                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-CT-01154-SCT

COYE A. HOLMAN AND TED HOLMAN

v.

HOWARD WILSON CHRYSLER JEEP, INC.


                           ON MOTION FOR REHEARING
                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         06/01/2005
TRIAL JUDGE:                              HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                  MARK W. PREWITT
ATTORNEYS FOR APPELLEE:                   JEFFREY P. HUBBARD
                                          SUSAN D. McNAMARA
NATURE OF THE CASE:                       CIVIL - CONTRACT
DISPOSITION:                              REVERSED AND REMANDED - 01/10/2008
MOTION FOR REHEARING FILED:               10/11/2007
MANDATE ISSUED:




       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The motion for rehearing is denied. The original opinion is withdrawn and this

opinion substituted therefor.

¶2.    Coye and Ted Holman filed suit against Howard Wilson Chrysler Jeep, Inc., in the

Circuit Court of Rankin County, Mississippi, seeking actual and punitive damages for claims

related to their purchase of a 2002 Jeep Grand Cherokee. They made six claims in their

original complaint, alleging Howard Wilson: negligently failed to notify them the vehicle
they purchased had previously been damaged in an automobile accident; concealed or

misrepresented the fact the vehicle had sustained damage; and committed fraud. Howard

Wilson answered and, after discovery, filed a motion for summary judgment. At the hearing

on the motion for summary judgment, the Holmans expressed their desire to amend their

complaint to add a claim that Howard Wilson violated Mississippi’s Consumer Protection

Act when selling them the Jeep. Miss. Code Ann. §§ 75-24-1 through 75-24-175 (Rev.

2000). The circuit court considered the merits of this proposed amendment when hearing the

motion for summary judgment, and decided that the additional claim would not change its

ruling even if the amendment were granted. The circuit court then allowed the Holmans to

amend their complaint, and shortly thereafter entered its order granting summary judgment

in favor of Howard Wilson on all claims.1

3.     The Court of Appeals affirmed the judgment of the circuit court in a 9-0 opinion.

Holman v. Howard Wilson Chrysler Jeep, Inc., ___ So. 2d ___, 2005-CA-01154-COA

(Miss. Ct. App. November 14, 2006). The Holmans filed a petition for writ of certiorari,

which this court granted. We find genuine issues of material fact exist concerning whether

Howard Wilson was under a duty to disclose the repaired damage to the Holmans’ vehicle

prior to purchase, whether the language of the purchase contract is sufficient to place the




       1
       In their complaint, the Holmans also made claims for breach of express or implied
warranties and intentional infliction of emotional distress. The merits of these claims were
not addressed at the hearing or in the motion for summary judgment, yet the circuit court
granted summary judgment and dismissed the entire case. These claims were not raised on
appeal and have, therefore, been waived. See, e.g., Vail v. Jackson, 41 So. 2d 357 (Miss.
1949). The parties have participated in the attorney general’s dispute resolution program as
required by law. Miss. Code Ann. § 75-24-15(2) (Rev. 2000).

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Holmans on notice of the damage to the vehicle from the prior accident, and whether Howard

Wilson violated the Consumer Protection Act when selling the Jeep to the Holmans.

Therefore, we reverse the judgment of the Court of Appeals which affirmed the judgment of

the circuit court, and remand this matter for further proceedings.

                                          FACTS

¶4.    The Holmans purchased a 2002 Jeep Grand Cherokee from Howard Wilson on July

30, 2002. The purchase price of the Holmans’ vehicle was listed on the purchase contract

as $33,685.2 The Jeep was a demonstrator vehicle and had been driven 8,821 miles when

purchased. Within the purchase contract was a clause which states, in full:

       4.     The Vehicle may have suffered damages and may have had repairs
              performed on it during prior ownership or usage, during transit or while
              in the control or possession of Howard Wilson. It is acknowledged that
              the Vehicle has been inspected in accordance with the law, and that it
              has been test driven and fully inspected by offeror(s) and all others
              requested or desired by offeror(s) to do so. The Vehicle is fully
              acceptable to offeror(s) in its present condition. Howard Wilson has no
              obligation to furnish any loaner car to offeror(s) or to provide any other
              substituted transportation to offeror(s) for any reason.

