Opposition Brief — Dagi v. Chris Motors Corp.

No. 96-1696

In The

Supreme Court of the United States

aa

October Term, 1996

LINDA DAGI,

Petitioner,

VS.

CHRIS MOTORS CORPORATION, BAYERISCHE

MOTOREN WERKE, A.G. and BMW OF NORTH AMERICA,

INC.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF IN OPPOSITION FOR RESPONDENT

CHRIS MOTORS CORPORATION

CHARLES A. WILEY, JR.

Counsel of Record

BRIAN H. ALLIGOOD

FAIN, MAJOR & WILEY, P.C.

Attorneys for Respondent

Chris Motors Corporation

300 The Hurt Building

50 Hurt Plaza

Atlanta, Georgia 30303

(404) 688-6633

71205

utz

(800) 3 APPEAL « (8600) 5 APPEAL « (800) BRIEF 21 AP late

Services, inc.

TABLE OF CONTENTS

i os ne co owan wees

A. Course of Proceedings and Disposition Below

eevee ereeeeeeeeeeeeeeeereeeeeeeeeeeeeeeee

B. Correction of Misstatements in the Petition ...

Reasons for Denying the Writ ....................

I. The Federal Jurisdiction Issue Raised By Petitioner

Is Governed By Prior Precedent Of This Court,

Which Was Correctly Applied By The Court’s

ET PET TEE ToT OU EE CL CT Eee

II. All Remaining Reasons Enumerated In The

Petition Are Inappropriate For Review By This

GN ick avk ive ccs cunwes pases enenaes ces

COO oi Ko Cn akan te eenes Sexe keswsie heres

TABLE OF CITATIONS

Cases Cited:

Avco Corp. v. Machinists, 390 U.S. 557 (1968) .....

Barraclough v. ADP Automotive Claims Services, 818 F.

Dae. Tare (eee COL WFP ae as ea sntkes Vs ieee es

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ...

Fer ee eee Rie ee id SORES Neri en

Pik Bay tine WE ASR aaa ial Cao reas y

il

Contents

Cedillo v. Valcar Enterprises, 773 F. Supp. 932 (N.D.

Bee, GED oancckuds acanteeeadecinbea Gaseness

Chronologic Simulation, Inc. v. Sanguinetti, 892 F. Supp.

See Gee. BRE: TORE on ves kee hoe haneeeneeanens

Crawford v. Mokhtari, 842 F. Supp. 840 (D. Md. 1994),

ata. SO F368 TS Ce CO. BOG) oc ascnsivccss

Franchise Tax Board v. Laborers Vacation Trust, 463 U.S.

| CHORD? cs cku dase eauceeese oe

Gable v. Local Union #387 Int’l Ass'n, 695 F. Supp.

576 GED. Ga. TOD ks vn cocscccaduseensicess

Golke v. Lee Lumber & Building Materials Corp., 671 F.

supe. SOG CE Oh. SOs oo dcna sc wtcinnine sensu

Lister v. Starke, 890 F.2d 941 (7th Cir. 1989), cert.

denied, GE US... 1504. GSR s vik kanccanueosues

Louisville & Nashville Railroad v. Mottley, 211 U.S. 149

(COED s.ovk'chnseugs espe

Matthews v. Anderson, 826 F. Supp. 479 (M.D. Ga. 1993)

oeeerereeerereeevreeeeeeeeeeeeeereeeeee

Merrell Dowell Pharmaceutical, Inc. v. Thompson, 478

Ace. WS EEO .o scccnccdaeceaeeceeesuuensess

Moak v. Illinois Central Railroad Co., 807 F. Supp. 34

CED. £0. TORE) ov cinctccsuccsuaeneeeenaeces

Page

6, 7

Pac it Me a ATM shh Sn Ay

iii

Contents

Page

Murdock v. City of Memphis, 87 U.S. 590 (1875) .... 8

United States v. Johnston, 268 U.S. 220 (1925) ..... 8

Woolridge v. Redman Homes, Inc., 792 F. Supp. 1469

EG SO SPAS Skew as sd concen seveansoveves 6

Statutes Cited:

