Fincher v. Robinson Bros. Lincoln-Mercury, Inc.

• Decision Date: 17 May 1991
• Docket Number: LINCOLN-MERCUR,INC
• Citation: 583 So.2d 256
• Parties: 15 UCC Rep.Serv.2d 1197, Prod.Liab.Rep. (CCH) P 12,911 Robert A. FINCHER v. ROBINSON BROTHERS 1900180.
• Court: Alabama Supreme Court

Page 256

583 So.2d 256

15 UCC Rep.Serv.2d 1197, Prod.Liab.Rep. (CCH) P 12,911

Robert A. FINCHER v. ROBINSON BROTHERS LINCOLN-MERCURY, INC.

1900180.

Supreme Court of Alabama.

May 17, 1991.

Rehearing Denied June 28, 1991.

James Harvey Tipler of Tipler & Tipler, Andalusia, for appellant.

Michael S. McGlothren and W.E. Howard III of Crosby, Saad & Beebe, Mobile, for appellee.

HOUSTON, Justice.

Robert A. Fincher sued Robinson Brothers Lincoln-Mercury, Inc. ("Robinson"), alleging that the new Mercury Sable automobile that he had purchased from Robinson was defective and seeking damages under theories of breach of warranty and fraud. The trial court entered a summary judgment for Robinson on both claims. Fincher appealed. ¹ We affirm.

Summary judgment was proper in this case if there was no genuine issue of material fact and Robinson was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Robinson to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If Robinson made that showing, then the burden shifted to Fincher to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to Fincher and must resolve all reasonable doubts against Robinson. Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The following material facts appear to be undisputed: After seeing various advertisements that had been placed by Ford Motor Company ("Ford") touting the qualities of its new Mercury Sable line of automobiles and after deciding that he wanted to purchase a Mercury Sable, Fincher visited Robinson, where he was told by a sales representative that the Sable would not be available for sale for a month or so. Fincher says that in discussions with him, the representative told Fincher that the Sable was a "fine car," that it "would be dependable and reliable and that it would give [him] good service," that it "was well-suited for [his] purposes," and that it "was well and properly constructed." Although Robinson had no Sables on its lot for Fincher to inspect or to test drive, Fincher placed a special order for a new Sable. An order form signed by Fincher and a copy of an invoice received by him both contained the following language, which was printed in a type and color (red) that contrasted with the type and color used in the remainder of the documents:

"The Seller, ROBINSON BROS. L-M, Inc., hereby expressly disclaims all warranties, either express or implied, including any implied warranty of merchantability or fitness for a particular purpose and ROBINSON BROS. L-M, Inc., neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of the vehicle."

This language also appeared in these two documents in prominent locations and apart from other language.

Fincher contends that the summary judgment on his breach of warranty claim was improper. Conceding that Robinson made no express warranty with respect to the condition of his automobile, he argues that his automobile was impliedly warranted by Robinson to be "properly constructed, merchantable, and fit for its ordinary and intended purposes." Robinson contends that it complied with Ala.Code 1975, § 7-2-316(2), and, thereby, disclaimed any implied warranties that could have arisen out of the sale of the automobile to Fincher. Fincher maintains that the language used by Robinson in the invoice and in the order form was not "conspicuous" and, therefore, was insufficient as a matter of law to disclaim any implied warranties. The dispositive issue, therefore, is whether there was a disclaimer of warranties under § 7-2-316(2).

Section 7-2-316(2) provides:

"Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that 'There are no warranties which extend beyond the description of the face hereof.' "

"Conspicuous" is defined in § 7-1-201(10) as follows:

"A term or clause is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: NONNEGOTIABLE BILL OF LADING) is conspicuous. Language in the body of a form is 'conspicuous' if it is in larger or other contrasting type or color. But in a telegram any stated term is 'conspicuous.' Whether a term or clause is 'conspicuous' or not is for decision by the court."

The undisputed facts in this case show that Robinson disclaimed any implied warranties that could have arisen from its sale of the automobile to Fincher. Both the copy of the invoice received by Fincher and the order form signed by him contained disclaimers that satisfy the requirement of conspicuousness set out in § 7-1-201(10). ² Accordingly, the summary judgment for Robinson was proper as to the breach of warranty claim. See Dairyland Ins. Co. v. General Motors Corp., 549 So.2d 44 (Ala.1989), and Wilson v. Larry Savage Chevrolet, Inc., 477 So.2d 384 (Ala.1985).

Fincher also contends that the summary judgment for Robinson was improper as to his fraud claim. He argues that a genuine issue of material fact exists as to whether a representative of Robinson made false representations of material fact to him concerning the condition and anticipated performance of his automobile upon which he relied to his detriment. Robinson contends that the statements made to Fincher amounted to nothing more than expressions of opinion concerning the anticipated performance of a new line of automobiles and, therefore, that they did not constitute actionable fraud. We agree.

The elements of actionable fraud based on a false representation are: 1) a duty to speak the truth; 2) a false representation of a material fact made intentionally, recklessly, or innocently; 3) action by the plaintiff upon the false representation; and 4) damages proximately resulting from the false...