Vanessa Vanderhoek v. Aylward Motors

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2014-0263, Vanessa Vanderhoek v. Aylward
Motors, the court on March 17, 2015, issued the following order:

Having considered the briefs and record submitted on appeal, we
conclude that oral argument is unnecessary in this case. See Sup. Ct. R. 18(1).
We affirm in part, vacate in part, and remand.

The defendant, Aylward Motors, appeals an order of the Circuit Court
(Ashley, J.) awarding judgment for the plaintiff, Vanessa Vanderhoek, in a
small claims action. We construe the defendant’s brief to argue that the
evidence was insufficient to support the judgment. The defendant also argues
that the court erred in allowing certain photographs into evidence. We review
sufficiency of the evidence claims as a matter of law and uphold the findings
and rulings of the trial court unless they are lacking in evidentiary support or
tainted by error of law. Fisher v. Minichiello, 155 N.H. 188, 190 (2007).

The record shows that on August 6, 2013, the plaintiff paid $2,200 to
purchase a 1996 Dodge Ram 1500 pick-up truck on consignment from the
defendant, who was the consignee. On August 14, 2013, the defendant
performed a state inspection on the vehicle and found that it passed
inspection. The mechanic notes on the official vehicle inspection report
prepared by the defendant state, “brakes good.” On September 4, 2013, the
brake line broke. On September 10, 2013, the plaintiff brought the vehicle to a
different mechanic and learned that the vehicle should not have passed
inspection.

Although the bill of sale shows that the owner sold the vehicle “as is,” the
“as is” clause does not relieve the defendant from liability for misrepresentation
at the time of sale. See Leavitt v. Stanley, 132 N.H. 727, 729 (1990). Based
upon our review of the record, we conclude that the evidence is sufficient for
the trial court to have found that the defendant represented at the time of sale
that the vehicle would pass inspection, and that when the defendant inspected
the vehicle eight days later, it should not have passed inspection. See Fisher,
155 N.H. at 190. Although the defendant argues that the plaintiff’s testimony
was inconsistent and contradicted certain other evidence, we defer to a trial
court’s judgment on such issues as resolving conflicts in testimony, measuring
the credibility of witnesses, and determining the weight to be given to
testimony. See McCabe v. Arcidy, 138 N.H. 20, 24 (1993).
 The defendant also argues that the court erred in allowing certain
photographs into evidence which, it asserts, were taken months after its
inspection and which were not exchanged in discovery. Small claims hearings
are intended to be informal, and the court may allow any evidence it deems
material and proper. See RSA 503:7 (2010); Dist. Div. R. 4.12. We review a
trial court’s decision on the management of discovery and the admissibility of
evidence under our unsustainable exercise of discretion standard. Figlioli v.
R.J. Moreau Cos., 151 N.H. 618, 626 (2005). Based upon this record, we
cannot conclude that the trial court unsustainably exercised its discretion in
admitting the photographs. See id.

However, it is unclear from the record what evidence the court relied
upon to support its damage award and how the court calculated damages of
$3,500 plus costs and interest. Accordingly, although we affirm the trial
court’s liability finding, we vacate the damage award, and direct the trial court,
upon remand, to hold a hearing on damages occasioned by the
misrepresentation, and to render specific findings of fact as to such damages.
See In the Matter of Gordon and Gordon, 147 N.H. 693, 700 (2002) (directing
trial court on remand to make specific findings to facilitate appellate review).

Affirmed in part; vacated in
part; and remanded.

Dalianis, C.J., and Hicks, Conboy, Lynn, and Bassett, JJ., concurred.

Eileen Fox,
Clerk

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