Keyes v. Bollinger

• Decision Date: 16 February 1982
• Docket Number: No. 2750458,No. 10022-0-I,D,2750458,10022-0-I
• Citation: 31 Wn.App. 286,640 P.2d 1077
• Parties: Steven A. KEYES, Respondent, v. Robert E. BOLLINGER, Jr., and Christine M. Bollinger, his wife, Appellants, and Safeco Insurance Company Bondefendant.
• Court: Washington Court of Appeals

Page 286

31 Wn.App. 286

640 P.2d 1077

Steven A. KEYES, Respondent, v. Robert E. BOLLINGER, Jr., and Christine M. Bollinger, his wife, Appellants and Safeco Insurance Company Bond No. 2750458, Defendant.

No. 10022-0-I.

Court of Appeals of Washington, Division 1.

Feb. 16, 1982.

Bruce E. Jones, Sellers & Jones, Edmonds, for appellants.

Michael S. Gillie, Yothers & Kostakos, Seattle, for respondent.

JAMES, Chief Judge.

Plaintiff Steven A. Keyes appeals the entry of judgment in favor of defendant Robert E. Bollinger as to that portion of Keyes' action which alleged a violation of the Consumer Protection Act. Bollinger appeals and assigns error to the entry of certain "contingent" findings of fact and conclusions of law. These appeals follow our remand in Keyes v. Bollinger, 27 Wash.App. 755, 621 P.2d 168 (1980). The essential facts are stated therein.

On remand, the trial judge carefully reviewed the inconsistency which we found to exist between the findings of fact and his conclusion that the Consumer Protection Act did not apply. The trial judge entered additional findings of fact including the following:

That while it is true that delays in estimating the completion or the repair of Plaintiff's and the other houses ... could conceivably be interpreted as an unfair or deceptive practice, the Court does not find it to be so by the Defendant in this case because of the numerous circumstances over which the Defendant had no control which caused delays in completion or repairs, such as: Bad weather conditions, delay by subcontractors, power, water and sewer utility problems, easements and legal problems related to set backs, etc., equipment malfunctions, insurance claims, financing delays, negotiations with owners, plan changes by owners, injuries to co-workers or partner, and unavailable materials.

Finding of fact No. 26A, in part. The trial judge concluded:

Due to the multiplicity of causes of delays in completion or in making repairs over which the Defendant had no control, in addition to his failure to meet estimates for which the Defendant had no explanation, the Court does not find that Defendant's estimates as to when completion would be accomplished or repairs would be made were deceptive or unfair.

Finding of fact No. 26A. The trial judge, however, also made appropriate "contingent" findings of fact as to Keyes' damages for alleged violations of the Consumer Protection Act, which he would enter if the Court of Appeals were to conclude the Consumer Protection Act had been violated.

Preliminarily, Bollinger contends the trial judge's "finding" that the facts do not give rise to a Consumer Protection Act claim is reviewable only under the substantial evidence test of Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 343 P.2d 183 (1959). We do not agree.

A finding that a defendant in a Consumer Protection Act case did or did not engage in certain conduct is reviewable under the substantial evidence test. Grayson v. Nordic Constr. Co., 92 Wash.2d 548, 559 P.2d 1271 (1979). But, as stated in Fisher v. World-Wide Trophy Outfitters, 15 Wash.App. 742, 743-44, 551 P.2d 1398 (1976), "(t)he determination of whether a particular statute applies to a factual situation is a conclusion of law, and not a finding of fact." Consequently, the question of whether particular actions gave rise to a violation of the Consumer Protection Act is reviewable as a question of law. Fisher v. World-Wide Trophy Outfitters, supra. See Lightfoot v. MacDonald, 86 Wash.2d 331, 337, 544 P.2d 88 (1976).

The Consumer Protection Act declares unlawful "(u)nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce". RCW 19.86.020. The Act's prohibitions are, however, limited to those practices which are "injurious to the public interest," RCW 19.86.920. A Consumer Protection Act claim may be based on a per se violation of a statute or on unfair or deceptive practices unregulated by statute but involving the public interest. Anhold v. Daniels, 94 Wash.2d 40, 614 P.2d 184 (1980); Lidstrand v. Silvercrest Indus., 28 Wash.App. 359, 623 P.2d 710 (1981).

Plaintiffs claiming a per se violation of the Consumer Protection Act must show

(1) the existence of a pertinent statute; (2) its violation; (3) that such violation was the proximate cause of damages sustained; and (4) that they were within the class of people the statute sought to protect.

