                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

                                                      §
    NEAL AUTOPLEX, INC. D/B/A                                          No. 08-12-00136-CV
    NEAL SUZUKI,                                      §
                                                                            Appeal from
                          Appellant,                  §
                                                                        153rd District Court
    v.                                                §
                                                                     of Tarrant County, Texas
    LONNIE R. FRANKLIN AND                            §
    WIFE LISA B. FRANKLIN,                                            (TC # 153-241082-09)
                                                      §
                          Appellees.

                                              OPINION

          Neal Autoplex, Inc. d/b/a Neal Suzuki appeals from a judgment awarding Lonnie R.

Franklin and his wife, Lisa, damages for a cash price violation. For the reasons that follow, we

affirm.

                                        FACTUAL SUMMARY

          This suit arises out of the purchase of a motor vehicle from Neal Suzuki. The undisputed

evidence showed that in June 2008, the Franklins purchased a new Suzuki Forenza.                         The

Franklins were finance customers and purchased the vehicle through a retail installment contract.

The total vehicle price (sticker price) listed on the Monroney label in the window was $16,464.

But the installment contract listed the cash price as $20,865 -- $4,401 over sticker price.1 The



1
  The cash price of the vehicle is listed at $22,012.81. However, that amount includes $1,147.81 in sales tax.
Therefore, the cash price minus the included sales tax is $20, 865.
Franklins subsequently sued the dealership alleging: (1) fraud; (2) negligence; (3) negligent

misrepresentation; (4) violation of Chapters 348 and 349 of the Texas Finance Code; (5)

violation of the Texas Deceptive Trade Practices -- Consumer Protection Act; and (6) negligent

hiring and retention, all arising out of their vehicle purchase. On October 31, 2011, the case was

tried to the bench. The Franklins testified that on June 21, 2008, they entered into an agreement

with the dealership to purchase the vehicle for the sticker price as part of a retail installment

contract. The agreement included a promise that their monthly installments would not exceed

$400 per month. According to owner Doug Neal, the dealership would have sold the same car to

any customer paying cash for the sticker price. He also testified that a customer who bargained

well would have likely purchased the vehicle for less than the sticker price.

       When the Franklins received their copy of the installment contract, they were surprised to

see that the cash price of the vehicle was listed at $20,865, making their monthly installments

$418.36 per month. Mr. Franklin called the dealership to inquire about the increased price and

was told that the finance company charged a $6,000 processing fee. The Franklins’ contract was

purchased by Santander U.S.A. (formerly known as Drive Financial), who financed the purchase

at an interest rate of 17.95% . Doug Neal confirmed that Santander charged the dealership a fee

of $6,087 to purchase the contract. Nevertheless, he claimed the increase was not due to the fee

charged by Santander but was simply due to the fact the Franklins “didn’t negotiate the best

deal.” Mr. Neal also testified that the dealership did not make a profit on the sale. Mr. Blevins,

an employee of Santander, testified that before financing a deal, someone from Santander calls

the applicant (in this case the Franklins) to verify the terms of the contract. According to

Blevins, he contacted the Franklins for a customer interview in July 2008 and went through all

the details of the contract, including the purchase price and monthly payments. He referred to



                                               -2-
the $6,087 purchase price as a discount fee. According to him, it is illegal for a dealership to

pass the fee on to the consumer. Sergio Padilla, a vice-president of Santander, pointed to

company records indicating that Mrs. Franklin called Santander sometime prior to September

2008. The notes stated:

        Customer said that the dealership told her that [Santander] charged her a $6,000
        processing fee. Customer was told that is incorrect.

        After hearing the evidence, the trial judge ruled that the Franklins failed to prove their

causes of action for fraud, negligence, negligent misrepresentation, deceptive trade practices, and

negligent hiring and retention, but ruled in favor of the Franklins on their cash price violation

claim, finding that Neal Suzuki violated Chapters 348 and 349 of the Texas Finance Code. The

court awarded statutory damages in the amount of $13,203 plus attorney’s fees in the amount of

$22,525.2 In the final judgment the trial judge also awarded conditional attorney’s fees in the

event of an appeal.

        The trial court entered findings of fact specifying that: (1) the “cash price” for the

vehicle on the date the Franklins signed the purchase documents was $16,464; (2) Neal Suzuki

sold the vehicle to the Franklins for $20,865; (3) Neal Suzuki charged the Franklins $4,401 more

than the cash price was because they were obtaining financing to purchase the vehicle; and (4) by

charging the Franklins more for the vehicle than they would have charged a cash customer for

the same vehicle, Neal Suzuki violated Sections 348.004 and 349.001 of the Texas Finance

Code.

