AND GARY VINSON and DEBRA D. VINSON APPEALS v. UNIVERSITY AUTO SALES, INC.
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RENDERED: July 16, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
NO.
1997-CA-002652-MR
AND
1997-CA-002990-MR
GARY VINSON and
DEBRA D. VINSON
APPELLANTS
APPEALS FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 95-CI-00518
v.
UNIVERSITY AUTO SALES, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE, KNOX, AND MCANULTY, JUDGES.
KNOX, JUDGE:
Appellants, Gary and Debra Vinson (the Vinsons),
appeal the trial order and judgment entered by the Warren Circuit
Court following a jury trial on alleged violations of the
Kentucky Consumer Protection Act, as well as breach of warranty,
failure to exercise reasonable and ordinary care in the
performance of services, conversion, and claims of products
liability and unfair trade practices.
In consideration of the
numerous issues raised on appeal, we believe a summary of the
facts, proceedings, and results will be insightful.
In February 1993, the Vinsons purchased a Subaru Legacy
postal wagon from University Auto Sales, Inc. (University).
At
the time of purchase, University offered the Vinsons the option
of applying with Subaru for an extended service contract, for an
additional cost of $998.001 above the vehicle’s purchase price.
The Vinsons opted to apply for the extended protection and paid a
total of $16,997.74 for the vehicle and service application.
However, unbeknownst to University, the Subaru postal wagon is
not eligible for extended service protection, and, as a result,
the application was subsequently rejected by Subaru Financial.
Over the next two (2) years, the Vinsons’ postal wagon
was serviced and/or repaired by University on numerous occasions.
The primary item receiving servicing or repair was the brakes.
In sum, University preformed approximately $11,000.00 of warranty
work on the Vinsons’ vehicle.
On May 23, 1995, the Vinsons filed a complaint against
Subaru of America, Inc. d/b/a Subaru Financial Services, Inc.,
and University.
Without specifying between the named defendants,
the Vinsons’ complaint alleged three separate counts: (1) the
vehicle was defective at the date of manufacture and sale, and
the defendants failed to exercise reasonable and ordinary care in
the repair of said vehicle; (2) the defendants failed to warn the
Vinsons of the vehicle’s defective condition; and, (3) the
defendants, jointly and severally, breached an extended service
agreement.
1
University retained $491.00 of this amount and forwarded
$507.00 to Subaru to process the application.
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On June 21, 1996, the Vinsons moved to amend their
complaint, which motion was granted.
The amendment raised three
(3) additional causes of action: (1) University converted $998.00
of the Vinsons’ funds to its own use; (2) University had violated
the Kentucky Consumer Protection Act; and, (3) University had
engaged in unfair trade practices.
The Vinsons settled with Subaru on March 19, 1996.
The
terms of the settlement provided that Subaru pay the Vinsons
$16,997.74, representing the total purchase price of the
vehicle,2
in addition to $3,000.00 for attorney fees.
A jury
trial addressing the Vinsons’ allegations against University
commenced on May 22, 1997.
University moved for a directed
verdict respecting the products liability claim premised on the
fact that the Vinsons had conceded mid-trial this claim pertained
only to Subaru. This motion was granted.
Additionally,
University moved for a directed verdict on all remaining claims.
After hearing arguments of counsel on these motions, the court
directed a verdict in favor of University respecting the unfair
trade practices, violation of the Consumer Protection Act, and
the breach of warranty claims.
However, the court denied
University’s motion with regard to the conversion and negligent
repair claims, which issues were submitted to the jury on the
evening of May 28, 1997.
Following deliberations, the jury returned a verdict
finding in favor of University on the negligent repair claim, but
2
We note the “total purchase price” figure was inclusive of
the $998.00 paid for the extended service application.
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finding that a conversion had occurred with respect to the
extended service application, and awarded the Vinsons the sum of
$359.28 in damages.
The court entered its trial order and
judgment on June 11, 1997, which, by virtue of University’s
February 1996 offer of judgment, supplemented the jury verdict by
granting University court costs.3
The Vinsons first moved the court to alter, amend or
vacate the judgment on July 7, 1997, on the ground that trial
witness Darren McElwain (McElwain), a mechanic at University, had
informed both their trial attorney and her secretary that he had
not testified truthfully at trial.
