Poole v. Nev. Auto Dealership Invs.

135 Nev., Advance Opinion 31
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

DERRICK POOLE, No. 74808-COA
Appellant,
vs.
NEVADA AUTO DEALERSHIP
INVESTMENTS, LLC, A NEVADA
LIMITED LIABILITY COMPANY, D/B/A
FILED
SAHARA CHRYSLER; AND SEP 05 2019
COREPOINTE INSURANCE ETNA. BROWN
COMPANY, BC
:s" 41.Å0
Respondents. LER(

Appeal from a district court final order and summary judgment
in a deceptive trade practices action. Eighth Judicial District Court, Clark
County; Nancy L. Allf, Judge.
Reversed and remanded.

Law Offices of George O. West III and George O. West 111, Las Vegas; Law
Offices of Craig B. Friedberg and Craig B. Friedberg, Las Vegas,
for Appellant.

Moran Brandon Bendavid Moran and Jeffery A. Bendavid and Stephanie J.
Smith, Las Vegas,
for Respondents.

BEFORE GIBBONS, C.J., TAO and BULLA JJ.

lOt -310in
OPINION
By the Court, GIBBONS, C.J.:
This appeal arises from a deceptive trade practices action.
Appellant Derrick Poole sued respondents Nevada Auto Dealership
Investments, LLC, and its surety company, Corepointe Insurance
Company, under the Nevada Deceptive Trade Practices Act (NDTPA) and
NRS 41.600 (consumer fraud). Poole alleged that Nevada Auto knowingly
failed to disclose material facts about a truck that it sold to him and
misrepresented the truck's condition. The district court granted summary
judgment for respondents on each of Poole's claims.
In this opinion, we consider the meaning of "knowingly" and
“
material face under the NDTPA. These terms appear frequently
throughout the NDTPA but remain undefined under the Act. We conclude
that "knowingly" means that the defendant is aware that the facts exist that
constitute the act or omission, and that a fact is "materie if either (a) a
reasonable person would attach importance to its existence or nonexistence
in determining a choice of action in the transaction in question: or (b) the
defendant knows or has reason to know that the consumer regards or is
likely to regard the matter as important in determining a choice of action,
although a reasonable person may not so regard it. Using these definitions,
we conclude that Poole presented sufficient evidence to raise genuine issues
of material fact" under each of his claims, and thus that the district court

'Our dual usage of the term "material face is unavoidable in this case.
The first usage is that of the summary judgment standard under Wood v.
Safeway, Inc., 121 Nev. 724, 732, 121 P.3d 1026, 1031 (2005) (providing that
summary judgment is proper when "no genuine issue of material fact
remaine), the second is that of NRS 598.0923(2) (enumerating "[I]ail[ure]
to disclose a material face as a deceptive trade practice).
erred in granting summary judgment. We therefore reverse the district
court's order granting summary judgment and remand this matter to the
district court for further proceedings consistent with this opinion.
BACKGROUND
Poole purchased a certified pre-owned (CPO) Dodge truck from
Nevada Auto. Nevada Auto advertises that "CPO vehicles must pass• a
stringent certification process that guarantees only the finest late model
vehicles get certified." The truck's previous owner had been in an accident
and repaired the truck before selling it to Nevada Auto. The previous
owner's insurer, Allstate, prepared an Allstate Collision Estimate (ACE)
listing each replaced or repaired part. The ACE listed damage to the truck's
frame, and a "reconditioned!' replacement for a damaged wheel. Despite its
knowledge of the damage that the ACE described, Nevada Auto certified the
truck as a CPO vehicle.
Poole test-drove the truck with a Nevada Auto salesperson who
told him that the truck had been in a "minoe collision. When Poole asked
about the extent of the damage from the collision, the salesperson repeated
that it was only minor and explained that Nevada Auto would not sell the
truck were the collision significant. Nevada Auto also disclosed the collision
by providing a Carfax report to Poole. The Carfax report did not reveal the
frame damage, the reconditioned wheel, or the cost of repairs, and Nevada
Auto did not disclose to Poole the ACE's contents or even its existence. Two
years later. Poole learned the extent of the damage when he tried to
refinance the loan on the truck. The lender explained to Poole that it had
declined his loan application because it discovered that the collision had
damaged the truck's frame and significantly reduced its value.

COURT OF APPEALS
OF
NEVADA
3
(0) 1947B 4e1.
Poole sued Nevada Auto and Corepointe,2 alleging violations of
several deceptive trade practice statutes under the NDTPA, codified in NRS
Chapter 598, and seeking equitable relief for consumer fraud under NRS
41.600. Respondents moved for summary judgment, arguing that no
genuine issues of material fact existed under Poole's deceptive trade
practices claims. After a hearing on the motion, the district court granted
summary judgment, concluding that each of Poole's deceptive trade
practices claims failed. and thus that his equitable claims likewise failed.
ANALYSIS
Poole appeals, arguing that the district court erred by
determining that no genuine issue of material fact existed as to whether
Nevada Auto knowingly (1) failed to disclose a material fact under NRS
598.0923(2); (2) misrepresented the truck's certification under NRS
598.0915(2) or its certified standard, quality, or grade under NRS
598.0915(7); (3) made a false representation under NRS 598.0915(15); or (4)
inisrepresented the truck's mechanical condition under the Federal Trade
Cornmission Act (FTGA), 16 C.F.R. § 455.1(a)(1) (2018), in violation of NRS
598.0923(3). Respondents •answer that no genuine issue of material fact
remains because Nevada Auto disclosed all materiai facts, properly certified
the truck, and in any case, did not "inten[d] to knowingly defraud" Poole.

2 Poo1e sued Corepointe, Nevada Auto's surety company, under NRS
482.345(7)(a)(1), which provides that "[ilf the court enters . . [a l judgment
on the .merits against the dealer . . , the judgment is binding on the surety."
He notes that respondents disputed his claim against Corepointe in their
motion for summary judgment and asks this court to "dispose of thie issue.
Because the district court did not address Corepointe's liability, however,
we decline to do so in the first instance. See, e.g., Douglas Disposal, Inc. v.
Wee Haul, LLC, 123 Nev. 552, 557 n.6, 170 P.3d 508, 512 n.6 (2007)
(declining to address an argument that. the district court did not address).

4
As Poole notes, however, the NDTPA does not define
"knowingly" or "material," and the district. court did not define them in
granting summary judgment. The Nevada Supreme Court, too, has not
addressed either NDTPA term, and respondents offer little guidance.
Because the application of these terms is essential in this case and in many
other deceptive trade practices actions, we take this opportunity to address
each term's meaning under the NDTPA.
"We review questions of statutory meaning de novo."
Knickrneyer v. State, 133 Nev. 675, 679, 408 P.3d 161, 166 (Ct. App. 2017).
The primary goal of interpreting statutes is to effectuate the Legislature's
intent. Cromer v. Wilson. 126 Nev. 106, 109, 225 P.3d 788, 790 (2010). We
interpret clear and unambiguous statutes based on their plain meaning. Id.
When a statute "is susceptible to more than one natural or honest
interpretation, it is ambiguous, and the plain meaning rule has no
application." State, Dep't of Bus. & Indus. v. Granite Constr. Co., 118 Nev.
83. 87, 40 P.3d 423, 426 (2002). "[W]hen a statute is ambiguous, we consult
other sources, such as legislative history, reason, and policy to identify and
give effect to the Legislature's intent." In re CityCenter Constr. & Lien
Master Litig., 129 Nev. 669, 673-74, 310 P.3d 574, 578 (2013). "When a
legislature adopts language that has a particular meaning or history, rules
of statutory construction also indicate that a court may presume that the
legislature intended the language to have meaning consistent with previous
interpretations of the language." Beazer Homes Nev., Inc. v. Eighth Judicial
Dist, Court, 120 Nev. 575, 580-81, 97 P.3d 1132, 1135-36 (2004).
The meaning of "knowingly" under the NDTPA
Respondents argue that Poole presented no evidence that
Nevada Auto "inten[ded] to knowingly defraud" him. Poole replies that he

5
did present such evidence, but that under the NDTPA, "knowingly" means
only general intent—not intent to deceive, but mere knowledge of the facts
that constitute the act or omission.
Poole directs this court to several civil and criminal Nevada
statutes that define "knowingly" in similar contexts, two of which predate
the NDTPA's passage in 1973. For example, NRS Chapter 624, which
addresses licensing and discipline of contractors, provides in NRS 624.024,
codified in 2003, that
"Knowingly" imports a knowledge that the facts
exist [that] constitute the act or omission, and does
not require knowledge of the prohibition against
the act or omission. Knowledge of any particular
fact may be inferred from the knowledge of such
other facts as should put an ordinarily prudent
person upon inquiry.
Each of the statutes defines "knowingly" in nearly identical language and
requires no more than general intent. See also NRS 193.017 (addressing
crimes and punishments, and first codified in 1912); NRS 208.055
(addressing correctional institutions and aid to victims of crime, and first
codified in 1912); NRS 281A.115 (addressing ethics in government, and first
codified in 2009); Bolden v. State, 121 Nev. 908, 923, 124 P.3d 191, 201
(2005) ("General intent is 'the intent to do that which the law prohibits.'"
(quoting Black's Law Dictionary 810 (6th ed. 1990))), receded from on other
grounds by Cortinas v. State, 124 Nev. 1013, 1026-27, 195 P.3d 315, 324
(2008).
The above definition of "knowingly" best effectuates the
Legislature's intent under the NDTPA. The Legislature has used
"knowingly" as a term of art and defined it consistently elsewhere in the
Nevada Revised Statutes, and thus presumably intended to use it
consistently under the NDTPA. See NAIW v. Nev. Self-Insurers Assn, 126

