continental motors and in order to prevail on his breach of express warranty claims against financial happily ronald decker had to prove the following he had to prove that kind and all that engine component or part manufacture supplied by continental contained a defect in material or workmanship and he had to prove that continental refused to repair or replace any such defective engine component or part we would respectfully submit that the evidence is insufficient to support a finding on either of those essential elements and for that reason so something was wrong with that engine lesson plus some tests there is no doubt something was wrong with the engine the problem is they can't figure out what was the cause of the problem so why do you i mean what's your best case for it thing you have to prove the precise cause i think our best cases are the nissan the nissan motors mack trucks and cooper tire which are all admittedly product liability cases but then if you look at the life mr case which we cited out of the texas court of appeals in austin it is a breach of express warranty case it involves having to prove that there is a defect and in  material or workmanship and it relies upon the fact that you can't simply point to a product failure to say that that product failure was caused by a defect in material or workmanship so we would say that it's the trio of cases cited both of them are breach of the implied warranty of merchantability cases in which case for defect all you have to show is that the product doesn't is not fit for it's ordinary use it's a very different scenario than having to produce to produce evidence of a specific cause i e a defect in material or workmanship well you're someone from conall examine the engine at some point thought there were problems i don't know that any what he thought there were problems they they took the report to mr becker took his aircraft in to do gosh for routine maintenance didn't even remember after all this i was continental sent somebody out there there was oil coming out the tailpipe there was to actually leave their x i thought your guy we said to guy out there who went looked at the cylinders fourteen months after the aircraft had stopped being worked on and after was filed he found corrosion in the cylinders but as he testified the corrosion of the cylinders was from sitting too long without having been properly preserved and it had remained idle for fourteen months and in fact oh mr problems that the types of evidence where the engine is running rough the spark plugs are falling burning oil no doubt that is all evidence of a problem but that's not evidence of what is causing that problem and under texas law if you don't have evidence of what is causing that problem that is essentially no evidence so whether it's one element such as running rough or five different systems such as running rough sparkplugs falling as a supreme court s starting point for troubleshooting the problem was hold a cylinder sent into our folks look at the saw and they did that twice as warranty they did it twice both times that they repair the cylinder they send them back gushes folks won't solve the break exchange involving signing a document where the plaintiffs believe the plaintiff in this case has to authorize services or repair work and i'm quoting here from the language a also expressly creates a mechanic's lien which sounds at some point like what was considered to be warranty work is suddenly turns into work that's it's not  continentals warranty director testified what he told mr backer was yes if the repairs if we if our troubleshooting determines that read these repairs are not caused by a defect in material or workmanship you could be cylinder and cause the higher the problem which could have been revealed and you would have would not have been a warranty repair and so there's a good but but the fact that you worked on the cylinders two times doesn't in itself prove that there's a breach because it could again it could have been something it could have banned i mean i'm not detracting from the evidence here but that that it was rigged just the engine just required an adjustment of s s and i will take that one step further and i will tell you nobody's testified that the cylinders were defective at all the court came to that conclusion because it said that g m and rejected a died at it during the first repair but nobody testify that it rejected that they rejected the guy because the guy was defective in workmanship or materials it could have been defective because it was pulled it was damaged when it was pulled out and sent to g m we don't know why they replaced the guide and there's no evidence of  in this record why don't you move on to your breach argument ok i want to know specifically that there are two factual findings by the court that continentals failed to repair the defective engine or so my two questions are what are your best texas case is that enough time had not a lapse that you could you can't say as a matter of law or even a factual matter i guess reversed that as a matter of law you did not have enough time to  repair or replace we weren't to the point where and what your best case and also what your best case who are saying that when they ask him to sign that mechanically and thing that wasn't that didn't bring up everything to head such that now we're out of the repair replace option period with respect to the timing issue i would say our best case is the end rask right case actually out of this court which recognizes generally under texas law if timing of performance is is going to be a material term the contract has to say it's immaterial to or there has to be something in the nature and purpose of the contract and the surrounding circumstances to make it a material to here  far from the contract showing that time was of the essence and fixing it the warranties actually recognized that it was going to take time to troubleshoot to figure out what the