DocketNumber： 10-05-00049-CV
Filed Date： 3/14/2007
Status： Precedential
Modified Date： 9/10/2015
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
dissenting Opinion
Based upon a jury verdict, the trial court awarded James Riley $33,000 in past and future damages on his Deceptive Trade Practices Act cause of action against Bossier Chrysler-Dodge II, Inc. Bossier appealed. Because the evidence is legally insufficient to support the jury’s affirmative answer to whether Bossier committed a deceptive act, we should reverse the trial court’s judgment and render judgment that Riley take nothing.
Background
Riley visited Bossier, a Chrysler/Dodge dealership, to find a more fuel efficient vehicle to drive. Riley decided to make a deal on a PT Cruiser. He was going to trade in his pickup truck. Riley signed a conditional sale and delivery agreement and went home to retrieve the title to his pickup. The evidence is conflicting as to whether Riley drove the PT Cruiser or his pickup home. Riley returned with the title and signed the remainder of the paperwork, including a retail installment contract in which he agreed to purchase the PT Cruiser. Riley left Bossier to clean out his pickup. At some point after leaving the dealership for the last time, Riley decided he did not want to purchase the PT Cruiser. He never returned with the pickup or to take possession of the PT Cruiser.
Legal and Factual Insufficiency
In its first issue, Bossier questions whether there is no evidence or alternatively, factually insufficient evidence to support any findings that Bossier (1) made a misrepresentation to Riley, or (2) failed to disclose information to Riley that was a producing cause of damages to him. In Question 5 of the court’s charge, the jury was asked, “Did Bossier engage in any false, misleading, or deceptive act or practice on which James Riley relied to his detriment that was a producing cause of damages to James Riley?” The phrase false, misleading, or deceptive is defined in the charge as (1) “Representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve or which are prohibited by law;” and (2) “Failing to disclose information concerning goods or services which were known at the time of the transaction and such failure to disclose was intended to induce the consumer into a transaction which the consumer would not have entered had the information been disclosed[.]”
In reviewing a verdict for legal sufficiency, we credit evidence that supports the verdict if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. Kroger Tex. Ltd. P'ship v. Suberu, 2006 Tex. LEXIS 441, 8-9 (Tex. 2006); City of Keller v. Wilson, 168 S.W.3d 802, 827, 48 Tex. Sup. Ct. J. 848 (Tex. 2005). A no evidence point will be sustained when, among other reasons, there is a complete absence of evidence of a vital fact, or the evidence offered to prove a vital fact is no more than a mere scintilla. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Evidence does not exceed a scintilla if it is "'so weak as to do no more than create a mere surmise or suspicion'" that the fact exists. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601, 47 Tex. Sup. Ct. J. 266 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63, 26 Tex. Sup. Ct. J. 383 (Tex. 1983)).
Riley’s theory of the case, although not what was specified in his DTPA claim, was that, although he signed a retail installment contract, a previously signed conditional sale and delivery agreement allowed him to call off the deal. It is difficult to discern what evidence Riley believes is a misrepresentation or a failure to disclose. Riley makes no distinction between the two definitions of the phrase, “false, misleading, or deceptive.” He also makes no distinction between Bossier’s first and second issues which contest the sufficiency of the evidence of a false, misleading, or deceptive act (issue one) and reliance (issue two). Further, Riley makes no distinction between evidence which is legally sufficient and evidence which is factually sufficient. What Riley did in his brief and at trial was to dump out everything “bad” that happened to Riley in the hopes that someone would feel sorry for him, rather than proving up his counter-claim. It worked on the jury.
