Lead Opinion
Opinion of the Court By
The plaintiffs-appellants/eross-appellees, Mary Zanakis-Pico and Thomas M. Pico (the Picos) appeal from the amended judgment of the first circuit court, the Honorable Gary W.B. Chang presiding, filed on November 4, 1999. The Picos argue that the circuit court erred in: (1) partially granting the motion of the defendant-appellee/cross-appellant Cutter Dodge, Inc., d/b/a Cutter Dodge Chrysler Plymouth Jeep Eagle (Cutter), for partial summary judgment as to damages, based on its conclusion that the Picos were not entitled to “benefit-of-the-bargain” damages in connection with their claim pursuant to Hawaii Revised Statutes (HRS) chapter 480 (1993 & Supp.2000);
Cutter cross-appeals, urging that the circuit court erred in: (1) partially denying its motion for partial summary judgment as to damages by failing to dismiss the Picos’ claim for punitive damages; (2) partially denying Cutter’s motion to dismiss the Picos’ third amended complaint or, in the alternative, for summary judgment, by fading to dismiss the Picos’ third amended complaint in its entirety; and (3) partially denying Cutter’s request for attorneys’ fees, costs, and sanctions, by failing to enter an award pursuant to HRS §§ 481A-4 (1993)
We hold that the circuit court erred in concluding that the Picos failed to allege cognizable damages with respect to their statutory claim under HRS chapter 480, them common law claim for relief grounded in fraud, and any other cognizable common law tort claims that the Picos sufficiently pled. We further hold that the circuit court correctly ruled that Cutter was entitled to judgment as a matter of law with respect to the Picos’ contract claim. Finally, on the record before us, we hold that the circuit court did not err in denying Cutter’s motion for attorneys’ fees, costs, and sanctions. Accordingly, we vacate the circuit court’s amended judgment and remand this case for further proceedings consistent with this opinion.
I. BACKGROUND
This dispute involves an advertisement by Cutter appearing in the September 12, 1997 editions of both of the Honolulu daily newspapers of general circulation—the Advertiser and the Star-Bulletin. In large print at the top, the advertisement announced a “$13,000,000 INVENTORY REDUCTION” and claimed, “We’re # 1 For a Reason! Volume = Low Prices!.] Come on Down
The main body of the advertisement, between the introductory text and the fine print, included pictorial depictions of and specific terms for fourteen different model vehicles. In each instance, the advertisement stated the number of vehicles of the particular model available at the stated terms or price and listed what appear to be their inventory identification numbers. Five of the models were listed with a cash price, while nine were simply advertised for “$0 Cash Down,” subject to varying monthly payments over various periods of time.
The first and most prominently displayed vehicle was a “NEW '97 GRAND CHEROKEE LAREDO,” priced at “$229 Month* 24 Mos. $0 Cash Down or $20,988.” A second asterisk in the fine print at the bottom of the advertisement read: “Rebate and APR on select models, not combinable, prices incl. $400 Recent College Grad, $750 $1000 Loyalty Rebate on Grand Cherokees & Loyalty Rebate on Caravans & Grand Caravans on pymnts & prices & all other applicable rebates. On approved credit. All pymnts/ prices plus tax, lie. & $195 doc fee.”
On October 16, 1997, the Picos filed a complaint in the first circuit court, based on the advertisement, and amended it several times thereafter. In their third amended complaint, the Picos alleged that they had traveled to Cutter’s Pearl City lot in response to the advertisement. One of the advertised Jeep Grand Cherokee Laredos was still available, and the Picos test drove the vehicle. Finding it to their liking, the Picos advised Cutter’s sales agent that they were ready, willing, and able to purchase the vehicle, whereupon the sales agent informed them that they would have to make a down payment of $1,400.00. The Picos protested, pointing out that, according to Cutter’s advertisement, the vehicle could be purchased for no cash down and two hundred twenty-nine dollars per month, but the sales agent explained that the “$0 cash down/$229 per month” offer was only available to recent college graduates who were entitled to a “loyalty rebate.” The Picos left the premises shortly thereafter without purchasing the vehicle.
The Picos’ third amended complaint alleged that Cutter had violated numerous statutory provisions, including: (1) HRS § 708-871 (1993) (“false advertising”);
Cutter answered the Picos’ complaint by denying, inter alia, that the advertisement was false or misleading. After approximately eight months of discovery, Cutter filed a motion for partial summary judgment as to damages. On November 18,1998, the circuit court, the Honorable Kevin S.C. Chang presiding, granted Cutter’s motion in part and denied it in part. The circuit court ruled as a matter of law that the Picos were not entitled to damages for emotional distress or “benefit-of-the-bargain” in connection with their HRS § 480-2 claim, but denied Cutter’s motion without prejudice with respect to other damages.
Subsequently, Cutter filed a motion to dismiss the Picos’ third amended complaint or, in the alternative, for summary judgment. On February 12, 1999, the circuit court, the Honorable Gail C. Nakatani presiding, granted Cutter’s motion with respect to the Picos’ statutory claims, based on the following: (1) the Picos, as a matter of law, had faded to establish damages cognizable under HRS chapter 480; (2) the Picos’ third amended complaint set forth no allegations supporting any claim for future damages, as required by HRS § 481A-4; and (3) as a matter of law, private citizens lack standing to assert claims pursuant to HRS §§ 437-4(b) or 708-871. The circuit court elaborated as follows on its reasons for dismissing the HRS chapter 480 claim during the hearing on Cutter’s motion: “[A]s a matter of law ... the cost of travel is not an item of damages contemplated under Chapter 480, and ... the kind of damages really contemplated under Chapter 480 is ... to prevent unjust enrichment, and the cost of travel is not that kind of damages.” The circuit court denied Cutter’s motion, however, to the extent that it sought a complete dismissal of the Picos’ third amended complaint. Instead, the circuit court ordered the Picos to file a more definite statement regarding such claims for relief as remained in their third amended complaint.
