                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3225
                                   ___________

Highway Sales, Inc.;
Donald Oren,                            *
                                        *
             Appellants,                *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Blue Bird Corporation;                  *
Thermo Leasing Corporation,             *
doing business as                       *
Shorewood RV Center,                    *
                                        *
             Appellees.                 *
                                        *
                                   ___________

                             Submitted: April 15, 2008
                                Filed: March 11, 2009
                                 ___________

Before WOLLMAN, BEAM, and RILEY, Circuit Judges.

                                  ______________

RILEY, Circuit Judge.

       Donald Oren (Oren) and Highway Sales, Inc. (Highway Sales) (collectively,
plaintiffs), asserted claims against Blue Bird Corporation (Blue Bird) for (1) breach
of express and implied warranties; (2) violation of the Magnuson-Moss Warranty Act,
15 U.S.C. § 2301-2312; (3) violation of Minnesota’s Lemon Law, Minn. Stat.
§ 325F.665; and (4) revocation of acceptance under Minn. Stat. § 336.2-608.
Plaintiffs also asserted a claim for revocation of acceptance against Thermo Leasing
Corporation d/b/a Shorewood RV Center (Shorewood RV). The district court granted
Blue Bird’s and Shorewood RV’s (collectively, defendants) motion for summary
judgment on all of plaintiffs’ claims. Plaintiffs appeal. We affirm in part and reverse
in part.

I.    BACKGROUND
      Plaintiffs’ claims arose from their purchase of a defective recreational vehicle
(RV) manufactured by Blue Bird. On July 31, 2003, Highway Sales purchased, for
Oren’s use,1 a Blue Bird Wanderlodge M380 RV from Shorewood RV, a Blue Bird
authorized dealer. The purchase price was $337,244.

       In the months following the sale, Oren discovered numerous defects, including
failures of the RV’s electrical system, batteries, seals, slides, gauges, compressor,
monitor, and lighting. Oren returned the RV to Shorewood RV for repairs on a
number of occasions, and Shorewood RV attempted to remedy the RV’s various
defects. Despite Shorewood RV’s efforts, Oren continued experiencing problems
with the RV.

        On July 2, 2004, Oren delivered the RV to Shorewood RV’s lot, giving the keys
to Shorewood RV and removing his belongings. Oren informed Anthony Santarsiero
(Santarsiero), a Shorewood RV employee, that Oren was returning the RV as of that
day. Santarsiero gave Oren the name of Blue Bird’s CEO and told Oren to call or
write the CEO a letter to try to resolve the problem. On July 8, 2004, Oren wrote a
letter to Blue Bird’s CEO asking him to authorize repurchase of the RV at its original
cost. Oren copied Santarsiero on the letter. The letter stated, in part:



      1
       Highway Sales is a truck dealership owned by Oren.

                                         -2-
             . . . After almost a year of continued problems with this motor
      home, I have come to three conclusions. First, the Model M380 was
      released before it had been properly designed, tested, and debugged.
      Second, Shorewood RV is a terrific dealer for you, but even they could
      not overcome the inherent problems in the M380. Third, I have run out
      of patience, confidence, and trust that the problems can be fixed in a
      reasonable time, and I request that you return my purchase price.

            . . . On July 2, 2004, after the engine batteries once again died, I
      removed all my personal belongings and returned the coach to the dealer.
      This was the final event—the last straw. . . . I spoke with Anthony
      Santarsiero and told him I was returning the coach as of that day. . . .

             Suffice it to say that I am out of patience, and that both of our lives
      will be made easier if you will simply authorize a repurchase of the
      coach at its original cost. This coach simply needs to be permanently
      recalled until major corrections are made.

             . . . I’m not interested in further retrofits, patches, or excuses. I
      will never take this coach back.

      Neither Blue Bird nor Shorewood RV refunded plaintiffs’ purchase price.
Instead, on July 31, 2004, a Blue Bird technician performed a major electrical retrofit
on the RV. Despite this repair, the batteries failed again on August 12, 2004.
Additional repairs were completed on August 19, 2004, while the RV was in
Shorewood RV’s possession.

       On September 7, 2004, Blue Bird’s Director of Customer Service formally
rejected Oren’s request for a refund, asserting, “[y]our electrical issue on your M380
has been repaired. . . .We do not refund purchases or buy units back. We are
committed to working with our Dealers and Customers to resolve any service needs
that may occur. I know you have had some battery issues with your unit, but I am
confident that these issues have been resolved. You have a reliable unit that should
give you the service and performance it is designed for.”

                                           -3-
      On September 14, 2004, Oren and Shorewood RV signed a Consignment
Agreement, giving Shorewood RV the exclusive right to sell the RV. Before putting
the RV on Shorewood RV’s sales lot, additional repairs were completed on September
28, 2004, and October 4, 2004.

       Despite the Consignment Agreement, Oren continued his efforts to obtain a
refund. On October 27, 2004, Oren again wrote to Blue Bird, demanding a refund.
Oren wrote another letter to Blue Bird on November 2, 2004, this time notifying Blue
Bird he considered the RV to be a “lemon” under Minnesota’s Lemon Law. On
November 5, 2004, Blue Bird replied to Oren’s October 27, 2004 letter. Blue Bird
refused to provide a refund, declaring “Blue Bird stands behind this [RV which is] a
reliable unit and will give you the service and performance for which it is designed.”
Blue Bird then apologized for any inconvenience Oren incurred while the RV was
being repaired and offered to “send a Wanderlodge factory representative to
Shorewood to provide additional owner training and a systems check” of the RV. On
November 17, 2004, Oren traveled to Shorewood RV to check the status of the RV.
Oren found the RV would not start because the batteries were once again dead. On
November 19, 2004, Blue Bird’s attorney responded to Oren’s November 2, 2004
letter stating, “Blue Bird and its distributor have worked on the motor home and
believe that the cause of the battery problem you identified, as well as any other
issues, have been remedied. Therefore, Blue Bird has fully complied with the
requirements of its warranty and the Minnesota lemon law.” This letter went on to
reiterate Blue Bird’s willingness to continue working with Oren and Shorewood RV
“to assure [Oren] that the motor home conforms to the warranty.”

      On November 29, 2004, Oren replied to Blue Bird’s attorney, enclosing a
spreadsheet detailing the problems he had experienced with the RV and stating:

             My purpose in sending along this information is to document the
      fact that neither Blue Bird, nor its authorized representative, Shorewood


                                         -4-
      R.V. Center [], has succeeded in meeting its obligations to conform the
      vehicle to the applicable express warranties. As the record clearly
      demonstrates, even after a reasonable number of attempts to repair the
      electrical and other problems that have haunted this unit, it remains unfit
      for the purpose it was intended; therefore, I reiterate my demand that
      Blue Bird make a full refund of the purchase price of the unit.

      Blue Bird’s attorney responded on December 1, 2004, asserting there was
“nothing wrong” with the RV, and “Blue Bird has lived up to its obligations under the
warranty.” Oren wrote back to Blue Bird’s attorney on December 6, 2004, indicating
he would consider litigation if the matter were not acceptably resolved. On January
4, 2005, plaintiffs’ attorney wrote Blue Bird’s attorney in an attempt to schedule the
matter for informal arbitration, as provided by the alternative dispute settlement
mechanism set forth in Minnesota’s Lemon Law.

