This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
In the Matter of:
Patrick J. Sutton,
Viking Oldsmobile Nissan,
Filed January 6, 2004
Olmsted County District Court
File No. C6-99-0281
Thomas J. Lyons, Jr., John H. Goolsby, Consumer Justice Center, 342 East County Road D, Little Canada, MN 55117; and
Richard J. Doherty, Horwitz, Horwitz and Associates, 25 East Washington Street, Suite 900, Chicago, IL 60602 (for appellant)
Thomas D. Jensen, Sarah E. Morris, William L. Davidson, Lind, Jensen, Sullivan & Peterson, P.A., 150 South 5th Street, Suite 1700, Minneapolis, MN 55402 (for respondent)
Considered and decided by Toussaint, Chief Judge, Peterson, Judge, and Crippen, Judge.
Challenging a jury verdict in favor of respondent, Viking Oldsmobile Nissan, appellant Patrick Sutton asserts that it was contrary to the evidence to find that respondent did not use false information or a deceptive practice in the course of selling a service contract. Appellant also claims that the trial court gave instructions on consumer fraud that misstated consumer-fraud law. Neither contention having merit, we affirm.
This is the fourth appellate review of this case. See Sutton v. Viking Oldsmobile Nissan, Inc., 611 N.W.2d 60, 65 (Minn. App. 2000) (Sutton I)(this court reversed summary judgment, finding that respondent misrepresented to appellant the amounts “paid to others on [appellant’s] behalf” and that a fact issue existed as to whether respondent intended appellant to rely on the misrepresentation); Sutton v. Viking Oldsmobile Nissan, Inc., 623 N.W.2d 247, 247 (Minn. 2001) (Sutton II) (vacating this court’s decision and remanding for reconsideration of the consumer fraud claim in light of Group Health Plan, Inc. v. Philip Morris, Inc., 621 N.W.2d 2 (Minn. 2001)); Sutton v. Viking Oldsmobile Nissan, Inc., No. C2-99-1843, 2001 WL 856250 at *2-3 (Minn. App. July 31, 2001) (Sutton III) (on remand, this court again reversed the trial court’s summary judgment against appellant’s consumer fraud claim, but without language on the existence of a misrepresentation), review denied (Minn. Oct. 24, 2001).
The only claim at issue in this appeal relates to appellant’s claim of consumer fraud arising out of the sale of the service contract he bought when buying a used vehicle from respondent. This consumer fraud claim is based on language found in the retail installment contract, which outlines the financing of the vehicle. The retail installment contract lists in a section entitled “amounts paid to others on my behalf,” the full price of the service contract, when, in fact, respondent retained $743 of the amount paid by appellant for the service contract.
At the close of the evidence, appellant moved for a directed verdict on the issue of whether respondent provided false information or used a deceptive practice in the course of selling services. The trial court denied the motion. By special verdict form, the jury found that respondent did not provide false information or use a deceptive practice in the course of selling services. The trial court entered judgment and denied appellant’s post-trial motions. Appellant now challenges the court’s denial of his motions for a directed verdict and a new trial.
Appellant argues that the trial court abused its discretion in denying his motion for a directed verdict because Sutton I established that respondent used false information or a deceptive practice in the course of selling services to appellant. Appellant also argues that the trial court abused its discretion in denying his motion for a new trial because the evidence did not support the jury’s verdict. See Minn. R. Civ. P. 59.01(g) (providing that new trial may be granted if jury’s verdict is not supported by the evidence).
A jury’s answer to a special verdict question can be set aside only if no reasonable mind could find as the jury did. Domtar, Inc. v. Niagara Fire Ins. Co., 563 N.W.2d 724, 734 (Minn. 1997). “If the jury’s special verdict finding can be reconciled on any theory, the verdict will not be disturbed.” Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).
Similarly, on appeal from a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, when viewed in a light most favorable to the verdict. ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). A reviewing court will not disturb the trial court’s decision to not grant a new trial absent a clear abuse of discretion. Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).
Asserting cause for a directed verdict in his favor, appellant first argues that the law of the case was established in Sutton I, when the court recited the occurrence of a misrepresentation. 611 N.W.2d at 65. But Sutton I was vacated and we cannot find in Sutton III any conclusion that a misrepresentation occurred. Appellant asserts that Sutton I was neither abandoned nor corrected, but the decision to vacate an opinion renders it void. See In re Hallbom's Estate, 189 Minn. 383, 387, 249 N.W. 417, 418 (1933) (holding that vacating opinion renders it void). We conclude that the trial court properly denied appellant’s motion for a directed verdict.