The Picos filed their more definite statement of claims on January 26, 1999. They realleged them HRS chapter 480 claim and asserted that them third amended complaint also set forth: (1) the common law torts of false advertising, fraud, deceit, concealment, misrepresentation, negligence, gross negligence, and outrage, which allegedly gave rise to general, special, and punitive damages; and (2) a claim of breach of contract. They clarified that they were seeking nominal general damages, punitive damages, specific performance, and injunctive relief. In response, Cutter filed a motion to dismiss the Picos’ third amended complaint or, in the alternative, for a directed verdict. On April 1,1999, the circuit court, the Honorable Steven M. Nakashima presiding, treated Cutter’s motion as a motion for summary judgment and granted it, ruling that there were no genuine issues of material fact and that Cutter was entitled to judgment as a matter of law on all of the Picos’ claims.
Finally, on May 19, 1999, the circuit court, the Honorable Gail C. Nakatani presiding, granted Cutter’s request for costs, pursuant to HRS § 607-9 (1993),
II. STANDARDS OF REVIEW
A. Motion for Summary Judgment
We review the circuit court’s grant or denial of summary judgment de novo. Hawai'i Community Federal Credit Union v. Keka,
[Sjummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
Id. (citations and internal quotation marks omitted).
B. Statutory Interpretation
We review the circuit court’s interpretation of a statute de novo. State v. Pacheco,
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
When there is doubt, doubleness of meaning, or indistinctiveness or uncertainty of an expression used in a statute, an ambiguity exists....
In construing an ambiguous statute, “[t]he meaning of the ambiguous words may be sought by examining the context, with which the ambiguous words, phrases, and sentences may be compared, in order to ascertain their true meaning.” HRS § 1-15(1) [ (1993) ]. Moreover, the courts may resort to extrinsic aids in determining legislative intent. One avenue is the use of legislative history as an interpretive tool.
... This court may also consider “[t]he reason and spirit of the law, and the cause which induced the legislature to enact it ... to discover its true meaning.” HRS § 1 15(2) (1993).
Id. at 94-95,
C.Attorneys ’ Fees And Costs
We review the circuit court’s denial of attorneys’ fees and costs for abuse of discretion. Fujimoto v. Au,
III. DISCUSSION
A. Pursuant to HRS Chapter 180, Consumers Who Do Not Actually Pur- . chase Goods Or Services May Recover Statutorily Prescribed Damages.
The circuit court concluded, as a matter of law, that the Picos had failed to “estab
It appears that this court has never specifically addressed the parameters of cognizable damages under HRS chapter 480; in particular the Hawaii appellate courts have not considered whether damages are recoverable under the statute absent an actual purchase of goods or services. But see Wiginton v. Pacific Credit Corp.,
HRS § 480-13(b) (1993)
Any consumer who is injured by any unfaii- or deceptive act or practice forbidden or declared unlawful by section 480-2:
(1) May sue for damages sustained by the consumer, and, if the judgment is for the plaintiff, the plaintiff shall be awarded a sum not less than $1,000 or threefold damages by the plaintiff sustained, whichever sum is the greater, and reasonable attorneys fees together with the costs of suit; and
(2) May bring proceedings to enjoin the unlawful practices, and if the decree is for the plaintiff, the plaintiff shall be awarded reasonable attorneys’ fees together with the cost of suit.
HRS chapter 480 defines neither “injury” nor “damages,” but it does define the term “consumer” in relevant part to mean “a natural person who, primarily for personal, family, or household purposes, purchases, attempts to purchase, or is solicited to purchase goods or services[.J” HRS § 480-1 (1993) (emphasis added).
Thus, the plain language of the statute reflects that the legislature intended not only to protect persons who actually purchased goods or services as a result of unfair or deceptive acts and practices, but also those who attempted or were solicited to do so. It would be most strange if the legislature had sought to protect such persons but failed to provide them with any remedy. Indeed, HRS § 480-13(b) does not qualify or limit the term “consumer” in any way. We therefore construe the term “consumer” as it appears in HRS § 480-13(b) consistently with its definition in HRS § 480-1. Reading HRS § 480-13 only to permit recovery of damages for injuries sustained by means of actual purchases would generate an absurd result.
But even assuming statutory ambiguity, the legislative history underlying HRS chap
Cutter reads the legislative history too narrowly. The $1,000.00 assured minimum recovery manifests a legislative intent to do more than simply prevent unjust enrichment at the expense of consumers who purchased relatively inexpensive goods. As both the legislative houses declared at the time the $1,000.00 assured minimum recovery was added to HRS § 480-13, HRS chapter 480⅛ paramount purpose was to “encourage those who have been victimized by persons engaging in unfair or deceptive acts or practices to prosecute their claim,” thereby affording “an additional deterrent to those who would practice unfair and deceptive business acts.” Sen. Stand. Comm. Rep. No. 600, in 1969 Senate Journal, at 1111; Hse. Stand. Comm. Rep. No. 661, in 1969 House Journal, at 882-883. Thus, the legislature sought to protect all “consumers” adversely affected by unfair or deceptive acts or practices; it therefore follows that the $1,000.00 assured minimum recovery was intended to be available to all consumers who could demonstrate damages. Nothing in the history suggests that the legislature intended the anomalous result that a consumer who spent ninety-nine cents on an overpriced soda could potentially recover $1,000.00, but a consumer who expended far more time and money pursuing an illusory bargain could recover nothing.
The foregoing statutory construction is consistent with HRS chapter 480’s function as a mechanism for abating practices that potentially injure consumers in general. See Ai v. Frank Huff Agency, Ltd.,
The foregoing statutory construction is likewise consistent with relevant federal and state case law. A false or misleading advertisement has been held to violate the Federal Trade Commission Act regardless of whether a consumer actually purchases any goods or services as a result of the deception.
Deception being the evil that consumer fraud statutes seek to rectify, regardless of whether actual purchases have resulted,
The Picos may not, however, recover “benefit-of-the-bargain” damages, which are preconditioned on the breach of a contract. See Hawaiian Holiday Macadamia Nut Co., Inc. v. Industrial Indem. Co.,
Moreover, the Picos may not recover damages for emotional distress. See Ailetcher v. Beneficial Fin. Co. of Hawai‘i
Finally, the Picos are precluded from seeking punitive damages under HRS chapter 480. HRS § 480-13(b) enumerates the specific damages that a consumer may recover under the chapter—the greater of $1,000.00 or treble damages—and makes no provision for punitive damages. See also Leibert,
B. The Circuit Cowrt Erred In Concluding That Cutter Was Entitled To Judgment As A Matter Of Law With Respect To The Picos’ Tort Claims On The Basis That The Picos Failed To Allege “Substantial Pecimiary Loss.”
