Plaintiff to get new car from Lemon Law trial

Marilyn Tennissen Dec. 18, 2007, 9:00am

John Read, along with his son, mechanic and lawyer were able to convince Judge Gary Sanderson, 60th Judicial District, that Mike Smith Autoplex and General Motors sold him a "lemon."

During the bench trial, which began Dec. 5, Read said his new car was so rusted out that he was afraid to drive it. Mike Smith Autoplex and GM argued that only a few bolts were rusted and that they offered to fix the problems for free.

On Dec. 14, Sanderson decreed that GM would refund Read the price of the car, $21,586.89, plus pay $1,299 in interest and $5,000 in attorneys' fees.

The suit

Citing the Texas Lemon Law, Read filed a deceptive trade practices suit against Mike Smith Autoplex and General Motors on May 10, 2007. He claimed the 2006 Buick he purchased was rusted out underneath.

The Texas Lemon Law is a state law that helps consumers who have repeated problems getting new or leased vehicles properly repaired.

Before the suit was filed, Read claims Mike Smith Autoplex allegedly refused to properly repair or replace the vehicle. Read's lawyer then sent a letter to the dealership threatening legal action unless he received a refund but the company refused to budge.

In turn, GM also filed an answer in response to Read's claims denying any wrongdoing.

"Defendants represented to plaintiff that such vehicle was new, safe, dependable and fit for the purpose for which it was marketed and sold," the suit said. "Because of the representations, plaintiff purchased the…automobile for the total cash delivered price of $21, 397.89. Additionally, Plaintiff purchased after-market accessories for such vehicle at a total cost of at least $189.00."

When Read went to have the window tint installed on his "new" car, he was shown by the mechanic that the "vehicle was rusting out underneath," the suit said, adding that the mechanic advised him to get something done about the problem quickly or the vehicle would begin experiencing additional problems and become unsafe.

"When plaintiff returned the vehicle to Mike Smith's dealership, the…defendant's mechanic changed some bolts and told plaintiff there was nothing more he could do to repair the vehicle," the suit said.

"It immediately became clear to plaintiff that, in truth and in fact, defendants' representations concerning the condition of the vehicle were false, misleading and deceptive in that the vehicle was seriously defective and not fit for the purpose for which it was intended.

"More specifically, plaintiff would show that the vehicle, although sold as 'new' was most likely either used or floodwater damaged. The vehicle is unsafe and a danger to operate on the public streets and roadways."

Read is represented by Brandon Monk, a partner in the McPherson, Monk, Hughes, Bradley, Wimberley & Steele law firm.

Mike Smith Autoplex is represented by attorney David C. Routzon, Jr. of the Craddock David & Krause law firm.

The trial

Brandon Monk, a partner in the McPherson, Monk, Hughes, Bradley, Wimberley & Steele law firm, represented Read. Mike Smith Autoplex is represented by attorney David C. Routzon, Jr. of the Craddock David & Krause law firm.

In testimony Read, a Nederland resident, said he purchased a new car from the Autoplex in Beaumont on Sept. 26, 2006. He had previously purchased another Buick and three Hondas from Mike Smith.

When looking under the hood, Read said he noticed several nuts, bolts and clamps were rusted.

"The salesman said he would replace those when I had my license plates put on," Read said. "I took it, I probably shouldn't have, but I did."

Read, a retiree from Neches Butane, said after leaving the lot he took the Buick to show his son, Ronnie.

Ronnie Read testified that he saw the rust under the hood that day and a few weeks later had the vehicle put on a lift which revealed additional rust and corrosion of the undercarriage.

"I was very concerned about Daddy driving that car," Ronnie Read said.

Ronnie Read testified that he photographed rusted bolts and brackets in the engine compartment and rust on the transaxle pan.

Johnny Simon, shop foreman of a Nederland car care center, testified that he saw a "conglomeration of rust" when he installed window tinting to Read's vehicle a week after it was purchased.

"It looked like it had spent the night in the Gulf," Simon said. "I wouldn't give you 2 cents for that car. It was a total rust bucket."

Ronnie Read said his father brought the vehicle back to the dealership when the license plates came in and was told that a few of the bolts would be replaced and the other rust would be "scraped off and painted over."

"I didn't think painting over rust was a good idea," Ronnie Read said.

The Reads refused the dealer's repair offer.

However David Garner, General Motors district service manager for Southeast Texas and Southwest Louisiana, said that was not the deal offered to Read and that it was not unusual for new vehicles to have some surface rust on replaceable parts.

Garner was called in from Lafayette by Mike Smith Autoplex to inspect Read's car in January 2007.

He said that while the amount of rust on the vehicle was not "typical" he had "seen it before" on a new car.

"This vehicle was built in Canada, so it may have been exposed to snow and salt before transport," Garner said. "That would be my guess, but a lot of it depends on how long it sat and where. It (rusting) can happen if it sits on the sales lot for several months in this part of the country."

Ninety-five percent of the rust on Read's Buick was on replaceable items, Garner said.

He said his report on Read's vehicle called for replacement of three brackets, two clamps, four bolts, one nut and the transaxle pan. All of the replacement and repair would be covered by warranty and completed at no charge to Read.

In addition, Garner said a 2 inch by 3 inch area on the body of the undercarriage would be treated with an acid-based wash. He said the GM procedure is not "painting over rust" but "attacks and eliminates" rust.

"I even offered to undercoat at no charge," Garner said. "That was not part of the warranty requirements, it was 'above and beyond' what we had to offer Mr. Read. But he refused."

The service manager said he had no concerns about the safety or resale value of Read's vehicle.

"I would let my mother drive it," Garner said.

Case No. B179-284

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