Stark v. Patalano Ford Sales, Inc.

• Decision Date: 30 April 1991
• Docket Number: No. 89-P-103,89-P-103
• Citation: 567 N.E.2d 1237,30 Mass.App.Ct. 194
• Parties: , 14 UCC Rep.Serv.2d 441 Charles F. STARK v. PATALANO FORD SALES, INC., et al. 1
• Court: Appeals Court of Massachusetts

Page 1237

567 N.E.2d 1237

30 Mass.App.Ct. 194, 14 UCC Rep.Serv.2d 441

Charles F. STARK v. PATALANO FORD SALES, INC., et al. ¹

No. 89-P-103.

Appeals Court of Massachusetts Norfolk.

Argued March 13, 1990.

Decided March 7, 1991.

Further Appellate Review

Denied April 30, 1991.

Brian A. Davis, Boston, for defendants.

Roger S. Davis, Boston, for plaintiff.

Before BROWN, PERRETTA and FINE, JJ.

PERRETTA, Justice.

These cross appeals from judgments awarding over $38,000 in damages, and counsel fees in the amount of $25,746, to Charles F. Stark arise out of his purchase of a truck, costing $9,327, manufactured by Ford Motor Company (Ford) and sold to him by Patalano Ford Sales, Inc. (Patalano), in 1978. What began on June 2, 1980, as a claim against Patalano under G.L. c. 93A, § 9, was amended four years later into a complaint of eleven counts, alleging a breach of all warranties and unfair and deceptive acts by both the defendants. Before trial in the District Court, Ford moved to dismiss the complaint, claiming it was time-barred. The judge denied the motion and after trial reported to the Appellate Division the question whether the c. 93A claim against Ford was time-barred. The Appellate Division concluded that it was and ordered dismissal of that count against Ford. Hence, at trial on the retransfer to the Superior Court under G.L. c. 231, § 102C, Ford's liability under c. 93A was not at issue. On appeal, Ford argues that the complaint should have been dismissed in its entirety and joins with Patalano in challenging the evidentiary basis for the jury's determination as to liability and the amount of damages awarded. Stark claims that his c. 93A count against Ford should not have been dismissed and that the award against Patalano under c. 93A should have been trebled. We conclude that the amendment adding Ford as a party related back to the original complaint and that a major component of the damages awarded to Stark is based upon speculation. We reverse the judgments.

Background

When Stark bought the truck from Patalano, he made it known that he was buying the 1978 Ford F250 "Camper Special" for his personal use, to transport a rear-mounted recreational "camper body" for camping trips. As early as the day after delivery, August 25, 1978, Stark began to experience a seemingly inexhaustible series of problems with the truck including, but not limited to: lack of engine power, poor braking, electric gauge malfunction, low gas mileage, premature and uneven tire wear, a malformed windshield, and peeling paint.

Stark repeatedly brought the truck to Patalano for service under the express warranty from Ford which covered repairs for twelve months or 12,000 miles. Between September 20, 1978, and January 30, 1980, Patalano wrote up about twenty-five warranty tickets which described some forty distinct complaints by Stark. Additionally, Stark, a mechanic by trade, performed repair work on the truck, such as oil changes, tune-ups, and parts replacement. In all, he spent about $2,329 in his attempts to make the truck operate satisfactorily.

On April 18, 1980, Stark wrote to Patalano and demanded, under G.L. c. 93A, § 9, that Patalano remove the truck from his property and return the purchase money to him. Patalano, already having inspected the truck twenty-five times, advised Stark that, because it could find no defect to remedy, he should take the truck to any authorized Ford dealer and have it inspected in the presence of a Ford Motor Company representative. Should any defects be discovered upon that inspection, Patalano would remedy them under its warranty, even though it had expired. Stark rejected the offer and commenced suit against Patalano.

Amendment of the Complaint

On June 27, 1984, Stark was allowed to amend the complaint which had been drafted and filed on June 2, 1980, by his previous attorney. Ford was added as a party, and the c. 93A action became a somewhat sophisticated litany of contract, warranty, and consumer wrongs. ² Ford moved to dismiss the complaint on the basis that Stark's action against it was barred by G.L. c. 106, § 2-725, and G.L. c. 260, § 5A.

There is no question that when Stark brought his action against Ford the statutes of limitation had expired. Whether he nonetheless could proceed against Ford turns on whether the action related back to the original complaint against Patalano. See Mass.R.Civ.P. 15(c), 365 Mass. 762 (1974).