The Picos assert that the circuit court erred in ruling that Cutter was entitled to judgment as a matter of law with respect to their tort claims, in which they alleged that Cutter breached “its duty to advertise truthfully.” Specifically, liberally construing then- opening brief, the Picos seem to argue that the circuit court erred in entering judgment in favor of Cutter with respect to their
This court has held that in order to maintain a claim for relief grounded in fraud or deceit,
the plaintiff must have suffered substantial actual damage, not nominal or speculative. Prosser, Law of Torts at 648 (3d ed. 1964). The courts have often expressed this requirement in terms of pecuniary damage, ... as does the Restatement of Torts § 519 (1938). The aim of compensation in deceit cases is to put the plaintiff in the position he [or she] would have been had he [or she] not been defrauded.... There may be no recovery for mental anguish and humiliation not intentionally inflicted ....
Pecuniary damages, being narrow in scope, are those damages (either general or special) which can be accurately calculated in monetary terms such as loss of wages and cost of medical expenses. In fraud or deceit cases, the measure of pecuniary damages is usually confined to either the ‘out-of-pocket’ loss ... or the ‘benefit of the bargain’....
Ellis v. Crockett,
Cutter urges us, nevertheless, to affirm the circuit court because “[t]he only damages recoverable under a fraud claim are confined to either ‘out of pocket’ or ‘benefit of the bargain’ damages.” This court has never specifically addressed whether the kind of damages alleged by the Picos constitute “out-of-pocket” losses and are sufficient to support a claim for relief grounded in fraud, but we have no doubt that they do. The loss alleged by the Picos is the money that they spent as a consequence of them reliance on Cutter’s advertisement. Such consequential damages, if proven, constitute “out of pocket” losses. See Ostano Commerzanstalt v. Telewide Systems, Inc.,
Accordingly, we hold that the money that the Picos expended in responding to Cutter’s advertisement, if proved, satisfies the requirement of “substantial pecuniary loss” necessary to support a claim for relief grounded in fraud.
Furthermore, assuming that it was not abandoned, see supra note 20, we hold that the Picos’ damages were also adequate to maintain a negligent misrepresentation claim. This court has held that a plaintiff claiming negligent misrepresentation must show that: “(1) false information [is] supplied as a result of the failure to exercise reasonable care or competence in communicating the information; (2) the person for whose benefit the information is supplied suffered the loss; and (3) the recipient relies upon the misrepresentation.” Blair v. Ing, 95 Hawai’i 247, 269,
those [damages] necessary to compensate the plaintiff for the pecuniary loss to him [or her] of which the misrepresentation is a legal cause, including
(a).the difference between the value of what he [or she] has received in the transaction and its purchase price or other value given for it; and
(b) pecuniary loss suffered otherwise as a consequence of the plaintiff’s reliance upon the misrepresentation.
Restatement (Second) of Torts § 552B (1977) (emphasis added). We agree. Thus, pecuniary losses stemming from an attempt to conduct a transaction in reliance upon information negligently supplied are, assuming the plaintiff has established the other elements of the tort, sufficient to support a claim for negligent misrepresentation.
Therefore, because the Picos claim to have spent their three to five dollars in gasoline in reliance upon Cutter’s advertisement, which they allege was intended to induce them to visit Cutter’s lot for the purpose of purchasing an automobile, they have shown sufficient damages for the purposes of maintaining a negligent misrepresentation claim, assuming that they have not abandoned it, see supra note 20. Accordingly, the circuit court erred in granting summary judgment in favor of Cutter on the basis that the Picos’ damages were inadequate.
C. The Circuit Court Did Not Err In Failing To Dismiss The Picos’ Third Amended Complaint In Its Entirety For Failure Sufficiently To Plead Any Cognizable Common Law Claim.
Finally, Cutter argues in its cross-appeal that, whatever the merits of the Picos’ common law claims, the circuit court erred in failing to dismiss the Picos’ third amended complaint in its entirety when it dismissed the Picos’ statutory claims, because them complaint did not provide fair notice of any common law claims. In particular, Cutter argues that the Picos failed to state a “fraud” claim with the specificity demanded by this court in Larsen v. Pacesetter Systems, Inc.,
We agree that the Picos’ third amended complaint is not a model of clarity.
D. There Being No Binding Contractual Agreement, The Circuit Court Correctly Ruled That Cutter Was Entitled To Judgment As A Matter Of Law With Respect To The Picos’ Contract Claim.
The Picos urge that the circuit court erred in granting Cutter judgment as a matter of law with respect to their contract claim. The Picos argue that Cutter’s advertisement amounted to a contractual offer that they were free to accept, thereby creating an enforceable contract. We disagree.
It appears that this court has never directly addressed the question whether an advertisement can constitute a contractual offer. But see Sutton v. Hawaiian Trust Co., Ltd.,
There is a very narrow, yet well-established, exception to this rule, which arises when an advertisement is “clear, definite, and explicit, and leaves nothing open for negotiation.” Lefkowitz v. Great Minneapolis Surplus Store,
We agree with the foregoing well-established principles. Accordingly, we hold that advertisements are generally not binding contractual offers, unless they invite acceptance without further negotiations in clear, definite, express, and unconditional language.
The provisions of Cutter’s advertisement upon which the Picos rely in asserting their contract claim do not constitute a binding contractual offer. As described in detail supra in section I, with the exception of the cash prices stated for five of the fourteen vehicles, the advertisement was hardly a model of clarity. The Picos themselves admitted that they were not certain what all of the fine print at the bottom of the advertisement meant. One of the few clear and intelligible statements located in the fine print, however, was that sales were “[o]n approved credit.” But a condition that a sale be “on approved credit” cannot constitute an offer that a consumer is free unilaterally to accept.
