                            STATE OF MICHIGAN

                            COURT OF APPEALS


BEST WAY EXPEDITING, LLC,                                          UNPUBLISHED
                                                                   May 3, 2018
               Plaintiff-Appellant,

v                                                                  No. 335085
                                                                   Wayne Circuit Court
NAVISTAR, INC,                                                     LC No. 14-008113-CK

               Defendant-Appellee,
and

TRI-COUNTY INTERNATIONAL TRUCKS,
LLC,

               Defendant.



Before: BOONSTRA, P.J., and BECKERING and RONAYNE KRAUSE, JJ.

PER CURIAM.

       In this warranty dispute, plaintiff, Best Way Expediting, LLC, appeals the circuit court’s
orders granting summary disposition to defendant, Navistar, Inc.,1 of plaintiff’s claims for fraud
and misrepresentation, breach of express warranties, breach of implied warranties of
merchantability, and revocation of acceptance, pursuant to MCR 2.116(C)(10) (no genuine issue
of material fact). For the reasons stated below, we affirm.

               I. STATEMENT OF PERTINENT FACTS AND PROCEEDINGS

        The underlying lawsuit arises from plaintiff’s 2012 purchase of three used 2011
International ProStar trucks with MaxxForce® 11/13 engines manufactured and sold by
defendant. Plaintiff purchased two of the trucks from Navistar Used Truck Center and the third
truck from Tri-County International Trucks, LLC (“Tri-County”). Conspicuously printed on


1
 Tri-County International Trucks, LLC, was initially a co-defendant in this action, but settled
with plaintiff in March 2016, and was dismissed from the case by order of the trial court.
Accordingly, “defendant” refers only to Navistar.


                                               -1-
each invoice for the trucks sold by defendant was an “as is” clause, stating that the “entire risk as
to the quality and performance of this vehicle is with the buyer[,]” and that if the vehicle proved
defective, “the buyer and not the manufacturer, distributor or seller assumes the entire cost
necessary for servicing or repair.” A similar “as is” clause appeared on each truck’s retail order
form, as did a merger clause stating that by signing the retail orders, the purchaser agreed that the
retail order “contains the entire agreement relating to the sale of said property. . . .” Plaintiff’s
owner signed the retail order forms.

        Included in the purchase of each truck were several, still-valid express written warranties.
Plaintiff received the remainder of the standard limited warranty for new vehicles, which
obligated defendant “to repair or replace” any part of the trucks “that prove[d] defective in
material and workmanship in normal use and service . . . for the first 12 months from new
vehicle delivery date.” Exceptions to the standard limited warranty were listed in a section
entitled, “WHAT IS NOT COVERED,” and included “[l]oss of time or use of the vehicle, loss
of profits, inconvenience, or other consequential or incidental damages or expenses.” The first
page of each standard limited warranty included a statement disclaiming all other warranties,
expressed or implied, warranties of merchantability and fitness for a particular purpose, and all
other representations to the purchaser. Plaintiff also received extended warranties purchased by
the trucks’ previous owner for the trucks’ electrical systems, heating and air conditioning
systems, and the engines. The parties refer to the standard written warranty and the additional
extended warranties collectively as defendant’s “express warranty.” In addition to providing the
warranties, defendant also e-mailed the service history records for its trucks to plaintiff
approximately 10 days prior to plaintiff’s purchase of the trucks.

        In 2014, plaintiff filed a four-count lawsuit against defendant, alleging fraud and
misrepresentation (Count I), breach of the express warranty (Count II) and the implied warranty
of merchantability (Count III), and claiming that it had revoked acceptance of the trucks (Count
IV). Plaintiff sought orders requiring defendant to accept return of the trucks, refund the
purchase price, pay plaintiff allowable incidental and consequential damages, and indemnify
plaintiff with respect to the finance contracts covering the trucks. During the course of the
proceedings, the parties stipulated to a protective order to facilitate the exchange of information.
The protective order allowed either party to designate as “confidential information” any material
that the party in good faith believed contained “non-public, confidential, proprietary, personal, or
commercially sensitive information,” or information the party was “under a duty to preserve as
confidential under an agreement with or other obligation to another person.”

