This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Nicole D. Lofquist,





Whitaker Buick-Jeep-Eagle, Inc.,



Robert Kelly, et al.,



Filed ­­­December 4, 2001


Harten, Judge


Ramsey County District Court

File No. C8-99-2068


Gregory J. Johnson, Klay C. Ahrens, Johnson & Van Vilet, L.L.P., First National Bank Building, 332 Minnesota Street, Suite W975, Saint Paul, MN  55101 (for appellant)


Richard J. Fuller, Mansfield, Tanick & Cohen, P.A., 1560 International Centre, 900 Second Avenue South, Minneapolis, MN  55402-3383 (for respondent) 


            Considered and decided by Amundson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N




            Financed through an installment sales contract and the trade-in of her vehicle, respondent Nicole Lofquist purchased a car and a service contract from appellant Whitaker Buick-Jeep-Eagle, Inc.  In resulting litigation, the district court ruled that Whitaker violated the Motor Vehicle Retail Installment Sales Act (MVRISA), the Consumer Fraud Act (CFA), and the Uniform Deceptive Trade Practices Act (UDTPA) and granted an injunction requiring Whitaker to disclose certain information in future sales and to disclose to respondent certain information about prior sales.  We conclude that this record does not show enjoinable violations of the MVRISA, CFA, and UDTPA and reverse the injunction. 


            This lawsuit stems from appellant’s sale of a car and an associated service agreement to Nicole Lofquist.  The district court issued a February 2000 order granting Lofquist partial summary judgment on her claim that Whitaker’s disclosures regarding the price of the vehicle being sold violated the MVRISA.  In April 2001, the district court granted Lofquist partial summary judgment on her claim that Whitaker’s disclosures regarding the service agreement constituted an unlawful trade practice.  The district court also certified a class action against Whitaker and granted Lofquist an injunction forbidding Whitaker from reciting, in a sales contract, a sales price for a car exceeding the “cash sale price” for which the car would be transferred in good faith in an arm’s-length transaction.  The injunction also required Whitaker to disclose the extent to which it retains any portion of the price of a service agreement.  Whitaker appeals the injunction.


1.         Enjoinable Violations of Law     

Whitaker alleges that the district court misread MVRISA and therefore improperly concluded that Whitaker violated the MVRISA by not disclosing to Lofquist what portion of the service agreement’s price Whitaker kept and did not forward to the third party providing the service agreement.  The relevant portion of the MVRISA requires a contract both to identify and to state the price of any benefits conveyed in connection with the sale of a car that are not included in the vehicle’s price and to indicate what amount of the price of those benefits is paid to government agencies.  Minn. Stat. § 168.71(b)(4) (1996).[1]  The provision does not require Whitaker to disclose how it divides the price of an additional benefit between itself and a third party.  Id. 

            Lofquist essentially argues that any misreading of the MVRISA by the district court is harmless because Whitaker’s failure to disclose that it retained a portion of the service agreement’s sale price violated the CFA.  On this record, because we conclude that Whitaker’s treatment of the service agreement did not violate the MVRISA, we must hold that the district court erred when concluding that a CFA violation was a necessary result of what it found to be the MVRISA violation.  Nor can we conclude that Lofquist has shown an independent violation of the CFA regarding the service agreement.  The CFA prohibits the use of “any * * * misrepresentation * * * with the intent that others rely thereon * * * whether or not any person has in fact been misled.”  Minn. Stat. § 325F.69, subd. 1 (emphasis added).  Intent that the offending conduct be relied on by a person is critical to a violation of the CFA.  See Group Health Plan, Inc. v. Phillip Morris, Inc., 621 N.W.2d 2, 12 (Minn. 2001) (stating, for violation of CFA to occur, “[t]he defendant must intend that its conduct be relied on”).  Here, intent was not specifically addressed by the district court, and we cannot infer it as a matter of law.  See Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) (stating “[i]t is not within the province of [appellate courts] to determine issues of fact on appeal”); Sackett v. Storm, 480 N.W.2d 377, 379, 32 (Minn.App.1992) (recognizing intent generally a fact question), review denied (Minn. Mar. 26, 1992).  Because we conclude that, on the current record, Whitaker’s treatment of the price of the service agreement does not constitute an enjoinable violation of the CFA, we need not address the parties’ disputes regarding whether Lofquist had to show (and if she had to show, whether she did show) damages to obtain an injunction under the CFA.  See Minn. Stat. § 325F.69, subd. 1 (1996) (stating that violation of CFA is enjoinable “whether or not” person has been damaged by violation); Minn. Stat. § 325F.70, subd. 1 (1996) (limiting persons who can seek injunction under CFA to “[t]he attorney general or any county attorney”); Minn. Stat. § 8.31, subd. 3a (1996) (allowing invocation of private attorney general statute by party “injured by a violation of [certain laws, including the CFA]”) (emphasis added). 

