                                  NO. 07-09-0086-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  FEBRUARY 9, 2010

                         ______________________________


                          JESSIE R. ROMERO, APPELLANT

                                           V.


              SCOGGIN-DICKEY CHEVROLET-BUICK, INC., APPELLEE

                       _________________________________


            FROM THE 237th DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2007B538,473; HONORABLE SAM MEDINA, JUDGE

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant, Jessie R. Romero, appeals from a judgment rendered against Appellee,

Scoggin-Dickey Chevrolet-Buick, Inc., following a bench trial of Romero=s breach of

contract claim. Presenting a single issue, Romero asserts the trial court erred by finding

Scoggin-Dickey had a right to inspect and reject Romero=s trade-in vehicles after the
parties executed a contract wherein he agreed to trade in two vehicles as a part of the

purchase price of a 2006 Silverado pickup. We affirm.


                                              Background


        On December 23, 2006, Romero went to the Scoggin-Dickey dealership in Lubbock,

Texas, and sought to purchase a 2006 Silverado pickup from Fred Morales. Romero

proposed to purchase the pickup by assigning the dealership the factory rebates, supplying

two trade-in vehicles (a 2003 Mitsubishi Montero SP and a 2002 Chevrolet Silverado

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 Scoggin-Dickey agreed to sell Romero the 2006 Silverado pickup for

$21,888.1 In return, Romero agreed to trade in two vehicles having a combined net value

of $15,000,2 assign factory rebates totaling $3,000, and pay $4,333.52 in cash.




        1
        The contract order contained the following provision:

        Purchaser agrees that this Order includes all of the terms and conditions on both the face and
        reverse side hereof, that this Order cancels and supersedes any prior agreement and as of
        the date hereof comprises the complete and exclusive statement of the terms of the
        agreement relating to the subject matters covered hereby. . . .
        2
          The value of the Montero was estimated at $8,000 and the value of the 2002 Silverado pickup was
estimated 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.


                                                      2
        Romero paid the cash, assigned the rebates, and took possession of the 2006

Silverado pickup. At that time, Romero did not deliver the trade-in vehicles to Scoggin-

Dickey, nor did Scoggin-Dickey transfer title to the 2006 Silverado pickup to Romero.

Subsequently, Romero showed Morales the location of the Montero. After several weeks

passed, Romero informed Morales that the 2002 Silverado pickup was located at a body

shop. The pickup was not in running condition and was eventually towed by wrecker to

Scoggin-Dickey.


        After inspecting the trade-in vehicles, Scoggin-Dickey determined the Montero and

2002 Silverado pickup had little, or no, commercial value.3 Thereafter, Scoggin-Dickey took

back the 2006 Silverado pickup and made two settlement offers to Romero pertaining to a

partial refund of his down payment. Romero rejected the offers and filed suit.


        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


        3
         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 had
any commercial value because both vehicles were severely damaged, critical parts were missing, replacement
body parts from older vehicles had been installed, tires were worn out, and the 2002 pickup=s body was not
completely straightened. David Brown, an expert, estimated the 2002 pickup had a value of $1300. Tom
Hayes, owner of Hayes Motor Company, testified the condition of the 2002 pickup was Aextremely rough@ and
Ahad been hit hard.@ Hayes testified the Montero=s condition was Aactually rougher than the pickup@ and had
been rolled. He also estimated neither vehicle had any value, commercial, or otherwise.

                                                       3
never passed from the dealership to Romero; the parties should be returned to the position

held by each just prior to the transaction, except for allowable expenses; and Scoggin-

Dickey had a right to possession of the 2006 Silverado pickup.


       The trial court filed its judgment ordering Scoggin-Dickey to pay Romero $4,133.52

(his original down payment 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.


                                        Discussion


       By a single issue, Romero asserts the trial court erred in its finding that Scoggin-

Dickey had a right to inspect and reject the trade-in vehicles after the contract order had

been executed. In support, Romero argues that: (1) Scoggin-Dickey had no legal right to

inspect and/or reject the trade-in vehicles after the contract order was executed; (2) after

inspection, Scoggin-Dickey did not have a right to reject the vehicles tendered; (3) Scoggin-

Dickey unconditionally sold the 2006 Silverado pickup to Romero when the contract order

was executed; and (4) Romero=s damages 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 sustained on any legal theory supported by the evidence. BMC


                                             4
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). See Milton M.

Cooke Co. v. First Bank and Trust, 290 S.W.3d 297, 302 (Tex.App.BHouston [1st Dist.]

