Dick Poe Motors, Inc. v. Dickey

802 S.W.2d 739, 1990 WL 175996

• Court: Court of Appeals of Texas
• Decided: December 19, 1990
• Docket: 08-89-00412-CV
• Status: Published

Opinions

OPINION

KOEHLER, Justice.

Lynn A. Dickey and Clara Lynn Dickey, Appellees, in a Deceptive Trade Practices Act (“DTPA”) lawsuit over an automobile purchased from Appellants, Dick Poe Motors, Inc. (“Poe”) and Chrysler Motors Corporation (“Chrysler”), were successful in obtaining a favorable jury verdict. Based on the verdict, the trial court entered judgment for Appellees in the amount of $94,-676.00 plus post-judgment interest. Conditional award of attorney’s fees was also made in the event of an appeal. We reverse and render.

In their trial petition (second amended), Appellees alleged that various representations made by Appellants at the time of the sale, as a result of the numerous mechanical and electrical defects they experienced with the car, were deceptive trade practices under § 17.46(b) of the Act. Poe and Chrysler, in separate answers, generally denied the allegations and affirmatively pled the two year statute of limitations under DTPA. The case went to the jury on seven questions, none of which made inquiry into the commencement date of limitations or date of discovery of the alleged false, misleading or deceptive acts or practices, nor did either party make a request for the inclusion of a limitation or discovery question.

Appellants’ two points of error assert that its defense of limitations was proved as a matter of law. With reference to limitations, the DTPA provides as follows:

All actions ... must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice. Tex.Bus. & Com.Code Ann. § 17.565 (Vernon 1987). [Emphasis added].

There is no dispute concerning the essential facts. On November 25,1985, Poe sold a 1985 Chrysler manufactured New Yorker automobile to Appellees, who took delivery of the car on November 27. At the time of the sale, certain express warranties and representations, as well as the usual implied warranties, were made. Poe and Chrysler failed to disclose at the time of the sale, and in fact Appellees did not learn until after suit had been filed through pretrial discovery, that there were a number of defects in and repairs made to the car prior to delivery. As shown by the evidence, commencing on December 4, 1985 and continuing on a sometimes daily basis to February 23, 1988, the date suit was filed, Appellees returned the car to Poe some twenty-four times for the repair of various defects ranging from aggravating to serious. The extent of the problems and the period of time involved in attempting to correct them is shown by the following:

LYNN A. DICKEY

1985 Chrysler New Yorker

EXHIBIT MILEAGE PROBLEM AS PER INVOICE/ WARRANTY REPAIR ORDER DATE

Repair right rear quarter panel (Damaged in transport) 5/28/85 <M t-H O

Defective connection wire harness — trailer tow 7/23/85 CO t-H O

Circuit open throttle, pos position — transducer 04

Circuit open SW-Elec WDO, single 8/26/85 ^ 1 — 5 O

Vibration or chatter — windshield wiper blade w/refill 10/11/85 UD r-H O

Battery dead cell — battery 10/17/85 SO t-H O

2. Surge — wire harness fuses

3. Burned out motor windshield wiper

10/22/85 0 1. Vibration or chatter windshield wiper blade w/refill

10/24/85 0 1. Grounded or shorted relay fan motor; replaced fuses and coolant temperature sensor