¶5.    On October 2, 2003, the Holmans’ insurance agent informed them that the Jeep was

involved in an automobile accident prior to their purchase of it.3 The Holmans contacted



       2
        There is some discrepancy as to the purchase price of the car. The only executed
copy of the purchase contract in the record lists this amount, however, there is what appears
to be a draft contract listing the vehicle price as $31,299. This discrepancy is explained by
an exhibit in the record. The DaimlerChrysler Motors vehicle invoice in the record identifies
$33,685 as the Manufacturer’s Suggested Retail Price, and $31,299 as the total price for the
vehicle beginning with the Factory Wholesale Price and adding the options included with
the vehicle such as leather seats, a trailer tow package, and chrome aluminum wheels.
       3
       The record reflects the accident occurred March 12, 2002, when the vehicle had
approximately 8,745 miles on its odometer.

                                              3
Howard Wilson and confirmed that the vehicle had been in a wreck and was repaired prior

to their purchase. The repair bill indicated that several automotive parts were replaced or

repaired, including the condenser, deflector, cross-members and brackets, freon and coolant,

and the front bumper. The bill for the repairs totaled $2,190.38.

                               STANDARD OF REVIEW

¶6.    We apply a de novo standard of review to a trial court’s grant of summary judgment.

Moss v. Batesville Casket Co., 935 So. 2d 393, 398 (Miss. 2006). “The moving party has

the burden of demonstrating that no genuine issue of material fact exists, and the non-moving

party must be given the benefit of the doubt concerning the existence of a material

fact.” Howard v. City of Biloxi, 943 So. 2d 751, 754 (Miss. Ct. App. 2006) (citing City of

Jackson v. Sutton, 797 So. 2d 977, 979 (Miss. 2001)). If any triable issues of material fact

exist, this Court will reverse the trial court’s decision to grant summary judgment. Price v.

Purdue Pharma Co., 920 So. 2d 479, 483 (Miss. 2006).

                                      DISCUSSION

       I.     WHETHER THE CIRCUIT COURT ERRED IN
              GRANTING SUMMARY JUDGMENT AS TO THE
              HOLM ANS’ CLAIMS OF NEGLIGENCE,
              MISREPRESENTATION AND FRAUD.

¶7.    Howard Wilson made three arguments in its motion for summary judgment: (1) It

owed the Holmans no duty to disclose the damage to them due to Regulation One of the

Mississippi Motor Vehicle Commission; (2) it had, in fact, disclosed the possibility of

damage to them within the terms of the purchase contract; and (3) the Holmans suffered no

damages due to the failure to disclose. It reiterates these arguments on appeal. The Holmans



                                             4
argue that the Consumer Protection Act and Regulation One of the Mississippi Motor

Vehicle Commission are in direct conflict, and the regulation must give way. Miss. Code

Ann. §§ 75-24-1 through 75-24-175 (Rev. 2000); 50-014 Miss. Code R. § 003-2 (2005).4

They claim a genuine issue of material fact remains to be tried: Whether Howard Wilson sold

the Jeep demonstrator vehicle to them as new.

¶8.    The Court of Appeals agreed Regulation One “did not require [Howard Wilson] to

disclose any damage.” Holman, ___ So. 2d at ___, 2005-CA-01154-COA at ¶ 7. It also

concluded that the disclosure recited above “fulfilled [Howard Wilson’s] duty [to disclose]

had there been one.” Id. at ¶ 12. Finally, the Court of Appeals found the Holmans “failed

to show any connection with the prior damage to the damages they allegedly suffered.” Id.

