it please the court patrick remains on the half of the appellant and claim to follow defendant jane doe provided of written warranty on a recreational vehicle that was subject to a number of repairs almost immediately after purchase cannot explain directly why the business entity is not also named as the plaintiff was that your choice that was not my choice your honor i know it's not a good answer but i did not represent the plaintiff at that time at the time the lawsuit w so i've been trying to think about this whether this has to go do with our jurisdiction understanding or whether it's just an issue of the real party in interest which may have been waived i believe in gnomeo i believe it may be the latter issued on a party in interest  that purchased the recreational vehicle through the l l c solely for the purpose of sales tax advantage so the d l c have any other purpose no other purpose are you admitting your client is therefore and have been engaging in a tax sc to understand out but i've got to say you know given the arguments that have been made here it's not clear to me why we shouldn't treat this whole thing as a fraudulent transaction both ways the defendant did you  extra amount for an extended warranty right i believe so you and the defendant took money for that the video of the dealership took money for that i dealership took the money for that with with with paper showing according to the defendant's theory that the warranty was invalid because it was in the name of an l l c well this is not the extended warranty this is the manufacturer's warranty but that was part of the consideration paid for the for the recreational vehicle and that is correct that the reason that we're here is to try to figure out why these repairs were performed shortly after purchase and there have been three reasons or theories advanced as to why only one of which is supported by the record and we're in summary judge more actually here on the legal question which is whether this warranty this claim is excluded by the warranty it's specifically excluded because fee was purchased in a business meeting and it's out of the argument you're making about repairs is covered by another provision in the warranty that said that these are good will repairs and that doesn't alter the terms of the warranty so it seems to me you're out as a matter of law doesn't matter what the reasons for the repairs are well there has to be some evidence as well repairs were performed and if the work he was voided then the repair should not have been performed but it doesn't matter that's what the warranty says and you say you can't claim protection act of this warranty we can claim if jake a waved those provisions if jayco by performing because the repairs were performed for free manufacturer authorizes a thousand dollars worth of repairs it is reinstating and otherwise void warranty that that could wind up costing hundreds of thousands of dollars train you really don't want people to if you don't want determined it's essentially going to be the difference between the purchase price you agree was greater than fifty thousand dollars yes your honor i think you know it would be the difference between the purchase price and possibly the depreciated value of the vehicle given that the discovery  defects and the issue of waiver comes from the inspector that jayco hired and attached a report to the to the motion for summary judgment where the inspector goes through it's a lengthy report going through a list of be performed from slide outs to the driver's window to the fours in the stove in the bathroom and all of these repairs are described by their inspector as warranty items or related or covered that that's parole evidence there's no ambiguity here you're excluded your claim is excluded under three separate provisions well  montana my clients in connection to montana i believe that that connection was made at the behest of the dealership who sold i'm not sure i'm not aware of any other connection other than the introduction was the was the vehicle registered in montana yes i believe it was i do believe it was the i believe that the issue with the warrant is to take from the cases earlier earlier on a couple of horses of a different color the voiding of the warranty results in there being no warranty whatsoever if there is no warranty whatsoever that no repairs should have been performed again unless there was some evidence in the record not conjecture or speculation but evidence in the record as to why j cole performed these repairs and if these repairs were good will repairs subject to repairs because of some exclusion of the only evidence presented regarding actual repairs was from their own hired inspector who labeled all these as warranty concerns and warranty items the inspector did go through a list of items that were excluded under the warranty the inspector seemed to address a familiarity with the warranty but these issues were all described as being covered under the warranty and there was never any indication at all that you could buy anything on the record that these  rs were anything other than the warranty so i believe that on summary judgment that it's it's improper to make that inference when there is an inference that does exist that the repairs work could have been performed pursuant to the warranty another inference as the bench is pointed out is that the repairs could have been performed pursuant to the goodwill exception or perhaps the warranty was completely avoided and was no longer a full force  it please the court trevor gaspar on behalf of jaisha before i get to my main argument i do want to address come some of the of questions that judge hamilton raised first of all i bristle any time that a fifty year old company like jayco could be lumped into any accusation of committing fraud i think that might have come from a misunderstanding of what the extended warranty at the time of purchase was the extended warranty is not offered by jayco is offered by third parties who with whom dealers contracts in the r v world unlike the automobile world r v s companies do not control or franchise with their dealers in fact dealers carry many competing minds and brands of dealers also make money selling