Colding v. Williams

Ronald COLDING d/b/a Ronald Colding Motors v.
Betty WILLIAMS

CA 95-174                                          ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                  Opinion delivered May 1, 1996


1.   Automobiles -- intentional misrepresentation of mileage --
     finding upheld. -- The appellate court could not say that the
     trial court clearly erred in finding that appellant
     intentionally misrepresented an automobile's mileage where the
     record showed, among other things, that appellee testified
     that appellant, the owner of a used-car lot, told her that the
     automobile was a "good, low-mileage" car and that she noticed
     that the odometer reading was approximately 9,800 miles; that
     the car was sold to appellee after execution of an "Odometer
     Disclosure Statement" certifying that, to the best of the
     seller's knowledge, the odometer reading of 9,892 miles
     reflected the actual mileage of the vehicle; and that
     appellant testified that he knew at the time of the sale that
     the actual mileage of the vehicle was approximately 109,000
     miles but claimed that the error was caused by negligence.

2.   Automobiles -- intentional misrepresentation of mileage --
     penalties -- award of damages upheld. -- Any person injured by
     violation of statutory odometer provisions shall recover the
     actual damages, together with costs and a reasonable
     attorney's fee; the difference in value between the vehicle as
     warranted and its actual value is an appropriate measure of
     damages; where appellant testified that the model in question
     with 9,000 actual miles would be worth $6,000 more than an
     identical vehicle with 109,000 miles, the appellate court
     could not say that the trial judge clearly erred in setting
     damages at $5,000.


     Appeal from Pulaski Circuit Court; David B. Bogard, Judge;
affirmed.
     Christopher C. Mercer, Jr., for appellant.
     William A. McLean, for appellee.

     James R. Cooper, Judge.*ADVREP*CA2*
                                DIVISION I



                                        CA95-174

                                                          May 1, 1996


RONALD COLDING d/b/a                    APPEAL FROM THE PULASKI COUNTY
RONALD COLDING MOTORS                   CIRCUIT COURT
          APPELLANT                     [NO. 92-3516]

VS.                                     HON. DAVID B. BOGARD,
                                        CIRCUIT JUDGE

BETTY WILLIAMS                          AFFIRMED
          APPELLEE







                          James R. Cooper, Judge.


     The appellee in this civil case purchased a 1986 Lincoln Town
Car from the appellant's used car lot in April 1991.  She
subsequently brought an action alleging, inter alia, that the
appellant intentionally misrepresented the automobile's mileage at
the time of the sale.  After a bench trial the trial court entered
judgment for the appellee in the amount of $5,000.00, plus costs
and attorney's fees.  From that decision, comes this appeal.
     For reversal, the appellant contends that the trial court
erred in finding that he violated the mileage disclosure
requirement of Ark. Code Ann.  4-90-206(a) (Repl. 1991), and that
the trial court erred in awarding $5,000.00 in damages.  We find no
error, and we affirm.
     In his first point for reversal, the appellant argues that
there is no substantial evidence to support the trial judge's
finding that the appellant intentionally violated the statute, and
that Ark. Code Ann.  4-90-206 cannot be satisfied by a showing of
mere negligence.  We address only the first part of this argument
because it is dispositive of the entire issue.
     Arkansas Code Annotated  4-90-206(a) (Repl. 1991) provides
that:
     No person shall transfer a motor vehicle without
     disclosing in writing to the transferee the true mileage
     registered on the odometer reading or that the actual
     mileage is unknown if the odometer reading is known by
     the transferor to be different from the true mileage.

As used in Ark. Code Ann.  4-90-206(a), "person" is defined as "an
individual, firm, partnership, incorporated or unincorporated
association, or any other legal or commercial entity."  Ark. Code
Ann.  4-90-201(3) (Repl. 1991).
     In the case at bar, the record shows that the appellant was
the owner of Ronald Colding Motors and that the appellant's brother
was employed as a salesman.  Both the appellant and his brother
dealt with the appellee at the time the automobile was purchased. 
The appellee testified that the appellant told her that the
automobile was a "good, low-mileage" car, and that she noticed that
the odometer reading was approximately 9,800 miles.  The record
further shows that the car was sold to the appellee after execution
of an "Odometer Disclosure Statement" certifying that, to the best
of the seller's knowledge, the odometer reading of 9,892 miles
reflected the actual mileage of the vehicle.
     Although the appellant testified at trial that he knew at the
time of the sale that the actual mileage of the vehicle was
approximately 109,000 miles, he claims the error was caused by
negligence.  On these facts, we cannot say that the trial judge
clearly erred in finding that the appellant intentionally
misrepresented the vehicle's mileage.  Ark. R. Civ. P. 52(a).
     Next, the appellant contends that the trial court erred in
awarding damages in the amount of $5,000.00.  We do not agree. 
Arkansas Code Annotated  4-90-203 (Repl. 1991) provides that any
person injured by violation of the odometer provisions shall
recover the actual damages, together with costs and a reasonable
attorney's fee.  At trial, the appellant himself testified that a
1986 Lincoln Town Car with 9,000 actual miles would be worth
$6,000.00 more than an identical vehicle with 109,000 miles.  The
difference in value between the vehicle as warranted and its actual
value is an appropriate measure of damages, see Currier v. Spencer,
299 Ark. 182, 772 S.W.2d 309 (1989), and on this record we cannot
say that the trial judge clearly erred in setting damages at
$5,000.00.
     Affirmed.
     Robbins and Stroud, JJ., agree.