Bartner v. Carter

• Court: Maine Supreme Court
• Writing for the Court: Before McKUSICK; GODFREY; DELAHANTY
• Citation: Bartner v. Carter, 405 A.2d 194 (Me. 1979)
• Decision Date: 09 August 1979
• Parties: Jay Bruce BARTNER and Claire Doheny Bartner v. Dwight B. CARTER and Lewis E. Moore.

Page 194

405 A.2d 194

Jay Bruce BARTNER and Claire Doheny Bartner v. Dwight B. CARTER and Lewis E. Moore.

Supreme Judicial Court of Maine.

Aug. 9, 1979.

James E. Mitchell (orally), Jed Davis (orally), Augusta, for plaintiffs.

Hale & Hamlin by Barry K. Mills (orally), Blue Hill, for defendants.

Before McKUSICK, C. J., and POMEROY, WERNICK, ARCHIBALD, GODFREY and NICHOLS, JJ.

GODFREY, Justice.

Appellants Jay and Claire Bartner brought an action against real estate brokers Dwight Carter and Lewis Moore alleging, in separate counts, fraud and a violation of the Maine Unfair Trade Practices Act, specifically 5 M.R.S.A. § 213 (1979). The action arose out of the purchase of residential property by the Bartners. Appellees Carter and Moore, relying on information furnished by the seller, advertised the property in the following language:

"BASS HARBOR

6 rooms completely renovated combination garage and barn 3/4 acre. $32,000."

Appellants, who lived in Minnesota at the time of their negotiations for purchase of the premises, testified that they were in Maine in the summer of 1976 looking for residential property to buy; that they noticed the premises with a "For Sale" sign but decided not to stop because the lot looked too small; that they became interested after reading the advertisement in the Bar Harbor Times stating that the lot contained three-fourths of an acre; that when appellant Jay Bartner was looking over the property with appellee Moore, Moore informed him, in reply to a question, that the lot contained three-fourths of an acre, and that appellants relied on that figure when they executed the purchase and sale agreement. Appellant Jay Bartner testified that the premises were offered for sale at $32,000, that the Bartners made a counter-offer of $28,000, and that the price agreed on was $30,000. A real estate agent called as a witness by the appellants testified that the premises were worth $30,000 at the time of sale.

The appellees did not controvert that testimony. They admitted that, relying on information supplied by the seller, they had placed advertisements stating that the lot contained three-fourths of an acre. Respondent Moore acknowledged that the amount of acreage is an important part of an advertisement for the sale of real estate.

The closing was originally set for October 5, 1976. On October 1, appellants wrote to Moore stating that on an examination of the deed to the property they had noticed a reference to the area of the lot as being one-half acre, that the discrepancy caused them some concern, and that they "would like to settle it before the closing on October 5th." They suggested that the diminution in acreage represented a diminution in market value amounting to $1,500. In a telephone conversation with appellants, Moore acknowledged that there had been a mistake and that the lot was somewhere between one-half and three-fourths of an acre. Appellants' demand for a reduction of the price was refused, but the seller himself, in a telephone conversation in early October, told the Bartners they could terminate the contract. According to appellants' testimony, the seller did not offer at that time to return their $3,000 deposit.

The closing was postponed to October 18. On October 9, appellants wrote to Moore, stating that they had written the Maine Real Estate Commission complaining of appellees' "misleading representation of the property" and were preparing to file a formal complaint. On October 10, they wrote again to Moore stating that they had sent to their lending institution in Maine the executed documents necessary to accomplish the purchase. In this letter they reaffirmed a decision they had communicated to appellees, apparently on or about October 3, to complete the purchase at the $30,000 price, but the purported to reserve "the right to sue for the difference between the advertised description of the property and that stated in the deed." They demanded, apparently in accordance with an earlier commitment by the seller in a telephone conversation, that a survey be prepared at the expense of the seller and delivered to them by the time of the closing or soon thereafter. At the closing, the seller himself offered to let the Bartners rescind the purchase agreement and to return their deposit. Appellants refused the seller's offer of rescission and accepted title, paying the rest of the $30,000 price.

