Ivy v. General Motors Acceptance Corp.

• Decision Date: 17 December 1992
• Docket Number: No. 89-CA-1359,89-CA-1359
• Citation: 612 So.2d 1108
• Parties: 20 UCC Rep.Serv.2d 381 Lester IVY v. GENERAL MOTORS ACCEPTANCE CORPORATION and American Lenders Service Company of Jackson, Inc.
• Court: Mississippi Supreme Court

Page 1108

612 So.2d 1108

20 UCC Rep.Serv.2d 381

Lester IVY v. GENERAL MOTORS ACCEPTANCE CORPORATION and American Lenders Service Company of Jackson, Inc.

No. 89-CA-1359.

Supreme Court of Mississippi.

Dec. 17, 1992.

Eugene C. Tullos, Tullos & Tullos, Raleigh, John S. Knowles III, Brantley & Knowles, Jackson, for appellant.

Chris J. Walker, William C. Reeves, Al Nuzzo, Markow Walker Reeves Firm, Jackson, for appellees.

Before ROY NOBLE LEE, C.J., and PRATHER and BANKS, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

In this case, a delinquent debtor complained about the manner in which a creditor's agents repossessed his 1986 Chevy van. The creditor's agents had employed a self-help method, which is still allowed under Mississippi law. The agents' employment of this method, the debtor urged, should be deemed improper since it allegedly resulted in a breach of peace and personal injuries. The debtor, Lester Ivy, concluded that the impropriety and the "maliciousness" of the manner in which the agents repossessed the van warrants imposition of both actual and punitive damages and sued the finance company, GMAC, and its agents, American Lenders, in the Circuit Court of Smith County.

The jury agreed with the debtor and awarded $5,000 in actual damages and $100,000 in punitive damages. The trial judge, however, disagreed to an extent; he granted the creditor's motion for a judgment notwithstanding the verdict (j.n.o.v.) vis-a-vis the punitive-damages award.

The debtor appealed, and the creditor cross-appealed. This Court affirms.

A. The Facts

No one disputes that 37-year-old Lester Ivy of Mount Olive defaulted on his van loan. As a result of Ivy's default, the creditor--General Motors Acceptance Corporation ("GMAC")--hired American Lenders Service Company of Jackson to repossess Ivy's van. ¹ On March 14, 1988--around 6:30 a.m.--Dax Freeman and Jonathan Baker of American Lenders drove to Lester Ivy's home. They drove on Ivy's gravel driveway, which is about a quarter-mile long, past a chicken house and the van parked near Ivy's mobile home. They quietly attempted to start the van, but their attempt failed. ² They then hitched the van to their tow truck and towed it away.

When Freeman and Baker reached the end of Ivy's driveway, Freeman stopped the tow truck and checked on the van. At that point, Freeman noticed someone running from the chicken house toward the mobile home. ³ Freeman jumped into the tow truck, drove off Ivy's property, and onto adjacent Chain Road. They drove a short distance and approached the intersection of Chain Road and Highway 35. Ivy had decided to "chase after" Freeman and Baker because he thought they were stealing his van. At that point, a pickup truck driven by Ivy passed Freeman and Baker. ⁴ Ivy pulled in front of the tow truck and "slammed on his brakes." ⁵ Freeman "hit the brakes" but was unable to stop before a "slight" collision with the rear bumper of Ivy's truck occurred. ⁶

Ivy exited his truck, and Freeman informed him that he and Baker worked for American Lenders and were repossessing his truck per GMAC's request. According to Freeman, Ivy responded that he would have given him the keys to the van if he had simply asked. Ivy denies making that statement.

After showing Ivy some "official-looking" documents which seemed to validate the repossession, ⁷ Ivy retrieved his personal belongings from the van. ⁸ According to Freeman, he asked Ivy if he wanted to call the sheriff's department to report the accident; Ivy said "no." ⁹ Freeman then provided Ivy with a telephone number to call in order to get his van back. At that point, they all departed.

About seven months following the repossession--on October 20--Ivy filed a complaint against GMAC and American Lenders (hereinafter collectively referred to as "GMAC") in the Smith County Circuit Court. Ivy contended: (1) that under Mississippi law, self-help repossession is permissible so long as it can be accomplished without a breach of peace; and (2) that Freeman and Baker's repossession of his van was invalid since they breached the peace and "caused him personal injuries." Ivy requested both actual and punitive damages. GMAC denied that Freeman and Baker breached the peace and that the repossession was invalid.

Upon completion of a trial, a jury awarded Ivy $5,000 in actual damages and $100,000 in punitive damages. ¹⁰ GMAC subsequently filed for a judgment notwithstanding the verdict/new-trial motion. The circuit judge granted the j.n.o.v. motion with regard to the punitive-damages award and set aside the $100,000 punitive damage award.

B. The Issues

Ivy appealed and raised the following issue:

Whether the trial judge erred in granting GMAC's motion for a judgment notwithstanding the verdict concerning the jury's award of punitive damages to Ivy?

