Henry v. R. K. Chevrolet, Inc., 771357
| Decision Date | 20 April 1979 |
| Docket Number | No. 771357,771357 |
| Citation | 254 S.E.2d 66,219 Va. 1011 |
| Parties | Robert Christopher HENRY v. R. K. CHEVROLET, INC. Record |
| Court | Virginia Supreme Court |
Albert L. Fary, Jr., Portsmouth, for appellant.
No brief or argument for R. K. Chevrolet, Inc.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.
The narrow issue here is whether an oral misrepresentation of the model of a motor vehicle by a seller to a buyer constitutes a violation of Virginia Code § 18.2-216, and thereby gives rise to a cause of action for damages under Code § 59.1-68.3.
Robert Christopher Henry filed his motion for judgment in the lower court alleging that he purchased two Chevrolet vans from R. K. Chevrolet, Inc., relying upon an oral representation made by the corporation's salesman that the vehicles were 1972 models. The vans were in fact 1971 models, and Henry seeks to recover damages plus costs and attorney's fee. The court below sustained defendant's demurrer to the motion upon the ground "that the oral representations made by the defendant do not come under the specified Code Section and that it (Sic ) was made solely to the plaintiff, and therefore not 'disseminated to the public' ".
In this case Henry seeks to recover only upon the ground that Chevrolet has violated a criminal statute and thereby has triggered the operation of the penalty provided in § 59.1-68.3. The trial court commented that, while in its opinion the motion for judgment may have stated a cause of action, it did not state a cause of action under the two quoted sections of the Code. The court held that because the plaintiff chose to proceed solely upon the basis of the subject statutes (which include the right to recover attorney's fees) and indicated no desire to amend, the demurrer was being sustained.
Code § 18.2-216 is found under an article in the Code of Virginia which is entitled "Misrepresentations and Other Offenses Connected With Sales". The section involved is captioned "Untrue, deceptive or misleading advertising, inducements, writing or document", and, in pertinent part, provides:
Any person, firm, corporation or association who, with intent to sell or in anywise dispose of merchandise, securities, service or anything offered by such person, firm, corporation or association, directly or indirectly, to the public for sale or distribution or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or any interest therein, makes, publishes, disseminates, circulates or places before the public, or causes, directly or indirectly to be made, published, disseminated, circulated or placed before the public, in a newspaper or other publications, or in the form of a book, notice, handbill, poster, blueprint, map, bill, tag, label, circular, pamphlet or letter or in any other way, an advertisement of any sort regarding merchandise, securities, service, land, lot or anything so offered to the public, which advertisement contains any promise, assertion, representation or statement of fact which is untrue, deceptive or misleading, or uses any other method, device or practice which is fraudulent, deceptive or misleading to induce the public to enter into any obligation, shall be guilty of a Class 1 misdemeanor.
The violation of Code § 18.2-216 is not only a criminal offense punishable as a misdemeanor, but it subjects the defendant to an action for damages by any person who suffers loss as the result of such violation. The recovery is the amount of damages sustained, or $100, whichever is greater, together with reasonable attorney's fees which may be awarded. Code § 59.1-68.3 (Cum.Supp.1978), in pertinent part, reads:
Action for damages or...
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...The Supreme Court of Virginia has held that the statute only applies to “non-oral” advertisements. See Henry v. R.K. Chevrolet, Inc., 219 Va. 1011, 254 S.E.2d 66, 68 (1979). Additionally, to recover under the statute, the plaintiff must establish that the advertisement caused “actual injury......
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...provision also establishes criminal liability, but § 59.1-68.3 creates a related civil cause of action.6 Henry v. R.K. Chevrolet, Inc. , 219 Va. 1011, 1013, 254 S.E.2d 66, 67 (1979). To plead a claim for false advertising, a plaintiff must show (1) an advertisement of any sort; (2) intent t......
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Maldonado v. Nutri/System, Inc.
...The only Virginia case to comment on the private cause of action created by sections 18.2-216 and 59.1-68.3 is Henry v. R.K. Chevrolet, Inc., 219 Va. 1011, 254 S.E.2d 66 (1979). Henry merely held that only written, and not oral, advertisements were actionable under these code sections. 219 ......
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11.2 Consumer Contracts
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