Bossier Chrysler-Dodge II, Inc. D/B/A Bossier Country v. James Riley ( 2007 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00049-CV

Bossier Chrysler-Dodge II, Inc.

d/b/a Bossier Country,

                                                                      Appellant

 v.

James Riley,

                                                                      Appellee

From the 77th District Court

Freestone County, Texas

Trial Court No. 03-158-A

Opinion DENYING REHEARING

          In this opinion denying Bossier Country’s motion for rehearing, we address two of the six grounds raised in the motion: (1) this Court “overlooked admissions made by Riley” and other evidence which conclusively establish Bossier Country’s entitlement to judgment on Riley’s DTPA claims; and (2) this Court violated Bossier Country’s rights to due process and due course of law by deciding the case on a theory “that was never pleaded [or] tried below.”[1]

Riley’s “Admissions”

          Bossier Country argued in its appellant’s brief and argues in the motion for rehearing that testimony regarding Riley’s “unique” interpretation of his right to cancel conclusively establishes Bossier Country’s entitlement to judgment on the DTPA claims because this evidence establishes that Bossier Country did not make an actionable misrepresentation and that Riley did not rely on any representations made by Bossier Country.

          On cross-examination, Bossier Country’s counsel asked Riley what provisions of the various documents executed by the parties led him to believe that he had the right to cancel after Bossier got him the financing indicated in the installment contract and the second MVPO. Riley responded by observing that the Conditional Sale and Delivery Agreement specifically provides for a right to cancel by the Buyer (1) “at any time prior to receiving the notification of approval of financing” or (2) “[i]f financing is not approved on the proposed terms.”  Riley disagreed with Bossier Country’s counsel about whether he had the right to cancel after Daimler Chrysler made its financing decision only “if financing [was] not approved.”

          Bossier Country also refers to Riley’s testimony that he continued to rely on the cancellation provisions of the Conditional Sale and Delivery Agreement after he signed the installment contract, “even after Bossier Country notified him that financing had been approved.”

          Finally, Bossier Country refers to the Rileys’ long distance telephone bill from the pertinent time period as “irrefutable” evidence that Riley did not call Bossier Country to try to cancel until the next morning, after Bossier Country received written notification that financing had been approved.

          The Conditional Sale and Delivery Agreement explicitly gave Riley the right to cancel (1) “at any time prior to receiving the notification of approval of financing” or (2) “[i]f financing [was] not approved on the proposed terms.” (emphasis added)  Riley testified that it was “specifically explained” to him that this document would allow him to back out of the deal.[2]

          Bossier Country observes that Riley testified that he believed he still could back out “even though Bossier actually got you the financing” (in the words of Bossier Country’s trial counsel).  However, the financing actually approved by Daimler Chrysler differs from the terms Riley agreed to with the salesperson Jason Banks.  Riley did testify that, when he returned and signed the installment contract, Bossier Country did “notify [him] specifically that [he] had, in fact, been approved on those exact terms.”  Again however, “those terms” arguably are the terms reflected in the installment contract rather than the terms Riley had negotiated with Banks.  Thus, the jury had to resolve a disputed fact issue regarding whether Daimler Chrysler ever approved financing for Riley at the terms he negotiated with Banks.

          Regarding the moment when financing was approved, Bossier Country contends that the evidence conclusively establishes that financing was approved before Riley signed the installment contract because: (1) the undisputed evidence shows that Riley had a 6:00 p.m. appointment at Bossier Country which corresponds to the time when written approval of financing was received and which is necessarily the time Riley came in and signed the installment contract; and (2) the terms stated in the installment contract and the second MVPO,  both of which list Daimler Chrysler as the lienholder, reflect the precise terms of financing which Daimler Chrysler approved.

          The record contains conflicting evidence on this issue, however.  Riley testified that he returned to Bossier Country only once that day, at mid-afternoon.  Banks testified that Riley probably left after his second visit at 1:00 or 2:00 in the afternoon.  No one testified that Riley kept the 6:00 appointment.  Thus, a fact issue existed as to when Riley returned to Bossier Country and signed the installment contract.

