees and costs if the case was appealed to the court of appeals, and conditionally awarded another $5,000.00 if the case was appealed to the Texas Supreme Court. The trial court awarded appellee Hobbs $7,000.00 in attorney's fees and costs, conditionally awarded Hobbs $3,500.00 if the case was appealed to the court of appeals, and conditionally awarded another $3,500.00 if the case was appealed to the Texas Supreme Court.

In point of error one, appellants contend the trial court erred in granting the appellees' motions for summary judgment on liability. Appellants list 54 jury questions they submitted to the trial court for inclusion in the joint pretrial order. Appellants claim that the summary judgment proof submitted by appellees failed to negate many of these fact issues. In particular, appellants maintain that appellees' summary judgment proof did not establish, as a matter of law, that there was no defect in the appellants' BMW.

A trial court properly grants summary judgment when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). In reviewing a summary judgment, we must take as true all evidence favorable to the non-movant, indulging all reasonable inferences and resolving all doubts in favor of the non-movant. Id. at 548-49. As movants, appellees had to disprove as a matter of law one or more of the elements essential to appellants' claims. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). The judgment cannot be affirmed on any grounds not specifically presented in the motion for summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex.1979).

A movant can establish its right to summary judgment solely on the uncontroverted testimony of an expert witness if the subject matter is such that the trier of fact would be "guided solely by the opinion testimony of experts" and the testimony is "clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted." TEX.R.CIV.P. 166a(c). The affidavit of an interested expert witness can support a summary judgment if it meets the requirements of Rule 166a. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). If the movant presents legally sufficient evidence, in the form of an affidavit of an interested expert witness, in support of a motion for summary judgment, the opposing party must controvert this evidence by producing other expert testimony. Id. Lay testimony is insufficient to refute expert testimony. Id. Expert testimony comprised of mere legal conclusions or conclusory statements is insufficient to support summary judgment. Id.

In support of their motion for summary judgment, appellees BMW NA and BMW CC produced two affidavits of Ralph Beier, Manager of Product and Service Engineering of BMW NA, an affidavit by appellees' counsel, and copies of the limited warranty, the Texas Retail Installment Contract and Security Agreement, and the vehicle purchase order. Appellee Hobbs adopted by reference the motion for summary judgment and exhibits filed by BMW NA and BMW CC. In the affidavit dated January 24, 1990, Ralph Beier stated that he was familiar with all mechanical components of the BMW model 325, and that in his expert opinion the components of appellants' BMW 325 could not malfunction "so as to cause the car to accelerate suddenly and unexpectedly while Mrs. Selig pressed the brake pedal, as she has claimed in her deposition." Beier further stated that the braking system of the vehicle would continue to function and stop the vehicle when the brake pedal was depressed, even if a complete failure or malfunction of the Antilock Braking System, a supplemental brake system, occurred. Beier based his opinion that the braking system would stop the vehicle on the inspection of the vehicle by service personnel of Hobbs, by an expert technician of BMW NA, and by an independent technician who found the car in proper working condition and found the brakes in operating condition. Thus, Beier concluded that, in his expert opinion, the vehicle was not defective in any manner that could cause sudden unintended acceleration.

In his affidavit dated January 25, 1990, Beier stated that BMW NA did not fail to disclose to appellants any information known to BMW NA at the time of purchase with the intention of inducing appellants to purchase the vehicle. Beier further stated that BMW NA made no false representations to induce appellants to enter the purchase transaction.

In their opposition to appellees' motion for summary judgment, appellants objected to the two Beier affidavits on the grounds that the affidavits failed to show that the opinions were based on personal knowledge and were based in part on hearsay and that the affidavits contained conclusory statements and legal conclusions. Appellants further claimed that appellees failed to show as a matter of law that appellants could not succeed on their claims and that appellees did not conclusively establish all elements of their affirmative defense of negligence on the part of Laura Selig.

In their second amended original petition, appellants alleged seven causes of action, including violations of the DTPA, rescission, strict products liability or alternatively, negligent design, manufacture, or marketing, breach of warranty, violations of the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act and of the UCC, and violations of the Texas Credit Code. To recover under a theory of strict liability, a plaintiff must establish two elements: (1) that the defendant's product was defective and unreasonably dangerous, and (2) this defective condition caused plaintiff's injuries or damages. See Lucas v. Texas Indus., Inc., 696 S.W.2d 372, 377 (Tex.1984) (op. on reh'g). To recover under strict liability, a party must show more than the mere fact that an accident occurred. Bass v. General Motors Corp., 491 S.W.2d 941,...