Shaw v. Aurora Mobile Homes & Real Estate, Inc.

• Decision Date: 12 August 1975
• Docket Number: No. 74--452,74--452
• Citation: 36 Colo.App. 321,539 P.2d 1366
• Parties: Charles E. SHAW et al., Plaintiffs-Appellants, v. AURORA MOBILE HOMES AND REAL ESTATE, INC., a Colorado Corporation, Defendant, Vintage Homes of Montezuma, Inc., a/k/a Vintage Homes, Inc., a/k/a Vintage Mobile Homes, Inc., a Georgia Corporation, and Western Surety Company, a South Dakota Corporation, Defendants-Appellees. . III
• Court: Colorado Court of Appeals

Page 1366

539 P.2d 1366

36 Colo.App. 321

Charles E. SHAW et al., Plaintiffs-Appellants, v. AURORA MOBILE HOMES AND REAL ESTATE, INC., a Colorado

Corporation, Defendant,

Vintage Homes of Montezuma, Inc., a/k/a Vintage Homes, Inc.,

a/k/a Vintage Mobile Homes, Inc., a Georgia

Corporation, and Western Surety Company,

a South Dakota Corporation,

Defendants-Appellees.

No. 74--452.

Colorado Court of Appeals, Div. III.

Aug. 12, 1975.

Gerald Himelgrin, Denver, for plaintiffs-appellants.

Morrato, Gueck & Colantuno, p.C., James L. Hammer, Denver, for defendant-appellee Vintage Homes of Montezuma, Inc.

Grant, Shafroth, Toll & McHendrie, P.C., John N. Dahle, Denver, for defendant-appellee Western Surety Co.

STERNBERG, Judge.

Plaintiffs, owners of three mobile homes, alleging damages as a result of defects in the homes, sued defendants, Aurora Mobile Homes and Real Estate, Inc., the dealership from which they purchased the homes; Western Surety Company, alleged to be the bonding agency for Aurora Homes; and Vintage Homes of Montezuma, Inc., the manufacturer. Western Surety moved to dismiss on the ground that the complaint failed to state a claim against it upon which relief could be granted. Vintage Homes, a Georgia corporation with its principal place of business in Texas, also moved to dismiss, on grounds that it was not subject to the court's jurisdiction under the 'long arm statute,' § 13--1--124, C.R.S.1973. After a hearing, the court granted both motions and entered orders pursuant to C.R.C.P. 54(b). Plaintiffs appeal. We affirm the dismissal of Western Surety, but reverse the dismissal of Vintage Homes.

The Shaws, Blodgetts, and Pates, plaintiffs, purchased mobile homes from defendant Aurora Homes, respectively, on June 8, June 11, and August 15, 1973. The three homes were 65 feet long and 14 feet wide, were located in different mobile home parks in Colorado, and were used for residential purposes. Premised on allegations that the homes as purchased contained numerous defects which were uncorrected by the dealer and manufacturer, plaintiffs filed this suit based on alleged breach of warranty, breach of contract, negligence, and strict liability.

I.

Plaintiffs asserted in their complaint that Aurora Homes is a motor vehicle dealer within the definition of § 12--6--102(13), C.R.S.1973, and was bonded as a motor vehicle dealer by Western Surety in the amount of $15,000 pursuant to § 12--6--111, C.R.S.1973. They contend that the said bond covers Aurora's activities in the sale of these mobile homes, and therefore that the complaint does state a claim against Western Surety upon which relief can be granted. Western Surety, on the other hand, contends that the bond does not apply to the subject matter of the lawsuit since mobile homes are not motor vehicles within the definition of the applicable statutes. We agree with the surety company.

The pertinent definitions lie within the statute dealing with vehicles and traffic, as follows:

"Motor vehicle' means any self-propelled vehicle which is Designed primarily for travel on the public highways and which is generally and commonly used to transport persons and property over the public highways.'

Section 42--1--102(46), C.R.S.1973. (emphasis supplied)

'Movable structure' means any wheeled vehicle exceeding either eight feet in width or thirty-two feet in length excluding towing gear and bumpers, without motive power, which is Designed and commonly used for occupancy by persons for residential purposes, in either temporary or permanent locations, and which may be drawn over the public highways by a motor vehicle.' Section 42--1--102(82) (b), C.R.S.1973. (emphasis supplied)

The statute dealing with regulation of automobile dealers provides as follows:

"Motor vehicle' means every vehicle intended Primarily for use and operation on the public highways which is self-propelled and every vehicle intended primarily for operation on the public highways which is not driven or propelled by its own power but which is designed to be attached to or become a part of or to be drawn by a self-propelled vehicle, not including farm tractors and other machines and tools used in the production, harvesting, and care of farm products.' Section 12--6--102(12), C.R.S.1973. (emphasis supplied)

It is clear that the three mobile homes in the instant case fall with the statutory definition of 'movable structure.' This definition recognizes the general or common use of the product as being for residential purposes. A motor vehicle, on the other hand, under both definitions quoted above, is designed primarily for travel on the public highways. We cannot, by any stretch of the statute or imagination, consider these movable structures to be 'motor vehicles.' A '(f)orced, subtle, strained or unusual interpretation should never be resorted to where the language is plain, its meaning is clear, and no absurdity is involved.' Harding v. Industrial Commission, Colo., 515 P.2d 95.

State v. Modern Trailer Sales, Inc., 175 Colo. 296, 486 P.2d 1064, includes mobile homes in the definition of motor vehicles. However, we do not believe that case determinative here. At the time it was decided, the court relied on the definition of motor vehicles found in C.R.S.1963, 13--6--2(2), which lists 'trailer coaches' in the definition of motor vehicle. That statute has been amended and no longer lists trailer coaches within that definition. Instead, trailer coaches, mobile homes, and movable structures are grouped together in a separate definition of wheeled vehicles 'for residential purposes.' See § 42-- 1--102(82), C.R.S.1973. Moreover, Modern Trailer Sales arose under a sales tax statute and deals only with revenue the state is entitled to receive from the sale of 'a motor Or other vehicle for which registration is required . . ..' (emphasis supplied) Section 39--26--113, C.R.S.1973. Thus, since Modern Trailer Sales...