1 Which the defendant acquired from a Kentucky dealer. 

### FILED April 15, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

FAYE L. O’BRYANT ) KNOX CIRCUIT ) Plaintiff/Appell

ant ) NO. 03A01-9810-C V-00325 ) v. ) HON. DALE WORKMAN ) JUDGE REEDER CHEVROLET ) COMPANY, INC., d/b/a/ ) CHEVROLET-GEO COMPANY, ) ) Defendants/Appellees ) REVERSED and REMANDED

J. Myers Mort

on and George W.

Morton, Jr., K

noxville, for Appe

llant. James A. Mc

Intosh, Knoxville,

for Appellees. O P I N I O N

INMAN, Senio

r Judge I A jury returne

d a verdict for the d

efendant in this action seeking r

escission of the pur chase of an automobile for alleged violations of the Tennessee Commerc ial Code and the Consum er Protection Ac

t. II The plaintiff purchased a Cavalier Chevrolet from

the defendant

which was defective. The manufacturer reacquired the vehicle in a settlement which required the defendant to furnish the plaintiff with a replacement Cavalier. After taking possession of the second Cavalier, 1 she discovered a document in the glove compar

tment which i

ndic ated that the Caval

ier had been repai

red.2 As of the date of tr ial she had paid $4 ,100.00 on the promi ssory note. The ve

hicle “languished” at the dealership.

3 The dent was filled. An area two feet forward on the door and two feet on the quarter panel was repainted. The plaintiff testified that the paint was rough and did not match. 2 Thereupon

she examined it and discovered a dent on the door that had been repaired and repa

inted. She returned the Cavalier to the defendant

dealership twelve

days later, bu

t continued to make mon

thly paym

ents of $275.72 to the f

inancing bank. 2 The complaint

was filed August 11,

1997, alleging that the

Cavalier had been wrecked and repaired, and t

hat s he had rejected i

t. Alternatively

, she alleged that s

he revoked her ac ce ptance of the vehicl e, pursuant to T. C.A. § 47-2-601, 608. She f urther alleged that the def

endant violated the T

ennessee Consum

er protection Act

, T.C.A. § 47-18-101, et seq. by fa iling to disclose that the Cavalier had been “wrecked and repaired.” The jury was impanelled and allowed to inspect the vehicle shortly before trial began. During the interim betwe en the return of the

vehicle and the tria

l, the defendant had sanded and buffed

the painted portion of the door, and applied coats of a rubbing compound known as eurothane. Itis fair to observe that the damage consisted of a “ding” as that word has
come into street usage, t he cos t of the repair of which was slightly more than $200 .00. Various witnesses testified on either side, that the repai rs wer e essentially

slopp y, or were e ntirel y satisf actory. 3 The plaintiff vigorously insisted that she wanted a “perfect car;” the defendant just as vigorously prot

ested that the small dent was de minimis, had nevertheless been satisfactorily repaired, and that the plaintiff was u

nreasonable in her d

emands.3 III The plaintiff offere

d no objections t

o the jury instruct

ions, other than “

the failure to charge that the r elevant date in [the

] determina

tion of the conditions is the date of delivery from the def endant to the plain tiff.” The trial judge refu sed the plaintiff’ s special request to instruct the jury that “Your deter mination

of whether plaintiff is entitled to revoke her acceptance or rescind and retu rn the vehicle is to be

governed by the condition of the vehicle

at the time plaintiff receive d the vehicle. Any modifications

or changes in the vehicl e or its appearanc e by defendant after the vehicle

was returned d oes not ex cuse defen dant’s failure to deliverinitially an appropriate new vehicle. Im provements by defendant after the ve hicle has been retur ned are not releva

nt to the condition of

the vehicle when it was first delivered to plaintiff. It is the condition when first delivered which determines if plaintiff has the right to revoke and/or return.” IV T.C.A. § 47-2-601 provides that “ . . . if the goods . . . fail in any

respect to conform to the c ontrac t, the b uye r may r eject the whole . . . .” Sect ion 608 provides tha t “the buyer

may revoke

his acceptance of

a lot or comm

ercial unit whose nonconformity

substantially im

pairs its value to him

if he has accepted it .