       Thereafter, Oren learned from Shorewood RV that Parliament Coach, an RV
dealer in Florida, might be interested in purchasing the RV. In February 2005, Oren
agreed to sell the RV to Parliament Coach for $225,000, resulting in a loss to plaintiffs
of over $100,000. Before the sale, Oren fully disclosed to Parliament Coach the
problems Oren had experienced with the RV.2

      Oren informed Shorewood RV someone from Parliament Coach would be
coming to Shorewood RV the next day to take the RV. Oren admits he did not inform
Blue Bird of the sale. Blue Bird did not learn until March 29, 2005, that plaintiffs sold
the RV.




      2
      Parliament Coach attempted to repair the RV, later selling it to a subsequent
owner who experienced problems similar to the ones Oren experienced.


                                          -5-
       On May 24, 2005, Blue Bird informed plaintiffs it refused to participate in
arbitration based on its belief the Lemon Law claim no longer applied after plaintiffs
sold the RV. On July 15, 2005, plaintiffs filed suit in Minnesota state court against
Blue Bird. Blue Bird removed the case to federal court based on diversity of
citizenship. Plaintiffs later amended their complaint, adding Shorewood RV as a
defendant.

        Defendants moved for summary judgment. The magistrate recommended
granting defendants’ motion with respect to all plaintiffs’ claims except plaintiffs’
state law claim for breach of express warranty. Viewing the evidence in the light most
favorable to the plaintiffs, the magistrate determined a factfinder could reasonably
conclude plaintiffs’ breach of express warranty claim did not accrue until on or after
November 19, 2003, and, therefore, the claim was not barred by the one year
limitations period contained in Blue Bird’s Limited Warranty. The parties filed
objections to the magistrate’s Report and Recommendation.

        The district court concluded defendants were entitled to summary judgment on
all of plaintiffs’ claims, including the state law claim for breach of express warranty.
The district court determined, as a matter of law, plaintiffs’ breach of express warranty
claim was untimely because the claim accrued no later than July 8, 2004, and plaintiffs
filed suit more than one year later, on July 15, 2005. Plaintiffs now argue: (1) their
breach of express warranty claim was timely; (2) Blue Bird’s repeated promises to
repair the RV tolled the limitations period on plaintiffs’ breach of express and implied
warranty claims; (3) plaintiffs’ sale of the motor home did not bar their Minnesota
Lemon Law Claim; and (4) plaintiffs were entitled to pursue their claims for
revocation of acceptance against Blue Bird and Shorewood RV.




                                          -6-
II.     DISCUSSION
        A.     Standard of Review
        “This court reviews a district court’s grant of summary judgment de novo,
applying the same standard as the district court.” Hindman v. Transkrit Corp., 145
F.3d 986, 990 (8th Cir. 1998) (citations omitted). We will find the district court’s
grant of summary judgment proper “when the record, viewed in the light most
favorable to the nonmoving party, and giving that party the benefit of all reasonable
inferences, shows that there is no genuine issue of material fact, and the moving party
is entitled to judgment as a matter of law.” Id. (citations omitted).3

      B.      Breach of Warranty
              1.     Accrual of Breach of Express Warranty Claim
       Plaintiffs argue the district court erred by finding their claim for breach of
express warranty was barred by the one year limitations period contained in Blue
Bird’s Limited Warranty. The limited warranty guaranteed certain components of the
RV would “be free from defects in material and workmanship” for specified periods
of time. It also provided, “[a]ny suit alleging a breach of this limited warranty or any
other alleged warranty must be filed within one year of breach.”4

      Under Minnesota law, “[a] cause of action [for breach of warranty] accrues
when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the


      3
        The limited warranty provided Georgia law shall govern the warranty, but the
parties and the district court have agreed to apply Minnesota law under the assumption
the two state laws are identical. We will continue to apply Minnesota law under the
same assumption. We note the dissent’s interpretation of the limited warranty also
exclusively relies on Minnesota law and anticipates what the Minnesota Supreme
Court would do.
      4
       Minnesota law provides a four year statute of limitations “for breach of any
contract for sale.” Minn. Stat. § 336.2-725(1). However, the parties may agree to
“reduce the period of limitation to not less than one year . . . .” Id.

                                          -7-
breach.” Minn. Stat. § 336.2-725(2). “A breach of warranty occurs when tender of
delivery is made, except that where a warranty explicitly extends to future
performance of the goods and discovery of the breach must await the time of such
performance the cause of action accrues when the breach is or should have been
discovered.” Id. Thus, when a warranty extends to future performance, the cause of
action accrues “when the plaintiff discovers or should have discovered the defendant’s
refusal or inability to maintain the goods as warranted in the contract.” Anderson v.
Crestliner, Inc., 564 N.W.2d 218, 223 (Minn. App. 1997) (quoting Church of the
Nativity of Our Lord v. WatPro, Inc., 491 N.W.2d 1, 6 (Minn. 1992), overruled by Ly
v. Nystrom, 615 N.W.2d 302 (Minn. 2000)).

      The parties agree the limited warranty explicitly extends to future performance
by guaranteeing certain components of the RV would “be free from defects in material
and workmanship” for specified periods of time. Because the limited warranty
extends to future performance, Oren’s breach of warranty claim accrued on the date
Oren “discover[ed] or should have discovered [Blue Bird]’s refusal or inability to
maintain the [RV] as warranted in the contract.” See id.

      The parties agree Blue Bird expressed a continued willingness to repair the RV
long after July 8, 2004. Thus, our concern is not the date Blue Bird refused to
maintain the RV, but the date Oren discovered Blue Bird’s inability to maintain the
RV as warranted. The parties dispute when this discovery occurred. Blue Bird
argues, and the district court found, that by July 8, 2004, Oren firmly believed Blue
Bird was unable to maintain the RV as warranted. The district court determined, as
a matter of law, Oren’s July 8, 2004 letter unequivocally demonstrated Oren’s belief
Blue Bird was unable to maintain the RV as warranted. We disagree.




                                         -8-
      Oren’s July 8, 2004 letter stated, in relevant part:

             . . . After almost a year of continued problems with this motor
      home, I have come to three conclusions. First, the Model M380 was
      released before it had been properly designed, tested, and debugged.
      Second, Shorewood RV is a terrific dealer for you, but even they could
      not overcome the inherent problems in the M380. Third, I have run out
      of patience, confidence, and trust that the problems can be fixed in a
      reasonable time, and I request that you return my purchase price.

             ....

            On July 2, 2004, after the engine batteries once again died, I
      removed all my personal belongings and returned the coach to the dealer.
      This was the final event—the last straw.

             Suffice it to say that I am out of patience, and that both of our lives
      will be made easier if you will simply authorize a repurchase of the
      coach at its original cost. This coach simply needs to be permanently
      recalled until major corrections are made.

             ....

      . . . I’m not interested in further retrofits, patches, or excuses. I will
      never take this coach back.

       Oren’s July 8, 2004 letter certainly evidences Oren’s high level of frustration
and disgust with the need for repeated repairs on the RV. However, the district court
erred by concluding as a matter of law that Oren believed the RV was beyond repair
as of that date. Oren’s statement he had “run out of patience, confidence, and trust
that the problems can be fixed in a reasonable time” does not necessarily mean Oren,
at that moment, believed the RV was beyond repair. A factfinder could just as
reasonably conclude Oren was simply tired of dealing with the RV’s defects. Saying
“I am out of patience” or “I’m not interested in further retrofits, patches, or excuses”


                                           -9-
is not the same as saying, “I believe Blue Bird is incapable of maintaining this RV as
warranted.”

