SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 7, 2015
In the Court of Appeals of Georgia
A15A0511, A15A0512. ALVEAR v. SANDY SPRINGS TOYOTA,
INC.; and vice versa.
BRANCH, Judge.
Appellant Nadia Alvear brings the first of these companion appeals from a
grant of summary judgment to Sandy Springs Toyota, Inc. (“SST”), in Alvear’s suit
for fraud and other claims concerning her June 2012 purchase of a 2007 Honda Civic
from the dealership that had, at the time of sale, an odometer reading of 3,650 miles.
Prior to the sale to Alvear, an SST technician thought that the car had been driven
many more miles than the odometer showed and told his superiors so. Alvear later
learned that by June 2011, more than a year before she bought the Honda, a vehicle
history report showed the car as having been driven approximately 120,000 miles, or
more than thirty times its odometer reading at the time SST obtained the car. In Case
No. A15A0511, Alvear argues that the trial court erred when it granted summary
judgment to SST because genuine questions of material fact remain as to her claims
for fraud and violation of the Fair Business Practices Act (“FBPA”) (OCGA § 10-1-
390 et seq.). In Case No. A15A0512, SST argues that the trial court erred when it
denied SST summary judgment on Alvear’s claim under Georgia’s odometer statute
(OCGA § 40-8-5). We conclude that issues of fact remain as to Alvear’s fraud and
odometer statute claims but that she did not comply with the ante litem requirement
of the FBPA. We therefore reverse in part in Case No. A15A0511 and affirm in Case
No. A15A0512.
On appeal from a grant of summary judgment, we view the facts in a light most
favorable to the non-movant in order to determine whether the trial court erred in
concluding that no genuine issue of material fact remains and that the movant was
entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250, 251
(510 SE2d 541) (1998).
Viewed in favor of Alvear, the record shows that SST acquired the 2007 Honda
Civic at issue in May 2012, when a customer traded in the car. An odometer
disclosure statement completed by the seller and SST stated that the car had been
driven 3,650 miles. An Auto-Check vehicle history report obtained by Alvear in
2
February 2013 showed, however, that the odometer reading fell from 120,000 miles
in June 2011 to only 2490 miles in October 2011. The SST technician inspecting the
car for possible resale noted the car’s low odometer reading on his report because he
“couldn’t believe that it only had 3,000 miles on it” in light of its “wear.” The
technician observed that the car was a “typical rally” car, with a “stiffened”
suspension, custom wheels, and a “very loud” custom exhaust; substantial wear on
its tires and rear brakes; and missing a spare tire and a radio code. The technician also
noted his opinion that the car “[would] not pass emissions” because it lacked a
catalytic converter. On the basis of these observations, the technician concluded that
the car “was a high-mileage vehicle.” The technician then told his supervisor, who
worked in the parts department, that he “didn’t think the car[‘s mileage] was what [the
odometer] says.” The technician also noted, however, that because modern odometers
could not be rolled back because “the odometer will break or a blank screen will
come up,” he “didn’t know what happened” to this car’s odometer.
Despite the technician’s expressed reservations about the car, SST placed it on
its sales lot, where it attracted substantial attention and was given numerous test
drives. The car passed an emissions test on June 1, 2012, at which time a catalytic
converter was noted as “present.” At some point before its sale to Alvear, an SST
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employee reviewed an Auto-Check vehicle history report on the car.1 On June 5,
Alvear went to the dealership and discussed the car with a saleswoman, who pointed
out the car’s low mileage and said that it had only one prior owner.2 Although Alvear
found it “hard . . . to believe” that the car’s mileage was so low, the saleswoman
answered her questions on the subject and “seemed pretty credible.”
After a test drive, and without asking for a vehicle history report, Alvear
decided to purchase the car “as is,” with “no warranty.” At the time of purchase,
Alvear received a document entitled “ODOMETER DISCLOSURE STATEMENT”
that read as follows:
I, Sandy Springs Toyota[,] state that the odometer now reads 3650 (no
tenths) miles and to the best of my knowledge that it reflects the actual
mileage of the vehicle described below, unless one of the following
statements is checked.
____ (1) I hereby certify that to the best of my knowledge the
odometer reading reflects the amount of mileage in excess
of its mechanical limits.
____ (2) I hereby certify that the odometer reading is NOT the actual
mileage. WARNING: ODOMETER DISCREPANCY.
1
This report does not appear in the record.
