Mary and Cecil Broomfield v. Shirley Parker--Appeal from County Court of Shelby County

NO. 12-06-00208-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

MARY AND CECIL BROOMFIELD, APPEAL FROM THE

APPELLANTS

V. COUNTY COURT OF

SHIRLEY PARKER,

APPELLEE SHELBY COUNTY, TEXAS

MEMORANDUM OPINION

Mary and Cecil Broomfield appeal a judgment entered against them in favor of Shirley Parker after a bench trial. In five issues, the Broomfields challenge the sufficiency of the evidence to support the judgment. We reverse and remand.

Background

The Broomfields operate a used car lot under the name Cecil s Wheels. Parker went to the Broomfields lot searching for a vehicle to buy for her daughter. After looking at several vehicles, Parker decided to purchase a 1997 Ford Taurus. As Parker was negotiating the purchase, Mary Broomfield told her that the vehicle had no warranty. Parker signed a document verifying that the vehicle was being purchased as is and that she would be responsible for the cost of any repairs. Parker also signed an installment sale contract that included a disclaimer of all express and implied warranties on the vehicle. Parker paid the Broomfields a down payment of $1,000 plus $412.27 for the tax, title, and license.

As Parker drove the vehicle from the Broomfields lot, it hesitated, but she was not concerned. She then gave the vehicle to her daughter. Parker s daughter drove the vehicle without incident the first day. Over the next three days, however, Parker s daughter had several problems with the vehicle, including being unable to get it to start. Less than a week after purchasing the vehicle, Parker took the vehicle back to the Broomfields lot and demanded her money back. When the Broomfields refused, Parker left the vehicle at the Broomfields lot and continued to demand the return of her money. Parker never paid the Broomfields pursuant to the terms of the installment sale contract. The Broomfields took the vehicle to a repair shop where a vacuum hose was replaced, and then sold the vehicle at auction.

Parker sued the Broomfields for the amount of her down payment on the vehicle and the amount she paid for the tax, title, and license. The Broomfields filed a counterclaim, stating that Parker breached the installment sale contract. After a bench trial, the trial court signed a judgment that Parker recover $1,421 from the Broomfields. In its findings of fact and conclusions of law, the trial court found that the Broomfields violated the Texas Deceptive Trade Practices Act (DTPA) when they 1) sold Parker a vehicle in a defective condition; 2) should have known of the defect and disclosed it to Parker; and 3) refused to correct the defect. The Broomfields filed a motion for new trial, which was overruled by operation of law. This appeal followed. Parker did not file an appellee s brief.

Standard of Review

A trial court s findings of fact have the same force and dignity as a jury s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). When, as in this case, a complete reporter s record appears in the appellate record, findings of fact are not conclusive. City of Corpus Christi, 126 S.W.3d 712, 717 (Tex. App. Corpus Christi 2004, pet. withdrawn). Instead, the challenged findings of fact are reviewed for legal and factual sufficiency of the evidence by the same standards applied to a jury s verdict. Id.; Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

A legal sufficiency challenge may be sustained only when 1) the record discloses a complete absence of evidence of a vital fact; 2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; 3) the evidence offered to prove a vital fact is no more than a mere scintilla; or 4) the evidence establishes conclusively the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); see also City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Evidence is legally sufficient if it enables reasonable and fair minded people to reach the same conclusion. City of Keller, 168 S.W.3d at 827. Legal sufficiency review must credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id.

No deference is given to a trial court s conclusions of law. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). Instead, conclusions of law are reviewed de novo. City of Corpus Christi v. Taylor, 126 S.W.3d at 718; Boyd v. Boyd, 67 S.W.3d 398, 404 (Tex. App. Fort Worth 2002, no pet.). Conclusions of law will be upheld if the judgment can be sustained on any legal theory supported by the evidence. City of Corpus Christi, 126 S.W.3d at 718; Mack v. Landry, 22 S.W.3d 524, 528 (Tex. App. Houston [14th Dist.] 2000, no pet.).

Sale of the 1997 Ford Taurus

In their first issue, the Broomfields allege that the evidence establishes, as a matter of law, that the sale of the vehicle was made without express or implied warranties and without any implied warranty of merchantability or fitness for a particular purpose. In their fourth issue, the Broomfields allege that there is no evidence or, alternatively, insufficient evidence of a DTPA violation.

To prevail on her claim that the Broomfields violated the DTPA, Parker was required to prove that 1) she was a consumer; 2) the Broomfields engaged in false, misleading, or deceptive acts; and 3) those acts were a producing cause of Parker s damages. See Smith v. Radam, Inc., 51 S.W.3d 413, 416 (Tex. App. Houston [1st Dist.] 2001, no pet.). Before Parker purchased the vehicle, Mary Broomfield told her the vehicle was being sold without a warranty. When Parker purchased the vehicle, she signed a document verifying that the vehicle was being purchased as is and that she would be responsible for the cost of any repairs. Additionally, Parker signed an installment sale contract that included a specific disclaimer of all express and implied warranties.

By purchasing a product as is, a buyer agrees to assess the bargain on her own and to accept the risk that such assessment may be wrong. Smith, 51 S.W.3d at 418. Thus, an as is purchase removes the possibility that the seller s conduct will cause [the buyer] damage. Id. As the Texas Supreme Court has stated, The sole cause of a buyer s injury in such circumstances, by his own admission, is the buyer himself. Prudential Ins. Co. of Am. v. Jefferson Assoc., 896 S.W.2d 156, 161 (Tex. 1995).

Because Parker purchased the vehicle as is, she was precluded from proving that any acts by the Broomfields were a producing cause of her damages. See Smith, 51 S.W.3d at 416. Furthermore, the record contains no evidence that the Broomfields committed any acts that were false, misleading, or deceptive. See id. Therefore, the evidence was legally insufficient to support the trial court s judgment. The Broomfields first issue and the portion of their fourth issue that pertains to legal sufficiency are sustained. We need not reach the Broomfields remaining issues. Tex. R. App. P. 47.1.

Conclusion

The judgment of the trial court is reversed, and the proceeding is remanded to the trial court for a new trial. Generally, an appellate court reverses and renders judgment when sustaining a legal sufficiency challenge. Horrocks v. Tex. Dep t of Transp., 852 S.W.2d 498, 498-99 (Tex. 1993). However, the Broomfields challenged legal sufficiency in a motion for new trial. Because the Broomfields sought only a new trial from the trial court, we remand the case rather than render judgment. See id.

BRIAN HOYLE

Justice

Opinion delivered March 7, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)