¶9.    The duty to disclose is based upon a theory of fraud that recognizes that the failure of

a party to a business transaction to speak may amount to the suppression of a material fact

which should have been disclosed and is, in effect, fraud. Welsh v. Mounger, 883 So. 2d 46,

49 (Miss. 2004) (discussing Guastella v. Wardell, 198 So. 2d 227 (Miss. 1967)). According

to the Restatement (2d) of Torts:

       (2) One party to a business transaction is under a duty to exercise reasonable
       care to disclose to the other before the transaction is consummated . . .

       (b) matters known to him that he knows to be necessary to prevent his partial
       or ambiguous statement of the facts from being misleading; and . . .

       (d) the falsity of a representation not made with the expectation that it would
       be acted upon, if he subsequently learns that the other is about to act in
       reliance upon it in a transaction with him; and


       4
     This regulation also can be accessed at the Commission’s internet website:
www.mmvc.state.ms.us/mmvc/MotorVeh.nsf/webpages/regulations_one?OpenDocument

                                              5
       (e) facts basic to the transaction, if he knows that the other is about to enter
       into it under a mistake as to them, and that the other, because of the
       relationship between them, the customs of the trade or other objective
       circumstances, would reasonably expect a disclosure of those facts.

Restatement (Second) of Torts § 551 (1977). See also Welsh, 883 So. 2d at 50 (discussing

Guastella, 198 So. 2d 227, and Restatement (Second) of Torts § 551).

¶10.   Howard Wilson indicated that its policy was to disclose whether a vehicle had been

stolen, had flood damage, or had wreck damage. The Holmans state in their affidavit that

they intended to buy a new vehicle when they purchased the Jeep and that they expressed this

intention to the salesperson at Howard Wilson. Giving the Holmans the benefit of the doubt

and all favorable inferences, their affidavit reflects that the salesperson told them the Jeep

was new, as indicated in the title and sales documents. There is enough evidence in the

record to find a genuine issue of material fact exists whether Howard Wilson owed the

Holmans a duty to disclose the damage prior to the consummation of the sale of the Jeep.

¶11.   Howard Wilson argues the language within the purchase contract met its duty to

disclose: “The Vehicle may have suffered damages and may have had repairs performed on

it during prior ownership or usage, during transit or while in the control or possession of

Howard Wilson.” (Emphasis added). The Holmans bear the burden at trial of proving this

language did not put them on notice of the damage to the vehicle done in the automobile

accident and the further burden of demonstrating the knowledge of the damage would be

material to their purchase of the automobile. We find the adequacy of this notice a question

for the jury. See Hobbs Automotive, Inc. v. Dorsey, 914 So. 2d 148, 154 (Miss. 2005); Lane

v. Oustalet, 873 So. 2d 92, 95-98 (Miss. 2004). See generally Davidson v. Rogers, 431 So.

                                              6
2d 483 (Miss. 1983); Averitt v. State, 246 Miss. 49, 63, 149 So. 2d 320 (1963) (an

affirmative defense is a question of fact to be submitted to the jury).

¶12.   Howard Wilson also argues it was under no duty to disclose the vehicle’s prior

damage to the Holmans at the time of purchase, due to Mississippi Motor Vehicle

Commission Regulation One. The regulation reads:

       On any vehicle, corrected damage exceeding six percent (6%) of the
       manufacturer's suggested retail price, as measured by retail repair costs, must
       be disclosed in writing prior to dealer transfers and consumer deliveries.
       Damage to glass, tires and bumpers and any damaged components or options
       which can be replaced by identical components are excluded from the six
       percent (6%) regulation when replaced by identical manufacturer's original
       equipment.

              This regulation does not waive or alter any requirements or
              obligations which may be created by other Federal or State laws
              and regulations.