2
The saleswoman’s statements to Alvear were offered not for their truth but for
the fact that they were made, and are thus not hearsay. See OCGA § 24-8-801 (c)
(defining hearsay as including a statement “offered in evidence to prove the truth of
the matter asserted”).
4
Neither of the two qualifying statements was marked. A “retail buyer’s order”
apparently completed at the time of purchase listed the car’s mileage as “36506,” with
the last digit of this number written in by hand. This document also purported to
certify “that to the best of [SST’s] knowledge[,] the odometer of 36506 reflects the
actual mileage of the vehicle described above.” This document was signed only by
the sales manager, however, and there is no evidence that Alvear received, saw or
discussed it before buying the car.
Alvear drove the car for two or three months until its engine failed. Alvear first
took the car to a Honda dealership, which gave her a vehicle report noting a problem
with the odometer and told her that the engine needed replacing at a cost of $8000.
When Alvear declined the Honda dealership repair and returned to SST, SST refused
to repair or take back the car. In January 2013, Alvear filed the instant suit for fraud,
breach of contract, and violation of the Georgia odometer statute, later amending her
complaint to include a violation of the FBPA. SST moved for partial summary
judgment as to Alvear’s fraud, odometer statute, and FBPA claims as well as her
request for punitive damages. The trial court granted SST summary judgment on
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Alvear’s fraud and FBPA claims but denied summary judgment on the odometer
statute claim. These appeals followed.
Case No. A15A0511
1. In the first appeal, Alvear argues that the trial court erred when it granted
SST summary judgment on her fraud claim because genuine issues of material fact
remain as to that claim. We agree.
The five elements of a fraud claim are: “(1) false representation made by
defendant; (2) scienter; (3) intention to induce plaintiff to act or refrain from acting
in reliance by plaintiff; (4) justifiable reliance by plaintiff; and (5) damage to
plaintiff.” Paulk v. Thomasville Ford Lincoln Mercury, 317 Ga. App. 780, 782 (1)
(732 SE2d 297) (2012) (citation and punctuation omitted). As the Supreme Court of
Georgia has recently repeated, a plaintiff asserting a fraud claim “must show not only
that he relied on some misrepresentation, but [also that] his reliance was reasonable.”
Raysoni v. Payless Auto Deals, 296 Ga. 156 (766 SE2d 24) (2014) (citation and
footnote omitted).
Construed in favor of Alvear, the evidence shows that SST issued an odometer
disclosure statement that misstated the mileage of the Honda as one-thirtieth of its
actual mileage even after learning, through one of its employees, that the car’s
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condition belied the content of SST’s statement. Alvear’s evidence also shows that
when she specifically asked a saleswoman about the car’s apparently low mileage, the
saleswoman emphasized that feature of the car.
The Georgia fraud statute, OCGA § 51-6-2, specifies that “[m]ere concealment
of a material fact, unless done in such a manner as to deceive and mislead, will not
support an action[,]” id. at (a), and also that “[a] fraudulent or reckless representation
of facts as true when they are not, if intended to deceive, is equivalent to a knowledge
of their falsehood even if the party making the representation does not know that such
facts are false.” Id. at (b). The question “[w]hether it was reasonable for one to rely
upon a certain misrepresentation is generally a question for the jury.” Raysoni, 296
Ga. at 157 (citation omitted); see also Catrett v. Landmark Dodge, 253 Ga. App. 639,
641 (1) (560 SE2d 101) (2002). This record creates a question of fact as to whether
SST issued a substantially inaccurate odometer statement, made “to the best of
[SST’s] knowledge,” and purportedly reflecting “the actual mileage” of the Honda,
even when more than one employee either knew that written statement to be false or
recklessly disregarded the possibility that it was so, and when a saleswoman assured
Alvear that the odometer was accurate. A question of fact therefore remains for a jury
to determine whether SST’s representations to Alvear were fraudulent. OCGA § 51-6-
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2 (b); see also Marrale v. Gwinnett Place Ford, 271 Ga. App. 303, 309 (2) (609 SE2d
659) (2005) (in light of salesman’s lack of knowledge as to a car’s actual condition,
his mispresentation that it “had never been in an accident” could amount to fraud
under OCGA § 51-6-2 (b)).
