                                                                  FILED BY CLERK
                                                                      OCT 26 2004
                                                                      COURT OF APPEALS
                           IN THE COURT OF APPEALS                      DIVISION TWO
                               STATE OF ARIZONA
                                 DIVISION TWO


TRAVIS HULL and SHELLY HULL,                )       2 CA-CV 2004-0016
husband and wife,                           )       DEPARTMENT A
                                            )
                    Plaintiffs/Appellees,   )       OPINION
                                            )
                  v.                        )
                                            )
DAIMLERCHRYSLER                             )
CORPORATION,                                )
                                            )
                  Defendant/Appellant.      )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF GILA COUNTY

                                Cause No. CV 2001-180

                         Honorable Robert Duber II, Judge

               REVERSED AND REMANDED WITH DIRECTIONS


Krohn & Moss, Ltd.
 By Marshall Meyers and Ian Pryor                                            Phoenix
                                                   Attorneys for Plaintiffs/Appellees

Bowman and Brooke, LLP
 By Negatu Molla and Lori A. Van Daele                                     Phoenix
                                                  Attorneys for Defendant/Appellant


H O W A R D, Presiding Judge.
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¶1            Appellant DaimlerChrysler Corporation appeals from a judgment entered after

a jury verdict in favor of appellees Travis and Shelly Hull in the Hulls’ “Lemon Law” action.

DaimlerChrysler contends the trial court erred in several respects, including denying

DaimlerChrysler’s motion to dismiss the action because the Hulls had sold the vehicle before

trial and were no longer entitled to the relief provided by the statute. Because we agree that

the Hulls were not entitled to relief under the Lemon Law after they sold the vehicle, we

reverse the judgment and direct entry of judgment in favor of DaimlerChrysler.

¶2            The relevant facts concerning the sale of the vehicle are not in dispute. In

April 2000, the Hulls signed a three-year lease agreement for a Dodge Ram truck from Horne

Motor Company.        The agreement included a three-year or thirty-six-thousand-mile

manufacturer warranty from DaimlerChrysler. Under the agreement, the Hulls would pay

a total of $19,147.11 in monthly payments if they returned the vehicle after the three-year

period. The lease further stated the Hulls would be charged an excessive use fee of $.15 per

mile if they drove the vehicle more than forty-five thousand miles during the lease term,

unless they decided to purchase the vehicle.

¶3            Several months after the Hulls signed the agreement, the truck experienced

engine trouble. On December 14, 2000, the vehicle was towed to Horne Motor Company

where technicians determined that the vehicle needed a new engine. Although there was an

initial dispute on whether the damage was covered under the warranty, DaimlerChrysler

ultimately authorized the repairs. Horne replaced the engine and returned the truck to the

Hulls on February 14, 2001.


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¶4            In March 2001, the Hulls sued DaimlerChrysler, alleging, inter alia, a

violation of Arizona’s Lemon Law. After the Hulls filed their complaint, they continued to

use the vehicle for the remainder of the lease period, accruing a total of 67,000 miles on the

vehicle. Rather than pay the excess mileage charge, the Hulls chose to purchase the vehicle

as the lease agreement allowed, and they continued to drive the vehicle. Then, three weeks

before trial, the Hulls sold the vehicle. DaimlerChrysler moved to dismiss the action,

arguing that the Lemon Law required the Hulls to return the allegedly defective vehicle. The

trial court denied the motion, and the Hulls were ultimately awarded $18,480.66 in

damages.

¶5            DaimlerChrysler argues the trial court erred by not dismissing the lawsuit after

the Hulls sold the vehicle. It contends the remedies prescribed by the statute specifically

require that a defective vehicle be returned to the manufacturer and, thus, that the statute

did not provide a remedy once the Hulls sold the vehicle. The interpretation of a statute is

a question of law that we review de novo. Phoenix Newspapers, Inc. v. Ariz. Dep’t of Econ.

Sec., 186 Ariz. 446, 448, 924 P.2d 450, 452 (App. 1996).

¶6            Arizona’s Lemon Law requires new motor vehicles to conform to all

applicable express warranties. A.R.S. § 44-1262. If a consumer of a motor vehicle reports

to the manufacturer a defect or nonconformity covered by the manufacturer’s express

warranty, the manufacturer, its agents, or its authorized dealers must make the repairs

necessary to correct the problem. § 44-1262(A)(2). But, if the vehicle cannot be repaired




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after four attempts or is out of service for a cumulative total of thirty or more calender days,

A.R.S. § 44-1264(A),

               the manufacturer shall replace the motor vehicle with a new
               motor vehicle or accept return of the motor vehicle from the
               consumer and refund to the consumer the full purchase price,
               including all collateral charges, less a reasonable allowance for
               the consumer’s use of the vehicle.

