McCrimmon v. Tandy Corp.

• Decision Date: 20 November 1991
• Docket Number: No. A91A1282,A91A1282
• Citation: 414 S.E.2d 15,202 Ga.App. 233
• Parties: , 17 UCC Rep.Serv.2d 1134, Prod.Liab.Rep. (CCH) P 13,095 McCRIMMON v. TANDY CORPORATION.
• Court: Georgia Court of Appeals

Page 15

414 S.E.2d 15

202 Ga.App. 233, 17 UCC Rep.Serv.2d 1134,

Prod.Liab.Rep. (CCH) P 13,095

McCRIMMON v. TANDY CORPORATION.

No. A91A1282.

Court of Appeals of Georgia.

Nov. 20, 1991.

Reconsideration Denied Dec. 11, 1991.

Certiorari Denied Feb. 4, 1992.

Edward W. McCrimmon, Doraville, pro se.

Doffermyre, Shields & Canfield, Everette Doffermyre, Jr., Atlanta, for appellee.

BEASLEY, Judge.

McCrimmon sued Tandy Corporation alleging fraud, breach of implied warranties of merchantability and fitness for a particular purpose, breach of express warranty and breach of contract in the sale of certain computer hardware and software. In his amended complaint, McCrimmon sought actual and punitive damages, expenses of litigation and attorney fees. He appeals from the grant of partial summary judgment to Tandy with respect to the claims of fraud and breach of implied warranties and from a ruling that a limitation on damages included in a limited warranty was enforceable as a matter of law. His claims for breach of contract and breach of express warranty remain pending in the trial court, as does his claim for expenses of litigation under OCGA § 9-15-14. The case previously appeared before this court on interlocutory appeal from an order compelling discovery. Tandy Corp. v. McCrimmon, 183 Ga.App. 744, 360 S.E.2d 70 (1987).

McCrimmon purchased from Tandy a Tandy Model 4 TRS-80 computer, a DWP-210 printer and a word processing software program called Model 4 SuperScriptsit, at a purchase price of $3,493. He averred that prior to making the purchase, he was orally advised by Tandy's agents that the equipment "would be well suited" to his particular needs, that he would have a period of 90 days in which to obtain a refund for any reason, and that a support staff would be made available if there were any problems in learning to operate the system.

The face of the sales receipt contained a handwritten notation, "30 day return, 90 day warranty." On the reverse side is a printed statement captioned, "LIMITED WARRANTY AND SOFTWARE LICENSE," which in pertinent part acknowledged that the seller "provides a Limited Warranty ... included with the packaging and manuals pertaining to all of its computer Equipment and Software programs purchased," and which incorporated by reference that limited warranty. It further informed the purchaser that the limited warranty "is available for inspection by the customer at the [seller's place of business] prior to purchase upon request."

McCrimmon took delivery of the equipment in April of 1984 and in the following few months experienced a series of problems with the system. He contends that Tandy was unresponsive to his subsequent requests for assistance. In July of 1984, McCrimmon attempted to rescind the sale but Tandy rejected his tender of the equipment and demand for a refund. This action followed.

1. Appellant contends, in enumerations of error one through six, that the court erred in awarding summary judgment to appellee with respect to his claim of fraud. The complaint alleged that appellant was induced to purchase the computer equipment in reliance on knowing misrepresentations by appellee to the effect that the equipment was suitable for his needs in a law office and that appellee would provide necessary service and support of the system, whereas the equipment proved to be defective and unsuitable for his needs and appellee failed to correct the alleged defects and deficiencies.

"The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. [Cit.] For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort." Crawford v. Williams, 258 Ga. 806, 375 S.E.2d 223 (1989). "Where there is no evidence [of] scienter, that is, that the false statement was knowingly made with false design, there can be no recovery. An innocent misstatement may amount to negligence but it is not fraud. [Cits.]" Day v. Randolph, 159 Ga.App. 474, 475, 283 S.E.2d 687 (1981).

The allegations that appellee knowingly misrepresented the suitability of the equipment for appellant's purposes, and that appellee knowingly concealed information that the system was defective, are wholly without evidence to support them. Appellee demonstrated that the equipment was commonly used for appellant's purposes. Appellant's own expert testified on deposition that the computer and printer sold to appellant were "very solid," reliable pieces of equipment. Even if appellee's representations concerning the reliability of the equipment proved to be untrue, there is no evidence that such representations were knowingly false. "If there is no actual knowledge of the defect on the part of the silent party there can be no concealment with the intent and for the purpose of deceiving the opposite party." Ideal Pool Corp. v. Baker, 189 Ga.App. 739, 741(1), 377 S.E.2d 511 (1989). Moreover, statements of opinion, general commendations and sales puffing cannot constitute the basis for a claim of fraud. U-Haul Co. v. Dillard Paper Co., 169 Ga.App. 280, 312 S.E.2d 618 (1983).

As to the allegations that appellee fraudulently misrepresented its intentions to service and support the system, appellee has shown that it responded to appellant's requests for assistance regarding operational problems and, in each instance, attempted to correct the problem. Its final offer of assistance was extended in a letter in August of 1984: "[W]e have not been given sufficient opportunity to address and resolve your problem. We are willing to work with you to overcome any obstacles that might prevent you from getting the use out of your equipment that you desire." Appellant's response was the institution of suit.

On motion for summary judgment, appellee demonstrated the absence of evidence of fraud, thereby casting upon appellant the burden of presenting specific evidence giving rise to a genuine issue of triable fact. See Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991); Hodge Residential v. Bankers First Fed., etc., Assn., 199 Ga.App. 474(2), 405 S.E.2d 302 (1991). The burden was not met, and appellee was entitled to judgment as a matter of law.

2. Appellant contends that the trial court erred in granting...