2012 VT 38



First Quality Carpets, Inc.
(2010-312)
 
2012 VT 41
 
[Filed 17-May-2012]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision
before publication in the Vermont Reports.  Readers are requested to
notify the Reporter of Decisions, Vermont Supreme Court, 109 State Street,
Montpelier, Vermont 05609-0801 of any errors in order that corrections may be
made before this opinion goes to press.
 
 

2012 VT 41

 

No. 2010-312

 

First
  Quality Carpets, Inc.


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Chittenden Unit,


 


Civil
  Division


 


 


Warren
  Kirschbaum and Wynne Kirschbaum


October
  Term, 2011


 


 


 


 


Helen
  M. Toor, J.


 

W. Owen Jenkins of W. Owen
Jenkins, P.C., Essex Junction, for Plaintiff-Appellee.
 
Thomas C. Nuovo of Bauer, Gravel,
Farnham, Nuovo & Parker, Burlington, for 
  Defendant-Appellant.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Johnson, Skoglund and Burgess, JJ.
 
 
¶ 1.            
BURGESS, J.   Appellants Warren and Wynne Kirschbaum
(the Kirschbaums) appeal the ruling of the Chittenden Civil Division in favor
of appellee First Quality Carpets, Inc. (First Quality) in a dispute over
carpet installed in 2007.  The Kirschbaums argue that the civil division
erred in awarding First Quality attorney’s fees under  9 V.S.A. § 4007(c)
of the Prompt Pay Act because that section of the statute authorizing attorney’s
fees recovery effectively expired in 1996 pursuant to a sunset provision
included in the Act.  Alternatively, the Kirschbaums argue that because
they withheld payment to First Quality in good faith, they were entitled to a
directed verdict and that First Quality should not have been awarded attorney’s
fees under § 4007(c). Finally, the Kirschbaums argue that the court erred in
denying their counterclaim under the Consumer Fraud Act.  We affirm in all
respects.
¶ 2.            
The trial court’s findings are summarized as follows.  In July
2007, the Kirschbaums bought carpeting and tile from First Quality and hired
First Quality to install the carpet in their home.  Contrary to the common
practice of requiring full payment at the time of sale, First Quality agreed to
accept payment in three parts: the first at the time of sale, the second when
the carpet arrived from the manufacturer, and the third after it was
installed.  According to this agreement, the Kirschbaums paid First
Quality $4867 at the time of sale.  First Quality’s salesman explained to
the Kirschbaums that the carpet carried a 120-day warranty, under which the
Kirschbaums “could decide [they] did not want the carpet for any reason at all
and [First Quality] would take it out and reinstall different carpet for no
charge.”  First Quality’s salesman took measurements and prepared for
installation of the carpet, and the Kirschbaums made their initial payment on
July 9 with an American Express card.   
¶ 3.            
On August 2, the carpet arrived from the manufacturer, Mohawk, and the
Kirschbaums made their second payment, again using American Express.  First
Quality’s owner, William George Woltjen, Jr., inspected the carpet prior to
installation, which began on August 8.  On August 9, the second roll of
carpet to be installed was found by First Quality to be defective. 
 First Quality contacted Mohawk, which advised First Quality to return the
defective carpet and that Mohawk would send replacement carpet by August
25.  Upon learning of this delay, the Kirschbaums were irate but, after
being shown the defective carpet, insisted that First Quality install the
defective carpet as planned so that the installation would be completed before
a bar mitzvah at their home scheduled for September 8.
¶ 4.            
Contrary to their policy of not installing a defective product and after
initially refusing to do so, First Quality agreed to proceed with the
installation as requested, on the condition that it replace the defective
carpet with the new carpet once it arrived.  First Quality agreed to this
arrangement to please the Kirschbaums at an added cost of $1700 to
itself.  On August 13 and 14, First Quality installed the defective
carpet, but not to the Kirschbaums’ satisfaction.  On August 13, Mrs. Kirschbaum
called Mr. Woltjen to complain that seams were visible in the carpeting, as a
