Daniels v. Richardson (Tex.App.- Houston [1st Dist.] Apr. 16, 2009)(Hanks)
(
product liability, seller vs. manufacturer, warranty, DTPA, issue of jury charge error)
We hold that the trial court did not err by failing to submit a question
regarding Ferris' liability under Chapter 82 of the Texas Civil Practice and
Remedies Code. Further, the jury's finding that Daniel violated the Texas
Deceptive Trade Practices Act is supported by legally sufficient evidence. We
therefore affirm the judgment of the trial court.
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Hanks   
Before Chief Justice Radack, Justices Alcala and Hanks  
01-06-00242-CV
Jack Daniels d/b/a Daniel's Rentals v. Edward Richardson d/b/a Blue Saphire Lawn Care  
Appeal from County Court at Law No 1 & Probate Ct of Brazoria County
Trial Court Judge: Hon. Jerri Lee Mills

JACK DANIEL D/B/A DANIEL'S RENTALS, Appellant,
v.
EDWIN RICHARDSON D/B/A BLUE SAPHIRE LAWN CARE, Appellee.

No. 01-06-00242-CV.
Court of Appeals of Texas, First District, Houston.

Opinion issued April 16, 2009.
Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.

MEMORANDUM OPINION

GEORGE C. HANKS, Jr., Justice.

In two points of error, Jack Daniel, appellant, complains that the trial court erred by failing to
submit a proper charge to the jury and that the evidence supporting the jury's verdict against him
is legally insufficient.

We affirm.

Factual Background

Edwin Richardson d/b/a Blue Saphire Lawn Care, ("Richardson") brought suit against Jack Daniel
d/b/a Daniel's Rentals ("Daniel") and Ferris Industries, Inc. ("Ferris"). Richardson's petition
alleged that Daniel was an "authorized dealer and representative of Ferris." Richardson
purchased a lawn mower, which had been manufactured by Ferris, from Daniel and he alleged
that Daniel and Ferris misrepresented the characteristics of the mower during that sale.
Richardson sought to recover damages and attorneys' fees under the Texas Deceptive Trade
Practices Act ("DTPA"). Daniel answered with a general denial, and also asserted that
Richardson's own negligence, or that of third parties, was the cause of Richardson's alleged
damages. Richardson's claims against Daniel were severed from those against Ferris and the
case against Daniel proceeded to trial.

At trial, Richardson testified that he owned and operated Blue Saphire Lawn Care and that in
2001 he purchased a Derby Stallion motor from Daniel's Rentals. Richardson explained that he
had previously purchased a Husky motor from another dealer, but had become dissatisfied with it.
He brought the Husky into Daniel's Rentals for service. Richardson stated that he informed Daniel
that he was both a commercial and a residential mower, and that he had recently started a lawn
mowing business. According to Richardson, Daniel then informed him he had recently test-driven
the Derby mower and it was "the best commercial motor that [Daniel] tried at the mower show in
Houston." Based in part on this representation, Richardson purchased a Derby mower from
Daniel. Richardson also testified that Daniel informed him that the mower had a two-year
warranty, was "the best commercial mower on the market" and would cut at a speed of seven
miles per hour. Richardson's son Michael, who worked in the lawn mowing business with his
father, was also present when Richardson purchased the mower, and he testified that Richardson
informed Daniel that he needed the machine for commercial lawn mowing, and that Daniel
represented the machine was a commercial-grade lawn mower and was the best machine he had
to offer. Michael testified that, in his opinion, the machine his father purchased from Daniel was
not commercial grade.

As part of the purchase, Richardson signed a document entitled "Purchaser's Warranty
Registration." That document states that "Purchaser's signature affirms that he has received the
owner's manual . . . ."

