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using CNIDR Isearch-cgi 1.20.06 (File: m0014056)

Entry_Date: 050101

Appellant: Kenneth Coats and Patricia Coats, individually and as Husband and Wife

Appellee: Keystone Chevrolet Inc. 

Jurisdiction: Court of Appeals of Oklahoma, Division No. 4

Hearing_Date: June 12, 2001 

Text_of_Rule: 

( Stubblefield )

( Tulsa County - Deirdre O. Dexter )

Not Published

AFFIRMED

David Humphreys Luke J. Wallace Tanya Humphreys HUMPHREYS WALLACE HUMPHREYS Tulsa, Oklahoma For Plaintiffs/Appellees

David T. Marsh Thomas G. Marsh SUTTON, DAVIS & MARSH, P.A. Tulsa, Oklahoma For Defendant/Appellant

OPINION

This is an appeal from judgment on jury verdict finding an automobile dealer guilty of negligence, fraud/deceit and violation of the Oklahoma Consumer Protection Act, and awarding Plaintiffs actual and punitive damages.

The case arises out of a transaction involving the purchase of a used vehicle by Plaintiffs, Kenneth and Patricia Coats, from Defendant, Keystone Chevrolet. In February 1998, the Coats were in the market for a larger vehicle to transport grandchildren and for occasional business use. Because she had heard that Keystone Chevrolet worked with people with poor credit, Ms. Coats visited Keystone to see if she could find a used Suburban which would accommodate the family. Ms. Coats informed Keystone's salesman that the Coats had declared bankruptcy some years before and was assured that the bankruptcy would not be a problem.

According to Ms. Coats, the salesman initially indicated the purchase of a Suburban was a possibility, but after consulting with his manager, he informed her that she could not qualify to purchase a Suburban but that Keystone had one other vehicle available for her. The salesman then showed Ms. Coats a 1995 GMC Safari van. Ms. Coats informed the salesman that she was not interested in that vehicle, but after being assured that if she bought this particular van she would qualify to purchase a Suburban in nine to twelve months, she decided it would have to do.

Unbeknownst to the Coats, Keystone had purchased the van in California at an auction for GM dealers. The van was a repurchased vehicle which had been title branded as a "Lemon Law Buyback" by the state of California, a fact of which Keystone was well aware. Despite an obligation to disclose this information to a potential buyer, Ms. Coats asserts that Keystone told her the van had been owned by an older couple who had traded it because they wanted a larger vehicle. Even though she was not pleased with the van, Ms. Coats negotiated with Keystone for its purchase and signed various documents relating to the sale. These documents included a "GM Disclosure of Vehicle Repurchase or Reacquisition Notice," which is used to inform the buyer of a vehicle that the vehicle was repurchased or reacquired by GM because the previous owner was dissatisfied with the vehicle. However, the disclosure notice was blank except for the vehicle make, model, vehicle identification number and mileage. None of the boxes which would indicate the reasons why the previous owner was not satisfied with the vehicle were checked. Ms. Coats says she was told that everyone who bought a used vehicle had to sign this form to show that the customer knew the vehicle was a used vehicle. She was told that if any repairs had been previously required on the van, it would have been noted on this form.

Ms. Coats was also presented with an "AS-IS, NO WARRANTY" form. She was never informed that the van had any type of warranty to cover repairs, even though the van had a one-year/12,000 mile manufacturers warranty mandated by law for 'lemon" vehicles. A "lemon" disclosure decal, which was required to be affixed to the driver's door frame, was obliterated or scratched out prior to delivery to the Coats.

After Ms. Coats signed various papers regarding the sale, she took the van home for the evening to allow her husband to inspect the vehicle. The Coats returned to Keystone the following day and closed the deal on the van. The agreement to purchase listed the cash price of the van at $16,889, an interest rate of 17.5%, and a sales price of $24,215.21.

After the Coats took delivery of the vehicle, Ms. Coats, who was the primary driver of the van, first noticed that the van's brakes began to make a growling noise and that the vehicle jerked to the right when the brakes were applied. She returned to Keystone to have the brakes checked, but she claims she was informed by the service department that the brakes on "new" vehicles were supposed to make noise and that when the brakes were applied the van was supposed to jerk to the right to avoid veering left into the path of oncoming traffic.

The van was plagued with other problems, including malfunctioning windshield wipers, trouble with closing and opening the doors, and malfunctioning dash board lights. However, because the Coats were unaware of the "lemon" warranty and were in financial difficulty, they were unable to have these problems repaired and simply lived with the inconvenience caused by the problems.

About seven or eight months after purchasing the van, the Coats returned to Keystone to inquire about trading the van for a Suburban, as they believed Keystone had promised. However, they were told that they hadn't been paying on the van long enough to qualify for the Suburban. A few months later, the Coats again returned and attempted to trade the van. This time they were told that the van, for which they had paid almost $ 17,000, was now worth only $7,000, and in order to trade for the Suburban, they would need to pay at least $8,000 down on the new vehicle. They were not able to afford that, and they continued to pay on and use the van.

