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David Alan Weimer, Individually v. Continental Car & Truck

August 13, 2010

DAVID ALAN WEIMER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANT,
v.
CONTINENTAL CAR & TRUCK, LLC, D/B/A CONTINENTAL NISSAN OF ANCHORAGE,
APPELLEE.



Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Mark Rindner, Judge. Supreme Court No. S-13158 Superior Court No. 3AN-07-9855 CI

The opinion of the court was delivered by: Winfree, Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Winfree and Christen, Justices. [Eastaugh and Fabe, Justices, not participating.]

I. INTRODUCTION

A consumer brought a putative class action lawsuit against an automobile dealership more than two years after he purchased a vehicle, alleging the dealership charged a document preparation fee not included in the vehicle's advertised price in violation of Alaska's Unfair Trade Practices and Consumer Protection Act (UTPA). The dealership moved to dismiss the complaint, arguing that the two-year UTPA statute of limitations barred the consumer's claim. The consumer argued that the limitations period did not begin to run until he discovered it might be illegal to charge a document preparation fee not included in the vehicle's advertised price. The superior court dismissed the complaint before any class certification proceedings, entered final judgment, and awarded costs and attorney's fees to the dealership. Because the superior court correctly interpreted the UTPA statute of limitations and did not otherwise err, we affirm the superior court's decision in its entirety.

II. FACTS AND PROCEEDINGS

A. Facts

On May 20, 2005, David Alan Weimer purchased a vehicle from Continental Nissan of Anchorage. According to Weimer, after he agreed to buy the vehicle and without prior disclosure, Continental added a $200 document preparation fee in the final sale paperwork. At the time Weimer believed the fee was legal.

Approximately two years later Weimer learned from a friend that it might be illegal for car dealerships to charge document preparation fees. Weimer then showed his purchase agreement to an Anchorage law firm. In April or May 2007 an attorney from the firm told Weimer the dealership might have unlawfully charged the document preparation fee.

B. Proceedings

In September 2007 Weimer filed a class action complaint alleging that Continental "routinely breached" AS 45.50.471(b)(43) of the UTPA by charging fees and costs neither required by the state nor included in the vehicle's advertised price.*fn1 Weimer further alleged this conduct "was deceptive, fraudulent and misleading in violation of AS 45.50.471[(b)](11)&(12)" of the UTPA.*fn2 Weimer named himself the representative for a putative plaintiff class of "all persons who, since July 1, 2002, purchased from [Continental] a motor vehicle whose advertised price did not include dealer fees or costs . . . but who were charged such dealer fees or costs."

Continental moved to dismiss the complaint, arguing the UTPA's two-year statute of limitations barred Weimer's claims. After Weimer filed an opposition to the motion accompanied by his affidavit, the superior court treated Continental's motion as one for summary judgment.*fn3 The court ruled that the UTPA's two-year statute of limitations barred Weimer's claims, but in its decision the court discussed only the AS 45.50.471(b)(43) document fee claim and not the AS 45.50.471(b)(11)-(12) fraud claims. Weimer requested reconsideration for three reasons. First, he argued that for the UTPA statute of limitations period to begin running the plaintiff must discover that the act in question was illegal. Second, he argued that the court should not have dismissed his UTPA fraud claim because, based on City of Fairbanks v. Amoco Chemical Company,*fn4 the statute of limitations for fraud claims does "not start to run until the plaintiff learns of the facts constituting the fraud." Third, he argued that before dismissal the court should have "allow[ed] him an opportunity to amend the complaint to add a representative plaintiff whose claim was not subject to dismissal based on the statute of limitations." Weimer did not include a proposed amended complaint with his motion for reconsideration. The court denied Weimer's reconsideration motion, finding his arguments duplicative of those previously considered by the court and noting "no class has ever been certified" and "[i]f another plaintiff has a valid claim and wishes to bring a class action th[e]n a new action can be filed."

The court then granted Continental's motion for entry of final judgment and awarded Continental costs and ...


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