6
Nev. 74, 84, 225 P.3d 1265, 1271 (2010) ("We presume that the Legislature
enact[s a new] statute with full knowledge of existing statutes relating to
the same subject"); cf. Beazer, 120 Nev. at 587, 97 P.3d at 1139-40
(Generally, when a legislature uses a term of art in a statute, it does so
with full knowledge of how that term has been interpreted in the past, and
it is presumed that the legislature intended it to be interpreted in the same
fashion."); see also State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980) (ln the
absence of a statutory definition, resort may be had to case law or related
statutory provisions [that] define the term . . ."); Nelson v. Transamerica
Ins. Servs., 495 N.W.2d 370, 373 n.18 (Mich. 1992) ("The Legislature is
presumed to be aware of existing statutes."). Each of those statutes in
which the Legislature has defined "knowingly" is part of a statutory scheme
with a purpose similar to that of a consumer protection act—protecting and
assisting the public. See, e.g., NRS 624.005 ([T]he provisions of this
chapter. . . are intended to . . . protect the health, safety and welfare of the
public."); NRS 217.010 ("Mhe policy of this State [is] to provide assistance
to . . . victims of violent crimes . . . ."); see also Thornas v. Sun Furniture &
Appliance Co., 399 N.E.2d 567, 570 (Ohio Ct. App. 1978) (The purpose of
Ohio's deceptive trade practices act "was to give the consumer protection
from a supplier's deceptions which he lacked under the common law
requirement of proof of an intent to deceive in order to establish fraud.").
We therefore conclude that a "knowing[ ]" act or omission under
the NDTPA does not require that the defendant intend to deceive with the
act or omission, or even know of the prohibition against the act or omission,
but simply that the defendant is aware that the facts exist that constitute
the act or omission. For example, a defendant auto dealer "knowingly"
makes a false representation of a car's condition to a plaintiff consumer if

COURT OF Appeals
Or
NEVADA

(0) 1947B •440A.
the car has been damaged in a collision and the dealer is aware that it
represented to the consumer that the car has never been damaged in a
collision. "[K]nowingly" does not require that the dealer intended to deceive
the consumer or knew of such a misrepresentation's prohibition—the
defendant must simply be aware of the fact that it represented that the car
had never been damaged in a collision. See NRS 598.0915(15) ("Knowingly
mak[ing] any other false representations in a transaction" is a deceptive
trade practice. (Emphasis added)).
We also find support for our conclusion in the statutory
interpretive canon expressio unius est exclu.sio alterius, "the expression of
one thing is the exclusion of another," Gctlloway v. Truesdell, 83 Nev. 13, 26,
422 P.2d 237, 246 (1967). As Poole notes, NRS 598.0915 includes both
"knowingly" and specific intent elements, compare NRS 598.0915(1)
("Knowingly passes off goods or services for sale or lease as those of another
person."), with NRS 598.0915(9) ("Advertises goods or services with intent
not to sell or lease them as advertised."). This implies that the Legislature
deliberately omitted any further intent requirement from those subsections
that require only knowing acts. In light of the Legislature's inclusion of
specific intent elements in some statutes and subsections and omission froni
others, the NDTPA provisions that include "knowingir acts but lack a
specific intent element require only knowledge that the facts exist that
constitute the act or omission. See Galloway,• 83 Nev. at 26, 422 P.2d at 246
(noting that expressio unius est exclusio alterius "has been repeatedly
confirmed in this State); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 170 (2012) ([A] material
variation in terms suggests a variation in meaning."): see generally Sheriff,
Pershing Cty. v. Andrews, 128 Nev. 544, 548, 286 P.3d 262, 264 (2012)

8
(reasoning that where the Legislature "clearly knows how to prohibit" an
act under one statute and does not prohibit it under a second statute, the
Legislature did not intend to prohibit it under the second statute).
Our review of other jurisdictions that have addressed the
meaning of "knowingly" in similar statutes also supports our conclusion.
Kansas, New Mexico, and Ohio require "knowing[ ]" acts or omissions under
their respective deceptive trade practices acts. E.g., Kan. Stat. Ann. § 50-
626(b)(1) (2005) (defining deceptive trade practices to include
"Hepresentations made knowingly or with reason to know"); N.M. Stat.
Ann. § 57-12-2(D)(14) (LexisNexis 2010) (defining deceptive trades practices
to include "knowingly . . . failing to state a material fact"); Ohio Rev. Code
Ann. § 1345.09(F)(2) (LexisNexis 2018) (providing that a prevailing
complainant may recover attorney fees when "Nile supplier has knowingly
committed" a deceptive trade practice). Courts in each state have likewise
concluded that those statutes do not require intent to deceive or knowledge
of the act's or omission's prohibition. Moore v. Bird Eneg Co., 41 P.3d 755.
764 (Kan. 2002) (knowingly or with reason to know" does not require intent
to deceive); Richardson Ford Sales, Inc. v. Johnson, 676 P.2d 1344, 1347-48
(N.M. Ct. App. 1984) (A knowing nondisclosure requires [only] an
awareness of the nondisclosure."); Einhorn v. Ford Motor Co., 548 N.E.2d
933, 936 (Ohio 1990) (knowingly" requires only that the supplier
"intentionally do the [violative} act").
Similarly, Utah's Consumer Sale Practices Act distinguishes
knowing from• intent to deceive and awareness of an act's or omission's
prohibition by requiring either "knowing[ j or intentionall j" acts. Utah Code
Ann. § 13-11-4(2) (LexisNexis 2009). The Utah Legislature has amended
the Act twice—the first time to include an intent element by adding "intent

9
to deceive," and the second time to replace "with intent to deceive" with
"knowingly or intentionally." Martinez v. Best Buy Co., Inc., 283 P.3d 521,
523 n.2 (Utah Ct. App. 2012). Although Utah courts have not yet addressed
the meaning of "knowingly" under the Act, the Utah Legislature's
amendments further support our conclusion that "knowing[ ]" acts do not
require intent to deceive.
Colorado and New Jersey courts, however, have concluded
otherwise. Under Colorado's Consumer Protection Act, deceptive trade
practices include "[e]ither knowingly or recklessly mak[ing] a false
representation," Colo. Rev. Stat. Ann. § 6-1-105(1)(b) (West 2019), and the
Colorado Supreme Court held that a "knowingly" false representation under
the Act requires an intent to defraud. Crowe v. Tull, 126 P.3d 196, 204
(Colo. 2006). Similarly, the New Jersey Supreme Court held that a
"knowing[ ] . . . omission . . . of any material fact" under New Jersey's
Consumer Fraud Act requires intent to commit a violative omission. Cox v.
Sears Roebuck & Co., 647 A.2d 454, 461-62 (N.J. 1994) (quoting N.J. Stat.
Ann. § 56:8-2 (West 2012)).
Alaska, Tennessee, and TeXas have also defined "knowingly"
otherwise. Each state's deceptive trade practices act requires "knowing[
acts or omissions, e.g., Alaska Stat. § 45.50.471(b)(12) (2018) (defining
deceptive trade practices to include "knowingly concealing, suppressing, or
omitting a material face): Tenn. Code Ann. § 47-18-109(a)(3) (2013)
(providing that a court may award treble damages for a "knowing
violation"); Tex. Bus. & Com. Code Ann. § 17.46(b)(13) (West 2011) (defining
deceptive trade practices to include "knowingly making false or misleading
statements"), and defines "knowingly" to require awareness not of the act,
but of the falsity or deception. Alaska Stat. § 45.50.561(11) (2018)

COURT OF APPEALS
OF
NEVADA
10
(0) 194713
("[K]nowingly means actual awareness of the falsity or deception . . . .);
Tenn. Code Ann. § 47-18-103(10) (2013) (linowingly' or 'knowing' means
actual awareness of the falsity or deception . . ."), Tex. Bus. & Com. Code
Ann. § 17.45(9) (West . 2011) ("Knowingly' means actual awareness . . . of
the falsity, deception, or unfairness . . . .").
We conclude, however, that our interpretation better serves the
NDTPA's remedial purpose. Because the NDTPA is a remedial statutory
scheme, Sellinger v. Freeway Mobile Home Sales, Inc., 521 P.2d 1119, 1122
(Ariz. 1974) (recognizing that remedial statutes are those that "are designed
to redress existing grievances and introduce regulations conducive to the
public good"), we "afford[ ] [it] liberal construction to accomplish its
beneficial intent," see Welfare Div. of State Dep't of Health, Welfare & Rehab.
u. Washoe Cty. Welfare Dep't, 88 Nev. 635, 637, 503 P.2d 457. 458 (1972)
(construing a remedial public welfare statute liberally to accomplish its
intent). Interpreting "knowingly" to require more than general intent
would render NDTPA and common law fraud claims redundant, see
Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 110-11, 825 P.2d 588. 592 (1992)
(listing "knowledge or belief that the representation is false' and intent to
deceive as elements of a common law fraud claim), disserve the NDTPA's
remedial purpose, and discourage claims by forcing parties to clear a
significantly higher bar. Cf. Betsinger v. D.R. Horton, Inc., 126 Nev. 162,
166, 232 P.3d 433, 436 (2010) ("Statutory offenses that sound in fraud are
separate and distinct from common law fraud. Therefore, we conclude that
deceptive trade practices, as defined under NRS Chapter 598, must only be
proven by a preponderance of the evidence."); see also United States u.
Krohn, 573 F.2d 1382, 1386-87 (10th Cir. 1978) (recognizing the difficulty
of proving fraudulent intent); Thomas, 399 N.E.2d at 570 (The purpose of

COURT OF APPEALS
OF
NEVADA
11
40) 19417B 414a*,
Ohio's deceptive trade practices act "was to give the consumer protection
from a supplier's deceptions which he lacked under the common law
requirement of proof of an intent to deceive in order to establish fraud. To
require proof of intent would effectively emasculate the act and contradict
its fundamental purpose."); Einhorn, 548 N. E.2d at 935-36 (concluding that
interpreting "knowingly" to require knowledge of the act's or oinission's
prohibition would "take[ ] the teeth out of Ohio's deceptive trade practices
act, "is inapposite to" its remedial purpose, and would discourage consumers
from suing under the act).
The meaning of "material fact" under the NDTPA
NRS 598.0923(2) provides that a seller who "[flails •to disclose a
material face engages in a deceptive trade practice. Poole, citing an
extensive array of caselaw across multiple jurisdictions, argues that a
material fact is one that is reasonably relevant to the transaction and one
to which a reasonable person would attach importance. Poole thus proposes
an objective standard of materiality. Respondents answer that only the fact
of the collision was material—not the extent of the damage—because Poole
is, by his own admission, not "a car guy." Respondents thus implicitly
propose a subjective standard. We conclude, however, that applying both
the objective and subjective definitions best effectuates the Legislature's
intent and is most consistent with the NDTPA.
Nevada law generally directs us to the definition of "material
face in the Second Restatement of Torts:
The matter is material if
(a) a reasonable man would attach importance to
its existence or nonexistence in determining
his choice of action in the transaction in
question; or