The case would be different had the Picos sought to purchase the Grand Cherokee Laredo for the advertised cash price of $20,988.00. While advertisements of goods for sale at a particular price generally do not constitute binding contractual offers, see discussion supra, we must analyze advertisements for automobiles by licensed dealers in light of the Hawai'i Motor Vehicle Industry Licensing Act (HRS ch. 437 (1993 & Supp. 2000)). The California Supreme Court, for example, recently held that an advertisement by a licensed automobile dealer for the sale of a particular vehicle at a specified price constituted a binding contractual offer in light of a California statute rendering unlawful the failure '%>■ sell a vehicle to any person at the advertised total price, exclusive of [specified charges, such as taxes and registration fees], while the vehicle remains unsold, unless the advertisement states the advertised total price is good only for a specified time and the time has elapsed[.]” Donovan,
The Hawai'i Motor Vehicle Industry Licensing Act similarly regulates advertisements for the sale of automobiles by licensed dealers. HRS § 437-4 (1993 & Supp.2000), relating to “[advertising,”- provides in relevant part:
(a) ... No new or used motor vehicle dealer shall advertise or offer for sale ... any motor vehicle not actually for sale at the premises of the dealer or available to the dealer from the manufacture[ ] or authorized new car distributor of such automobile at the time the advertisement or offer is made.
(b) False, deceptive, or misleading advertising.
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(2) Any advertised product must be available on the stated terms from inventory, or by order with delivery within a reasonable period of time.
Although HRS § 437-4 does not expressly prohibit a dealer from refusing to sell a vehicle to a customer at the advertised price so long as it has remained unsold, like the California Vehicle Code, the Hawai'i statute does, by virtue of its mandate that advertised vehicles actually be available on the advertised terms, similarly justify a consumer’s expectation that, if an automobile dealer advertises a particular vehicle at a particular cash price, the dealer intends to make a contractual offer to sell the vehicle for the stated cash price, so long as the vehicle remains unsold and the advertisement does not expressly limit the period of time within which the stated cash price remains in effect. Thus, under such circumstances, all that would be required of the consumer to conclude the contract, assuming the advertised vehicle were still available, would be to tender the advertised cash price.
In the present case, however, the Picos did not attempt to tender the advertised cash
E. The Circuit Court Correctly Denied Cutter’s Motion For Attorneys’ Fees, Costs, And Sanctions Pursuant To HRS §§ mA-U And 607-U.5 And HRCP Rule 11.
Cutter claims that the circuit court erred in denying its requests for attorneys’ fees, costs, and sanctions pursuant to HRS §§ 481A-4, see supra note 4, and 607-14.5, see supra note 5, and HRCP Rule 11, see supra note 6. We disagree.
There is no evidence in the record that the Picos knew them HRS § 481A claim to be “groundless,” as required for an award of attorneys’ fees under HRS § 481A-4(b). In any event, the award of both costs and attorneys’ fees under HRS § 481A-4(b) is within the discretion of the circuit court. See supra section II.C. Furthermore, it is apparent that the Picos’ claims were neither frivolous nor pursued in bad faith, as required for an award of attorneys’ fees and costs under HRS § 607-14.5 and sanctions under HRCP Rule 11. Thus, we cannot say that the circuit abused its discretion in ruling that the Picos’ claims were neither frivolous, groundless, nor brought in bad faith.
Accordingly, we hold that the circuit court did not err in denying Cutter’s motion for attorneys’ fees, costs and sanctions, pursuant to HRS §§ 481A-4 and 607-14.5 and HRCP Rule 11.
IV. CONCLUSION
In light of the foregoing, we vacate the amended judgment of the circuit court and remand the case for further proceedings consistent with this opinion.
Notes
. HRS chapter 480 provides in relevant part that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are unlawful.” HRS § 480-2.
. See supra note 1.
. The Picos do not argue on appeal that the circuit court erred in finding that Cutter was entitled to judgment as a matter of law regarding their tort claims of "outrage” or "concealment,” whatever those might be.
. HRS § 481 A-4(b) provides in relevant part that "[cjosts shall be allowed to the prevailing party unless the court otherwise directs. The court may award attorneys' fees to the prevailing party if ... the party complaining of a deceptive trade practice has brought an action which the party knew to be groundless
. HRS § 607-14.5(a) provides in relevant part:
[i]n any civil action in this State where a party seeks money damages or injunctive relief, ... the court may, as it deems just, assess against either party ... a reasonable sum for attorneys’ fees in an amount to be determined by the court upon a specific finding that the party’s claim or defense was frivolous.
HRS § 607-14.5(b) mandates that a court awarding attorneys’ fees "must find in writing that all claims or defenses made by the party are frivolous and are not reasonably supported by the facts and the law in the civil action.”
.In 1999, HRCP Rule 11 provided in relevant part that signed pleadings, motions, and other papers constitute a certificate by the signatory that:
to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
Effective January 1, 2000, the rule was substantially amended.
. Four of the models with a cash price could also be had for "$0 Cash down” and a monthly payment plan.
. HRS § 708-871 provides in relevant part:
(1) A person commits the offense of false advertising if, in connection with the promotion of the sale of property or services, the person knowingly or recklessly makes or causes to be made a false or misleading statement in any advertisement addressed to the public or to a substantial number of persons.
(2) "Misleading statement” includes an offer to sell property or services if the offeror does not intend to sell or provide the advertised property or services:
(a) [a]t the price equal to or lower than the price offered....
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(3) False advertising is a misdemeanor.
. See supra note 1.
. HRS § 481A-3(a) provides in relevant part:
A person engages in a deceptive trade practice when, in the course of the person's business, vocation, or occupation, the person:
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(9) Advertises goods or services with intent not to sell them as advertised;
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(11) Makes false or misleading statements of fact concerning the reason for, existence of, or amounts of price reductions; or
(12) Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
. HRS § 437—4(b)(2) provides that "[a]ny advertised product must be available on the stated
.The Picos took exception to the directive to file a more definite statement, arguing that Cutter's answer to their third amended complaint rendered a more definite statement untimely.
. Additional findings of fact and conclusions of law entered by the circuit court during the hearing on the motion are noted infra in section III.
. HRS § 607-9 provides in relevant part:
All actual disbursements, including but not limited to intrastate travel expenses for wit*315 nesses and counsel, expenses for deposition transcript originals and copies, and other incidental expenses, including copying costs, intrastate long distance telephone charges, and postage, sworn to by an attorney or a parly, and deemed reasonable by the court, may be allowed in taxation of costs. In determining whether and what costs should be taxed, the court may consider the equities of the situation.