GMAC cross-appealed and raised numerous issues for analysis:

Whether the trial judge erred in not directing a verdict for GMAC, not setting aside the jury's verdict in its entirety or, alternatively, ordering a new trial on all issues since a breach of peace did not occur as a matter of law?

Whether the trial judge erred when he refused to strike most or all of the prospective jurors tendered to GMAC after liability insurance was mentioned and an overwhelming majority of the prospective jurors indicated their belief that GMAC was wrong in not contacting Ivy before repossessing his vehicle, prior to hearing any evidence or the applicable law?

Whether the trial judge abused his discretion during the course of the trial by overruling GMAC's motion in limine and repeated objections to Ivy's attorney mentioning "replevin" when a writ of replevin is not necessary for self-help repossession?

Whether the trial judge was correct when he set aside the jury verdict of $100,000 punitive damages as there was no credible evidence presented by Ivy to support the award of punitive damages and any award of punitive damages violates both the U.S. and Mississippi Constitutions?

Whether Ivy properly perfected his appeal from the Circuit Court of Smith County to the Mississippi Supreme Court as prescribed by Miss.S.Ct.R. 3(C)?

In addition to these five issues, GMAC raised several miscellaneous issues and sub-issues. GMAC's issues will be analyzed first.

II. ANALYSIS

A. GMAC's Issue # 1: Whether the Jury Erred in Awarding Actual Damages?

GMAC contends that its agents did not breach the peace and, therefore, it should not have been held liable for actual damages. Ivy, of course, disagrees.

Mississippi law authorizes a creditor or secured party to repossess collateral without judicial process if he or she can do so without breaching the peace. Miss.Code Ann. Sec. 75-9-503 (1972). The legislature did not define "breach of peace," but this Court has provided some indication. For example, this Court has held that entering a private driveway to repossess collateral without use of force does not constitute a breach of peace. Dearman v. Williams, 235 Miss. 360, 370, 109 So.2d 316, 320-21 (1959); Martin v. Cook, 237 Miss. 267, 276, 114 So.2d 669, 670 (1959); see Butler v. Ford Motor Credit Co., 829 F.2d 568, 569 (5th Cir.1987).

This Court has also held that a creditor, who repossesses collateral despite the fact that the debtor has withheld his or her consent or has strongly objected, did not breach the peace. Commercial Credit Co. v. Cain, 190 Miss. 866, 868-70, 1 So.2d 776, 777-78 (1941); Furches Motor Co. v. Anderson, 216 Miss. 40, 52-53, 61 So.2d 674, 680 (1952).

Courts in other jurisdictions have generally held that the use of trickery or deceit to peaceably repossess collateral does not constitute a breach of peace. See Parks v. Associates Commercial Corp., 181 Ga.App. 235, 351 S.E.2d 661 (1986); Speigle v. Chrysler Credit Corp., 56 Ala.App. 469, 323 So.2d 360, cert. den. 295 Ala. 420, 323 So.2d 367 (1975); Cox v. Galigher Motor Sales Co., 158 W.Va. 685, 213 S.E.2d 475 (1975); Thompson v. Ford Motor Credit Co., 324 F.Supp. 108 (D.C.S.C.1971). But see Chrysler Credit Corp. v. McKinney, 38 UCC Rep.Serv. 1409 (Ala.1984); Walker v. Walthall, 121 Ariz. 121, 588 P.2d 863 (1978).

A Florida Court of Appeal opined that a debtor's "physical objection"--"even from a public street"--bars repossession. See Marine Midland Bank-Central v. Cote, 351 So.2d 750, 752 (Fla. 1st DCA 1977).

A Georgia Court of Appeal found a breach of peace in a case in which: (1) the creditor repossessed the debtor's automobile by blocking it with another automobile; (2) the creditor informed the debtor that he could just "walk his a__ home"; and (3) the debtor "unequivocally protested" the manner of repossession. See Deavers v. Standridge, 144 Ga.App. 673, 242 S.E.2d 331, 334 (1978).

The Ohio Supreme Court opined that the use of intimidation or acts "fraught with the likelihood of violence" constitutes a breach of peace. See Morris v. First Nat'l Bank & Trust Co., 21 Oh.St.2d 25, 254 N.E.2d 683, 685-87 (1970); accord Kirkwood v. Hickman, 223 Miss. 372, 78 So.2d 351 (1955); Harris Truck & Trailer Sales v. Foote, 58 Tenn.App. 710, 436 S.W.2d 460, 463-64 (1968).

In sum, much of the litigation involving self-help repossession statutes involves the issue of whether a breach of peace has occurred. Disposition of this issue is not a simple task:

Since physical violence will ordinarily result in a breach of peace, the secured party's right to repossession will end if repossession evokes physical violence, either on the part of the debtor or the secured party. At the other extreme from physical violence, a secured party may peaceably persuade the debtor to give up the collateral so that no breach of peace occurs. Between those two extreme situations--one in which violence occurs and the other in which the debtor peaceably gives up the collateral--lies the line which divides those cases in which the secured party may exercise self-help repossession and those in which he must resort to the courts. As with most dividing lines,...