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IN THE COURT OF APPEALS 10/29/96 OF THE STATE OF MISSISSIPPI
NO. 93-CA-01340 COA PATTERSON-MORRIS LINCOLN-MERCURY, INC. APPELLANT v. CHARLES MAGEE APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT G. EVANS COURT FROM WHICH APPEALED: COVINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: L. CLARK HICKS, JR. ATTORNEY FOR APPELLEE: TRAVIS BUCKLEY NATURE OF THE CASE: BREACH OF WARRANTY IN SALE OF USED CAR TRIAL COURT DISPOSITION: JURY VERDICT OF $2,600.00 IN FAVOR OF THE PLAINTIFF

BEFORE THOMAS, P.J., COLEMAN, AND SOUTHWICK, JJ. THOMAS, P.J., FOR THE COURT: SUMMARY

Charles Magee purchased a 1980 Lincoln Mark VI from Patterson-Morris Lincoln Mercury ("the dealership") in December of 1987. After trading another vehicle for which he received credit of $2, 350.00, Magee paid the dealership $2,698.30 for the Lincoln for a total purchase price of $4,950. 00 plus tax. Magee received an "as is-no warranty" form when he purchased the vehicle; however, Magee insists that the form was not on the car window, as required by the Magnuson-Moss Warranty Act. Magee and his wife testified that the vehicle began malfunctioning as they were driving home from the dealership. Magee testified that the car "wouldn't pull," "wouldn't pick up no speed," "would start to jiggling and jumping around" and was always "stopping in the road." Magee's wife testified that the car did not run well, and the car lights would dim. She also testified that they had to use battery jumper cables in order to crank the car on several occasions and that, on one occasion, the car was "red hot" and would smoke. Magee notified the dealership that he was having problems with the car. One week after the sale, the dealership replaced the car's transmission fluid at no charge to Magee. Two months after the sale, the dealership replaced the trunk shocks on the car, again at no charge to Magee. Soon thereafter, the dealership overhauled the carburetor and did not charge Magee for the parts. Although Magee agreed to pay $100.00 for the labor costs for this repair, he failed to do so. Within the next month, the dealership replaced a computer module, an EGR valve and a sensor, all without charge to Magee. After these repairs were made and he was billed the $100.00 labor charge for the carburetor repair, which he did not pay, Magee did not return to the dealership or further inform the dealership about the car. Magee filed suit against the dealership in 1988, alleging breach of contract, negligence, and breach of warranty. The case proceeded to trial on the claim for breach of an implied warranty of merchantability. At the close of Magee's case, the dealership moved for a directed verdict, which the trial court denied. The trial court also denied the dealership's peremptory instruction on liability. After the jury rendered a verdict in favor of Magee for $2,600.00, the dealership appealed, assigning as error the following issues which we have renumbered: (1) Magee was not entitled to recover for breach of warranty since the car was sold without any warranty; (2)Magee failed to provide sufficient evidence to prove breach of the implied warranty of merchantability; (3) the trial court improperly granted jury instruction P-6 ; and (4) Magee failed to provide sufficient evidence of damages for breach of the implied warranty of merchantability. ANALYSIS I. WAS THE CAR SOLD WITHOUT ANY IMPLIED WARRANTY OF MERCHANTABILITY?

The dealership asserts that Magee should be barred from recovery since it sold the car "as is," without any express or implied warranties. Mississippi allows automobile dealers to disclaim implied warranties on used cars that are more than six model years old or have been driven more than 75,000 miles. Section 75-2-315.1 provides:

(1) Any oral or written language used by a seller of consumer goods and services, which attempts to exclude or modify any implied warranties of merchantability and fitness for a particular purpose or to exclude or modify the consumer's remedies for breach of those warranties, is unenforceable. . . . (3) (a) The provisions of this section do not apply to a motor vehicle: (i) Required to be titled under the state law; (ii) That is over six (6) model years old or that has been driven more than seventy-five (75,000) miles; and (iii) If, at the time of the sale of the motor vehicle, the seller gives the purchaser notice of the inapplicability of this section on the form prescribed by the State Attorney General. (b) (i) Any exclusion or modification of an implied warranty of merchantability, or any part of a warranty under this subsection shall be in writing, mention merchantability, and be conspicuous. (ii) An exclusion or modification of the implied warranty of fitness shall be in writing and conspicuous. (iii) Any exclusion or modification of either warranty shall be separately acknowledged by the signature of the buyer.

Miss. Code Ann.

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