                                                                           FILED
                 IN THE COURT OF APPEALS OF TENNESSEE April 15, 1999
                                                                      Cecil Crowson, Jr.
                                                                      Appellate C ourt
                                    AT KNOXVILLE                          Clerk




FAYE L. O’BRYANT                            )        KNOX CIRCUIT
                                            )
      Plaintiff/Appellant                            )    NO. 03A01-9810-CV-00325
                                            )
v.                                          )        HON. DALE WORKMAN
                                            )        JUDGE
REEDER CHEVROLET                            )
COMPANY, INC., d/b/a/                       )
CHEVROLET-GEO COMPANY,                      )
                                            )
      Defendants/Appellees                  )        REVERSED and REMANDED




J. Myers Morton and George W. Morton, Jr., Knoxville, for Appellant.
James A. McIntosh, Knoxville, for Appellees.

                                      OPINION

                                                     INMAN, Senior Judge

                                                I

      A jury returned a verdict for the defendant in this action seeking rescission

of the purchase of an automobile for alleged violations of the Tennessee

Commercial Code and the Consumer Protection Act.

                                                II

      The plaintiff purchased a Cavalier Chevrolet from the defendant which was

defective. The manufacturer reacquired the vehicle in a settlement which required

the defendant to furnish the plaintiff with a replacement Cavalier.

      After taking possession of the second Cavalier,1 she discovered a document

in the glove compartment which indicated that the Cavalier had been repaired.


      1
          Which the defendant acquired from a Kentucky dealer.
Thereupon she examined it and discovered a dent on the door that had been

repaired and repainted.

       She returned the Cavalier to the defendant dealership twelve days later, but

continued to make monthly payments of $275.72 to the financing bank.2 The

complaint was filed August 11, 1997, alleging that the Cavalier had been wrecked

and repaired, and that she had rejected it. Alternatively, she alleged that she

revoked her acceptance of the vehicle, pursuant to T.C.A. § 47-2-601, 608. She

further alleged that the defendant violated the Tennessee Consumer protection Act,

T.C.A. § 47-18-101, et seq. by failing to disclose that the Cavalier had been

“wrecked and repaired.”

       The jury was impanelled and allowed to inspect the vehicle shortly before

trial began. During the interim between the return of the vehicle and the trial, the

defendant had sanded and buffed the painted portion of the door, and applied coats

of a rubbing compound known as eurothane.

       It is fair to observe that the damage consisted of a “ding” as that word has

come into street usage, the cost of the repair of which was slightly more than

$200.00.     Various witnesses testified on either side, that the repairs were

essentially sloppy, or were entirely satisfactory. 3 The plaintiff vigorously insisted

that she wanted a “perfect car;” the defendant just as vigorously protested that the

small dent was de minimis, had nevertheless been satisfactorily repaired, and that

the plaintiff was unreasonable in her demands.




       2
        As of the date of trial she had paid $4,100.00 on the promissory note. The vehicle
“languished” at the dealership.
       3
       The dent was filled. An area two feet forward on the door and two feet on the quarter
panel was repainted. The plaintiff testified that the paint was rough and did not match.

                                              2
                                         III

      The plaintiff offered no objections to the jury instructions, other than “the

failure to charge that the relevant date in [the] determination of the conditions is

the date of delivery from the defendant to the plaintiff.”

      The trial judge refused the plaintiff’s special request to instruct the jury that

      “Your determination of whether plaintiff is entitled to revoke her
      acceptance or rescind and return the vehicle is to be governed by the
      condition of the vehicle at the time plaintiff received the vehicle. Any
      modifications or changes in the vehicle or its appearance by
      defendant after the vehicle was returned does not excuse defendant’s
      failure to deliver initially an appropriate new vehicle. Improvements
      by defendant after the vehicle has been returned are not relevant to
      the condition of the vehicle when it was first delivered to plaintiff. It
      is the condition when first delivered which determines if plaintiff has
      the right to revoke and/or return.”

                                         IV

      T.C.A. § 47-2-601 provides that “. . . if the goods . . . fail in any respect to

conform to the contract, the buyer may reject the whole . . . .” Section 608

provides that “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 .

. . 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.”

