Borden v. Pope Jeep-Eagle, Inc.

• Decision Date: 25 June 1991
• Docket Number: INC,No. A91A0664,JEEP-EAGL,A91A0664
• Citation: Borden v. Pope Jeep-Eagle, Inc., 407 S.E.2d 128, 200 Ga.App. 176 (Ga. App. 1991)
• Parties: , 16 UCC Rep.Serv.2d 543 BORDEN v. POPE
• Court: Georgia Court of Appeals

Page 128

407 S.E.2d 128

200 Ga.App. 176, 16 UCC Rep.Serv.2d 543

BORDEN v. POPE JEEP-EAGLE, INC.

No. A91A0664.

Court of Appeals of Georgia.

June 25, 1991.

S. Robert Hahn, Jr., Norcross, for appellant.

Timothy W. Hewett, Decatur, for appellee.

POPE, Judge.

On December 1, 1988, plaintiff/appellant Ronald E. Borden contracted with defendant/appellee Pope Jeep-Eagle, Inc., to purchase a 1989 Jeep Cherokee. Plaintiff traded in his 1986 Isuzu Trooper II as part of the deal. During the negotiations for the vehicle, plaintiff told the salesperson with whom he was dealing that he wanted a simple interest car loan. Plaintiff testified that the finance manager for defendant told him that there was no such thing as a simple interest car loan. After it became apparent that plaintiff was not going to purchase the vehicle unless he was given a simple interest loan, the finance manager produced a simple interest car loan. The form of that loan recited that the assignee of the loan would be First National Bank of Atlanta.

Plaintiff was asked by defendant to sign an additional form regarding the loan, which provided that the loan had not been officially approved by First Atlanta and that the defendant reserved the right to void the contract if First Atlanta did not approve the loan within three working days from the original delivery date. The form also provided that "[i]t is further understood that said vehicle will be returned by customer at Pope Jeep Eagle Inc.'s request if financing cannot be arranged." It was signed by plaintiff and defendant's representative. Plaintiff accepted delivery of the new vehicle on that same evening, December 1, 1988.

Plaintiff testified that on December 9, 1988, plaintiff received a call from the salesperson with whom he had dealt. The salesperson told him that he needed to return to re-execute some papers. When plaintiff inquired about exactly what he needed to sign, the salesperson refused to be more specific. Plaintiff also testified that beginning on or about December 13, 1988, he began receiving calls from defendant's employees approximately once or twice a day telling him that he needed to return to execute certain papers, but the callers would not be more specific. Plaintiff further testified that on or about December 20, 1988, he received a call from the new car sales manager for defendant, who told him that if he "did not come in and resign these papers ... they would come out to my apartment and arrest me, have the sheriff come to my apartment and arrest me for theft." The new car sales manager denied those allegations. Defendant presented further evidence that it was their policy to never harass or threaten a customer. The evidence showed, however, that defendant was unable to sell plaintiff's loan to First Atlanta and wanted plaintiff to agree to different contract terms so that his loan would be more marketable.

Shortly after plaintiff was contacted by defendant concerning rescission of the contract for sale of the vehicle, plaintiff sought the advice of legal counsel and on January 13, 1989, wrote to defendant insisting that the contract be honored, as written. It was stipulated by the parties that plaintiff's trade-in was sold on December 10, 1988. The evidence is undisputed that even though defendant maintained that the contract had been rescinded, plaintiff made four payments on the vehicle, via certified mail, which defendant accepted. Defendant, however, refused to present plaintiff's checks for payment in a timely manner. Plaintiff refused to make further payments to defendant. After plaintiff's loan was in arrears four months, defendant repossessed the vehicle in question on September 19, 1989. Two days later, on September 21, 1989, defendant sent a letter to plaintiff informing him that the vehicle would be sold by private sale on October 5, 1989. Defendant, however, did not sell the vehicle until after the defendant prevailed at trial. Plaintiff did not purchase another vehicle before trial.

On December 8, 1989, plaintiff filed suit against defendant alleging the defendant's conduct gave rise to claims for fraud, breach of contract, wrongful repossession, a violation of the Georgia Fair Business Practices Act, and a violation of the Georgia RICO Act. ¹ Defendant counterclaimed for breach of contract. A jury trial was conducted in this case in DeKalb State Court on August 14 and 15, 1990. The jury returned a verdict in favor of defendant and awarded defendant $18,830.11 on its counterclaim. Plaintiff moved for a new trial, but the trial court denied that motion.

