1. What is the difference in the majority and dissenting opinions on revocation of acceptance?

2. Explain how the judges agree on the remedy.

On March 4, 2011, Lola Castro (of Lodge Grass, Montana) called Ernie’s Auto in Billings to inquire about a used 1995 Cadillac DeVille advertised for sale in a local newspaper. The price was listed at $1,995 but Ernie’s agreed to sell it to Castro for $1,500. On Friday, March 4, Castro and her husband drove to Billings to purchase the car. Upon arrival at Ernie’s lot at around 5:30 P.M., Castro signed multiple purchase documents, each of which indicated in bold print that the car was being sold “AS IS” without any expressed or implied guarantees or warranties. Neither Castro nor her husband test drove the car before purchase.

At around 6:00 P.M., Castro and her husband left Ernie’s. Castro’s husband drove the Cadillac and Castro drove the family’s other car. Approximately 2.5 miles from Ernie’s, the Cadillac began steaming and losing fluids from the radiator. They pulled into a Town Pump service station and left the vehicle there without seeking service. Castro testified that her husband called Ernie’s at that time and multiple times over the following few days but there is no record of those discussions. Castro left the Cadillac parked at the Town Pump until the following Wednesday. On that day, she and her husband returned to the Town Pump, purchased and installed a battery in the Cadillac, and drove it back to Ernie’s. They parked it on the street near Ernie’s lot, returned the keys to Ernie’s and demanded refund of their purchase money. Ernie’s refused to refund Castro’s money.

On April 1, 2011, Castro filed suit. She alleged that Ernie’s had breached an express warranty, violated the Montana Consumer Protection Act, and was negligent. She also alleged that she had the right to revoke her acceptance. She asked for a refund of her $1,500 purchase money, as well as $3,000 in damages, and reasonable attorney fees. The Justice Court granted Ernie’s motion for a directed verdict. Castro appealed to the District Court and the District Court affirmed the directed verdict and dismissed Castro’s appeal. Castro appealed again.

JUDICIAL OPINION

COTTER, Justice…Castro argues that the Justice Court erred by granting a directed verdict without addressing her individual claims against Ernie’s. She argues that under the Montana Uniform Commercial Code, § 30-2-608, MCA, she is entitled to revoke her acceptance of the vehicle provided she does so in a “reasonable time” after she discovers, or should have discovered, the “nonconformity” of the purchased product.

Castro had the burden of providing credible evidence that the vehicle was nonconforming but failed to do so. While she recounted the problems they had with the vehicle—the engine light came on, the car leaked fluids, and smoke or steam was emitted—she failed to establish that these problems constituted nonconformities in a 16-year-old car purchased “as is.” Moreover, Castro herself testified that replacement of the battery rendered the car operable. Castro did not have the car checked by a mechanic for proof of nonconformity or to determine the actual condition of the vehicle. As noted by the District Court, a purchaser of a used 1995 vehicle in 2011 “should ... expect that some repairs will be necessary such as belts, hoses, battery, seals, tire balancing and alignment, etc. These sorts of things do not render a motor vehicle unsafe.” ………………………..