Opinion
No. 04-04-00402-CV
Delivered and Filed: March 9, 2005.
Appeal from the County Court at Law No. 10, Bexar County, Texas, Trial Court No. 284608, Honorable Timothy Johnson, Judge Presiding.
Affirmed in Part; Reversed and Remanded in Part.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Linda Mear sued West Loop Automotive, Ltd. d/b/a West Loop Mitsubishi, alleging violations of the Texas Deceptive Trade Practices — Consumer Protection Act, the Federal Truth in Lending Act, and Sections 9.504 and 9.507 of the Texas Business and Commerce Code. Specifically, Mear asserted that West Loop: (1) violated the DTPA by misrepresenting the sales price of the car she purchased; (2) violated the Truth in Lending Act by failing to provide her with a copy of the retail installment contract containing the requisite disclosures prior to her consummation of the transaction; and (3) failed to sell her car in a commercially reasonable manner after it was repossessed. West Loop moved for summary judgment on traditional and no-evidence grounds, contending: (1) the parol evidence rule precluded Mear from contradicting the terms of the written retail installment contract; (2) Mear acknowledged receipt of the retail installment contract when she signed the contract; and (3) no evidence showed that West Loop repossessed and sold the car. We affirm the summary judgment with regard to Mear's allegation regarding the repossession and sale of the car. We reverse the summary judgment with regard to the alleged violations of the DTPA and Truth in Lending Act, and we remand those claims for further proceedings consistent with this opinion.
Although Mear's brief refers to general claims of fraud and breach of contract, those claims were not pled in Mear's petition.
Repossession and Sale of Car
We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. La Tier v. Compaq Computer Corp., 123 S.W.3d 557, 562 (Tex.App.-San Antonio 2003, no pet.). We look at the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Id. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id.
West Loop asserted in its motion that Mear had produced no evidence that West Loop sold the car after it was repossessed or that the sale was unreasonable. In response to the motion, Mear was unable to produce a scintilla of evidence to prove that West Loop repossessed and sold the car. Accordingly, summary judgment was properly granted in favor of West Loop as to Mear's claim regarding the commercial unreasonableness of the sale.
We summarily reject Mear's contention that West Loop's motion was groundless.
DTPA and Truth in Lending
Summary judgment is appropriate only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 252 (Tex. 2002). In reviewing a traditional motion for summary judgment, the reviewing court must resolve every doubt and indulge every reasonable inference in the nonmovant's favor. Id. All evidence favorable to the nonmovant will be taken as true. Id.
With regard to Mear's DTPA claim, West Loop moved for summary judgment on the basis that the parol evidence rule prevented Mear from introducing evidence of the oral representations made to her regarding the purchase price of the car prior to the execution of the written retail installment contract. Because Mear's claim is based on the DTPA, however, the parol evidence rule is not applicable, and the evidence of the oral representations is admissible. Weitzel v. Barnes, 691 S.W.2d 598, 599-600 (Tex. 1985) (rejecting applicability of traditional contractual notions, including parol evidence rule, to DTPA claims based on oral misrepresentations made before and after execution of agreement); see also Young v. Neatherlin, 102 S.W.3d 415, 422 (Tex.App.-Houston [14th Dist.] 2003, no pet.); Downs v. Seaton, 864 S.W.2d 553, 555 (Tex.App.-Tyler 1993, no pet.). Commenting on the rationale for the holding in Weitzel, the Dallas court of appeals stated:
In other words, the supreme court recognized that contractual liability and liability under the DTPA derive from two different sources. Contractual liability turns solely on the agreement of the parties whereas liability under the DTPA springs from the statute. As a general proposition, liability under the DTPA is neither increased nor diminished by the presence of a formal written contract covering the identical subject matter. Unlike contractual liability, resulting from the voluntary agreement of the parties, liability for false, misleading and deceptive acts is provided by the legislature for the breach of a duty imposed by it. These duties cannot be altered by the agreement of the parties. To apply the parol evidence rule in DTPA cases would frustrate the legislature's purpose in passing the statute without furthering the objectives of the parol evidence rule.
Honeywell, Inc. v. Imperial Condominium Ass'n, Inc., 716 S.W.2d 75, 78 (Tex.App.-Dallas 1986, no pet.) (citations omitted).
