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), MCL 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,
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
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 MCL 600.6013(11); MSA 27A.6013(11), and costs and attorney fees under the MCPA, MCL 445.911(2); MSA 19.418(H)(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 plaintiffs 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.
n. 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,
A UCC § 2-608(l)(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 MCL 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, MCL 440.2719; MSA 19.2719, the parties’ agreement in this case contained no such limitation.
2
Therefore, plaintiff did not have to
This issue involves a question of statutory inteipretation, which we review de novo.
Watson v Bureau of State Lottery,
A
majority of courts considering this question have concluded that a seller has no right to cure after a buyer revokes his acceptance under § 2-608(l)(b) of the UCC. E.g.
American Honda Motor Co v Boyd,
475 So 2d 835, 840 (Ala, 1985);
US Roofing, Inc v Credit Alliance Corp,
228 Cal App 3d 1431, 1443-1444; 279 Cal Rptr 533 (1991);
Jensen v Seigel Mobil Homes Group,
We adopt the majority approach to the construction of § 2-608(1) (b). Under the plain language of MCL 440.2608(1)(b); MSA 19.2608(1)(b), a seller has no right to cure a defect that was not discoverable when the buyer accepted the goods. The Legislature explicitly granted the seller a right to cure in MCL 440.2508; MSA 19.2508, and implicitly granted a similar right in MCL 440.2608(1)(a); MSA 19.2608(1)(a) (acceptance with knowledge of a nonconformity that the seller will seasonably cure). The Legislature granted no such right in MCL 440.2608(1)(b); MSA 19.2608(1)(b). We will not read a right to cure into § 2-608(1)(b) where the Legislature granted that very right in other sections, but did not do so here. See
Farrington v Total Petroleum, Inc,
We further conclude that MCL 440.2608(3); MSA 19.2608(3) does not incorporate the seller’s right to cure under MCL 440.2508; MSA 19.2508. Section 2-608(3) grants a buyer who revokes his acceptance “the same rights and duties with regard to the goods involved as if he had rejected them.” Those rights and duties are set forth in provisions such as § 2-602(2)(b) & (c), § 2-603, and § 2-604. MCL 440.2602(2)(b) & (c); MSA 19.2602(2)(b) & (c), MCL 440.2603; MSA 19.2603, MCL 440.2604; MSA 19.2604; see
Colonial Dodge, Inc v Miller,
We certainly recognize that policy reasons do exist for extending a seller’s right to cure to the revocation context. These reasons include the minimization of economic waste, the improvement of uniformity, and the reduction in the costs of bargaining over the existence and scope of the right to cure. See generally Foss,
The seller’s right to cure when the buyer revokes acceptance: Erase the line in the sand,
16 S HI U L J 1 (1991), pp 1-17; Sebert,
Rejection, revocation, and cure under article 2 of the uniform commercial code: Some modest proposals,
84 Northwestern U L R 375 (1990), pp 392-398, 425-428. We wiH not, however, debate the public policy interests at
stake in § 2-608(1) (b).
Ready-Power Co v Dearborn,
A seller’s attempts to repair are not, however, irrelevant to a determination whether a buyer rightfully revoked acceptance under § 2-608(1) (b). The uncertainty inherent in the substantial impairment standard encourages the buyer to allow the seller to repair rather than risk paying damages for wrongful revocation. See MCL 440.2608; MSA 19.2608, Official Comment 4. The seller’s attempts to repair are likewise a factor in determining whether the buyer notified the seller of revocation within a “reasonable time” after discovering the defect.
Id.;
see
Kelynack, supra
at 114;
City Nat’l Bank, supra
at 381. Moreover, the ease of repair may be relevant to the question whether the defect substantially impairs the value of the goods to the buyer. See
Haverlah v Memphis Aviation, Inc,
B. JURY INSTRUCTIONS
In this case, the trial court instructed the jury that defendant Phillips’ efforts to repair the camper could provide it with a defense to plaintiff’s claim for revocation:
[T]his case involves a claim by the buyer for breach of a contract for the sale of goods. A contract for the sale [of] goods is an agreement between a buyer and a seller who, by their words and conduct, show that they intended to make a contract. The buyer has the burden of proving that a contract exists at the time of the purchase, that the seller breached the contract, and that the buyer was damaged by the breach of contract. Now, the seller has the burden of proving the defense of the buyer failed to revoke the contract within a reasonable period if [sic] time; and two, that the seller has made all reasonable and necessary efforts to repair any alleged defects.
Now, also keep in mind that the seller’s good faith efforts do not excuse its failure to have the item repaired and returned to the Plaintiff within a reasonable period of time. So where a — a dealer has limited its obligation under the agreement to repair a particular item, they do not have an unlimited time to make the repairs, but rather must repair within a reasonable time.