In addition, it states

PURCHASER'S SIGNATURE INDICATES:
. . .
• Receipt of owner's manual
• Clear understanding of warranty
The Warranty Registration was signed by both Daniel and Richardson. At trial, Richardson denied
receiving a copy of the Warranty but admitted that he signed it. On the reverse, the Warranty
stated it was for twelve months of commercial use and twenty-four months for residential use.
Richardson testified, however, that Daniel assured him that the Warranty was for twenty-four
months. Richardson also stated that the owner's manual he received from Daniel was almost
illegible and "stuck together, molded and torn."

Shortly after purchasing the mower, Richardson began to experience problems with it. After three
or four days of use, Richardson stated that the mower began to leave stripes of uncut grass after
passing through an area. Richardson introduced a photograph that he described as showing
uncut sections left by the mower he purchased from Daniel. Richardson returned the mower to
Daniel for service, and he testified that Daniel recommended replacing the blade. According to
Richardson, however, replacing the blade did not cure the problem and he soon encountered
other difficulties with the mower. Richardson testified that one part, a "greaser," fell off the
machine and that Daniel simply told him to "tap it back on" himself, rather than performing any
warranty service. In all, Richardson testified that he took the mower to Daniel at least six times
within three months, and that Daniel failed to perform the necessary services on the mower.
Richardson's son Michael also testified that Daniel's warranty repairs were faulty. Instead of
having Daniel continue to perform work on the mower, Richardson took the mower to another
dealer for service. Richardson stated that, although the other dealer was able to perform some
repairs on the mower, the machine still continued to cut grass poorly. Further, Richardson
testified that, after bringing the mower in for repairs to Daniel's shop, it developed new steering
problems. Richardson also testified that Daniel failed to properly perform the routine maintenance
tasks he requested for the mower. On one occasion, for example, Daniel had installed an
improper gas filter that caused the mower to backfire. Richardson stated that, although Daniel
claimed that his shop could perform the necessary warranty work on the mower, it was his opinion
that Daniel was not actually able to perform such work. Finally, Richardson testified that the
cutting speed of the mower was slower than had been represented to him by Daniel and in the
Ferris literature.

In his testimony, Daniel denied representing the mower he sold Richardson was a commercial-
grade mower. Instead, Daniel explained that the mower was "a homeowner's mower, built in a
commercial style, commercial grade, but it is not a commercial mower." He also denied that
Richardson had informed him that the mower would be used in his lawn care business. Daniel
stated that he did not know that Richardson intended to use the mower for his lawn care business
until after Richardson had purchased the mower at issue. Daniel testified that, after Richardson
complained the mower was leaving stripes of uncut grass, he examined the mower and even test-
drove it to determine the cause of the problem. According to Daniel, he made several
recommendations to Richardson to eliminate the problem, including mowing at a slower speed
and adjusting the deck of the mower. Daniel stated that, when he inspected the mower after
Richardson brought it in for service, the oil had not been changed timely and other routine
maintenance had not been performed, and that this could have affected the machine's
performance. In addition, he testified that mowing too fast would compromise the quality of the
machine's performance. According to Daniel, he had tested the mower on at least one occasion
and the mower had performed adequately when properly driven and maintained. Daniel also
denied that the mower had been serviced with an improper filter.

After testimony, the court submitted a charge to the jury that included a liability question on
whether Daniel had violated the DTPA, as well as asking the jury to apportion causation for any
damages that Richardson might have suffered between the following four causes: (1) the acts or
omissions of Daniel; (2) the negligence of Richardson; (3) defects in the construction, design or
manufacture of the mower; and (4) misrepresentations of Ferris.

The jury found that Daniel violated the DTPA, awarding Richardson $10,965.36 in damages for
the value of the mower and loss of business income. In addition, the jury found that 44% of
Richardson's damages were caused by Daniel's acts and omissions, 51% were caused by defects
in the mower, and 5% were caused by the misrepresentations of Ferris. The jury also found that
Daniel acted knowingly, but not intentionally, in violating the DTPA. The trial court entered a final
judgment against Daniel for $4,824.75 in actual damages, plus pre- and post-judgment interest,
attorneys' fees and costs.

