Case No. A08A0889
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Date Created: 03/10/16
Varsha Mandiga JOHNSON v. GAPVT MOTORS, INC. et al. FACTS Case No. A08A0889 th When: June 18 , 2008. Where: Court of Appeals of Georgia. Who: Appellant – Kris K. Skaar, Marietta. Appellees – C. Davis Bauman, Clayton. ELLINGTON, Judge. What: The State Court of Cobb County granted the motion for summary judgment filed by GAPVT Motors, Inc. in David Johnson's action for fraud and violations of Georgia's Fair Business Practices Act in connection with his purchase of a car from GAPVT. Johnson appeals, and, for the reasons that followed, the court reversed. ISSUE(S) If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. In Late March 2005, at a sales meeting, the used car sales manager, Randy Rodriguez, told the sales staff, including Henderson, that the car was a Mustang GT, not a Saleen, and that prospective buyers should be advised accordingly. Johnson learned that it was not a genuine Saleen. Within a few days of buying the car, Johnson drove the car to GAPVT's dealership and tried to return the car. He handed the keys to Rodriguez, but Rodriguez told him, “the deal's been done; that is your car,” dropped the keys on the ground, and ordered Johnson to leave the lot. o On June 16, 2005, Johnson returned the vehicle to the lot, left the keys, and mailed a certified letter to GAPVT. The letter stated that GAPVT's dealership had “committed a fraud on” him when it sold him the car, misrepresenting it as a Mustang Saleen. Johnson Johnson contends that summary judgment on his fraud claim is not warranted because material issues of fact remain as to each element of his claim. The court agreed. Johnson contends that summary judgment on his claim under Georgia's Fair Business Practices Act, OCGA § 101390 et seq., is not warranted because material issues of fact remain as to each element of his claim. The court agreed. Johnson contends that summary judgment on his claim for attorney fees under OCGA §§ 13 611 and 101399(a) is not warranted because of remaining material issues of fact. RULE(S) OCGA § 91156. Summary judgment. The five elements of fraud and deceit in Georgia are: o (1) false representation made by the defendant; o (2) scienter; o (3) an intention to induce the plaintiff to act or refrain from acting in reliance by the plaintiff; o 4) justifiable reliance by the plaintiff; o (5) damage to the plaintiff. OCGA § 101390. Short Title. OCGA § 101393. Unfair or deceptive practices in consumer transactions unlawful. OCGA § 101399. Civil or equitable remedies by individuals. OCGA § 13611. Recovery of expenses of litigation generally. ANAYLSIS GAPVT concedes, the evidence is undisputed that GAPVT's agents knew that, although the car had some of the outward appearance of a Mustang Saleen, the car was in fact a Mustang GT. GAPVT's agents falsely represented to Johnson that the car was an authentic Mustang Saleen and that they intended to induce Johnson to purchase the car in reliance on the misrepresentation. Thus, material issues of fact remain as to the first three elements of fraud. The fourth element, GAPVT contends that Johnson's reliance was not reasonable because Johnson “was never able to find the sixth gear” when he testdrove the car “though it is undisputed that he knew that a Mustang Saleen would have six gears. Also, Johnson did not check to see if a serial number was in place verifying the car's existence as a Mustang Saleen.” o Saleen was authorized by the evidence, this conclusion was not demanded by the evidence. GAPVT contends that Johnson cannot show that he was damaged by the alleged fraud because he “has received a full reimbursement through the recession, ․ there has been no negative impact on his credit, has been placed in his original position prior to entering the contract.” Georgia law does not allow a seller to escape all liability for defrauding a customer, however, simply by refunding the purchase price. GAPVT contends that Johnson failed to provide the required ante litem notice. The record shows that Johnson sent GAPVT a certified letter more than 30 days prior to filing this action. GAPVT contends that there is no evidence of a potential harmful effect on the consuming public, because the car “was affixed with Saleen decals and labels by some individual or entity prior to possession of the vehicle.” This position is illogical. GAPVT's argument that the merger clause in the purchase agreement prevents Johnson “from standing on any representation allegedly made by a salesman” directly contradicts the express provisions of the Act. In particular, OCGA § 101393(c). CONCLUSION 2 There is evidence from which the jury could find that GAPVT acted in bad faith in the underlying transaction and has caused Johnson unnecessary trouble and expense and that it violated the Fair Business Practices Act and injured Johnson thereby. Because material issues of fact remain as to each element of Johnson's claim under the Act, the trial court erred in granting GAPVT's motion for summary judgment on that claim. Judgment reversed. 3