Slaymaker v. Westgate State Bank, 59149

• Decision Date: 12 June 1987
• Docket Number: No. 59149,59149
• Citation: 241 Kan. 525,739 P.2d 444
• Parties: Thomas SLAYMAKER, Appellant, v. WESTGATE STATE BANK and Tom Rose, Appellees.
• Court: Kansas Supreme Court

Page 444

739 P.2d 444

241 Kan. 525

Thomas SLAYMAKER, Appellant, v. WESTGATE STATE BANK and Tom Rose, Appellees.

No. 59149.

Supreme Court of Kansas.

June 12, 1987.

Syllabus by the Court

1. To oppose a motion for summary judgment, a party must actively come forward with something of evidentiary value to establish a material dispute of fact. It is not for the court to seek out, but for counsel to designate, that which supports a party's position. A party whose lack of diligence frustrates the trial court's ability to determine if factual issues are controverted falls squarely within the sanctions of Supreme Court Rule 141 (235 Kan. cx).

2. Actionable fraud includes an untrue statement of a material fact, known to be untrue by the person making it, made with intent to deceive, or recklessly made with disregard for its truthfulness, where another party justifiably relies on the statement and acts to his injury.

3. In an action to recover damages based upon fraud, it is not necessary that the plaintiff relied only on the misrepresentation; it is sufficient if the fraudulent misrepresentations were part of the moving cause and, absent those misrepresentations, plaintiff would not have acted to his detriment. Such partial reliance by the plaintiff must be reasonable, justifiable, and detrimental.

4. The maker of a fraudulent misrepresentation is not liable to one who does not rely upon its truth but upon the expectation that the maker will be held liable in damages for its falsity. Restatement (Second) of Torts § 548 (1976).

5. Codefendants who are found liable under the federal Motor Vehicle Information and Cost Savings Act (15 U.S.C. § 1901 et seq. [1982] for failing to file a correct odometer mileage statement are jointly and severally liable for the judgment rendered.

6. In an action to recover under the federal Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1901 et seq. (1982), the record is examined and it is held that the district court did not err or abuse its discretion in (1) ruling on and granting the defendant Westgate State Bank's motion for partial summary judgment; (2) denying plaintiff's motion to amend; and (3) in awarding attorney fees to plaintiff.

Bernard E. Brown, Kansas City, argued the cause, and James F. Foster, of Kansas City, was with him on the briefs, for appellant.

R. Pete Smith, of McDowell, Rice & Smith, Chartered, Kansas City, argued the cause and was on the brief, for appellee Westgate State Bank.

The opinion of the court was delivered by ALLEGRUCCI, Justice:

Plaintiff Thomas Slaymaker sued defendants Westgate State Bank and Tom Rose for fraud and violations of the federal odometer law arising out of the purchase of a 1962 Triumph TR-3. The district court granted defendant bank partial summary judgment on the fraud count. On the federal odometer claim, the jury found for plaintiff and awarded actual damages of $3,500 (tripled under the federal law to $10,500). The trial court awarded $7,500 in attorney fees to plaintiff. Plaintiff appeals the district court's judgment in all respects. Defendant Westgate State Bank cross-appeals from the award of attorney fees.

In June 1982, plaintiff attended a Kruse Auto Auction in Tulsa, Oklahoma. After arriving at the Tulsa auction, plaintiff discovered a 1962 Triumph TR-3 automobile.

Plaintiff had previously owned an old 1958 TR-3, and in 1975, he had purchased a 1960 TR-3 for nostalgic reasons.

The 1962 TR-3 carried a sign which stated:

"1962 TRIUMPH T-R 3

"Original--Unrestored ...

"Stored 20 years, only 528 miles. Only one known in the world. Very rare, complete with original top, boot and side curtains.

"Last year ever made!

"A big plus--in any rare collection ...

"(LOOK AND TAKE A PICTURE)

" 'BUT,' PLEASE DON'T TOUCH"

Plaintiff believed that, if the information on the sign were correct, it would be "a hell of a buy." He testified in a deposition that, if the sign were correct, the car would be worth $15,000 or more. The sign, however, was not correct.

A previous owner, Clint Pickett, had restored the car from the ground up and, during the restoration, had reset the odometer to zero. The car was eventually repossessed by defendant Westgate State Bank. The bank sold the car to defendant Tom Rose, a car dealer in the Kansas City area. In June 1982, Rose took the car to the Kruse Auto Auction in Tulsa.

