No. 52962-5-I.The Court of Appeals of Washington, Division One.
Filed: October 18, 2004.
Appeal from Superior Court of King County. Docket No. 02-2-07097-3. Judgment or order under review. Date filed: 08/22/2003. Judge signing: Hon. James a Doerty.
Counsel for Appellant(s), Frederick H. Ockerman, Attorney at Law, 9757 NE Juanita Dr Ste 100, Kirkland, WA 98034-4275.
Counsel for Respondent(s), Brian Haig Krikorian, Attorney at Law, 999 3rd Ave Ste 3210, Seattle, WA 98104-4049.
COLEMAN, J.
Appellant Russ Newkirk purchased a 1992 Alfa Romeo from Cosmopolitan Motors. Included in the sales contract was a handwritten statement that the car was being sold `as-is’ with the exception of two repairs Cosmopolitan agreed to make. Additionally, the parties signed a `Buyers Guide’ that again stated that the car was being sold `as-is.’ After purchasing the car, Newkirk spent several thousand dollars on maintenance and repairs to the car. Newkirk sued Cosmopolitan, seeking damages and injunctive relief. The trial court granted summary judgment in favor of Cosmopolitan. We affirm the trial court’s decision because (1) Newkirk waived all implied warranties, (2) Cosmopolitan’s advertisement was not false, misleading, or deceptive, and (3) there is no evidence that the car was unsafe or inoperable.
FACTS
Russ Newkirk responded to Cosmopolitan Motors’ advertisement stating: `ALFA ROMEO: 1991[1] 164 sport sedan, white w/black interior, 5-speed, excellent driver, excellent price, 108,000 miles, $4,500.’ When Newkirk first inquired about the car, Cosmopolitan informed him that it was replacing the transmission. Newkirk contacted Cosmopolitan again and eventually took the vehicle for a test drive with one of Cosmopolitan’s mechanics, Steve Kagi. During the test drive, Newkirk noticed that the odometer was not working, the brake warning lights remained on, and the seat switches were not working. After the test drive, Newkirk and Cosmopolitan’s owner, Evan McMullen, negotiated the sale of the car. On the purchase order, McMullen wrote: “as-is’ with no warranty stated or implied. . . . Purchaser will bring car in to replace seat switch and speedometer cable.’ Newkirk alleges that McMullen also agreed to fix the brake warning light. McMullen denies agreeing to make the repairs, and no promise to repair is included in the paperwork. McMullen and Kagi stated that they were unable to fix the brake warning light because Cosmopolitan did not have the necessary diagnostic equipment. Additionally, Newkirk signed a `Buyers Guide’ which stated: `AS IS NO WARRANTY. YOU WILL PAY THE COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.’ Newkirk paid $4,500 for the vehicle and drove it off the lot.
Newkirk returned the vehicle to Cosmopolitan for repair of the seat switches and the odometer. Newkirk also took the car to Ferrari of Seattle for various repairs and maintenance. Newkirk requested reimbursement from Cosmopolitan for the brake warning light repairs. Cosmopolitan offered Newkirk either $100 or $150 to pay for the brake warning light repairs, but Newkirk would not accept less than the $500 that he was requesting. Newkirk then wrote a letter to the Attorney General’s office and filed suit against Cosmopolitan, alleging he spent $6,544.05 on repairs. Newkirk sought damages and injunctive relief alleging that: (1) the advertisement was false, deceptive and/or misleading in violation of RCW 46.70.180(1); (2) the car did not meet the safety standards for vehicles under chapter 46.37 RCW as required by RCW 46.70.101; (3) Cosmopolitan breached its implied and express warranties; (4) Cosmopolitan violated the Consumer Protection Act; and (5) Newkirk revoked his acceptance under RCW 62A.2-607 and is entitled to rescission of the contract. Newkirk also sought to enjoin Cosmopolitan from further violating RCW 46.70.180 by selling vehicles that did not meet the safety standards found in chapter 46.37 RCW and by refusing to honor the implied warranty of merchantability without obtaining a proper waiver pursuant to RCW 62A.2-316(4). Both parties brought summary judgment motions. The trial court granted Cosmopolitan’s motion for summary judgment and awarded attorney fees to Cosmopolitan under RCW 4.83.250 and .270. Newkirk filed a motion for reconsideration, and the trial court denied the motion. Newkirk then filed a notice of appeal.
STANDARD OF REVIEW
We review a trial court’s order granting summary judgment de novo. Smith v. Safeco Ins. Co., 150 Wn.2d 478, 483, 78 P.3d 1274 (2003).
ANALYSIS
We first address whether the trial court erred in determining that Newkirk waived all implied warranties. In order to waive implied warranties in the sale of consumer goods, the parties must specifically negotiate for the waiver and the waiver must state, with particularity, the qualities and characteristics that are not warranted. RCW 62A.2-316; Thomas v. Ruddell Lease-Sales, Inc., 43 Wn. App. 208, 214, 716 P.2d 911 (1986). `[U]nless the circumstances indicate otherwise, all implied warranties are excluded by expressions like `as is’, `with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and make plain that there is no implied warranty[.]’ RCW 62A.2-316(3)(a). The disclaimers here used the term of art `as is,’ and therefore, they were sufficient to state with particularity which qualities and characteristics were not being warranted.