A.R.S. § 44-1263(A). Once a manufacturer has replaced or repurchased a motor vehicle

pursuant to this provision, the manufacturer then must place a notice on the vehicle

informing any prospective purchaser that it was reacquired pursuant to the Lemon Law.

A.R.S. § 44-1266.

¶7             Prior to the enactment of Lemon Laws, the only relief available to consumers

of a defective vehicle was under the common law, the Uniform Commercial Code, or the

Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312. 17 Am. Jur. 2d Consumer

Product Warranty Acts § 49, at 370 (2004). Because these limited remedies did not

adequately protect the consumer’s interests in a typical faulty vehicle claim, many states,

including Arizona, enacted Lemon Laws to provide consumers a remedy directly against the

manufacturer of a defective vehicle. See id.

¶8             Although Arizona’s Lemon Law provides relief to a consumer of a defective

vehicle, this relief is limited to that prescribed by the act. “When a statute creates a right and

also creates a remedy for the right created, the remedy thereby given is exclusive.” Register

v. Coleman, 130 Ariz. 9, 14, 633 P.2d 418, 423 (1981); see also Blankenbaker v. Jonovich,

205 Ariz. 383, ¶ 18, 71 P.3d 910, 914 (2003). In this case, the statute mandates that, if the


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vehicle cannot be timely repaired, the consumer is entitled to either a replacement vehicle

or a refund of the purchase price. § 44-1263(A). Both of these prescribed remedies require

the consumer to return the nonconforming vehicle to the manufacturer. Accordingly, the

trial court erred in not dismissing the Hulls’ Lemon Law claim once the court determined

the Hulls could not return the vehicle.

¶9            Despite the clear language of the statute, the trial court relied on Jennings v.

Lee, 105 Ariz. 167, 461 P.2d 161 (1969), to find that the Hulls were entitled to the statutory

remedies even after they had sold the vehicle. The trial court correctly noted that both

Jennings and this case involve a property dispute in which the plaintiffs no longer possessed

the property in question. See id. at 172, 461 P.2d at 166. But the Jennings case involved

a rescission of a purchase of real property based on common law fraud by the seller; it did

not involve a statutory right or remedy against a manufacturer as here. See id. And, because

it is not the province of the courts to engraft common law remedies onto statutory schemes,

see Blankenbaker, any extension of a statutory remedy is for the legislature. Thus, the court

inappropriately applied Jennings.

¶10           Although the issue of whether a consumer must return a vehicle before the

remedies of the Lemon Law become available is one of first impression in Arizona, we find

the case law of other jurisdictions persuasive. In Mercedes-Benz of North America, Inc. v.

Garten, 618 A.2d 233, 241-42 (Md. Ct. Spec. App. 1993), a Maryland appellate court held

that a plaintiff had waived his available remedy under that state’s Lemon Law when he had

traded the defective vehicle for a new vehicle. Similarly, in Guidry v. Ford Motor Co., 868


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So. 2d 945, 949 (La. Ct. App. 2004), a Louisiana appellate court found that the remedies

available under the Louisiana Lemon Law, which is analogous to our statute, were no longer

available once the vehicle had been returned at the end of the lease period. In Buford v.

General Motors Corp., 451 S.E.2d 293, 299 (N.C. 1994), the North Carolina Supreme

Court held that, when a consumer receives a refund under that state’s Lemon Law, the

consumer may not retain the defective vehicle. And, in Pfeiffer v. Ford Motor Co., 517

N.W.2d 76, 79 (Minn. Ct. App. 1994), a Minnesota appellate court required dismissal of

the plaintiffs’ Lemon Law complaint because they had failed to tender the motor vehicle to

the manufacturer. The Hulls have not directed our attention to any cases holding to the

contrary.

¶11           Moreover, the Pfeiffer court noted that allowing the purchaser to convey the

vehicle to another party without the notice required by the Lemon Law would defeat one

of the primary purposes of the law, stating:

              [S]uch a requirement is consistent with the overall purpose of
              the statute not only to recompense those actually harmed by the
              sale of defective automobiles, but to protect subsequent
              consumers as well. . . . We believe it is inconsistent to allow a
              Lemon Law recovery, while allowing the same injured party to
              pass the defective auto on to another consumer without notice
              of the warranty protections provided to the first owner.

Id. at 80. In addition, the Buford court found that allowing a plaintiff to recover damages

without first returning the vehicle would overcompensate successful consumers to the

detriment of the manufacturer, who would likely pass the additional expense to future

consumers. 451 S.E.2d at 300. Thus, in addition to the persuasive case law of other states,


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strong public policy concerns support our conclusion that a consumer is not entitled to relief

under Arizona’s Lemon Law if the consumer no longer possesses the vehicle.

