Day v. GMAC

FILED
IN THE COURT OF APPEALS OF TENNESSEE July 13, 1999

Cecil Crowson, Jr.
AT KNOXVILLE Appellate C ourt
Clerk

DON DA Y and KIM DA Y, on behalf
) C/A NO. 03A01-9811-CV-00372
of themse lves and all o thers similarly
)
situated, ) ROAN E CIRC UIT
)
Plaintiffs-Appellants, ) HON . RUS SELL SIMM ONS , JR.,
) JUDGE
v. )
)
GENERAL MOTORS ACCEPTANCE )
CORPORATION, ) AFFIRMED
) AND
Defendant-Appellee. ) REMANDED

GORD ON BA LL, Knoxville, for Plaintiffs-Appellants.

STEPHEN G. ANDERSON and ANDREW L. COLOCOTRONIS, BAKER,
DONELSO N, BEARMA N & CALD WELL, P.C., Knoxville, for Defendant-Appellee.

M E M O R A N D U M O P I N I O N1

Franks, J.

This action was dism issed by the Tr ial Judge fo r failure to state a claim

upon which relief could be granted, pu rsuant to T.R.C.P. §12 .02(6).

The alleged facts in this case are identical in all material respect, to the

1

(b) The Court, with the concurrence of all judges participating in the case, may affirm,
reverse or modify the actions of the trial court by memorandum opinion when a formal opinion
would have no precedential value. When a case is decided by memorandum opinion it shall be
designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on
for any reason in a subsequent unrelated case.
alleged facts in Harv ey v. Fo rd Mo tor Cre dit Co., 1999 W L 356 301 (T enn. A pp.).

Plaintiffs Don and Kim Day purchased a vehicle from a Chevrolet

dealer in Roane County. Plaintiffs financed the vehicle through the dealer and

defenda nt Gener al Motors Accepta nce Corp oration (“G MAC ”). Plaintiffs file d suit

against GMAC, alleging that its “dealer reserve” practice violates the Tennessee

Consumer Protection Act. The Trial Court, relying on its prior decision in Harvey,

dismissed the complaint and plaintiffs have appealed.

The Trial Court properly dismissed plaintiffs’ Second Amended

Complaint. The complaint is substantially the same in all material respects to the

complaint in Harvey. The Second Amended Complaint therefore suffers from the

same defects and similarly fails to state a claim under the Tennessee Consumer

Protection A ct.

Plaintif fs cite ca ses con struing I llinois law to supp ort their p osition.

These cases all involved sales of extended w arranties and are distinguishable. In

Bernhauser v. Glen Ellen Dodge, 683 N.E.2d 1194 (Ill.App. 1997), the court did not

expressly decide the issue of proximate cause. In Bambilla v. Evanston Nissan, Inc.,

1996 WL 284954 at *5 (N.D. Ill. 1996), the court addressed proximate cause:

Plaintiffs can prove damages as a proximate cause if they can induce
the trier of fac t to believe tha t they would h ave canc eled their dea ls if
they found out that they were actually paying more for the cars than they
thought o r that they wou ld not have entered into the service c ontracts if
they had known that they were incurring an upcharge.

Althoug h plaintiffs c ontend the y made simila r allegations in their

Secon d Am ended Com plaint, th e record does n ot supp ort their p osition. Cirone-

Shadow v. United Nissan of Waukegan, 955 F.Su pp. 938 (N .D. Ill. 1997), is sim ilarly

distingu ishable .

We adopt our reasoning set forth in the Harvey opinion, as well as our

opinion on the Petition to Rehear in that case, and affirm the judgment of the Trial

2
Court and remand. We assess the cost of the appeal to the appellants.

__________________________
Herschel P. Franks, J.

CONCUR:

___________________________
Houston M. Godd ard, P.J.

___________________________
William H. Inman, Sr.J.

3