All right, now that had to do with revocation. Let me go over it again. The buyer has the burden of proving that the contract exists at the time of purchase, the seller breached the contract, the buyer was damaged by the breach of contract.The seller has the burden of proving the defense that the buyer failed to revoke the contract within a reasonable period of time, and that the seller has made all reasonable and necessary efforts to repair any alleged defects. But again that has to be done within a reasonable period of time.
All right, now the buyer’s revocation of acceptance. A buyer must accept goods from the seller if the goods and the manner, time, and place of their delivery conform to the contract. In this case, the buyer accepted the goods and then revoked the acceptance. The buyer is entitled to revoke acceptance of the goods only if those goods do not conform to the contract and the nonconformity substantially impairs the value of those goods to the buyer and if the buyer notified the seller of the revocation within a reasonable time after the buyer discovered, or should have discovered, the nonconformity and the buyer accepted the goods on the reasonable assumption that the nonconformity would be cured and it was not cured within the time agreed, or the buyer did not discover the nonconformity and the buyer’s acceptance was reasonably induced, either by difficulty of discovery before acceptance or by the seller’s assurances.
Now, the buyer has the burden of proving that he or she gave the seller the required notification. In this case the Defendants admit that they received the required notification. If you determine that the buyer rightfully revoked the acceptance, then the seller has breached the contract. If you determine that the buyer has wrongfully revoked the contract—or excuse me, the acceptance, then the buyer has breached the contract. [Emphasis added.]
We conclude that the trial court erroneously instructed the jury on the applicable law and theories of the parties. Because defendant Phillips conceded that plaintiffs acceptance of the camper was induced by the difficulty of discovery of the nonconformity and that plaintiff gave the required notification, two issues remained for determination by the jury: (1) whether plaintiff revoked her acceptance within a reasonable time, and (2) whether the nonconformity substantially impaired the value of the camper to plaintiff. Plaintiff bore the burden of proof regarding both these issues. MCL 440.2607(4); MSA 19.2607(4), MCL 440.1201(8); MSA 19.1201(8); see
Colonial Dodge, supra
at 458;
Birkner v Purdon,
m. mcpa
We reject plaintiff’s contention that the trial court erred in granting defendant NBD’s motion for a directed verdict on plaintiff’s claim against it under the mcpa. In reviewing the trial court’s decision on a motion for a directed verdict, we view the evidence in a light most favorable to the nonmoving party to determine whether a factual question exists.
Oakland Hills Development Corp v Lenders Drainage Dist,
In this case, the uncontroverted evidence established that plaintiff, without prompting from defendant NBD, continued to make scheduled payments after she revoked her acceptance. In count X of her complaint, plaintiff alleged that defendant NBD violated the mcpa by (1) failing to reveal to her that she did not have to continue making payments under the financing agreement after revoking her acceptance, (2) not informing her that it would expect payment even if she initiated an action against defendant Phillips, and (3) failing to reveal that it would not honor the contractual provision that subjected
Plaintiff now argues that defendant NBD is liable for defendant Phillips’ violation of the MCPA because, as the holder of the retail installment contract, it was subject to
all
plaintiff’s claims and defenses arising out of the underlying transaction. See
Jerry v Second Nat’l Bank of Saginaw,
Plaintiff next claims that the trial court abused its discretion in declining her request for injunctive relief against defendant Phillips under the MCPA because she failed to demonstrate irreparable harm. Again, we disagree. This Court reviews a trial court’s decision whether to grant injunctive relief for an abuse of discretion.
Schadewald v Brule,
The trial court did not abuse its discretion in declining to grant injunctive relief. The MCPA authorizes an action to “[ejnjoin in accordance with the principles of equity a person who is engaging in or is about to engage in a method, act, or practice which is unlawful under [the MCPA].” MCL 445.911(l)(b); MSA 19.418(H)(1)(b). Injunctive relief, however, is an extraordinary remedy that courts normally grant only when “(1) justice requires it, (2) there is no adequate remedy at law, and (3) there exists a real and imminent danger of irreparable injury.”
ETT Ambulance Service Corp v Rockford Ambulance, Inc,
204 Mich
App 392, 400;
IV. CONVERSION
We reject plaintiffs argument that the trial court erred in granting defendants’ motions for directed verdicts on her claims for conversion. Contrary to plaintiff’s assertion, defendants’ refusal to grant plaintiff a refund after she revoked her acceptance does not support claims for conversion. The tort of conversion is “any distinct act of domain wrongfully exerted over another’s personal property in denial of or inconsistent with the rights therein.”
