Heather N. Kesling v. Hubler Nissan, Inc.
975 N.E.2d 367
Ind. Ct. App.2012Background
- Kesling traded in a 1996 Mitsubishi Eclipse to Hubler Nissan on Oct. 20, 2007 and purchased it for $2,822.88 two weeks later.
- Hubler advertised the Eclipse online as a “Sporty Car at a Great Value Price” for $2,981.
- Kesling test drove the car on Nov. 3, 2007 and the vehicle allegedly did not idle properly; dealer attributed it to need for a tune-up.
- In Apr. 2010, an inspector found the car dusty with only 44 miles driven since purchase and numerous serious mechanical defects.
- Hubler moved for summary judgment on all claims; the trial court granted it on most claims but denied one Deceptive Consumer Sales Act claim, and the case proceeded to interlocutory appeal.
- This appeal resulted in reversal and remand to resolve disputes about whether Hubler made misrepresentations and whether certain acts were deceptive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deceptive Consumer Sales Act: implied safety representation | Kesling contends the ad implied safety of operation. | Hubler argues no explicit or implied safety representation. | Genuine issues of material fact exist; jury to decide. |
| Crime Victims Relief Act deception claim | Kesling asserts the ad was false or deceptive with intent to promote sale. | Hubler contends the advertisement was not knowingly false or deceptive. | Genuine issues of material fact exist; reversal warranted. |
| Fraud claim | Kesling claims Hubler knew or reckless disregarded truth about defects and failed to disclose. | Hubler argues no misrepresentation or duty to disclose under the facts. | Genuine issues of material fact exist; remand for trial. |
Key Cases Cited
- Berghausen v. Microsoft Corp., 765 N.E.2d 592 (Ind. Ct. App. 2002) (advertising implications evaluated under Act)
- Lawson v. Hale, 902 N.E.2d 267 (Ind. Ct. App. 2009) (nondisclosures not actionable under the Act)
- Shortridge v. Plains, 458 N.E.2d 301 (Ind. Ct. App. 1984) (ambiguity in contract language may be jury-resolved)
- Indianapolis Newspapers, Inc. v. Fields, 259 N.E.2d 651 (Ind. 1970) (meaning of words in defamation-like context; jury interpretation)
- First Bank of Whiting v. Schuyler, 692 N.E.2d 1370 (Ind. Ct. App. 1998) (distinguishes questions about cause of defects in disclosures)
- Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664 (Ind. 1997) (fraud elements and reliance in Indiana)