00-2482 Smyser v. Western Star Truck Co.

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“Smyser asserted claims under Wis. Stat. sec. 218.0171(2)(a) and (2)(b) of the Lemon Law. Section 218.0171(2)(a) obligates a manufacturer to repair a nonconformity covered by a warranty under certain conditions. Section 218.0171(2)(b) provides that the consumer may obtain a replacement vehicle or a refund and related costs where, after the manufacturer’s reasonable attempt to repair, the nonconformity is not repaired. To receive a replacement vehicle or a refund, the consumer must offer to transfer the title of the vehicle to the manufacturer and, upon the manufacturer providing the replacement vehicle or the refund, the consumer must deliver the vehicle and the title to the manufacturer. Section 218.0171(2)(c). …

“The undisputed summary judgment evidence in this case supports the trial court’s determination that although Western Star could not remedy the nonconformity, it did make a reasonable attempt to repair the vehicle pursuant to Wis. Stat. sec. 218.0171(2)(b). In fact, Smyser does not contend otherwise. As such, Vultaggio [v. General Motors, 145 Wis.2d 874 (1988)] and Dussault [v. Chrysler Corp., 229 Wis.2d 296 (1999)] bar Smyser’s claim under subsec. (2)(a) … in Summary, Smyser was no longer a consumer under the Lemon Law when he registered his Lemon Law claim.”

We also reject plaintiff’s claims under the Uniform Commercial Code for essentially the same reasons.

“We have previously noted that Smyser made no legal claims against Western Star until some ten months after he had delivered the vehicle and the title to Racine Truck. As a result, the vehicle was sold to a third party. Given these facts, it is apparent that Smyser did not hold the vehicle for Western Star as a rejected commodity under the UCC. Instead, by using the vehicle for nearly a year and a half and by then transferring the title and possession, Smyser was signaling his continuing acceptance, not revocation of that acceptance, of the vehicle. Smyser’s attempt to revoke his acceptance nearly two years after delivery of the vehicle and after he engaged in conduct confirming his ownership of the vehicle stands the revocation of acceptance provisions of Wis. Stat. sec. 402.608 on its head.

“As with Smyser’s Lemon Law claim, the revocation of acceptance and related provisions of the UCC contemplate congruent actions by the buyer and the seller. That did not occur here.”

Order affirmed.

Recommended for publication in the official reports.

Dist II, Racine County, Torhorst, J., Nettesheim, J.

Attorneys:

For Appellant: Gary W. Thompson, Milwaukee

For Respondent: Michael J. Jassak, Racine