11/8/85 0 1. Inspection & Road Test

11/26/85 0 1. Internal defect — spark central computer

11/27/85 1 1. Broken or cracked wiring

2. Surge wire harness — trailer tow

11/27/85 49 PURCHASE DATE

12/4/85 377 1. Stalls out while driving

2. A/C blows through defrost vents

3. Switch on driver’s door fell off

4. Static on radio

5. Replace stereo speaker

6. Repair wiring

7. Repair defective connection — wire harness— trailer tow

12/13/85 789 1. A/C blows hot air rH

2. Overhead compass stuck on North

3. Replace burned fuses

4. Replace improperly installed cable seat belt tension release

12/19/85 1031 1. Static on radio at all times: no FM at times; no AM at times

2. Correct corroded wiring contacts

12/24/85 1. Brake goes to floor ZO rH

1/6/86 2255 1. Master Cylinder needed replacing ti — l

2. Compass stuck on north

3. Brakes squeaking

1/7/86 2297 1. Brakes hard to stop & make noise

2. Reverse lights don’t work

3. Leaks — power break check valve

4. Cold stall (wire harness — trailer tow)

1/16/86 2566 1. Compass not working correctly

2. Seat belt sensor, left front does not work

3. Brakes making a hissing sound

4. Insulation of back seat & inside trunk torn 5. Bleed brake system

6. Replace booster — power brake unit

2/7/86 3377 1. Idles too high and won’t come down CO o

2. Motor in left front window needed replacing

3. Brake pedal goes to the floor

4. Left front seat belt will not come out all the time

5/12/86 6724 1. Oil Leak

2. A/C blows hot air

3. Engine hard to start

4. Front seat belt does not retract

5. Replace burned out coolant temp system

6. Crankshaft rr bearing oil seal

7/2/86 8497 1. Hard to start <N <N

2. Brake rotors have grooves in them

3. Foot brake does not hold

4. Left front fender — bolt missing

5. Replace brake shoe and lining rear; replace disk brake pads front right; bleed brake system

9896 23 1. Oil Leak 8/18/86

2. Over Flow tank on radiator goes empty

3. Oil Pressure light comes on

4. Interior right front door light does not work

5. Brakes grinding

6. Left front window does not work

7. Left rear window does not work

8. Replace burned out switch — heater blower

1.Brake pedal goes all the way to the floor 9/11/86 UO 00 O rH to ^

1. Transmission will not come out of park sometimes 12/8/86 o to to CO i — I to or

2. Car pulls to right while driving

3. Oil Leak

17179 1. Engine hard to start — hesitates and jerks upon acceleration from dead stop 3/25/87 to c*

2. Replace burned out sensor oxygen 02 feedback; sensor charge temp; coolant temp sensor;

17218 1. Engine jerks on acceleration 3/26/87 to

2. Replace broken or cracked fuel injector

21386 1. Engine hard to start — idles too high 8/3/87 00 <N

2. Check brakes

21609 1. Battery will not hold a charge 8/10/87 to to

2. Engine idles rough

23406 1. Inoperative right rear glass 10/8/87 o CO

2. Over head lamp lens needs replacing

3. Check tire pressure

4. Ignition switch will not operate on auxiliary

1. Right rear window inoperative 10/16/87 to CO OS to 00 rH CO

1. Engine hard to start — engine hesitates on accel-11/5/87 to £*> CO ⅜ — 1 H-1 CO CO

eration

2. Pulls to the left while driving

25472 1. Engine hesitates on acceleration 12/2/87 CO CO

2. Engine will not resume idle speed

3. Hard to start

26576 1. Car towed to Dick Poe 12/31/87 CO

2. Possible fuel leak

3. Excessive turbo whine

4. Accelerator will not slow down

26866 1. Noisy bearing; replace turbo charger assy 1/7/88 >r\ CO

1. Seat belt 1/18/88 co

2. Door locks

3. Engine idles high

28702 1. Engine & Transmission oil leak; 3/24/88 to CO

2. Door locks need lube; 3. Chrome on rear deck lid shrinking

• 28703 1. Driver’s door will not unlock with key 3/28/88 CO

29444 1. Engine dies while driving 4/14/88 CO OO

29735 1. Cranks but won’t start 4/22/88 CO to

2. Turn signal inoperable

35299 1. Brake linings seem to be grooving rotors; door locks stiff; seat belt retraction off; loose chrome; battery case seems to leak 8/11/88 o

8/24/88 36037 1. Chrome on lower deck lid bent; hub cap missing on left rear; seat belt retraction off; i — t

9/8/88 36877 1. Rear chrome on deck lid dented; thumping sensation while driving <N -rtf

9/22/88 37596 1. Hollow noise inside car while driving CO rtf

10/7/88 37914 1. Left rear window inoperative ^

10/19/88 38263 1. Left rear window inoperative ''st*

1/6/89 41307 1. Replaced hose & bracket (fuel — recall) ^

5/1/89 46480 1. Engine idle very high while at complete stop. Reline front brakes; service rear brakes; repack wheel bearings t- ^

Simply put, Appellants’ position is that based on Appellees’ pleadings that certain false, misleading and deceptive representations were made at the time of the transaction and that after purchasing the automobile, they discovered that it was not as represented to them by Appellants, and Appellants’ affirmative defense of limitations, the burden was on Appellees first, to specifically plead the discovery rule, and second, to obtain a finding from the jury as to when Appellees discovered or in the exercise of reasonable diligence should have discovered the false representations made the basis of the lawsuit. Appellees failing in both respects, Appellants maintain that they were entitled to judgment as a matter of law. Appellees contend that the Appellants, as sellers, should have the burden of proving when discovery actually, or ought to have, occurred since discovery is properly a part of the limitations defense. Conceding that the law seems to be against them on that proposition, they argue that since Appellants failed to object to the omission of a discovery question in the charge to the jury, their complaint was waived and the necessary discovery date would be deemed found under Tex.R.Civ.P. 278.

