Hewko v. Paradise Auto Center, LLC ( 2022 )

123
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted March 1, affirmed July 27, 2022
Nicholas HEWKO,
Plaintiff-Respondent,
v.
PARADISE AUTO CENTER, LLC
and Hudson Insurance Company,
Defendants-Appellants.
Marion County Circuit Court
20CV16969; A175793
David E. Leith, Judge.
Rachele R. Selvig argued the cause for appellants. Also
on the briefs were Travis A. Merritt and Cauble, Selvig, &
Whittington, LLP.
Young Walgenkim argued the cause for respondent. Also
on the brief was Hanson & Walgenkim, LLC.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Affirmed.
124 Hewko v. Paradise Auto Center, LLC
PAGÁN, J.
In this appeal from a civil judgment awarding recis-
sion of an automobile purchase, defendants, Paradise Auto
Center, LLC and Hudson Insurance Company, assign error to
the trial court’s decision to allow a witness to provide opinion
testimony and to the trial court’s finding that vehicle dam-
age occurred prior to the time that plaintiff, Nicholas Hewko,
purchased the vehicle. We reject without further discussion
the assignment related to the trial court’s factual finding on
when the damage occurred, except to say there was compe-
tent evidence to support the court’s conclusions. Emerson v.
Kusano, 260 Or App 577, 580-81, 320 P3d 610 (2014) (trial
court’s factual determinations reviewed for any competent
evidence). As we explain, the trial court did not err in allow-
ing certain opinion testimony. Therefore, we affirm.
The relevant facts to this appeal are that plaintiff
purchased a 2015 Nissan Sentra from defendant Paradise in
late January 2020 and noticed problems with the transmis-
sion as soon as he drove it home. After exchanging phone
calls for several days with Paradise to have the car looked
at, the mechanic working for Paradise noted that the car
was still under factory powertrain warranty and suggested
taking it to an authorized Nissan dealer for service. About
nine days after purchasing the car, plaintiff took the car to
an authorized Nissan dealer. The transmission was replaced
under the factory warranty for the part. While performing
the transmission replacement, the dealer removed a sub-
frame to gain access to the transmission and noticed that
the subframe was damaged. That subframe damage was
noted on the inspection report from the Nissan dealer and
incurred extra labor cost to remove during the transmission
replacement. After getting the car back from the Nissan
dealer, plaintiff attempted to return the car to Paradise, but
Paradise refused to take the car back.
Plaintiff took the car to Scott Fait for an inspec-
tion in late September.1 At trial, after being offered and
1
The record does not explain the delay between when plaintiff purchased
the car and discovered the subframe damage in early 2020 and Fait’s inspection
in September 2020. In any event, the delay has no bearing on the issues in this
appeal.
Nonprecedential Memo Op: 321 Or App 123 (2022) 125
admitted to provide opinion testimony, Fait testified that
he had inspected the car, noticed the bent subframe within
about 30 seconds, and opined that if a mechanic “had gotten
underneath the vehicle and looked for damage [they would]
have seen [the] frame damage.” During cross-examination,
Fait said that the damage “doesn’t look like a bottoming
out. This looks like something bent it. I could tell you that a
pothole or anything like that wouldn’t have done that.” Fait
could not say whether the damage occurred before or after
plaintiff purchased the car.
Before Fait testified in this case, he explained that
he had been working on cars for over 50 years, had a two-
year college degree in “engine tune-up and auto repair,” had
inspected thousands of cars, and estimated that “probably
15 percent” of those had been damaged. Defendant objected
to Fait’s admission as an expert under OEC 702.
During defendant’s questions in aid of objection,
Fait explained that, while he was not currently a “master
mechanic certified by AFC,” he had been for decades. Fait
admitted that he was never certified in collision repair or
auto body repair. After questioning, defendant argued that
Fait could not be admitted as an expert because
“he doesn’t have any history or certification in collision
repair. We’re talking about damage or alleged damage to
a frame of a vehicle. And I don’t think he can speak to it as
an expert because he’s never had any education or training
or certification in that field.”
The trial court noted that, while it was routine to
certify a witness as an expert before allowing testimony, the
evidence rule did not require that order and, if defendant
had a particular objection to the foundation for a question,
to raise it at that point. After defendant later objected about
the lack of proper foundation for Fait to answer a question
on whether the frame was bent, the trial court stated, “I
believe that he has adequate expertise demonstrated in the
record to answer the question whether the frame in the pho-
tograph is bent. So your objection’s overruled.”
On appeal, defendant characterizes the central
issue in the trial as “the nature, extent, and time when frame
damage occurred to plaintiff’s used Nissan.” Defendant
126 Hewko v. Paradise Auto Center, LLC
argues that, because Fait admitted to not having knowl-
edge or experience in automobile collision evaluations or
frame damage, it was error to permit him to testify as to
the “nature, scope, and attribution of the frame damage.”
We review the trial court’s determination of whether
a witness is qualified under OEC 702 to provide expert testi-
mony about a particular topic for legal error. State v. Althof,
273 Or App 342, 344, 359 P3d 399 (2015), rev den, 358 Or
550 (2016). To be an expert, a person must have the “knowl-
edge, skill, experience, training or education” to provide tes-
timony “in the form of an opinion or otherwise” regarding
the “particular topic” on which a person claims expertise.
OEC 702; Althof, 273 Or App at 345. The qualifications of a
witness, and therefore their capacity to testify as an expert,
is relative to the topic about which the witness is asked to
offer evidence. State v. Rivera-Ortiz, 288 Or App 284, 294,
406 P3d 73 (2017), rev den, 362 Or 665 (2018) (noting trial
court correctly limited expert testimony to that supported
by witness’s training and experience).
As we understand Fait’s testimony, it was narrow in
scope. He provided an opinion that the subframe was bent;
that a mechanic who looked under the car would have seen
the bent subframe; and that “bottoming out” the car would
not have caused the damage. As noted, Fait did not opine
as to who or what caused the damage, nor when the dam-
age occurred, specifically stating, “Did the guy that owns
it do it? Did it happen before? I couldn’t tell you that.” In
light of Fait’s testimony that he had been working on cars
for decades, had received training in automotive repair, and
had inspected thousands of vehicles—including hundreds
that had been damaged—during his career, the court did
not err by allowing Fait to provide opinion testimony.2 See
Rivera-Ortiz, 288 Or App at 293 (noting officer’s 32 hours of
training and experience investigating over 100 traffic acci-
dents as sufficient to support opinion that one vehicle was
moving at a “higher rate of speed”); see also State v. Park,
2
Nor did the court err by deferring the decision whether to allow Fait to
testify as an expert until a question that required foundation arose. See State
v. Rogers, 330 Or 282, 316, 4 P3d 1261 (2000) (noting that OEC 702 requires
an assessment of the particular qualifications to provide the particular opinion
testimony).
Nonprecedential Memo Op: 321 Or App 123 (2022) 127
140 Or App 507, 514, 916 P2d 334, rev den, 323 Or 690 (1996)
(16 hours of training and experience with “numerous grow-
ing operations” sufficient to allow witness to testify as to
whether marijuana plants were clones or seed starts).
Affirmed.