. Effective July 15, 1998, HRS § 480-13(b)(l) was both substantively and stylistically amended in respects not directly material to our analysis in this case, see infra note 16. See 1998 Haw. Sess. L. Act 179, § 2 at 668-69.
. This is readily apparent by inserting the definition of “consumer,” as set forth in HRS § 480-1, and the definition of damages that Cutter urges into HRS § 480-13(b). The statute would then read: “Any [person who attempts to purchase goods or services] who is injured by any unfair or deceptive act or practice ... may sue for damages [resulting from their actual purchase of goods or services].” (Emphases added.)
. As indicated supra in note 14, the legislature amended HRS § 480-13(b), effective July 15, 1998. 1998 Haw. Sess. L. Act 179, § 2 at 668-69. Act 179, inter alia, added the following proviso to HRS § 480—13(b)(1):
provided that where the plaintiff is an elder, the plaintiff, in the alternative, may be awarded a sum not less than $5,000 or threefold any damages sustained by the plaintiff, whichever sum is the greater.... In determining whether to adopt the $5,000 alternative amount in an award to an elder, the court shall consider the factors set forth in section 480 13.5[.]
HRS § 480—13(b)(l) (Supp.2000). HRS § 480-13.5 (Supp.2000), which Act 179 also created, see 1998 Haw. Sess. L. Act 179, § 1 at 668, provides:
Additional civil penalties for consumer frauds committed against elders, (a) If a person commits a violation under section 480-2 which is directed toward, targets, or injures an elder, a court, in addition to any other civil penalty, may impose a civil penalty not to exceed $10,000 for each violation.
(b) In determining the amount, if any, of civil penalty under subsection (a), the court shall consider the following:
(1) Whether the person's conduct was in wilful disregard of the rights of the elder;
(2) Whether the person knew or should have known that the person’s conduct was directed toward or targeted an elder;
(3) Whether the elder was more vulnerable to the person’s conduct than other consumers because of age, poor health, infirmity, impaired understanding, restricted mobility, or disability;
(4) The extent of injury, loss, or damage suffered by the elder; and
(5) Any other factors the court deems appropriate.
*318 (c) As used in this chapter, "elder” means a consumer who is sixty-two years of age or older.
Although HRS § 480-13.5 does not govern this case, we note that there is no evidence in the record that either of the Picos was an "elder” during the relevant period.
. HRS § 480—2(b) directs that, "[i]n construing this section, die courts and die offices of consumer protection shall give due consideration to the rules, regulations, and decisions of the Federal Trade Commission and the federal courts interpreting section 5(a)(1) of the Federal Trade Commission Act (15 U.S.C. 45(a)(1)), as from time to time amended.”
Of course, the Federal Trade Commission Act, unlike HRS § 480-2, is enforced exclusively by a government agency, so the comparison, for the purposes of damages, is of limited utility and not expressly mandated by the statute. What is relevant for our purposes, however, is that "the factual predicate for the cause of action rests in deception of the public.” Federal Trade Comm'n v. Brown and Williamson,
. Because the circuit court did not reach the question whether Cutter’s advertisement in fact violated HRS § 480-2, we do not reach it either.
. This is suggested by the following colloquy during the February 24, 1999 hearing on Cutter' motion in limine, which the circuit court construed as a motion for summary judgment:
[Cutler]: And on that basis I ask that the Court dismiss their fraud claims for failing to show substantial pecuniary loss as well as misrepresentation claims.
The Court: So as far as any negligence or fraud, those would be the negligence and fraud claims?
[Cutter]: Yes.
The Court: There’s no other—I don’t think I saw any other negligence claim. I mean it’s negligent misrepresentation, the fraud or deceit which—and the contract claims.”
When the circuit court asked the Picos to address the "negligent misrepresentation question,” the Picos arguably abandoned any claims sounding in negligence of any kind by responding:
[The Picos]: I don’t think this was negligent. I didn’t allege negligence—
The Court: Okay.
[The Picos]:—to put it in our more definite statement only because Mr. Cutter in his deposition gave a basis basically for defense that they were negligent rather than intentional conduct on their part....
So, you know, Mr. Cutter kind of brings that defense in his case saying, well, we didn’t do this intentionally to defraud people. Maybe my guy who writes the ad doesn’t know any better. Okay. If that’s their defense, then that’s negligent misrepresentation on their part rather than intentional. I don’t think it’s going to fly. I think it’s totally bogus.
And, you know, I’m perfectly happy to not make .that claim because I would just as soon go to the jury and ask the jury is this intentional or not? Is this wilful or not? Is this a conscious disregard of the rights of the people who are reading this ad or not? And if it is not, if it’s negligent, they appear negligent on their part, oh, my goodness, we didn't realize recent college graduates who owned Jeeps are the only ones who qualify here for this ad. Okay. Fine. Then I’ll let Mr. Cutter off the hook and I’ll let Cuter Dodge off the hook.
And I don't think that’s the case. I think that’s bogus.
. There is no tort of "false advertising” under Hawai'i law, and we decline to establish one in this appeal.
. In Larsen,
[Hawai'i Rules of Civil Procedure QHRCP[)] Rule 9(b) provides that "[i]n all averments of fraud ... the circumstances constituting fraud or mistake shall be stated with particularity.” The rule is designed, in part, to insure the particularized information necessary for a defendant to prepare an effective defense to a claim which embraces a wide variety of potential conduct. 5 Wright & Miller, Federal Practice and Procedure % 1296 at 580 (1990). Thus, under Rule 9(b) general allegations of "fraud” are insufficient because they serve little or no informative function, Wolfer v. Mutual Life Ins. Co. of New York,3 Haw.App. 65 , 67,641 P.2d 1349 , 1359 (1982) (citing 5 Wright & Miller, Federal Practice and Procedure § 1298 at 415 (1969)); rather, a plaintiff must state the circumstances constituting fraud or mistake with particularity (e.g., allege who made the false representations) and specify the representations made. Ellis v. Crockett,51 Haw. 45 , 59,451 P.2d 814 , 823 (1969).
