Georgia Court of Appeals Reports

A06A2371. Court of Appeals of Georgia. January 8, 2007.

MIKELL, Judge.

Willie A. Morris, acting pro se,[fn1] appeals the trial
court’s grant of summary judgment to appellee Pugmire
Lincoln Mercury, Inc. (“Pugmire”), a car dealership, on his
complaint alleging fraud in the sale of a new car. We find
no error and affirm.

To prevail at summary judgment,

the moving party must demonstrate that there is no
genuine issue of material fact and that the undisputed
facts, viewed in the light most favorable to the nonmoving
party, warrant judgment as a matter of law. A defendant
may do this by showing the court that the documents,
affidavits, depositions and other evidence in the record
reveal that there is no evidence sufficient to create a
jury issue on at least one essential element of
plaintiff’s case.[fn2]

“On appeal from the grant of summary judgment this Court
conducts a de novo review.”[fn3]

Thus viewed in the light most favorable to Morris, the
record before us on appeal[fn4] shows that on March 27,
1996, Morris special-ordered a new 1996 Mercury Grand
Marquis automobile from Pugmire. Morris took delivery of
the car on May 13, 1996, and paid the purchase price of
$24,875 in cash. At that time, Morris noticed defects in the
paint stripes which Pugmire corrected to his satisfaction
at a later date. Subsequently, the car required a series of
repairs, all of which were performed under warranty at
Pugmire or other dealerships at no cost to Morris. In
September 1996, Morris complained to both Pugmire and Ford
Motor Company (“Ford”), the manufacturer of the vehicle,
alleging that the vehicle was not new, as represented, but
had been wrecked or damaged before he bought it, and that
he wanted it to be replaced.

In a letter to Morris dated December 11, 1996, and “in an
effort to maintain [Morris] as a loyal and satisfied Ford
customer,” Ford offered to replace the vehicle. This letter
agreement, which Morris accepted on December 23, 1996,
contemplated that Morris would return the Grand Marquis to
Pugmire and would then choose from Pugmire a new vehicle
“of equal or greater value” as a replacement. Morris chose
a 1997 Lincoln Town Car costing approximately $14,500 more
than his original Grand Marquis. Ford then refused to honor
its letter agreement with Morris on the ground that the
replacement car was meant to be a 1997 Grand Marquis “of
equal or greater value,” rather than a different model
costing $14,500 more than the vehicle being replaced. Morris
filed suit against Ford on February 10, 1997, asserting
that Ford had breached the letter agreement. On May 25,
1999, Ford and Morris settled this action when Ford paid
Morris $37,000 and Morris executed a release in favor of
Ford (but specifically excluding Pugmire).[fn5] Under the
release, Morris agreed to return the Grand Marquis to
Pugmire. At that time, Morris had had possession of this
vehicle for three years and had driven it for approximately
30,000 to 35,000 miles.

Meanwhile, on March 26, 1998, Morris filed the action
against Pugmire which is the subject of this appeal. In his
complaint, he alleged fraud on the part of Pugmire and
sought damages, attorney fees, and costs. On May 9, 2006,
the trial court granted Pugmire’s motion for summary
judgment,[fn6] and this appeal followed.

1. In an action for damages in tort based upon fraudulent
misrepresentations, Morris must offer some evidence to
support each of five essential elements: (1) that Pugmire
made false representations; (2) that at the time Pugmire
knew the representations were false (scienter); (3) that
Pugmire made the representations intending to deceive
Morris; (4) that Morris relied upon such representations;
and (5) that Morris sustained the alleged loss and damage
as the proximate result of their having been made.[fn7] If
even one essential element of Morris’s claim is absent,
summary judgment is appropriate.[fn8] The record here fails
to raise a factual question regarding the second element,
Pugmire’s scienter.

Morris alleged that the car had been wrecked or damaged at
some time before delivery to him; that the defects in the
car existed on the date of sale; and that Pugmire knew of
these defects at the time of sale. These allegations,
however, were negated by the affidavits of Jack Rogers,
Ralph Thacker, Donnie Hepler, Henry Cullen, and Mike
Werner, which were submitted into evidence by Pugmire.
Rogers, Thacker, and Hepler were all Pugmire employees.
Rogers averred that, on May 9, 1996, he was employed by
Pugmire as an inventory man, responsible for checking in
and receiving new cars after delivery to Pugmire; that he
would prepare a report for the service manager if there
were any obvious dents or scratches on any new car; that he
understood there was no such report on Morris’s car; that
he had thus accepted Morris’s car upon its arrival at
Pugmire’s place of business; and that, when the car arrived,
there was no evidence that it had been wrecked or damaged
in any way. Thacker averred that he was employed as a
transmission technician for Pugmire in 1996; that he
personally replaced the transmission in the car in
September 1996 at the request of Morris and Ford; that
certain damage to the undercarriage of the car occurred as
a necessary part of this work; and that any damage to the
undercarriage of the car occurred in replacing the
transmission, rather than as a result of any accident or
other damage to the car. Hepler averred that he was employed
by Pugmire as a technician in May 1996; that he replaced
the rear end of Morris’s car on June 17, 1996; and that, at
that time, he saw no evidence that the car had been wrecked
or damaged in any way. Cullen and Werner both averred that
they were employed in 1996 as service representatives of
Ford; that, at the request of Ford and Morris, each had
inspected Morris’s car on more than one occasion in order
to determine if it had any mechanical or electrical
problems; and that, although they found mechanical problems
and recommended replacement of the transmission and other
parts, they saw no indication that the car had been wrecked
or damaged in any way.