12
(b) the maker of the representation knows or has
reason to know that its recipient regards or is
likely to regard the matter as important in
determining his choice of action, although a
reasonable man would not so regard it.3
§ 538(2) (Am. Law Inst. 1977). The Nevada civil pattern jury instructions,
for instance, adopt subsection (a)'s objective "attach importance language.
Nevada Jury Instructions: Civil § 11.19 (State Bar of Nevada 2018)
(addressing "material misrepresentation . . . in [an] application for
insurance or the claims procese). Instruction 11.19 provides that "[a] fact
is material if it concerns a subject reasonably relevant . . . and if a
reasonable person would attach importance to that fact." Further, the
Nevada Supreme Court applied subsection (a)'s objective standard in Winn
v. Sunrise Hospital & Medical Center, a professional negligence case in
which the court considered whether a hospital withheld material
information and thus tolled the applicable statute of limitations. 128 Nev.
246, 255, 277 P.3d 458, 464 (2012).
A subjectively material fact under subsection (b) of the Second
Restatement may be no less important to a buyer in some special
circumstances than an objectively material fact, however. and applying a
subjective standard of materiality is consistent with the NDTPA's

3Subsection (b) does not address failure to disclose, but its affirmative

opposite--representation. Nevertheless, we hold that failure to disclose a
fact is equivalent to affirmative representation of that fact's nonexistence.
See 011erman v. O'Rourke Co., 288 N.W.2d 95, 100 (Wis. 1980) (if there is
a duty to disclose a fact, failure to disclose that fact is treated in the law as
equivalent to a representation of the non existence of the fact."). We thus
interpret subsection (b) to apply to failure to disclose material facts as well
as affirmative misrepresentations thereof.

13
legislative purpose to protect consumers.4 See Washoe Cty. Welfare Dep't,
88 Nev. at 637, 503 P.2d at 458 (holding that remedial legislation "should
be afforded liberal construction to accomplish its beneficial intene); see also
Restatement (Second) of Torts § 538(2) cint. f (Am. Law Inst. 1977) ("There
are many persons whose judgment, even in important transactions, is likely
to be determined by considerations that the normal man would regard as
altogether trivial • or even ridiculous. One who practices upon another's
known idiosyncracies cannot complain if he is held liable when he is
successful . .
Our approach is Consistent with a majority of other jurisdictions
that likewise look to the Second Restatement of Torts to define "material
face in contexts similar to the NDTPA.
New Jersey and Tennessee use the objective subsection (a) and
the subjective subsection (b) alike, Mango u. Pierce-Coombs, 851 A.2d 62, 69
(N.J. Super. Ct. App. Div. 2004) (applying subsections (a) and (b) in a claim
under New Jersey's Consumer Fraud Act); Odom v. Oliver, 310 S.W.3d 344,
349 (Tenn. Ct. App. 2009) (applying subsections (a) and (b) in a fraudulent
concealment claim), while Arizona has used subsection (a), Caruthers v.
Underhill, 287 P.3d 807, 815 (Ariz. Ct. App. 2012) (applying subsection (a)
in a fraudulent inducement claim). Several others simply use subsection

4 For instance, if a buyer sought to purchase a used truck and

preferred, for some purely idiosyncratic reason, that the truck had
originally not been sold in California; the dealer knew or had reason to know
of the buyer's preference and the truck's sales history; and the truck had in
fact been sold in California, then the dealer must disclose that fact to the
buyer under NRS 598.0923(2). Although a reasonable person may consider
such a fact unimportant, the dealer knew or had reason to know that the
idiosyncratic buyer considered the fact important to the decision to
purchase the truck.

14
(a)'s "importance" standard without citing the Restatement, and without
expressly rejecting subsection (b). E.g., Weinstat v. Dentsply Int?, Inc., 103
Cal. Rptr. 3d 614, 622 n.8 (Ct. App. 2010) (Under California's Unfair
Competition Law, "Nile question of materiality. . . is whether a reasonable
person would attach importance to the representation or nondisclosure in
deciding how to proceed in the particular transaction . . . ."); Italian Cowboy
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011)
(In a fraudulent misrepresentation claim, "[m]aterial means a reasonable
person would attach importance to and would be induced to act on the
information in determining his choice of actions in the transaction in
question." (quoting Smith v. KNC Optical, Inc., 296 S.W.3d 807, 812 (Tex.
Ct. App. 2009)); lnkel v. Pride Chevrolet-Pontiac, Inc., 945 A.2d 855, 859 (Vt.
2(>08) (Under Vermont's Consumer Fraud Act, a material fact is one that "a
reasonable person would regard as important in making a decision.").
Ohio, however, uses a unique objective standard, Davis u. Sun
1?ef. & Mktg. Co., 671 N.E.2d 1049, 1058 (Ohio Ct. App. 1996) (In a
fraudulent concealment claim, a fact is material if it "would be likely, under
the circumstances, to affect the conduct of a reasonable person with
reference to the transaction in question."), while Illinois uses a combination
of unique objective and subjective standards, Connick v. Suzuki Motor Co.,
Ltd., 675 N.E. 2d 584, 595 (Ill. 1996) (Under Illinois Consumer Fraud Act,
"[a] material fact exists where a buyer would have acted differently knowing
the information, or if it concerned the type of information upon which a
buyer would be expected to rely in making a decision whether to purchase.").
Only a small minority of states uses a purely subjective
standard, and none expressly reject an objective standard. Briggs v. Ant.
Nat? Prop. & Cas. Co., 209 P.3d 1181, 1186 (Colo. App. 2009) (Under the

15
Colorado Consumer Protection Act, lulndisclosed facts are 'material if the
consumer's decision might have been different had the truth been
disclosed."); Casavant v. Norwegian Cruise Line, Ltd., 919 N.E.2d 165, 170
(Mass. App. Ct. 2009) (To determine if the nondisclosure was of a material
fact [in an unfair or deceptive act or practice claim], we ask whether the
plaintiff likely would have acted differently but for the nondisclosure.");
Colaizzi v. Beck, 895 A.2d 36, 39-40 (Pa. Super. Ct. 2006) (Under the
Pennsylvania Consumer Protection Act, "a misrepresentation is material if
it is of such character that if it had not been inisrepresented, the transaction
would not have been consummated."), see also Garcano v. JBSS, LLC, 684
S.E.2d 41, 53 (N.C. Ct. App. 2009) (In a fraud claim, "[a] fact is material if
had it been known to the party, [it] would have influenced that party's
decision in making the contract at all.").
We therefore conclude that applying both the objective and
subjective definitions in the Second Restatement of Torts best effectuates
the Legislature's intent and is most consistent with the NDTPA.
Whether a genuine issue of material fact exists under Poole's N RS
598.0923(2) claim
We review a district court's order granting summary judgment
de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729. 121 P.3d 1026. 1029
(2005). Summary judgment is proper if the pleadings and all other evidence
on file demonstrate that no genuine issue of material fact exists and that
the moving party is entitled to judgment as a matter of law. Id.; see also
NRCP 56. "[T]he evidence, and any reasonable inferences drawn from it,
rnust be viewed in a light most favorable to the nonmoving party.- Wood,
121 Nev. at 729, 121 P.3d at 1029. "A factual dispute is genuine when the
evidence is such that a rational trier of fact could return a verdict for the
nonmoving party." Id. at 731, 121 P.3d at 1031.

16
"A person engages in a 'deceptive trade practice when, in the
course of his or her business or occupation, he or she knowingly. . [flails
to disclose a material fact in connection with• the sale or lease of goods or
services." NRS 598.0923(2). Poole argues that a genuine issue of material
fact exists as to whether Nevada Auto failed to disclose a material fact
under NRS 598.0923(2). He argues that be offered evidence sufficient to
raise a genuine factual dispute under this claim, including deposition
testimony froin three Nevada Auto employees.
Respondents answer that disclosure of the fact of the collision
was sufficient under NRS 598.0923(2), and that more specific information
about the damage from the collision would have been irrelevant and
immaterial because Poole, by his own admission, is not "a car guy." They
argue that construing NRS 598.0923(2) to require a dealer to disclose as
facts material to the sale "each and every nut and/or bolt, which may have
been repaired and/or replace& would be "absurd." Respondents also argue
that Poole presented no evidence that they "inten[ded] to knowingly
defraud, misrepresent, or to otherwise omit 'material' information."
Respondents' "each and every nut and/or bole argument
misstates Poole's argument and frames the issue as a false dilemma in
which the district court must either (1.) limit the scope of material facts to
the single fact of the collision, as the district court did in its order, or (2)
broaden the scope of material facts to •an extent that requires an
unconscionably burdensome and painstaking account of the damage from
the collision. This ignores, of course, a vast intermediate territory in which
the scope of material facts may exclude relatively useless ones, such as
"each and every repaired bolt or penny spent," but include those to which a
reasonable person may attach importance, such as the nature and extent of

17
the collision damage. Nonetheiess, the district court found that "the
material . . . fact is that the vehicle was in a prior accident" and that "[t]he
duty to disclose under NRS 598.0923 does not extend to the entire effect of
the accident, such as a price breakdown of every part and service provided
as listed in the ACE."
The district court also found that "[t]here is no indication in the
record that [Poole] inquired about the parts and services used to repair the
vehicle as provided in the ACE, and such information was then withheld."6
The court concluded by finding that "[Poole] relied on the [CPO] report,
which the undisputed evidence shows would only have notated frame
damage if a repair, if any, was not up to standard."
This reasoning begs the question, however, by assuming that
Nevada Auto's certification standards are interchangeable with the
statute's materiality standard—that a fact immaterial to CPO status is
perforce immaterial under NRS 598.0923(2), The district court appeared to
reason that had the damage been material under the statute, the truck
would have been "not up to [certification] standard," and the damage would

5Why the district court deemed the fact of the accident "the material

fact" is unclear. NRS 598.0923(2) addresses "fail[ure] to disclose a material
fact." (Emphasis added.) The indefinite article "e implies an indefinite
scope of potentially material facts. The district court appeared to limit that
scope to a single material fact by using the definite article "the," which is
inconsistent with the statute's plain language.

