Lori Culham-Bedford - v. -, 2013 SKPC 096

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: June 10, 2013 Citation: 2013 SKPC 096 File: File # 220/12 Location: Regina, Saskatchewan _____________________________________________________________________________ Between: Lori Culham-Bedford - and - Regina Sport and Import Automotive Group Ltd. Lori Culham-Bedford For the Plaintiff David R. Barth For the Defendant JUDGMENT P. DEMONG , J Introduction [ 1 ] The plaintiff purchased a vehicle from the defendant in May of 2008. After a relatively short period of trouble free driving, the vehicle began to experience problems.

The defendant tried hard to correct the problems but they persisted. Eventually the plaintiff concluded that the vehicle was not of acceptable quality and sought rescission of the contract or arguably an exchange for a replacement vehicle.

The defendant refused and now the plaintiff brings this action seeking damages alleging that the vehicle is either totally or substantially unfit for the purposes for which it was bought, or in the alternative, it is not durable, and not of acceptable quality. [ 2 ] The defendant disputes the claim and alleges inter alia , that the plaintiff is an overly demanding individual and that the car is fine.

In the alternative, the defendant maintains that they stand ready and willing to make further repairs but the plaintiff refuses to give them authority to affect those further repairs. [ 3 ] At trial this self-represented plaintiff called two witnesses and the defendant called two witnesses. The court heard two days of evidence. The parties filed 27 exhibits. Following argument I reserved my decision. [ 4 ] It is clear from the evidence that there was, during the currency of this dispute, hard feelings between the parties and a certain degree of animosity and intolerance flowing from each party.

That notwithstanding, I am satisfied that the plaintiff experienced a number of significant problems with her vehicle and grew increasingly frustrated by what she felt was the defendant’s failure to address or even accept a number of her concerns. Conversely, I am satisfied that the defendant tried to deal with her several concerns, and eventually grew impatient at what it felt was purely maintenance problems, or alternatively problems that they could not identify or duplicate when the vehicle came in for repair. Facts [ 5 ] As at 2008, the plaintiff was a widow and mother of her daughter Raven.

She lived 10 minutes outside of Yorkton. She had taken an automotive course, and knew how to change oil and air filters. She owned two other vehicles, a diesel 3/4 ton truck, and a Jaguar. Living in a rural area, she was obligated from time to time to drive on dusty gravel roads. [ 6 ] In early 2008, she decided to buy a new vehicle for the use of her daughter. It was to be her daughter’s first vehicle and the plaintiff was looking for something that was good on mileage. She was torn between a Toyota Prius and Mercedes Benz Smart car.

She did some online research and having noted Transport Canada’s fuel consumption rating for the Smart car, which was estimated at between 51 city and 59 miles to the gallon highway, decided on the Smart car. [ 7 ] She contacted the defendant by facsimile and agreed to purchase the gasoline version of the new 2008 Smart car. She spoke to a salesman for the defendant, who confirmed the great gas mileage and noted in passing that his father-in-law had this type of car and “loved it”.

While the plaintiff did not necessarily rely on this representation prior to purchasing the vehicle it provided her with some assurance that her decision was the right one. It should be noted that the defendant conceded at trial that their dealership advertises this great mileage as an inducement to prospective buyers. [ 8 ] After sending a $500.00 deposit she came into Regina, and on May 23, 2008, executed the contract of sale. The purchase price, inclusive of taxes, miscellaneous extras, and a 7 year extended warranty came to an additional $24,342.40.

With deposit the total price for this new car was $24,842.40. [ 9 ] For the first few months, she was quite happy with the vehicle. Within about six months however she started to note problems. She noted that the car would seem to hesitate and lose power when accelerating. Occasionally the air conditioning would turn off by itself. She had trouble changing gears. The gear shift would occasionally stick and she would have to force it. She also started to have concerns with mileage.

She stated that the best she could obtain was 40 miles to the gallon, about 2/3 of its rated ability. [ 10 ] In February of 2009, with an odometer reading of 4,062 kilometres, she brought the vehicle into Regina for service. She says she discussed these complaints with the service manager and was advised that the poor mileage was likely attributable to wind. [ 11 ] The vehicle was checked over and the problem with the shifter was confirmed. It had difficulty moving into park. In response, the defendant removed and lubricated the shifter knob.