       The fact Oren allowed additional repairs to be completed on July 31, August
19, September 28, and October 4, 2004, strongly suggests Oren continued to believe
Blue Bird was capable of eventually repairing the RV. It was not until November 29,
2004, that Oren first informed Blue Bird he believed Blue Bird had failed “in meeting
its obligations to conform the vehicle to the applicable express warranties.” We
conclude a genuine issue of material fact exists regarding the date Oren knew or
should have known Blue Bird was unable to maintain the RV as warranted.

             2.     Accrual of Breach of Implied Warranty Claim
       Unlike express warranties, under Minnesota law, “[i]mplied warranties cannot,
by their very nature, explicitly extend to future performance.” Marvin Lumber &
Cedar Co. v. PPG Indus., Inc., 223 F.3d 873, 879 (8th Cir. 2000) (citation omitted).
See also Nelson v. Int’l Harvester Corp., 394 N.W.2d 578, 582 (Minn Ct. App. 1986),
overruled on other grounds by Lloyd F. Smith Co., Inc. v. Den-Tal-Ez, Inc., 491
N.W.2d 11 (Minn. 1992).5 A breach of implied warranty occurs, and the claim
accrues, “when tender of delivery is made. . . .” Minn. Stat. § 336.2-725(2). Thus,
the fact Blue Bird expressly warranted various components of the RV would be free
from defects for specified periods of time after tender of delivery does not extend the
accrual date for a breach of implied warranty claim. The parties agree tender of
delivery of the RV occurred on July 31, 2003. Plaintiffs filed suit almost two years
later, on July 15, 2005. Plaintiffs’ breach of implied warranty claim is therefore


      5
       Plaintiffs do not argue the implied warranty limitation is inconspicuous and do
not assert implied warranties may extend to future performance under Minnesota law.
Contrary to the dissent, we follow our general rule not to consider issues not raised
by the parties or the district court, because such issues are waived. See Stephenson
v. Davenport Cmty. Sch. Dist., 110 F.3d 1303, 1306-07 n.3 (8th Cir. 1997) (quoting
Bechtold v. City of Rosemount, 104 F.3d 1062, 1068 (8th Cir. 1997)).

                                         -10-
untimely, unless Blue Bird is equitably estopped from asserting the statute of
limitations defense.6

              3.     Equitable Estoppel
       Plaintiffs argue even if their breach of express warranty claim accrued on July
8, 2004, and their breach of implied warranty claim accrued on July 31, 2003, the
limitations period was tolled until at least November 2004 because Blue Bird
repeatedly promised to repair the RV and conform it to the limited warranty. Under
the doctrine of equitable estoppel, if a buyer delays filing suit as a result of reasonable
and detrimental reliance on a seller’s assurances it will repair the defective goods, the
limitations period is tolled during that period of delay.7 See Lake Superior Ctr.

      6
        In addition to their state law claims for breach of express and implied warranty,
plaintiffs assert claims against Blue Bird for breach of express and implied warranty
under the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301-2312. The parties agree
that, because the Magnuson-Moss Warranty Act contains no statute of limitations,
plaintiffs’ Magnuson-Moss claims are governed by the same limitations period as
plaintiffs’ state law breach of warranty claims. See Sernak v. Krenzen Cadillac, Inc.,
415 N.W.2d 92, 94 (Minn. Ct. App. 1987). See also Hrycay v. Monaco Coach Corp.,
No. 07-2605, 2008 WL 638235, at *4 (E.D. Pa. March 7, 2008) (explaining, because
the Magnuson-Moss Warranty Act does not contain a statute of limitations, courts
borrow the most closely analogous state statute of limitations, which is the statute of
limitations found in the U.C.C.).
      7
        Plaintiffs do not argue or propose equitable tolling may exist from promises
to repair alone without detrimental reliance by plaintiffs. See, e.g., Colorado-Ute
Elec. Ass’n, Inc. v. Envirotech Corp., 524 F. Supp. 1152, 1155-56 (D. Colo. 1981).
Such arguments are now waived. See Stephenson, 110 F.3d at 1306-07 n.3.
Furthermore, the Minnesota Supreme Court has noted the “so called ‘repair theory’
has not been afforded universal acceptance.” Hydra-Mac, Inc. v. Onan Corp., 450
N.W.2d 913, 919 n.4 (Minn. 1990) (emphasis added). Under Minnesota law,
equitable tolling applies only with detrimental reliance. See Sohns v. Pedersen, 354
N.W.2d 852, 855 (Minn. Ct. App. 1984) (“Estoppel requires proof of three elements:
1) defendant made representations on which 2) plaintiff reasonably relied, and 3)
plaintiff will be harmed if equitable estoppel is not invoked.) (citation omitted)).

                                           -11-
Authority v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 473 (Minn. Ct.
App. 2006) (discussing defects in real property); J & D Constr., Inc. v. Ramy Int’l.
Ltd., No. C4-01-498, 2001 WL 969146, at *3 (Minn. Ct. App. Aug. 28, 2001); U.S.
Leasing Corp. v. Biba Info. Processing Servs., Inc., 436 N.W.2d 823, 826 (Minn. Ct.
App. 1989); Sohns, 354 N.W.2d at 855. See generally Hydra-Mac, 450 N.W.2d at
919 n.4. “While estoppel is ordinarily a question of fact for the jury, when only one
inference can be drawn from the facts, the question is one of law.” U.S. Leasing
Corp., 436 N.W.2d at 826 (quoting L & H Transport, Inc. v. Drew Agency, Inc., 403
N.W.2d 223, 227 (Minn. 1987)).

      There is ample evidence in the record from which a factfinder could conclude
Blue Bird made ongoing assurances it would repair the RV. After Oren delivered the
RV to Shorewood RV’s lot on July 2, 2004, Blue Bird technicians attempted repairs
on July 31, August 19, September 28, and October 4, 2004. On September 7, 2004,
Blue Bird rejected Oren’s request for a refund but maintained, “We are committed to
working with our Dealers and Customers to resolve any service needs that may
occur.” As late as November 2004, Blue Bird asserted it had complied with
Minnesota’s Lemon Law and the requirements of its warranty, although reiterating its
willingness to continue working with Oren and Shorewood RV to “assure [Oren] that
the motor home conforms to the warranty.”

       The critical question, then, is whether plaintiffs delayed filing suit as a result
of reasonable and detrimental reliance on Blue Bird’s ongoing assurances to repair the
RV, and, if so, on what date plaintiffs’ reliance (and the tolling of the limitations
period) ended.8 There is no evidence in the record from which a reasonable factfinder
could conclude plaintiffs reasonably and detrimentally relied on Blue Bird’s efforts

      8
        Oren brought the RV to Shorewood RV on a number of occasions between
August 2003 and April 2004, and frequent repairs were attempted. We will assume,
as the district court did, that the limitations period was tolled during at least some of
this period of time.

                                          -12-
or promises to repair the RV after Oren delivered the RV to Shorewood RV’s lot on
July 2, 2004. On the contrary, by July 2, 2004, Oren manifested no reliance on Blue
Bird’s or Shorewood RV’s assurances the defective RV would soon be repaired.
Although plaintiffs insist Blue Bird “resorted to bald assertions that the motor home
was not defective despite its continuing failures and need for repairs,” plaintiffs do not
claim Oren believed these assertions or that plaintiffs delayed filing suit as a result of
detrimentally relying upon such assertions. Nowhere do plaintiffs maintain Blue
Bird’s assurances or repair attempts after July 2, 2004, caused any detrimental
reliance, nor does the record support such an inference. The fact Oren may have
believed Blue Bird was capable of eventually repairing the RV falls far short of
establishing that Oren detrimentally relied upon Blue Bird’s promises to repair the
RV. On July 8, 2004, Oren wrote Blue Bird’s CEO announcing the “last straw,” and
explaining Oren had run “out of patience . . . that the problems can be fixed in a
reasonable time,” and he was “not interested in further retrofits, patches, or excuses.”
Because plaintiffs have identified no action they took or failed to take after July 2,
2004, in reliance upon any statements or actions of Blue Bird, the district court did not
err by determining, as a matter of law, plaintiffs were not entitled to equitable tolling.