extended warranties that myself pay protection they might sell tire coverage all things that are not provided by manufacturers like jayco so feelers are engaged in a extra money for a warranty of no effect just part one part two as there is no industry wide scheme to avoid sales tax in fact manufacturers try to educate the public regularly on the overseen nationwide probably another sixty cases and only two involve a motorhome that was registered in the name of my town l c i don't think this is as widespread i also want to diffuse this idea that this montana l c that we're talking about here was set up to purchase this motor it was not part of the record because this wasn't an issue that we had to litigate but the plaintiff testified at his deposition that this l l c existed before this purchase that's because he owns an and he want another r v in it he owns an airplane in it and he owns several other vehicles in this montana l l c so the question of standing that your honor raised i do believe it is a real party in interests question credential standing it's not a constitutional issue of standing there is a case or controversy here just a question of who has the right to pursue it down below we did receive discovery showing some kind of an assignment from the  individual we chose not to raise it as part of our summary judgment but what this case comes down to is a decision when mr knoppix decide of the purchase a luxury motor home for four hundred fourteen thousand dollars back in two thousand and twelve he had a choice he could purchase that motorhome individually in his own name he could have his motor home covered by the integra two year limited warranty and pay sales tax or he could purchase it register and tied it in the name money and he's before this court asking the court to give it to him both ways but on the warranty doesn't get it both ways the district court got it right when he granted summary judgment now we know mr knoppix made a conscious choice because before he bought this motor home he was provided a copy of the limited warranty and he signed a warranty registration that said hey i i certify that's the language from the word to register i certify that i received a copy of this one thousand i've read it i understand its terms and i understand the intended use of this recreational vehicle and as the court points out twice in the warranty are in the exclusions that this motor home cannot be used for business purposes which includes any unit purchased titled or registered in the name of a business after he received them or in t and after heaps certify that he read and understood the terms he bought it the name of his l l c anyway the expert report we designated in support of summary judgment indicates that he received the benefit of at least twenty one thousand but as much as forty one thousand dollars by doing under the terms of the warranty jayco had no obligation to authorize any three repairs to knock however as just six points out jayco did reserve the right to perform repairs on r v s that were excluded from warranty but the w specifically provides that that those repairs shall be considered good repairs and so on summary judgment it was mr knoppix burden as the party asserting waiver to step forth evidence of waiver and what does the court half of the court has an r v title the name of the business it has to exclusions in the warranty saying that's not covered and we have warranty repairs there is no evidence of any affirmative act on the standing tradition of not reversing district courts on grounds that weren't presented to it and we don't think the courts or the band in that approach today but the claims fail substantively anyway the first argument is that these two provisions excluding the motorhome for coverage are somehow inconsistent they're not these two provisions are provided under both headings one of them is titled what is not covered the other one events discharging integra from obligations  gets it he says if voided on page seven if we did none of the warranty terms would survive defendant and plaintiff would have no legal relationship under the warranty whatsoever and frankly we agree with that if the r v is exclu first of all in a contract is an expert that was retained after litigation to inspect the r v and provide opinions as to the condition of the r v and perhaps as the value there has been no showing that this report again years after the facts underlying this litigation erodes how this report authored after litigation commenced could constitute evidence of a pre suit wavier by jayco of  warranty exclusion moreover mr hutch crafts does draw distinctions in his report but the distinctions he draws are factual a motorhome is typically manufactured in two parts there's a chassis with the drive train and that comes from a chassis manufacturer in this case a spartan chassis what jayco does is it takes that bare metal on most with an engine in a transmission and it builds the r v on top of it its report mr hutch crafter make the factual observation that hey this was the responsibility of jake of this issue over here with a fuel gauge that isn't jayco that's part of the chassis and ultimately would be the chassis manufacturer and their warranty which would cover that  and that's all made clear within the warranty documents and i believe in mature mr hutch crafts report what mr hutch craft isn't doing because it would be improper for him to do is making any kind of legal conclusion about what clues to what exclusions could happily in their reply brief to summary judgment only it was not raised in the initial motion this forum is the first opportunity that my client has had to argue this issue mr hutch craft simply calls all of the defects the long list of his lengthy report issues related to the warranty and to warranty repairs had mr hutch craft referred to them as goodwill repairs or repairs that were excluded under the warranty there would be a different discussion here today subcouncils arguments characterizing the repairs as goodwill versus warranty i would respectfully submit is not proper it is a factual determination to be made at trial and should not be made as a purely legal argument we are viewing these facts in the light most