6Poo1e argues the district court misapprehended NRS 598.0923(2)
when it found that he must have inquired about a fact before Nevada Auto
assumed the duty to disclose it. Poole is correct—by its plain language, NRS
598.0923(2) does not require inquiry, but provides for an affirmative duty
to disclose.

18
have been noted in the CPO report; and because the damage was not noted
in the CPO report, it must not have been material. • Thus, the court
effectively replaced the legal standard that governs this issue—materiality
under NRS 598.0923(2)—with Nevada Auto's self-imposed certification
standards."' Such reasoning would allow a seller to determine the scope of
its duty to disclose by dictating its own "certification" standards and prevail
against an NRS 598.0923(2) claim simply by upholding those standards,
however lax they may be. In Poole's words, this "establishe[sl a quasi-
irrebuttable presumption." We agree, and we caution district courts against
substituting a commercial certification standard for any legal standard.
Poole offered deposition testimony from himself and three
Nevada Auto employees. In his own deposition, he testified that he asked
the Nevada Auto salesperson about the collision and that the salesperson
asured him that the •collision was only "minor." Notably, two of Nevada
Auto's own employees agreed with Poole that the nature and extent of the
damage from a collision are as important to a buyer as the fact of the
collision itself. The third testified that he "thoroughly reviewed7 the ACE
before purchasing the truck for Nevada Auto, suggesting that Nevada Auto
considered the AC E's contents, which indicated the nature and extent of the
damage, reasonably relevant to the truck's sale.
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that Nevada Auto failed to disclose a
fact to which a reasonable person would attach importance in determining
a choice of action in the transaction, such as the frame damage. and thus

7Despite abandoning the statutory standard for Nevada Auto's CPO
standard, the district court declined to consider "Mlle sufficiency of the CPO
inspection standards because it was "not at issue."

19
that Nevada Auto failed to disdose an objectively material fact.
Alternatively, a ratioñal trier of fact could find that Nevada Auto knew or
had reason to know that Poole would regard or was likely to regard the
extent of the damage, for instance, as important in determining his choice
of action, even if a reasonable person would not attach importance to it, and
thus that Nevada Auto failed to disclose a subjectively material fact. In
either case, a rational trier of fact could find that Nevada Auto knowingly
failed to disclose a material fact because it knew that it did not disclose that
fact. We therefore conclude that a genuine issue of material fact exists such
that the district court erred by granting summary judgment on this claim.
Whether a genuine issue of rnaterial fact exists under Poole's NRS
598.0915(2) and (7) claims
"A person engages in a 'deceptive trade practice if, in the course
et his or her business or occupation, he or she . . . [k]nowingly makes a false
representation as to the . . . certification of goods or services for sale or
kase." NRS 598.0915(2), or "Hepresents that goods . . . are of a particular
standard, quality or grade, or that such goods are of a particular style or
model, if he or she knows or should know that they are of another standard,
quality. grade, style or model," NRS 598.0915(7). Poole argues that a
genuine issue of material fact exists under his claim that Nevada Auto
knowingly made a false representation as to the truck's certification under
NRS 598.0915(2), or misrepresented the truck's certified standard, quality,
or grade under NRS 598.0915(7). He argues that he produced evidence that
the extent of the damage from the collision precluded certification. including
a declaration from an expert who inspected the truck and a statement from
the Fiat Chrysler Automobiles (FCA) website indicating that the truck's
repaired wheel may be inconsistent with certification standards.
Respondents answer that Poole failed to produce evidence proving that the

20
truck's standard, quality, or grade was anything other than certified, that
Nevada Auto did not inspect and• certify the truck, or that Nevada Auto
should not have certified it.

The district court concluded that because Nevada Auto certified
the truck, "[Poole] cannot argue that [Nevada Auto] misrepresented that
the vehicle was . . . certified, as it was. The sufficiency of the CPO
inspection standards is not at issue for this argument, but rather that the
vehicle was ultimately certified as pre-owned." We disagree. Poole did not
argue that Nevada Auto did not certify the truck, but that Nevada Auto
should not have certified the truck under the CPO standards, and thus made
a false representation as to its certification and likewise misrepresented its
standard, quality, or grade.

To prove that Nevada Auto should not have certified the truck,
and thus violated NRS 598.0915(2) and NRS 598.0915(7) by doing so, Poole
offered the ACE, an expert's declaration, and deposition testimony from the
Nevada Auto mechanic who inspected the truck for certification purposes.
The ACE indicates frame damage and lists a "reconditione& wheel among
the replacement parts. The expert opined that several of the truck's
components remained misaligned after repair, and that the misaligned
components, frame damage, and reconditioned wheel each should have
precluded certification. The Nevada Auto mechanic testified that he could
not recall whether he reviewed the ACE before inspecting the truck and
confirmed the expert's opinion that frame damage precludes certification.
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that the certification was improper,
and Nevada Auto knew that it certified the truck, and thus violated NRS
598.0915(2) by making a false representation as to the truck's certification

21
and NRS 598.0915(7) by misrepresenting the truck's standard, quality, or
grade as a CPO vehicle. We therefore conclude that a genuine issue of
material fact exists as to whether Nevada Auto violated NRS 598.0915(2)
and NRS • 598.0915(7), and thus that the district court erred by granting
summary judgment on these claims.
Whether a genuine issue of material fact exists under Poole's NRS
598.0915(15) claim
Poole argues that a genuine issue of material fact exists as to
whether Nevada Auto knowingly made any other false representation in a
transaction under NRS 598.0915(15), which provides that "[a] person
engages in a 'deceptive trade practice if, in the course of his or her business
or occupation, he or she . . . [k]nowingly makes any other false
representation in a transaction." He argues that Nevada Auto
"affirmatively rnis[led] him when, after Nevada Auto disclosed the fact of
the collision, he asked about the collision and Nevada Auto answered that
it was "minor." He notes that he offered several forms of evidence to prove
that the collision was more than "minor," and that the district court did not
address this issue in its order granting summary judgment.
Respondents answer that Poole failed to offer such evidence.
They also argue that Poole "conceded" this issue by "neglecting this portion
of the statute in his opposition to their motion for summary judgment.8
Although the district court rendered summary judgment on all
of Poole's claims, it did not expressly address this claim. We conclude,
however, that a genuine issue of material fact exists here.

8Respondents cite no authority for the proposition that Poole
somehow conceded the issue, and their underlying claim is inaccurate—
Poole addressed the issue in his opposition to the motion for summary
judgment by alleging that Nevada Auto violated NRS 598.0915(15).

22
To prove that Nevada Auto made a false representation when
it characterized the collision as only "minor," Poole offered the ACE, his
expert's declaration, and deposition testimony from Nevada Auto's
mechanic. The ACE lists each repaired and replaced part and its cost, and
the total cost of $4,088.77. The expert opined that the extent of the damage
left the truck's value substantially diminished. The Nevada Auto mechanic
testified that only the collision—not ordinary wear—could account for the
frame repair listed in the ACE.
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that Nevada Auto made a false
representation by describing the collision as "minor," and did so knowingly
because it knew that it gave the description. We therefore conclude that a
genuine issue of material fact exists, and thus that the district court erred
by granting summary judgment on this claim.
Whether a genuine issue of material fact exists under Poole's 16 C.F.R.
§ 455.1(a)(1) claim
"It is a deceptive act or practice for any used vehicle dealer,
when that dealer sells or offers for sale a used vehicle in or affecting
commerce . . . No misrepresent the mechanical condition of a used
vehiclefl" 16 C.F.R. § 455.1(a)(1). The FTCA, including 16 C.F.R.
§ 455.1(a)(1), does not provide a private cause of action. See Dreisbach v.
Murphy, 658 F.2d 720, 730 (9th Cir. 1981) (explaining that the FTCA
confers remedial power solely on the Federal Trade Commission). As Poole
notes, however, the NDTPA provides a private cause of action for an FTCA
violation. See NRS 598.0923(3) (A person engages in a 'deceptive trade
practice when in the course of his or her business or occupation he or she
knowingly. . . [v]iolates a state or federal statute or regulation relating to
the sale or lease of goods or services.").

23
Poole argues that a genuine issue of material fact exists as to
whether Nevada Auto misrepresented the truck's mechanical condition
under 16 C.F.R. § 455.1(a)(1). He refers to the evidence that he offered for
his claims under NRS 598.0915(2), (7), and (15). Respondents answer that
he failed to offer any such evidence. Like Poole's NRS 598.0915(15) claim,
the district court did not expressly address this claim. Again, however, we
conclude that a genuine issue of material fact exists.
To prove that Nevada Auto misrepresented the trucks
mechanical condition, Poole offered the ACE, the expert's declaration, and
an KA statement regarding the dangers of reconditioned wheels. The ACE
lists a reconditioned wheel among the replacement parts. The expert opined
that Nevada Auto should not have certified the truck because of the
reconditioned wheel and misaligned components. The FCA position
statement on reconditioned wheel usage confirms that reconditioned wheels
are "not recommend[ed] for use because the repairs "may alter mechanical
properties" and "result in a sudden catastrophic wheel failure."
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that Nevada Auto misrepresented the
truck's mechanical condition by certifying it despite mechanical conditions
that preclude certification, and did so knowingly because it knew that it
certified the truck despite those conditions. We therefore conclude that a
genuine issue of material fact exists, and thus that the district court erred
by granting summary judgment on this claim.
CONCLUSION
Because genuine issues of material fact exist as to each of
Poole's statutory claims, we reverse the district court's order granting

24
summary judgment in its entirety.9 Accordingly, we remand this case to
the district court for further proceedings consistent with this opinion.

Gibbons

We concur:

Tao

Bulla

9The district court also summarily disposed of Poole's equitable
claims, finding that because it granted summary judgment for respondents
on each of Poole's statutory claims, "there are no grounds to grant equitable
relief." We note that our reversal of summary judgment reinstates Poole's
equitable relief claims.

Further, the district court granted summary judgment in favor of
Corepointe because it dismissed the claims against Nevada Auto. Because
we reverse the district court's order granting summary judgment for
Nevada Auto, we also reverse the order dismissing Poole's claims against
Corepointe. The district court should also reexamine the award of attorney
fees to respondents.

