Byron v. Gerring Industries, Inc.

• Decision Date: 30 December 1982
• Docket Number: No. 10223,10223
• Citation: 328 N.W.2d 819
• Parties: Robert BYRON, Plaintiff and Appellant, v. GERRING INDUSTRIES, INC., Pierce Mobile Home Sales, Inc., a/k/a Pierce Trailer Sales, Inc., and Metropolitan Federal Savings and Loan Association, Defendants and Appellees. Civ.
• Court: North Dakota Supreme Court

Page 819

328 N.W.2d 819

Robert BYRON, Plaintiff and Appellant, v. GERRING INDUSTRIES, INC., Pierce Mobile Home Sales, Inc., a/k/a Pierce Trailer Sales, Inc., and Metropolitan

Federal Savings and Loan Association,

Defendants and Appellees.

Civ. No. 10223.

Supreme Court of North Dakota.

Dec. 30, 1982.

Stefanson, Landberg & Alm, Moorhead, for plaintiff and appellant; argued by Randolph E. Stefanson, Moorhead.

Conmy, Feste & Bossart, Fargo, for defendant and appellee Gerring Industries, Inc.; argued by Wickham Corwin, Fargo.

Vogel, Brantner, Kelly, Knutson, Weir & Bye, Fargo, for defendant and appellee Pierce Mobile Home Sales, Inc.; no appearance.

Nilles, Hansen, Selbo, Magill & Davies, Fargo, for defendant and appellee Metropolitan Federal Savings and Loan Association; no appearance.

ERICKSTAD, Chief Justice.

Plaintiff/Appellant, Robert Byron, appeals from a judgment of the District Court of Cass County precluding him from revoking acceptance of a mobile home. We affirm.

On May 30, 1978, Byron contracted to purchase a 1978 Holly Park Mobile Home from the defendant, Pierce Mobile Home Sales, Inc., a/k/a Pierce Trailer Sales, Inc. ¹ This home was manufactured by co-defendant, Gerring Industries, Inc. Approximately six and one-half months later, on January 22, 1979, Byron notified the respective defendants that he was revoking acceptance of the mobile home in question on the basis that its value was substantially impaired. ² In the ensuing bench trial, Byron contended that a substantial impairment existed due to both cosmetic and structural defects. Nevertheless, the trial court specifically found that the value of the mobile home was not substantially impaired because: (1) the cosmetic defects were not of a substantial nature; and (2) the home was not structurally defective for three reasons: first, it was in compliance with the applicable H.U.D. regulations; second, it was constructed in accordance with generally accepted engineering practices; and, third, it had sufficient structural strength under both stationary and transit positions.

We have said that a finding concerning substantial impairment or the lack thereof is a question of fact. Erling v. Homera, Inc., 298 N.W.2d 478, 481 (N.D.1980). Hence, on appeal, Byron urges us to set aside the trial court's findings of fact with regard to substantial impairment on the basis that such findings are clearly erroneous. Rule 52(a), N.D.R.Civ.P.

The legal principles governing Rule 52(a)'s application are not in dispute and thus can be briefly summarized. A finding is clearly erroneous only when, although there is some evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948); Wilhelm v. Berger, 297 N.W.2d 776, 779 (N.D.1980); Alumni Association of University v. Hart Agency, Inc., 283 N.W.2d 119, 121 (N.D.1979); Schmidt v. Plains Elec., Inc., 281 N.W.2d 794, 798 (N.D.1979); In re Estate of Elmer, 210 N.W.2d 815, 820 (N.D.1973). That we may have viewed the facts differently if we had been the initial trier of the case does not entitle us to reverse the lower court. United States v. National Ass'n of Real Estate Boards, 339 U.S. 485, 495-96, 70 S.Ct. 711, 717, 94 L.Ed. 1007 (1950); Nee v. Linwood Securities Co., 174 F.2d 434, 437 (8th Cir.1949); Schmidt v. Plains Elec., Inc., supra, 281 N.W.2d at 798; In re Estate of Elmer, supra, 210 N.W.2d at 820. Our function is not to decide factual issues de novo. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969); In re Estate of Elmer, supra, 210 N.W.2d at 820.

