Capitol Cadillac Olds, Inc. v. Roberts

WINTERSHEIMER, Justice

dissenting.

I respectfully dissent from that part of the majority opinion which relates to calculation of interest on the judgment and from the application of the Consumer Protection Act.

This unfortunate series of events began on the very first day the Robertses purchased their new 1985 Oldsmobile Calais on January 15, 1985, when they noticed a grinding noise coming from the front of the automobile. The dispute between the parties has continued to this very day.

The circuit court entered a summary judgment in favor of Capitol Cadillac and General Motors. The Robertses were ordered to pay $13,907.74, the amount due under the Retail Installment Contract, plus 15.5 percent annual interest until satisfied, and $2,000 for Capitol’s attorneys fees.

From a technical and legal aspect, the most important issue is whether a creditor who accelerates a loan with precomputed interest is entitled to prejudgment interest from the date the debt is due until the date of judgment. On that question I believe the Court of Appeals was correct in the reasoning it applied to the calculation of interest on the judgment. During the period of time between the acceleration of the indebtedness by reason of default and the date on which judgment was entered, no interest should accrue on the indebtedness. Cf Duff v. Bank of Louisville & Trust Co., Ky., 705 S.W.2d 920 (1986), citing Credit Alliance Corp. v. Adams Construction Corp., Ky., 570 S.W.2d 283 (1978). Accordingly, the most Capitol could obtain is a judgment that included the interest accrued up to the time of acceleration. Such a judgment would have interest at the rate of 15.5 percent per annum as stated in the note. KRS 360.040.

From the point of view of the Consumer Protection Law, the most important issue is the use of the Consumer Protection Act in this situation. The Robertses did receive a verdict for the negligent repainting claim in the amount of $925, but the circuit judge refused to give a punitive damage instruction.

The Court of Appeals correctly determined that the amended complaint of the Robertses raised the issue that GM and Capitol violated the Consumer Protection Act, KRS Chapter 367. The Robertses sought punitive damages from Capitol, and sufficient evidence of unfair and unconscionable trade practices was present to make summary judgment on this claim improper.

A careful review of the record of this extended legal dispute indicates that there does exist a material fact which requires a trial and that the circuit court was not authorized to render summary judgment. The controlling facts are in dispute and the claims have substance. Summary judgment is not a substitute for trial and the circuit court must examine the evidentiary matter not to decide a question of fact, but only to discover if a real issue exists. All doubts are to be resolved in favor of the party opposing summary judgment.

I must strongly disagree with the statement that the acts complained of here fall short of substantial wrongs and are more likely to be “irritations.” Capitol failed five times to satisfactorily repaint the automobile. Representatives of Capitol on several occasions misrepresented the status and quality of the paint job. The Roberts-es were told that it was necessary to order paint from the factory when the evidence indicated that Capitol had purchased it from a local auto parts dealer. There was sufficient evidence of outrageous conduct on the part of Capitol to have permitted an instruction on punitive damages in relation to the negligent painting of the automobile.

If the public cannot use the Consumer Protection Act in this type of situation then we have returned to the days of absolute reliance on caveat emptor or let the buyer beware. It is not for this Court to deter*295mine the amount of recovery but only the right to recovery..

In this commercial sales dispute, the combination of interest calculation and lack of punitive damages have left the Roberts-es at a considerable disadvantage. Let the buyer beware!

I would affirm the decision of the Court of Appeals in all respects.