Caldwell v. Pop's Homes, Inc.

Decision Date05 October 1981
Docket NumberNo. A7809-14657,A7809-14657
Citation634 P.2d 471,54 Or.App. 104
PartiesGary CALDWELL, Appellant-Cross-Respondent, v. POP'S HOMES, INC., an Oregon Corporation, Respondent-Cross-Appellant. ; CA 17951.
CourtOregon Court of Appeals

Paul J. Kelly, Jr., Portland, argued the cause for appellant-cross-respondent. With him on the briefs was Glasgow, LaBarre & Kelly, Portland.

Anthony A. Buccino, Portland, argued the cause for respondent-cross-appellant. With him on the brief was Buccino & Uffelman, Portland.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

GILLETTE, Presiding Judge.

Plaintiff, the purchaser of a mobile home, brought an action for fraud and for violation of the Unfair Trade Practices Act (UTPA), alleging that the defendant, seller of the home, 1 misrepresented the length of time that the home could remain in its existing residential location and the year or model of the home. Plaintiff sought general and punitive damages on both causes of action. The jury returned a verdict for plaintiff, awarding him $3,400 in general damages on the fraud cause and $1,500 in general and $1,000 in punitive damages on the UTPA cause. Defendant moved for judgment notwithstanding the verdict and, in the alternative, for a new trial. The trial court granted judgment notwithstanding the verdict. Plaintiff appeals. We reverse and remand.

On appeal, plaintiff contends that the trial court erred in granting defendant's motion for judgment notwithstanding the verdict and asks that, in the event this court remands the case for a new trial, we do so with directions to the trial court to give a particular instruction on special damages. Defendant claims that the judgment notwithstanding the verdict was proper and, in the alternative, cross-appeals, urging that the trial court erred in failing to grant its motion for a directed verdict, in denying its motion to strike plaintiff's claim for punitive damages, and in instructing the jury on the measure of general damages.

In determining whether the judgment n. o. v. was proper we must determine whether, viewing the evidence in the light most favorable to plaintiff, any evidence supported the jury verdict. If so, the verdict must be reinstated.

"Our inquiry on review, therefore, is to search the record to ascertain whether it contains evidence which supports the verdict. In performing our function, we do not weigh the evidence. We are required to accept as being true all evidence and inferences therefrom in the light most favorable to the party who prevailed before the jury. This necessitates resolving any conflicts in the evidence in favor of that party." Jacobs v. Tidewater Barge Lines, 277 Or. 809, 811, 562 P.2d 545 (1977).

See also, Huston v. Trans-Mark Services, 45 Or.App. 801, 806, 609 P.2d 848, rev. den. 289 Or. 587 (1980); Or.Const., Amended Art. VII, § 3. 2

Defendant's business is selling used mobile homes on consignment. Some sales are "in-park" sales, i. e., sales of homes already located and set up for occupancy in mobile home parks. The rest of the sales involved mobile homes located on defendant's sales lot, i. e., homes that do not have a space in a mobile home park. At the time of the sale in question, defendant maintained separate offices for the two types of sales, although both offices were located on the same lot. The office that handled lot sales was located on the front of the lot, and the office which handled in-park sales was located in back.

In March, 1978, plaintiff went to defendant's place of business because he was in the market for a used mobile home set up for occupancy in a residential park. Plaintiff had seen a newspaper advertisement of defendant's. Upon arriving at the lot, he was directed to the back office where he was told in-park sales were handled.

Plaintiff told defendant's salesperson, Tina Nance, what kind of home he was looking for. He explained to her his price range, that he had a pet and that he needed an in-park mobile home near downtown Portland. He told her that he was busy with school and work and did not have time or money to find a place for the home, to move it and to have it set up. After reviewing the mobile home listings, Nance identified two mobile homes, both in the Twin Oaks Trailer Park, that she thought would meet plaintiff's needs. She arranged for plaintiff to view the homes at a later date.