problem was and whether a problem cell within the warranty is such that it was caused by a decent act in material or workmanship and not something else and i will tell you nobody testified that this was taking you know are going to long amount of time in fact sherman testified that he thought the progression was was for further troubleshooting becker agreed that that seemed like a path forward to solving the problems nobody's said that that was it in order to mount a time and they compare it to the mercedes case they say two out of texas where that case the party had brought in their vehicle to be repaired seven times over an eight month period and it was repair or wrongly every time you don't have that time frame here you don't have any evidence that there were any wrong repairs we don't know what the problem is we don't know if it was the cylinders if anything the fact that the cylinders were repaired put in there twice and didn't solve the problem tells you the problem probably comes from something else of course the glaring thing is not properly breaking in the cylinders as everybody admits the sill did break in procedure was not all so with respect to the timing argument was it not followed one the plane was first be engine was first delivered it was not followed after the cylinders were taken out ok so you had to read it you had to redo that every time we do the cylinders we took them out the first time it went back they didn't follow either path there's a ground run procedure and there's a test flight procedure the second part of the of the o the ground procedure around perceiving sorry i will get you the cite that they didn't run the col in the first time they followed i suspect that's what that's what i thought ok if they follow the second time they just wouldn't fly it well i can see why they didn't actually  the evidence was that while it was running rough during low power when it powered up high both sherman and mcclelland agreed that there it wasn't running rough anymore but regardless continental didn't push them to fly it they said the ninety three is the one becker was asked to execute the subject work order that was grounds for becker to reasonably conclude the cottonelle was no longer treating this is a warranty clyne and wasn't briefed to gorky i don't have a case for it i don't have the case telling me that by asking somebody to do something consistent with the terms of the warranty you can be found to have breached that warrant it although work or was as he was told is a case this is not covered he testified that nobody had told him up to that point that a decision had been made that there was a defect in material or workmanship and i would point you to the testimony of his expert when when was that  assigned to work or it was made in february twenty thirty in like the thirteenth or fourteenth he'd ever responded to it he went out and got a lawyer sent the d t p a letter is soon as we got the d t p a letter we picked up the phone and said look send us sunni and thanks same as your we're going here there's some testimony on the record that he was afraid that they were going to find come to the conclusion that it wasn't a defect in material and workmanship and he'd have no way of countering that because remember in the records i would just cite you really quick just back to the defect the evidence on it sherman could not specifically say what was wrong please not pinpoint a cause for the problems he reported and just did not know what the problem was that's eleven sixty seven to sixty nine and ronald pyles there is no smoking gun nobody has figured out why the engine was exhibiting the problems it was and neither he nor anybody else that render an opinion as to whether those problems were caused by a defect material or workmanship intil you knew more about what the problem was where you really is i mean you keep you know you keep saying extraordinarily high consumption of oil but then you have oil leaking here there and everywhere out of the plane through the arc plugs you know i mean something what kind of what my nine explanation non defective explanation can there be for those things that wasn't the original complaint the original c to this was there evidence of a defect the other every piece of it is did you timely offer to replay or replace and did you do what you're supposed to do simming their duty but what defect is that evidence of you keep saying they didn't take it out well i would have gotten on the argument that was advanced that what continental was doing was troubleshooting it was not troubleshooting they were processing this warranty claim when mr becker who bought a new engine specifically in reliance on the fact that he would have a warranty with it because he has to use a continental engine that's the engine that's proof for his plane by the f a a and he has a choice whether to buy a new engine a real used engine or a rebuilt engine he chooses a new engine and he testified that included the fact that there was a warranty so he's operating a new engine it only has three hundred thirty six hours on it and it's excessively consuming oil and he is an experienced pilot which we've got to look at and so  now claiming that what they were doing was troubleshooting when he reported the excessive oil do gosh the company was working on the plane or scope to the engine saw oil in the combustion chamber called up continental talk to their warranty department and the warranty department said finally warranty claims and he did continental told them to pull the cylinders and send it to gina aircraft that was selected by continental that's their people and the evidence was at trial that continental could no longer work on its own cylinders because it was moving its facility from new york to alabama and so it was using g n and the aircraft to do the work the continental would do itself and so continental picked g in an aircraft and said send the cylinders there got the facts and so on and