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01/20/95 MAURINE MASON AND MAMIE MASON v. CHRYSLER

January 20, 1995

MAURINE MASON AND MAMIE MASON
v.
CHRYSLER CORPORATION AND ROYAL MOTOR COMPANY, INC.



Appeal from Montgomery Circuit Court. (CV-91-2700-TH). H. Randall Thomas, Trial Judge.

Released for Publication April 22, 1995.

Shores, Maddox, Almon, Houston, Kennedy, and Cook, JJ., concur.

The opinion of the court was delivered by: Shores

SHORES, JUSTICE.

The plaintiffs, Maurine Mason and his wife Mamie Mason, appeal from a summary judgment entered for the defendants Chrysler Corporation and its dealer, Royal Motor Company, in an action to recover for fraud. We affirm.

A summary judgment is proper and must be affirmed on appeal if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, Ala. R. Civ. P.; Gray v. Liberty Nat'l Life Ins. Co., 623 So. 2d 1156 (Ala. 1993). We review a summary judgment by the "substantial evidence" rule. Under this rule, once the movant has made a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the nonmovant must rebut this showing by presenting "substantial evidence" creating a genuine issue of material fact. "Substantial evidence" has been defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870 (Ala. 1989); Henson v. Celtic Life Ins. Co., 621 So. 2d 1268 (Ala. 1993); Ala. Code 1975, § 12-21-12(d). Also, reasonable doubts concerning the existence of a material fact must be resolved in favor of the nonmoving party. Henson ; Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990).

The evidence, viewed in a light most favorable to the plaintiffs, suggests the following: On November 26, 1986, the Masons bought a 1987 Chrysler Fifth Avenue automobile from Royal Motor Company. Before the purchase, the Masons had seen and heard television advertisements and had read magazine and newspaper advertisements regarding to the 1987 Chrysler Fifth Avenue. These advertisements indicated that the 1987 Fifth Avenue was a luxury car and was a quality-engineered, reliable, and smooth-riding car. Neither of the Masons recalls the exact wording of all of the advertisements, but they do recall that the representations made indicated that that car was a smooth-riding, luxury car and that it was comparable in comfort, ride, and engineering to other large highway cars, but was much less expensive. The Masons allege that the salesman at Royal Motor Company represented the Chrysler Fifth Avenue as "comparable or close to the ride or it was like a Cadillac or Lincoln Town Car or something to that effect" and that the Chrysler warranty "was the best ... comparable to Cadillacs and Lincoln Town cars."

Less than one month after purchasing the Fifth Avenue, the Masons complained that the car began to vibrate at speeds between 65 and 75 miles per hour. Within the first year of ownership, they noticed a problem with "hesitation" and noticed that the car was "hard to pull in gear." Within 18 months of the purchase, the Masons noticed that the paint on the car's exterior was discolored. They complained of other engine problems, window problems, and some problems with the door locks. Within the first two years of ownership, the Masons noticed that applying the brakes caused the vehicle to "sway." The record indicates that Chrysler Corporation was aware of the recurring problems and that, beginning in 1983, Chrysler supplied its dealerships with a "repair kit" that would help the hesitation problem when the kit was installed.

The Masons sued Chrysler Corporation and Royal Motor Company, alleging fraudulent representation, suppression of material facts, breach of warranty, breach of a third-party-beneficiary contract, negligent repair, and several other claims. In their complaint, the Masons claimed that both defendants represented the car to be a smooth-riding, luxury car and failed to disclose that the Chrysler Fifth Avenue had recurring defects. The trial court held that the defendants' representations about the Fifth Avenue were "puffing" and that the fraud claims were not actionable under the authority of McGowan v. Chrysler Corp., 631 So. 2d 842 (Ala. 1993). The trial court entered a summary judgment for defendants on all claims. The Masons appeal.

On appeal, the Masons argue two grounds upon which they say summary judgment should be reversed. First, they argue that the alleged representations by both defendants were not "puffery" or statements of opinion, as the trial court held, but were actionable misrepresentations on which a fraud claim can be based. Second, the Masons argue that a confidential relationship existed between them and the defendants and that that relationship created a duty on the part of Chrysler and Royal Motor Company to disclose any alleged defects in the Fifth Avenue line of vehicles. The Masons argue that the failure to disclose these alleged defects constituted an actionable suppression of material facts. We disagree.

This case is one of a series of cases filed by counsel for the plaintiffs alleging that Chrysler misrepresented the quality and reliability of its Fifth Avenue line of automobiles in the mid-to late 1980's. This Court's opinion in McGowan v. Chrysler Corp., 631 So. 2d 842 (Ala. 1993), is instructive on the issues presented in this case. Under the holding of McGowan, we must conclude that the representations alleged by the Masons simply do not rise to the level of fraudulent representation.

To establish a cause of action for fraudulent representation or fraud, the Masons must show 1) that the defendant made a misrepresentation, 2) that that misrepresentation concerned a material existing fact, which was 3) that the plaintiff relied on the representation, and 4) that the reliance was to the plaintiff's detriment. Ala. Code 1975, § 6-5-101; Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602 (Ala. 1987); see, McGowan, supra.

The Masons purchased the 1987 Chrysler Fifth Avenue on November 26, 1986. They had purchased cars before and were familiar with the car-buying process. In her deposition, Mamie Mason testified regarding her conversation with ...


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