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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Tom Raatz, et al., 

Plaintiffs, 

v. 

Dealer Trade Incorporated, 

Defendant. 

No. CV-16-00170-PHX-DGC

ORDER 

 Plaintiffs Tom Raatz, Marcine Raatz, and TMR LLC filed this action against 

Defendant Dealer Trade Inc. d/b/a Luxury Motorsports, asserting violation of the Federal 

Odometer Act (49 U.S.C. § 32701) and breach of contract. Doc. 1. After stipulating to 

the dismissal of Plaintiffs’ Odometer Act claim (Doc. 104), the parties have filed crossmotions for summary judgment on the breach of contract claim. Docs. 114, 116, 119, 

123. No party requests oral argument. The Court will grant Plaintiffs’ motion in part and 

deny Defendant’s motion. 

I. Background. 

 The following facts are undisputed. In the summer of 2015 Plaintiffs were looking 

to purchase a vehicle for their family. Doc. 115, ¶ 1; Doc. 116 at 2 (stating that 

Defendant does not contest ¶¶ 1-24 of Doc. 115). Plaintiffs saw Defendant’s 

advertisement for a used 2010 Infiniti QX56 with less than 36,000 miles (“QX56,” or 

“the Vehicle”). Doc. 115, ¶ 2. In August 2015, Plaintiffs traveled from Iowa to Arizona 
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to purchase the Vehicle. Id., ¶ 3. Throughout the sales process, Defendant represented to 

Plaintiff that the Vehicle had less than 36,000 actual miles. Id., ¶ 4. 

 On August 24, 2015, the parties entered into a Retail Buyer’s Order (“RBO”), in 

which Defendant stated that the Vehicle had 35,648 miles and Plaintiffs agreed to 

purchase the Vehicle for $33,359.75. Id., ¶¶ 6-8. The RBO stated that the Vehicle “is 

sold ‘AS IS – NOT EXPRESSLY WARRANTED OR GUARANTEED.’” Doc. 117, ¶ 14; Doc. 120 

at 1 (stating that Plaintiffs do not dispute ¶¶ 10-15 of Defendant’s separate statement of 

facts (Doc. 117)). Plaintiffs put $3,000 down, and financed the remaining purchase 

amount through a credit union. Doc. 115, ¶ 9. 

 Plaintiffs drove the Vehicle back to Iowa and took it to the Willis Infiniti 

dealership for service. Id., ¶ 10. The dealership informed Plaintiffs that service records 

showed the Vehicle was serviced approximately four years earlier, on September 29, 

2011, at which time it had an odometer reading of 46,731 miles. Id., ¶ 11. After learning 

of the mileage discrepancy, Plaintiffs immediately contacted Defendant. Id., ¶ 14. 

 Between October 6 and October 19, 2015, Plaintiffs reached out to Defendant on 

four separate occasions – once by telephone and three times by email – seeking a refund 

of the sales price, but Defendant did not respond. Id., ¶¶ 15-20. Plaintiffs have been 

forced to pay off their loan with the credit union due to the reduced value of the Vehicle. 

Id., ¶ 21. Plaintiffs would not have purchased the Vehicle had they known it had more 

mileage than was reflected by the odometer. Id., ¶¶ 22-23. 

II. Legal Standard. 

 A party seeking summary judgment “bears the initial responsibility of informing 

the district court of the basis for its motion, and identifying those portions of [the record] 

which it believes demonstrate the absence of a genuine issue of material fact.” Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment is appropriate if the 

evidence, viewed in the light most favorable to the nonmoving party, shows “that there is 

no genuine dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.” Fed. R. Civ. P. 56(a). Summary judgment is also appropriate against a 
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party who “fails to make a showing sufficient to establish the existence of an element 

essential to that party’s case, and on which that party will bear the burden of proof at 

trial.” Celotex, 477 U.S. at 322. Only disputes over facts that might affect the outcome 

of the suit will preclude the entry of summary judgment, and the disputed evidence must 

be “such that a reasonable jury could return a verdict for the nonmoving party.” 

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

III. Plaintiffs’ Motion for Summary Judgment. 

 Plaintiffs seek summary judgment on their breach of contract claim on the basis of 

breach of express warranty. Doc. 114 at 5-7. Defendant argues that breach of express 

warranty was not asserted in Plaintiffs’ complaint and is a separate and distinct claim. 

Doc. 116 at 1-10. Defendant also argues that the RBO disclaimed any express warranty 

and that the mileage statement in the RBO did not constitute an express warranty. 

 A. Adequacy of Plaintiffs’ Complaint. 

 In their complaint, Plaintiffs plead the following facts: 

[Defendant] sold the QX56 to Plaintiffs on August 24, 2015. 

