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Toshiba Machine Co.11/10/2005
SPM accepted the BMC-800. In its second issue, Toshiba argues that there is no evidence to support the jury's finding that SPM revoked its acceptance of the BMC-1000, and there is conclusive evidence that SPM accepted the BMC-800. The gist of Toshiba's argument is that SPM's extensive use of the BMC machines--17,000 hours of use over four years--constitutes acceptance and precludes revocation of acceptance as a matter of law. We disagree.
a. Standards of Review
(a) No Evidence
We review the jury's finding that SPM revoked its acceptance of the BMC-1000 under the "no evidence" standard. In determining a "no evidence" issue, we are to consider only the evidence and inferences that tend to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001); Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). Anything more than a scintilla of evidence is legally sufficient to support the finding. Cont'l Coffee, 937 S.W.2d at 450; Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002). A "no evidence" issue may only be sustained when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999).
(1) Matter of Law
We review the jury's failure to find that SPM accepted the BMC-800 under the "as a matter of law" standard. When an appellant attacks the legal sufficiency of an adverse answer to an issue on which he had the burden of proof, the appellant must overcome two hurdles. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991). First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). The issue should be sustained only if the contrary proposition is conclusively established. Dow Chem., 46 S.W.3d at 241-42.
b. Analysis
Where goods fail to conform to the contract, the buyer may reject or accept the goods. TEX. BUS. & COM. CODE ANN. § 2.601 (Vernon 1994). A buyer's rejection or acceptance of nonconforming goods determines the remedies available him. Id. §§ 2.711, 2.714 (Vernon 1994); Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576 (Tex. 1991) (op. on reh'g); Paul Mueller Co. v. Alcon Labs., Inc. 993 S.W.2d 851, 855 (Tex. App.--Fort Worth 1999, no pet.).
A buyer accepts goods if he agrees to accept them despite their nonconformity, fails to make an effective rejection, or does any act inconsistent with the seller's ownership. TEX. BUS. & COM. CODE ANN. § 2.606 (Vernon 1994). Where a buyer accepts goods with knowledge of a non-conformity, the buyer may not revoke acceptance unless the acceptance was made on the reasonable assumption that the
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