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                 THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


7th Circuit Court-Rochester District Division
No. 2015-0019


                                   JEFFREY SMITH

                                          v.

                        MILKO PESA d/b/a AUTO MILKO

                          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


                                        2
      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 (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
(quotation omitted). We view the evidence in the light most favorable to the
prevailing party, here, the defendant. See id. at 716; 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 (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:




                                         3
      (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 (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
(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 (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


                                         4
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 purported to revoke his acceptance, the
defendant offered to repair the vehicle at no charge.

      We next address the plaintiff’s assertion that the defendant violated RSA
358-F:2 and :3. RSA chapter 358-F governs the sale of unsafe used motor
vehicles. RSA 358-F:2 provides:

      Inspection. Before selling to any customer any used motor vehicle
      which is unsafe for operation upon the highways pursuant to RSA
      266:8, the dealer shall, upon the request of the customer, conduct
      or have conducted a safety inspection of such vehicle. If the
      vehicle is found to be unsafe for operation, the dealer may sell the
      vehicle to the customer without correcting the defects, but only if
      the dealer presents to the customer at the time of sale a notice
      which states:

            This motor vehicle will not pass a New Hampshire inspection
          and is unsafe for operation. The following defects must be
          corrected before an inspection sticker will be issued.

      The dealer shall list all inspection defects under this statement and
      specify the date on which the inspection was conducted and the
      person who performed the inspection. The dealer may make a
      reasonable charge for conducting the inspection.

RSA 358-F:3 requires “[e]ach dealer [to] notify each customer of his rights
under this chapter before selling an unsafe used motor vehicle to the customer”
and to “obtain a written acknowledgment from the customer that he has been
so notified.”

      The plaintiff argues that the defendant violated these provisions by
allowing the sale to proceed without an inspection. The plaintiff asserts: “A
prudent dealer would not allow the sale to proceed until an inspection is
performed . . . .” The plaintiff contends that he requested an inspection and
that the defendant “declined to provide it, and sold [him] the vehicle anyways.”
He also asserts that the defendant “advised him that regardless of whether the
mechanic was there or not, [he] would have to register the vehicle first before
being able to have it inspected.”

      Notwithstanding the plaintiff’s assertions regarding the import of the
evidence, when viewed in the light most favorable to the defendant, the
evidence supports the trial court’s decision.




                                        5
       The trial court reasonably could have found that the defendant did not
refuse to conduct an inspection, but instead informed the plaintiff that one
could not be conducted that day because the mechanic was not at work. The
trial court could also have reasonably found that the plaintiff insisted on
buying the car anyway, without an inspection ― in other words, that the
plaintiff changed his mind about requiring an inspection before purchasing the
vehicle. As the plaintiff notes in his brief, the defendant testified that he
advised the plaintiff that he “had two options: either come back later to have
the vehicle inspected, or buy it as is without an inspection.” The trial court
reasonably could have found that the plaintiff chose the latter option.

      Moreover, although the plaintiff testified that the defendant told him that
“even if his mechanic was there, he would have to register the vehicle first
before he could get it inspected,” the defendant testified to the contrary:

      Q [The plaintiff] asked you to have an inspection done, did he not?

      A He asked me that day, but the guy again, the shop was closed. I
      -- my reason question why I think this, why he don’t come back on
      Monday. Why buy the car right away? Why you don’t come back
      on Monday, take the car to the shop and then if you like, you like
      it. I didn’t push him to buy the car that day. Nobody, that’s a
      freedom in this country.

      Q You represented to him, did you not, that in order to have the
      vehicle inspected, it first needs to be registered in his name?

      A I said to him this. You have to go – –

      Q Thank you. You’ve answered my question.

          THE COURT: He can explain the answer. You can – –

         THE WITNESS: I said to him this. When you go register the
      car, he asked me for 20 days plate. Okay. And then when he
      asked me for 20 days plate, I said to him, to be legal to put a 20
      days plate on the car, the car has to be inspected. Then we don’t
      need all this signed paperwork as is or whatever. Then I said to
      him, I can’t put the 20-days plates for you because the car is not
      inspected. And then he asked me how I going to do this. I says
      you have to go and register the car and then you have ten days for
      inspection and you buy the car strictly as is.

Although the plaintiff characterizes the defendant’s testimony differently, “[i]t
was within the province of the trial court to accept or reject, in whole or in part,
whatever evidence was presented,” Cook, 149 N.H. at 780, and to accept a


                                         6
reasonable contrary characterization of the evidence. Because, when viewed in
the light most favorable to the defendant, the evidence supports the trial
court’s determination that he did not violate his obligations under RSA chapter
358-F, we uphold its decision.

                                                Affirmed.

      DALIANIS, C.J., and HICKS, CONBOY, and LYNN, JJ., concurred.




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