RENDERED: OCTOBER 20, 2023; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2023-CA-0141-MR

ROBERT J. LEEPER APPELLANT

APPEAL FROM LIVINGSTON CIRCUIT COURT

v. HONORABLE JAMES R. REDD, III, JUDGE

ACTION NO. 21-CI-00092

COAD AUTO SALES, INC. D/B/A

COAD TOYOTA PADUCAH; AND

RAY H. MULLEN MOTOR

COMPANY APPELLEES

OPINION

AFFIRMING

**   **  **

BEFORE: EASTON, ECKERLE, AND JONES, JUDGES.

JONES, JUDGE: Robert J. Leeper appeals the Livingston Circuit Court’s 

summary dismissal of various civil claims he asserted against the above-captioned 

appellees stemming from his purchase of a damaged truck. Upon review, we 

affirm.
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I. BACKGROUND

On April 3, 2021, Leeper purchased a pre-owned truck with 283,444 

miles on it “as-is” from appellee Ray H. Mullen Motor Company (“Mullen”) for

his personal use. While he was driving it several weeks later, the bumper and 

receiver assembly fell off the truck. Thereafter, while Leeper was filling the truck

with gas, its gas tank fell off, too. Leeper had the truck towed back to Mullen, 

whose welder performed an inspection and confirmed that it was beyond repair due 

to the severely rusted and damaged condition of its frame. Leeper then requested a 

refund, which Mullen – citing the “as-is” nature of his purchase of the truck –

refused. Afterward, he requested a refund from appellee Coad Auto Sales, Inc. 

(“Coad”), the entity from which Mullen had purchased the offending truck (also on 

an “as-is” basis), and Coad likewise refused. Dissatisfied, Leeper filed suit in 

Livingston Circuit Court against Coad and Mullen, asserting claims against Coad 

for negligence, negligence per se, and strict liability; and against Mullen for an 

alleged violation of Kentucky’s Consumer Protection Act (KCPA) as codified in 

Kentucky Revised Statutes (KRS) 367.110 et seq.

Coad and Mullen defended1 on several bases that eventually 

underpinned their respective motions for summary judgment. Among those bases, 

1 Mullen filed a conditional cross-claim against Coad for indemnity, which was dismissed and is 

not at issue.
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Coad argued lack of privity; that the “economic loss rule” barred Leeper’s 

negligence and strict liability claims; and that the basis of Leeper’s negligence per 

se claim – its alleged violation of KRS 186A.540 – was unsupported by the 

evidence. As for his KCPA claim, Mullen argued Leeper adduced no evidence it 

had committed any kind of actionable unfair trade practice. Additional relevant 

facts will be discussed in our analysis, below. The circuit court granted the 

appellees’ summary judgment motions, and this appeal followed.

II. STANDARD OF REVIEW

The proper standard of review on appeal when a trial 

judge has granted a motion for summary judgment is 

whether the record, when examined in its entirety, shows 

there is no genuine issue as to any material fact and the 

moving party is entitled to a judgment as a matter of law. 

The trial judge must view the evidence in a light most 

favorable to the nonmoving party, resolving all doubts in 

its favor. Because summary judgment does not require 

findings of fact but only an examination of the record to 

determine whether material issues of fact exist, we 

generally review the grant of summary judgment without 

deference to either the trial court’s assessment of the 

record or its legal conclusions.

Phoenix American Adm’rs, LLC v. Lee, 670 S.W.3d 832 (Ky. 2023) (internal 

quotation marks and citations omitted).

III. ANALYSIS

We begin our analysis with Leeper’s KCPA claim against Mullen. 

Leeper asserts the circuit court erred in dismissing this claim because Mullen 
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essentially sold him a worthless vehicle and refused to give him his money back 

afterward. He also asserts that Kentucky has recognized the validity of similar 

claims in prior caselaw, citing Ford Motor Company v. Mayes, 575 S.W.2d 480 

(Ky. App. 1978), and Myers v. Land, 314 Ky. 514, 235 S.W.2d 988 (1950).

We disagree. The applicable law relative to KCPA claims was 

explained in Capitol Cadillac Olds, Inc. v. Roberts, 813 S.W.2d 287, 291 (Ky. 

