                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                             Assigned on Briefs April 7, 2003

 DAVID W. VAUGHN v. DAIMLER CHRYSLER CORPORATION, ET AL.

                      Appeal from the Circuit Court for Carter County
                           No. C7665     Jean A. Stanley, Judge

                                     FILED JUNE 4, 2003

                                No. E2002-02163-COA-R3-CV


David W. Vaughn sues Daimler Chrysler Corporation and Grindstaff, Inc., seeking damages in
connection with his October 1994 purchase of a 1994 Chrysler LHS automobile which was
manufactured by Chrysler and sold to him by Grindstaff. The complaint alleges violations of T.C.A.
Title 55, Chapter 24, commonly known as the “Lemon Law.” The Trial Court sustained a motion
for summary judgment filed by the Defendants, resulting in this appeal, wherein Mr. Vaughn
contends there are disputed material facts rendering summary judgment inappropriate. We affirm.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
                                     Cause Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS
and CHARLES D. SUSANO, JR., JJ., joined.

Lon V. Boyd, Kingsport, Tennessee, for the Appellant, David W. Vaughn

G. David Hatfield, Knoxville, Tennessee, for the Appellees, Daimler Chrysler Corporation and
Grindstaff, Inc.

                                           OPINION


       Mr. Vaughn contends that on December 15, 1996, he experienced a problem with the
emergency brake of the vehicle and the automatic transmission mechanism. He manually released
the emergency brake while the car was in neutral and parked on a steep incline causing it to roll
downhill and strike a pile of railroad ties, which caused damage to the automobile of approximately
$2,275.00.

       The automobile was then towed to Grindstaff where, according to a representative of
Grindstaff, Mr. Vaughn refused to authorize repair until July 2, 1997, and according to Mr. Vaughn
because Grindstaff refused to repair it. In any event, the vehicle was ultimately repaired in
accordance with the estimate of Mr. Vaughn’s insurance company and was released to him in July
1997. About one month later, Mr. Vaughn brought the vehicle to Grindstaff complaining of brake
vibrations. An inspection disclosed that the brakes and rotors were worn out and needed to be
replaced. This was accomplished and the vehicle returned to Mr. Vaughn within hours.

        Approximately one year later, on July 7, 1998, Mr. Vaughn again brought the vehicle to
Grindstaff, contending there was smoke coming out from under the hood and that the engine had
stalled. A subsequent inspection disclosed a broken alternator belt, which was replaced under
warranty at no charge. Some two months later Mr. Vaughn again brought the vehicle to Grindstaff,
complaining that the transmission was “uneven.” The proof shows that the car had been driven only
five miles since the brake replacement two months earlier, and only one hundred miles in the 21
months since the vehicle rolled down the hill and struck the railroad ties.

       A number of depositions and affidavits were filed in connection with the Defendants’ motion
for summary judgment, and at the hearing as to this motion the Trial Court entered the following
order on July 18, 2002.

                         ORDER ON MOTION FOR SUMMARY JUDGMENT

                     Defendants have moved for summary judgment, which motion is opposed
             by the Plaintiff. At oral argument of the motion, the parties agreed that the subject
             vehicle has not been subject to repair four or more times for the same alleged
             defect. T.C.A. § 55-24-205(a)(1). The parties disagree on whether the vehicle has
             been out of service by reason of repair for an accumulative total of 30 or more
             calendar days. T.C.A. 55-24-205(a)(2). The parties also disagree whether the
             subject vehicle is “substantially impaired” as defined by the statute. T.C.A. § 55-
             24-201(4).1

                     Plaintiff’s attorney has conceded that the remaining issues require expert
             testimony. Plaintiff is given until August 1, 2002, to file with the Court an
             affidavit of an expert witness setting forth such expert’s opinion that the vehicle
             is substantially impaired and setting forth the witness’ name, address, field of
             his/her expertise, and brief summary of qualifications and opinions.




         1
             (4) “Substantially impair” means to render a motor vehicle unreliable or unsafe for normal operation o r to
reduce its resale market value below the average resale value for co mpara ble motor vehicles.

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        T.C.A. 55-24-2032 sets out the remedy available to the Plaintiff should the Court find “the
defect or condition substantially impairs the motor vehicle.”

        Mr. Vaughn never produced an expert witness in support of his contentions relative to “a
defect or condition substantially impairing” the vehicle, whereupon the Trial Court sustained the
motion for summary judgment by order entered August 8.

        We believe in light of the concession of Mr. Vaughn’s counsel at the hearing on the motion
for summary judgment hereinbefore set out, there is no material evidence to contradict not only the
Defendants’ expert, but also an expert who examined the vehicle for Mr. Vaughn, that there was no
defect or condition which substantially impaired the vehicle.

        For the foregoing reasons the judgment of the Trial Court is affirmed and the cause remanded
for collection of costs below. Costs of appeal are adjudged against David W. Vaughn and his surety.



                                                     _________________________________________
                                                     HOUSTON M. GODDARD, PRESIDING JUDGE




        2
           55-24-203. Replacement or repair of ve hicles – Refund s – R efina ncing ag reem ents – Defense s. – (a)
The manufacturer must replace the motor vehicle with a comparable motor vehicle or accept return of the vehicle from
the consumer and refund to the co nsumer the full purchase price if:

  (1) The nonconformity, defect or condition substantially impairs the motor vehicle.



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