COMPUTER NETWORK INC V AM GENERAL CORP
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STATE OF MICHIGAN
COURT OF APPEALS
COMPUTER NETWORK, INC.,
FOR PUBLICATION
February 24, 2005
9:05 a.m.
Plaintiff-Appellant,
v
AM GENERAL CORPORATION and PFEIFFER
INFINITI, INC.,
Defendants-Appellees.
No. 248966
Kent Circuit Court
LC No. 02-003432-CP
Official Reported Version
Before: Hoekstra, P.J., and Griffin and Borrello, JJ.
GRIFFIN, J.
Plaintiff appeals as of right an order granting defendants' motions for summary
disposition. We affirm in part and reverse in part.
I
On June 29, 2000, plaintiff, through action of its president John Deskovitz, leased a 2000
Hummer vehicle manufactured by defendant AM General Corporation. Plaintiff obtained a
thirty-month lease expiring in December 2002 through defendant Pfeiffer Infiniti, Inc. But,
before expiration of the lease, plaintiff filed the instant lawsuit alleging that the vehicle required
repairs on at least fourteen1 occasions during the lease period and that it was out of service for an
unreasonable amount of time. Plaintiff asserts that the documentary evidence submitted in
opposition to defendants' motions established that the vehicle was out of service for repairs for
199 days during the thirty-month lease.2 Plaintiff claimed that problems with the vehicle
necessitating repairs included engine problems, starting problems, malfunctioning turn signals,
power steering fluid leaks, excessive vibration, defective steering, malfunctioning gauges,
1
At the time of oral argument on defendants' motion for summary disposition, the vehicle had
required repairs on seventeen occasions.
2
Defendants claim that the actual days out of service are less than 199, although they fail to
specify an actual number.
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defective air conditioning, odometer and speedometer malfunctions, defective heating,
malfunctioning cruise control, inoperable CD player, excessive rust, and defective painting.
Following a hearing on motions for summary disposition brought by both defendants under
MCR 2.116(C)(10), the trial court granted summary disposition in favor of defendants on eight
claims under MCR 2.116(C)(8), and one claim under MCR 2.116(C)(10).
II
Plaintiff initially argues that the trial court erroneously granted summary disposition
under MCR 2.116(C)(8), where defendants moved for summary disposition under MCR
2.116(C)(10). Plaintiff argues that the trial court lacked the authority to grant sua sponte
summary disposition under MCR 2.116(C)(8), and that summary disposition under this subrule
was also improper because it was not given an opportunity to oppose such a motion. We
disagree.
A trial court is not necessarily constrained by the subrule under which a party moves for
summary disposition. It is well settled that, where a party brings a motion for summary
disposition under the wrong subrule, a trial court may proceed under the appropriate subrule if
neither party is misled. Blair v Checker Cab Co, 219 Mich App 667, 670-671; 558 NW2d 439
(1996); Ruggeri Electrical Contracting Co, Inc v Algonac, 196 Mich App 12, 18; 492 NW2d 469
(1992). In this case, plaintiff was neither misled nor prejudiced by the trial court's consideration
of defendants' motions under MCR 2.116(C)(8).
"'A motion under MCR 2.116(C)(8) tests the legal sufficiency of the complaint.'" Adair v
Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004) (citation deleted). The pleadings alone are
considered. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). "'All wellpleaded factual allegations are accepted as true and construed in a light most favorable to the
nonmovant.'" Adair, supra at 119 (citation deleted). The motion should be granted where the
claims are "'so clearly unenforceable as a matter of law that no factual development could
possibly justify recovery.'" Id., quoting Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817
(1999). Because a grant of summary disposition rests on a review of the pleadings alone, the
lack of argument from plaintiff with respect to the legal sufficiency of the claims is not
necessarily an impediment to a grant of summary disposition under that subrule. Plaintiff
formulated its own pleadings. Further, it was aware of the legal arguments offered by defendants
and had a full opportunity to respond to those arguments. In ruling on the motions for summary
disposition, the trial court believed that the arguments offered by defendants, to which plaintiff
responded, required summary disposition under subrule C(8), not subrule C(10). While the
propriety of the underlying ruling is subject to challenge, the fact that the trial court granted the
motion under subrule C(8), standing alone, is insufficient to warrant reversal.