result, in her mind, of poor installation on First Quality’s part. Mr. Woltjen
disputed this assertion, responding that the carpet’s installation was fine and
that if there were visible seams, it was the result of the type of carpet
chosen by the Kirschbaums and could not be helped.  Mr. Woltjen reiterated
that the carpet had the 120-day warranty and informed Mrs. Kirschbaum that the
carpeting carried with it a lifetime warranty against any seam defects. 
Opting not to invoke the warranty, the Kirschbaums nevertheless proceeded on
August 14 to contact American Express to dispute their first two payments for
the carpeting, falsely claiming that they had “not received the order.”  
¶ 5.            
The dispute between the Kirschbaums and First Quality escalated after
the previously ordered replacement carpeting arrived on September 14. 
After cutting the new carpet to fit the Kirschbaums’ home, First Quality sought
to schedule the removal and replacement of the defective carpeting.  Mr.
Kirschbaum asked if, instead, they could keep the original carpeting and
receive a credit in place of the replacement.  When Mr. Woltjen
said no on account of the new carpet having already been cut—foreclosing the
possibility of its return to Mohawk—the Kirschbaums balked at scheduling
installation of the replacement carpet.  
¶ 6.            
The Kirschbaums neither scheduled installation of the new carpet, nor
made final payment under their agreement with First Quality, but they did file
a new complaint with American Express, falsely alleging that their credit card
charges were unauthorized.  On December 4, 2007, American Express reversed
and deducted the two carpeting charges from First Quality’s account totaling
$9734.  Mohawk then hired Green Mountain Flooring Inspections to examine
the carpeting in the Kirschbaums’ home.  The inspector identified various
issues with the carpeting, including visible seams and shade variations that
were due to manufacturing defects and not the result of poor
installation.  He also found one 3/16-inch gap where no seam sealer had
been used, an apparent installation defect.  These seam issues could have
been fixed using various methods, or possibly could have gone away over time,
but the inspector agreed that no seam can be made invisible and said that
different carpets show seams differently.  
¶ 7.            
In August 2008, First Quality filed a complaint in the Chittenden Civil
Division seeking full payment for the installed carpet, interest and attorney’s
fees under the Prompt Pay Act.  It also asserted claims for unjust
enrichment and quantum meruit.[1] 
The Kirschbaums counterclaimed, alleging consumer fraud, breach of contract,
breach of the duty of good faith and fair dealing, breach of express warranty,
and breach of implied warranty.  They also claimed a right to return the
carpet pursuant to 9A V.S.A. § 2-714 and sought their legal fees under the
Consumer Fraud Act.   
¶ 8.            
The court held a bench trial on May 6, 2010.  At the close of First
Quality’s case, the Kirschbaums moved for a directed verdict on First Quality’s
claim under the Prompt Pay Act on the basis that they had a good faith basis to
withhold payment for the carpet.  The court reserved ruling on the motion,
and, on the basis of the foregoing facts, ultimately ruled in favor of First
Quality on its Prompt Pay Act claim.  The court specifically concluded
that the Kirschbaums “had no good faith basis on which to cancel the earlier
[two] payments” for the installed carpet—totaling $9734—and therefore that
First Quality was entitled to those payments, plus interest.  The court
further held that First Quality was not entitled to the final payment because
that payment was contingent on the ill-fated installation of the replacement
carpet, which never took place.  It also awarded First Quality, as the
substantially prevailing party, attorney’s fees under § 4007(c).  Finally,
the court rejected the Kirschbaums’ consumer fraud claim, finding that First
Quality made no misrepresentations and did not mislead the Kirschbaums. 
The Kirschbaums appealed.
¶ 9.            
 The Kirschbaums argue first that it was error to award attorney’s
fees under § 4007(c) because that statute was not in effect at the time of
