1

(b) The Court, with the concurrence of all judges participating in the case, may affirm,

reverse or modify the actions of the trial court by memorandum opinion when a formal opinion

would have no precedential value. When a case is decided by memorandum opinion it shall be

designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on

for any reason in a subsequent unrelated case.

FILED

July 13, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

DON DAY and KIM DAY, on behalf ) C/A NO. 03A01-9811-CV-00372

of themse lves and all others similarly ) 

situated, ) ROANE CIRCUIT

)

Plaintiffs-Appellants, ) HON. RUSSELL SIMM ONS, JR.,

) JUDGE

v. )

)

GENERAL MOTORS ACCEPTANCE )

CORPORATION, ) AFFIRMED

) AND

Defendant-Appellee. ) REMANDED

GORDON BALL, Knoxville, for Plaintiffs-Appellants.

STEPHEN G. ANDERSON and ANDREW L. COLOCOTRONIS, BAKER,

DONELSON, BEARMAN & CALDWELL, P.C., Knoxville, for Defendant-Appellee.

M E M O R A N D U M O P I N I O N1

Franks, J.

This action was dismissed by the Trial Judge for failure to state a claim

upon which relief could be granted, pursuant to T.R.C.P. §12.02(6).

The alleged facts in this case are identical in all material respect, to the
2

alleged facts in Harvey v. Ford Motor Credit Co., 1999 WL 356301 (Tenn. App.). 

Plaintiffs Don and Kim Day purchased a vehicle from a Chevrolet

dealer in Roane County. Plaintiffs financed the vehicle through the dealer and

defendant General Motors Acceptance Corporation (“GMAC”). Plaintiffs filed suit

against GMAC, alleging that its “dealer reserve” practice violates the Tennessee

Consumer Protection Act. The Trial Court, relying on its prior decision in Harvey,

dismissed the complaint and plaintiffs have appealed.

The Trial Court properly dismissed plaintiffs’ Second Amended

Complaint. The complaint is substantially the same in all material respects to the

complaint in Harvey. The Second Amended Complaint therefore suffers from the

same defects and similarly fails to state a claim under the Tennessee Consumer

Protection Act.

Plaintiffs cite ca ses construing Illinois law to support their position. 

These cases all involved sales of extended warranties and are distinguishable. In

Bernhauser v. Glen Ellen Dodge, 683 N.E.2d 1194 (Ill.App. 1997), the court did not

expressly decide the issue of proximate cause. In Bambilla v. Evanston Nissan, Inc.,

1996 WL 284954 at *5 (N.D. Ill. 1996), the court addressed proximate cause:

 Plaintiffs can prove damages as a proximate cause if they can induce

the trier of fac t to believe tha t they would have canceled their dea ls if

they found out that they were actually paying more for the cars than they

thought or that they would not have entered into the service contracts if

they had known that they were incurring an upcharge.

Although plaintiffs contend they made similar allegations in their

Second Amended Complaint, the record does not support their position. CironeShadow v. United Nissan of Waukegan, 955 F.Supp. 938 (N.D. Ill. 1997), is similarly

distinguishable. 

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

opinion on the Petition to Rehear in that case, and affirm the judgment of the Trial
3

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

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

William H. Inman, Sr.J.