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2009AP538 Kilian v. Mercedes-Benz USA, LLC

By: WISCONSIN LAW JOURNAL STAFF//July 12, 2011//

2009AP538 Kilian v. Mercedes-Benz USA, LLC

By: WISCONSIN LAW JOURNAL STAFF//July 12, 2011//

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Consumer Protection
Lemon Law; equitable relief

The owner of a lemon may seek equitable relief under subsec. (7) against a party that sought to enforce a lease after the buyer had already received a refund.

“First, the court of appeals decision overlooks the plain language of subsection (7)’s introductory clause. The broad language of the introductory clause allows Kilian, as a consumer, ‘to pursu[e] any . . . remedy.’ Wis. Stat. § 218.0171(7) (emphasis added). A remedy is defined as ‘[t]he means of enforcing a right or preventing or redressing a wrong; legal or equitable relief.’ Burbank Grease Servs., LLC v. Sokolowski, 2006 WI 103, ¶23, 294 Wis. 2d 274, 717 N.W.2d 781 (citation omitted) (emphasis added). Further, subsection (7)’s second sentence explicitly permits a court to award a prevailing party ‘any equitable relief the court determines appropriate.’ § 218.0171(7). Therefore, the plain language of subsection (7) supports our conclusion that Kilian may maintain an action for equitable relief under subsection (7).”
“Second, the only appellate decision interpreting identical statutory language permits consumers to seek equitable relief. See Cuellar v. Ford Motor Co., 2006 WI App 210, ¶22, 296 Wis. 2d 545, 723 N.W.2d 747. In Cuellar, a consumer brought an action under the Motor Vehicle Adjustment Programs Act (MVAPA) against the Ford Motor Company. Id., ¶1. Specifically, the consumer (Cuellar) brought his action under MVAPA subsection (4), Wis. Stat. § 218.0172(4), a statute which contains language identical to Lemon Law subsection (7). Compare § 218.0172(4), with § 218.0171(7). The court of appeals held that Cuellar did not have to show pecuniary loss in order to maintain an action under MVAPA subsection (4), noting that ‘the plain language of the statute provides that the court “shall award . . . any equitable relief the court determines appropriate.”’ Cuellar, 296 Wis. 2d 545, ¶22. Thus, Cuellar, the only appellate decision interpreting statutory language identical to Lemon Law subsection (7), supports our conclusion that pecuniary loss is not required for a consumer to maintain an action under the Lemon Law.”

Reversed and Remanded.

2009AP538 Kilian v. Mercedes-Benz USA, LLC

Gableman, J.

Attorneys: For Appellant: Aiken, Timothy J., Milwaukee; Megna, Vincent P., Milwaukee; Grzeskowiak, Susan M., Milwaukee; For Respondent: Armstrong, Owen Thomas, Jr., Milwaukee; Wells, Patrick L., Milwaukee

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