*1 STEWART, Before BURNETT and WHITTINGTON, JJ.
OPINION
BURNETT, Justice.
Autohaus, Inc., appeals an judg- adverse ment in favor of Raul on his claim arising Deceptive Trade Practic- (DTPA). es-Consumer Protection Act Tex. (Ver- Bus. & Com.Code Ann. 17.41-17.63 §§ Supp.1990). non 1987 & Vernon In four error, points of Autohaus contends that: (1) there evidence or insufficient *2 in Aguilar possession to of the car show took evidence to that May He numer- early encountered Aguilar had certain that automobile Aguilar’s pri- problems ous with the car. uses, characteristics, ingredients, and bene- engine hesi- mary complaint was that have; (2) fits which it did not there was attempted he to accelerate. tated when to show insufficient evidence evidence or steering, problems Other included unstable represented Aguilar to that an auto- that it closing opening properly, the doors not standard, particular quali- mobile was twice, breaking the radio down air not; (3) ty, or which there it was malfunctioning on numerous occa- ditioner or no evidence insufficient evidence function, sions, ceasing to the odometer damages in Aguilar suffered the amount shifting. when and transmission difficulties $4,038 misrepre- result Autohaus’s as a Aguilar the car into Autohaus took (4) sentation; its the trial court abused three-year times over the service nineteen awarding Aguilar recovery posses- discretion a first took period from the time he car until the time of trial. $1,000 his sion first actual dam- of treble the time, Throughout continually com- this he ages against both Autohaus and Mercedes- problem. plained about the car’s hesitation America, Inc. sustain Benz of North We problems Aguilar com- While most of points. first “no evidence” Autohaus’s two point, the plained of fixed at some Accordingly, the trial court’s we reverse repaired to problem was never hesitation take judgment Aguilar render his satisfaction. nothing on his claim Autohaus. two, Auto- points In its of error one and went Autohaus early Aguilar to or that there is no evidence haus contends A sales to look at Mercedes automobiles. trial to insufficient evidence him representative for Autohaus showed DTPA sec- findings that it violated court’s Aguilar 17.46(b)(7). a eventually two selected models. tions Tex.Bus. & (7) 17.46(b)(5), Mercedes 420SEL. Because Autohaus Com.Code 1987).1 Aguilar a decided order Before 420SEL’s, supply it had to a limited he had conver- factory, 420SEL a Germany factory from a order one West representa- Autohaus sales sation with the Aguilar’s specifications. Problems meet testimony, Aguilar following In the tive. car, shipment apparently arose in the of the attempted recount conversation with his Be- delaying car’s at Autohaus. arrival the salesman. a use cause he needed car immediate To the best COUNSEL]: [AGUILAR’S business, Aguilar Auto- his went back to recollection, you your can describe chose Mercedes subsequently haus Autohaus what [the Au- recently arrived at 420SEL which had regard any you made salesman] Inc., Leasing, pur- Corporate tohaus. might you shown he have automobile Aguilar which had selected chased the car that time? Aguilar re- Aguilar. it to leased state- [The salesman’s] [AGUILAR]: car sponsible of the for all maintenance that Mercedes ment was of nature provided the lease under the lease. in the engineered car Benz was the best purchase world, option with an not find that probably I any I would encounter mechanical ever years. at the end of four person sponsor- has 17.46(b) provides: or that a part do have DTPAin Section affiliation, status, ship, approval, or connec- (d) (b) provided Except in Subsection not; section, "false, misleading, does or tion which he term includes, practices" but is deceptive acts or to, following goods not limited acts: representing or services are standard, quality, grade, particular or aof goods representing have services model, style goods particular are of ingre- sponsorship, approval, dients, they of another[.] if uses, benefits, they quantities joked reviewing difficulties. He about the fact that applied standards as are my only time loss would legal sufficiency of factual and bring when would the car in to the ques supporting jury’s jury answers to agency change for an every oil and filter Corp. Keep tions. RRTM Restaurant 7,500 miles. ing, (Tex.App. —Dallas you Do re- *3 [AGUILAR’S COUNSEL]: denied); Coppell writ 1st Bank v. anything gentleman call else repre- Smith, (Tex.App.— 742 S.W.2d 458 you regard sented to with to the charac- 1987, writ). legal reviewing Dallas In qualities teristics or of the car? claim, sufficiency only must consider we Generally that it would [AGUILAR]: the evidence and inferences the reasonable superior product be a far than what tending finding, the trial court’s past. had had in the disregard all evidence and inferences contrary finding. to the trial court’s Staf Agui- Mr. [AGUILAR’S COUNSEL]: (Tex. Stafford, 726 S.W.2d ford lar, you do feel that the salesman that 1987). If there is not more than a scintilla you originally rep- talked to at Autohaus supporting finding, of evidence particular resented that Mercedes point reviewing must be sustained. In you purchased characteristics, factually insufficiency, claim of we must ingredients, you uses and benefits that evidence, weigh consider and all the later found that it did not have? should set only aside the verdict if it is so Yes. [AGUILAR]: contrary overwhelming weight to the of you Did [AGUILAR’S COUNSEL]: clearly wrong the evidence as to be representative feel like the you dealt Bain, unjust. Cain v. 709 S.W.2d represented with at Autohaus you (Tex.1986). particular you Mercedes Benz that Autohaus's basic contention in its first purchased particular standard, was of a quality grade points two of error is that you because its sales- later found out is was not? man’s statement was an or merely puffing, the statement was not an action- Yes.