The complaining party bears the burden of demonstrating that error exists in the trial court's findings of fact. ³ Friedman v. Fordyce Concrete, Inc., 362 F.2d 386, 387 (8th Cir.1966); Montgomery Ward and Company v. Steele, 352 F.2d 822, 826 (8th Cir.1965); Warnecke v. McDonald Construction Co., 323 F.2d 715, 716 (8th Cir.1963). The burden assumed by the party attempting to show such mistake is especially strong where, as in this instance, the findings are primarily based upon oral testimony and the trial judge has viewed the demeanor and judged the credibility of the witnesses. Bryan v. Kershaw, 366 F.2d 497, 499 (5th Cir.1966), cert. denied 386 U.S. 959, 87 S.Ct. 1030, 18 L.Ed.2d 108 (1967). The rule that questions of credibility are for the trial court also applies to the evaluation of expert witness testimony. Graver Tank and Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 274, 69 S.Ct. 535, 537, 93 L.Ed. 672 (1949); Molitor v. American President Lines, Ltd., 343 F.2d 217, 221 (9th Cir.1965); United States ex rel. Carter-Schneider-Nelson, Inc. v. Campbell, 293 F.2d 816, 822 (9th Cir.1961), cert. denied 368 U.S. 987, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962); 9 Wright and Miller, Federal Practice and Procedure, Sec. 2586, p. 736-40 (1970).

In the case at bar, the record is replete with expert witness testimony concerning the structural adequacy of this mobile home. The plaintiff's expert, Dr. Jorgenson, testified that the home was structurally inadequate as every significant structural member was overstressed to some extent and, in addition, the home was not in compliance with the applicable H.U.D. regulations. His testimony was contradicted by the defendants' expert, Dr. Tompos, who unequivocally stated that the home was structurally adequate and in compliance with the requisite H.U.D. regulations. ⁴

The trial court was thus confronted with a classic "battle of the experts". Consequently, this is a case where the court could have arguably relied upon either party's expert witness. However, upon hearing the testimony, observing the witnesses' demeanor, and judging their credibility, the court chose to rely upon the defendants' expert. Such a choice between two permissible views of the weight of the evidence is not clearly erroneous. U.S. v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 179, 94 L.Ed. 150 (1949); In re Estate of Elmer, supra, 210 N.W.2d at 820.

In oral argument, counsel for Byron conceded that in order for Byron to prevail on appeal with regard to the issue of substantial impairment, we must determine that the trial court was clearly erroneous in relying upon the defendants' expert. Therefore, we will only briefly consider whether or not the court was clearly erroneous in finding that the cosmetic defects were insubstantial in nature and thus did not substantially impair the home's value.

In this case, the trial court conducted a personal inspection of Byron's mobile home from which he concluded that several of the alleged cosmetic defects were either unnoticeable or due to the home's unblocked condition. For example, the alleged flaws in the wooden fireplace mantel and in the refrigerator door panel were invisible unless such fixtures were viewed from a specific angle under optimal lighting; the scratches complained of were undetectable; the screws securing the shelf in the entryway closet were not uneven as asserted; and, in addition, by blocking the mobile home, the existing misalignments in the door frames would be cured.

Prior to inspecting the mobile home, the trial court had an opportunity to hear testimony regarding the alleged cosmetic defects and to judge the respective witnesses' credibility. On cross-examination, Byron conceded that the alleged dents in both the mantel and refrigerator door were virtually undetectable. Byron also stated that, with the exception of the back ordered materials, any and all of his complaints prior to November 16 were promptly and adequately remedied. The general manager of Gerring's factory testified that the remainder of Byron's complaints could be easily cured in less than 12 hours at an estimated cost of less than $900; ⁵ Gerring did not have an opportunity to cure these defects prior to Byron's revocation of acceptance.

Viewing the premises unquestionably aided the court in determining the significance and, in some instances, even the existence of the home's cosmetic defects. "... a view by the trial judge ... provides one more reason (in addition to his opportunity to observe the demeanor of the witnesses) why we should give great weight to the findings of the trial court." Dobler v. Malloy, 214 N.W.2d 510, 515 (N.D.1973). Being cognizant of the fact that the trial court had an opportunity to judge the witnesses' credibility and to view the premises, and finding significant and convincing evidence to support the trial court's findings upon scrutinizing the record, we are satisfied that the trial court's findings of fact with regard to the cosmetic defects are not clearly erroneous.

Byron further contends that he is entitled to recover damages under the Magnuson-Moss Warranty--Federal Trade Commission Improvement Act (Magnuson-Moss Act) on the basis that Gerring breached both the implied warranties of merchantability and of fitness for a particular purpose and also the express warranty which accompanied the home. ⁶ 15 U.S.C. Sec. 2301-2312 (1975). However, an action for damages cannot be pursued under the...