State v. Ralph Williams' North West Chrysler Plymouth, Inc.

• Decision Date: 17 May 1973
• Docket Number: No. 42407,42407
• Parties: , 59 A.L.R.3d 1209 The STATE of Washington, Appellant, v. RALPH WILLIAMS' NORTH WEST CHRYSLER PLYMOUTH, INC., et al., Respondents.
• Court: Washington Supreme Court

Page 265

82 Wn.2d 265

510 P.2d 233, 59 A.L.R.3d 1209

The STATE of Washington, Appellant, v. RALPH WILLIAMS' NORTH WEST CHRYSLER PLYMOUTH, INC., et al Respondents.

No. 42407.

Supreme Court of Washington, En Banc.

May 17, 1973.

Rehearing Denied July 30, 1973.

Slade Gorton, Atty. Gen., Seattle, Barbara Rothstein, Asst. Atty. Gen., for appellant.

Jennings P. Felix & Associates, Jennings P. Felix, Seattle, for respondents.

UTTER, Associate Justice.

The State of Washington appeals from a judgment of dismissal entered by the trial court prior to the taking of any testimony. This judgment dismissed actions brought by the state under the Consumer Protection Act (RCW 19.86), the Retail Installment Sales Act (RCW 63.14), and the Unfair Motor Vehicle Business Practices Act (RCW 46.70).

The Attorney General, in the name of the State of Washington, commenced suit against Ralph Williams' North West Chrysler Plymouth, Inc., (North West), a Washington corporation; Ralph Williams, Inc., (RWI), a California corporation; Ralph Williams, individually and as corporate president of North West and RWI, a California resident; and Robert Friedman, individually and as corporate vice president and general manager of North West, a former resident of King County, Washington. The state sought an adjudication that certain acts of the defendants violated the previously mentioned laws, an order restraining defendants from engaging in the practices complained of, civil penalties, and restitution for many Washington residents harmed by the defendants' practices.

The trial court concluded (1) that the state's action was moot because North West was 'an inactive, defunct, corporate shell'; (2) that an injunction may not lie because the defendants were unlikely to return to business in this state; (3) that the civil penalty claim fails because civil penalties are dependent upon the entry of an injunction and no injunction may lie; (4) that the restitution remedy for aggrieved citizens is unconstitutional; and (5) that the defendants are to be awarded attorney's fees because they are 'prevailing parties'.

We reverse the trial court on all grounds and remand the case for trial.

The state's complaint alleges many unfair and deceptive practices, of which the following is a summary.

It was alleged the defendants' customary prices were not lower than those of competing dealers, contrary to their advertising, nor were they 'low or discount prices'. In fact, specific prices advertised were not representative or illustrative of defendants' usual range of prices. Particular cars with undisclosed or patent defects were offered at attractive prices for the purpose of attracting customers and then switching interested persons to other cars. Cars were often not bona fide offers of sale due to their defects. Some cars which were advertised for sale had in fact already been sold, and the prices of identical or similar remaining cars were greatly in excess of those which had been advertised.

The defendants misrepresented the price at which they would sell vehicles through various deceptive advertising and sale practices. Sticker prices did not include new car preparation and delivery charges. Trade-in allowances were lower than were represented. Salesmen refused to give the total price of the car and referred only to monthly payments. Out-of-date blue books were used to inflate values to the dealer. Payments which were represented to be acceptable, were less than those later contractually demanded.

Cars were offered on terms represented as more favorable than those available at other dealers when, in fact, such terms could not be and were not obtained. When negotiating a car purchase with a customer, defendants would obtain the customer's car, cash, check, or power of attorney and refuse to return such items in the event the customer decided not to purchase the car.

A sales system was designed to purposely confuse, mislead and deceive the customer by various means, including the making of specific false and deceptive promises which could not be and were not fulfilled. Customers were induced unnecessarily to purchase buyer's life and disability insurance with defendant as a beneficiary. Finance charges were not disclosed. The total prices charged for cars and services were unconscionable and illegal. When the defendants sold repossessed cars, they failed to account to the buyers if the sale price was in excess of the amount due.

