hong-huang-latonia-calamease-isaak-golbraykh-zhi-yuan-liu-juan-ramon ( 2006 )

Motion for Rehearing Overruled; Affirmed; Memorandum Opinion of October 13, 2005, Withdrawn; and Substitute Majority and Concurring Opinions on Rehearing filed October 19, 2006

Motion for Rehearing Overruled; Affirmed; Memorandum Opinion of October 13, 2005, Withdrawn; and Substitute Majority and Concurring Opinions on Rehearing filed October 19, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01287-CV

____________

HONG HUANG, LATONIA CALAMEASE, ISAAK GOLBRAYKH,

ZHI YUAN LIU, JUAN RAMON MEJIA, LIE KAI PON, YAN FEN XIAN, GUOYUE YU, JING YAN ZHOU, CHI-CHIH TSAI, JIAN-FENG LI,

and CHIU K. LEE, Appellants

V.

DON McGILL TOYOTA, INC., Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 02-17946

C O N C U R R I N G   O P I N I O N

O N   R E H E A R I N G

I agree that the damage evidence presented in this case is legally insufficient, but I disagree with the majority opinion=s discussion regarding the applicable damage calculation.  Because the appellants sought only to purchase (not lease) the vehicles, and because a lease is fundamentally different from, and therefore not comparable to, a purchase, there is no way to calculate damages as between a purchase and lease as such.  Nor would it be meaningful to calculate the difference between the value received versus the value parted with under a lease and purchase, respectively, because that still does not give a basis to compare one with the other.  Instead, evidence of damage would have to allow a comparison of the total cost to purchase the respective vehicles by way of the lease each appellant entered into (exercising the purchase option) versus the purchase transaction they were represented to be entering into. This would involve an adjustment by an appropriate discount factor to compensate for the differing times and amounts at which payments would be made under each alternative.  Without such an Aapples to apples@ comparison, it is not possible to tell whether the appellants were better or worse off with the lease transaction they actually entered into than they would have been with the purchase transaction they were allegedly represented to be entering into, and thus whether they suffered any actual damage.  Moreover, because the damage evidence was legally insufficient, it is unnecessary to address any other conclusion of law or finding of fact.

/s/      Richard H. Edelman

Justice

Judgment rendered and Substitute Majority and Concurring Opinions on Rehearing filed October 19, 2006.

Panel consists of Justices Edelman, Seymore, and Guzman. (Seymore, J., majority.)