Vista Chevrolet, Inc. v. Lewis

• Court: Texas Court of Appeals
• Writing for the Court: UTTER
• Citation: Vista Chevrolet, Inc. v. Lewis, 704 S.W.2d 363 (Tex. App. 1985)
• Decision Date: 28 June 1985
• Docket Number: No. 13-84-314-CV,13-84-314-CV
• Parties: 1 UCC Rep.Serv.2d 1165 VISTA CHEVROLET, INC., Appellant, v. Kelly LEWIS, Appellee.

Page 363

704 S.W.2d 363

1 UCC Rep.Serv.2d 1165

VISTA CHEVROLET, INC., Appellant, v. Kelly LEWIS, Appellee.

No. 13-84-314-CV.

Court of Appeals of Texas Corpus Christi.

June 28, 1985.

Rehearing Denied Sept. 5, 1985.

Rick Rogers, Porter, Rogers, Dahlman & Gordon, Corpus Christi, for appellant.

C.M. Henkel, III, Corpus Christi, for appellee.

Before UTTER, KENNEDY, and BISSETT ¹, JJ.

OPINION

UTTER, Justice.

This suit involves (1) a claim for revocation of acceptance of an automobile pursuant to TEX.BUS.COMM.CODE ANN. § 2.608 (Vernon Supp.1985) and (2) a claim for damages under the Texas Consumer Protection--Deceptive Trade Practices Act, TEX.BUS.COMM.CODE ANN. § 17.41 et seq. (Vernon Supp.1985) (DTPA). From a judgment rendered against Vista Chevrolet, Inc., and General Motors Corporation following a jury trial, only Vista Chevrolet appeals. We affirm in part and reverse and remand in part.

On December 24, 1980, Mr. and Mrs. Kelly Lewis purchased from appellant Vista Chevrolet a 1981 Chevrolet Monte Carlo automobile. Although Mrs. Lewis shopped for the automobile and was the intended primary user of the automobile, appellee signed the contract for the automobile, and title to the automobile was placed in appellee's name. ² The contract reflected a "Deferred Payment Price" of $13,992.80.

On the morning of March 3, 1981, Mrs. Lewis attempted to start her automobile after it had not been used over the weekend. Mrs. Lewis could not start the automobile, had to "jump start" it and drove the automobile to Vista Chevrolet to have it repaired. Subsequently, over a period of approximately sixteen (16) months, Mrs. Lewis continued to experience the "exact same problem" ("it wouldn't start after it sat"), and the automobile was returned to Vista Chevrolet to be repaired for the same problem on a total of ten separate occasions. Work orders pertaining to each occasion noted above were admitted into evidence at trial and indicated the nature of the complaint and the work and/or services performed on each occasion. Mrs. Lewis testified that, in addition to the ten occasions, she experienced the same problem "three or four" times between July and November 1981 and that there were other times when she "wouldn't always take it in" because she "couldn't take it in at the time." Mrs. Lewis testified that, each time the automobile was "picked up" at Vista Chevrolet following alleged repairs, she had been told that the car had been "fixed" except that, when she "picked up" the automobile on May 19, 1982, Phillip Neessen, President of Vista Chevrolet, told her that Vista Chevrolet "could not fix the car." However, at trial, Mr. Neessen denied ever telling Mrs. Lewis or anyone that her car could not be repaired.

Mrs. Lewis testified that, after Neessen told her that the automobile could not be fixed, she contacted her attorney. Consequently, the attorney wrote and sent a demand letter, dated June 21, 1982, to Vista Chevrolet; a copy of the letter was sent to General Motors. Mrs. Lewis stated that, as a result of the letter, on July 19, 1982, "we took the car back to Vista. They wanted us to bring the car back and give them one more chance to fix it." Mrs. Lewis then testified that, after a few days, someone called and told her to "pick it up that afternoon. It would be ready." She testified that, when she picked up the automobile, she was told that it had been "fixed" and "it was ready to be picked up." However, according to Mrs. Lewis, Bobby Ybarra, the repair shop foreman for Vista Chevrolet, later telephoned her and said that "he wanted me to bring the car back in, that it had not been ready to be picked up." Mrs. Lewis refused to return the automobile. She testified that, after she had let it sit over the weekend, the automobile wouldn't start again.

The record shows (1) that, on March 3, 1981 (the date of the first occurrence of the problem), the automobile had been driven approximately 2,498 miles, (2) that, at the time of the alleged revocation of acceptance on June 21, 1982, the automobile had been driven approximately 22,232 miles and (3) that, at the time of trial (beginning February 27, 1984), the automobile had been driven approximately 40,000 miles.

On August 17, 1982, appellee Kelly Lewis filed suit against Vista Chevrolet and General Motors asserting that he had "properly exercised [his] right to revoke acceptance of said vehicle" pursuant to TEX.BUS.COMM.CODE ANN. § 2.608 (Vernon Supp.1985) and alleging certain violations of the DTPA.

