Billy Cain Ford Lincoln Mercury, Inc. v. Kaminski
| Decision Date | 29 January 1998 |
| Docket Number | No. A97A2072,A97A2072 |
| Citation | 230 Ga.App. 598,496 S.E.2d 521 |
| Parties | , 98 FCDR 555 BILLY CAIN FORD LINCOLN MERCURY, INC. v. KAMINSKI. |
| Court | Georgia Court of Appeals |
Adams, Ellard & Frankum, Cadman R. Kiker, Jr., Clarksville, Jennifer L. Thacker, Mount Airy, for appellant.
Verdery & Oliver, William R. Oliver, Cindy M. Franklin, Cornelia, for appellee.
Sonya Kaminski filed this action against Billy Cain Ford Lincoln Mercury, Inc. ("the dealership"), alleging intentional fraud and deceit, violations of the Georgia Fair Business Practices Act ("FBPA"), and breach of express warranty. According to her complaint, Kaminski went to Billy Cain's Cornelia dealership and purchased what was represented to her as a 1989 Chevrolet Silverado pickup truck. However, subsequent incidents involving repair of the truck and its parts, as well as a title history, revealed that the truck was a GMC rather than a Chevrolet. According to the complaint, analysis of the title history and additional documentation of the vehicle indicated that the Cornelia dealership and its agents had both notice and knowledge that the truck was not a Chevrolet, yet they deceptively misrepresented and sold the truck as a Chevrolet to Kaminski.
The dealership failed to file a timely answer, and the trial court denied its motion to open default. Following a trial on damages, the jury returned a verdict in favor of Kaminski in the amount of $2,823.70 for breach of warranty and found that Kaminski was entitled to exemplary damages. The jury then heard evidence as to that issue and returned a verdict in favor of Kaminski in the amount of $50,000 for exemplary damages.
In accordance with the default judgment and the jury verdict, the trial court's judgment awarded the following relief to Kaminski: The contract between the parties was rescinded; FBPA damages in the amount of $10,913.29 in actual damages; $9,295 in attorney fees, expenses of litigation and court costs; and $50,000 in exemplary damages; and $2,823.70 in breach of warranty damages. The dealership appeals. We affirm.
1. In its first enumeration of error, the dealership contends the trial court erred in denying its motion to open default. OCGA *523s 9-11-55(b) allows the trial court, in its discretion, to open a default for providential cause preventing the filing of the required pleading, for excusable neglect, or when the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, if four conditions are met: (1) a showing by the movant under oath, (2) an offer to plead instanter, (3) an announcement of ready to proceed to trial, and (4) the setting up of a meritorious defense. The statute also requires that costs be paid. OCGA § 9-11-55(b).
The record shows that nearly three months after service and one day before the scheduled hearing concerning damages on the default, the dealership filed a motion to open default, alleging failure of service and failure to name the proper party as defendant. Following a hearing on the motion, the dealership amended its motion to open default, filing an answer with this amendment and purportedly curing its deficiencies under the default statute. The trial court denied the dealership's motion, concluding that the dealership failed to show sufficient grounds for opening the default.
The evidence at the hearing showed that the dealership was served through Hilda Anglin, secretary to Billy Cain, who placed the documents on Cain's desk. Anglin assured the serving officer that she would "make certain" Cain received the summons and complaint. The dealership had been served with civil process perfected upon Anglin in the past. The evidence further disclosed that the documents remained on Cain's desk for two and one-half months without action. Notwithstanding the dealership's arguments that Anglin is a mere servant, we cannot conclude that the trial court abused its discretion in finding that service on Anglin was proper and that no excusable neglect occurred under the circumstances.
(Citations and punctuation omitted.) Murray v. Sloan Paper Co., 212 Ga.App. 648, 649(2), 442 S.E.2d 795 (1994).
The dealership also argued that its motion to open default should have been granted due to manifest injustice because the party named was improper. The record shows that the dealership has waived any objection to the misnomer due to its failure to object in the consolidated pretrial order regarding proper parties in interest. See Williams v. Safeway Ins. Co., 223 Ga.App. 93, 94, 476 S.E.2d 850 (1996) ().
Moreover, misnaming a party in the pleadings is a defect which may be waived where the misnamed party is in fact the legally cognizable proper party in interest. See Block v. Voyager Life Ins. Co., 251 Ga. 162, 163(1), 303 S.E.2d 742 (1983). The pleadings in the present case name "Billy Cain Ford Lincoln Mercury, Inc." as the defendant, a misnomer combining two separate corporations, Billy Cain Ford Mercury, Inc. and Cain Ford Lincoln Mercury of Cornelia, Inc. It is undisputed that Billy Cain is the registered agent for both these corporations, that the transaction at issue involved Cain Ford Lincoln Mercury of Cornelia, Inc., that Billy Cain owns both corporations, that he is president of both corporations, and that he is the major stockholder of both corporations. Since the trial court correctly determined that Billy Cain was properly served in this action as the registered agent, the trial court did not abuse its discretion in failing to grant the dealership's motion to open default on the ground that a manifest injustice in misnaming the dealership had occurred.
Furthermore, even if a party has met all the prerequisites for opening a default under OCGA § 9-11-55(b), the trial court has broad discretion in deciding whether or not to open the default, and its decision not to open a default will not be interfered with unless that discretion is manifestly abused. See Daniel v. Causey, 220 Ga.App. 589(1), 469 S.E.2d 839 (1996). We find no such abuse of discretion in the present case.
2. In its second enumeration of error, the dealership asserts the trial court erred in denying its motion for a directed verdict as to the issue of consequential and incidental damages. These damages related to Kaminski's breach of warranty claim. See OCGA § 11-2-715.
A buyer is entitled to incidental damages resulting from the seller's breach of warranty which include "expenses reasonably incurred in inspection, receipt, transportation, and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses, or commissions in connection with effecting cover, and any other reasonable expense incident to the delay or other breach." OCGA § 11-2-715(1). In addition, a buyer is entitled to recover consequential damages, which include "[a]ny loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and [i]njury to person or property proximately resulting from any breach of warranty." OCGA § 11-2-715(2).
Kaminski testified in detail at trial regarding the various expenses she incurred as a result of problems she experienced with the truck. These expenses included miscellaneous parts she had to purchase for the truck and the rental of a vehicle to get to work. Thus, there was sufficient evidence to submit the issue of these damages to the jury. See B & D Carpet, etc., Co. v. Gunny Corp., ...
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...473 S.E.2d 554 ("[J]ustifiable reliance is an essential element of an FBPA claim."). 28. See Billy Cain Ford Lincoln Mercury v. Kaminski, 230 Ga.App. 598, 601-602(3), 496 S.E.2d 521 (1998); Crown Ford, supra at 883-884, 473 S.E.2d 554; Miles Rich Chrysler-Plymouth, supra at 697, 411 S.E.2d ......
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