      C.     Minnesota Lemon Law
      Plaintiffs argue the district court erred by finding plaintiffs’ resale of the RV
prevents their claim under Minnesota’s Lemon Law. The Minnesota Lemon Law
provides:

      If the manufacturer . . . [is] unable to conform [a] new motor vehicle to
      any applicable express warranty by repairing or correcting any defect or
      condition which substantially impairs the use or market value of the
      motor vehicle to the consumer after a reasonable number of attempts, the
      manufacturer shall either replace the new motor vehicle with a
      comparable motor vehicle or accept return of the vehicle from the
      consumer and refund to the consumer the full purchase price . . . . If the
      manufacturer offers a replacement vehicle under this section, the


                                          -13-
      consumer has the option of rejecting the replacement vehicle and
      requiring the manufacturer to provide a refund.

Minn. Stat. § 325F.665, subd. 3(a) (emphasis added).

       Plaintiffs contend they were entitled to sell the RV because they offered to
return the RV, but Blue Bird refused to refund the purchase price. This argument
fails. Our disposition of plaintiffs’ Lemon Law claim follows Pfeiffer v. Ford Motor
Co., 517 N.W.2d 76 (Minn. Ct. App. 1994). In Pfeiffer, the plaintiffs sold their
allegedly defective vehicle after they were denied relief by Ford Motor Company’s
informal dispute mechanism under the Minnesota Lemon Law. Id. at 77. Plaintiffs
then filed suit against Ford under the Minnesota Lemon Law. Id. The Minnesota
Court of Appeals affirmed the district court’s dismissal of the plaintiffs’ Lemon Law
claim, concluding “[a] plain, common sense reading of this statute evidences a
requirement of tender of the allegedly defective vehicle in order to recover under the
Lemon Law.” Id. at 80. Merely offering to return the vehicle is insufficient—the
plain language of the statute conditions a consumer’s refund on the manufacturer
“accept[ing] return of the vehicle from the consumer.” See Minn. Stat. § 325F.665,
subd. 3(a). Plaintiffs did not comply with the law’s tender requirement because
plaintiffs did not return the RV to Blue Bird.

       The Pfeiffer court further explained the tender requirement comports with the
Lemon Law’s purpose of protecting subsequent consumers, reasoning, “it is
inconsistent to allow a Lemon Law recovery, while allowing the same injured party
to pass the defective auto on to another consumer without notice or the warranty
protections provided to the first owner.” Pfeiffer, 517 N.W. 2d at 80. Plaintiffs insist
they complied with the purpose of the Lemon Law because, before selling the RV,
they fully disclosed to Parliament Coach all the problems Oren had experienced with
the RV. We disagree. Minnesota’s Lemon Law “requires that clear labeling and
notice be provided to subsequent purchasers of a vehicle returned due to incurable


                                         -14-
defects,” id. (citing Minn. Stat. § 325F.665, subd. 5(a)(2)), and also requires the
manufacturer to provide continued warranty coverage to the new owner. Minn. Stat.
§ 325F.665, subd. 5(a)(1). Oren’s disclosure to Parliament Coach of the RV’s
problems was insufficient to extend all of the Lemon Law’s protections to the RV’s
subsequent owner. We agree with the district court’s reading of Pfeiffer and the
Minnesota Lemon Law that a plaintiff who passes his lemon to another consumer
before trial cannot pursue a claim under Minnesota’s Lemon Law.9




      9
       In addition to the Lemon Law analysis, the Pfeiffer court states, “We agree
with the respondent insofar as the Magnuson-Moss Warranty Act claim is concerned
because, as with Minnesota’s Lemon Law, there is a requirement for return of the
vehicle prerequisite to a remedy.” Id. at 80 (citing 15 U.S.C. § 2304(a)(4)) (emphasis
added). The parties and the district court seem to overlook this passage in Pfeiffer.
Instead, the parties apparently agree, if we find plaintiffs’ state law breach of warranty
claims are viable, then plaintiffs’ Magnuson-Moss warranty claims are viable too. See
supra note 4.

       Under 15 U.S.C. § 2304(b)(2), “a warrantor may require, as a condition to
replacement of, or refund for, any consumer product under subsection (a) of this
section, that such consumer product shall be made available to the warrantor . . . .”
(emphasis added). In isolation, this section appears to require return of the vehicle.
The Illinois Court of Appeals has held § 2304(b)(2) applies only to full warranties, not
limited warranties like the one in this case. See Lara v. Hyundai Motor America, 770
N.E.2d 721, 727 (Ill. App. Ct. 2002). See also 15 U.S.C. § 2303. Unlike a Lemon
Law claim, the Magnuson-Moss Warranty Act further allows a plaintiff to recover
damages, and refund or replacement is not the exclusive remedy. See 15 U.S.C.
§ 2310(d). Plaintiffs now are asking for damages under the Magnuson-Moss
Warranty Act, not a refund. Pfeiffer is incorrect that return of the vehicle is a
prerequisite to all remedies under the Magnuson-Moss Warranty Act.

                                          -15-
      D.     Revocation of Acceptance
             1.    Revocation of Acceptance Against Shorewood RV
      Plaintiffs contend the district court erred by granting defendants’ motion for
summary judgment on plaintiffs’ revocation of acceptance claims against Blue Bird
and Shorewood RV. Specifically, plaintiffs argue the district court erred by
determining, as a matter of law, plaintiffs revoked acceptance only against Blue Bird
and not against Shorewood RV.

       A buyer may revoke acceptance of a “commercial unit whose nonconformity
substantially impairs its value to the buyer” if the buyer was unable to discover the
nonconformity at the time of delivery. Minn. Stat. § 336.2-608(1). “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.” Minn. Stat. § 336.2-608(2). The revocation must be
unequivocal. See Barry & Sewall Indus. Supply Co. v. Metal-Prep of Houston, Inc.,
912 F.2d 252, 257 (8th Cir. 1990). However, the notice of revocation is not required
to “assume any particular format . . . .” Cissell Mfg. Co. v. Park, 36 P.3d 85, 89
(Colo. Ct. App. 2001). Rather, “[t]he notice of revocation, to be sufficient, should
fairly apprise the seller that the buyer wants to give back the goods and receive a
substitute or money in return.” Id. (citing William Hawkland, Uniform Commercial
Code Series § 2-608:5).

       On July 2, 2004, Oren returned the RV to Shorewood RV. Oren removed his
belongings and gave the keys to Shorewood RV. Oren informed Santarsiero he was
returning the RV as of that day. At Santarsiero’s suggestion, Oren wrote a letter to
Blue Bird’s CEO requesting a refund. Oren copied Santarsiero on the letter.

