Robinson v. Sunshine Homes, Inc.

• Decision Date: 10 September 2012
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.,107,621.,Nos. 107,617,s. 107,617
• Citation: 291 P.3d 628
• Parties: Kerri ROBINSON, Plaintiff/Appellee/Counter–Appellant, v. SUNSHINE HOMES, INC., an Alabama Corporation, Defendant/Appellant/Counter–Appellee, and Broadway Homes, an Oklahoma Company; Bruce Brown, Defendants/Appellees/Counter–Appellees, and Jeffery Goodrich; and Jack Meeks d/b/a Jack's Mobile Home Service, Defendants.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

291 P.3d 628

Kerri ROBINSON, Plaintiff/Appellee/Counter–Appellant,

v. SUNSHINE HOMES, INC., an Alabama Corporation, Defendant/Appellant/Counter–Appellee,andBroadway Homes, an Oklahoma Company; Bruce Brown, Defendants/Appellees/Counter–Appellees,andJeffery Goodrich; and Jack Meeks d/b/a Jack's Mobile Home Service, Defendants.

Nos. 107,617, 107,621.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

Court of Civil Appeals of Oklahoma, Division No. 1.

Oct. 29, 2010.

Certiorari Denied Sept. 10, 2012.

Appeal from the District Court of Kay County, Oklahoma; Honorable Leslie D. Page, Trial Judge.

AFFIRMED IN PART, REVERSED IN PART.

Rebecca Ann Farris, Farris Law Firm, Oklahoma City, Oklahoma, and Kenneth E. Holmes, Grace K. Yates, Holmes and Yates, Ponca City, Oklahoma, for Plaintiff/Appellee/Counter–Appellant.

John J. Gardner, Walt Brune, Northcutt, Clark, Gardner, Hron & Brune, Ponca City, Oklahoma, for Defendant/Appellant/ Counter–Appellee, Sunshine Homes, Inc.

Dorothy Lindsey Brown, John L. Scott, Esq., Enid, Oklahoma, for Defendants/Appellants/Counter–Appellees, Broadway Homes and Bruce Brown.

CAROL M. HANSEN, Judge.

¶ 1 In May 2006, Defendant, Broadway Homes ¹ [Broadway], a manufactured home dealer, ordered a manufactured home [home] from Sunshine Homes, Inc., [Sunshine], a manufacturer of manufactured homes. Sunshine transported the home in two halves, half A and half B. During the transport from Sunshine in Alabama to Broadway's sales lot in Edmond, Oklahoma, the trailer bearing half B had blow-outs on five of its nineteen tires. As a result of the flat tires, half B dragged continuously on a single axle for approximately 600 feet. At rest, the back of half B was sitting 10 to 12 inches lower than the front.

¶ 2 Jack Meeks [Meeks], owner of Jack's Mobile Home Service, arrived at the scene and assisted in fixing the flat tires and transporting the home to Broadway's sales lot. Broadway's office manager, Ms. Cornett, performed a “damage-on-delivery” inventory while the home was still in a disassembled state. Defendant, Bruce Brown [Brown], owner of Broadway, observed that the home had a “large amount of damage on delivery.”

¶ 3 Pursuant to Broadway's dealer arrangement with Sunshine, it was Sunshine's obligation to perform the repairs. On May 23, 2006, Ms. Cornett sent a fax to Sunshine's service department describing the damage to the home.² Sunshine performed repairs to the home.

¶ 4 In August 2006, Defendant, Jeffrey Goodrich [Goodrich] began working for Broadway as a salesperson. In late 2006, Plaintiff, Kerri Robinson, began to consider purchasing the Sunshine home. Goodrich was the only salesperson Plaintiff dealt with during her several visits to Broadway. Plaintiff specifically told Goodrich she needed and wanted a new home, not a used home.

¶ 5 In December 2006, when she purchased the home for $82,500.00, Goodrich expressly told her there was nothing wrong with the home. The Acknowledgment and Agreement executed by Plaintiff and representatives of Sunshine, and Broadway contained the following language:

2. ...PURCHASER further acknowledges that Modular Homes of the types sold to PURCHASER are sometimes damaged while in transit from the MANUFACTURER to the RETAILER'S sale location and repairs and adjustments are sometimes made to said MODULAR homes, which may include the PURCHASER's Modular Home. These repairs and adjustments are usually made by the MANUFACTURER and/or RETAILER of the home. With full knowledge of the above, PURCHASER represents to MANUFACTURER and RETAILER and their respective assigns that PURCHASER has visually inspected the Modular home in detail and is satisfied with the Modular Home and the appearance and condition of the Modular Home,....

¶ 6 Sunshine provided a one year written limited warranty warranting the home to be free from structural defects and covering structural components of the home, the supportive structure. Defendant Brown did not participate in the sale of the home, nor was he consulted prior to the sale. Plaintiff had not met him prior to the sale.

¶ 7 In January 2007, Broadway hired Meeks to deliver and install the home on Plaintiff's property in Kaw City, Kay County. The delivery of the home occurred without incident. After Meeks “set the house,” Plaintiff observed damage to the home. Plaintiff provided to Goodrich a list of the items of damage, and also faxed a list to Mr. Ballard, Sunshine's service manager. She received from Meeks a copy of the “accident report” and correspondence between Sunshine and Broadway regarding the earlier transit damage.

