11097804 by liwenting

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									                                                                       FILED
                                                                       IN THE SUPREME COURT
                                                                       OF TEXAS
                                                                       12 January 31 P3:26
                                                                        BLAKE. A. HAWTHORNE
                                                                       CLERK
                                    No. 11-00978




                     IN THE SUPREME COURT OF TEXAS



                    IN RE NACHIAPPAN SUBBIAH MUTHUKUMAR,

                                    Relator.
______________________________________________________________________________

                   From the Court of Appeals for the Fifth District,
                                 Dallas, Texas
    _____________________________________________________________________

                      NISSAN NORTH AMERICA, INC.’S
            RESPONSE TO RELATOR’S MOTION FOR REHEARING
    _____________________________________________________________________




                                          1
                             Identities of Parties and Counsel

Relator:

Nachiappan Subbiah Muthukumar
9823 N. MacArthur Blvd., #1106
Irving, Texas 75063
(972) 409-7045

Respondent:

The Honorable King Fifer,
County Court at Law No. 2, Dallas County, Texas

Real Parties in Interest:

1.     Nissan North America, Inc. (“NNA”)

       Counsel for Nissan North America, Inc.:

       Jeffrey S. Patterson
       Giovanna T. Bingham
       L. Abigail Foreman
       Hartline Dacus Barger Dreyer LLP
       6688 N. Central Expy., Suite 1000
       Dallas, Texas 75206
       (214) 369-2100

2.     Bankston Nissan Lewisville

       Relator has not served Bankston Nissan Lewisville with process in the case pending in
       the County Court at Law No. 2 of Dallas County, Texas upon which this proceeding is
       based.




                                                 2
                                                            Table of Contents

Identities of Parties and Counsel..................................................................................................... 2

Table of Contents ............................................................................................................................ 3

Index of Authorities ........................................................................................................................ 4

Summary of Argument ................................................................................................................... 5

Argument ........................................................................................................................................ 5

           A.          Relator Does Not Raise Any New Evidence or Arguments in His
                       Motion for Rehearing. ............................................................................................. 5

           B.          The Trial Court Properly Applied the Law to the Facts of This Case. ................... 6

           C.          Relator Failed to Present Any Competent Evidence in Support of His
                       Request for Repurchase. ......................................................................................... 7

           D.          The vehicle is not defective and has not been subject to an
                       unreasonable number of repair attempts. ................................................................ 9

           E.          Case law does not support Relator’s request for repurchase. ............................... 10

           F.          Relator has failed to provide any competent evidence NNA was
                       grossly negligent. .................................................................................................. 11

Prayer ............................................................................................................................................ 12




                                                                          3
                                                        Index of Authorities

Cases

Coastal Transp. Co. v. Crown Cent. Pet. Corp., 136 S.W.3d 227, 231 (Tex. 2004) ................... 12

Fairfield Ins. Co. v. Stephens Martin Paving, L.P., 246 S.W.d 653, 667 (Tex. 2008) ................. 12

In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009) ........................... 6, 7

In re Jeffrey Cook, No. 10-0855 (Tex. Dec. 16, 2011) ................................................................... 6

Jones v. Nissan North America, Inc., 895 N.E.2d 303 (Ill. App. Ct. 2008).................................. 11

Tammi v. Porsche Cars North America, Inc., 536 F.3d 702 (7th Cir. 2008)................................ 10

Statutes

TEX. CIV. PRAC. & REM. CODE § 41.001 ...................................................................................... 12

Rules

TEX. R. CIV. P. 166a(c) ................................................................................................................... 8

TEX. R. EVID. 1002 .......................................................................................................................... 8

TEX. R. EVID. 702............................................................................................................................ 8

TEX. R. EVID. 801 ............................................................................................................................ 8

TEX. R. EVID. 802 ............................................................................................................................ 8