Plaintiffs and [Defendant] signed a contract memorializing the purchase. 

In the contract, [Defendant] represented that the QX56 had 35,648 original miles. 

Plaintiffs paid [Defendant] $30,459.75 to purchase the QX56. 

Plaintiffs relied upon the affirmative representations of [Defendant] that the QX56 had 35,648 actual miles in making the decision to buy the QX56. 

Plaintiffs did not know about the prior mileage history of the QX56. 

Had Plaintiffs known about the prior mileage history they would not have purchased the QX56. 

Doc. 1, ¶¶ 18-24. The complaint later alleges that this constituted a breach of contract. 

Id. at 4. 

 Defendant contends that these allegations fail to allege a claim for breach of 

express warranty because the complaint fails to include: (1) “separate and distinct counts 

for alleged breaches of express warranty and implied warranty of merchantability, both of 
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which relate to the contract, but do not give rise to a breach of contract claim”; (2) any 

language referencing the Arizona Uniform Commercial Code, which would govern a 

breach of express warranty in this instance; and (3) any “averments that [Defendant] 

warrantied anything, much less the accuracy of the odometer.” Doc. 116 at 7. 

 The Court is not persuaded. Under Arizona law, “[a]ny affirmation of fact or 

promise made by the seller to the buyer which relates to the goods and becomes part of 

the basis of the bargain creates an express warranty that the goods shall conform to the 

affirmation or promise.” A.R.S. § 47-2313(A)(1). The complaint clearly alleges an 

affirmation of fact (the mileage represented in the contract), in connection with a sale of 

goods, and facts suggesting that the affirmation became a basis for the bargain (Plaintiffs 

relied on the mileage representation and would not have entered the contract had they 

known the mileage was incorrect). The complaint thus pleads the elements of a breach of 

warranty claim. 

 In Arizona, “[e]xpress warranties are treated like any other contract and 

interpreted according to general contract principles.” Chaurasia v. Gen. Motors Corp., 

126 P.3d 165, 169 (Ariz. Ct. App. 2006). The same is true for implied warranties. Lofts 

at Fillmore Condo. Ass’n v. Reliance Commercial Const., Inc., 190 P.3d 733, 734 (Ariz. 

2008) (“A claim for breach of the implied warranty sounds in contract.”). And Arizona 

courts repeatedly have held that breach of warranty claims arise out of contract. Id. at 

174 (“Time after time, Arizona courts have held that a claim for breach of warranty does 

arise out of contract for purposes of A.R.S. § 12–341.01(A).”); Woodward v. Chirco 

Constr. Co., Inc., 687 P.2d 1269, ___ (Ariz. 1984) (holding that claims for breach of 

implied warranty arise out of contract); Colberg v. Rellinger, 770 P.2d 346, ___ (Ariz. Ct. 

App. 1998) (holding that claims for breach of express warranties sound in contract); 

Ponderosa Plaza v. Siplast, 888 P.2d 1315, ____ (Ariz, Ct. App. 1993) (awarding 

reasonable attorneys’ fees to the defendant under A.R.S. § 12–341.01(A), finding that 

any duty to the plaintiff arose out of an express warranty and that a breach of that 

warranty arises out of contract, not tort). Indeed, this Court has noted that a breach of 
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contract claim can be proved by establishing breach of warranty. Palmer v. Web Indus. 

Inc., No. CV 04-2362-PCT-SMM, 2007 WL 45927, at *7 (D. Ariz. Jan. 8, 2007) (“In 

order to succeed on her breach of contract claim, Plaintiff must demonstrate that the 

dealership made an ‘express warranty,’ which was later breached.”). 

 Given these authorities and the fact that Plaintiff pleaded facts which Arizona law 

would deem a breach of warranty, the Court cannot conclude that Plaintiffs have failed to 

assert a breach of warranty claim in this case. The Court notes that Defendant does not 

assert that it was unaware of a breach of warranty claim or was prejudiced by Plaintiffs’ 

failure to expressly label their claim as “breach of warranty.” 

 Defendant argues that each case cited by Plaintiffs in support of their motion 

expressly included a claim for breach of warranty in the complaint. Doc. 116 at 6-7. 

While it may be true that parties often plead both breach of contract and breach of 

warranty claims, Defendant presents no case holding that a claim for breach of warranty 

is barred if the only claim asserted in the complaint is breach of contract. The Court has 

found no such authority. 