They also replaced a fog light lens. [ 12 ] The plaintiff brought the vehicle in again on May 2009. She continued to have problems with poor mileage and what she described as hesitation when attempting to accelerate. The defendant performed scheduled maintenance which included an oil and filter change. They told her that her vehicle was in good working order. [ 13 ] The plaintiff continued to have problems relating to poor mileage and still suffered with the vehicle’s hesitation while driving. She continued to have problems with the air conditioner cutting in and out.

She also noted that the signal lights would not turn off automatically and had to be manually turned off after completing a turn. The rear window wiper would often run on its own, and would intermittently turn itself on and off. [ 14 ] The vehicle was brought back to the dealership again on August 26, 2009. The odometer reading was 8,220. The inspection revealed a clogged air filter, and the plaintiff was advised to clean it regularly if she was driving in dusty conditions. She was shown how to do this herself if and when it required cleaning.

In addition, the dealership inspected the air conditioning and discovered a faulty blower motor which had an intermittent electrical fault. The blower motor was replaced. The plaintiff was advised that her poor mileage may be attributable to the air filter clogging. The defendant’s inspection of the signal lights and the rear wiper satisfied them that they were working as designed. [ 15 ] The plaintiff continued to have problems with the mileage, hesitation, dimming of her headlights, problems with shifting gears and significant difficulty in moving gears into reverse.

Sometimes the shifter would accept the reverse gear, and other times it refused to. In addition, her sun screen would not retract. The fog light retainer kept popping out. Her seat belts would not retract, the tire pressure light would turn on and off for no apparent reason and the car would, according to her, spontaneously rev while in park. The driver’s seat was difficult to adjust and the washer fluid would not spray. [ 16 ] By this time the plaintiff was increasingly frustrated. The vehicle was brought in, in November 2009, with an odometer reading of

9,870. Work was done on the vehicle to correct a number of nominal problems. No mechanic or service manager test drove the vehicle in an effort to duplicate the concerns expressed to them as described above. The car was not released to her until some twenty days later. [ 17 ] On December 17, 2009, the vehicle was again brought back in with a variety of similar problems. Specifically, she had continuing problems with the gear shift and the inability of it to move into reverse. She had poor mileage, and a recurring engine light coming on.

The defendant lubricated the shifter, and identified problems with the battery which they thought was not sufficiently strong. They changed it. They identified and corrected an evaporation cannister leak. This apparently related to the vehicle’s performance. They replaced a seat belt. They test drove the vehicle for mileage consumption and obtained a stated rate of approximately 43 miles to the gallon. This ... after all of the work had been performed on the vehicle.

The vehicle stayed with the defendant for a further two weeks until December 31, 2009. [ 18 ] While the vehicle was in the shop in December, the plaintiff was given a replacement Smart car a 2009 version. The plaintiff was astonished with its performance. It worked perfectly. There was no hesitation, the shifting was fine. The performance, in short, was excellent. The plaintiff was taken aback at the difference between her vehicle and the 2009 version. [ 19 ] The plaintiff received her car back from the dealership on January 3, 2010, just in time for her daughter’s first driving test.

She was assured that the vehicle had been repaired. The daughter unfortunately failed her driver’s test because her signal light failed to respond on at least two occasions. In addition, the seat belt failed to retract. [ 20 ] The problems with stalling, power reduction and the car’s failure to shift into reverse on demand continued to plague the plaintiff. The car went back into the shop again on March 3, 2010. The odometer reading was 13,065 kilometres. The transmission shifting problem was rechecked.

A road test was finally undertaken to confirm the problem and concluded that perhaps a clutch disc required replacement. To do so they were going to remove the transmission and replace the clutch disc. [ 21 ] In the period February 3, 2009 through until March 3, 2010, the vehicle had been in the shop on six separate occasions. On each occasion, it was incumbent on the plaintiff to have the vehicle delivered, or to bring the vehicle to Regina. The plaintiff continuously felt that her concerns were not being addressed.

In the alternative the fixes that presumably were undertaken were not assisting the plaintiff with her vehicle’s performance. In this period of time the car had been driven for less than 7,000 kilometres. This, because the plaintiff felt uncomfortable driving it at night, or in the extreme cold. She was concerned that the failure to move the vehicle into reverse was a significant safety concern. She felt that the stalling and hesitation and the dimming of headlights were also safety concerns. [ 22 ] By March of 2010, things were coming to a head.

The service manager felt that she was overly demanding and had at one time made a derogatory comment to her for which he was directed to apologize. He did. Conversely, the plaintiff’s calls to the service manager and to the owner of the defendant business became increasingly intolerant. [ 23 ] On March 10, 2010, the plaintiff sent a letter to the defendant, expressing concern that her car was getting worse. She maintained that people were not calling her back or responding to her concerns. She maintained that she was being hung up on.

