Padgett v. Bert Ogden Motor's, Inc.

869 S.W.2d 532, 1993 WL 502761
CourtCourt of Appeals of Texas
DecidedJanuary 13, 1994
Docket13-92-187-CV
StatusPublished
Cited by19 cases

This text of 869 S.W.2d 532 (Padgett v. Bert Ogden Motor's, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Padgett v. Bert Ogden Motor's, Inc., 869 S.W.2d 532, 1993 WL 502761 (Tex. Ct. App. 1994).

Opinion

OPINION

GILBERTO HINOJOSA, Justice.

Raby and Lori Padgett appeal from a take-nothing judgment rendered against them and in favor of Bert Ogden Motors, Inc., (Ogden) on the Padgetts’ claims for negligence, fraud and DTPA violations 2 in connection with the repair and sale of a used car. By three points of error, the Padgetts complain that the trial court erred in instructing a verdict on the fraud and DTPA causes of action and on certain damages issues, and in not allowing the jury to view an exhibit to a video deposition. We reverse and remand in part, and affirm in part.

While visiting her family in December of 1986, Lori and her father, Raby Padgett, decided to purchase a car for her use at college in east Texas. They visited several dealerships, including Ogden’s. While the Padgetts were looking around at Ogden’s dealership, salesman Alex Garcia showed them several cars. They finally focused on a 1984 Mazda GLC, but did not decide to buy it at that time. The Padgetts returned to Ogden’s dealership on December 31, 1986, and decided that they would like to purchase the GLC. When they spoke to Garcia about purchasing the car, he then mentioned that the car had been in an accident, but that it had been “completely repaired.” The Pad-getts then spoke with the shop foreman at Ogden’s auto body shop who had repaired the car. He said that the car had been “completely fixed” and was safe. The Pad-getts then decided to purchase the ear, which Lori’s father paid for.

Lori then took possession of the car, returned to college, and had no major accidents or problems with the car until November 1987, when she began to hear a scraping noise and noticed that the car would pull to one side when she shifted gears, put on the brake or accelerated. On November 22, while Lori and her boyfriend were out driv- *535 mg the car, Lori began to lose control of the car, which from that point on was essentially inoperable. After consulting with several mechanics, Lori learned that the frame had been broken.

Lori finally took her car to Austin Lang-ford, an automobile frame specialist with forty years’ experience. Langford testified that, upon inspecting Lori’s car, he determined that the problems that Lori experienced were due to the broken frame. Lang-ford noticed that the left frame rail was coming apart and saw bum marks which indicated that the frame had been heated and straightened. Langford testified that heating the frame rail on this type of car causes it to lose its temper and become brittle, and therefore the prior repair work had not been done properly. However, Langford also testified that, in his opinion, the car had been partially, but not completely, repaired. Langford eventually repaired the car himself in July 1988, by replacing the damaged parts and welding in a new frame.

In defense of the dealership, both James Stahl, the body shop manager for Ogden, and Bert Ogden, the president of the dealership, testified that only a small amount of heat was used to straighten the frame and that the repair was done in a reasonable and prudent manner, considering the value of the car and the cost of the present repair as opposed to the cost of welding on a new frame rail.

By their first point of error, the Padgetts complain that the trial court erred in granting an instructed verdict against their DTPA and fraud causes of action.

A directed or instructed verdict is proper if reasonable minds can draw only one conclusion from the evidence. The task of both the trial court and the reviewing appellate court is to determine whether there is any evidence of probative force to raise fact issues on the material questions presented, considering all of the evidence in the light most favorable to the party against whom the verdict was instructed and discarding all contrary evidence and inferences. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978); City of San Benito v. Cantu, 831 S.W.2d 416, 422 (Tex.App.—Corpus Christi 1992, no writ).

The elements of common law fraud are: (1) that a material representation was made, (2) that it was false, (3) that the speaker knew it was false when made or that the speaker made it recklessly without any knowledge of the truth and as a positive assertion, (4) that he made it with the intention that it be acted upon by the other party, (5) that the party acted in reliance upon it, and (6) that he thereby suffered injury. Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983); Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex.1977).

In the present ease, Ogden contends that there was no evidence that its statement that the car had been fixed was a false representation. Certainly the evidence raises a difference of opinion by the experts as to whether the method Ogden used to repair the car in fact “fixed” it properly and completely. However, pure expressions of opinion are not generally actionable under common law fraud. Trenholm, 646 S.W.2d at 930; Angelo Broadcasting, Inc. v. Satellite Music Network, Inc., 836 S.W.2d 726, 733 (Tex.App.—Dallas 1992, writ denied); Bryant v. Transcontinental Gas Pipe Line Corp., 821 S.W.2d 187, 190 (Tex.App.—Houston [14th Dist.] 1991, writ denied).

Whether a statement constitutes merely an expression of opinion, commonly called “puffing,” or an actionable misrepresentation depends on several factors, including the specificity of the statement and the comparative levels of the buyer’s and the seller’s knowledge concerning the subject matter of the transaction. See Angelo Broadcasting, 836 S.W.2d at 733; Bryant, 821 S.W.2d at 190. In the present case, the evidence showed that Bert Ogden and his body shop manager had specialized knowledge concerning the repair of cars and that they specifically inspected and determined how best to repair Lori’s car. Under these circumstances, we hold that Ogden’s representation that the ear had been “completely repaired” and was “completely fixed” was, more than mere opinion or puffing, a precise enough representation of an existing material fact to be actionable under a common law theory of fraud. See HOW Insurance Co. v. *536 Patriot Financial Services of Texas, Inc., 786 S.W.2d 533, 543-44 (Tex.App.—Austin 1990, writ denied); Wright v. Carpenter, 579 S.W.2d 575, 580 (Tex.Civ.App.—Corpus Christi 1979, writ ref'd n.r.e.).

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