Harry Bell
CHARLESTON – Kanawha Circuit Judge Charles King fined auto dealer Thornhill Superstores $7,600 on May 10 for ignoring his orders, and the penalty continues to grow.
King ordered sanctions of $100 a day in a class action suit over Thornhill's advertising of prices at a dollar over invoice.
The deadline for complying with King's orders passed 76 days before he imposed sanctions, so the penalty kicked in at $7,600.
King wrote that based on annual sales at Thornhill, the penalty was not excessive. He wrote that it was reasonably calculated to ensure compliance with his orders.
He relied on an affidavit of plaintiff attorney Harry F. Bell Jr., of Bell and Bands in Charleston, estimating Thornhill sales at $150,000 a day, seven days a week.
From 1999 through 2003, according to Bell, Thornhill sold 2,234 new General Motors vehicles a year at an average price of $24,670.45.
Thornhill Superstores, of Chapmanville in Logan County, started advertising a "one dollar over invoice" policy on television in 1998. Vice president George "Butch" Nesbit delivered the pitch.
Bell filed suit in 2003 on behalf of four customers.
Lead plaintiff Patricia Jarrell of Madison claimed that when she bought a Chevy Blazer in 2000, she paid $2,453.52 more than the manufacturer's invoice price.
David and Cortney Scragg of Hamlin, Anthony and Michelle Toler of Cyclone, and Robert and Donna Anderson of Danville made similar claims.
Thornhill attorney Johnnie Brown of Charleston immediately asked Judge King to make Bell stop contacting customers and advertising the case.
Next Brown moved to dismiss, arguing that Thornhill originally based the sales on a dollar above invoice but adjusted trade allowances to reach agreements.
He argued that West Virginia's two year statute of limitations ran out before the plaintiffs sued.
In response, Jarrell swore by affidavit that she discovered in 2003 that she overpaid.
In a compromise, Brown agreed to furnish purchase agreements and GM invoice sheets, and Bell agreed to stop contacting customers and advertising the case.
Brown gave Bell purchase agreements and invoice sheets Jan. 27, 2004. Bell asked to see the same information on new sales after that, but Brown did not furnish it.
Thornhill business manager Eugene Neal stated in an affidavit that plaintiffs negotiated better deals than a dollar above invoice.
Neal stated that dealers increased trade allowances to show equity in traded vehicles without affecting the amount borrowed. He stated that lenders were aware of the practice and did not object to it.
Bell responded by asking King, "Is this just another way for Thornhill to say, 'We will falsify documentation to get loans approved?'"
Bell wrote that if Thornhill routinely inflated and adjusted allowances and prices to obtain financing, then it tried to obtain money under false pretenses.
King certified the suit as a class action in August 2004. Bell estimated the class at 3,000.
For more than a year the two sides gathered evidence and conducted depositions.
Jarrell stated in a deposition last July that she never heard the "one dollar over invoice" promotion before she sued.
When a defense attorney asked how she felt she was done wrong, she said, "At the time I didn't."
She said, "Then I was contacted by Bell and Bands, and I wasn't aware that my car had been sold to me for more than it was supposed to have been. I didn't start all of this."
In November, Bell asked King to order Thornhill to produce documents about all sales since Jan. 27, 2004.
Thornhill attorney Cy Hill of Charleston told King he would produce samples of the documents. He wrote that Jarrell testified she did not hear the ad before suing.
Bell answered that Thornhill took Jarrell's statements out of context. He wrote that she contacted his firm about another Thornhill case, and the firm sent her a questionnaire.
King heard arguments Jan. 11, and twelve days later he gave Thornhill 30 days to bring the purchase agreements and invoices up to date.
On March 13, Bell asked for sanctions. He wrote that Thornhill offered documents on 2004 sales but told him 2005 sales were not ready.
Instead of satisfying King and avoiding sanctions, Thornhill responded March 31 with a motion to reconsider class certification or decertify the class.
Hill argued that plaintiffs in depositions had wrecked the class action theory. He wrote that, "…each purported class member's transaction at Thornhill is unique and individualized in nature."
Bell responded that the motion was not timely because depositions took place last July.
King has not set a hearing on the motion.
As of May 16, with Thornhill's fine at $8,200, the circuit court had received no payment.