          Nor can we agree that the mere fact that the finance terms stated in the installment contract correspond exactly to the terms ultimately approved by Daimler Chrysler conclusively establishes that financing had been approved when the installment contract was prepared and presented to Riley for execution.  Because Bossier Country did not receive written notification that Daimler Chrysler had approved financing until 6:02 p.m. and because there is evidence that Riley signed the installment contract several hours earlier, a fact issue existed regarding when Daimler Chrysler approved financing.  And because a fact issue existed regarding when Daimler Chrysler approved financing, a fact issue necessarily existed concerning when (or if) Bossier Country accurately notified Riley that financing had been approved.

          Finally, with regard to when Riley called to cancel the deal, Bossier Country contends that the Rileys’ long distance telephone bill conclusively establishes that he did not do so until the following morning.  Riley testified that he discussed the matter with his wife then called Bossier Country “the same afternoon” to cancel the deal.  From this testimony, the jury could have inferred that Riley was home when he called, but the jury did not necessarily have to so infer.  Moreover, the jury could have inferred that Riley used a different telephone or a cell phone.  The jury could also have inferred that the Rileys’ telephone bill was inaccurate. Accordingly, we cannot agree that their long distance telephone bill conclusively establishes that Riley did not call Bossier Country until the following morning to cancel the deal.

          In summary, the record contains conflicting evidence about whether Daimler Chrysler ever approved financing for Riley on the terms he negotiated with Banks, when Daimler Chrysler actually approved financing, when or if Bossier Country accurately notified Riley that financing had been approved, and when Riley called Bossier Country to cancel the deal.  We must defer to the jury’s resolution of these disputed fact issues.  See Pulley v. Milberger, 198 S.W.3d 418, 426-27 (Tex. App.—Dallas 2006, pet. denied); Checker Bag Co. v. Washington, 27 S.W.3d 625, 633 (Tex. App.—Waco 2000, pet. denied).

Due Process/Due Course of Law

          Bossier Country also contends that this Court violated Bossier Country’s rights to due process and due course of law by deciding the case on a theory “that was never pleaded [or] tried below.”  Specifically, Bossier Country argues that “Riley neither pleaded nor proved that Bossier Country falsely represented, or failed to disclose, that financing had been approved when he signed the Retail Installment Contract, or that he detrimentally relied on any such representation.”

          Riley generally alleged the following DTPA violations in his counterclaim:

(1) Bossier Country “represented that an agreement conferred or involved rights, remedies, or obligations which it does not have or involve, or which are prohibited by law”; and

(2) Bossier Country “fail[ed] to disclose information concerning goods or services which were known at the time of the transaction and such failure to disclose was intended to include [sic] the consumer into a transaction which the consumer would not have entered had the information been disclosed.”

Bossier Country did not specially except to Riley’s pleadings.

          We have already recited the pertinent evidence.  Riley’s counsel, in her opening statement, highlighted the fact that the Conditional Sale and Delivery Agreement permitted Riley to cancel “if financing [was] denied on the proposed terms.”  In her closing argument, his counsel argued that Riley had the right to cancel because financing had not been approved on the terms he agreed to and that Bossier Country made misrepresentations by having him sign the installment contract before financing was approved.

          Therefore, we cannot agree that Riley failed to plead or prove “that Bossier Country falsely represented, or failed to disclose, that financing had been approved when he signed the Retail Installment Contract, or that he detrimentally relied on any such representation.”  Nor can we agree that Riley did not try his DTPA claims on this theory.

Bossier Country’s motion for rehearing is denied.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Rehearing denied

Opinion delivered and filed April 25, 2007

[CV06]

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[1]           Bossier Country also contends on rehearing that: (1) this Court erred by holding that a disclaimer in the Addendum to the MVPO is unenforceable; (2) this Court’s rationale for upholding the jury’s finding of a “knowing” DTPA violation “makes every violation of the DTPA in a motor vehicle purchase transaction a ‘knowing’ violation”; (3) this Court erred by holding that section 17.50(b)(1) of the DTPA does not set a cap on the amount of mental anguish damages that can be awarded for a knowing violation; and (4) this Court erred by assessing costs against Bossier Country.

[2]           Bossier Country characterizes Riley’s understanding of his right to cancel as a “unique and secret interpretation” of the Conditional Sales and Delivery Agreement.  However, it appears from a careful review of Riley’s testimony that he was simply relying on the two alternative grounds for cancellation explicitly stated in this document and quoted hereinabove as the basis for his interpretation.