their transaction with First Quality.  When enacted, § 4007(c) included
language that it would expire, or “sunset,” five years after its passage on
June 30, 1996.  See 1991, No. 74, § 2.  Later, the Legislature
decided to repeal the sunset provision, so called, by removing that provision
from the statute.  The deletion was approved in April 1996, more than two
months in advance of the sunset date.  See 1995, No. 66 (Adj. Session), § 1. 
The Legislature’s intended repeal was silent, however, as to when it would take
effect.  Id.  
¶ 10.        
In part echoing Judge Zonay’s dissent in Burton v. Jeremiah Beach
Parker Restoration & Constr. Mgmt. Corp., 2010 VT 55, ¶¶ 23-25, 188 Vt.
583, 6 A.3d 38 (mem.) (Zonay, Spec. Ass. J., dissenting), the Kirschbaums argue
that this omission could not but doom § 4007(c).  By operation of another
statute, contend the Kirschbaums, the Legislature’s failure to declare an
effective date of enactment triggered the statutory default date of July
imposed by Title 1, Chapter 3 governing “construction of statutes.”  See
1 V.S.A. § 212 (declaring that new enactments “shall take effect on July 1
next following the date of their passage, unless it is otherwise specifically
provided”).  The Kirschbaums insist that § 4007(c) expired by its own
terms as the clocks tolled the end of June 30, before the repeal’s effective
date of July 1.  Thus, runs their argument, the sun had set on § 4007(c),
and it was gone the day before the repeal of its sunset could be
realized.  The Kirschbaums further assert that the companion statutory
prohibition on retroactive revival of an already repealed act, 1 V.S.A. § 214,
finalizes the extinction of § 4007(c) unless affirmatively reenacted by
the Legislature.  The crux, therefore, is whether § 4007(c) survived
the application of §§ 212 and 214.  We hold that the July 1 default date
of § 212 cannot apply to invalidate the Legislature’s intent to accomplish
exactly the opposite as expressed in its repeal of the sunset provision. 
Nor does the § 214 prohibition against ex post facto reanimation of expired
legislation apply to the alteration of a statute if passed before the affected
statute has expired, as with the Legislature’s repeal of the sunset in this
case.  Thus, in accordance with the Legislature’s explicit and undisputed
intention, § 4007(c) remained in effect after June 30, 1996.
¶ 11.        
As an issue of statutory construction, we undertake to determine the
survival of § 4007(c) de novo.[2] 
In re Vill. Assocs. Act 250 Land Use Permit, 2010 VT 42A, ¶ 7, 188 Vt.
113, 998 A.2d 712. While § 212 would seem to impose an effective date of July
1, 1996 for the sunset’s repeal, an instant too late
to accomplish its purpose, that section is not a statutory island and must be
read in concert with its companion statutes concerning statutory construction
in Chapter 3 of Title 1.  It must also be read in light of this Court’s
primary obligation in interpreting statutes to effectuate legislative
intent.  In re Route 103 Quarry, 2007 VT 66, ¶ 4, 182 Vt. 569, 933
A.2d 189 (mem.).
¶ 12.        
Chapter 3 of Title 1 expresses the overarching principle for
interpreting the provisions that follow:  “In the construction of statutes
the rules set out in this chapter shall be observed, unless such
construction is inconsistent with the manifest intent of the general assembly
or repugnant to the context of the same statute.”  1 V.S.A. § 101
(emphasis added).  Here, there is no dispute that the Legislature intended
to cancel the sunset provision.  Not even Judge Zonay, who dissented in Burton
to argue that § 4007(c) was no longer law, disagreed on this point.  See Burton,
2010 VT 55, ¶¶ 24-26 (Zonay, Spec. Ass. J., dissenting) (conceding legislative
intent for § 4007(c) to remain in effect after June 30, 1996).  The
dissent’s concession in Burton is not disputed here: the Legislature’s
failure to specify that repeal would take effect before July 1, and thus
supersede that default date, was nothing other than a technical mistake. 
To imagine otherwise would leave the Legislature’s intended repeal of the
sunset provision an entirely empty gesture, a reading rejected by established
canons of statutory construction.  See In re
Margaret Susan P., 169 Vt. 252, 263, 733 A.2d 38, 47 (1999)