In Tom Benson Chevrolet, Inc. v. Alvarado, 636 S.W.2d 815, 819-20 (Tex.App.-San Antonio 1982, writ ref'd n.r.e.), this court addressed the admissibility of evidence similar to that submitted by Mear in response to West Loop's motion for summary judgment. In Alvarado, a purchase agreement contained a different sales price for a car than the price set forth in the retail installment contract. Id. This court held that the purchase agreement was admissible because Alvarado's suit was premised upon a deceptive trade practice. Id. West Loop appears to contend that the applicability of the parol evidence rule and the admissibility of the evidence were not considered in Alvarado because "the defendant failed to plead or argue application of the parol evidence rule or equitable estoppel." The opinion, however, states, "Alvarado introduced the purchase agreement, over Tom Benson's timely objection. . . ." The court then reasoned that the purchase agreement was admissible and was evidence of a misrepresentation regarding the sales price of the car.
Based on the foregoing authorities, we hold that the trial court erred in granting summary judgment on Mear's DTPA claim.
West Loop also moved for summary judgment on traditional grounds with regard to Mear's Truth in Lending Act claim. West Loop contended that Mear's affidavit stating that she did not receive the retail installment contract containing the requisite disclosures until two weeks after the sale was directly controverted by Mear's signature acknowledging receipt of the contract on the day of the sale. Accordingly, West Loop appears to contend that the parol evidence rule precludes Mear from claiming that she did not timely receive her copy of the contract. We disagree.
Section 1635(c) of the Truth in Lending Act provides:
Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this subchapter by a person to whom a statement is required to be given pursuant to this section does no more than create a rebuttable presumption of delivery thereof.
15 U.S.C. § 1635(c); see, e.g., Basham v. Finance America Corp., 583 F.2d 918, 929 (7th Cir. 1978); Whitlock v. Midwest Acceptance Corp., 575 F.2d 652, 653 (8th Cir. 1978); Jackson v. New Century Mortgage Corp., 320 F. Supp. 2d 608, 611 (E.D. Mich. 2004); Cooper v. First Govt. Mortgage Investors Corp., 238 F. Supp. 2d 50, 63-64 (D.D.C. 2002). An affidavit from the debtor is sufficient to rebut the presumption of delivery. See Stone v. Mehlberg, 728 F. Supp. 1341, 1353-54 (W.D. Mich. 1989) (affidavit stating document not received sufficient to rebut presumption); see also Basham, 583 F.2d at 929 (noting debtor's failure to rebut presumption of delivery by filing of affidavit); Whitlock, 575 F.2d at 653 (same).
West Loop contends that Mear's affidavit is insufficient because the Fifth Circuit "has recognized that a state's parol evidence rule applies to Truth In Lending Act." The primary case cited by West Loop, however, does not support the application of the parol evidence rule to the situation in this case.
In Anthony v. Community Loan Inv. Corp., 559 F.2d 1363, 1369 (5th Cir. 1977), the plaintiff asserted that despite the information contained in her loan documents, she never requested or desired insurance coverage, but merely signed the documents when told to do so. In response to this assertion, the Fifth Circuit concluded:
Consumers should not be encouraged to avoid reading or to ignore the information the Act requires to be provided. In addition, the Court can apply the parole evidence rule in this situation to further, not derogate, the purposes of the Act. In this situation therefore Georgia's parole evidence rule is not in conflict with the purposes of the federal statute.
Id. at 1370. In Anthony, the plaintiff was not asserting that she did not receive the requisite disclosures as Mear contends in this case. Under the applicable federal law, the presumption of delivery arising from a written acknowledgment is a rebuttable one and is applicable "notwithstanding any rule of evidence." 15 U.S.C. § 1635(c). Accordingly, applying the parol evidence rule to prevent a debtor from rebutting the presumption would conflict with the purposes of the federal statute.
Mear's affidavit raises a genuine issue of material fact with regard to the requisite delivery of the disclosures contained in the retail installment contract. Accordingly, the trial court erred in granting summary judgment with regard to Mear's Truth in Lending Act claim.
Conclusion
The portion of the trial court's order granting summary judgment with regard to Mear's claim under the Texas Business and Commerce Code relating to the repossession and sale of the car is affirmed. The portion of the trial court's order granting summary judgment with regard to Mear's DTPA and Truth in Lending Act claims is reversed, and those claims are remanded to the trial court for further proceedings consistent with this opinion.