Simonsen v. Sandy River Auto, LLC

413 P.3d 982, 290 Or. App. 80
Court of Appeals of Oregon·Decided February 7, 2018·No. A159541·Published·Cited by 9 cases

Opinion

DeVORE, P.J.

*81Defendant's appeal contrasts a jury's verdict that found no damages with a trial court's decision that granted rescission in plaintiff's claim for violation of the Unlawful Trade Practices Act (UTPA), ORS 646.605 - 646.656. Plaintiff Simonsen brought a claim against defendant Sandy River Auto, LLC, arising out of defendant's sale of a vehicle to plaintiff. Plaintiff sought rescission or, in the alternative, damages. The jury found that defendant willfully failed to disclose material defects in the vehicle but awarded plaintiff no damages. The trial court found that plaintiff suffered "ascertainable loss" within the meaning of ORS 646.638 and granted rescission, directing that plaintiff return the vehicle and that defendant repay plaintiff a *983$3,000 portion of his original payment. The trial court awarded to plaintiff $59,861 for attorney fees in a supplemental judgment.

On appeal, defendant first assigns error to the trial court's determination that plaintiff had prevailed in the absence of damages and to entry of a judgment rescinding the sale of the vehicle. Defendant also assigns error to the award of attorney fees, arguing that plaintiff did not prevail and, alternatively, that rescission, if granted, was not a claim under the UTPA and thus not a claim providing a statutory basis for recovery of attorney fees.

For the reasons that follow, we conclude that, on this record, plaintiff must be understood to have established "ascertainable loss" in the loss of the value of the advantageous bargain that was represented in the sale of the vehicle. It follows that plaintiff prevailed and rescission is justified. Accordingly, we affirm the general and supplemental judgments.

PROCEEDINGS

After a jury's verdict and a trial court's findings for plaintiff, we view the evidence and the reasonable inferences to be drawn from that evidence in the light most favorable to plaintiff. Northwest Natural Gas Co. v. Chase Gardens, Inc. , 328 Or. 487, 489, 982 P.2d 1117 (1999). We take the elemental *82facts, like the parties do, from plaintiff's complaint, the verdict, and the court's findings in its opinion.1

In response to an advertisement, plaintiff visited defendant's used car lot to ask about a Volkswagen Passat. Plaintiff alleged that Smith, defendant's owner, told plaintiff that the valve cover gaskets had been replaced, the car was in good running order, that it would not need any major fixes soon, that it was a good car, that it was offered at a great price, and that plaintiff was getting "a really good deal." Plaintiff bought the car for $4,200.

Plaintiff alleged that two days later a mechanic reported, among other things, that the timing belt needed replacement, that the valve cover gaskets leaked, that the exhaust system was rusted severely, that the muffler was starting to "flake apart," and that the undercarriage was extremely damaged and rusty. Plaintiff learned from CarFax that the car had been damaged in a rear-end collision.2

Plaintiff filed a single claim for violation of the UTPA, in which he alleged that defendant knew, or should have known, the car's material defects but that defendant willfully failed to disclose them. He alleged defendant willfully made false or misleading representations concerning reasons the car was listed for sale below market value. For relief, plaintiff asked for rescission or, in the alternative, for an award of the minimum statutory damages of $200 or actual damages of $4,562.77.

The parties tried the damage claim to the jury and reserved rescission for decision by the trial court. The court instructed the jury, in relevant part, as follows:

" UNLAWFUL TRADE PRACTICE
"* * * * *
"To recover, [plaintiff] must prove the following elements by a preponderance of the evidence:
*83"* * * * *
"3) At the time of the sale, [defendant] willfully engaged in an unlawful practice by failing to disclose the following material defects [in] the vehicle which it knew or should have known about.
"a. Rust and corrosion
"b. Leaking oil
"c. Prior rear end collision
"4) [Plaintiff] suffered an ascertainable loss of money or property as a result of the unlawful practice.
"* * * * *
" MATERIAL DEFECT
*984"A material defect is a defect or condition which substantially impairs the use, value or safety of a vehicle.
"* * * * *
" DAMAGES-ECONOMIC
"Economic damages are the objectively verifiable monetary losses that the plaintiff has incurred. In determining the amount of economic damages, if any, consider:
"1) The reduction in the fair market value of the vehicle; and
"2) [T]he out of pocket expenses incurred by plaintiff.
"The total amount of economic damages may not exceed the sum of $4,562.77."
" MEASURES OF DAMAGES
"If you find the plaintiff is entitled to damages, you must determine the amount, if any, of the compensation owed to plaintiff due to fault or negligence of the defendant.
"The measure of damages is the difference between the price paid for the vehicle and the fair market value of the vehicle at the time of sale.
"You may consider the cost of reasonable repairs to be evidence of damages; however, if the cost of reasonable repairs is less than the difference in value, the plaintiff still may recover the difference in value."

*84The jury was not instructed on the meaning of "ascertainable loss," nor was the jury specifically asked about "ascertainable loss," except as may have been subsumed within the instructions on economic damages or measure of damages. The jury returned a verdict that found material defects and willful nondisclosure but no damages. In relevant part, the verdict form reads:

"1. When delivered to the plaintiff did the vehicle have one or more of the alleged material defects?
" ANSWER : Yes X No _
"* * * * *

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Simonsen v. Sandy River Auto, LLC, 413 P.3d 982, 290 Or. App. 80 (Or. Ct. App. 2018).

413 P.3d 982 (Simonsen v. Sandy River Auto, LLC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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