[AGUILAR]: able under the DTPA. Aguilar’s testimony concerning the sales- question There has of been whether it is man’s statement was the appropriate recognize opinion puff- the record made to ing exceptions as defenses or to a cause of Aguilar. The Autohaus salesman did not arising action testify. under the DTPA. D. See P. Maxwell & J. Bragg, Longley, Texas findings fact, In its of the trial court Litigation (2d 136-37 n. 17 ed. Consumer found that the Autohaus salesman made 1983). legis- It is well established that the Aguilar the Mer- designed provide lature the DTPA to con- cedes 420SEL which leased had sumers with a method to ingredients, uses, combat and bene- fits ultimately practices. Pennington which it did not trade Singleton, have. See (Tex.1980); Woods v. § Tex.Bus. & Com.Code Ann. (Vernon 1987). The trial court also found Littleton, (Tex.1977). that the Autohaus salesman fact, pro- Section 17.44 of the Aguilar that the car particular was of a liberally vides that “shall be standard, quality, when was applied promote construed and its under- another. See Tex.Bus. & Com.Code lying purposes, protect which are to 17.46(b)(7)(Vernon 1987). The trial court false, misleading, sumers and de- concluded that based on misrepresen- these ceptive practices, business unconscionable tations, Autohaus violated the DTPA. actions, warranty breaches and to provide procedures efficient and economical court, In a trial to the a trial court’s findings protection.” to secure such fact are reviewable for TexBus. & legal factual and sufficiency by 1987). the same Com.Code Ann. In v. U.S. Parks ”); (Tex. ‘puffing’ mere Baldwin, tion is not Smith (Tex. 479, 484 Corp., Home 1980), Supreme Court wrote: the Texas dism’d writ App. Dist.] [1st a cod- represent The DTPA does — Houston a violation (misrepresentation is w.o.j.) primary- A common law. ification of the misrep long as the 17.46(b)(5),“so section of the DTPA enactment purpose ”). ‘puffing’ is not mere resentation consumers a cause provide towas v. Warner Enterprises, Inc. Presidio practices with- deceptive trade action for F.2d Distributing Corp., Bros. numerous proof out the burden Court (5th Cir.1986), Fifth Circuit in a common law defenses encountered law, held that Appeals, applying suit. fraud or breach producers picture by motion statement Also, neither abe movie would released a soon-to-be specifically list- “puffing” is “opinion” nor puffing mere “blockbuster” in the DTPA. anywhere defense ed as a sections not actionable under and thus was *4 Compare Tex.Bus. & Com.Code 17.46(b)(7) DTPA. of the and 1968) (statement of seller’s Enterprises, 784 F.2d at 685-87. Presidio as listed opinion or commendation no case in which Although have found we to the creation in the Texas U.C.C. defense denied an action appellate court has warranty). express of an DTPA be- misrepresentation under the specifically DTPA does not While constituting the mis- cause the statements opinion puffing, the Texas Su- mention or puff- found to be representation have been Pennington, Court, implied that preme if the state- ing opinion, or hold that we holding such a defense existed are, alleged misrepresentations ments be sections 17.- “general objective of [DTPA fact, they cannot only puffing opinion, or 46(b)(5) 17.46(b)(7)] is to ensure and representations be actionable goods or offered descriptions of services Therefore, must determine we DTPA. Misrepresentations, for sale are accurate. by the Autohaus the statements whether long they are of a material fact and so as puffing regarding the car were salesman opinion, are merely ‘puffing’ or opinion. or Pennington, actionable....” nevertheless us is a though the case before Even added). (emphasis at 687 warranty not a DTPA action and breach Pennington, of a used motor the seller warranty case, analyze we will or fraud buyer told the boat and trailer in our determination fraud cases recently had worth $500 and trailer
boat
puffing or
are
the statements
whether
it, making the
repairs done on
boat
cases have addressed
opinion
these
because
condition,” “perfect
motor in “excellent
does not
does and what
the issue what
Penning-
condition,”
“just
like new.”
puffing
opinion.