We consider first the breach of warranty counts. ³ If G.L. c. 231, § 51, as amended by St.1988, c. 141, § 1, is applicable to this action, the question is disposed of quickly. ⁴ Approved on July 14, 1988, chapter 141 was accompanied by an emergency preamble. Additionally, § 2 of that chapter states that the "act shall apply to all actions pending as of its effective date...." Although the trial had been completed and the posttrial motions decided prior to July 14, 1988, the rulings on the motions and the judgments were not entered on the docket until October 7, 1988. Up until that date, there was no final judgment, see Mass.R.Civ.P. 54(a) and (b), 365 Mass. 820-821 (1974), and the case was pending. See Mulligan v. Hilton, 305 Mass. 5, 8, 24 N.E.2d 676 (1940); Wood v. Jaeger-Sykes, Inc., 27 Mass.App.Ct. 199, 200-201, 536 N.E.2d 1100 (1989).

Even were the statute inapplicable, our conclusion would be no different under Bengar v. Clark Equip. Co., 401 Mass. 554, 556-558, 517 N.E.2d 1286 (1988). Although the original complaint against Patalano was ostensibly grounded upon a c. 93A violation, a closer look at that pleading shows allegations of breaches of warranties, both express and implied, as well as a thorough description of the truck's defects. The amended complaint, more organized and artful in form, alleges breaches of warranties arising out of precisely the same defects described in the original complaint. The motion to dismiss the warranty counts was properly denied.

In respect to the dismissal of the c. 93A claim against Ford, there is a twist in the analysis: the § 9 thirty-day demand letter which Stark sent to Ford on January 23, 1984. In dismissing this claim against Ford, the Appellate Division held that, no matter how liberal our amendment policy, there could not be a relation back to a date before which suit could have been commenced, here, sometime after mid-February, i.e., thirty days after the demand letter. That conclusion was based upon the reasoning that the demand letter was jurisdictional in nature (see York v. Sullivan, 369 Mass. 157, 163-164, 338 N.E.2d 341 [1975]; Spring v. Geriatric Authy. of Holyoke, 394 Mass. 274, 287, 475 N.E.2d 727 [1985] ) and analogous to the claim presentment required under G.L. c. 258, § 4, the Massachusetts Tort Claims Act. See Weaver v. Commonwealth, 387 Mass. 43, 48-49, 438 N.E.2d 831 (1982).

We do not agree. There are distinct differences in the purpose of the presentment requirement and the demand letter. Claim presentment is mandated in order that the "highest officer of an executive department is not only in a position to undertake the investigation which might be required to preclude payment of inflated or invalid claims, but also to make provision, during the budgetary process, for the payment of valid claims, and to institute promptly any corrective measures designed to reduce the number of valid claims in the future. By requiring presentment to that officer, the Legislature intended to make certain notice is given to the official best able to ensure that the interests of the Commonwealth would be protected." Id. at 48, 438 N.E.2d 831. The purpose of the demand letter, however, is to encourage negotiation and settlement and to control the amount of damages which the consumer might ultimately recover. See Slaney v. Westwood Auto, Inc., 366 Mass. 688, 704, 322 N.E.2d 768 (1975); York v. Sullivan, 369 Mass. at 162, 338 N.E.2d 341; Spring v. Geriatric Authy. of Holyoke, 394 Mass. at 288, 475 N.E.2d 727.

Ford resisted amendment of the complaint on the sole basis that it was time-barred, the very reason which triggers rule 15(c). Bengar v. Clark Equip. Co., 401 Mass. at 556, 517 N.E.2d 1286. Ford was served with the amended complaint some five months after the demand letter and, hence, had ample opportunity to investigate and respond to Stark's claim. Compare BBF, Inc. v. Germanium Power Devices Corp., 13 Mass.App.Ct. 166, 178, 430 N.E.2d 1221 (1982).

We see nothing in the legislative objectives of the § 9 demand letter or the circumstances of the instant case which precludes application of relation back principles to Stark's motion to amend his original complaint by adding a claim under c. 93A against Ford. The claim should not have been dismissed.

Liability on the Warranty Claims

Stark sustained his burden of proof as to liability in large measure with testimony from a witness possessing expertise in the automotive engineering field. Ford and Patalano do not challenge Daniel Harwood's qualifications to testify as an expert. Rather, they contend that his testimony was unsupported by the facts and based upon speculation.

Harwood's opinions were based upon his personal examination of the truck and Stark's testimony. He attributed the blistering and peeling paint to improper treatment during the manufacturing process of the truck. Harwood personally observed the rear wheel "lock-up," which he stated was due to factory installation of a faulty proportioning valve. The "smearing" problem with the windshield was the result of either a malformed contour of the glass itself or an insufficient spring strength in the wiper blades. As for the many electrical malfunctions, they were due to the factory-installed harness. Although Harwood could not isolate the cause for the truck's poor engine performance, he was able to state that, based upon the truck's mechanical history, the problem likely predated the truck's delivery.

These assertions were not founded upon speculation, see Reed v. Canada Dry...