In reaching our decision, we emphasize that our review of summary disposition decisions
is done de novo. Quality Products & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 369;
666 NW2d 251 (2003). Moreover, even if a trial court errs in granting summary disposition
under the wrong subrule, this Court may review the issue under the correct subrule. See Spiek v
Dep't of Transportation, 456 Mich 331, 338 n 9; 572 NW2d 201 (1998). Also, it is axiomatic
that this Court will not reverse a trial court's decision if the correct result is reached for the
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wrong reason. Lane v KinderCare Learning Centers, Inc, 231 Mich App 689, 697; 588 NW2d
715 (1998).
III
With respect to plaintiff 's claims for breach of express warranty, plaintiff concedes that
the language of the lease for the 2000 Hummer contained express language disclaiming any
warranty by defendant Pfeiffer Infiniti. Because Pfeiffer Infiniti did not provide an express
warranty, summary disposition of plaintiff 's express warranty claim against Pfeiffer Infiniti was
warranted.
AM General offered an express warranty. However, no material question of fact existed
with respect to breach of that warranty. John Deskovitz, plaintiff 's principal, testified at his
deposition that repairs were never refused. The record revealed that warranty repairs were made
each of the seventeen times the vehicle was presented for service. Because there was no
question of material fact with respect to a breach, summary disposition under MCR 2.116(C)(10)
was proper.
Plaintiff nevertheless argues that if the time taken for repairs was unreasonable, there
may be a claim for breach of express warranty, regardless of the fact that all repairs were
actually made. Plaintiff argues that there is a question of fact whether the repairs were made in a
reasonably timely fashion. In Kelynack v Yamaha Motor Corp, USA, 152 Mich App 105, 111;
394 NW2d 17 (1986), this Court held that, where a limited express warranty fails of its essential
purpose or deprives either party of the value of the bargain, the parties may pursue other
remedies under the Uniform Commercial Code (UCC), MCL 440.1101 et seq. Further, "[w]here
a manufacturer or dealer has limited its obligation . . . to repair or replace defective parts, the
seller does not have an unlimited time to make the repairs, but rather must repair or replace the
parts within a reasonable time." Kelynack, supra at 112. "[A] warranty fails of its essential
purpose where unanticipated circumstances preclude the seller from providing the buyer with the
remedy to which the parties agreed, in which event the buyer is entitled to seek remedies under
the standard UCC warranty provisions." Severn v Sperry Corp, 212 Mich App 406, 413-414;
538 NW2d 50 (1995). In this case, there was no evidence indicating that the manufacturer's
limited express warranty failed of its essential purpose. To the contrary, every time plaintiff
presented the vehicle, repairs were made. In this respect, the present case is distinguishable from
most defective vehicle cases. See Durfee v Rod Baxter Imports, Inc, 262 NW2d 349 (Minn,
1977), and cases cited therein. Additionally, there was no evidence that the time allotted for the
presented repairs was unreasonable under the particular circumstances. There were numerous
different repairs to the vehicle over a lengthy period, most of which were not repeat repairs.
Plaintiff relies on the aggregate number of repair days to argue that there is a question of fact
whether the time for repairs was unreasonable. However, it offers no evidence that the time to
perform the numerous, individual repairs was unreasonable for this specific vehicle. This case is
not like Kelynack, supra at 112, in which the plaintiff presented his vehicle for repair because of
a tapping noise and the vehicle was not returned for more than three months. Nor is this case
similar to Severn, in which the defendant was unable to repair the machinery. Here, the vehicle
was always repaired, returned, accepted, and used. Because there was no question of material
fact, summary disposition under MCR 2.116(C)(10) was appropriate.