The issue, therefore, is whether the disclaimers of warranty were specifically negotiated. Newkirk relies on four cases where the courts held that disclaimers were not effective. See Miller v. Badgley, 51 Wn. App. 285, 293, 753 P.2d 530 (1988) (holding that there was no evidence that the parties negotiated the waiver); Thomas, 43 Wn. App. at 46-47 (holding that there was no evidence that the parties explicitly negotiated the wavier and that the seller did not adequately inform the buyer of the qualities and characteristics not being warranted); Rottinghaus v. W. Cold Storage Co., 35 Wn. App. 99, 104, 666 P.2d 899 (1983) (holding the attempted waiver ineffective because it was made after the contract was formed, there was no evidence of specific negotiation, and the waiver did not specifically notify the buyer what qualities and characteristics were being disclaimed); Testo v. Russ Dunmire Oldsmobile, Inc., 16 Wn. App. 39, 47, 554 P.2d 349
(1976) (holding that there was no evidence that the parties negotiated the wavier and Testo did not know the `true nature of the commodity’).
Newkirk acknowledged and signed two disclaimers of warranty. The first disclaimer was the `Buyers Guide,’ which was displayed in the window of the vehicle. The second disclaimer was a handwritten statement in the purchase order, stating that the vehicle was being sold `as is’ and that Cosmopolitan would make certain repairs. Additionally, in his deposition, Newkirk discussed his understanding of the contract and the `as is’ term:
Q: What did you understand when you were buying the car that `as is’ with no warranty, did you have an understanding when you signed this document what that meant?
A: That he had not sold me an extended warranty on the vehicle.
Q: Okay.
A: He hadn’t offered me a warranty on the car, you know, as a condition of sale or anything other than the items that he said he’d fix.
While any one of these factors alone may not be sufficient to disclaim the implied warranties, the two disclaimers and Newkirk’s admission about the `as is’ nature of the sale show that the parties did negotiate the disclaimer. Because the parties specifically negotiated for the waiver, it is effective to disclaim the implied warranties.
Newkirk also argues that any disclaimer could not be effective because he did not know the `true character of the commodity’ he was purchasing. See Testo, 16 Wn. App. at 47. In Testo, Thomas, and Miller, the sellers knew something about the nature of the goods that they did not disclose to the buyers. That is not the situation here. There is no evidence that Cosmopolitan knew, or should have known, about any of the alleged problems with the vehicle. Moreover, the very purpose of the `as is’ qualification is to acknowledge that the seller is not responsible for any future problems with the goods. Holding that an `as is’ waiver is not effective with regard to defects not known at the time of sale would render the qualification meaningless. Under these circumstances, we hold that the disclaimer was effective to waive all implied warranties.
We next address whether Cosmopolitan’s advertisement stating that the vehicle was an `excellent driver’ and that it had 108,000 miles was false, misleading, or deceptive in violation of RCW 46.70.180(1). In order to bring a private claim under the Consumer Protective Act (CPA), a party must show: (1) an unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) a public interest impact; (4) injury to the plaintiff’s business or property; and (5) causation. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wn.2d 778, 783-84, 719 P.2d 531 (1986). The first two elements of the test may be satisfied by specific legislative determinations that particular acts constitute `per se unfair trade practice.’ Hangman, 105 Wn.2d at 786. Additionally, the third element may be satisfied by showing violation of specific statutes that the legislature deemed `per se public interest.’ Hangman, 105 Wn.2d at 792. Here, the legislature designated violations of chapter 46.70 RCW as per se unfair trade practices affecting public interest. RCW 46.70.310. Newkirk claims that Cosmopolitan violated RCW 46.70.180(1), and therefore violated, per se, the CPA. Under RCW 46.70.180(1), it is unlawful `[t]o cause or permit to be advertised, printed, displayed, published, distributed, broadcasted, televised, or disseminated in any manner whatsoever any statement or representation with regard to the sale or financing of a vehicle which is false, deceptive, or misleading[.]’ Newkirk argues that Cosmopolitan’s advertisement was false, deceptive, and misleading because it misstated the mileage reading and labeled the vehicle as an `excellent driver.’ While it is true that the mileage was more than the 108,000 miles advertised, there is no indication that Newkirk was in anyway deceived by the misstatement and the difference in actual mileage was relatively minor. Cosmopolitan informed Newkirk of the actual mileage and also discussed the temporary malfunction of the odometer. Under these circumstances, the statement of mileage in the advertisement was not a violation of RCW 46.70.180(1).
Newkirk also argues that describing the car as an `excellent driver’ was a deceptive and misleading statement under RCW 46.70.180(1). Newkirk testified about his understanding of the term `excellent driver:’
Q: Okay. Looking at the ad, it says, `1991 164 sports sedan, white with black interior, five-speed, excellent driver, excellent price, 108,000 miles, $4,500.’ What did you understand `excellent driver’ to mean?
