Knight v. American Suzuki Motor Corp., No. A04A2106.

• Decision Date: 21 March 2005
• Docket Number: No. A04A2106.
• Parties: KNIGHT v. AMERICAN SUZUKI MOTOR CORPORATION.
• Court: Georgia Court of Appeals

612 S.E.2d 546

272 Ga. App. 319

KNIGHT v. AMERICAN SUZUKI MOTOR CORPORATION.

No. A04A2106.

Court of Appeals of Georgia.

March 21, 2005.

Amy Budow, Eric Fortas, Adam Krohn, Krohn & Moss, Ltd., Atlanta, for appellant.

Jefferson Allen, McGuire Woods, Atlanta, for appellee.

ADAMS, Judge.

Kevin Knight appeals from the trial court's grant of summary judgment to American Suzuki Motor Corporation, in his action seeking damages for breach of written and implied warranties in connection with his purchase of a new 2001 Suzuki Vitara.

On March 11, 2002, Knight purchased the Vitara from an authorized Suzuki dealer for $16,790.23, excluding finance charges. A few months after taking possession of the Vitara, Knight began to experience problems with it. On July 10, 2002, after driving the vehicle 4,892 miles, Knight brought it into an authorized Suzuki repair facility complaining that the air conditioning unit was making noise. A Suzuki repair technician determined that an exhaust bracket bolt was missing and replaced the bolt. Nevertheless, Knight returned on August 7, less than one month later, reporting that the air conditioning was making whining and rumbling noises, which increased as the vehicle got hotter. The repair technician noted a "rattle" on the work order and determined that he needed to order a part. Knight made an appointment to bring his vehicle back in for the repair and on August 28, the repair technician replaced the exhaust pipe.

Knight averred that he became frustrated because the vehicle was not being permanently repaired and decided to hire an attorney. In a letter dated September 6, 2002, Knight's attorney wrote Suzuki to complain of breach of warranty and to state that Knight was revoking acceptance of what he asserted was a nonconforming vehicle. The next day, however, Knight returned to the repair facility complaining of a grinding, growling noise in the engine upon start-up. In response, the repair technician confirmed that the output shaft was making a noise, and Suzuki repaired and replaced the vehicle's transfer assembly.

On September 10, 2002, Suzuki received a separate letter from Knight complaining that his air conditioner was still making noise. In response, a sales manager from the Suzuki dealership called Knight and asked him to bring in his automobile. On September 20, the service manager rode in the vehicle to determine the problem firsthand. Afterward, the service technicians replaced the unit's expansion valve, and also evacuated and recharged the system. During this visit to the repair facility, Knight also reported trouble with the brake light on the dashboard, which would illuminate when the vehicle turned a curve or was stopped at a red light, and in response, the technicians refilled the vehicle's brake fluid.

Knight admitted during his deposition that this time Suzuki's repair had corrected the problem with the air conditioner, and he had not heard the rattling noise since that time. He also conceded that the noise never interfered with the cooling capabilities of the air conditioner; rather, his complaint was about the noise it made. Nevertheless, Knight filed this lawsuit on October 24, 2002, asserting that the rattling noise had not been corrected.

While the action was pending, Knight reported various problems with the Vitara's windows and clutch. Suzuki repair technicians ordered replacements for Knight's windows in January 2003, and replaced the driver's side window in February after receiving the parts, but did not have time to complete replacement of the passenger-side window during that visit. Although a new passenger-side window unit was available, Knight did not reschedule an appointment to complete that repair until after his deposition in July 2003 because he said he had not had time. In fact, Knight did not return the automobile for this repair until September 20, 2003, and the window was repaired on October 4. During these later visits, he also reported problems with the clutch. Knight averred in his affidavit that the service technician indicated during one of the visits that he had adjusted the clutch, but no clutch repairs are reflected on the work orders.

The trial court granted Suzuki's motion for summary judgment as to Knight's claims for breach of express warranty, breach of implied warranty of merchantability and breach of warranty under the Moss-Magnuson Act. The court also found that even assuming that Knight had successfully revoked his acceptance of the Vitara, he had, in effect, re-accepted the vehicle by seeking repairs under the terms of the written warranty. Thus, the trial court denied Knight's claim to recover the purchase price of the vehicle.¹

This Court reviews the trial court's grant of summary judgment de novo, construing the evidence in a light most favorable to Knight. Latson v. Boaz, 278 Ga. 113, 598 S.E.2d 485 (2004). And in order to prevail at summary judgment, Suzuki was required to show that no genuine issue of material fact exists and that the undisputed evidence, when viewed in that light, warranted judgment in the corporation's favor as a matter of law. Because Suzuki would not bear the burden of proof at trial, it was only required to demonstrate an absence of evidence to support an essential element of Knight's case in order to prevail. Id.

