Dunlap v. Jimmy GMC of Tucson, Inc.

• Decision Date: 08 March 1983
• Docket Number: CA-CIV,No. 2,2
• Citation: 136 Ariz. 338,666 P.2d 83
• Parties: Jack DUNLAP and Peggy Dunlap, husband and wife, Plaintiffs/Appellees, v. JIMMY GMC OF TUCSON, INC., dba Jimmy Recreational Center, an Arizona corporation, Defendant/Appellant. 4288.
• Court: Arizona Court of Appeals

Page 83

666 P.2d 83

136 Ariz. 338

Jack DUNLAP and Peggy Dunlap, husband and wife, Plaintiffs/Appellees, v. JIMMY GMC OF TUCSON, INC., dba Jimmy Recreational Center, an Arizona corporation, Defendant/Appellant.

No. 2 CA-CIV 4288.

Court of Appeals of Arizona,

Division 2.

March 8, 1983.

Rehearing Denied Apr. 14, 1983.

Review Denied June 8, 1983.

Alpert & Fein, P.C. by James A. Fein and Mark M. Rubiner, Tucson, for plaintiffs/appellees

Johnson, Dowdall & Payne by Richard J. Dowdall and Daniel H. Parks, Tucson, for defendant/appellant.

OPINION

HATHAWAY, Judge.

This appeal arises from an action brought against the appellant, Jimmy GMC, as a third party defendant in a case originally filed against Jack and Peggy Dunlap, the third party plaintiffs. The original plaintiff was Citicorp, a finance company which filed suit against the Dunlaps for repossession of two vehicles and recovery of a deficiency judgment. The vehicles had been sold to the Dunlaps by Jimmy GMC. The Dunlaps filed the third party complaint against Jimmy and Neonex, the manufacturer of the vehicles, alleging breach of contract, breach of express and implied warranties, fraud, consumer fraud, and violation of the Magnusson-Moss Act. Arguing that the third party complaint constituted improper third party practice, Neonex made a pretrial motion to dismiss which was denied. At trial, both Neonex and Jimmy joined in a motion for a directed verdict on the same grounds and that motion was also denied. The case proceeded to trial on the third party complaint after Citicorp reached a settlement with the Dunlaps. The jury returned a verdict in favor of the Dunlaps and against Neonex in the amount of $35,000 in compensatory damages and $300,000 in punitive damages, and against Jimmy in the amount of $45,000 in compensatory damages and $250,000 in punitive damages. Jimmy appeals from that judgment after denial of its motion for a judgment n.o.v. or, in the alternative, a new trial.

Viewing the evidence in the light most favorable to sustaining the verdict, the following facts were established. The Dunlaps initially became interested in purchasing a Dreamer Recreational Vehicle and a Husky Tow Vehicle when they saw the vehicles advertised in an R.V. newspaper. While driving past Jimmy Recreational Center, they noticed a Husky Tow Vehicle on display and stopped to talk to a sales representative. The Dunlaps informed the salesman that they required a vehicle which could provide year-round permanent living quarters and which was well-insulated since they would live in both warm and cold climates. The salesman pointed out this feature in a brochure. The Dunlaps determined that the Dreamer would suit their needs and returned to Jimmy to "try and make a deal."

Jimmy did not have a Dreamer vehicle on the lot, and because the Dunlaps desired to inspect the vehicle before committing to such a large purchase, they initially decided to purchase only the Husky Tow Vehicle since it was compatible with the recreational vehicle they currently owned. They entered into a sales contract entitled Purchase Money Security Agreement with Jimmy on August 8, 1978. The next day, the Dunlaps entered into a second Purchase Money Security Agreement which replaced the first one and provided for a larger down payment. On August 10, the Dunlaps entered into a third Purchase Money Security Agreement for the purchase of both the Husky and the Dreamer after a salesman promised them that doing so would save a lot of money and headaches. Unlike the first and second agreements, this one did not provide for an extended three year warranty but instead contained a disclaimer by Jimmy of all express and implied warranties. However, Neonex did provide a full one year warranty and Jimmy was authorized by Neonex to perform warranty work on the vehicles. Citicorp then became the assignee of the Purchase Money Security Agreement.

When the Dreamer arrived at Jimmy's lot in Tucson, the Dunlaps went to inspect it and immediately noticed several problems with the vehicle. However, they were assured by Jimmy's personnel that they should not worry because everything "will be taken care of," and they accepted delivery of the Dreamer. Jimmy had also promised the Dunlaps that a factory representative would teach them how to use the special features of the Dreamer but such a person was never produced. Shortly after delivery, the Dunlaps became aware of several more problems with both the Dreamer and the Husky. They were again assured by Jimmy that the problems would be remedied. Although Jimmy personnel tried on several occasions to solve the problems, they were largely unsuccessful, sometimes causing more problems than they cured.