25

135 Nev., Advance Opinion 31
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

DERRICK POOLE, No. 74808-COA
Appellant,
vs.
NEVADA AUTO DEALERSHIP
INVESTMENTS, LLC, A NEVADA
LIMITED LIABILITY COMPANY, D/B/A
FILED
SAHARA CHRYSLER; AND SEP 05 2019
COREPOINTE INSURANCE ETNA. BROWN
COMPANY, BC
:s" 41.Å0
Respondents. LER(

Appeal from a district court final order and summary judgment
in a deceptive trade practices action. Eighth Judicial District Court, Clark
County; Nancy L. Allf, Judge.
Reversed and remanded.

Law Offices of George O. West III and George O. West 111, Las Vegas; Law
Offices of Craig B. Friedberg and Craig B. Friedberg, Las Vegas,
for Appellant.

Moran Brandon Bendavid Moran and Jeffery A. Bendavid and Stephanie J.
Smith, Las Vegas,
for Respondents.

BEFORE GIBBONS, C.J., TAO and BULLA JJ.

lOt -310in
OPINION
By the Court, GIBBONS, C.J.:
This appeal arises from a deceptive trade practices action.
Appellant Derrick Poole sued respondents Nevada Auto Dealership
Investments, LLC, and its surety company, Corepointe Insurance
Company, under the Nevada Deceptive Trade Practices Act (NDTPA) and
NRS 41.600 (consumer fraud). Poole alleged that Nevada Auto knowingly
failed to disclose material facts about a truck that it sold to him and
misrepresented the truck's condition. The district court granted summary
judgment for respondents on each of Poole's claims.
In this opinion, we consider the meaning of "knowingly" and
“
material face under the NDTPA. These terms appear frequently
throughout the NDTPA but remain undefined under the Act. We conclude
that "knowingly" means that the defendant is aware that the facts exist that
constitute the act or omission, and that a fact is "materie if either (a) a
reasonable person would attach importance to its existence or nonexistence
in determining a choice of action in the transaction in question: or (b) the
defendant knows or has reason to know that the consumer regards or is
likely to regard the matter as important in determining a choice of action,
although a reasonable person may not so regard it. Using these definitions,
we conclude that Poole presented sufficient evidence to raise genuine issues
of material fact" under each of his claims, and thus that the district court

'Our dual usage of the term "material face is unavoidable in this case.
The first usage is that of the summary judgment standard under Wood v.
Safeway, Inc., 121 Nev. 724, 732, 121 P.3d 1026, 1031 (2005) (providing that
summary judgment is proper when "no genuine issue of material fact
remaine), the second is that of NRS 598.0923(2) (enumerating "[I]ail[ure]
to disclose a material face as a deceptive trade practice).
erred in granting summary judgment. We therefore reverse the district
court's order granting summary judgment and remand this matter to the
district court for further proceedings consistent with this opinion.
BACKGROUND
Poole purchased a certified pre-owned (CPO) Dodge truck from
Nevada Auto. Nevada Auto advertises that "CPO vehicles must pass• a
stringent certification process that guarantees only the finest late model
vehicles get certified." The truck's previous owner had been in an accident
and repaired the truck before selling it to Nevada Auto. The previous
owner's insurer, Allstate, prepared an Allstate Collision Estimate (ACE)
listing each replaced or repaired part. The ACE listed damage to the truck's
frame, and a "reconditioned!' replacement for a damaged wheel. Despite its
knowledge of the damage that the ACE described, Nevada Auto certified the
truck as a CPO vehicle.
Poole test-drove the truck with a Nevada Auto salesperson who
told him that the truck had been in a "minoe collision. When Poole asked
about the extent of the damage from the collision, the salesperson repeated
that it was only minor and explained that Nevada Auto would not sell the
truck were the collision significant. Nevada Auto also disclosed the collision
by providing a Carfax report to Poole. The Carfax report did not reveal the
frame damage, the reconditioned wheel, or the cost of repairs, and Nevada
Auto did not disclose to Poole the ACE's contents or even its existence. Two
years later. Poole learned the extent of the damage when he tried to
refinance the loan on the truck. The lender explained to Poole that it had
declined his loan application because it discovered that the collision had
damaged the truck's frame and significantly reduced its value.

COURT OF APPEALS
OF
NEVADA
3
(0) 1947B 4e1.
Poole sued Nevada Auto and Corepointe,2 alleging violations of
several deceptive trade practice statutes under the NDTPA, codified in NRS
Chapter 598, and seeking equitable relief for consumer fraud under NRS
41.600. Respondents moved for summary judgment, arguing that no
genuine issues of material fact existed under Poole's deceptive trade
practices claims. After a hearing on the motion, the district court granted
summary judgment, concluding that each of Poole's deceptive trade
practices claims failed. and thus that his equitable claims likewise failed.
ANALYSIS
Poole appeals, arguing that the district court erred by
determining that no genuine issue of material fact existed as to whether
Nevada Auto knowingly (1) failed to disclose a material fact under NRS
598.0923(2); (2) misrepresented the truck's certification under NRS
598.0915(2) or its certified standard, quality, or grade under NRS
598.0915(7); (3) made a false representation under NRS 598.0915(15); or (4)
inisrepresented the truck's mechanical condition under the Federal Trade
Cornmission Act (FTGA), 16 C.F.R. § 455.1(a)(1) (2018), in violation of NRS
598.0923(3). Respondents •answer that no genuine issue of material fact
remains because Nevada Auto disclosed all materiai facts, properly certified
the truck, and in any case, did not "inten[d] to knowingly defraud" Poole.

2 Poo1e sued Corepointe, Nevada Auto's surety company, under NRS
482.345(7)(a)(1), which provides that "[ilf the court enters . . [a l judgment
on the .merits against the dealer . . , the judgment is binding on the surety."
He notes that respondents disputed his claim against Corepointe in their
motion for summary judgment and asks this court to "dispose of thie issue.
Because the district court did not address Corepointe's liability, however,
we decline to do so in the first instance. See, e.g., Douglas Disposal, Inc. v.
Wee Haul, LLC, 123 Nev. 552, 557 n.6, 170 P.3d 508, 512 n.6 (2007)
(declining to address an argument that. the district court did not address).

4
As Poole notes, however, the NDTPA does not define
"knowingly" or "material," and the district. court did not define them in
granting summary judgment. The Nevada Supreme Court, too, has not
addressed either NDTPA term, and respondents offer little guidance.
Because the application of these terms is essential in this case and in many
other deceptive trade practices actions, we take this opportunity to address
each term's meaning under the NDTPA.
"We review questions of statutory meaning de novo."
Knickrneyer v. State, 133 Nev. 675, 679, 408 P.3d 161, 166 (Ct. App. 2017).
The primary goal of interpreting statutes is to effectuate the Legislature's
intent. Cromer v. Wilson. 126 Nev. 106, 109, 225 P.3d 788, 790 (2010). We
interpret clear and unambiguous statutes based on their plain meaning. Id.
When a statute "is susceptible to more than one natural or honest
interpretation, it is ambiguous, and the plain meaning rule has no
application." State, Dep't of Bus. & Indus. v. Granite Constr. Co., 118 Nev.
83. 87, 40 P.3d 423, 426 (2002). "[W]hen a statute is ambiguous, we consult
other sources, such as legislative history, reason, and policy to identify and
give effect to the Legislature's intent." In re CityCenter Constr. & Lien
Master Litig., 129 Nev. 669, 673-74, 310 P.3d 574, 578 (2013). "When a
legislature adopts language that has a particular meaning or history, rules
of statutory construction also indicate that a court may presume that the
legislature intended the language to have meaning consistent with previous
interpretations of the language." Beazer Homes Nev., Inc. v. Eighth Judicial
Dist, Court, 120 Nev. 575, 580-81, 97 P.3d 1132, 1135-36 (2004).
The meaning of "knowingly" under the NDTPA
Respondents argue that Poole presented no evidence that
Nevada Auto "inten[ded] to knowingly defraud" him. Poole replies that he

5
did present such evidence, but that under the NDTPA, "knowingly" means
only general intent—not intent to deceive, but mere knowledge of the facts
that constitute the act or omission.
Poole directs this court to several civil and criminal Nevada
statutes that define "knowingly" in similar contexts, two of which predate
the NDTPA's passage in 1973. For example, NRS Chapter 624, which
addresses licensing and discipline of contractors, provides in NRS 624.024,
codified in 2003, that
"Knowingly" imports a knowledge that the facts
exist [that] constitute the act or omission, and does
not require knowledge of the prohibition against
the act or omission. Knowledge of any particular
fact may be inferred from the knowledge of such
other facts as should put an ordinarily prudent
person upon inquiry.
Each of the statutes defines "knowingly" in nearly identical language and
requires no more than general intent. See also NRS 193.017 (addressing
crimes and punishments, and first codified in 1912); NRS 208.055
(addressing correctional institutions and aid to victims of crime, and first
codified in 1912); NRS 281A.115 (addressing ethics in government, and first
codified in 2009); Bolden v. State, 121 Nev. 908, 923, 124 P.3d 191, 201
(2005) ("General intent is 'the intent to do that which the law prohibits.'"
(quoting Black's Law Dictionary 810 (6th ed. 1990))), receded from on other
grounds by Cortinas v. State, 124 Nev. 1013, 1026-27, 195 P.3d 315, 324
(2008).
The above definition of "knowingly" best effectuates the
Legislature's intent under the NDTPA. The Legislature has used
"knowingly" as a term of art and defined it consistently elsewhere in the
Nevada Revised Statutes, and thus presumably intended to use it
consistently under the NDTPA. See NAIW v. Nev. Self-Insurers Assn, 126

