Love v. Hammersley Motors Inc.

Present: 	All the Justices
BONITA M. LOVE
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. 	Record No. 010351 	January 11, 2002
KENNETH HAMMERSLEY MOTORS INCORPORATED
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
J. Michael Gamble, Judge
In this appeal, we consider whether a purchaser of a car,
who revoked her acceptance of the car and sought monetary
damages as permitted by Code § 8.2-608, properly filed her
claim as an action at law.
Bonita M. Love filed her motion for judgment against
Kenneth Hammersley Motors, Inc. (Hammersley Motors). 	She
alleged that she purchased a 1994 Lexus ES300 car from
Hammersley Motors, which was unable to cure certain defects in
the car. 	She sought damages and attorney's fees.
Hammersley Motors filed responsive pleadings and a motion
requesting that the circuit court require that the plaintiff
elect between her claim for "all monies paid for the vehicle,
in effect, a [rescission] of contract, and . . . for an award
of damages proximately incurred by plaintiff as a result of
defendant's breach of [contract]." 	The court required the
plaintiff to make an election, and she chose to pursue her
claim for monetary damages. 	At the conclusion of a trial, the

jury returned a verdict in favor of the plaintiff and awarded
her monetary damages in the amount of $21,174.89.
Hammersley Motors filed a post-verdict motion and
requested, among other things, that the circuit court set the
jury verdict aside because the plaintiff's claim was in the
nature of "rescission" and, therefore, should have been
prosecuted in equity as opposed to at law. 	The circuit court
granted Hammersley Motors' motion and ordered a new trial in
equity. 	At the conclusion of the proceeding in equity, the
chancellor entered a decree in favor of the plaintiff and
awarded her damages in the amount of $8,780.61. 	The
chancellor also awarded her a portion of her requested
attorney's fees and entered a final decree. 	The plaintiff
appeals.
Hammersley Motors does not challenge on appeal the
following facts that were considered by the jury in the law
proceeding. 	The plaintiff purchased a 1994 Lexus car from
Hammersley Motors on August 17, 1998. 	The purchase price of
the car was $19,508.90. 	When the plaintiff purchased the car,
she received a three-month or 3,000-mile power train warranty
at no additional cost, and she purchased an extended service
contract. 	Pursuant to the terms of the extended service
contract, Hammersley Motors agreed to "make repairs or
replacement as a result of failure . . . to any part" of the
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car covered by the warranty, including the engine and all
internally lubricated engine parts.
The day after the plaintiff purchased the car, it began
to malfunction. 	The car emitted large quantities of "white
smoke" from the exhaust pipe. 	The car consumed "a quart to
two quarts of oil every week." 	The plaintiff returned the car
to Hammersley Motors at least five or six times for repair of
the defects, but Hammersley Motors was unable to correct them.
Even though Hammersley Motors eventually installed a new
engine in the car, the car continued to malfunction. 	The car
continued to emit white smoke and would not accelerate
properly. 	Ultimately, the plaintiff returned the car and keys
to Dirk W. Beasley, Hammersley Motors' general manager, and
requested that she receive a refund of the purchase price.
Beasley refused to refund the purchase price to her.
The plaintiff argues that she was entitled to file her
motion for judgment on the law side of the circuit court
because she only sought a recovery of monetary damages.
Responding, Hammersley Motors contends that the plaintiff
sought the equitable remedy of rescission and, therefore, she
was required to file her claim in chancery. 	Hammersley Motors
relies upon our decision in Gasque v. Mooers Motor Car Co.,
227 Va. 154, 313 S.E.2d 384 (1984), in support of its
position. 	We disagree with Hammersley Motors.
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As the litigants correctly recognize, Virginia has
maintained a longstanding distinction between law and
chancery. 	And, "[t]he marked distinction between law and
chancery, a product of the English legal system, continues to
exist in the Commonwealth." 	Wright v. Castles, 232 Va. 218,
222, 349 S.E.2d 125, 128 (1986). 	When a party seeks solely
monetary damages "caused by another's tortious conduct, he
must bring his action on the law side of the court, and either
party has a right to a jury trial." 	Id.; see Stanardsville
Vol. Fire Co. v. Berry, 229 Va. 578, 583, 331 S.E.2d 466, 469-
70 (1985); O'Brien v. Snow, 215 Va. 403, 405, 210 S.E.2d 165,
167 (1974).
The plaintiff based her cause of action on Code § 8.2-
608, a part of Virginia's Uniform Commercial Code, which
permitted her to revoke her acceptance of the car at issue in
this appeal. 	This statute states:
"(1) The buyer may revoke his acceptance of a
lot or commercial unit whose non-conformity
substantially impairs its value to him if he has
accepted it
"(a) on the reasonable assumption that its
nonconformity would be cured and it has not been
seasonably cured; or
"(b) without discovery of such nonconformity if
his acceptance was reasonably induced either by the
difficulty of discovery before acceptance or by the
seller's assurances.
