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Nickols v. Oasis Remarketing, LLC

Court of Appeals of Texas, Fourteenth District

May 31, 2018

ALIZABETH NICKOLS, Appellant
v.
OASIS REMARKETING, LLC, D/B/A DISCOVERY AUTO ENTERPRISE, Appellee

          On Appeal from the 234th District Court Harris County, Texas, Trial Court Cause No. 2016-11376

          Panel consists of Justices Busby, Brown, and Jewell.

          MEMORANDUM OPINION

          Kevin Jewell Justice.

         Appellant Alizabeth Nickols appeals from a summary judgment granted to appellee Oasis Remarketing, LLC, d/b/a Discovery Auto Enterprise ("Oasis") on Nickols's claims under the Texas Deceptive Trade Practices Act ("DTPA"). We conclude that Oasis conclusively established its entitlement to summary judgment on limitations grounds and accordingly affirm the judgment.

         Factual Background

         We accept as true the following facts taken from Nickols's live petition or her response to the motion for summary judgment.[1]

         On November 30, 2011, Nickols purchased a used Volkswagen automobile from Oasis. The car came with a limited warranty that expired at either 100, 000 miles or five years from the date of purchase, whichever occurred first. The warranty agreement was between Nickols and Auto Service Company, Inc. ("ASC"). When Nickols took possession, the car's odometer read 75, 276 miles. As of December 1, 2015, the car's odometer read 89, 978 miles.

         ASC paid for various repairs until August 17, 2015, when Nickols sought warranty coverage for additional repairs but was denied. ASC refused to pay for additional repairs because the warranty agreement limited repair payments to the car's "NADA loan value, " and as of August 2015 ASC had paid in excess of $800 over the loan value. ASC cited text in the warranty agreement stating:

         LIMITS OF LIABILITY

         IN NO CASE SHALL THE TOTAL OF ALL REPAIRS PAID OR PAYABLE EXCEED THE NADA LOAN VALUE OR VEHICLE PURCHASE PRICE, WHICHEVER IS LESS AT THE TIME OF REPAIR(S).

         The copy of the warranty agreement in Nickols's possession since the date of purchase was incomplete and did not show the limitation of liability language.

         Procedural Background

         Nickols filed suit against Oasis on February 23, 2016. Nickols alleged that Oasis orally assured her when she bought the car that the warranty would protect her for five years. Nickols further contended she would not have bought the car if Oasis had told her that the warranty coverage for repairs was limited by the declining value of the car. She asserted a claim under the DTPA, alleging that Oasis committed three acts specifically prohibited under the act. See Tex. Bus. & Com. Code § 17.46(b)(12), (20), (24).[2] She also alleged that Oasis's conduct was unconscionable.

         Oasis answered and asserted a counterclaim for attorneys' fees under Texas Business and Commerce Code section 17.5052, relating to ...


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