Opinion
A99A0827.
DECIDED: JUNE 29, 1999.
Gejuan Jessie brought this action against Taylor Auto Group, Inc., complaining that in purchasing a new car she was charged for services she did not receive and overcharged for services she did receive. She seeks damages based on theories of fraud, theft by deception and taking, money had and received, and violations of the Georgia RICO statute (as a result of theft), the Motor Vehicle Sales Finance Act (MVSFA) and the Uniform Deceptive Trade Practices Act (UDTPA). Following an evidentiary hearing, the trial court entered an order granting in part Jessie's motion to certify the issues in this case for treatment as a class action. We granted Taylor's application for interlocutory appeal.
Jessie bought a new Hyundai automobile from Taylor for $17,866.79, which included a $1,300 extended warranty. In making the purchase, she executed a customer order form followed by a retail installment sales contract, both standardized contract documents. Jessie has identified approximately 1,500 other new car purchasers from Taylor under such contracts.
Jessie complains that under both contract documents she was charged a $45.00 tag and title fee, whereas $38.00 is the actual fee imposed by the State for providing a tag and certificate-of-title; that the customer order form imposed an additional $99.50 charge for nonexistent services, i.e., "notary and filing fee rights act"; and that the contract documents failed to reveal a markup for the extended warranty payable to a third party in violation of a provision in the contract requiring disclosure of the identity of the payment recipient.
Taylor has shown that the $99.50 it allegedly charged for nonexistent "notary and filing fees rights act" services was simply misidentified on the customer order form, but correctly shown on the sales contract to consist of a $96.50 document preparation fee and a $3.00 fee imposed under the Motor Vehicle Warranty Rights Act. OCGA § 10-1-780 et seq. The $3.00 fee is mandated by OCGA § 10-1-789, and Taylor has presented evidence to the effect that the document preparation fee is a mechanism through which it allocates to each car purchaser various administrative expenses it incurs in doing tag and title work. There is no "notary and filing fee rights act."
In her deposition, Jessie acknowledged she did not read the contract documents before signing them, but only scanned portions of them to ensure that the car she was purchasing had the features she wanted and that the monthly payments were affordable.
While the motion for class certification was pending, Taylor refunded the $7.00 in tag and title overcharges to the other customers identified by Jessie, and the trial court did not certify this claim for class action treatment. The court also held that under OCGA § 10-1-36.1(a), the count of the complaint alleging violation of the MVSFA cannot be brought as a class action. The court certified the remaining counts of the complaint as a class action. Held:
1. Taylor contends that OCGA § 10-1-36.1(a) prohibits this entire case from being brought as a class action. OCGA § 10-1-36.1(a), which is part of the MVSFA, provides:
A claim of violation of any loan or contract secured by an interest in a motor vehicle may be asserted in an individual action only and may not be the subject of a class action under Code Section 9-11-23 or any other provisions of law.
"In interpreting statutes, courts must look for the intent of the legislature and construe statutes to effectuate that intent. [Cit.]" City of Roswell v. City of Atlanta, 261 Ga. 657(1) ( 410 S.E.2d 28) (1991); see Patterman v. Travelers, 235 Ga. App. 784, 785 ( 510 S.E.2d 307) (1998). OCGA § 10-1-36.1(a) is intended to prohibit class action certification for a claim that any loan or contract secured by an interest in a motor vehicle violates the MVSFA. See Southern Guaranty Corp. v. Doyle, 256 Ga. 790, 794(5) ( 353 S.E.2d 510) (1987); cf. Pardue v. Bankers First Fed. Sav. c. Assn., 175 Ga. App. 814 ( 334 S.E.2d 926) (1985).
2. Taylor contends that for other reasons the remaining counts of the complaint are inappropriate for treatment as a class action.
In order for a case to be eligible for class action certification, a plaintiff must meet various requirements. Among other things, she must be an adequate class representative, Stevens v. Thomas, 257 Ga. 645, 649(2) ( 361 S.E.2d 800) (1987), and common issues of law and fact must predominate over individual legal and factual issues. Trend Star Continental, Ltd. v. Branham, 220 Ga. App. 781, 782(1) ( 469 S.E.2d 750) (1996). Taylor argues that these two requirements have not been met here.
