Smith v. Pesa

• Decision Date: 26 January 2016
• Docket Number: No. 2015-0019,2015-0019
• Citation: 132 A.3d 924,168 N.H. 541
• Parties: Jeffrey SMITH v. Milko PESA d/b/a Auto Milko
• Court: New Hampshire Supreme Court

168 N.H. 541

132 A.3d 924

Jeffrey SMITH

v.Milko PESA d/b/a Auto Milko

No. 2015-0019

Supreme Court of New Hampshire.

Argued: November 10, 2015

Opinion Issued: January 26, 2016

Denitsa N. Pocheva–Smith, of Rochester, by brief and orally, for the plaintiff.

Lawson Persson & Weldon–Francke, PC, of Laconia (James P. Ball on the brief), and Haughey, Philpot & Laurent, P.A., of Laconia (William Philpot, Jr. orally), for the defendant.

BASSETT, J.

The plaintiff, Jeffrey Smith, appeals an order of the Circuit Court (Ashley, J. ) granting judgment to the defendant, Milko Pesa d/b/a Auto Milko, on the plaintiff's small claim action seeking damages and other relief on the grounds that he validly revoked acceptance of the used motor vehicle the defendant sold him and that, by selling him the vehicle, the defendant violated RSA chapter 358-F. See RSA ch. 358-F (2009). We affirm.

The relevant facts follow. In February 2014, the plaintiff purchased a 2004 Subaru from the defendant "as is as seen." Before purchasing it, he signed and/or initialed four documents. The first document is a receipt from the defendant's car dealership stating that the plaintiff purchased the motor vehicle "as is as seen," and containing statements in which the defendant, as the seller of the motor vehicle, disclaimed "ALL WARRANTIES, EITHER EXPRESS OR IMPLIED ."

The second document is a notice stating:

YOU ARE ABOUT TO PURCHASE A VEHICLE THAT MAY NOT PASS A NEW HAMPSHIRE VEHICLE INSPECTION.

‘AUTO MILKO’ INFORMS YOU THAT THIS VEHICLE IS BEING SOLD IN[ ]

"AS–IS" CONDITION AND THAT THE DEALERSHIP IS NOT RESPONSIBLE FOR ANY MECHANICAL PROBLEMS OR ANY OTHER MALFUNCTIONS TO THE VEHICLE AFTER YOU HAVE TAKEN DELIVERY.

PLEASE BE SURE THAT YOU ARE PREPARED TO PURCHASE THIS VEHICLE AND AGREE TO THE ABOVE CONDITION BEFORE SIGNING.

The third document, a form from the New Hampshire Division of Motor Vehicles (DMV) titled " NOTICE OF SALE OF UNSAFE MOTOR VEHICLE," states, in pertinent part: "If you are considering the purchase of a used motor vehicle which may not pass a New Hampshire safety inspection, you have a right under RSA 358–F, to request that the dealer inspect the vehicle prior to sale and list the defects which must be corrected before an inspection sticker will be issued." The DMV form contains the following notice: " The motor vehicle described herein will not pass a New Hampshire inspection and is unsafe for operation." The form also contains a chart of possible deficiencies. The defendant wrote "unknown" across the fields in the chart. By signing the form, the plaintiff "acknowledge[d] that [he had] read the above statement and [had] been advised of [his] rights relative to the sale of unsafe motor vehicles." He also acknowledged that the motor vehicle " will not pass a New Hampshire inspection, is unsafe for operation, and cannot be driven on the ways of this state ." The plaintiff initialed his choice that a safety inspection not be conducted.

A fourth document, titled "BUYERS GUIDE," stated:

AS IS—NO WARRANTY

YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.

After purchasing the motor vehicle, the plaintiff had it inspected by a Subaru dealership, and the vehicle failed inspection. Thereafter, the parties agreed that the vehicle would be inspected by an independent mechanic. According to the plaintiff, the independent mechanic corroborated the opinion of the Subaru dealership that the vehicle was beyond repair. According to the defendant, the independent mechanic opined that the vehicle required only the replacement of a missing part. The plaintiff subsequently brought a small claim action against the defendant, seeking damages and rescission of the sale.