. Although the Picos’ third amended complaint does describe the specific circumstances giving rise to their claims, it does not expressly identify the particular common law actions that the Picos seek to assert.
. HRCP Rule 8(a) provides in relevant part:
Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
. HRCP Rule 9(b) provides in relevant part that, "[i]n all averments of fraud .. ., the circumstances constituting fraud ... shall be stated with particularity. Malice intent, knowledge, and other conditions of mind of a person may be averred generally.” We note that the Picos’ third amended complaint particularizes (1) the false representations made, (2) Cutter's knowledge of their falsity, (3) tire Picos’ reliance upon the representations, and (4) their damages. The complaint does not, however, specifically allege
. Even if the advertised financing terms were an offer, acceptance would still have been condi
. The Donovan court held that the statute did not alter the applicable common law regarding contractual offers, but, rather, changed consumer expectations, which was "relevant in determining whether defendant’s advertisement constituted an offer pursuant to governing principles of contract law.”
Concurrence Opinion
Concurring Opinion of
I concur in the majority’s resolution of the claims of Plaintiffs-Appellants/Cross-Appel-lees Mary Zanakis-Pico and Thomas M. Pico (the Picos).
I.
In their opening brief, the Picos characterize their claim for gasoline expenses as “nom
II.
With respect to awards to a plaintiff for a tort action, it is axiomatic that three basic categories exist: (1) compensatory damages (general and specific);
By contrast, “nominal damages” are “a small and trivial sum awarded for a technical injury due to a violation of some legal right and as a consequence of which some damages must be awarded to determine the right.” Van Poole v. Nippu Jiji Co.,
Thus, whereas compensatoxy damages are “monetary damages awai'ded to recompense a toi't victim for the value of the loss sustained[,]” 1 Damages in Tort Actions, supra, § 3.01, nominal damages are awarded when thei’e has been a technical invasion of a plaintiffs rights or a breach of a legal duty and either (1) no harm or damage has resulted; or (2) although the plaintiff proves harm, its amount or extent is not pi'oven with sufficient certainty to entitle him or her to an award of compensatory damages. See id. § 2.10; Black’s Law Dictionary 392 (6th ed. 1990) (“Nominal damages ai-e a trifling sum awax-ded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of [the plaintiffs] rights or a breach of the defendant’s duty, or in cases where, although there has been a real injury, the plaintiffs evidence entirely fails to show its amount.”).
Likewise, our jurisdiction has confirmed the proposition embodied in the second category. See, e.g., Neary v. Martin,
III.
A.
As noted by one treatise on tort damages, the distinction between nominal damages and small awards of compensatory damages is sometimes misapplied, leading to confusion:
It should be recognized that courts have not always been precise in their choice of terminology to describe particular damage awards. In some eases, although the plaintiff has made out a cause of action and presented sufficient proof of damages to warrant an assessment of compensatory damages, the loss or harm may be trivial in nature—justifying nothing more than a minimal award. Cou/rts have sometimes imprecisely characterized such minimal awards as “nominal damages." The use of the term “nominal damages” in these instances is technically incorrect, since the small monetary sum awarded is, in reality, compensatory for the injury sustained. It would be less confusing if the courts— and litigants—would use the term “minimal” rather than “nominal” to describe what are actually insubstantial or trivial compensatory damage awards.
1 Damages in Tort Actions, supra, § 3.01 (emphases added). See also Cowan v. Flannery,
For example, in Buden v. Dombrouskas,
Other jurisdictions have also confirmed the award of small sums of money as compensatory damages when that is all that is needed to compensate the plaintiff. See, e.g., Troknya v. Cleveland Chiropractic Clinic,
B.
Similarly, in Hawai'i case law, nominal damages have never referred to a small sum of compensatory damages. See Uyemura,
. As indicated in the foregoing discussion, the damages sought by the Picos are more accurately characterized as “compensatory,” and not nominal in the legally accepted sense. The Picos here sought, inter alia, compensatory damages of a special nature, given that compensation for travels costs is “not the necessary result”, Ellis,
The Picos sufficiently pled these special damages in the amended complaint, for purposes of Hawaii Rules of Civil Procedure (HRCP) Rule 9(g). This rule provides that, “[w]hen items of special damage are claimed, they shall be specifically stated.” By alleging “special damages in such amounts as will be proved at trial” in them amended complaint, the Picos met the specificity required in Rule 9(g). See In re Genesys Data Techs., Inc.,
The Picos’ claim for “$3.00 to $5.00 worth of gas” was clearly to compensate them for traveling to the Cutter automobile lot, rather than simply a request for a symbolic token, unrelated to any specific compensable claim.
V.
As to the Picos’ fraud allegation, nominal damages, properly defined, see supra, may be a basis for punitive damages in fraud actions, because the aim of punitive damages is to punish the defendant, rather than to compensate the plaintiff. See, e.g., Wagstaff v. Protective Apparel Corp.,
Of course, nominal damages may be the basis for punitive damages in other tort actions.
VI.
As to the Picos’ deceit and misrepresentation claims, the court concluded that these actions were barred, based upon the inaccurate characterization of the Picos’ damage as not “substantial pecuniary damage.” It must be observed that the court apparently granted summary judgment regarding all of the Picos’ tort claims because, inter alia, it believed that the Picos’ claim of three to five dollars for gasoline expenses was not “substantial” enough to satisfy a requirement of “substantial pecuniary damage.”
Cutter argued, and the court believed that the special compensatory damages alleged were not “substantial pecuniary damage,” and proof of that nature was required in order for the tort claims to proceed. As with the implied threshold in the Picos’ characterization of their gasoline expenses as “nominal,” the use of the term “substantial” similarly does not connote a threshold, as believed by Cutter and the court.
A.
In Hawai'i’s Thousand Friends v. Anderson,
(1) false representations were made by defendants, (2) with knowledge of their falsity (or without knowledge of their truth or falsity), (3) in contemplation of plaintiffs reliance upon these false representations, and (4) plaintiff did rely upon them. Further, plaintiff must show that he [or she] suffered substantial pecuniary damage for the aim of compensation in deceit cases is to put the plaintiff in the position he [or she] would have been had he [or she] not been defrauded.
Id. at 286,
B.