She suggested that the only way to resolve the problem was for the dealership to buy back the car. She stated that it was not “as promised”. She felt misled as to the car’s performance on gas mileage. [ 24 ] By this time she refused to deal with the service manager ... only the owner. At trial the service manager indicated that he thought the plaintiff was being rude, abrasive and derogatory and overly demanding on his staff.

By late March, and after a meeting with the owner of the dealership, the plaintiff was given a cheque for $1,700.00 to compensate her for lost time and expense for travel to and from the dealership. [ 25 ] That notwithstanding, she was subsequently advised by the service manager - sometime in May or June of 2010 - that the defendant would refuse to service the vehicle and that she should take it elsewhere. She discovered that the only other dealership for Mercedes Benz Smart cars was in Saskatoon.

The trip between Saskatoon and Yorkton was a significant distance, and she felt uncomfortable taking the vehicle to Saskatoon because of her concerns that the vehicle may stall. [ 26 ] The plaintiff hired a lawyer for the purpose of sending a demand letter to the defendant. By correspondence dated June 24, 2010, the defendant was advised of the plaintiff’s utter frustration, and her desire that the defendant take the vehicle back for a comparable car, or alternatively that she be returned her purchase price.

The plaintiff’s lawyer invited the defendant to come up with any other reasonable solution. [ 27 ] By correspondence dated July 12, 2010, the defendant’s then legal counsel replied, indicating that the plaintiff had never been refused service and that the defendant had a

part in stock to hopefully rectify the problem with the transmission. That letter, however, went on to point out to the plaintiff that the defendant’s efforts to date had been “extraordinary” and that they were “not prepared to do anything further extraordinary”; or take back the vehicle; or provide a refund.

Surprisingly, after advising the plaintiff that she had been verbally abusive to the defendant’s staff, she was told that on a go forward basis, the defendant would only provide service if she apologized to the defendant’s staff for her behaviour. [ 28 ] Before moving on I should point out that at trial the defendant indicated that on or about March 30, 2010, it had left a message on the plaintiff’s answering machine indicating that there was a part now available at the dealership, a clutch assembly kit, that may rectify the shifting problem. The plaintiff maintains that she received no such message.

It should also be borne in mind that the defendant did not follow up with a letter. This, according to the service manager, was not the dealership’s standing practice. [ 29 ] Upon receipt of the July 12, 2010 letter from the defendant’s legal counsel, the plaintiff felt lost. She indicated that she was afraid of driving to Saskatoon for further repairs and had for the most

part lost faith in the vehicle. She says that she contacted several dealerships and service providers throughout Regina, and each of them indicated that they lacked the necessary tools to repair and

maintain the 2008 Smart car. At trial the defendant took issue with this suggestion, indicating he would be surprised if there weren’t any number of dealerships in Yorkton alone that would be able to attend upon her. No evidence was led in this regard. [ 30 ] Having been advised that the defendant would refuse to provide her service, the plaintiff continued to drive the vehicle through until May 2011, although sporadically. In May 2011, the plaintiff says that she called the defendant’s head office seeking service and was advised that the defendant would refuse her service.

Instead of attempting to go to Saskatoon to another service provider, she obtained an oil change and air filter change at the Great Canadian Oil Change. Thereafter, the vehicle was parked for the winter and not used again until June of 2012. On or about July 2012, the plaintiff’s daughter was using the car, in Yorkton, when it stalled and yet again the engine light went on. The plaintiff called for a tow truck operator and instructed him to deliver the vehicle to the defendant’s dealership. The tow truck driver did so.

The plaintiff gave no further instructions to the tow truck operator. [ 31 ] The following day she received a call from the defendant’s lawyer inquiring of her intention with the vehicle. In a rather terse exchange, she advised him “I want it fixed”. He said ok. [ 32 ] At trial the plaintiff’s daughter took the stand. She mirrored the same concerns as had her mother regarding the performance of the vehicle. It would stall and hesitate. It was difficult to get it into reverse. Sometimes it would not go into reverse.

She felt uncomfortable driving the vehicle and she was emotionally upset because this was supposed to be her new Mercedes Benz car. [ 33 ] At trial there was some evidence regarding the plaintiff’s entitlement to proceed under the extended warranty that she had purchased. The evidence in this regard was muddled and difficult to understand. According to the plaintiff, she had contacted the extended service provider, and she was advised that they would not work on the repairs because those would constitute pre-existing conditions, which should be covered under the original manufacturer’s warranty.