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IV
With respect to plaintiff 's claim for breach of implied warranty of merchantability,
summary disposition was appropriate for defendant Pfeiffer Infiniti because it properly
disclaimed conspicuously and in writing any implied warranty of merchantability. MCL
440.2864. The disclaimer was not invalid under 15 USC 2308, which precludes a supplier that
has offered an express warranty from disclaiming or modifying a limited warranty in any respect
other than duration. Pfeiffer Infiniti did not provide an express warranty. Thus, there is no
question of material fact with respect to plaintiff 's claim against Pfeiffer Infiniti for breach of an
implied warranty of merchantability. Summary disposition was appropriate.
V
However, defendant AM General was obligated under an implied warranty of
merchantability. While it attempted to modify the implied warranty by limiting remedies to
those offered under the written warranty, this disclaimer was invalid under 15 USC 2308. On
this issue, this Court has stated:
The warranty of merchantability requires that the goods sold be of average
quality within the industry. A warranty of fitness for a particular purpose requires
that the goods sold be fit for the purpose for which they are intended; in order to
take advantage of this type of warranty, the seller must know, at the time of sale,
the particular purpose for which the goods are required and also that the buyer is
relying on the seller to select or furnish suitable goods.
* * *
To establish a prima facie case of breach of implied warranty, a plaintiff
must show that goods were defective when they left the possession of the
manufacturer or seller. Under implied warranty theory, a defect is established by
proof that a product is not reasonably fit for its intended, anticipated or reasonably
foreseeable use. Merchantable is not a synonym for perfect. The warranty of
merchantability is that goods are of average quality in the industry. . . . As to
goods accepted, the burden is on the buyer to establish any claimed breach of
warranty. [Guaranteed Constr Co v Gold Bond Products, 153 Mich App 385,
392-393; 395 NW2d 332 (1986) (citations omitted).]
In the present case, in view of the multiple repairs to the vehicle and the total days it was
out of service, a genuine issue of material fact exists whether defendant AM General breached its
implied warranty of merchantability. The seventeen repair visits3 needed within such a short
time is circumstantial evidence that the vehicle was defective and not reasonably fit for its
intended use when it left the possession of defendant AM General. See, generally, King v Taylor
3
On several occasions, more than one malfunction needed repair.
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Chrysler-Plymouth, Inc, 184 Mich App 204; 457 NW2d 42 (1990), and Kelynack, supra. See
also 67A Am Jur 2d, Sales, § 849, pp 250-252 ("When a seller does not repair or replace in order
to cure a nonconformity, . . . the limited remedy stated in terms of repair or replacement has
failed of its essential purpose. . . . Such remedy also fails of its essential purpose when a seller is
simply unable to cure the nonconformity notwithstanding that the seller's failure to cure was
neither willful nor negligent."); id. at § 850, p 253 ("The nonconformity must be removed within
a reasonable time. The buyer is not bound to permit the warrantor to tinker with the goods
indefinitely in the hope that it [sic, they] ultimately may be made to conform.").
In many respects, the present case is similar to Int'l Financial Services, Inc v Franz, 515
NW2d 379 (Minn App, 1994), aff 'd in part and rev'd in part on other grounds 534 NW2d 261
(Minn, 1995). There, the plaintiff manufacturer of electrical circuit boards purchased from the
defendant a photo plotting system that was used to manufacture circuit boards. During the first
nine months of its operation, the system repeatedly malfunctioned. Although the defendant
made "Herculean" efforts of repair, the system needed service nineteen different times and was
out of service for repairs sixteen to twenty-five percent of the nine-month period. The plaintiff 's
claims of breach of express warranty and breach of implied warranty were both submitted to the
jury. The jury found no breach of express warranty because of the defendant's good faith efforts
to repair the multiple malfunctions. However, the jury found in favor of the plaintiff on the
claim of breach of implied warranty. In affirming the jury's verdict, the Court of Appeals of
Minnesota held:
A breach of implied warranty of merchantability is different from that of
an express warranty; the jury need not find a specific defect in materials or
workmanship to conclude there was a breach of implied warranty of
merchantability. . . .
