            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                            STATE OF MICHIGAN

                            COURT OF APPEALS



JANE E. MEYERING,                                                    UNPUBLISHED
                                                                     February 7, 2019
               Plaintiff-Appellant,

v                                                                    No. 341815
                                                                     Ingham Circuit Court
PORSCHE CARS NORTH AMERICA, INC. and                                 LC No. 16-000661-NZ
LANSING AUTOMOTIVE, LLC, d/b/a
OKEMOS AUTO COLLECTION,

               Defendants-Appellees,
and

DEMARS & ASSOCIATES, LTD,

               Defendant.



Before: METER, P.J., and K. F. KELLY and GLEICHER, JJ.

METER, P.J. (dissenting).

        I respectfully dissent. In my opinion, plaintiff presented no evidence that the blower
issue continued after the fourth repair attempt. This lack of evidence is fatal to plaintiff’s “lemon
law” and UCC claims.

        I agree with the majority that, at the directed verdict stage, the trial court is required to
resolve credibility determinations in the nonmoving party’s favor. That being said, credit need
not be given to plaintiff’s inaccurate interpretation of the evidence. Plaintiff’s argument relies on
her interpretation of Olivas’s testimony, i.e., that the blower-motor issue was an “open” one.
Yet, an accurate reading of Olivas’s testimony is that the issue was resolved. When Olivas
agreed that he could not confirm the blower-motor issue during the fourth repair attempt, he was
expressing that the blower-motor issue was no longer presenting itself. Olivas did find an issue
with a lack of coldness in the air that blew, but he addressed this issue with a repair, and
confirmed that, afterwards, “the entire HVAC [was] operating correctly.” He testified that prior
repairs were successful and that the car was “fit for the ordinary purpose of driving.” Further
proof that the issue was resolved is plaintiff’s husband’s testimony that he drove the car for
approximately 1,300 miles1 after the last repair. The majority points out that plaintiff’s husband
testified that he possibly never turned on the blower system during this time. Nonetheless, the
fact that plaintiff’s husband may not have used the blower is not evidence that the blower system
was defective.

        Consequently, making the relevant credibility determinations in plaintiff’s favor, the
record shows, at most, that the blower system was experiencing problems before the fourth visit.
Plaintiff has presented no evidence that the problem was not remedied as a result of the fourth
repair attempt, rendering a directed verdict in defendants’ favor appropriate on her “lemon law”
claim.

        To revoke acceptance and claim cover damages under the UCC, the buyer must show that
a “nonconformity” “substantially impair[ed]” the value of the goods as accepted and that the
nonconformity was not seasonably cured. MCL 440.2608(1)(a). Here, plaintiff has not shown
that the nonconformity was not seasonably cured. As discussed previously, there is no evidence
that the blower-motor issue existed after the last repair. Again, plaintiff’s husband drove the
vehicle for approximately 1,300 miles after the last repair and could not report any issue.
Therefore, cover damages were unavailable to plaintiff. The trial court concluded that plaintiff
simply did not present adequate evidence of diminished value to support her warranty claims,
and I find no basis for disturbing that conclusion.

       For these reasons, I would affirm.


                                                            /s/ Patrick M. Meter




1
 The car had 1,300 additional miles on it; plaintiff’s husband testified that he “put the majority”
of these additional miles on the vehicle.


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