Free Other Notice - District Court of Arizona - Arizona

1 Marshall Meyers (020584)
2 Ian Pryor (022651) g
KROHN & MOSS, LTD.
3 111 West Monroe, Suite 711
4 Phoenix, AZ 85003
(602) 275-5588 Q
5 (866) 385-5215 (facsimile) i
6 Attorneys for Plaintiff j
17 UNITED STATES DISTRICT COURT
3 FOR THE DISTRICT OF ARIZONA
9 RONALD WEBER, ) Case No. CIV 03-2606-PHX-IWS
10 . . . . )
Plarntrff, ) PLAINTIFF’S NOTICE OF HI
ll vs. ) INTENT TO POTENTIALL .
12 ) MITIGATE HIS DAMAGES
FLEET WOOD MOIOR HOMES ) I
13 OF INDIANA, )
14 )
Defendant. )
15 Plaintiff hereby notifies the Defendant of his possible intent to mitigate his
16 damages by disposing of the subject Motor Home no sooner than 30 days from the dat I
17 2
18 of this notice. Plaintiffs mitigation, if any, has no effect on Plaintiffs right to maintai
19 an action for breach of warranty. Spoo v. Boothe, 453 F .2d 405 (9th Cir.. 1971); 67A A
20 Iur 2d, Sales § 1242.1 Our Commercial Code expressly recognizes the right of
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aggrieved party to mitigate damages by "cover." A.R.S. §47-2712(A) (stating "[a]fter i
22 9
23 ——-— -————
24 I Under pre-Code law, the fact that the buyer had resold the goods to a third person in no way affected hi in
right to maintain an action against the seller for breach of warranty. . . It has also been held that the application o ’
25 the ordinary rule of damages for breach of warranty, namely, the difference between the value of the goods a Z
warranted and the value ofthe goods as they actually were upon acceptance was not changed or modified by the fac `
26 that the purchaser had resold the article at a profit, either by reason of an advance in the market or by reason of
existing contract; the seller could not assert this as a defense, or in mitigation of damages. . . It has also been hel
27 that the fact that the purchaser was fully paid by the subpurchaser did not preclude a recovery by him from the selle j
on breach of warranty to the full extent of defects existing in the article without regard to the amount received fro
28 the subpurchaser and without regard to the fact that no claim had been made by the sr1bpLn·chaser on account o
def`ects. . . There appears to be nothing in the Uniform Commercial Code that would change the foregoing rules ’ Q
67A Am Iur 2d, Sales § 1242 (footnotes omitted) I
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I breach within § 47-2711 the buyer may "cover" by making in good faith and withou
2 unreasonable delay any reasonable purchase of or contract to purchase goods i
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4 substitution for those acquired). In situations where cover is made, the covering party i
5 entitled to damages in the amount of "the difference between the cost of cover and th
6 contract price together with any incidental or· consequential damages as hereinafte
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S defined (§ 47-2715), but less expenses saved in consequence of the seller's breach.?
9 A..R..S. §47-2712 (B). The right to cover, "lmown as mitigation of damages, applies i
10 virtually every type of case in which the recovery of a money judgment or award is Q
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12 authorized.." Culligczn Rock River Water Conditioning Company v. Gearharlt, 111 i
13 Ill..App.3d 254, 258, 443 N..E.2.d 1065, 1068 (2nd Dist. 1982); A.R..S. §47-2712 (B) a
14 cmt .4 ("[t]his section does not limit cover to merchants, in the iirst instance. It is the vita
15 P
and important remedy for the consumer buyer as well. Both are free to use cover”).
is .
I-; RESPECTFULLY SUBMITTED on this 27th day of September 2.005.
*8 By: _s/Marshall Meyers
19 Marshall Meyers
Ian Pryor
20 KROHN & MOSS, LTD.
21 111 West Monroe, 711 E
Phoenix, AZ 85003 Q
22 Attorney for Plaintiff(s) p
23 Filed electronically on this 27th day of September 2005, with: E
24 {
25 United States District Court CM/ECF system Q
26 Copy mailed on this 27th day of` September 2005, to:
27 Hon. Roslyn O Silver
28 401 West Washington Street
Phoenix AZ 85003-2118
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Case 2:O3—cv—O2606-JWS Document 115 Filed O9/27/2005 Page 2 013 ’

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2 Notification sent electronically via the Court’s ECP system and mailed on this 27th day
of September, 2005 to:
3 Mr. Kerry M. Griggs . .
The Cavanagh Law F11m E
5 1850 North Central Avenue, ’
Suite 2400 j
6 Phoenix AZ 85004
8 Qaihm
9 Ian Pryor A
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