Bruntaeger v. Zeller

• Decision Date: 07 July 1986
• Docket Number: No. 85-055,85-055
• Parties: America BRUNTAEGER, v. Al ZELLER.
• Court: Vermont Supreme Court

Page 123

515 A.2d 123

147 Vt. 247

America BRUNTAEGER, v. Al ZELLER.

No. 85-055.

Supreme Court of Vermont.

July 7, 1986.

Linton & Linton, P.C., Burlington, for plaintiff-appellee.

Joseph C. Palmisano and Raymond J. Obuchowski, Barre, for defendant-appellant.

Before ALLEN, C.J., and HILL, PECK, GIBSON and HAYES, JJ.

HAYES, Justice.

Defendant, Al Zeller, appeals a superior court judgment in favor of plaintiff, America Bruntaeger, for $2,700 plus interest and costs, and $1,692.40 in attorney's fees. Plaintiff cross-appeals for exemplary damages. We remand for an evidentiary hearing on the reasonableness of attorney's fees. In all other respects, we affirm.

Plaintiff purchased a fur coat from defendant at his temporary business address in the Sheraton-Burlington Inn in South Burlington, Vermont on November 27, 1982. Plaintiff gave defendant a $100 deposit on the coat. Defendant advised plaintiff that he would not alter the coat until he had received the full purchase price of $2,700. The day after the purchase, plaintiff sent defendant a check for $2,600. Approximately one week later, plaintiff received the coat in Vergennes, where it arrived by bus from defendant's regular place of business in St. Johnsbury. The package containing the coat was undamaged. Defects in the coat, however, were immediately apparent to plaintiff when she removed it from the package. She notified defendant within hours of receipt that the coat was defective and that she was rejecting it in its present condition. Defendant suggested that she bring the coat to the Sheraton-Burlington for him to examine. When plaintiff brought the coat to the Burlington motel, defendant told her that if he sent the coat to the manufacturer, she would have to accept it thereafter regardless of its condition.

Plaintiff then advised defendant that she was unconditionally rejecting the coat, and that defendant could pick it up at her home at any time upon return of the purchase price and sales tax. Defendant refused to refund plaintiff's money, and he did not pick up the coat. Plaintiff then filed suit, alleging in her complaint that the defects in the coat amounted to breach of contract, breach of express and implied warranties, and violated 15 U.S.C. §§ 2301-2312, the Magnuson-Moss Warranty Act. Plaintiff further alleged that the sale was a home solicitation sale within the meaning of 9 V.S.A. § 2451a, and that she was entitled to a written notice of her cancellation rights under 9 V.S.A. § 2454(b)(1). Plaintiff also claimed that a violation of 9 V.S.A. § 2454(b)(1) was a violation of Federal Trade Commission (FTC) regulation entitled "Cooling-Off Period For Door-To-Door Sales," 16 C.F.R. § 429.1, because it constituted an unfair act in commerce. Finally, plaintiff alleged that defendant failed to disclose his refund policy in violation of Vermont's Consumer Fraud Rule 106 (promulgated by the Attorney General, Consumer Fraud Division), and the Consumer Fraud Law, 9 V.S.A. § 2453(a).

After a bench trial, the court found that the sale was a home solicitation sale, and that defendant's failure to provide plaintiff with a written notice of her cancellation rights violated 9 V.S.A. § 2453. The court found that plaintiff had rejected nonconforming goods and ordered defendant to refund her money under 9 V.S.A. § 2454(c)(1). In awarding plaintiff damages, the court accepted as reasonable, without further evidence, and over defendant's objection, the bill submitted for plaintiff's counsel fees. The court did not grant plaintiff's request for exemplary damages.

Defendant appeals as error the following findings: (1) that the sale in this case comes within the home solicitation sales provision of 9 V.S.A. § 2451 a(e); (2) that defendant had committed a prohibited practice under Vermont consumer fraud law as well as violating the Federal Trade Commission's Regulation entitled "Cooling-Off Period For Door-To-Door Sales"; (3) that defendant told plaintiff that she would have to accept the coat after return from the manufacturer whether a "cure" was effected or not; and (4) that attorney fees awarded in this case were reasonable. Plaintiff cross-appeals the denial by the court of her request for exemplary damages, and requests attorney fees incurred in connection with this appeal.

I.

Defendant first argues that the trial court erred when it found that the sale in this case came within the definition of a home solicitation sale pursuant to 9 V.S.A. § 2451a(e). Defendant's argument relies on the nature and character of his business rather than on the location of the sale. He suggests that the statute is intended to protect consumers from "fly by night" transient merchants and not someone like himself, who otherwise has a stationary business address. We disagree.