Ie PE bd cco n ate reerivsseconsseses 2

Be Dame ogg ee Sr Pare rrr ee ee 2,4

RE ls) ) ee rs rere ee ee er 6, 7

Rules Cited:

Supreme Court Rule 10 ........-. 2s eee ee ee eeees 8

Supreme Court Rule 15.1 .......... eee ee eee eens 3

APPENDIX

Appendix A — Third Amended Complaint for Damages

Dated July 18, 1994 ....... cc cece ee rereccceces la

]

STATEMENT OF THE CASE

Respondent respectfully opposes the petition for writ of

certiorari because the petition raises no unsettled question of

federal law. Indeed, as the petition itself reflects, the sole

substantive question of federal law identified pertains to federal

removal jurisdiction. This particular issue, contrary to

petitioner’s contention, has been firmly settled by prior Supreme

Court precedent, which was appropriately followed by the courts

below.

In an effort to embellish her federal jurisdiction argument,

petitioner misleads the Court by omitting and carefully avoiding

any reference to her third amended complaint, which is the

amended pleading that first triggered federal jurisdiction.

Because the petitioner’s statement is thus incomplete and

misleading, respondent below summarizes the full case history

and, thereafter, underscores the principal factual deceptions

employed by petitioner in seeking to deceive the Court into

reviewing a case that raises no meaningful federal question of

law.

A. Course of Proceedings and Disposition Below

Petitioner first filed this action in the State Court of Fulton

County, Georgia on March 19, 1993 as the result of a minor

automobile accident in which petitioner drove her BMW

automobile into the rear of another vehicle during rush hour

traffic. In the suit petitioner sought to recover property and

punitive damages from the manufacturer, distributor, and retailer

of a BMW automobile.

The complaint, as initially filed, asserted state law tort

claims exclusively. (App. to Petition 92a-100a). First, because

petitioner was admittedly uninjured in her accident, she sought

2

to recover for property damage sustained by her BMW

automobile under Georgia state law theories of negligence and

product liability. (/d. at 95a-97a). She additionally sought

damages under a state common law fraud theory, which was

predicated upon her belief that the vehicle’s mileage was

misrepresented prior to her purchase of the car. (/d. at 97a-100a).

All theories of recovery set forth in the initial complaint are

cast beneath conspicuous and plainly worded state law headings,

and the entire complaint avoids any reference to federal law.

(Jd. at 92a-100a).

Petitioner subsequently filed a series of amended

complaints, which culminated in the filing of a third amended

complaint for damages on July 18, 1994. (A copy of the Third

Amended Complaint for Damages is attached hereto as

Appendix A). In this amended complaint, petitioner, for the first

time in the litigation, asserted a cause of action under the federal

Motor Vehicle Cost Savings and Information Act, 49 U.S.C.

§ 32710 et seg. (Jd. at 13a).

By virtue of this newly-added federal cause of action, a

basis for federal jurisdiction was first created. In response, the

respondents, pursuant to 28 U.S.C. § 1446(b), removed the action

to United States District Court on August 12, 1994, within thirty

days of service of the third amended complaint. (App. to Petition

103a). In a motion to remand, petitioner contended that the

removal was untimely because the original complaint set forth

general allegations from which a federal cause of action could

have been based. (R3-5). However, because no federal cause of

action was in fact pursued by petitioner until the filing of her

third amended complaint, the district court denied the motion

on October 24, 1994. (App. to Petition 25a).

Following the close of formal discovery, the respondents

separately moved for summary judgment on a variety of legal

RE AEI TED Mts ban DE oo. 5 Poe A inset

3

grounds. The district court granted the motions in two thorough

and comprehensive orders dated July 31, 1995 and November

30, 1995. (Copies of both orders included in petitioner's

appendix at 26a and 91a). Both rulings were affirmed by the

Eleventh Circuit Court of Appeals. (App. to Petition 13a).

Petitioner now seeks United States Supreme Court review

of her automobile property damage and fraud action.

B. Correction of Misstatements in the Petition

The underlying facts of the case are set forth in detail in the

district court order on respondent Chris Motors Corporation’s

motion for summary judgment, a copy of which is contained in

the appendix to the petition at 26a. In the interest of brevity,

respondent adopts and incorporates this fact statement fully

herein.