                                                                       4
                                    Summary of Argument

       Relator argues he is entitled to have his Petition for Writ of Mandamus re-heard because

this Court, the court of appeals, and the trial court, along with every other judicial forum before

which Relator has presented his case, failed to properly apply the law to the facts. All of the

evidence and law properly before this Court proves otherwise. Specifically, the subject vehicle

is not defective, NNA timely responded to Relator’s complaints regarding the vehicle, the

vehicle was not subject to an unreasonable amount of repairs, NNA complied with the terms of

its express warranty, and case law and evidence do not support Relator’s arguments to the

contrary.   Therefore, this Court properly denied Relator’s Petition for Writ of Mandamus,

including his request for repurchase of the subject vehicle, and should likewise deny Relator’s

Motion for Rehearing.

                                           Argument

A.     Relator Does Not Raise Any New Evidence or Arguments in His Motion for Rehearing.

       Relator fails to bring forth any new evidence or arguments in support of his Motion for

Rehearing. Instead, he merely reiterates the “evidence” and arguments raised in his Petition for

Writ of Mandamus and concludes he is entitled to relief which an Administrative Law Judge,

Small Claims Court, County Court at Law, Court of Appeals, and this Court have now denied

him. Relator may not agree with the outcome of his previous attempts to require NNA to

repurchase the subject vehicle, but that does not mean these decisions were erroneous. Relator

has repeatedly failed to prove otherwise. Accordingly, NNA requests this Court deny Relator’s

Motion for Rehearing.




                                                5
B.      The Trial Court Properly Applied the Law to the Facts of This Case.

        Relator claims the trial court “has not given any reason for denying the relief requested . .

.”1 and “abused its authority and has not considered the facts of this case, evidence or the

relevant state and federal laws.”2 To the contrary, as his Orders denying Plaintiff’s Motion for

Partial Summary Judgment and Motion for Summary Judgment state, Judge Fifer considered the

Motions, NNA’s Responses, the evidence, and arguments of counsel for NNA and Mr.

Muthukumar.3

        Relator likens the trial court’s conduct in this case to the conduct of the trial court in In re

Jeffrey Cook, No. 10-0855 (Tex. Dec. 16, 2011), which was recently decided by this Court.

Cook asked this Court to decide whether a trial court abused its discretion by issuing an order

granting a motion for new trial “based on all grounds in the motion.” In re Jeffrey Cook, No. 10-

0855, slip. op. at 1 (Tex. Dec. 16, 2011). While that appeal was pending, the judged who signed

the order resigned and the case was remanded. Id. The new judge then entered an order stating

the former judge’s ruling “should remain unchanged.” Id. This Court focused on whether the

second order was sufficiently specific in effectively granting the motion for new trial based on a

recent holding in another case “that a trial court’s failure to clearly state the reasons for setting

aside a jury verdict and for granting a new trial constitutes an abuse of discretion for which there

is no adequate remedy by appeal.” Id. at 3 (citing In re Columbia Med. Ctr. of Las Colinas, 290

S.W.3d 204, 214 (Tex. 2009). Similarly, in Columbia, a case which this Court cited in reaching


        1
           Relator’s Motion for Rehearing, p. 4.
        2
           Id. at p. 5.
         3
            See Order Denying Plaintiff’s Motion for Partial Summary Judgment and Order Denying Plaintiff’s
Motion for Emergency Relief, attached as Exhibits A and B, respectively, to Nissan North America, Inc.’s Response
to Relator’s Petition for Writ of Mandamus.


                                                       6
its decision in Cook, a successor trial court’s order simply stated it “reaffirmed” the original trial

court’s order, but failed to state specific grounds for doing so. In re Columbia, 290 S.W.3d at

206. Here, the issue is not whether a successor trial court’s order properly stated the grounds for

reaffirming an order issued by a predecessor trial court. Thus, In re Cook and In re Columbia

have no application here.

         Consequently, Relator’s claim that the trial court failed to properly apply the law to the

facts of this case is unsupported by the evidence and the case law cited by Relator in his briefing.

