                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                             No. 08-16103                ELEVENTH CIRCUIT
                                                             APRIL 10, 2009
                       ________________________
                                                          THOMAS K. KAHN
                                                                CLERK
                  D. C. Docket No. 06-01728-CV-TCB-1

CAR TRANSPORTATION BROKERAGE COMPANY, INC.,

                                                           Plaintiff-Appellant,

                                  versus

BLUE BIRD BODY COMPANY,

                                                                   Defendant,

JOHN BLEAKLEY R.V. CENTER, INC.,
d.b.a. John Bleakley Motor Homes,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (April 10, 2009)

Before EDMONDSON, Chief Judge, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:

      CAR Transportation Brokerage Company (hereinafter the “Buyer”) appeals

the district court’s grant of summary judgment on its revocation of acceptance

claim brought under O.C.G.A. § 11-2-608(1)(b). At issue is whether the district

court properly granted summary judgment on this claim where the Buyer of a

defective motor coach provided the seller with only one opportunity to cure the

defects in the coach prior to revoking acceptance.

                               I. BACKGROUND

      The relevant facts of this case, as supported by the evidence construed in the

light most favorable to the non-moving party, are as follows:

      On December 31, 2004, the Buyer, a company located in Springdale,

Arkansas, purchased a 2005 Blue Bird Wanderlodge LXi motor coach (the

“Coach”) from John Bleakley R.V. of Douglasville, Georgia (the “Seller”) for

$650,000. One month prior to this sale, the Seller had discovered that the Coach’s

electrical system was “going haywire” and had returned the Coach to the

manufacturer for repairs. After the manufacturer returned the Coach, the Seller did

not confirm that the problem had been solved. The Seller did not tell the Buyer

about the prior repair work performed on the Coach.

      Because the Buyer did not arrive on the lot until almost five p.m. on



                                          2
December 31st and the Buyer was already familiar with vehicles like the Coach, the

Seller did not perform its customary pre-delivery inspection and customer product

orientation prior to delivering possession to the Buyer. The Seller, however,

represented that the Coach was new and in working condition. The parties

executed a purchase agreement, in which the Seller disclaimed all warranties,

including any warranty for merchantability or for fitness for a particular purpose.

The manufacturer provided a limited warranty, which the Seller gave to the Buyer

pursuant to the purchase agreement. This warranty limited the manufacturer’s

obligation to the repair or replacement of parts which, under normal use and

service, were defective in workmanship or material.

      On the day of the purchase, as the Buyer was driving back to Arkansas from

Douglasville, Georgia, it noted that the Coach’s low-beam headlights were not

working and that the step-cover had come out. It returned the Coach to the Seller

the next morning for repairs. The Seller’s service technicians found and repaired

several electrical issues on the Coach. On January 5th , the Buyer, accompanied by

the Seller’s service technician, drove the Coach approximately thirty-five miles

without incident. During this drive, the Seller’s service technician told the Buyer

that he had no experience repairing this particular model of motor coach. The

Buyer then re-took possession of the Coach and returned home to Arkansas.



                                          3
      Over the next two months, however, the Coach had several other problems,

including other issues with its electrical system. Because the Seller’s service

technician had told the Buyer that he was unfamiliar with this model of motor

coach, the Buyer decided to take the Coach to the manufacturer for repairs, instead

of returning it to the Seller. The manufacturer returned the Coach to the Buyer on

February 18, without having completely repaired the electrical system. The

manufacturer told the Buyer that a “circuit board” was required to fix the defect

and assured the Buyer that the required part would be ordered, but the Buyer heard

nothing more from the manufacturer regarding this potential fix.

      On March 22, 2005, the Buyer’s attorney wrote a letter to the Seller

purporting to revoke acceptance of the Coach because “the vehicle has failed to

perform in the manner required for a motor coach and thus is not merchantable.”

The Seller did not respond to the revocation letter.

      The parties do not dispute that, as early as March 2005, the manufacturer

was aware that the inverters of the 450 LXi coach were defective and would cause

random operation of the coach’s electrical components, such as was seen in the

Coach. On November 30, 2005, the manufacturer discovered an inverter that

would resolve the LXi coach’s defect, but it did not notify its dealers of either the

defect or the solution until March 10, 2006.



                                           4
       On July 24, 2006, the Buyer brought suit against the Seller1 asserting claims

for fraud, negligent misrepresentation, revocation of acceptance under O.C.G.A.

