Head v. Phillips Camper Sales & Rental, Inc., Docket No. 194444

• Decision Date: 12 February 1999
• Docket Number: Docket No. 194444
• Citation: 593 N.W.2d 595,234 Mich.App. 94
• Parties: , 37 UCC Rep.Serv.2d 1033 Mary HEAD, Plaintiff-Appellant/Cross-Appellee, v. PHILLIPS CAMPER SALES & RENTAL, INC, Defendant-Appellee/Cross-Appellant, and NBD Bank N.A., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 595

593 N.W.2d 595

234 Mich.App. 94, 37 UCC Rep.Serv.2d 1033

Mary HEAD, Plaintiff-Appellant/Cross-Appellee, v. PHILLIPS CAMPER SALES & RENTAL, INC Defendant-Appellee/Cross-Appellant and NBD Bank N.A., Defendant-Appellee.

Docket No. 194444.

Court of Appeals of Michigan.

Submitted Aug. 11, 1998, at Detroit.

Decided Feb. 12, 1999, at 9:20 a.m.

Released for Publication May 5, 1999.

Terry J. Adler, Grand Blanc, for Mary Head.

Spender & Robb, P.C. (by Julia L. Black and Richard Galat ), Flint, for Phillips Camper Sales & Rental, Inc.

Bellairs Dean Cooley Siler & Moulton, LLP (by Steven Moulton ), Flint, for NBD Bank, N.A.

Before: CORRIGAN, C.J., and MacKENZIE and R.P. GRIFFIN ^*, JJ.

CORRIGAN, C.J.

In this dispute over a pop-up camper, plaintiff Mary Head appeals as of right the judgment for her on her claim under the Michigan Consumer Protection Act (MCPA), M.C.L. § 445.901 et seq.; MSA 19.418(1) et seq., and the judgment of no cause of action on her claim for revocation of acceptance. Defendant Phillips Camper Sales & Rental Inc., cross appeals, challenging the trial court's award of costs and attorney fees. This case presents an issue of first impression regarding the effect of a seller's previous attempts to repair defective goods where the buyer revokes acceptance under M.C.L. § 440.2608(1)(b); MSA 19.2608(1)(b). We hold that, while a seller has no right to cure after the buyer revokes, the seller's efforts to repair are relevant to the determinations whether the defect substantially impaired the value of the goods and whether the buyer revoked acceptance within a reasonable time after discovering the defect. In this case, the trial court erroneously instructed the jury that defendant Phillips' attempts to repair the camper could support a defense to plaintiff's claim. We therefore affirm in part, vacate the judgment in part, and remand for further proceedings consistent with this opinion.

I. Factual Background and Procedural Posture

Plaintiff purchased a pop-up camper from defendant Phillips in July 1992. Defendant Phillips arranged for defendant NBD Bank, N.A., to finance plaintiff's purchase. Plaintiff took delivery of the camper a few days later. Plaintiff soon discovered that the roof "leaned" toward the door and that the door would not lock. She returned the camper to Phillips six days after taking delivery. Phillips replaced the lock and advised plaintiff that the leaning condition was normal for a pop-up camper.

Plaintiff first took the camper on a trip in late July 1992. According to plaintiff, she had difficulty latching the door and assembling the awning. The sides and roof of the camper were unstable and swayed. The refrigerator did not work properly. Plaintiff notified Phillips of these problems on her return home. She experienced the same difficulties during another trip in early August, and cut that trip short when the refrigerator stopped working. Further, in preparing to leave the campsite, plaintiff had considerable difficulty hitching the camper to her van. Plaintiff notified Phillips of these additional problems after she returned home. She then delivered the camper to Phillips on August 31, 1992, for repairs.

Defendant Phillips returned the camper to plaintiff in late September 1992. According to plaintiff, she needed her husband's assistance to assemble the camper and the camper continued to "sway." Moreover, plaintiff could not close the camper. She called Phillips for assistance. A Phillips' employee then came to her home and successfully closed the camper. Soon thereafter, plaintiff returned the camper to Phillips. Plaintiff initially requested the return of the purchase price, but ultimately agreed to further repairs. Phillips transported the camper to the manufacturer for the repairs.

In late November 1992, defendant Phillips notified plaintiff that the repairs were complete and she could pick up the camper. Plaintiff inspected the camper at Phillips' place of business and discovered that it continued to lean. She refused to take possession and told Phillips that she no longer wanted the camper. Phillips declined to refund her money and requested another opportunity to repair the camper. Plaintiff agreed. Phillips attempted to repair the camper during December 1992 and January 1993. When plaintiff requested a refund in January, Phillips refused.

