Opinion
No. 04-07-00306-CV
Delivered and Filed: April 9, 2008.
Appeal from the 216th Judicial District Court, Kendall County, Texas, Trial Court No. 03-160, Honorable Stephen B. Ables, Judge Presiding.
Affirmed.
Sitting: CATHERINE STONE, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Antonio and Arzella Liberto appeal from a take-nothing judgment. Because we conclude the jury's verdict was not against the great weight and preponderance of the evidence, we affirm.
BACKGROUND
The Libertos purchased a Fleetwood Motor Home from Ancira Motorhomes in April 2001. As the manufacturer, Fleetwood provided a limited warranty against defects in material and workmanship. The warranty stated that repairs would be made at the dealer or at Fleetwood's Indiana factory. Shortly after purchasing the motor home, the Libertos began experiencing failures in the air-conditioning and electrical systems. The Libertos took the motor home to Ancira for repairs in July 2001. The problem persisted, and in November 2001, the Libertos again took the motor home to Ancira for repairs. The Libertos complained again in March 2002 about electrical problems that were not corrected. In July 2002, Fleetwood sent its own factory technician, along with a representative from the manufacturer of the air conditioning unit, to repair the motor home on site. The problems continued and, following conversations with Fleetwood, the Libertos agreed to drive the motor home to Decatur, Indiana for warranty service. Fleetwood took two weeks to make repairs, but the Libertos again complained in December 2002 that the motor home was still not working properly. Fleetwood asked the Libertos to return the motor home to Indiana for additional repairs. The Libertos declined and filed a lawsuit alleging breach of warranty. Following a jury trial, the trial court rendered a take-nothing judgment against the Libertos. ANALYSIS The jury charge submitted three liability questions to the jury, asking whether Fleetwood's or Ancira's failure, if any, to comply with an implied warranty or an express warranty, or Fleetwood's or Ancira's failure to perform repairs in a good and workmanlike manner was the producing cause of the Libertos' damages. The jury answered "No" to all questions. On appeal, the Libertos challenge only the jury's answer of "No" to Question 2 of the jury charge, which asked: "Was the failure, if any, of Fleetwood or Ancira to comply with an express warranty for the motor home a producing cause of damages to Plaintiffs?" The Libertos contend the jury's negative answer is against the great weight and preponderance of the evidence. The Libertos therefore challenge the factual sufficiency of the evidence. When the party who had the burden of proof at trial complains of the factual insufficiency of the evidence, that party must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d. 237, 241 (Tex. 2001); Bay, Inc. v. Ramos, 139 S.W.3d 322, 329 (Tex.App.-San Antonio 2004, pet. denied). We are mindful that the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We may set aside the adverse finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Bay, Inc., 139 S.W.3d at 329. The written warranty agreement provided, in pertinent part, as follows:
The owner is responsible for normal maintenance as described in the Owner's Information Package. . . .
If a problem occurs which the owner believes is covered by this warranty, the owner shall contact the selling dealer, or the Fleetwood Service Center, giving sufficient information to resolve the matter. The owner shall deliver the motor home to the dealer or the Fleetwood Service Center for warranty service.
If the dealer is unable or unwilling to resolve a problem which the owner is convinced is covered by the warranty, the owner should contact the Fleetwood Service Center at the address listed below and provide the Fleetwood Service Center with a description of the problem and attempts made to resolve it.
Upon receipt of notice of a claim, where the dealer is unable or unwilling to resolve the problem, the Fleetwood Service Center will repair or replace any parts necessary to correct defects in material or workmanship or will take other appropriate action as may be required. At trial, Arzella Liberto testified to several electrical problems she and her husband, Antonio Liberto, had experienced with their motor home since the time of purchase. She testified to attempts by the dealer and the manufacturer to repair the problems, including one trip she and her husband made to Fleetwood's factory in Indiana in order for the manufacturer to make warranty repairs. She testified that when she and her husband experienced the same problems upon returning home to Texas, Fleetwood asked her to return to Indiana to have repairs made. Antonio Liberto testified that, as sole owners and employees of their own business, another return trip to Indiana would have caused their business to lose revenue. The Libertos admitted they decided not to return the motor home to Indiana for further repairs despite the manufacturer's offer. On appeal, the Libertos argue that, because Fleetwood did not repair their motor home on their first trip to Indiana, and because the warranty did not obligate them to make a second visit to the Indiana facility, Fleetwood breached its warranty.
Fleetwood's representative, Bryan Gaughan, testified that the electrical failures experienced by the Libertos were the result of a new system the company had begun using in their vehicle. Gaughan stated Fleetwood had intended to honor the warranty and would have repaired the motor home. He stated the express warranty did not bind Fleetwood to just one repair attempt at its facility. Gaughan declined to estimate how many trips to the Indiana facility a customer would be required to make before Fleetwood would be considered in breach of the warranty. Gaughan testified: "It's on a case-by-case basis, and it depends on the significance of the problem. [T]he factory had two repair attempts at it, one out in the field, and I'm looking for a third attempt."
As plaintiffs, it was the Libertos' burden to convince the jury that the "failure, if any, of Fleetwood or Ancira to comply with an express warranty for the motor home [was] a producing cause" of their damages. The express warranty does not state a limited number of repair attempts, and the Libertos testified it was their decision to decline Fleetwood's offer to make the repair. On this record, we cannot conclude the jury's decision was against the great weight and preponderance of the evidence.
CONCLUSION
We affirm the trial court's judgment.