      The fact Oren took Santarsiero’s suggestion and sought a refund from Blue Bird
does not, as a matter of law, defeat Oren’s revocation of acceptance claim against

                                         -16-
Shorewood RV. A reasonable factfinder could readily conclude Oren’s return of the
RV and Oren’s conduct and discussions with Santarsiero were sufficiently
unequivocal to notify Shorewood RV that Oren intended to revoke acceptance of the
RV and obtain a refund. Because material fact questions exist regarding whether Oren
effectively revoked acceptance against Shorewood RV, we conclude the district court
erred by determining, as a matter of law, plaintiffs revoked acceptance only against
Blue Bird and not against Shorewood RV.

            2.     Reacceptance
      Defendants maintain, even if plaintiffs effectively revoked acceptance against
both Blue Bird and Shorewood RV, plaintiffs’ resale of the RV constituted
reacceptance, which defeats plaintiffs’ revocation of acceptance claim against both
defendants as a matter of law.

      “[U]pon notice of revocation, the buyer must not indulge in any action which
would indicate that he has reaccepted the goods.” Barry & Sewall Indus. Supply Co.,
912 F.2d at 257. “A buyer’s act of dominion over goods, including sale of the goods,
is inconsistent with a buyer’s claim of revocation of acceptance.” Chancellor
Development Co. v. Brand, 896 S.W.2d 672, 676 (Mo. Ct. App. 1995) (citations
omitted); see also Pettibone Minnesota Corp. v. Castle, 247 N.W.2d 52, 53 (Minn.
1976) (per curiam) (“The sale by defendant of the machinery to others was an act
‘inconsistent with the seller’s ownership.’” (quoting Minn. Stat. § 336.2-606(1)(c))).

        Under certain circumstances, a buyer’s resale of nonconforming goods will not
defeat the buyer’s claim for revocation of acceptance. Minn. Stat. § 336.2-711(3)
states,

      On rightful rejection or justifiable revocation of acceptance a buyer has
      a security interest in goods in the buyer’s possession or control for any
      payments made on their price and any expenses reasonably incurred in
      their inspection, receipt, transportation, care and custody and may hold

                                        -17-
       such goods and resell them in like manner as an aggrieved seller (section
       336.2-706).

       If an aggrieved seller resells nonconforming goods “in good faith and in a
commercially reasonable manner the seller may recover the difference between the
resale price and the contract price together with any incidental damages . . . , but less
expenses saved in consequence of the buyer’s breach.” Minn. Stat. § 336.2-706(1).
The resale may be a public or private sale. Minn. Stat. § 336.2-706(2). “Where the
resale is at a private sale the seller must give the buyer reasonable notification of an
intention to re-sell.” Minn. Stat. § 336.2-706(3). If the aggrieved party resells the
goods without providing notification of an intention to resell, the resale does not meet
the requirements of § 336.2-706(3). See, e.g., Jack Rabbit Lines, Inc. v. Neoplan
Coach Sales, Inc., 551 N.W.2d 18, 20 (S.D. 1996) (determining the aggrieved buyer’s
failure to notify the seller of its intention to resell at a private sale precluded recovery
of damages otherwise allowable under U.C.C. § 2-706); Massey v. Moore, 633 So. 2d
1044, 1047 (Miss. 1994) (reasoning the seller violated the notice requirements of
U.C.C. § 2-706(3) by failing to notify the buyer of his intention to resell goods at a
private sale); Kleiderfabrik v. Peters Sportswear Co., Inc., 483 F. Supp. 1228, 1234
(E.D. Pa. 1980) (explaining “§ 2-711(3) explicitly requires the buyer to follow the
procedures for sale set forth in § 2-706[,]” and when a buyer sold the defective goods,
“without observing the requirements of § 2-706, it went beyond the range of
permissible conduct for a buyer in possession of rejected goods, and it was no longer
protected against liability by the Code”); Anheuser v. Oswald Refractories Co., Inc.,
541 S.W.2d 706, 711 (Mo. Ct. App. 1976) (holding, “when a seller avails himself of
the remedy afforded by [U.C.C. § 2-706] he must comply with all of the terms of that
section and the burden of showing compliance is on the seller”).

       It is undisputed Oren did not inform Blue Bird he intended to sell the RV. Blue
Bird only learned of the sale after the RV was sold. Thus, with respect to Blue Bird,
plaintiffs failed to sell the RV in a commercially reasonable manner with reasonable


                                           -18-
notice to Blue Bird, as required by Minn. Stat. § 336.2-706, and therefore are
precluded from recovering under Minn. Stat. § 336.2-706. We conclude plaintiffs’
resale of the RV was inconsistent with plaintiffs’ claim of revocation of acceptance
as to Blue Bird and constituted a reacceptance of the RV. Blue Bird is entitled to
summary judgment on plaintiffs’ revocation of acceptance claim.10

       The question of whether plaintiffs provided Shorewood RV sufficient
notification of their intention to resell the RV only arises if the factfinder determines
plaintiffs effectively revoked acceptance against Shorewood RV. Assuming the
factfinder resolves this issue in plaintiffs’ favor, we conclude there is no doubt
plaintiffs complied with the notice requirement of § 336.2-706. On September 14,
2004, Oren and Shorewood RV signed a Consignment Agreement, giving Shorewood
RV the exclusive right to sell the RV. It was Shorewood RV that informed Oren that
Parliament Coach might be interested in purchasing the RV. After Oren agreed to sell
the RV to Parliament Coach, Oren notified Shorewood RV someone from Parliament
Coach would be coming to Shorewood RV the next day to pick up the RV. These
acts, as a matter of law, were sufficient to meet the notice requirements of § 336.2-




      10
         The district court reasoned Blue Bird was entitled to summary judgment on
plaintiffs’ revocation of acceptance claim because plaintiffs’ claim could not proceed
solely against Blue Bird (the nonselling manufacturer) where plaintiffs failed to
revoke acceptance against Shorewood RV (the immediate seller). As discussed above,
genuine issues of material fact exist regarding whether plaintiffs effectively revoked
acceptance against Shorewood RV. We need not decide whether Blue Bird, as a
nonselling manufacturer, can properly be the subject of plaintiffs’ revocation of
acceptance claim, because plaintiffs’ resale of the RV, without prior notice to Blue
Bird, defeats plaintiffs’ revocation of acceptance claim against Blue Bird. See Pro
Service Automotive, L.L.C. v. Lenan Corp., 469 F.3d 1210, 1213 (8th Cir. 2006)
(“We may affirm the district court’s grant of summary judgment on any ground
supported by the record.”).

                                          -19-
706(3).11 Assuming plaintiffs’ revocation of acceptance was effective against
Shorewood RV, plaintiffs’ resale of the RV did not constitute reacceptance.12

III.  CONCLUSION
       Genuine issues of material fact exist with respect to plaintiffs’ breach of express
warranty and Magnuson-Moss warranty claims against Blue Bird and plaintiffs’
revocation of acceptance claim against Shorewood RV. We reverse the district court’s
grant of summary judgment on these claims. We affirm the district court’s grant of
summary judgment on (1) the equitable tolling issue, (2) plaintiffs’ claim under the
Minnesota Lemon Law, and (3) plaintiffs’ revocation of acceptance claim against Blue
Bird.

BEAM, Circuit Judge, concurring and dissenting.

        I concur in the conclusions reached by the panel majority (the court) except for
its affirmance of the district court's erroneous rejection of Oren's implied warranty
claims based upon Blue Bird's statute of limitation defense. On this issue, I
respectfully dissent and would remand the implied warranty claims for trial.