(rejecting statutory construction that would render part of statutory language
redundant).  Applying the statutory default date to invalidate § 4007(c)
would thwart the Legislature’s “manifest intent” that the opportunity to
recover attorney’s fees continue in place after June 30, 1996.  Since §
101 forbids an application of the § 212 default date to frustrate plain
legislative intent, and since the Court is to effectuate that intent, the
Legislature’s repeal of the sunset provision must be read as taking effect
before any unintended nullification by default.[3]  See Mass. Mun. Wholesale Elec.
Co. v. State, 161 Vt. 346, 359, 639 A.2d 995, 1004 (1994) (relying on § 101
in holding that statutory rule against retroactive application of legislation,
1 V.S.A. § 213, did not apply because it would contradict manifest intent of
Legislature); In re Lionni, 160 Vt. 625, 626, 648 A.2d 832, 833 (1993)
(mem.) (citing § 101 in favor of proposition that a statute’s authority for a
binding majority vote of planning commission members “must be followed unless
it is inconsistent with the manifest
intent of the general assembly or repugnant to the context of the same statute”
(quotation omitted)); State v. Vt. Emergency Bd., 136 Vt. 506, 508-09,
394 A.2d 1360, 1361-62 (1978) (looking to § 101 in upholding a proffered
statutory construction not inconsistent with manifest legislative intent or
repugnant to statutory context).  Accordingly, § 4007(c) continued in
effect after June 30, 1996, and was properly applied in this case.  
¶ 13.        
The Kirschbaums’ reliance on § 214 does not change this result. 
Section 214(a) states that an “amendment or repeal of an act or of a provision
of the Vermont Statutes Annotated shall not revive an act or statutory
provision which has been repealed.” (Emphasis added).  In the first
place, § 101 again dictates that § 214 not be read in a way that hinders the
plain intent of the Legislature.  Moreover, by its own terms, § 214 bars
the Legislature, by amendment or repeal of a law, from resurrecting a prior law
no longer in existence at the time of the attempted amendment or repeal. 
The precise evil which § 214 seeks to exorcise from the canons of statutory construction
is the common law doctrine of “revival by repeal,” under which a repealed
statute is automatically revived by the later repeal of the repealing statute.
See 1 W. Blackstone, Commentaries 90 (Clarendon Press ed. 1765) (allowing
that “[i]f a statute, that repeals another, is itself repealed afterwards, the
first statute is hereby revived, without any formal words for that purpose”).[4]   This circumstance is not
before us here, because the Legislature enacted its repeal of the sunset
provision on April 6, 1996, before the sunset provision went into
effect.  As such, § 214 does not apply to this case.  
¶ 14.        
Having decided that  § 4007(c) remained in effect after June 30,
1996, we next consider the Kirschbaums’ argument that the court erred in
denying their motion for a directed verdict on First Quality’s Prompt Pay Act
claim, and therefore should not have been awarded attorney’s fees under §
4007(c).  The Kirschbaums make two linked arguments on this issue. 
They first argue that the court needed, but failed, to find that the
Kirschbaums had no good faith basis to withhold payment as a precondition to
awarding attorney’s fees, rather than focus solely on who was the substantially
prevailing party.  The Kirschbaums similarly maintain that they were
entitled to a directed verdict because they withheld payment for the carpeting
in good faith.  
¶ 15.        
At the close of First Quality’s case, the Kirschbaums moved for a
directed verdict and the court reserved ruling.  Although never formally
decided, this motion was effectively denied when the court ruled in favor of
First Quality on the merits of its Prompt Pay Act claim. Because the merits
decision resolved the motion for a directed verdict, we review that decision
relating to the Kirschbaums’ justification for withholding payment. 
Factual findings underlying the court’s decision will be upheld absent clear
error, while the court’s legal conclusions are reviewed de novo.  Gladstone
v. Stuart Cinemas, Inc., 2005 VT 44, ¶ 12, 178 Vt. 104, 878 A.2d 214. 
 