§ 11-2-608(1)(b), breach of implied warranty of merchantability, and violations of

the Georgia Fair Business Practices Act. After discovery, the Seller moved for

summary judgment on all of the claims and the Buyer moved for summary

judgment on the issue of revocation.

       The district court granted the Seller’s motion and denied the Buyer’s motion.

The district court found, inter alia, that the Buyer was not entitled to revoke its

acceptance of the Coach because the “limited opportunity to cure” provided by the

Buyer was insufficient to satisfy “the Georgia law that before a buyer may bring a

revocation claim, it must give the seller an opportunity to cure all known defects.”

The Buyer appeals, challenging only the grant of summary judgment on its

revocation of acceptance claim. The Buyer asserts that the district court erred in

finding that it was required by statute O.C.G.A. § 11-2-608(1)(b) to provide the

Seller with an opportunity to cure prior to revoking. In the alternative, the Buyer

argues that if it was obliged to give the Seller an opportunity to repair, there is at

least a jury question as to whether the Buyer satisfied this requirement.



       1
         The Buyer also named the manufacturer, Blue Bird Company, as a defendant in the
original complaint. On August 28, 2006, however, the parties agreed to dismiss Blue Bird as a
defendant.

                                               5
      The Seller responds that although O.C.G.A. § 11-2-608 does not require an

opportunity to cure in all situations, the district court properly found that the Buyer

was required to provide the Seller with an opportunity to cure in this case and that

the Buyer failed to satisfy this requirement. The Seller also asserts that, even if the

court erred by requiring an opportunity for repair, the district court could have

granted summary judgment on the alternate ground that the Buyer performed acts

after the alleged revocation which were inconsistent with the Seller’s ownership of

the Coach.

                          II. STANDARD OF REVIEW

      We review a district court’s rulings on summary judgment de novo. Mega

Life and Health Ins. Co. v. Pieniozek, 516 F.3d 985, 989 (11th Cir. 2008).

“Summary judgment is appropriate when the evidence, viewed in the light most

favorable to the nonmoving party, presents no genuine issue of material fact and

compels judgment as a matter of law.” Id.; Fed. R. Civ. P. 56(c).

      An issue is genuine and material for purposes of summary judgment if the

evidence before the court presents a sufficient disagreement to require submission

to a jury and is not so one-sided that a party must prevail as a matter of law. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). A “court may

grant summary judgment . . . against a party who fails to make a showing sufficient



                                           6
to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). A primary purpose of summary judgment is to isolate and

eliminate factually unsupported claims or defenses. See id. at 323-24. As the

Supreme Court has emphasized, “[s]ummary judgment procedure is properly

regarded not as a disfavored procedural shortcut, but rather as an integral part of

the Federal Rules as a whole, which are designed ‘to secure the just, speedy and

inexpensive determination of every action.’” Id. at 327 (quoting Fed. R. Civ. P. 1).

                                 III. DISCUSSION

A.    Opportunity to Cure

      This case hinges on whether the district court erred in finding that, under

Georgia law and the facts of this case, the Buyer was required to provide the Seller

with an opportunity to seasonably cure the defects in the Coach prior to revoking

its acceptance. The statute governing revocation, which is within Georgia’s

version of the Uniform Commercial Code (“UCC”), 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.

                                            7
      (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.

O.C.G.A. § 11-2-608 (emphasis added). On appeal, the Buyer asserts that because

it accepted the Coach without discovery of its nonconformity and the

nonconformity was not apparent, its revocation claim arose under § 11-2-

608(1)(b), not subsection (1)(a), and it was therefore not required to provide the

Seller with an opportunity to cure prior to revoking.

      On its face, the plain language of O.C.G.A. § 11-2-608 requires a pre-

revocation opportunity to cure only where a buyer knew about the nonconformity

prior to acceptance and reasonably assumed that the nonconformity would be

cured. Courts in a majority of jurisdictions, therefore, take the position that a seller

has no right to cure nonconformities prior to revocation under UCC § 2-608(1)(b),

that is, where the goods are accepted by the buyer without knowledge that it fails to

conform to the sales contract. See, e.g., Preston Motor Co v Palomares, 650 P.2d

1227, 1231 (Ariz. 1982); Werner v. Montana, 378 A.2d 1130, 1136-37 (N.H.