       11
         Defendants apparently agree plaintiffs’ resale otherwise met the requirements
that the resale be “made in good faith and in a commercially reasonable manner. . . .”
Minn. Stat. § 336.2-706(1). Thus, we need not address these requirements.
       12
         Defendants additionally propose plaintiffs, after July 2, 2004, no longer had
a security interest in the RV because Shorewood RV possessed the RV. It is true
Shorewood RV possessed the RV, but this is not the end of the analysis. Plaintiffs
still controlled the RV, as far as Shorewood RV was concerned. Shorewood RV
continued to conduct repairs for plaintiffs and entered into a Consignment Agreement
to resell the defective RV at plaintiffs’ direction and with plaintiffs’ consent. See
Minn. Stat. § 336.2-711(3) (declaring, upon rejection or revocation, “a buyer has a
security interest in goods in the buyer’s . . . control . . . .”). Plaintiffs potentially
maintained their security interest in the RV.

                                          -20-
                                 INTRODUCTION

       The court purposely ignores several relevant and controlling statutory issues
because the parties fail, in its view, to engage in formal discussion and disputation of
the matters. But, causes of action based upon implied warranty, and affirmative
defenses to them, were directly joined in the district court and should be fully dealt
with in this appeal. Indeed, appellate courts often of necessity resolve issues on the
basis of the record alone, even without argument and briefing by the parties, where,
as here, injustice might otherwise result. Singleton v. Wulff, 428 U.S. 106, 120-21
(1976); see also Nat'l Metalcrafters v. McNeil, 784 F.2d 817, 825 (7th Cir. 1986); Pro
Svc. Auto., L.L.C. v. Lenan Corp., 469 F.3d 1210, 1213 (8th Cir. 2006).

       Unless otherwise properly modified or excluded, the Minnesota Uniform
Commercial Code (UCC), as an incident of public policy, requires implied warranties
of merchantability and fitness for a particular purpose to flow as a matter of law to a
purchaser of goods, even outside the four corners of a written sales agreement. In
Minnesota, these warranties run from both the manufacturer, here Blue Bird, and the
immediate seller, here Shorewood. Minn. Stat. Ann. §§ 336.2-314; 2-315. Nelson v.
Int'l Harvester Corp., 394 N.W.2d 578, 581 (Minn. Ct. App. 1986), overruled on other
grounds by Lloyd F. Smith Co., Inc. v. Den-Tal-Ez, Inc., 491 N.W.2d 11 (Minn.
1992).13


      13
        While the warranties at issue provide that Georgia law governs their terms, the
court says the parties agreed to apply Minnesota law, purportedly because the parties
assumed that there were no differences in the law of the two states. This assumption
is incorrect. Georgia, unlike Minnesota, requires direct privity between a
manufacturer and a purchaser in order for an implied warranty to be binding.
McQueen v. Minolta Business Solutions, Inc., 620 S.E.2d 391, 393-94 (Ga. Ct. App.
2005). The immediate contract of sale in this case was between the manufacturer's
dealer, Shorewood, and buyer Oren even though some of the warranties extended to

                                         -21-
                                 BACKGROUND

      The Blue Bird RV, "goods" as defined in Minn. Stat. Ann. § 336.2-105(1), was
delivered to Oren by Shorewood, Blue Bird's authorized dealer, on July 31, 2003.
Oren filed suit against Shorewood and Blue Bird in Minnesota state court on July 15,
2005. The vehicle was accompanied by a Blue Bird "limited warranty." Appellants'
Add. at 52-53. An exact copy of this warranty as delivered to Oren is attached to and
incorporated within this dissent by reference as Appendix A.

       The relevant sections and subsections (or portions thereof) of the Minnesota
UCC that govern both the express and implied warranties that were extended to Oren
are as follows:

      General definitions

      ...

      (b)(10)      "Conspicuous," with reference to a term, means so written,
                   displayed, or presented that a reasonable person against
                   which it is to operate ought to have noticed it. Whether a
                   term is "conspicuous" or not is a decision for the court.
                   Conspicuous terms include the following:

                   (A)    a heading in capitals equal to or greater in size
                          than the surrounding text, or in contrasting
                          type, font, or color to the surrounding text of
                          the same or lesser size; and

                   (B)    language in the body of a record or display in
                          larger type than the surrounding text, or in
                          contrasting type, font, or color to the
                          surrounding text of the same size, or set off


Oren by Shorewood were underwritten and to be performed by Blue Bird.

                                         -22-
                         from surrounding text of the same size by
                         symbols or other marks that call attention to
                         the language.

Minn. Stat. Ann. § 336.1-201(b)(10).

      Express Warranties by affirmation, promise, description, sample

      (1)   Express warranties by the seller are created as follows:

            (a)    Any affirmation of fact or promise made by the
                   seller to the buyer which relate to the goods and
                   becomes part of the basis of the bargain creates an
                   express warranty that the goods shall conform to the
                   affirmation or promise.

            (b)    Any description of the goods which is made part of
                   the basis of the bargain creates an express warranty
                   that the goods shall conform to the description.

             ...

      (2)   It is not necessary to the creation of an express warranty that the
            seller use formal words such as "warrant" or "guarantee" or that
            the seller have a specific intention to make a warranty, but an
            affirmation merely of the value of the goods or a statement
            purporting to be merely the seller's opinion or commendation of
            the goods does not create a warranty.

Minn. Stat. Ann. § 336.2-313.

      Implied warranty: merchantability; usage of trade

      (1)   Unless excluded or modified (section 336.2-316), a warranty that
            the goods shall be merchantable is implied in a contract for their
            sale if the seller is a merchant with respect to goods of that kind.
            ...


                                        -23-
      (2)   Goods to be merchantable must be at least such as

            (a)    pass without objection in the trade under the contract
                   description; and

            (b)    in the case of fungible goods, are of fair average
                   quality within the description; and

            (c)    are fit for the ordinary purposes for which such
                   goods are used; and

            (d)    run, within the variations permitted by the
                   agreement, of even kind, quality and quantity within
                   each unit and among all units involved; and

            (e)    are adequately contained, packaged, and labeled as
                   the agreement may require; and

            (f)    conform to the promises or affirmations of fact made
                   on the container or label if any.

      (3)   Unless excluded or modified (section 336.2-316) other implied
            warranties may arise from course of dealing or usage of trade.

Minn. Stat. Ann. § 336.2-314.

      Implied warranty; fitness for particular purpose

      Where the seller at the time of contracting has reason to know any
      particular purpose for which the goods are required and that the buyer is
      relying on the seller's skill or judgment to select or furnish suitable
      goods, there is unless excluded or modified under the next section an
      implied warranty that the goods shall be fit for such purpose.

Minn. Stat. Ann. § 336.2-315.

      Exclusion or modification of warranties


                                        -24-
      (1)   Words or conduct relevant to the creation of an express warranty
            and words or conduct tending to negate or limit warranty shall be
            construed wherever reasonable as consistent with each other; but
            subject to the provisions of this article on parol or extrinsic
            evidence (section 336.2-202) negation or limitation is inoperative
            to the extent that such construction is unreasonable.

      (2)   Subject to subsection (3), to exclude or modify the implied
            warranty of merchantability or any part of it the language must
            mention merchantability and in case of a writing must be
            conspicuous, and to exclude or modify any implied warranty of
            fitness the exclusion must be by a writing and conspicuous. . . .

      (3)   Notwithstanding subsection (2)

            ...

            (c)   an implied warranty can also be excluded or
                  modified by course of dealing or course of
                  performance or usage of trade.

      ...

Minn. Stat. Ann. § 336.2-316.

