MARK LIEBERMAN V FLEETWOOD MOTOR HOMES OF INDIANA
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STATE OF MICHIGAN
COURT OF APPEALS
MARK LIEBERMAN,
UNPUBLISHED
February 24, 2009
Plaintiff-Appellant,
v
FLEETWOOD MOTOR HOMES OF INDIANA
and SPARTAN MOTOR CHASSIS, INC.,
No. 280692
Eaton Circuit Court
LC No. 06-000539-CP
Defendants-Appellees.
Before: Talbot, P.J., and Bandstra and Gleicher, JJ.
PER CURIAM.
In this action involving a motor home manufactured by defendants, plaintiff appeals as of
right a circuit court order granting defendants’ motions for summary disposition pursuant to
MCR 2.116(C)(10). We affirm, and decide this appeal without oral argument pursuant to MCR
7.214(E).
I. Factual History
Plaintiff’s company, Nostalgic Motoring, purchased the subject motor vehicle for
$166,000 on June 27, 2005, and took delivery on that date. Fleetwood Motor Homes of Indiana
manufactured the motor home portion of the vehicle, and Spartan Motor Chassis, Inc.
manufactured the vehicle’s chassis. On July 12, 2005, August 24, 2005 and September 12, 2005,
plaintiff took the motor home to a dealer for various repairs to the coach. On November 15,
2005, plaintiff took the vehicle to Fleetwood’s factory for additional repairs. In January 2006,
Fleetwood notified plaintiff’s attorney that it had completed the additional repairs. However,
plaintiff declined to pick up the vehicle, and filed this action, which the circuit court summarily
dismissed.
II. Standard of Review
Summary disposition may be granted under MCR 2.116(C)(10) when “there is no
genuine issue of material fact, and the moving party is entitled to judgment . . . as a matter of
law.” This Court reviews de novo a circuit court’s decision on a motion for summary
disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). This Court reviews
for an abuse of discretion circuit court rulings concerning discovery. VanVorous v Burmeister,
262 Mich App 467, 476; 687 NW2d 132 (2004).
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III. Analysis
Plaintiff contends that the circuit court erred in concluding that the vehicle’s “repair
history” qualified as reasonable. Plaintiff’s suggestion that the time spent making repairs was
unreasonable focuses on the time he asserts that the vehicle spent inadequately repaired, i.e.,
from delivery in July 2005 through at least January or February 2006, or alternatively, the
aggregate time that the vehicle remained at a repair facility.
This Court addressed the unreasonableness of the time taken for repairs as a basis for
recovery in Computer Network, Inc v AM Gen Corp, 265 Mich App 309, 314; 696 NW2d 49
(2005). In Computer Network, this Court recognized that “where a limited express warranty[1]
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.” Id.
However, the Court explained,
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. 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. [Id. at 315 (citation omitted).]
In this case, plaintiff identified a host of complaints each time that he presented the
vehicle for servicing. With few exceptions, the complaints differed on each occasion he
presented the vehicle for repair. As in Computer Network, plaintiff contends that the aggregate
number of days for repair should be considered, but he fails to show that the time for the
individual repairs was in any way unreasonable. Moreover, plaintiff refers to the periods that the
vehicle remained with the dealer, but he does not indicate whether he retrieved the vehicle
promptly after the repairs were effectuated. For example, with respect to the August 24, 2005
repair, plaintiff indicates that the dealer “had the vehicle for several weeks,” but the order states
that the service was completed on the same day. In summary, plaintiff has failed to present
evidence establishing a genuine issue of material fact concerning whether the manufacturers’
warranties failed of their essential purpose.
Plaintiff briefly addresses his claims under the Magnuson-Moss Warranty Act, 15 USC
2301 et seq., and the Michigan Consumer Protection Act, MCL 445.901 et seq. However, he
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Fleetwood disputes whether its warranty is properly characterized as a limited express
warranty. We assume without deciding that plaintiff has correctly characterized the applicable
warranty as limited and express.
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recognizes that his claims under these statutes are derivative of his warranty claims. Because we
have affirmed the circuit court’s dismissal of plaintiff’s warranty claims, no basis exists for
granting relief with respect to these derivative claims.
Plaintiff also contends that the circuit court erred in failing to order Spartan to comply
with discovery. He asserts that Spartan failed to adequately answer an interrogatory about
service, maintenance, or repairs performed by Spartan, and did not produce any documentation
of repairs. Plaintiff complains that he raised the issue at a motion to compel and in response to
defendants’ motions for summary disposition, but the court “simply refused to rule,” which was
an abdication and abuse of its discretion.
The record does not support plaintiff’s argument. The record reflects that the parties
resolved the discovery issue off the record. Furthermore, the court did not abuse its discretion by
failing to issue an order to compel Spartan to produce documents that counsel represented did
not exist, and which in any event related to a claimed defect that had been resolved. VanVorous,
supra at 476.
Affirmed.
/s/ Michael J. Talbot
/s/ Richard A. Bandstra
/s/ Elizabeth L. Gleicher
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