¶ 8 On March 21, 2007, Brown and Goodrich traveled to Plaintiff's property to assess the situation. Present were Plaintiff, her attorney, some family members, Meeks, and two repairmen from Sunshine. Brown negotiated with Mr. Ballard for Sunshine's repairmen to do the interior trim work on the home, in addition to Sunshine's limited warranty work. At Brown's request, Meeks re-set the home.

¶ 9 After Sunshine finished the trim work, the repairmen returned to do the limited warranty repairs. They worked for five days in April. In the midst of the repairs, Plaintiff filed a lawsuit against Sunshine, Broadway, Brown, Goodrich, and Meeks, d/b/a Jack's Mobile Home Service.

¶ 10 In her petition, among other causes of action, Plaintiff asserted a breach of express warranty [12A O.S.2001 § 2–313] against Sunshine, Broadway, Brown, and Goodrich [all Defendants]. She also asserted, “in the alternative,” a breach of implied warranty of merchantability [12A O.S.2001 § 2–314] against all Defendants. Further, Plaintiff asserted a fraud cause of action against all Defendants, alleging, among other things, the home “... was not ‘new’ in that it had been in a traffic accident during delivery from manufacturer to retailer.” Pursuant to 15 O.S.2001 § 752, Plaintiff also asserted all Defendants violated the Oklahoma Consumer Protection Act [the Act] by committing unfair or deceptive trade practice. Additionally, she asserted a negligence cause of action against all Defendants and Jack Meeks, d/b/a Jack's Mobile Home Service, alleging negligent installation of the home. Following discovery, Plaintiff dismissed her claim against Meeks.³

¶ 11 In June 2009, a four day trial was held. At the conclusion of Plaintiff's case, the trial court overruled Defendants' demurrers to Plaintiff's evidence. At the conclusion of all evidence, the trial court overruled Defendants' motions for a directed verdict, and sua sponte, decided not to issue a punitive damage instruction.

¶ 12 The jury returned a general verdict for Plaintiff against all Defendants, except Goodrich, for damages in the amount of $249,858.85, and a special verdict against all Defendants, except Goodrich, finding they had violated the Act. Sunshine filed a Motion for Judgment Notwithstanding the Verdict, and also a Motion for New Trial.

¶ 13 On September 16, 2009, the trial court entered the Final Journal Entry of Judgment in accordance with the finding by the jury in their general verdict, and granted judgment jointly and severally against Sunshine, Broadway, and Brown in the sum of $249,858.85, with post-judgment interest [12 O.S.2001 § 727.1] commencing with the filing of the journal entry. It also granted judgment against Sunshine, Broadway, and Brown, in accordance with the finding by the jury in their special verdict that they violated the Act.

¶ 14 Additionally, the trial court granted Plaintiff judgment jointly and severally against Sunshine, Broadway, and Brown in the sum of $10,091.30 for her costs, with post-judgment interest. It also granted her judgment against Sunshine, Broadway, and Brown in the sum of $54,126.58, as attorney fees for Attorneys Yates and Holmes, with post-judgment interest, and in the sum of $26,880.00 as attorney fees for the Farris Law Firm with post-judgment interest.⁴

¶ 15 The trial court entered an Order denying Sunshine's Motion for Judgment Notwithstanding the Verdict and its Motion for New Trial. Later, the trial court entered an Order wherein, among other things, the trial court overruled Plaintiff's request for prejudgment interest and for penalties under the Act.

¶ 16 Sunshine appeals [# 107,617] the September 16, 2009, Final Journal Entry of Judgment and the October 19, 2009, Order denying its Motion for New Trial. Broadway and Brown appeal [# 107,621] the September 16, 2009, Final Journal Entry of Judgment. The Supreme Court consolidated the appeals under # 107,617 as the surviving appeal number.

¶ 17 Plaintiff [Counter–Appellant] appeals the trial court's decision refusing to submit the issue of punitive damages to the jury, and the October 21, 2009, Order overruling her post-trial request for prejudgment interest and for penalties under the Act.⁵

¶ 18 The Supreme Court granted leave to file brief amicus curiae to Manufactured Housing Association of Oklahoma [MHAO]. The Supreme Court stated MHAO's “[b]rief must, however, be strictly limited to issues raised by parties and in full compliance with Oklahoma Supreme Court Rule 1.12.”

I. APPEAL OF SUNSHINE, BROADWAY AND BROWN

¶ 19 This Court, initially, will address each Defendant's arguments with regard to liability under the Act. Pursuant to 15 O.S.2001 § 753:

A person engages in a practice which is declared to be unlawful under the Oklahoma Consumer Protection Act, Section 751 et seq. of this title, when, in the course of the person's business, the person:

...

6. Represents, knowingly or with reason to know, that the subject of a consumer transaction is original or new if the person knows that it is reconditioned, reclaimed, used, or secondhand;

...

20. Commits an unfair or deceptive trade practice as defined in Section 752 of this title.⁶

¶ 20 It is undisputed no one told Plaintiff about the transit damage to the home. There was testimony it is common in the industry not to disclose to the ultimate consumer minor, cosmetic damage to a...