1991):

Not every failure to perform a contract is sufficient to 

trigger application of the Consumer Protection Act. The 

statute requires some evidence of “unfair, false, 

misleading or deceptive acts” and does not apply to 

simple incompetent performance of contractual duties 

unless some element of intentional or grossly negligent 

conduct is also present. Dare to Be Great, Inc. v. 

Commonwealth, ex rel. Hancock, Ky., 511 S.W.2d 224 

(1974). There is an analogy between the Consumer 

Protection Act claim asserted here and a tort claim for 

bad faith based on an insurer’s failure to pay the amount 

due its policyholder. In Feathers v. State Farm Fire and 

Casualty Co., Ky.App., 667 S.W.2d 693 (1983), the 

validity of which was recently reaffirmed in Curry v. 

Fireman’s Fund Ins. Co., 784 S.W.2d 176 (1989), the 

Court of Appeals said: “[T]he allegations [of the 

complaint] show substantial wrongs committed against a 

clearly protected interest and rights. We are not talking 

about bad manners or mere breakdowns in 

communications resulting in irritations injuring pride.” 

Feathers at 696.

Here, Leeper was asked during his deposition to describe any unfair, 

false, misleading, or deceptive acts Mullen committed against him. In response, he 
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did not contend Mullen violated any contractual, statutory, or common law duty. 

He did not contend that Mullen uttered any misrepresentation that induced him to 

purchase the truck. The only response he gave was to repeat the essence of his 

claim set forth above. In other words, he simply took issue with the operative 

effect of the “as-is” clause in the purchase agreement.

However, “as-is” clauses are not an unfair trade practice; rather, they 

are consistent with the Uniform Commercial Code (UCC) as adopted by Kentucky 

law. KRS 355.2-316(3)(a) provides that “unless the circumstances indicate 

otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all 

faults,’ or other language which in common understanding calls the buyer’s 

attention to the exclusion of warranties and makes plain that there is no implied 

warranty[.]”

As for the two cases Leeper cites in support of his claim, they are 

distinguishable and undermine it. In Ford, 575 S.W.2d 480, the “unfair trade 

practice” at issue, deemed violative of the KCPA, was Ford’s conduct with respect 

to its warranty on a vehicle purchased by the claimants. Its warranty was limited 

to vehicle repairs, but evidence demonstrated that the claimants’ vehicle could not 

be repaired within a reasonable time or at all. Nevertheless, Ford insisted that the 

claimants had no remedy other than to allow it and its dealer to continue 

indefinitely in their efforts to correct the problem; and in so doing, Ford followed a 
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warranty policy which refused to recognize the rights of buyers under the UCC to 

rescind when the only remedy afforded by its limited warranty failed of its

purpose. Id. at 486. Here, the holding of Ford has no bearing upon the validity of 

Leeper’s claim against Mullen because Mullen gave him no warranty at all. The 

Ford Court also recognized, consistent with what is set forth above, that warranties 

may be validly disclaimed in this context. Id. at 483.

As for Myers, 235 S.W.2d 988, this pre-UCC case involved claimants

who were able to successfully rescind their purchase of defective concrete block 

manufacturing equipment from a seller – notwithstanding a full disclaimer of 

virtually all warranties in the purchase agreement – because evidence of record 

demonstrated their purchase was induced by the seller’s misrepresentations, id. at

989; and because the disclaimer of warranties was “found in a long and formidable 

document prepared by the seller and that it was doubtless unnoticed or its import 

uncomprehended by the buyer.” Id. at 990. Certainly, misrepresentations and 

hidden disclaimers are examples of unfair trade practices. In the case at bar, 

however, Leeper has identified no misrepresentation uttered by Mullen; nor has he 

ever claimed that he failed to notice or comprehend the “as-is” clause in his 

purchase agreement. 

In sum, Leeper has failed to demonstrate that Mullen committed any 

substantial wrong against his clearly protected interests or rights. See Roberts, 813 
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S.W.2d at 291. Accordingly, the circuit court committed no error in summarily 

dismissing his KCPA claim against that entity.

