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08/08/94 RUTH E. HICE v. J. T. HAUN

August 8, 1994

RUTH E. HICE, PLAINTIFF-APPELLEE
v.
J. T. HAUN, INDIVIDUALLY, AND D/B/A AUTO WORLD, DOROTHY HAUN, INDIVIDUALLY, AND D/B/A AUTO WORLD, ROY CLARK, CAROL CLARK AND WEST TOWN AUTO SALES, INC., DEFENDANTS-APPELLANTS



BRADLEY COUNTY. HON. EARL H. HENLEY, CHANCELLOR

Petition to Rehear Denied August 30, 1994,

Goddard, Franks, McMurray

The opinion of the court was delivered by: Goddard

Goddard, P.J.(E.S.)

Ruth E. Hice initially filed a complaint against J. T. Haun, d/b/a Auto World, and Ray Clark, d/b/a West Town Auto Sales, as a result of Auto World selling her an automobile she contends had been wrecked. Thereafter, she amended her complaint to also sue Dorothy Haun, wife of J. T. Haun, alleging that Mrs. Haun was the titled owner of Auto World. Later, she further amended her complaint to change Mr. Clark's first name to Roy *fn1 rather than Ray and to add West Town Auto Sales, Inc., *fn2 as a party Defendant.

The suit sought damages against Auto World under the following theories:

1. That Auto World's agents and employees "knew or should have known that this vehicle had been involved in a motor vehicle accident."

2. Fraud by misrepresenting the true and correct status of the automobile.

3. Unfair and deceptive acts under Consumer Protection Acts, specifically T.C.A. 47-18-104(6), that the damage awarded be trebled and that she recover reasonable attorney fees in accordance with T.C.A. 47-18-109(a)(3), and 47-18-109(e)(1), respectively.

As to West Town, she alleges it was "engaged in a civil conspiracy to deny plaintiff the true and correct status of the motor vehicle."

At the Conclusion of the trial the Trial Judge sustained West Town's motion for summary judgment as to the claim under the Consumer Protection Act--which he had reserved at the time it was filed--on the ground that any claim against West Town was barred by the applicable statute of limitations. Auto World attempted to amend its answer to also plead the statute of limitations as to the Tennessee Consumer's Act feature of the case, but the Trial Court denied this amendment because it was not timely filed.

The Trial Court did find that both Mr. and Mrs. Haun, d/b/a Auto World, and West Town were guilty of common law fraud and entered the following judgment:

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Plaintiff Ruth E. Hice have and recover of the Defendants J. T. Haun, individually, and d/b/a Auto World, and Dorothy Haun, individually and d/b/a Auto World the sum of five thousand dollars ($5,000.00).

The Hauns, individually and d/b/a Auto World, and West Town appeal, contending the evidence preponderates against a finding of common law fraud and that Ms. Hice did not properly prove her damages. Additionally, West Town appeals, contending the Trial Court should have awarded attorney fees to its counsel for successfully defending against the Tennessee Consumer's Act claim, and Auto World contending that the Trial Court should have required Ms. Hice to mitigate her damages.

Ms. Hice also raises an issue, insisting that she is entitled to recover under the Tennessee Consumer Protection Act.

The automobile in question is a 1988 Oldsmobile, originally purchased in Michigan by Hutzel Hospital of Detroit. The automobile was subsequently stolen and stripped, and upon recovery salvaged by Amerisure (Michigan Mutual Insurance Company). The salvage was then sold to Miami Motor Sales, which thereafter sold it to West Town. West Town contracted to have the automobile repaired and then procured a Tennessee title.

Still later, a man by the name of Edwards, who is referred to in the record as an "automobile jockey," took the automobile to Cleveland and, on behalf of West Town, sold it to Auto World.

On January 3, 1989, Ms. Hice, a 70-year-old widow, seeking a low-mileage car, negotiated the purchase of the vehicle after being assured that it had not been wrecked. At the time, she dealt with both Mr. Haun and one of Auto World's employees, Maureen Flynn. The purchase price, including tax and certain fees, and allowing a credit as to her trade-in vehicle, was $13,585.14.

Shortly after purchase, Ms. Hice noticed some problems with the vehicle and, according to her testimony, it was taken back to Mr. Haun for repair on three separate occasions. On the first occasion she requested the stripes on the doors, which were upside down, be replaced and certain paint work be done. On the second occasion she testified her daughter and son-in-law took the car back because of the following problems:

A I was -- I would get in the car and drive it and the back end of it -- it would seem like the back end would jump to this side and then this side. And the steering wheel would at times lock and if you were on wet pavement it would just about throw you out of the road.

A You'd take your foot off the accelerator and it would just keep going. You'd have to put your foot on the brake to stop the car, or to slow it down.

On the third occasion an arm rest had detached.

On all three occasions Auto World made the necessary corrections and repairs, apparently to Ms. Hice's satisfaction.

Later, when her son-in-law was washing the vehicle, he concluded that it had been "wrecked," and that two vehicles, which sustained damage ...


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