1977); American Honda Motor Co., Inc. v. Boyd, 475 So. 2d 835, 839-40 (Ala.

1985) (holding that where buyer purchased a car, believing it to be new, and in fact



                                            8
the car was previously damaged and repaired, and buyer did not discover this until

after it had accepted car, the case fell under UCC § 2-608(1)(b), and therefore,

there was no right to cure); U.S. Roofing, Inc. v. Credit Alliance Corp., 279 Cal.

Rptr. 533, 540 (Cal. App. 3d Dist. 1991) (categorically stating that “[we] believe

that the right to cure under [UCC § 2-508] does not apply to situations where the

buyer seeks to revoke his acceptance under [UCC § 2-608]”); Jensen v. Seigel

Mobile Homes Group, 668 P.2d 65, 69-70 (Idaho 1983) (holding that right to cure

is relevant only when there has been a rejection of goods; following acceptance

there is no right to cure, citing authorities for the proposition that cure is not

available following the buyer’s acceptance of goods); Head v. Phillips Camper

Sales & Rental, Inc., 593 N.W.2d 595, 600 (Mich. App. 1999) (adopting majority

view that “a seller has no right to cure a defect that was not discoverable when the

buyer accepted the goods”); Bowen v. Foust, 925 S.W.2d 211, 215 n.6 (Mo. Ct.

App. S.D. 1996) (noting that this remains the majority view, although the more

recent cases allow opportunity to cure more willingly following an acceptance).

Accordingly, where a buyer’s acceptance is as described in UCC § 2-608(1)(b), the

majority rule is that he may revoke the acceptance without waiting for a cure,

seasonable or otherwise, by the seller.

       A minority of state courts, however, interpret UCC § 2-608 as imposing



                                            9
upon the buyer a duty to provide notice and an opportunity to cure in all cases of

revocation. These courts point to UCC § 2-608(3) which provides that a purchaser

revoking his acceptance “has the same rights and duties with regard to the goods

involved as if he had rejected them,” and note that a seller has a general right to

cure nonconformities in rejected goods under UCC § 2-508.2 By analogy, then,

they hold that a similar duty to provide notice and opportunity to cure exists in the

context of revocation. See, e.g., Conte v Dwan Lincoln-Mercury Inc., 374 A.2d

144, 149 (Conn. 1976); David Tunick, Inc. v. Kornfeld, 838 F. Supp. 848, 850

(S.D. N.Y. 1993) (explaining that, through UCC § 2-608(3), the UCC § 2-508(2)’s

requirement that a buyer provide notice and opportunity to cure nonconforming

goods is generally applicable in the case of a revocation of acceptance); Tucker v.

Aqua Yacht Harbor Corp., 749 F. Supp. 142, 145 (N.D. Miss. 1990) (“Although a

seller seems to have the right to cure only when the buyer rejects goods, the

Mississippi Supreme Court, by analogy to § 75-2-508 and as a matter of public

policy, has determined that before a buyer may revoke acceptance under

§ 75-2-608, the seller must be afforded a reasonable opportunity to cure.”). In

these jurisdictions, revocation is only appropriate after the seller has been afforded


       2
         UCC § 2-508 describes the procedure a buyer must follow to reject nonconforming
goods prior to acceptance. Under this section, a seller is entitled to attempt to cure any
nonconformity in the rejected goods within the contract time if the time for performance has not
yet expired.

                                               10
a reasonable opportunity to cure, regardless of whether the buyer accepted the

goods with or without knowledge of the nonconformity.

      Georgia courts have not addressed the issue; therefore, it is not clear that the

district court – which appears to have adopted the minority view – erred. We need

not decide this issue, however, because, as described more fully below, the Buyer

invited the alleged error or waived its right to raise the issue on appeal.

B.    Invited Error

      “It is a cardinal rule of appellate review that a party may not challenge [an

error] invited by that party.” Birmingham Steel Corp. v. Tenn. Valley Auth., 353

F.3d 1331, 1341 n.5 (11th Cir. 2003) (quoting Ford ex rel. Estate of Ford v. Garcia,

289 F.3d 1283, 1293-94 (11th Cir. 2002)). “Having induced the court to rely on a

particular erroneous proposition of law or fact, a party in the normal case may not

at a later stage of the case use the error to set aside the immediate consequences of

the error.” In re Carbon Dioxide Industry Antitrust Litigation, 229 F.3d 1321,

1326 (11th Cir. 2000) (citing Charter Co. v. U.S., 971 F.2d 1576, 1582 (11th Cir.

