Paces Ferry Dodge, Inc. v. Thomas, 69653

• Decision Date: 02 April 1985
• Docket Number: No. 69653,69653
• Citation: 331 S.E.2d 4,174 Ga.App. 642
• Parties: PACES FERRY DODGE, INC. v. THOMAS.
• Court: Georgia Court of Appeals

Page 4

331 S.E.2d 4

174 Ga.App. 642

PACES FERRY DODGE, INC. v. THOMAS.

No. 69653.

Court of Appeals of Georgia.

April 2, 1985.

Rehearing Denied April 29, 1985.

Certiorari Denied June 11, 1985.

Philip M. Casto, Decatur, for appellant.

Albert R. Sacks, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Norman Thomas sued Paces Ferry Dodge Inc. under the Fair Business Practices Act (FBPA), OCGA § 10-1-391 et seq. and for breach of warranty, for damages sustained when he purchased from appellant a vehicle which he claims was not "new" and did not have the qualities as represented but was defective. Thomas went to appellant's dealership intending to have his old car repaired but decided to buy a new car instead. He test-drove a 1980 Dodge Diplomat and was impressed by its handling; he asked whether a two-door vehicle he admired drove the same as the four-door he had test-driven, and was informed by the salesman that they drove the same. He did not test-drive the vehicle he bought, but he had driven no more than a block from the dealership before he detected a distinct vibration in the steering wheel. He returned the car for repair within the next few days, but the defect could not be located.

Over the next three and one-half years, he had the wheels aligned repeatedly, bought new tires, and had numerous mechanics investigate the cause of the vibration but nothing improved the problem. Finally, one mechanic discovered that the rear end alignment pin was broken. According to that expert witness, the pin had been broken a very long time and could only have been broken by a serious accident or by a jolt when the car was being unloaded at the dealership. According to the witness, who had previously worked for a dealership, the vibration should have been discovered in a "new-car prep" performed by all dealers upon new cars. Upon this basis, and the unassailed fact that the appellee discovered the serious defect just after leaving the dealership, the appellee contended the appellant committed an unfair or deceptive act or practice by representing the car as original or new when it was deteriorated or representing the car was of a particular standard, quality, or grade (OCGA § 10-1-393(a), (b)(6), (7)). The jury returned a verdict for Count I under the Fair Business Practices Act for $1,500 treble damages, $3,255 attorney fees, $10,000 exemplary damages and court costs, and $500 under the breach of warranty count. Appellee elected to collect under the FBPA award only. Appellant appeals. Held:

1. Appellant contends the trial judge erred in denying its motion for directed verdict as to the legal sufficiency of the appellee's notice as set forth in OCGA § 10-1-399(b). It is well settled the question of sufficiency of notice is one for the court (Plaza Pontiac v. Shaw, 158 Ga.App. 799, 800, 282 S.E.2d 383; Colonial Lincoln-Mercury Sales v. Molina, 152 Ga.App. 379, 382, 262 S.E.2d 820); the trial court did not err in finding this one sufficient.

OCGA § 10-1-399(b) provides that at least thirty days prior to the filing of any action, a written demand for relief be sent, "identifying the claimant and reasonably describing the unfair or deceptive act or practice relied upon and the injury suffered...." The notice here provided: "I have been retained by Norman W. Thomas in regard to the 1980 Dodge Diplomat automobile (Vehicle No. GL22CAG210258) which he purchased from you on September 29, 1980. As I am sure you are aware, since that time my client has experienced continuous problems with the alignment, front end, axle and wheels and the transmission. He has repeatedly brought his automobile in for repairs of these various items but the problems continue to exist. In addition to the warranty work which has been done on his automobile, he has expended various sums for repairs including, but not limited to, front end alignment and new tires.... [N]otice is hereby given you of the claim which Norman W. Thomas has against you for selling him an automobile which clearly was not up to the standards required of a new automobile." This language reasonably described the unfair or deceptive practice relied upon and the injury suffered as required by OCGA § 10-1-399(b), particularly under the liberal construction we are required to give the provisions of the Act. OCGA § 10-1-391(a).

2. Appellant contends the trial judge erred in denying its motion for directed verdict as the sale of a vehicle is not a violation of the FBPA, and that there is no evidence of a violation of the FBPA. Essentially, appellant argues that it committed no unfair or deceptive act within the meaning of the FBPA because there was only a sale with no evidence that appellant knew of the defect or concealed its existence. However, appellee's expert witness testified that in a "new car prep," a car is roadtested or driven to detect such a defect, and there was evidence that the slightest attention on appellant's part, equivalent to knowledge, would have uncovered the defect. We do not think that the appellee was required, as a matter of law, to test drive the particular new car he bought so as to exercise reasonable diligence on his own part, as in the sale of land acreage case of Zeeman v. Black, 156 Ga.App. 82, 87, 273 S.E.2d 910, but the question of diligence was one of fact for the jury. The jury was charged as to the appellee's duty to exercise reasonable diligence, pursuant to the rule drawn in Zeeman, supra, and patently found that reasonable diligence did not require him to test-drive a new car or lose his remedy under the Fair Business Practices Act. See Horne v. Claude Ray Ford Sales, 162 Ga.App. 329, 290 S.E.2d 497.

Appellant argues...