dissenting.
I respectfully dissent. I disagree with the majority that the trial court's decision is against the great weight and preponderance of the evidence.
This case was tried before the court. A trial court’s findings of fact are reviewable for factual and legal insufficiency by the same standards as are applied in reviewing the factual and legal sufficiency of evidence supporting a jury’s answers to jury questions. See 1st Coppell Bank v. Smith, 742 S.W.2d 454, 459 (Tex.App.—Dallas 1987, no writ).
Properly, if the complaining party attacks on appeal the factual sufficiency of a finding for which he had the burden of proof at trial, it brings the challenge as an “against the great weight and preponderance of the evidence” point of error. Cornelius, Appellate Review of Sufficiency of the Evidence Challenges in Civil and Criminal Cases, 46 TEX.B.J. 439, 441 (1983). A great weight and preponderance *809point requires a consideration of all the evidence, both that tending to prove the fact and that tending to disprove the fact. Id.
The finding that is attacked here is whether the seller misrepresented the fact that the oven was operational at the time it was sold. The majority correctly states that the appellant was not required to prove at trial that the misrepresentation was intentional, see Smith v. Baldwin, 611 S.W.2d 611, 616 (Tex.1981); however, it then incorrectly proceeds with its analysis as if the appellant were not required to prove that a misrepresentation was, in fact, made at all. It is with this I disagree. In order to meet its burden of proof at trial, the buyer must not only plead that at the time of the sale the representation was made by the seller to the buyer that the oven did in fact work, but the buyer must then prove at trial that, at the time of the sale, the oven did not in fact work. See Chancellors Racquet Club v. Schwarz, 661 S.W.2d 194, 195 (Tex.App.—Houston [1st Dist.] 1983, writ ref'd n.r.e.).
The only possible evidence on this point is: (1) the salesman turned the oven on in the showroom and all the indicator lights functioned in a normal fashion and satisfied the salesman and the buyer that the oven was functioning; (2) seventy-eight days after the sale, following shipment to Kansas and storage for some period of time, the oven did not work; and (3) a repair company alleged, after having repaired the oven once, that many parts were missing from the oven and it could not be fixed.
There is nothing in the record to indicate exactly what occurred during the seventy-eight days between the sale and the failure of the oven. As a result, there is no way to determine if the oven was damaged or stripped during transit or storage. Accordingly, the trial court concluded that the buyer did not prove, by a preponderance of the evidence, that the oven was inoperative when purchased.
I cannot conclude, based on these facts, that the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. An appellate court simply cannot substitute its judgment for that of the trial court. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.—Dallas 1986, writ ref'd n.r.e.). Consequently, I respectfully dissent.