Dick Poe Motors, Inc. v. Dickey (802 S.W.2d 739, 1990)

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 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