Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., CHRYSLER-PLYMOUTH-DODG

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 188 W.Va. 468,425 S.E.2d 144
• Parties: Eddie BOWLING, Kenneth Bowling, Mary E. Lopez, Alice West, Darrell G. Rakes, Elizabeth E. Epperson, Carol Jean Carte, Pamela L. Toney, Terry G. Rahn, Franklin A. Comer, Dorothy M. McCoy, John Bennett, Gregory J. Harding, Steven W. Pack, Barbara J. Hull, Roy L. Willis, and Luther E. Toney, Plaintiffs Below, Appellants, v. ANSTED, and David Akers, Defendants Below, David Akers, Appellee.
• Docket Number: INC,No. 20994,CHRYSLER-PLYMOUTH-DODG
• Decision Date: 11 December 1992

Page 144

425 S.E.2d 144 188 W.Va. 468 Eddie BOWLING, Kenneth Bowling, Mary E. Lopez, Alice West,
Darrell G. Rakes, Elizabeth E. Epperson, Carol Jean Carte,
Pamela L. Toney, Terry G. Rahn, Franklin A. Comer, Dorothy
M. McCoy, John Bennett, Gregory J. Harding, Steven W. Pack,
Barbara J. Hull, Roy L. Willis, and Luther E. Toney,
Plaintiffs Below, Appellants,
v.
ANSTED CHRYSLER-PLYMOUTH-DODGE, INC., and David Akers,
Defendants Below,
David Akers, Appellee. No. 20994. Supreme Court of Appeals of
West Virginia. Submitted Oct. 6, 1992.
Decided Dec. 11, 1992.

Page 145

[188 W.Va. 469] Syllabus by the Court

1. " 'Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.' Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932)." Syllabus Point 1, Elkins Manor Associates v. Eleanor Concrete Works, Inc., 183 W.Va. 501, 396 S.E.2d 463 (1990).

2. " 'The essential elements in an action for fraud are: (1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it.' Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981)." Syllabus Point 2, Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 (1988).

3. An officer of a corporation may be personally liable for the tortious acts of the corporation, including fraud, if the officer participated in, approved of, sanctioned, or ratified such acts.

4. Where it can be shown by clear and convincing evidence that a defendant has engaged in fraudulent conduct which has injured a plaintiff, recovery of reasonable attorney's fees may be obtained in addition to the damages sustained as a result of the fraudulent conduct.

Page 146

[188 W.Va. 470] Ralph C. Young, Hamilton, Burgess, Young, Tissue & Pollard, Oak Hill, for appellants.

James M. Brown, File, Payne, Scherer & Brown, Beckley, for appellee.

MILLER, Justice:

This appeal is brought by twenty-one plaintiffs who filed seventeen separate civil actions in the Circuit Court of Fayette County against Ansted Chrysler-Plymouth-Dodge, Inc., an automobile dealership, and the dealership's president, David Akers. ¹ The plaintiffs alleged that the vehicles sold to them by the dealership and Mr. Akers were fraudulently misrepresented to be "demonstrators" when they were actually used rental cars.

The cases were consolidated for trial. At the close of the evidence, the trial court directed a verdict for the defendant David Akers. The common law fraud case against the dealership was submitted to the jury, which rendered a verdict for all seventeen plaintiffs. The jury further found that an award of punitive damages was inappropriate. Based on this latter finding, the trial court refused to award the plaintiffs attorney's fees.

On appeal, the plaintiffs assign two errors: (1) the trial court erred in directing a verdict for Mr. Akers, and (2) the trial court should have awarded the plaintiffs reasonable attorney's fees. We agree on both counts; accordingly, we remand the case for further proceedings consistent with this opinion.

I.

FACTS

The automobile dealership is a West Virginia corporation with places of business in Ansted and Fayetteville. In the fall of 1986, defendant David Akers and Rick Bonham purchased the dealership. Initially, Mr. Bonham was in charge of the day-to-day operations of the dealership, and Mr. Akers was merely an investor. In February of 1988, Mr. Bonham sold his interest in the dealership to Mr. Akers. Subsequently, Mr. Akers became the president of the company and owned 60 percent of the stock. The remaining stock was owned by Mr. Akers' brother, who is not involved in the operation of the business.

Shortly thereafter, Mr. Akers began purchasing "factory cars" at commercial auctions in Ohio, North Carolina, and Pennsylvania. Ninety percent of the vehicles sold at these auctions were rental cars. ² The remaining ten percent were leased vehicles, Chrysler company cars, or new vehicles that had been damaged during shipment from the factory. Mr. Akers purchased sixteen of the vehicles involved in this litigation at one of these auctions. The remaining vehicle was purchased at a private treaty sale. Such vehicles are purchased by the truckload directly from the car rental agency.

