Morehouse v. Behlmann Pontiac-GMC Truck Services
| Decision Date | 08 August 2000 |
| Parties | (Mo.App. E.D. 2000) . Lavonda Morehouse, Plaintiffs/Appellant, v. Behlmann Pontiac-GMC Truck Service, Inc., and Universal Underwriters Service Corporation, Defendants/Respondents. Case Number: ED76556 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. Robert s. Cohen
Counsel for Appellant: John R. Birkby
Counsel for Respondent: Lawrence Permuter, Ellen Siegel, Thomas Weaver and Cnythia Sciuto
Opinion Summary: LaVonda Morehouse appeals a judgment sustaining motions for directed verdicts in favor of Behlmann Pontiac-GMC Truck Service, Inc. and Universal Underwriters Service Corporation.
REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.
Division One holds: 1) The statements of Behlmann's employee to Morehouse about the minivan she purchased were representations of fact and not merely statements of opinion. 2) The trial court erred in excluding the minivan's title history from evidence. 3) Morehouse proved damages on the common law fraud claim and the Merchandising Practices Act claim against Behlmann. 4) Morehouse proved damages on the breach of contract claim against Universal. 5) The breach of contract claim against Behlmann is not preserved for review.
Opinion Vote: REVERSED IN PART; AFFIRMED IN PART; AND REMANDED. Gaertner, P.J., and Simon, J., concurs.
Opinion modified by Court's own motion on August 29, 2000. This substitution does not constitute a new opinion.
LaVonda Morehouse (hereinafter "Morehouse") appeals from a judgment directing verdicts in favor of Behlmann Pontiac-GMC Truck Service, Inc. (hereinafter "Behlmann") and Universal Underwriters Service Corporation (hereinafter "Universal"). We reverse in part, affirm in part, and remand.
In reviewing a directed verdict granted in favor of a defendant, the appellate court views the evidence and permissible inferences most favorably to the plaintiff, disregards contrary evidence and inferences, and determines whether plaintiff made a submissible case. Head v. National Super Markets, 902 S.W.2d 305, 306 (Mo.App.E.D.1995). Directing a verdict is a drastic remedy. Id. We will reverse the trial court's grant of a directed verdict unless the facts and any inferences therefrom are so strongly against the plaintiff as to leave no room for reasonable minds to differ as to a result. Id.
The evidence viewed most favorable to Morehouse is as follows. On September 3, 1994, Morehouse and her mother, Dorothy Williams, went to the Behlmann dealership to look at used cars. Ed Bogosian (hereinafter "Bogosian"), a Behlmann salesperson with forty-two years of experience selling vehicles, offered to help Morehouse. Morehouse told him that she was looking for a reliable and lasting van priced around ten or twelve thousand dollars. Bogosian told her that he had years of experience selling vehicles and that he knew what was good.
After looking at several vehicles, Morehouse focused on a Cheverolet Astro minivan because it had less than 100,000 miles and the color appealed to her. Bogosian told her that the minivan was in excellent condition, had been well maintained, and that it would be reliable.
Following this conversation, Morehouse and her mother test drove the minivan. Morehouse noticed a "jerking of the engine" and the brake pedal pressing almost to the floor. Her mother thought that the engine felt sluggish. After the test drive, Morehouse advised Bogosian of these complaints. Bogosian replied that the vehicle was in good condition but agreed to go with Morehouse on a second test drive. Bogosian said that he could not feel or hear anything wrong with the engine and that the roughness was standard. He also said that since a minivan drives more like a truck than a car and she was not used to driving a truck, she should not be concerned about the roughness of the engine.
After speaking with a service mechanic, Bogosian reiterated to Morehouse that everything was fine. Morehouse responded that she wanted the minivan in excellent condition so that she would not have to keep bringing it back for repairs. Bogosian sent the mechanic for a test drive, and the mechanic also said that he did not feel anything wrong.
That day, Morehouse signed a contract to buy the minivan for $10,300, including a $500 down payment. She paid the $500 and promised to pay the remaining $9,800 in cash by September 16th. Because Morehouse did not receive the money she anticipated by that date, she and Bogosian agreed over the telephone on a new purchase date of November 4, 1994.
On October 12, 1994, Behlmann sent the minivan to Tony's Auto Repair to fix an overheating problem. On August 18, 1994, Tony's Auto Repair had also changed the minivan's oil and filter, replaced the front brakes and the gas cap, and cleaned the fuel system.