The trial court, based upon the jury's findings, rendered judgment on both the revocation of acceptance and the DTPA causes of action in favor of appellee Kelly Lewis against Vista Chevrolet and General Motors.

In its first six points of error, appellant challenges the failure of the trial court to grant its motion for instructed verdict and the sufficiency of the evidence to support appellee's claimed revocation of acceptance of the automobile pursuant to TEX.BUS.COMM.CODE ANN. § 2.608 (Vernon Supp.1985). ³

The overruling of a motion for instructed verdict will be reviewed on appeal, only if it was recited in a formal order or in the judgment. Since appellant's complaint was not so preserved in the record, it cannot be considered. Superior Trucks, Inc. v. Allen, 664 S.W.2d 136 (Tex.App.--Houston [1st Dist.] 1983, writ ref. n.r.e.); Steed v. Bost, 602 S.W.2d 385 (Tex.Civ.App.--Austin 1980, no writ).

In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Texas L.Rev. 361 (1960).

Appellant asserts that there is no evidence or insufficient evidence in the record to show (1) that the claimed defect or nonconformity of the automobile substantially impaired the value of the automobile to appellee, (2) that the alleged revocation of acceptance occurred before any substantial change in the condition of the automobile not caused by the claimed defect or nonconformity and (3) that the revocation of acceptance occurred within a reasonable time after discovery of the claimed defect or nonconformity. Also, appellant asserts that there was no evidence to show that appellant tendered the value of the benefit received from the use of the automobile at the time of the alleged revocation of acceptance.

Appellant argues that, since Mrs. Lewis had driven the automobile approximately 22,200 miles over approximately a twenty (20) month period before the alleged revocation of acceptance, (1) the claimed defect or nonconformity could not have substantially impaired the value of the automobile to her and (2) the revocation did not occur before any substantial change had occurred in the automobile which was not caused by the claimed defect or nonconformity. The evidence reflects Mrs. Lewis' continued use of the automobile prior to the alleged revocation of acceptance was, at least in part, induced by the repeated representations by Vista Chevrolet that the claimed defect or non-conformity could be and had been cured and that the automobile could be and had been repaired; whereas, the evidence also shows that all of the repeated attempts to repair the problem with the automobile were unsuccessful.

The determination regarding whether the defect or nonconformity substantially impaired the value of the good to the buyer to justify revocation of acceptance is a fact issue for the trier of fact to determine. Conte v. Dwan Lincoln-Mercury, Inc., 172 Conn. 112, 374 A.2d 144 (1976); Champion Ford Sales, Inc. v. Levine, 49 Md.App. 547, 433 A.2d 1218 (1981); See Freeman Oldsmobile-Mazda Co. v. Pinson, 580 S.W.2d 112 (Tex.Civ.App.--Eastland 1979, writ ref'd. n.r.e.); Don's Marine, Inc. v. Haldeman, 557 S.W.2d 826 (Tex.Civ.App.--Corpus Christi 1977, writ ref'd. n.r.e.). Also, the determination regarding whether any substantial change in the condition of the good which is not caused by the claimed defect or nonconformity had occurred before revocation of acceptance is a fact issue for trier of fact. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517 (1983); Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn.1977).

The mere fact that the continued use of a motor vehicle increases the mileage placed on the vehicle does not bar the buyer from revoking his acceptance of the vehicle for substantial impairment of the value of the vehicle to the buyer. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 657 P.2d 517 (1983); Jacobs v. Rosemount Dodge-Winnebago South, 310 N.W.2d 71 (Minn.1981); Hardimon v. Cullum & Maxey Camping Center, Inc., 591 S.W.2d 771 (Tenn.App.1979). Also, the mere fact that the motor vehicle was used extensively does not prevent the jury from concluding that there was a breach of implied warranty of merchantability which substantially impaired the value of the goods to the buyer. Jackson v. H. Frank Oldsmobile, Inc., 65 Ill.App.3d 571, 22 Ill.Dec. 230, 382 N.E.2d 550 (1978).

We hold that, under the facts of this case, there is evidence upon which the jury could have found (1) that the claimed defect or nonconformity substantially impaired the value of the automobile to appellee, especially when that defect or nonconformity remained uncorrected despite the seller's repeated repair attempts and assurances of correction, and (2) that the alleged revocation of acceptance occurred before any substantial change in the condition of the automobile not caused by the claimed defect or non-conformity. Tiger Motor Co. v. McMurtry, 284 Ala. 283, 224 So.2d 638 (1969); Conte v. Dwan Lincoln-Mercury Inc., 172 Conn. 112, 374 A.2d 144 (1976); Durfee v. Rod Baxter Imports, Inc., 262 N.W.2d 349 (Minn.1977); Welch v. Fitzgerald-Hicks Dodge, Inc., ...