NNA, therefore, prays this Court deny Relator’s Motion for Rehearing.

C.       Relator Failed to Present Any Competent Evidence in Support of His Request for
         Repurchase.

         Relator claims he “presented 85 pages of evidence relating to the number and types of

repairs to the trial court.”4 Relator is presumably referencing documents he attached to his

Motion for Emergency Relief and Motion for Partial Summary Judgment, along with a table he

created and included in his Motion for Emergency Relief.

         Relator based his request for relief in his Motion for Emergency Relief, which included

repurchase of the subject vehicle, on his own interpretation of the repair records and purported

testimony he claimed he would introduce at trial. As NNA argued in its Response to Relator’s

Motion for Emergency Relief, the relief requested in the motion amounted to nothing more than

an attempt to impose liability on NNA without a trial on the merits or any summary judgment

order.       The trial court agreed and denied the Motion for Emergency Relief.5          Thus, any




         4
             Relator’s Motion for Rehearing, p. 5.
         5
             See Exhibit B to Response to Relator’s Petition for Writ of Mandamus.


                                                          7
“evidence” attached to the motion has no bearing here because it was not properly introduced at

the trial court.

        Following the trial court’s denial of Relator’s request for vehicle repurchase in the

Motion for Emergency Relief, Relator filed a Motion for Partial Summary Judgment requesting

the same relief, and attached and/or referenced additional “evidence” in support of his request.

NNA objected to all of the “evidence” attached to and/or referenced in Plaintiff’s Motion for

Partial Summary Judgment because such purported evidence consisted entirely of unauthentic,

uncertified, inadmissible hearsay records; controverted testimony of Relator, an interested

witness; the alleged opinions of unqualified mechanics; Relator’s summary of repair orders,

which was unsupported by documentary evidence; and the unfulfilled promise of affidavits

which Relator planned to produce prior to the hearing on his Motion for Partial Summary

Judgment. See TEX. R. CIV. P. 166a(c); TEX. R. EVID. 702, 801, 802, 1002. The trial court judge

sustained NNA’s objections to Relator’s summary judgment evidence.6

        Nevertheless, Relator claims this this Court should disregard all credible evidence

presented by NNA and instead urges it to rely on hearsay, conjecture and his interpretation of the

facts of this case, which are unsupported by any credible, documentary evidence. Accordingly,

NNA requests this Court deny Relator’s Motion for Rehearing, as all evidence properly before

this Court supports the denial of Relator’s Petition for Writ of Mandamus.




        6
             See Order Denying Plaintiff’s Motion for Partial Summary Judgment and Amended Final Summary
Judgment Order, attached as Exhibits A and F, respectively, to Nissan North America, Inc.’s Response to Relator’s
Petition for Writ of Mandamus. Specifically, Relator attached and/or referenced the same “evidence” in his Motion
for Partial Summary Judgment and Response to Nissan North America’s First Amended Summary Judgment. The
trial court sustained NNA’s objections to Plaintiff/Relator’s summary judgment evidence.


                                                       8
D.      The vehicle is not defective and has not been subject to an unreasonable number of
        repair attempts.

        The ALJ found no defect exists with respect to the subject vehicle.7 The Small Claims

Court found in favor of the defendant and against the Relator, ultimately ruling that Relator

should take nothing.8 The Honorable Judge Fifer dismissed all of Relator’s claims against

NNA.9

        Still, Relator argues there is “no room for ambiguity” as to whether “[he is] entitled to

vehicle repurchase.”10 However, all competent evidence indicates the subject vehicle was timely

repaired within a reasonable number of attempts. Further, most of the repairs made to Relator’s

vehicle involved singular incidents of repair, and in some cases, could not be verified and/or

duplicated. More specifically, the vehicle’s steering wheel was aligned one time; the vehicle’s

brakes were repaired one time; the vehicle was found to need small adjustments to its alignment

twice; and Relator reported a concern about the air conditioner to NNA or an authorized

dealership a single time, but the technicians found the air conditioner worked properly upon

testing it.11

        Moreover, the vehicle does not present a “serious safety hazard” as Relator claims.12

