Hines v. Volkswagen of Am., Inc.

• Decision Date: 27 April 2005
• Docket Number: Docket No. 246307.
• Citation: 265 Mich. App. 432,695 N.W.2d 84
• Parties: Shari HINES, Plaintiff-Appellee, v. VOLKSWAGEN OF AMERICA, INC., and Livonia Volkswagen, Inc., Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

695 N.W.2d 84

265 Mich. App. 432

Shari HINES, Plaintiff-Appellee, v. VOLKSWAGEN OF AMERICA, INC., and Livonia Volkswagen, Inc., Defendants-Appellants.

Docket No. 246307.

Court of Appeals of Michigan.

Submitted April 6, 2004, at Detroit.

Decided March 15, 2005, at 9:05 a.m.

Released for Publication April 27, 2005.

Consumer Legal Services, P.C. (by Mark Romano and Christopher A. Winkler), Garden City, for the plaintiff.

Bowman and Brooke L.L.P. (by Ronald C. Wernette, Jr.) Troy, for the defendants.

Before: WILDER, P.J., and HOEKSTRA and KIRSTEN FRANK KELLY, JJ.

WILDER, P.J.

Volkswagen of America, Inc. (hereafter defendant), appeals as of right a judgment and award of attorney fees and costs in favor of plaintiff in this action involving a claim under the Michigan warranties on new motor vehicles act or "lemon law," MCL 257.1401 et seq.¹ We reverse and remand for further proceedings.

I

On January 30, 2001, plaintiff leased a 2001 Volkswagen Beetle from Livonia Volkswagen, Inc. (dealership). Defendant manufactured the vehicle. Under the lease agreement, plaintiff paid $4,574.84 at the inception of the lease. Plaintiff agreed to pay the balance in sixty-two payments of $275.84. The vehicle was delivered with a standard manufacturer's warranty. Approximately three months after she took possession of the vehicle, plaintiff began experiencing trouble with the vehicle's engine. On March 12, 2001, plaintiff had the vehicle towed to the dealership after the vehicle stalled and would not restart. The dealership ordered an engine computer module, and the vehicle was out of service for thirty-nine days because the module had to be ordered. Soon after the repair, plaintiff complained that the vehicle had the same problem and, on May 4, 2001, plaintiff drove the vehicle to the dealership, complaining that the vehicle's electronic power control lamp (EPC) indicator light flashed on. When the dealership investigated, no problems other than a cracked headlight were found. The cracked headlight was replaced. On May 21, 2001, plaintiff had the vehicle towed to the dealership, complaining that the vehicle ran rough and the EPC and "check engine" lights came on when the car accelerated over forty miles an hour. The dealership reset the vehicle's diagnostic trouble codes and a technician informed plaintiff that the problem occurred because she drove the vehicle through water. On May 31, 2001, plaintiff drove the vehicle to the dealership for service, complaining that the "check engine light" was on, the car ran roughly, and the fuel filler door would not open. The vehicle was serviced and was ready for pick up the next day.

In a letter dated June 6, 2001, and sent by certified mail, plaintiff notified defendant of the problems she had with the vehicle. Plaintiff's letter provided:

I leased a 2001 Volkswagen Beetle on January 30, 2001 from Livonia Autoplex. The identification number is 3VWCD21C81M432632. Since purchasing this vehicle I have had to take it in for service four separate times because the engine runs rough. As of today, this problem still exists and it has been out of service now for a total of forty-three (43) days. This amount of time is completely unacceptable.

Please contact me to arrange a date and time where you will fix my car for the last time.[²]

On June 29, 2001, plaintiff drove to the dealership for service, complaining that the vehicle had shifting problems and stalled while sitting at traffic lights.³ However, the dealership was unable to find any problems in the diagnostic trouble codes or duplicate the problem when a technician and plaintiff took the vehicle for a test drive. Nonetheless, plaintiff's "throttle" and transmission were reset to "basic." Plaintiff never brought the vehicle to the dealership for service after June 29, 2001.

On July 11, 2001, plaintiff filed a thirteen-count complaint against the dealership and the manufacturer under various theories. Under the trial court's scheduling order, discovery was to be completed by February 20, 2002. On March 8, 2002, plaintiff filed a motion for summary disposition under MCR 2.116(C)(10) based solely on her lemon law claim, which asserted that defendant had been given the opportunity to repair defects in the vehicle reported by plaintiff, but had failed to do so. Plaintiff's summary disposition motion contended that she was entitled to judgment as a matter of law on the bases that her vehicle had been out of service for thirty or more days during the first year of ownership and that the vehicle had been subject to four or more repairs for the same defect or condition in the first year.

