Britton v. Bill Anselmi Pontiac-Buick-GMC, Inc., PONTIAC-BUICK-GM

• Decision Date: 26 January 1990
• Docket Number: PONTIAC-BUICK-GM,No. 89-100,INC,89-100
• Citation: 786 P.2d 855
• Parties: 1990-1 Trade Cases P 68,913 Rex A. BRITTON and Veronica K. Britton, Appellants (Plaintiffs), v. BILL ANSELMI, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 855

786 P.2d 855

1990-1 Trade Cases P 68,913

Rex A. BRITTON and Veronica K. Britton, Appellants (Plaintiffs), v. BILL ANSELMI PONTIAC-BUICK-GMC, INC., Appellee (Defendant).

No. 89-100.

Supreme Court of Wyoming.

Jan. 26, 1990.

James K. Lubing of Goody & Lubing, Jackson, for appellants.

Robert J. Pickett of Pickett & McKinney, Rock Springs, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

URBIGKIT, Justice.

This is a lemon car lawsuit where, following numerous unsuccessful attempts to have their 1983 Buick Regal repaired, appellants Rex A. and Veronica K. Britton (Britton) brought suit against the seller of the vehicle, Bill Anselmi Pontiac-Buick-GMC, Inc. (BAI), and the manufacturer, General Motors Corporation (GM). Their complaint sought recovery of the $15,184.84 purchase price, incurred costs and attorney fees by allegations of fraud, breach of both express and implied warranties, and failure to comply with both the federal Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312 and Wyoming's "Lemon Law", W.S. 40-17-101 (1989 Cum.Supp.). GM settled with Britton and the case proceeded to a bench trial against BAI. The district court allowed recovery for the dealership's breach of warranty, determined the Brittons had failed to establish their fraud claim or their claims under either of the two statutory causes of action, and only awarded damages of $1,500. The Brittons question contended district court errors:

1) * * * in ruling that fraud was not proven at trial when:

a) ample evidence of fraud was produced at trial, and

b) Appellant Veronica Britton was prohibited from testifying as to representations made to her by an agent of Appellee because of erroneous application of the hearsay doctrine?

2) * * * in not applying the Wyoming lemon law when the Appellee represented the car as a new car at the time of sale, and the car was covered under a new car warranty?

3) * * * in not applying the Magnuson-Moss Warranty Act which applies to used as well as new cars?

We reverse and remand.

FACTUAL BACKGROUND

On December 4, 1984, the Brittons visited the Buick-Pontiac-GMC dealership in Rock Springs, Wyoming to purchase a car. Although initially intending to buy a new vehicle, they had become curious about BAI's radio advertisements trumpeting the arrival of a number of "Brass Hat" specials. Dick Boling, company salesman and an acquaintance of the Brittons, informed them the advertisements referred to certain low-mileage vehicles which had never been privately titled and had only been used as company cars by GM executives. Because such cars, with the availability of new car financing and their 12 The Brittons immediately experienced problems with the vehicle. Between the purchase date and June 1985, they repeatedly attempted to have BAI repair the following items: a malfunctioning tape deck, an "adjustable" heater that would deliver only cold air or air heated to eighty-five degrees, windows that would not fully close, a defective alternator, a non-functioning gas gauge, a leaking sun roof, broken electric seats, paint that washed off when the car was hosed down, a malfunctioning turbocharger, and a leaking and slipping transmission. The Brittons claimed that, during those six months, they had the car towed a number of times, took the car back for repair fifteen times, and lost the use of the vehicle due to repairs for forty-five days. Notwithstanding the time and effort presumably put into those repair efforts, the dealership managed to fix only the alternator, and that only after three tries. Compounding the frustration and inconvenience of these unsuccessful attempts to repair the car, one of the dealership's mechanics, harboring an unrelated personal grudge against Rex Britton, threatened to make the vehicle the instrument of his vengeance. ¹ The Brittons, accordingly, engaged the services of an attorney.

months/12,000 miles new car warranty, had been described as comparable to new vehicles, the Brittons permitted Boling to show them one of the "Brass Hat" specials, a 1983 Buick Regal. When they inquired about a dealer's identification sticker on the rear of the car, Boling explained that the vehicle had been used solely to transport GM executives to and from the Jackson, Wyoming airport, but that GM had permitted Teton Motors, Inc., a local Jackson dealership, to place the sticker on the car for advertising purposes. The Brittons bought the car and purchased additional warranty protection which extended the basic new car warranty to a term of 48 months/48,000 miles.