      Statute of limitations in contracts for sale

      (1)   An action for breach of any contract for sale must be commenced
            within four years after the cause of action has accrued. By the
            original agreement the parties may reduce the period of limitation
            to not less than one year but may not extend it.

      (2)   A cause of action accrues when the breach occurs, regardless of
            the aggrieved party's lack of knowledge of the breach. A breach
            of warranty occurs when tender of delivery is made, except that
            where a warranty explicitly extends to future performance of the


                                       -25-
             goods and discovery of the breach must await the time of such
             performance the cause of action accrues when the breach is or
             should have been discovered.

      ...

      (4)    This section does not alter the law on tolling of the statute of
             limitations, nor does it apply to causes of action which have
             accrued before this chapter becomes effective.

      ...

Minn. Stat. Ann. § 336.2-725.

                                   DISCUSSION

                                          I.

       As stated above, the UCC provides that breach of an implied warranty "must
be commenced within four years" but the parties may reduce the period of limitation
by agreement to not less than one year. Minn. Stat. Ann. § 336.2-725(1). Thus, by
agreement, the UCC authorized Blue Bird to shorten the period to one year subject to
restrictions set forth in section 336.2-316(2) above, that is that any modifications or
exclusions be in writing, unambiguous, and mention the word "merchantability."
Dubbe v. A.O. Smith Harvestore Prods., Inc., 399 N.W.2d 644, 647-48 (Minn. Ct.
App. 1987). In Dubbe, the trial court and court of appeals found the manufacturer's
warranty disclaimer sufficient as a matter of law. The Minnesota court noted that
Harvestore had totally disclaimed all implied warranties, capitalized all words in the
entire disclaimer section, and specifically mentioned the word "merchantability." The
courts also observed that Mr. Dubbe stated in the agreement that he had read the
disclaimer. Id. In this case, however, on the crucial issues of disclaiming implied
warranties and reducing the litigation limitation period as authorized by Minn. Stat.


                                         -26-
Ann. § 336.2-725(1), we face very different facts. Oren makes no statement that he
was asked to or did read the language outlining the reduced limitation period. And,
as noted in Appendix A, the capitalized language dealt not with the lawsuit limitation
period but rather created the overall length of the warranty period, including an
implied warranty duration of two or three years, limited the nature of some
recoverable damages, and specified which of Blue Bird's employees could make
additional representations. It bears repeating that this capitalized portion of the
contract did not at all deal with the period of time in which litigation could be
commenced for breach of any of the warranties. Indeed, the statute of limitation
reduction language is found in a wholly new paragraph presented in significantly
smaller, uncapitalized type. The new paragraph totally deals with a different subject
than the capitalized portions. Blue Bird slips the limitation language into the fourth
and last sentence of the new paragraph, which sentence reads, in isolation both as to
location and subject matter, as follows: "[a]ny suit alleging a breach of this limited
warranty or any other alleged warranty must be filed within one year of breach."
There is no mention of either "implied warranty" or "merchantability" within or near
this supposedly limiting language.

       This crucial, purportedly limiting language violates Minn. Stat. Ann. § 336.1-
201(b)(10)(A) and (B) of the UCC which, as earlier stated, requires capital letters
equal or greater in size than the surrounding text or use of contrasting type, font or
color or set-offs that call attention to the language. See Valley Paving, Inc. v. Dexter
& Chaney, Inc., No. C2-00-361, 2000 W.L. 1182800, at *1-2 (Minn. Ct. App. Aug.
22, 2000). As a matter of law, this limiting language relied upon by Blue Bird and the
court is both inconspicuous and ambiguous. Accordingly, reviewing the matter de
novo as we must, a four-year statute of limitations should apply.




                                         -27-
                                           II.

        Assuming, but purely for argument's sake, the validity of Blue Bird's claimed
one-year statute of limitation, and its contention that the limitation period began to run
at the time of the July 31, 2003, delivery, Oren's implied warranty of merchantability
claim is still not barred. As an initial matter, Blue Bird's express warranties purport
to be valid for either two or three years and the implied warranties "are limited to the
warranty period of this written warranty." Appendix A. Giving Oren the benefit of
these inconsistent terms, the warranty period for the implied warranties would be three
years. Nonetheless, for our purposes, a two-year period is more than enough. And,
while there is probably an implied warranty of fitness for a particular purpose under
Minn. Stat. Ann. § 336.2-315 that may have passed to Oren, it is not particularly
relevant to my concerns. An implied warranty of merchantability was clearly imposed
upon Blue Bird as a matter of law and public policy under Minn. Stat. Ann. § 336.2-
31414 and such a warranty carries with it measures of liability and damages beyond
those purportedly "excluded" or "modified" by Blue Bird's "limited warranty." See
Minn. Stat. Ann. § 336.2-316. Thus, the viability of the merchantability warranty is
more than of academic interest to Oren.

      Without argument, Blue Bird expressly warranted the RV to be free from
defects in at least three ways. See Appellants' Add. at 52. And, as conceded by both
Blue Bird and the court, there is little doubt that the RV was "defective" when
delivered and, according to the court, little doubt that the vehicle was never
"merchantable" at any time relevant to this dispute, or, at least, a fact question not
reachable through summary judgment exists on this issue.




      14
        Section 336.2-314(2)(a)-(f) defines "merchantability."

                                          -28-
       In this regard, paragraph one of the "Limited Warranty" is of particular interest.
It says "3. For a period of two (2) years from the date of delivery to the original
purchaser [Blue Bird] warrants all other components installed by Blue Bird and
Wonderlodge." Id. Then, in the third and sixth paragraphs of the "Limited Warranty,"
Blue Bird reserves for this two-year period the right to attempt to cure any defects and
make the vehicle merchantable as required by the implied warranty. Accordingly, if
you credit Blue Bird's one-year statute of limitation affirmative defense and attempt
to square it with the court's conclusions in this appeal, the one-year lawsuit limitations
period for the implied warranties "expired" well before Blue Bird gave up its right to
cure the defects which would have made the RV comply with the requirements of the
implied warranty. This result flies in the face of approximately fifty years of
consumer equity policy imbedded within the enactment of the Uniform Commercial
Code in, by now, all fifty states, some territories, and a commonwealth. Blue Bird's
clever penmanship and paragraph positioning cannot be allowed to overrule the policy
pronouncements of the Uniform Commercial Code.

                                           III.

       Even if you avoid the ambiguity, conspicuousness and public policy problems
inherent in the facts at work in this case, a further, and perhaps more important, error
lurks within the court's opinion. I again assume for purposes of discussion the validity
of the court's analysis that Oren's cause of action for breach of the implied warranty
occurred upon delivery of the "unmerchantable" RV on July 31, 2003. I further
assume that a statute of limitations period of one year binding upon Oren also
commenced on that date. Nonetheless, Minn. Stat. Ann. § 336.2-725, the UCC section
that authorizes a reduction in the limitation period, also states in subsection (4) that
"[t]his section does not alter the law on tolling of the statute of limitations." Thus, any
law on tolling available to Oren in Minnesota interrupted the running of the limitation
period applicable to this RV sale. At least three tolling theories serve to protect Oren's
breach of implied warranty cause of action. They include the doctrines of equitable

                                           -29-
estoppel, estoppel through misrepresentation and estoppel by repair. While the court
does recognize the applicability of equitable estoppel in this action and, indeed,
incompletely applies it to this case, it incorrectly decides the issue as a question of
law. On the evidence in this record, this is clear error.

