so my question for you miss wells is why does that help you if i were to assume as you argue that north carolina law treats breach of warranty claims as creatures does contract claims and that substantial performance is enough i'm still stuck looking at this paragraph in the warranty that states the manufacturer requires that the owner st provide it with direct written notification and so on enables the manufacturer to supplement prior efforts by its authorized dealers so what mr baer ski does by canceling that appointment to return the the r v to the manufacturer is it totally deprives the manufacturer of two essential pieces of information that this warranty is supposed to give it number one you know what really was wrong how are our products holding up you know this one certainly sounds like a disaster from what you've put in the record but the manufacturer has a strong interest in monitoring its own work product and it secondly deprives the manufacturer of the ability to know how well it authorized dealer network are handling these problems and i don't see substantial compliance at all with respect to this paragraph it seems that the manufacturers left with nothing thank you or are so the way that i read this is that under that paragraph the requirement on the consumer is to provide the manufacturer with direct notification any alleged unrepaired defect or any of the  in this case when mr compare ski doesn't give them the opportunity to cure the flawed efforts of the earlier authorized dealers so i read read the requirement and ending out with the the motor home and then the purpose of explaining the purpose of that requirement in the remainder so the requirement would be to provide direct written notification which mr cooper on april th of twenty  and he provided them an opportunity to resolve the issue by taking the r v back or replacing it and so the purpose i read in the warrant she is that the manufacturer have an opportunity to resolve or address the problems or the dissatisfactions before a lawsuit is filed so well that mr  gives our easy an ultimatum he suggests only two ways in which this can be fixed and he deprives the manufacturer of the opportunity to fix it now he may be absolutely in good faith convinced that there's no way that can happen and maybe the manufacturer would have taken one look at that r v and said yep you're right you know the only thing we can do is you know give you a new vehicle or refund your money or whatever but they that's the part that doesn't happen which is why i find this substantial compliance discussion a little bit beside the point since it seems to me even if you say there's a substantial compliance doctrine that applies in north carolina law attempt under the terms of the warranty by writing his letter and in doing so complex the central purpose of the warranty by providing rav recreation group with the opportunity to resolve the dispute prior to the lawsuit being final and i was with the opportunity to replace it not national security well the letter requested repurchase or replace but  say that says clearly that there until to a final repair but doesn't say this here it just instructs the the consumer that they're required to provide direct written notification and then explain what are you doing with this phrase so the manufacturer had the opportunity to cure the problem or dissatisfaction itself and it seems like you're just deleting that i think the red did have the opportunity but  refused to resolve the matter in a way that was agreeable to both parties and then offer in effect your repair there's no there is no evidence that that rob said we're entitled to this factory pair under the act it's a federal claim but it applies the state law which applies in the case and in both parties agree and the court applied on north carolina law in this case so read at trial t did two things st we filed a supplemental instruction regarding the doctrine of substantial performance and nd we filed well after the court issued its final jury instructions tort and contract which is unique in the law and that uniqueness is the foundation of this appeal and a very b s argument the narrow issue before the court is whether always actually a secondary issue i certainly recognize that the primary issue deals with whether the jury instructions lay within the boundaries that we ask i mean they don't have to be perfect but they can't mislead the jury you know they've got to substantially present the point but there's also the question even if the judge should have added the word substantial to those jury instructions because the court did not limit any arguments factually that the plate of could make a trial i have two main points to make today in my argument this morning the st is that  the overwhelming body of authority and case law regarding breach of warranty and the elements required to sustain a claim for breach warranty show that the trial court was correct in its instruction number seventeen as to the elements for breach of warty under the u c c an amazin must act and secondly that the proposed instruction on substantial performance not only is it not proper under the law but had been he didn't raise until trial that is in fact opportunity to cure or is one of the issues raised initially in our answer to the complaint going back to two thousand and fifteen a reminder for this is not a case in which  prevailed upon summary judgment in the plant did not have an opportunity to present her factual arguments this was a case that went to trial the court issued the instructions that in our view properly instructed the jury on the elements necessary for and the plaintiff through his counsel had every opportunity to present the facts to arguments so as they let me ask you this mr sullivan i can imagine that in some instances deprivation of the you or you know might be a real problem you know maybe there's one part or something that a manufacture could address but if you look at plaintiff's exhibit thirty one which is on a page eleven of the separate appendix and goes on for a few pages i mean it just seems that this was beyond any capability of being fixed and so i wonder if you are that question that the whole point is your own point out in the war to itself is to give or even the manufacturer itself the opportunity to cure and the opportunity to cure is a recognized element under onset it seems it would have had to start rebuilding it from scratch though i mean honestly if you look at that list you're out of the point was this is a necessary element that they play it is required to show plaintiff or the can consumer must give the purpose of this is to give the many thanks for itself the opportunity to correct any prior efforts by its dealers and result in the ongoing a problem with the vehicle that simply wasn't  answer to that is yes absolutely it did the plaintiff argues in his brief that the court required strict compliance by not giving the supplemental instruction the vehicle at issue could be to the fish covered by the warranty and that the defense was given a reasonable opportunity to cure or repair any defect covered by the word that was not able to be repaired within a reasonable number of attempts to reasonable period of time the point being that north carolina that dealt with the construction contract involving a church project in which nearly all of the project was completed and then the defendant refused to pay and so the issue was having nearly complete the entire construction contract we should be entitled to money notwithstanding in that situation suggestion performance would apply but there is no case anywhere in the country that applies substantial performance to breach of warranty the reason for that is the hybrid nature of warranty itself the whole reason for the u c c in the mason was that in the body of law there is that unlike a regular performance contract a construction for there's a substantial forms instruction was that the plaintiff be allowed to only show they had not literally comply with the contract provisions would substantially complied and still be able to recover but i did that in  specifically written in there the already is the converse would not be fair because if the plaintiff is only required to substantially comply there's no way a court would hold that the defendant is only required to substantially comply with fixing the r v in order sorry up so just briefly the question was that we were limited in our arguments at trial that's certainly not the case in closing we were able to argue substantial compliance because that's not what the instructions  point i wanted to make is that appellee indicated that this was not a new argument because opportunity to cure was raised as a defense of an affirmative defense in the answer but i think there's a confusion at a bit on country that was holding consistent with our argument and as i noted in my reply brief response to that argument in the case of hill versus winnebago industries middle district case in tennessee  eighteen the court help what we're asking we asked this court to do that substantial compliance work substantial performance applied in a breach of warranty americans case involving rb and then the last