One
constitute
ton,
The statements
the court stated: (Tex.Civ.App. Tyler writ — by Aguilar the extent n.r.e.). emphasize sentences While cases Two
ref’d these presented show the mis disparity knowledge between The first by the salesman. representation must be the initial parties, determination the Mer misrepresentation is that possible specific the statement made whether engineered is the car cedes automobile best misrepresenta- enough to be an actionable Generally, statements that the world. Supreme The Texas tion under DTPA. and claim compare product to another one in held Court “[t]he misrepresen not superiority are actionable descriptions prohibits general false Equipment Co. Hoo tations. See Shaw good, misrepresenta- as as well [a] Co., ple Jordan Construction informa- pertaining to more tions (Tex.Civ.App. 838-39 language only generally tion. Sometimes — Dallas misrepresen writ). find no We product to a or its attributes will related in this statement alone. tation Penning- convey implications.” definite ton, lan- While this misrepresentation is possible The second Pennington might taken guage in not have me “probably” will general violate mean that all statements problems. “Probably” is defined chanical DTPA, it to mean that we understand certain.” “relatively not likely as but general statements Heritage Dictionary only “sometimes” will (1983). American thus, general each qualifies violate the “probably” The use of word particu- in its statement must be examined diffi concerning mechanical the statements case find that mis lar fact situation. We cannot find an actionable culties. We us, statements so nature of the a statement before Lowenthal, See Williams they in which indefinite. as the circumstances well (the Cal.App. 12 P.2d distinguish they made are such that in the state “probably” of the word Pennington. use the statements those a machine would ment that Pennington involved First, representa- negates effectively get out of order at the time of tion of the condition of a boat the machine creation us, In the the sales- its sale. case before order). get out of man’s statement involved the condition *6 performance of a car in the future. While statement, as third testi- The salesman’s concerning per- misrepresentations future “joked” Aguilar, that he by was fied DTPA,2 formance only “probably” the car would concerning future general a a statement 7,500 changes every brought in for oil differently than should be event looked the of the terms Again, inclusion miles. concerning past present statement establishes the “probably” “joked” condition, exam- especially when event the generality of statement. ining specificity involv- the of a statement whole, Also, as the salesman’s taken performance a car. ing the future of just general to be an ac- too statement the condition of misrepresentation. While Tex- tionable “excellent,” “just “perfect” and as boat Pennington held that Supreme Court in are more like new” general descrip- “prohibits DTPA false repre- in the case before us where than tions,” salesman’s statement the Autohaus “proba- included such as sentations words convey any case before us does not in the “joked.” bly” and By holding that implications. definite us, misrepre containing “best,”
In the case before words such as statement sales arising “joked” the Autohaus “probably,” sentations constitutes a mis- DTPA, been that the under man’s statement could have salesmen (1) unduly engineered saying limited in anything car: best would be world; (2) products. Thus, have me their we hold would (3) probably general difficulties; such a statement cannot chanical be the changes. misrepresentation. of a servicing need for oil basis so Baldwin, at 615-16. 2. See Smith v. 611 S.W.2d
holding, disregarding purpose we are not of the enactment of the DTPA express prevent decep- DTPA’s intention to provide consumers a cause practices. tive trade Because we find that practices action for trade with- there is no trial proof out the and numerous burden findings court’s that the Autohaus sales- defenses encountered in common law misrep- man’s statements were actionable warranty. fraud or breach resentations under the we sustain 611, Baldwin, Smith v. 611 S.W.2d points Autohaus’s first two “no evidence” (Tex.1980). nullify legislative It would Accordingly, of error. we reverse the trial purpose impose puff on the DTPA the judgment. court’s defense, ing one “numerous defens disposi- Because of manner of our es encountered in a common law fraud tion, we need not address Autohaus’s other warranty breach of suit.” See id. [and] points of error. Although Texas courts have mentioned “puffing” cases, opinion in DTPA none
STEWART, Justice, dissenting. gone “puff has so far as to hold that the ing” rule enunciated in common law fraud respectfully majority dissent. The re- and breach of cases should be judgment verses the trial court’s in favor recognized pursuant in cases appellee, Aguilar, Deceptive Raul to sections his 17.46(b)(5) Trade Practices-Consumer of the DTPA. Protection Act1 See Pen (“DTPA”) nington judgment Singleton, action and renders appellant, Autohaus, Inc., (Tex.1980); James, holding favor of Burnett v. that there is “no (Tex.Civ.App. evidence” to 408-09 show no — Dallas writ).