After purchasing these vehicles, Mr. Akers would arrange to have them transported to either his Ansted or Fayetteville car lot. On arrival, the cars were thoroughly cleaned, all fluids were checked or changed, and any decals or other evidence that the car had been a rental car were removed. The cars were then advertised in local newspapers as "factory cars" or "fresh from factory sale" cars and offered for resale at a profit margin greater than a dealer would realize on the sale of an identical new car. Both car lots had signs advertising that they were "factory outlets." During trial, Mr. Akers acknowledged that this advertising was misleading because most potential car buyers would not suspect that "factory cars" were in reality used rental cars.

Four of Mr. Akers' salesmen sold sixteen of the vehicles involved in this litigation. In each case, the salesman told the plaintiff that the vehicle he purchased had been a "demonstrator" or "demo" and that this

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[188 W.Va. 471] limited use accounted for the mileage on the odometer. One plaintiff, Darrell Rakes, testified that Mr. Akers told him that the car he eventually purchased was a "factory demo." Mr. Akers denied making this statement. Some of the plaintiffs were told that the cars they purchased had been driven by employees of the dealership, while others were led to believe that their cars had been driven by Chrysler executives. One plaintiff was told that her vehicle had been driven by a high school valedictorian for a year following graduation.

The remaining car was purchased by Gary and Greg Harding, father and son. Greg Harding testified that Mr. Akers had sold him his car and that Mr. Akers had told him that the vehicle was a "demo." In reality, the car had been damaged in transit and repaired. Upon further investigation, the Hardings realized that the serial number on their sales receipt and on the car's title did not match the serial number on the vehicle. Moreover, only 98 miles were reflected on the car's odometer when the Hardings purchased the vehicle from the dealership, while the title received by Mr. Akers at the commercial auction stated that the car's mileage was 14,114.

In this regard, Mr. Akers testified that the discrepancy in the paperwork and his failure to tell the Hardings that the car had been damaged were honest errors. He explained that when he purchased the Harding vehicle, he also bought a second car which was very similar. When he was finalizing the sale with the Hardings, Mr. Akers testified that he inadvertently pulled the file for the similar vehicle.

Every plaintiff also obtained his or her financing from the dealership. Some of the retail installment sales contracts identified the cars as new. The plaintiffs whose sales contracts stated that the car was used believed that this designation was required because the vehicle had been a "demonstrator." In several cases, the contracts falsely certified that the vehicle was being sold by Chrysler Corporation rather than by the actual previous owner, a car rental agency. The contracts frequently recited an inflated value for the car the customer traded in or a deflated price for the vehicle sold. These practices benefited the dealership when the customer was told the sales price included West Virginia sales tax. ³ Mr. Akers signed the financing documents in sixteen of the cases involved.

All the plaintiffs testified that they were not interested in purchasing a rental car, or, in the Harding case, a vehicle that had been damaged. Moreover, each plaintiff stated that he or she would not have purchased the car for the agreed price had the vehicle's history not been misrepresented.

The first lawsuit against the defendants was filed by Eddie and Mary Bowling. Shortly thereafter, an article appeared in the local newspaper reiterating some of the allegations in the Bowlings' complaint. Mr. Akers responded by writing a letter to the editor defending his sales practices and assuring the local readership that he was "totally responsible for all my service and sales staff." Indeed, Mr. Akers testified at trial that his dealership was the smallest in Fayette County, and he boasted that he knew everything that happened in the business.

Thereafter, the Bowlings' attorney filed the remaining sixteen lawsuits. All of the complaints alleged common law fraud, a violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq., and a violation of the West Virginia Consumer Credit and Protection Act, W.Va.Code, 46A-1-101, et seq.

The cases were consolidated for trial, and the plaintiffs proceeded exclusively on the fraud actions. At the close of all the evidence, the trial court granted a directed verdict for Mr. Akers. The jury rendered a verdict against the dealership for all seventeen plaintiffs. The jury further found that the plaintiffs should be allowed to rescind their sales contracts.

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[188 W.Va. 472] After returning a compensatory damage verdict for the plaintiffs, the jury heard further arguments on the issue of punitive damages, but refused to award them. The plaintiffs then moved the court for an award of attorney's fees, and the dealership moved for a judgment notwithstanding the verdict, or, in the alternative, for a remittitur based on the depreciation of the vehicles from the time of...