When the TR-3 went on the block, plaintiff unsuccessfully bid $8,000. The bid went up to around $11,000, but the owner turned down the final bid. After the bidding, plaintiff spoke directly with Rose about the car. Plaintiff testified as to that conversation:

"A. [Plaintiff] ... The conversation was generally revolving around whether the car was for sale. Obviously, he said yes. I told him that the only concern I had about the car was that--the authenticity of its being original.

"Q. [Mr. Smith] Why were you concerned about that?

"A. I guess it didn't seem right. It didn't seem logical to have a 20-year-old vehicle have only 528 miles, but the condition of the car was such that I could have--if it was in an estate and it's not an unusual thing to know of those type vehicles documented and I asked him for documentation, and his general response was that he didn't know a lot about the car, that the bank had authenticated it. That they knew all about it and that as far as he knew what was said was correct."

Plaintiff remained unconvinced of the "original" status of the TR-3. Plaintiff telephoned John Goans, a friend and a former Triumph dealer, in Kansas City. Plaintiff asked Goans if there was anything plaintiff could look at to determine if the car was in original condition, although they both realized "the problem of trying to identify over the telephone in any straightforward [way] whether the car was, in fact, original." Goans suggested checking the gearbox and the tires. If the tires were not Pirellis or Dunlops, or if the transmission was "synchromeshed," then the car was probably not in original condition. Plaintiff inspected the car and found that the tires were Pirellis and that the transmission was not synchromeshed.

Plaintiff's doubts were not eliminated. He again spoke with defendant Rose and he testified to the following:

"[I went] back in and again voiced my reluctance to accept simply the verbal statement that the sign as represented was true. He reiterated the story that the car had come through a bank, through the Garber [estate], and at that point he said that if it turned out that I bought the car and it was not as represented by the sign, that we would negotiate the deal. He would give me the money back if the car was not driven. I would give him the car back if it was in the same state as when I got it.

"Q. Did that, then, induce you to buy the car?

"A. Yes.

"Q. At the time that he made that offer to you, that if it was not as represented in Exhibit 1 that he would let you back out of the deal and give you your money back, was that a satisfactory deal with you at that time?

"A. Well, I think part of that being a satisfactory deal at that time was that I had ascertained that he was a dealer; that he lived in or had the operation that he worked out of in Grandview, and it made it, I don't know, a little more palatable that if there was--if, in fact, it turned out not to be that, it was simply a short trip to do something about it.

....

"Q. Let me go back and ask you my question: At that time did you still have some lingering concern as to whether this Exhibit 1 data was correct?

"A. Maybe, lingering concern is a good word, but it was offset by his statement that if it turned out not to be that we would negotiate the deal.

"Q. And then that was a satisfactory transaction for you then to purchase it and if the contents of Exhibit 1 turned out to be true, you would have a vehicle that you would keep and the deal would go through, and if the contents of Exhibit 1 were untrue, then you would get your money back?

"A. Yes."

Plaintiff purchased the car from defendant Rose for $9,000. At the time, plaintiff believed that, if the car was an original, he had a $15,000 car at a price that was, in his words, a "steal."

Plaintiff took the car home and had Goans inspect the car. Goans told plaintiff that the car, although in excellent condition, had been rebuilt and was worth between $5,500 and $6,000. At trial, plaintiff testified that Rose refused to rescind the transaction. Rose testified that he offered to repurchase the car, that plaintiff was not interested in rescinding the transaction but, instead, in bringing suit.

On July 1, 1983, plaintiff filed suit against defendant Westgate State Bank. The petition alleged the defendant bank had committed fraud, and sought $9,500 in compensatory damages and $300,000 in punitive damages. Plaintiff also alleged that the bank had, with intent to defraud, failed to provide to defendant Rose a federal odometer statement, thereby violating 15 U.S.C. § 1988 (1982), and sought treble damages of $28,500. The petition was amended on January 30, 1984, to include defendant Rose.

The trial court sustained a partial summary judgment motion, dismissing the fraud claim against both defendants for plaintiff's failure to prove reliance on the alleged misrepresentations. The case proceeded to trial on the federal odometer statute count, and the jury found for plaintiff. The jury found that plaintiff's actual damages were $3,500 ($9,000 less $5,500 fair market value of the TR-3). The trial court awarded $7,500 in attorney fees.

Plaintiff first argues that the trial court incorrectly considered defendant Westgate State Bank's motion for summary judgment. Plaintiff contends that the issue of reliance was not identified in the pretrial order and that the motion was not timely filed.

The pretrial order was entered on November 16, 1984, and specified that additional motions were to be filed on or before January 20, 1985. The order does not specifically address reliance...