Bill & Jo Deane Bradford Investments, Inc. v. Cutter Aviation San Antonio, Inc.--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00791-CV

BILL & JO DEANE BRADFORD INVESTMENTS, INC.,

Appellant

v.

CUTTER AVIATION SAN ANTONIO, INC.,

Appellee

From the 166th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-16731

Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 23, 2005

AFFIRMED

Bill & Jo Deane Bradford Investments, Inc. sued Cutter Aviation San Antonio, Inc. for fraudulent and negligent misrepresentations and breach of warranty in connection with the sale of an airplane. On appeal, Bradford Investments challenges the summary judgment granted in favor of Cutter Aviation, asserting that the representations and warranties made by Cutter Aviation were actionable and not mere opinion or sales puffing and that the express and implied warranties regarding the airplane were not conspicuously disclaimed. We affirm the trial court s judgment.

Background

Bradford Investments purchased a Piper Archer from Cutter Aviation. In late 2001, Bill Bradford began exploring the purchase of a faster airplane with a larger net payload. Bradford read aircraft magazines and explored various websites. Bradford also sought demo flights of various aircraft, including the Cessna 206, Beechcraft A36 and Piper Saratoga. Bradford asked as many questions as [he] could ask of various people. //

Bradford contacted Larry Johnson with Texas Piper, a division of Cutter Aviation, for his advice and a proposal. Bradford chose to purchase a Piper Saratoga from Cutter Aviation because Cessna had provided a limited response, Bradford was impressed with Johnson, and Cutter Aviation offered a step-up program. Under the step-up program, a Piper airplane owner who purchased a more complex Piper airplane was given a guaranteed price for the owner s current airplane.

Bradford admitted that he was aware that a service bulletin had been issued in February of 2002 regarding a problem with the crankshaft in engines manufactured by Lycoming. Bradford also knew that the Saratoga had a Lycoming engine. Rather than directly question Johnson and Cutter Aviation s mechanics about the service bulletin, Bradford approached [the issue] in a more general manner. Bradford stated his understanding that some issues had existed regarding the engine and generally questioned Johnson and the mechanics about whether the problems were corrected and whether the engine was a good, reliable, safe engine. Bradford stated that Johnson and the mechanics assured him that the engine was a good, reliable engine, and that it was a safer time to purchase the Saratoga because the engine problem had been addressed very recently. Johnson testified that he was not aware of any engine problems when he sold Bradford the Saratoga. As of the date of the sale, Johnson believed the engine problems identified in the earlier service bulletin had been addressed, and he had no knowledge of any continuing engine problems.

Bradford Investments purchased the Saratoga the first week of July, 2002. On August 18, 2002, Bradford was told the plane was grounded by the FAA. A new service bulletin was issued that required the crankshaft to be replaced before the plane would be released to fly. On August 26, 2002, Bradford contacted Johnson and requested that Cutter Aviation refund his money.

On November 20, 2002, Bradford Investments sued Cutter Aviation for misrepresentations and breach of warranty in connection with the sale of the Piper Saratoga. Summary judgment was granted in favor of Cutter Aviation, and Bradford Investments appealed.

Discussion

For purposes of asserting a claim for fraudulent or negligent misrepresentation, whether a statement is an actionable statement of fact or merely one of opinion or puffing often depends on the circumstances in which the speaker made the statement. Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 276 (Tex. 1995); Duperier v. Texas State Bank, 28 S.W.3d 740, 749 (Tex. App. Corpus Christi 2000, pet. dism d by agr.). Among the relevant circumstances are the statement s specificity, the speaker s knowledge, the comparative levels of the speaker s and the hearer s knowledge, and whether the statement related to the present or the future. Transport Ins. Co., 898 S.W.2d at 276; Duperier, 28 S.W.3d at 749. For example, in Prudential Ins. Co. of America v. Jefferson Associates,Ltd., 896 S.W.2d 156, 163 (Tex. 1995), the court held that statements that a building was superb, super fine, and one of the finest little properties in the City of Austin were not misrepresentations of material fact but merely puffing or opinion. Similarly, in Duperier, statements by a bond salesman to a purchasing bank that certain notes were a safe and suitable investment and that there was no realistic chance the yield on the notes would fall to zero were held to be opinions because they were an attempt to compare the notes to the salesman s knowledge of the bank s past investments. 28 S.W.3d at 749. Just as a statement that constitutes mere puffing is not actionable under a misrepresentation theory, such a statement also is not actionable under a breach of warranty theory. Kessler v. Fanning, 953 S.W.2d 515, 519 (Tex. App. Fort Worth 1997, no pet.) (noting puffing or opinion defense pertains to warranty cases); Humble Nat. Bank v. DCV,Inc., 933 S.W.2d 224, 229 n.3 (Tex. App. Houston [14th Dist.] 1996, writ denied) (explaining reason puffing defense also pertains to warranty cases).

In this case, Bradford Investments relies on statements that the Saratoga s engine was good, safe and reliable. These statements amount to mere opinion or puffing. Although Bradford had the level of knowledge necessary to specifically question Cutter Aviation personnel regarding the crankshaft problem identified in the service bulletin, he chose to rely on general assurances. In addition, there was no evidence that Johnson was aware of any on-going problem with the Lycoming engine. The need to release a second service bulletin to supersede and replace the prior service bulletin is evidence that those in the industry believed that the problem had been resolved. Because we conclude that the statements relied upon by Bradford Investments were mere opinion or puffing, we need not address whether the summary judgment could be affirmed on alternative grounds.

Conclusion

The judgment of the trial court is affirmed.

Rebecca Simmons, Justice