Isbell v. Credit Nation Lending Serv., LLC

• Decision Date: 29 November 2012
• Docket Number: A12A1361.,Nos. A12A1360,s. A12A1360
• Parties: ISBELL et al. v. CREDIT NATION LENDING SERVICE, LLC et al. Credit Nation Lending Service, LLC et al. v. Isbell et al.
• Court: Georgia Court of Appeals

319 Ga.App. 19

735 S.E.2d 46

ISBELL et al.

v.CREDIT NATION LENDING SERVICE, LLC et al.

Credit Nation Lending Service, LLC et al.

v.Isbell et al.

Nos. A12A1360, A12A1361.

Court of Appeals of Georgia.

Nov. 29, 2012.

Robert Allen Kaiden, Cristina Isabel Kaiden, Smyrna, for Appellant.

Eric L. Jensen, Atlanta, Theodore Brandon Welch, Jason Wayne Graham, Atlanta, for Appellee.

Miller, Presiding Judge.

Jonathan and Mary Katheryne Isbell sued Credit Nation Lending Service, LLC (“CNLS”) and Credit Nation Auto Sales, LLC, d/b/a Synergy Motor Company, d/b/a Kellee Kars, Inc., d/b/a Kellee Kars Isuzu, d/b/a KKL Services (“CNAS”) (collectively, “Credit Nation”), raising claims of fraud, breach of oral contract, and violations of the Georgia Fair Business Practices Act (“FBPA”) (OCGA § 10–1–390 et seq.) and the federal Truth in Lending Act (“TILA”) (15 USC § 1601 et seq.) in relation to the Isbells' purchase and financing of a used vehicle.¹ Credit Nation filed a motion for summary judgment, and the Isbells responded with a cross-motion for partial summary judgment. Credit Nation moved to strike an affidavit and 21 exhibits attached to the Isbells' motion for summary judgment, as well as a supplemental affidavit. The trial court granted Credit Nation's motion for summary judgment and denied the Isbells' partial summary judgment motion. The trial court also denied Credit Nation's motions to strike. These cross-appeals then ensued.

In Case No. A12A1360, the Isbells contend that the trial court failed to consider their deposition exhibit and erred in finding that they did not present evidence to support their claims. For the reasons stated below, we affirm in part and reverse in part the trial court's judgment in Case No. A12A1360.

In Case No. A12A1361, Credit Nation contends that the trial court erred in denying its motions to strike because the subject exhibits and documents were not authenticated or contained hearsay. For the reasons that follow, we affirm the trial court's rulings in Case No. A12A1361.

On appeal from the grant or denial of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law. Holbrook v. Stansell, 254 Ga.App. 553, 553–554, 562 S.E.2d 731 (2002).

So viewed, the record shows that on October 20, 2008, the Isbells called Credit Nation² in response to an online advertisement about a [319 Ga.App. 20]2002 Ford Explorer. Mr. Isbell explained to a Credit Nation salesperson that he was interested in the advertised vehicle, and that he wanted a vehicle that had not been in an accident, did not have any body damage, and did not require any repair. The salesperson assured Mr. Isbell that the Ford Explorer met Mr. Isbell's requirements. When the Isbells visited Credit Nation later that day, the salesperson had the Ford Explorer parked in front of the dealership ready for the Isbells to test drive. During the ensuing test drive, Mr. Isbell stopped at a gas station to inspect the vehicle for body work. Upon returning to the Credit Nation lot, Mr. Isbell lifted the hood and examined the engine. During his inspections, Mr. Isbell did not find any defects or damage. Mr. Isbell then asked the salesperson about the vehicle's condition, and the salesperson responded that there was nothing wrong with the vehicle.

The Isbells agreed to buy the vehicle, paying $3,500 in cash as a down payment and using Credit Nation's financing affiliate, CNLS, to finance the remainder of the vehicle's cost. The Isbells negotiated a semi-monthly payment plan, which required them to make 24 payments per year and 78 total payments over the total 39–month financing period. The Credit Nation sales manager inputted these figures into a software program, which generated the TILA disclosures. The TILA disclosures were verified by a finance manager and disclosed to the Isbells.

During the negotiations, Mr. Isbell requested a Carfax report on the Ford Explorer so that he could verify that the vehicle had not been involved in an accident. Mr. Isbell did not receive the requested report before signing the purchase agreement. The Isbells purchased the vehicle “as is,” and authorized Credit Nation to withdraw payments by charging Mr. Isbell's debit card.