50-014 Miss. Code R. § 003-2 (2005). The retail repair costs associated with fixing the

Holmans’ car after the accident exceeded the six-percent retail repair costs discussed in the

regulation.5 By its own terms, the regulation required Howard Wilson to disclose this

damage to the Holmans in writing, unless some of the costs were excluded from the

calculation. The exception within the regulation simply removes the requirement imposed

by the regulation that dealers and customers are to be notified in writing of corrected damage

repairs performed on a particular vehicle. Nothing in the regulation indicates that Howard

Wilson is relieved from its potential duty to disclose as examined above in Welsh.




       5
        Six percent of $33,685 is $2,021.10. The retail repair costs listed in the invoice
totaled $2,190.38.

                                              7
¶13.   Howard Wilson argues these repairs are excluded from the calculation as they were

“corrected damage” to “damaged components” which were replaced by “identical

components.”     As noted above, the exception in the regulation merely removes the

requirement that a purchaser be notified in writing of corrected damage. It does not relieve

Howard Wilson of any other requirement under Mississippi law. Further, the regulation

offers little guidance as to what constitutes a “component” of a vehicle. It specifically

identifies glass, tires and bumpers as qualifying under its disclosure exemption, if replaced.

The Motor Vehicle Commission Law offers only indirect guidance. Cf. Miss. Code Ann. §

63-17-55 (Rev. 2000) (“‘Specialty vehicle’ means a motor vehicle manufactured by a second

stage manufacturer by purchasing motor vehicle components, e.g. frame and drive train. . .

.”).

¶14.   Howard Wilson identifies the purpose of Regulation One as protecting automobile

dealers from being forced to disclose minor damage to vehicles “sustained in transit.” The

Mississippi Automobile Dealers Association, as amici, similarly state this purpose: “The

vast movement and management of a fleet of automobiles in the delivery, sale and marketing

to the public dictates there will be instances of damage to vehicles in the process.” The

Motor Vehicle Commission likewise offers this as the purpose of the regulation in its amicus

brief. “Automobiles often sustain minor damage in transit from the manufacturer to the

dealer. Often times this damage is as simple as a cracked windshield or a scratch in the paint.

As a result, Regulation One was enacted to protect both dealers and consumers.” We see

nothing in our case law or statutes that disagrees.




                                              8
¶15.   Assuming this is the purpose of Regulation One, we find the damage done to the

Holmans’ Jeep, which was corrected by repairs performed by Howard Wilson, falls outside

the purpose of the regulation. This vehicle was involved in an automobile accident, not

damaged in transit. The regulation appears to cover new vehicles. It was illegal for the

Holmans’ demonstrator vehicle to be represented and sold as a new car under the Mississippi

Motor Vehicle Commission Act. Miss. Code Ann. § 63-17-73(1)(b)(2) (Rev. 2004). The

very purpose of the act which gives the Commission the power to promulgate regulations is

to “prevent frauds, unfair practices . . . impositions and other abuses upon the citizens of the

State of Mississippi.” Miss. Code Ann. § 63-17-53 (Rev. 2004). Since the purpose of the

regulation and the Mississippi Motor Vehicle Commission Act would not be served by an

interpretation of the regulation which allowed a demonstrator vehicle involved in a

documented automobile accident to be sold as new after the accident damage is repaired, we

find Regulation One offers no relief to Howard Wilson. The circuit court erred in relying

upon this regulation to grant summary judgment for Howard Wilson; and therefore, its

judgment is reversed.

       II.    WHETHER THE CIRCUIT COURT ERRED IN
              GRANTING SUMMARY JUDGMENT AS TO THE
              HOLMANS’ CLAIMS UNDER THE CONSUMER
              PROTECTION ACT.

¶16.   The Holmans amended their complaint with the court’s permission to allege a

violation of the Consumer Protection Act prior to the court granting summary judgment in

favor of Howard Wilson. The circuit court concluded that the addition of this claim would

not affect its judgment. A discussion of the effect the summary judgment had on the



                                               9
Holmans’ claim under the Consumer Protection Act does not appear in the Court of Appeals

opinion, yet the Holmans pursued this claim in their briefs and petition for writ of certiorari.

