Muzelak v. King Chevrolet, Inc., No. 17346

CourtSupreme Court of West Virginia
Writing for the CourtNEELY
Citation179 W.Va. 340,368 S.E.2d 710
PartiesBetty MUZELAK v. KING CHEVROLET, INC.
Docket NumberNo. 17346
Decision Date31 March 1988

Page 710

368 S.E.2d 710
179 W.Va. 340
Betty MUZELAK
v.
KING CHEVROLET, INC.
No. 17346.
Supreme Court of Appeals of
West Virginia.
March 31, 1988.

Page 711

[179 W.Va. 341] Syllabus by the Court

1. "Where an objection is made to an instruction for the first time on appeal and such instruction is not so deficient so as to require invocation of the "plain error" rule, in consonance with Rule 51, W.Va.R.C.P., this Court will not consider the late objection." Syl. Pt. 1, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974).

2. "The essential elements in an action for fraud are: (1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it." Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981).

3. "In action of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others to appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive or vindictive damages." Syl. Pt. 9, Cook v. Heck's Inc., --- W.Va. ---, 342 S.E.2d 453 (1986).

4. "Courts must not set aside jury verdicts as excessive unless they are monstrous, enormous, at first blush beyond all measure, unreasonable, outrageous and manifestly show jury passion, impartiality, prejudice or corruption." Syl. Pt. 6, Roberts v. Stevens Clinic Hospital, --- W.Va. ---, 345 S.E.2d 791 (1986).

5. "There is authority in equity to award to the prevailing litigant his or her reasonable attorneys' fees and 'costs' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syl. Pt. 3, Sally-Mike Properties v. Yokum, --- W.Va. ---, 365 S.E.2d 246 (1986).

Rita G. Kerstetter, Recht & Johnson, Wheeling, for King Chevrolet, Inc.

R. William Kasserman, Jr., Wheeling, for Betty Muzelak.

NEELY, Justice:

Appellant, King Chevrolet, Inc., provided a 1982 Chevrolet Cavalier to one of its salesmen, Charles Stein. During the eight months that Mr. Stein drove this automobile as a demonstrator, it was serviced ten times for repairs or adjustments. There were repairs to the carburetor, choke, speedometer, door moldings, seat belt buzzer alarm, spark plugs, as well as a complete paint job. The starting problems associated with the carburetor and spark plug repairs were corrected, but an engine vibration problem was never solved. Of approximately thirty-six demonstrators that Mr. Stein had driven over the years as a car salesman, this car was the worst in terms of reliability. He complained to the service department about the car and asked Bill Lewis, King Chevrolet's used car manager, if he could have another demonstrator because this car was so unreliable.

In December 1982, the appellee, Mrs. Betty Muzelak, contacted Bill Lewis about acquiring an automobile. Mr. Lewis had sold her previous car to her. He called Mrs. Muzelak back and told her that the "right car for her" was the 1982 Chevrolet Cavalier demonstrator that Mr. Stein had used. Although Mr. Lewis told Mrs. Muzelak that the car was a demonstrator, he did

Page 712

[179 W.Va. 342] not mention any of the previous repair problems with the car. In fact, Mr. Stein later testified that Mr. Lewis told him that it took someone with Mr. Lewis' sales ability "to get rid of" that car. Mrs. Muzelak test drove the car and bought the car with an extended new car warranty. 1

Within ten days of purchasing the car, Mrs. Muzelak brought the car to King Chevrolet for repairs. Over the next eight months, her car was in King Chevrolet's service department about thirteen times. Most of the repairs were covered by the warranty but were usually not satisfactorily completed on the first occasion for the particular problem. A constant engine vibration and transmission fuel leak were never corrected. The car was so unreliable that Mrs. Muzelak did not drive the car after the first eight months of use. She later testified that she would not have bought the car if she had known its service history.