Later, Mr. Coats was informed about a title search that was possible through an internet company. He conducted such a search and discovered that the van had a branded "Lemon Law Buyback" title. The Coats then instituted this lawsuit, alleging negligence, deceit/fraud, and violation of the Oklahoma Consumer Protection Act. The case came on for jury trial, resulting in a unanimous verdict for the Coats on all counts and a jury award of $30,000 in compensatory damages. Based on specific findings that Keystone acted in reckless disregard of the rights of the Coats, as well as intentionally and with malice, the jury awarded $55,000 in punitive damages. Keystone appeals the judgment entered on jury verdict.

In an action at law, a jury verdict is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury, an appellate court will not disturb the jury's verdict or the trial court's judgment based thereon. Florafax Int'l, Inc. v. GTE Mkt. Resources, Inc., 1997 OK 7, 3, 933 P.2d 282, 287.

In its first proposition of error, Keystone asserts that the trial court abused its discretion when it allowed prejudicial and speculative testimony by an unqualified expert witness. Rulings concerning the qualifications and testimony of an expert witness rests in the discretion of the trial court and the trial court's decision will not be disturbed unless there has been a clear abuse of discretion. Sharp v. 251st St. Landfill, Inc., 1996 OK 109, 6, 925 P.2d 546, 550.

Keystone contends that the Coats' expert, David Stivers, was never qualified as an expert by the trial court or offered as an expert witness by the Coats, nor designated an expert witness on the pre-trial order. However, express recognition and/or acknowledgment by the trial court that the witness is an expert is not required by 12 O.S. 2702 (1991). In re B. C., 2000 OK CIV APP 130, 36, 15 P.3d 8, 15-16. In this instance, Stivers testified he was an "auto industry consultant," and the Coats' counsel questioned Stivers extensively about his experience and expertise - questioning obviously related to establishing the witness's qualification as an expert witness. Stivers testified about his auto industry experience, starting as a salesman in 1974, progressing to sales manager, finance manager, and finally as director of finance of a major dealership chain. He testified he had been a spokesperson for General Motors and Ford Motor Company on subjects such as warranty issues and disclosure to consumers. He recounted that he had attended a "multitude" of schools and seminars on matters related to credit and disclosure. Finally, he stated that he had been qualified as an expert in consumer disputes approximately 40 times.

We find it clear from the evidence of Stivers' extensive experience in all aspects of selling automobiles that he was well qualified to testify as to the operations of a car dealership and a credit transaction. Additionally, the record does not contain one objection from Keystone to Stivers' expert status, either at pre-trial or trial. ' The witness was allowed to give considerable opinion testimony without objection by Keystone. Issues not raised in the trial court, nor preserved by objection, may not be considered for the first time on appeal. Gabler v. Holder and Smith, Inc., 2000 OK CIV APP 107, 6, 11 P.3d 1269, 1273.

Keystone asserts the trial court erred when it allowed Stivers to remain in the courtroom and hear testimony of the other witnesses after the rule of sequestration was invoked. However, this objection was also waived by Keystone when it failed to object to Stivers' presence at the time the rule was invoked. Furthermore, regardless of any objection, the trial court has discretion to permit an expert to remain in the courtroom to hear testimony, even after the rule has been invoked. Clark v. Continental Tank Co., 1987 OK 93, 8, 744 P.2d 949, 951.

The primary gist of Keystone's objection to Stivers' testimony is that the testimony was prejudicial and influenced the passion of the jury. Citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), Keystone claims the testimony should have been stricken under the court's obligation as a "gatekeeper". We do not agree - partly because the Daubert standard has not been adopted as the law of this jurisdiction, but mainly because we find that the testimony in this case was admissible under the more stringent standard Daubert would impose.

Testimony is appropriate when it will assist the trier of fact to understand the evidence or to determine a fact in issue. 12 O.S. 2702 (1991). The question before the jury was whether Keystone negligently, fraudulently and deceitfully violated the Oklahoma Consumer Protection Act when selling the 1995 GMC van to the Coats. Stivers offered insight into the practices of auto dealerships in general, which, when compared to the evidence about this specific transaction, allowed the jury to gauge the practices of Keystone.

Keystone did specifically object to Stivers' testimony because "Stivers was not present at Keystone, nor does he have the knowledge of the facts that took place between the transaction between Ms. Coats and Keystone." However, as the evidence subcommittee's note to section 12 O.S. 2702 makes clear, it is perfectly appropriate for an expert to suggest the inference which should be drawn when applying his specialized knowledge to the facts of the issue at hand. Stivers' opinions were directly relevant to the Coats' claim of fraud and deceit and violation of the Oklahoma Consumer Protection Act. His testimony provided an overview of how cumulative acts of an automobile dealer disadvantages an unsuspecting consumer. His testimony also shed light on the manner in which auto dealerships in general do business, and when considered in conjunction with testimony from Ms. Coats regarding the treatment she received at Keystone, enabled the jury to obtain a clear picture of the events that transpired during and after the purchase of this van, as well as Keystone's motivation to treat its customer in such a manner. In this situation, the jury could infer that Keystone's sales practices were not accepted sales practices within the industry.