By this time, the parties' business relationship had become nearly as irreparable as the "Brass Hat" special. The Brittons resisted suggestions of further attempts at repair. BAI's alternative offer to exchange the 1983 Buick Regal for another vehicle, because it appeared limited to vehicles of lesser value than the Buick and appeared to require further expenditures by the Brittons to obtain a car of comparable value, met with similar resistance. Negotiations were further discouraged by the Brittons' discovery that their "new" vehicle had actually been owned previously by a Jackson man who had prevailed in a suit against Teton Motors, Inc. and GM after the dealership proved unable to correct a myriad of problems with the car. Many of the defects plaguing the prior owner were identical to the problems encountered by the Brittons. ² Meanwhile, the "Brass Hat"

special continued to tarnish in various garages and repair shops. On April 17, 1986, the Brittons filed the present lawsuit.

PROOF OF FRAUD

At trial, the Brittons attempted to introduce both direct and circumstantial evidence that the salesman, Boling, had misrepresented the history of the purchased vehicle. The direct evidence consisted largely of the uncontradicted and unimpeached testimony by Rex Britton, and Veronica Britton to the extent as purchasing owner, she was permitted to testify as to statements made by Boling. The circumstantial evidence included newspaper advertisements, published a few days after the sale, which corroborated Boling's definition of a "Brass Hat" special and which confirmed that BAI was selling the purchased vehicle under such a guise. Additionally, the Brittons introduced evidence of the dealership's guilty plea to criminal charges that those advertisements, in describing the listed vehicles as "Brass Hat" specials, were knowingly false and misleading. The district court concluded that such evidence was insufficient to establish the Brittons' case for fraudulent misrepresentation. ³

The only rationale given for that conclusion appears in the district court's decision letter of February 13, 1989 which stated:

Several of the exhibits go to the wrongdoing of Bill Anselmi, Inc. in the advertising of the car as a Brass Hat Special. The company was prosecuted and convicted for the fraudulent advertising. The testimony, however, was that the Plaintiffs did not go to the dealer for a Brass Hat Special but for a new car. The actual ad in evidence which led to the conviction ran in the newspaper three days after the Brittons purchased the car. The testimony also indicated that Bill Anselmi, Inc. advertised the car the same way G.M.C. advertised it to him.[ ⁴

(Emphasis in original.) This statement suggests the district court conceived the Brittons' case for fraud to be based solely upon misrepresentations contained in the newspaper advertisements. Insofar as that characterization of the case is correct, the district court perhaps concluded: (1) the advertisements could not have induced the sale since they were not published until after the sale; (2) the advertisements could not have induced the Brittons to seek a "Brass Hat" special since they admitted that, despite the advertisements, they had gone to BAI to buy a new car; and (3) the car seller was not culpable because, having itself relied on the representations of GM, it made no knowing misrepresentations to the Brittons. We do not believe, however, that such a characterization of the Brittons' fraud case comports with the record. Their case rested, not on misrepresentations contained in the newspaper advertisements, but rather on the false statements of Boling. Because evidence regarding those statements was crucial to the Brittons' case, we turn our attention to the propriety of excluding much of that evidence. ⁵

When Veronica Britton was questioned about Boling's pre-sale representations, appellee entered a hearsay objection. The district court clearly erred in sustaining that objection over the Brittons' argument that statements made in Boling's capacity as BAI's agent were not hearsay. W.R.E. 801(d)(2)(D) states:

(d) Statements which are not hearsay.--A statement is not hearsay if:

* * * * * *

(2) Admission by Party-Opponent.--The statement is offered against a party and is * * * (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship.

Boling's statements as a car salesman, admittedly employed by the dealership at the time he sold the 1983 Buick Regal to the Brittons, were obviously offered against his employer. Any such statements made to Veronica Britton, a prospective customer, concerning the history of that vehicle were unquestionably "matter[s] within the scope of his agency or employment." W.R.E. 801(d)(2)(D). Thus, those statements were not hearsay and were erroneously excluded. See Kobielusz v. Wilson, 701 P.2d 559, 562 (Wyo.1985). This was fundamental evidence of Brittons' case, and particularly so since, by the buyer's copy of the sales instrument, she was the only buyer. See n. 7 infra.

BAI, however, asserts on appeal that, because Rex Britton testified concerning Boling's statements, any error in excluding Veronica Britton's testimony must be harmless. We cannot agree. While the substance of her testimony might be apparent from the record, we cannot with...