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GUERDON INDUSTRIES, INC. v. JOHN B. GENTRY

AUGUST 31, 1988

GUERDON INDUSTRIES, INC.
v.
JOHN B. GENTRY



BEFORE DAN LEE, P.J., PRATHER AND ROBERTSON, JJ.

PRATHER, JUSTICE, FOR THE COURT:

The primary issue in this appeal addresses the revocation of previously accepted goods under the Uniform Commercial Code. A purchaser of a new mobile home, Mary Dell Gentry, brought this suit in the Circuit Court of Simpson County against the retail seller, Wood Mobile Homes, (Wood), and Guerdon Industries, Inc. (Guerdon), the manufacturer, alleging breach of an express warranty and an implied warranty of merchantability covering the mobile home. From a jury award favoring the plaintiff, and against the manufacturer alone, awarding $30,000.00 in actual damages and $2,500.00 in attorney's fees, later changed by the trial court to $17,112.00 and $4,000.00, respectively, the defendants perfect this appeal and assign as error the following:

(1) The circuit court erred in failing to direct a verdict for the appellant, Guerdon Industries, Inc. in that the plaintiff failed to make out a prima facie case for breach of express or implied warranties.

 (2) The damages of $30,000.00, remitted to $17,112.00, amounted to an improper rescission of the sale. The proper remedy should have been measured as the cost to repair, since rescission of the sale was never requested by the plaintiff.

 (3) There was no evidence that punitive damages were allowable and the granting of a punitive damages instruction was error in that it improperly led the jury to believe that the appellant Guerdon was liable for compensatory damages.

 (4) The awarding of attorney's fees was improper since the plaintiff should not have prevailed.

 STATEMENT OF FACTS

 In June, 1984, Mary Dell Gentry (hereinafter "Mrs. Gentry"), the original plaintiff in this case, began searching for a mobile home to purchase after her original home was consumed by fire. She was aided in this search by

 her son, John B. Gentry (hereinafter "Gentry") who later substituted into the case as plaintiff after his mother's death on March 15, 1985.

 On June 18, 1984, John Gentry purchased a mobile home for his mother that was manufactured by the defendant Guerdon Industries and sold by Wood Mobile Homes of Magee, Mississippi. Gentry paid $17,112.00 for the mobile home. The mobile home was delivered to the lot in Mize, Mississippi where Mrs. Gentry's original home had stood. Gentry had filled in a "twenty foot" area with dirt on the site where the mobile home was to stand; in some places the dirt was four feet deep.

 Within a week of delivery, problems began developing with the home. Lonnie Wood, the dealer, testified that he had four "major" repairs taken care of during the first week, namely, to repair the dishwasher, the heating unit, the washing machine, and a water leak. According to Wood, Mrs. Gentry never made any further complaints about those four items.

 The Gentrys also were dissatisfied with the leveling job done on the mobile home. The home was initially leveled on June 23, 1984, and Mrs. Gentry signed a work order indicating that the work had been done satisfactorily. The home was releveled and preblocked on September 20; Mrs. Gentry signed another work order indicating satisfaction with the work done.

 The Gentrys were also dissatisfied with the fact that Wood did not promptly install the smokestack for the fireplace. However, Gentry admitted on cross-examination that the smokestack was installed before the weather got cold enough to need the fireplace.

 Over the five-month period between the purchase of the mobile home in June, 1984 and the filing of the lawsuit in November, 1984, Wood made approximately ten trips to the mobile home to repair defects pursuant to the express warranty provided by Guerdon. The Gentrys were not totally satisfied with the repairs made by Wood, the local retailer, and contacted Guerdon, the manufacturer, in July about making repairs; Wood contacted Guerdon during July about making repairs as well. Wood expressed some dissatisfaction at the fact that Guerdon employees actually came to the mobile home for the first time to make repairs in September; however Lonnie Wood also stated that a week to two months was the typical range for how long it had taken Guerdon to make repairs in the past.

 On August 23, 1984, the Gentrys had J. B. Black of the State Fire Marshall's office make an inspection of the mobile home for defects. In his report Black listed twenty-seven items that needed repair. At trial, Black was called as an expert witness for the Gentrys. He testified that twenty-seven defects in a mobile home was an "average" number and classified the defects as "minor" . He also testified that the home met all fire and safety standards, was not in violation of any U.S. Housing and Urban Development regulations, and in his opinion, was in merchantable condition.