When Morehouse arrived with her mother on November 4, 1994 to pick up the vehicle, Bogosian told her that she had almost lost the minivan to another customer. The second customer, however, had refused to purchase the vehicle because the radiator exploded when he turned the ignition. Bogosian also informed Morehouse that because of the cost of repairs, the purchase price of the car had been increased by $400. Bogosian and Morehouse settled on an increase of $100.
On Bogosian's suggestion, Morehouse then spoke with Jane Harlow (hereinafter "Harlow"), Behlmann's finance manager. Harlow sold Morehouse a two-year, 24,000 mile comprehensive warranty issued by Universal for $1,456. The warranty obligated Universal to "repair or replace any part necessary to remedy a [m]echanical [b]reakdown and cover the cost of related labor, or pay an authorized repair facility customary and reasonable charges to do so, less the deductible displayed in the declarations section" (emphasis omitted).
Over the time that she possessed the minivan, Morehouse returned it to Behlmann a total of five times with a multitude of complaints each time. One recurring complaint was that the engine was overheating. Behlmann made or attempted to make repairs to address some of Morehouse's complaints but did not attempt to repair problems that it could not replicate in the shop. Although Universal covered the bulk of the repair costs, on two occasions, Morehouse paid the deductible called for in the warranty.
On April 18, 1996, while Morehouse was driving the minivan on the highway, the engine shut down and would not restart. Morehouse had the vehicle towed to Behlmann that same day. Behlmann and Universal eventually informed Morehouse that the minivan would not be repaired because she had not changed the oil and filter. On May 20, 1996, Morehouse returned the rental car she had been driving and paid the $349.14 balance for the use of the vehicle beyond the eleven days covered by the warranty. On July 9, 1997, fifteen months after Morehouse had the minivan towed to Behlmann, the insurance adjuster for Behlmann and Universal informed Morehouse that it was denying any voluntary payment of her claim.
Numerous witnesses testified at trial that the minivan's oil and filter had been changed eight times while in Morehouse's possession: in January, March, May, July, August and October of 1995 and in January of 1996. Morehouse also presented invoices from New Age Car Care for two of these oil changes.
Morehouse sued Behlmann for common law fraud and unfair merchandising practices, alleging that Behlmann induced her to buy the minivan through unlawful merchandising practices and fraudulent representations. She sued Behlmann and Universal for breach of contract, alleging that Universal breached its service contract by refusing to pay for the van's repairs. At the conclusion of Morehouse's evidence, Behlmann and Universal moved for directed verdicts. The trial court sustained these motions. Morehouse appeals.
Morehouse presents several points of error on appeal. First, she claims that the trial court erred in finding that Bogosian's statements that the minivan was in excellent condition was a matter of opinion and not a specific representation of fact. Second, Morehouse contends that the trial court erred in sustaining Behlmann's objection to the admission of the title history of the vehicle. Third, she claims that the trial court erred in finding that she failed to submit evidence on damages on all three claims. Fourth, Morehouse claims that the trial court erred in finding that she failed to make a submissible case on her claim that the warranty covered the minivan's engine failure.
Morehouse's suit against Behlmann raised claims of common law fraud and violations of the Merchandising Practices Act. The trial court directed a verdict in favor of Behlmann on both counts because it found that Bogosian's statements were merely expressions of opinion and not material representations of fact. Bogosian told Morehouse several times that the minivan was in excellent condition, was in tip-top shape, had been well-maintained, and that there was nothing wrong with it.
A seller may puff his wares or express his opinion as to the quality and value of his goods even to the point of exaggeration without incurring a warranty obligation. Guess v. Lorenz, 612 S.W.2d 831, 833 (Mo.App. E.D. 1981). Conversely, if the representation is a statement of fact, a petition alleging such a representation may sufficiently state a claim for breach of express warranty or fraudulent misrepresentation. Carpenter v. Chrysler, 853 S.W.2d 346, 358 (Mo.App. E.D. 1993). A given representation can be an expression of opinion or a statement of fact depending upon the circumstances surrounding the representation. Clark v. Olson, 726 S.W.2d 718, 720 (Mo.banc 1987).
In Carpenter v. Chrysler Corp., a salesman told a customer that a car was ...
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