they also testified that the warranty policy was very very lenient that's in the record of page fourteen seventy their corporate representative testified at trial that it says what it and i'm sorry on it says what it says it's a repair or replace warrant right but that their policy in terms of their complaints now that all we were doing was troubleshooting we had not  so info in the court was asking about the the the failure to do the performing the ground test on the second time so the first time the sellers were told there was a defect noted it was in the exhaust guide six cost exhaust guides were repaired the cylinders were sent back they were installed by do go in the court found finding a fact forty the court found that the cylinders were properly reinstalled the problem worsened the excessive consumption of oil which is a defect in the engine and prevents it from flying the excessive consumption of oil became worse the court so found and the magistrate found in finding number forty two that the engine was not airworthy after the property that the cylinders were properly reinstalled the second time and that the engine in finding fifty three was not airworthy it could not be flown and judge own it it is true in the record that they came up with this ground test and the ground test was performed and it failed and there's excessive oil and this was a contested issue a trial of the suggestion in the brief that the clearly erroneous standard doesn't apply because all the facts are not in dispute they were clearly in dispute they didn't even agree with the context of the leakage the blue smoke how much oil was in the tailpipe how much oil is in the the deck of the facility when this test yeah but discernible proof that the tailpipe has anything to do with what's although continental never inspected it they clearly build it and treated it as a claim they also asked mr sherman when he was doing the second installation to photograph it and sent the photographs to continental mr baiji did you correct me if i'm wrong but is is not the argument you're making that there is a presumption created that after tender and reasonable opportunity to repair it's almost like a recip saw an argument that that there must be a defect  given the history the factual history which there is in your brief in which you start out with that there is a presumption at some point absent some identification of a particular defect expert testimony or otherwise engines in the cylinders because they were unable to repair it and the condition actually worsened after the cylinder repair that was authorized in fact and i'd course we disagree that expert testimony was necessary we believe laid testimony is appropriate in a in a u c c claim the products cases we think are distinguished when we think we did that as well in the brief mr sherman who testified as a witness and at page eighty eight of the record the district court held he was an expert so we did not have to have expert testimony but the district magistrate judge found he was an expert based on training and experience he testified that he had eliminated all other possibilities and that there had to be a defect in material or the workmanship and that the reinstalled the cylinder who's doing the testing that's being requested by continental when it can be done when the aircraft is you know can't be flown they are involved he is photographing what he's doing there making no protest about that presumption arises that there is a defect in the materials or the workmanship mr becker himself also testified at trial this is the page seventeen twenty seven of the record he said i know that the engine is defective it's defective in terms of its materials it's defective in terms of the workmanship that had been done on it certainly by g m and others i'm not a mechanic but there's and there's been a lot of postulation that it's the cylinders and this and that what needs to go in to be repaired oil is showing up where it shouldn't be this is that seven hundred twenty eight it's normal to believe that there's something wrong with the cylinders that's the first place to look and i understood that and then he adds that at that point and then i'll and i'll just your question judge joan about the thought i don't see how you can hold that against continental they're trying to repair it they're trying to repair it but repairs and successful water ever off twice indycar said the next logical step is to send the engine back to continental air by agreed it was that was inappropriate ok now where it is where that's what i want to know there's a period of time here doesn't seem all that long for some reason it is do you have a case that says as a matter of law sinning that more corn i sent stop the process and and that's the and cotton no longer has the has the right to either kind of repair or replace the engine but i don't i don't have a kid with the medals to judge side of the case the southwest louisiana hospital association against b a s nine forty seven fed subsecond six six one western district of louisiana two thousand and thirteen he cited that in the findings and he pointed out of it in that case as here the company had authorized work to be done and had treated as warranty and then later on it said well those were just just years of good will here they were signed they were saying either it's troubleshooting or that they were just agreeing to do things like that's in the engine back and as i said in the engine back they said they said send the engine back and mr becker said that sounds like an appropriate thing and he never he never did anything other than continental told him that he was he was hardly in that all except he hired a lawyer and filed suit hired and he only hired a lawyer and filed suit after they sent him some client to stand up but his argument is that that notice was consistent with the warranty at i have a hard time seeing why it wasn't and i was and let me just add to this we know from