On appeal, Daniel argues that the trial court erred by failing to submit a question to the jury
asking it to determine Ferris' liability under Chapter 82 of the Texas Civil Practice and Remedies
Code, and that the evidence supporting the jury's verdict is legally insufficient.

Analysis

Did the trial court err by failing to submit Ferris' responsibility under Chapter 82 of the
Civil Practice and Remedies Code to the jury?

In his first issue, Daniel complains that the trial court failed to submit a liability question asking the
jury to determine whether Ferris, the manufacturer of the mower, was liable under Chapter 82 of
the Texas Civil Practice and Remedies Code. Daniel also complains that the trial court erred by
failing to include a question regarding Ferris' proportional responsibility in the jury charge.[1]

Chapter 82 of the Texas Civil Practice and Remedies Code imposes a duty upon manufacturers
to "indemnify and hold harmless" sellers "against loss arising out of a products liability action,"
except for "any loss caused by the seller's negligence, intentional misconduct, or other act or
omission, such as negligently modifying or altering the product, for which the seller is
independently liable." Tex. Civ. Prac. & Rem. Code Ann. § 82.002 (Vernon 2005). The purpose of
this section is to require a manufacturer to indemnify an innocent seller for certain damages and
litigation expenses arising out of a products liability action and to require sellers to bear the
damages and expenses for the losses they cause. Gen. Motors Corp. v. Hudiburg Chevrolet, Inc.,
199 S.W.3d 249, 262 (Tex. 2006).

Chapter 82 defines a "products liability action" as any action against a manufacturer or seller for
recovery of damages arising out of personal injury, death, or property damage allegedly caused
by a defective product whether the action is based in strict tort liability, strict products liability,
negligence, misrepresentation, breach of express or implied warranty, or any other theory or
combination of theories. Tex. Civ. Prac. & Rem. Code Ann. § 82.001(2) (Vernon 2005).

Richardson's lawsuit against Daniel was based on alleged violations of the Texas Deceptive
Trade Practices Act, with Richardson asserting that both the characteristics of the lawn mower
and Daniel's ability to service that mower had been misrepresented to him during the sale. At trial,
Richardson sought only to recover the economic value of the contract he entered based upon the
misrepresentations (the difference in the amount he paid for the mower and what the jury believed
it to actually be worth) and the business he lost as a result of not being able to use the mower as
he intended. He did not seek damages "arising out of personal injury, death, or property
damage," and he therefore did not assert a "products liability" action under Chapter 82.
Accordingly, Chapter 82 did not apply to the lawsuit at issue and the trial court properly denied
Daniel's request for such a jury question.

Further, Daniel complains that the trial court failed to submit a question asking the jury to assess
the proportional responsibility of Ferris under Chapter 33 of the Texas Civil Practice and
Remedies Code. We conclude that Daniel has waived this argument on appeal because he failed
to object to the court's charge on these grounds at trial. See Tex. R. App. P. 33.1(a)(1) (to
preserve complaint for appellate review, the complaint must be made to the trial court by "a timely
request"); Tex. R. Civ. P. 278; Lopez v. S. Pac. Transp. Co., 847 S.W.2d 330, 333 (Tex. App.-El
Paso 1993, no writ) (stating under Rule 278 "purported error regarding an omitted jury instruction
is deemed waived absent the request and tender, in writing, of an instruction in substantially
correct form").

Accordingly, we overrule Daniel's first issue.

Was the jury's finding that Daniel violated the DTPA supported by legally sufficient
evidence?

In his second issue, Daniel alleges that the evidence supporting the jury's finding that he violated
the DTPA is legally insufficient. Specifically, Daniel contends that all of the misrepresentations that
he is alleged to have made were actually made in written materials furnished by Ferris, and that
he merely acted as a conduit in passing on this information to Richardson.