¶ 16.        
The court’s findings as to the Kirschbaums’ bad faith are supported by
the record.  The court relied on two particular instances of
less-than-straightforward dealing to conclude that the Kirschbaums had no good
faith basis to withhold payment.  The court found that First Quality’s
charges to the Kirschbaum American Express card were authorized, and that Mr.
Kirschbaum’s representation to the contrary was not credible.  The finding
is supported by the testimony of both Mr. Woltjen and Mr. Kirschbaum that, per
their agreement, the customer’s credit card was to be charged at the point of
sale and when the carpet arrived from the manufacturer.  The court
also found that, despite the Kirschbaums’ claims to the contrary, First Quality
stood prepared to uphold the parties’ agreed-upon plan to replace the defective
carpeting but, due to the Kirschbaums’ actions, it never had the chance to do
so.  Again, both Mr. Woltjen and Mr. Kirschbaum testified to the latter
effect and, as the court noted, it was First Quality who insisted on
replacement as a condition for installing the defective carpet in the first
place.  These findings, in turn, support the court’s conclusion
that the Kirschbaums had no good faith basis to withhold payment. 
¶ 17.        
The Kirschbaums’ second argument is that the court did not again
explicitly recite its finding of bad faith when awarding attorney’s fees. 
This is either a hyper-technical or phantom concern, however, since the court
already stated its conclusion as to their lack of good faith when deciding the
merits.  Having already spoken on this issue once, § 4007(c) required no
redundancy on the issue when addressing attorney’s fees. 
¶ 18.        
Finally, we consider the Kirschbaums’ argument that the civil division
improperly denied their claim under the Consumer Fraud Act (CFA).  The
Kirschbaums argue that the court misinterpreted the CFA to apply only to
statements made at the point of sale when it reasoned that any alleged
misrepresentations by First Quality did not violate the CFA because “the
purchase of the carpet . . . had already occurred and thus the statements had
no impact upon any decision to purchase” the carpet.  They assert that the
CFA covers both sales as well as services provided after the point of sale, and
that First Quality violated the CFA by failing to “disclose the extent of the
installation of the defective carpeting” and “by refusing to replace all of the
defective carpeting or repair defective seams.”  
¶ 19.        
To establish a claim under the CFA, a plaintiff must prove three
elements: “(1) there must be a representation, practice, or omission likely to
mislead the consumer; (2) the consumer must be interpreting the message
reasonably under the circumstances; and (3) the misleading effects must be
‘material,’ that is, likely to affect the consumer’s conduct or decision with
regard to a product.”  Greene v. Stevens Gas Serv., 2004 VT 67, ¶
15, 117 Vt. 90, 858 A.2d 238 (citation omitted).  Material misrepresentations
may be made either at the time of sale, or in the course of services provided
after the point of sale.  See Jordan v. Nissan N. Am., Inc., 2004
VT 27, ¶ 5, 176 Vt. 465, 853 A.2d 40 (stating that to prove third element of
consumer fraud plaintiff must show that “the misleading representation was
material in that it affected the consumer’s purchasing decision”); see also 9
V.S.A. § 2451a(a) (defining “consumer” under CFA as “any person who
purchases, leases, contracts for, or otherwise agrees to pay consideration for
goods or services . . . for his or her use or benefit or the use or benefit of
a member of his or her household”).  Regardless, the civil division did
not reinterpret this third element of consumer fraud in denying the Kirschbaums’
claim.  Rather, its ruling rested on the factual determinations that First
Quality made no misleading statements at any point regarding the defective
carpeting and that, in any event, the Kirschbaums did not rely on any such
statements in making decisions regarding their purchase.[5]  
¶ 20.        
Contrary to the Kirschbaums’ characterization, therefore, the court’s
determinations implicate no questions of law subject to de novo review. 
We will uphold the court’s findings “unless they are clearly erroneous” and
affirm its conclusions “as long as they are reasonably supported by the
findings.”  Waterbury Feed Co., LLC v. O’Neil, 2006 VT 126,
¶ 6, 181 Vt. 535, 915 A.2d 759 (mem.); V.R.C.P. 52(a)(2).  We hold
that the court’s conclusion that First Quality made no misrepresentation is
supported by its findings, which are supported by the evidence.  
¶ 21.        
The court made precise findings concerning the parties’ knowledge of the
defective carpet, its location, and First Quality’s willingness to replace it,
none of which support the Kirschbaums’ argument.  It found that “[t]here
[was] no evidence, despite [the Kirschbaums’] assertion, that Woltjen knew that
some of the upstairs rooms were carpeted with the faulty carpet” and that there
was “confusion between the parties over where exactly the faulty carpet was
installed.”  These findings are supported by Mr. Woltjen’s testimony that
he was unaware that any defective carpeting had been installed in the upstairs
of the Kirschbaums’ home.  The court further found that First Quality was
willing to replace the defective carpet as the parties had agreed but that the
Kirschbaums “never allowed First Quality to come back to do the
replacement.”  These findings are also supported by the testimony of Mr.
Woltjen, which the court found credible in light of his initial refusal to
install the defective carpeting. 
¶ 22.        
The trial court’s findings are thus supported by the evidence in this
case, and they support its conclusion that First Quality did not fail to
disclose the extent of the defective carpeting in the Kirschbaum home or refuse
to install the replacement carpet.  See V.R.C.P. 52(a)(2) (providing that
Court should defer to trial court’s weighing of credibility on appeal). 
We therefore have no reason to disturb the court’s determination that First
Quality made no misleading statements to the Kirschbaums regarding the
carpeting.  Because the evidence supports the finding that First Quality
made no misrepresentation to the Kirschbaums, and this fact was by itself
sufficient to defeat the Kirschbaums’ consumer fraud claim, we need not
consider the Kirschbaums’ claim of reliance.
¶ 23.        
The Kirschbaums also argue that the court erred in not ruling that First
Quality violated the CFA by breaching warranties associated with the
carpeting.  We decline to consider this argument because it was not made
below.  The Kirschbaums asserted separate counterclaims before the civil
division for a consumer fraud violation and for breach of express and implied
warranties.  According to their answer and counterclaim, the Kirschbaums’
consumer fraud claim was based solely on “reliance upon false or fraudulent
representations or practices,” rather than any allegations of warranty breach
by First Quality.  On appeal, however, the Kirschbaums assert their
warranty-based arguments as another consumer fraud violation.  This
metamorphosis turns this argument into a new, and thus unpreserved, claim on
appeal.  See Jordan, 2004 VT 27, ¶10 (explaining that plaintiffs’
claim was not preserved for appeal where they raised it on different ground
before trial court).  In summary, the civil division’s grant of attorney’s
fees under § 4007(c) is affirmed.  The court’s denial of the Kirschbaums’
consumer fraud claim is likewise affirmed.  
Affirmed. 
 

