*1 January 11, September on record and briefs resubmitted banc Submitted September affirmed al, et RAUDEBAUGH Respondents, v. CONTROL, INC.,
ACTION PEST Appellant. 19481)
(No. 16-79-07972, CA Young, Brown, Horn, Scott, Stuart M. Cass & Eugene, appellant. filed the brief for Hendershott, Hendershott,
James A. and Hendershott & *2 Eugene, respondents. filed the brief for
THORNTON, J. dissenting.
Gillette, J.,
THORNTON, J. judgment from a appeals negligence Oregon and violations of the an action for (UTPA).1 Act -. Trade Practices ORS 646.010 Unlawful falsely reporting and The acts consisted of 180. free plaintiffs’ home-to-be was from representing no damage and that there was insect infestation growth, wood-destroying organisms. rot or other fungus the following assignments
Defendant makes error:
(1) for dis- Failing grant to defendant’s motion missal; defendant; and failing to direct a verdict for failing judgment notwithstanding motion for grant defendant’s no asserted that there was evi- the verdict. The motions representa- the complained-of that defendant made dence made plaintiffs, or that defendant directly the intent third with representation plaintiffs; and that the evidence showed on to the passed was not made to complained-of. representation business. in the normal course of defendant’s requested supple- defendant’s Failing give *3 instruction, find required jury which that the jury mental by representation was made defen- complained-of the defendant’s plaintiffs to the normal course of dant damages plaintiffs. as to prerequisite awarding a to business (3) supple- Failing give requested to defendant’s instruction, jury find required which jury mental complained-of a to plaintiffs right rely had on damages to prerequisite awarding as a to representation plaintiffs. Jury 30.01 Failing Uniform Instruction give
- on damages. instruction preliminary disputed. facts are not The essential a agreement into an with Mr. entered Plaintiffs to be used Baxley purchase property and Mrs. agreement as home. The their children their plaintiffs’ negligence was at action dismissed the close Plaintiffs’ cause of appeal has been taken from dismissal. case. No contingent plaintiffs’ obtaining financing. part was the on As
agreement Baxleys pest were to obtain a structural inspection report, required control which was financing Department to obtain from the State of Veterans’ financing Affairs. Plaintiffs could not obtain other sources. Baxley per-
Defendant was contacted Mrs. inspection report. form the and make a Defendant knew inspection report purpose that the and its were for the obtaining Department a loan from the of Veterans’ Affairs financing and that such loans were often for for a new purchaser, plaintiffs agreement but did not know of purchase. inspection reported
Defendant made an property damage free from all insect infestations and from fungus growth, to structural members from rot or other wood-destroying organisms conditions conducive to and/or damage. property in fact had insect infestations and damage had sustained extensive members, to its structural occurring 15-year some of which had been over a 10- to period. agent, employed by Brick,
Defendant’s Jim was acting employment defendant and within the of his at inspected premises the time he and issued defendant’s reports. representation Defendant’s was made in two docu- being Inspection ments, one a “Structural Pest Control Report” and the second a “Clearance Statement.” Mrs. picked up copy reports Ostrum, realtor, a of the to take to Department Affairs, of Veterans’ communicated the plaintiffs, by reading contents to first the “Clearance State- Raudebaugh phone ment” to Mrs. over the and then leaving copy plaintiffs. of the “Clearance Statement” with Department of Veterans’ Affairs relied on defendant’s approved. Statement”, “Clearance and the loan was Plain- representations tiffs they that in reliance on defendant’s purchased property
had and suffered thereby. *4 provides:
ORS 646.608 “(1) person A engages practice in an unlawful in when person’s business, the course of the occupation vocation or person: 170
U * * * [**]
“(e) estate, Represents goods that services have real or uses, characteristics, approval, ingredients, sponsorship, benefits, qualities they that have or quantities or do not status, person qualifica- sponsorship, approval, has that have; tion, he does affiliation or connection that not i(c U :}: ifc * * estate, goods are “(g) Represents that real or services standard, particular quality, grade, that real
of a estate of or or model, they goods particular style if are or are of a or another; * * * * * 646.605(7) provides:
ORS
“ are ‘Real or means those which services’ may primarily personal, family or house- or for obtained * * purposes hold out private enforcement are set for requirements 646.638U).2 ORS prem- assignment3 primary first and
Defendant’s under that in order recover the proposition on ised prove and that allege must UTPA directly by defendant made either was representation it be party with intent or a third is an Defendant asserts plaintiffs. transmitted law test common in the traditional element essential argument, defendant support of this fraud. actionable representa- complained-of following facts: to the points request the sellers at the was defendant made to and it be communicated would knowledge with Affairs; Veterans’ Department utilized 646.638(1) provides: ORS “Any person money property, who suffers ascertainable loss of or personal, employment by person wilful or method, as a result of use or another of a 646.608, may bring act declared unlawful or an appropriate $200, damages individual action court to recover or actual be, jury, may greater. whichever is The court or as the case award punitive may provide equitable the court such relief as deems necessary proper.” or type not assert within does services of do not come ambit of the Act.
