Winder v. Paul Light's Buckhead Jeep Eagle

• Decision Date: 24 May 2001
• Docket Number: No. A01A0140, No. A01A0141.
• Citation: 249 Ga. App. 707,549 S.E.2d 515
• Parties: WINDER v. PAUL LIGHT'S BUCKHEAD JEEP EAGLE CHRYSLER PLYMOUTH, INC. Winder v. Rivers.
• Court: Georgia Court of Appeals

549 S.E.2d 515

249 Ga. App. 707

WINDER v. PAUL LIGHT'S BUCKHEAD JEEP EAGLE CHRYSLER PLYMOUTH, INC.

Winder v. Rivers.

Nos. A01A0140, A01A0141.

Court of Appeals of Georgia.

May 24, 2001.

Foster & Foster, Donald R. Foster, Christina M. Harris, Jonesboro, Melnick, Moore & Elliott, Atlanta, Larry M. Melnick, Jonesboro, for appellant.

Fain, Major, Wiley & Brennan, Gene A. Major, Brian H. Alligood, Atlanta, Deborah L. Morgan, Marietta, for appellee (case no. A01A0140).

Arrington & Hollowell, Gary W. Diamond, Teri E. Brown, Atlanta, for appellee (case no. A01A0141).

ANDREWS, Presiding Judge.

In March 1996, Maryanne Winder bought a 1987 Corvette from Paul Light's Buckhead Jeep Eagle Chrysler Plymouth, Inc. which had recently acquired the car as a trade-in from the only previous owner, Richard F. Rivers. Shortly after the purchase, Winder claimed she discovered the car's odometer had previously been tampered with and set back to reflect lower than actual mileage. She sued Paul Light's and Rivers alleging that both defendants knowingly tampered with and set back the odometer and that Paul Light's knowingly sold her the car with the altered odometer, all with the intent to defraud her in violation of OCGA § 40-8-5. Winder appeals from the trial court's grant of summary judgment in favor of Paul Light's in Case No. A01A0140 and in favor of Rivers in Case No. A01A0141. We consolidate these appeals for consideration in this opinion. As to Winder's claims against Paul Light's, we find the evidence was sufficient to create a jury issue on the claim that Paul Light's knowingly sold the car with an altered odometer but was insufficient to create a jury issue on the claim that Paul Light's knowingly tampered with the odometer. Accordingly, we affirm in part and reverse in part the grant of summary judgment in Case No. A01A0140. Because the evidence was sufficient to create a jury issue on Winder's claim that Rivers tampered with the odometer, we reverse the grant of summary judgment in Case No. A01A0141.

After visually inspecting and test-driving the car, Winder bought the car from Paul Light's on March 11, 1996. Despite being a 1987 model, she paid the $16,990 asking price because of the car's well-kept appearance and because it showed only 16,984 miles on the odometer. Three days after the purchase, Winder started having mechanical problems with the car and took it to a mechanic for an inspection.

After visually inspecting the car, the mechanic, Greg Nettles, told Winder the car appeared to him to have substantially more miles on it than indicated on the odometer. Nettles deposed that, although the car had a good appearance, he observed signs of wear on visible engine parts and road grime and stains on other engine parts that indicated there were substantially more than 17,000 miles on the car. He also observed that the brake pedal on the car was brand new, probably indicating replacement of an old worn down pedal that showed higher mileage and that the car had recaps on the original tires. Nettles further noted that when he later had the engine rebuilt for Winder in February 1997, after an engine rod failed, he observed wear on internal engine parts that showed the car had been driven substantially more miles than shown on the odometer. Another mechanic, Dexter Lee, who worked on the car with Nettles, testified that he saw internal engine parts from the car that showed wear he would expect in a car that had been driven in excess of 100,000 miles. Contrary to Nettles, he testified that the brake pedal on the car was old and appeared to exhibit excessive wear.

As a result of the inspection, Winder contacted the Governor's Office of Consumer Affairs on March 15, 1996, and arranged for an odometer fraud investigator in that office, Russell Laurens, to inspect the car's odometer. Laurens testified by deposition that his inspection showed the odometer had been tampered with. Upon close inspection, Laurens observed "numerous scratches and pick marks and gouges on the numeral wheels" of the odometer, indicative of tampering. He also observed that the odometer's tamper-resistant strip had indentations, that the odometer numeral wheel assembly was partially lifted from its frame, and that the pinion carrier plate on the odometer was bent, all of which were strong indicators of tampering. A service sticker showed that the car's dash had been removed and the instrument panel cluster serviced in 1989, but Laurens' opinion was that the markings and damage to the odometer that he observed were not inadvertently caused during the servicing. Moreover, he noted there was no odometer change sticker on the car indicating that the odometer itself had been legitimately serviced. Although Laurens testified that the odometer tampering was done with more skill than that of an average layman, he also said he would not expect to find the gross marks and gouges he observed if a shop experienced in odometer service and repair had altered the odometer. Laurens also contacted Rivers and asked for service records on the car. He said Rivers provided him with some emission inspection records but did not respond to his request for service records.

In reviewing the paperwork on Winder's purchase of the car, Laurens discovered discrepancies in the odometer disclosure statement provided at the time ownership of the car was transferred from Rivers to Paul Light's on February 13, 1996. The statement showed Rivers' name typed in as the transferor and stated that the odometer read 16,937 miles. However, the statement indicated not that this was the car's actual mileage, but that "the odometer reading reflects the amount of mileage in excess of its mechanical limits." Laurens testified that this statement indicated the odometer reading of 16,937 miles should actually be read as showing the car had traveled 116,937 miles. The statement failed to contain the required signature by the transferor but did contain a signature for the transferee, Paul Light's. Subsequently, Laurens had a meeting with Paul Light's during which Paul Light's produced a revised odometer disclosure statement which was signed by Rivers as the transferor, dated February 13, 1996, and stated that the odometer reading of 16,937 miles reflected the car's actual mileage.

As part of the paperwork she received when she purchased the car, Winder identified an odometer disclosure statement dated March 11, 1996, signed by Paul Light's as transferor to her, which stated that the odometer reading of 16,984 miles on that date reflected the car's actual mileage. Winder testified that the February 13 odometer disclosure statement indicating mileage in excess of the odometer's mechanical limits was part of the paperwork she received when she purchased the car from Paul Light's on March 11, 1996, but she testified she did not notice this statement at the time of the purchase. Winder said she reviewed the purchase paperwork and first discovered this odometer disclosure statement after she discovered evidence of odometer tampering after the purchase. She contacted Paul Light's about the discrepancy between this earlier statement and the March 11 odometer disclosure statement and was told there was a mistake on the February 13 statement. Winder could not recall whether she had ever seen the revised February 13 odometer disclosure statement that was provided by Paul Light's to Laurens.

In support of his motion for summary judgment, Rivers gave an affidavit in which he stated that he bought the Corvette new in March 1988, owned it until he traded it in to Paul Light's on the purchase of another car in February 1996, and received a $13,000 trade-in allowance. He said he drove the car only periodically as a pleasure car, kept it in a garage in excellent condition, and that the car's odometer registered 16,974 miles when he traded it in to Paul Light's. Rivers stated that he never tampered with the car's odometer, never directed anyone else to do so, and was not aware of anyone else tampering with the odometer. According to Rivers, the low mileage shown on the odometer was accurate and consistent with the car's condition. Rivers provided emissions inspection records for the car for four years from 1992 to 1995 showing the following odometer readings on the inspection dates: 1992-11,250...