Jessie Davis v. Ford Motor Company

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

ASSIGNED ON BRIEFS NOVEMBER 21, 2007

JESSIE DAVIS, ET AL. v. FORD MOTOR COMPANY

Direct Appeal from the Circuit Court for Shelby County

No. CT-003945-04 Donna Fields, Judge

No. W2007-01226-COA-R3-CV - Filed March 14, 2008

This case involves a claim for breach of warranty. The plaintiff purchased a used Ford from a GMC

dealership. The truck came with Ford’s bumper to bumper limited warranty. The warranty

specifically excluded from coverage any damage caused by after-market components and/or non-

Ford components. Unbeknownst to the plaintiff, the truck had three after-market modifications: a

“super chip,” a “K& N” air filter, and a “Magnaflow ” muffler. The plaintiff began experiencing

oil consumption problems and trouble with the engine. He took the vehicle to several Ford

dealerships for repair. One dealership service department recommended replacing the engine of the

truck, but Ford denied warranty coverage, pointing to the after-market modifications as the cause

of the truck’s problems. The plaintiff sent Ford a letter of revocation of acceptance, and thereafter

filed suit alleging several claims, including breach of warranty and a claim under the Magnuson-

Moss Warranty Act. A bench trial was held, and the court ruled in favor of Ford on all claims. The

plaintiff appeals, and we affirm.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER , J., and

HOLLY M. KIRBY , J., joined.

Ronald C. Wilson, West Memphis, AR, for Appellant

Prince C. Chambliss, Jr., Memphis, TN, for Appellee

OPINION

I. FACTS & PROCEDURAL HISTORY

Jessie Davis (“Appellant”) and his wife, Jocelyn Davis, purchased a used 2001 Ford F-150

Lightning pick-up truck in August of 2002. Mr. Davis purchased the truck from Sunrise Pontiac

GMC in Memphis, TN, for approximately $40,000. Sunrise Pontiac GMC is a used car dealership

and is not an authorized Ford Motor Company dealership. Mr. Davis purchased the truck upon first

sight, without test driving the vehicle or inquiring as to any modifications the vehicle might have

undergone in the past. Unbeknownst to Mr. Davis, the vehicle had three “after-market”

modifications and/or non-Ford parts installed by a previous owner: a “super chip,” a K&N air

filtration system, and a Magnaflow muffler.

When purchased, the truck had around 9,000 miles on it, and was still under Ford Motor

Company’s (“Ford” or “Appellee”) manufacturer’s warranty. The warranty was an express “bumper

to bumper” limited warranty on parts and workmanship. The warranty provided coverage on the

vehicle for the first three years or the first 36,000 miles, and thus, the truck was still covered. The

warranty provided that during the coverage period, “authorized Ford Motor Company dealers will

repair, replace, or adjust all parts on your vehicle that are defective in factory-supplied materials or

workmanship.” The warranty had specific exclusions, including the following:

WHAT IS NOT COVERED?

Damage Caused By:

...

• altering or modifying the vehicle - including the body,

chassis, or components - after the vehicle leaves Ford’s

control

• non-Ford parts installed after the vehicle leaves Ford’s

control. For example, but not limited to, cellular phones,

alarm systems, and automatic starting systems

• tampering with the vehicle, tampering with the emissions

systems, or with other parts that affect these systems

...

• using contaminated or improper fuel/fluids

...

Damage Caused by Improper Maintenance

Your New Vehicle Limited Warranty does not cover damage caused

by failure to maintain the vehicle, improperly maintaining the

vehicle, or using the wrong part, fuel, oil, lubricants, or fluids. See

the Owner Guide for correct fluid types and levels, and consult the

Scheduled Maintenance Guide for proper ways to maintain your

vehicle.

The Owner Guide and the Scheduled Maintenance Guide came with the truck when purchased.

-2-

Mr. Davis began experiencing problems with the truck engine and with excessive oil

consumption around July of 2003, so he took the truck to the service department of Wood Ford

Sales, Inc., an authorized Ford dealer located in Truman, Arkansas. At this point, the truck had

21,861 miles and was still covered by the aforementioned warranty. Wood Ford made several

unsuccessful attempts to repair the vehicle.

Mr. Davis then took the truck to Blackwell Baldwin Ford located in Jonesboro, Arkansas.