“The vehicle does not pull to the right or jump . . . [T]he vehicle’s movement is not to a single



        7
           See Proposal of Administrative Law Judge on Relator’s Lemon Law Complaint, attached as Exhibit C to
Nissan North America, Inc.’s Response to Relator’s Petition for Writ of Mandamus, p. 9.
         8
            See Judgment issued in the Small Claims Court, Precinct Three, Denton County Texas, attached as
Exhibit D to Nissan North America, Inc.’s Response to Relator’s Petition for Writ of Mandamus.
         9
            See Amended Final Summary Judgment Order, attached as Exhibit F to Nissan North America, Inc.’s
Response to Relator’s Petition for Writ of Mandamus.
         10
            See Relator’s Motion for Rehearing, p. 6.
         11
            See Proposal of Administrative Law Judge on Relator’s Lemon Law Complaint, attached as Exhibit C to
Nissan North America, Inc.’s Response to Relator’s Petition for Writ of Mandamus, p. 9.
         12
            See Relator’s Motion for Rehearing, p. 6.


                                                      9
side. The evidence shows the vehicle drifts . . . as all vehicles do when a driver is not holding

the steering wheel.”13

        Thus, the subject vehicle has not been subject to an unreasonable number of repairs; is

not defective; and does not present a serious safety hazard. As a result, Relator is not entitled to

repurchase of the subject vehicle.

E.      Case law does not support Relator’s request for repurchase.

        Relator contends NNA improperly interpreted case law referenced in his Petition for Writ

of Mandamus in support of his argument for repurchase. Specifically, he argues “[t]hese cases

do not merely show . . . that the ‘case was settled or otherwise resolved.’”14 Relator only cited

Tammi v. Porsche Cars North America, Inc., 536 F.3d 702 (7th Cir. 2008), a federal court case

from Wisconsin. This case, again, does not support Relator’s argument that he is entitled to

repurchase in this case pending in Texas state court.

        In his Motion for Rehearing, Relator references “the Jefferson county (Texas)” cases

which purportedly “settled . . . in accordance with the provisions of the Magnusson Moss

Warranty Act.”15 Relator did not cite to any cases out of Jefferson County in his Petition for

Writ of Mandamus and did not provide a case name or citation to any such cases in his Motion

for Rehearing. Regardless, any opinion issued by the Jefferson County court is not controlling

precedent in this Court. Moreover, whether any case decided in Jefferson County states the

Magnuson-Moss Warranty Act “‘encourages independent settlement’”, as Relator claims, has no



        13
           See Proposal of Administrative Law Judge on Relator’s Lemon Law Complaint, attached as Exhibit C to
Nissan North America, Inc.’s Response to Relator’s Petition for Writ of Mandamus, p. 9.
        14
           See Relator’s Motion for Rehearing, p. 6.
        15
           See Relator’s Motion for Rehearing, p. 6.


                                                     10
bearing on whether Relator is entitled to repurchase of the subject vehicle or rehearing of his

Petition for Writ of Mandamus.16

       Finally, Relator cites this Court to a case titled Jones v. Nissan North America because it

“discusses[es] the purpose and scope of the [Magnuson-Moss Warranty Act]”.17 Relator failed

to provide a case cite, but NNA believes he is referring to Jones v. Nissan North America, Inc.,

895 N.E.2d 303 (Ill. App. Ct. 2008). The issue in that case was whether the plaintiff properly

utilized Nissan North America, Inc.’s informal dispute resolution procedure prior to filing a

lawsuit. That is not the issue in this case. Thus, like the other cases cited by Relator, Jones has

no application here.