Testimony shows the system was serviced 19 times and it was inoperable
four to six times more often than the average system. [The defendant's expert]
testified that even if some service calls were related to power surges and to
handling the system during delivery and/or storage, the total number of service
calls here was excessive. There also was testimony that one of Gerber's regional
sales managers called the system a "lemon" and a problem.
There is evidence that the 3235 system bought by Franz Engineering could
not pass without objection in the trade, was not fit for its ordinary purposes, . . . .
Accordingly, the jury could have reasonably found . . . Gerber breached its
implied warranty of merchantability.
* * *
Although Gerber constantly repaired malfunctions, evidence indicates that
the number of malfunctions was unusually high, the system was inoperable during
those times, and the system never properly functioned for the ordinary purpose for
which it was to be used. Therefore, reasonable persons could find Gerber
deprived Franz Engineering of the essential value of their bargain. We hold the
jury properly found the remedy failed of its essential purpose. [Id. at 384-386.]
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Likewise, in the present case, we hold that, at a minimum, a genuine issue of material
fact exists for the resolution by the trier of fact regarding plaintiff 's claim against defendant AM
General for breach of implied warranty. See also Wilson v Marquette Electronics, Inc, 630 F2d
575 (CA 8, 1990).
VI
With respect to the two claims pleaded under the Magnuson-Moss Warranty Act, 15 USC
2301 et seq. provides remedies to consumers for breaches of express and implied warranties and
permits consumers to file suit for damages. A "warrantor" is a "supplier or other person who
gives or offers to give a written warranty or who is or may be obligated under an implied
warranty." 15 USC 2301(5). A "written warranty" is
any written affirmation of fact or written promise made in connection with the
sale of a consumer product by a supplier to a buyer which relates to the nature of
the material or workmanship and affirms or promises that such material or
workmanship is defect free or will meet a specified level of performance over a
specified period of time, . . . or any undertaking in writing in connection with the
sale by a supplier of a consumer product to refund, repair, replace, or take other
remedial action with respect to such product in the event the product fails to meet
the specifications set forth in the undertaking . . . . [15 USC 2301(6).]
15 USC 2310 provides remedies to a consumer for a breach of warranty. A consumer who is
damaged by the failure of a supplier, warrantor, or service contractor to comply with any
obligation under 15 USC 2301 et seq., including failing to comply with written or implied
warranties, may bring a suit for damages and other remedies. 15 USC 2310(d)(1). For purposes
of 15 USC 2310, "only the warrantor actually making a written affirmation of fact, promise, or
undertaking shall be deemed to have created a written warranty, and any rights arising
thereunder may be enforced under this section only against such warrantor and no other person."
See 15 USC 2310(f).
In this case, Pfeiffer Infiniti did not give or offer a written warranty as a warrantor. It
sold an extended warranty offered by General Motors, the exclusive distributor of Hummer for
AM General. However, it cannot be disputed that the "warrantor" of the written extended
warranty was General Motors, not Pfeiffer Infiniti. Pfeiffer Infiniti made no express written
affirmations, promises, or undertakings with respect to the quality of the vehicle or with respect
to repair, replacement, or refund. Pfeiffer Infiniti was also not obligated under an implied
warranty because it validly disclaimed the implied warranties under state law, as previously
discussed. MCL 440.2864. Because Pfeiffer Infiniti was not a warrantor, an action under 15
USC 2310 could not be maintained against it. There were no questions of material fact with
respect to breach of warranty claims against Pfeiffer Infiniti under the Magnuson-Moss Warranty
Act. Therefore, summary disposition was properly entered in favor of defendant Pfeiffer Infiniti.
