Billy Gene HALL, Petitioner, v. MOCKINGBIRD AMC/JEEP, INC., Respondent, 592 S.W.2d 913

PER CURIAM. Billy Gene Hall sued Mockingbird AMC/Jeep for the statutory penalties provided for by

Article 5069-8.01. Hall alleged that Mockingbird had illegally inserted a waiver clause into a retail installment contract, in violation of

Article 5069-7.-07(6). More specifically, Hall complained that the inclusion of the waiver clause in a service agreement issued contemporaneously with the execution of a retail installment agreement so infringed upon the rights granted to him by the Texas Consumer Credit Code as to justify the imposition of the statutory penalty, even though the clause was not contained in the retail installment agreement. Hall further claimed that the contemporaneous issuance of the service agreement constructively made it a part of the retail installment agreement, thus violating the express provisions of

Article 5069-7.07(6). Based upon the

summary judgment proof, the trial court found that the uncon-troverted facts established that the service agreement was, in fact, a part of the retail installment agreement. Accordingly, the trial court granted Hall’s motion for

summary judgment on his claim under

Article 5069-8.01, and awarded him a statutory penalty of $1960.00 plus attorney’s fees of $550.00. Mockingbird filed no cross motion for

summary judgment in the trial court. The court of civil appeals found that Hall did not present such

summary judgment proof to entitle him to a

summary judgment On the basis that the service agreement was a part of the retail installment agreement. That court concluded that the two documents were not part of the same transaction, but were representative of two separate and independent transactions. Accordingly, the court reversed the trial court’s

summary judgment, and rendered judgment for Mockingbird. In Cowan v. Woodrum, 472 S.W.2d 749 (Tex.1971), this court faced a similar procedural question. In Cowan, the court of civil appeals had reversed the trial court’s

summary judgment and rendered a judgment for respondent even though respondent had filed no motion for

summary judgment in the trial court. This court held: The Court of Civil Appeals had before it only the issue of whether the motion for

summary judgment for Petitioners was improvidently granted. The appeal afforded no basis for a rendition of judgment for Respondent, and therefore the decision of the Court of Civil Appeals is in conflict with this Court’s opinion in Hinojosa v. Edgerton, Tex., 447 S.W.2d 670 (1969). We agree with the court of civil appeals that the

summary judgment evidence does not conclusively demonstrate that the two agreements were actually part of one retail installment agreement. The court of civil appeals correctly reversed the

summary judgment for Hall. The court of civil appeals erred, however, in rendering judgment for Mockingbird AMC/Jeep. In that regard, the opinion of the court of civil appeals is in conflict with Cowan v. Woodrum, supra. Accordingly, the writ of error is granted. Pursuant to Rule 483, Texas Rules of Civil Procedure, the judgment of the court of civil appeals is reversed in part and modified so as to order a general remand of the cause to the trial court for a trial of the issues. . Statutory references are to Vernon’s Texas Revised Civil Statutes Annotated. .

Article 5069-7.07 provides, in pertinent part: No retail installment contract or retail charge agreement shall:

(6) Provide that the buyer agrees not to assert against the seller or holder of any claim or defense arising out of the sale.