In addition, pursuant to United States Supreme Court Rule

15.1, respondent emphasizes to the Court a central

misrepresentation that runs throughout the petition for writ of

certiorari. Specifically, in her brief petitioner deliberately omits

any reference to her third amended complaint, which, as

explained above, first set forth the basis for federal jurisdiction.

In her statement of the case, petitioner merely explains that the

action was removed by the respondents sixteen months into the

litigation and, by avoiding reference to the third amended

complaint, suggests that there was no precipitating basis for the

removal at that time. (Petition at 10).

As remarked above, and as will be further discussed below,

the action was not removable until the federal cause of action

was first asserted in the third amended complaint. Respondent

takes strong exception to petitioner’s attempt to deceive the Court

on this issue by failing to acknowledge the effect, or even the

4

existence, of her third amended complaint. Respondent

respectfully submits that this clarification will enable the Court

to make properly short work of the jurisdiction issue.

REASONS FOR DENYING THE WRIT

Of the five issues raised in the petition, only the first, which

challenges the existence of federal jurisdiction, raises a genuine,

though certainly not new, issue of federal iaw. Accordingly,

respondent devotes the bulk of this response to demonstrating

that this issue has been firmly settled by earlier precedents of

this Court. Thereafter, respondent addresses briefly the

remaining issues raised.

I.

THE FEDERAL JURISDICTION ISSUE RAISED BY

PETITIONER IS GOVERNED BY PRIOR PRECEDENT

OF THIS COURT, WHICH WAS CORRECTLY APPLIED

BY THE COURTS BELOW.

Petitioner’s lead argument that certiorari should be granted

in order to reverse the denial of petitioner’s motion to remand is

without merit because the position advocated has been flatly

rejected by prior precedent of this Court. Petitioner’s position

that removal was untimely is premised on her contention that

federal question jurisdiction existed at the time the initial

complaint was filed because the allegations of the fraud count

could also have supported an alternative claim under the Motor

Vehicle Cost Savings and Information Act. 49 U.S.C. § 32710

et seq. The Supreme Court’s prior precedents discussed below

make plain that this position is devoid of merit.

In uniform jurisprudence spanning nearly a full century,

this Court has mandated that federal question jurisdiction exists

ee Se ee See

5

only when a federal question is presented on the face of the

plaintiff’s properly pleaded complaint. Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987). See also Louisville &

Nashville Railroad v. Mottley, 211 U.S. 149 (1908). Known as

the well-pleaded complaint rule, the doctrine makes a plaintiff

the master of the complaint, Lister v. Starke, 890 F.2d 941, 943

(7th Cir. 1989), cert. denied, 498 U.S. 1011 (1990), and

empowers plaintiffs to “avoid jurisdiction by exclusive reliance

on state law.” Caterpillar, 482 U.S. at 392. From these and other

Supreme Court precedents it has become settled law that

“{j]urisdiction may not be sustained on a theory that the Plaintiff

has not advanced.” Merrell Dowell Pharmaceutical, Inc. v.

Thompson, 478 U.S. 804, 809, n. 6 (1986).

There are only two exceptions to the well-pleaded complaint

rule, neither of which arise in this case. First, where the plaintiff

relies upon state law that is completely preempted by federal

law, federal jurisdiction nonetheless exists. See, e.g., Avco Corp.

v. Machinists, 390 U.S. 557 (1968). Second, a piaintiff may not

avoid federal jurisdiction by deliberately omitting to plead a

necessary federal question in the complaint. Franchise Tax Board

v. Laborers Vacation Trust, 463 U.S. 1 (1983).

Under the foregoing authority, federal question jurisdiction

did not exist under the initial complaint, and the case was not

removable until the federal claim first appeared in the third

amended complaint. As the initial complaint reflects, petitioner

carefully avoided any reference to federal law. (App. to Petition

92a-100a). Indeed, the initial complaint specifically enumerated

with conspicuous headings the particular state law theories under

which recovery was sought. (/d.) Consequently, under the well-

pleaded complaint rule, the respondents were initially powerless

to remove the case to federal court. Furthermore, neither

exception to the well-pleaded complaint rule applied. The

pertinent federal act itself provides that it shall not preempt state

6

law, 49 U.S.C. § 32711, and the federal law is not an essential

ingredient to any of the initially pleaded state law claims. For

all of these reasons, the initial complaint was not removable,

and the district court properly denied the motion to remand.