Blackwell Baldwin Ford performed a borescope test on the truck and found “possible damage to the

cylinder.” The Blackwell Baldwin Ford recommended that the engine be replaced and estimated

the cost at $3,600. Blackwell Baldwin Ford submitted a claim for warranty coverage for the

replacement of the engine to Ford. Ford sent a technician to inspect the truck, in which the after-

market super chip was discovered. Ford denied coverage.

Mr. Davis nevertheless continued driving the truck, despite having to add four quarts of oil

around every 3,000 miles. Mr. Davis sent Ford a letter of “NOTICE OF REVOCATION OF

ACCEPTANCE” dated January 30, 2004, which read in relevant part:

The denial of the replacement and repairs to the Davis’ vehicle is

considered to be a breach of the warranty agreement and the defect

in the vehicle substantially impairs the value of the vehicle to Mr.

Davis. . . . You are hereby notified that Jessie Davis is revoking his

acceptance of the Ford 150 Truck and demanding the refund of all of

his payments or a substitution for the defective Ford 150 Truck.

Mr. Davis thereafter filed suit against Ford on July 8, 2004, averring the following claims:

1) revocation of acceptance; 2) breach of express warranty; 3) violation of the Tennessee Consumer

Protection Act; 4) fraudulent misrepresentation; and 5) violation of the Magnuson-Moss Warranty

Act. Ford raised several affirmative defenses in its answer, including “the defense of misuse,

modification and/or abnormal use of the vehicle at issue, and/or failure to follow proper instructions

or warnings . . . .” Ford also alleged that any problems with the truck were caused by acts or

omissions beyond the scope of the warranty.

At trial, the parties stipulated that Mr. Davis could assert a claim under Tenn. Code Ann §

55-24-203, which was not originally pled.1

1

Tenn. Code Ann. § 55-24-203 provides as follows:

(a) The manufacturer must replace the motor vehicle with a comparable motor

vehicle or accept return of the vehicle from the consumer and refund to the

consumer the full purchase price if:

(1) The nonconformity, defect or condition substantially impairs the motor vehicle;

and

(continued...)

-3-

Mr. Davis described the trouble he experienced with the truck’s excessive oil use. Mr. Davis

testified that he had to change the truck’s oil every 3,000 miles. As to the air filter, he testified that

he cleaned it once. Because the truck was never repaired, Mr. Davis testified that he had to purchase

two other vehicles.

Brandon Copeland, service manager for Blackwell Baldwin Ford testified concerning his

knowledge of K & N air filters as follows:

Q. Does a K & N filter require more particular service than an

ordinary filter?

A. A K & N filter, the ones that I come across are all - - you

have to wash them out thoroughly, let them dry and you have

to re-add an oil to it for it to work properly.

Q. And if it doesn’t work properly, what’s the consequences?

A. It’s going to ingest dust, maybe a little bit of dirt, something

like that. It’s not going to filter the way it’s supposed to.

Q. And what’s the consequences to the engine of operating a

vehicle in that condition?

A. If it ingests - - if it ingests an excessive amount of dust and

dirt, it can damage the engine, as far as damage the cylinder

or something like that.

As to the Magnaflow muffler, Truitt Davis, service director at Sunrise Pontiac GMC testified that

a Magnaflow muffler is not Ford-issued, and that it has less back pressure than a Ford-issued

muffler.

Mr. Davis called Russ Rasnic, a mechanical engineer, as an expert witness. Mr. Rasnic

works for a consulting engineering company located in Arkansas. The following exchange occurred

regarding Mr. Rasnic’s experience:

Q. Have you had experience in regard to investigations of

failures of component parts on an engine?

...

1

(...continued)

(2) The manufacturer, its agent or authorized dealer is unable to conform the motor

vehicle to any applicable express warranty after a reasonable number of attempts.

...

(e) It shall be an affirmative defense to any claim under this part:

...

(2) That a nonconformity is the result of abuse, neglect or unauthorized

modifications or alterations of a motor vehicle by a consumer.

-4-

A. Yes. I actually have been kind of a shade-tree mechanic since

about sixteen years old. I started a company for a guy who

had a patent on a spark plug in 1999, and actually we

manufactured the spark plug . . . . I did a lot of analysis of

engines, combustion, the effects of burning inside the

combustion chamber. There were cases where the spark

plugs would fail, and I did analysis of those engines as well.

Mr. Rasnic testified as to the investigation he performed Mr. Davis’ truck:

[M]y investigation centered on why was oil being burned in the

combustion chamber.

[F]irst of all, I drove the vehicle. I noticed that it was missing

at idle. It seemed to run at highway speeds fine. Typically a miss

means that one of your cylinders is misfiring somehow . . . .

