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Alvear v. Sandy Springs Toyota, Inc.

Court of Appeals of Georgia

July 7, 2015

ALVEAR
v.
SANDY SPRINGS TOYOTA, INC.; and vice versa

Page 173

Fraud. Fulton Superior Court. Before Judge Campbell.

Cuadra & Patel, Norman H. Cuadra, Chirag Patel, for appellant.

Magill Atkinson Dermer, David M. Atkinson, Adam M. Masarek, for appellee.

BRANCH, Judge. Andrews, P. J., concurs, and Miller, J., concurs in judgment only.

OPINION

Page 174

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 affirm in part and 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 [332 Ga.App. 799] 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 S.E.2d 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 February 2013 showed, however, that the odometer reading fell from 120,000 miles in June 2011 to only 2,490 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

Page 175

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 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 [332 Ga.App. 800] 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, ...

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