1992)); cf. Associated Indem. Corp. v. Scott, 103 F.2d 203, 209 (5th Cir. 1939)

(holding that where the case below was tried “upon a misapprehension of [the]

effect of the facts in law, appellant may not be prevented from pressing [on appeal]

for the application, to the proven facts, of the correct principles of law[, e]specially



                                           11
. . . where, as here, these principles seem to have undergone a change, or at least, to

have been differently stated and applied since the trial of the case below”).

      In this case, the Buyer stated in its motion for summary judgment that the

Seller was entitled to an opportunity to repair prior to revocation under O.C.G.A.

§ 11-2-608(1)(b), but argued that it had satisfied this requirement. Specifically, the

Buyer claimed that the Seller “made multiple failed attempts to cure, thus

satisfying the statutory requirement that a seller be allowed to attempt to cure.”

(emphasis added). Then, in reply to the Seller’s responsive argument that a

revocation claim required evidence of a “refusal to remedy within a reasonable

time, or lack of success in the attempts to remedy,” the Buyer restated its position

that it had satisfied the “statutory requirement that a seller be allowed to attempt to

cure” because the Seller made “several attempts to cure the very serious electrical

defects in the Motor Coach before revocation, but it failed to do so.” Furthermore,

although the Seller argued in its motion that summary judgment on the Buyer’s

revocation claim was appropriate because the Buyer did not give it “either notice

or opportunity to address the new issues that arose” after the initial repairs, the

Buyer did not assert in response that an opportunity to cure was not required. The

district court, in making its decision, adopted without discussion the Buyer’s

assertion that a reasonable opportunity to cure was a prerequisite for revocation. It



                                           12
disagreed, however, with the Buyer’s claim that it had satisfied this requirement

and, therefore, granted summary judgment to the Seller on this ground.

      Now, on appeal, the Buyer claims for the first time that the district court

erred when it “read into the statute that notice and opportunity to cure must be

given prior to notice of revocation[; s]uch a requirement does not exist in the plain

language of the statute.” Because the Buyer itself stated that its revocation claim

required proof that the Seller had been given a reasonable opportunity to cure, it

invited the district court to make this error – if error it be – and may not now assert

that the district court incorrectly interpreted the law. See Maiz v. Virani, 253 F.3d

641, 677 (11th Cir. 2001).

      Even if the Buyer had not invited the alleged error, this court will not, as a

general rule, consider issues presented in the first instance on appeal in civil

actions. See, e.g., BUC Int’l Corp. v. Int’l Yacht Council Ltd., 489 F.3d 1129,

1140 (11th Cir. 2007). The Buyer failed to raise its current argument either in its

own motion for summary judgment or in response to the Seller’s assertion that

revocation was foreclosed by the Buyer’s failure to provide “notice or opportunity

to address the new issues that arose” after the initial repairs. Admittedly, the rule

foreclosing review of issues not presented below is not jurisdictional and may be

abrogated in certain exceptional circumstances. See Access Now, Inc. v.



                                           13
Southwest Airlines, Co., 385 F.3d 1324, 1332 (11th Cir. 2004) (explaining that this

court has permitted issues to be raised for the first time on appeal under only five

unusual circumstances). In its brief on appeal, however, the Buyer not only fails to

acknowledge its lack of objection in the district court to the law applied, but it also

fails to argue for the application of one of the exceptions to our rule regarding a

party’s waiver of an issue raised for the first time on appeal. Id. Consequently, we

must conclude that the Buyer is precluded in this case from arguing that it was not

required to provide the Seller with an opportunity to seasonably cure prior to

revocation. We therefore turn to the question of whether the opportunity to cure

provided by the Buyer was, as a matter of law, insufficient.

C.    Sufficiency of the Opportunity to Cure

      The Buyer argues that if it was required to provide the Seller with an

opportunity to seasonably cure prior to revocation, there is at least a triable issue of

fact as to whether it satisfied this requirement. It further asserts that even if it had

returned the Coach to the Seller after the initial repairs, any further attempts at

repair would have been futile because the “cure” for the electrical defect was not

discovered by the manufacturer until November 2005 (nearly eight months after

revocation). Accordingly, the Buyer asserts that it should be excused from the

requirement of providing the Seller with another opportunity to cure because the



                                            14
statute should not be construed so as “to require [it] to do a futile and useless

thing.” BDI Distrib., Inc. v. Beaver Computer Corp., 501 S.E.2d 839, 841 (Ga. Ct.

