Jack Daniels D/B/A Daniel's Rentals v. Edward Richardson D/B/A Blue Saphire Lawn Care ( 2009 )

Opinion issued April 16, 2009

  In The  

Court of Appeals

For The  

First District of Texas

---

  NO. 01-06-00242-CV

---

JACK DANIEL D/B/A DANIEL’S RENTALS, Appellant

V.

EDWIN RICHARDSON D/B/A BLUE SAPHIRE LAWN CARE, Appellee

---

  On Appeal from the County Court at Law No. 1

Brazoria County, Texas

Trial Court Cause No. CI033595  

---

MEMORANDUM OPINION  

          In two points of error, Jack Daniel, appellant, complains that the trial court erred by failing to submit a proper charge to the jury and that the evidence supporting the jury’s verdict against him is legally insufficient. We affirm.

Factual Background

          Edwin Richardson d/b/a Blue Saphire Lawn Care, (“Richardson”) brought suit against Jack Daniel d/b/a Daniel’s Rentals (“Daniel”) and Ferris Industries, Inc. (“Ferris”). Richardson’s petition alleged that Daniel was an “authorized dealer and representative of Ferris.” Richardson purchased a lawn mower, which had been manufactured by Ferris, from Daniel and he alleged that Daniel and Ferris misrepresented the characteristics of the mower during that sale. Richardson sought to recover damages and attorneys’ fees under the Texas Deceptive Trade Practices Act (“DTPA”). Daniel answered with a general denial, and also asserted that Richardson’s own negligence, or that of third parties, was the cause of Richardson’s alleged damages. Richardson’s claims against Daniel were severed from those against Ferris and the case against Daniel proceeded to trial.

          At trial, Richardson testified that he owned and operated Blue Saphire Lawn Care and that in 2001 he purchased a Derby Stallion motor from Daniel’s Rentals. Richardson explained that he had previously purchased a Husky motor from another dealer, but had become dissatisfied with it. He brought the Husky into Daniel’s Rentals for service. Richardson stated that he informed Daniel that he was both a commercial and a residential mower, and that he had recently started a lawn mowing business. According to Richardson, Daniel then informed him he had recently test-driven the Derby mower and it was “the best commercial motor that [Daniel] tried at the mower show in Houston.” Based in part on this representation, Richardson purchased a Derby mower from Daniel. Richardson also testified that Daniel informed him that the mower had a two-year warranty, was “the best commercial mower on the market” and would cut at a speed of seven miles per hour. Richardson’s son Michael, who worked in the lawn mowing business with his father, was also present when Richardson purchased the mower, and he testified that Richardson informed Daniel that he needed the machine for commercial lawn mowing, and that Daniel represented the machine was a commercial-grade lawn mower and was the best machine he had to offer. Michael testified that, in his opinion, the machine his father purchased from Daniel was not commercial grade.

          As part of the purchase, Richardson signed a document entitled “Purchaser’s Warranty Registration.” That document states that “Purchaser’s signature affirms that he has received the owner’s manual . . . .”

          In addition, it states

          PURCHASER’S SIGNATURE INDICATES:

          . . .

          •        Receipt of owner’s manual

          •        Clear understanding of warranty

          The Warranty Registration was signed by both Daniel and Richardson. At trial, Richardson denied receiving a copy of the Warranty but admitted that he signed it. On the reverse, the Warranty stated it was for twelve months of commercial use and twenty-four months for residential use. Richardson testified, however, that Daniel assured him that the Warranty was for twenty-four months. Richardson also stated that the owner’s manual he received from Daniel was almost illegible and “stuck together, molded and torn.”

          Shortly after purchasing the mower, Richardson began to experience problems with it. After three or four days of use, Richardson stated that the mower began to leave stripes of uncut grass after passing through an area. Richardson introduced a photograph that he described as showing uncut sections left by the mower he purchased from Daniel. Richardson returned the mower to Daniel for service, and he testified that Daniel recommended replacing the blade. According to Richardson, however, replacing the blade did not cure the problem and he soon encountered other difficulties with the mower. Richardson testified that one part, a “greaser,” fell off the machine and that Daniel simply told him to “tap it back on” himself, rather than performing any warranty service. In all, Richardson testified that he took the mower to Daniel at least six times within three months, and that Daniel failed to perform the necessary services on the mower. Richardson’s son Michael also testified that Daniel’s warranty repairs were faulty. Instead of having Daniel continue to perform work on the mower, Richardson took the mower to another dealer for service. Richardson stated that, although the other dealer was able to perform some repairs on the mower, the machine still continued to cut grass poorly. Further, Richardson testified that, after bringing the mower in for repairs to Daniel’s shop, it developed new steering problems. Richardson also testified that Daniel failed to properly perform the routine maintenance tasks he requested for the mower. On one occasion, for example, Daniel had installed an improper gas filter that caused the mower to backfire. Richardson stated that, although Daniel claimed that his shop could perform the necessary warranty work on the mower, it was his opinion that Daniel was not actually able to perform such work. Finally, Richardson testified that the cutting speed of the mower was slower than had been represented to him by Daniel and in the Ferris literature.