B. Was An Express Warranty Created? 

The parties disagree on whether a seller’s representation of the mileage of a 

vehicle constitutes an express warranty under A.R.S. § 47-2313. An express warranty is 

created if four elements are met: (1) any affirmation of fact; (2) made by the seller to the 

buyer; (3) which relates to goods; and (4) becomes part of the basis of the bargain. Id. 

 In this instance, it is uncontested that Defendant affirmed to Plaintiffs that the 

mileage of the vehicle was 35,648. See Doc. 115, ¶ 7; Doc. 117, ¶ 1. Similarly, given the 

basic fact that a vehicle’s value is determined in significant part by the vehicle’s mileage, 

Defendant’s representation of the Vehicle’s mileage clearly related to the Vehicle. See 

A.R.S. § 47-2313. The only remaining question is whether the Vehicle’s mileage formed 

a basis of the bargain during the negotiation for sale. Id. 

 Plaintiffs’ statement of facts asserts that they drove from Iowa to Arizona to 

purchase the Vehicle which was advertised as having less than 36,000 miles, Defendant 
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affirmatively represented to them that the Vehicle had 35,642 miles, and Plaintiffs would 

not have purchased the Vehicle had they known that it had more mileage than Defendant 

represented. Doc. 115, ¶¶ 3, 7, 22. Defendant admits each of these facts. Doc. 117 at 1-

2. These undisputed facts establish that the Vehicle’s mileage was a basis of the bargain. 

 Defendant argues that “although the contract and any documents relating to the 

purchase of the QX56, reflecting the mileage at 35,648, may be characterized as an 

affirmation of fact, it does not necessarily give rise to an express warranty.” Doc. 116 at 

9. In support, Defendant relies on Roberts v. Robert V. Rohrman, Inc., 909 F.Supp. 545, 

547 (N.D. Ill. 1995). In Roberts, the district court found that a dealer’s “repeated 

representation that the mileage on [a vehicle] at the time of sale was 10,350 was an 

affirmation of fact but [did] not necessarily give rise to an express warranty” because no 

evidence had been submitted to show that the inspections reasonably performed by the 

dealer would have discovered that the odometer was incorrect. Id.. at 552. Like the 

dealer in Roberts, Defendant argues that it did not create an express warranty because it 

did not have the capability to verify the accuracy of the odometer, and only represented 

the actual mileage of the Vehicle “to the best of its knowledge,” as stated in the Secure 

Odometer Disclosure Defendant presented to Plaintiffs. Doc. 116 at 9. 

 Although no Arizona case the Court could find addresses the issue, other courts 

have done so. For example, in Prishwalko v. Bob Thomas Ford, Inc., 636 A.2d 1383, 

1390 (Conn. App. Ct. 1994), a Connecticut court considered a similar dispute involving a 

plaintiff who purchased a used vehicle with an odometer that had been rolled back 

without the dealer’s knowledge. Id. at 1385. The court interpreted Conn. Gen. Stat. Ann. 

§ 42a-2-313 – Connecticut’s analogous version of A.R.S. § 47-2313 – to apply to the 

dealer, even though it was unaware of the odometer’s inaccuracy. Id. at 1390 (“In 

contracts for the sale of tangible chattels, express warranty encompasses material 

representations which are false, without regard to the state of mind or the due care of the 

person making the representation,” and “[i]nnocent misrepresentations . . . are still 

actionable.”). 
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 Connecticut’s § 42a-2-313 is virtually identical to Arizona’s § 47-2313, and the 

Court agrees with the Prishwalko court’s analysis. The Court finds nothing in A.R.S. 

§ 47-2313 that requires the dealer to have knowledge of the odometer’s inaccuracy in 

order to create an express warranty regarding the vehicle’s mileage. Accordingly, 

because Defendant presents no evidence that the mileage of the Vehicle did not form a 

“basis for the bargain,” all four elements of § 47-2313 are met and an express warranty 

was created. To the contrary, the Arizona statute is broad, covering “[a]ny affirmation of 

fact or promise made by the seller to the buyer which relates to the goods and becomes 

part of the basis of the bargain[.]” A.R.S. § 47-2313(A)(1) (emphasis added). 

 C. The Contract Does Not Limit Express Warranties. 

 Defendant next argues that “the parties contracted to limit the implied warranties 

of merchantability . . . and waived all other express and implied warranties.” Doc. 116 at 

7 (citing Doc. 117, ¶¶ 13-14). In response, Plaintiffs concede that the parties agreed to 

limit the implied warranties of merchantability. Doc. 119 at 6. But Plaintiffs argue that 

“express warranties, once made, cannot be disclaimed.” Id. at 3-4 (citing Epsman v. 

Martin-Landers, LLC, 2007 WL 2819592, at *1 (W.D. Ark. 2007)). 