A home solicitation sale is defined in 9 V.S.A. § 2451a(e) as

the sale or lease, or the offer for sale or lease, of goods or services with a purchase price of $5.00 or more, whether under single or multiple contracts, where the sale, lease, or offer thereof is either personally solicited or consummated by a seller at the residence or place of business or employment of the consumer, or at a seller's transient quarters. Transient quarters includes hotel or motel rooms, or any other place utilized as a temporary business location. (Emphasis added.)

Findings rendered by the trial court will not be set aside unless, taking the evidence in the light most favorable to the prevailing party, and excluding the effect of modifying evidence, they are clearly erroneous. Gilbert v. Davis, 144 Vt. 459, 461, 479 A.2d 159, 160 (1984). The evidence reveals that defendant's regular place of business is in St. Johnsbury. From time to time, however, he sells fur coats out of motel rooms. Under the statute, it is the location of the sale and not whether the merchant maintains a regular business address which is controlling. The South Burlington motel room used by defendant in this case constituted "transient quarters" or "a temporary business location," as those terms are used in 9 V.S.A. § 2451 a(e). Thus, the court did not error when it found that the sale came within the definition of 9 V.S.A. § 2451a(e).

II.

Defendant next claims that the court erred in concluding that he had violated Vermont's Consumer Fraud Law as well as the Federal Trade Commission's regulation titled "Cooling-Off Period For Door-To-Door Sales," 16 C.F.R. § 429.1. We disagree. Where a sale is defined as a home solicitation sale, it is subject to notice of the right of rescission found in 9 V.S.A. § 2454(b), which requires written notice to the buyer. Defendant did not give notice to plaintiff. Plaintiff properly canceled the contract, and was entitled to a refund under 9 V.S.A. § 2454(c)(1), which defendant refused to give. Defendant's actions thus violated 9 V.S.A. § 2454, and were unfair within the meaning of 9 V.S.A. § 2453(a).

Defendant contends that the court erred in finding him in violation of 16 C.F.R. § 429.1. Under federal regulations, a "Door-To-Door" sale is one "made at a place other than the place of business of the seller." 16 C.F.R. § 429.1, note 1(a). A violation occurs when the seller fails to provide the buyer with a written notice of the right to rescind the contract within three days of its making. Sales consummated at a seller's local business address are exempt from the notice provisions of 16 C.F.R. § 429.1. Defendant characterizes the motel rooms at the Sheraton-Burlington as a local business address pursuant to 16 C.F.R. § 429.1, note 1(d). Even if we were to accept defendant's interpretation of the federal regulations, state law is not preempted by the federal scheme except where state law is directly inconsistent. Note 2(b) of 16 C.F.R. § 429.1 states:

This section will not be construed to annul, or exempt any seller from complying with the laws of any State, or with the ordinances of political subdivisions thereof, regulating door-to-door sales, except to the extent that such laws or ordinances, if they permit door-to-door selling, are directly inconsistent with the provisions of this section. Such laws or ordinances which do not accord the buyer, with respect to the particular transaction, a right to cancel a door-to-door sale which is substantially the same or greater than that provided in this section, or which permit the imposition of any fee or penalty on the buyer for the exercise of such right, or which do not provide for giving the buyer notice of his right to cancel the transaction in substantially the same form and manner provided for in this section, are among those which will be considered directly inconsistent.

Because Vermont law provides greater protections to Vermont consumers, and specifically includes temporary motel and hotel locations in its definition of home solicitation sales, the FTC regulation is not preemptive. Having found that defendant violated Vermont's Consumer Fraud Law, we need not address whether the court erred in finding a violation of 16 C.F.R. § 429.1.

III.

Defendant next argues that the trial court erred in finding that his offer to return the fur coat to the manufacturer for repair was conditioned upon plaintiff's acceptance of the coat upon return. We disagree.

It is the province of the trial court to determine the credibility of witnesses and weigh the persuasive effect of the evidence. Darken v. Mooney, 144 Vt. 561, 568, 481 A.2d 407, 412 (1984). Testimony concerning the return of the coat conflicted. Defendant claimed that he offered to return the defective fur coat to the manufacturer for repair without imposing any conditions. Plaintiff, on the other hand, testified that defendant told her that if he sent the coat to the manufacturer, she would have to accept it thereafter regardless of its condition. A witness supported plaintiff's testimony. A determination by the trier of fact must stand if supported by credible evidence, even if inconsistencies or contrary...