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STATE OF MICHIGAN 

COURT OF APPEALS 

THE GROSSE POINTE LAW FIRM, PC, also 

known as LAW OFFICE OF ALAN BROAD, PC, 

 Plaintiff-Appellant, 

FOR PUBLICATION 

September 22, 2016 

9:10 a.m. 

v No. 326312 

Macomb Circuit Court 

JAGUAR LAND ROVER NORTH AMERICA, 

LLC, ROVER MOTORS OF FARMINGTON 

HILLS, LLC, doing business as LAND ROVER 

FARMINGTON HILLS, JAGUAR AND LAND 

ROVER OF MACOMB, LLC, doing business as 

JAGUAR LAND ROVER OF LAKESIDE, and 

ELDER AUTOMOTIVE GROUP, 

LC No. 2012-005249-CK 

 Defendants-Appellees. 

Before: BECKERING, P.J., and CAVANAGH and GADOLA, JJ. 

GADOLA, J. 

 This case requires us to examine the distinction between warranties and remedies under 

Michigan’s Uniform Commercial Code (UCC), MCL 440.1101 et seq. Plaintiff appeals by leave 

granted1

 orders granting the motions for summary disposition filed by defendants Jaguar Land 

Rover North America, LLC (JLRNA), Rover Motors of Farmington Hills, LLC (Rover Motors), 

and Jaguar and Land Rover of Macomb, LLC (Land Rover of Macomb). For the reasons cited in 

this opinion, we reverse and remand for further proceedings. 

I. BACKGROUND FACTS 

 

1 The Grosse Pointe Law Firm, PC v Jaguar Land Rover North America, unpublished order of 

the Court of Appeals, entered September 17, 2015 (Docket No. 326312). This Court’s order 

granting plaintiff leave to appeal limited the appeal to “the issue of whether the circuit court 

erred by dismissing plaintiff’s claim for breach of a warranty to repair based on the running of 

the statute of limitations.” Id.
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 Plaintiff purchased a vehicle from Rover Motors on December 30, 2005. The vehicle 

was manufactured by JLRNA. At the time of purchase, JLRNA issued a document titled 

“Vehicle Warranties,” which stated the following: 

 Land Rover North America, Inc., warrants that during the warranty period, 

if a Land Rover vehicle is properly operated and maintained, repairs required to 

correct defects in factory-supplied materials or factory workmanship will be 

performed without charge upon presentment for service; any component covered 

by this warranty found to be defective in materials or workmanship will be 

repaired, or replaced, without charge. 

* * * 

 The warranty period for the vehicle begins on the date of the first retail 

sale, or on the date of entry into demonstrator service. The basic warranty period 

is for four (4) years or until the vehicle has been driven 50,000 miles, whichever 

occurs first. 

Plaintiff brought the vehicle to Rover Motors and Land Rover of Macomb for repairs several 

times throughout its ownership. In 2011 and 2012, plaintiff attempted to negotiate for JLRNA to 

repurchase the vehicle, but the parties failed to reach an agreement regarding the price. On 

November 28, 2012, plaintiff traded in the vehicle and filed the instant lawsuit. 

 In its lawsuit, plaintiff raised, among others, claims for breach of warranty and violation 

of the Magnuson-Moss Warranty Act (MMWA), 15 USC 2301 et seq. Defendants filed a 

motion for summary disposition under MCR 2.116(C)(7),2

 arguing that plaintiff’s breach of 

warranty claims were time-barred by MCL 440.2725, which provides a four-year limitations 

period for claims involving breach of any contract for the sale of goods. MCL 440.2725(2) 

states that a breach of warranty claim accrues “when tender of delivery is made, except . . . 

where a warranty explicitly extends to future performance of the goods . . . .” MCL 440.2725(2). 

Plaintiff responded that “[p]romises to repair or replace refer to the future performance of the 

warrantor manufacturer, not to the future performance of the vehicle,” so a claim for breach of a 

repair or replace warranty accrues when the warrantor fails to repair a defect, rather than on 

tender of delivery. The trial court granted defendants’ motion under MCR 2.116(C)(7), 

concluding that plaintiff’s claims were time-barred under MCL 440.2725. In doing so, the court 

acknowledged that other jurisdictions “recognize[] a separate repair and replace limited warranty 

that accrues at the time the repair is attempted,” but reasoned that without precedential caselaw 

on the subject in Michigan, plaintiff’s claims accrued on tender of delivery. 

