Opinion
C.A. No. 99A-07-011.
Submitted: March 13, 2000.
Decided: May 11, 2000.
Upon appeal from a Decision of the Court of Common Pleas
ORDER
This 11th day of May, 2000, upon consideration of the briefs filed by counsel and the record below, it appears that:
(1) This is an appeal from the Court of Common Pleas, following its decision of February 25, 1999, awarding plaintiff Neville A. Gordon ("Gordon") $2863.54 in damages, prejudgment interest, and statutory damages of $550.00 pursuant to 6 Del. C. § 9-507.
(2) The facts as determined by the trial court are as follows. Gordon purchased a used Chevrolet Astro van (the "van") from Defendant Randall V. Stickney d/b/a Randall's Cute Little Coupes ("Stickney") in August 1994. Stickney represented that the van's mileage was approximately 37, 707 miles, but did not, at the time of purchase, provide an odometer disclosure statement as required by law. Gordon relied in part on the mileage representation when purchasing the van. In March 1995, Gordon had the van serviced, at which time he learned that the van had a higher mileage than what Stickney had represented. In April 1995, while obtaining title to the van, Gordon was finally given the odometer disclosure statement. At that time, Gordon learned that the actual mileage on the van had been approximately 137, 707 miles. Gordon attempted to return the van to Stickney, in exchange for his money back, but Stickney refused. Shortly thereafter, Gordon stopped making payments on the van and it was repossessed by Stickney in July 1995 and sold at auction shortly thereafter. Gordon was not given notice regarding the sale of the van as required by 6 Del. C. § 9-507.
(3) Gordon filed an action against Stickney in April 1997 seeking damages because of Stickney's misrepresentations regarding the van's mileage and because the van was unlawfully repossessed. The complaint had twelve counts, primarily based in fraud, and included claims under Federal Odometer Act, 49 U.S.C. § 32710, and the Deceptive Practices in Consumer Contracts
49 U.S.C. § 32710 states:
(a) Violation and amount of damages. — A person that violates this chapter or a regulation prescribed or order issued under this chapter, with intent to defraud, is liable for 3 times the actual damages or $1,500, whichever is greater.
(b) Civil actions. — A person may bring a civil action to enforce a claim under this section in an appropriate United States district court or in another court of competent jurisdiction. The action must be brought not later than 2 years after the claim accrues. The court shall award costs and a reasonable attorney's fee to the person when a judgment is entered for that person. (Emphasis added)
Act, 6 Del. C. § 2731 et seq. Because Stickney failed to respond to discovery, a default judgment was entered against him on April 17, 1998. Stickney subsequently filed a motion to amend the default judgment; the motion was granted to the extent that an inquisition hearing was held by the Court of Common Pleas on October 22, 1998 on the issue of damages.
6 Del. C. § 2732 states in pertinent part: In a contract for the sale or lease of merchandise to a consumer, a person engages in a deceptive practice when that person knowingly or recklessly:
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(2) Omits information required by law to be disclosed in contracts with a consumer.
6 Del. C. § 2734 states in pertinent part:
(a) Any person who engages in a deceptive practice governed by this subchapter shall be liable to a consumer in an amount equal to treble the amount of actual damages proved, plus reasonable attorney's fees.
(4) At the inquisition hearing, Stickney attempted to present evidence contesting the van's repair costs. The Court accepted Gordon's testimony that $293.54 had been spent on repairs to the vehicle. The Court heard arguments on damages and final submissions were made on January 29, 1999.
(5) In its decision, the Court of Common Pleas made the following rulings:
The parties entered into a contract for the sale of a vehicle and defendant failed to live up to the contract he made with plaintiff. Defendant delivered to plaintiff a vehicle which was substantially not as represented and defendant thereafter improperly repossessed that vehicle. Plaintiff is entitled to recover what he gave to the defendant for the vehicle which was not in fact the vehicle the plaintiff was led to believe he was buying. Therefore, defendant is obligated to repay to the plaintiff all of the payments which he received on account of this failed contract. (Citations omitted). In addition plaintiff has been deprived of the costs which he expended on this vehicle and the Court concludes that he is entitled to recover those costs.
Gordon v. Stickney, Del. CCP, C.A. No. 1997-022, Fraczkowski, J. (Feb. 25, 1999).
Gordon v. Stickney, Del. CCP, C.A. No. 1997-022, Fraczkowski, J. (Feb. 25, 1999).
Gordon was awarded the total amount of payments he made on the van, $2570.00, plus repair costs of $293.54, for a total of $2863.54, plus prejudgment interest. In addition, Gordon was awarded $550.00 in statutory damages for violating the Uniform Commercial Code ("UCC"), 6 Del. C. § 9-507, because of the improper repossession of the van. Treble damages pursuant to 49 U S.C. § 32710 were not awarded because the Court found that Gordon knew of the odometer misrepresentation more than two years before the action was filed. The Court did not address Gordon's entitlement to treble damages or attorney's fees pursuant to 6 Del. C. § 2731 et seq.
Defendant concedes these damages were properly awarded.