...

You should have very little buildup of anything on the spark plug if

everything is working inside the combustion chamber correctly.

There are eight plugs in this vehicle. . . . On three of the plugs

out of the eight, there was significant deposits of oil . . . . One of

those would have been the one that was causing the miss.

...

So, when I did this test, pour[ed] oil in the engine and redid the

compression readings, they all came up, meaning the problem is in

the cylinder, piston, piston ring area. That is where the oil is coming

into the cylinder and the burning is causing the fouled spark plugs.

Mr. Rasnic also used a “Snap-On” diagnostic analyzer, which he explained as follows:

[This] read[s] the PCM [Power Control Module] parameters, the

engine control module parameters, to see if there were any fault

codes related to this type of [oil consumption] problem. What your

on board computer will do is store codes of problems with

components in the engine, and you can read them with what is called

a Star Tech, you can read them with a Snap-On, you can read them

with other aftermarket things as well, and it tells you where problem

areas are. None of the codes I found in that related to anything to do

with oil consumption or problems that would relate to the Superchip

....

Mr. Rasnic explained the “super chip” as follows: “What a Superchip is, it basically has the same

parameters that any other manufacturer puts into their engine, but it changes the parameters on some

-5-

of the things to give you more horsepower.” He testified that he obtained his information about the

super chip through speaking with the manufacturer of the chip.

Mr. Rasnic did not personally perform a diagnostic test, but he did watch a Ford employee

run a diagnostic test on the truck. He testified that he and the Ford technician test drove the truck

with Ford’s Star Tech analyzer plugged into the truck, and the results indicated that all parameters

were normal. He testified on cross examination that he was not trained in the use of the Star Tech

equipment. Nor did he look at the cylinders on the truck during his inspection.

Mr. Rasnic testified that it was his opinion that the after-market components on Mr. Davis’

truck “did not have any effect on the oil consumption causes in this engine.” It was his opinion that

the problem was “either one of those four things. You have a damaged ring. You have a ring

alignment problem. You have a cylinder bore problem, or you have scored cylinder walls. . . . So

it’s a cylinder to piston ring interface problem of some sort of one of those four scenarios that I just

gave you.” It was his opinion that of these four possible causes, “they originated at the time the

vehicle was manufactured, because they began showing at very low mileage.” His conclusion was

that after-market components would not affect the engine oil consumption.

Ford called their own expert witness, Tom Messerly. Mr. Messerly is a Ford field service

engineer located in Memphis. Mr. Messerly has over 12 years of experience working for Ford. He

testified that he is certified in ASE (Automotive Service Excellence), a “certification that’s

recognized nationwide in the automotive field for repair, [and] the diagnostics of automobile

vehicles . . . .” Mr. Messerly inspected the truck on August 3, 2005. His relevant testimony is as

follows:

Q. Okay. Could you just very briefly, by using the report or just

telling the Judge and - - and us what you did and what you

found?

A. I found an aftermarket air filter, which was the K & N filter.

I believe it was excessively dirty. It hadn’t been cleaned in

a long time. I also checked the oil level of the truck and it

was low, below the minimum specification.

The vehicle had been driven in by the customer for the

inspection. I also found an aftermarket Magnaflow muffler

on the vehicle, a super chip plugged into the manufacturer’s,

Ford Motor Company’s computer system.

I also found several codes in the manufacturer’s

computer system which . . . [were] a vehicle speed sensor,

battery voltage low and a turbo/supercharger overboost code.

I also found that upon inspection that the vehicle did not

come up as an F-150 Lightning. It came up as a Ford Ranger.

...

-6-

I put a piece of Ford diagnostic equipment on the

vehicle. It’s called a WDS, Worldwide Diagnostic Systems.

It’s a computer that reads the computer on the vehicle. And

this is a diagnostic piece of equipment that technicians use on

a regular basis - - Ford technicians.

...

In this particular case, it read this [truck’s] computer

thinking that it was a Ford Ranger. . . .

The one thing it did check and it came up with is an

overboost code, meaning there was too much boost put into

this vehicle.

Mr. Messerly explained “overboost” as follows:

The overboost is a code that Ford Motor Company puts into

it [sic] system to be sure, puts the check engine light on to be sure

that there’s not too much boost pressure put into a cylinder when the

vehicle is running down the road. Excessive amount of boost

pressure can cause excessive amount of pressure in the cylinders,

excessive amount of wear. It basically overloads the internal

combustion engine, the engine itself, of the vehicle.

