DeLoach v. General Motors

• Decision Date: 12 April 1988
• Docket Number: No. 75976,75976
• Citation: 187 Ga.App. 159,369 S.E.2d 484
• Parties: DeLOACH et al. v. GENERAL MOTORS et al.
• Court: Georgia Court of Appeals

Page 484

369 S.E.2d 484

187 Ga.App. 159

DeLOACH et al. v.GENERAL MOTORS et al.

No. 75976.

Court of Appeals of Georgia.

Decided April 12, 1988.

Rehearing Denied May 16, 1988.

Bobby T.A. Jones, Michael L. Chidester, Metter, for appellants.

Sam L. Brannen, Jon G. Branan, Gary L. Mikell, Statesboro, for appellees.

BIRDSONG, Chief Judge.

This is an appeal from a defendant's verdict, in a case involving a defective new car.The plaintiffs, Perry Tucker and James DeLoach d/b/a Candler Timber Company, claimed damages for fraud, breach of warranty, and violation of the Fair Business Practices Act.Held:

1.A named appellee NeSmith Chevrolet, Oldsmobile, Pontiac, Inc. is dismissed from this appeal on motion because it was dismissed in the court below and is not a party to the appeal.

2.Appellants contend the verdict is contrary to the evidence and the weight of the evidence, since it was undisputed plaintiffs suffered damages through no fault of their own.This argument overlooks the fact that, however damaged, and even though evidence of damage is undisputed, the plaintiff is not entitled to a verdict recovering damages unless the jury finds defendant liable for the damage.The jury found defendant General Motors not liable for whatever undisputed damage appellants incurred.

3.The trial court did not err in charging that "where a warranty offers to replace defects in a motor vehicle, there is no breach of warranty upon which the Plaintiff may recover if the Plaintiff has not given the opportunity, within a reasonable time, to replace or repair the defects under the terms of the warranty.Only when there is a refusal to repair or replace, or there is a lack of success in making repairs or replacement, has breach of warranty occurred."

Appellants concede that the charge given is basically correct ( Space Leasing v. Atlantic, etc., Systems, 144 Ga.App. 320, 325, 241 S.E.2d 438); but they contend the charge is inapplicable to this case because they did not want a repaired car and would be satisfied by nothing less than a new car, in place of the defective vehicle.However, the law does not entitle appellants to a new car upon proof of a defect, but only to a remedy upon the breach of warranty.The express warranty attaching to this vehicle provided that General Motors would repair any defects in material and workmanship.It also provided: "If you are not satisfied with the repairs, you should follow the steps shown on pages 14 and 15.In those few cases where our 3-step satisfaction procedure fails to resolve an owner complaint, we also offer (at no cost to you) the GM Mediation/Arbitration Program, which provides for review of the facts by an independent third party.You must use this Program before seeking remedies provided in some laws, including the Magnuson-Moss Warranty Act; however, use of the Program is not required by some other laws.Seepage 15 for further information about the GM Mediation/Arbitration Program or use the addressed form provided under 'Owner Assistance' to write us."These being the express provisions and conditions of the warranty, a breach of that warranty would occur only upon GM's refusal to remedy the defect or a lack of success in the attempts to remedy.Ford Motor Co. v. Gunn, 123 Ga.App. 550, 551, 181 S.E.2d 694.Since GM was not permitted by appellants to attempt to repair the defect, it cannot be liable for breach of the warranty attaching to the vehicle.It is not sufficient to obviate the warranty remedy that the appellants contend that an attempt to repair would have been a useless act and that their insistence on a new car was not unreasonable.Whether an attempted repair would have been a useless act, resulting in extant damages, was a proposition not permitted to be tested or proved by the appellants, and thus it cannot be determined as a matter of law that their insistence upon a new car was reasonable.The jury found it was not.

4.Enumeration 5 is deemed abandoned for failure to argue and cite authority.Hazlett, etc., Co. v. Virgil Womack Constr. Co., 181 Ga.App. 25, 351 S.E.2d 218.

5.Appellants contend the trial court erred in directing a verdict for General Motors on appellant's count for violation of the Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq.However, the appellants failed to show an " 'unfair or deceptive...