Angela Twardy, et al., Respondents, vs. L. B. Sales, Inc., d/b/a Continental Motors, Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-2138

 

Angela Twardy, et al.,

Respondents,

 

vs.

 

L. B. Sales, Inc.,

d/b/a Continental Motors,

Appellant.

 

Filed June 27, 2000 Affirmed Halbrooks, Judge

 

Ramsey County District Court

File No. C2-99-3927

 

 

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South 8th Street, Minneapolis, MN 55402 (for respondents)

 

Edward F. Kautzer, Ruvelson & Kautzer, 510 Spruce Tree Centre, 1600 University Avenue, St. Paul, MN 55104; and

 

Jack D. Nelson, 1563 Portland Avenue, St. Paul, MN 55104 (for appellant)

 

 

            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellant, an automobile dealership, contends that the district court erred in concluding that it violated the Minnesota Consumer Fraud Act, Minn. Stat. §§ 325F.68-.70 (1998), in connection with the sale of a used vehicle to respondent.  We affirm. 

FACTS

            Appellant L.B. Sales, Inc., d/b/a Continental Motors (Continental), operates a used-car dealership.  Appellant purchased a 1993 Chevrolet Blazer at an out-of-state auction and offered the vehicle for sale in an advertisement that listed its mileage as 77,000 miles. 

On October 8, 1998, respondent Angela Twardy responded to the advertisement and test-drove the Blazer.  Twardy found no problems with the vehicle except that the electronic displays on the dashboard, including the odometer, were not operational.  After driving the vehicle, Twardy paid a $100 deposit to Continental.  On October 15, 1998, Twardy and her father, Harry Twardy, returned to Continental to purchase the vehicle.   At some point prior to the sale, Harry Twardy was provided an opportunity to test-drive the vehicle.  The Blazer was sold to Twardy "as-is," and no warranty was provided for the vehicle.  Twardy signed various documents acknowledging this.  She also signed a document indicating that the actual mileage was unknown and that the odometer reading was "not a factor in the purchase of this vehicle."  According to Ken Miles, the Continental salesperson who sold the vehicle to Twardy, whoever purchased this vehicle would have had to sign the same documents Twardy signed because the odometer had been disabled, at least temporarily.

Twardy signed the documents, but also asked Miles whether the odometer reading approximated the vehicle's actual mileage.  According to Twardy, Miles stated that he was unsure and left the room, telling her that he would talk with his sales manager and place a call to the prior owner of the Blazer.  Twardy testified that Miles returned after a substantial period of time and indicated that he had spoken with the prior owner and that the mileage shown on the odometer was correct.  Miles testified that he never stated he would contact the previous owner because Continental did not have any information about that individual.  The trial court found that Twardy's testimony regarding this alleged conversation was more credible than Miles's testimony.

Shortly after Twardy purchased the Blazer, its engine failed.  She paid $3,748.52 to fix the engine.  While the engine was being serviced, it was discovered that the vehicle had been involved in an earlier accident and that the frame needed to be squared.  This cost an additional $163.50.  Twardy also incurred an additional $1,257.18 in related repair expenses.

In March 1999, Twardy filed a claim against Continental in conciliation court.  Following a hearing in conciliation court, Twardy was awarded $3,745.  Continental removed the case to district court.  A bench trial occurred on October 8, 1999.  The trial court concluded that Continental had violated Minnesota's Prevention of Consumer Fraud Act, Minn. Stat. §§ 325F.68-.70 (1998), and awarded Twardy $5,714.20.  Continental appeals from the judgment. 

D E C I S I O N

1.         Standard of Review

            Continental did not bring a motion for amended findings or a new trial. 

The standard of review on appeal from judgment only is whether the evidence is sufficient to support the trial court's findings, and whether the findings support the trial court's conclusions of law.

 

Comstock & Davis, Inc. v. G.D.S. & Associates, 481 N.W.2d 82, 84 (Minn. App. 1992) (citation omitted).  A trial court's findings of fact are not disturbed unless they are clearly erroneous.  Minn. R. Civ. P. 52.01; Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).  In making that determination, this court gives due regard to the trial court's judgment as to witness credibility.  Minn. R. Civ. P. 52.01.

