Quinn v. Cherry Lane Auto Plaza, Inc.

• Decision Date: 22 December 2009
• Docket Number: No. 27418-7-III.,27418-7-III.
• Parties: Rob QUINN, Appellant, v. CHERRY LANE AUTO PLAZA, INC., a Washington Corporation; Tim McKenna and Jane Doe McKenna, husband and wife; Michael D. Lilley and Sonia M. Lilley, husband and wife; and Western Surety Company, a foreign Corporation, Respondents.
• Court: Washington Court of Appeals

225 P.3d 266

153 Wash.App. 710

Rob QUINN, Appellant, v. CHERRY LANE AUTO PLAZA, INC., a Washington Corporation; Tim McKenna and Jane Doe McKenna, husband and wife; Michael D. Lilley and Sonia M. Lilley, husband and wife; and Western Surety Company, a foreign Corporation, Respondents.

No. 27418-7-III.

Court of Appeals of Washington, Division 3.

December 22, 2009.

Tonya R. Hanson, Hanson Law Offices P.S., Alan Lynn McNeil, Attorney at Law, Spokane, WA, for Appellant.

John P. Bowman, Keefe Bowman Bruya PS, Spokane, WA, for Respondent.

KORSMO, J.

¶ 1 The trier-of-fact did not find Rob Quinn's evidence compelling and entered a judgment for the defendants. Mr. Quinn appeals. This court does not reweigh evidence and make its own factual determinations. Accordingly, the judgment is affirmed.

FACTS

¶ 2 This case revolves around Mr. Quinn's efforts to purchase a used 2003 Chevrolet Silverado truck from respondent Cherry Lane Auto Plaza, Inc. (Cherry Lane). Michael Lilley purchased the vehicle at auction for Cherry Lane. The odometer cluster did not properly illuminate, so a replacement cluster was ordered from a used parts dealer on December 21, 2006. Mr. Lilley planned to have the replacement cluster substituted and the odometer reset by an outside business to reflect the correct mileage. Ten days later Mr. Lilley suffered a heart attack and was hospitalized until January 17, 2007.

¶ 3 While Mr. Lilley was out, the replacement part arrived and was installed by Discount Auto, a business owned by Cherry Lane, instead of by the outside firm. The odometer was not reset and reflected 26,814 miles instead of the vehicle's actual 84,901 miles. Discount Auto returned the Silverado to Cherry Lane, where it was parked on a section of the lot not normally used for selling vehicles. The vehicle was marked "for sale."

¶ 4 Mr. Quinn visited the dealership on January 25, 2007, and saw the Silverado. He wanted to buy it, but could not reach a deal that included acceptable monthly payment terms. He left the lot. Shortly after he returned home, Mr. Quinn received a phone call from Tim McKenna, finance manager and acting general manager of Cherry Lane. Mr. Quinn agreed to return to Cherry Lane that evening.

¶ 5 He and McKenna reached an agreement. Mr. Quinn would trade in four operable vehicles and produce title for them within five days of the Silverado being picked up.¹ The sales agreement also provided that Cherry Lane could demand return of the Silverado if the lending institution refused to finance the purchase. The odometer disclosure statement prepared as part of the sales paperwork represented the vehicle's mileage as 26,814. Mr. Quinn drove away with the Silverado.

¶ 6 Mr. McKenna did not know that the odometer statement was incorrect. The listed mileage was within the expected range for the age of the vehicle, which was in overall good condition. The actual mileage information was available at the dealership, but sales staff did not normally access the information in accordance with Cherry Lane's internal business practices. It was also the practice at other local dealers that similar internal documents were not typically available to sales staff.

¶ 7 Mr. Lilley returned to work and learned of the sale—and the incorrect odometer reading—shortly after Mr. Quinn took possession of the Silverado. He advised Mr. McKenna of the facts. Mr. McKenna informed the bank the following day of the odometer discrepancy and the financing was cancelled. Mr. Lilley also directed Mr. McKenna to inform Mr. Quinn and have the Silverado returned and, if necessary, cancel the transaction.

¶ 8 Mr. McKenna attempted to contact Mr. Quinn by telephone, but was unable to reach him until January 29. He apologized to Mr. Quinn and offered to cancel the transaction and renegotiate. He also asked Mr. Quinn to bring the Silverado in so that the odometer could be reset. Mr. Quinn was offered the use of any vehicle on the lot while the work was done. Further negotiations ensued at the dealership that day, but no agreement was reached. Mr. Quinn departed without leaving the Silverado.²

¶ 9 Mr. McKenna was unable to reach him the following day. On the evening of January 31, Cherry Lane repossessed the Silverado by use of a towing company. The dealership stored Mr. Quinn's personal belongings, but he declined to retrieve them or his traded-in vehicles. At the time of the repossession, Mr. Quinn had turned over two of the four trade-in vehicles. He also had not provided title to one of them.

