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Nasrallah v. Nguyen

Court of Appeals of Texas, Fifth District, Dallas
Aug 4, 2004
No. 05-02-00781-CV (Tex. App. Aug. 4, 2004)

Opinion

No. 05-02-00781-CV

Opinion issued August 4, 2004.

On Appeal from the County Court at Law No. 1, Dallas County, Texas, Trial Court Cause No. cc-00-14030-b.

Affirmed.

Before Justices BRIDGES, FRANCIS, and LANG-MIERS.


MEMORANDUM OPINION


Chris Nasrallah d/b/a Kut Auto Sales and Dallas County Auto Salvage appeals the trial court's judgment awarding Johnny P. Nguyen damages on his breach of contract, deceptive trade practices, and fraud claims. In three issues, Nasrallah argues the language of the contract eliminates Nguyen's claim for the delivery of certain auto parts, Nguyen was not entitled to recover storage fees, and the trial court erred in awarding damages in excess of the amount of the contract. We affirm the trial court's judgment.

On January 23, 2000, Nguyen agreed to purchase a wrecked automobile from Nasrallah, and Nasrallah would convey a blue title and the parts necessary to repair the car for $8000. Nguyen gave Nasrallah a check for $1000 as a deposit. On January 26, Nguyen paid $5000 and still owed $3000 because part of the agreement was that the $1000 check was for deposit only and was not to be cashed. On January 31, Nguyen paid the remaining $3000 to pay for the parts to repair the car. On the sales receipt were the notations "complet [sic] car with parts," "car is sold AS IS," and the phrase "blue title." Immediately following the purchase, Nguyen had the car towed to a body shop. Nasrallah said he would give the title to Nguyen in two weeks, and the parts would be coming in two hours. However, Nguyen waited until Nasrallah's shop closed, and the parts did not arrive. Nasrallah told Nguyen to come back the next day. For two weeks, Nguyen returned to Nasrallah's place of business, but Nasrallah never delivered either the title or the parts.

Nguyen ultimately filed suit against Nasrallah, alleging a claim under the Texas Deceptive Trade Practices — Consumer Protection Act (DTPA) and claims for fraud and breach of contract. Nasrallah filed an answer containing a general denial of the allegations in Nguyen's original petition. Following a trial before the court, the trial court entered judgment in favor of Nguyen for $8525, plus pre- and post-judgment interest and court costs. This appeal followed.

In his first issue, Nasrallah argues the language of the parties' contract eliminates Nguyen's claim against Nasrallah for failing to deliver the parts necessary to repair the car. Specifically, Nasrallah relies on the "as-is" language in the contract as proof that Nguyen was purchasing the car with no extra parts, labor, or equipment. However, Nguyen did not base his claims on a failure by Nasrallah to convey the car as it was at the time of their agreement. Nguyen's claim was that Nasrallah failed to convey a blue title and the additional parts needed to repair the car. Thus, this is not an "as-is" case. See Prudential Ins. v. Jefferson Assocs., 896 S.W.2d 156, 163-64 (Tex. 1995). On the contrary, this case involves Nguyen's claims for breach of contract for Nasrallah's failure to furnish parts and a clear title. We overrule Nasrallah's first issue. In his second issue, Nasrallah argues the trial court erred in awarding fees for storage of the car when the evidence shows Nguyen did not pay any storage fees, and the mechanic alleging a storage lien failed to comply with the Texas Property Code in asserting such a lien. However, even taking Nasrallah's assertions as true, the issue is not whether Nguyen has paid for storage or whether the mechanic has asserted a proper lien. Instead, the issue is whether the storage fees have accrued and whether they are consequential damages of Nasrallah's breach of contract. Consequential damages resulting from a seller's breach of contract include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise. Tex. Bus. Com. Code Ann. § 2.715(b) (Vernon 1994). The record is clear that Nguyen will not be able to reclaim the car until the storage fees are paid. The testimony at trial showed the storage fee is $10 per day since January 26, 2000. It appears that the need to repair the car was well known to Nasrallah, and the fees for storage accrued because Nasrallah breached the contract in failing to deliver the parts necessary to repair the car and a clear title. Under these circumstances, we cannot conclude the trial court erred in awarding storage fees to Nguyen. We overrule Nasrallah's second issue.

In his third issue, Nasrallah argues the trial court erred in awarding damages in excess of the contractual limit of $8000 because the contract contains language limiting liability to the purchase price shown on the invoice. However, following a seller's breach of contract, a buyer may recover not only the contract price but also incidental or consequential damages. See Tex. Bus. Com. Code Ann. §§ 2.712(b); 2.715(b) (Vernon 1994). Further, Nasrallah's argument amounts to an attempt to avoid liability for the full range of damages by contending that his liability is predetermined and limited. See Borders v. KRLB, 727 S.W.2d 357, 360 (Tex. App.-Amarillo 1987, writ ref'd n.r.e.). Nasrallah did not plead this matter in the trial court and, therefore, cannot urge it here. Id. We overrule Nasrallah's third issue.

We affirm the trial court's judgment.


Summaries of

Nasrallah v. Nguyen

Court of Appeals of Texas, Fifth District, Dallas
Aug 4, 2004
No. 05-02-00781-CV (Tex. App. Aug. 4, 2004)
Case details for

Nasrallah v. Nguyen

Case Details

Full title:CHRIS NASRALLAH D/B/A KUT AUTO SALES AND DALLAS COUNTY AUTO SALVAGE…

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 4, 2004

Citations

No. 05-02-00781-CV (Tex. App. Aug. 4, 2004)