Within two months of delivery, the Dunlaps had noted thirty problems with the Husky and at least fifty-nine problems with the Dreamer, some so serious that the Dreamer was virtually uninhabitable. The Dunlaps sought the advice of an attorney who attempted to make Jimmy remedy the problems. Because they were not satisfied with Jimmy's inept attempts to repair the defects in their vehicles, the Dunlaps next contacted the manufacturer directly. Neonex sent a representative to Tucson to transport the vehicles to California where repairs were to be effected. When the vehicles were redelivered to the Dunlaps in late January, there were still many problems with them. At this point, the Dunlaps' attorney advised them to stop making payments. The attorney's advice was based on a clause in the assignment of the Purchase Money Security Agreement which provided that all defenses available against the seller of the goods were also available against the assignee of the contract. The units were eventually repaired and resold after being repossessed by Citicorp. Jimmy raises several issues on appeal but none merits reversal.

Jimmy's first allegation of error is that the trial court acted improperly in denying its motion for judgment n.o.v. The case was submitted to the jury on several counts after Jimmy's request for a directed verdict on each count had been denied. The jury returned a general verdict against both Neonex and Jimmy for punitive as well as compensatory damages.

Jimmy argues that judgment n.o.v. should have been granted because the evidence on each count was insufficient to sustain the verdict. Because we find the evidence sufficient to sustain the verdict on at least one count, consumer fraud, we deem it unnecessary to discuss the other counts.

Our resolution of this issue is governed by the following legal principles. First, a motion for judgment n.o.v. should be denied if there is any substantial evidence from which reasonable people could have found the ultimate facts to be such as to sustain the verdict. In re Estate of Accomazzo, 16 Ariz.App. 211, 492 P.2d 460 (1972). Second, in reviewing the denial of a motion for judgment n.o.v., we view the evidence in the light most favorable to sustaining the verdict. Tucson Title Insurance Company v. D'Ascoli, 94 Ariz. 230, 383 P.2d 119 (1963); Hurvitz v. Coburn, 117 Ariz. 300, 572 P.2d 128 (App.1977). Third, a general verdict will be upheld when several counts, issues or theories are submitted to the jury if evidence on one count, issue or theory is sufficient to sustain the verdict. Reese v. Cradit, 12 Ariz.App. 233, 469 P.2d 467 (1970).

In its reply brief, Jimmy asserts that this third legal principle is inapplicable because it moved for a directed verdict as to each count and, thus, there must be sufficient evidence presented on every count to sustain the verdict. In support of this argument, it cites Reese v. Cradit, supra, specifically in connection with the breach of express warranty count, contending that it was prejudicial error to submit this count to the jury because it is impossible to tell from the general verdict whether the jury awarded any damages on the basis of that count. We disagree.

Reese stands for the proposition that a general verdict will not be disturbed if it is supported by evidence sufficient to sustain the verdict on at least one count. In Reese, we did not decide the effect of a motion for a directed verdict on a general verdict supportable by evidence on at least one count where one or more other counts are unsupported.

We now decide that issue and find that the appellant's motion for directed verdicts does not warrant a different result. While there is authority to the contrary, Dillon v. Barnard, 328 Mass. 53, 101 N.E.2d 345 (Mass.1951), we agree with the statement of the court in Jenkins v. Chicago & Eastern Illinois Railroad, 5 Ill.App.3d 954, 284 N.E.2d 392 (1972):

"... where several causes of action have been alleged and a general verdict results, the verdict will be sustained against a general motion for directed verdict ... if there are one or more good causes of action or counts to support it." 284 N.E.2d at 397.

We note that here appellant made separate motions as to each cause of action and not a general one. However, we believe that this is a distinction without any difference.

Adoption of this rule might appear to have the potential of causing injustice to the defendant. However, the remedy is always in the hands of defense counsel. We believe it proper to place the burden of requesting special verdicts after a motion for a directed verdict has been denied on defense counsel rather than on counsel for the plaintiff.

A request for special verdicts would have been the proper method of assuring that the award of damages was not partly based on a count which had been erroneously submitted to the jury. Not having asked for special verdicts, Jimmy will not be heard to challenge the validity of the general verdict, the jury having been presented with ample evidence to sustain the award of damages on at least the consumer fraud count.

The Consumer Fraud Act provides an injured consumer with an implied private cause of action against a violator of the act. Sellinger v. Freeway...