171 defendant was unaware that the house was to be sold or potential purchasers; were the com- plained-of representations were communicated to agent knowledge of the seller without the of defen- pecuniary dant; and that defendant had no interest in the sale of the house. argues plead- that the above-mentioned
ing proof requirement, requirements and under the common prove negligent misrepresentation, apply law to also under UTPA. We fraud or
disagree. general policy discourage The of the UTPA is to deceptive practices provide remedy trade and to a viable for damaged by consumers who are Stanwood, such conduct. v. Wolverton 341, Or 1203, 278 563 P2d 709, reh den 278 Or (1977). types The Act defines the of conduct practices, that constitute unlawful trade which are not the same as conduct which is the basis of common law fraud damages. supra. actions for Stanwood, See Wolverton v. The require Act does not that there be a loss to an individual consumer for there to be a If violation. there is ascertaina ble consumer, loss to a that consumer ahas cause of action general punitive 646.638(1). damages. for and specified elements of the cause of action are statute, by alleging proving and the consumer recover and provisions there was a wilful violation of the of the Act and ascertainable aas result of the violation. There requirement representations no that the which constitute injured wilful violation of the Act be made to the consumer. legislature prove Had the intended that a consumer all the damages, elements of common law fraud in order to recover unnecessary it would have been to create a cause of action provides spec statute. ORS 646.656 the remedies ified in the Act are in addition to all other civil remedies existing legislative at common law. This indicates intent special remedy create a different from those that exist at common law. legislature specifi When the enacted the
cally provided type in ORS and representations that are covered the law.4 We have no 4 general history purpose Mooney, For a discussion of the and of the UTPA see Attorney Oregon Experience, General As Counsel the Consumer: The 54 (1975). Or Law Rev 117
172 by inserting require requirements authority to add to those construing statute, courts law. In of the common ments must ascertain stance, is, in terms or sub declare what has been cannot insert what therein and contained 174.010. inserted. ORS what has been or omit omitted Bean, P2d Or 575 R. v. Pac. R. Co. Union (1941). Supreme declared in Wolverton: Court
As our
“* * *
are distinct
of common law fraud
eiements
under
cause of action
separate
the elements of a
and a violation of
Trade Practices Act
the Unlawful
See,
easily
e.g., Sherrod v.
more
shown.
Act
is much
(1976);
Holzshuh,
Scott v. West-
P2d 470
*6
* * *”
(1973).
Inc.,
512,
Sales,
Or
Accord
App
(1979);
Pontiac, 51 Or
v. Mike Salta
Abrams
558
625
(1981);
B & L
Bodin v.
GILLETTE, J., simple presented one: is a this case The issue private-right-of- advantage May plaintiff take Oregon Practices Act Trade Unlawful of the action section (UTPA) alleging without the defendant proving committed an trade in the sale of real estate, goods or plaintiff? services to the From the majority’s unequivocal question, affirmative answer to this I respectfully dissent.
