ALYSSA M. BAILEY, Plaintiff-Appellant,
JOHN ANTHONY SIRACUSA and SANDRA G. SIRACUSA, dba METRO MOTORS, Defendants-Appellees
NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 11-1-0278-02)
Charles S. Lotsof for Plaintiff-Appellant.
Philip R. Brown Effie Steiger Justin M. Chu (Law Offices of Philip R. Brown) for Defendants-Appellees.
Nakamura, C.J., Foley and Ginoza, JJ.
SUMMARY DISPOSITION ORDER
Plaintiff-Appellant Alyssa M. Bailey (Bailey) appeals from the Judgment filed July 10, 2012 in the Circuit Court of the First Circuit (circuit court) in favor of Defendants-Appellees John Anthony Siracusa (Siracusa) and Sandra G. Siracusa, after a bench trial.
Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised by the parties, as well as the relevant statutory and case law, we conclude Bailey's appeal is without merit.
Bailey first contends the circuit court erred by failing to find Siracusa's statement that a vehicle sold to her by Siracusa, co-owner of Metro Motors, "was in good working order" was false. In light of undisputed evidence that the vehicle was driven for 6, 657 miles during the eight month period after it was sold to Bailey, and the unchallenged finding that except for an oil change Bailey did not repair or service the vehicle the entire time she owned it, the circuit court's finding that the vehicle was in "good working order" was not clearly erroneous. Chun v. Bd. of Trustees of the Employees' Ret. Sys. of the State of Hawai'i, 106 Hawai'i 416, 430, 106 P.3d 339, 353 (2005).
Bailey's second contention is that Siracusa's statement that the vehicle was in good working order misled her in violation of Hawaii Revised Statutes (HRS) § 480-2 (2008 Repl.).Under HRS § 480-2:
A deceptive act or practice is (1) a representation, omission, or practice that (2) is likely to mislead consumers acting reasonably under the circumstances where (3) the representation, omission, or practice is material. The representation, omission, or practice is material if it is likely to affect a consumer's choice. Whether information is likely to affect a consumer's choice is an objective inquiry, turning on whether the act or omission is likely to mislead consumers as to information important to consumers in making a decision regarding the product or service.
Nakamura v. Countrywide Home Loans, Inc., 122 Hawai'i 238, 247-48, 225 P.3d 680, 689-90 (2010) (citations and internal quotation marks omitted).
"Any contract or agreement" that violates HRS § 480-2 "is void and is not enforceable at law or in equity." HRS § 480-12 (2008 Repl.). The first and third elements of a deceptive act or practice are present in Siracusa's statement, because it represented the condition of the vehicle and the vehicle's condition at the time of sale was material (i.e., likely to affect a consumer's choice). See Nakamura, 122 Hawai'i at 247-48, 225 P.3d at 689-90. Whether Siracusa's statement was "likely to mislead consumers acting reasonably under the circumstances[, ]" the second element, presents a mixed question of law to fact that we address under a "clearly erroneous" standard. Id.; and see Chun, 106 Hawai'i at 430, 106 P.3d at 353.
Siracusa asserts that he informed Bailey, "there is no such thing as a perfect used car" and explained Metro Motors' disclaimer, stating, "used means used." Moreover, the Buyer's Guide provided to Bailey and signed by her clearly stated the car was being purchased "as is - no warranty." These statements were part of the record the circuit court considered when it reviewed the circumstances under which Bailey alleges she was misled by Siracusa's statement that the vehicle was in good working order. Because the circuit court could have reasonably concluded that a customer who was acting reasonably under these circumstances would not likely be led to believe the vehicle had no defects, we conclude the circuit court did not clearly err by rejecting Bailey's claim under HRS § 480-2. See Nakamura, 122 Hawai'i at 247, 225 P.3d at 689.
Bailey's third contention is that the circuit court's conclusion that she failed to prove she incurred economic damages as a result of Siracusa's statements constitutes reversible error. The circuit court did not err in finding Bailey "offered no evidence of economic damages resulting from the sale of the Subject Vehicle" and concluded "[Siracusa] ...