Dowd v. General Motors Acceptance Corp., WD

• Decision Date: 04 December 1984
• Docket Number: No. WD,WD
• Parties: John and Sandra DOWD, Respondents, v. GENERAL MOTORS ACCEPTANCE CORP., Defendant-Appellant. 35342.
• Court: Missouri Court of Appeals

Page 868

685 S.W.2d 868

John and Sandra DOWD, Respondents, v. GENERAL MOTORS ACCEPTANCE CORP., Defendant-Appellant.

No. WD 35342.

Missouri Court of Appeals,

Western District.

Dec. 4, 1984.

Motion for Rehearing and/or Transfer

to Supreme Court Overruled and Denied

Jan. 29, 1985.

Application to Transfer Denied

April 2, 1985.

Linda Virginia Gill of Gage & Tucker, Kansas City, for defendant-appellant.

Donald A. Witt, Platte City, for respondents.

Before TURNAGE, C.J., and SHANGLER and MANFORD, JJ.

MANFORD, Judge.

This is a civil action seeking actual and punitive damages upon a four-count petition presenting alternate theories of negligence, gross negligence, fraud, and prima facie tort. The claim was submitted upon prima facie tort. The jury returned a verdict for $90,000 upon which the court entered judgment. The judgment is reversed.

Appellant, General Motors Acceptance Corporation (hereinafter G.M.A.C.) was the original defendant at trial. Respondents, original plaintiffs at trial, are John and Sandra Dowd (hereinafter the Dowds).

G.M.A.C. has presented no less than thirteen points before this court. Due to the disposition of this appeal, only two of those points are taken up. G.M.A.C. alleges that the trial court (1) erred in overruling its motion for judgment N.O.V., because the Dowds failed to make a submissible case of prima facie tort, and (2) erred by abusing its discretion in awarding attorneys fees to the Dowds because G.M.A.C. was not in default of any deadline set by the court, nor was such award based upon the sustaining of any motion for sanctions.

John and Sandra Dowd were, at the time of trial, residents of Weston, Missouri. In December, 1979, the Dowds purchased from Girner Motors in St. Joseph, Missouri, a 1980 Honda Civic automobile. As part of the purchase, the Dowds executed an installment sales contract which was assigned to G.M.A.C. During 1980, the Dowds made payments to G.M.A.C. Since John Dowd changed employment and in contemplation of having use of a company vehicle in his new sales position, the Dowds decided to sell the 1980 Honda. In December, 1980, the Dowds requested a relative, one Carlos Anderson, to negotiate a sale of the Honda. Anderson contacted one Johnny Allred, a used car dealer in Knob Noster, Missouri, and Allred agreed to purchase the Honda. The terms of the Allred purchase were simple, providing only a payment of $4,000.00 by a check which contained the words, "title attached." The check was delivered to the Dowds and the Honda to Allred. The evidence revealed that the Dowds were not aware of any time limitation related to the sale/purchase to Allred. The Allred check was received by the Dowds on January 18, 1981, and John Dowd took the check to G.M.A.C. on January 19, 1981 to complete payment of the indebtedness owed G.M.A.C.

At the G.M.A.C. office, John Dowd met with an employee of G.M.A.C., Betty Coussens. No discussion was had regarding any time limitation on the sale, or that a signed title to the Honda was to be attached to the Allred check. It was Coussens' understanding that the term "title attached" indicated that she, on behalf of G.M.A.C., could and should release the G.M.A.C. lien on the certificate of title to the Honda and in turn attach the certificate of title to the Allred check. Discussion between Coussens and John Dowd included Dowd's inquiry of whether or not he should sign the title. Coussens advised John Dowd that signature was not necessary as Allred probably had a power of attorney. Coussens released the G.M.A.C. lien the same day (January 19, 1981), and told John Dowd that she would attach the certificate of title to the check and forward it to Allred via the necessary bank deposit and clearance. Coussens also advised John Dowd that he would receive within a week or so a check for the difference between the sale price and the balance owed G.M.A.C., along with a copy of the installment contract stamped paid.