In deciding a legal-sufficiency challenge, we determine whether there is evidence that would
enable reasonable and fair-minded people to reach the verdict under review. City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). To make this determination, we (1) credit all favorable
evidence that reasonable jurors could believe; (2) disregard all contrary evidence, except that
which they could not ignore; (3) view the evidence in the light most favorable to the verdict; and
(4) indulge every reasonable inference that would support the verdict. Id. at 822, 827. But, we
may not disregard evidence that allows only one inference. Id. at 822. The trier of fact is the sole
judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. So long
as the evidence falls within the zone of reasonable disagreement, we may not substitute our
judgment for that of the fact-finder. Id. at 822.

On appeal, Daniel alleges that "there was no statement made by Mr. Daniel, and identified by Mr.
Richardson as being one of his alleged violations, that was not dependent on a written statement
from the manufacturer." We disagree. The jury charge asked the jury to determine whether Daniel
committed a "[f]alse, misleading or deceptive act or practice," defined as any of the following

a. [C]aus[ing] confusion or misunderstanding as to the source, sponsorship, approval or
certification of goods or services;
b. [R]epresent[ing] that goods or services have . . . characteristics, . . . or qualities which they do
not have . . .;
c. Representing that good or services are of a particular standard, quality, or grade or that goods
are a particular style, [or] model, when they are another;
d. Representing that an agreement confers or involves rights, remedies or obligations which it
does not . . .;
e. Representing that a guarantee or warranty confers or involves rights or remedies which it does
not have or involve;
f. Fail[ing] to disclose information concerning goods or services which was known at the time of
the transaction and such failure to disclose such information was intended to induce the
consumer into a transaction into which the consumer would not have entered had the information
been disclosed;
g. Misrepresent[ing] that the mower . . . was not a commercial grade mower;
h. [Selling] a mower that fails to properly cut grass and lawns as represented; [or]
i. Fail[ing] to disclose . . . that Jack Daniel is unable to fulfill the necessary warranty work needed
to repair Ed Richardson's mower.

We find that there is legally sufficient evidence to support the jury's finding that Daniel violated the
DTPA in at least one of the above ways. For example, Richardson testified that he brought the
mower into Daniel's shop several times for warranty work that Daniel failed to perform. While
Daniel disagreed with Richardson's conclusions and contended that his shop had properly
performed the work that Richardson requested, the jury was free to believe the testimony of
Richardson over that of Daniel. See City of Keller, 168 S.W.3d at 822.

In addition, the charge as submitted allowed the jury to find Daniel liable for a violation of the
DTPA if he sold a mower that "fail[ed] to properly cut grass and lawns as represented."
Richardson introduced evidence at trial that the mower he purchased from Daniel was both slower
and less accurate than either Daniel or the manufacturer had represented. Richardson also
introduced photographs showing what he claimed were stripes of uncut grass left by the mower he
purchased from Daniel. While Daniel testified that these photographs related to a different mower,
the jury was again free to disbelieve his testimony and instead credit Richardson's. Id. Finally,
aside from the question of whether the manufacturer's literature contained any
misrepresentations, Richard unequivocally testified that Daniel represented to him that the mower
at issue was commercial grade and suitable for use in his lawn mowing business. While Daniel
denied having made such a statement, Richardson's testimony is legally sufficient to support the
jury's verdict. Id. Accordingly, we overrule Daniel's second issue.

Conclusion

We hold that the trial court did not err by failing to submit a question regarding Ferris' liability
under Chapter 82 of the Texas Civil Practice and Remedies Code. Further, the jury's finding that
Daniel violated the Texas Deceptive Trade Practices Act is supported by legally sufficient
evidence. We therefore affirm the judgment of the trial court.

[1] As part of this issue, Daniel also contends that the trial court excluded evidence of previous
statements Richardson had made. However, we note that this portion of Daniel's brief fails to cite
to any rules or other authorities supporting his argument, and also fails to provide us with any
citations to the record reflecting that Daniel sought to admit such evidence at any time or objected
to its exclusion. Accordingly, Daniel has waived this argument on appeal. See Tex. R. App. P. 38.1
(i) (a brief must contain "a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record").