A: That it would be an excellent driver. Pretty self-explanatory term.
Q: Is there any term of art in the industry of what an `excellent driver’ means as far as you know in the car industry versus as a lay person who doesn’t deal with cars all the time? Do you follow my distinction?
A: You know, a driver would vary from a roller or a driver would vary from a wreck or, you know, one that drives drives. One that rolls rolls. A wreck needs a tow.
Thus, by Newkirk’s own admission, an excellent driver is a car that drives well. Here, there is no evidence that the car did not drive well. Under these circumstances, Cosmopolitan’s advertisement for the 10-year-old Alfa Romeo with 108,000 as an excellent driver was not false, deceptive, or misleading in violation of the CPA.
Newkirk also argues that the trial court erred in determining that he did not have a valid claim under RCW 46.70.101. Under RCW 46.70.101(1)(b)(viii), the Department of Licensing may revoke, suspend, or deny a motor vehicle dealer’s license if the dealer `[h]as engaged in practices inimical to the health or safety of the citizens of the state of Washington including but not limited to failure to comply with standards set by the state of Washington or the federal government pertaining to the construction or safety of vehicles[.]’ Newkirk argues that the Alfa Romeo was unsafe at the time of sale because the brakes did not function properly, the suspension was worn or broken, the fuel system was damaged, and the odometer did not register actual miles. Newkirk argues that these safety violations constitute a violation of the CPA. The evidence, however, does not support Newkirk’s arguments that the vehicle was unsafe or inoperable at the time of sale, and therefore, the trial court’s order denying Newkirk’s motion for partial summary judgment was proper.
First, Newkirk argues that the brakes were not maintained in good working order. Prior to sale, a Cosmopolitan mechanic inspected the braking system and determined that the brakes were safe and that the malfunctioning brake warning light was a wiring issue. Ferrari of Seattle also inspected the brakes, determined that the brakes were operating safely, and eventually determined that a faulty computer caused a failure of the anti-lock portion of the braking system. There is no evidence to suggest that the brakes were unsafe at the time of sale, and in fact, Newkirk continued to drive the car at least up until the suit was filed.
Newkirk also argues that the car was unsafe because the suspension was worn or broken. Again, there is no evidence that the car was unsafe because of the suspension. Ferrari of Seattle noted that the suspension was rusted, but did not note that this was an issue that needed repair. Six months after Newkirk purchased the car, Ferrari of Seattle noted that `Rack and pinion below are torn. Driver’s seat control center is loose. Slight oil leak.’ Again, there is no indication that this made the vehicle unsafe or inoperable.
The same is true for the fuel system. Six months after Newkirk purchased the vehicle, Ferrari of Seattle noted that it replaced two hoses and clamps on the fuel pump and that found rust in the bottom of the fuel cup and filter. The repair order does not state that the car was unsafe or inoperable.
Newkirk’s final safety complaint involved the odometer. It is undisputed that the odometer was not functioning properly when Newkirk first purchased the vehicle. Cosmopolitan, however, did repair the odometer as promised. Newkirk states that he noticed that the vehicle was registering miles when it was at a standstill about a year and a half after he purchased the vehicle. Because of the remoteness of this discovery, it does not prove that the odometer was not working properly immediately after Cosmopolitan’s repairs.
The purpose of the statutes dealing with the safety of used cars is to protect the public from purchasing cars that are inoperable or unsafe. The purpose cannot be to ensure that used cars have no mechanical problems or will not need any additional repairs. Here, Newkirk has not presented evidence to show that the car was unsafe. Therefore, we affirm the trial court’s denial of Newkirk’s motion for partial summary judgment.[2]
Finally, Cosmopolitan requests attorney fees on appeal. RCW 4.84.250
provides for an award of attorney fees in certain cases:
Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for damages where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys’ fees. After July 1, 1985, the maximum amount of the pleading under this section shall be ten thousand dollars.
RCW 4.84.270 defines a prevailing party:
The defendant, or party resisting relief, shall be deemed the prevailing party within the meaning of RCW 4.84.250, if the plaintiff, or party seeking relief in an action for damages where the amount pleaded, exclusive of costs, is equal to or less than the maximum allowed under RCW 4.84.250, recovers nothing, or if the recovery, exclusive of costs, is the same or less than the amount offered in settlement by the defendant, or the party resisting relief, as set forth in RCW 4.84.280.
Here, Cosmopolitan is a prevailing party because Newkirk did not recover anything from his suit. Newkirk does not dispute the fact that his original complaint sought less than $10,000 in damages, but rather argues that because he also sought injunctive relief, RCW 4.48.250 cannot apply. Seeking injunctive relief in addition to damages does not preclude application of the fee statute. Hanson v. Estell, 100 Wn. App. 281, 290, 997 P.2d 426 (2000). Therefore, Cosmopolitan is entitled to attorney fees on appeal subject to compliance with RAP 18.1.
Affirmed.
GROSSE and APPELWICK, JJ., concur.