6
Nev. 74, 84, 225 P.3d 1265, 1271 (2010) ("We presume that the Legislature
enact[s a new] statute with full knowledge of existing statutes relating to
the same subject"); cf. Beazer, 120 Nev. at 587, 97 P.3d at 1139-40
(Generally, when a legislature uses a term of art in a statute, it does so
with full knowledge of how that term has been interpreted in the past, and
it is presumed that the legislature intended it to be interpreted in the same
fashion."); see also State v. Hagan, 387 So. 2d 943, 945 (Fla. 1980) (ln the
absence of a statutory definition, resort may be had to case law or related
statutory provisions [that] define the term . . ."); Nelson v. Transamerica
Ins. Servs., 495 N.W.2d 370, 373 n.18 (Mich. 1992) ("The Legislature is
presumed to be aware of existing statutes."). Each of those statutes in
which the Legislature has defined "knowingly" is part of a statutory scheme
with a purpose similar to that of a consumer protection act—protecting and
assisting the public. See, e.g., NRS 624.005 ([T]he provisions of this
chapter.. . . are intended to . . . protect the health, safety and welfare of the
public."); NRS 217.010 ("Mhe policy of this State [is] to provide assistance
to . . . victims of violent crimes . . . ."); see also Thornas v. Sun Furniture &
Appliance Co., 399 N.E.2d 567, 570 (Ohio Ct. App. 1978) (The purpose of
Ohio's deceptive trade practices act "was to give the consumer protection
from a supplier's deceptions which he lacked under the common law
requirement of proof of an intent to deceive in order to establish fraud.").
We therefore conclude that a "knowing[ ]" act or omission under
the NDTPA does not require that the defendant intend to deceive with the
act or omission, or even know of the prohibition against the act or omission,
but simply that the defendant is aware that the facts exist that constitute
the act or omission. For example, a defendant auto dealer "knowingly"
makes a false representation of a car's condition to a plaintiff consumer if

COURT OF Appeals
Or
NEVADA

(0) 1947B •440A.
the car has been damaged in a collision and the dealer is aware that it
represented to the consumer that the car has never been damaged in a
collision. "[K]nowingly" does not require that the dealer intended to deceive
the consumer or knew of such a misrepresentation's prohibition—the
defendant must simply be aware of the fact that it represented that the car
had never been damaged in a collision. See NRS 598.0915(15) ("Knowingly
mak[ing] any other false representations in a transaction" is a deceptive
trade practice. (Emphasis added)).
We also find support for our conclusion in the statutory
interpretive canon expressio unius est exclu.sio alterius, "the expression of
one thing is the exclusion of another," Gctlloway v. Truesdell, 83 Nev. 13, 26,
422 P.2d 237, 246 (1967). As Poole notes, NRS 598.0915 includes both
"knowingly" and specific intent elements, compare NRS 598.0915(1)
("Knowingly passes off goods or services for sale or lease as those of another
person."), with NRS 598.0915(9) ("Advertises goods or services with intent
not to sell or lease them as advertised."). This implies that the Legislature
deliberately omitted any further intent requirement from those subsections
that require only knowing acts. In light of the Legislature's inclusion of
specific intent elements in some statutes and subsections and omission froni
others, the NDTPA provisions that include "knowingir acts but lack a
specific intent element require only knowledge that the facts exist that
constitute the act or omission. See Galloway,• 83 Nev. at 26, 422 P.2d at 246
(noting that expressio unius est exclusio alterius "has been repeatedly
confirmed in this State); see also Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 170 (2012) ([A] material
variation in terms suggests a variation in meaning."): see generally Sheriff,
Pershing Cty. v. Andrews, 128 Nev. 544, 548, 286 P.3d 262, 264 (2012)

8
(reasoning that where the Legislature "clearly knows how to prohibit" an
act under one statute and does not prohibit it under a second statute, the
Legislature did not intend to prohibit it under the second statute).
Our review of other jurisdictions that have addressed the
meaning of "knowingly" in similar statutes also supports our conclusion.
Kansas, New Mexico, and Ohio require "knowing[ ]" acts or omissions under
their respective deceptive trade practices acts. E.g., Kan. Stat. Ann. § 50-
626(b)(1) (2005) (defining deceptive trade practices to include
"Hepresentations made knowingly or with reason to know"); N.M. Stat.
Ann. § 57-12-2(D)(14) (LexisNexis 2010) (defining deceptive trades practices
to include "knowingly . . . failing to state a material fact"); Ohio Rev. Code
Ann. § 1345.09(F)(2) (LexisNexis 2018) (providing that a prevailing
complainant may recover attorney fees when "Nile supplier has knowingly
committed" a deceptive trade practice). Courts in each state have likewise
concluded that those statutes do not require intent to deceive or knowledge
of the act's or omission's prohibition. Moore v. Bird Eneg Co., 41 P.3d 755.
764 (Kan. 2002) (knowingly or with reason to know" does not require intent
to deceive); Richardson Ford Sales, Inc. v. Johnson, 676 P.2d 1344, 1347-48
(N.M. Ct. App. 1984) (A knowing nondisclosure requires [only] an
awareness of the nondisclosure."); Einhorn v. Ford Motor Co., 548 N.E.2d
933, 936 (Ohio 1990) (knowingly" requires only that the supplier
"intentionally do the [violative} act").
Similarly, Utah's Consumer Sale Practices Act distinguishes
knowing from• intent to deceive and awareness of an act's or omission's
prohibition by requiring either "knowing[ j or intentionall j" acts. Utah Code
Ann. § 13-11-4(2) (LexisNexis 2009). The Utah Legislature has amended
the Act twice—the first time to include an intent element by adding "intent

9
to deceive," and the second time to replace "with intent to deceive" with
"knowingly or intentionally." Martinez v. Best Buy Co., Inc., 283 P.3d 521,
523 n.2 (Utah Ct. App. 2012). Although Utah courts have not yet addressed
the meaning of "knowingly" under the Act, the Utah Legislature's
amendments further support our conclusion that "knowing[ ]" acts do not
require intent to deceive.
Colorado and New Jersey courts, however, have concluded
otherwise. Under Colorado's Consumer Protection Act, deceptive trade
practices include "[e]ither knowingly or recklessly mak[ing] a false
representation," Colo. Rev. Stat. Ann. § 6-1-105(1)(b) (West 2019), and the
Colorado Supreme Court held that a "knowingly" false representation under
the Act requires an intent to defraud. Crowe v. Tull, 126 P.3d 196, 204
(Colo. 2006). Similarly, the New Jersey Supreme Court held that a
"knowing[ ] . . . omission . . . of any material fact" under New Jersey's
Consumer Fraud Act requires intent to commit a violative omission. Cox v.
Sears Roebuck & Co., 647 A.2d 454, 461-62 (N.J. 1994) (quoting N.J. Stat.
Ann. § 56:8-2 (West 2012)).
Alaska, Tennessee, and TeXas have also defined "knowingly"
otherwise. Each state's deceptive trade practices act requires "knowing[
acts or omissions, e.g., Alaska Stat. § 45.50.471(b)(12) (2018) (defining
deceptive trade practices to include "knowingly concealing, suppressing, or
omitting a material face): Tenn. Code Ann. § 47-18-109(a)(3) (2013)
(providing that a court may award treble damages for a "knowing
violation"); Tex. Bus. & Com. Code Ann. § 17.46(b)(13) (West 2011) (defining
deceptive trade practices to include "knowingly making false or misleading
statements"), and defines "knowingly" to require awareness not of the act,
but of the falsity or deception. Alaska Stat. § 45.50.561(11) (2018)

COURT OF APPEALS
OF
NEVADA
10
(0) 194713
("[K]nowingly means actual awareness of the falsity or deception . . . .);
Tenn. Code Ann. § 47-18-103(10) (2013) (linowingly' or 'knowing' means
actual awareness of the falsity or deception . . ."), Tex. Bus. & Com. Code
Ann. § 17.45(9) (West . 2011) ("Knowingly' means actual awareness . . . of
the falsity, deception, or unfairness . . . .").
We conclude, however, that our interpretation better serves the
NDTPA's remedial purpose. Because the NDTPA is a remedial statutory
scheme, Sellinger v. Freeway Mobile Home Sales, Inc., 521 P.2d 1119, 1122
(Ariz. 1974) (recognizing that remedial statutes are those that "are designed
to redress existing grievances and introduce regulations conducive to the
public good"), we "afford[ ] [it] liberal construction to accomplish its
beneficial intent," see Welfare Div. of State Dep't of Health, Welfare & Rehab.
u. Washoe Cty. Welfare Dep't, 88 Nev. 635, 637, 503 P.2d 457. 458 (1972)
(construing a remedial public welfare statute liberally to accomplish its
intent). Interpreting "knowingly" to require more than general intent
would render NDTPA and common law fraud claims redundant, see
Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 110-11, 825 P.2d 588. 592 (1992)
(listing "knowledge or belief that the representation is false' and intent to
deceive as elements of a common law fraud claim), disserve the NDTPA's
remedial purpose, and discourage claims by forcing parties to clear a
significantly higher bar. Cf. Betsinger v. D.R. Horton, Inc., 126 Nev. 162,
166, 232 P.3d 433, 436 (2010) ("Statutory offenses that sound in fraud are
separate and distinct from common law fraud. Therefore, we conclude that
deceptive trade practices, as defined under NRS Chapter 598, must only be
proven by a preponderance of the evidence."); see also United States u.
Krohn, 573 F.2d 1382, 1386-87 (10th Cir. 1978) (recognizing the difficulty
of proving fraudulent intent); Thomas, 399 N.E.2d at 570 (The purpose of

COURT OF APPEALS
OF
NEVADA
11
40) 19417B 414a*,
Ohio's deceptive trade practices act "was to give the consumer protection
from a supplier's deceptions which he lacked under the common law
requirement of proof of an intent to deceive in order to establish fraud. To
require proof of intent would effectively emasculate the act and contradict
its fundamental purpose."); Einhorn, 548 N. E.2d at 935-36 (concluding that
interpreting "knowingly" to require knowledge of the act's or oinission's
prohibition would "take[ ] the teeth out of Ohio's deceptive trade practices
act, "is inapposite to" its remedial purpose, and would discourage consumers
from suing under the act).
The meaning of "material fact" under the NDTPA
NRS 598.0923(2) provides that a seller who "[flails •to disclose a
material face engages in a deceptive trade practice. Poole, citing an
extensive array of caselaw across multiple jurisdictions, argues that a
material fact is one that is reasonably relevant to the transaction and one
to which a reasonable person would attach importance. Poole thus proposes
an objective standard of materiality. Respondents answer that only the fact
of the collision was material—not the extent of the damage—because Poole
is, by his own admission, not "a car guy." Respondents thus implicitly
propose a subjective standard. We conclude, however, that applying both
the objective and subjective definitions best effectuates the Legislature's
intent and is most consistent with the NDTPA.
Nevada law generally directs us to the definition of "material
face in the Second Restatement of Torts:
The matter is material if
(a) a reasonable man would attach importance to
its existence or nonexistence in determining
his choice of action in the transaction in
question; or

