Order Michigan Supreme Court

Lansing, Michigan 

December 19, 2008 Clifford W. Taylor,

 Chief Justice 

136114 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

KEITH GAYLE DAVIS, Robert P. Young, Jr. 

Stephen J. Markman, Plaintiff-Appellee, Justices 

v SC: 136114 

 COA: 270478 
 Ingham CC: 04-000064-CP

FOREST RIVER, INC.,

Defendant-Appellant, 

and 

KITSMILLER RV, INC.,

 Defendant.
 

_________________________________________/ 

On order of the Court, leave to appeal having been granted, and the briefs and oral 

arguments of the parties having been considered by the Court, we hereby REVERSE the 

judgment of the Court of Appeals. For the reasons stated in the Court of Appeals 

dissenting opinion, the remedy of rescission under Michigan law is unavailable in this 

case. Further, this case is governed by the Uniform Commercial Code (UCC) as it 

involves a sale of goods. MCL 440.2102. We REMAND this case to the Court of 

Appeals for reconsideration of the issues involving the Magnuson-Moss Warranty Act, 

15 USC 2301 et seq., that the court found it unnecessary to reach in light of its decision 

and to reconsider the applicability of the economic loss doctrine and the availability of 

revocation of acceptance under MCL 440.2608 in light of our holding that the UCC 

applies in this case. 

CAVANAGH, J. (dissenting). 

I dissent from the majority’s hasty dispatch of this case through an order. I find 

this disposition wholly inadequate given the complexity of the jurisprudentially 

significant issues on which this Court granted leave to appeal. The order is so unclear 

that I am unable to detect whether I disagree with its holdings, let alone its reasoning. 

First, the order reverses the Court of Appeals and states that the remedy of 

rescission is unavailable in this case for the reasons stated in the Court of Appeals 
 

 

 

 

2 

dissent. This is the only statement in the order bearing any resemblance to judicial 

reasoning, and even this is more confusing than illuminating. It is unclear if the 

majority is reversing the entire Court of Appeals holding or just its remedy.1

 It is also 

unclear which part of the Court of Appeals dissent the majority intends to incorporate.2 

The order cannot be read as adopting the Court of Appeals dissent in its entirety because 

the dissent argued that the UCC does not apply to this transaction and the order 

expressly rejects that proposition in its next sentence. This provision provides the Court 

of Appeals and the parties with insufficient guidance on what law, if any, the order 

establishes in these areas.3 

Second, the order states that “this case is governed by the Uniform Commercial 

Code (UCC) as it involves a sale of goods.” It then provides a bare citation of MCL 

440.2102. Section 2102 states that “[u]nless the context otherwise requires, this article 

applies to transactions in goods.” This statement and the citation of this statute add no 

value to this case as neither the lower courts nor the parties have contested that this 

action involves a sale of goods. The statement also fails to provide the parties any 

useful guidance on the issues in this case pertaining to the UCC, including whether the 

relevant UCC provisions require privity and to what extent plaintiff’s third-party 

beneficiary status enables him to seek relief under the UCC. 

1

 The Court of Appeals held that plaintiff was entitled to rescission for defendant’s 

breach of implied warranty because (1) Michigan law long ago established that 

purchasers may seek the remedy of rescission against remote, out-of-privity 

manufacturers for breach of implied warranty; (2) the Uniform Commercial Code (UCC) 

and the economic loss doctrine are inapplicable to this case because the parties were not 

in privity; and (3) the UCC only abolished rescission as a remedy where the parties have 

a contract. Davis v Forest River, Inc, 278 Mich App 76, 91 (2008). 

2

 The Court of Appeals dissent reasoned that: (1) a plaintiff cannot seek rescission as a 

remedy for an implied warranty because there is no contract to rescind; (2) the UCC 

remedy of revocation of acceptance replaced rescission for out-of-privity plaintiffs; and 

(3) the UCC only applies if the parties are in privity. Davis, 278 Mich App at 92-94 

(Bandstra, J., dissenting). 

3

 The order fails to provide guidance or resolution on several questions that may have an 

effect on the outcome of this case and that were already addressed by the Court of 

Appeals. For example: Does Michigan statutory or common law provide a cause of 

action for a breach of warranty when the parties are not in privity? Is rescission available 

as a remedy for defendant’s breach of its express warranty? Did the UCC’s remedy of 

revocation of acceptance supplant the equitable remedy of rescission? If so, did it do so 

only when parties are in privity, whenever the UCC applies, or in general? 
 _________________________________________ 

 

 

3 

Third, the order directs the Court of Appeals to consider if revocation of 

acceptance is available “in light of our holding that the UCC applies in this case.” I am 

unclear what purpose this instruction serves. Both the majority and the dissent in the 

Court of Appeals already stated that the UCC remedy of revocation of acceptance is not 

available absent privity. As stated earlier, the order’s inadequate statement that “the 

UCC applies” provides no useful guidance on how to apply the provisions of the UCC at 

issue in this case. Therefore, the order essentially directs the Court of Appeals to 

answer a question that it has already answered, without providing any new holding or 

legal reasoning that would give the Court of Appeals reason to reconsider its original 

holding. Apparently the efforts that the parties and lower courts already expended on 

this issue were a waste of their time as well as of this State’s limited judicial resources. 

I find it unacceptable for this Court to direct the Court of Appeals and the parties 

to readdress these issues with only the confusing and inadequate “guidance” this order 

provides. This Court should provide clarity, not confusion, to the courts below. The 

questions this order fails to address are not theoretical; to the contrary, the questions are 

directly necessary for resolution of this case.4 Accordingly, I dissent. 

WEAVER and KELLY, JJ., join the statement of CAVANAGH, J. 

4

 Indeed, many are the questions this Court asked the parties to address in its order 

granting leave to appeal. Davis v Forest River, Inc, 481 Mich 918 (2008). 

1215 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

December 19, 2008 

 Clerk