Vera v. North Star Dodge Sales, Inc., 04-96-00749-CV
| Decision Date | 19 August 1998 |
| Docket Number | No. 04-96-00749-CV,04-96-00749-CV |
| Citation | 989 S.W.2d 13 |
| Parties | Higinio P. VERA and Alex Vera, Appellants, v. NORTH STAR DODGE SALES, INC.; Pat Powers; and E.L. Hall, Appellees. |
| Court | Texas Court of Appeals |
Robert W. Loree, Law Office of Robert W. Loree, Hector Gonzalez, III, Robert John Myers & Associates, San Antonio, for appellant.
Michael Flume, Munn & Flume, P.C., San Antonio, Walter R. Grimes, Law Offices of Walter Grimes, Houston, Edward M. Lavin, Law Offices of Edward Lavin, San Antonio, for appellee.
Before STONE, GREEN and ANGELINI, JJ.
OPINION ON APPELLEES' MOTION FOR REHEARING
Appellants' motion for rehearing is denied, and appellees' motion for rehearing is granted. Our opinion and judgment of July 22, 1998 are withdrawn, and the following opinion and judgment are substituted.
Higinio and Alex Vera appeal a directed verdict in favor of North Star Dodge, Pat Powers, and E.L. Hall. The suit arises from the sale of an automobile. The Veras raise eight points of error, contending that the trial court erred in directing the verdict in general and because Higinio did not release all of his and Alex's causes of action. The Veras further contend that the trial court erred in denying their motion for leave to file a supplemental petition as a trial amendment and in refusing to allow Higinio to testify that he is illiterate. We affirm, in part, and reverse, in part, the judgment of the trial court.
In the light most favorable to the Veras, the evidence presented at trial is as follows: In late December of 1993, Alex Vera was involved in an automobile collision in his 1992 Chrysler LeBaron. Alex drove the car from the scene, but felt it was unsafe to drive further. On January 7, 1993, Alex and his father, Higinio Vera, went to North Star Dodge in order to shop for a new car. Alex had a poor credit rating, so his father agreed to purchase a car for him to drive.
Alex and Higinio spoke with a salesman at North Star Dodge and test-drove a Mazda Protg. Alex explained to the salesman that he was willing to trade in the LeBaron for the Mazda, but that he was one payment behind on the LeBaron and it had been involved in a "minor" accident. The salesman told Alex and Higinio that North Star Dodge would take the trade-in and take care of the note.
Higinio does not speak English and he does not read or write English or Spanish. All negotiations with the salesman were in Spanish. When the Veras reached a deal with the salesman, they were taken to Pat Powers who handled the financing. The transactions with Powers were in English, with Alex translating for Higinio. An agreement was eventually reached, whereby Higinio could purchase the Mazda for $500 down and the LeBaron. Higinio's stepdaughter wrote a check for the down payment, Higinio signed the papers, and the Veras drove the Mazda home that night.
A few days later, the North Star Dodge salesman called Alex and asked him to bring the LeBaron in. Alex explained that he did not think the LeBaron was safe to drive. Alex testified that the salesman told him to take the car to the nearest dealership and that North Star Dodge would pick it up. However, the dealership records indicate that the LeBaron was taken in for repairs on January 4, 1993, before the Veras ever went to North Star Dodge to purchase the Mazda. Nevertheless, it happened that Alex was more than just one payment behind on the LeBaron, and the Chrysler Credit Corporation repossessed the LeBaron from the dealership before North Star Dodge ever saw it.
The dealership records indicate that there was $2,300 worth of damage to the LeBaron.
On January 18, 1993, Higinio received a letter from E.L. Hall, a manager at North Star Dodge. The letter informed Higinio that information given on his application for the purchase of the Mazda had been incorrect and that the Mazda needed to be returned. The letter stated that stolen vehicle charges would be made against him, if the car was not returned. The Veras did not return the car. Instead, they hired an attorney who notified North Star Dodge that the Veras wanted to complete the transaction.
On February 14, 1993, North Star Dodge sent Higinio a $500 check as reimbursement for his down payment. The checked contained the following release language on the back: "Endorsement releases North Star Dodge from any and all liability regarding the purchase of a 1993 Mazda Protg JM1B62266PO585288." Higinio endorsed and cashed the check. No payment was ever made on the Mazda. And, in March of 1993, North Star Dodge had the Mazda repossessed. Alex claims that he had $690 worth of personal property in the Mazda that was never returned to him.
