
      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. 2007(538,473; 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.

      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 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 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.(Houston [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.(Houston [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  (goods(  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.(Corpus
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.(Galveston 1952, no writ).   Moreover,
if the goods are non-conforming, the buyer also has (an  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 (sale( 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) ((A (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., (a 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.  Alamo  Cas.  Co.  v.
William Reeves & Co., 258 S.W.2d 211, 214 (Tex.Civ.App. 1953, no  writ)  ((A
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  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.(Dallas  2004,  pet.  denied);
David v. Gonzales, 235 S.W.2d 221, 222 (Tex.Civ.App.(Fort 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)
((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,
writ ref(d) ((When an individual purchases a car  sight  unseen,  they  have
(the 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  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.(Amarillo 2006, pet. denied)  (citing  Tex.  R.
App.  P.  38.1(h));  Jordan  v.  Jefferson  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.



                                       Patrick A. Pirtle
                                             Justice
-----------------------
      [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.

      [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
(extremely rough( and (had been hit hard.(  Hayes  testified  the  Montero(s
condition was (actually rougher than the pickup( and had  been  rolled.   He
also estimated neither vehicle had any value, commercial, or otherwise.

      [4]((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  ((
___( or (section ___.(

      [5](Goods  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]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.(Houston [1st Dist.] 1986, no writ),  the  facts
of this cause do  not  establish  a  valid  and  complete  transfer  of  the
ownership of any vehicle.