The act allows the Holmans to pursue this claim on their own behalf, so we address it below.

Miss. Code Ann. § 75-24-15(1) (Rev. 2000).

¶17.   At the hearing, the Holmans argued that the Consumer Protection Act permitted them

to recover damages because Howard Wilson sold them a car it represented as “new” when

it was, in fact, “used” or “reconditioned.” See Miss. Code Ann. § 75-24-5(2)(f) (Rev. 2000).

Howard Wilson denied it sold them the demonstrator car as a new car. These arguments, on

their face, suggest a genuine issue of material fact exists concerning whether Howard Wilson

sold the Holmans the demonstrator Jeep as a new vehicle. We find factual support for the

Holmans’ argument in the record. Therefore, summary judgment is inappropriate.

¶18.   In responding to the motion for summary judgment, the Holmans offered their

affidavit which provided, in pertinent part:

               After looking around for a while we decided upon a new 2002 Jeep
       Grand Cherokee.
               We talked to the sales representative who advised that the Jeep was new
       as reflected on the title and other applicable sales documents.
               When the sales representative stated the Jeep was “new”, it carried with
       it the generally accepted connotation that it had never sustained any damages.
       Based upon this and other representations of good quality, we decided to, and
       did, purchase the vehicle on July 31, 2002.

As noted above, the Manufacturer’s Suggested Retail Price on the manufacturer’s vehicle

invoice matched the price of the vehicle listed on the purchase contract the Holmans signed.

On the face of the Howard Wilson purchase contract there is one area where one of three

boxes can be marked to identify the vehicle being sold as “new vehicle,” “demo,” or “used



                                               10
vehicle.” The area immediately adjacent to the “new vehicle” box was marked on the

Holmans’ purchase contract. These facts stand in opposition to Howard Wilson’s claim it

did not sell the Holmans the demonstrator Jeep as new. Since there exists a genuine issue

of material fact as to whether Howard Wilson sold the demonstrator Jeep to the Holmans as

a new car, the circuit court erred in granting summary judgment to Howard Wilson. Its

judgment is therefore reversed, and this matter remanded for further proceedings.

¶19.   We are urged by the Motor Vehicle Commission and the Mississippi Automobile

Dealers Association to find that the Consumer Protection Act and Regulation One do not

conflict, as alleged by the Holmans. We agree that the Consumer Protection Act does not

conflict with Regulation One. The language of Regulation One specifically states that it does

not waive or alter any requirements or obligations created by state law. The purpose of both

the Mississippi Motor Vehicle Commission Act and the Consumer Protection Act is to

protect the citizens of Mississippi from deceptive and unfair trade practices. Miss. Code

Ann. §§ 63-17-53 (Rev. 2004), 75-24-5 (Rev. 2002). Both the Motor Vehicle Commission

Act and the Consumer Protection Act prohibit the sale of a used or reconditioned car as a

new car. Miss. Code Ann. §§ 63-17-73(1)(b)(2) (Rev. 2004), 75-24-5(2)(f) (Rev. 2002).

While the regulation identifies “any Vehicle” within its coverage, we have noted above that

the purpose of the regulation is to cover corrected damage done to new vehicles while “in

transit.” Under the circumstances, we perceive no conflict between the regulation and the

Consumer Protection Act.

                                     CONCLUSION




                                             11
¶20.   After reviewing the trial court’s grant of summary judgment, we find that there exist

genuine issues of material fact in this case that should be presented to a jury. Mississippi law

allows recovery for damages by fraud as well as for violations of the Consumer Protection

Act. Therefore, we reverse the judgments of the Court of Appeals and of the circuit court

and remand this matter to the trial court for further proceedings consistent with this opinion.

¶21.   REVERSED AND REMANDED.

     SMITH, C.J., DIAZ, P.J., EASLEY, CARLSON, DICKINSON, RANDOLPH
AND LAMAR, JJ., CONCUR. GRAVES, J., NOT PARTICIPATING.




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