The defendant maintains that they thought that the plaintiff had attempted to seek arbitration with respect to the vehicle, which apparently had not taken place. [ 34 ] The plaintiff commenced this action June 13, 2012. [ 35 ] Presumably in response to being served with this Summons, the defendant undertook to review each of the problems and attempt repairs on the vehicle. Their documentation suggests that they conducted a check of the car. They once again confirmed that the transmission had a problem.

Unbeknown to the plaintiff, Mercedes Benz had identified a reoccurring problem with the transmissions in the 2008 gasoline version of the Smart car. There was, apparently, a software glitch that caused precisely the problems the plaintiff had complained about for several years ... that is to say, a hesitancy or an inability for the vehicle to move into reverse.

The defendant undertook to install the software fix, and they maintained at trial that the transmission problem was now resolved. [ 36 ] Unfortunately, on inspection of the vehicle in July 2012, they noted that one of three cylinders in the vehicle’s motor had 100% compression failure. When the defendant’s expert took the stand he presented as an expert should. Even though he worked for a number of years and was currently employed with Mercedes Benz, he presented objectively, and was of great benefit to this court.

He conceded that he did not know whether or not the cylinder malfunction occurred spontaneously or whether or not it had been an ongoing problem. He maintained that in his view, the loss of compression in the cylinder was, more than likely than not, caused by scoring of the cylinder due to the intake of foul or dusty air. [ 37 ] The plaintiff asked if this is a problem which may have occurred over time. The expert conceded if that were the case it would have affected the performance of the vehicle when performance was demanded.

In essence, it could cause intermittent problems with the vehicle’s performance under load. [ 38 ] By the end of the trial, it became apparent that by July 2012, the dealership could now categorically state the reasons for the plaintiff’s problems. Firstly, there was or could have been loss of compression in one of the cylinders over time which may have affected the vehicle’s performance.

Secondly, there was now a software fix that could correct an inherent or latent defect in the transmission of the vehicle. [ 39 ] At trial the defendant indicated that they made all the necessary repairs with the exception of the cylinder. They would not do a tear down of the vehicle to confirm and/or make the repair necessary to the cylinder because they could not get the plaintiff’s permission to do the tear down at the plaintiff’s cost. (If after a tear down, the defendant identifies a problem that is associated with the warranty, they will fix it.

If they cannot identify the fix as a warranty related problem, the fix would have to be done at the plaintiff’s expense and in addition the plaintiff would be responsible for the cost of the tear down estimated at $1,000.00.) [ 40 ] If the vehicle was to be fixed and not under warranty the defendant estimated the cost of the fix at somewhere between $6,000.00 and $,.000.00. [ 41 ] Finally, at trial, the defendant indicated that in the vehicle’s present state it had a value of $4,800.00. It was “a clean car” with low mileage. It was not extra clean.

There was some nominal problems with scratching and denting and some plastic parts were cracked on the undercarriage which could have been corrected for the nominal sum of $125.00. [ 42 ] Throughout the trial, the service manager attempted to persuade the Court that much of the performance problems attributable to the vehicle were due to the plaintiff’s failure to maintain and properly clean the air filter. They had, on one occasion, brought the plaintiff in to show her how to take out the air filter to clean it or replace it.

They indicated to her that this was her responsibility. [ 43 ] This however, was not the evidence of the defendant’s expert. The expert indicated that the reason vehicles are brought in on increments of 15,000 kilometres, or one year, is that a typical person will operate a vehicle for 15,000 kilometres in a year. The air filter,

he maintained, was designed to last between services, or 15,000 kilometres. [ 44 ] Finally, the expert pointed out that the 2008 Smart car was the first gasoline version of the vehicle. The earlier versions had been diesel powered. He pointed out that every new version of a car comes with its own litany of small problems and these problems can, or should be, expected by purchasers. He stated that as each new iteration of next year’s model comes out, these problems are identified, and fixes and solutions are made. Hence, the vehicle becomes more agreeable over time.

He conceded that between 15 and 20% of these 2008 models had some problems, significant or otherwise. Analysis [ 45 ] The plaintiff in this case wanted to purchase a car to be used by her daughter.