Upon returning home with the Ford Explorer, Mr. Isbell obtained a vehicle history report and discovered that the vehicle had suffered frame damage. The next morning, Mr. Isbell returned to Credit Nation to complain about the vehicle's damage. Credit Nation's general manager told Mr. Isbell that his down payment had already been deposited, and that the contract could not be rescinded. Mr. Isbell left with the Ford Explorer that day, but subsequently returned several more times to demand that Credit Nation take the vehicle back. Within two weeks of the Isbells' purchase, Credit Nation agreed to accept the Ford Explorer and to attempt to find the Isbells a replacement vehicle that was similar to the one they purchased. Credit Nation provided the Isbells with loaner vehicles while searching for a replacement vehicle. During the subsequent search, Credit Nation continued to charge payments against Mr. Isbell's debit card, although he had previously asked the dealership to cease making such charges.

Credit Nation attempted to find a suitable vehicle for the Isbells and, after failing do to so, demanded that the Isbells return the loaner vehicle and pick up the Ford Explorer. The Isbells refused to reclaim the Ford Explorer they purchased. Credit Nation subsequently repossessed the loaner vehicle.

The Isbells later sued Credit Nation for fraud and violation of the FBPA on the ground that Credit Nation falsely represented the vehicle's condition as having no frame or transmission damage. The Isbells also sued for breach of contract, alleging that Credit Nation broke its oral promise to find a suitable replacement vehicle for the Isbells. The Isbells also asserted that Credit Nation violated the FBPA by misrepresenting the business entities involved in the transaction, and that the dealership violated TILA by failing to disclose the payment schedule.³

Credit Nation moved for summary judgment, claiming that the Isbells' fraud claim failed as a matter of law because they presented no evidence that the dealership knew the vehicle was damaged or defective, and that the Isbells could not show justifiable reliance on any alleged misrepresentation. Credit Nation also argued that the Isbells' breach of contract claim failed because any promise to find a replacement vehicle was unenforceable for lack of material terms and for violating the statute of frauds. In addition, Credit Nation argued that the Isbells' FBPA claim based on misrepresentation of the vehicle's condition failed for the same reasons the fraud claim failed. Credit Nation also asserted that the Isbells' FBPA claim based on the use of multiple business entities failed since Credit Nation was permitted to use multiple trade names and there was no evidence that the Isbells were actually confused by such use. Credit Nation also contended that its TILA disclosures were accurate, and that to the extent they were not, it was entitled to a bona fide error defense since any errors were unintentional.

The Isbells filed a cross-motion for partial summary judgment, and Credit Nation moved to strike documents attached to the Isbells' motion and a supplemental affidavit. Following a hearing, the trial court issued an order granting summary judgment to Credit Nation, denying the Isbells' cross-motion for partial summary judgment, and denying Credit Nation's motions to strike.

Case No. A12A1360

1. The Isbells contend that the trial court erred in granting Credit Nation's motion for summary judgment because it ignored Mr. Isbell's deposition exhibits that were not filed with the clerk of the court. Their claim lacks merit.

Under OCGA § 9–11–56, once a movant supports his motion for summary judgment, the opponent cannot rest upon the mere allegations of his complaint, but must come forth with affidavits or other evidence setting forth specific facts showing that a genuine issue exists for trial. And the burden of timely filing depositions and other discovery material with the trial court lies with the party which intends to rely upon it.

(Citations and punctuation omitted.) Parker v. Silviano, 284 Ga.App. 278, 281(2), 643 S.E.2d 819 (2007).

Here, Credit Nation filed Mr. Isbell's deposition and referred to his deposition testimony in support of their motion for summary judgment. Mr. Isbell's deposition referred to certain exhibits, which were not attached to the deposition filed by Credit Nation. Since the Isbells were relying on the subject deposition exhibits, it was their burden to ensure that the record was complete. Parker, supra, 284 Ga.App. at 281(2), 643 S.E.2d 819. Nevertheless, the record shows that the subject deposition exhibits were attached to the Isbells' statement of undisputed material facts. Since the trial court stated that it considered the entire record upon ruling on the motions for summary judgment, and there is no evidence to the contrary, the Isbells have failed to demonstrate that they were harmed by Credit Nation's failure to attach the deposition exhibits with the deposition transcript. As such, the Isbells' claim affords no basis for reversal. See Hooks v. Humphries, 303 Ga.App. 264, 269(4), 692 S.E.2d 845 (2010) (“[I]t is axiomatic that harm as well as error must be shown to authorize a reversal by this court.”) (citation and punctuation omitted).

2. The Isbells contend that the trial court erred in granting summary judgment to Credit Nation on their fraud and rescission claim for failure to present admissible evidence that Credit Nation knew that the Ford Explorer had transmission and frame damage. We...