Autohaus This Court has stated that DTPA Mercedes automobile which he subject leased had claims are not to common law de ingredients, uses, certain fenses. Shenandoah Assoc. v. K J & have, and benefits which did not Properties, (Tex.App. Tex.Bus. 17.46(b)(5) (Vernon 1987, writ) (opinion reh’g) —Dallas & Com.Code Ann. 1987),or that the Mercedes automobile was 616). (citing 611 S.W.2d at particular standard, of a quality, rejected application courts have which it was not. Tex.Bus. & Com.Code number of common law defenses to DTPA 17.46(b)(7)(Vernon 1987). The ma- See, Bolton, e.g., suits. Alvarado v. jority reaches its holding by concluding (Tex.1988)(doctrine merg S.W.2d misrepresentations merely which are er); Koonce, Chastain v. “puffing” are not actionable un- (Tex.1985) (lack intent, lack of der the disagree DTPA. I “puffing” knowledge); Barnes, Weitzel apply defenses should to suits (Tex.1985) (lack intent, lack of pursuant to sections plaintiff); Sale, Kennedy reliance *7 the DTPA. 890, (Tex.1985)(lack 892-93 exception by plaintiff, No or “puffing” privi mention of or consideration lack of opinion is made in any ty). section 17.46 or in The common to a law defense provision other Compare DTPA. DTPA claim that has been allowed so far is 17.41-17.63 requirement that a DTPA claimant mit §§ Tex.Bus. & Com.Code Ann. 2.313(b) with Tex.Bus. & Com.Code Ann. igate damages. his or her Town East § (Tex. (Vernon UCC) 1968). majority The Sales, Gray, Ford Inc. analyzes common law fraud and breach of writ); (Tex.App. Hy — Dallas warranty cases in which courts have held cel, Wittstruck, Inc. v. that “puffing” opinion operate and as de- dism’d). (Tex.App. writ Fur — Waco However, fenses. concerning thermore, several commentators who have Supreme Texas Court has stated: representations considered whether
The “puffing” DTPA does constitute represent not a cod- or should be a primary ification of the A common law. defense under the DTPA have concluded (Ver- Supp.1990). 17.41-17.63 non & §§ 1987 Vernon 1. TexJBus. & Com.Code Ann. recognize prerequisite recovery to liance is to un inappropriate it not a Weitzel, See, P. & der the e.g.,
such defenses. S. DTPA. Kens Rights supreme repre The court has ruled that a CoChran, and Remedies Consumer false, misleading, or (Texas 1983); sentation is Practice D. Bragg, §§ capacity DTPA if or it has P. &J. Longley, Maxwell, Texas Consumer Litigation ignorant, (2d 1983); tendency even ed. deceive 502 n. 17 § Texas unthinking, person. Spradling credulous 1990,p. February Reporter, Consumer Law (Tex. Williams, 33. 1978). de “capacity tendency This or Although panel a of the fifth circuit ceive” reduces the test effectiveness Enterprises, court in Presidio Inc. War- dealer’s defense Bros., Corp., F.2d Distributing ner Rights “puffing.” was mere Consumer (5th Cir.1986), by majori- cited 8. court The § and Remedies ty, recognized arguments forth set (7) dealing 17.47(b)(5) with sections above, repre- held it nevertheless stated: Warner, its by e.g., sentations made warranted, interpretation A is broad “blockbuster,” film mere would be however, due human inventiveness and, therefore, “puffing” or not deceptive misleading engaging in or (7) 17.46(b)(5) under sections legislature duct. The did not intend its However, distin- DTPA. Presidio is express purpose protecting consumers guishable present from it case because practices false trade be circum- “subjective opinions on aesthetic involved loop- those seek vented who would out court matters.” Id. the Presidio provisions. holes in the [DTPA’s] employing stated it was law common 688. Pennington, 606 S.W.2d at legisla- principles in that case because ture had not acted had “declined sever- 17.46(b)(5) (7) pro- are broad Sections pointed regulate al invitations to film distri- descriptions inaccurate hibitions bring picture or bution otherwise motion goods Pennington, services. licensing explicitly the terms of within Nearly any S.W.2d at 687.