 

2

 JLRNA filed the motion for summary disposition under MCR 2.116(C)(7), to which Rover 

Motors and Land Rover of Macomb concurred. 
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II. STANDARDS OF REVIEW 

 We review de novo a trial court’s decision on a motion for summary disposition. King v 

Reed, 278 Mich App 504, 513; 751 NW2d 525 (2008). MCR 2.116(C)(7) “permits summary 

disposition where the claim is barred by an applicable statute of limitations.” Nuculovic v Hill, 

287 Mich App 58, 61; 783 NW2d 124 (2010). When reviewing such a motion, we “must accept 

all well-pleaded factual allegations as true and construe them in favor of the plaintiff, unless 

other evidence contradicts them.” Dextrom v Wexford Co, 287 Mich App 406, 428; 789 NW2d 

211 (2010). If the parties submit any affidavits, depositions, admissions, or other documentary 

evidence, we “consider them to determine whether there is a genuine issue of material fact.” Id.

at 429. Only if no facts are in dispute and reasonable minds could not differ regarding the legal 

effect of those facts should the trial court grant a motion for summary disposition under 

MCR 2.116(C)(7). Id. 

We also review questions of statutory interpretation de novo. Grimes v Mich Dep’t of 

Transp, 475 Mich 72, 76; 715 NW2d 275 (2006). When construing statutory provisions, courts 

must interpret the words of the statute in light of their ordinary meaning and read them in 

context. Johnson v Recca, 492 Mich 169, 177; 821 NW2d 520 (2012). Likewise, courts must 

“give effect to every word, phrase, and clause in a statute and avoid an interpretation that would 

render any part of the statute surplusage or nugatory.” State Farm Fire & Cas Co v Old 

Republic Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). 

III. DISCUSSION 

 Article 2 of the UCC governs the relationship between parties involved in contracts for 

the sale of goods. MCL 440.2102; Neibarger v Universal Cooperatives, Inc, 439 Mich 512, 519-

520; 486 NW2d 612 (1992). MCL 440.2725 provides the limitations period for claims involving 

obligations arising under Article 2, and states, in pertinent part, the following: 

 (1) An action for breach of any contract for sale must be commenced 

within 4 years after the cause of action has accrued. By the original agreement 

the parties may reduce the period of limitation to not less than 1 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 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. 

Therefore, a cause of action for breach of a sales contract under Article 2 accrues when the 

breach occurs, unless the cause of action is for breach of warranty, in which case the claim 

accrues either on tender of delivery or, if the warranty explicitly extends to future performance of 

the goods, when the breach is or should have been discovered. 

 The trial court concluded that the repair or replace provision at issue in this case 

constituted a warranty for purposes of MCL 440.2725(2), but determined that the warranty did 
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not “explicitly extend[] to future performance of the goods,” so plaintiff’s cause of action 

accrued on tender of delivery. For a warranty to extend to future performance, it must expressly 

define the future period to which it applies. Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 

57; 649 NW2d 783 (2002). Further, it must explicitly provide that the goods warranted will be 

free from defects for the specified period. See Executone Business Sys Corp v IPC 

Communications, Inc, 177 Mich App 660, 667-669; 442 NW2d 755 (1989) (holding that a 

warranty extended to future performance when it “explicitly provided freedom ‘from defects for 

a period of one year from the date of shipment . . . .’ ”). 

 The repair or replace provision in this case does not expressly state that plaintiff’s vehicle 

will be free from defects, but rather states that the manufacturer will repair or replace any defects 

that arise during the specified time period. Accordingly, we agree with the trial court that the 

provision does not “explicitly extend[] to future performance of the goods.” However, the 

question remains whether a repair or replace provision, standing alone, is a “warranty” for 

purposes of MCL 440.2725(2). 