The element of “substantial pecuniary damage,” then, in a deceit action refers to proof of injury, i.e., pecuniary injury rather than the award of damages, as maintained by Cutter and the court. Generally, “substantial damages” are “[a] sum, assessed by way of damages, which is worth having; opposed to nominal damages, which are assessed to satisfy a bare legal right[; considerable in amount and intended as a real compensation for a real injury.” Black’s Law Dictionary at 392. See 22 Am.Jur.2d Damages § 12 (1988). By contrast, “substantial,” as it applies to the loss that a plaintiff must show to meet the requirement for damage, means “[belonging to substance; actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable.” Black’s Law Dictionary at 1428. Accordingly, in my view, “substantial actual damage,” as adopted by this court in Ellis,
1.
Rather than supporting a threshold construction, the source from which the Ellis court adopted this phrase indicates that “substantial” is used to convey certainty with respect to damages. The Ellis court adopted the term “substantial” from Prosser and Keeton on Torts, W.P. Keeton, Prosser and Keeton on the Law of Torts § 30, at 164-65 (5th ed. 1984) [hereinafter Prosser and Kee-ton on Torts], see
The cases relied upon by Professors Pros-ser and Keeton do not set a threshold, but relate to the requirement that a plaintiff show loss or injury with some certainty. For example, in Casey v. Welch,
In that ease, the California Appellate Court applied a statute which provided that, “[o]ne who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers.” Id. at 633. Stating the general rule that “[i]t is fundamental, of course, that no matter what the nature of the fraud or deceit, unless detriment has been occasioned thereby, plaintiff has no cause of action!,]” the court determined that, assuming a promise had been made, it was “difficult to see that [plaintiff] was damaged thereby!,]” when it did not appear that plaintiff relied on any promises by defendant.
2.
Other courts have also disapproved an interpretation of the term “substantial” as quoted from Prosser and Keeton on Torts as establishing a threshold amount. In Dilworth v. Lauritzen,
Plaintiff later discovered that defendants were merely attempting to obtain information about her husband’s activities. See id. She filed suit, claiming, inter alia, fraud. See id. As damages, plaintiff claimed that she had hired and paid a babysitter approximately $20.00 as a result of the invitation for the shopping spree, and that she lost time that she could have spent working for her landlord in exchange for rent credits. See id. Plaintiff sought special, general, and punitive damages. See id.
At the close of the case, the jury returned a verdict against plaintiff on the fraud charge, and therefore, did not reach the issue of damages. See id. Plaintiff requested a judgment notwithstanding the verdict, which the trial court granted. See id. The trial court determined that the plaintiff had proved damages for $20.00, but concluded that the evidence regarding damage for lost work time was “too speculative.” Id.
On appeal, defendants declared that the trial comí; had erred because “competent evidence supported the jury’s verdict of no fraud in that [plaintiff] was not damaged as a result of the undercover investigation.” Id. at 65-66. Relying upon Dilworth, supra, defendants maintained that plaintiff had to prove “substantial damage” in order to recover for fraud. Id. at 66 n. 1. The court, however, declined to read this statement as a threshold for damages. See id. “[Defendants] read[ ] Dilworth too broadly. Utah law requires that a party sustain only some injury or damage.” Id. (citations omitted).
C.
Consequently, although the term “substantial” is employed in some formulations, that
Consequently, as employed in Ellis, “substantial actual damage” is a synonym for “pecuniary damage,”
D.
Hawai'i cases have, in fact, treated the terms alike. Ellis, the first case to use the term “substantial,” employed the terms “substantial actual damage” and “pecuniary damage” interchangeably. After first stating that a plaintiff must prove “substantial actual damage,” id. at 52,
Pecuniary damages, being narrow in scope, are those damages (either general or special) which can be accurately calculated in monetaiy terms such as loss of wages and cost of medical expenses. In fraud or deceit cases, the measure of pecuniary damages is usually confined to either the “out-of-pocket” loss (see, e.g., Beardmore v. T.D. Burgess Co., ... [245 Md. 387 ]226 A.2d 329 (1967)) or the “benefit of the bargain” (difference between the actual value at time property is sold and the value it would have had if the representations had been true) (see, e.g., McInnis & Co. v. Western Tractor [&] Equip. Co., ... [67 Wash.2d 965 ]410 P.2d 908 , 910 (1966)).
Id. at 52-53,
The Intermediate Court of Appeals (ICA) has similarly construed Ellis as referring to “pecuniary damages,” inasmuch as the Ellis opinion itself uses that term as the equivalent of “substantial actual damage.” Reiterating the rule in Ellis, the ICA stated in Cresencia v. Kim,
VII.
In sum, the court’s treatment of the words “substantial pecuniary loss” as establishing a threshold requiring substantial amounts of damages to prove the injury element of actions for fraud or deceit is incorrect.
VIII.
The court apparently construed the Picos’ claim of negligence as one for negligent misrepresentation,
[CUTTER]: And on that basis I ask that the Court dismiss their fraud claims for failing to show substantial pecuniary loss as well as misrepresentation claims.
THE COURT: So as far as any negligence or fraud, those would be the negligence and fraud claims?
[CUTTER]: Yes.
THE COURT: There’s no other—I don’t think I saw any other negligence*336 claim. I mean it’s negligent misrepresentation, the fraud or deceit which—and the contract claims.
Negligent misrepresentation occurs when
[o]ne who, in the course of his [or her] business, profession or employment, or in any other transaction in which he [or she] has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by them justifiable reliance upon the information, if he [or she] fails to exercise reasonable care or competence in obtaining or communicating the information.
Restatement (Second) of Torts § 552, at 126-27 (emphasis added).
IX.
Accordingly, the court’s interpretation of the word “substantial” was incorrect, as it apparently requires a sizable amount of damage and, as indicated in the preceding discussion, was wrongly applied. The court specifically granted summary judgment for Cutter regarding all the Picos’ tort claims using this incorrect application of the “substantial pecuniary damage” standard. Therefore, the court erred when it granted Cutter’s motion for summary judgment.
With the foregoing elaboration, I agree with the disposition of this case by the majority.