. . with out disc overy of such nonc onformity i

f his acceptance w

as reasonably induced either by the dif

ficulty of disco

very before a

cceptance or

by the seller ’s assurances.” The buyer is permitted to revoke acceptanc es if (1) the vehicl

e was defective to the point where its valu e was substantially

impaired, or

if the defect rea

sonably underminedthe buyer’s confidence that the vehicle wo

uld perform the f

unction for which it was pur

chased; (2) the defect was not known and would have been difficult for the

buyer to discover; (3) and the revocation of acceptanceoccurred within a reasonable tim

e after di sc overy of the defect and before any substantial changein the vehicle not cause d by the defect. Patton v. McHone, 822 S.W.2d 6084

(Tenn. App. 1 991 ). A substantial im pairment exist

s if the defect shak

es the buyer’s faith in t

he product. Haverlah v. Memphis Aviat ion, 674 S.W.2d 297 (Tenn. App. 1984). The appellant argues that the l anguage of the statut e “substantially

impairs its value to him if he has accepted it” is plainly subjective, and that the question of whetherthe defect is remedial is irrelevant in light o

f T.C.A. § 47-2-508, the right-to-cure statute. A right t o cure is relevant only when
abuyer has rejected the goods prior to formal acceptan ce andthe UCC does not allow a seller

the right to cure fol

lowing the

buyer’s acc

eptance. A selle

r has no right to cure after the

buyer has given no

tice of revocation,

and the right t o cure does not limit revoca

tion of acce ptance. See, Jensen v. Seigel Mob ile Home Group, 668 P.2d 65 (Idaho 1983); Uniform

Commercial Code, White & Sum mers (2nd Ed.), 293. The thrust of the defense was directed to t he asserted unreas onableness of the p la intiff’s position a

nd attitude, in light of

the fact that the da

mage was de minimis and correctable.

It was for this reas on that the defendant filed a motion to allow the jury

to inspect the vehicle , which d id so under the mistaken belief,
a ccording to the plaintiff, t hat there had been no

change in the condition

of th e vehicle when, in fact, the repairs h ad been made. Hence, the defendant argues, the jury was thus persuaded that the plaintiff unreasonably revoked her acceptance. Witnesses for the defendant testified that after the vehicle was retur

ned the repaired area was repai

nted, buffed and sa

nded. As the m

atter progressed t

he defendant asserted that it

was never affor

ded the opportunity to correct the problem as described by the plaintiff. The combination of th

ese circumstances, according to the plaintiff, required
ajury instruct

ion that it was the condi

tion of the

vehicle at the time of delivery as5

contrasted to the time of trialwhich is controlling. We agree with

this argument, which makes it neces sary to consider (1) whether the c

harge which the plaintiff specially requested was covered in the general charge, or, if not, whet her thetrial judge’s refusal to charge the special instruction was harmless error. We have examined the c

harge and do

not find t hat it cov ered the pl aintiff’s theory that her

entitlem ent to rescission wa s governed by the c

ondition of the vehicle when it was delivered to her. In light of the fact that the jury was allowed to inspect the vehicl e, we agree with the appellant that the instructional omission
was crucially pre

judicial. The r

ule in T enne ssee is that the tria l court should instruct the jury upon ev ery issue of fa

ct and theor y of the case r

aised by the plea dings an d supported by the pro of. Street v. Calvert , 541 S.W.2d 576 (T

enn. 1976). When a

special instruction ( 1) has been requeste d, (2) is a correct s

tatement of the law, (3) is no

t included in the general charge a nd (4) is supported by

the evidence introduced at trial , the court should give the instruction. Tenn. Farmers Mutual Ins. Co. v. Hinson , 651 S.W.2d 235 (Tenn. App. 1983). Finall y, we address the issue o f whet her the nonconform ity substantially impaired the va

lue of the vehicle.It is important to note that the langua

ge of the statute, “a buyer m

ay revok e his a cceptance if the n onconformity

substantially impairs the value to him,” in volves s ubjectivity.The UCC does not de fine “substantial”

impairme

nt, probably because of

the privilege of subjectivity, which may vary from person to person. Even so, any subjective d ecision of a buyer is subjec t to some scruti ny, reasonably exercised; revoca

tions based on mer

e whim
or defects so trivial as to evince sheer unreasonable ness should be excluded.

But the language “value to him” may not be lightly regarded; if the Legislature had intended to exclude dama ges that a reviewe

r might describ

e as trivial, as th

e6

defendant argues, it could hav e so provided. W heth er the nonconform ity substantially

impaired the value o f the vehicle to the p laintiff under the circumstances of this case was for the jury to determ ine. The plaintiff presents an issue of whether the court erred in charging the jury “that a new vehicle is new if i

t has not been resold or

has not been previously

sold at re tail and titled to anot her.” This char

ge was not objecte

d to upon th e court’ s specific inquiry, and th e issue will not be co nsidered. The judgment is reversed and the case is remanded for a new trial. C osts are assessed to the appellee.

_______________________________ William H. Inman, Senio

r Judge CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Charles D. Susa

no, Jr., Judge