The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge
Pending is Defendant's Motion for Partial Summary Judgment (Doc. No. 31). Plaintiff has responded (Doc. No. 36) and Defendant has replied (Doc. No. 38). Plaintiff alleges breach of warranty under the Uniform Commercial Code ("U.C.C."),*fn1 violations the Arkansas Deceptive Trade Practices Act ("A.D.T.P.A."),*fn2 common law fraud, constructive fraud, and breach of contract.
Plaintiff contends that Defendant misrepresented or did not disclose the mileage, the length, and the weight of a vehicle Plaintiff purchased from Defendant. Plaintiff alleges he relied on Defendant's acts and omissions and was damaged as a result of that reliance.
For the reasons set forth below, Defendant's Motion for Partial Summary Judgment is
GRANTED in part and DISMISSED in part.
A. Summary Judgment Standard
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided on purely legal grounds.*fn3 The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry performed is the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.*fn4 The Court of Appeals for the Eighth Circuit has cautioned that summary judgment is an extreme remedy that should only be granted when the movant has established a right to the judgment beyond controversy.*fn5 Nevertheless, summary judgment promotes judicial economy by preventing trial when no genuine issue of fact remains.*fn6 I must view the facts in the light most favorable to the party opposing the motion.*fn7 The Eighth Circuit has also set out the burden of the parties in connection with a summary judgment motion:
[T]he burden on the party moving for summary judgment is only to demonstrate, i.e.,"[to point] out to the District Court," that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.*fn8 Only disputes over facts that may affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.*fn9
Plaintiff alleges that Defendant advertised a 1995 Volvo race-car hauler as having 106,550 miles.*fn10 Jim Hague, Plaintiff's employee, visited Defendant's place of business, drove the race-car hauler, and visually inspected the vehicle.*fn11 Defendant's Buyers Guide that accompanied the vehicle read: "AS IS - NO WARRANTY. YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle."*fn12 On or around September 9, 2005, after Mr. Hague's inspection, Plaintiff purchased the vehicle from Defendant for $94,000.*fn13 On September 22, 2005, Plaintiff discovered that the race-car hauler had approximately 467,688 miles on it.*fn14 Plaintiff paid $13,682.59 for repairs to the vehicle and learned that the hauler is too long and too heavy to drive on the highway, and that it is not possible to correct the defects by redesigning the vehicle.*fn15 Plaintiff alleges he repeatedly requested Defendant offset the cost of the repairs or accept the return of the vehicle, but Defendant refused.*fn16
C. Warranties and the Exclusion of Warranties
Express warranties are affirmations made by a seller that become a part ...