       In sum, Relator has failed to provide any holdings, principles of law or analysis from

other cases which support his conclusion that he is entitled to rehearing of his Petition for Writ of

Mandamus and/or repurchase of the subject vehicle. Therefore, NNA request this Court deny

Relator’s Motion for Rehearing.

F.     Relator has failed to provide any competent evidence NNA was grossly negligent.

       Relator claims NNA’s argument that it honored the New Vehicle Limited Warranty is

erroneous because NNA was “grossly negligent in responding to [his] repeated attempts to either

repair or replace the car.”18 To prove NNA acted with gross negligence, Relator must prove: (a)

when viewed objectively from NNA’s standpoint at the time the Versa was purchased, NNA’s

alleged acts and/or omissions involved an extreme degree of risk, considering the probability and

magnitude of the potential harm to others; and (b) NNA had actual subjective awareness of the


       16
          See id. at p. 7.
       17
          Id.
       18
          See Relator’s Motion for Rehearing, p. 7.


                                                      11
alleged risk involved, but nevertheless, proceeded with conscious indifference to the rights,

safety, or welfare of Relator. TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A), (B); Fairfield Ins.

Co. v. Stephens Martin Paving, L.P., 246 S.W.d 653, 667 (Tex. 2008); Coastal Transp. Co. v.

Crown Cent. Pet. Corp., 136 S.W.3d 227, 231 (Tex. 2004). Relator has failed to complain of, let

along bring forth competent evidence proving, any conduct by NNA which meets either of these

elements.

         To the contrary, all competent evidence proves NNA honored its limited express

warranty for the 2009 Nissan Versa by covering repairs to certain component parts during the

applicable time period.19 The ALJ in the Lemon Law case specifically confirmed “[NNA]

complied with its warranty with respect to this vehicle.”20 Relator’s argument otherwise is

spurious and has no basis in law or fact.

                                                      Prayer

         WHEREFORE, PREMISES CONSIDERED, Nissan North America, Inc. respectfully

requests this Court deny Relator’s Motion for Rehearing; and for all other relief, both at law and

in equity, to which NNA may be entitled.




         19
            See New Vehicle Limited Warranty for the subject vehicle, attached Exhibit I to Nissan North America,
Inc.’s Response to Relator’s Petition for Writ of Mandamus, at p. 4. For Relator’s specific complaints related to the
Versa’s alignment, NNA’s new vehicle warranty covers “[s]ervice adjustments not usually associated with the
replacement of parts, such as wheel alignment” for the first 12 months or 12,000 miles, whichever occurs first. Id. at
5. See also Proposal of Administrative Law Judge on Relator’s Lemon Law Complaint, attached as Exhibit C to
Nissan North America, Inc.’s Response to Relator’s Petition for Writ of Mandamus, p. 9.
         20
            Proposal of Administrative Law Judge on Relator’s Lemon Law Complaint, attached as Exhibit C to
Nissan North America, Inc.’s Response to Relator’s Petition for Writ of Mandamus, p. 9.




                                                         12
                                     Respectfully submitted:


                                      /s/ Jeffrey S. Patterson
                                     JEFFREY S. PATTERSON (Attorney in Charge)
                                     State Bar No. 15596700
                                     GIOVANNA TARANTINO BINGHAM
                                     State Bar No. 24042613
                                     L. ABIGAIL FOREMAN
                                     State Bar No. 24056371
                                     HARTLINE DACUS BARGER DREYER LLP
                                     6688 North Central Expressway, Suite 1000
                                     Dallas, TX 75206
                                     (214) 369-2100
                                     (214) 369-2118 - facsimile

                                     ATTORNEYS FOR DEFENDANT
                                     NISSAN NORTH AMERICA, INC.




                               CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document has been
forwarded to all counsel of record via Certified Mail, Return Receipt Requested and electronic
mail on this 31st day of January 2012.

Muthukumar Nachiappan Subbiah
9823 N. MacArthur Blvd., Apt. 1106
Irving, TX 75063


                                            /s/ Jeffrey S. Patterson




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