Under the first alternative of the applicable statute, the “normal” rule is that all lawsuits brought under DTPA are required to be commenced within two years from the date on which the false, misleading, or deceptive acts or practices occurred. Tex.Bus. & Com.Code Ann. § 17.565 (Vernon 1987). Under the pleadings and evidence in the instant case, it was conclusively established that all of the deceptions and misrepresentations complained of occurred at the time of the transaction, i.e. when Appellees bought the car, and thus, as a matter of law under the first clause of § 17.565, Appellees had two years after November 25, 1985 in which to bring their suit, unless the normal running of the statute of limitations was tolled. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.1988).

Where the consumer has not commenced his action within two years from date of the deceptive acts, the second alternative of § 17.565 allows him to bring suit within two years after the deceptive act or practice was discovered, or in the exercise of reasonable diligence, should have been discovered, by him. Since Appellees did not bring the suit within the two year period from the date of the deceptive acts, the burden was on them to plead and prove sufficient facts to avoid the consequences of the first alternative and place them within the parameters of the discovery rule as stated in the second alternative. Woods, 769 S.W.2d at 518; Willis v. Maverick, 760 S.W.2d 642, 647 (Tex.1988).

While the Appellees’ pleading in their petition, “[ajfter purchasing the vehicle, the Plaintiffs discovered that the vehicle was not as represented by the Defendants but had numerous latent defects, ...,” was sufficient in the absence of a special exception to invoke the discovery rule, Tex.R.Civ.P. 90, 91. Roark v. Allen, 633 S.W.2d 804 (Tex.1982), the evidence did not conclusively establish any particular date when Appellees discovered, or in the exercise of reasonable diligence, should have discovered, that the Chrysler New Yorker was not as warranted or represented to them or that Appellants had engaged in deceptive acts and practices. From the evidence, the jury could have found, if they had been asked, that the Appellees discovered, or ought to have discovered, the deceptive acts and practices, anytime from December 4, 1985 until well after suit was actually filed.

Lynn Dickey testified extensively concerning his dissatisfaction with the New Yorker from December 1985 on because of all of the defects he found and the problems he was experiencing. Illustrative of his possible awareness and discovery of deceptive acts and practices is the following cross-examination excerpt:

Q. And in the first two or three months you had a lot of warranty repair orders, didn’t you?

A. Yes, sir.

Q. By December — by December of 1985 you had it in the shop various times?

A. Many of times.

Q. And by December 1985, you already had many problems with it?

A. Yes, sir.

Q. And by that time you realized it wasn’t the quality automobile that you thought you’d purchased?

A. No, sir, not with that many problems, no.

Q. In other words, you realized in November — by December — by Christmas of 1985 that it wasn’t the quality vehicle that you thought?

A. No, sir, that sure is true.

Q. That’s true?

A. That’s true, especially when you get — when you get problems with defects in the vehicle that jeopardizes your life. The master cylinder. That is number one.

Such evidence precludes us from finding as a matter of law that Appellees discovered or ought to have discovered sometime after February 23, 1986 that Appellants engaged in false, misleading or deceptive acts and practices when they sold the car to Appel-lees.

Nor can the burden be shifted to Appellants to object to the failure of the trial court to submit a discovery issue to the jury, as Appellees would have us do. The discovery rule is akin to a plea of confession and avoidance in the sense that the party wishing to benefit from the rule admits in effect that ordinary limitations has run, but because of facts he has pled, he is entitled to offer evidence in avoidance of the basic limitations period; namely, that he did not in fact discover, or in the exercise of reasonable diligence ought not to have discovered, the deceptive acts or practices until a time later than the date when the deceptive acts and practices occurred. The burden of proving and securing findings favorable to the discovery rule remains on the party who seeks to benefit from that rule. Woods, 769 S.W.2d at 517-518.