Dempsey v. Joe Pignataro Chevrolet, Inc., 22 Wash.App. 384, 393, 589 P.2d 1265 (1979). Keyes contends Bollinger's failure to obtain a final inspection and approval as required by Seattle ordinance constitutes a per se violation of the Act. The trial judge concluded that the failure to obtain a final inspection is not material to the case. We agree.

Keyes' theory is that the absence of such an inspection (and concomitant approval by the City) is indicative of code violations impairing the "structural integrity" of his house. We discern this theory to be an attempt to claim specific building code violations without proving the existence of a pertinent code provision, as required by Dempsey. We also observe that Keyes has not proven any compensable damage proximately caused by Bollinger's failure to obtain an inspection, independent of the asserted building code violations.

For Consumer Protection Act claims not premised upon a specific statutory violation, the requisite

presence of public interest is demonstrated when ... (1) the defendant by unfair or deceptive acts or practices in the conduct of trade or commerce has induced the plaintiff to act or refrain from acting; (2) the plaintiff suffers damage brought about by such action or failure to act; and (3) the defendant's deceptive acts or practices have the potential for repetition.

Anhold v. Daniels, supra 94 Wash.2d at 46, 614 P.2d 184. Keyes contends Bollinger violated the Consumer Protection Act by making numerous representations as to completion and repair dates which he did not meet.

The trial judge found that Bollinger "made a number of estimates as to when the house would be completed and the house was not ready when estimated." Finding of fact No. 8. Bollinger first gave Keyes an estimated completion date of late March to early April when Keyes purchased the house; Keyes moved in on July 25. The trial judge found that Bollinger "made repeated estimates as to when the repairs would be made" and that "the repairs were not made in a prompt and timely manner and as a result some of the defects became worse." Findings of fact Nos. 12, 13. The trial judge further found that Bollinger "made repeated estimates as to when the (houses of other buyers) would be ready, and that the houses were not ready when estimated for (the buyers)." Finding of fact No. 23. Bollinger also "made repeated estimates as to when the defects (in the other buyers' homes) would be fixed but usually the defects would not be fixed when estimated." Finding of fact No. 24. Bollinger's failures to comply with these representations or "estimates" were neither isolated occurrences nor de minimis in degree. Indeed, the sheer number of unmet representations of completion and repair indicates Bollinger made his "estimates" without discernible likelihood he could or would provide the promised performance.

Bollinger's primary contention is that his "estimates" as to completion and repair dates could not be "unfair or deceptive" in view of the many circumstances which the trial judge found to have influenced the delays in completion and repair. We conclude that such representations or "estimates" do constitute "unfair or deceptive practices" under these circumstances.

A contractor does not provide "estimates" or representations as to completion or repair dates merely to be helpful to the purchaser, but to influence the purchaser to buy the contractor's product or to rely upon the contractor's services to remedy defects in the product. The purchaser will likely rely upon such "estimates." The overly casual or unfounded "estimate" thus entails a foreseeable risk of injury to the purchaser.

Full compliance with such representations or "estimates" may be prevented by many circumstances, such as those found by the trial judge to exist here. But to the extent these circumstances negate a conclusion that Bollinger acted with intent or design to engage in unfair or deceptive conduct, they are irrelevant. Proof of a defendant's intent or design to engage in unfair or deceptive practices is not required; the acts or practices need have only a tendency or capacity to deceive a substantial portion of the purchasing public. Keyes v. Bollinger, supra; Tallmadge v. Aurora Chrysler Plymouth, Inc., 25 Wash.App. 90, 605 P.2d 1275 (1979); Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wash.App. 39, 554 P.2d 349 (1976); Fisher v. World-Wide Trophy Outfitters, supra. To the extent reasonably foreseeable circumstances, such as "typical wet working weather" and the contractor's other commitments, may affect a contractor's ability to honor his representations, they are matters far more within the contractor's knowledge and experience than within the purchaser's knowledge and experience. If such "estimates" as made possess a tendency or capacity to deceive, albeit for reasons not directly controlled by a defendant, it serves the protective purposes of the Consumer Protection Act to impose liability. See Fisher v. World-Wide Trophy Outfitters, 15 Wash.App. 742, 551 P.2d 1398 (1976) (representations that hunters were assured of chances to shoot specific animals on a big game hunt).

We hold that a contractor engages in an "unfair or deceptive" act by "estimating" or representing probable completion or repair dates to purchasers, with which "estimates" he is unable to substantially comply due to reasons which should be reasonably foreseeable in light of the contractor's knowledge and experience. ¹ We further hold that where the evidence shows the...