Sellinger v. Freeway Mobile Home Sales, Inc.

• Decision Date: 06 May 1974
• Docket Number: No. 11296--PR,11296--PR
• Citation: 110 Ariz. 573,521 P.2d 1119
• Parties: , 62 A.L.R.3d 161, 14 UCC Rep.Serv. 958 Sydney SELLINGER and Mary Sellinger, Appellants, v. FREEWAY MOBILE HOME SALES, INC., Topaz Industries, Harold Griffin and Juanita Griffin, Appellees.
• Court: Arizona Supreme Court

Page 1119

521 P.2d 1119

110 Ariz. 573, 62 A.L.R.3d 161, 14 UCC Rep.Serv. 958

Sydney SELLINGER and Mary Sellinger, Appellants, v. FREEWAY MOBILE HOME SALES, INC., Topaz Industries, Harold Griffin and Juanita Griffin, Appellees.

No. 11296--PR.

Supreme Court of Arizona, In Banc.

May 6, 1974.

Stuart Herzog, Tucson, for appellants.

Hirsch & Pakula, by C. Robert Pursley, Tucson, for appellees Freeway Mobile Home Sales, Inc. and Harold and Juanita Griffin.

May & Dees, by William R. Dees, Tucson, for Topaz Industries.

Gary K. Nelson, Atty. Gen., Phoenix, by William P. Dixon and Christopher D. C. Hossack, Asst. Attys. Gen., amicus curiae. STRUCKMEYER, Justice.

This action was brought to recover damages for the sale of a mobile home in which Topaz Industries was the manufacturer and Freeway Mobile Home Sales, Inc. was the seller. The Court of Appeals, Division 2, affirmed a judgment of the Superior Court in favor of appellees, 20 Ariz.App. 238, 511 P.2d 682. Opinion of the Court of Appeals vacated and judgment of the Superior Court reversed.

Appellants, Sydney and Mary Sellinger, husband and wife, are a retired couple, he a retired machinist and she a retired nurse. In September of 1970, they came to Tucson and decided to buy and live in a mobile home, although they had no previous experience with this type of living. They liked the floor plan of a home which had been placed on display at the Freeway Mobile Home Sales lot in Tucson; however, they could not completely inspect the mobile home before signing the purchase contract because it had not been completely set up, in that rugs were not laid, light fixtures were not up, the home was resting on jacks rather than being blocked and leveled and the doors were difficult to open. The trim and railing were on the floor and there was poor visibility due to bad lighting. They could, however, see the general floor plan and, hence, were able to obtain an idea of the size, room configuration and colors.

Many representations were made by the appellee, Harold Griffin and by his salesman. Among these were that the mobile home was made by a reputable manufacturer and by expert craftsmen of the highest qualify material, and that a year's service and repair went with each home and that all service and repairs would be taken care of immediately and for one year without charge. The Sellingers were quoted a purchase price of $12,650.00, unfurnished, and this is what they paid. The Sellingers also purchased a lot for $4,218.88, on which to place the mobile home and, in addition, they added a patio, porch and air conditioning unit for $4,653.25; $335.86 was paid for registration, taxes and insurance.

After the mobile home was delivered and the Sellingers had moved in, they encountered these difficulties:

1. Seven of the eight doors were out of line with the door frames or had inadequate hardware.

2. There were plumbing leaks into storage cabinets and onto the floor carpeting.

3. There were certain electrical hazards, which it is unnecessary to detail.

4. The roof leaked.

5. Wall studs were missing.

6. Plywood was not attached to the studs.

7. The wall trim was not as represented.

8. The drapes were improperly shaped.

9. Cabinets and drawers were not sanded and did not fit properly.

10. The Sellingers paid $50.00 extra to put in a stove with a self-cleaning oven. Instead of a free-standing stove, as was in the demonstrator, a drop-in type stove was installed with unfinished sides. Since it was shorter in height than a free-standing stove, it was propped up on 2 4 blocks, and since it was wider than the free-standing stove, it was wedged into place.

All the foregoing were reported by complaints to appellee Freeway, who made two nominal service calls and thereafter no longer responded to the Sellingers' calls. When the Sellingers complained to the Tucson Better Business Bureau, Freeway made an additional call, and the Sellingers were then told that this was the last service call because of their complaint to the Better Business Bureau.

