{ "id": 8527577, "name": "SHELBY OGLE ALLEN, Plaintiff v. ROUSE TOYOTA JEEP, INC., formerly d/b/a CAROLINA TOYOTA, and CAROLINA TOYOTA, INC., Defendants", "name_abbreviation": "Allen v. Rouse Toyota Jeep, Inc.", "decision_date": "1990-12-04", "docket_number": "No. 8928SC1178", "first_page": "737", "last_page": "741", "citations": [ { "type": "official", "cite": "100 N.C. App. 737" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "83 L.Ed.2d 69", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "469 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11986627, 11987263, 11986985, 11986410, 11986347, 11986733, 11986478, 11987055, 11986541, 11986902, 11986681, 11987165, 11986815 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0835-05", "/us/469/0835-13", "/us/469/0835-10", "/us/469/0835-02", "/us/469/0835-01", "/us/469/0835-07", "/us/469/0835-03", "/us/469/0835-11", "/us/469/0835-04", "/us/469/0835-09", "/us/469/0835-06", "/us/469/0835-12", "/us/469/0835-08" ] }, { "cite": "315 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 624", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2400620, 2393484, 2400656, 2401979, 2401148 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0624-02", "/nc/310/0624-05", "/nc/310/0624-01", "/nc/310/0624-03", "/nc/310/0624-04" ] }, { "cite": "310 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 242", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523284 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0242-01" ] }, { "cite": "384 S.E.2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 8578896 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/w-va/181/0763-01" ] }, { "cite": "748 S.W.2d 410", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 11960935 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/sw2d/748/0410-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-2-608", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "294 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "year": 1982, "opinion_index": 0 }, { "cite": "291 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "57 N.C. App. 49", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521872 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/57/0049-01" ] }, { "cite": "53 S.E.2d 84", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629282 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0229-01" ] }, { "cite": "246 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 543", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553937 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0543-01" ] } ], "analysis": { "cardinality": 494, "char_count": 9256, "ocr_confidence": 0.723, "pagerank": { "raw": 4.948876891521655e-08, "percentile": 0.31230720401073575 }, "sha256": "6455cfcf24608fd38262a8ad99dece934950c6fd253ea55ab455fcf90b2148f7", "simhash": "1:2772a829fc5f0fd7", "word_count": 1507 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Duncan concur.", "Judge DUNCAN concurred in this opinion prior to 30 November 1990." ], "parties": [ "SHELBY OGLE ALLEN, Plaintiff v. ROUSE TOYOTA JEEP, INC., formerly d/b/a CAROLINA TOYOTA, and CAROLINA TOYOTA, INC., Defendants" ], "opinions": [ { "text": "WELLS, Judge.\nPlaintiff has assigned error to the trial court\u2019s conclusions that the value of the automobile was not substantially impaired and that it was not substantially impaired for its intended use. She also assigns error to the court\u2019s conclusion that there was a substantial change in the vehicle not due to any defect before the attempted revocation. We reverse and remand.\nNorth Carolina General Statute \u00a7 25-2-608 provides in pertinent part:\n(1) The buyer may revoke his acceptance of a . . . commercial unit whose nonconformity substantially impairs its value to him. . . .\n(2) Revocation of acceptance must occur within a reasonable time . . . and before any substantial change in condition of the goods which is not caused by their own defects. . . .\nCompliance with each of these statutory prerequisites to revocation involves questions of fact, not matters of law for the trial court. 