 In Centennial Ins Co v Gen Electric Co, 74 Mich App 169, 170-171; 253 NW2d 696 

(1977),3

 this Court seemingly treated a repair or replace provision in a contract for the sale of 

goods as a “warranty” within the scope of Article 2, but not as a warranty extending to future 

performance for purposes of MCL 440.2725(2). In Centennial, the buyer brought a breach of 

warranty claim against the seller more than four years after receiving the goods at issue. Id. at 

170-171. The buyer argued that the limitations period for bringing its claim had not expired 

because the warranty contained a one-year repair or replace provision, which fell within the 

exception of MCL 440.2725(2) for warranties “explicitly extend[ing] to future performance of 

the goods.” Id. at 171. The contract provision at issue in Centennial stated the following: 

The Company warrants to the Purchaser that the equipment to be delivered 

hereunder will be free from defects in material, workmanship and title and will be 

of the kind and quality designated or described in the contract. . . . If it appears 

within one year from the date of shipment by the Company that the equipment 

delivered hereunder does not meet the warranties specified above and the 

Purchaser notifies the Company promptly, the Company shall thereupon correct 

any defect, including non-conformance with the specifications, at its option, either 

by repairing any defective part or parts or by making available at the Company’s 

plant, a repaired or replacement part. [Id. at 171 n 1.]4

Rejecting the buyer’s claim, this Court held that the one-year repair or replace provision did not 

constitute “a warranty for future performance, but rather, a specification of the remedy to which 

 

3

 We note that Centennial is not binding on this Court. See MCR 7.215(J)(1) (providing that 

cases decided by this Court before November 1, 1990, do not have precedential value). 

4

 The Executone Court distinguished Centennial by noting that the provision in Centennial did 

not “explicitly warrant that the goods would be free from defects for a specified period of time,” 

while the warranty provision in Executone “explicitly provided freedom ‘from defects for a 

period of one year from the date of shipment . . . .’ ” Executone, 177 Mich App at 668. 
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[the] buyer is entitled should breach be discovered within the first year.” Id. at 171 (emphasis 

added). Accordingly, the Court held that the buyer’s claim was time-barred by MCL 440.2725. 

Id. at 172.

The Centennial Court properly identified a distinction between a warranty extending to 

future performance, which promises that goods will be free from defects for a specified period of 

time, and a promise to repair or replace, which provides a remedy if any defects arise. However, 

the Court did not specifically address whether a repair or replace promise, standing alone, 

constitutes a “warranty” for purposes of MCL 400.2725.5

 Defendants argue that a promise to repair or replace is a warranty for purposes of 

MCL 440.2725(2) because it falls within the definition of “express warranty” provided by 

MCL 440.2313. MCL 440.2313(1) states that express warranties by the seller are created in the 

following ways: 

 (a) An affirmation of fact or promise made by the seller to the buyer which 

relates 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) A description of the goods which is made part of the bargain creates 

an express warranty that the goods shall conform to the description. 

 (c) A sample or model which is made part of the basis of the bargain 

creates an express warranty that the whole of the goods shall conform to the 

sample or model. 

Defendants argue that the repair or replace provision in this case falls within the definition of 

“express warranty” under MCL 440.2313(1)(a) because it contains a promise to repair or replace 

made by JLRNA to plaintiff that relates to the vehicle and formed part of the basis of the sale. 

However, MCL 440.2313(1)(a) goes on to state that an applicable affirmation of fact or promise 

“creates an express warranty that the goods shall conform to the affirmation or promise.” 

(Emphasis added.)6

 Goods cannot “conform” to a promise to repair or replace because such a 

promise says nothing about the character or quality of the goods, but rather identifies a remedy if 

the buyer determines that the goods are defective. Put another way, an unadorned promise to 

repair or replace a defective part is not a promise concerning the quality or performance of the 

goods to which the goods can “conform.” A promise to repair or replace instead provides 

 

5

 Indeed, the seller in Centennial arguably did create an express warranty by making a promise 

that the goods would be free from defects, albeit not for a specified period of time, in addition to 

a promise to repair or replace defective parts. See MCL 440.2313(1)(a). No such language 

appears in the contract provision at issue in this case. 

6

 Again, when interpreting statutes, we must give effect to every phrase, clause, and word in the 

statute, must read the statutory language in context, and must construe the statute as a whole. 

Potter v McLeary, 484 Mich 397, 411; 774 NW2d 1 (2009). 
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nothing more than a remedy for a product that breaks. Accordingly, we cannot agree that the 

repair or replace provision in this case is an express warranty under MCL 440.2313(1)(a). 