Mr. Messerly testified that the truck’s computer “thought” it was a Ford Ranger, and thus used

“different torque curves, different settings than our factory settings from Ford Motor Company.”

Mr. Messerly performed a compression test and testified he found none of the truck’s cylinders to

be extremely high or low.

Mr. Messerly described a K & N air filter as follows:

This is a cloth type of filter. A cloth filter relies on the oil that

is put in the filter to trap large - - smaller particles and particles of

dirt. That’s the advantage of the K & N filter is that it allows more

air flow into the engine. The downfall of that type of system is you

have to maintain it very closely and you have to keep it oiled very,

very well or else it will not trap particles of dirt.

Mr. Messerly testified that the excess dirt went through the throttle body of the truck, which “shows

that there’s been a lot of dirt go into the intake system.”

As to the Magnaflow muffler, Mr. Messerly testified that it is a component added solely for

“performance. It’s to increase performance of the engine. It’s to reduce the amount of back flow

of an engine.”

Mr. Messerly also testified as to the condition of the truck’s tires:

-7-

I inspected the tires on the vehicle . . . . [O]ne was at 2/32’s, which is

at the very minimum you’re allowed to drive on the street with

legally. And another tire was at 6/32’s. The significance of that is

typically because someone is spinning the tires or driving the vehicle

very hard and the tires are being spun.

...

There was also a large amount of what we, the technician and

I that was inspecting the vehicle, considered an excessive amount of

acceleration, more than stock, more than normal.

After the completion of his inspection, including a borescope test, Mr. Messerly reached the

following conclusion:

My conclusion was that due to several factors, one of which

is the aftermarket super chip increases the performance and the boost

of the supercharger. [sic] They had a lot of excessive amount of air

flow and dirt, a lot of dirt come in [sic] through the aftermarket air

filter system. The muffler itself reduces the back pressure. And the

vehicle was run below the minimum oil specifications. I feel it was

not a factory defect that caused these problems, that caused the oil

usage on the vehicle and that this was not a factory warrantable issue.

The trial court entered an order on May 8, 2007, finding in favor of Ford on all counts. The

court specifically found that after the truck left Ford’s control, the following after-market

modifications occurred:

1. An aftermarket super chip [ ] had been plugged into the

Truck’s computer system to alter the engine parameter to

increase the Truck’s horsepower;

2. An aftermarket K&N Air Filtration System [ ] had been

installed on the Truck to increase the amount of air in the

engine and thus, increase its power; and

3. An aftermarket Magnaflow Muffler [ ] had been installed on

the Truck to quiet the noise from the engine and increase its

power.

These products were neither manufactured nor installed by Ford.

Furthermore, Ford and its dealerships recommend that Ford owners

not install these on their vehicles due to warranty concerns.

-8-

The court found that these modifications were the cause of the truck’s “nonconformities.” The court

based this on Mr. Messerly’s expert testimony, and found that Mr. Davis’ expert, Mr. Rasnic, lacked

credibility. Based on these findings of fact, the court concluded that Ford “lived up to the terms of

the Warranty and this Court must find in its favor.”

II. ISSUES PRESENTED

Mr. Davis presents four issues, but we have rephrased and consolidated the issues as follows:

1. Whether Ford failed to prove by a preponderance of the evidence that the after-market

modifications were the cause of the truck’s nonconformities.

2. Whether the trial court erred as a matter of law in determining that a buyer of a vehicle must

have privity of contract with the manufacturer in order to revoke acceptance.

III. STANDARD OF REVIEW

Our review of the trial court’s factual findings made pursuant to a bench trial is de novo with

a presumption of correctness. Tenn. R. App. P. 13(d) (2007); Moody Realty Co., Inc. v. Huestis,

237 S.W.3d 666, 673 (Tenn. Ct. App. 2007) (citing Wright v. City of Knoxville, 898 S.W.2d 177,

181 (Tenn. 1995)). We will only overturn these factual findings if the evidence preponderates

against them. The evidence preponderates against a trial court’s finding of fact when it supports

“another finding of fact with greater convincing effect.” Nashville Ford Tractor, Inc. v. Great

American Ins. Co., 194 S.W.3d 415, 425 (Tenn. Ct. App. 2005); Watson v. Watson, 196 S.W.3d

695, 701 (Tenn. Ct. App. 2005) (citing Walker v. Sidney Gilreath & Assocs., 40 S.W.3d 66, 71

(Tenn. Ct. App. 2000); The Realty Shop, Inc. v. R.R. Westminster Holding, Inc., 7 S.W.3d 581, 596

(Tenn. Ct. App. 1999)). We do not apply a presumption of correctness, though, to the trial court’s

conclusions of law. Moody Realty Co., Inc., 237 S.W.3d at 673 (citing Bowden v. Ward, 27 S.W.3d

913, 916 (Tenn. 2000)). Instead, our review is de novo. Troup v. Fischer Steel Corp., 236 S.W.3d

143, 146 (Tenn. 2007) (citing Stewart v. Sewell, 215 S.W.3d 815, 821 (Tenn. 2007)).

