Fowler v. Cooley
239 Or. App. 338
Or. Ct. App.2010Background
- Plaintiff Fowler sued defendant Cooley under the Oregon Unlawful Trade Practices Act (UTPA) for sale of a single-family home with a basement water leak and alleged misrepresentations and failure to disclose.
- Cooley previously sold the house to another buyer who faced basement leaks and remediation; after attempts to fix, that sale was rescinded and the house was later repaired before Fowler’s purchase process.
- In June 2006 Fowler learned of the Kenton house through a friend; he inspected the home and discussed occupancy and plans with Cooley at her office, including questions about prior leaks.
- Fowler and a leaseArrangement with an option to purchase followed; Fowler began improvements and listed the home for sale at a price higher than his option price, later realizing he did not own the full property rights.
- In November 2006 heavy rains caused significant basement leaks which Fowler attempted to manage with the sump pump; by May 2007 Cooley reclaimed possession via declaration of forfeiture.
- Fowler pursued damages under the UTPA for costs of improvements, down payment, escrow, and lease/purchase payments, claiming misrepresentation and nondisclosure of defects caused by Cooley.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| UTPA applicability to purchase for personal use | Fowler satisfies Searle objective and subjective components. | Purchase not for personal use; UTPA not triggered. | UTPA applicable; Fowler purchased for personal use. |
| Evidence of misrepresentation and reliance | Cooley misrepresented soundness and failed to disclose basement leaks; reliance shown by inspection discussions. | No clear evidence of reliance; misrepresentation contested. | Evidence supports misrepresentation and reliance under ORS 646.608(1)(e). |
| Liability under ORS 646.608(1)(t) (undisclosed material defect) | Cooley failed to disclose known basement leaks. | No proof that Cooley knew of leaks at sale; not enough to prove t. | Trial court not shown to have relied on t; third assignment not reversible. |
| Damages under UTPA | Damages include improvements, down payment, escrow, and lease/purchase payments as restitution. | Damages limited to statutory minimum unless valid difference in value or rescission. | UTPA provides independent restitution; damages awarded were proper and not limited to $200. |
Key Cases Cited
- Searle v. Exley Express, 278 Or. 535 (1977) (two-part test: objective and subjective components for UTPA real estate purchases)
- Thorson v. Dept. of Justice, 171 Or.App. 704 (2000) (standard for reviewing denial of ORCP 54 B(2) motion to dismiss)
- Gross-Haentjens v. Tharp, 38 Or.App. 313 (1979) (restitutionary purpose of ORS 646.638(1) and context of damages)
- Raudebaugh v. Action Pest Control, Inc., 59 Or.App. 166 (1982) (legislative intent to create restitutionary rem(edies) under UTPA)
- Shoup v. Wal-Mart Stores, Inc., 335 Or. 164 (2003) (general verdict context and preservation of valid theory when others fail)