Gateway Leasing Corp. v. Heath, 66937

Decision Date28 October 1983
Docket NumberNo. 66937,66937
Citation168 Ga.App. 858,310 S.E.2d 549
CourtGeorgia Court of Appeals

H. William Cohen, Stephen M. Forte, Atlanta, for appellant.

Richard G. Greer, J. Blair Craig II, Atlanta, for appellee.

BANKE, Judge.

The plaintiff filed suit to recover damages for the defendant's alleged breach of a motor vehicle lease agreement, and the defendant counterclaimed for damages for breach of contract and fraud. Following a jury trial, the court directed a verdict for the defendant on the complaint, and the jury awarded him $4,500 in actual damages and $27,000 in punitive damages on his counterclaim. However, in entering judgment on the verdict, the trial court reduced the award of actual damages to $4,043.28. This was done at the request of the defendant for the purpose of conforming the judgment to the evidence presented at trial. The plaintiff filed this appeal.

The defendant was a dealer-salesman for a tool company known as "Snap-on Tools." According to a sales brochure furnished to him by the plaintiff, the vehicle in question was custom-designed for use as a Snap-on Tools display van and was "properly equipped and specially designed to provide maximum capacity and operating efficiency" in this regard.

The defendant testified that prior to the execution of the lease agreement, the plaintiff's salesman told him that if something "should go wrong" with the vehicle, the plaintiff would fix it. The lease contract contained a series of boxes above the signature line which were designed to indicate which party was to be responsible for such matters as insurance, maintenance, tires, and registration fees. On the copy of the contract introduced into evidence by the plaintiff, all of these boxes were checked so as to designate the lessee as the party responsible for these items. However, on the copy given to the defendant after the contract was executed, all the boxes were blank.

The lease was for a period of 48 months. The defendant testified that the day after he took possession of the van, a generator which operated the vehicle's two air-conditioning units ceased to function. After several unsuccessful attempts were made to repair the system over the course of the following year, the plaintiff finally informed the defendant that the generator was not powerful enough to operate both the air-conditioning units and told him the only way to make it function properly was to remove one of the units. The defendant also experienced a problem with water accumulating inside the van. After determining that the water was being thrown into the van through an opening in one of the tire wells, he attempted to have the opening welded closed, only to learn that the metal body of the van was too thin to hold a weld. Finally, on March 13, 1980, one of the display racks inside the van pulled loose from the wall and fell under the weight of the tools which were stored on it. There was testimony that this occurred because the rivets which were used to attach the shelves were inadequate for this purpose. The defendant acquired another display van from another company on March 28, 1980; and on March 30, he informed the plaintiff that he did not intend to make any more payments on the lease. The plaintiff accordingly repossessed the vehicle and, several months later, filed this lawsuit.

The only evidence presented by the plaintiff to establish the amount of the defendant's alleged liability was the testimony of its vice-president and general manager, who admitted that he had no direct knowledge of the status of the account. Asked to state the number of payments made by the defendant, the manager responded, "I think he paid through December, so that's 18 months." It is apparent that this witness' testimony concerning the amount of the defendant's alleged indebtedness under the lease was derived not from an examination of any books of account or other records prepared in the ordinary course of the plaintiff's business but rather from a summary which had been prepared by some unknown person in support of the plaintiff's demand for payment. This summary was not shown to be a business record within the meaning of OCGA § 24-3-14 (Code Ann. § 24-3615). Furthermore, the witness admitted that three months after repossessing the vehicle, the plaintiff re-leased it to another person for a monthly rental greater than that which the defendant had contracted to pay; and the plaintiff's figures did not even purport to take this rental income into account.

In this appeal, the plaintiff enumerates 25 alleged errors; however, many of these are redundant and most have been grouped together by the plaintiff for purposes of argument. None of the enumerations of error were initially referenced to the record or transcript as required by Rule 15(c)(3)(i) (Code Ann. § 24-3615) of this court, although such references were eventually provided by way of a second supplemental brief filed after oral argument in the case. Held:

1. The trial court did not err in granting the defendant's motion for directed verdict on the complaint, as the plaintiff's evidence with respect to damages was wholly inadequate to support a verdict in its favor in any amount.

2. The evidence was sufficient to authorize the jury to conclude that the defendant was fraudulently induced to enter into the contract by the plaintiff's deliberate misrepresentations as to whether it intended to repair the vehicle if something should "go wrong." "A promise made without a present intention to perform is a misrepresentation of a material fact and is sufficient to support a cause of action for fraud." Middlebrooks v. Lonas, 246 Ga. 720, 721, 272 S.E.2d 687 (1980). A lack of present intention to perform may be inferred in this case from the evidence that the lease agreement was altered by the plaintiff after the defendant signed it, so as to reflect that the defendant had assumed responsibility for repairs. It follows that the jury was authorized to award punitive damages.

3. In response to an objection by the plaintiff to the qualifications of a witness called upon by the defendant to offer an opinion as to the adequacy of the rivets used to attach the shelving to the inside of the van, the trial court erroneously ruled that the qualifications of an expert are for the jury to determine rather than for the court. "Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court... [Cits.]" Rose Mill Homes, Inc. v. Michel, 155 Ga.App. 808, 809, 273 S.E.2d 211 (1980). The error was harmless in this case, however, since the witness clearly demonstrated a familiarity with the type of rivet in question, based on his previous experience in repairing airplanes. Furthermore, there was no real dispute over the fact that the rivets were inadequate to support the fully tool-laden shelves.

4. The plaintiff contends that the verdict was invalid because the jury did not specify whether the award of actual damages was for fraud or for breach of contract. "A general verdict...

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6 cases
  • Aniebue v. Jaguar Credit Corp...
    • United States
    • Georgia Court of Appeals
    • February 16, 2011
    ...the amount of Aniebue's indebtedness, such reliance would be inadequate to establish damages. See Gateway Leasing Corp. v. Heath, 168 Ga.App. 858, 859–860(1), 310 S.E.2d 549 (1983). We conclude, therefore, that JCC failed to carry its burden of showing that there is no genuine issue of mate......
  • Henderson v. Glen Oak, Inc.
    • United States
    • Georgia Court of Appeals
    • May 23, 1986
    ...content of the verdict form submitted to the jury and therefore his objection in this regard is waived. Gateway Leasing Corp. v. Heath, 168 Ga.App. 858, 861(4), 310 S.E.2d 549 (1983). 5. Appellant contends the trial court erred by failing to grant his motion for new trial and for judgment n......
  • Osburn v. Harbison
    • United States
    • Georgia Court of Appeals
    • July 10, 1985
    ...The judgment is to be fashioned to conform to the intendment of the jury as it appears from the record. Gateway Leasing Corp. v. Heath, 168 Ga.App. 858(5), 310 S.E.2d 549 (1983). And that is how everyone understood it. The judgment, entered several weeks later, evidences that all agreed tha......
  • Joe Yates Builders, Inc. v. Tyson
    • United States
    • Georgia Court of Appeals
    • February 26, 1985
    ... ... Compare Gateway Leasing Corp. v. Heath, 168 Ga.App. 858, 861(5), 310 S.E.2d ... ...
  • Request a trial to view additional results

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