 In addition to express warranties under MCL 440.2313, which parties may include as a 

term of a contract of sale, Article 2 also defines a wide range of implied warranties that arise by 

operation of law. See Heritage Resources, Inc v Caterpillar Fin Servs Corp, 284 Mich App 617, 

638; 774 NW2d 332 (2009).7 Although the parties do not suggest that the repair or replace 

provision at issue in this case is an implied warranty under Article 2, what all of the warranties 

defined under Article 2, express or implied, have in common is that they relate to the character or 

quality of the goods, rather than to the remedies that are available should a buyer discover that 

the goods are defective.8 In contrast, a promise to repair or replace says nothing about the 

quality of the goods themselves, but rather identifies a specific remedy available to the buyer 

should a defect arise. 

 Accordingly, we adopt the approach that promises to repair or replace defective goods are 

contractual promises under Article 2, but are not warranties.9 To conclude otherwise would 

 

7

 The implied warranties under Article 2 are as follows: The implied warranty of title and 

against infringement, which provides that “title conveyed shall be good, and its transfer rightful” 

and that “the goods shall be delivered free from any security interest or other lien or 

encumbrance of which the buyer at the time of contracting has no knowledge,” MCL 440.2312; 

the implied warranty of merchantability, which provides that goods must (a) “pass without 

objection in the trade under the contract description, (b) “in the case of fungible goods, are of fair 

quality within the description,” (c) “are fit for the ordinary purpose for which the goods are 

used,” (d) “run, within the variations permitted by the agreement, of even kind, quality and 

quantity within each unit and among all units involved,” (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,” MCL 440.2314; and the implied 

warranty of fitness for a particular purpose, which provides that “[w]here 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 

. . . an implied warranty that the goods shall be fit for such purpose,” MCL 440.2315. 

8

 See Garvin, Uncertainty and Error in the Law of Sales: The Article Two Statute of Limitations, 

83 B U L Rev 345, 379 (2003) (“All [express and implied warranties] go to the quality of the 

goods at tender. None goes to the remedies, which come about only if a warranty is breached.”); 

Dewitt, Action Accrual Date for Written Warranties to Repair: Date of Delivery or Date of 

Failure to Repair? 17 U Mich J L Reform 713, 722 n 35 (1983-1984) (“A repair provision 

relates not to the goods and their quality, but to the manufacturer and its obligation to the 

purchaser.”). 

9

 Defendants cite Kelynack v Yamaha Motor Corp, 152 Mich App 105; 394 NW2d 17 (1986), 

Rust-Pruf Corp v Ford Motor Co, 172 Mich App 58; 431 NW2d 245 (1988), Severn v Sperry 

Corp, 212 Mich App 406; 538 NW2d 50 (1995), and Computer Network, Inc v AM Gen Corp, 

265 Mich App 309; 696 NW2d 49 (2005), for the proposition that “Michigan case law is clear 

that warranties substantially similar to [the repair or replace provision at issue in this case] are 
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require us to reach “the perverse conclusion that the statute of limitations began to run before the 

breach occurred.” Baker v DEC Int’l, 458 Mich 247, 249 n 4; 580 NW2d 894 (1998) (citation 

and quotation marks omitted).10 Such a conclusion would also render repair or replace promises 

extending beyond four years meaningless, as any claim for breach of the promise would be timebarred four years after the tender of delivery, and would further give sellers an incentive to stall 

repairs until the limitations period expired. Because remedial promises are not warranties, a 

claim for breach of such a promise “accrues when the breach occurs, regardless of the aggrieved 

party’s lack of knowledge of the breach.” MCL 440.2725(2). It seems unremarkable to state 

that a promise to repair or replace defective goods is breached when the seller either fails or 

refuses to repair or replace the defect, and that the statute of limitations begins to run at that time. 

Therefore, the trial court erred by concluding that plaintiff’s claim accrued on tender of delivery. 

 For the same reasons, the trial court erred by dismissing plaintiff’s MMWA claim. 