The Veras sued North Star Dodge, Pat Powers, and E.L. Hall for violations of the DTPA, violations of the Consumer Credit Code, breach of contract, unlawful debt collection, conversion and wrongful repossession, fraud, and civil conspiracy. Following a seven day trial, the trial court directed a verdict in favor of the defendants and entered a take nothing judgment.
If a directed verdict does not specify the grounds upon which it was granted, the directed verdict will be upheld if the record discloses any basis for granting it. Connell v. Connell, 889 S.W.2d 534, 539 (Tex.App.--San Antonio 1994, writ denied). The judgment in this case does not disclose the reason for the directed verdict. However, the record reflects that the trial court determined the Vera's claims were barred by the release Higinio signed when he endorsed the $500 reimbursement from North Star Dodge. In light of this fact and because the majority of the Vera's complaints on appeal relate to the release, we will begin our review of this case by addressing the release.
The Veras raise six points of error relating to the release. They first argue that the release is invalid because it does not satisfy the fair notice requirements established in Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505 (Tex.1993). 1 During trial, the Veras argued that because Higinio could not read or write English, the check did not come with a cover letter explaining what it was, and the release language was in English, there was no meeting of the minds and, therefore, no contract of release. The Veras made no argument regarding conspicuousness at trial. Accordingly, their conspicuousness argument is waived on appeal. See TEX.R.APP. P. 33.1(a).
Even if the Veras had not waived this argument, we find that the language of the release is conspicuous. "A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it." TEX. BUS. & COMM.CODE ANN. § 1.201(10) (Vernon Supp.1998). The release language in this case is on the back of the check, directly above the endorsement line. No other language surrounds the release language, and the language is clear and unambiguous. Under these circumstances, a reasonable person ought to have noticed the release. Therefore, the release is conspicuous.
The Veras next argue that they were not required to file a responsive pleading raising their defense to the release, as the appellees suggested at trial. And, if they were, the Veras alternatively argue that the trial court erred in refusing to allow them to make a trial amendment and in refusing to allow testimony of Higinio's illiteracy. The Veras' defense to the release is lack of mutuality Accordingly, the trial court did not err when it refused to allow the Veras to amend their petition during trial. There was no need for such an amendment where the issue had already been raised in the original pleadings. Likewise, there was no need for the evidence regarding Higinio's illiteracy presented by bill of exception. Higinio had already testified that he could not read the release, and there was plenty of additional evidence regarding Higinio's illiteracy presented during trial. Accordingly, the excluded testimony was cumulative and any error in excluding it was harmless. See Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); St. Paul Fire & Marine Ins. Co. v. Confer, 956 S.W.2d 825, 831 (Tex.App.--San Antonio 1997, writ denied).
because of Higinio's illiteracy. The Veras have asserted this argument since the initiation of this lawsuit. Particularly, their original petition states that "[a]cting in concert and conspiring with others, E.L. Hall also sent Higinio Vera without any explanation, transmittal letter, or any other type of communication, a $500.00 check with release language typed on the back of the check knowing that he was represented by counsel at the time. At this time, Defendants also knew or should have known that Higinio Vera did not read or write English, but nonetheless sent the check fully aware of their wrongdoing." This pleading states that Higinio could not read the release, and therefore, sufficiently raises the issue of lack of mutuality. See Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) (stating that a petition giving fair and adequate notice of facts on which pleader bases his claim is sufficient); TEX.R. CIV. P. 45 (noting pleadings should be liberally construed)
The Veras further argue that the appellees failed to satisfy their burden of proving a binding release. A release is a contract. Garcia v. Villarreal, 478 S.W.2d 830, 832 (Tex.Civ.App.--Corpus Christi 1971, no writ). Accordingly, in order to establish their affirmative defense of release, the appellees must prove the elements of a contract. The Veras argue that the appellees have failed to prove the mutuality of intent necessary to the forming of a binding contract. Specifically, the Veras contend that, because Higinio is illiterate, he did not know what he was signing when he endorsed the check containing the release language. Therefore, according to the Veras, there was no meeting of the minds...
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