Duncan Buick Company v. V. Charles Dollins--Appeal from County Court at Law No 2 of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-034-CV

DUNCAN BUICK COMPANY,

Appellant

v.

CHARLES DOLLINS,

Appellee

From the County Court at Law No. 2

McLennan County, Texas

Trial Court # 910844 CV2

O P I N I O N

FACTUAL BACKGROUND

Appellee Charles Dollins purchased a used "no warranty as is" 1986 Buick Park Avenue with approximately 83,000 miles on it from Duncan Buick for $5,995. Two days later, following a trouble-free drive from Waco to Oklahoma City, the car developed transmission problems as Dollins drove around Oklahoma City. The transmission had to be rebuilt when Dollins returned to Waco. Duncan Buick refused to take responsibility for the repairs, given that the car had been sold "as is" and that they would not guarantee a high-mileage car such as this. Dollins, after having the car repaired by T & M Transmissions at a cost of $1,031.11, filed suit under the Texas Deceptive Trade Practices Act (DTPA) against Duncan Buick, alleging that the used-car salesman had made numerous misrepresentations concerning the condition of the car which had induced Dollins to purchase the Buick.

At a bench trial, the court refused to allow Malcolm Duncan, the sole officer, director, and shareholder of Duncan Buick, to represent Duncan Buick and refused to permit him to raise any defenses or participate in the trial itself, although Duncan had already represented the corporation at two earlier pretrial hearings without his right to represent the corporation being questioned. After hearing Dollins' evidence, the court awarded judgment in his favor for $1,031.11 in actual damages for the repairs to the car, $1,500 in attorney's fees, and interest.

Appellant Duncan Buick has challenged by thirty-eight points of error the legal and factual sufficiency of the evidence to support the court's findings of fact and conclusions of law. Because we find that there is no evidence in the record to support the trial court's finding-conclusion that the salesman made what could be considered actionable misrepresentations under the DTPA, we will reverse the trial court's judgment on Appellant's first three points of error and render judgment that the plaintiff take nothing. See Tex. R. App. P. 80(b).

APPELLANT'S RENDITION POINTS

Appellant asserts in its first two points that the trial court erred in rendering judgment for Dollins and in denying Appellant's motion for judgment non obstante veredicto and in making its finding of fact number 12 and conclusion of law number 32 because, even assuming Duncan Buick made the statements attributed to it, such statements alleged to have created express warranties constituted "puffing" and are not actionable under the DTPA as a matter of law. In its third point, Appellant contends that the evidence is legally and factually insufficient to establish that the alleged representations were false at the time of the sale in question.

THE EVIDENCE

The record shows that on August 22, 1991, Dollins dealt with Brooks West, the Duncan Buick salesman who was in charge of used-car sales for the company. Dollins was interested in a five-year-old Park Avenue with approximately 83,000 miles on it, but he expressed concern to West about the window sticker on the car which referred to an "as-is" warranty and inquired what it covered. According to Dollins' testimony, the salesman stated the car wasn't guaranteed but that there was nothing wrong with the car. "It was a high mileage car, and they put the as-is warranty on there because they didn't, you know, they couldn't guarantee a car with high mileage." Dollins further testified that West told him that the car was in good shape and was a good car, "that Duncan Buick didn't sell cars that have anything wrong with them but that they sold good-quality cars, and that he (West) would not be hesitant to get in the car the next day and drive to Seattle, Washington, `or somewhere like that.'"

THE COURT'S FINDINGS

In its findings of fact, the trial court found that Duncan Buick's statements were false and misleading representations of material fact and, thus, actionable under the DTPA. However, even though findings of fact in a case tried to the court carry the same weight as a jury's answers to questions in the charge, the trial court's findings of fact are not conclusive when a complete statement of facts is present on appeal, as in this case. See Southern States Transp. Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989); Zieben v. Platt, 786 S.W.2d 797, 799 (Tex. App. Houston [14th Dist.] 1990, no writ); Middleton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex. App. Houston [14th Dist.]), writ ref'd per curiam, 699 S.W.2d 199 (Tex. 1985). And although a trial court's conclusions of law may not be challenged for factual insufficiency, those conclusions as drawn from the facts may be reviewed for their correctness. Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex. App. Houston [1st Dist.] 1986, writ ref'd n.r.e.). In this case, all of the court's findings are labeled "findings of fact," even though some among them are conclusions of law. Erroneous conclusions of law are not a basis for reversal if the court's fact findings are supported by the evidence. Smith v. Smith, 620 S.W.2d 619, 626 (Tex. Civ. App. Dallas 1981, no writ); accord, Hunt City Appraisal Dist. v. Rubbermaid, Inc., 719 S.W.2d 215 (Tex. App. Dallas 1986, writ ref'd n.r.e.). Therein lies the problem in this case.

DISPOSITION

The generalized statements made by the salesman to Dollins were at most "puffing" as opposed to actionable misrepresentations violative of the DTPA. See Autohaus, Inc. v. Aguilar, 794 S.W.2d 459 (Tex. App. Dallas 1990), writ denied per curiam, 800 S.W.2d 853 (Tex. 1991). Nor did the salesman's words supersede the plain meaning of the conspicuous "as is" disclaimer in writing on the car itself, of which Dollins was admittedly aware. As the salesman explained, according to Dollins' own testimony, the car had high mileage and Duncan Buick could not guarantee it for that reason. The "as is" disclaimer effectively negated any warranty. See Singleton v. LaCoure, 712 S.W.2d 757, 759 (Tex. App. Houston [14th Dist.] 1986, writ ref'd n.r.e.).

Finally, although the Park Avenue developed transmission problems within a few days of the sale, Dollins had driven it off the lot the day of purchase and had then driven it to Oklahoma City from Waco the following weekend without a problem. There was no evidence presented that the transmission problems which later developed were present and known about by Duncan Buick at the time of the sale. See RRTM Restaurant Corp. v. Keeping, 766 S.W.2d 804, 807 (Tex. App. Dallas 1988, writ denied). Absent the salesman's actual knowledge of the mechanical problems at the time of the negotiations and sale, there could be no actionable misrepresentation. See Nagy v. First Nat. Gun Banque Corp., 684 S.W.2d 114, 117 (Tex. App. Dallas 1984, writ ref'd n.r.e.). Points one, two and three are sustained.

In light of our disposition of points one though three, we need not reach Dollins' remaining points of error. The trial court's judgment is reversed and judgment hereby rendered that Dollins take nothing.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and rendered

Opinion delivered and filed September 15, 1993

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