However, defendant AM General was a warrantor. It is undisputed that it provided a
written warranty on the 2000 Hummer. Thus, plaintiff was entitled to file suit against AM
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General under 15 USC 2310(d) for damages under both written and implied warranties. For
these claims, plaintiff alleged that AM General failed to repair or properly repair defects and
failed to honor the written warranty. It also alleged that AM General's actions constituted a
breach of implied warranties. In regard to the express warranty claim, the record reveals that the
vehicle was repaired every time it was brought in for repairs. Deskovitz admitted that repairs
were never refused. Thus, there was no question of material fact with respect to AM General's
breach of any express warranty. However, there was a question of material fact with respect to
breach of implied warranty. There was evidence that the vehicle was not of average quality, that
it was not fit for the purpose of transportation, that it failed to provide transportation, and
circumstantial evidence that it was defective when it left the hands of defendant AM General.
Because there was a question of material fact with respect to whether the implied warranty was
breached, summary disposition on plaintiff 's claim under the Magnuson-Moss Warranty Act
against defendant AM General was erroneously granted.
VII
With respect to revocation of acceptance, summary disposition was appropriate for
Pfeiffer Infiniti under MCR 2.116(C)(10).4 MCL 440.2967 provides that a lessee may revoke
acceptance of a lot or commercial unit whose nonconformity substantially impairs its value to
the lessee, that revocation must occur within a reasonable time after the lessee discovers or
should have discovered the ground for revocation, that revocation is not effective until the lessor
is notified, and that a lessee who revokes has the same rights and duties with regard to the goods
involved as if the lessee had rejected them.
In this case, assuming arguendo that the 2000 Hummer's alleged nonconformities
substantially impaired its value to plaintiff, revocation did not occur within a reasonable time as
a matter of law. "Where facts are undisputed[,] the question of what constitutes a reasonable
time is a question of law." S C Gray, Inc v Ford Motor Co, 92 Mich App 789, 817; 286 NW2d
34 (1979). See also Moore v First Security Cas Co, 224 Mich App 370, 379; 568 NW2d 841
(1997) (where reasonable minds may differ, the issue whether a reasonable time has expired is a
jury question, but, if reasonable minds cannot differ, summary disposition is appropriate) and
Stoddard v Manufacturers Nat'l Bank of Grand Rapids, 234 Mich App 140, 146-147 n 4; 593
NW2d 630 (1999). The material facts are not in dispute. Plaintiff leased the 2000 Hummer on
June 29, 2000. Plaintiff did not notify Pfeiffer Infiniti of its desire to revoke acceptance until
March 26, 2002, when the lease was more than two-thirds completed. Plaintiff had presented the
Hummer for numerous repairs before that time, and its principal had prior experience with
Hummers and their various repair issues. When plaintiff 's principal began having trouble with
the 2000 Hummer, as he had had with the 1997 and 1999 Hummers he possessed, he was aware
of the grounds for revocation. Yet, he waited until the lease was close to its end before notifying
4
Plaintiff dismissed this claim against AM General on stipulation before the summary
disposition hearing.
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Pfeiffer Infiniti of revocation. Under the circumstances, reasonable minds could not differ over
whether notification occurred within a reasonable time.
Moreover, there is no question that plaintiff failed to comply with its duties after
claiming revocation. MCL 440.2967(5) provides that a lessee who revokes has the same rights
and duties to the goods as if the goods were rejected. MCL 440.2962 delineates the duties of a
lessee upon rejection of goods. Continued use of the goods is not an option. Rather, under MCL
440.2962, a lessee must hold the goods with reasonable care for a reasonable time. If no
instructions are provided by the lessor with respect to the goods within a reasonable time, the
lessee may store the goods, ship them to the lessor, or dispose of them and reimburse the lessor.