The Laws present Oregon UTPA derives 1971, chapter Gross-Haentjens Tharp, App 744. See v. 313, 316, 1209; Mooney, Attorney 589 P2d see also Oregon Experi General as Counsel the Consumer: ence, (1975). form, present L Rev 117 Or its sections: following pertinent UTPA contains ORS defines the “trade” or “commerce” is the of the Act: “(1) advertising, offering ‘Trade’ and ‘commerce’mean sale, distributing, otherwise, or any whether rental or services, any real commerce state.” or and includes trade or
directly indirectly affecting people or of this I understand this section to mean that applies UTPA transactions, consumer (Offers completed. offered or engage because, consumer transactions are covered private although right of an important part action is principal Act’s focus on preventive action General, Attorney Attorney and the General needs to be able to practices action against unlawful before take See, transactions have completed. generally, been 646.618, 646.622, 646.632.) 646.626 and *7 pertinent
Also to the UTPA’s is subsection 646.605, of ORS which defines a in phrase used subsec- (1): “(7) estate, goods ‘Real or services’ means those which may are or household primarily personal, family obtained or * * *” purposes. (Emphasis supplied.) Thus, transactions between business entities are not within purview the of the Act. One who seeks damages must show he brought, rented or estate, otherwise obtained the real goods or services in question personal for his use. See Inc., Graham v. Beverage Kold Kist App 1037, Ice 43 Or (1979); P2d 759 Turismo, Inc., Denson v. Ron Tonkin Gran (1977). 90 n
Having scope, I next turn defined the UTPA’s my is, view, in crux of this the definitions of what the case: (and parties practices. majority) All the the unlawful trade 646.608(1) agree following portions the are of ORS pertinent analysis: to this when in “(1) person A in engages practice an unlawful business, person’s occupation or
the course vocation of person: <<‡ * * * * estate, “(e) Represents goods real or services have characteristics, uses, sponsorship, approval, ingredients, * *
benefits, *; guantities qualities they have. or do not a* * * * * Represents
“(g) goods real services or are standard, particular quality, grade, a or or that of style they if particular model estate or are of a or are another; * “* * * (Emphasis supplied.) pivotal portion emphasized is in of ORS “* * * my phrase view, in the of the course this case. person’s occupation” that, business, means in or vocation person’s UTPA, a actions be actionable under order to revenue-produc in the course of some must be committed person activity engages ing a in on more than which the importantly, however, I Even more believe casual basis. contemplates phrase that, as the inasmuch UTPA that speaks practices “business, committed the course occupation,” person is entitled—as a or who vocation private party advantage of the act must show that
take —to engaged he some consumer transaction has foregoing conclusion follows inelucta I believe the offender. bly private-right-of-action language section of the 646.638(1): of the ORS “(1) Any person loss of who suffers ascertainable a result use as personal, money property, real or or of wilful method, act or person employment another or declared 646.608, may bring appropriate to recover actual action in an court individual $200, jury, greater. The court or as or whichever * *” * be, punitive damages. may award case supplied.) (Emphasis *8 practice, unlawful has used an is, an offender
That the other where any party transaction, ascer- if he suffers to the aof action. The existence loss, has a cause of tainable parties pivotal. is the two transaction between consumer gives it needs all the the UTPA a construction Such anyone permits legislative purpose accomplish its —it injured of an in the course an unlawful who is qualifying to sue. commercial transaction otherwise majority majority’s is otherwise. The The view opinion there is contention that deals with defendant’s first representations proof actionable that it made no they knowledge plaintiff that a third with the or to plaintiff. makes It then then be communicated would this statement: *“* * require a loss that there be does not [UTPA] If for there to a violation. to an individual consumer consumer, that consumer has loss to a there is ascertainable punitive damages. general a cause of action for and speci- 646.638(1). action are The elements of the cause of the consumer recover fied the statute and alleging proving that there was a violation wilful aas result provisions the Act and ascertainable representa- requirement violation. There is no made violation of the Act be tions which constitute a wilful * * *” App injured at 171. to the consumer. you misrepresentation If commit an act of In other words: damaged, is and someone is which violates person you could have not foreseen irrelevant that your misrepresentation. ever receive would requires majority it, then, the UTPA sees As only between the there be a causal connection seller-con- harm; or other act and the sumer no vendor-vendee necessary. relationship parties fact, is between the difficulty parties strangers. could be total accepted, majority’s that, the field of tort law if it view is is remodeling. undergone fascinating sub silentio will have point: garageman, example X, A should illustrate One sells A a set of shock shock his car. One absorbers for sending control; it smashes fails, out of the car absorber into B’s reconditioned, greenhouse. were the shock absorbers A discovers X, not new; B sues he tells B.
rather than Because the UTPA. for violation of but negligence, not for (f) 646.608(l)(e), violate ORS by X to A did the sale rationale. majority under the prevail B would (g), given to have case, defendant In this *9 to a a certain house report pest damage on inaccurate report. paid for party The third party. third the busi- reports, not making such in the “business” at is directed real estate. ORS selling ness sure, strictly limit not, to be It does consumer transactions. Still, or services. liability to sellers of its with in connection must occur practice here was And the sale apply. Act to in order for the a sale There is no plaintiff. party the third of real estate know that had reason to party knew or claim that the third party is The third report was erroneous. pest defendant’s today party that a third Yet we hold a defendant. not even under purchaser may be held liable to a seller who is not (1) with acting conjunction not in where it was the UTPA even fact, even have might in not the seller sale. planned known of in that defendant be require rule would proper product, or be misrepresented selling
the business business, and is in such associated act trade the unlawful commit that defendant the mis- receive ultimate victim would knowing that can, my of UTPA purposes Because the representation. adventuring which view, without fully vindicated case, respectfully dissent. I undertakes majority JJ., in this dissent. Young, join Warren