Wilburn v. Larry Savage Chevrolet, Inc.
| Decision Date | 04 October 1985 |
| Citation | 477 So.2d 384 |
| Parties | Billy WILBURN v. LARRY SAVAGE CHEVROLET, INC., and General Motors Corporation. 83-1099. |
| Court | Alabama Supreme Court |
Robert M. Shipman, Huntsville, for appellant.
Danny D. Henderson of Williams, Spurrier, Moore, Rice, Henderson & Grace, and James T. Baxter III, of Berry, Ables, Tatum, Little & Baxter, Huntsville, for appellee Larry Savage Chev., Inc.
Jerry B. Ange of Ford, Caldwell, Ford & Payne, Huntsville, for appellee General Motors Corp.
Billy Wilburn, plaintiff, brings this appeal from a judgment based on a directed verdict for defendant, Larry Savage Chevrolet, Inc. Wilburn brought the action for breach of contract, breach of warranty, and fraud arising from the sale of an automobile. Wilburn alleged that the defendant told him the automobile was new, was in proper working order, and had nothing wrong with it. He alleged that he discovered numerous defects which the defendant refused or failed to repair.
Wilburn also brought suit against General Motors Corporation, but the trial court dismissed General Motors as a party defendant. On February 21, 1984, the trial court made an express finding that there was no just reason for delay in the entry of final judgment in favor of General Motors, and entered such a judgment. Rule 54(b), A.R.Civ.P. Wilburn did not make any post-judgment motion or file a notice of appeal regarding this judgment until April 24, 1984. On that date he filed a motion for new trial raising claims of error both as to the dismissal of General Motors and as to the April 2 directed verdict for Larry Savage Chevrolet. After the denial of this motion, he filed a notice of appeal naming both Larry Savage Chevrolet and General Motors as appellees. Because Wilburn did not file notice of appeal within 42 days of the entry of final judgment in favor of General Motors, his appeal from that judgment is due to be dismissed. Rule 4, A.R.A.P.
The entire evidence offered by Wilburn was his own testimony, eleven repair orders (some of which were duplicates), and the contract of sale. He also placed the secretary-treasurer of Larry Savage Chevrolet on the stand to ask the price of various items alleged to be defective, but the witness did not know any of the prices. The following summary of the evidence comes from Wilburn's testimony.
On January 4, 1982, Wilburn purchased a 1981 Chevrolet Monte Carlo from Larry Savage Chevrolet. He testified that the next day he looked more closely at the car and noticed that it had deep scratches on it, that the paint did not match all around the car, that the dashboard was "crinkled up" and looked old, and that the seats sagged and looked old. He said that the car made a bumping noise, that air came in around the windows, and that the clock and the radio did not work properly.
He took the car back to Larry Savage Chevrolet, which offered to paint the car. He testified that he told the salesman that he did not want the car painted, but wanted to return the car and take back the car he had traded in. The salesman told him the company could not do that because Wilburn's car had already been sold. Wilburn did not say that he made any further effort to rescind the sale.
The repair orders indicate that Larry Savage Chevrolet did work on the car in January, February, March, and August of 1982. Wilburn said the company did not bill him for any of the work. When asked if any of the things of which he had complained were still in need of repair, he answered, When asked to be more specific, he said, "The catalytic converter went out on it," and "the dash is still messed up." The court sustained objections to Wilburn's testifying as to what it would cost to repair the dashboard. He testified that he had not taken the car for repairs anywhere other than Larry Savage Chevrolet, but that he had taken it elsewhere for an estimate on a paint job. He did not say what that estimate was.
In later testimony, Wilburn said that the tires had knots on them and the interior lights and the horn did not work. The court sustained objections to questions put to Wilburn about the cost to repair these and other problems which he had previously mentioned.
After this testimony, Wilburn rested his case. The court told his attorney that he had not proved breach of contract or fraud because he had not proved that the car was not new, and that he had not proved breach of warranty because "You have no evidence that he carried the car back and they failed to comply or to fix anything that was under warranty." The court suggested that he review his complaint and proof and reopen his case the next morning. He did so, but added nothing further. The court granted defendant's motion for a directed verdict. 1
The only issue that Wilburn raises is the sufficiency of the evidence to survive the motion for directed verdict. He cites no law on the substance of his action, but only cases regarding the scintilla rule and the standards for directed verdict. Appellee cites Courtesy Ford Sales, Inc. v. Clark, 425 So.2d 1075 (Ala.1983); ...
To continue reading
Request your trial
-
BMW of North America Inc. v. Gore
...held that a car may be considered "new" as a matter of law even if its finish contains minor cosmetic flaws. Wilburn v. Larry Savage Chevrolet, Inc., 477 So. 2d 384 (Ala. 1985). We note also that at trial respondent only introduced evidence of undisclosed paint damage to new cars repaired a......
-
BMW of North America, Inc. v. Gore
...of law, and on that holding affirmed a judgment based on a directed verdict against a plaintiff claiming fraud. Wilburn v. Larry Savage Chevrolet, Inc., 477 So.2d 384 (Ala.1985). While reviewing the verdict in this case, we have considered the principles of law contained in these other Alab......
-
Fincher v. Robinson Bros. Lincoln-Mercury, Inc.
...as to the breach of warranty claim. See Dairyland Ins. Co. v. General Motors Corp., 549 So.2d 44 (Ala.1989), and Wilson v. Larry Savage Chevrolet, Inc., 477 So.2d 384 (Ala.1985). Fincher also contends that the summary judgment for Robinson was improper as to his fraud claim. He argues that ......
-
Dairyland Ins. Co. v. General Motors Corp.
...the Seller extends a written warranty or service contract within 90 days from the date of this contract." In Wilburn v. Larry Savage Chevrolet, Inc., 477 So.2d 384 (1985), a purchaser brought a claim against an automobile dealership alleging breach of warranty. The contract of sale containe......