Gates v. Chrysler Corp., 78-2551

• Decision Date: 06 May 1981
• Docket Number: No. 78-2551,78-2551
• Citation: 397 So.2d 1187
• Parties: 1981-1 Trade Cases P 64,040 Patricia GATES, Appellant, v. CHRYSLER CORPORATION, a Foreign Corporation, and Frank Green Chrysler- Plymouth-Dodge, Inc., a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 1187

397 So.2d 1187

1981-1 Trade Cases P 64,040

Patricia GATES, Appellant, v. CHRYSLER CORPORATION, a Foreign Corporation, and Frank Green Chrysler- Plymouth-Dodge, Inc., a Florida Corporation, Appellees.

No. 78-2551.

District Court of Appeal of Florida, Fourth District.

May 6, 1981.

Rod Tennyson of Ombres, Powell, Tennyson & St. John, P. A., West Palm Beach, for appellant.

Edna L. Caruso, West Palm Beach, and Montgomery, Lytal, Reiter, Denney & Searcy, P. A., West Palm Beach, for appellee, Chrysler Corp.

HERSEY, Judge.

This is an appeal from a final judgment rendered in favor of appellant as to one count of her complaint and in favor of appellee on two additional counts.

Appellant's difficulties began with the purchase of a Plymouth Volare automobile from Frank Green Chrysler-Plymouth-Dodge, Inc. in 1977. Very shortly thereafter she began experiencing various problems with the automobile involving mechanical malfunctions, electrical failures and fuel distribution system irregularities. In addition, there were problems of body integrity including rust and faulty handles.

On numerous occasions between March and December of 1977 work had to be done on the automobile by a Chrysler dealership. Finally, in December, appellant met with a representative of appellee, Chrysler, and because of the continuing problems she requested a refund of her purchase price. Settlement negotiations failed.

Appellant filed suit, seeking, in Count I, damages and rescission against the selling dealership, in Count II damages and attorneys' fees against Chrysler for violation of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 and in Count III treble damages and attorneys fees against Chrysler pursuant to Sections 320.64, 320.696, and 320.697, Florida Statutes (1979).

The trial court directed verdicts in favor of Chrysler on Counts II and III. The jury brought in a verdict for damages against the selling dealership in the amount of $1,200. Appeal is taken from that part of the final judgment directing verdicts against appellant.

We note first that no appeal is taken from the award of damages. In fact, the record discloses that appellant has been paid and that the judgment has been satisfied. As to Count I, then, the issues have been put to rest.

Analyzing the allegations of Count II of the complaint in light of the material and relevant evidence, we conclude that three violations are relied upon to invoke the penalties of the Magnuson-Moss Warranty Act.

Appellant first urges that Chrysler was required to but did not express in writing any restrictions, disclaimers or modifications which Chrysler sought to engraft onto implied warranties arising out of the manufacture and sale of the automobile in question. Neither appellants' briefs nor the record contain any indication that Chrysler attempted at any time to restrict, modify, or disclaim any implied warranties. That being so, there was no requirement of written notice and no violation.

Second, appellant points out that Chrysler failed to make certain required disclosures on the face of its warranty. We find only one such omission applicable to the facts contained in this record. The statement which is required but which was omitted reads:

This warranty gives you special legal rights, and you may also have other rights which vary from state to state.

Appellee questions whether the rule imposing this requirement applies in this case because of the date of its enactment. 40 Fed.Reg. 60, 188 (1975). Whether or not it applies need not detain us long because the violation was at most a technical one and contributed not at all to appellant's damages. The relief which she sought and received was afforded by state law; obviously, she was not misled to her detriment by Chrysler's failure to advise her of that law's possible existence at the time of the sale.

We come, then, to the third possibility which is the crux of Count II. Appellant contends, and we think correctly, that a cause of action exists under Magnuson-Moss where there has been a breach of warranty which has not been remedied although the warrantor has been given a reasonable opportunity to cure the breach. Section 2304(a)(1), Magnuson-Moss Warranty Act.

It is undisputed that there was sufficient evidence to go to the jury on the question of rescission under Count I (even though rescission was in fact not the remedy eventually applied). Clearly, more elements are required to be proved for rescission than to sustain a finding of breach of warranty. Pinellas Central Bank & Trust Co. v. International Aerodyne, Inc., 233 So.2d 872 (Fla. 3d DCA 1970). Thus, there was more than slight evidence of a breach of warranty. Where there is any evidence on which a jury can find for the plaintiff, then a defendant's motion for directed verdict should be denied. Hillsborough Grocery Co. v. Leman, 51 Fla. 203, 40 So. 680 (1906). A motion for directed verdict should be granted only when the court, after viewing the evidence and testimony in the light most favorable to the nonmoving party, concludes that the jury could not reasonably differ as to the existence of a material fact or inference and that the movant is entitled to judgment as a matter of law. Kilburn v. Davenport, 286 So.2d 241 (Fla. 3d DCA 1973). Unless the evidence is such that under no view could a jury find in favor of the non-moving party, a verdict should not be directed. Atlantic Coast Line Railroad Co. v. Burquest, 101 So.2d 828 (Fla. 2d DCA 1958). We have applied these principles in a warranty case. See, e. g., Zabner v. Howard Johnson's, Inc. 201 So.2d 824 (Fla. 4th DCA 1967). We apply them again here, and reverse for a new trial on Count II.

Next we turn our attention to the directed...