France v. Chaprell Jeep-Eagle Dodge, Inc.

France v. Chaprell Jeep-Eagle Dodge, Inc.
1998 OK CIV APP 159
968 P.2d 844
69 OBJ 3991
Case Number: 91298
Decided: 10/06/1998
Mandate Issued: 11/05/1998

TODD FRANCE and KIMBERLY FRANCE, Plaintiffs/Appellants,
v.
CHAPRELL JEEP-EAGLE DODGE, INC., an Oklahoma Corporation, and DON KITE, Defendants/Appellees.

APPEAL FROM THE DISTRICT COURT OF PONTOTOC COUNTY, OKLAHOMA;
HONORABLE THOMAS S. LANDRITH, JUDGE.

AFFIRMED.

Laura J. Corbin, D. Craig Shew, Smith, Shew, Scrivener & Corbin, P.C., Ada, Oklahoma, For Plaintiffs/Appellants,
George W. Braly, H. Buckmaster Coyne, Jr., Braly & Braly and Coyne, Ada, Oklahoma, For Defendants/Appellees.

KENNETH L. BUETTNER, Presiding Judge

¶1 Plaintiffs/Appellants Todd France and Kimberly France (the Frances) appeal from summary judgment granted to Defendants/Appellants Chaprell Jeep-Eagle Dodge, Inc. and Don Kite (Chaprell Jeep or Kite). The Frances filed suit alleging fraud after they discovered the new Dodge van they purchased from Chaprell Jeep had been partially repainted. Chaprell Jeep filed its motion for summary judgment arguing that, under the Motor Vehicle Disclosure Act (

¶2 Summary judgment is proper where there is no substantial controversy of material fact and one party is entitled to judgment as a matter of law. Seitsinger v. Dockum Pontic, Inc., 1995 OK 29, 894 P.2d 1077;

¶3 The Frances then filed their petition alleging Chaprell Jeep and Kite fraudulently induced them to purchase a damaged vehicle by failing to disclose the fact of the damage. The Frances further alleged that they would not have purchased the van if they had known it had been damaged. The Frances alleged that Chaprell Jeep and Kite acted wilfully, maliciously, and in reckless disregard of the Frances' rights in concealing the repaired damage. The Frances asserted they were injured in the amount of the difference in value between a new, undamaged van, and a damaged and repaired van.

¶4 Chaprell Jeep and Kite answered with a motion for summary judgment. They alleged that it was undisputed that the van was new when it was purchased. Chaprell Jeep and Kite further asserted it was undisputed that before the Frances purchased the van, a scratch on the hood of the van had been repaired at a cost of $387.00. Finally, Chaprell Jeep stated that it was aware of and relied on

¶5 In their response to Chaprell's Jeep's and Kite's motion for summary judgment, the Frances agreed with Chaprell's Jeep's and Kite's statement of undisputed facts. The Frances argued, however, that they intended to plead an action for common law fraud and that compliance with

¶6 Actual fraud is defined by statute as any of the following acts, committed by a party to a contract with the intent to deceive another or to induce him to enter the contract: 1) the suggestion as a fact of that which is not true by one who does not believe it to be true; 2) the positive assertion in a manner not warranted by the information of the person making it, of something which is not true, though he believes it to be true; 3) the suppression of that which is true, by one having knowledge or belief of the fact; 4) a promise made without any intention of performing it; or 5) any other acted fitted to deceive.

¶7 There is no allegation of affirmative misrepresentation. The Frances' claim is based upon a failure to disclose. In order to establish fraud by silence, there must have been a duty to speak. Uptegraft v. Dome Petroleum Corp., 1988 OK __, 764 P.2d 1350; Barry v. Orahood, 191 Okla. 618, 132 P.2d 645 (1942). Title

§ 1112.1. Motor vehicle dealers--Disclosure of certain vehicle damage

A. Every dealer shall disclose in writing to the purchaser of a new or previously unregistered motor vehicle, prior to entering into a contract for the vehicle or, if unknown at that time, prior to delivery of the vehicle, the following information:

1. Any material damage known by the dealer to have been sustained by the vehicle and subsequently repaired; and

2. Any damage, including but not limited to material damage or flood damage, known by the dealer to have been sustained by the vehicle and not repaired.

B. For purposes of this section, "material damage" means damage sustained by a motor vehicle as follows:

1. The damage required repairs having a value, including parts and labor calculated at the repairer's cost, exceeding three percent (3%) of the manufacturer's suggested retail price of the vehicle or Five Hundred Dollars ($500.00), whichever is greater. The replacement of damaged or stolen components, excluding the cost of repainting or refinishing those components, if replaced by the installation of new original manufacturer's equipment, parts, or accessories that are bolted or otherwise attached as a unit to the vehicle, including but not limited to, the hood, bumpers, fenders, mechanical parts, instrument panels, moldings, glass, tires, wheels, and electronic instruments, shall be excluded from damage calculation, except that any damage having a cumulative repair or replacement value which exceeds ten percent (10%) of the manufacturer's suggested retail price of the vehicle shall be deemed material damage;

2. The damage was to the frame or drive train of the motor vehicle;

3. The damage occurred in connection with a theft of the entire vehicle; or

4. The damage was to the suspension of the vehicle requiring repairs other than wheel balancing or alignment.

This statute establishes a duty upon dealers to disclose certain types of damage. Chaprell Jeep submitted an invoice from McNutt Body Shop Inc. for the repair of the scratch on the van. The invoice established that the repair cost $387.00. Accordingly, the damage to the vehicle was not material damage under the Oklahoma Vehicle License and Registration Act.

¶8 Despite the Frances' argument that

¶9 Additionally, our Supreme Court has held that to recover for fraud, a plaintiff must show intentional misrepresentation or concealment of a material fact which substantially affects another person. Faulkenberry v. Kansas City Southern Ry. Co., 1979 OK __, 602 P.2d 203, 206. (Emphasis supplied). By enacting

¶10 Because the Frances have adopted Chaprell's Jeep's and Kite's statement of undisputed facts that they did not disclose the damage in reliance on §1112.1, it is undisputed that Chaprell Jeep and Kite did not act recklessly or with malice in failing to disclose the damage and repair to the van. Based on Oklahoma law and the undisputed facts, Chaprell Jeep and Kite were under no duty to communicate the nonmaterial damage and repair to the van. Accordingly, there can be no fraud, actual or constructive. We therefore AFFIRM summary judgment.

ADAMS, J., concurs; HANSEN, J., dissents.