Bell v. Kent-Brown Chevrolet Co., KENT-BROWN

• Decision Date: 18 March 1977
• Docket Number: No. 48334,KENT-BROWN,48334
• Citation: 1 Kan.App.2d 131,561 P.2d 907
• Parties: James A. BELL, Appellee, v.CHEVROLET COMPANY, Appellant.
• Court: Kansas Court of Appeals

Page 907

561 P.2d 907

1 Kan.App.2d 131

James A. BELL, Appellee, v. KENT-BROWN CHEVROLET COMPANY, Appellant.

No. 48334.

Court of Appeals of Kansas.

March 18, 1977.

Syllabus by the Court

1. Representation by a seller that goods are new, if they are deteriorated, altered, reconditioned, or otherwise used to an extent that is materially different from the representation, is declared to be a violation of the Kansas Consumer Protection Act under K.S.A. 1975 Supp. 50-626(b)(1)(C) (now K.S.A. 50-626(b)(1)(C)).

2. Intent or prior knowledge by a seller of damage to goods is not a requirement under the Kansas Consumer Protection Act.

3. Where the trial court's findings are supported by sufficient evidence, they will not be disturbed on appeal. (Following Farmers State Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. 1, 524 P.2d 690.)

4. The award of civil damages and attorney fees pursuant to K.S.A. 1975 Supp. 50-636(a) (now K.S.A. 50-636(a)) and K.S.A. 1975 Supp. 50-634(e) (now K.S.A. 50-634(e)) is discretionary with the trial court.

5. In an action brought pursuant to the Kansas Consumer Protection Act, it is held: the prevailing party is entitled to either actual damages or a civil penalty, whichever is greater, but not both.

William E. Enright and George A. Scott, of Scott, Quinlan & Hecht, Topeka, for appellant.

Jerry R. Palmer, Topeka, for appellee.

En Banc.

PARKS, Judge:

This is an action brought pursuant to the Kansas Consumer Protection Act, K.S.A. 1975 Supp. 50-623, et seq. (since amended, K.S.A. 50-623, et seq.). The trial court rendered judgment for the plaintiff, James A. Bell, in the total sum of $3,305 ($2,000 civil penalty, $1,000 attorney's fees, and $305 actual damages). The defendant, Kent-Brown Chevrolet Company, appeals. This appeal brings the act before our appellate courts for the first time.

On August 16, 1974, plaintiff purchased a 1974 Open Road van from the defendant for $6,170.00, less a trade-in. Defendant represented to the plaintiff that the vehicle was new. After delivery of the vehicle, it was discovered by the plaintiff that it had been damaged. He became aware of the damage when he noticed repainting on the side and paint flaking off the right rear corner. While installing trailer lights and taking the panel out of the inside, the plaintiff found body putty. In order to discover part of the damage to the vehicle, plaintiff had to remove an interior wood panel and a seat bench. Additional damage included a replacement bumper, a bent brace for the bumper, and file marks which indicated that the sliding door on the right side had been repaired. Plaintiff was advised by defendant that some of the damage could be repaired under warranty and offered in the alternative to give him another 1974 Open Road van of the same model and style. The substitute vehicle offered by defendant was found not to be equivalent to the one plaintiff had purchased, thus it was rejected by the plaintiff.

The trial court found as a matter of law, and as a part of its conclusion, that the failure to disclose the damages was a deceptive practice and that when the vehicle was sold to the plaintiff it had been altered materially different from the representation as a new vehicle.

In order to determine this case, it is necessary to examine certain sections of the Kansas Consumer Protection Act. They read, in part, as follows:

K.S.A. 1975 Supp. 50-623:

'This act shall be construed liberally to promote the following policies:

'(b) to protect consumers from suppliers who commit deceptive and unconscionable sales practices.'

K.S.A. 1975 Supp. 50-626:

'(a) No person shall engage in any false, misleading, deceptive or unconscionable trade practice in the sale, lease, rental or loan or in the offering for sale, lease, rental or loan of any goods or services.

'(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act:

'(1) Representations that:

'(C) goods are original or new, if they are deteriorated, altered, reconditioned, repossessed or second-hand or otherwise used to an extent that is materially different from the representation.'

In lieu of setting forth the provisions of K.S.A. 1975 Supp. 50-624, we would simply state that the defendant qualifies as a 'person' under subsection (h), and the vehicle sold constitutes 'goods' under subsection (e) of this statute.

The first issue presented to this court is whether defendant's representation that the vehicle was 'new,' when in fact the vehicle had been damaged and thereafter repaired, constitutes a deceptive consumer sales practice under the Kansas Consumer Protection Act.

Defendant contends that the legislature, in enacting the Kansas Consumer Protection Act, was attempting to protect consumers from conduct intentionally done by suppliers. It argues that since the trial court found no evidence of any willful nondisclosure on its part, there was no violation of the act.

K.S.A. 1975 Supp. 50-626(b)(1)(C) specifically declares it to be a violation of the act to make representations that goods are new, if they are deteriorated, altered, reconditioned or otherwise used to an extent that is materially different from the representation.

The Kansas Comment to K.S.A. 1975 Supp. 50-626 says:

'1. Subsection (a) generally prohibits any deceptive practice in a consumer transaction. . . . The acts and practices listed in subsection (b) are treated as per se deceptive, and are merely illustrative of the acts and practices which violate the act as set forth in the broadly worded subsection (a). . . .' (Emphasis added.)

In connection with the argument that its representation did not constitute a violation of the act, the defendant further contends that it had no actual knowledge of the damage prior to being advised by the plaintiff.

The trial court in the present case found that the defendant knew or should have known, by any reasonable visual inspection of the vehicle prior to the sale and delivery, that this vehicle had been damaged and repairs had been made.

Unlike many statutes, i. e. criminal statutes, a careful analysis of the act reveals that it imposes no requirement of intent or prior knowledge on the past of a supplier.

Under the circumstances, we cannot say that the trial court erred in finding that the defendant violated the Kansas Consumer Protection Act.

The second issue presented is whether there was evidence to support the trial court's finding that when the vehicle was sold to the plaintiff it had been altered materially different from the representation of a new vehicle.

A review of the record clearly indicates that the evidence is undisputed that the vehicle had been damaged prior to the sale and delivery to the plaintiff; that Mr. Paporello represented the vehicle as new when he sold it to the plaintiff; that the trial judge made a personal inspection of the...