# Wayne Strand Pontiac-GMC v. Molina

> Court of Appeals of Texas · January 27, 1983 · 653 S.W.2d 45

URL: https://www.frixlaw.com/law-library/cases/9684912

## Case

- **Full name:** WAYNE STRAND PONTIAC-GMC, Et Al., Appellants, v. Juan MOLINA, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** January 27, 1983
- **Citations:** 653 S.W.2d 45; 1983 Tex. App. LEXIS 3940
- **Precedential status:** Published
- **Opinion:** On rehearing by Kennedy
- **Judges:** Bissett, Young, Kennedy
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684912

## Opinion text

OPINION ON MOTION FOR REHEARING
KENNEDY, Justice.
On motion for rehearing appellee asserts that this Court erred in ruling that its holding on appellants’ points of error two, three, seven and eight disposed of appellee’s cross-points of error one and two. Appellee’s cross-point of error one complains of the trial court’s submission of Special Issue No. 13. Special Issue No. 13 was submitted as follows:
“Do you find from the preponderance of the evidence that the Dealer had no written notice of Plaintiffs’ complaints of unlawful conduct, breaches of express or implied warranty, or any unconscionable course of action prior to suit being filed?”
Appellee’s equivocal objection before the trial court was that appellee could not and “was not entitled” to give notice due to a change in ownership after Mr. Molina refused to pick up the truck. Alternatively, appellee thought the issue too broad.
On appeal, however, appellee argues that the Uniform Commercial Code controls and that the buyer need only notify the seller as provided under Tex.Bus. & Com.Code Ann. § 2.607(c)(1) and § 1.201(26) (Tex.UCC) (Vernon 1968).
The objection leveled at trial addressed the necessity of notice under the factual circumstances, whereas on appeal there is a legal argument as to what constitutes proper notice. The appellant has thus failed to point out distinctly in his objection to the charge of the court the grounds which he asserts here. The defect is therefore waived. Rule 274, Tex.R.Civ.P. (Vernon 1976); Grutcher-Rolfs-Cummings, Inc. v. Ballard, 540 S.W.2d 380 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.), 433 U.S. 910 , 97 S.Ct. 2978 , 53 L.Ed.2d 1095 (1977). Appellee’s cross-point of error number one is overruled.
*51 Appellee s second cross-point of error requests this Court correct the trial court’s failure to include attorneys’ fees in the judgment, as found by the jury.
Appellee did not recover under either theory upon which he relied, and is therefore not entitled to attorneys’ fees. Harrison v. Dallas Court Reporting College, Inc., 589 S.W.2d 813, 817 (Tex.Civ.App.—Dallas 1979, no writ); Burnett v. James, 564 S.W.2d 407, 409 (Tex.Civ.App.—Dallas 1978, writ dism’d); see Rodriguez v. Jim Walter Homes, Inc., 624 S.W.2d 333 (Tex.App.— Corpus Christi 1981, no writ); Seitz v. Lamar Savings Association, 618 S.W.2d 142 (Tex.Civ.App.—Austin 1981, no writ). Ap-pellee’s cross-point of error number two is overruled.
Appellee’s motion for rehearing is OVERRULED.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684912. Public record. Not legal advice.