Plaintiff failed to hold the 2000 Hummer with reasonable care or otherwise comply with its
duties. Rather, plaintiff continued to use the vehicle for the full term of the lease while the suit
was pending.
We reject plaintiff 's argument that it was entitled to use the vehicle to mitigate damages.
MCL 440.2962 does not permit continued use. In Henderson v Chrysler Corp, 191 Mich App
337, 340-341; 477 NW2d 505 (1991), this Court discussed the differences between a claim for
revocation and a claim for rescission. In doing so, it noted that, when acceptance of a good is
revoked, a buyer may resell the good or continue using it to mitigate damages and cited Fargo
Machine & Tool Co v Kearney & Trecker Corp, 428 F Supp 364, 378 (ED Mich, 1977), in
support of its decision. In Fargo Machine, however, the court was clear that continued use of
goods after revocation is acceptable only in exceptional circumstances, e.g., where the
alternative to continued use was going out of business or where the buyer could not find another
place to live and abandoned use as soon as possible. The court in Fargo Machine did not
unequivocally state that goods may always be used after revocation. We note that in both
Colonial Dodge, Inc v Miller, 420 Mich 452, 460; 362 NW2d 704 (1984), and King, supra at
211, which plaintiff cites, the buyers held the vehicles with reasonable care after revoking
acceptance. They did not continue to use the vehicles. Even if this Court recognizes an
exception for continued use after revocation, the exception applies only in exceptional
circumstances. There were no exceptional circumstances in this case. Plaintiff had at least one
other vehicle at its disposal and could have obtained another leased vehicle to mitigate damages.
Plaintiff failed in its duties under MCL 440.2962. As such, its revocation was not effective.
Because there were no questions of material fact, summary disposition under MCR 2.116(C)(10)
is appropriate.
VIII
Finally, summary disposition was appropriate for the Michigan Consumer Protection Act
(MCPA) claims because there was no question of material fact whether the lease was primarily
for business purposes. The MCPA, MCL 445.901 et seq., does not supply protection where an
item is purchased primarily for business or commercial purposes, rather than personal ones. Zine
v Chrysler Corp, 236 Mich App 261, 273; 600 NW2d 384 (1999); Jackson Co Hog Producers,
Inc v Consumers Power Co, 234 Mich App 72, 84-86; 592 NW2d 112 (1999). See also Slobin v
Henry Ford Health Care, 469 Mich 211, 216-217; 666 NW2d 632 (2003). Notwithstanding
plaintiff 's representations to the contrary, Deskovitz unequivocally agreed at his deposition that
the Hummer was leased primarily for business purposes. The evidence presented to the trial
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court confirmed that the lease, maintenance, and repairs were paid by plaintiff business.
Moreover, the business was listed as the lessee on the lease. We note that Deskovitz initialed a
portion of the lease agreement, indicating that the vehicle was intended for personal, family, or
household uses. His latter deposition testimony, however, negated that those purposes were the
primary purposes for which the vehicle was leased. Thus, there was no genuine issue of material
fact. The MCPA did not apply. Summary disposition for both defendants was therefore proper.
MCR 2.116(C)(10).
IX
Plaintiff additionally challenges the trial court's dismissal of its "lemon law" claim, MCL
257.1401 et seq.
MCL 257.1402 provides:
If a new motor vehicle has any defect or condition that impairs the use or
value of the new motor vehicle to the consumer or which prevents the new motor
vehicle from conforming to the manufacturer's express warranty, the
manufacturer or a new motor vehicle dealer of that type of motor vehicle shall
repair the defect or condition as required under [MCL 257.1403] if the consumer
initially reported the defect or condition to the manufacturer or the new motor
vehicle dealer within 1 of the following time periods, whichever is earlier:
(a) During the term the manufacturer's express warranty is in effect.
(b) Not later than 1 year from the date of delivery of the new motor
vehicle to the original consumer.