We give great weight to the trial court’s factual findings concerning the credibility of

witnesses, Nashville Ford Tractor, Inc., 194 S.W.3d at 425 (citations omitted), and we will not re-

evaluate these factual findings unless there exists clear and convincing evidence to the contrary.

Sircy v. Metro. Gov’t of Nashville and Davidson County, 182 S.W.3d 815, 818 (Tenn. Ct. App.

2005) (citation omitted).

IV. DISCUSSION

A. Sufficiency of the Evidence - After-market Modifications

Mr. Davis argues that Ford failed to prove by a preponderance of the evidence that the

truck’s after-market modifications were the cause of the nonconformities. Mr. Davis further argues

-9-

that he proved a substantial manufacturing defect was present in the truck. Basically, Mr. Davis is

arguing that the trial court erred by discrediting his expert witness, Mr. Rasnic, and accrediting

Ford’s expert witness, Mr. Messerly. We disagree.

The court specifically found that Mr. Rasnic lacked credibility:

F. Plaintiffs’ Expert Witness Lacked Credibility.

[P]laintiffs employed Mr. Rasnic, an admitted “shade tree” mechanic,

to inspect the Truck. Unlike Mr. Messerly, Mr. Rasnic possessed no

experience in the automotive service field and was not a trained

mechanic. He had never worked for an automobile manufacturer or

dealer. Furthermore, his experience in inspecting and testifying

about engines was limited to his inspection of a Chevrolet engine in

a Model T.

The court also pointed out that Mr. Rasnic based his opinion on a test drive and his observation of

a Ford service technician’s performance of a borescope, but he did not perform the test “or even look

into the cylinders after the test to verify its results. Despite his lack of participation, Mr. Rasnic

testified that the results of this borescope supported his conclusion that the excessive oil

consumption was a manufacturing defect.” The court also noted that although Mr. Rasnic watched

a Ford technician run a test using a Ford Star Tech analyzer, Mr. Rasnic was not trained nor had any

experience with a Ford Star Tech analyzer.

The court concluded that Ford appropriately denied coverage under the warranty because

“Ford successfully demonstrated that the Vehicle was equipped with several after-market

modifications . . . and that these modifications caused the Truck’s excessive oil consumption issues.

Ford also established that Plaintiffs were driving the Truck with low oil and a dirty air filter.”

As previously stated, we do not second-guess a trial court’s determination of witness

credibility absent clear and convincing evidence to the contrary. See C & W Asset Acquisition, LLC

v. Oggs, 230 S.W.3d 671, 676 (Tenn. Ct. App. 2007); ARC LifeMed, Inc. v. AMC-Tennessee, Inc.,

183 S.W.3d 1, 24 (Tenn. Ct. App. 2005) (“One of the most time-honored principles of appellate

review is that trial courts are best situated to determine the credibility of the witnesses and to resolve

factual disputes hinging on credibility determinations.”). We agree with Ford’s characterization of

this case as a “battle of the experts.” The trial court accepted Ford’s expert’s testimony that the

after-market modifications caused the problems with Mr. Davis’ truck. Mr. Davis restates in his

brief Mr. Rasnic’s testimony and his conclusion that the super chip and other modifications did not

cause any of the truck’s problems. Mr. Messerly’s conclusion is the exact opposite, that the super

chip, along with the other modifications, caused the truck’s problems. “When expert testimony

differs, it is within the discretion of the trial judge to determine which testimony to accept.”

Bohanan v. City of Knoxville, 136 S.W.3d 621, 624 (Tenn. 2004) (citing Kellerman v. Food Lion,

Inc., 929 S.W.2d 333, 335 (Tenn. Workers Comp. Panel 1996)); see also Brown v. Crown

Equipment Corp., 181 S.W.3d 268, 275 (Tenn. 2005) (“The weight of the theories and the

resolution of legitimate but competing expert opinions are matters entrusted to the trier of fact.”).

