Spivey v. Southeastern Car & Truck Rentals, Inc.
Spivey v. Southeastern Car & Truck Rentals, Inc.
Opinion of the Court
Steven and Cindy R. Spivey sued Southeastern Car and Truck Rentals, Inc. (hereinafter “Southeastern”), alleging that Southeastern had engaged in misrepresentation, concealment, and breach of contract in connection with the Spiveys’ purchase of a 1987 Pontiac Grand Am automobile. The court entered a summary judgment in favor of Southeastern, and the Spiveys appeal.
The Spiveys argue that they presented clear and convincing proof of actionable fraud committed against them by Southeastern
In October 1988, the Spiveys went to Avis Rent-A-Car in Montgomery, Alabama, to look at used cars offered for sale there by Southeastern.
During her deposition, Mrs. Spivey testified that she had asked only if the car was in good condition and had not asked specific questions concerning the automobile. She stated that she was told that the car was in good condition and that she had not been told that the car had never been wrecked. Additionally, Mrs. Spivey testified that when she took the car to Perry Hill, approximately 17 months after it was purchased from Southeastern, she believed, and, in fact, told an agent of Perry Hill, that the car was in good condition.
Mr. Spivey testified during his deposition that he had no personal knowledge of any misrepresentations made by Southeastern concerning the car. He further testified that he could not say whether anyone at Southeastern represented the car to be “in good and undamaged condition and free of defects,” as was alleged in the complaint against Southeastern. Additionally, Mr. Spivey testified that the car was in good condition when it was taken to Perry Hill.
Two recent fraud cases involving the sale of used cars, Curtis v. Bill Byrd Automotive, Inc., 579 So.2d 590 (Ala. 1990), and Harris v. M & S Toyota, Inc., 575 So.2d 74 (Ala. 1991), are readily distinguished from the instant case. In Curtis, the trial court entered a summary judgment in favor of Bill Byrd Automotive, Inc., and this Court reversed. Curtis bought a used automobile after inquiring specifically whether it had been wrecked. Curtis testified that he remarked to a salesman at Bill Byrd Automotive that he “wondered if [the car] had ever been wrecked.” 579 So.2d at 592. The salesman never replied. Curtis bought the car and later learned that it “had sustained major damage to its internal components and the body of the automobile, and [that] it appeared that the damage was a result of the car being wrecked.” 579 So.2d at 593. Curtis further stated that the car had developed major problems and that “because of the condition of the vehicle, it [was] ‘impracticable’ to attempt to further repair it.” 579 So.2d at 593. Additionally, Curtis stated that had he known the vehicle had been wrecked, he would not have purchased it.
In Harris, there was evidence that both a salesman and the sales manager at M & S Toyota, Inc., orally told the Harrises that the car the Harrises were interested in purchasing had never been involved in an accident. Mr. Harris testified that the oral representations had induced them to purchase the car. Thereafter, the Harrises said, they learned that the car had, in fact, sustained body damage as the result of an automobile accident. This Court held that the Harrises’ evidence presented a jury question on the issue of fraud, although it affirmed the trial court’s grant of a new trial because improper evidence had been admitted.
Both in Curtis and in Harris there was clearly evidence of fraudulent conduct on the part of the automobile dealers; however, there was no evidence of such conduct in this case. Here, when the Spiveys
“Q. Was there ever a statement made to you by anybody out at the Avis place ... when you were purchasing that vehicle that you now say is false?
“A. Are you asking me if anybody told me there was going to be a problem with the car?
“Q. No. The question is, was any statement made to you by Bill Hud-gens or Shannon Claborn or Monya Claborn that you now say was a false statement?
“A. When I asked if the car was in good condition and everything was okay with it, I was told that it was.
“Q. And you say that even when the car was sold or taken to Perry Hill, it was in good condition, is that correct?
“A. Yes. For the age of the car, it was in generally good condition.”
In Ramsay Health Care, Inc. v. Follmer, 560 So.2d 746, 749 (Ala. 1990), this Court set forth the essential elements of a fraud claim:
“The essential elements of a fraud claim are: (1) misrepresentation of a material fact; (2) made willfully to deceive, or recklessly without knowledge; (3) which was justifiably relied upon by the plaintiff under the circumstances; and (4) which caused damage as a proximate consequence.”
(Citation omitted.)
After a thorough review of the evidence before the trial court, we conclude that the Spiveys failed to offer substantial evidence that Southeastern had misrepresented a material fact in the sale of the car. In addition, the Spiveys failed to show that they suffered any damage or loss as a result of the transaction. See Poole v. Henderson, Black & Greene, Inc., 584 So.2d 485 (Ala. 1991).
The summary judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
. The standard of proof necessary to defeat a properly supported motion for summary judgment is not "clear and convincing” proof but, rather, "substantial evidence.” See Ala.Code 1975, § 12-21-12. See, also, Rule 56, A.R.Civ.P.
. We note that although the original complaint contained three counts, the Spiveys argue only that the summary judgment was inappropriate as to count one of the complaint, to-wit, the fraud count. Therefore, any errors as to counts two and three of the complaint are waived on appeal. Bogle v. Scheer, 512 So.2d 1336 (Ala. 1987).
.Southeastern is a licensee of Avis Rent-A-Car. The principal business of Southeastern is the retail sale of used automobiles.
Reference
- Full Case Name
- Steven SPIVEY and Cindy R. Spivey v. SOUTHEASTERN CAR AND TRUCK RENTALS, INC.
- Cited By
- 3 cases
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- Published