In the face of these averments, Morris has introduced no
evidence that the car was in fact defective at the actual
time of sale, nor any evidence that, if it was so
defective, Pugmire knew of the defects in the car at that
time. In his deposition, Morris stated that he did not know
when Pugmire obtained knowledge that the car was damaged,
but that he told Pugmire of problems with his car in July
and September 1996. Even if Pugmire knew of the car’s
defectiveness after the sale, however, this knowledge does
not amount to either knowledge or a reckless disregard of
its defectiveness at the time of the sale. As this Court
stated in Leatherwood v. Boomershine Motors,[fn9] “[i]n
order to recover in an action of deceit, it is
indispensable that the scienter be both alleged and
proved.”[fn10] Therefore, in the absence of evidence that
Pugmire knew (or recklessly refused to determine) that the
car was damaged, and also in the absence of evidence that
the car was in fact damaged on the date of sale, summary
judgment for Pugmire was not error.[fn11]

2. “A prerequisite to any award of attorney fees under OCGA
§ 13-6-11 is the award of damages or other relief on
the underlying claim.”[fn12] Similarly, punitive damages
under OCGA § 51-12-5.1 cannot be awarded where no
actual damages are awarded.[fn13] Thus, in light of our
ruling in Division 1 above, the trial court did not err in
granting Pugmire’s motion for summary judgment as to
Morris’s claims for attorney fees, costs, and punitive

3. Morris’s remaining enumerations of error are not
supported in his brief by citations to authority nor by
proper reference to the record, as required by Court of
Appeals Rules 25 (a) (1) and (3) and 25 (c) (3) (i) and
(iii), and are therefore deemed abandoned, as provided in
Court of Appeals Rule 25 (c) (2). Further, Morris does not
show by the record that any of these arguments were raised
before or ruled on by the lower court. “We are limited to
considering only those grounds raised and ruled on below by
the trial court and may not consider a basis for appeal not
presented at the trial level.”[fn14]

For the reasons set forth above, the trial court did not
err in granting summary judgment to Pugmire.

Judgment affirmed. Blackburn, P. J., and Adams, J., concur.

[fn1] Morris was represented by counsel in this action from
its inception until July 11, 2006, after the Notice of
Appeal was filed (June 5, 2006).

[fn2] (Citation and punctuation omitted; emphasis in
original.) Cobb County School Dist. v. Mat Factory, 215 Ga.
App. 697 (1) (452 SE2d 140) (1994).

[fn3] (Citation and punctuation omitted.) Culberson v.
Mercedes-Benz USA, 274 Ga. App. 89 (616 SE2d 865) (2005).

[fn4] We note that appellant, in his brief, has failed to
comply with the requirement of specific citation to the
record, set forth in Court of Appeals Rule 25 (a) (1) and
(c) (3) (i) and (iii). Therefore, if we have omitted any
facts or failed to locate some evidence in the record, the
responsibility rests with appellant. Premier/Ga. Mgmt. Co.
v. Realty Mgmt. Corp., 272 Ga. App. 780 (1) (613 SE2d 112)
(2005). As we have often held, it is not our function to
cull the record on behalf of a party. Waller v. Economic &
Community Dev. Dept., 269 Ga. App. 129, 132 (2) (603 SE2d
442) (2004). Pugmire’s motion to dismiss this appeal is

[fn5] Morris dismissed the action against Ford with
prejudice on June 3, 1999.

[fn6] The trial court denied an earlier motion for summary
judgment made by Pugmire. Pugmire’s renewed motion for
summary judgment could be considered, however, even if no
new evidence had been introduced since the denial of the
first motion for summary judgment. See, e.g., Southeastern
Metal Products v. Horger, 166 Ga. App. 205, 206 (1) (303
SE2d 536) (1983). Morris’s argument to the contrary is
without merit.

[fn7] See, e.g., Gem City Motors v. Minton, 109 Ga. App.
842, 844 (1) (a) (137 SE2d 522) (1964). Accord Catrett v.
Landmark Dodge, 253 Ga. App. 639, 640 (1) (560 SE2d 101)

[fn8] See Premier/Ga. Mgmt. Co., supra at 785 (3) (a).

[fn9] 53 Ga. App. 592 (186 SE 897) (1936).

[fn10] (Citation and punctuation omitted; emphasis in
original.) Id. at 593 (plaintiff failed to show scienter
where there was no evidence that dealer knew of odometer
roll-back or repainting that occurred before dealer
acquired car). Compare Gem City, supra at 849-850 (on motion
for rehearing) (distinguishing Leatherwood, this Court
affirmed denial of j.n.o.v. for defendant car dealer;
scienter was shown where car was traded to dealer with
5,200-mile odometer reading and later sold by dealer to
plaintiff with 900-mile reading), and Bill Spreen Toyota v.
Jenquin, 163 Ga. App. 855, 858, 860 (3) (294 SE2d 533)
(1982) (“ample evidence” showed that defendant either knew
or recklessly failed to ascertain that vehicle had been
cobbled together from the halves of two presumably wrecked

[fn11] OCGA § 9-11-56 (e).

[fn12] United Cos. Lending Corp. v. Peacock, 267 Ga. 145,
147 (2) (475 SE2d 601) (1996).

[fn13] 13 Nelson v. Glynn-Brunswick Hosp. Auth., 257 Ga.
App. 571, 580 (5) (571 SE2d 557) (2002).

[fn14] (Punctuation and footnote omitted.) Colonial Ins. Co.
of California v. Progressive Cas. Ins. Co., 252 Ga. App.
391, 393 (1) (556 SE2d 486) (2001).