(6) Gordon does not appeal the award of actual damages in the amount of $2863.54, but seeks treble damages in the amount of $8590.62 pursuant to both 49 U.S.C. § 32710 (a), and 6 Del. C. § 2734 (a). Gordon argues that the Court of Common Pleas erred by allowing Stickney to plead the statute of limitations as an affirmative defense to § 32710 since the defense was not timely asserted in accordance with Court of Common Pleas Civil Rule 8(c). In addition, Gordon argues he is entitled to $6,787.50 in attorney's fees pursuant to 49 U.S.C. § 32710(b) and 6 Del. C. § 2734 (a). He contends that this fee is reasonable and that an award is required.
(7) Stickney filed a cross-appeal arguing that Gordon is only entitled to $550.00 in statutory damages for the UCC violation. Stickney contends that the Court of Common Pleas erred by awarding both restitution-the amount Gordon paid towards van, and damages-the repair fees, which he asserts are mutually exclusive. He contends that there was no evidence to award either remedy because the court below did not find that the contract was rescinded. Stickney argues that the only possible basis for the court to award damages was the repair fees, but that the court erred by awarding those fees without hearing evidence as to whether the $293.54 was related to Gordon's claims. Stickney argues that in the event treble damages are awarded, only the repair fees should be trebled.
In response, Gordon argues that the only way to restore him to the position he was in prior to the purchase of the van is to award damages in the amount he paid. While other measures of damages my be appropriate if the van had not been improperly repossessed, he cannot be charged with a failure of proof resulting from the defendant's intentional misconduct.
(8) Appeals in civil cases from the Court of Common Pleas to this Court are on the record and not de novo. In addressing appeals from a trial court, this Court is limited to correcting errors of law and determining whether substantial evidence exists to support factual findings. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. It is not the duty of the reviewing court to weigh the evidence, determine the questions of credibility or make its own factual findings. When the determination of facts rests on a question of credibility and acceptance or rejection by the trial Judge of live testimony, the trial Judge's findings will be approved on review. The factual findings in this case will not be overturned on appeal if they are "sufficiently supported by the record and are the product of an orderly and logical deductive process."
10 Del. C. § 1326(c); Super. Ct. Civ. R. 72(g).
Shahan v. Landing, Del. Super., 643 A.2d 1357 (1994).
Oceanport Indus. v. Wilmington Stevedores, Inc., Del. Supr., 636 A.2d 892, 899 (1994).
Johnson v. Chrysler Corp., Del. Supr., 213 A.2d 64, 66 (1965).
Levitt v. Bouvier, Del. Supr., 287 A.2d 671, 673 (1972).
Id.; Ensminger v. Merritt Marine Const., Del. Supr., 597 A.2d 854, 855 (1988).
(9) The first issue to consider on appeal is Stickney's contention that the award of damages in the amount of $2863.54 was improper. In light of the entry of a default judgment against him and the fact that the van was unavailable to plaintiff due to Stickney's improper conduct in repossessing and selling the van, the award of damages in the amount of $2863.54, plaintiff's total out-of-pocket expenses, is a reasonable and appropriate assessment of actual damages.
(10) I must next determine whether the $2863.54 should be trebled. Gordon seeks treble damages and attorney's fees pursuant to both 49 U.S.C. § 32710, and 6 Del. C. § 2734. Section 32710, which creates the civil remedy, provides that "[t]he action must be brought not later than 2 years after the claim accrues." The federal "discovery rule" is applicable to § 32710; therefore, a cause of action accrues when the plaintiff either discovers or, in the exercise of due diligence, could have reasonably discovered the fraud. The Court of Common Pleas did not award damages pursuant to § 32710 because it found that Gordon was aware of the odometer misrepresentation in March 1995, more than two years before the action was filed. The plaintiff's complaint supports that conclusion. Gordon misapprehends the Court's ruling. The Court properly found that an element of the statute was not proven. The Court did not permit an untimely assertion of a defense. Therefore, the Court of Common Pleas' decision denying Gordon recovery under § 32710 is supported by substantial evidence and must be AFFIRMED.
Carrasco v. Fiore Enterprises, D. Ariz., 985 F. Supp. 931, 935-36 (1997) (citations omitted).
Gordon's claim under 6 Del. C. § 2731 et seq. was alleged in the complaint. However, that basis for an award of treble damages was not addressed by the Court of Common Pleas in its decision. Section § 2732 states in part, "a person engages in a deceptive practice when that person knowingly or recklessly:. . . . (2) Omits information required by law to be disclosed in contracts with a consumer." Stickney failed to provide an accurate odometer statement until April 17, 1995, some eight months after plaintiff had signed a contract to purchase the vehicle and some five months after plaintiff paid $2000 in cash and took possession of the vehicle. The withholding of that information is a violation of 6 Del. C. § 2732. Consequently, the Court of Common Pleas erred by not awarding treble damages and attorney's fees pursuant to § 2734(a). This issue is REMANDED with directions for the Court of Common Pleas to enter an award of $8590.62 in treble damages and reasonable attorney's fees.
6 Del. C. § 273 2(2).
(11) For the foregoing reasons, the decision of the Court of Common Pleas is AFFIRMED in part and REMANDED in part.
IT IS SO ORDERED.
Judge Susan C. Del Pesco.