-10-

Here, we have two competing explanations as to the cause of the truck’s problems. The court chose

not to believe Mr. Rasnic, due in part to his lack of experience with a Ford engine and the fact that

Mr. Rasnic did not perform the tests. The trial court instead chose to accept Mr. Messerly’s

testimony as credible. We find no clear and convincing evidence to disturb this finding.

Mr. Davis argues that he proved that the truck had a substantial manufacturing defect,

namely a “cylinder to piston ring interface problem.” Mr. Davis also argues that Ford had the

burden of proving that the after-market parts caused the truck’s damage, and they did not met this

burden. Again, these arguments hinge on the expert testimony, and as already stated, we will not

disturb the trial court’s ruling, as we are not in a position to second-guess the trial court’s credibility

determination.

B. Privity of Contract

Mr. Davis argues that he effectively revoked his acceptance of the truck because he sent a

letter of revocation to Ford. We next examine whether a buyer of a vehicle must have privity of

contract with the manufacturer in order to revoke acceptance. This question has already been

answered by our Supreme Court in the affirmative.

Tenn. Code Ann. § 47-2-608 provides a buyer with the remedy of revocation against the

seller:

(1) The buyer may revoke his acceptance of a lot or commercial unit

whose nonconformity substantially impairs its value to him if he has

accepted it:

(a) on the reasonable assumption that its nonconformity would be

cured and it has not been seasonably cured; or

(b) without discovery of such nonconformity if his acceptance was

reasonably induced either by the difficulty of discovery before

acceptance or by the seller's assurances.

(2) Revocation of acceptance must occur within a reasonable time

after the buyer discovers or should have discovered the ground for it

and before any substantial change in condition of the goods which is

not caused by their own defects. It is not effective until the buyer

notifies the seller of it.

...

Our Supreme Court, in Kyker v. General Motors Corporation, 214 Tenn. 521, 526–27, 381 S.W.2d

884, 886 (Tenn. 1964), addressed this exact issue of privity. In Kyker, the plaintiff sued the

manufacturer of an allegedly defective vehicle, seeking the remedy of rescission. The dealer, whom

the plaintiff purchased the vehicle from, was not an authorized dealer for General Motors

Corporation. Our Supreme Court held that such a remedy was not available “as against a

manufacturer who is not his immediate vendor or a party to the contract of sale.” Id. at 886. To

-11-

hold otherwise, the Court reasoned, would “fl[y] in face of the very terms of the Act itself. The Act

is couched in terms of ‘buyer’ and ‘seller’ and . . . it is intended to apply to only transactions

between vendor and vendee and should not extend to the relations between a manufacturer, not a

vendor, and the consumer.” Id.

Subsequently, in Watts v. Mercedes-Benz USA, LLC, No. E2007-00311-COA-R3-CV, 2007

WL 2700059, at *1 (Tenn. Ct. App. Sept. 17, 2007), the Eastern Section of this Court dealt with the

same issue of whether a buyer is entitled to the remedy of revocation against the automobile

distributor or manufacturer under a claim for breach of warranty and a claim under the Magnuson-

Moss Warranty Act. The Court concluded that “ the remedy of revocation of acceptance, previously

known as rescission, is only available against the seller, not the distributor, of the product.” The

Court opined that “the application of common-sense reasoning persuades us that the buyer may only

pursue a revocation of acceptance remedy against the seller, not a distributor who did not transfer

title and to whom no purchase price was ever paid.” Id. at *2.

Turning back to the present case, Ford was the manufacturer, and not the seller or distributor

of the truck to Mr. Davis. Thus, from our discussion of the aforementioned case law, it is clear that

the remedy of revocation of acceptance is not available against Ford.2

Mr. Davis also argues that the trial court erred in finding that privity of contract is required

to bring suit against the manufacturer under Tenn. Code Ann. § 55-24-203 and the Magnuson-Moss

Warranty Act. We agree with Ford that Mr. Davis has misstated the issue. We find no such ruling

in the record. The trial court found that privity of contract is required for revocation of acceptance.

As already discussed above, we have reached that same conclusion.

V. CONCLUSION

For the aforementioned reasons, we affirm. Costs of the appeal are assessed against

Appellant, Jessie Davis and his surety, for which execution may issue if necessary.

___________________________________

ALAN E. HIGHERS, P.J., W.S.

2

Because of the aforementioned holding, we need not determine whether Mr. Davis waived the right to revoke

acceptance by his continued use of the truck after discovering the defects.

-12-