After the filing of this lawsuit, Freeway communicated with the Sellingers, stating that the mobile home was defective and would require factory rebuilding, and told the Sellingers to contact the factory. It was established that the custom and practice in the mobile home industry regarding repairs was that the dealer makes the repairs; that if it is necessary to contact the factory, the dealer contacts the factory. The evidence was that the defective mobile home was worth only $7,500.00 as it stood, and other testimony was that it would take $2,000.00 to bring the home up to good condition. The Sellingers offered testimony that they suffered great aggravation and illness because of the condition of the home and the failure to comply with the purchase contract by properly remedying the defects.

Appellants brought their suit in four causes of action; first, for damages for breach of contract and failure to repair the mobile home; second, under Arizona's Consumer Fraud Act, A.R.S. § 44--1521 et seq., and Fraudulent Advertising Practices Act, § 44--1481, for deceptive practices; third, the damages for the negligent conduct of appellees; and fourth, for the negligent manufacture by Topaz Industries.

Count Two, predicated on the Arizona Consumer Fraud Act, was dismissed by the trial court for the reason that the Act did not provide a private right of action for the wrongful violation of its provisions. Judgment was entered in favor of appellants in the court below against Freeway Mobile Homes for breach of warranty in the sum of $500.00 and $190.00 for breach of implied warranty of fitness against Topaz Industries.

Appellants present two claims of error which we think are of a serious nature. They first urge that the Arizona Consumer Fraud Act and the Arizona's Fraudulent Advertising Practices Act create a private cause of action for deceptive practices and, second, that there was no evidence justifying the award of damages for only $690.00.

In 1967, by Article 7, A.R.S. §§ 44--1521 through 44--1534, the Legislature enacted what is known as the Consumer Fraud Act. Subsec. A of § 44--1522 thereof provides:

'The act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise whether or not any person has in fact been misled, deceived, or damaged thereby, is declared to be an unlawful practice.'

In interpreting statutes, a court will look to the intent of the Legislature. In re One 1965 Ford Mustang, 105 Ariz. 293, 463 P.2d 827 (1970); Employment Security Commission of Arizona v. Fish, 92 Ariz. 140, 375 P.2d 20 (1962). A court will consider the context of the statute, the language used, the subject matter, the effects and consequences, and the spirit and purpose of the law. Marquez v. Rapid Harvest Company, 89 Ariz. 62, 358 P.2d 168 (1960); State v. Stockton, 85 Ariz. 153, 333 P.2d 735 (1958).

The Consumer Fraud Act does not contain express language granting a private right of action. It provides by § 44--1524 that upon receipt of a complaint that a person has engaged in or is engaging in practices declared by the Act to be unlawful the Attorney General, when he believes it to be in the public interest, may make an investigation into any of such practices, and he may seek an injunction from the Superior Court prohibiting the continuation of such practices. By § 44--1528, the Attorney General may apply to the Superior Court for a receiver of the assets of a person who is engaged in unlawful practices if such person is about to conceal his assets or leave the State. Where a receiver has been appointed, a person who has suffered damages by reason of unlawful practices may participate with general creditors in the distribution of the assets. The Act, by § 44--1531 (since amended), provided that any person who wilfully and intentionally violated any provision of the article was guilty of a misdemeanor.

Insofar as the penal provision of the Act, in Arizona, by A.R.S. § 1--211(C), the rule of the common law that penal statutes shall be strictly construed has no application. Statutes shall be construed with the view to effect their object and promote justice. Moreover, statutes which are designed to redress existing grievances and introduce regulations conducive to the public good are remedial. Rookledge v. Garwood, 340 Mich. 444, 65 N.W.2d 785 (1954).

Although the Act does not specifically provide for a right of action against persons violating the provisions of the article, we believe inferentially such right of action is granted by § 44--1533. It provides:

'The provisions of this article shall not bar any claim against any person who has acquired any monies or property, real or personal, by means of any practice declared to be unlawful by the provisions of this article.'

Clearly the section quoted contemplates that a person who has been damaged by the practices declared to be unlawful may exert a claim by reason of such acts. It has been held that similar language in a...