 


 


FOR THE
  COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 





[1] 
There was also a dispute over the payment for the tiling which the trial court
dispensed with and which is not the subject of this appeal. 
 


[2]  The issue of
the continued validity of § 4007(c) reared its head, but was not decided, in Burton,
for lack of preservation.  2010 VT 55, ¶ 5. 


[3] 
The dissent in Burton, much like the Kirschbaums do here, reasoned that
the Legislature’s failure to state an effective date of its repeal of the
sunset provision meant that the repeal could not take effect until July 1,
1996.  The dissent accepted that the Legislature intended that § 4007(c)
continue in effect after June 30, but emphasized what it saw as separation of
powers concerns, stating that “the Court is obligated to enforce statutes as
they are in effect or—in the instant case—not in effect” and for the Court to
hold that § 4007(c) “somehow saw the light of dawn after [it] expired on June
30, 1996 would effectively serve as the Court enacting a statute—a role
reserved exclusively for the Legislature.”  2010 VT 55, ¶ 25.  This
reasoning has a certain persuasive simplicity, but the real separation of
powers concern would arise, in our estimation, from this Court’s refusal to
effectuate the undisputed and manifest intent of the Legislature on account of
an error of form and not of substance.  To borrow from John Quincy Adams,
to invalidate § 4007(c) on this ground would be for this Court to go “abroad in
search of monsters to destroy.”     


[4] 
Blackstone cites as an example that Parliament, during the reign of Queen Mary,
repealed statutes enacted under the reign of King Henry VIII declaring the King
of England to be the supreme head of the church.  But when these repealing
statutes were themselves repealed under Queen Elizabeth, Blackstone explains,
“these acts of king Henry were impliedly and virtually revived.” 
Blackstone, supra, at 90.  Though not subject to the same turns as
Reformation-era English politics, the majority of states have now passed
statutes that abandon the common law doctrine of revival by repeal.  See
1A N. Singer & J. Singer, Statutes and Statutory Construction § 23:32, at
548-51 (7th ed. 2009); see also, e.g., Weinstein, Bronfin & Heller v.
Leblanc, 182 So. 2d 835, 842 (La. Ct. App. 1966), rev’d on other grounds
(applying Louisiana statute providing that “[t]he repeal of a repealing law
does not revive the first law”). 


[5] 
We note that the Kirschbaums also argue that the court incorrectly found that
the sale had already occurred at the time of First Quality’s statements,
reasoning that “the sale had never been completed” as the Kirschbaums still had
not made the final payment.  The Kirschbaums thus try to have it both
ways, arguing not only that the CFA applies after the point of sale, but also
that the sale was not yet completed at the time of First Quality’s alleged
violation.  The Kirschbaums’ main argument, however, concerns First Quality’s
purported nondisclosure regarding the defective carpeting.  Because we
resolve this issue on the basis of whether the evidence supported that First
Quality made any misrepresentation, not whether it supported that any such
misrepresentation was material, we need not address the court’s apparent
finding concerning the time of sale.