She wanted great mileage, and she wanted it to be used in the province in which it was purchased, which, as the defendant is aware, has a substantial rural component to it; where roads invariably are not only asphalt but gravel surfaces. [ 46 ] The plaintiff wanted a new vehicle, and by necessary inference was operating on a reasonable assumption that a brand new vehicle, absent some slight occasional adjustment and regular maintenance, could be enjoyed trouble free. [ 47 ] Unfortunately, that is not what she received. She received a car, which was the first version of the gasoline model of the Smart car.

It had deficiencies. [ 48 ] Some of those deficiencies were minor and could be reasonably seen as glitches in a new car that required correction. Sticking and non-lubricated seats; latches that required adjustment; sun screens that were problematic and retainers that had to be fixed. [ 49 ] Some of the deficiencies were more significant.

A reoccurring failure of a seat belt to retract is a significant safety concern; a battery which lacks sufficient power to operate the vehicle normally; an air conditioning problem which required cannister replacement; fuel consumption which would, at best, only offer up to 2/3 of the ratings guidelines. [ 50 ] Finally, some of the problems were quite significant ... intermittent failure of the vehicle to operate normally when power was sought ... what the plaintiff described as hesitation and stalling under load ... the almost constant need to change and clean the air filter ... which suggested that the vehicle was not durable enough to withstand normal driving conditions in rural Saskatchewan.

Most significantly, a transmission which would intermittently fail to go into reverse. [ 51 ] One can readily appreciate the plaintiff’s frustration when a problem, being intermittent, could not be duplicated, particularly when she was offered a loan of a similar make but one year newer which drove impeccably.

Damages [ 52 ] As indicated, the plaintiff seeks either rescission of the contract and the return of her purchase price or alternatively damages for breach of certain warranties imposed under The Consumer Protection Act . [ 53 ] In order to obtain rescission, the plaintiff has to satisfy the Court, pursuant to

section 57 of the Act , that the consumer product departed substantially from what consumers can reasonably expect having regard to the description of the product, its purchase price and the statutory and express warranties of the retail seller. In the alternative, she must convince the Court that the product was substantially unfit for all the usual purposes of the product.

In addition, she must, pursuant to that section, not only reject the vehicle but reject it within a reasonable period of time. [ 54 ] I am satisfied that on a review of all of the evidence tendered, the vehicle did in fact depart substantially from what a consumer could reasonably expect having regard to the circumstances set out above. [ 55 ] A reasonable consumer having purchased a new vehicle manufactured by or under the Mercedes Benz logo, would not expect to bring her vehicle in for maintenance and repair on six different occasions and in a one year period, especially having regard to the low number of kilometres given.

I am further satisfied that a reasonable consumer would not expect a manufacturer to only come up with a fix for a significant transmission problem two years, or in the case of the software glitch, four full years after a new car’s purchase. [ 56 ] I am also satisfied that a reasonable consumer would operate under the reasonable assumption that if a car is being sold in Saskatchewan, for use in Saskatchewan, it would be able to withstand the nominal rigors of driving on both asphalt and gravel roads, and not thereafter require constant and continual changing and cleaning of the air filter. [ 57 ] However, I cannot say that the plaintiff gave a clear and unequivocal notice of rejection of the vehicle within a reasonable period of time.

Certainly, in March 2010, and by her lawyer’s correspondence in June of 2010, she advised the defendant she wanted to reject the vehicle, however, that expression of desire was not unequivocal. When she was advised in July 2010, that the defendant was not prepared to do so, she took no further steps in that regard, through until June of 2012, when she filed her claim.

The Court is satisfied that the filing of the Statement of Claim put the defendant on clear notice of her intention to reject the vehicle, but in the interim period of time the plaintiff operated the vehicle on and off for a further period of two years. [ 58 ] In my respectful view, the two year delay was not reasonable.

[ 59 ] I am however satisfied that the litany of problems associated with the vehicle constituted a breach of the warranty of acceptable quality and the warranty of durability within The Consumer Protection Act . Under

section 39 of the Act , acceptable quality means “the characteristics and the quality of a consumer product that consumers can reasonably expect the product to have, having regard to all relevant circumstances of the sale of the product.” [ 60 ] I am also satisfied that the defendant was in breach of one of the express warranties set forth in the Act .

Section 45(1) of the Act indicates that: 45(1) Any promise, representation, affirmation of fact or expression of opinion or any action that reasonably can be interpreted by a consumer as a promise or affirmation relating to the sale or to the quality, quantity, condition, performance or efficacy of a consumer product or relating to its use or maintenance is deemed to be an express warranty if it would usually induce a reasonable consumer to buy the product, whether or not the consumer actually relies on the warranty. [ 61 ] The Court is cognizant of the fact that the plaintiff conducted her own research into the mileage that could be obtained with this vehicle.