Despite the extensive Supreme Court authority set forth

above, petitioner continues to insist that the respondents should

have removed the case upon the filing of the initial complaint

because it was apparent from her fraud allegations that a federal!

action could have been asserted as well. As demonstrated above,

the lack of merit to this position has previously been established

by this Court, and numerous district court opinions following

the rule only further confirm the level of judicial certainty on

this issue. See, e.g., Matthews v. Anderson, 826 F. Supp. 479

(M.D. Ga. 1993); Barraclough v. ADP Automotive Claims

Services, 818 F. Supp. 1310 (N.D. Cal. 1993); Woolridge v

Redman Homes, Inc., 792 F. Supp. 1469 (N.D. Tex. 1991). See

also Chronologic Simulation, Inc. v. Sanguinetti, 892 F. Supp.

318 (D. Mass. 1995); Crawford v. Mokhtari, 842 F. Supp. 840

(D. Md. 1994), aff’d, 30 F.3d 129 (4th Cir. 1994); Moak v. Illinois

Central Railroad Co., 807 F. Supp. 34 (M.D. La. 1992); Cedillo

v. Valcar Enterprises, 773 F. Supp. 932 (N.D. Tex. 1991).

As was the case in each of the above cases, the mere fact

that petitioner could have pursued a federal claim at the time of

her initial complaint does not suggest that the defendants could

then have removed the action. To the contrary, since petitioner

presented only state claims in the initial complaint, the case

was not removable until the federal claim was added.

In contrast to the applicable authority set forth above,

petitioner cites the Court to distinguishable and dated district

court cases having no relevance to the issue raised. For instance,

petitioner cites Gable v. Local Union #387 Int’l Ass’n, 695 F.

Supp. 1174 (N.D. Ga. 1988) and Golke v. Lee Lumber & Building

elie Akt tik 56 RAM dt % aired

7

Materials Corp., 671 F. Supp. 568 (N.D. Ill. 1987). These cases

concern state law claims preempted by the Labor Management

Relations Act. As such, both fall within the preemption exception

to the well-pleaded complaint rule. As remarked above, the

instant case does not involve federal preemption, and the

pertinent federal legislation expressly so holds. 49 U.S.C.

§ 32711. Consequently, neither case alters the relevant analysis.

Similar substantive distinctions apply to the more dated district

court opinions cited by petitioner.

In short, under the extensive federal authority set forth

above, the motion to remand was properly denied. The clarity

of the controlling rule and the consistency of its case law make

further review of this argument unnecessary. Respondent

respectfully submits that this Court need not devote its valuable

resources toward revisiting this previously settled rule of law.

Il.

ALL REMAINING REASONS ENUMERATED IN THE

PETITION ARE INAPPROPRIATE FOR REVIEW BY

THIS COURT.

The remaining four grounds articulated by petitioner as

purported support for a writ of certiorari are simply unworthy

of serious consideration by this Court. In the remaining grounds

petitioner asks the Court to review record evidence and to review

the Eleventh Circuit Court of Appeals’s denial of oral argument

in reviewing the initial appeal. Respondent respectfully submits

that these issues are simply inappropriate for Supreme Court

review for several reasons.

First, with respect to petitioner’s suggestion that this Court

review the evidentiary record to determine if summary judgments

were proper granted, the Court has long recognized its refusal

8

to review evidence or to discuss specific facts. United States v.

Johnston, 268 U.S. 220, 227 (1925). Certainly the instant case,

which features a claim for property damage resulting from a

rear-end automobile collision caused by the petitioner herself,

does not merit departure from this general principle.

Furthermore, the summary judgment rulings below almost

exclusively address Georgia substantive law issues. This Court

traditionally eschews review of state law rulings and limits its

jurisdiction “to the correction of errors relating solely to federal

law.” Murdock v. City of Memphis, 87 U.S. 590 (1875). A review

of the petitioner’s negligence, fraud, and product liability claims

would, again, deviate from sound Supreme Court principles and

time-honored precedent.