We turn next to what Leeper asserted against Coad, beginning with 

his negligence and strict liability claims. It is unclear whether Leeper is appealing 

the circuit court’s dismissal of these claims because, over the course of his opening 

and reply briefs, he omits any mention of the words “negligence” and “strict 

liability,” and instead simply faults the circuit court for dismissing his “Claim 

Against Coad for Violation of KRS 186A.540.” Regardless, his negligence and 

strict liability claims were legally precluded by Kentucky’s economic loss rule 

because his alleged damages have always been limited to the losses he sustained 

due to the difference between what he believed the truck’s value should have been 

and what it turned out to be. As held by our Supreme Court,

[T]he parties’ allocation of risk by contract should 

control without disturbance by the courts via product 

liability theories borne of a public policy interest in 

protecting people and their property from a dangerous 

product. . . . Thus, costs for repair or replacement of the 

product itself, lost profits and similar economic losses 

cannot be recovered pursuant to negligence or strict 

liability theories but are recoverable only under the 

parties’ contract, including any express or implied 

warranties.

Giddings & Lewis, Inc. v. Indus. Risk Insurers, 348 S.W. 3d 729 (Ky. 2011)

(citation omitted).
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This, in turn, leads to Leeper’s “Claim Against Coad for Violation of 

KRS 186A.540” – a claim he asserted in his complaint under the ambit of 

“negligence per se.” Coad defended against this claim by asserting (1) the 

economic loss rule;2(2) that the statute was inapplicable for want of privity (i.e., 

because Coad did not directly sell the truck to Leeper); and (3) even if the statute 

was applicable, no evidence demonstrated its disclosure requirements were 

triggered.

In summarily dismissing this claim, the circuit court found Coad’s 

second and third defenses dispositive. For purposes of our analysis, we will focus 

only upon the third. KRS 186A.540 provides:

(1) An individual, or a dealer required to be licensed 

pursuant to KRS Chapter 190, shall disclose all damages 

to a motor vehicle:

(a) Of which the individual or the dealer has 

direct knowledge;

(b) Which result in repairs, for items other 

than wheels, tires, or glass, that exceed two 

thousand dollars ($2,000); and

(c) That occur while the motor vehicle is in 

the individual’s or the dealer’s possession 

and prior to delivery to a purchaser.

2

“Negligence per se” is not the only way, and is perhaps not the most appropriate way, to 

characterize a violation of KRS 186A.540. Such violations have, for example, been regarded as

an “unfair trade practice” capable of sustaining a KCPA claim. See Royal Auto Sales, LLC v. 

Price, No. 2021-CA-0731-MR, 2022 WL 879763 (Ky. App. Mar. 25, 2022) (cited herein for 

purposes of illustration, rather than persuasive value).
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(2) Disclosure under this section shall be in writing and 

shall require the purchaser’s signature acknowledging the 

disclosure of damages.

What Leeper adduced in support of his claim relative to this statute 

was as follows. First, Leeper cited an affidavit from Cherrie Roan, the individual 

who originally sold the truck to Coad. Roan indicated that shortly after she 

brought her truck to Coad on October 15, 2020, for “routine service,” a 

representative from Coad told her, “[I]t was unsafe to drive because they had found 

major tie rod problems, and that [she] had to get a loaner to get home or to go 

anywhere.” Shortly afterward, “the same Coad employee who had helped [her]

during the October 15 visit called and told [her] that when the Coad mechanics put 

[her] truck up on the rack to start repairs, they found that the framework had major 

cracks in it. He also told [her] that the Coad mechanics had said they found [her] 

truck to be totally unrepairable and unsafe to drive.” Thereafter, she purchased 

another vehicle from Coad, and Coad took her truck as a trade-in.

Second, Leeper cited a “Toyota Quality Vehicle Inspection” form 

document – a document that is undated and includes no information linking it to 

the truck, but which Leeper claims Coad produced during discovery. In the 

“require immediate attention” column, a box is checked next to: “Steering Gear 

Box/Linkage and Boots/Ball Joints/Dust Covers.” The “comments/estimates” 

section also includes the following notations:
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Replace Steering rack

Steering rack bushings

cutter[?] tie rod ends

M/B of tires

Align

Third, he cited the affidavit of Barry Miller, a mechanic who 

inspected the truck shortly after Mullen’s representatives inspected it. Miller 

averred that when he “inspected the undercarriage of the truck, [he] found major 

deterioration in the frame at multiple locations” and that the cost of parts and labor 

to repair the problems “would far exceed $2,000.” 