While the failure to submit an issue is not a ground for reversal of the judgment, unless the party complaining of the judgment had tendered a substantially correctly worded issue, Tex.R.Civ.P. 278, that does not help supply the necessary finding in support of the discovery rule. Since the discovery rule finding is an independent ground of recovery and not part of a cluster of findings, it cannot be deemed to have been found by the trial court. Tex.R.Civ.P. 279. Appellees cite Cielo Dorado Development, Inc. v. Certainteed Corporation, 744 S.W.2d 10 (Tex.1988), in support of the proposition that failure of the defendant to object to the non-submission of a plaintiff’s issue requires that the omitted issue be deemed found by the trial court in support of its judgment under Rule 279. However, as Appellees recognize, Cielo Dorado involved a question of whether the plaintiff gave proper notice as required under DTPA § 17.505(a). In Cielo Dorado, plaintiff’s attorney testified without objection that the required notice had been given, thus providing some evidence of proper notice which Justice Kilgarlin, under the peculiar circumstances of that case, found sufficient to support the necessary finding to that effect. He then held that Rule 279 required that the omitted issue of proper notice under DTPA be deemed as found by the trial court in support of the judgment. Later in the same year that Cielo Dorado was written, Justice Kilgarlin wrote a concurring and dissenting opinion in Woods, 769 S.W.2d at 519, in which he held the defendant had no duty to object to the absence of an issue (on the discovery rule) that would serve as a basis of the plaintiff’s recovery, assuming that the defendant had proved its limitations defense, and for the further reason that since the discovery rule issue is not a part of a cluster of issues, a deemed finding is not permissible. We view the omitted notice issue in Cielo Dorado as part of a cluster of issues establishing the liability- of the defendant under DTP A, whereas the omitted discovery issue in Woods was a single issue necessary to establish an independent ground of recovery in response to the affirmative defense of limitations. Where a party has the burden of establishing an independent ground of recovery, the burden is on that party to submit a properly worded issue or issues establishing that ground and the opposing party has no obligation to object to its omission. Indust-Ri-Chem Laboratory, Inc. v. Par-Pak Company, Inc., 602 S.W.2d 282, 289 (Tex.Civ.App.— Dallas 1980, no writ).

Appellees assert that the finding by the jury that Poe and Chrysler breached the warranty with regard to the car purchased by them went not only to the New Yorker itself as sold, but also to the defective parts supplied by Chrysler and utilized by Poe in repairing the vehicle. If we understand the argument, the Appellees are contending that every time the car was repaired with a “new” defective part, the original express or implied warranty made at the time the car was sold, would relate forward to the date of repair, thus commencing anew the period of limitations. A cause of action for breach of warranty based on the installation of defective parts was not pled. Even if pled, such allegations at best would have supported a recovery for the cost of the repairs. Nor did Appellees plead the defective repairs and the continuing assurances that the New Yorker was a “quality car” as a basis for a finding that Poe and Chrysler had knowingly engaged in conduct solely calculated to induce them not to file suit in order to extend limitations, another exception to the limitations statute. Tex.Bus. & Com.Code Ann. § 17.565 (Vernon 1987). Evidence of repairs, whether or not defective, and assurances by the agency would go to the question of discovery. With respect to the only pleadings alleging breach of warranty by Poe in making repairs, the jury refused to find that Poe had failed to make the repairs in a good and workmanlike manner.

Finally, Appellees belatedly contend that Poe and Chrysler did not disclose to them until after May 1986 that the New Yorker required the use of premium gasoline and additives in order to run properly, and until after suit was filed that the car had been repaired a number of times before they purchased it and that they could not have discovered these two material representations until after May 1986, therefore, establishing as a matter of law that discovery occurred well within two years of the date suit was filed. Here again, this is merely evidence that could have been considered by the jury in establishing a date of discovery.

Points of Error Nos. One and Two are sustained.

By a cross-point of error, Appellees assert that the trial court erred by awarding in its judgment possession of the New Yorker to Poe.

Appellees sought no relief in the trial court from the award of the automobile to Poe, and, therefore, have failed to preserve properly any error in this regard. Tex.R. App.P. 52(a).

Judgment of the trial court is reversed and judgment is here rendered that Lynn A. Dickey and Clara Lynn Dickey take nothing from Dick Poe Motors, Inc. and Chrysler Motors Corporation. The remainder of the trial court judgment is affirmed.