As for the petitioner’s suggestion that the Court should grant

certiorari for the purpose of reviewing the denial of oral

argument in the court below, respondent again submits that this

Court’s resources are worthy of more weighty substantive

matters.

Finally, respondent respectfully submits that the additional

issues identified in the petition are of insufficient importance to

merit review by this Court. The Supreme Court’s Rules

specifically state: “Review on a writ of certiorari is not a matter

of right, but of judicial discretion. A petition for a writ of

certiorari will be granted only for compelling reasons.” Supreme

Court Rule 10. Though petitioner seemingly feels entitled to a

further review of factual state law issues, such is plainly not the

case. The present case — which arises from a minor traffic

accident, which involves no constitutional issue, and which, at

best, raises questions regarding the sufficiency of evidence to

support a claim — neither commands nor merits Supreme Court

review.

etn Ow

9

CONCLUSION

For the reasons set forth above, the petition for writ of

certiorari should be denied.

Respectfully submitted,

CHARLES A. WILEY, JR.

Counsel of Record

BRIAN H. ALLIGOOD

FAIN, MAJOR & WILEY, P.C.

Attorneys for Respondent

Chris Motors Corporation

300 The Hurt Building

50 Hurt Plaza

Atlanta, Georgia 30303

(404) 688-6633

la

APPENDIX A — THIRD AMENDED COMPLAINT FOR

DAMAGES DATED JULY 18, 1994

IN THE STATE COURT OF FULTON COUNTY

STATE OF GEORGIA

CIVIL ACTION

FILE NO. 93-VS-0070409-F

JURY TRIAL DEMANDED

LINDA DAGI,

Plaintiff,

vs.

BAYERISCHE MOTOREN WERKE, A.G., BMW OF NORTH

AMERICA, INC. and CHRIS MOTORS CORPORATION,

Defendants.

THIRD AMENDED COMPLAINT FOR DAMAGES

COMES NOW Linda Dagi Plaintiff in the above-styled

action and prior to the entry of the Pre-Trial Order in this case

and pursuant to the provisions of O.C.G.A. § 9-11-15, hereby

files and serves this her Amended Complaint for Damages by

showing the Court as follows:

2a

Appendix A

PARTIES

l.

Plaintiff Linda Dagi (hereinafter referred to as “Dagi”’) is

and at all times material to this action, was a resident of the

State of Georgia.

y I

Defendant Bayerische Motoren Werke, A.G. (hereinafter

referred to as “BMW”) is a foreign corporation engaged in the

business of manufacturing motor vehicles.

3.

At all times relevant hereto, Defendant BMW transacted

business in the State of Georgia.

4.

Defendant BMW may be served through the Hague

Convention at its corporate headquarters in Munich, Germany.

5.

Defendant BMW is subject to both the jurisdiction and

venue of this Court.

6.

Defendant BMW of North America, Inc. (hereinafter

referred to as “BMW of North America”) is a foreign corporation

engaged in the business of distributing BMW motor vehicles.

3a

Appendix A

A

At all times relevant hereto, Defendant BMW of North

America transacted business in the State of Georgia.

8.

Defendant BMW of North America may be served through

its registered agent, to-wit: CT Corporation System, 1201

Peachtree Street, N.E., Atlanta, Fulton County, Georgia 30361.

2,

Defendant BMW of North America is subject to both the

jurisdiction and venue of this Court.

10.

Defendant Chris Motors Corporation (hereinafter referred

to as “Chris Motors”) is a Georgia Corporation engaged in the

business of the retail sale of BMW and other motor vehicle

products.

11.

At all times material hereto Defendant Chris Motors

transacted business in the State of Georgia.

12.

Defendant Chris Motors may be served through its

registered agent, to-wit: Neal Chrisman, 1606 Church Street,

Decatur, DeKalb County, Georgia 30030.

4a

Appendix A

13.

Defendant Chris Motors is subject to both the jurisdiction

and venue of this Court.