Mrs. Muzelak filed suit on 16 February 1984 against King Chevrolet, Inc.; General Motors Corporation as manufacturer; and Mr. Clark individually and as general manager of King Chevrolet. Her theories of recovery were, inter alia, breach of express warranty, breach of implied warranty of merchantibility under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(10) (1975), and negligence. In August 1985, Mrs. Muzelak filed an amended complaint 2 which asserted a cause of action for common law material misrepresentation under W.Va.Code, 46-2-721 [1963] 3 against King Chevrolet for failing to disclose the numerous mechanical problems before she purchased the car. At trial in September 1985, the jury returned a verdict for Mrs. Muzelak and answered special interrogatories finding that: (1) General Motors had breached the express warranty; (2) King Chevrolet, Inc. and General Motors had breached the implied warranty of merchantibility; (3) King Chevrolet was negligent in its repairs of the car; and (4) King Chevrolet had concealed the service history of the car. The jury first awarded Mrs. Muzelak $15,000 in compensatory damages. The trial court then gave the jury supplemental interrogatories and a punitive damages instruction for material misrepresentation. The jury returned with a $25,000 award for punitive damages.

In a judgment order entered on 6 December 1985, after hearing motions for a new trial by King Chevrolet, Inc. and General Motors, 4 the circuit court: (1) reduced the amount of Mrs. Muzelak's compensatory damages from $15,000 to $10,748.48; (2) awarded Mrs. Muzelak $565.20 of her requested $1,485.58 for money expended on repairs not covered by warranty; (3) awarded Mrs. Muzelak attorneys' fees of $5,627.70 which was payment for exactly half of the time spent on the case; and (4) affirmed the jury verdict that King Chevrolet, Inc. would be liable for $25,000 in punitive damages to Betty Muzelak.

Page 713

[179 W.Va. 343] On appeal to this Court, King Chevrolet asserts that the circuit court committed "plain error" when he gave a punitive damages instruction to the jury because punitive damages may not be recovered in a claim for material misrepresentation under the West Virginia Consumer Credit and Protection Act, W.Va.Code, 46A-6-101 [1974] et seq. Mrs. Muzelak asserts a cross-assignment of error because the court's reduction of compensatory damages caused Mrs. Muzelak to suffer a remittitur of the jury verdict. Furthermore, Mrs. Muzelak asserts that her attorneys' fees should be paid in full by the appellant.

I

No party may assign as error the giving or the refusal to give an instruction unless he objects thereto before the arguments to the jury are begun, stating distinctly, as to any given instruction, the matter to which he objects and the grounds of his objection; but the court or any appellate court, may, in the interest of justice, notice plain error in the giving or refusal to give an instruction, whether or not it has been made the subject of objection.

Rule 51, W.Va.R.C.P. King Chevrolet asserts, based on Rule 51, that the trial court committed reversible error by instructing the jury on punitive damages for misrepresentation or concealment under W.Va.Code, 46A-6-102(f)(13) [1974]. We disagree and affirm.

There was no timely objection on the record by King Chevrolet to the trial court's compensatory or punitive damages instructions. Pursuant to the guidelines of Ilosky v. Michelin Tire, --- W.Va. ---, 307 S.E.2d 603 (1983) the circuit court decided to bifurcate the compensatory damages issue of the trial from the punitive damages issue of the trial. The court first gave the jury its own edited compensatory damages instruction based on material misrepresentation. 5 No objections were made. In fact, King Chevrolet also submitted an instruction regarding material misrepresentation. 6 After the jury returned its answer finding by clear and convincing proof that King Chevrolet materially misrepresented facts concerning the 1982 Chevrolet Cavalier to Mrs. Muzelak and awarding her $15,000 in compensatory damages, the court then proceeded to instruct the jury on the punitive damages issue. 7 Before giving the instruction,,

Page 714

[179 W.Va. 344] the Court gave a copy to each party's counsel. 8 No objection was made or exception noted by either counsel.

"Where an objection is made to an instruction for the first time on appeal and such instruction is not so deficient so as to require invocation of the "plain error" rule, in consonance with Rule 51, W.Va.R.C.P., this Court will not consider the late objection." Syl. Pt. 1, Jordan v. Bero, 158 W.Va. 28, 210 S.E.2d 618 (1974). See also Chambers v. Smith, 157 W.Va. 77, 198 S.E.2d 806 (1973); Yeager v. Stevenson, 155 W.Va. 16, 180 S.E.2d 214 (1971); Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963). Because King Chevrolet did not object in a timely fashion to the trial court's punitive damage instruction, this court will consider their objection on appeal only if there is "plain error" in the trial court's punitive damages instruction.