Defendant opposed plaintiff's motion for summary disposition, contending that the motion was premature because discovery was not yet complete and that, even assuming that plaintiff's vehicle was out of service for forty-three days, summary disposition was precluded because there were genuine issues of material fact regarding whether the repairs to plaintiff's vehicle were for the same defect or condition and whether the defect or condition at issue continued to exist. Defendant also argued that the fact that plaintiff obtained an oil change at a nonauthorized facility raised questions of fact about the existence of the manufacturing defects alleged. Defendant also disputed whether plaintiff had established that the defect or condition "continues to exist" because the dealership did not diagnose a problem during the June 29, 2001, service visit.

Following a hearing on plaintiff's motion, the trial court granted summary disposition in favor of plaintiff on her lemon law claims. The trial court concluded that because the evidence showed that plaintiff's vehicle was out of service for thirty or more days during plaintiff's first year of ownership, plaintiff had established entitlement to recovery under the lemon law as a matter of law. The trial court denied defendant's subsequent motion for rehearing or reconsideration and urged the parties to mediate and resolve plaintiff's remaining claims. After the parties were unable to resolve these claims, plaintiff filed a motion for attorney fees and costs and also filed a motion for entry of judgment. The trial court granted plaintiff's motions, entering a judgment that awarded plaintiff damages in the amount of $9,815.50 and attorney fees and costs in the amount of $9,000. In addition, the trial court ordered defendant to either "payoff and terminate the lease ... or pay plaintiff $19,000.00." Plaintiff and defendant stipulated the dismissal of plaintiff's remaining claims, and this appeal ensued.

II

On appeal, a trial court's grant or denial of summary disposition is reviewed de novo. First Pub. Corp. v. Parfet, 468 Mich. 101, 104, 658 N.W.2d 477 (2003). This Court must review the record in the same manner as the trial court to determine whether the movant was entitled to judgment as a matter of law. Morales v. Auto-Owners Ins. Co., 458 Mich. 288, 294, 582 N.W.2d 776 (1998). "A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim." Shepherd Montessori Ctr. Milan v. Ann Arbor Charter Twp., 259 Mich.App. 315, 324, 675 N.W.2d 271 (2003). "When deciding a motion for summary disposition under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party." Shepherd, supra at 324, 675 N.W.2d 271. "[A] court may not weigh the evidence before it or make findings of fact; if the evidence before it is conflicting, summary disposition is improper." Lysogorski v. Bridgeport Charter Twp., 256 Mich.App. 297, 299, 662 N.W.2d 108 (2003), citing DeFlaviis v. Lord & Taylor, Inc., 223 Mich.App. 432, 436, 566 N.W.2d 661 (1997) (emphasis in original).

We also review de novo questions of statutory interpretation. When construing a statute, the Court's primary obligation is to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute. Lysogorski, supra at 300, 662 N.W.2d 108. If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed. G.C. Timmis & Co. v. Guardian Alarm Co., 468 Mich. 416, 420, 662 N.W.2d 710 (2003). Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent. Stringwell v. Ann Arbor Pub. School Dist., 262 Mich.App. 709, 712, 686 N.W.2d 825 (2004), quoting Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999) (citations omitted). In this regard, statutory language is not to be construed as ambiguous `merely because a reviewing court questions whether the Legislature intended the consequences of the language under review.' McGhee v. Helsel, 262 Mich.App. 221, 224, 686 N.W.2d 6 (2004), quoting Colucci v. McMillin, 256 Mich.App. 88, 94, 662 N.W.2d 87 (2003). An ambiguity can be found only where the language of a statute as used in its particular context has more than one common and accepted meaning. McGhee, supra at 224, 686 N.W.2d 6 (citation omitted). Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context. G.C. Timmis, supra at 421, 662 N.W.2d 710. Thus, the various words and clauses of a statute will not be divorced from those words preceding and following. Id.

Generally, where attorney fees are awarded by the trial court, we review the award for an abuse of discretion. See Stoudemire v. Stoudemire, 248 Mich.App. 325, 344, 639 N.W.2d 274 (2001). However, any questions of law that affect the determination are reviewed de novo. See 46th Circuit Trial Court v. Crawford Co., 261 Mich.App. 477, 486, 682 N.W.2d 519 (2004).

III

A

Defendant first argues that the trial court erred in granting summary disposition for plaintiff on the sole basis that plaintiff's vehicle...