The trial court reached its conclusion on a motion, prior to taking testimony in the case, and this appeal will be treated in the same manner as an appeal from an order granting summary judgment. Burndy Corp. v. Cahill, 301 F.2d 448 (8th Cir. 1962); Highland Supply Corp. v. Reynolds Metals Co., 327 F.2d 725, 729--730 (8th Cir. 1964); Preston v. Duncan, 55 Wash.2d 678, 349 P.2d 605 (1960); Hudesman v. Foley, 73 Wash.2d 880, 441 P.2d 532 (1968). See Trautman, Motions for Summary Judgment, 45 Wash.L.Rev. 1, 23--24 (1970). A complaint should only be dismissed if it appears beyond doubt that the state cannot prove any set of facts in support of their claim. The state should not be deprived of trial on disputed issues of fact or disputed inferences from agreed facts. Fleming v. Stoddard Wendle Motor Co., 70 Wash.2d 465, 423 P.2d 926 (1967); Meadows v. Grant's Auto Brokers, Inc., 71 Wash.2d 874, 431 P.2d 216 (1967).

The uncontested facts in this case are that North West ceased selling cars in the state on December 30, 1970 when it was closed by the State Department of Revenue for failing to pay excise taxes, collected by it from its customers, which were due and owing the state. The trial court concluded there was no question of fact or even a 'substantial claim of likelihood that North West would engage in business in the State of Washington thereafter and therefore decided the entire case was moot' as to all defendants. The affidavits, exhibits and other material submitted in this case establish that North West, after December 30, 1970, retained many characteristics of a viable, active corporation and that all other defendants are in existence.

As of September 15, 1971, North West had paid corporate license fees through July 1, 1972. Although North West appeared to be without assets, affidavits on file raised an issue of fact as to whether money was sent, by transferring funds, to out-of-state corporations owned by Ralph Williams. An issue of fact was also raised as to whether North West knowingly arranged its affairs to cause a default in state taxes and the resulting State Department of Revenue closure.

North West is a plaintiff in a federal antitrust action and has taken steps to settle lawsuits in which it is a defendant. Although North West executed an assignment of stock to Chrysler Credit Corporation to secure a loan, an issue of fact is raised by affidavits as to whether the certificates had in fact been transferred or foreclosed upon and whether Chrysler Credit Corporation could in any event vote or control the shares.

On May 27, 1971, Ralph Williams, as president of North West, entered a consent order with the Federal Trade Commission concerning certain advertising practices and on January 5, 1971, involved North West as a plaintiff in a lawsuit, alleging it to be a Washington corporation. Depositions were taken in the latter case as late as January 13, 1972.

On September 28, 1971, a prospectus was issued for RWI which states that Ralph Williams, personally, and RWI would be founders of a new nationwide corporation interested in acquiring businesses throughout the country, primarily relating to automobile leasing or car rentals but not necessarily limited thereto. The prospectus indicates that 'Mr. Williams name in the recent past has also been associated with automobile dealerships controlled by him in . . . Seattle, Washington . . .' On December 29, 1971, Ralph Williams filed a suit asking for $350,000 damages for allegedly libelous statements harming him in the state of Washington. Testimony indicates that in spite of extensive litigation with Chrysler Credit Corporation, Ralph Williams owns a corporation holding a franchise with Chrysler-Plymouth and also owns a Ford Franchise. RWI has filed suit in the State of Washington against Chrysler Credit Corporation as assignee of North West claims.

In view of these factual questions, we cannot agree that the pleadings, affidavits and other materials in the file establish as a matter of law that North West was an 'inactive, defunct corporation' and that the actions against it and all other defendants were moot.

To determine whether an injunction may lie against defendants who are not acting in the manner complained of by the state at the time of trial, we first look to the Consumer Protection Act, RCW 19.86.920, which provides:

in construing this act, the courts be guided by the interpretation given by the federal courts to the various federal statutes dealing with the same or similar matters . . .

Therefore, in deciding injunction issues under the Consumer Protection Act, we are statutorily instructed to look to appropriate federal authority for guidance. Although we are not conclusively bound by the relevant federal cases, we find their reasoning persuasive.

The state contends the defendants did not Voluntarily cease the complained of practices, but that they denied their illegality and continued the practices. Under such circumstances, a dismissal of a claim for an injunction on the grounds of a discontinuance of illegal practices requires consideration of all facts and circumstances. Prime importance is to be given to the timing, volition and general attitude of the respondents in their cessation. Oregon-Washington Plywood Co. v. Federal Trade Comm'n, 194 F.2d 48 (9th Cir. 1952); Benrus Watch Co. v. Federal Trade Comm'n, 352 F.2d 313, 322 (8th Cir. 1965), cert. denied, 384 U.S. 939, 86 S.Ct. 1457, 16 L.Ed.2d 538 (1966).

Mootness exists in the...