"One whose own claim is a loser from the start" is not an adequate representative. Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1157 (7th Cir. 1999). As recognized in Robinson, supra, such a person "knows that he has nothing to gain from the victory of the class, and so he has little incentive to assist or cooperate in the litigation; the case is then a pure class action lawyer's suit. [Cit.]"
The questions we must address relative to the adequate representation issue are whether, with respect to Jessie's payment of $1,300 for the extended warranty and $96.50 for the document preparation fee, it affirmatively appears from the law and record that there is no basis for her recovery of damages on any of the remaining counts of the complaint.
On appeal, Jessie also claims that Taylor's sale of the extended warranty constituted the unauthorized sale of insurance under OCGA § 33-7-6(b). Since this issue was not raised below, it is not properly before us.
Although Taylor would certainly have committed fraud or the like by imposing a charge for a nonexistent service, neither the extended warranty nor the document preparation fee qualifies as such, as the warranty protection was provided to Jessie and the sale of the car undeniably required the preparation of documents by Taylor. Taylor did not commit fraud or theft by deception, or engage in conduct giving rise to a claim for money had and received, solely because it earned or may have earned an undisclosed profit on these items.
Taylor may, of course, be liable on fraud-based theories if it made fraudulent or deceptive representations concerning these charges. As to the document preparation fee, the only alleged misrepresentation is the misidentification of it on the customer order form. As to the extended warranty, the record does support Jessie's claim that Taylor violated the disclosure provision in the sales contract by not identifying itself as a recipient of a portion of the money paid for this service. See Gibson v. Bob Watson Chevrolet-Geo, 112 F.3d 283 (7th Cir. 1997).
But Jessie cannot recover damages for any of these alleged or proven misrepresentations based on theories of fraud, theft by deception, or money had and received, as reliance on misrepresentations charged to the defendant is an element of each. Longino v. Bank of Ellijay, 228 Ga. App. 37, 39(1) ( 491 S.E.2d 81) (1997) (fraud); King v. State, 214 Ga. App. 311, 314(3) ( 447 S.E.2d 645) (1994) (theft); Davis v. Holloway, 81 Ga. App. 158, 162 ( 58 S.E.2d 234) (1950) (money had and received); compare Gibson, supra (where plaintiff claimed violation of the federal Truth in Lending Act). Jessie's own deposition testimony shows that she did not even read the provisions of the contract at issue and thus affirmatively negates her claim that she relied on them in making her purchase. Consequently, at least as to Jessie, any presumption or inference of reliance that might otherwise have arisen cannot be indulged. See Bohannon v. Allstate Ins. Co., 118 F.R.D. 151, 158 (S.D.Ga. 1986) (cited approvingly in Stevens, supra, at 650); see also Buford v. H R Block, 168 F.R.D. 340, 356(41) (S.D.Ga. 1996), aff'd 117 F.3d 1433 (11th Cir. 1997).
Jessie has sought to recover under two other theories which we have yet to analyze. One is for violation of the UDTPA, and the other is for theft by taking. Reliance on misrepresentations is an element of neither. See OCGA §§ 10-1-372(b) (UDTPA); 16-8-2 (theft by taking). Nonetheless, the count alleging violation of the UDTPA cannot provide a basis for relief, as it is well established that the remedy sought in Jessie's complaint, i.e., monetary relief, is not available under the UDTPA. Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 498(2) ( 455 S.E.2d 601) (1995). Nor can Jessie recover for theft by taking, as the gravamen of this offense is the taking of the property against the will of the victim, Stull v. State, 230 Ga. 99, 100(1) ( 196 S.E.2d 7) (1973), and there is no allegation in the complaint or indication in the record that the amounts charged for the services in question were paid by Jessie involuntarily.
Since the record thus shows that Jessie is not entitled to a recovery on any count of the complaint, the trial court lacked the discretion to certify this case as a class action. See generally Winfrey v. Southwest Community Hosp., 184 Ga. App. 383(1) ( 361 S.E.2d 522) (1987).
Judgment reversed. Blackburn, P.J., concurs. Barnes, J., concurs in judgment only.