4 Anderson, Anderson on the Uniform Commercial Code, \u00a7 2-608.20 (3rd ed. 1982). While a fact-finder\u2019s resolution of a factual issue is generally binding for appellate purposes if supported by competent evidence, findings made under a misapprehension of law are not binding. Dishman v. Dishman, 37 N.C. App. 543, 246 S.E.2d 819 (1978). When faced with such findings, the appellate court should remand the action for consideration of the evidence in its true legal light. Hanford v. McSwain, 230 N.C. 229, 53 S.E.2d 84 (1949).\nIn any case of attempted revocation, the threshold issue is whether the goods have a nonconformity which substantially impairs its value to the buyer. Resolution of this factual issue requires the application of a two-part test which considers both the buyer\u2019s subjective reaction to the alleged defect (taking into account the buyer\u2019s needs, circumstances, and reaction to the nonconformity) and the objective reasonableness of this reaction (taking into account the goods market value, reliability, safety, and usefulness for purposes for which similar goods are used, including efficiency of operation, cost of repair of nonconformities, and the seller\u2019s ability or willingness to seasonably cure the nonconformity). Wright v. O\u2019Neal Motors, Inc., 57 N.C. App. 49, 291 S.E.2d 165, disc. review denied, 306 N.C. 293, 294 S.E.2d 221 (1982). It does not appear that the court applied this test in making the ultimate findings (mislabeled as conclusions of law) that the value of the car to plaintiff was not substantially impaired, and that it was not impaired for its intended use. The evidentiary findings reflect a substantial defect in the car, repeated, unsuccessful repair efforts, and plaintiff\u2019s continued use of the car. We are unable to determine whether the trial court gave appropriate consideration to plaintiff\u2019s subjective reaction to the vehicle\u2019s problems in the context of the objective criteria. The proper test to be applied is a \u201cpersonalized objective test,\u201d or how a reasonable person would react if in the buyer\u2019s position. See 4 Anderson, \u00a7 2-608.23. Our review of the record reveals factual questions to be resolved under this analysis. We therefore remand for a proper resolution of this issue.\nThe court also concluded (found) that there was a substantial change in the condition of the car before the attempted revocation not due to any defect. Under N.C. Gen. Stat. \u00a7 25-2-608 (2), this would bar any attempt at revocation. This conclusion (finding) is at odds with the court\u2019s conclusion (finding) that plaintiff\u2019s revocation occurred within a reasonable time. While there is authority from other jurisdictions which equates increased mileage with a substantial change in condition, see Ford Motor Credit Co. v. Mellor, 748 S.W.2d 410 (Mo. App. 1988), we decline to adopt such a rule. When the defendant has made repeated assurances that the defect can be and will be cured, a delay in revocation to see if these assurances are met is not per se unreasonable. See City Nat. Bank of Charleston v. Wells, 384 S.E.2d 374 (W.Va. 1989). Particularly when dealing with an automobile, we decline to impose a rule that the goods cannot be used during such a time period.\nBecause there are no errors asserted as to the conduct of the trial below, it is unnecessary to order a new trial. See Chemical Realty Corp. v. Home Federal Savings & Loan Ass\u2019n of Hollywood, 65 N.C. App. 242, 310 S.E.2d 33 (1983), disc. review denied, 310 N.C. 624, 315 S.E.2d 689, cert. denied, 469 U.S. 835, 83 L.Ed.2d 69 (1984). Accordingly, we reverse the judgment below and remand for further proceedings consistent with this opinion.\nReversed and remanded.\nJudges Parker and Duncan concur.\nJudge DUNCAN concurred in this opinion prior to 30 November 1990.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "'Moore, Lindsay & True, by Ronald C. True, for plaintiff-appellant.", "Mullinax & Alexander, by William M. Alexander, Jr., for defendants-appellees." ], "corrections": "", "head_matter": "SHELBY OGLE ALLEN, Plaintiff v. ROUSE TOYOTA JEEP, INC., formerly d/b/a CAROLINA TOYOTA, and CAROLINA TOYOTA, INC., Defendants\nNo. 8928SC1178\n(Filed 4 December 1990)\n1. Automobiles and Other Vehicles \u00a7 274 (NCI4th)\u2014 purchase of automobile \u2014 attempted revocation \u2014 substantial impairment of value\nIn an action for revocation of a sale of an automobile in which the trial court sat without a jury, the court\u2019s findings (mislabeled as conclusions of law) regarding whether the automobile had a nonconformity which substantially impaired its value to the buyer were remanded where the evidentiary findings reflect a substantial defect in the car, repeated, unsuccessful repair efforts, and plaintiff\u2019s continued use of the car, and the Court of Appeals was unable to determine whether the trial court gave appropriate consideration to plaintiff\u2019s subjective reaction to the vehicle\u2019s problems in the context of the objective criteria. The proper test to be applied is a \u201cpersonalized objective test,\u201d or how a reasonable person would react in the buyer\u2019s position. N.C.G.S. \u00a7 25-2-608.