¶12           The Hulls argue, however, that, because this transaction involved a lease, they

were legally required to surrender the vehicle to the lessor when the lease expired.1 They

contend that DaimlerChrysler “seeks to capitalize on [the Hulls’] lease expiration and forced

use” by using this action as a means to nullify its liability. We agree that the statute, as

written, creates a potential dilemma for consumers who wish to assert a Lemon Law action

on their leased vehicles. The duration of a lawsuit may exceed the term of the lease period.

And, because the statute requires that a consumer be able to return the vehicle to be entitled

to the remedies of the Lemon Law, a consumer whose lease expires before a lawsuit is

resolved must either purchase the vehicle or risk having the Lemon Law portion of any

lawsuit dismissed.

¶13           Although we are concerned that such a requirement creates certain hardships

for consumers who lease rather than purchase their vehicles outright, the crafting of such a

statutory remedy is the province of the legislature, not the courts. See Blankenbaker.

Modification of such legislation is often the result of legislative compromises, which we

cannot predict. We also note that these consumers retain any common law or statutory

remedies other than the Lemon Law. Moreover, the Hulls were not faced with the dilemma



       1
        The Hulls contend that the term “purchase” in A.R.S. § 44-1263(A) must be
interpreted to include a lease. DaimlerChrysler has not argued below or here that the lease
was not a purchase, and we assume, but do not decide, that the Lemon Law applies to leased
vehicles.

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of purchasing the vehicle to retain their lawsuit. Instead, they voluntarily chose to purchase

the vehicle at the end of the lease period to avoid the extra milage fee and then retained

possession and actively used the vehicle until three weeks before trial. Accordingly, our

concerns about the additional hardships for lease consumers are less compelling here.

¶14           The Hulls also argue that they possessed the right to mitigate their damages by

selling the vehicle to stop any further depreciation. “A party’s failure to mitigate damages

may be invoked to negate and reduce damages ‘where the party by its own voluntary activity

has unreasonably exposed itself to damage or increased its injury.’” SDR Assocs. v. ARG

Enters., Inc., 170 Ariz. 1, 4 n.2, 821 P.2d 268, 271 n.2 (App. 1991), quoting McCormick

on Damages § 34, at 131 (1934); see also Life Investors Ins. Co. of Am. v. Horizon Res.

Bethany, Ltd., 182 Ariz. 529, 534, 898 P.2d 478, 483 (App. 1995). But the only “damages”

contemplated by the Lemon Law are either a replacement vehicle or a return of the purchase

price and collateral charges. Because their sale of the vehicle three weeks before trial did

not affect either of these elements, the Hulls’ sale of the vehicle was not a proper mitigation

of their damages.

¶15           Finally, the Hulls argue that DaimlerChrysler was barred by laches from raising

the issue of the vehicle sale because it knew that the vehicle had been leased and that the

Hulls could lose the vehicle. “Laches is a defense when lack of diligence on the part of the

plaintiff results in injury or prejudice to the defendant.” Mobile Disc. Corp. v. Schumacher,

139 Ariz. 15, 18, 676 P.2d 649, 652 (App. 1983). DaimlerChrysler raised the issue of the

vehicle sale as soon as it became aware of it. And the Hulls’ argument ignores the fact that


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they purchased the vehicle after the lease expired and then sold it three weeks before trial.

Furthermore, DaimlerChrysler points to a letter of January 17, 2001, from the Hulls’

attorney stating that the Hulls intended to retain the vehicle and “use it to the extent

necessary to preserve it, to protect its security interest, and to minimize [DaimlerChrysler’s]

damages.” But the critical determination is that, as a matter of law, when they sold the

vehicle, the benefits of the Lemon Law became unavailable to them.                 Therefore,

DaimlerChrysler was not precluded by laches from asserting its defense.

¶16           Because a consumer is not entitled to relief under Arizona’s Lemon Law if the

consumer cannot return the vehicle to the manufacturer because the consumer no longer

possesses the vehicle, the trial court erred by denying DaimlerChrysler’s motion to dismiss

the complaint based on the Hulls’ sale of the vehicle. Because our holding is dispositive of

DaimlerChrysler’s liability under the Lemon Law, we need not reach its remaining

arguments. We reverse the trial court’s judgment and remand the case with instructions to

enter judgment in favor of DaimlerChrysler.



                                               ____________________________________
                                               JOSEPH W. HOWARD, Presiding Judge

CONCURRING:


___________________________________
J. WILLIAM BRAMMER, JR., Judge


____________________________________
PETER J. ECKERSTROM, Judge

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