In September 1997, the court
granted the Vinsons thirty (30) days to take McElwain’s
deposition, but otherwise denied all remaining motions for postjudgment relief, including a request to hold the matter in
abeyance.
Following the Vinsons’ failed attempts to depose
McElwain, they appealed the court’s order denying their motion to
alter, amend or vacate the trial judgment.
Thereafter, the
Vinsons moved the court for CR 60.02 relief, presumably on the
same basis that had been propounded in the CR 59 motion.4
This
motion was likewise denied and, again, the Vinsons appealed.
The
two appeals were consolidated and are addressed herein.
On appeal the Vinsons argue numerous issues upon which
the trial court committed reversible error, to wit: (1) the
3
On February 12, 1996, University filed an offer of
judgment in the amount of $998.00 plus interest.
4
The record does not contain any motion specifically
seeking CR 60.02 relief. As such, we presume the Vinsons’
verified motion for an order of contempt and arrest of McElwain
was treated as such.
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application for extended service operated as a contract; (2)
three witnesses committed perjury; (3) University did not comply
with pre-trial orders; (4) one juror spoke with a witness and
should have been dismissed; (5) University’s counsel was given
unfair advantage by the court; (6) avowal witnesses’ testimony
was distracted by the court and opposing counsel; (7) the court
permitted a witness for University to treat Vinsons’ counsel
disrespectfully; (8) the jury deliberation time was prejudicial
to the Vinsons; and, (9) certain information was provided by the
wife of a University employee.
Having reviewed the record,
briefs of counsel, and applicable law, we will address issues
(1), (2) and (3), but decline to discuss the remaining items as
such are without merit.
The Vinsons argue the court abused its discretion in
granting University a directed verdict on the breach of warranty
claim.
In support, they contend that other postal workers had
obtained extended warranties from Subaru and the terms of the
contract were merely provided on the back of the application with
no further documentation.
As such, they propound the application
evidenced a contractual agreement and the court abused its
discretion in directing a verdict on this issue.
We disagree.
On the motion of a defendant for a directed verdict,
the trial court in the first instance, and this Court on review,
are required to draw from the evidence every beneficial inference
in favor of the non-movant.
805 S.W.2d 122 (1991).
Baylis V. Lourdes Hosp., Inc., Ky.,
Similarly, the trial court is precluded
from entering a directed verdict unless there is a complete
-5-
absence of proof on a material issue, or if no disputed issue of
fact exists upon which reasonable minds could differ.
v. Goodman, Ky. App., 830 S.W.2d 398 (1992).
Washington
We believe the
facts conclusively support a directed verdict regarding the
breach of warranty claim.
First, the Subaru Added Security Service Agreement
Application provided, in pertinent part:
RETAIN THIS FORM as evidence that you applied
for the plan indicated above. This
application is subject to acceptance by
Subaru Financial Service, Inc. Your dealer
will send a copy of this application to
Subaru Financial Services who will issue and
send you the Added Security agreement. IF
YOU HAVE NOT RECEIVED YOUR AGREEMENT WITHIN
60 DAYS, PLEASE SEND A PHOTOCOPY OF THIS
APPLICATION TO US, or call us at 800/9320636.
. . . .
A brief summary of the Added Security
coverage appears on the back of this
application. As soon as you receive the
Added Security agreement, read it carefully
and familiarize yourself with all the
benefits, limits of coverage, deductibles,
exclusion and your responsibilities and
cancellation rights. Your dealer has a
sample agreement for your review.
I verify the accuracy of the above
information and have reviewed a copy of the
application. I understand that Added
Security is a service contract. It is not an
insurance policy or a warranty or a
guarantee.
OWNER’S SIGNATURE
/Debra Vinson
By virtue of the express language in the application,
Subaru could not be contractually bound until the condition
above-quoted was met, namely acceptance of the application.