¶ 10 Mr. Quinn filed suit March 12, 2007. A five-day bench trial was held in June, 2008. The following month the court issued a memorandum opinion ruling in favor of the defendants and dismissing all causes of action. The court reasoned that Cherry Lane's actions showed no intent to deceive or defraud Mr. Quinn under the state and federal odometer laws and there was no completion of the vehicle sale due to the failure to turn over four working vehicles with valid titles. The court expressly found Mr. McKenna's testimony about the dealings was more credible than Mr. Quinn's version. Written findings of fact and conclusions of law were entered August 22. Mr. Quinn then timely appealed to this court.

ANALYSIS

¶ 11 The appellant raises several statutory claims relating to odometers and dealer practices, including a claim for conversion of personal property. The bench verdict disposes of most claims, and the court's legal determination that the sale was never completed resolves the others.

Federal Odometer Statute

¶ 12 Federal law requires one who transfers a vehicle to another to disclose known irregularities in the odometer reading. 49 U.S.C. § 32705. A private right of action is created in 49 U.S.C. § 32710:

(a) Violation and amount of damages. A person that violates this chapter or a regulation prescribed or order issued under this chapter, with intent to defraud, is liable for 3 times the actual damages or $1,500, whichever is greater.

(b) Civil actions. A person may bring a civil action to enforce a claim under this section in an appropriate United States district court or in another court of competent jurisdiction. The action must be brought not later than 2 years after the claim accrues. The court shall award costs and a reasonable attorney's fee to the person when a judgment is entered for that person.

(Emphasis added.)

¶ 13 Case law confirms the plain meaning of the statute. A civil action is available only if the purchaser establishes that the transferor acted with intent to defraud. E.g., Suiter v. Mitchell Motor Coach Sales, Inc., 151 F.3d 1275, 1282 (10th Cir. 1998).

¶ 14 The trial court found that Cherry Lane did not act with intent to defraud and, thus, denied recovery under the statute. Mr. Quinn argues that the dealership's actual knowledge of the correct odometer reading should be imputed to its sales staff and that intent to defraud should then be found as a matter of law. While we agree that knowledge can be imputed to the sales staff, we disagree that this court can find fraudulent intent as a matter of law. The basic problem with appellant's argument is that it is directed to the wrong court.

¶ 15 Intent is a factual determination. "Whether one intended, at a specified time, to defraud another of his property is a question of fact to be resolved by the trier of the facts." State v. Konop, 62 Wash.2d 715, 718, 384 P.2d 385 (1963); accord, State v. Etheridge, 74 Wash.2d 102, 109, 443 P.2d 536 (1968); State v. Bryant, 73 Wash.2d 168, 171, 437 P.2d 398 (1968); State v. Smithers, 67 Wash.2d 666, 669, 409 P.2d 463 (1965).

¶ 16 The trial court's verdict here brings into play very well-settled law. The function of the appellate court is to review the action of the trial courts. Appellate courts do not hear or weigh evidence, find facts, or substitute their opinions for those of the trier-of-fact. Instead, they must defer to the factual findings made by the trier-of-fact. See, e.g., Thorndike v. Hesperian Orchards, Inc., 54 Wash.2d 570, 572, 575, 343 P.2d 183 (1959). "Judgment as to the credibility of witnesses and the weight of the evidence is the exclusive function of the jury." State v. Smith, 31 Wash.App. 226, 228, 640 P.2d 25 (1982).

¶ 17 It is one thing for an appellate court to review whether sufficient evidence supports a trial court's factual determination. That is, in essence, a legal determination based upon factual findings made by the trial court. In contrast, where a trial court finds that evidence is insufficient to persuade it that something occurred, an appellate court is simply not permitted to reweigh the evidence and come to a contrary finding. It invades the province of the trial court for an appellate court to find compelling that which the trial court found unpersuasive. Yet, that is what appellant wants this court to do. There was conflicting evidence in this case. The trial judge weighed that conflicting evidence and chose which of it to believe. That is the end of the story.

¶ 18 The testimony at trial with respect to intent to defraud illustrates the matter. There was testimony that sales personnel did not have access to internal dealer information about a vehicle. Coupled with evidence that the dealership disclosed an incorrect reading, a trier-of-fact justifiably could infer that Cherry Lane management intended to defraud a purchaser by keeping its own sales staff in the dark about the correct mileage.

¶ 19 There was also evidence to the contrary. Immediately upon discovering the error, Cherry Lane attempted to contact Mr. Quinn and the bank handling the financing. Its actions in disclosing the problem and offering alternatives to Mr. Quinn could easily convince a trier-of-fact that only an innocent error occurred and that Cherry Lane was not trying to benefit from the incorrect mileage reading.

¶ 20 The trial court accepted the second scenario. It was entitled to do so. More importantly, this court is not...