          In his testimony, Daniel denied representing the mower he sold Richardson was a commercial-grade mower. Instead, Daniel explained that the mower was “a homeowner’s mower, built in a commercial style, commercial grade, but it is not a commercial mower.” He also denied that Richardson had informed him that the mower would be used in his lawn care business. Daniel stated that he did not know that Richardson intended to use the mower for his lawn care business until after Richardson had purchased the mower at issue. Daniel testified that, after Richardson complained the mower was leaving stripes of uncut grass, he examined the mower and even test-drove it to determine the cause of the problem. According to Daniel, he made several recommendations to Richardson to eliminate the problem, including mowing at a slower speed and adjusting the deck of the mower. Daniel stated that, when he inspected the mower after Richardson brought it in for service, the oil had not been changed timely and other routine maintenance had not been performed, and that this could have affected the machine’s performance. In addition, he testified that mowing too fast would compromise the quality of the machine’s performance. According to Daniel, he had tested the mower on at least one occasion and the mower had performed adequately when properly driven and maintained. Daniel also denied that the mower had been serviced with an improper filter.

          After testimony, the court submitted a charge to the jury that included a liability question on whether Daniel had violated the DTPA, as well as asking the jury to apportion causation for any damages that Richardson might have suffered between the following four causes: (1) the acts or omissions of Daniel; (2) the negligence of Richardson; (3) defects in the construction, design or manufacture of the mower; and (4) misrepresentations of Ferris.

          The jury found that Daniel violated the DTPA, awarding Richardson $10,965.36 in damages for the value of the mower and loss of business income. In addition, the jury found that 44% of Richardson’s damages were caused by Daniel’s acts and omissions, 51% were caused by defects in the mower, and 5% were caused by the misrepresentations of Ferris. The jury also found that Daniel acted knowingly, but not intentionally, in violating the DTPA. The trial court entered a final judgment against Daniel for $ 4,824.75 in actual damages, plus pre- and post-judgment interest, attorneys’ fees and costs.

          On appeal, Daniel argues that the trial court erred by failing to submit a question to the jury asking it to determine Ferris’ liability under Chapter 82 of the Texas Civil Practice and Remedies Code, and that the evidence supporting the jury’s verdict is legally insufficient.

Analysis

Did the trial court err by failing to submit Ferris’ responsibility under Chapter 82 of the Civil Practice and Remedies Code to the jury?

          In his first issue, Daniel complains that the trial court failed to submit a liability question asking the jury to determine whether Ferris, the manufacturer of the mower, was liable under Chapter 82 of the Texas Civil Practice and Remedies Code. Daniel also complains that the trial court erred by failing to include a question regarding Ferris’ proportional responsibility in the jury charge.

          Chapter 82 of the Texas Civil Practice and Remedies Code imposes a duty upon manufacturers to “indemnify and hold harmless” sellers “against loss arising out of a products liability action,” except for “any loss caused by the seller’s negligence, intentional misconduct, or other act or omission, such as negligently modifying or altering the product, for which the seller is independently liable.” Tex. Civ. Prac. & Rem. Code Ann. § 82.002 (Vernon 2005). The purpose of this section is to require a manufacturer to indemnify an innocent seller for certain damages and litigation expenses arising out of a products liability action and to require sellers to bear the damages and expenses for the losses they cause. Gen. Motors Corp. v. Hudiburg Chevrolet, Inc., 199 S.W.3d 249, 262 (Tex. 2006).  

            Chapter 82 defines a “products liability action” as any action against a manufacturer or seller for recovery of damages arising out of personal injury, death, or property damage allegedly caused by a defective product whether the action is based in strict tort liability, strict products liability, negligence, misrepresentation, breach of express or implied warranty, or any other theory or combination of theories. Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 2005). Richardson’s lawsuit against Daniel was based on alleged violations of the Texas Deceptive Trade Practices Act, with Richardson asserting that both the characteristics of the lawn mower and Daniel’s ability to service that mower had been misrepresented to him during the sale. At trial, Richardson sought only to recover the economic value of the contract he entered based upon the misrepresentations (the difference in the amount he paid for the mower and what the jury believed it to actually be worth) and the business he lost as a result of not being able to use the mower as he intended. He did not seek damages “arising out of personal injury, death, or property damage,” and he therefore did not assert a “products liability” action under Chapter 82. Accordingly, Chapter 82 did not apply to the lawsuit at issue and the trial court properly denied Daniel’s request for such a jury question.

