Simonsen v. Sandy River Auto, LLC
290 Or. App. 80
Or. Ct. App.2018Background
- Simonsen bought a used Volkswagen Passat from Sandy River Auto for $4,200 after the dealer represented the car was in "good running order," would not need major fixes soon, and was "a really good deal."
- Soon after purchase, a mechanic reported significant defects (timing belt, leaking gaskets, severe rust, prior rear-end collision discovered via CarFax).
- Simonsen sued under the Oregon Unlawful Trade Practices Act (UTPA), seeking rescission or, alternatively, statutory or actual damages; the jury found willful nondisclosure of material defects but awarded $0 in damages.
- The trial court reserved rescission for itself, found an "ascertainable loss" based on not getting the promised advantageous bargain, ordered rescission with a $3,000 restitution adjustment, and later awarded $59,861 in attorney fees to Simonsen as prevailing party.
- Defendant appealed, arguing (1) absence of jury-awarded damages meant no ascertainable loss and no prevailing party status, and (2) rescission is not a UTPA remedy that supports fee recovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "ascertainable loss" under ORS 646.638 requires proved economic damages (difference in market value) | "Ascertainable loss" is broader than measurable diminution in market value; it includes loss of the promised advantageous bargain | "Ascertainable loss" is synonymous with objectively verifiable economic damages; jury's $0 damages means no ascertainable loss | Court held ascertainable loss may be shown by loss of the promised advantageous bargain even if jury found no reduction in market value |
| Whether rescission is an available UTPA remedy where buyer did not receive the represented quality and would not have purchased but for misrepresentations | Rescission (refund) is equitable relief authorized by ORS 646.638 when buyer did not get what was promised | Rescission cannot be awarded absent proven economic damages or is not a UTPA remedy supporting fees | Court held rescission is available equitable relief under the statute when the buyer did not receive what was promised and an ascertainable loss is shown |
| Whether plaintiff prevailed for purposes of fee award under ORS 646.638(3) despite jury awarding $0 damages | Plaintiff prevailed because court granted rescission and equitable relief based on ascertainable loss | Defendant argued plaintiff did not prevail because jury found no damages | Court held plaintiff prevailed and affirmed award of attorney fees |
Key Cases Cited
- Scott v. Western Intern. Surplus Sales, Inc., 267 Or. 512 (inferring ascertainable loss where goods lacked promised features)
- Weigel v. Ron Tonkin Chevrolet Co., 298 Or. 127 (ascertainable loss not limited to objective market-value diminution; losses viewed broadly)
- Feitler v. The Animation Celection, Inc., 170 Or. App. 702 (ascertainable loss can be inferred from loss of promised exclusivity even without dollar quantification)
- Pearson v. Philip Morris, Inc., 358 Or. 88 (ascertainable loss must be objectively verifiable and of money or property; no loss where no price premium for represented feature)