Reeb v. Daniels Lincoln-Mercury Co., Inc., LINCOLN-MERCURY

Decision Date21 November 1989
Docket NumberLINCOLN-MERCURY,No. A89A1682,A89A1682
Citation389 S.E.2d 367,193 Ga.App. 817
CourtGeorgia Court of Appeals

Allen W. Johnson, Augusta, for appellant.

Isaac S. Jolles, Augusta, for appellee.


Barbara J. Reeb brought suit against Daniels Lincoln-Mercury Company, Inc. (Daniels) in several counts to recover damages she incurred when she revoked her acceptance of a demonstrator automobile soon after she had purchased it. Daniels answered and counterclaimed for its unrecovered expenses in repurchasing and reselling the car. The case was tried by a jury, and after the close of Reeb's evidence the trial court granted Daniels' motion to dismiss the complaint. After hearing further evidence, the trial court directed a verdict for Daniels on its counterclaim. Reeb appeals.

The record reveals that on August 12, 1987, appellant went to appellee's premises to look at cars. She was interested in a 1987 Mercury Sable, and was shown several demonstrator automobiles. Although she particularly liked a brown model, she was unable to drive that car because it was being worked on in the shop, and she test drove a similar car instead. A salesman told her the car she was interested in was a demonstrator; that it had been driven for over 12,000 miles and was a "bug-free car." She purchased the 1987 brown Mercury Sable demonstrator and picked it up several days later. As she was driving the vehicle home, she noticed the "front end pulling and clicking and doing some funny things" and, concluding there was something wrong with the car, she turned around and went back to the dealership, only to find it was closed. The next morning a service department representative test drove the car and told her "it's got a broken rack and pinion," at which time appellee's employees had her sign a paper ordering a part for the car. Although appellant testified the steering was not working properly and she was concerned about driving the car, she continued to drive it until September 18, 1987. Between the time she was told the rack and pinion was broken and September 18, 1987, there were "[a] few phone calls" between appellant and various people at appellee's dealership. Appellant also testified that she had several mechanics look at it and then, on September 18, 1987, she "quit driving it" and revoked her acceptance.

Appellee's president, William Daniels, testified that appellee had an agreement with the bank with which appellant financed the purchase of her car that if litigation ensued the dealership was required to repurchase the car. Daniels testified he paid the bank $14,750.78 for the car and resold it for $13,000, and that other expenses were incurred, with the total loss amounting to $2,310.78. Appellant presented no evidence as to the counterclaim.

1. Appellant contends the trial court erred by dismissing her complaint. We note initially that although appellee moved to dismiss the complaint and the trial court granted that motion, the motion was made at the close of appellant's evidence, and the basis for both the motion and the ruling was that the evidence presented failed to support appellant's claims and demanded a verdict for appellee. We will therefore treat the trial court's ruling as the grant of a directed verdict to appellee rather than as a dismissal of appellant's complaint. See OCGA § 9-11-50(a).

(a) OCGA § 11-2-608(1)(a) provides that "[t]he buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it ... [o]n the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured." Revocation of acceptance is an available remedy even where, as here, the dealer has attempted to limit warranties. (See Division 1(b), infra.) Jacobs v. Metro Chrysler-Plymouth, 125 Ga.App. 462, 188 S.E.2d 250 (1972). Appellant testified without objection that the car she bought was described by appellee's own mechanic as having a broken steering mechanism. She testified, however, that she signed a paper ordering a new part, thus indicating that she nevertheless accepted the car, despite knowledge of the defect, on the assumption that it would be repaired. See generally Trailmobile Div. of Pullman v. Jones, 118 Ga.App. 472, 473-475(1), 164 S.E.2d 346 (1968). However, 38 days later the car had not been repaired and appellant was afraid to drive it. Whether the broken rack and pinion was a nonconformity which "substantially impaired" the car's value to appellant, and whether the delay of 38 days in repairing the car was "unseasonable," thereby giving appellant a second opportunity to revoke her acceptance of the car, are not issues that may be decided as a matter of law, but are jury questions. Hub Motor Co. v. Zurawski, 157 Ga.App. 850, 851(1), 278 S.E.2d 689 (1981). "If there is 'any evidence' creating a material issue of fact, a motion for a directed verdict cannot be granted. [Cits.]" Professional Ins. Svcs. v. Sizemore Elec. Co., 188 Ga.App. 463(1), 373 S.E.2d 276 (1988). There were material issues of fact in this case surrounding appellant's revocation of acceptance, and we agree with appellant that as to that cause of action the trial court's grant of a directed verdict to appellee was erroneous. See generally id. at 463-464(1), 373 S.E.2d 276.

(b) In her complaint appellant also alleged fraud and breach of warranty as bases for recovery. Appellant maintained that appellee had knowingly made several false representations to her. We agree with the ruling and the reasoning of the trial court that there was no evidence that appellee had represented the car as new or as anything other than a demonstrator model with 12,000 miles, and that appellee's salesman's statements to appellant that it...

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    ...a good show horse" were mere expressions of opinion and did not constitute express warranties); Reeb v. Daniels Lincoln-Mercury Co., 193 Ga. App. 817, 819 (1) (b), 389 S.E.2d 367 (1989) (statement that a car was a "bug-free car" was mere sales puffery); Randall v. Smith , 136 Ga. App. 823, ......
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    ...a trial court may properly exercise its discretion in deciding whether to admit cumulative evidence. Reeb v. Daniels, etc., Co., 193 Ga.App. 817, 820(3), 389 S.E.2d 367 (1989). Lucas has failed to show that the trial court abused its discretion in admitting the videotape. Lucas does not enu......
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