12
(b) the maker of the representation knows or has
reason to know that its recipient regards or is
likely to regard the matter as important in
determining his choice of action, although a
reasonable man would not so regard it.3
§ 538(2) (Am. Law Inst. 1977). The Nevada civil pattern jury instructions,
for instance, adopt subsection (a)'s objective "attach importance language.
Nevada Jury Instructions: Civil § 11.19 (State Bar of Nevada 2018)
(addressing "material misrepresentation . . . in [an] application for
insurance or the claims procese). Instruction 11.19 provides that "[a] fact
is material if it concerns a subject reasonably relevant . . . and if a
reasonable person would attach importance to that fact." Further, the
Nevada Supreme Court applied subsection (a)'s objective standard in Winn
v. Sunrise Hospital & Medical Center, a professional negligence case in
which the court considered whether a hospital withheld material
information and thus tolled the applicable statute of limitations. 128 Nev.
246, 255, 277 P.3d 458, 464 (2012).
A subjectively material fact under subsection (b) of the Second
Restatement may be no less important to a buyer in some special
circumstances than an objectively material fact, however. and applying a
subjective standard of materiality is consistent with the NDTPA's

3Subsection (b) does not address failure to disclose, but its affirmative

opposite--representation. Nevertheless, we hold that failure to disclose a
fact is equivalent to affirmative representation of that fact's nonexistence.
See 011erman v. O'Rourke Co., 288 N.W.2d 95, 100 (Wis. 1980) (if there is
a duty to disclose a fact, failure to disclose that fact is treated in the law as
equivalent to a representation of the non existence of the fact."). We thus
interpret subsection (b) to apply to failure to disclose material facts as well
as affirmative misrepresentations thereof.

13
legislative purpose to protect consumers.4 See Washoe Cty. Welfare Dep't,
88 Nev. at 637, 503 P.2d at 458 (holding that remedial legislation "should
be afforded liberal construction to accomplish its beneficial intene); see also
Restatement (Second) of Torts § 538(2) cint. f (Am. Law Inst. 1977) ("There
are many persons whose judgment, even in important transactions, is likely
to be determined by considerations that the normal man would regard as
altogether trivial • or even ridiculous. One who practices upon another's
known idiosyncracies cannot complain if he is held liable when he is
successful . .
Our approach is Consistent with a majority of other jurisdictions
that likewise look to the Second Restatement of Torts to define "material
face in contexts similar to the NDTPA.
New Jersey and Tennessee use the objective subsection (a) and
the subjective subsection (b) alike, Mango u. Pierce-Coombs, 851 A.2d 62, 69
(N.J. Super. Ct. App. Div. 2004) (applying subsections (a) and (b) in a claim
under New Jersey's Consumer Fraud Act); Odom v. Oliver, 310 S.W.3d 344,
349 (Tenn. Ct. App. 2009) (applying subsections (a) and (b) in a fraudulent
concealment claim), while Arizona has used subsection (a), Caruthers v.
Underhill, 287 P.3d 807, 815 (Ariz. Ct. App. 2012) (applying subsection (a)
in a fraudulent inducement claim). Several others simply use subsection

4 For instance, if a buyer sought to purchase a used truck and

preferred, for some purely idiosyncratic reason, that the truck had
originally not been sold in California; the dealer knew or had reason to know
of the buyer's preference and the truck's sales history; and the truck had in
fact been sold in California, then the dealer must disclose that fact to the
buyer under NRS 598.0923(2). Although a reasonable person may consider
such a fact unimportant, the dealer knew or had reason to know that the
idiosyncratic buyer considered the fact important to the decision to
purchase the truck.

14
(a)'s "importance" standard without citing the Restatement, and without
expressly rejecting subsection (b). E.g., Weinstat v. Dentsply Int?, Inc., 103
Cal. Rptr. 3d 614, 622 n.8 (Ct. App. 2010) (Under California's Unfair
Competition Law, "Nile question of materiality.. . . is whether a reasonable
person would attach importance to the representation or nondisclosure in
deciding how to proceed in the particular transaction . . . ."); Italian Cowboy
Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011)
(In a fraudulent misrepresentation claim, "[m]aterial means a reasonable
person would attach importance to and would be induced to act on the
information in determining his choice of actions in the transaction in
question." (quoting Smith v. KNC Optical, Inc., 296 S.W.3d 807, 812 (Tex.
Ct. App. 2009)); lnkel v. Pride Chevrolet-Pontiac, Inc., 945 A.2d 855, 859 (Vt.
2(>08) (Under Vermont's Consumer Fraud Act, a material fact is one that "a
reasonable person would regard as important in making a decision.").
Ohio, however, uses a unique objective standard, Davis u. Sun
1?ef. & Mktg. Co., 671 N.E.2d 1049, 1058 (Ohio Ct. App. 1996) (In a
fraudulent concealment claim, a fact is material if it "would be likely, under
the circumstances, to affect the conduct of a reasonable person with
reference to the transaction in question."), while Illinois uses a combination
of unique objective and subjective standards, Connick v. Suzuki Motor Co.,
Ltd., 675 N.E. 2d 584, 595 (Ill. 1996) (Under Illinois Consumer Fraud Act,
"[a] material fact exists where a buyer would have acted differently knowing
the information, or if it concerned the type of information upon which a
buyer would be expected to rely in making a decision whether to purchase.").
Only a small minority of states uses a purely subjective
standard, and none expressly reject an objective standard. Briggs v. Ant.
Nat? Prop. & Cas. Co., 209 P.3d 1181, 1186 (Colo. App. 2009) (Under the

15
Colorado Consumer Protection Act, lulndisclosed facts are 'material if the
consumer's decision might have been different had the truth been
disclosed."); Casavant v. Norwegian Cruise Line, Ltd., 919 N.E.2d 165, 170
(Mass. App. Ct. 2009) (To determine if the nondisclosure was of a material
fact [in an unfair or deceptive act or practice claim], we ask whether the
plaintiff likely would have acted differently but for the nondisclosure.");
Colaizzi v. Beck, 895 A.2d 36, 39-40 (Pa. Super. Ct. 2006) (Under the
Pennsylvania Consumer Protection Act, "a misrepresentation is material if
it is of such character that if it had not been inisrepresented, the transaction
would not have been consummated."), see also Garcano v. JBSS, LLC, 684
S.E.2d 41, 53 (N.C. Ct. App. 2009) (In a fraud claim, "[a] fact is material if
had it been known to the party, [it] would have influenced that party's
decision in making the contract at all.").
We therefore conclude that applying both the objective and
subjective definitions in the Second Restatement of Torts best effectuates
the Legislature's intent and is most consistent with the NDTPA.
Whether a genuine issue of material fact exists under Poole's N RS
598.0923(2) claim
We review a district court's order granting summary judgment
de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729. 121 P.3d 1026. 1029
(2005). Summary judgment is proper if the pleadings and all other evidence
on file demonstrate that no genuine issue of material fact exists and that
the moving party is entitled to judgment as a matter of law. Id.; see also
NRCP 56. "[T]he evidence, and any reasonable inferences drawn from it,
rnust be viewed in a light most favorable to the nonmoving party.- Wood,
121 Nev. at 729, 121 P.3d at 1029. "A factual dispute is genuine when the
evidence is such that a rational trier of fact could return a verdict for the
nonmoving party." Id. at 731, 121 P.3d at 1031.

16
"A person engages in a 'deceptive trade practice when, in the
course of his or her business or occupation, he or she knowingly.. . [flails
to disclose a material fact in connection with• the sale or lease of goods or
services." NRS 598.0923(2). Poole argues that a genuine issue of material
fact exists as to whether Nevada Auto failed to disclose a material fact
under NRS 598.0923(2). He argues that be offered evidence sufficient to
raise a genuine factual dispute under this claim, including deposition
testimony froin three Nevada Auto employees.
Respondents answer that disclosure of the fact of the collision
was sufficient under NRS 598.0923(2), and that more specific information
about the damage from the collision would have been irrelevant and
immaterial because Poole, by his own admission, is not "a car guy." They
argue that construing NRS 598.0923(2) to require a dealer to disclose as
facts material to the sale "each and every nut and/or bolt, which may have
been repaired and/or replace& would be "absurd." Respondents also argue
that Poole presented no evidence that they "inten[ded] to knowingly
defraud, misrepresent, or to otherwise omit 'material' information."
Respondents' "each and every nut and/or bole argument
misstates Poole's argument and frames the issue as a false dilemma in
which the district court must either (1.) limit the scope of material facts to
the single fact of the collision, as the district court did in its order, or (2)
broaden the scope of material facts to •an extent that requires an
unconscionably burdensome and painstaking account of the damage from
the collision. This ignores, of course, a vast intermediate territory in which
the scope of material facts may exclude relatively useless ones, such as
"each and every repaired bolt or penny spent," but include those to which a
reasonable person may attach importance, such as the nature and extent of

17
the collision damage. Nonetheiess, the district court found that "the
material . . . fact is that the vehicle was in a prior accident" and that "[t]he
duty to disclose under NRS 598.0923 does not extend to the entire effect of
the accident, such as a price breakdown of every part and service provided
as listed in the ACE."
The district court also found that "[t]here is no indication in the
record that [Poole] inquired about the parts and services used to repair the
vehicle as provided in the ACE, and such information was then withheld."6
The court concluded by finding that "[Poole] relied on the [CPO] report,
which the undisputed evidence shows would only have notated frame
damage if a repair, if any, was not up to standard."
This reasoning begs the question, however, by assuming that
Nevada Auto's certification standards are interchangeable with the
statute's materiality standard—that a fact immaterial to CPO status is
perforce immaterial under NRS 598.0923(2), The district court appeared to
reason that had the damage been material under the statute, the truck
would have been "not up to [certification] standard," and the damage would

5Why the district court deemed the fact of the accident "the material

fact" is unclear. NRS 598.0923(2) addresses "fail[ure] to disclose a material
fact." (Emphasis added.) The indefinite article "e implies an indefinite
scope of potentially material facts. The district court appeared to limit that
scope to a single material fact by using the definite article "the," which is
inconsistent with the statute's plain language.