Therefore, Debra Vinson’s signature on the application operated
-6-
as nothing more than an offer to purchase an extended service
contract and as such could not be binding on either party until
accepted by Subaru.
445-46 (1953).
See Venters v. Stewart, Ky., 261 S.W.2d 444,
As previously noted, it is undisputed that Subaru
rejected the application since postal wagons are ineligible for
the program.
The obvious conclusion remains that no claim of
breach of contract, warranty, or the like could prevail.
Secondly, even if there was a question as to whether a
contract existed, which there is not, University could not be
considered a party to be charged with performance of same.
Rather, as the express terms of the application provide, the
document called for the possible creation of a contractual
arrangement between the vehicle owner and Subaru Financial
Services, Inc.
When the Vinsons failed to receive the Added
Security agreement within 60 days of applying for same, the onus
was upon them to contact Subaru with regard to the status of
their application.
It is unquestionable the trial court
correctly directed a verdict on this issue.
Underlying both of these consolidated appeals is the
Vinsons’ assertion that three (3) witnesses provided perjured
testimony at trial.
The basis of this claim is an alleged phone
conversation between witness Darren McElwain (Elwain) and Nancy
Roberts (Roberts), the Vinsons’ attorney.
According to attorney
Roberts, following the trial, McElwain communicated over the
telephone that he had failed to testify truthfully regarding: (1)
the number of times he worked on the Vinsons’ vehicle; (2) the
existence of a “team” service system over a certain period of
-7-
time; (3) whether another University employee, John Finn,
unplugged a cooling fan on the Vinsons’ vehicle; and, (4) whether
he had actually observed Debra Vinson “ride the brakes” while
driving the Subaru postal wagon.
Attorney Roberts further
contends McElwain suggested the testimony of two other University
employees was untruthful.
As previously discussed, the trial court granted that
portion of the Vinsons’ motion requesting permission to depose
McElwain and provided 30 days in which to do so.
deposition was never procured.
McElwain’s
On appeal, the Vinsons ask this
Court to reverse the trial court for failing to assume as true
the unsubtantiated allegation of tainted testimony.
We decline
to do so as the record is devoid of any affidavit, deposition, or
otherwise sworn testimony from a witness admitting that he
falsely testified at trial.
See Duncil v. Greene, Ky., 424
S.W.2d 587 (1968); Benberry v. Cole, Ky., 246 S.W.2d 1020
(1952).5
With respect to the Vinsons’ contention that the court
abused its discretion in admitting or excluding certain evidence,
contrary to the pre-trial orders or pursuant to pre-trial
conferences, we find no merit.
We are mindful that the trial
court must balance the probative value of proffered evidence
against its possible prejudicial effect, confusion of the issue,
or creation of undue delay.
Hall v. Transit Auth. of Lexington-
5
In both these cases the Court addressed a judgment
obtained by perjury where the instance of perjury was established
through the affidavit of a witness admitting false testimony was
provided at trial.
-8-
Fayette Urban County Gov’t, Ky. App., 883 S.W.2d 884, 887 (1994).
KRE 401-403.
“This ‘is a determination which rests largely in
the discretion of the trial court . . . .’”
Hall, 883 S.W.2d at
887. (Quoting Transit Auth. of River City v. Vinson, Ky. App.,
703 S.W.2d 482, 484 (1985) (internal citation omitted).
On
appeal, the appellate tribunal will not disturb a trial court’s
ruling to admit or exclude evidence absent an affirmative showing
that the court abused this discretion.
Hall, 883 S.W.2d at 887.
Having closely examined the facts, law, and arguments of counsel,
we find no abuse of discretion and conclude the Vinsons have
failed to meet their burden.
Additionally, with regard to the remaining issues
raised on appeal, our review of the record as a whole reveals
there is no merit to any of the alleged points of error.
Moreover, the Vinsons proffer no legal arguments or authorities
in support of their position on these points.
As such, we
pretermit discussion of the remaining matters on appeal.
For the reasons discussed herein, the judgment of the
Warren Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Nancy Oliver Roberts
Bowling Green, Kentucky
David F. Broderick
Kenneth P. O’Brien
Bowling Green, Kentucky
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