App. 1998).

      We disagree. Although the statutory opportunity to “seasonably cure” does

not entitle a seller to unlimited attempts to cure a defect, it does require a buyer to

provide a seller with a reasonable time in which to attempt to make repairs.

O.C.G.A. § 11-1-204(3) (explaining that an action is taken “seasonably” when it is

taken “at or within a reasonable time”). What constitutes a reasonable time in

which to cure depends on the nature, purpose, and circumstances of a particular

case. O.C.G.A. § 11-1-204(2). See also Wal-Mart Stores, Inc. v. Wheeler, 586

S.E.2d 83, 85 (Ga. Ct. App. 2003). In this case, the evidence taken in the light

most favorable to the Buyer shows that the Buyer gave the Seller one opportunity

to cure after the defect in the electrical system first became apparent. After these

initial repairs, the Buyer did not inform the Seller when the Coach continued to

have additional problems; rather, it returned the Coach to the manufacturer for

repairs. Nearly three months after acceptance, after the manufacturer also had

made one failed attempt to correct the defect, the Buyer informed the Seller that it

was revoking its acceptance of the Coach. Based upon this undisputed evidence,

we agree with the district court that, as a matter of law, the Buyer provided the



                                           15
Seller with an insufficient opportunity to cure. Providing only one opportunity to

repair – before the extent of the defect was truly apparent – is not reasonable,

especially where the product in question is as complicated as a motor coach. See

e.g., Fedrick v. Mercedes-Benz, 366 F. Supp. 2d 1190, 1199 (N.D. Ga. 2005)

(holding, in the context of a claim for breach of warranty, that no reasonable juror

could conclude that a dealership acted unreasonably where it took the dealership

six attempts over six months to successfully repair the defects within the vehicle);

see also McDonald v. Mazda Motors of Am., Inc., 603 S.E.2d 456, 460 (Ga. Ct.

App. 2004) (“When the purchaser returns the product to the dealer and makes the

product available for repair, refusal to repair, unsuccessful repair, or repeated

failures of the repair constitute a breach of the express warranty.”).3 At the least,

the Seller was entitled to notice of the additional problems and an opportunity to

attempt to repair them at some time during the three months prior to the Buyer’s

purported revocation. The Buyer’s failure to provide this notice and opportunity

bars the revocation claim as a matter of law.

       The Buyer’s argument that it was excused from providing the Seller with an

opportunity to cure because attempts to repair would have been futile is not


       3
         A buyer must also provide a seller with a “reasonable amount of time” to repair prior to
bringing a claim for breach of warranty. See UCC §§ 2-605, 2-607(3)(a). We look to Georgia
cases addressing breach of warranty claims, therefore, as instructive in determining what
generally constitutes a “reasonable” opportunity to cure in this revocation case.

                                               16
supported by the evidence. Certainly, we should not read an “opportunity to cure”

requirement so as to “require[] a party to whistle in the wind,” BDI Distrib., Inc.,

501 S.E.2d at 841, but, in this case, there is no evidence that the Buyer knew prior

to revocation that the Seller would have been unable to repair the Coach.4 As such,

the Buyer’s failure to provide the Seller with another opportunity to cure was not,

and could not have been, based on the perceived futility of providing such an

opportunity.

                                    IV. CONCLUSION

       We conclude that, under the limited circumstances of this case, the Buyer is

barred by the doctrine of invited error from denying that it was required to provide

the Seller with an opportunity to seasonably cure any nonconformities in the Coach

prior to revocation. Because we agree with the district court that the one

opportunity the Buyer provided was insufficient to satisfy this requirement, we

AFFIRM the grant of summary judgment in this case.5




       4
         To the extent the Buyer argues that it relied upon the service technician’s statement that
he had no experience repairing this model of motor coach in deciding to return the Coach to the
manufacturer rather than the Seller, we note that there is no evidence establishing that this
service technician was authorized to make such statements on behalf of the Seller.
       5
        Accordingly, we do not address the Seller’s arguments that summary judgment could
have been granted on alternate grounds.

                                                17