        On appeal, Neal Suzuki argues there is no evidence, or alternatively, insufficient

evidence, to support a finding of a cash price violation. For reasons that follow, we affirm.



2
  The statutory damages award is three times the difference between the sales price (excluding applicable taxes),
$20,865 and the vehicle’s sticker price, $16,464.

                                                      -3-
                                  STANDARDS OF REVIEW

       In an appeal from a bench trial, the trial judge’s findings of fact have the same force and

effect as jury findings. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991);

Bledsoe Dodge, L.L.C. v. Kuberski, 279 S.W.3d 839, 841 (Tex.App.--Dallas 2009, no pet.),

citing Pulley v. Milberger, 198 S.W.3d 418, 426 (Tex.App.--Dallas 2006, pet. denied). Where,

as here, an appellant challenges the sufficiency of the evidence to support a trial court’s findings

of fact, we review them just as we would review the sufficiency of the evidence to support jury

findings. Bledsoe, 279 S.W.3d at 841. We review conclusions of law de novo and will uphold

the conclusions if the judgment can be sustained on any legal theory supported by the evidence.

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Bob Montgomery

Chevrolet, Inc. v. Dent Zone Companies, 409 S.W.3d 181, 187 (Tex.App.--Dallas 2013, no pet.).

       In conducting a legal sufficiency review, we view the evidence in a light favorable to the

trial court’s fact finding, crediting favorable evidence if a reasonable fact finder could, and

disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In reviewing the factual sufficiency of the evidence,

we examine all of the evidence, and we set aside a finding of fact only if it is so contrary to the

evidence as to be clearly wrong and unjust. Cameron v. Cameron, 158 S.W.3d 680, 683

(Tex.App.--Dallas 2005, pet. denied).

                                  CASH PRICE VIOLATION

       Under the Texas Finance Code, a “cash price” violation occurs when a retail seller

establishes a cash price for a vehicle and sells the vehicle for more than that established price.

TEX.FIN.CODE ANN. § 349.001(a)(West 2006); Collins v. Fred Haas Toyota, 21 S.W.3d 606, 607

(Tex.App.--Houston [1st Dist.] 2000, no pet.). The “cash price” of a vehicle is defined as “the



                                               -4-
price at which the retail seller offers in the ordinary course of business to sell for cash the goods

or services that are subject to the transaction.” TEX.FIN.CODE ANN. § 348.004(a)(West Supp.

2013); Collins, 21 S.W.3d at 607. “The underlying purpose of a cause of action for a cash price

violation is to prevent a dealership from charging a finance customer more than a cash customer

for the same vehicle.” Bledsoe Dodge, L.L.C. v. Kuberski, 279 S.W.3d at 842, citing Collins, 21

S.W.3d at 607.

       Appellant does not specify which findings are unsupported by evidence. Nor does it

address the evidence demonstrating that the price charged to the Franklins was more than the

sticker price of the vehicle and that the sticker price of the vehicle is the price charged in the

ordinary course of business. Instead, Appellant’s argument is based on the assertion that because

the Franklins were fully aware that they were agreeing to buy the vehicle for more than the

sticker price and agreed to pay the increased amount, no cash price violation occurred. This

ignores the fact that, even assuming the Franklins were fully aware of and agreed to the

increased price, the cash price of the vehicle is not defined as the price ultimately agreed upon or

stated in the contract. See Collins, 21 S.W.3d at 608. Rather, the cash price of the Franklins’

vehicle is the price Appellant offered to all customers in the ordinary course of business to all

customers. See id.

       The difference between the sticker price and the purchase price was more than a scintilla

of evidence showing that the price offered in the ordinary course of business was less than the

price ultimately charged to the Franklins. Viewing all evidence in the light most favorable to the

trial court’s decision, there is sufficient evidence to support the trial court’s finding that the

increase in price was due to the fact that the Franklin’s were financing the vehicle. The evidence

is therefore legally sufficient to support the trial court’s finding that a cash price violation



                                                -5-
occurred. The evidence is also factually sufficient. Appellant does not point to any evidence in

the record, nor do we find any, to demonstrate the price offered to customers in the ordinary

course of business was anything over the sticker price. In other words, the trial court’s findings

are not so contrary to the evidence as to be clearly wrong and unjust. We overrule the sole issue

and affirm the judgment of the trial court.


February 5, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




                                              -6-
