Vo v. Leo, No. 845-03 Cnsc (Katz, J., Oct. 22, 2003) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. 845-03 CnSC 

NGUYEN K. VO 

v. 

ROBERT LEO 

 FINDINGS OF FACT 

 CONCLUSIONS OF LAW 

 NOTICE OF DECISION 

 

 This matter came before the court for trial on plaintiff’s claim that 

the automobile he purchased from defendant had a serious defect, known 

to defendant, which resulted in an engine fire effectively destroying the 

car. On the basis of the evidence presented, the following decision is 

announced: 
 FINDINGS OF FACT 

1. Plaintiff purchased a 1996 Mitsubishi Eclipse from defendant for 

$6,000. 

2. Within 24 days, after approximately 2,000 miles of use, the 

engine compartment caught fire, apparently from the alternator, 

effectively destroying the vehicle. 

3. Defendant buys used cars, fixes them up one at a time, and then 

sells them. That is apparently how he makes his living. 

4. Defendant acquired this Mitsubishi from Eli Auto Sales, 

Lawrence, Massachusetts. The bill of sale accompanying that transaction 

noted: 

 sold as is 

 engine not running 

 parts only. 

5. Seller Leo then proceeded to fix up the car, to the point that it 

looked very shiny and attractive. He then parked it outside the Winooski 

School, where it would be noticed, with a “For Sale” sign including his 

telephone number. Purchaser saw the car, called seller, and they met to 

discuss it. When they met, seller pointed out to purchaser that one tire 

was quite deflated, and that therefore, although he could take the car out 

for a test drive, he would have to keep it under 50 miles per hour. 

Purchaser took the car out for a drive, liked it, and proceeded to purchase 

it. 
6. Purchaser is a Vietnamese immigrant. He speaks only a few 

words of English. Seller had purchaser “sign” the bill of sale he had 

received from Eli Auto Sales, although this purchaser did not buy the car 

from Eli. In fact, purchaser put his name on the line labeled “Print Name” 

immediately below the intended “Signature” line where seller had signed 

when he first acquired the auto. It is not clear to the court whether 

purchaser printed his name because the line says “Print Name,” or because 

that is the only way he can write in English. There was no proof on the 

point, and we do not take it for granted that purchaser can read English. 

7. The car shook when backed up, even before the engine 

compartment fire. 

8. The engine wiring harness on this Mitsubishi was not the original 

one. That original was not on the car when seller acquired it from Eli. 

Seller had been told that the proper harness was over $2,000, and must be 

obtained from Mitsubishi. This is a sports car, and if the correct harness is 

not used, it will not run properly. The alternator fire is probably related to 

the incorrect harness problem. 

 

9. Although the letter from Arthur Seoane is hearsay, it is quite 

factual and quite specific. To the extent it quotes Fred from Fred’s Place, 

in Richmond, that person is making statements somewhat contrary to his 

pecuniary interest, in that he is severely criticizing the business ethics of a 

person with whom he regularly does business–the seller in this case. We 

therefore are of the view that the Seoane letter should be given 

considerable weight. 
10. We reach the decision to accord Seoane’s letter such weight 

because of the very suspicious circumstance at the time of the sale. This 

auto had just been fixed up be the seller. He is in the business of doing 

just this. It was all shined up to attract customers, and was parked in 

Winooski. Yet one tire was low on air. For a person obviously familiar 

with cars to leave a tire low, just when he is trying to make a good 

impression, and to also know that it is low, at a location where several 

service stations with air pumps were within a five (probably two) minute 

drive, is highly suspicious. But we know that the seller here, Mr. Leo, 

used the fact of that under-inflation to tell his purchaser not to drive the 

car above 50 miles per hour. Hence, the clear inference from the facts is 

that seller Leo deliberately deflated the tire, so as to have an excuse to 

keep the test drive speed down. Under these circumstances, the Seoane 

letter receives substantial corroboration. 

11. This car was destroyed by an engine fire clearly electrical in 

origin, probably related to the wiring harness. 

12. The incorrect wiring harness was known to be incorrect by the 

seller, Leo, (Seoane letter) who deliberately masked the problem with the 

deflated tire. 

13. Purchasers have been harmed in excess of $6,000 by the acts of 

defendant seller Leo. 

 CONCLUSIONS OF LAW 

14. Fraud is defined as an intentional misrepresentation of existing 

fact affecting the essence of the transaction. Silva v. Stevens, 156 Vt. 94, 
102 (1991) (citing Union Bank v. Jones, 138 Vt. 115, 121 (1980). The 

specific elements are “(1) concealment of facts, (2) affecting the essence 

of the transaction, (3) not open to the defrauded party's knowledge, (4) by 

one with knowledge and a duty to disclose, (5) with the intent to mislead, 

and (6) detrimental reliance by the defrauded party.” Fuller v. Banknorth 

Mortg. Co., 173 Vt. 488, 490 (2001) (mem.). 

15. By purposely deflating the tire at the time of inspection, seller 

concealed the fact that there were serious mechanical/electrical problems 

with the car. Buyer did not know and had no way of knowing that the car 

was improperly repaired or that it had originally been sold to the seller in 

such poor condition. Seller had a duty to disclose that the car was not 

running properly. This is particularly important because the fatal flaw in 

the car was electrical, nascent, asymptomatic, and not apparent to buyer. 

Buyer relied on seller to sell him a working and safe automobile. Instead, 

seller masked what was a clear defect in the car with the intent of passing 

the car off as functional and safe. 

16. Seller asserts that he is protected by the “Bill of Sale” which 

contains the magic words “sold as is.” Such words, however, do not 

automatically discharge seller from his obligations to buyer. Silva, 156 

Vt. at 112–13. “The law does not favor such disclaimers, very likely 

because they so often play a part in fraudulent or unconscionable 

transactions.” Lectro Management v. Freeman, Everett, & Co., 135 Vt. 

213, 216 (1977). The function of a disclaimer is limited by both tort and 

commercial law. Tort law is loathe to recognize disclaimer and arguably 

does not allow it. Restatement (Second) of Torts § 402A cmt. m (1965) 

(disallowing warranty disclaimers as a defense to fraudulent 

misrepresentation). While more accepting, the Uniform Commercial 
Code requires that the disclaimers be clear and fully understood as the 

seller exclusion of implied warranty. 9A V.S.A. § 2-316(3)(a) cmt. 6. 

17. In this case, the seller’s disclaimer is not his. It is part of the 

warranty disclaimer that he received when he purchased the car. As 

disclaimer language, the proximity of “sold as is” requires it to be read 

with the phrases “engine not running” and “parts only.” Since seller was 

not selling the car as parts and the engine ran at time of sale, it is difficult 

to understand how a fluent English speaking buyer would understand the 

disclaimer to apply, let alone a buyer of limited English capacity. The 

disclaimer is simply not clear enough, and there is no evidence that seller 

made it clear that he was disclaiming his implied warranties. Under either 

a tort or commercial law theory, the disclaimer is ineffective. Moreover, 

it is misleading and deceptive. Seller is forewarned that the law does not 

recognize “magic words” when seller’s behavior belies their intent. 

18. Because of jurisdiction limit of Small Claims Court, the 

maximum damages to be awarded are $3,500 plus $140 in interest 

accruing from the time the claim was asserted. 

 Dated at Burlington, Vermont, _________________, 2003. 

__________________________ 

Judge