Federal court rules Las Vegas woman’s Mercedes a lemon

Tuesday, March 29, 2005 | 9:04 a.m.

CARSON CITY -- A federal appeals court Monday ruled that a $98,722 Mercedes S-500 purchased by a Las Vegas woman was a lemon.

The 9th U.S. Circuit Court of Appeals said Marina Milicevic was entitled to a $94,432 refund including taxes and fees less an amount for her use of the car purchased in May 2001 from Fletcher Jones Imports Ltd.

The court said the car spent 55 days at the auto dealer's repair shop in the first seven months after purchase.

In fully upholding the ruling of U.S. District Judge Roger L. Hunt, the court said all four brake rotors were warped and required replacement at 6,000 miles. It also noted that after locking Milicevic out of her car, the remote entry system was replaced and the motor for the passenger side window was replaced.

The passenger side mirror was replaced due to a thumb print in the paint and the rear window seal and molding were unsuccessfully repaired three times, the court noted.

All repairs were made under Mercedes' limited written warranty, but the brakes and the rear window malfunction were never completely fixed, the court found.

Milicevic had wanted Mercedes-Benz USA to replace the car or reimburse her for the purchase price. When there was no response, she filed suit against Fletcher Jones and Mercedes Benz.

Hunt had also awarded attorney fees to Milicevic but had reduced the amount from $250 per hour to $150 per hour and had reduced the number of hours her attorneys billed.

Fletcher Jones and Mercedes appealed and so did Milicevic in trying to get the full award of lawyer fees.

In its findings, the appellate court said the lower court "did not commit clear error when it found a violation of the Nevada lemon law."

"There was sufficient evidence to support the district court's finding that after a reasonable number of attempts at repair had been made, a reasonable person would have found the use and the value of the car substantially impaired, as did Milicevic," the appellate court said.

Mercedes claimed the vehicle was only out of service for repair 24 days, not 55 days. It discounted the 31 days the car was at Fletcher Jones awaiting the arrival of parts needed to fix the rear window seals.

The court said Fletcher Jones ordered the wrong part and Milicevic had no control over the ordering of the parts.

Milicevic's had her then-fiance, lawyer Christopher Gellner, handle the initial legal work and then he associated with attorney Dale Haley on the case. Mercedes subpoenaed Gellner to testify and wanted to exclude him as counsel and to bar him from the courtroom while other witnesses testified.

Gellner, who married Milicevic before the trial, took a limited role in the trial but Mercedes wanted the judgment overturned. The appeals court, in an opinion written by Judge Carlos Bea, said it agreed with an exception to the exclusionary rule that permitted the presence of a person who is essential to the presentation of the case.