FACTUAL ALLEGATIONS

14.

On or about May 13, 1992, at approximately 9:05 a.m.,

Plaintiff was operating a 1991 BMW 535i model automobile in

a southerly direction on Briarcliff Road, at or near its interseciion

with Sheffield Drive, in the City of Atlanta, DeKalb County,

Georgia.

15.

At said time and place, James Scott (hereinafter referred to

as “Scott”) was operating a 1984 Dodge Ram 350 vehicle, also

in a southerly direction on Briarcliff Road, in the City of Atlanta,

DeKalb County, Georgia.

16.

At said time and place, Plaintiff Dagi was traveling at a

safe and reasonable distance behind Scott’s vehicle.

17.

At said time and piace, Scott was stopped at the intersection

of Briarcliff and Sheffield Drive, attempting to make a left hand

turn onto Sheffield Drive, when Plaintiff attempted to safely

brake her BMW automobile with sufficient distance between

Sa

Appendix A

her vehicle and Scott's vehicle to allow her to stop, under the

speed and conditions existing at the time, but her vehicle would

not decelerate or stop because of defects in the mechanical

system in said vehicle, causing her vehicle to violently collide

into the rear of Scott’s vehicle.

18.

As a direct and proximate result of said collision, caused

by the mechanical defects in Plaintiff’s BMW automobile,

Plaintiff’s BMW sustained extensive damage.

19.

On or about April 2, 1992, Plaintiff purchased said 199]

BMW automobile from Defendant Chris Motors.

20.

Defendant Chris Motors represented, attested and certified

to Plaintiff via an Odometer Disclosure Statement that there were

only 5,391 miles driven on the subject BMW 535i automobile

at the time she purchased said vehicle.

21.

The Odometer Disclosure Statement certifying that there

were only 5,391 miles on said BMW 535i automobile was signed

and executed by E. W. Sweeney, III, the Sales Manager for

Defendant Chris Motors.

6a

Appendix A

aa

The VIN number for the subject BMW 535i automobile is

WBAHD1315MBF11537.

23.

The purchase price for the subject BMW 535i automobile

was approximately $38,022.14.

24.

From the time that Plaintiff purchased the subject BMW

535i automobile until the time of the subject May 13, 1992

incident, Plaintiff did not in any way change, alter or modify

the subject BMW automobile.

COUNT I

STRICT LIABILITY

(BMW)

20.

The allegations in Paragraphs ! through 24 of Plaintiff’s

Third Amended Complaint are hereby incorporated by reference

and made a part hereof as if each such allegation was fully set

forth herein.

26.

The subject BMW 535 automobile purchased by Plaintiff

Linda Dagi from Defendant Chris Motors was originally

designed and manufactured by Defendant BMW in a defective

7a

Appendix A

condition unreasonably dangerous to the users and consumers

of same which included Plaintiff Linda Dagi.

27.

The subject BMW 535i automobile was defective at the time

it was placed into the stream of commerce by Defendant BMW

and sold to the Plaintiff and said BMW automobile was not

changed, altered or modified in any way by Plaintiff at the time

of the subject May 13, 1992 incident.

28.

The subject BMW 535i automobile was defective at the time

of the subject May 13, 1992 incident.

29.

As a direct and proximate result of the defective condition

of the subject BMW 535i automobile, Plaintiff was involved in

said collision causing her vehicle to sustain extensive damage.

30.

The subject BMW 535i model automobile was also

defective in that the odometer of said vehicle could be

disengaged by merely pulling the fuse which controls the

odometer and instrument cluster.

oa.

The defective design of the odometer and fuse circuitry of

the subject BMW 535i model automobile precludes purchasers

8a

Appendix A

of said model vehicles (such as Plaintiff Linda Dagi) from

accurately knowing and relying upon the automobile’s odometer

mileage reading.

32.

By reason of the foregoing, Plaintiff Dagi is entitled to

recover from Defendant BMW damages in such an amount as

may be shown by the evidence and determined by the jury in

their enlightened conscience.

COUNT Il

STRICT LIABILITY

(BMW OF NORTH AMERICA)

a.

