Opinion
NO. 2019-CA-000257-MR
04-24-2020
ANGELA TAYLOR APPELLANT v. GREENWOOD FORD, INC., D/B/A GREENWOOD LINCOLN APPELLEE
BRIEFS FOR APPELLANT: Stephen L. Hixson Bowling Green, Kentucky BRIEF FOR APPELLEE: Timothy L. Edelen Ryan E. Galloway Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE STEVE ALAN WILSON, JUDGE
ACTION NO. 17-CI-00519 OPINION
AFFIRMING
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BEFORE: GOODWINE, JONES, AND KRAMER, JUDGES. GOODWINE, JUDGE: Angela Taylor ("Taylor") appeals the Warren Circuit Court's order granting summary judgment in favor of Greenwood Ford, Inc., d/b/a Greenwood Lincoln ("Greenwood"). After careful review of the record, finding no error, we affirm.
BACKGROUND
In February 2017, Taylor took her 2010 Mercury Milan to Greenwood after experiencing issues with its steering. Lee Duncan ("Duncan"), a service writer for Greenwood, informed Taylor her car needed a new rack and pinion and provided a quote of $2,800 for parts and labor. Taylor did not seek any other price quotes or diagnostic services before accepting Greenwood's quote and authorizing the repair.
When Taylor went to pick up her car, Greenwood presented her an invoice for over $3,100. A family friend accompanied Taylor to pay the bill and informed her it exceeded the $2,800 quote. Taylor disputed the bill and was presented a new invoice of $2,739.78. The initial bill of $3,100 was likely due to a mistake or miscommunication. Taylor's friend then paid the $2,739.78 bill in full. Her car was repaired one day after she dropped it off, and she was satisfied with the repair.
After the repair, Taylor notified Ford Motor Company ("Ford") in writing of her car's steering issues and the repair, and sought reimbursement. Taylor conducted her own internet research and concluded her 2010 Milan's rack and pinion should have been recalled by Ford because it recalled the same part on the 2011 model. Ford denied her claim. Taylor filed a complaint with the National Highway Safety Administration against Ford.
On April 27, 2017, Taylor filed suit against Ford and Greenwood in the Warren Circuit Court. Taylor asserted Greenwood violated the Kentucky Consumer Protection Act ("KCPA") by charging more than Manufacturer Suggested Retail Price ("MSRP") for safety-critical parts with known safety defects and charging more than recommended labor allowances to replace such parts. She also alleged Greenwood violated the Kentucky Motor Vehicle Sales Act ("KMVSA") under KRS 190.071.
Kentucky Revised Statutes. --------
Greenwood moved for summary judgment. On January 16, 2019, the circuit court granted Greenwood's motion, finding "one's profit, alone, is not sufficient to provide a basis for liability under the KCPA." The court further found Taylor suffered no ascertainable loss, and that her claim did not satisfy its jurisdictional amount. The circuit court dismissed Taylor's claim under the KMVSA. The court concluded it lacked subject matter jurisdiction to hear Taylor's KMVSA claim because KRS 190.062(1) requires all claims under the KMVSA be brought in the Franklin Circuit Court. This appeal followed. Ford was dismissed by agreed order after Taylor filed her notice of appeal against Greenwood.
On appeal, Taylor argues the circuit court erred in granting summary judgment on her KCPA claim against Greenwood.
STANDARD OF REVIEW
"[S]ummary judgment involves only legal questions and the existence of any disputed material issues of fact, [so] an appellate court need not defer to the trial court's decision and will review the issue de novo." Blackstone Mining Co. v. Travelers Ins. Co., 351 S.W.3d 193, 198 (Ky. 2010) (quoting Lewis v. B & R Corporation, 56 S.W.3d 432, 436 (Ky. App. 2001)).
ANALYSIS
As a threshold matter, we must address the circuit court's finding that it lacked jurisdiction over Taylor's claims because the amount in controversy did not exceed $5,000 as required by KRS 24A.120(1). However, KRS 367.220(1) allows consumers to bring KCPA actions "in the Circuit Court in which the seller or lessor resides or has his principal place of business or is doing business, or in the Circuit Court in which the purchaser or lessee of goods or services resides, or where the transaction in question occurred[.]" Courts "may not interpret a statute at variance with its stated language." General Motors Corp. v. Book Chevrolet, Inc., 979 S.W.2d 918, 919 (Ky. 1998) (citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962)). KRS 367.220(1) requires that KCPA claims be filed in circuit court with no reference to amount in controversy. Thus, the circuit court incorrectly found it lacked jurisdiction because the amount in controversy did not exceed $5,000.
Taylor argues the circuit court improperly applied the KCPA. KRS 367.170(1) provides:
(1) Unfair, false, misleading, or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.
(2) For the purposes of this section, unfair shall be construed to mean unconscionable.