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"(2) Revocation of acceptance must occur within
a reasonable time after the buyer discovers or
should have discovered the ground for it and before
any substantial change in condition of the goods
which is not caused by their own defects. 	It is not
effective until the buyer notifies the seller of it.
"(3) A buyer who so revokes has the same rights
and duties with regard to the goods involved as if
he had rejected them."
Code § 8.2-711, which is also a part of Virginia's
Uniform Commercial Code, enumerates a buyer's remedies upon
revocation of acceptance:
"(1) Where the seller fails to make delivery or
repudiates or the buyer rightfully rejects or
justifiably revokes acceptance then with respect to
any goods involved, and with respect to the whole if
the breach goes to the whole contract (§ 8.2-612),
the buyer may cancel and whether or not he has done
so may in addition to recovering so much of the
price as has been paid
"(a) 'cover' and have damages under the next
section [§ 8.2-712] as to all the goods affected whether
or not they have been identified to the contract; or
"(b) recover damages for nondelivery as
provided in this title (§ 8.2-713).
"(2) Where the seller fails to deliver or
repudiates the buyer may also
"(a) if the goods have been identified recover
them as provided in this title (§ 8.2-502); or
"(b) in a proper case obtain specific
performance or replevy the goods as provided in this
title (§ 8.2-716).
"(3) On rightful rejection or justifiable
revocation of acceptance a buyer has a security
interest in goods in his possession or control for
any payments made on their price and any expenses
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reasonably incurred in their inspection, receipt,
transportation, care and custody and may hold such
goods and resell them in like manner as an aggrieved
seller (§ 8.2-706)."
The plaintiff, relying upon these provisions, filed her
motion for judgment, and she sought damages at law and
attorney's fees pursuant to the Magnuson-Moss Warranty Act, 15
U.S.C. § 2301, et seq. 	She sought no equitable remedies.
Code §§ 8.2-608 and -711 permit a buyer, such as the
plaintiff, to recover monetary damages upon revocation of
acceptance, which may include the purchase price. 	Therefore,
we hold that the plaintiff properly filed her motion for
judgment on the law side of the court, and the circuit court
erred when it set aside the jury verdict that awarded damages
to her.
Contrary to Hammersley Motors' contention, our decision
in Gasque does not compel a different conclusion. 	In Gasque,
the buyers of an automobile filed a suit in equity against a
retail car dealership and the manufacturer of the car. 	The
buyers alleged that they purchased a new car from the
dealership and that after delivery, they discovered numerous
defects in the car. 	The dealer made several attempts to
correct the defects without success, and the buyers demanded
rescission of the sale and the return of the purchase price or
replacement of the car. 	In their bill of complaint, the
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buyers sought cancellation of the sale and return of the
purchase price or, alternatively, replacement of the car with
a new one of similar model. 	227 Va. at 157, 313 S.E.2d at
387.
In Gasque, the circuit court heard evidence ore tenus and
ruled that the buyers failed to establish certain elements
required by Code § 8.2-608. 	The court concluded that the
buyers failed to prove that the car suffered substantial
impairment of value by reason of the defects and that the
buyers failed to revoke their acceptance within a reasonable
time. 	Id. 	The circuit court did not consider, and was not
requested to consider, whether the proceeding was filed
properly in chancery.
On appeal, we held that the buyers did not effectively
revoke their acceptance of the car because they drove the car
2,600 miles after they gave their purported notice of
revocation of acceptance. 	Id. at 161-62, 313 S.E.2d at 389-
90. 	We pointed out in Gasque that "[a]lthough the U.C.C.
'Official Comment' appended to [Code § 8.2-608] makes clear
that the buyer is no longer required to elect between
rescission and damages for breach, the buyers in this case did
so by their pleading. 	The prayer of the bill is purely for a
restoration of the parties to the status quo ante, including
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such incidental damages as would accomplish that purpose."
Id. at 159, 313 S.E.2d at 388.
In the present case, there is no dispute that the
plaintiff satisfied each of the elements necessary to
establish that she properly revoked her acceptance as required
by Code § 8.2-608. 	And, unlike the buyers in Gasque, the
plaintiff filed her motion for judgment for monetary damages
on the law side of the court, and she contested the circuit
court's post-trial ruling that her case should have been tried
in chancery.
Accordingly, we will reinstate the jury verdict that
awarded the plaintiff compensatory damages in the amount of
$21,174.89. 	Hammersley Motors does not dispute that the
plaintiff is entitled to attorney's fees pursuant to the
Magnuson-Moss Warranty Act. 	Therefore, we will remand this
case to the circuit court so that it can enter an award of
attorney's fees for the plaintiff. 	The attorney's fees award
should include the attorney's fees that the plaintiff incurred
during the initial jury trial, the proceeding in equity, and
on appeal.
Reversed and remanded.
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