DTPA.” Id. good or can be said to about service benefits, characteristics, uses, relate its provide The DTPA does its cov- not Litigation quantities. Consumer erage limited to of fact. 17.46(b)(5)). (discussing section (7) of the While sections good may A lack its claimed characteris- specify they relate do whether bring its claimed uses tics fail to opinion, of fact or sec- good because it is benefits 17.46(b)(8), (13) (11), expressly tions condition, mechanical or for reasons such representations of limited to “fact.” Tex. design as its or manufacture ... when (7), (8), 17.46(b)(5), &Bus. Com.Code Ann. good not have the characteristics does 1987). legis- & Where the have, perform represented to employed lature certain in one has terms same. represented, injury has it in section of a statute and excluded justification excluding There is no others, implied ex- it should not be where including misrepresentations and some cluded. 611 S.W.2d at others the basis of the reason “puffing” and majority, by recognizing falsity. their opinion as action defenses to causes of *8 brought pursuant to sections The Pennington, at 687. effect, (7), only in recovery allows general descrip- prohibits both false where false of fact are specific information about tions and false made. only language generally good; sometimes product related to a or its attributes will allowing puffery The rationale for convey impression. a definite Id. buyers defense at common law was that expected rely distinguishes Pennington reasonably majority could to However, by pointing out the opinion. re from this case that such statements evi- lar Donwerth introduced in automobile. present began “groaning” boat mo- the cerned the condition of a dence that brakes that, arguably misrepresen- five alleged tor and the after months and within a few perform- report months, in this case concerns future tation Preston’s own service However, in an car ance of automobile. the showed brakes Donwerth's that out, the court held that would be making dangerous. had the car worn legislative expressed intent contrary back. had been rolled the odometer hold that section 17.442 DTPA to Supreme this The Texas Court held that by who have been misled mis- consumers was somé evidence that the brakes quality on future are not sale, at the time of the worn and defective protection pro- from entitled the jury finding Pres- supporting thus the that goods and in sec- visions on services found represented particular ton the car was of a 17.46(b). Smith, 611 at 614. tion standard, grade quality, when it was Therefore, by the the ma- distinction made another. Id. jority meaningless. is case, Aguilar In testified that Auto- Box, Communicators, Inc., Inc. v. Mail told him haus’s salesman that “Mercedes 783, 785 (Tex.App. Corpus — engineered the best car in the world ... writ), Christi to the similar [Aguilar] probably would not find that [he] There, present pur case. appellant the diffi- any would encounter mechanical ever telephone system appel- the chased a from culties ... [Autohaus’s salesman] lee, represented system] who that “[the joked [Aguilar’s] the fact that require virtually should no maintenance [Aguilar] time loss would be when simplicity” appel- due to its and that “[the the bring agency to the for average[d] per year less than two calls lee] 7,500 change every oil and filter miles.” systems (emphasis for all the Dallas.” statements, Agui- These as testified to added) appellant Id. The introduced nine lar, represented that the automobile ty-four covering service orders two and characteristics, uses, ingredients, certain year period. appeals one-half The court of benefits, Tex.Bus. & Com.Code the trial judgment reversed court’s 17.46(b)(5),and that the automobile § judgment rendered hold appellant, standard, particular quality, grade. ing that there was sufficient evidence 17.46(b)(7). Tex.Bus. & Com.Code Ann. support jury’s special prior answer reflects that The record took issue, appellee to the sale at made a Autohaus nine- automobile to for service appellant to the its three-year period teen times over uses, equipment had or ben possession he first took time that efits it did not have. Id. “Virtual until Al- automobile the time of trial. ly” although as “in defined effect though repaired Autohaus most of fact; practical all purposes.” Web point, some problems the hesitation Dictionary (1954). ster’s New World repaired problem Aguilar’s never was “virtually represen This no maintenance” This constitutes evi- satisfaction. some tation, like the use of in the “probably” Aguilar’s dence Mercedes automobile case, qualifies present state salesman’s characteristics, ingredients, neither had the Although majority ment. concludes uses, represented and benefits nor was “probably” made the sales Autohaus standard, particular quality, man’s too action statement indefinite to be there represented. would conclude that able, Mailbox, court in allowed Inc. is some evidence the trial court’s consumer recover. judgment. Chrysler- Donwerth v. Preston II Inc., (Tex.1989), Dodge, S.W.2d 634
car salesman there nothing wrong particu- with the brakes in subchapter liberally practices_”
2. "This shall be construed business Tex.Bus. promote protect underlying purposes, (Vernon 1987). to to its which are *9 & Com.Code false, misleading, consumers