. Because I believe we should endeavor to provide as much guidance as possible to the parties, counsel, and the trial courts, I wholeheartedly agree with the decision to publish this opinion. This decision applies new rules of law. Various jurisdictions, both federal and state, by rule, either mandate publication of opinions adopting new rules of law or, at the very least, advise that such opinions should be published. See 4th Cir. R. 36(a) (stating that an opinion will be published if it "establishes, alters, modifies, clarifies, or explains a rule of law within [the Fourth] Circuit”); 5th Cir. R. 47.5.1 (explaining that an opinion is published if it "establishes a new rule of law”); 6th Cir. R. 206(a) (indicating that "whether [a decision] establishes a new rule of law” is considered in determining whether an opinion is published); 7th Cir. R. 53(c)(1) (stating that "a published opinion will be filed when the decision establishes a new, or changes an existing rule of law”); Cal. R. Ct. 976(b) (determining that an opinion of the Court of Appeals or other appellate department may be published if it “establishes a new rule of law”, or fulfills other criteria); Mich. Ct. R. 7.215(A)-(B) (ordering that “[a] court opinion must be published if it ... establishes a new rule of law").
Also, as a matter of sound appellate principle, this decision is appropriately published. See ABA Standards of Appellate Courts § 3.37, at 63 (1977). ("A concurring or dissenting opinion should be published if its author believes it should be; if such an opinion is published the majority opinion should be published as well.”). Although the ABA Standards are not adopted in our jurisdiction, I believe this ABA Standard to be a salutary one.
. "General damages," as compensation sought by a plaintiff, "encompass all the damages which naturally and necessarily result from a legal wrong done. Such damages follow by implication of law upon proof of a wrong[.]” Ellis v. Crockett,
Special damages are the "natural but not the necessary result of an alleged wrong and ... depend on the circumstances peculiar to the infliction of each particular injury.” Ellis,
. Because this case establishes precedent, it has implications far beyond its own facts and will impact cases that encompass greater loss.
. When appropriate, based upon the conduct of the defendant, an award of punitive damages may be awarded in civil rights actions. See, e.g., Ault v. Lohr,
Moreover, in cases alleging constitutional violations, courts allow punitive damage awards without either compensatory or nominal damage awards. See King v. Macri,
. Cutter and the court apparently relied upon Hawaii’s Thousand Friends v. Anderson,
. The Restatement (Second) of Torts § 525 (1977) describes this action as "fraudulent misrepresentation.” It states:
One who fraudulently makes a misrepresentation of fact, opinion, intention or law for the purpose of inducing another to act or to refrain from action in reliance upon it, is subject to liability to the other in deceit for pecuniary loss caused to him [or her] by his [or her] justifiable reliance upon the misrepresentation.
Section 531 of the Restatement (1977) provides that
[o]ne who makes a fraudulent misrepresentation is subject to liability to the persons or class of persons whom he [or she] intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation, for pecuniary loss suffered by them through their justifiable reliance in the type of transaction in which he [or she] intends or has reason to expect their conduct to be influenced.
. See also Castleman v. Stryker,
. In reviewing the trial court’s grant of judgment notwithstanding the verdict, the court determined that plaintiff had not proven this damage adequately, see Tinner,
. It also may have unintended consequences. For example, class action suits are often for small sums per individual plaintiff, but the aggregate may be enormous when combining the total
Aggregating the damage of the class presents its own problems under a threshold rubric. Even assuming that each plaintiff’s "insubstantial loss” may be aggregated for purposes of meeting such a substantiality threshold, an individual plaintiffs claim, prior to certification, remains vulnerable to dismissal. Many class action lawsuits are initially begun by one plaintiff, who files a complaint, and thereafter, attempts to certify the class. A defendant may file a Rule 12(b) motion to dismiss for failure to state a claim prior to this certification. Accordingly, a race to the courthouse may be created, wherein a defendant who requests dismissal quickly may evade tort liability, and a plaintiff with damage not reaching the threshold must certify the class before such a motion eliminates the plaintiff's claim. At the very least, this would have the effect of chilling individual plaintiffs from pursuing actions, thereby allowing large-scale fraud when damage to individual plaintiffs is minimal, and, thus, does not meet the "substantial” threshold.
.Most jurisdictions simply require a showing of some pecuniary loss or damage. See, e.g., Echols v. Beauty Built Homes, Inc.,
. Our case law indicates that a negligent misrepresentation requires that "(1) false information be supplied as a result of the failure to exercise reasonable care or competence in communicating the information; (2) the person for whose benefit the information is supplied suffered the loss; and (3) the recipient relies upon the misrepresentation." Blair,
. As to any claim of simple negligence by the Picos, I would note that Cutter, correctly, did not advance a similar argument that there is a threshold requirement for damage in a negligence action. Instead, Cutter argues that any simple negligence claim fails on the element of duty, inasmuch as, according to Cutter, it owes no duty to the Picos.
. Although not specifically cited to by either party, the court apparently believed that the Restatement (Second) of Torts § 552, which provides a cause of action for “information negligently supplied for lire guidance of others in their business transactions[,]” id., applied in the present situation. It is unclear whether the Picos’ rely upon other Restatement sections in support of their generically described "action in tort[.]“
In addition to fraudulent misrepresentations, the Restatement (Second) of Torts provides for a variety of tort actions based upon concealment or nondisclosure, the liability for which depends upon the culpability of the defendant. For example, intentional concealment or nondisclosures, see id. at § 550 (“One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.”); § 551 (duty of disclosure in business transactions), negligent misrepresentations, see § 552, and innocent misrepresentations, see § 552C (misrepresentations of a material fact in a sale, rental or exchange transaction with another).
All of these tort actions allow for "pecuniary loss,” unmodified by the terms "substantial” or "actual.”
. Accordingly, adopting the "substantial” threshold also leads to an inconsistent result when comparing fraud or deceit (intentional misrepresentation), with negligent misrepresentation. An erroneous construction of the term "substantial" in deceit or fraud cases may result in two different standards of damage, one for intentional misrepresentation (substantial amount of pecuniary damages) and another for negligent misrepresentation (no threshold, only pecuniary damages). The untoward result would be that a plaintiff with minimal damages would be able to recover from a defendant who had acted only negligently, while the same plaintiff with the same damage would not be able to recover from a defendant who had acted fraudulently.