Rawson v. Conover

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Rawson, et al. v. Conover, et al. Filed June 24, 1999 IN THE UTAH COURT OF APPEALS

James K. Rawson, et al.,
Plaintiffs and Appellees,


Kim Edward Conover, et al.,
Defendants and Appellants.

(Not For Official Publication)

Case No. 980298-CA

June 24, 1999
  1999 UT App 209 -----

Third District, Salt Lake Department
The Honorable Pat B. Brian
The Honorable Glenn Iwasaki

T. Richard Davis, Salt Lake City, for Appellants
Ray G. Martineau and Anthony R. Martineau, Salt Lake City, for Appellees


Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Associate Presiding Judge:

Plaintiffs James K. and Rebecca R. Rawson appeal from both Judge Brian's and Judge Iwasaki's grant of summary judgment in favor of defendants Kim Edward and Karen Jane Conover, K&K Sales, Paul Clark, and Old Republic Surety Company. We affirm.

"Summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law." S.W. Energy Corp. v. Continental Ins. Co., 364 Utah Adv. Rep. 61, 63 (Utah 1999) (citing Utah R. Civ. P. 56(c)). "We review the district court's grant of summary judgment for correctness, according no deference to the court's legal conclusions, Thompson v. Jess, 364 Utah Adv. Rep. 64, 65 (Utah 1999), and "'accept the facts and inferences in the light most favorable to the losing party.'" Nyman v. McDonald, 966 P.2d 1210, 1211 (Utah Ct. App. 1998) (citation omitted)).

Plaintiffs argue that Judge Brian erred in granting summary judgment in favor of defendants on all of plaintiffs' claims except breach of express and implied warranties under the Utah Commercial Code. We disagree. Although plaintiffs alleged seven causes of action in their amended complaint, they only addressed the issues of express and implied warranties in their memorandum in opposition to defendants' motion for summary judgment. In addition, the affidavits submitted by plaintiffs in support of their memorandum failed to assert any facts to support their claims under the Utah Consumer Protection Act, the Utah Motor Vehicle Act, or their products liability claim. See Utah R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule," an adverse party's response, "by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."). We therefore conclude Judge Brian properly granted summary judgment in favor of defendants.

Plaintiffs also argue that Judge Iwasaki erred in granting summary judgment in favor of defendants on plaintiffs' claims of breach of express and implied warranties. Again, we disagree. Plaintiffs admitted they were aware the vehicle had been salvaged and repaired. Also, Mr. Rawson stated he did not rely on any oral representations regarding the condition of the vehicle. Therefore, the written documents, clearly stating the vehicle was being sold "AS IS" without warranty, represented the entire agreement between the parties. See Brown v. Richards, 840 P.2d 143, 148 (Utah Ct. App. 1992). By signing the contract and declining to have the vehicle inspected, plaintiffs waived all express and implied warranties under the Utah Commercial Code. See Utah Code Ann. § 70A-2-316(3)(a) (1997) ("all implied warranties are excluded by expressions like 'as is,' . . . which in common understanding calls the buyer's attention to the exclusion or warranties and makes plain that there is no implied warranty"); id. § 70A-2-316(3)(b) (1997) ("when the buyer . . . has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him").


Pamela T. Greenwood,
Associate Presiding Judge



Judith M. Billings, Judge

Gregory K. Orme, Judge