          Further, Daniel complains that the trial court failed to submit a question asking the jury to assess the proportional responsibility of Ferris under Chapter 33 of the Texas Civil Practice and Remedies Code. We conclude that Daniel has waived this argument on appeal because he failed to object to the court’s charge on these grounds at trial. See Tex. R. App. P. 33.1(a)(1) (to preserve complaint for appellate review, the complaint must be made to the trial court by “a timely request”); Tex. R. Civ. P. 278; Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 333 (Tex. App.—El Paso 1993, no writ) (stating under Rule 278 “purported error regarding an omitted jury instruction is deemed waived absent the request and tender, in writing, of an instruction in substantially correct form”).

          Accordingly, we overrule Daniel’s first issue.

Was the jury’s finding that Daniel violated the DTPA supported by legally sufficient evidence?          In his second issue, Daniel alleges that the evidence supporting the jury’s finding that he violated the DTPA is legally insufficient. Specifically, Daniel contends that all of the misrepresentations that he is alleged to have made were actually made in written materials furnished by Ferris, and that he merely acted as a conduit in passing on this information to Richardson.

          In deciding a legal-sufficiency challenge, we determine whether there is evidence that would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). To make this determination, we (1) credit all favorable evidence that reasonable jurors could believe; (2) disregard all contrary evidence, except that which they could not ignore; (3) view the evidence in the light most favorable to the verdict; and (4) indulge every reasonable inference that would support the verdict. Id. at 822, 827. But, we may not disregard evidence that allows only one inference. Id. at 822. The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder. Id. at 822.

          On appeal, Daniel alleges that “there was no statement made by Mr. Daniel, and identified by Mr. Richardson as being one of his alleged violations, that was not dependent on a written statement from the manufacturer.” We disagree. The jury charge asked the jury to determine whether Daniel committed a “[f]alse, misleading or deceptive act or practice,” defined as any of the following

a. [C]aus[ing] confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services;

b. [R]epresent[ing] that goods or services have . . . characteristics, . . . or qualities which they do not have . . .;

c. Representing that good or services are of a particular standard, quality, or grade or that goods are a particular style, [or] model, when they are another;

d. Representing that an agreement confers or involves rights, remedies or obligations which it does not . . .;

e. Representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve;

f. Fail[ing] to disclose information concerning goods or services which was known at the time of the transaction and such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;

g. Misrepresent[ing] that the mower . . . was not a commercial grade mower;

h. [Selling] a mower that fails to properly cut grass and lawns as represented; [or]

i. Fail[ing] to disclose . . . that Jack Daniel is unable to fulfill the necessary warranty work needed to repair Ed Richardson’s mower.  

          We find that there is legally sufficient evidence to support the jury’s finding that Daniel violated the DTPA in at least one of the above ways. For example, Richardson testified that he brought the mower into Daniel’s shop several times for warranty work that Daniel failed to perform. While Daniel disagreed with Richardson’s conclusions and contended that his shop had properly performed the work that Richardson requested, the jury was free to believe the testimony of Richardson over that of Daniel. See City of Keller, 168 S.W.3d at 822.   

          In addition, the charge as submitted allowed the jury to find Daniel liable for a violation of the DTPA if he sold a mower that “fail[ed] to properly cut grass and lawns as represented.” Richardson introduced evidence at trial that the mower he purchased from Daniel was both slower and less accurate than either Daniel or the manufacturer had represented. Richardson also introduced photographs showing what he claimed were stripes of uncut grass left by the mower he purchased from Daniel. While Daniel testified that these photographs related to a different mower, the jury was again free to disbelieve his testimony and instead credit Richardson’s. Id. Finally, aside from the question of whether the manufacturer’s literature contained any misrepresentations, Richard unequivocally testified that Daniel represented to him that the mower at issue was commercial grade and suitable for use in his lawn mowing business. While Daniel denied having made such a statement, Richardson’s testimony is legally sufficient to support the jury’s verdict. Id. Accordingly, we overrule Daniel’s second issue.   

Conclusion

          We hold that the trial court did not err by failing to submit a question regarding Ferris’ liability under Chapter 82 of the Texas Civil Practice and Remedies Code. Further, the jury’s finding that Daniel violated the Texas Deceptive Trade Practices Act is supported by legally sufficient evidence. We therefore affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Chief Justice Radack and Justices Alcala and Hanks.