Court of Appeal (Ga.) Holds Revocation of Acceptance of Lemon Vehicle Might Not Require Surrender of the Vehicle

In Mauk v. Pioneer Ford Mercury, — S.E.2d —-, 2011 WL 1107031 (Ga.App. 2011), the Court of Appeal held that a customer who purchased a lemon vehicle 

Sheila Mauk bought a new Mustang in May 2007, and within three weeks brought it back to the dealership, Pioneer Ford Mercury, with complaints about the transmission. Over the next nine months Mauk brought the car back to the dealer for service eight times, but her complaints were not resolved, and in February 2008 she sent a letter to Pioneer, Ford Motor Company, and the lender SunTrust Bank seeking to revoke her acceptance of the car under OCGA § 11-2-608 of the Uniform Commercial Code. Mauk then filed a complaint against the three entities in May 2008, seeking damages and relief from her installment contract, and this litigation ensued. The trial court granted summary judgment to Pioneer and SunTrust on Mauk’s claim for damages from Pio-neer’s failure to accept her revocation of the contract, and Mauk appeals. For the reasons that follow, we reverse the trial court’s summary judgment to Pioneer and SunTrust on this claim.  In so doing, we overrule the case on which the trial court understandably relied, Scott v. Team Toyota, 276 Ga.App. 257, 259(4) (622 S.E.2d 925) (2005).

A buyer who purports to revoke acceptance of goods may be found to have reaccepted them if, after such revocation, the buyer performs acts inconsistent with the seller’s ownership of the goods. Griffith v. Stovall Tire & Marine, 174 Ga.App. 137, 138(1) (329 S.E.2d 234) (1985) (evidence buyer refused to allow seller access to repair vehicle with 120,000 miles, absent responsive evidence from buyer, was sufficient for summary judgment). See also Small v. Savannah Int’l Motors, 275 Ga.App. 12, 13-14(1) (619 S.E.2d 738) (2005) (summary judgment properly granted to seller because evidence showed buyer did not seek revocation until she was unable to trade in car that she discovered had been flooded, and buyer’s husband liked the car and continued to drive it); Olson v. Ford Motor Co., 258 Ga.App. 848, 850(1) (575 S.E.2d 743) (2002) (summary judgment properly granted to seller on buyer’s revocation claim, because evidence showed buyer used vehicle ownership to negotiate with credit union and took other actions consistent with reacceptance); Fiat, 185 Ga.App. at 115(3) (directed verdict properly granted to seller on buyer’s revocation claim upon evidence buyer drove car more than 6,000 miles after repairing it and painting it another color). ¶  Here, Pioneer and SunTrust argue that Mauk reaccepted the car because she continued driving it for 4,000 miles after sending the revocation letter in February 2008. First, the evidence in that regard is equivocal. The service order dated February 27, 2008 showed that the car had 14,379 miles on it. When asked at her deposition in December 2008 how many miles were on the car, Mauk replied, “It’s right at 18,000, and I want to say maybe 18,200-I hadn’t been in it, so I’m not exactly sure…. I’m going to say nine months it’s sat in the garage.” Second, continued use of a car is not necessarily inconsistent with a revoca-tion of acceptance. Franklin v. Augusta Dodge, Inc., 287 Ga.App. 818, 820-821(1) (652 S.E.2d 862) (2007). When asked about the car having 14,000 miles on it in less than a year despite all the problems she had experienced with it, Mauk explained that it had been her family’s primary car.