Although plaintiff’s claim for breach of the promise to repair or replace is not truly a “breach of 

warranty” claim under Article 2 for purposes of MCL 440.2725(2), the promise is a “written 

express limited warranties under MCL 440.2313.” We first note that, contrary to defendants’ 

assertions, Kelynack and Rust-Pruf are not binding on this Court. MCR 7.215(J)(1). Although 

these cases involve repair or replace provisions included in contracts for the sale of goods, none 

of the cases address the issue we are faced with today, which is whether such remedial promises, 

standing alone, constitute express warranties under MCL 440.2313 or fall within the breach of 

warranty accrual provision of MCL 440.2725(2). Further, like the approach we adopt today, 

these cases explain that repair or replace promises relate to the remedies available to a buyer who 

discovers a defect in purchased goods, and do not suggest that such promises relate to the quality 

of the goods themselves, which is necessary to create an express warranty under 

MCL 440.2313(1)(a). See Kelynack, 152 Mich App at 115 (characterizing a repair or replace 

clause as “an exclusive remedy provision contained in a warranty”); Rust-Pruf, 172 Mich App at 

61-62 (holding that a party could not sustain a products liability action against a vehicle 

manufacturer when the rights that could be enforced by the buyer for breach of an express 

warranty were set forth in the sales contract); Severn, 212 Mich App at 409 (stating that a 

purchased good was covered by a “two-year written warranty under which defendant’s 

obligations were limited to repairing defects or . . . replacing any parts that in defendant’s 

judgment were defective”); Computer Network, 265 Mich App at 314 (noting that a promise to 

repair or replace in a “limited express warranty” constitutes a remedy to which the parties 

agreed). 

10 Defendants argue that our approach requires us to ignore the Supreme Court’s holding in 

Baker, 458 Mich 247. We disagree. In Baker, the plaintiffs brought an implied warranty claim 

under the UCC more than four years after their purchased equipment was delivered, but arguably 

less than four years after the equipment was installed. Id. at 250. The issue in Baker was 

whether tender of delivery occurred, such that the statute of limitations began to run on 

plaintiffs’ breach of warranty claim, at the time of delivery or installation. Id. Our Supreme 

Court held that “where the seller is obligated to install goods under a contract, tender of delivery 

does not occur until installation is completed.” Id. at 249. Accordingly, Baker does not address 

the issue we are faced with today, and its holding does not dictate a contrary result. 
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warranty” for purposes of the MMWA. See 15 USC 2301(6)(B). The MMWA specifically 

defines written warranties to include the following: 

 (B) any undertaking in writing in connection with the sale by a supplier of 

a consumer product to refund, repair, replace or take other remedial action with 

respect to such product in the event that such product fails to meet the 

specifications set forth in the undertaking. [15 USC 2301(6).]

The MMWA does not provide a limitations period for filing a breach of written warranty claim. 

See Mydlach v DiamlerChrysler Corp, 226 Ill 2d 307, 316; 314 Ill Dec 760; 875 NE2d 1047 

(2007) (“Although the [MMWA] provides a private right of action for breach of a written 

warranty, the Act does not contain a limitations provision for such an action.”). When a federal 

statute fails to specify a limitations period, “courts apply the most closely analogous statute of 

limitations under state law.” DelCostello v Int’l Brotherhood of Teamsters, 462 US 151, 158; 

103 S Ct 2281; 76 L Ed 2d 476 (1983). The most analogous statute of limitations is found in 

Article 2 of the UCC, as codified by various state statutes. See Snyder v Boston Whaler, Inc, 892 

F Supp 955, 960 (WD Mich, 1994). Therefore, MCL 440.2725 also applies to plaintiff’s 

MMWA claim, and the trial court erred by concluding that plaintiff’s MMWA claim accrued on 

tender of delivery. Accordingly, we reverse the trial court’s order granting defendants summary 

disposition on plaintiff’s warranty claims and remand this matter to the trial court for further 

proceedings.11

 Reversed and remanded for further proceedings consistent with this opinion. We do not 

retain jurisdiction. As the prevailing party, plaintiff may tax costs. MCR 7.219(A). 

/s/ Michael F. Gadola 

/s/ Mark J. Cavanagh 

 

11 We decline to address plaintiff’s equitable estoppel claim because it was not part of the issue 

for which we granted leave to appeal. Therefore, the issue is not properly before this Court.