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Rathgeber v. James Hemenway8/15/2001
id not have."
Defendants filed a pretrial motion to strike plaintiffs' request for emotional distress damages, arguing that such damages were not recoverable because plaintiffs' underlying loss was solely economic. The trial court denied the motion. At the conclusion of trial, defendants moved for a directed verdict on plaintiffs' UTPA claim based on ORS 646.608(1)(e), arguing that Zobel had not made any representations furnishing a basis for that claim. Plaintiffs replied that defendants' primary misrepresentation appeared in the disclosure form, which characterized Zobel's role as a buyers' agent and which expressly represented that Zobel would act with diligence. The trial court denied the directed verdict motion as well, stating that it would "allow this to go to the jury with respect to the claim of qualities of qualification, in that second part of (e), under the Unlawful Trade Practices Act."
At trial, plaintiffs presented evidence that Zobel failed to adequately investigate the property to discover foundation problems; failed to procure a dependable dry rot report; relied on a dry rot report that should have been questioned; failed to bring to plaintiffs' attention potential problems with the roofing and a loose light-switch cover that he noticed; failed to insert in the purchase offer a contingency clause related to the sale of plaintiffs' Portland home; failed to provide plaintiffs a property disclosure statement at the proper time; glossed over electrical problems and trash discovered on the property after plaintiffs took possession; pressed plaintiffs to proceed to closing despite plaintiffs' reservations; and failed to tell plaintiffs at any time that they had five days to rescind the transaction. At the conclusion of trial, the trial court instructed the jury that, to recover under ORS 646.608(1)(e), plaintiffs must have proved "that the defendants violated the [UTPA] by willfully representing to plaintiffs that defendants' services as buyers' agents had qualities of competency and diligence that they did not have." (Emphasis added.) The jury returned a verdict for plaintiffs, finding that defendants had breached fiduciary duties and violated the UTPA. The jury awarded economic damages of $13,600 and non-economic damages of $20,000. Pursuant to ORS 646.638(3), the trial court entered a supplemental judgment awarding plaintiffs $31,629 in costs and attorney fees.
On appeal, three of defendants' assignments of error require discussion. We begin with defendants' contention that the trial court erred in denying their motion for a directed verdict on plaintiffs' UTPA claim. Defendants argue that (1) the disclosure form, mandated by ORS 696.820, did not constitute an actionable representation under ORS 646.608(1)(e); (2) the fiduciary duties listed in the form did not relate to "qualifications" as that term is used in ORS 646.608(1)(e); and (3) evidence of a single episode of negligence is insufficient as a matter of law to support a finding of willfulness under the UTPA. See ORS 646.605(10) ("A willful violation occurs when the person committing the violation knew or should have known that the conduct of the person was a violation."). Plaintiffs respond that "the core of plaintiffs' claims is about diligence and service," and that "the jury was squarely presented with the issue of whether Zobel's services were of the kind that a buyers' agent gives" in the face of an express representation that Zobel would act as a buyers' agent.
We can reverse the trial court's denial of defendants' directed verdict motion only if the record reveals a complete lack of evidence on one or more elements of the UTPA claim. Seidel v. Time Ins. Co., 157 Or App 556, 561, 970 P2d 255 (1
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