 Apparently in response to this report, Guerdon employees came to Mize on September 20 from Waycross, Georgia, a distance of approximately 500 miles, to make repairs. Of the twenty-seven items to be repaired, Guerdon repaired approximately twenty of them on this trip, and each item was initialed by Mrs. Gentry as "repaired." Guerdon repaired seven remaining items on November 13, the day the suit was filed, again with Mrs. Gentry's approval.

 As noted earlier, the Gentrys filed suit on November 13, 1984 in the Circuit Court of Simpson County, basing their complaint on the list of defects noted in Mr. Black's report. At trial, Gentry reiterated many of the facts noted here. His testimony was corroborated by his wife, Mary Katherine Gentry, his aunt, Betty Jean Hall, and Betty Jean Robertson, a friend of Mrs. Gentry. At the close of the plaintiff's case, both Guerdon and Wood moved for a directed verdict, which was eventually denied.

 The trial court judge attempted to facilitate a form of settlement by allowing the defendants to make any necessary repairs on the mobile home. Gentry refused this offer. The defendants offered no proof, and the case proceeded to the jury.

 The jury awarded the Gentrys $30,000.00 in actual damages, to which the judge added $2,500.00 in attorney's fees. Although instructed on the issue, the jury gave no punitive damage award. The trial court later remitted the damages award to $17,112.00 and increased the award of attorney's fees to $4,000.00.

 In this case, Gentry's complaint was based on alternative theories of recovery, namely, alleged violations of an express warranty provided by Guerdon, another warranty issued by the U.S. Department of Housing and Urban Development (HUD) obligating the manufacturer to take certain

 corrective actions in the event of non-conformity, and violations of the implied warranty of merchantability, which attaches to goods under Article 2 of the Uniform Commercial Code and under the United States Magnuson-Moss Warranty Act. Attorney's fees were also asked for under authority of the federal act, together with an award of punitive damages for the defendants alleged willful refusal to repair.

 The case was submitted to the jury under a theory of failure to repair and replace defective parts of the goods sold within a reasonable time after request was made, entitling the plaintiff to a return of the purchase price and other consequential damages. In the language of the Uniform Commercial Code, the plaintiff seeks a revocation of acceptance of the goods under Miss. Code Ann. 75-2-608.

 I.

 SHOULD THE APPELLANT'S MOTION FOR A DIRECTED VERDICT HAVE BEEN GRANTED BECAUSE THE APPELLEE FAILED TO MAKE A PRIMA FACIE CASE FOR BREACH OF EXPRESS OR IMPLIED WARRANTIES?

 A. Standard of Review

 When an appellate court examines a trial court's decision regarding a motion for directed verdict, it must do so with great care. It is a well-established rule that when a trial court, or the Supreme Court in this case, considers such a motion, it must do so "in the light most favorable to the party opposed to the motion." White v. Hancock Bank, 477 So.2d 265, 269 (Miss. 1985). See also, Weems v. American Security Insurance Co., 450 So.2d 431, 435 (Miss. 1984). The non-movant must also be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point so overwhelmingly in favor of the defendant (movant) that reasonable men and women could not have arrived at a verdict for the plaintiff (non-movant), granting the motion is required. The burden on the movant in such cases is great, for if there is "substantial" evidence opposed to the motion, which would allow reasonable and fair-minded men and women to reach differing conclusions, the motion must be denied. White, supra, Stubblefield v. Jesco, Inc., 464 So.2d 47, 54 (Miss. 1984).

 These principles are found throughout Mississippi case law, including, but not limited to, Fitzner Pontiac-Buick-Cadillac v. Smith, 523 So.2d 324, 326 (Miss. 1988); McGaugh v. Gray, 495 So.2d 1024, 1025 (Miss. 1986); Rester v. Morrow, 491 So.2d 204, 211 (Miss. 1986); Paymaster Oil Mill

 Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1985). To reach a conclusion in the present case, it is necessary to look closely at the facts of this case to see how they compare with prior case law and any relevant statutory provisions. Each theory of plaintiff's claim to recovery will be dealt with in turn.

 B. The Express Warranty

 As part of the sale of each mobile home it manufactured, Guerdon supplied an express limited warranty. The warranty covered any defects in material and workmanship for a one-year period, with no charge for parts and labor. Complaints about the mobile home were to be directed initially to the retail dealer, in this case, Wood Mobile Homes, in Magee. ...


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