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Smith v. Pesa

Supreme Court of New Hampshire

January 26, 2016

JEFFREY SMITH
v.
MILKO PESA d/b/a AUTO MILKO

Argued: November 10, 2015

7th Circuit Court-Rochester District Division

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 ...


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