The allegations in Paragraphs | through 32 of Plaintiff’s

Third Amended Complaint are hereby incorporated by reference

as made a part hereof as of each such allegation was fully set

forth herein.

34.

The subject BMW 535i automobile purchased by Plaintiff

from Defendant Chris Motors was originally designed and

manufactured by Defendant BMW in a defective condition to

the users and consumers of same, which included Plaintiff Dagi.

35.

The subject BMW 535i automobile was defective at the time

it was placed into the stream of commerce by Defendant BMW

9a

Appendix A

and sold to the Plaintiff and said BMW automobile was not

changed, altered or modified in any way by Plaintiff at the time

of the subject May 13, 1992 incident.

36.

The subject BMW 535i automobile was defective at the time

of the subject May 13, 1992 incident.

37.

Defendant BMW of North America failed to disclose or

otherwise warn Plaintiff Linda A. Dagi of the defects in the

subject BMW 535i automobile.

38.

As a direct and proximate result of the defective condition

of the subject BMW 535i automobile, Plaintiff was involved in

said collision causing her vehicle to sustain extensive damage.

ae.

By reason of the foregoing, Plaintiff Dagi is entitled to

recover from Defendant BMW damages in such an amount as

may be shown by the evidence and determined by the jury in

their enlightened conscience.

10a

Appendix A

COUNT Ill

NEGLIGENCE

(CHRIS MOTORS)

40.

The allegations in Paragraphs 1 — 39 of Plaintiff’s Third

Amended Complaint are hereby incornorated by reference and

made a part hereof, as if each such allegation was fully set forth

herein.

41.

Defendant Chris Motors sells BMW products, and

specifically, 535i model automobiles throughout the State of

Georgia and holds out to the public that said automobiles it sells

are safe, are of merchantable quality and are fit for the use and

purposes intended.

42.

Defendant Chris Motors’ negligence, which constituted the

direct and proximate cause of the subject incident described

hereinabove, resulting in the damages claimed by Plaintiff,

consisted of, among other things:

a) Failing to exercise reasonable care in the inspection and

testing of said BMW 535i automobile for mechanical defects;

b) Distributing and selling said BMW 535i vehicle to the

public, knowing or should have knowing that said automobile

was not reasonably and adequately safe for usage by the public

on the roads and highways;

lla

Appendix A

c) Failing to warn purchasers of said automobile, and

specifically, Plaintiff Dagi of the automobile’s dangerous

condition and failing to warn Plaintiff Dagi that said automobile

was not reasonably and adequately safe for usage by the public

on the roads and highways; and

d) Failing to exercise reasonable care in the maintenance

of said BMW 535i automobile.

43.

As a direct and proximate result of Defendant Chris Motors’

negligence, Plaintiff was involved in said collision causing her

vehicle to sustain extensive damage.

44.

By reason of the foregoing, Plaintiff Dagi is entitled to

recover from Defendant Chris Motors damages in such an

amount as may be shown by the evidence and determined by

the jury in their enlightened conscience.

COUNT IV

FRAUD

(CHRIS MOTORS)

45.

The allegations in Paragraphs 1 — 44 of Plaintiff’s Third

Amended Complaint are hereby incorporated by reference and

made a part hereof, as if each such allegation was fu!ly set forth

herein.

12a

Appendix A

46.

Defendant Chris Motors represented and certified to

Plaintiff Dagi that the subject BMW 535i automobile had been

driven only 5,391 miles via an Odometer Disclosure Statement.

47.

At the time in which Defendant Chris Motors represented

and certified to Plaintiff Dagi that the subject BMW 535i

automobile had only 5,391 miles through said Odometer

Disclosure Statement, Defendant Chris Motors knew that such

representation to Plaintiff Dagi as to the mileage of said vehicle

was false.

48.

Defendant Chris Motors made such representation regarding

the mileage of said BMW 535i vehicle with the intention and

purpose of deceiving Plaintiff Dagi.

49.

Plaintiff Dagi reasonably relied upon Defendant Chris

Motors’ representation and certification as to the mileage of the

subject BMW 535i automobile.

50.

As a result of Defendant Chris Motors fraudulent

representation with respect to the mileage of the subject BMW

535i automobile, Plaintiff Dagi sustained damages.

