Miles Rich Chrysler-Plymouth, Inc. v. Mass, CHRYSLER-PLYMOUT

• Court: United States Court of Appeals (Georgia)
• Citation: 411 S.E.2d 901,201 Ga.App. 693
• Docket Number: No. A91A1066,CHRYSLER-PLYMOUT,INC,A91A1066
• Parties: MILES RICHet al. v. MASS.
• Decision Date: 31 October 1991

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411 S.E.2d 901 201 Ga.App. 693 MILES RICH CHRYSLER-PLYMOUTH, INC. et al.
v.
MASS. No. A91A1066. Court of Appeals of Georgia. Oct. 31, 1991.

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[201 Ga.App. 700] Macey, Wilensky, Cohen, Wittner & Kessler, Mark L. Golder, Susan L. Howick, Atlanta, for appellants.

Allen R. Mass, Atlanta, for appellee.

[201 Ga.App. 693] SOGNIER, Chief Judge.

Maripat Mass brought suit against Miles Rich Chrysler-Plymouth, Inc. (MRCP) and Miles Rich alleging common law fraud, breach of contract, promissory estoppel, and intentional violation of the Georgia Fair Business Practices Act, OCGA § 10-1-390 et seq. (FBPA), arising out of her attempt to purchase a 1987 Plymouth Grand Voyager. The jury found in favor of Mass on all claims. The trial court denied the motions for new trial and judgment notwithstanding the verdict made by Rich and MRCP, and they appeal.

[201 Ga.App. 694] 1. We find no merit in appellants' claim that the trial court erred by failing to bifurcate the trial of this case pursuant to OCGA § 51-12-5.1(d). Pretermitting the question whether appellee's cause of action arose on or after July 1, 1987, the effective date of the statute, OCGA § 51-12-5.1(h), and even assuming the statute is applicable, the record reveals that appellants acquiesced in the trial court's action of submitting the issue of punitive damages to the jury together with the liability issues, see generally Capes v. Bretz, 195 Ga.App. 467, 469(2), 393 S.E.2d 702 (1990), and requested the trial court to take the very action they now challenge by proffering a verdict form which proposed submitting the issues of liability and punitive damages together. No fraud or mistake having been alleged or shown, appellants have no basis for complaint in this regard. Marsh

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v. White, 185 Ga.App. 642, 645(4), 365 S.E.2d 464 (1988).

2. Appellants contend error in the denial of their motion for new trial made on the basis that the trial court erroneously admitted evidence concerning complaints made by other disgruntled customers against MRCP. While appellants effectively concede the propriety of the trial court's ground for admitting this evidence, namely, to impeach appellants' discovery responses that no documents of complaints by customers to government agencies existed, appellants argue appellee used this evidence not to impeach but to inflame the jury and to introduce similar transactions before the jury.

The transcript reveals that during cross-examination of Rich, the discovery request and appellants' negative response were read to the jury and evidence of other complaints was introduced. Rich then explained appellants' negative discovery response on the basis that the complainants were not memorable. Appellee's counsel questioned Rich about the details of a few of the complaints, including one alleging Rich had obscenely and abusively ordered a customer out of his office. Upon objection, the trial court agreed with appellee that the questions were relevant to the impeachment of appellants because they enabled the jury to determine whether the complaints were or were not memorable. We find no abuse of the trial court's discretion in admitting the challenged evidence. See generally Weaver v. Ross, 192 Ga.App. 568, 570(1), 386 S.E.2d 43 (1989).

3. Appellants contend the trial court erred by denying their motions for directed verdict, judgment n.o.v., and new trial on appellee's claims and by entering judgment on the jury's award of damages and attorney fees. Applying the any evidence standard to the case sub judice, see Foreman v. Eastern Foods, 195 Ga.App. 332, 333, 393 S.E.2d 695 (1990), the jury was authorized to find from the evidence that appellee visited appellant MRCP on May 10, 1987, and spoke with MRCP's sales representative, Lee Adams, about purchasing a 1987 Plymouth Grand Voyager with certain optional features. Appellee[201 Ga.App. 695] testified that she told Adams she needed the van by midsummer at the latest because she had obligated herself to participate in a carpool for preschoolers. Many of the optional features she required were chosen specifically because of her carpool plans. Adams quoted her a price of $16,000 for the van.

Appellee testified that after comparing van prices at other dealerships, she returned to MRCP on May 16 and met with Adams. He confirmed the $16,000 price, and they discussed financing arrangements (particularly regarding appellee's eligibility for a special financing package being offered by Chrysler) and the trade-in of appellee's car. Adams produced a preprinted form entitled "Work Sheet Single and Invoice" on which he wrote his name and information about appellee, then filled in the form to reflect an order to Chrysler for a new 1987 Silver Grand Voyager LE with a list of the optional features appellee wanted. The document also set forth the total amount appellee would pay for the van after a trade allowance, various fees, and a down payment were calculated. Appellee testified she gave Adams a check for $500 as partial down payment and was told the van would be ready in four to six weeks. Appellee stated that after Adams photocopied the completed document, he gave appellee the unsigned copy and had her sign the original, which he kept.

Appellee testified that she telephoned Adams approximately four weeks later, in mid-June, to inquire about the van's status and was told that it had been shipped, but that he could not tell her the exact arrival date because MRCP's computer was down. The following six weeks appellee spoke several times with Adams and another MRCP employee regarding specifics of the financing and trade-in arrangements, with Adams continuing to represent that the van was scheduled to arrive shortly. At no point during these conversations was appellee informed that Chrysler had ceased manufacturing the 1987 model of the van she had ordered.

Near the end of August, appellee or her husband, Richard Mass, learned in a series

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of telephone calls that Adams was no longer employed at MRCP; that Tom McKenzie, MRCP's sales manager, had found the file kept on appellee which contained the $500 check and the credit report, but not the work sheet; and that after double checking, McKenzie had determined no van had been ordered for appellee and that Adams had lied about the van arriving soon. Appellee then went to MRCP and, in order to convince her that her van had not been ordered, McKenzie showed appellee how Adams could have easily verified her order and the arrival date of the van under the...