Absent from the record, however, is evidence that the truck sustained 

any damage or was actually repaired to any extent – let alone to the extent of 

$2,000 – while Coad had it in its possession. Leeper therefore failed to 

demonstrate that the mandatory reporting requirements of KRS 186A.540 were 

triggered; and consequently, Leeper could not have premised any kind of claim 

against Coad upon a violation of that statute even if his lack of direct privity with 

Coad was wholly irrelevant.

As an aside, we have emphasized “evidence” and “of record” above

for a reason. Leeper insists on appeal3that KRS 186A.540 was effectively 

3 Coad argues Leeper’s contention that it “repaired” the truck was never raised below because 

Leeper did not make that contention in the response he filed to its summary judgment motion. 

Coad is correct that Leeper made no such written argument, but he did make an oral argument to 

that effect – for the first time – during the December 21, 2022 summary judgment hearing. 

Regardless, it is unnecessary to discuss whether Leeper effectively preserved this argument 

because, as discussed, the evidence he adduced was insufficient to support it.
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triggered because Coad did make over $2,000 in repairs to the truck. To this point, 

he makes references in his opening and reply briefs to an ostensible document 

which, from his telling of it, originated from Coad and included the following 

statements regarding the truck while the truck was in Coad’s possession: “Steering 

gear loose and leaking, attempted replacement [sic] of steering gear, steering shaft 

seized to steering gear, power [sic] steering pressure line started to twist apart 

during removal. Stopped repair spoke with customer on concern with vehicle. 

Customer traded vehicle in to dealer.” 

Relying upon this ostensible document, Leeper surmises Coad must 

have ultimately repaired the truck’s steering mechanism before selling it to Mullen.

Further, Leeper surmises the value of these “repairs” would have exceeded $2,000; 

and in support, he cites a “supplemental expert disclosure,” which he filed of 

record on the date of the summary judgment hearing, December 21, 2022. There, 

Leeper stated that he expected his expert mechanic, Barry Miller “to opine that 

based on his experience and research, the cost of replacing the steering rack, inner 

tie rods and bushings on the subject vehicle would have exceeded $2,000 at 

relevant times, independent of the cost of replacing the vehicle’s frame.”

With that said, no evidence of record supports Leeper’s argument in 

this vein. The ostensible document discussed above is not of record, nor did 

Leeper designate it as part of the record, and we accordingly cannot consider any 
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claim or contention based upon it. See Kentucky Rule of Appellate Procedure 

(RAP) 25(B). Indeed, while Leeper claims it appears in the appellate record at 

“225-227,” those cited pages only encompass the “itemization of damages” filed 

by his attorney and the “Toyota Quality Vehicle Inspection” form document

previously discussed. Additionally, the “supplemental expert disclosure” valuing 

the surmised repairs in excess of $2,000 was not signed or sworn by Barry Miller, 

the proffered expert, and was thus nothing more than a promise of forthcoming 

evidence from Leeper’s counsel. Representations of counsel are not the 

affirmative evidence required to defeat a motion for summary judgment. They are 

not evidence at all. See Mason v. Commonwealth, 331 S.W.3d 610, 624-25 (Ky. 

2011).

II. CONCLUSION

In its order of summary judgment, the Livingston Circuit Court 

sympathized with Leeper and provided an apt summation of this case with which 

we agree: “Although there may be ethical considerations, the Court believes under 

Kentucky law there is no liability for Mullen or Coad.” In light of the foregoing, 

we AFFIRM.

ALL CONCUR.
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BRIEFS FOR APPELLANT:

C. Thomas Miller

Paducah, Kentucky

BRIEF FOR APPELLEE RAY H. 

MULLEN MOTOR COMPANY:

Edwin A. Jones

Paducah, Kentucky

BRIEF FOR APPELLEE COAD 

AUTO SALES, INC. D/B/A COAD 

TOYOTA PADUCAH:

James A. Sigler

Paducah, Kentucky