 The parties do not cite, and the Court has not found, any Arizona case stating that 

an express warranty cannot be disclaimed by a contract, but Arizona law clearly disfavors 

the type of disclaimer used in this case. Specifically, A.R.S. § 47-2316(A) states that 

“[w]ords or conduct relevant to the creation of an express warranty and words or conduct 

tending to negate or limit warranty shall be construed wherever reasonable as consistent 

with each other[,]” and that “negation or limitation [of an express warranty] is inoperative 

to the extent that such a construction is unreasonable.” A.R.S. § 47-2316(A). The 

U.C.C.’s comment to the model statute from which this language is drawn states that 

“[t]his section is designed principally to deal with those frequent clauses in sales 

contracts which seek to exclude ‘all warranties, express or implied.’ It seeks to protect a 

buyer from unexpected and unbargained language of disclaimer by denying effect to such 

language when inconsistent with language of express warranty[.]” U.C.C. § 2-316, cmt. 
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1. The disclaimer language relied on Defendant is contained in fine print at the bottom of 

the RBO. It clearly was not bargained for and is inconsistent with the express 

representation, earlier on the same page, that the Vehicle had 35,648 miles. Doc. 115-1 

at 6. 

 The U.C.C. comment to the provision underlying A.R.S. § 47-2313 also supports 

this conclusion, stating that “a contract is normally a contract for sale of something 

describable and described. A clause generally disclaiming ‘all warranties, express or 

implied’ cannot reduce the seller’s obligation with respect to such description and 

therefore cannot be given literal effect under § 2-313.” U.C.C. § 2-313, cmt. 4. The 

RBO clearly included a specific description of the Vehicle has having 35,648 miles. 

Doc. 115-1 at 6. 

 D. Summary. 

 Based on uncontested facts, Plaintiffs have shown that there was an express 

warranty as to the mileage of the Vehicle, the express warranty was not validly 

disclaimed in the contract, and the warranty was breached because the mileage was 

inaccurate. The Court holds on summary judgment that Defendant breached the express 

mileage warranty in the RBO. 

 Arizona law provides that “[t]he measure of damages for breach of warranty is the 

difference at the time and place of acceptance between the value of the goods accepted 

and the value they would have had if they had been as warranted, unless special 

circumstances show proximate damages of a different amount. In a proper case any 

incidental and consequential damages under § 47-2715 may also be recovered.” A.R.S. 

§ 47-2714. This case includes a factual dispute regarding the value of the Vehicle on the 

date it was purchased by Plaintiffs. Plaintiff’s expert opines that the Vehicle had a value 

of $16,500 (Doc. 115-1 at 23), while Defendant’s expert disagrees with both the 

conclusion and the basis of Plaintiff’s expert’s opinion (Doc. 117 at 8-11). Specifically, 

Defendant’s expert disagrees with the number of actual miles Plaintiffs’ expert “threw 

out as conceivable,” and with the impact a “Box B” or “Box C” title has on a vehicle’s 
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value. Id. Defendant’s expert does not, however, provide an opinion as to the precise 

actual value of the vehicle. See id. at 12. Although the absence of a defense opinion on 

the value of the Vehicle raises questions regarding the utility of a trial in this case (the 

time for expert disclosures has passed), this dispute between experts precludes summary 

judgment on the issue of damages. 

IV. Defendant’s Motion for Summary Judgment. 

 Defendant argues that Plaintiffs’ claims against Defendant must be dismissed 

because Plaintiffs plead breach of contract, not breach of warranty, and Plaintiffs admit 

that they have no evidence to support their assertion that Defendant falsely represented 

the Vehicle’s mileage. But, as discussed above, Plaintiffs complaint sufficiently pleads a 

claim for breach of warranty, and a claim for breach of warranty does not require proof 

that Defendant knew its mileage representation was false. See Prishwalko, 636 A.2d 

at 1390 (finding that even “[i]nnocent misrepresentations . . . are still actionable.”). 

Defendant’s motion for summary judgment will be denied. 

IT IS ORDERED: 

 1. Plaintiffs’ motion for summary judgment (Doc. 114) is granted in part. 

 2. Defendant’s motion for summary judgment (Doc. 116) is denied. 

 3. The Court will hold a telephonic hearing on June 30, 2017 at 2:00 p.m. to 

set a date for a trial on damages. Counsel for Plaintiffs shall initiate a 

conference call to include counsel for all parties and the Court. If a dial-in 

number is to be used, counsel for Plaintiffs shall provide the dial-in 

information to all parties and the Court no later than June 29, 2017 at 

12:00 noon. 

 Dated this 8th day of June, 2017.