BMW Financial Services, N.A., Inc. v. Smoke Rise Corp.

• Decision Date: 01 May 1997
• Docket Number: No. A97A0116,A97A0116
• Citation: 226 Ga.App. 469,486 S.E.2d 629
• Parties: , 33 UCC Rep.Serv.2d 490, 97 FCDR 1933 BMW FINANCIAL SERVICES, N.A., INC. v. SMOKE RISE CORPORATION et al.
• Court: Georgia Court of Appeals

Page 629

486 S.E.2d 629

226 Ga.App. 469, 33 UCC Rep.Serv.2d 490,

97 FCDR 1933

BMW FINANCIAL SERVICES, N.A., INC. v. SMOKE RISE CORPORATION et al.

No. A97A0116.

Court of Appeals of Georgia.

Decided May 1, 1997.

Reconsideration Denied May 15, 1997.

Fred J. Hanna, Marietta, Elizabeth C. Whealler, Jerry C. Tootle, Jr., Duluth, for appellant.

Ralph S. Goldberg, Decatur, for appellees.

POPE, Presiding Judge.

In this action to enforce an excess mileage provision in a motor vehicle lease, the plaintiff lessor appeals from the trial court's denial of its motion for summary judgment. Because there is no question of material fact regarding plaintiff's right to enforce the provision, we granted its application for interlocutory appeal and now reverse.

Defendant Smoke Rise Corporation leased a BMW automobile from plaintiff, and the corporation's president, defendant William Probst, personally guaranteed the lease. The lease, as modified in an extension agreement, provided that at the end of the lease term defendants could purchase the vehicle for $16,863.75, the estimated end-of-term wholesale value of the vehicle. It also provided that if defendants returned the vehicle rather than exercising their option to purchase it, they would have to pay a charge of "up to 15 cents" for each mile the vehicle had been driven in excess of 85,011 miles. Defendants chose not to purchase the vehicle and returned it with an odometer reading of 180,409 miles, but they refused to pay for the excess mileage. Plaintiff seeks $14,309.70, which is 15 cents times 95,398 (the difference between 180,409 and 85,011 miles), plus attorney fees.

In their defense, Smoke Rise and Probst contend the excess mileage provision is unconscionable because the $14,309.70 charge is almost as much as the projected end-of-term value of the car, and is considerably more than their experts say the actual value of the car is with 180,409 miles. Unconscionability is evaluated by looking at the circumstances at the time the contract was originally made, however, and determining whether, in light of the commercial needs of the particular trade involved, the agreement is one which " 'no sane man not acting under a delusion would make and ... no honest man would take advantage of.' [Cits.]" R.L. Kimsey Cotton Co. v. Ferguson, 233 Ga. 962, 966(3), 214 S.E.2d 360 (1975); accord Zepp v. Mayor etc. of Athens, 180 Ga.App. 72, 79(2), 348 S.E.2d 673 (1986). See also OCGA § 11-2A-108. In the context of a...