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Page 1

Not Reported in S.W.3d, 2010 WL 456910 (Tex.App.-Amarillo)

(Cite as: 2010 WL 456910 (Tex.App.-Amarillo))

Only the Westlaw citation is currently available.

SEE TX R RAP RULE 47.2 FOR DESIGNATION AND SIGNING OF OPINIONS.

MEMORANDUM OPINION

Court of Appeals of Texas,

Amarillo,

Panel C.

Jessie R. ROMERO, Appellant

343IV Performance of Contract

343IV(C) Delivery and Acceptance of Goods

343k168 Inspection and Approval in General

343k168(1) k. In General. Most Cited Cases

A trial court correctly found that a car dealership had a right to inspect and reject trade-in vehicles from a car

From the 237th District Court of Lubbock County; No.2007B538,473; Sam Medina, Judge.

J. Craig Johnston, Johnson, Miller & Wharff, Lubbock, TX, for Appellant.

John Simpson, Splawn Simpson & Pitts, Lubbock, TX, for Appellee.

parties executed a contract wherein he agreed to trade in two vehicles as a part of the purchase price of a 2006 Sil-

verado pickup. We affirm.

Background

On December 23, 2006, Romero went to the Scoggin-Dickey dealership in Lubbock, Texas, and sought to pur-

chase a 2006 Silverado pickup from Fred Morales. Romero proposed to purchase the pickup by assigning the dealer–

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Not Reported in S.W.3d, 2010 WL 456910 (Tex.App.-Amarillo)

(Cite as: 2010 WL 456910 (Tex.App.-Amarillo))

ship the factory rebates, supplying two trade-in vehicles (a 2003 Mitsubishi Montero SP and a 2002 Chevrolet Sil-

verado pickup), and paying the cash difference. At the time of the negotiations, Romero did not have the proposed

trade-in vehicles on the lot for inspection by Scoggin-Dickey.

After negotiating a value for the trade-in vehicles, Romero and Morales signed a contract order wherein Scog-

gin-Dickey agreed to sell Romero the 2006 Silverado pickup for $21,888.FN1 In return, Romero agreed to trade in

ered hereby….

FN2. The value of the Montero was estimated at $8,000 and the value of the 2002 Silverado pickup was es-

timated at $7,000. The negotiated value of the trade-in vehicles represented 68.5% of the total purchase

price of the 2006 Silverado pickup and 79.4% of the total purchase price less rebates.

Romero paid the cash, assigned the rebates, and took possession of the 2006 Silverado pickup. At that time,

settlement offers to Romero pertaining to a partial refund of his down payment. Romero rejected the offers and filed

suit.

FN3. Romero, a former car dealer with thirty years experience, testified that, at the time the contract order

was executed, he represented to Scoggin-Dickey that the two vehicles were an even trade for the new 2006

Silverado pickup. John Zwiacher, owner of Scoggin-Dickey, testified that, upon inspection, neither vehicle

wise.

Following a one-day bench trial, the trial court concluded, as a matter of law, that Scoggin-Dickey had a right to

inspect the trade-in vehicles under section 2.513 of the Texas Business and Commerce Code and, upon inspection,

had validly exercised their right to reject the vehicles tendered by Romero. The trial court further found, as a matter

of law, that no contract was perfected between the parties; title to the 2006 Silverado pickup never passed from the

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Not Reported in S.W.3d, 2010 WL 456910 (Tex.App.-Amarillo)

(Cite as: 2010 WL 456910 (Tex.App.-Amarillo))

ment less allowable expenses), $330.00 in attorney’s fees and court costs. Romero was ordered to remove the two

trade-in vehicles from Scoggin-Dickey’s lot within thirty days of the judgment. Thereafter, Romero filed this appeal.

should be increased to the market value of the 2006 Silverado pickup, $21,888.00.

I. Standard of Review

We review de novo a trial court’s conclusions of law and uphold them on appeal if the judgment can be sus-

tained on any legal theory supported by the evidence. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789,

II. Right to Inspect

Motor vehicles are included in the broad definition of “goods” as defined in the Texas version of the Uniform

Commercial Code.FN4 First National Bank of El Campo, TX v. Buss, 143 S.W.3d 915, 920 (Tex.App.-Corpus Christi

2004, pet. denied). And, unless the parties agree otherwise, a buyer has a right to inspect goods identified to a con-

verify ownership, make, model, and value, even after the contract order was executed. If the trade-in vehicles did not

conform to their description in the contract order, Scoggin-Dickey had a right to reject any non-conforming vehicle.

FN4. “ ‘Goods’ means all things which are moveable at the time of identification of the contract for sale.”

Tex. Bus. & Com.Code Ann. § 2.105(a) (Vernon 2009). For convenience, subsequent citations to provi-

sions of the Texas Business and Commerce Code will be simply as “ § —-“ or “section —-.”

contract to sell goods at a future time”; id., or conditional sale. Meyer v. Hardware Mut. Cas. Co., 383 S.W.2d 625,

627 (Tex.Civ.App.-Austin 1964, no writ) (a sale “wherein possession of the property is delivered to the buyer but

title is reserved in the seller until the fulfillment of a condition”). Romero had no legal right to compel Scoggin–

Dickey to assign or transfer title to the 2006 Silverado pickup simply because the contract order was executed. Ala-

mo Cas. Co. v. William Reeves & Co., 258 S.W.2d 211, 214 (Tex.Civ.App.1953, no writ) (“A test of true ownership

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Not Reported in S.W.3d, 2010 WL 456910 (Tex.App.-Amarillo)

(Cite as: 2010 WL 456910 (Tex.App.-Amarillo))

title to a vehicle.”).FN6 Under these facts, the trial court could conclude that the parties intended that vehicle owner-

ship pass in the future when the balance of the purchase price was paid to Scoggin-Dickey, i.e., Romero tendered

two trade-in vehicles conforming to their description in the contract order. See Park Cities Ltd. Partnership v.

Transportation Funding Corp., 131 S.W.3d 654, 660 (Tex.App.-Dallas 2004, pet. denied); David v. Gonzales, 235

Scoggin-Dickey and, in return, the dealership was selling the 2006 Silverado pickup to Romero. See § 2.304(a) ( “If

[the price] is payable in whole or in part in goods each party is seller of the goods which he is to transfer.”). The trial

court was correct in finding, as a matter of law, that the contract for sale was not completed until Scoggin-Dickey

received two trade-in vehicles that conformed to their values identified in the contract order. See Lange v. Interstate

Sales Co., 166 S.W. 900, 901 (Tex.Civ.App.-San Antonio 1914, writref’d) (“When an individual purchases a car

ferson County, 153 S.W.3d 670, 676 (Tex.App.-Amarillo 2004, pet. denied). Romero’s single issue is overruled.

Conclusion

The trial court’s judgment is affirmed.

Tex.App.-Amarillo,2010.