MCL 257.1403(1) provides:
If a defect or condition that was reported to the manufacturer or new
motor vehicle dealer pursuant to [MCL 257.1402] continues to exist and the new
motor vehicle has been subjected to a reasonable number of repairs as determined
under [MCL 257.1405], the manufacturer shall within 30 days, do either of the
following as applicable:
(a) If the new motor vehicle was purchased, . . . .
(b) If the new motor vehicle was leased, the consumer has the right to a
refund of the lease price paid by the consumer. The consumer may agree to
accept a comparable replacement vehicle in lieu of a refund for the lease price
paid. If the consumer agrees to accept a replacement vehicle, the lease agreement
shall not be altered except with respect to the identification of the vehicle.
MCL 257.1403(5) provides:
It shall be presumed that a reasonable number of attempts have been
undertaken to repair a defect or condition if 1 of the following occurs:
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(a) The same defect or condition that substantially impairs the use or value
of the new motor vehicle to the consumer has been subject to repair a total of 4 or
more times by the manufacturer or new motor vehicle dealer within 2 years of the
date of the first attempt to repair the defect or condition, and the defect or
condition continues to exist. Any repair performed on the same defect made
pursuant to [MCL 257.1406] shall be included in calculating the number of
repairs under this section. The consumer or his or her representative, before
availing himself or herself of a remedy provided under [MCL 257.1401], and any
time after the third attempt to repair the same defect or condition, shall give
written notification, by return receipt service, to the manufacturer of the need for
repair of the defect or condition in order to allow the manufacturer an opportunity
to cure the defect or condition. The manufacturer shall notify the consumer as
soon as reasonably possible of a reasonably accessible repair facility. After
delivery of the vehicle to the designated repair facility, the manufacturer has 5
business days to repair the defect or condition.
(b) The new motor vehicle is out of service because of repairs for a total of
30 or more days or parts of days during the term of the manufacturer's express
warranty, or within 1 year from the date of delivery to the original consumer,
whichever is earlier. The consumer, or his or her representative, before availing
himself or herself of a remedy provided under [MCL 257.1401], and after the
vehicle has been out of service for at least 25 days in a repair facility, shall give
written notification by return receipt service to the manufacturer of the need for
repair of the defect or condition in order to allow the manufacturer an opportunity
to cure the defect or condition. The manufacturer shall notify the consumer as
soon as reasonably possible of a reasonably accessible repair facility. After
delivery of the vehicle to the designated repair facility, the manufacturer has 5
business days to repair the defect or condition.
If statutory language is unambiguous, it is generally presumed that the Legislature
intended the plainly expressed meaning, and a court must enforce the statute as written. Stanton
v Battle Creek, 466 Mich 611, 615; 647 NW2d 508 (2002). See also American Federation of
State, Co & Municipal Employees v Detroit, 252 Mich App 293, 305; 652 NW2d 240 (2002),
aff 'd 468 Mich 388 (2003).
The primary goal of statutory interpretation is to ascertain and give effect
to the intent of the Legislature. The first step in determining intent is to look to
the specific language of the statute. When statutory language is clear and
unambiguous, judicial interpretation to vary the plain meaning of the statute is
precluded. "Statutory language should be construed reasonably and the purpose
of the statute should be kept in mind." . . . Provisions of a statute are not
construed in isolation, but, rather, in the context of other provisions of the same
statute to give effect to the purpose of the whole enactment. [Alcona Co v
Wolverine Environmental Production, Inc, 233 Mich App 238, 246-247; 590
NW2d 586 (1998) (citations omitted).]
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Statutory terms that are not otherwise defined by a statute must be given their plain and ordinary
meanings. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 18; 651 NW2d 356 (2002).
