1 (b) The C ourt, wi th the co ncurren ce of all judges p artici pating i n the cas e, may affi rm,

reverse or modify the actions o f the trial court by memorand um opinion when a formal o pinion would have no precedential value. When a case is decided by mem orandum opinion it shall be designated "MEMORANDUM OPI NION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated ca se. 

### FILED July 13, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

DON DA Y and KIM DA Y, on behalf ) C/A NO. 03A01-9811-CV-00372 of themse lves and all o thers similarly ) situated, ) ROAN E CIRC UIT ) Plaintiffs-Appellants, ) HON . RUS SELL SIMM ONS , JR., ) JUDGE v. ) ) GENERAL MOTORS ACCEPTANCE ) CORPORATION, ) AFFIRMED ) AND Defendant-Appellee. ) REMANDED

GORD ON BA LL, Knoxville, for Plaintiffs-Appellants. STEPHEN G. ANDERSON a nd ANDREW L. COLOCOTRONIS, BAKER, DONELSO N, BEARMA N & CALD WELL, P.C., Knoxville, for Defendant-Appellee.

M E M O R A N D U M O P I N I O N 1 Franks, J.
This action was dism issed by the Tr ial Judge fo r failure to state a claim upon which relief could be granted, pu rsuant to T.R.C.P. §12 .02(6).

The alleged facts i

n this case are

identical in all mater

ial respect, to the2

alleged facts

in Harv ey v. Fo rd Mo tor Cre dit Co., 1999 W L 356 301 (T enn. A pp.). Plaintiffs Don and Kim Day purchased a vehicle fr om a Chevrolet dealer in Roane County . Plainti ffs financed the vehi

cle through the dea

ler and defenda nt Gener al Motors Accepta nce Corp oration (“G MAC ”). Plaintiffs file d suit against GMAC, alleging that its “dealer

reserve” pract

ice violat es the Tennessee Consumer Protection Act.The Trial Court, r elying on i

ts prior decision in Harvey , dismissed the complaint and plai ntiffs have appeal

ed. The Trial Court proper

ly dismis sed plainti

ffs’ Second Amended Complaint. The complaint is substant

ially the same in all

material respects to the complaint in Harvey. The Second Amended Complaint therefore suff ers from the same defects and simi

larly f ails to st ate a claim under t

he Tennessee Consumer Protection A ct.

Plaintif fs cite ca ses con struing I llinois law to supp ort their p osition. These cases all involved sales of extended w arranties and are distinguishable. In Bernhauser v. Glen Ellen Dodge , 683 N.E.2d 1194 (Ill .App. 1997), the cour t did not expressly

decide the issue of proximate cause.In Bambilla v. Evanston Nis san, Inc. , 1996 WL 284954 at *5 (N.D. Ill. 1996) , the court addr essed proximate cause: Plaintiffs

can prove damages as a proximat e cause if they

can induce the trier of fac t to believe tha t they would h ave canc eled their dea ls if they found out t

hat they were actually

paying more for t

he cars than they thought o r that they wou ld not have entered into the service c ontracts if they had known that t

hey were incurr

ing an upcharge. Althoug h plaintiffs c ontend the y made simila r allegations in their Secon d Am ended Com plaint, th e record does n ot supp ort their p osition. CironeShadow v. United Nissan of Waukegan , 955 F.Su pp. 938 (N .D. Ill. 1997), is sim ilarly distingu ishable
.

We adopt our reasoning set forth in the Harvey opinion, as well as our opinion on the Peti

tion to Rehear i

n that case, a

nd affirm the judgment of t he Trial3

Court and remand. We assess the cost of the appeal to the appellants.

__________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ William H. Inman, Sr.J.