MCNAMARA PONTIAC, INC., PETITIONER,
v.
ANTONIO N. SANCHEZ, RESPONDENT
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McNamara Pontiac sought certiorari review of a circuit court decision affirming a trial court's finding that an implied warranty arose in the sale of a used car despite a written "as is" disclaimer. The court denied the petition, holding that the disclaimer was not part of the bargained-for agreement because the salesman did not explain its purpose and the buyer did not understand it.
An implied warranty can arise upon the sale of a used automobile by a car dealer to a consumer. A disclaimer is not effective unless it is part of the bargained-for agreement between the parties, which requires that the buyer understand and agree to it. Here, the disclaimer was not effective because the salesman did not explain it and the buyer, due to language barriers, did not understand it was part of the sales transaction.
[1] A petition for writ of certiorari is properly denied when the lower court has not exceeded its jurisdiction or departed from the essential requirements of law.
[2] An implied warranty may arise upon the sale of a used automobile by a dealer to a consumer.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“To be effective, a disclaimer must be part of the sales bargain between the parties.”
Establishes the fundamental legal requirement for warranty disclaimers in used car sales
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Join FLexlaw to unlock all legal intelligenceMcNamara Pontiac sold a used car to Sanchez, a consumer with limited English literacy. Sanchez signed a written disclaimer stating he accepted the car…
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SHARP, Judge.
McNamara Pontiac, Inc., filed a petition for Writ of Certiorari pursuant to Rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure, seeking review of the decision of the circuit court affirming in part the decision of the county court. We deny the petition because it fails to show that the lower court exceeded its jurisdiction or that it departed from the essential requirements of law. Chicken “N” Things v. Murray, 329 So. 2d 302 (Fla.1976); Coffman v. State, 292 So. 2d 608 (Fla. 4th DCA 1974); Pierson v. Sharp, 283 So. 2d 886 (Fla. 4th DCA 1973).
The circuit court held that, under the circumstances involved in this case, an implied warranty could arise upon the sale of a used automobile by a car dealer, McNamara Pontiac, Inc., to a consumer, Sanchez. This conclusion is well-founded. Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA 1977); Enix v. Diamond T. Sales & Services, Inc., 188 So. 2d 48 (Fla. 2d DCA 1966).
Sanchez signed a written disclaimer which provided he accepted the used car in an “as is” condition. Shortly after Sanchez bought the car, the dash area caught fire and the vehicle was destroyed. The trial court concluded that Sanchez was not bound by the disclaimer because it was not part of the “bargain” between the parties. The circuit court summarized the evidence:
The testimony of Mr. Lentz, the Defendant’s salesman, indicates on pages 41-43 and page 48 that, at the time the Plaintiff signed the Dealer Warranty Disclaimer, neither the purpose of the document nor the nature of its disclaimer was discussed. To the contrary, the salesman believed the car was not sold “as is” and was explaining to the Plaintiff, Sanchez, about there being a GM Warranty on the car for two years or 24,000 miles. With the Plaintiff’s English illiteracy coupled with the discussion of there being warranties, the evidence clearly supports the trial court’s finding that the Plaintiff did not understand the disclaimer he signed and that it was not a part of the bargained for agreement between the parties.
To be effective, a disclaimer must be part of the sales bargain between the parties. Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA 1977); Rehurek v. Chrysler Credit Corp., 262 So. 2d 452 (Fla. 2d DCA 1972); Hauter v. Zogarts, 14 Cal.3d 104, 120 Cal. Rptr. 681, 534 P. 2d 377 (1975).
The circuit court held that the evidence in this case supported the trial court’s finding. It is not our function to provide an additional “appeal” under the guise of “certiorari”. Because petitioner has failed to demonstrate that the lower court committed any fundamental error, we deny the petition. Holden v. City of Ft. Lauderdale, 286 So. 2d 218 (Fla. 4th DCA 1973); Olin’s Rent-A-Car System, Inc. v. Avis Rental Car System, Inc., 135 So. 2d 434 (Fla. 3d DCA 1961).
PETITION DENIED.
FRANK D. UPCHURCH, Jr., J., concurs.
DAUKSCH, C. J., concurs with conclusion only.
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The Cnty. OF Volusia v. Transamerica Bus. Corp., 392 So. 2d 585 (Fla. 5th DCA 1980)…County v. Gayer, 388 So. 2d 1292 (Fla. 3d DCA 1980); United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So. 2d 296 (Fla. 3d DCA 1979); Norman v. Pinellas County, 250 So. 2d 279 (Fla. 2d DCA 1971). See also McNamara Pontiac, Inc. v. Sanchez, 388 So. 2d 620 (Fla. 5th DCA 1980). Since the petition for writ of certiorari in the circuit court was an original proceeding there seeking to review administrative action of the county council, review here by plenary appeal is the proper procedure. The subdivisi…
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Masker v. Richey T. Smith, 405 So. 2d 432 (Fla. 5th DCA 1981)…Welfare, 350 So. 2d 476 (Fla. 1st DCA 1977). . Latent defect. A hidden or concealed defect. One which could not be discovered by reasonable and customary inspection. Black’s Law Dictionary, (5th ed. 1979). . Cf. McNamara Pontiac, Inc. v. Sanchez, 388 So. 2d 620 (Fla. 5th DCA 1980), where there was an issue of fact as to the intention of the parties as to the meaning of the “as is” provision.…
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State v. Wagner, 403 So. 2d 1349 (Fla. 5th DCA 1981)…that, if made by the trial court (county court) and the appellate court (circuit court), would justify this court’s use of the discretionary extraordinary remedy of common law certiorari. I would deny the writ. . McNamara Pontiac, Inc. v. Sanchez, 388 So. 2d 620 (Fla. 5th DCA 1980). . Art. V, § 5(b), Fla.Const.; § 26.012, Fla. Stat.(1979). . Rogers & Baxter, Certiorari in Florida, 4 U.Fla.L.Rev. 477, 493 (1951). . Haddad, Certiorari in Florida, 29 U.Fla.L.Rev. 207, 220 (1977). . See School board of Mari…
Authorities Cited
- Chicken'n'things & Ins. Co. of N. Am. v. Martha Murray & the Fla. Dep't of Commerce, 329 So. 2d 302 (Fla. 1976)
- Rehurek v. Chrysler Credit Corp., 262 So. 2d 452 (Fla. 2d DCA 1972)
- Knipp v. Weinbaum, 351 So. 2d 1081 (Fla. 3d DCA 1977)
- Holden v. City OF Fort Lauderdale, 286 So. 2d 218 (Fla. 4th DCA 1973)
- Olin's Rent-A-Car Sys., Inc. v. AVIS Rental CAR Sys. OF Fla., Inc., 135 So. 2d 434 (Fla. 3d DCA 1961)
- Coffman v. State, 292 So. 2d 608 (Fla. 4th DCA 1974)
- Enix v. Diamond T. Sales & Serv. Co., 188 So. 2d 48 (Fla. 2d DCA 1966)
- Dade Cnty. v. Dobbs Houses, Inc., 283 So. 2d 886 (Fla. 3d DCA 1973)