      The buyer is permitted to revoke acceptances if (1) the vehicle was defective

to the point where its value was substantially impaired, or if the defect reasonably

undermined the buyer’s confidence that the vehicle would perform the function for

which it was purchased; (2) the defect was not known and would have been

difficult for the buyer to discover; (3) and the revocation of acceptance occurred

within a reasonable time after discovery of the defect and before any substantial

change in the vehicle not caused by the defect. Patton v. McHone, 822 S.W.2d 608


                                          3
(Tenn. App. 1991). A substantial impairment exists if the defect shakes the

buyer’s faith in the product. Haverlah v. Memphis Aviation, 674 S.W.2d 297

(Tenn. App. 1984).      The appellant argues that the language of the statute

“substantially impairs its value to him if he has accepted it” is plainly subjective,

and that the question of whether the defect is remedial is irrelevant in light of

T.C.A. § 47-2-508, the right-to-cure statute. A right to cure is relevant only when

a buyer has rejected the goods prior to formal acceptance and the UCC does not

allow a seller the right to cure following the buyer’s acceptance. A seller has no

right to cure after the buyer has given notice of revocation, and the right to cure

does not limit revocation of acceptance. See, Jensen v. Seigel Mobile Home

Group, 668 P.2d 65 (Idaho 1983); Uniform Commercial Code, White & Summers

(2nd Ed.), 293.

      The thrust of the defense was directed to the asserted unreasonableness of

the plaintiff’s position and attitude, in light of the fact that the damage was de

minimis and correctable. It was for this reason that the defendant filed a motion

to allow the jury to inspect the vehicle, which did so under the mistaken belief,

according to the plaintiff, that there had been no change in the condition of the

vehicle when, in fact, the repairs had been made. Hence, the defendant argues, the

jury was thus persuaded that the plaintiff unreasonably revoked her acceptance.

      Witnesses for the defendant testified that after the vehicle was returned the

repaired area was repainted, buffed and sanded. As the matter progressed the

defendant asserted that it was never afforded the opportunity to correct the problem

as described by the plaintiff.

      The combination of these circumstances, according to the plaintiff, required

a jury instruction that it was the condition of the vehicle at the time of delivery as



                                          4
contrasted to the time of trial which is controlling. We agree with this argument,

which makes it necessary to consider (1) whether the charge which the plaintiff

specially requested was covered in the general charge, or, if not, whether the trial

judge’s refusal to charge the special instruction was harmless error.

      We have examined the charge and do not find that it covered the plaintiff’s

theory that her entitlement to rescission was governed by the condition of the

vehicle when it was delivered to her. In light of the fact that the jury was allowed

to inspect the vehicle, we agree with the appellant that the instructional omission

was crucially prejudicial. The rule in Tennessee is that the trial court should

instruct the jury upon every issue of fact and theory of the case raised by the

pleadings and supported by the proof. Street v. Calvert, 541 S.W.2d 576 (Tenn.

1976). When a special instruction (1) has been requested, (2) is a correct statement

of the law, (3) is not included in the general charge and (4) is supported by the

evidence introduced at trial, the court should give the instruction. Tenn. Farmers

Mutual Ins. Co. v. Hinson, 651 S.W.2d 235 (Tenn. App. 1983).

      Finally, we address the issue of whether the nonconformity substantially

impaired the value of the vehicle. It is important to note that the language of the

statute, “a buyer may revoke his acceptance if the nonconformity substantially

impairs the value to him,” involves subjectivity. The UCC does not define

“substantial” impairment, probably because of the privilege of subjectivity, which

may vary from person to person. Even so, any subjective decision of a buyer is

subject to some scrutiny, reasonably exercised; revocations based on mere whim

or defects so trivial as to evince sheer unreasonableness should be excluded. But

the language “value to him” may not be lightly regarded; if the Legislature had

intended to exclude damages that a reviewer might describe as trivial, as the



                                         5
defendant argues, it could have so provided.         Whether the nonconformity

substantially impaired the value of the vehicle to the plaintiff under the

circumstances of this case was for the jury to determine.

      The plaintiff presents an issue of whether the court erred in charging the jury

“that a new vehicle is new if it has not been resold or has not been previously sold

at retail and titled to another.” This charge was not objected to upon the court’s

specific inquiry, and the issue will not be considered.

      The judgment is reversed and the case is remanded for a new trial. Costs are

assessed to the appellee.




_______________________________
                                              William H. Inman, Senior Judge
CONCUR:



_______________________________
Houston M. Goddard, Presiding Judge



_______________________________
Charles D. Susano, Jr., Judge




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