Misrepresentation
Bossier contends that it did not misrepresent any agreement to Riley. But Riley claims in his brief that Bossier misrepresented how the paperwork would function and induced him to sign numerous versions of the same document on the same date. Riley provides no citations to the record for this alleged misrepresentation. That is because there is no evidence in the record of a misrepresentation of how the paperwork would function. Riley also argues that Bossier represented that he would have all the rights to terminate the sale if he was not approved for financing for 36 months at $326 a month. Again, Riley provides no citation to the record for this statement. The conditional sale and delivery agreement provides that if financing is not approved on the proposed terms, the buyer has no obligation to purchase the vehicle. The phrase “proposed terms” relates back to the terms described in the motor vehicle purchase order. There were no proposed financing terms on the motor vehicle purchase order. Thus, there is no evidence that the statement in the conditional sale and delivery agreement is a misrepresentation.
Riley further contends that the price of the vehicle induced him into thinking he could afford the vehicle and back out of the deal until he was approved for financing. There is no testimony that the price induced Riley to do anything. Riley claims in his brief that he took his pickup title to Bossier in reliance on a representation that Bossier would hold the PT Cruiser until Riley learned whether or not he would go back to work. There is no testimony of this reliance or representation. And Riley claims in his brief that the ultimate deceptive act was Bossier’s faxed “threat” to Riley requesting him to bring in the pickup and informing him that Bossier would keep the PT Cruiser and leave Riley with no transportation. The fax was introduced into evidence but it is no evidence that Bossier represented that the fax was an agreement which confers or involves rights, remedies, or obligations which it does not have or involve or which are prohibited by law.
In our review of the record, there is no evidence that Bossier represented to Riley that the conditional sale and delivery agreement, or any other document, allowed Riley to call off the deal after the retail installment contract was signed.
Failure to Disclose
But that is not the end of our inquiry. Bossier also contends that the evidence is legally insufficient to support the second definition of false, misleading, or deceptive act; that being, that Bossier failed to disclose information concerning goods or services which were known at the time of the transaction and such failure to disclose was intended to induce Riley into a transaction which Riley would not have entered had the information been disclosed.
Bossier argues it did not fail to disclose any information to Riley. But Riley argues in his brief that because he signed the retail installment contract before he was notified that he was approved for financing or that the terms of the financing had changed, Bossier failed to disclose information. The only evidence of when Riley was approved for financing was a fax from Chrysler Credit with the time of 6:02 p.m. on February 10. However, there is no evidence in the record that had Riley known at the time that he signed the retail installment contract that he had not yet been approved for financing, he would not have signed the contract. Further, there is no evidence that Bossier failed to disclose the financing terms. The terms were printed on the retail installment contract. And Riley presented no testimony that he did not know what the terms were or if he did not know, that had he known, he would not have signed the retail installment contract.
The only evidence Riley presented on this theory was that he would not have signed the retail installment contract had Bossier told him that he could not back out of the deal after signing it. Bossier informed him that after signing the conditional sale and delivery agreement, he could back out of the deal. But Riley claims Bossier did not inform him that he could not back out of the deal once he signed the retail installment contract. Contrary evidence that a reasonable juror could not disregard is found in a comparison of the language of the two documents signed. The language of the conditional sale and delivery agreement sets out, in bold print, that “Buyer may cancel this agreement to purchase at any time prior to receiving the notification of approval of financing.” No such language is found in the retail installment contract. In fact, the buyer is warned, in bold print, “Do not sign this contract before you read it or if it contains any blank spaces. . . . Buyer acknowledges receipt of a completely filled-in copy of this contract and agrees to all its terms.” There is no evidence that Bossier failed to disclose to Riley that he could not back out of the retail installment agreement once it was signed.
Having determined that there was no evidence to support either definition of false, misleading, or deceptive act or practice, the evidence is legally insufficient to support the jury’s affirmative finding that Bossier engaged in any false, misleading, or deceptive act or practice, and Bossier’s first issue should be sustained. Further, this issue would be dispositive of this appeal, and we would not need to discuss the remainder of Bossier’s first issue or Bossier’s remaining issues.
Conclusion
The trial court’s judgment should be reversed and a judgment rendered that Riley take nothing. Because the majority holds otherwise, I respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion delivered and filed March 14, 2007