Appellant also asserts that the trial court abused its discretion in denying his motion for a new trial because the jury’s verdict is unsupported by the evidence. The Minnesota Consumer Fraud Act provides remedies against one who uses a misleading statement or deceptive practice with intent that others rely thereon “in connection with the sale of any merchandise,” whether or not reliance occurs. Minn. Stat. § 325F.69, subd. 1 (2002). Here, the jury was instructed that consumer fraud occurs when a business, in the course of selling services, uses false information or a deceptive practice and intends that others would rely on this false information or deceptive practice. The jury found in its answer to question one on the special verdict form that respondent did not use false information or a deceptive practice in the course of selling services to appellant.
The evidence supports the jury’s verdict. Initially, we observe the significant fact that the evidence fails to support a conclusion that the retail installment contract, in which the service contract is classified as a payment to others, is an instrument representing the contract for the sale of either goods or services. The retail installment contract is a financing document, intended to enumerate the terms of financing. The motor vehicle sale was represented in the retail buyer’s order, a document that specifically states, “the front and back of this CONTRACT comprise the entire CONTRACT affecting this purchase.” (Emphasis in original.) Similarly, the retail installment contract does not purport to represent the service contract itself. There is no evidence that representations in the financing document were made to prompt reliance in connection with the sale of either the motor vehicle or the service contract.
Appellant otherwise failed to show that respondent used false information or a deceptive practice in the sale of the service contract. No evidence was presented to show that respondent made any representation that it would not profit from appellant’s purchase of the service contract. Appellant testified that he knew that respondent would retain a portion of the vehicle’s purchase price as commission.
Moreover, even if the jury’s finding that respondent did not use fraudulent information or a deceptive practice was unsupported by the evidence, appellant’s consumer fraud claim fails because he failed to establish that respondent intended him to rely on the information stated in the installment contract.
In viewing the evidence in the light most favorable to the verdict, we conclude that the jury’s verdict is not manifestly and palpably contrary to the evidence. Rather, the evidence supports the jury’s verdict, and the trial court did not abuse its discretion in denying appellant’s new trial motion.
Appellant argues that the trial court abused its discretion in denying his motion for a new trial because the jury instructions and special verdict form were contrary to law and properly objected to at trial. See Minn. R. Civ. P. 59.01(f) (providing that new trial motion may be granted if jury instructions are contrary to law and properly objected to at trial). This contention also is without merit.
Trial courts are allowed considerable latitude in selecting the language in jury instructions. Alholm v. Wilt, 394 N.W.2d 488, 490 (Minn. 1986). We will not reverse a court’s decisions unless the instructions constituted an abuse of discretion. Id. When the instructions fairly and correctly state the applicable law, we will not require a new trial. Alevizos v. Metro. Airports Comm’n, 452 N.W.2d 492, 501 (Minn. App. 1990), review denied (Minn. May 11, 1990).
Appellant asserts that the jury instructions on consumer fraud should have included all the prohibited acts listed in the consumer-fraud statute, including various characterizations of fraud other than using “false information or a deceptive practice,” false pretense, false promise, misrepresentation, and misleading statement. But generally stated jury instructions are preferred over specifically stated instructions. Fallin v. Maplewood-N. St. Paul Dist. 622, 362 N.W.2d 318, 322 (Minn. 1985). And “[t]he court’s instructions should be construed as a whole, having in mind the evidence in the case. If the instructions so viewed convey to the jury a clear and correct understanding of the law, they must be upheld.” Poppenhagen v. Sornsin Constr. Co., 300 Minn. 73, 81-82, 220 N.W.2d 281, 286 (1974).
The jury was instructed that “‘[c]onsumer fraud’ occurs when a business . . . [u]ses false information or a deceptive practice; and . . . [i]ntends that others would rely on this false information or deceptive practice.” In choosing this language, the trial court followed the language of the jury instructions guide (JIG) and relied on comments in the pocket part to the JIGs, which provided a broader definition of acts constituting consumer fraud as using “false information” or “deceptive practice.” The specific acts defined in the statute are encompassed in the broader terms listed in the jury instruction. Because the jury instruction accurately conveyed a clear and correct understanding of the law, the trial court did not abuse its discretion.
Appellant now asserts that the special verdict form was contrary to law. But the trial court specifically asked the parties whether they had any objections to the special verdict form, at which time appellant did not object. Rather, appellant moved for a directed verdict on the topic first addressed in this opinion. By not objecting to the use of the special verdict form at trial, appellant waived his right to challenge its use on appeal. Kath v. Burlington N. R.R., 441 N.W.2d 569, 572 (Minn. App. 1989), review denied (Minn. July 27, 1989).
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.