The fact that Stivers had never worked in Oklahoma nor worked for Keystone does not make his testimony irrelevant. He testified regarding industry standards. Keystone cites Hatch v. State, 1992 OK CR 44, 835 P.2d 880, for the proposition that 12 O.S. 2702 through 12 O.S. 2705 require that expert knowledge assist the trier of fact to understand the evidence or to determine a fact in issue. We agree. But the practice of the used car industry, and the applicable special industry rules, are not matters of which the ordinary person is apprised.

Therefore, expert testimony certainly allowed the jury to make an informed decision regarding whether Keystone acted responsibly and professionally in the transaction.

Keystone dwells on the fact that the parties had a written contract for the purchase of the vehicle, and that Ms. Coats agreed to the terms of the contract. In its brief, Keystone asserts that Stivers' testimony contravenes the basic principles of Oklahoma contract law, that a person who signs a written agreement is presumed to have read and understood the agreement, and cannot later invalidate the agreement by claiming not to have paid attention." However, the question before us is not one of strict contract interpretation, but rather one of fraudulent/deceitful conduct in the inducement of the contract. The entire transaction is at issue. Stivers' testimony as to the entire procedure an automobile dealer follows in closing a deal which involves a "lemon" vehicle' was informative and helpful to the jury in determining if Keystone's actions were so far outside the parameters of usual and customary practice that they constituted fraud and deceit in the inducement.

Keystone next contends that the jury award of actual damages in the amount of $30,000 is not sustained by sufficient evidence. Where there is any competent evidence or reasonable inference therefrom to sustain the jury's verdict, the judgment will be sustained on appeal unless shown to be contrary to law. Buzzard v. Farmers Ins. Co., Inc., 1991 OK 127, 17, 824 P.2d 1105, 1109; Silk v. Phillips Petroleum Co., 1988 OK 93, 10, 760 P.2d 174, 176. Keystone primarily asserts that insufficient evidence was presented for the jury to find $30,000 in damages based on a calculation which it claims was limited to the "difference in value of the vehicle as represented and what they actually received." However, in addition to that calculation, the court instructed the jury that it could consider damages for (1) the amount of money or goods lost as a result of this transaction, (2) inconvenience, (3) embarrassment, (4) loss of time, (5) upset and distress, (6) loss of bargain, (7) frustration, and (8) out of pocket expenses.

From our review of the record, we conclude there was evidence that would tend to support each factor listed by the trial court. However, without objection by Keystone, the trial court submitted a general verdict on the issue of compensatory damages. Other than speculation and conjecture, there is no way for this court to ascertain just how the jury apportioned damages. In such an instance, our determination is merely to examine the record for competent supporting evidence. We find such evidence.

Keystone also claims the verdict was the result of passion and prejudice, mostly based on the testimony of witness Stivers. We have already found that witness's testimony to be legal, competent and probative. Therefore, we disagree that it is a basis for a finding that the damages were based on prejudice and/or passion. Where there is generally supportive evidence, the issue of excessiveness of a jury verdict comes down to a review by the appellate court to determine whether the verdict at first blush is outrageous or shocking to the conscience of the court. Strubhart v. Perry Mem'l Hosp. Trust Auth., 1995 OK 10, 18, 903 P.2d 263, 270. This verdict is not such a verdict. No remittitur- for which Keystone argues - is appropriate.

Keystone's final proposition of error is that there was no basis for submitting the issue of punitive damages to the jury. We simply disagree. We have rejected Keystone's attack on the testimony of witness Stivers. That testimony, in conjunction with the factual testimony of Ms. Coats, clearly is competent evidence from which the jury could have, and apparently did, conclude that Keystone intentionally defrauded the Coats by failing to disclose the history of the automobile, and in failing to disclose the warranty on the vehicle due to its status as a"lemon."

A punitive damages verdict lies peculiarly within the province of the jury and will not be casually interfered with on appeal when it is claimed to have been actuated by passion or prejudice. Chandler v. Denton, 1987 OK 38, 29, 741 P.2d 855, 868. Unless the verdict appears to be grossly excessive or the result ofthe jury's passion, prejudice or improper sympathy, it will not be conditioned by remittitur. Id. We find no evidence the verdict is a result of such passion and/or prejudice, and, therefore, there was no error in the award of punitive damages.

Finding no error on the part of the trial court availing of reversal, we affirm the judgment on jury verdict in all respects.

AFFIRMED.

RAPP, J., and TAYLOR, J., concur.

(FOOTNOTES):

1 During Stivers' testimony, Keystone did make general objections as to the relevance of his testimony, his lack of personal knowledge and two other objections that (1) "the contract speaks for itself" and that Stivers was not qualified to testify as to what interest the Coats had obtained, and (2) the contract price was negotiated by including a trade-in. After Stivers' testimony, Keystone made a record as to its objection that Stivers' entire testimony would not "serve or help the trier of fact" and that Stivers was not competent to testify because he was not present when the disclosure of the status of the van as a "lemon" was made to the Coats. These objections were not to expert qualification. We find the trial court correctly overruled these objections.

( Ed note: Lemon Law / Lemon vehicle )

Citation: Unpublished Opinion No. 95,030 (2001)