Plaintiff filed this appeal asserting the following enumerations of error: (1) the verdict below is contrary to law and is an illegal verdict; (2) the trial court erred in excluding evidence that defendant refused to present plaintiff's payment checks in a timely manner; (3) the trial court erred in failing to charge the jury on estoppel; (4) the trial court erred in failing to charge the jury on the Fair Business Practices Act; (5) the trial court erred in failing to charge the jury on fraud; (6) the trial court erred in failing to charge the jury on tort liability; and (7) the trial court erred in failing to charge the jury on wrongful repossession.

1. We will first address plaintiff's assertion that it was error for the trial court to refuse to charge the jury regarding the Fair Business Practices Act ("FBPA"). The law is well-settled in Georgia that even though a single instance of an unfair or deceptive act can be a sufficient basis for a claim under the FBPA, that act does not apply to suits based upon deceptive practices which occur in transactions that are essentially private. Zeeman v. Black, 156 Ga.App. 82, 84-86, 273 S.E.2d 910 (1980). In other words, "[u]nless it can be said that the defendant's actions had or has potential harm for the consumer public the act or practice cannot be said to have "impact" on the consumer marketplace and any 'act or practice which is outside that context, no matter how unfair or deceptive, is not directly regulated by the FBPA.' " Waller v. Scheer, 175 Ga.App. 1, 4, 332 S.E.2d 293 (1985) (quoting Zeeman, supra, 156 Ga.App. at 84, 273 S.E.2d 910). Although plaintiff alleges it was error for the trial court to refuse to instruct the jury concerning the FBPA, we assume that the plaintiff is in fact appealing the trial court's decision to direct a verdict for defendant as to that claim. A directed verdict is proper when there is no conflict of evidence as to any material issue and the evidence, together with all reasonable deductions therefrom, demands a particular verdict. Kent v. Hunt & Assoc., 165 Ga.App. 169, 170, 299 S.E.2d 123 (1983); Jones v. Smith, 160 Ga.App. 147, 148, 286 S.E.2d 478 (1981).

The trial court did not err in directing a verdict for defendant on the FBPA claim. There is no evidence that the defendant's actions in this transaction had the potential for harming the general public. Defendant did not advertise simple interest contracts to the general public nor was there evidence that it was defendant's practice to sell cars promising simple interest installment loans and later attempt to dishonor those contracts. Defendant entered into a simple interest installment loan with plaintiff at plaintiff's urging. Accordingly, the trial court's dismissal of plaintiff's claim under the FBPA was correct.

2. We find plaintiff's contentions that the trial court erred in failing to charge the jury on estoppel and in excluding evidence that defendant had not deposited plaintiff's payments in a timely manner to be without merit. Plaintiff seeks to have this court equate defendant's delay in depositing the checks received from plaintiff to those cases in which one prohibits another from being able to perform a contract and then sues the nonperforming party for breach of contract. See, e.g., Kent, supra. The facts of this case do not allow for such an analogy. Plaintiff had a legal obligation to pay for the automobile he purchased from defendant. Although there was evidence that First Atlanta was named as a secured party on the title of plaintiff's vehicle, plaintiff at all times knew that defendant held the note to his vehicle. Since plaintiff sought to affirm the installment loan contract he had entered into with defendant and keep the vehicle, he was obligated to make payments to that party. While defendant's refusal to cash plaintiff's checks may have been frustrating for plaintiff, it did not change plaintiff's obligations under the contract nor did it prevent plaintiff's ability to perform thereunder. As plaintiff correctly pointed out in his supplemental brief to this court, when a party that received a check does not present the check for payment within a reasonable time, the party issuing the check may assume that it has been accepted. Studstill v. Amer. Oil Co., 126 Ga.App. 722, 725, 191 S.E.2d 538 (1972) aff'd and remanded 230 Ga. 305, 196 S.E.2d 847 (1973). For these reasons, the trial court correctly refused to give plaintiff's requested charges on estoppel and prevention of contract performance.

3. Plaintiff also contends that the trial court erred in failing to charge the jury on wrongful repossession. As this court held in Hopkins v. First Union Bank, 193 Ga.App. 109, 113, 387 S.E.2d 144 (1989), wrongful repossession occurs when a repossession is accompanied by a wrongful act, which shall mean an act that "is in contravention of some legal duty owed to the party from whose possession the vehicle is being taken." Plaintiff argues that defendant's untimely acceptance of plaintiff's payments constitutes a wrongful act. As discussed above, while defendant's failure to present plaintiff's checks for payment in a timely manner may have been frustrating to plaintiff, defendant did not owe plaintiff a legal duty to submit plaintiff's checks to his bank for payment. By refusing to present the checks for payment in a timely manner, defendant...