2.         Violation of Minn. Stat. § 325 F. 69

            The trial court concluded that Continental violated the Minnesota Prevention of Consumer Fraud Act, Minn. Stat. §§ 325F.68-.70 (1998), in the sale of the vehicle to Twardy.  That act provides, in part:

The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided herein.

 

Minn. Stat. § 325 F. 69, subd. 1.  Merchandise is broadly defined as "any objects, wares, goods, commodities, intangibles, real estate, loans, or services."  Minn. Stat. § 325 F. 68, subd. 2.  "The statute broadens the common law to counteract the seller's disproportionate marketing power present in consumer transactions."  D.A.B. v. Brown, 570 N.W.2d 168, 172 (Minn. App. 1997) (citation omitted).  The consumer fraud act is remedial in nature and is liberally construed to protect consumers.  State by Humphrey v. Alpine Air Prods., Inc., 490 N.W.2d 888, 892 (Minn. App. 1992), aff'd, 500 N.W.2d 788 (Minn. 1993).

The statute applies to a sale accompanied by a misrepresentation.  Minn. Stat. § 325 F. 69, subd. 1.  Continental contends that Twardy introduced no evidence that the alleged misrepresentation caused her to be damaged.  But the statute does not require a link from the misrepresentation to the subsequent discovery of a specific problem with the merchandise.  Liability under the consumer fraud act arises at the time the misrepresentation is made, not when the consumer is damaged.  Church of the Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1, 8 (Minn. 1992). 

Here, the trial court found that Miles made a misrepresentation regarding his purported conversation with the vehicle's previous owner.  In doing so, the trial court explicitly credited Twardy's testimony that Miles told her that he had contacted the previous owner.[1]  Further, a used car fits squarely within the act's definition of merchandise.  Minn. Stat. § 325 F. 68, subd. 2.  The trial court's findings support its conclusion that the consumer fraud act was violated. 

            Continental, however, contends that it was improper for the trial court to credit Twardy's testimony regarding the misrepresentation in light of the documents that she signed at the time of the sale.  Although these documents contain admissions that Twardy did not consider the actual mileage a factor in her purchase of the vehicle, Miles testified that, because of the problem with the odometer, any purchaser of this vehicle would have been required to sign these documents.  The fact that Twardy signed the documents does not make erroneous the district court's conclusion that a violation of the consumer fraud act occurred.  The documentary evidence does not necessarily trump Twardy's oral testimony.  See Johnson Bldg. Co. v. River Bluff Development Co., 374 N.W.2d 187, 193 (Minn. App. 1985) (noting that parol evidence is admissible in fraud cases involving contracts), review denied (Minn. Nov. 18, 1985).  The documentary evidence does not change the fact that Twardy's oral testimony supports the trial court's finding that there was a misrepresentation about a conversation with the previous owner and that misrepresentation was made with intent to induce Twardy's reliance and to accomplish the sale.

3.         Application of Minn. Stat. § 325 F. 662

Continental also contends that the district court erred by failing to address the applicability of Minn. Stat. § 325 F. 662 (1998) to this case.  That section of the consumer-protection statutes requires dealers selling used motor vehicles to provide a written warranty for most vehicles with fewer than 75,000 miles.  Minn. Stat. § 325 F. 662, subd. 2.  Our review of the record indicates that Continental is raising this issue for the first time on appeal, and, therefore, we need not address the issue.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (noting that appellate courts will generally not consider matters not argued and considered by the district court).  But even assuming Continental is correct in asserting that it did not violate this particular statute, it is not relieved of liability for violations of other consumer-protection laws.  Minn. Stat. § 325 F. 662 provides that "[n]othing in this section limits the rights or remedies which are otherwise available to a consumer under any other law."  Minn. Stat. § 325 F. 662, subd. 11.

Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1]  In Ly v. Nystrom, 602 N.W.2d 644 (Minn. App. 1999), review granted (Minn. Jan. 25, 2000), this court held that the purchaser of a restaurant was not entitled to the protections of the consumer fraud act.  Id. at 647.  After concluding that the act was not applicable to the case before it, the court in that instance went on to note that a violation of the act could only occur if the misrepresentation was broadly disseminated.  Id.  Because that holding was unnecessary to the court's decision that the act did not apply to that case, it is dictum that is not binding on us here.  See K.R. v. Sanford, 588 N.W.2d 545, 548 (Minn. App. 1999), aff'd, 605 N.W.2d 387 (Minn. 2000).