6Poo1e argues the district court misapprehended NRS 598.0923(2)
when it found that he must have inquired about a fact before Nevada Auto
assumed the duty to disclose it. Poole is correct—by its plain language, NRS
598.0923(2) does not require inquiry, but provides for an affirmative duty
to disclose.

18
have been noted in the CPO report; and because the damage was not noted
in the CPO report, it must not have been material. • Thus, the court
effectively replaced the legal standard that governs this issue—materiality
under NRS 598.0923(2)—with Nevada Auto's self-imposed certification
standards."' Such reasoning would allow a seller to determine the scope of
its duty to disclose by dictating its own "certification" standards and prevail
against an NRS 598.0923(2) claim simply by upholding those standards,
however lax they may be. In Poole's words, this "establishe[sl a quasi-
irrebuttable presumption." We agree, and we caution district courts against
substituting a commercial certification standard for any legal standard.
Poole offered deposition testimony from himself and three
Nevada Auto employees. In his own deposition, he testified that he asked
the Nevada Auto salesperson about the collision and that the salesperson
asured him that the •collision was only "minor." Notably, two of Nevada
Auto's own employees agreed with Poole that the nature and extent of the
damage from a collision are as important to a buyer as the fact of the
collision itself. The third testified that he "thoroughly reviewed7 the ACE
before purchasing the truck for Nevada Auto, suggesting that Nevada Auto
considered the AC E's contents, which indicated the nature and extent of the
damage, reasonably relevant to the truck's sale.
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that Nevada Auto failed to disclose a
fact to which a reasonable person would attach importance in determining
a choice of action in the transaction, such as the frame damage. and thus

7Despite abandoning the statutory standard for Nevada Auto's CPO
standard, the district court declined to consider "Mlle sufficiency of the CPO
inspection standards because it was "not at issue."

19
that Nevada Auto failed to disdose an objectively material fact.
Alternatively, a ratioñal trier of fact could find that Nevada Auto knew or
had reason to know that Poole would regard or was likely to regard the
extent of the damage, for instance, as important in determining his choice
of action, even if a reasonable person would not attach importance to it, and
thus that Nevada Auto failed to disclose a subjectively material fact. In
either case, a rational trier of fact could find that Nevada Auto knowingly
failed to disclose a material fact because it knew that it did not disclose that
fact. We therefore conclude that a genuine issue of material fact exists such
that the district court erred by granting summary judgment on this claim.
Whether a genuine issue of rnaterial fact exists under Poole's NRS
598.0915(2) and (7) claims
"A person engages in a 'deceptive trade practice if, in the course
et his or her business or occupation, he or she . . . [k]nowingly makes a false
representation as to the . . . certification of goods or services for sale or
kase." NRS 598.0915(2), or "Hepresents that goods . . . are of a particular
standard, quality or grade, or that such goods are of a particular style or
model, if he or she knows or should know that they are of another standard,
quality. grade, style or model," NRS 598.0915(7). Poole argues that a
genuine issue of material fact exists under his claim that Nevada Auto
knowingly made a false representation as to the truck's certification under
NRS 598.0915(2), or misrepresented the truck's certified standard, quality,
or grade under NRS 598.0915(7). He argues that he produced evidence that
the extent of the damage from the collision precluded certification. including
a declaration from an expert who inspected the truck and a statement from
the Fiat Chrysler Automobiles (FCA) website indicating that the truck's
repaired wheel may be inconsistent with certification standards.
Respondents answer that Poole failed to produce evidence proving that the

20
truck's standard, quality, or grade was anything other than certified, that
Nevada Auto did not inspect and• certify the truck, or that Nevada Auto
should not have certified it.

The district court concluded that because Nevada Auto certified
the truck, "[Poole] cannot argue that [Nevada Auto] misrepresented that
the vehicle was . . . certified, as it was. The sufficiency of the CPO
inspection standards is not at issue for this argument, but rather that the
vehicle was ultimately certified as pre-owned." We disagree. Poole did not
argue that Nevada Auto did not certify the truck, but that Nevada Auto
should not have certified the truck under the CPO standards, and thus made
a false representation as to its certification and likewise misrepresented its
standard, quality, or grade.

To prove that Nevada Auto should not have certified the truck,
and thus violated NRS 598.0915(2) and NRS 598.0915(7) by doing so, Poole
offered the ACE, an expert's declaration, and deposition testimony from the
Nevada Auto mechanic who inspected the truck for certification purposes.
The ACE indicates frame damage and lists a "reconditione& wheel among
the replacement parts. The expert opined that several of the truck's
components remained misaligned after repair, and that the misaligned
components, frame damage, and reconditioned wheel each should have
precluded certification. The Nevada Auto mechanic testified that he could
not recall whether he reviewed the ACE before inspecting the truck and
confirmed the expert's opinion that frame damage precludes certification.
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that the certification was improper,
and Nevada Auto knew that it certified the truck, and thus violated NRS
598.0915(2) by making a false representation as to the truck's certification

21
and NRS 598.0915(7) by misrepresenting the truck's standard, quality, or
grade as a CPO vehicle. We therefore conclude that a genuine issue of
material fact exists as to whether Nevada Auto violated NRS 598.0915(2)
and NRS • 598.0915(7), and thus that the district court erred by granting
summary judgment on these claims.
Whether a genuine issue of material fact exists under Poole's NRS
598.0915(15) claim
Poole argues that a genuine issue of material fact exists as to
whether Nevada Auto knowingly made any other false representation in a
transaction under NRS 598.0915(15), which provides that "[a] person
engages in a 'deceptive trade practice if, in the course of his or her business
or occupation, he or she . . . [k]nowingly makes any other false
representation in a transaction." He argues that Nevada Auto
"affirmatively rnis[led] him when, after Nevada Auto disclosed the fact of
the collision, he asked about the collision and Nevada Auto answered that
it was "minor." He notes that he offered several forms of evidence to prove
that the collision was more than "minor," and that the district court did not
address this issue in its order granting summary judgment.
Respondents answer that Poole failed to offer such evidence.
They also argue that Poole "conceded" this issue by "neglecting this portion
of the statute in his opposition to their motion for summary judgment.8
Although the district court rendered summary judgment on all
of Poole's claims, it did not expressly address this claim. We conclude,
however, that a genuine issue of material fact exists here.

8Respondents cite no authority for the proposition that Poole
somehow conceded the issue, and their underlying claim is inaccurate—
Poole addressed the issue in his opposition to the motion for summary
judgment by alleging that Nevada Auto violated NRS 598.0915(15).

22
To prove that Nevada Auto made a false representation when
it characterized the collision as only "minor," Poole offered the ACE, his
expert's declaration, and deposition testimony from Nevada Auto's
mechanic. The ACE lists each repaired and replaced part and its cost, and
the total cost of $4,088.77. The expert opined that the extent of the damage
left the truck's value substantially diminished. The Nevada Auto mechanic
testified that only the collision—not ordinary wear—could account for the
frame repair listed in the ACE.
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that Nevada Auto made a false
representation by describing the collision as "minor," and did so knowingly
because it knew that it gave the description. We therefore conclude that a
genuine issue of material fact exists, and thus that the district court erred
by granting summary judgment on this claim.
Whether a genuine issue of material fact exists under Poole's 16 C.F.R.
§ 455.1(a)(1) claim
"It is a deceptive act or practice for any used vehicle dealer,
when that dealer sells or offers for sale a used vehicle in or affecting
commerce . . . No misrepresent the mechanical condition of a used
vehiclefl" 16 C.F.R. § 455.1(a)(1). The FTCA, including 16 C.F.R.
§ 455.1(a)(1), does not provide a private cause of action. See Dreisbach v.
Murphy, 658 F.2d 720, 730 (9th Cir. 1981) (explaining that the FTCA
confers remedial power solely on the Federal Trade Commission). As Poole
notes, however, the NDTPA provides a private cause of action for an FTCA
violation. See NRS 598.0923(3) (A person engages in a 'deceptive trade
practice when in the course of his or her business or occupation he or she
knowingly.. . . [v]iolates a state or federal statute or regulation relating to
the sale or lease of goods or services.").

23
Poole argues that a genuine issue of material fact exists as to
whether Nevada Auto misrepresented the truck's mechanical condition
under 16 C.F.R. § 455.1(a)(1). He refers to the evidence that he offered for
his claims under NRS 598.0915(2), (7), and (15). Respondents answer that
he failed to offer any such evidence. Like Poole's NRS 598.0915(15) claim,
the district court did not expressly address this claim. Again, however, we
conclude that a genuine issue of material fact exists.
To prove that Nevada Auto misrepresented the trucks
mechanical condition, Poole offered the ACE, the expert's declaration, and
an KA statement regarding the dangers of reconditioned wheels. The ACE
lists a reconditioned wheel among the replacement parts. The expert opined
that Nevada Auto should not have certified the truck because of the
reconditioned wheel and misaligned components. The FCA position
statement on reconditioned wheel usage confirms that reconditioned wheels
are "not recommend[ed] for use because the repairs "may alter mechanical
properties" and "result in a sudden catastrophic wheel failure."
Viewed in a light most favorable to Poole, this evidence is such
that a rational trier of fact could find that Nevada Auto misrepresented the
truck's mechanical condition by certifying it despite mechanical conditions
that preclude certification, and did so knowingly because it knew that it
certified the truck despite those conditions. We therefore conclude that a
genuine issue of material fact exists, and thus that the district court erred
by granting summary judgment on this claim.
CONCLUSION
Because genuine issues of material fact exist as to each of
Poole's statutory claims, we reverse the district court's order granting

24
summary judgment in its entirety.9 Accordingly, we remand this case to
the district court for further proceedings consistent with this opinion.

Gibbons

We concur:

Tao

Bulla

9The district court also summarily disposed of Poole's equitable
claims, finding that because it granted summary judgment for respondents
on each of Poole's statutory claims, "there are no grounds to grant equitable
relief." We note that our reversal of summary judgment reinstates Poole's
equitable relief claims.

Further, the district court granted summary judgment in favor of
Corepointe because it dismissed the claims against Nevada Auto. Because
we reverse the district court's order granting summary judgment for
Nevada Auto, we also reverse the order dismissing Poole's claims against
Corepointe. The district court should also reexamine the award of attorney
fees to respondents.

25