the briefing what an a student careful man mr becker is and i'll bet you he could have thought to himself i can send it back i can get him to replace it and if they send me a bill that i'm going to sue him well what's in the record is that he was willing he thought and the magistrate judge he was reasonable and so thinking that they had been treating it as a warning claim all along they had done these were the work two times and had never buil he says can i see the work order he did not sound won't sign a work order he said can i see the work order he made and his testimony this is a page sixteen seventy one of the record he calls  the twenty ninth of january they said he must sign a work order and that they might get the engine and determine it wasn't their fault and then he would not and they would not be responsible and you're saying is a matter of law that that ended that continental with backing wife and the warranty and that they had no further right to repair or replace it that they were precluded at that point from saying that it would might not be a warning claim and they said and why because they had as in the southwestern louisiana hospital understand that line of that maybe louisiana law but i don't know that that's texas law about breach of warranty and i'm just the terms of the thing say repair or replacement i'm looking looking for this work order but the work order didn't save this is not covered by the warranty it just said the reporter said was if it's not covered by the warranty we get what you have to pay us and we're going to impose and we're imposing a lien on your if it's not covered by the with if it's not covered the house is saying it's not covered because in the because you testified and his testimony is that starting at six sixty nine through the seventy four of the record he testified that that was the first time that they told him it might not be covered ok five days later they say ok you don't have to sign the what's all they said was you don't have to sign the work or they did not retreat from their position that it might not no longer be tha how does that detract from the response duty under the warranty because as i said you know that g n mind of drop bubble gum in the in one of the cylinders accidentally which would clearly not be a warranty repair or maybe you know a mouse that got his tail stuck in it or something like that you know there there are circumstances under which repair like that would not have been covered  our rights that's not denial of coverage and that's that's why i was stressing at the beginning the fact that they testified that their warranty policy was very lenient the magistrate judge as their corporate represented a trial a page fourteen thousand and seventy fourteen sevent no require that a part be sent to it to verify a defect and they said no not really we have a very lenient warranty policy we sometimes pay warney claims before we even receive the documentation so we have months here where they have documented it as warnie claim mr becker is not i wasn't the point since five days after they said ok you don't have to sign the one thing although i did they why did mr becker not go ahead and send the engine and let them do warranty work one one because all they had said was you don't have to sign the form and of course the the problem with the form is it says you could impose an aircraft's mechanics and you don't have a sign that i did not say we agree it's a warranty item and i don't have to say that no there's no i think they did have to say that because of the course of conduct and that's what the magic well give me your best case that says that from texas law front a to i do not have a texas case ok i agree and but that was my point is that they did he and testimonies that page six hundred seventy five of the record did he tell them after he got after they said you don't have to sign the work or he said i'm not going to send you the engine no what he did was they sent the d t p a letter and then he called mr becker called the warranty representative for continental roger great deal and mr graydon said all further communications must be through now the purpose of the d t p a letter in the sixty days you can't or what did the us say yeah but at this point the attorneys at the agents for the parties so what are the letters saying i believe that well i don't i don't want to miss side the record i know  five thousand tourney's fees and two hundred thousand dollars to cover the cost of the and sharon and so on which or not when i start all or it would if he made a hard nosed demand or i made a soft demand where he said i'm representing him but we just want this air aircraft engine fix him as soon as possible and i believe that the exhibit that the courts are looking at will be points exhibit forty two it's in exhibit volume five i believe the tenor i can't quote it exactly i believe the tenor of the letter was that he had incurred some amount of attorney season let's say it was fifteen hundred or something like that and that he did not object to the engine being transferred but he wanted a acknowledge t by continental that it would be treated under the warranty as it had through the prior course of trying to fix this but he said he said you've got to admit that it's we want to you we're not setting the engine i don't think that he said we won't send the engine and the other problem is louer it was the whole time it was with you guys they could have mr becker testify to trial i never told them they can't get the engine they could have got the engine and that's why i was saying to the court they did not send don't sign the form don't send the engine we're not interested in looking at the engine was it ever conditioned well it wasn't well it was originally i mean when they first did it in the  understand that he says no i don't want to sign the form and the questions that colloquy here is what happened after that everything talked about a series of letters