After seeing the homes, plaintiff and Nance returned to her office. Plaintiff indicated that he was interested in buying a home belonging to Grace Hunter. He asked Nance why Hunter was selling. Nance asked another employe who was in the office, who responded that it was because Hunter was looking for a larger mobile home. Plaintiff then made an offer to purchase the Hunter home for $7,000. That offer was rejected. A short time later, plaintiff offered $7,400, which was accepted. Plaintiff paid $1,500 down toward the purchase price of the home and financed the balance through a loan from a savings and loan company, which defendant helped arrange.

Plaintiff had not talked with the owners of the park before buying the home. After the purchase and while making arrangements to move, plaintiff learned that the park was being sold. In May, 1978, he moved into the park. In the early part of June, he received notice from the new owner that the park had been sold, that it would no longer be used as a mobile home park and that the residents would have to vacate the premises within 120 days. Plaintiff moved his mobile home in October, 1978. Because he was unable to find another park to meet his needs, he was forced to place the home in storage. Had he known the park was to be sold, he would not have bought the mobile home.

The listing agreement between Grace Hunter and the defendant was introduced in evidence. It indicates that the reason Hunter was selling her home was because the park was being sold. Nance testified that the listing cards she worked from were prepared from these listing agreements. She indicated that if the home had to be moved, the card would normally contain that information. She stated that the card she had on Hunter's home gave no such indication and that she herself did not see the original listing agreement and did not know what it said. Mr. Knakal, who was in charge of defendant's operations and who worked with plaintiff in financing his purchase, stated that another employe prepared the listing agreement with Hunter and that a secretary then prepared the listing card. The record does not show if Knakal knew the reason for the sale by Hunter.

The listing agreement also indicated that the mobile home is a 1963 model. The purchase agreement signed by defendant and plaintiff stated that it is "approximately" a 1964 model. The security agreement and note initially signed by the plaintiff indicated that it was a 1964 model. The title, which was obtained by the savings and loan company after the loan agreement was signed, indicated that it is a 1962 model.

Plaintiff testified that he thought the mobile home was a 1964 model; he did not find out it was a 1962 model until after he had filed this lawsuit. However, he also indicated that at the time he bought the mobile home it would not have mattered to him whether it was a 1962 or a 1964 model.

Respecting damages, plaintiff called a real estate appraiser who testified that the present market value of the mobile home was $3,000. The appraiser indicated that this reduction in value was due not only to the fact that the home was not set up in a park but because it had been damaged from non-use. The same appraiser had done the original appraisal for the lending institution at the time plaintiff's purchase was financed. She testified that the home then had a market value of $7,400, a figure based in part on the fact that the home was set up and ready for occupancy in a trailer park. She indicated that if the home had to be moved from the park at the time of the sale, it would have been worth approximately $1,500 less.

We turn first to plaintiff's unfair trade practices claim. ORS 646.638(1) provides that:

"Any person who suffers any ascertainable loss of money or property, real or personal, as a result of wilful use or employment by another person of a method, act or practice declared unlawful by ORS 646.608, may bring an individual action in an appropriate court to recover actual damages or $200, whichever is greater. The court or the jury, as the case may be, may award punitive damages and the court may provide such equitable relief as it deems necessary or proper."

The specific sections plaintiff contends that defendant violated are ORS 646.608(1)(e) and (t). Those sections provide:

"A person engages in an unlawful practice when in the course of the person's business, vocation or occupation the person:

" * * *

"(e) Represents that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that they do not have or that a person has a sponsorship, approval, status, qualification, affiliation, or connection that he does not have;

" * * *

"(t) Concurrent with tender or delivery of any real estate, goods or services fails to disclose any known material defect or material nonconformity; * * * "

Both sections relied upon by plaintiff pertain to representations concerning real estate, goods or services being furnished by a person to a consumer in the course of that person's business. Those sections make it a violation wilfully to misrepresent, among other things, the qualities, characteristics, uses and benefits of goods or to fail to disclose known material defects in the goods. In this case, defendant is charged with failing to tell plaintiff that the park was being sold. The testimony established that a mobile home's value would be substantially decreased if it had to be moved. The permanency of the location of the mobile home in the park...

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