13a

Appendix A

oP

By reason of the foregoing, Plaintiff Dagi is entitled to

recover from Defendant Chris Motors punitive damages in such

an amount as may be shown by the evidence and determined by

the jury in their enlightened conscience.

COUNT V

VIOLATION OF THE FEDERAL ODOMETER

FRAUD ACT, 15 USC § 1981 — § 1988

(CHRIS MOTORS)

52.

The allegations in Paragraphs 1 - 51 of Plaintiff’s Third

Amended Complaint are hereby incorporated by reference and

made a part hereof, as if each such allegation was fully set forth

herein.

nS

Defendant Chris Motors tampered, disconnected, reset or

altered or caused to be tampered, disconnected, reset or altered

the odometer of the subject 1991 BMW 535i vehicle purchased

by Plaintiff Linda Dagi.

54.

Defendant Chris Motors’ actions and conduct as alleged

hereinabove were in violation of the provisions of the Federal

Odometer Fraud Act, 15 USCA § 1981 to 1988.

l4a

Appendix A

55.

As aresuit of Defendant Chris Motors’ actions and conduct

in violating the provisions of the Federal Odometer Fraud Act,

Plaintiff Linda Dagi sustained damages.

56.

By reason of the foregoing, Plaintiff Linda Dagi is entitled

to recover from Defendant Chris Motors treble damages,

attorney’s fees and costs, in such an amount as may be shown

by the evidence and determined by the jury in their enlightened

conscience.

WHEREFORE, Plaintiff Linda Dagi prays and respectfully

demands verdict and judgment as follows:

a) That summons and process issue and that each Defendant

be served with a copy of this Complaint as required by law and

that each Defendant be required to appear and answer;

b) That Plaintiff be awarded damages from the Defendants,

jointly and severally, for the destruction of Plaintiff’s BMW 535i

automobile, in such an amount as may be shown by the evidence

and determined in the enlightened conscience of the jury;

c) That Plaintiff be awarded treble damages, attorney’s fees

and costs against Defendant Chris Motors, for their violation of

the Federal Odometer Fraud Act, in such an amount as may be

shown by ‘the evidence and as may be determined in the

enlightenea conscience of the jury;

d) That Plaintiff be awarded punitive damages against

ne ee ae TS re ee

15a

Appendix A

Defendant Chris Motors, in such an amount as may be shown

by the evidence and as may be determined in the enlightened

conscience of the jury in order to deter said Defendant from

engaging in similar misconduct in the future:

e) That Defendants be charged with all court costs

attributable to this action and such other costs reasonably

incurred in the prosecution and trial of this case;

f) That Plaintiff be granted a trial by jury; and

g) That Plaintiff be granted such other and further relief as

may be shown by the evidence and authorized by law.

SMOLAR, ROSEMAN, BRANTLEY

& SEIFTER

s/ Yehuda Smolar

YEHUDA SMOLAR

Ga. State Bar No. 665150

s/ James I. Seifter

JAMES I. SEIFTER

Ga. State Bar No. 636584

Attorneys for Plaintiff

Linda Dagi

101 Marietta Tower

Suite 3410

Atlanta, Georgia 30303

(404) 525-3900

16a

Appendix A

CERTIFICATE OF SERVICE

I hereby certify that I have this day served opposing counsel

with a copy of the within and foregoing THIRD AMENDED

COMPLAINT FOR DAMAGES by depositing a copy of same

in the United States Mail with sufficient postage thereon to insure

delivery, addressed as follows:

Ben L. Weinberg, Jr., Esquire

Charles K. Reed, Esquire

LONG, WEINBERG, ANSLEY

& WHEELER

999 Peachtree Street, N.E.

Suite 2700

Atlanta, Georgia 30309

Charles A. Wiley, Jr., Esquire

Brian H. Alligood, Esquire

FAIN, MAJOR & WILEY, P.C.

Suite 300 Hurt Building

Atlanta, Georgia 30303

This 18th day of July, 1994.

s/ James I. Seifter

JAMES I. SEIFTER

Attorney for Plaintiff

Linda Dagi