To avoid this conclusion, SST argues that Alvear’s reliance was not reasonable,
pointing to evidence that Alvear bought the car “as is” and that she could easily have
obtained either a vehicle report or an independent inspection of the car. As our
Supreme Court has recently indicated, however, when written materials received at
the time of sale confirm a dealer’s misrepresentation as to a car’s condition, neither
a written contract’s general disclaimer that a car is sold “as is” with “no warranty” nor
a buyer’s failure to obtain an independent inspection of the vehicle can establish that
the buyer was not sufficiently diligent in investigating the purchase as a matter of
law. See Raysoni, 296 Ga. at 159-160 (a “general disclaimer of warranties,” including
“AS IS NO WARRANTY” clause, which was “at least arguably equivocal and
limited,” did not preclude reasonable reliance on a vehicle report showing that a
vehicle had not been damaged; dealer’s written advice to obtain an independent
inspection “does not squarely contradict the representations upon which [the plaintiff]
8
bought the [vehicle]” and thus “[did] not make his reliance unreasonable as a matter
of law”).3
SST’s citation to Paulk, 317 Ga. App. 780, is also unavailing. In that case, a
a prospective buyer questioned a salesman about apparent damage to a car offered “as
is.” Id. at 781. The salesman replied that although he was “not sure” about the
damage, the car came with a manufacturer’s warranty such that the buyer should “feel
safe, pretty much,” about the purchase. Id. Under these facts, we concluded, which
showed only an “expression of uncertainty” as to the car’s condition, the buyer could
show neither misrepresentation nor justifiable reliance. Id. at 783 (1). Here, by
contrast, SST misrepresented in writing an inarguably material characteristic of the
car – its mileage, and a saleswoman confirmed that misrepresentation under
questioning by an initially skeptical Alvear. Because the evidence outlined above was
thus sufficient to create jury questions on the issues of SST’s knowledge of the
misrepresentation, its intent in making that misrepresentation, and Alvear’s justifiable
3
We understand that Raysoni found evidence sufficient to create a question of
fact as to the “limited” nature of the disclaimer in the sales contract at issue itself,
such that the trial court erred in dismissing the plaintiff’s suit for fraud and other
claims. 296 Ga. at 159. Here, the fact that Alvear produced evidence outside of the
language of her contract with SST does not change the result that SST’s
representations as to the accuracy of the car’s odometer create genuine issues of fact
as to Alvear’s claims.
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reliance on it, the trial court erred when it granted SST summary judgment on
Alvear’s fraud claim.
2. Alvear also contends that genuine issues of fact remain as to her claim under
the FBPA, as to which the trial court granted summary judgment to SST on the
ground that Alvear had failed to comply with OCGA § 10-1-399 (b). We disagree.
The Act outlaws “[u]nfair or deceptive acts or practices in the conduct of
consumer transactions and consumer acts or practices in trade or commerce[.]”
OCGA § 10-1-393 (a). Unfair practices include representations that “goods or
services are of a particular standard, quality, or grade or that goods are of a particular
style or model, if they are of another.” OCGA § 10-1-393 (b) (7). Private actions for
treble damages are authorized under the Act so long as the alleged violation involves
“the breach of a duty owed to the consuming public in general” and thus has “at least
some potential ‘impact on the consumer marketplace.’” Johnson v. GAPVT Motors,
292 Ga. App. 79, 84 (2) (663 SE2d 779) (2008), quoting Brown v. Morton, 274 Ga.
App. 208, 211 (3) (617 SE2d 198) (2005). Offering a product for sale to the public
triggers the prohibitions of the Act “if some deceptive act or practice is involved.”
Johnson, 292 Ga. App. at 84 (2), quoting Catrett, supra, 253 Ga. App. at 642 (2).
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To prevail on a private claim under the Act, “a plaintiff must establish three
elements: violation of the Act, causation, and injury.” Johnson, 292 Ga. App. at 84
(2) (citation and punctuation omitted); see also Catrett, 253 Ga. App. at 642 (2). But
an FBPA plaintiff must also comply with the ante litem requirement of OCGA § 10-1-
399 (b), which provides:
At least 30 days prior to the filing of any such action, a written demand
for relief, identifying the claimant and reasonably describing the unfair
or deceptive act or practice relied upon and the injury suffered, shall be
delivered to any prospective respondent.
On appeal, Alvear has failed to cite any evidence showing that she sent a
written demand for relief to SST at any time before filing suit in January 2013.