\nAm Jur 2d, Consumer Product Warranty Acts \u00a7\u00a7 66-68; Sales \u00a7\u00a7 1238, 1239, 1247-1249.\n2. Automobiles and Other Vehicles \u00a7 274 (NCI4th) \u2014 sale of automobile \u2014 revocation\u2014use of automobile\nThe trial court erred in an action for revocation of the sale of an automobile by concluding that there was a substantial change in the condition of the car before the attempted revocation not due to any defect where that conclusion was at odds with the court\u2019s conclusion that plaintiff\u2019s revocation occurred within a reasonable time. When the defendant has made repeated assurances that the defect can and will be cured, a delay to see if these assurances are met is not per se unreasonable and, particularly when dealing with an automobile, the Court of Appeals declined to impose a rule that the goods cannot be used during such a time period. N.C.G.S. \u00a7 25-2-608(2).\nAm Jur 2d, Consumer Product Warranty Acts \u00a7\u00a7 66-68; Sales \u00a7\u00a7 1235, 1236.\n3. Appeal and Error \u00a7 487 (NCI4th)\u2014 action tried without jury\u2014 findings made under misapprehension of law \u2014 reversed and remanded \u2014 no new trial\nIt was not necessary to order a new trial in an action for revocation of an auto purchase where the court sitting without a jury made findings under a misapprehension of the law. Findings made under a misapprehension of law are not binding, and the judgment was reversed and remanded.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 839, 844.\nJudge DUNCAN concurred in this opinion prior to 29 November 1990.\nAPPEAL by plaintiff from judgment entered 12 June 1989 in BUNCOMBE County Superior Court by Judge C. Walter Allen. Heard in the Court of Appeals 3 May 1990.\nPlaintiff purchased a 1986 Toyota Corolla automobile from defendant Rouse Toyota Jeep, Inc. (Rouse) on 29 November 1985. Plaintiff returned the car to Rouse on 5 December 1985 to correct a hesitation problem. The car \u201cbogged down\u201d and \u201clagged\u201d when the gas pedal was engaged. Rouse\u2019s efforts to fix the car on that occasion were unsuccessful. Plaintiff returned the car for further repair attempts of the same problem 15 or 16 times in the next eleven months, leaving the car overnight on many occasions.\nPlaintiff told Rouse in November 1986 that she wanted a replacement automobile or her money back. Rouse did not respond to her demand. Plaintiff had driven the car less than 20,000 miles at the time. Counsel for plaintiff sent Rouse a written letter of revocation on 21 January 1987, again demanding a refund of the purchase price, or a replacement vehicle; Plaintiff filed this action on 7 May 1987, seeking to revoke acceptance of the vehicle and seeking damages. She continued to drive the car through the time of trial.\nThe case was tried without a jury on 30 March 1989. The trial court found the above-stated facts and concluded as a matter of law:\n1. There was a substantial change in the Toyota Corolla not due to any defect before the attempted revocation;\n2. That the revocation did occur within a reasonable time after the discovery of the defect;\n3. That the value of the Toyota Corolla was not substantially impaired by the defect;\n4. That the Toyota Corolla was not substantially impaired for its intended use;\n5. That Chapter 20, Article 15A is not applicable to this cause of action.\nBased on these findings of fact and conclusions of law, the court denied plaintiff any recovery. Plaintiff appeals.\n'Moore, Lindsay & True, by Ronald C. True, for plaintiff-appellant.\nMullinax & Alexander, by William M. Alexander, Jr., for defendants-appellees." }, "file_name": "0737-01", "first_page_order": 769, "last_page_order": 773 }