Tuesday, November 06, 2007, 1:00 PM

Lemon Case A Vehicle For Practice Reminders

In Greene v. Royster, the COA today reminded counsel of some practice pitfalls.

In Greene, plaintiff purchased from defendants, doing business as East Coast Imports, a car she was told was a 1993 Saturn with 77 K miles. Instead, plaintiff got a 1992 Saturn with 227 K miles that had been denominated a salvage-only vehicle not fit for the road. Plaintiff sued for fraud and unfair and deceptive trade practices and got a judgment and damages, including punitives, in her favor. The defendants appealed.

In the context of the defendants' appeal, the COA noted some practice pitfalls. First, the COA highlighted the defendants' reliance on language from a dissent in a case later affirmed by the Supreme Court. Second, the COA refused to review whether the punitives were unconstitutional because the constitutionality issue had not been raised before the trial court. Third, the COA highlighted the importance of knowing your standard of review. The COA stated that while 59(a)(8), seeking a new trial due to errors of law, may garner de novo review, 59(a)(5), (6), and (7), those invoked by the defendants here, are reviewed only for abuse of discretion. Fourth, the COA was unable to consider jury selection and closing arguments, bases for defendants' Rule 59 motion, because they were not in the transcripts or record. And fifth, the COA indicated that one ground for the Rule 59 motion -- that one defendant had not participated in the transaction with the plaintiff -- had been essentially waived due to the lack of a timely objection in the trial court.

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