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Simonsen v. Sandy River Auto, LLC

Court of Appeals of Oregon

February 7, 2018

Kyle SIMONSEN, Plaintiff-Respondent,
v.
SANDY RIVER AUTO, LLC,

          Argued and Submitted October 25, 2016

         Multnomah County Circuit Court 130912656 Edward J. Jones, Judge.

          Roderick A. Boutin argued the cause for appellant. With him on the briefs was Boutin Law Firm.

          Jordan Roberts argued the cause for respondent. With him on the brief were Gary Roberts and Roberts Law Group PC.

          Before DeVore, Presiding Judge, and Garrett, Judge, and Ja mes, Judge. [*]

         Case Summary:

         Plaintiff brought a claim against defendant arising out of defendant's sale of a vehicle to plaintiff, seeking rescission or, in the alternative, damages. The jury found that defendant willfully failed to disclose material defects in the vehicle but awarded plaintiff no damages. The trial court found that plaintiff suffered "ascertainable loss" within the meaning of ORS 646.638 and granted rescission, directing that plaintiff return the vehicle and that defendant repay plaintiff a $3, 000 portion of his original payment. The trial court also awarded plaintiff $59, 861 for attorney fees. Defendant assigns error to the trial court's determination that plaintiff had prevailed in the absence of damages, as well as to the award of attorney fees.

         Held:

         The trial court did not err in granting rescission for return of the car and an adjusted portion of the purchase price, and did not err in awarding plaintiff recovery of attorney fees. The jury was only asked to determine economic damages in terms of the difference between the market value of the car and the price paid. "Ascertainable loss" is found in the difference between the value of the more advantageous bargain that was represented in the sale of the vehicle and the value of the car received. On this record, plaintiff established "ascertainable loss" that justified rescission.

         Affirmed.

         [290 Or. 81] DeVORE, P. J.

         Defendant's appeal contrasts a jury's verdict that found no damages with a trial court's decision that granted rescission in plaintiff's claim for violation of the Unlawful Trade Practices Act (UTPA), ORS 646.605 - 646.656. Plaintiff Simonsen brought a claim against defendant Sandy River Auto, LLC, arising out of defendant's sale of a vehicle to plaintiff. Plaintiff sought rescission or, in the alternative, damages. The jury found that defendant willfully failed to disclose material defects in the vehicle but awarded plaintiff no damages. The trial court found that plaintiff suffered "ascertainable loss" within the meaning of ORS 646.638 and granted rescission, directing that plaintiff return the vehicle and that defendant repay plaintiff a $3, 000 portion of his original payment. The trial court awarded to plaintiff $59, 861 for attorney fees in a supplemental judgment.

         On appeal, defendant first assigns error to the trial court's determination that plaintiff had prevailed in the absence of damages and to entry of a judgment rescinding the sale of the vehicle. Defendant also assigns error to the award of attorney fees, arguing that plaintiff did not prevail and, alternatively, that rescission, if granted, was not a claim under the UTPA and thus not a claim providing a statutory basis for recovery of attorney fees.

         For the reasons that follow, we conclude that, on this record, plaintiff must be understood to have established "ascertainable loss" in the loss of the value of the advantageous bargain that was represented in the sale of the vehicle. It follows that plaintiff prevailed and rescission is justified. Accordingly, we affirm the general and supplemental judgments.

         PROCEEDINGS

         After a jury's verdict and a trial court's findings for plaintiff, we view the evidence and the reasonable inferences to be drawn from that evidence in the light most favorable to plaintiff. Northwest Natural Gas Co. v. Chase Gardens, Inc., 328 Or. 487, 489, 982 P.2d 1117 (1999). We take the elemental [290 Or. 82] facts, like the parties do, from plaintiff's complaint, the verdict, and the court's findings in its opinion.[1]

         In response to an advertisement, plaintiff visited defendant's used car lot to ask about a Volkswagen Passat. Plaintiff alleged that Smith, defendant's owner, told plaintiff that the valve cover gaskets had been replaced, the car was in good running order, that it would not need any major fixes soon, that it was a good car, that it was offered at a great price, and that plaintiff was getting "a really good deal." Plaintiff bought the car for $4, 200.

         Plaintiff alleged that two days later a mechanic reported, among other things, that the timing belt needed replacement, that the valve cover gaskets leaked, that the exhaust system was rusted severely, that the muffler was starting to "flake apart, " and that the undercarriage was extremely damaged and rusty. Plaintiff learned from CarFax that the car had been damaged in a rear-end collision.[2]

         Plaintiff filed a single claim for violation of the UTPA, in which he alleged that defendant knew, or should have known, the car's material defects but that defendant willfully failed to disclose them. He alleged defendant willfully made false or misleading representations concerning reasons the car was listed for sale below market value. For relief, plaintiff asked for rescission or, in the alternative, for an award of the minimum statutory damages of $200 or actual damages of $4, 562.77.

         The parties tried the damage claim to the jury and reserved rescission for decision by the trial court. The court instructed the jury, in relevant part, as follows:

"Unlawful Trade Practice
******
"To recover, [plaintiff] must prove the following elements by a preponderance of the evidence:
[290 Or. 83]
******
"3) At the time of the sale, [defendant] willfully engaged in an unlawful practice by failing to disclose the following material defects [in] the vehicle which it knew or should have known about.
"a. Rust and corrosion ...

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