2009, no pet.). Further, in a bench trial, the trial court, as fact finder, is the sole judge of the

credibility of witnesses. Munters Corp. v. Swissco-Young Industries, Inc., 100 S.W.3d 292,

296 (Tex.App.BHouston [1st Dist.] 2002, pet. dism=d).                      The judge may take into

consideration all the facts and surrounding circumstances in connection with the testimony

of each witness and accept or reject all or any part of that testimony. Id. Where the

testimony on an issue is conflicting, we accord due deference to the trial court. Id. at 299.


        II.     Right to Inspect


        Motor vehicles are included in the broad definition of Agoods@ as defined in the Texas

version of the Uniform Commercial Code.4 First National Bank of El Campo, TX v. Buss,

143 S.W.3d 915, 920 (Tex.App.BCorpus Christi 2004, pet. denied). And, unless the parties

agree otherwise, a buyer has a right to inspect goods identified to a contract for sale at any

reasonable place and time and in any reasonable manner prior to payment or acceptance

of the goods. ' 2.513. This is an implied condition in all contracts for sale. Commissioner

of Internal Revenue v. East Coast Oil Co., S.A., 85 F.2d 322, 323 (5th Cir. 1936), cert.

denied, 299 U.S. 608, 57 S.Ct. 234, 81 L.Ed. 449 (1936). See Owl Trading Co. v. United

Appliance Co., 246 S.W.2d 342, 344 (Tex.Civ.App.BGalveston 1952, no writ). Moreover, if


        4
         A>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 provisions
of the Texas Business and Commerce Code will be simply as A' ___@ or Asection ___.@


                                                      5
the goods are non-conforming, the buyer also has Aan absolute right to reject.@ Id.5 Thus,

the trial court correctly held, as a matter of law, that Scoggin-Dickey had a right to inspect

Romero=s trade-in vehicles to 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.


       Further, contrary to Romero=s assertion, execution of the contract order did not

constitute a Asale@ because there was no present transfer of ownership of the 2006

Silverado pickup to Romero or a transfer of ownership of the two trade-in vehicles in full

payment of the purchase price to Scoggin-Dickey. See ' 2.106(a) (AA >sale= consists in the

passing of title from the seller to the buyer for a price.@). Rather, the contract order was a

contract for sale, i.e., Aa 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.BAustin 1964, no

writ) (a sale Awherein 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. Alamo Cas. Co. v. William Reeves & Co., 258

S.W.2d 211, 214 (Tex.Civ.App. 1953, no writ) (AA test of true ownership as fixed by Texas

courts is set forth as being a legal right to compel the assignment and transfer of the




       5
        AGoods or conduct including any part of performance are >conforming= or conform to the contract
when they are in accordance with the obligations under the contract.@ ' 2.106(b).


                                                  6
certificate of title to a vehicle.@).6 Under these facts, the trial court could conclude that the

parties intended that vehicle ownership 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.BDallas 2004, pet. denied); David v.

Gonzales, 235 S.W.2d 221, 222 (Tex.Civ.App.BFort Worth 1950, writ dism=d).


        Romero and Scoggin-Dickey were both buyers and sellers. Romero was selling his

two trade-in vehicles to Scoggin-Dickey and, in return, the dealership was selling the 2006

Silverado pickup to Romero. See ' 2.304(a) (AIf [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. BSan

Antonio 1914, writ ref=d) (AWhen an individual purchases a car sight unseen, they have Athe

undoubted right, the contract being executory, to inspect the car and see if it met the

contract specifications.@).


        Romero fails to cite any statutory or case law in support of his assertion that the trial

court=s judgment should be reformed to increase his damages to the market value of the


        6
        Although, under Texas law, non-compliance with the Certificate of Title Act does not override a clear
showing of a valid and complete transfer of ownership of a vehicle; Najarian v. David Taylor Cadillac, 705
S.W.2d 809, 811-12 (Tex.App.BHouston [1st Dist.] 1986, no writ), the facts of this cause do not establish a valid
and complete transfer of the ownership of any vehicle.

                                                       7
2006 Silverado pickup and award additional attorney fees. Accordingly, this contention is

insufficiently briefed and, therefore, waived. See White v. Baptist St. Anthony=s Hosp., 188

S.W.3d 373, 374 (Tex.App.CAmarillo 2006, pet. denied) (citing Tex. R. App. P. 38.1(h));

Jordan v. Jefferson County, 153 S.W.3d 670, 676 (Tex.App.CAmarillo 2004, pet. denied).

Romero=s single issue is overruled.




                                       Conclusion


       The trial court=s judgment is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice




                                             8