to continental or someone continentals be happy ever say if you don't sign the form we're not interested in taking the en once a lawyer represents a client it's a it would be a violation of the ethical code in texas for continental to have dealt with mr becker understand and we're not criticizing for that ok at that point want to be a letter it's we have to look at what the lawyer said and i wasn't suggesting that they could do anything to the kind of course mr becker didn't know that when he contacted continental to follow up on the letter and the status and was told we can't talk in his speech that they couldn't talk to him at that point on the stand and i'm not criticizing from that point sort of just explaining what what period i don't know and if i could i mean i've gone i've gone through the record if i can find something post trial about that as i said as i said and i do want to make this point that in november two thousand and thirteen they finally sent out their of the engine runs on the one three five side and he at that time recommended that they replace all the cylinders atop overhaul kit to correct the oil and even then continental still did not follow that recommendation on his stance on litigation but that kind of works both ways i mean they can claim the benefit of being in litigation and criticize us for what we're not doing during the litigation the courts questioned your honor about a texas case on the times of the essence argument that not enough time of gone by the magistrate judge found that they had never offered to replace the engine they had never offered to replace the cylinders their argument is that it had been done enough time and the time has to be of the essence i cannot find a single warranty case in which someone writes a warranty with a times of the essence for good eight times of the as a lot tell you were an example would be if mr becker were a commercial pilot and he and he ha you know own to some craft any and he hauled people or things around and he needed to have it repaired quickly then he would put in the time it's of the essence and we know that he's an extraordinarily careful individual y evidence under clearly erroneous standard was sufficient to support all of the majesty judge's findings including that there had been enough time and enough for parish church that they should have offered to replace the engine did not do so that was the only compensation to be received other attorneys fees was the cost of a new engine the court did not find it was knowing the court did not find that we were entitled to additional damages or did not give us loss of use he warned us for the cost of engine we think that the evidence supported that we would ask the court to  respected payment of the troubleshooting costs in the warranties t c m will pay for troubleshooting costs associated with identifying the need for such repairs replacements when coordinated through an authorized t c m represented they were required under the what has been told us before which is the work order was provided on feb twelfth becker refused to sign on february fourteenth he retained an attorney who sent a demand letter on feb nineteenth grade all requested that the engine be shipped and becker did not send the engines those are the findings of fa conversations between he's from that point on i believe they were but the case took its course down the litigation road instead of the six in the problem road and that's what led to mcclellan not going out and looking at the aircraft the fourteen months signing sixty nine is that continental following receipt of the letter instructed do gosh not write this they contacted becker and said you don't have to sign the work order and they were told don't contact mr becker any more than the occasions come through lawyers and now let me ask you one question about this were pulled over though because the work order doesn't say you know if it's it doesn't really specify whether it's warranty or not in fact what it says is i authorize the following services for repair work and here by grant you and your employees permission operate and fly the aircraft and express mechanic's lien is hereby acknowledged on above aircraft to serve secure the amount of service and or repairs it as today was th cost for this reason the holding in the southwest louisiana case was because or unquote the behavior that the party was trying who had a duty to repair their behavior was quote unquote inconsistent with the written terms of the limited warranty paying for troubleshooting costs in this case is not inconsistent with the written warrant where is there anything where is there anything in the record that says that continental was paying c n n or do gosh for troubleshooting nobody specifically said troubleshooting you get there by the fact that nobody said it was covered and in fact i think mr mr sherman testified nobody ever told him that it was absolutely covered under the warranty and that comes from the fact that until you know whether or not the problem is results from a defect in material or workmanship you don't know whether it's covered by the warranty you can't make that for me but i would cite the court to mr pyles testimony that said neither he nor anybody else until you inspect that engine further can tell you whether or not the defect comes from something in material and workmanship or something else and that has not been done to this day is it clear from the record that continental said you don't have to should want to record and again we would submit that the asking him to sign the work or isn't at all inconsistent with the terms of the warranty and i don't know how asking someone to do something that is consistent with the this drug say thing about it is if it's not covered by warranty this might sound like her to have to buy for as he was told that was just in case or there were something that wasn't repaired and that was his understanding of it is on and that's in the record