On January 21, 1981, G.M.A.C. deposited the Allred check with the title certificate attached. The depositing bank sent the Allred check to the collecting drawee bank on January 22, 1981. On January 27, 1981, the depositing bank received from the drawee bank the check, certificate of title attached, and a memo of non-acceptance of the check because the Dowds, as sellers, had not signed the title certificate. On the same date (January 27, 1981), the depositing bank sent the check with the Certificate of title attached to G.M.A.C. G.M.A.C. called the Dowds and on January 29, 1981, the Dowds went to the G.M.A.C. office and signed the certificate of title. The evidence revealed that employees of G.M.A.C. were polite and apologized to the Dowds for having to have them return to sign the title. An employee of G.M.A.C. also informed the Dowds that G.M.A.C. was unaware that the title had to be signed. The check with the title attached was redeposited by G.M.A.C. on January 30, 1981, and the depositing bank resubmitted the check with title to the drawee bank on February 2, 1981. On February 2, 1981, Allred contacted John Dowd, advising the latter that he had not received the signed title. Allred further advised Dowd that if the title was not received by February 3, 1981, he (Allred) would stop payment on the check. The "time limit" imposed by Allred on February 2, 1981 was never disclosed to G.M.A.C. by John Dowd. On February 4, 1981, Allred stopped payment on the check. In the meanwhile, the Dowds had received from G.M.A.C. a check in the sum of $206.86 representing the difference between their loan balance and the sale price ($4,000.00) of the Honda, along with a copy of the installment contract stamped paid.

The Allred check was returned to G.M.A.C. The credit manager for G.M.A.C. contacted the Dowds, advising them of the return of the check. The credit manager requested the Dowds to pick up the Honda and return the $206.81 check, and to continue their payments under the installment contract. Upon the Dowds' refusal, they were advised that the $206.81 amount would be added back to their loan, crediting a delinquency of $83.50 for the November payment. There followed several collection letters that were sent the Dowds by G.M.A.C.

On February 16, 1981, an attorney for the Dowds wrote to G.M.A.C. stating that the Dowds believed they had no liability to G.M.A.C. because they were in possession of a stamped paid note. The credit manager for G.M.A.C. testified that it is likely someone called the Dowds' attorney and tried to resolve the matter. The Honda was repossessed by G.M.A.C. on February 18, 1981 after written notice of the repossession to the Dowds. When the Honda was sold, it left a deficiency of $496.24 on the loan. The Dowds were requested by G.M.A.C. to pay the deficiency, but the Dowds refused. G.M.A.C., rather than pursue the Dowds on the deficiency, charged the amount to profit and loss as a bad debt. This decision was reached upon G.M.A.C.'s concluding that the deficiency was too small to warrant the expense of collection, plus a potential cross-claim by the Dowds. On its books and records, the deficiency was recorded by a "Form 565", which included a notation "Responsibility for Deficiency--Customer Not Responsible--G.M.A.C. Decision." Testimony at trial defined the meaning of the foregoing wording as a decision by G.M.A.C. not to attempt collection of the deficiency from the Dowds.

On February 27, 1981, G.M.A.C. applied for a repossession title from the Missouri Department of Revenue. This application was accompanied by the required affidavit, which noted that repossession was based upon a default in payment of the installment loan. The Honda was sold on March 30, 1981. G.M.A.C. then reported to the Kansas City Credit Bureau, of which it is a member, that the $496.24 had been written off to profit and loss on the Dowd account. The testimony revealed that the foregoing procedures are normal and routine.

It was established that the G.M.A.C. statement to the Credit Bureau was accurate and true. It was also established that G.M.A.C. knew that in reporting the matter to the Bureau, the Dowds would receive what was called a PRL ¹ rating from the Credit Bureau, and G.M.A.C. knew that such rating would "probably" injure the Dowds' credit rating.

In July, 1981, the Dowds applied for credit with the Montgomery Ward Company. There was no plan by the Dowds to make a specific purchase at Wards. At this same time, the Dowds were in possession of valid Visa and Mastercard credit cards. Wards, as a credit practice, accepts Visa and Mastercard for purchases. Pursuant to the Dowds' application for credit, Wards made inquiry of the Credit Bureau, the PRL rating relative to the G.M.A.C. loan was revealed, and Wards turned down the Dowds' application. Subsequently, the Dowds received credit cards from Amoco and Sears, Roebuck & Co., in addition to the approval of a loan from the Bank of Weston. The only denial of credit to the Dowds was the Wards application. The Wards inquiry concerning the Dowds' application did not include a review of the repossession affidavit filed by G.M.A.C. with the Missouri Department of Revenue.

It was determined that the records of the Credit Bureau are open for inspection by anyone concerning his or her personal credit standing. In addition, any person who, after review of his or her credit file, has a disagreement with the information in such file may, in turn, file of record a statement of his or her account of the issues relative to the credit dispute. The Dowds did not enter any statement or account of the G.M.A.C. report until June, 1982. When they filed their statement, the file with the Credit Bureau was changed from a PRL designation to a "DRP" designation. ²

The Dowds testified that they lost time from their employment. John Dowd testified that he lost 1 1/2 days and Sandra Dowd stated that she lost a half of a day. Neither testified as to any lost wages or other expenses. The Dowds testified...