            We also reject the idea that this record shows an enjoinable violation of the UDTPA.  Under the UDTPA, “[a] person likely to be damaged by a deceptive trade practice of another may be granted an injunction.”  Minn. Stat. § 325D.45, subd. 1 (1996).  Because obtaining relief under the UDTPA requires a person to be “likely to be damaged” by the conduct at issue and because Lofquist already signed an installment contract, she is no longer “likely” to be damaged by a misrepresentation in her contract.  Moreover, because Lofquist admitted that she did not read the contract before she signed it, we cannot say that any misstatement therein damaged her.  While we note that foreign authority could be read to reach a different result, in light of the statute’s clear language requiring a likelihood of future damage, we decline to adopt the analyses in those cases.  Cf. Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating “[t]he function of the court of appeals is limited to identifying errors and then correcting them”) (citation omitted); Martinco v. Hastings, 265 Minn. 490, 495, 497, 122 N.W.2d 631, 638 (1963) (stating statutory changes must be made by legislature because “the courts cannot supply that which the legislature purposely omits or inadvertently overlooks”); Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating task of extending law falls to the supreme court or legislature, not to this court), review denied (Minn. Dec. 18, 1987).

2.         Negative Equity:  Cash Sales Price

Part of the MVRISA states that installment contracts “shall” list various items of financial information, including “(1) [t]he cash sale price of the motor vehicle which is the subject matter of the retail installment contract” and “(4) [t]he charge, if any, included in the transaction for any insurance and other benefits not included in clause (1)  * * *.”  Minn. Stat. § 168.71(b) (1996); see Minn. Stat. § 645.44, subd. 16 (1996) (stating “‘[s]hall’ is mandatory”).  Here, noting the discrepancy between the price for the car listed on the February 19, 1998 sales contract and the “cash sale price” recited in the February 20, 1998 installment contract, the district court ruled that the installment contract violated the MVRISA because it failed to fully describe the transaction.  The resulting injunction forbids Whitaker, in motor-vehicle installment contracts or related documents, from stating a “cash sale price” for the vehicle being sold exceeding the amount for which the vehicle would be sold in a good faith, arm’s-length cash transaction. 

            In 1996, “cash sale price” was defined to include the price the vehicle would generate in an arm’s-length transaction “and any other charges” agreed on by the parties.  Minn. Stat. § 168.66, subd. 9 (1996).  The crux of the parties’ dispute is whether the reference to “other charges” agreed on by the parties allows inclusion of the “negative equity” in Lofquist’s trade-in (i.e, whether the “other-charges”-agreed-on-by-the-parties element of “cash sales price” could include an adjustment to mask the fact that the loan outstanding on Lofquist’s trade-in exceeded its market value).  Reading the 1996 definition of “cash sale price” to exclude “negative equity” would render problematic where the statute would allow “negative equity” to be included because “negative equity” is not obviously covered by other aspects of the 1996 statute. 

            After the Lofquist transaction, the portion of the MVRISA requiring an installment contract to list the charge for “insurance and other benefits” was amended to require installment contracts to list:

[T]he charge, if any, included in the transaction to pay the balance of an existing purchase money motor vehicle lien which exceeds the value of the trade-in amount, or for any insurance and other benefits not included in [the cash sale price of the vehicle]  * * *.


1999 Minn. Laws ch. 151, § 41(b)(4) (new language in italics).  Thus, after the 1999 amendment, “cash sale price” could not include “negative equity” because it was included in the “insurance-and-other-benefits” clause.  Absent some indication that this amendment is to be read into the statute retroactively, we decline to do so and conclude that the language in the pre-amendment definition of “cash sale price” is broad enough to include an adjustment for negative equity.  See Minn. Stat. § 645.21 (2000) (stating statutory amendments are generally prospective).  For this reason, and because Lofquist agreed to include in her financing of her new car the “negative equity” on her trade-in, we conclude that the current record here does not show that Whitaker’s treatment of the “negative equity” in Lofquist’s trade-in constituted an enjoinable violation of the MVRISA. 

            It was because Lofquist agreed to finance the “negative equity” in her trade-in that it was included in the installment sales contract.  Therefore, we cannot say either that the “misleading statement” or the “intent-to-rely-on” prongs of the CFA or the “likely-to-be-damaged” prong of the UDTPA are satisfied on the current record.  For these reasons we conclude that neither the CFA nor the UDTPA supports the portion of the district court’s injunction addressing the statement of the cash sale price of a vehicle. 

3.         Other Disputes

            Because we conclude that the current record does not legally support the injunction, we need not address the parties’ other disputes regarding whether the district court’s findings supporting the injunction are adequate.  Nor do we address the parties’ other disputes regarding the propriety of other terms of the injunction.  We express no opinion on any aspect of this case still pending in district court.


[1] The sale in question occurred in February 1998.  Therefore, the relevant statute is the one that was in effect at that time.