Bennie Tate v. Ancira Motor Homes--Appeal from 150th Judicial District Court of Bexar County

99-00601 Tate v Ancira Motor Homes.wpd No. 04-99-00601-CV
Bennie TATE,
Appellant
v.
ANCIRA MOTOR HOMES,
Appellee
From the 150th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CI-00136
Honorable Janet Littlejohn, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 12, 2000

AFFIRMED

Bennie Tate appeals the trial court's take-nothing judgment in his Deceptive Trade Practices suit against Ancira Motor Homes. We affirm.

Factual and Procedural Background

Tate sued Ancira, alleging Ancira sold him a used mobile home with undisclosed problems, caused damage to the home when repairing it, refused to honor its warranty, unjustifiedly refused to return the mobile home to him after repairing it, and discriminated against him. After the trial court granted Ancira a partial summary judgment on all claims relating to the sale of the home, Tate's deceptive trade practices, breach of warranty, and fraud claims relating to the repairs were tried to a jury. The jury found Ancira engaged in a false, misleading, or deceptive practice, but that it did not do so knowingly. The jury found Ancira did not breach its warranty or commit fraud. Finally, the jury found Tate sustained damages of $5,900 in past mental anguish, but no economic damages. In accordance with the jury's verdict, the trial court entered a take nothing judgment.(1) Tate appealed and requested a partial reporter's record, consisting solely of the testimony of Albert De la Garza "to establish the fact that Ancira Motor Homes knowingly kept my vehicle for 15 months with no justification and no mechanics [sic] lien."(2) On appeal, Tate argues the trial court erred in rendering judgment against him because Ancira "was actually aware of the falsity, deception and unfairness of [its] conduct."

Scope and Standard of Review

We construe Tate's argument as complaining of the sufficiency of the evidence to support the jury's finding that Ancira did not commit a false, misleading, or deceptive act knowingly. In reviewing Tate's insufficiency issues, we presume the partial record constitutes the entire record. Tex. R. App. P. 34.6(c)(1), (4).

Because Tate bore the burden of proving Ancira acted knowingly, our legal sufficiency review involves a two-step process. We must first examine the record for evidence supporting the jury's finding, ignoring all evidence to the contrary. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). If there is no evidence to support the jury's answer, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. Similarly, because Tate bore the burden of proving Ancira acted knowingly, we may set aside the jury's finding "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

Discussion

The testimony of Albert De la Garza, Ancira's general manager, establishes: (1) De la Garza had been Ancira's general manager for six years and his office is in Boerne; (2) at the request of Ancira's attorney, De la Garza directed an employee to take pictures of Tate's mobile home immediately before it was returned to Tate; (3) if it came to De la Garza's attention that an employee made a racial slur, the employee would be terminated immediately; (4) there are two Black employees working in the Ancira motor home division; (5) there are no Black employees at the Boerne location, although there have been in the last six years; (6) part of De la Garza's job is to talk with customers who have complaints; (7) De la Garza first learned of Tate's complaints when he received a copy of a demand letter from a lawyer, and he referred the matter to Ancira's attorney; and (8) other than the demand letter, Tate never called or wrote to De la Garza or visited his office. Thus, the record contains no evidence that any false, misleading, or deceptive act by Ancira was committed knowingly. We therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice

Do not publish

1. A consumer may recover damages for mental anguish in a suit brought under the Deceptive Trade Practices Act only if the trier of fact finds the defendant's conduct was committed knowingly or intentionally. Tex. Bus. & Com. Code 17.50(b)(1) (Vernon Supp. 1999).

2. Although Tate requested a partial reporter's record consisting only of Mr. De la Garza's testimony, the record filed by the court reporter includes the testimony of two other witnesses. Tate complained to the reporter about the inclusion of the additional testimony and demanded a partial refund, which the reporter gave him. Ancira move to strike the additional witnesses' testimony, and Tate has not responded to the motion. We grant the motion and strike the testimony of witnesses Neil Mentzer and Randy Kheil from the reporter's record. We note, however, that inclusion of this testimony would not affect the outcome of this appeal.