However, the aforementioned

section does, in my view, clearly incorporate as an express warranty, the expression of opinion by the manufacturer and the retailer of the vehicle that the vehicle would get great mileage. As noted in section 45(1) it is not incumbent on the plaintiff to actually rely on the affirmation or expression of opinion, it continues to be a warranty within the meaning of the Act . The 2008 Smart car is a very small vehicle. It cannot be reasonably used for hauling, nor does it lend itself comfortably to the carriage of more than two passengers.

It is, I am satisfied, sold on the express, or implied understanding that in exchange for a small vehicle, one will receive exceptional mileage.

In my view a vehicle that obtains, under normal driving conditions, a fuel consumption that averages only 2/3 of its advertised and promoted gas mileage, falls short of a warranty promoting great gas mileage by a retailer who specifically uses that representation as an inducement to third party purchasers. [ 62 ] Finally, I am of the view that a vehicle which has to have its air filter checked and rechecked, cleaned and replaced on multiple occasions before that vehicle has been used for less than 15,000 kilometres is not reasonably durable for use in Saskatchewan. [ 63 ] In light of these breaches, the plaintiff is entitled to damages arising from those breaches regardless or whether or not she chooses to undertake repairs.

Damages Assessment [ 64 ] The plaintiff obtained this vehicle in May 2008, in exchange for a total purchase price of $24,842.40. [ 65 ] By May 2013, the vehicle had according to the defendant’s evidence a resale value of approximately $4,800.00. This notwithstanding the ongoing existence of an extended warranty. It had, therefore depreciated by approximately $4,000.00 per year.

The evidence before this Court suggested that a normal driver would average approximately 15,000 kilometres per year, even though the black book suggests a typical distance travel per year approaching 24,000 kilometres. [ 66 ] When the vehicle was delivered back to the defendant in July 2012, the vehicle had been driven for approximately 26,000 kilometres.

From this I conclude that the plaintiff obtained the equivalent of two years of driving value of the vehicle. [ 67 ] Using these figures as a guideline the defendant obtained about $8,000.00 worth of value, and is left with a vehicle worth approximately $5,000.00. Prime facie , I assess her damages equivalent to the loss of three years of driving or $12,000.00. [ 68 ] This however does not end the issue. The plaintiff knew that she had a vehicle which she did not want, and she had at least some options available for her to either resell the vehicle or have it repaired.

She should have taken steps to mitigate her losses within a reasonable time. Those efforts should have taken place by at least May 2012, and the defendant should not be obligated to bear the burden of the plaintiff not having taken reasonable steps to mitigate her damages either by way of resale or repair within a reasonable time. [ 69 ] The net effect of that failure to mitigate has the effect of reducing the plaintiff’s damages by a period of one year, or the equivalent of $4,000.00.

I therefore award damages in favour of the plaintiff in the amount of $8,000.00. [ 70 ] The plaintiff is entitled to pre-judgment interest on the sum of $8,000.00 which is calculated in the amount of $74.06 [ 71 ] There remains the issue of ownership of the vehicle. The plaintiff indicated in final argument that she had no desire to have the vehicle returned to her. Conversely, the defendant in final argument stipulated for the record that if damages were to be awarded, they would be prepared to retain the vehicle and allow an assessed value of that vehicle in the sum of $5,000.00.

In effect, they agreed to retain the vehicle by purchasing the vehicle back from the plaintiff for the sum of $5,000.00. The plaintiff was in agreement with this stipulation. The Court therefore accepts the defendant’s offer, and pursuant to my jurisdiction to award specific performance in respect to personal items, I direct that the vehicle remain in the possession of the defendant.

The plaintiff, shall within 30 days from the issuance of this judgment, take such steps as are necessary to affect transfer of title from the plaintiff to the defendant, and in so doing, shall also execute such documents which are necessary to affect transfer of the extended warranty. In the event the parties cannot agree as to the form of the documents that need to be signed, they may apply to the Court for further direction. [ 72 ] In the result, this Court grants judgment to the plaintiff in the sum of $13,000.00, together with pre-judgment interest on the $8,000.00 in the sum of $74.06.

The plaintiff shall have costs which this Court calculates at $400.00.

Paul Demong, J