Town East Ford Sales, Inc. v. Gray
| Decision Date | 23 April 1987 |
| Docket Number | No. 05-86-00426-CV,05-86-00426-CV |
| Citation | 730 S.W.2d 796 |
| Parties | TOWN EAST FORD SALES, INC., Appellant, v. Fred J. GRAY, Appellee. |
| Court | Texas Court of Appeals |
Bruce A. Pauley, Mesquite, for appellant.
Lewis R. Sifford, Craig L. Stahl, Dallas, for appellee.
Before DEVANY, STEWART and ROWE, JJ.
ON MOTION FOR REHEARING
Our opinion of March 4, 1987, is hereby withdrawn, and the following is substituted therefor.
This appeal is brought by Town East Ford Motor Company as the result of a judgment for Fred Gray arising from the sale to him of a 1983 LTD Ford automobile. Town East presents sixteen points of error. For the reasons stated hereinafter, we reverse the judgment in part and reform it, and, as reformed, we affirm it.
The facts of this case are fairly simple, but the complexity arises from the manner in which the case was tried and, particularly, the manner in which it was presented to the jury. The facts as they must have appeared to the jury are as follows: Gray went to the Town East dealership on February 11, 1983 to purchase a new automobile. There he met Smith, a salesman for Town East, who assisted Gray. Gray told Smith he wanted to purchase a new Ford LTD, but that he had been experiencing problems with the carburetor of his old 1979 LTD and he wanted assurances about the new 1983 model. Smith satisfied Gray about the new 1983 LTD, explaining that they had put a new model of carburetor in the 1983 LTDs. Gray purchased the automobile that very day, trading in his old 1979 LTD for $2,500.00 on the brand new 1983 LTD. Part of the purchase price was financed by Gray through Ford Motor Company's lending agency.
Almost immediately Gray experienced the very problems he feared: the carburetor was defective. Less than a week after he bought the car, Gray returned to Town East and asked for his money and his old car back. Town East refused, stating that they had already sold his other car. Instead, Town East offered to service the car to repair it. Town East repeatedly serviced the automobile and eventually replaced the carburetor twice. In the meantime, another problem arose: the braking system developed a defect and this was also serviced by Town East. Over a period of six months, Town East installed four new master brake cylinders in an attempt to correct the problem. When Gray grew dissatisfied with Town East's service on the brakes, he took the car to Weaver Spring and Brake. The first time that Gray took the car to Weaver Spring, Weaver recommended that a new master brake cylinder be installed. Weaver sent Gray back to Town East for the work because the car was still under warranty. The second time that Gray went to Weaver was on August 9, 1983, whereupon Weaver once again tested the car and recommended that a new master brake cylinder be installed. Weaver installed the new master brake cylinder, but wrote a letter to Gray stating that, because of the history of the car's brake problems, it could not guarantee the work. Town East also installed two brake boosters over the six months period.
The testimony also revealed that Gray had tried to return the car to Town East and get his money back on several other occasions, but Town East refused. Finally, after the second repair by Weaver, the brake system and carburetor problems were apparently cured, and the car was working satisfactorily. However, since Gray had no assurances that the problems were permanently cured, he was concerned about the vehicle's safety. Because he was concerned about the safety of his family, Gray parked the automobile in his garage on August 15, 1983, with 10,000 miles on the odometer, and bought another automobile.
Gray then sued Town East for deceptive trade practices under the Deceptive Trade Practices Act (DTPA) 1 and for fraud under the common law on the purchase of the 1983 LTD Ford. The jury returned a verdict for Gray under both causes of action, and, pursuant to the doctrine of election of remedies, the trial court awarded Gray damages under the DTPA, including prejudgment interest, of $21,246.45. The trial court then trebled the damages, awarding Gray a total of $63,739.35 plus attorney's fees.
Because of the complexity of this case, we will address the points of error in groups, not necessarily in numerical order. In their second and third points of error, Town East claims that there is no evidence, or in the alternative, insufficient evidence, to support the jury's findings of actual damages. We agree as to the damages based on the value of the car and the damages for mental anguish, and we reverse and render on those points. We affirm the damages based on loss of use of the car.
In reviewing "no evidence" points of error, our standard of review requires us to consider only that evidence, and reasonable inferences therefrom which, viewed in its most favorable light, supports the jury finding. We must reject all evidence and inferences to the contrary. Glover v. Texas General Indemnity Company, 619 S.W.2d 400, 401 (Tex.1981). When confronted with both "no evidence" and "insufficient evidence" points, we will address the "no evidence" points first. Glover, 619 S.W.2d at 401. The sustaining of a "no evidence" point reverses the judgment of the trial court and requires a rendition. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).
A. Market Value of the Car
We first address Town East's point that there was no evidence to support the jury finding of $8,632.45 as damages for "the difference between the actual cost of the 1983 Ford LTD automobile and the value of the automobile in its defective condition." This is the correct measure of damages in a DTPA action based upon the sale of an automobile. Vista Chevrolet, Inc. v. Lewis, 704 S.W.2d 363, 371 (Tex.App.--Corpus Christi 1985), aff'd in part and rev'd in part, 709 S.W.2d 176 (Tex.1986). However, in order to sustain such a finding of damages, there must be evidence of both the actual amount paid by the buyer and the actual market value of the car as received in its defective condition. At trial, the evidence showed that the price of the car was $11,132.45. Gray offered the testimony of several witnesses in his attempt to prove the market value of the car as delivered in its defective condition. Gray testified first, as follows:
(Emphasis added.) This testimony is no evidence of the market value of the car at the time it was delivered. Proof of market value at the time of trial is no evidence of value at the time of acceptance. Overseas Motors Corp. v. First Century Christian Church, 608 S.W.2d 288, 289-90 (Tex.Civ.App.--Dallas 1980, no writ). In order for an owner of property to testify concerning the market value of his property, as distinguished from its value to him, he must show that he is qualified to do so. Vista Chevrolet, Inc. v. Lewis, 704 S.W.2d 363, 371 (Tex.App.--Corpus Christi 1985), aff'd in part and reversed in part, 709 S.W.2d 176 (Tex.1986) (). An owner is qualified to testify if he states that he knows the market value of his property. Vista, 704 S.W.2d at 371. Gray did not state that he knew the market value of his car at the time of delivery in its defective condition. There is no evidence in the record here that Gray was familiar with the actual market value of his automobile as of the time he received it in its defective condition. There is no evidence that he knew the actual market value of other similar automobiles, or that his testimony referred to anything other than the subjective value of the automobile to him. Vista, 704 S.W.2d at 371. Furthermore, the jury awarded Gray only $8,632.45, an amount $2,500 less than the price he paid for the car. We, therefore, infer that the jury found the market value of the car, as delivered to Gray in its defective condition, to be worth $2,500. Gray's testimony is no evidence to support this figure.
Gray claims that, even if he was not qualified to testify about the value of the car, another witness, Dennis Washkowiak, was qualified, and that his testimony is sufficient evidence of the car's market value at the time Gray received it. Washkowiak was an appraiser for an insurance company, often appraised automobiles, and was familiar with that 1983 LTD because he rode to work with Gray on a regular basis. However, although Washkowiak may have been qualified to testify concerning the market value of the car when Gray received it in its defective condition, he did not do so. The sum of Washkowiak's testimony on this issue reads as follows:
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