The circuit court's order granting summary judgment relied on Aesthetics in Jewelry, Inc. v. Brown, ex rel. coexecutors, 339 S.W.3d 489 (Ky. App. 2011). There, the customer argued a jeweler violated the KCPA by charging a customer far more than the retail value of the jewelry at issue. Id. at 493. The customer alleged the jeweler knew the jewelry was worth less than he represented at the time of the sale. Id. This Court affirmed the circuit court's jury verdict in favor of the jeweler, holding:
the facts indicate that [the customer] was a willing buyer, and [the jeweler] was a willing seller. The two men, of their own volition and under no compulsion, agreed upon a sale price for the suite at issue. While the [customer] may understandably take issue with the substantial amount of profit made by [the jeweler] on this transaction, such is not a basis for liability. Indeed, only evidence which would tend to establish that [the jeweler] made material misrepresentations to [appellant] to induce the purchase would satisfy the burden of proof for the claims alleged. This Court, in reviewing the record, is unable to find evidence to indicate that such was the case.Id. at 496.
Taylor takes issue with the circuit court's application of Aesthetics in Jewelry because that case provides the standard of proof for KCPA claims is clear and convincing evidence. Id. at 495. Taylor asserts the applicable standard of proof is preponderance of the evidence based on American National University of Kentucky, Inc. v. Commonwealth ex rel. Beshear, No. 2018-CA-000610-MR, 2019 WL 2479608 (Ky. App. June 14, 2019). In American National, this Court held "KCPA claims need only be proven by a preponderance of the evidence. Id. at *5. The opinion relies on Woods v. Commonwealth, 142 S.W.3d 24, 43 (Ky. 2004), which provides: "Due Process requires a heightened standard of proof 'when the individual interests at stake . . . are both "particularly important" and "more substantial than mere loss of money."'"
American National is currently under review by the Supreme Court of Kentucky, so it is currently unclear which standard of proof applies to KCPA claims. However, as Greenwood points out, it does not matter which standard applies—Taylor's claim fails under both. The circuit court held "[t]here is no evidence that Greenwood Ford's employees intentionally misled the plaintiff or were grossly negligent in their actions." R. at 214 (emphasis added).
Based on our own review of Duncan's and Taylor's depositions, we agree. Duncan testified he informed Taylor her car needed a new rack and pinion, and the cost would not exceed $2,800. Taylor orally authorized the work at that price. Although Duncan was not present when Taylor picked up her car, he testified that he knew she disputed the bill, which included a $400 core charge. Duncan testified a core charge is typically removed from a bill before it is presented to the customer, but he did not know why it was not taken off. He testified Taylor did not pay the core charge and ultimately paid less than $2,800 for the repair. Duncan did not know the MSRP for the rack and pinion and stated the parts department informs him of the price of parts. He testified she was charged for 4.2 hours of labor, which is the amount of time the repair should take according to the service parts guide. Duncan said this means customers are charged for labor according to the guideline and not the actual amount of time the repair took.
During her deposition, Taylor testified she verbally agreed to the $2,800 quote to replace her car's rack and pinion. She did not take her car anywhere else to get it diagnosed nor did she obtain any other price quotes. When she went to pick up her car, she was presented a bill for over $3,100. She disputed the bill, and the $400 core charged was removed. Taylor's friend paid the entire $2,739.78 on her behalf for the repair. She was satisfied with the repair. However, she believed the price was too high based on what another mechanic and her attorney told her. Taylor admitted the core charge could have been left on her original invoice due to a miscommunication or a mistake. She felt the price she paid was unfair because it was higher than MSRP. However, she presented only one quote of $1,100 from another dealership for parts, but not labor, in support of her contention. She did not know whether the quote was for a new or remanufactured part. Taylor thought the labor rate was excessive, and that the total price should have been around $1,600 based on her attorney's research.
"The statute requires some evidence of 'unfair, false, misleading or deceptive acts' and does not apply to simple incompeten[ce] . . . unless some element of intentional or grossly negligent conduct is also present." Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 291 (Ky. 1991) (citing Dare to Be Great, Inc. v. Commonwealth, ex rel. Hancock, 511 S.W.2d 224 (Ky. 1974)). Although Greenwood initially included the $400 core charge on Taylor's invoice, the final invoice paid by her friend was for less than she authorized. The mere fact that Greenwood charged Taylor more than MSRP for the rack and pinion is not evidence that Greenwood acted unfairly in setting its price for the repair. Duncan's testimony indicates he merely followed Greenwood's policy in computing Taylor's $2,800 quote, and Taylor failed to present any evidence of deceptive or misleading conduct on the part of any Greenwood employee. We agree with the circuit court that the acts complained of amounted to "irritations injuring pride" rather than a "substantial wrong." Id. Evidence of profit alone is insufficient to support a KCPA claim. Taylor failed to prove either by a preponderance of the evidence or by clear and convincing evidence that Greenwood made material misrepresentations to induce her to purchase services to support her KCPA claim.
CONCLUSION
For the foregoing reasons, we affirm the order of the Warren Circuit Court granting summary judgment in favor of Greenwood.
KRAMER, JUDGE, CONCURS.
JONES, JUDGE, CONCURS IN RESULT ONLY. BRIEFS FOR APPELLANT: Stephen L. Hixson
Bowling Green, Kentucky BRIEF FOR APPELLEE: Timothy L. Edelen
Ryan E. Galloway
Bowling Green, Kentucky