Following a hearing, the trial court ruled in favor of the defendant, stating that the plaintiff had "failed to sustain his burden of proof that defendant cause[d] him damage, particularly given the fact that plaintiff signed disclaimers." This appeal followed.

On appeal, the plaintiff argues that he presented sufficient evidence that he revoked his acceptance of the motor vehicle pursuant to RSA 382–A:2–608 (2011) and that the defendant violated RSA 358–F:2, :3. We review sufficiency of the evidence claims as a matter of law, and uphold the findings and rulings of the trial court unless they are lacking in evidentiary support or tainted by error of law. Achille v. Achille, 167 N.H. 706, 715, 117 A.3d 1144 (2015). "When performing this review, we accord considerable weight to the trial court's judgments on the credibility of witnesses and the weight to be given testimony." Id. at 715–16, 117 A.3d 1144 (quotation omitted). We view the evidence in the light most favorable to the prevailing party, here, the defendant. See id. at 716, 117 A.3d 1144 ; see also In re Cyr, 873 A.2d 355, 360–61 (Me.2005) (explaining that the appellate court's "inquiry in a challenge to the sufficiency of the evidence in a civil matter is whether ‘by any reasonable view of the evidence, including inferences to be drawn therefrom, taken in the light most favorable to the prevailing party, the [judgment] can be sustained’ ").

Resolving the issues on appeal requires that we engage in statutory interpretation. "Statutory interpretation is a question of law, which we review de novo ." Appeal of Local Gov't Ctr., 165 N.H. 790, 804, 85 A.3d 388 (2014). "In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole." Id. "We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning." Id.

We begin with the plaintiff's argument that he revoked acceptance of the motor vehicle pursuant to RSA 382–A:2–608. RSA 382–A:2–608 is part of the Uniform Commercial Code. It provides, in pertinent part:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to him if he has accepted it

(a) on the reasonable assumption that its non-conformity would be cured and it has not been seasonably cured; or

(b) without discovery of such non-conformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

RSA 382–A:2–608(1). "Goods ... are ‘conforming’ or conform to the contract when they are in accordance with the obligations under the contract." RSA 382–A:2–106(2) (2011).

The plaintiff's reliance upon RSA 382–A:2–608 is misplaced because here the motor vehicle conformed to the parties' contract. The parties specifically contracted for a used motor vehicle that "will not pass a New Hampshire inspection, is unsafe for operation, and cannot be driven on the ways of this state ." (Bolding omitted.) Thus, when the motor vehicle failed inspection, it conformed to the parties' contract because its condition was "in accordance with the obligations under the contract," RSA 382–A:2–106(2) (2011), and its failure to pass inspection did not entitle the plaintiff to revoke his acceptance of the motor vehicle.

Although the plaintiff argues that this case is similar to Woods v. Secord, 122 N.H. 323, 444 A.2d 539 (1982), he is mistaken. The plaintiff in Woods, like the plaintiff here, purchased a motor vehicle in "as is" condition. Woods, 122 N.H. at 324, 444 A.2d 539 (quotation omitted). However, the seller in Woods, unlike the defendant here, represented that the motor vehicle "was in good condition and ran properly." Id. (quotation omitted). Because the seller's representation that the motor vehicle ran properly "was fundamental to the consideration on which the sale was predicated," we agreed with the master that the plaintiff was entitled to revoke his acceptance of it. Id. (quotation omitted). In contrast to the seller in Woods, there is no evidence that the defendant in this case represented that the motor vehicle ran well; rather, the record in this case establishes that the defendant specifically notified the plaintiff, in writing, that it would not pass a New Hampshire motor vehicle inspection.

At oral argument, the plaintiff asserted that the motor vehicle he purchased was non-conforming because it was beyond repair and that he did not contract for such a vehicle. However, the evidence that the motor vehicle was beyond repair was conflicting, and those conflicts were for the trial court to resolve. See Cook v. Sullivan, 149 N.H. 774, 780, 829 A.2d 1059 (2003) (explaining that "we defer to the trial court's judgment on such issues as resolving conflicts in the testimony, measuring the credibility of witnesses, and determining the weight to be given evidence"). Although the plaintiff testified that the motor vehicle could not be repaired, the defendant testified that, not only could it be repaired, but that, after the plaintiff...