BY SCOTT MONROE

Staff Writer

Two and a half years ago, Fran Fontanez saw an advertisement for a 2003 Saab 9-3 with 21,000 miles and a full factory warranty. He went with his wife to buy the car from Cold Brook Saab in Skowhegan.

The used car, he was told, had been a voluntary buyback and it was purchased at an auction. The couple test-drove the car and loved it. Brand new, the car would have cost $33,000. Fontanez paid $17,000 for it.

"It was a dream to drive -- leather seats, heated. For us, it was such a huge step up. We finally got to a point where we could afford this extravagance," said Fontanez, of Bath. "But it turned into an absolute nightmare."

Soon after the purchase, the car started acting up, he said. First, the check-engine light came on. Then the car would shift gears sporadically. Once, on the highway, the Saab shifted into first gear while he was in the fast lane and the car nearly nose-dived. Fontanez said he pulled over and "thanked God no one got hurt."

By March 2007, Fontanez had taken the car to the repair shop 17 times, racking up $9,800 in bills that were covered under the car's warranty. Then, at 44,000 miles, the car's engine kicked the bucket.

"They wouldn't cover it at that point because it was an engine problem and not a transmission problem," he said.

The dealership wouldn't take the car back, Fontanez said. Fontanez decided to research the car's history, tracking its original paperwork back to California. The car's title listed it as being a "lemon buyback," meaning it had recurring defects.

Fontanez said his reaction was: "Wait a minute, I bought a lemon and no one told me?" Fontanez, 48, is now fighting his case in court in hopes of getting back the money he invested in the car, which has sat unused in his garage for more than a year.

The outcome of the court case, if it favors Fontanez, could have broad implications for car dealerships in Maine. But the judge in the case has already dismissed most of allegations in the lawsuit; just one remains. The attorney for Cold Brook Saab says the dealership met all of Maine's legal requirements in this case.

Regardless of the outcome, the issue has caught the attention of at least one state legislator, who says the state law may need further clarification or additions to protect consumers.

Court case

All 50 states have lemon laws. Although states define lemons differently, the term is generally used to describe a vehicle that's had major problems several times that won't go away despite several tries at fixing them.

In Fontanez's case, he says he had no idea he was purchasing a used car that was branded a lemon in California. He argues that the Skowhegan car dealership should have told him that.

In April 2007, Fontanez filed a complaint in Sagadahoc County Superior Court in Bath. He seeks about $21,000 for the car's price tag and interest, plus his expenses for lawyers' fees. The case is being heard by Judge Andrew M. Horton.

Patricia Shadis, a lawyer from Newcastle who represents Fontanez, said the case will head to trial in the coming months unless a settlement is reached. Meantime, the parties plan to meet with Judge Horton during mediation and try to reach an agreement.

Under the initial complaint filed against the dealership, Fontanez made several allegations -- including that the dealership had not fully disclosed all required information about the car. Judge Horton has since dismissed all but one pending charge because he found they were without merit.

Cold Brook Saab's lawyer is Brendan P. Rielly, a partner at Jensen Baird Gardner & Henry in Portland. Rielly points to the judge already dismissing "90 percent of the case" and says the one issue remaining centers on whether the term "lemon" should have been used. Cold Brook Saab contends it did not need to use that precise term.

The surviving count falls under unfair-trade practices, Shadis said, alleging that the dealership was required to describe the car as a lemon under state law, but did not.

"They disclosed it was a buyback; they didn't disclose it was a lemon," Shadis said. "That's the really telling thing."

Shadis said the car's original title specifically describes the car as a lemon-law buyback; it's what's called a "branded" title. The car's Maine title does not have that description, because state law doesn't require that.

"So, the theory in our case is that there's no way, if Fontanez had been told it was a lemon, would he have paid $17,000 for it," she said. "They're looking for a replacement car to put them back where they were."

A close reading of state law shows that dealers are not specifically instructed to use the term "lemon," Rielly said, and it's enough to call the vehicle a "buyback."

"There's no dispute the act requires all information known about any defects to be disclosed and there's no dispute that that was done," Rielly said. "If the rules of the game are going to be changed (by the Legislature), OK, but there's no dispute Cold Brook has played by the rules up to this point. They disclosed this was part of the buyback program. The judge found Cold Brook did not hold back any information at all."

Shadis says she hasn't come across any Superior or Supreme Court decisions that would be relevant in the case. That suggests previous lemon-law cases have been settled before going to trial, or have lost at trial and not been appealed to the Supreme Court.

She thinks Fontanez's situation is unique in that he put in time to research the car's history and trace the title back to California.

"Probably most people who might have had a similar experience would never have gotten that title. Fran has been great; he's diligently searched and assisted his case tremendously and he actually got the title ... that showed the lemon brand," Shadis said.

Tom Brown, president of the Maine Automobile Dealers Association, a trade industry group, said he didn't know whether it is standard practice for dealerships in Maine to use the word "lemon" when that term could apply to a buyback car.

Brown said he's heard "people use different phrasing. Sometimes it's whatever phrase is on the title of the vehicle."

Not all buyback vehicles are lemons, Brown noted.

"There are times when a manufacturer, for a variety of purposes, might decide they want to buy a vehicle back, and that has absolutely nothing to do with a particular state's laws," he said.

Law changes?

State Sen. Joseph C. Brannigan, D-Cumberland, was the lead sponsor of Maine's original lemon laws in the 1980s, and he sponsored the most recent iteration of the law a couple years ago.

The Maine Attorney General's Office, Brannigan reports, "thinks we're in good shape now and doesn't think there's anything else they can do to tweak the law."

Brannigan declined to comment specifically on the court case, but said, "It seems to me that a dealer who has a title that says lemon on it and does not disclose that to the buyer until later, he is in moral and legal trouble," Brannigan said. "It would make common sense, it's the rule in Maine, that the people who buy cars that are branded a lemon, they should know about it."

Rielly said he thinks the information Cold Brook disclosed is about the same as any other car dealer in the state of Maine.

If, however, the court rules that Cold Brook should have used the term "lemon," that will have "broad implications for dealerships around the state.

"Now they have to change their disclosures," Rielly said. "The concern I would have is if other car dealers would even be aware of this decision that this new requirement is out there."

Brannigan said he's prepared to take another look at the law if it means protecting consumers.

Scott Monroe -- 487-3288, 861-9253

smonroe@centralmaine.com