A

Mrs. Muzelak's claim of statutory misrepresentation and unfair or deceptive acts is based specifically on W.Va.Code, 46A-6-102(f)(13) [1974], the W.Va. Credit and Consumer Protection Act. 9 W.Va.Code, 46A-6-106 [1974] provides the remedies under the Consumer Protection Act and says in pertinent part:

(1) Any person who purchases or leases goods or services and thereby suffers any ascertainable loss of money or property, real or personal as a result of the use or employment by another person of a method, act or practice prohibited or declared to be...

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49 practice notes
  • Michael on Behalf of Estate of Michael v. Sabado, No. 22032
    • United States
    • Supreme Court of West Virginia
    • December 21, 1994
    ...certified do not constitute "wanton, willful, [or] reckless ... criminal indifference." The plaintiff cites Muzelak v. King Chevrolet, 179 W.Va. 340, 368 S.E.2d 710 (1988), and TXO Production v. Alliance Resources, 187 W.Va. 457, 419 S.E.2d 870 (1992), aff'd, 509 U.S. 443, 113 S.Ct. 2711, 1......
  • State ex rel. Dunlap v. Berger, No. 30035.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2002
    ...of the Consumer Protection Act. A plaintiff who proves common-law fraud may recover punitive damages, Muzelak v. King Chevrolet, 179 W.Va. 340, 345, 368 S.E.2d 710, 715 9. Cf. Smithson v. U.S. Fidelity & Guar. Co., 186 W.Va. 195, 202, 411 S.E.2d 850, 857 (1991), we held that an insurance co......
  • Powell v. Time Ins. Co., No. 18224
    • United States
    • Supreme Court of West Virginia
    • June 16, 1989
    ...damaged because he relied upon it.' Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927)." See also Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 This rule does not differ markedly from what other courts have considered fraud sufficient to avoid an insurance policy, "us......
  • Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., CHRYSLER-PLYMOUTH-DODG
    • United States
    • Supreme Court of West Virginia
    • December 11, 1992
    ...he relied on it.' Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981)." Syllabus Point 2, Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 3. An officer of a corporation may be personally liable for the tortious acts of the corporation, including fraud, if the off......
  • Request a trial to view additional results
49 cases
  • Michael on Behalf of Estate of Michael v. Sabado, No. 22032
    • United States
    • Supreme Court of West Virginia
    • December 21, 1994
    ...certified do not constitute "wanton, willful, [or] reckless ... criminal indifference." The plaintiff cites Muzelak v. King Chevrolet, 179 W.Va. 340, 368 S.E.2d 710 (1988), and TXO Production v. Alliance Resources, 187 W.Va. 457, 419 S.E.2d 870 (1992), aff'd, 509 U.S. 443, 113 S.Ct. 2711, 1......
  • State ex rel. Dunlap v. Berger, No. 30035.
    • United States
    • Supreme Court of West Virginia
    • June 13, 2002
    ...of the Consumer Protection Act. A plaintiff who proves common-law fraud may recover punitive damages, Muzelak v. King Chevrolet, 179 W.Va. 340, 345, 368 S.E.2d 710, 715 9. Cf. Smithson v. U.S. Fidelity & Guar. Co., 186 W.Va. 195, 202, 411 S.E.2d 850, 857 (1991), we held that an insurance co......
  • Powell v. Time Ins. Co., No. 18224
    • United States
    • Supreme Court of West Virginia
    • June 16, 1989
    ...damaged because he relied upon it.' Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927)." See also Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 This rule does not differ markedly from what other courts have considered fraud sufficient to avoid an insurance policy, "us......
  • Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., CHRYSLER-PLYMOUTH-DODG
    • United States
    • Supreme Court of West Virginia
    • December 11, 1992
    ...he relied on it.' Syl. Pt. 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981)." Syllabus Point 2, Muzelak v. King Chevrolet, Inc., 179 W.Va. 340, 368 S.E.2d 710 3. An officer of a corporation may be personally liable for the tortious acts of the corporation, including fraud, if the off......
  • Request a trial to view additional results

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