       Upon equivocal evidence, equitable estoppel, or not, is a question of fact for the
jury. L & H Transport, Inc. v. Drew Agency, Inc., 403 N.W.2d 223, 227 (Minn.
1987); Rhee v. Golden Home Builders, Inc., 617 N.W.2d 618, 622 (Minn. Ct. App.
2000). Of even more importance, Blue Bird's statute of limitations affirmative
defense is also a question of fact for the jury. Ciardelli v. Rindal, 582 N.W.2d 910,
912 (Minn. 1998). The court concedes that Blue Bird attempted, and Oren permitted,
additional, but failed, repairs until at least October 4, 2004. Ante at 10. Based upon
this uncontradicted evidence, the court correctly states "Oren continued to believe
Blue Bird was capable of eventually repairing the RV" and concluded that a genuine
issue of fact existed as to "the date Oren knew or should have known Blue Bird was
unable to maintain the RV as warranted"–i.e., the date that the defect could be cured
by Blue Bird making the vehicle merchantable as impliedly warranted. Ante at 10.
This is, of course, the stuff of detrimental reliance, an important and likely controlling
element of equitable estoppel. Yet for purposes of a statute of limitations calculation
on Oren's implied warranty, the court adopts July 2, 2004, a date untethered to any
legally significant event in this transaction. Ante at 13. And, in doing so, without
explanation, the court appears to lift Blue Bird's burden of proof on its affirmative
limitations defense and effectively places it upon Oren. The court does this by
requiring Oren to adduce direct (as opposed to circumstantial) evidence of his
affirmative forbearance in commencing suit based upon Blue Bird's many failed
efforts to make the RV merchantable.

      Even so, and without regard to burdens of proof, factual questions abound on
both issues–equitable estoppel and statute of limitations. For instance, as the court
concedes, Oren permitted Blue Bird to complete additional repairs as late as October

                                          -30-
4, 2004, which, according to the court "strongly suggest[ed] Oren continued to believe
Blue Bird was capable of eventually repairing the RV." Ante at 10. This is, of course,
full-blown evidence of reliance by Oren on Blue Bird's assurances. If anything,
equitable estoppel interrupting the running of the statute of limitations could have
been determined as a matter of law on this evidence alone. But, in November 2004,
Blue Bird twice wrote to Oren, representing that it would "stand behind our
commitment to provide [Oren] the best possible service" and that it "remain[ed]
willing to work with [Oren] directly or through our distributor to assure [Oren] that
the motor home conform[ed] to the warranty." Appellants' App. at 10-11. Thereafter,
Oren alerted Blue Bird in a letter dated November 29, 2004, that the RV again would
not start. Id. at 12-13. Then, Blue Bird responded on December 1, 2004, finally
stating there was nothing wrong with the motor home and that Blue Bird had lived up
to its obligations. Id. at 19. In response, on December 6, 2004, Oren, for the first
time, raised the issue of litigation. Id. at 20. Clearly then, until late into November
2004, there are enough disputed facts to require presentation of the issues of equitable
estoppel and the limitation defense to a jury. Even the earlier October 4 estoppel date
would have been less than ten months prior to the expiration of a twelve-month statute
of limitations.

       There are also other fact issues in play in this litigation, given Blue Bird's
reservation of its right to cure defects for a two-year period. This raises the possibility
of estoppel by misrepresentation. Cf. Vesta State Bank v. Indep. State Bank of Minn.,
518 N.W.2d 850, 855 & n.7 (Minn. 1994) (noting that statute of limitations begins to
run only when the aggrieved party discovers the facts constituting fraud, and that this
rule applies to causes of actions arising in transactions governed by the UCC due to
the operation of § 336.2-725(4)).

      Finally, the court does not address, and in fact, summarily rejects, Minnesota's
estoppel-by-repair doctrine. Ante at 11 n.7. I concede that the Minnesota Supreme
Court has never held that promises by a seller to make repairs give rise to estoppel or

                                           -31-
a tolling of a statute of limitation. I predict, however, that available precedent
establishes the viability of the doctrine in Minnesota.

        In Colorado-Ute Electric Ass'n, Inc. v. Envirotech Corp., 524 F. Supp. 1152 (D.
Colo. 1981), Buell furnished a precipitator for a power plant that failed its first
performance test. This made it unmerchantable and in breach of an implied warranty
of merchantability governed, like here, by the statute of limitations set forth in Minn.
Stat. Ann. § 336.2-725(1). After the first failure, also like here, Buell repeatedly
assured Colorado-Ute that it could and would remedy the unmerchantable
performance. When Buell failed to cure, Colorado-Ute sued one year beyond the
four-year statute of limitations, and Buell responded with a "tender of delivery" statute
of limitations defense. The court rejected the defense and invoked the doctrine of
tolling-by-repair saying "where the obligor agrees to perform its contract obligations
within a reasonable period, [here two years under Blue Bird's express warranties] the
statute of limitations does not begin to run until the efforts to perform are abandoned"
and even if the repair work had not tolled the statute of limitations, Buell would be
estopped from taking advantage of it. 524 F. Supp. at 1156. In an unpublished 1989
opinion of the Minnesota Court of Appeals, Deters v. Columbia Heights Motors, No.
C7-89-931, 1989 W.L. 206569, at *2 (Minn. Ct. App. Oct. 10, 1989), the court stated
"[u]nder the tolling by repair doctrine, a defendant's conduct in assuring the plaintiff
that it could fix a complained-of defect and making continued efforts to cure that
defect may operate to toll the limitations period. See Colorado-Ute Electric
Association, Inc. v. Envirotech Corp., 524 F. Supp. 1152, 1155 (D. Colo. 1981)." In
1991, the Minnesota Court of Appeals held that promises to repair tolled a section
336.2-725(2) cause-of-action-accrual claim. Church of the Nativity of Our Lord v.
Watpro, Inc., 474 N.W.2d 605, 611 (Minn. Ct. App. 1991).

      Sohns v. Pederson, 354 N.W.2d 852 (Minn. Ct. App. 1984), involved an
implied warranty claim which accrued upon delivery of a "Bobcat" skidloader. It was
immediately clear that the Bobcat was defective and over a period of two years, the

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dealer promised a new machine. The plaintiff brought an action eight months late
absent estoppel. The Minnesota court held that the promises to replace the Bobcat
tolled the running of the statute of limitations. Id. at 855. The failure to deliver a
promised non-defective replacement and the failure to deliver promised repair services
sufficient to cure a defect seem to be almost indistinguishable acts for purposes of
tolling a statute of limitations.

       Likewise, Lake Superior Center Auth. v. Hammel, Green & Abrahamson, Inc.,
715 N.W.2d 458 (Minn. Ct. App. 2006), involved a real estate defect. Although the
parties knew of the defect immediately, discovery for purposes of the statute of
limitations did not occur until it was clear that cure of the defect was not possible,
notwithstanding repeated attempts to do so. Id. at 473.

       This Minnesota precedent convinces me that the estoppel-by-repair doctrine is
alive and well in Minnesota in addition to the equitable estoppel doctrine already
validated by the court. At the bottom line, estoppel, or not (under any of the three
doctrines) presents a question of fact not susceptible to dismissal by the court as a
matter of law through a motion for summary judgment.

                                   CONCLUSION

      For any and all of the above-stated reasons, the district court's grant of summary
judgment dismissing Oren's implied warranty of merchantability claims should be
reversed. From the court's contrary conclusion, I dissent.
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APPENDIX A




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