Foremost Ins Co v Allstate Ins Co,
V. ATTORNEY FEES
We reject defendant Phillips’ contention in its cross appeal that the trial court abused its discretion in awarding plaintiff attorney fees under the mcpa because its violation of the act resulted from bona fide error. A person who suffers a loss as a result of a violation of the MCPA may generally recover the greater of actual damages or $250, along with a reasonable attorney fee. MCL 445.911(2); MSA 19.418(H)(2). The plaintiff’s recovery, however, is limited to actual damages if “the defendant shows by a preponderance of the evidence that a violation of
th[e] act resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid the error.” MCL 445.911(6); MSA 19.418(H)(6). In this case, the uncontroverted evidence established that defendant Phillips sold the camper to plaintiff before correcting a known vin discrepancy. Further, Phillips had previously experienced similar problems with other campers. The record does not reflect that Phillips maintained a procedure to avoid the sale of campers with unresolved vin discrepancies. Accordingly, the trial court properly awarded plaintiff an attorney fee in this case. See
Temborious v Slatkin,
We likewise reject plaintiffs initial contention that the trial court erred in failing to hold an evidentiary hearing regarding the reasonableness of her fee request. The trial court should normally hold an evidentiary hearing when the opposing party challenges the reasonableness of a fee request.
B & B Investment Group v Gitler,
Plaintiff next claims that the trial court abused its discretion in awarding her only $2,500 of her requested $23,987 attorney fee. We review a trial court’s finding regarding a reasonable fee for an abuse of discretion.
Jordan v Transnational Motors,
Inc,
(1) the professional standing and experience of the attorney; (2) the skill, time and labor involved; (3) the amount in question and the results achieved; (4) the difficulty of the case; (5) the expense incurred; and (6) the nature and length of the professional relationship with the client.
The court, however, is not limited to considering the
Crawley
factors and may adjust an attorney’s fee in light of the results of the proceedings.
Smolen, supra
at 296;
Schellenberg v Rochester Michigan Lodge No 2225,
The trial court determined that, although plaintiff’s attorney’s requested hourly rate for services rendered was reasonable, it would not grant plaintiff’s request in its entirety because she prevailed on only one of twelve counts asserted in her complaint. The trial court explained:
In good conscience, it would be difficult for this Court, that if it felt the attorney fees were in the ballpark of twenty-three to twenty-four thousand dollars, to award that entire amount. The revocation claim simply was not prevailed upon. Therewere other counts that were either dismissed ahead of time by the Court or the jury didn’t find were applicable, so when all is said and done, it could be argued that there was a very limited return by this jury, although they did find it to be a violation of the Consumer Protection Act.
In light of our decision to grant a new trial on plaintiff’s claim for revocation, we remand for reconsideration of the award of attorney fees under the mcpa on disposition of plaintiff’s remaining claim. On remand, the trial court shall also consider plaintiff’s request for attorney fees incurred on appeal. See
Smolen, supra
at 298; cf.
Bloemsma v Auto Club Ins Ass’n (After Remand),
VI. REMAINING issues
Plaintiff asserts that the trial court erred in denying her motion for judgment notwithstanding the verdict on the ground that the defects in the camper and the discrepancy in vin substantially impaired its value to her. We disagree. In reviewing the trial court’s decision on a motion for JNOV, we view the evidence in a light most favorable to the nonmoving party to determine whether reasonable jurors could reach different conclusions.
Zander v Ogihara Corp,
We conclude that the trial court properly denied plaintiff’s motion. Because plaintiff premised her motion below solely on the vin issue, we will not consider her additional grounds for jnov first raised on appeal. Schellenberg, supra at 49; Phinney, supra at 544. Regarding her vin argument, plaintiff has provided no legal support for her contention that the dis crepancy in the vin either rendered the conveyance void or substantially impaired the value of the camper to her as a matter of law. This Court will not search for authority to sustain or reject a party’s position. Schellenberg, supra at 49. Plaintiff has effectively abandoned this issue by failing to cite any supporting legal authority. Id.
Finally, in light of our decision to grant a new trial on plaintiff’s claim for revocation, plaintiff’s argument that the trial court improperly questioned one of her witnesses is rendered moot. Further, we decline to consider both plaintiff’s claim that the trial court erred in declining to award her enhanced interest under MCL 600.6013(11); MSA 27A.6013(11), and defendant Phillips’ contention in its cross appeal that the trial court erred in denying its motion for sanctions against plaintiff under MCR 2.405. The trial court shall reconsider those questions on disposition of plaintiff’s remaining claim. We express no opinion regarding the merit of the requests.
Affirmed in part, vacated in part, and remanded. We do not retain jurisdiction. Plaintiff, as the prevailing party on appeal, may tax costs pursuant to MCR 7.219.
Notes
The sticker attached to the camper states that the vin is 1RKTC2600M1000135, whereas the certificate of origin, title, and temporary registration list the vin as 1RKTC3600M1000135.
The contract provided:
It is expressly agreed that there are no warranties, express or implied, made by the selling dealer or the manufacturer on the motor vehicle, chassis or parts furnished hereunder except, in the case of a new motor vehicle the warranty expressly given to the purchaser upon the delivery of such motor vehicle or chassis.
The manufacturer’s warranty limited the remedy to repair and replacement. The sales agreement did not similarly limit plaintiff’s remedies against defendant Phillips.
Michigan courts have held that a plaintiff may maintain an action for conversion where the defendant cashes a check as the plaintiff’s agent or bailor and retains an amount to which he was not entitled.
Hogue v Wells,