Hathcock v. G & M Builders, Inc., 77-1623

• Decision Date: 30 August 1979
• Docket Number: No. 77-1623,77-1623
• Citation: 601 F.2d 846
• Parties: Roy HATHCOCK, Plaintiff-Appellee, v. G & M BUILDERS, INC., et al., Defendants-Appellees, Cross-Appellants, v. DAN McKINNEY BRITISH MOTORS, INC., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 846

601 F.2d 846

Roy HATHCOCK, Plaintiff-Appellee, v. G & M BUILDERS, INC., et al., Defendants-Appellees, Cross-Appellants, v. DAN McKINNEY BRITISH MOTORS, INC., Defendant-Appellant,

Cross-Appellee.

No. 77-1623.

United States Court of Appeals Fifth Circuit.

Aug. 30, 1979.

E. Stephen Williams, Pat H. Scanlon, Jackson, Miss., for Dan McKinney British Motors, Inc.

William M. Bost, Jr., Vicksburg, Miss., for G & M Builders, Inc.

Marshall E. Hanbury, Stephen Beach, III, Stephen L. Beach, Jackson, Miss., for Roy Hathcock.

Appeals from the United States District Court for the Southern District of Mississippi.

Before THORNBERRY, GOLDBERG and GEE, Circuit Judges.

GEE, Circuit Judge:

On December 12, 1975, Roy Hathcock purchased a 1972 Mercedes-Benz from Dan McKinney British Motors, Inc., which in turn had purchased the automobile from G & M Builders, Inc. The odometer reading was 23,699 miles on the date of Hathcock's purchase, although the car in fact had traveled over 102,000 miles. While the car was owned by G & M Builders, the odometer broke and was replaced. Hathcock brought suit against Dan McKinney British Motors under Subchapter IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. §§ 1981-1991, and Dan McKinney British Motors in turn sued G & M Builders. ¹

The jury awarded Hathcock $8,500 in damages against Dan McKinney British Motors and found in favor of defendant G & M Builders. The district judge awarded Hathcock attorneys' fees in accordance with 15 U.S.C. § 1989 but refused to award attorneys' fees sought by G & M Builders. Dan McKinney British Motors appeals from the judgment favoring Hathcock, ² and G & M Builders appeals from the district judge's denial of attorneys' fees. For reasons discussed below, we reverse the judgment in favor of Hathcock against Dan McKinney British Motors and affirm the district court's denial of attorneys' fees to G & M Builders.

Section 1988 of the Motor Vehicle Information and Cost Savings Act directs the transferor of an automobile to provide the transferee with a written statement disclosing the cumulative mileage registered on the odometer. In addition, the transferor must disclose that the actual mileage of the automobile is unknown if the transferor knows the odometer reading to be different from the number of miles the vehicle has actually traveled. Section 1989 imposes civil liability on any transferor who violates an odometer requirement with intent to defraud. In addition, section 1989 provides for treble damages or $1,500, whichever is greater, and allows the discretionary award of costs and attorneys' fees "in the case of any successful action to enforce the foregoing liability."

Turning to the facts of the case, we note that the trial below was a swearing match. George Jabour, as agent for G & M Builders, testified that he had the odometer replaced at 79,000 miles and that an appropriate notice was placed on the left door frame pursuant to 15 U.S.C. § 1987. According to Jabour, the sticker was still on the door when he transferred the car to Dan McKinney British Motors. He testified that he repeatedly advised Bobby Gray, used car manager for Dan McKinney British Motors, that the odometer reading was incorrect and that the actual mileage could be computed by adding the number of miles on the sticker to the number of miles on the odometer. He agreed to sign an odometer statement in blank because the sale was completed after dark, and he assumed that the salesmen would compute the actual mileage the following morning. Gray testified that Jabour did not mention the odometer replacement or the statutory notice. According to Gray, Jabour mentioned mileage only in emphasizing that the Mercedes in question was a low-mileage car. Gray did not notice any odometer replacement sticker, though he did not look for one.

Hathcock testified that before he bought the Mercedes he took it to a Mercedes mechanic, who coincidentally worked at the same place where Jabour had had the Mercedes serviced. The mechanic told Hathcock that he thought he recognized the car and that, if he remembered correctly, he had serviced it considerably beyond 23,699 miles. Hathcock returned to Dan McKinney British Motors, and repeated the mechanic's speculation to Gray and Royce Housley, general manager for Dan McKinney British Motors. Hathcock, Gray, and Housley all agree that Gray informed Hathcock at that time that Dan McKinney British Motors had a signed odometer statement from the prior owner indicating that the odometer showed the correct mileage. It is undisputed that the odometer statement signed by Jabour is in fact blank, and Gray explained that he had made a good-faith mistake. Housley testified he responded that, although to the best of his knowledge the mileage was correct, Hathcock would receive an odometer statement that the actual mileage of the car was unknown. According to Housley, he directed one of the salesmen to mark the "actual mileage unknown" box on the odometer statement and to accept Hathcock's lower counteroffer.

There was in evidence a written odometer statement on a standard form provided by the dealer. The name "Dan McKinney Datsun Volvo, Inc." had been preprinted on the line marked "transferor," the Mercedes in question was described accurately, the odometer reading was recorded as 23,699 miles, the box indicating "actual mileage unknown" was marked, the statement was signed by Dan McKinney and Roy Hathcock, and it was dated December 12, 1975. Hathcock testified that he did not receive the statement on the day of the transfer. According to Hathcock, he returned to the dealership two weeks later, on the advice of his attorney, and requested an odometer statement. Hathcock testified that the salesman, Greg Weaver, presented him a statement showing that the Mercedes had 23,699 miles on it and that he then signed the statement after carefully examining it. According to Hathcock, the box indicating that the actual mileage was unknown was blank when he signed the statement. When Weaver returned from photocopying the statement, however, the box was marked. Weaver testified that although he did not have an independent recollection of providing Hathcock with an odometer statement on the day of the transfer, it was routine procedure to do so, and the secretary would have noticed if he had departed from procedure. Weaver also testified that Hathcock returned two weeks later and requested a copy of the odometer statement. Weaver obtained Hathcock's file, photocopied the odometer statement, and gave Hathcock two copies. Weaver testified that to the best of his knowledge the "actual mileage unknown" block was not checked on the day of the transfer...