Mauk v. Pioneer Ford Mercury
308 Ga. App. 864
| Ga. Ct. App. | 2011Background
- Mauk bought a new 2007 Ford Mustang in May 2007 financed by SunTrust with a six-year loan at $587 per month.
- Mauk repeatedly brought the car to Pioneer Ford Mercury for transmission issues beginning May–June 2007; eight repair visits over nine months.
- In February 2008 Mauk revoked acceptance by certified letter to Pioneer, SunTrust, and Ford, seeking return of money and $1,000 in fees.
- The trial court granted summary judgment to Pioneer and SunTrust on damages for failure to accept revocation; the trial court’s ruling relied on Scott v. Team Toyota.
- The court held that tender of nonconforming goods is not required to revoke acceptance under OCGA § 11-2-608; material factual questions remained regarding timeliness of revocation, potential reacceptance, and impairment of value.
- Evidence showed mileage and continued use after revocation, with conflicting testimony about whether such use constituted reacceptance and whether defects substantially impaired value.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tender is required to revoke acceptance under OCGA § 11-2-608 | Mauk argues revocation requires no tender; notice suffices. | Pioneer/SunTrust rely on traditional tender rule from Scott. | Tender not required; revocation valid upon notice. |
| Whether factual questions exist about timeliness, reacceptance, and impairment | Timeliness and impairment issues should go to jury. | Evidence shows continued use may indicate reacceptance; facts contested. | Yes, questions of fact exist for trial. |
Key Cases Cited
- Scott v. Team Toyota, 276 Ga.App. 257 (Ga.App. 2005) (pendant issues; revocation and tender considerations under UCC discussed; not controlling on tender requirement per court’s ruling in this matter)
- Fiat Auto U.S.A. v. Hollums, 185 Ga.App. 113, 363 S.E.2d 312 (Ga.App. 1987) (tender/notice timing principles related to revocation under UCC discussed)
- Snow v. C.I.T. Corp. of the South, 278 Ark. 554, 647 S.W.2d 465 (Ark. 1983) (tender requirement eliminated by UCC adoption; support for revocation by notice without tender)
- Griffith v. Stovall Tire & Marine, 174 Ga.App. 137, 329 S.E.2d 234 (Ga.App. 1985) (basis for questions of fact on timeliness and impairment in revocation claims)
- Franklin v. Augusta Dodge, 287 Ga.App. 818, 652 S.E.2d 862 (Ga.App. 2007) (continued use after revocation can exist; factual questions for jury)
- Small v. Savannah Intl. Motors, 275 Ga.App. 12, 619 S.E.2d 738 (Ga.App. 2005) (summary judgment proper where conduct after revocation indicates reacceptance)