Instead, she asserts that because she filed suit months before amending her complaint
to include her FBPA claim, SST had written notice of her claim more than 30 days
before it was actually asserted. Construing the first version of a complaint as “written
demand for relief” filed “prior to the filing of any such action” would render OCGA
§ 10-1-399 (b) meaningless, however. Because Alvear failed to make a written
demand of the dealership at least 30 days before bringing her suit, the trial court did
not err when it granted SST summary judgment as to Alvear’s FBPA claim. OCGA
§ 10-1-399 (b); Steed v. Fed. Nat. Mtg. Corp., 301 Ga. App. 801, 810 (2) (a) (689
11
SE2d 843) (2009) (affirming trial court’s grant of summary judgment under OCGA
§ 10-1-399 (b) when plaintiff “fail[ed] to demonstrate that the notice requirement was
inapplicable in his case” and had “failed to deliver the proper statutory notice”).
Compare Johnson, 292 Ga. App. at 85 (2) (car purchaser’s letter stating that
dealership had “committed a fraud” on him when it sold him the car and that he had
suffered financial injury as a result satisfied OCGA § 10-1-399 (b)); Lynas v.
Williams, 216 Ga. App. 434, 435 (3) (a) (454 SE2d 570) (1995) (car owner’s pre-suit
letter was sufficient to alert repairer of owner’s FPBA claim).
Case No. A15A0512
3. In the companion appeal, SST argues that the trial court erred when it failed
to grant SST summary judgment as to Alvear’s claim under the odometer statute,
OCGA § 40-8-5. We disagree.
The statute provides in relevant part:
(a) It shall be unlawful for any person knowingly to tamper with, adjust,
alter, change, set back, disconnect, or fail to connect an odometer of a
motor vehicle, or to cause any of the foregoing to occur to an odometer
of a motor vehicle, so as to reflect a lower mileage than the motor
vehicle has actually been driven[.]
...
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(c) It shall be unlawful for any person knowingly to sell or attempt to
sell a motor vehicle which reflects a lower mileage than the motor
vehicle actually has been driven due to any illegal acts outlined in
subsection (a) of this Code section.
OCGA § 40-8-5 (emphasis supplied.) Where there is “considerable conflict in the
evidence regarding the actual mileage” of a car, “[i]t is for a jury to determine
whether [a seller] took any action to alter the odometer or had any knowledge that it
had been altered.” Joseph Charles Parrish, Inc. v. Hill, 173 Ga. App. 97, 99 (3) (325
SE2d 595) (1984).
Although the trial court found “no evidence” that SST “knowingly sold the
vehicle with an altered odometer,” it also noted that the SST technician “had reason
to suspect” that the car’s odometer reading “was inaccurate” and that the technician
informed his supervisor of his suspicions as to the car. SST argues that the first of
these findings bars recovery under the odometer statute. But Alvear could survive
summary judgment under subsection (c) if any evidence supported a reasonable
inference that SST attempted to sell her a car with knowledge that the car’s odometer
did not reflect its actual mileage as a result of “any illegal acts” taken by any person.
Here, SST’s own technician actually suspected that the Honda’s odometer
reading was inaccurate, and reported his suspicion to his superior, with the result that
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SST had a duty to investigate before selling the car to Alvear with a certification that
the odometer reading was accurate. Winder v. Paul Light’s Buckhead Jeep Eagle
Chrysler Plymouth, 249 Ga. App. 707, 711 (2) (549 SE2d 515) (2001). In Winder, for
example, the evidence included testimony from a dealership’s mechanics that the car
at issue “appeared to have substantially more miles on it than shown by the odometer”
such that the car “had been driven far in excess” of the mileage reflected on the
odometer when the dealership acquired the car. Id. at 710-711. We reasoned that “[i]f
[the dealership] had reason to suspect that the car’s odometer reading was inaccurate,
then it had a duty to reasonably investigate that suspicion before selling the car to
Winder and giving her an odometer disclosure statement certifying that the odometer
reading was accurate.” Id. at 711. Specifically, a factfinder could conclude from the
testimony of the technician who inspected the car that the dealership “had reason to
suspect that the . . . car had been driven more miles than the odometer reflected” and
“knew or should have known by conducting a reasonable investigation that the
odometer reading was not accurate[.]” Id. As we have described in greater detail
above, this case presents just this evidence, with the result that such that the trial
court did not err when it denied SST summary judgment as to Alvear’s claims under
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OCGA § 40-8-5 (c). Id. (reversing grant of summary judgment as to a claim against
car seller under OCGA § 40-8-5 (c)).
Judgment affirmed in part and reversed in part in Case No. A15A0511;
judgment affirmed in Case No. A15A0512. Andrews, P. J., concurs, and Miller, J.,
concurs in judgment only.
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