In February 1993, defendant Phillips notified plaintiff that she could pick up the camper. Plaintiff's stepdaughter retrieved the camper from Phillips and transported it to plaintiff's home. Plaintiff, however, could not open the camper. Further, plaintiff, noting apparent changes in the camper, believed that it was not the one that she had purchased. She compared the vehicle identification number (VIN) on the certificate of origin, title, and registration with that on the camper and discovered that they differed by one number. ¹ Plaintiff demanded a refund in a letter dated March 19, 1993. Defendant Phillips refused her request.

Plaintiff commenced this action in August 1993, asserting, among other things, claims against defendants for revocation of acceptance, violations of the MCPA, and conversion. Defendant NBD asserted a cross claim against defendant Phillips for breach of the warranty of assignment, seeking damages from Phillips in the event plaintiff was successful on her claims against it. At trial, the trial court granted defendant NBD's motion for a directed verdict on plaintiff's claims for conversion and for violation of the MCPA. The court also granted defendant Phillips' motion for a directed verdict on plaintiff's claim for conversion. The jury found for defendant Phillips on plaintiff's claim for revocation, but found for plaintiff on her claim against defendant Phillips for violations of the MCPA. It awarded plaintiff $500 in damages. The jury found for Phillips on the cross claim.

Plaintiff subsequently moved for judgment notwithstanding the verdict (JNOV) on her claim for revocation on the ground that defendant Phillips' failure to convey marketable title to her substantially impaired the value of the camper. Plaintiff also moved for enhanced interest under M.C.L. § 600.6013(11); MSA 27A.6013(11), and costs and attorney fees under the MCPA, M.C.L. § 445.911(2); MSA 19.418(11)(2). Plaintiff further requested a permanent injunction, enjoining defendant Phillips from either offering to sell or selling vehicles without possessing documents enabling it to convey marketable title. Defendant Phillips, in turn, moved for offer of judgment sanctions against plaintiff under MCR 2.405. The trial court denied plaintiff's motions for JNOV, a permanent injunction, and enhanced interest. The court granted plaintiff's motion for costs and attorney fees, awarding her $1,953.75 in costs and $2,500 in fees. The court denied defendant Phillips' motion for offer of judgment sanctions.

II. Revocation of Acceptance

Plaintiff first contends that the trial court erroneously instructed the jury that defendant Phillips' efforts to repair the camper could support a defense to her claim for revocation of acceptance. We agree. This Court reviews jury instructions in their entirety to determine whether they accurately and fairly present the applicable law and the parties' theories. Joerger v. Gordon Food Service, Inc., 224 Mich.App. 167, 173, 568 N.W.2d 365 (1997). We will not reverse on the basis of instructional error unless the failure to do so would be inconsistent with substantial justice. MCR 2.613(A); Johnson v. Corbet, 423 Mich. 304, 326, 377 N.W.2d 713 (1985).

A. UCC § 2-608(1)(b)

This case presents a question of first impression regarding the effect of a seller's attempts to repair where the buyer revokes acceptance under § 2-608 of the Uniform Commercial Code (UCC), adopted by the Michigan Legislature and codified at M.C.L. § 440.2608; MSA 19.2608. The statute provides:

(1) The buyer may revoke his acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to him if he has accepted it

(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or

(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances.

(2) Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects. It is not effective until the buyer notifies the seller of it.

(3) A buyer who so revokes has the same rights and duties with regard to the goods involved as if he had rejected them.

This case does not fall within subsection 1(a) because the record does not reflect that plaintiff knew of the defect when she accepted the camper. Further, although the parties to a sales agreement may limit remedies and damages for a breach, M.C.L. § 440.2719; MSA 19.2719, the parties' agreement in this case contained no such limitation. ² Therefore, plaintiff did not have to prove that a limited remedy failed in its purpose or operated to deprive her of the value of the bargain to pursue other UCC remedies, including revocation. See Kelynack v. Yamaha Motor Corp., 152 Mich.App. 105, 110-113, 394 N.W.2d 17 (1986). Consequently, we must determine whether a seller has a right to cure when a buyer revokes his acceptance on the basis of a defect that was not known at the time of acceptance, M.C.L. § 440.2608(1)(b); MSA 19.2608(1)(b), and, if not, the effect of a seller's previous attempts to repair on the buyer's right to revoke.

This issue involves a question of statutory interpretation, which we review de novo. Watson v. Bureau of State Lottery, 224 Mich.App. 639, 644, 569 N.W.2d 878 (1997). In construing a statute, our purpose is to ascertain the reasonable meaning of the specific language employed by ...