1. Knight asserts that the trial court erred in granting the motion for summary judgment as to his claim for breach of express warranty.² The trial court found that no jury issue remained on Knight's claim that Suzuki breached its written limited warranty because the evidence showed that Suzuki had addressed all of Knight's concerns when he brought his car in for servicing and that the repairs had been made. The trial court noted, in particular, that the problems with the air conditioner had been resolved before Knight even filed his complaint. But Knight contends that a jury issue exists as to whether the repairs were done in a reasonable time or in a reasonable number of repair attempts. He asserts that he was required to take his car in for repairs on nine occasions to address a myriad of problems, and that the jury should decide whether this constituted a breach.

Knight filed his claim for breach of the limited warranty under the Magnuson-Moss Warranty Act and state law. "The Magnuson-Moss Warranty Act creates no claims except for attorney fees and relies upon state law to create and define implied warranties, breach, and some kinds of damages...." (Citations omitted.) McDonald v. Mazda Motors of America, 269 Ga.App. 62, 64, 603 S.E.2d 456 (2004) (physical precedent only). Therefore, the warranty law of Georgia applies, "except where the Magnuson-Moss Warranty Act requires a different result." Id.

Georgia law imposes two conditions before a breach of a written warranty can exist: (1) notice of the defect and (2) a reasonable opportunity to repair the defect. McDonald v. Mazda Motors, 269 Ga.App. at 65(1)(a), 603 S.E.2d 456, citing OCGA §§ 11-2-508; 11-2-605; 11-2-607(3)(a). See also DeLoach v. Gen. Motors, 187 Ga.App. 159, 369 S.E.2d 484 (1988). Accordingly, a warranty is not breached simply because a vehicle is found "on delivery or at some time thereafter within the warranty period to have a defective part or [an] operational deficiency." (Citation and footnote omitted.) Olson v. Ford Motor Co., 258 Ga.App. 848, 851(2), 575 S.E.2d 743 (2002). "Assuming the purchaser has maintained his vehicle in the manner specified, it is the refusal to remedy within a reasonable time, or a lack of success in the attempts to remedy [that] would constitute a breach of warranty." (Citation and footnote omitted; emphasis in original.) Id. And where the buyer makes the vehicle available for repair under the warranty, "refusal to repair, unsuccessful repair, or repeated failures of the repair constitute a breach of the express warranty." (Citations omitted.) McDonald v. Mazda Motors, 269 Ga.App. at 66(1)(a), 603 S.E.2d 456. See also Simpson v. Hyundai Motor America, 269 Ga.App. 199, 203(1)(a), 603 S.E.2d 723 (2004). Moreover, unless the repairs are accomplished within a reasonable amount of time, the warrantor may be deemed to be in breach of the warranty. Stephens v. Crittenden Tractor Co., 187 Ga.App. 545, 547(1)(a), 370 S.E.2d 757 (1988); Ford Motor Co. v. Gunn, 123 Ga.App. 550, 551(1), 181 S.E.2d 694 (1971).

There is no evidence that Suzuki refused to make repairs, and we agree with the trial court that Knight presented no evidence to raise an issue as to whether the repairs were unsuccessful. He admitted in his deposition that he had no further problems with the air conditioning unit after September 2002. And although at the time of Knight's deposition he was still having problems with the windows, he admitted that he had been too busy to take the car in for further repair. His later affidavit reflects that, after delaying seven months after the part for the passenger window became available, he returned the vehicle for additional repairs on the windows. He presented no evidence or testimony to indicate that these repairs were unsuccessful. At the time Knight sought repair of the windows, he also reported problems with the clutch. While the evidence is in conflict as to what repairs, if any, were performed on the clutch, Knight has failed to present evidence showing that the problem persisted after these visits. The last repair order on this issue simply indicates that the problem with the clutch could not be replicated by the service technician. See Simpson v. Hyundai Motor America, 269 Ga.App. at 204(1)(a), 603 S.E.2d 723 (summary judgment affirmed where plaintiffs failed to come up with any evidence of defects or refusal to repair or lack of success in repairing, except their own opinions that the cars were defective).

Thus, Suzuki's breach of its warranty occurred, if at all, in the failure to complete the repairs in a reasonable time. See Hightower v. Gen. Motors...