MCL 257.1403(1) is clear and unambiguous in providing that, if a condition reported
under MCL 257.1402 continues to exist and the motor vehicle was subject to a reasonable
number of repairs as determined by MCL 257.1403(5), a remedy is provided. Plaintiff fails to
recognize that MCL 257.1403(5) is designed to calculate when a motor vehicle has been subject
to a reasonable number of repairs. It is not the provision under which claims are brought or
remedies provided. MCL 257.1403(5) is only part of a whole statutory scheme. In addition to
demonstrating the existence of a reasonable number of repairs under either MCL 257.1403(5)(a)
or (5)(b), there must be a showing that a reported condition under MCL 257.1402 continues to
exist before a remedy may be obtained. MCL 257.1403(1).
The plain language of MCL 257.1402 requires reporting of conditions that impair the use
or value of the vehicle to the consumer or prevent the vehicle from conforming to the express
warranty. MCL 257.1402 does not refer to conditions that "substantially" impair use or value,
but only conditions that impair use or value. Within the first year, Deskovitz, on behalf of
plaintiff, reported numerous defects or conditions, which undisputedly impaired the use or value
of the vehicle, including faulty engine thermostats, shaking at highway speeds, and heating or air
conditioning malfunctions. During this time, plaintiff also reported "wind noise." But the record
does not support a finding that the alleged "wind noise" impaired the use or value of the vehicle.
Plaintiff failed to present any evidence that the vehicle's value was diminished as a result of the
wind noise. Further, the evidence established that a repair was made to eliminate or minimize
the noise, and plaintiff made no further complaint to either AM General or Pfeiffer Infiniti at any
time thereafter. Additionally, it is undisputed that plaintiff continued to use the vehicle
throughout the life of the lease. The wind noise clearly did not impair the use of the vehicle.
There is no question of material fact with respect to whether the wind noise was a condition or
defect reported under MCL 257.1402. It was not.
There was also no question of material fact whether any conditions reported under MCL
257.1402 continued to exist. At his deposition, Deskovitz testified that the wind noise continued
to exist when he turned in the 2000 Hummer at the end of its lease, but he could not recall any
other problems with the vehicle at the time the lease ended. Thus, the only defect or condition
that continued to exist was the "wind noise." As previously noted, however, there was no
evidence that this defect or condition impaired the use or value of the motor vehicle to plaintiff.
MCL 257.1402.
Plaintiff maintains that "the service invoices show that engine defects continued to exist"
after they were reported and numerous repairs were attempted. There was no evidence, however,
that any engine defects or conditions, which were reported pursuant to MCL 257.1402,
continued to exist at either the time the complaint was filed or the time the case was dismissed.
Plaintiff 's cursory, one sentence argument, that actionable "engine defects" continued to exist, is
unsupported by citation to the record or other evidence. Deskovitz testified that he could not
recall any continuing problems other than wind noise at the end of the lease. Further, the service
receipts demonstrated that the specific engine troubles reported within one year of the delivery of
the vehicle were repaired and ceased to exist. Because the evidence did not indicate that any
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engine defect or condition that was reported within one year of delivery under MCL 257.1402,
continued to exist, plaintiff was not entitled to relief under MCL 257.1403(1) for engine defects.
In sum, there were no defects reported under MCL 257.1402 that continued to exist.
Thus, recovery was precluded under MCL 247.1403(1). It is therefore unnecessary to consider
whether a reasonable number of repairs took place as determined under MCL 257.1403(5).
X
Finally, plaintiff argues that the trial court abused its discretion when it failed to allow it
to amend its complaint. Plaintiff never moved to amend its complaint, and, therefore, we cannot
conclude that the trial court abused its discretion. Collucci v Eklund, 240 Mich App 654, 661
n 3; 613 NW2d 402 (2000). Moreover, plaintiff does not identify the nature of any proposed
amendments, thereby precluding a determination whether any amendment would be futile. We
therefore consider the issue abandoned. Caldwell v Chapman, 240 Mich App 124, 132; 610
NW2d 264 (2000).
Affirmed in part and reversed in part. Remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
Borrello, J., concurred.
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
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