In Count I of their complaint appellants demanded "restoration" to them of the value of .175 acres of land in the location of the premises, "namely, $1,050", reimbursement of their telephone toll charges, their wasted time, and the extra costs of counsel incurred in the closing as a result of the dispute, and reasonable counsel fees incurred pursuing this action.

After a trial without a jury in the Superior Court, Hancock County, the trial justice ordered judgment in favor of the defendants, having made the following findings of fact:

"1. The premises subject to this action contain between 0.50 acres and 0.60 acres.

2. The defendants advertised the property and made representations of its size to plaintiffs believing, in good faith, that the premises contained three-quarters of an acre.

3. The plaintiffs and defendants had equal opportunities to examine the quantity of land and condition of buildings.

4. The plaintiffs contracted to purchase the buildings and land in gross. The amount of the purchase price was not determined on a "per acre" basis.

5. The plaintiffs were not misled concerning either the value or condition of the premises or the use to which the premises can be put because of the advertising or other representations made by defendants.

6. The plaintiffs did not suffer any loss of money or property, real or personal, as a result of the use or employment by either defendant, of a method, act or practice declared unlawful by 5 M.R.S.A. section 207 or by any rule or regulation issued under 5 M.R.S.A. section 207, subsection 2.

7. In themselves, the advertisements and representations that the premises contained three-quarters of an acre were not material inducements for the plaintiffs to purchase the premises. Such advertisements and representations were not significant."

The trial judge also made certain conclusions of law, among them the following:

"2. The representations made by defendants as to the size of the lot must be interpreted in the light of the facts and circumstances of this particular case. Under these facts and circumstances, the defendants committed no fraud or unfair trade practice."

We deny the plaintiffs' appeal.

I. The Unfair Trade Practices Act

In 1969, Maine enacted the Unfair Trade Practices Act, chapter 10 of title 5 of the Maine Revised Statutes. ¹ Originally consisting of sections 206 to 212 of title 5, the 1969 act prohibited unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce and established procedures by which the Attorney General might implement and enforce that prohibition. In its original form, the act made no provision for a suit by a private individual to enforce the liability of a defendant who violated a provision of the act. In 1971, section 209 was amended to permit the court, in an action by the Attorney General, to make such other orders or judgments as may be necessary "to restore to any person who has suffered any ascertainable loss" by reason of the use of such an unlawful method, act or practice "any moneys or property, real or personal, which may have been acquired by means of such method, act or practice." ² The right of a private citizen to sue under the Act was not established until 1973 ³ with the addition of section 213, subsections (1) and (2) of which provide as follows:

"1. Court action. Any person who purchases or leases goods, services or property, real or personal, primarily for personal, family or household purposes and thereby suffers any loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 207 or by any rule or regulation issued under section 207, subsection 2 may bring an action in the Superior Court for restitution and for such other equitable relief, including an injunction, as the court may deem to be necessary and proper.

2. Fees and costs. If the court finds, in any action commenced under this section that there has been a violation of section 207, the petitioner shall, in addition to other relief provided for by this section and irrespective of the amount in controversy, be awarded reasonable attorney's fees and costs incurred in connection with said action."

The substantive rights that an individual plaintiff may now enforce under section 213 of title 5 are derived from section 207, which provides as follows:

"Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are declared unlawful.

"1. Intent. It is the intent of the Legislature that in construing this section the courts will be guided by the interpretations given by the Federal Trade Commission and the Federal Courts to section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.

2. Rules and regulations. The Attorney General may make rules and regulations interpreting this section. Such rules and regulations shall not be inconsistent with the rules, regulations and decisions of the Federal Trade Commission and the Federal Courts interpreting the provisions of 15 U.S.C. 45(a)(1) (The Federal Trade Commission Act) as from time to time amended. Evidence of a violation of a rule or regulation made by the Attorney General shall constitute prima facie evidence of an act or practice declared to be unlawful by this chapter in any action thereafter brought under this chapter."

It is apparent that in enacting the Unfair Trade Practices Act in 1969, the Legislature sought...