Consumer Fraud Claim fails where consumer has independent knowledge of the information.

West Dover Property, LLC. v. LaLancette Engineers, 2015 VT 48 [Filed March 20, 2015]

SKOGLUND, J. Plaintiff buyers in this consumer fraud action appeal from a summary judgment order in favor of defendant realtor who represented the seller in the sale of an inn. Plaintiffs argue that the trial court erred in concluding that defendant's alleged misrepresentation and omission were immaterial as a matter of law. We affirm.

Vermont's consumer protection statute provides a private cause of action for a consumer "who contracts for goods or services in reliance upon false or fraudulent representations or practices . . . or who sustains damages or injury as a result of [such representations or practices]." 9 V.S.A. § 2461(b). Defendant failed  to disclose the written estimate of roof repair costs to plaintiffs.  The omission of this information, as well as the affirmative representation that seller was aware of "no current problems with the roof" could give rise to a violation of the consumer protection statute.

However,  the plaintiffs' case fails for lack of proof on the element of causation and not because the information withheld was immaterial. Because the record is undisputed that the information about the need to replace the roof was known to plaintiffs, defendant's failure to provide the seller's estimate of repair costs to plaintiffs cannot satisfy the requirements for liability under the consumer protection act.  We hold that a buyer may not recover under Vermont's consumer protection statute for omission of information by the seller or his agent when, as in the circumstances of this case, the buyer has independent knowledge of the same information prior to the completion of the sale.

DOOLEY, J. dissenting. I would reverse the trial court's summary judgment decision and hold that plaintiffs' claim against defendant is sufficiently supported in the record to compel us to conclude that issues of material fact remain in dispute.

According to the majority, plaintiffs had independent knowledge of the same material information within the time allowed for cancellation of the purchase-and-sale agreement. The deficiency in this analysis is that its premise is incorrect—the information was not the same.  A jury could reasonably conclude that plaintiffs' response to the report provided by their inspector, in the face of a representation that there were no known problems with the roof, was very different from the response plaintiffs would have had if they had learned that the seller concluded that 6600 square feet of roof needed replacement.

Accordingly, I dissent from the majority's decision.  I am authorized to state that Justice Robinson joins in this dissent.

[Note:  The Court consisted of Dooley, Skoglund, Robinson and Crawford, JJ., and Eaton and Morris (Ret.), Supr. JJ., Specially Assigned Justice Crawford was present for oral argument, but did not participate in this decision. Judge Morris (Ret.) was not present for oral argument, but reviewed the briefs, listened to oral argument, and participated in this decision.]