4WD Parts Center, Inc. v. Mackendrick

579 S.E.2d 772, 260 Ga. App. 340, 2003 Fulton County D. Rep. 1052, 2003 Ga. App. LEXIS 367
CourtCourt of Appeals of Georgia
DecidedMarch 18, 2003
DocketA02A1800
StatusPublished
Cited by21 cases

This text of 579 S.E.2d 772 (4WD Parts Center, Inc. v. Mackendrick) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
4WD Parts Center, Inc. v. Mackendrick, 579 S.E.2d 772, 260 Ga. App. 340, 2003 Fulton County D. Rep. 1052, 2003 Ga. App. LEXIS 367 (Ga. Ct. App. 2003).

Opinion

Phipps, Judge.

Bryan Mackendrick sued 4WD Parts Center, Inc. (4WD), a com-' pany that installed custom modifications on four-wheel-drive vehicles, and Kevin St. Amant, the company’s president, part-owner, and operator. Mackendrick alleged that the defendants had breached their contract to modify his truck and had converted his truck to their use. The defendants counterclaimed, alleging, among other things, that it was Mackendrick who had breached their contract. After a bench trial, the court entered judgment in favor of Mackendrick and against 4WD.1 4WD appeals, contesting the amount of [341]*341damages and the award of attorney fees. The evidence authorized the amount of damages and the imposition of attorney fees, but not the amount of attorney fees. Accordingly, we affirm in part, vacate the attorney fees award, and remand for a hearing on attorney fees.

Evidence at trial showed that in December 1997, Mackendrick met with St. Amant and requested various customizations to his 1972 Cheyenne Chevrolet four-wheel-drive truck. According to Mackendrick, because he considered the “original estimate” or “quote” of $22,000 excessive, he and St. Amant agreed that the installation of one-ton military axles, which totaled approximately $10,000, would not be done. Mackendrick testified, “[St. Amant] told me that if we wanted to do that, that we could make payments on it while he was doing the rest of the work to the vehicle and we had cured enough money to purchase those.” Thus, Mackendrick paid $12,000 to 4WD, and St. Amant advised Mackendrick that the work would be completed within three to four months. Mackendrick testified that when he left his “collector’s truck” at 4WD on January 5, 1998, it had no mechanical problems.

Beginning in March, Mackendrick repeatedly called 4WD to determine the truck’s status, but was told only that “they were working on it,” that the truck “looked, good,” and that “it would be a little while longer.” In August, Mackendrick went to 4WD and saw his truck sitting outside. It had been “stripped.” Some of his truck’s parts were for sale on the showroom floor. He could not discern that any of the requested customization had been done. He complained to St. Amant and demanded his truck. St. Amant told Mackendrick that he had “$18,000 worth of interest” in the truck. He refused to release it and called the police. Mackendrick left the premises, advising that he would resort to legal action. St. Amant responded, “Go ahead, you are wasting your money.” In April 2000, Mackendrick filed the complaint underlying this action. Over a year later, in July 2001, St. Amant contacted Mackendrick to offer a settlement.

But Mackendrick did not receive his truck from 4-WD until October 24, 2001. The body of the truck had rusted. Many of its original parts were missing. For many reasons, the motor was not usable. The brakes were inoperable. It had to be towed from the premises, and the towing wrecker almost lost the bed of the truck because it had been unbolted from the bed assembly. Mackendrick presented evidence that the only work that had been done to the truck was “some plates [had been] welded on the rear lead shackles,” but it did not appear that the work was related to the requested customization.

The defendants presented their account of the matter. St. Amant testified that the initial contract price was actually $22,000, and that the $12,000 Mackendrick paid was only a deposit. When 4WD received the truck in January 1998, 4WD brought the truck inside [342]*342and worked on it for two months.2 Mackendrick did not pay more money, despite being asked to do so. And the cost of ordered parts, received parts, labor performed, and other expenses exceeded the initial $12,000 paid. Therefore, by mid-March, 4WD stopped working on Mackendrick’s truck. In April 1998, the truck was moved outside, where it sat until it was towed away three years later. St. Amant claimed that the truck had not been released to Mackendrick in August 1998 because of the outstanding balance. He further claimed that many of the truck’s original parts had been removed to facilitate rebuilding the truck. And as to the whereabouts of the ordered parts necessary to customize the truck as requested, St. Amant stated that some were never shipped because no deposits had been forwarded to the suppliers; some had been installed on Mackendrick’s truck; and others were in the company’s storage areas or on the showroom floor on display.

In ruling in Mackendrick’s favor, the trial court awarded him $12,000 on the breach of contract claim, $14,000 for loss of the value of the vehicle, $4,320 prejudgment interest, and $6,000 in attorney fees. It further allowed Mackendrick to retain the truck and 4WD to retain any parts, whether ordered for or removed from the truck, that were then in its possession.

1. (a) 4WD contends that the award of damages in the amount of $14,000 for loss of value of the truck was not supported by the evidence because Mackendrick failed to establish a foundation for his opinion of the truck’s fair market value before and after it was in 4WD’s possession. Where, as here, a party sues for damages for conversion and the property has been returned before trial, the party may be awarded the amount of diminution in fair market value of the property during the time period between the alleged conversion and the property’s return.3 The trial court’s award to Mackendrick of $14,000 for his truck was based on its finding that the truck had been worth $15,000 when driven to 4WD and was worth $1,000 when towed away.

Mackendrick presented evidence of the fair market value of the truck through the testimony of himself and others. For lay opinion to be probative of fair market value, it “must be based upon a foundation that the witness has some knowledge, experience or familiarity [343]*343with the value of the property or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.”4

Mackendrick had experience in building “high horsepower motors” and had also “built a truck.” He had researched various older model trucks for restoration for three or four months before selecting the truck at issue in this case. After purchasing it, he “had done some additional stuff to it.” Based on what he encountered over several months of searching and his knowledge of motors, he stated that the fair market value of his truck was “roughly $15,000” when he drove it to 4WD and that it was worth less than $1,000 when it was towed away.

In addition, Mackendrick presented the testimony of Mark Franklin, who had 17 years experience in “general repair and performance work” on automobiles, including four-wheel-drive vehicles. Franklin estimated that before Mackendrick’s truck was taken to 4WD, it was worth $15,000 to $20,000, based on “everything that was done to it, lifted up, the wheels and tires, the shape and condition of the body and the engine.” After Mackendrick regained possession of it, Franklin testified, the truck was “not usable at all.” Mackendrick also presented the testimony of Joseph Beatty, who had purchased four trucks. Beatty estimated that before Mackendrick’s truck was taken to 4WD, it was worth $10,000 to $15,000.

Contrary to 4WD’s contention, we find that the court’s award was within the range of sufficient probative evidence as to the fair market value of the truck before and after it was in 4WD’s possession.

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579 S.E.2d 772, 260 Ga. App. 340, 2003 Fulton County D. Rep. 1052, 2003 Ga. App. LEXIS 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/4wd-parts-center-inc-v-mackendrick-gactapp-2003.