Byron v. Gerring Industries, Inc., 10223

• Court: United States State Supreme Court of North Dakota
• Citation: 328 N.W.2d 819
• Docket Number: No. 10223,10223
• 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.
• Decision Date: 30 December 1982

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.

Page 820

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

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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

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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...