        On June 1, 2016, defendant filed a motion and supporting brief for summary disposition
pursuant to MCR 2.116(C)(10). Defendant argued that it was entitled to summary disposition of
Counts I and III because the provisions of the sales and warranty documents foreclosed
plaintiff’s fraud and misrepresentation claim and its claim for breach of an implied warranty of
merchantability. Defendant also contended that the allegedly misrepresentative language in its
promotional materials was non-actionable puffery. Defendant asserted that the breach of
warranty claim (Count II) failed because it was undisputed that defendant paid for all of the
warrantable repairs during the warranty period. Finally, defendant argued that plaintiff’s




                                                -2-
revocation of acceptance claim (Count IV) failed because plaintiff had made extensive use of the
trucks after the alleged revocation and because plaintiff had failed to give notice of its purported
revocation of acceptance as required by MCL 440.2607(3)(a).2

        Responding in opposition to defendant’s motion for summary disposition, plaintiff raised
three issues not clearly pleaded in its complaint. Plaintiff first asserted that affirmations in
defendant’s MaxxForce® Diesel brochure about the reliability, technological advances, and low-
cost operation of its engines went beyond the “vague and aspirational” and actually created
express warranties. Plaintiff next asserted that defendant’s express warranty failed of its
essential purpose since defendant’s “attempts” to repair the trucks did not fulfill its obligation
under the warranty to repair or replace defective components. Plaintiff then asserted that
defendant failed to extend the express warranty as required under MCL 440.2313b.3

        The hearing on defendant’s motion for summary disposition began on July 14, 2016.
After the parties addressed plaintiff’s Counts I and II, the trial court took a short recess, which
turned into an adjournment when plaintiff’s attorney remembered that she had a medical
appointment. When the hearing resumed four days later, plaintiff attempted to add to the record
for purposes of summary disposition affidavits of plaintiff’s owner and of plaintiff’s expert
witness, along with attachments, as well as a number of additional documents. Defendant moved
to strike all of the documents, believing that plaintiff had taken advantage of the four-day
adjournment to gather evidence to fill the evidentiary gaps identified at the first day of the
hearing. Plaintiff’s attorney contended that she was just now introducing the documents because
she had filed her response brief remotely and did not know how to file documents under seal in
accordance with the protective order. The trial court granted defendant’s motion to strike all of
the documents, observing that plaintiff cited no authority allowing it to produce without leave at
this point documents it could have submitted previously, documents plaintiff had not mentioned
in its summary disposition response or at any time during the two weeks since it filed the
response.

        The hearing continued with the parties addressing plaintiff’s assertion that it was entitled
to a warranty extension as provided for by MCL 440.2313b, that the warranties failed of their
essential purpose, and that it had properly revoked its acceptance of the trucks. With respect to
the issue of revocation, the parties focused their arguments on the timeliness of plaintiff’s
revocation and on whether substantial changes in the condition of the trucks resulting from their
depreciation and plaintiff’s extensive use of them barred revocation. Prior to the end of the
hearing, the trial court asked both parties for additional briefing on the issue, including what
damages might be available. In response, plaintiff submitted a brief addressing the law on
revocation and the various types of damages available under the Uniform Commercial Code


2
  MCL 440.2607(3)(a) states that once a buyer has accepted goods, the buyer “must within a
reasonable time after he discovers or should have discovered any breach notify the seller of
breach or be barred from any remedy[.]”
3
  As will be further discussed elsewhere in this opinion, MCL 440.2313b provides for the
extension of warranties under certain circumstances.


                                                -3-
[UCC]. Defendant submitted a brief arguing, among other things, that it was entitled to a
directed verdict on the issue of revocation because the trucks were sold “as is” and, therefore,
could not be nonconforming as a matter of law. The trial court held a hearing on the issues
raised by these supplemental briefs.

        On July 21, 2016, the trial court issued a written opinion and order granting defendant
summary disposition of Counts I through III. Regarding plaintiff’s claim for fraud and
misrepresentation (Count I), the trial court found that the statements in defendant’s MaxxForce®
Diesel brochure were nonactionable advertising claims and sales puffery, that the brochure was
copyrighted two years after plaintiff purchased the trucks, and that plaintiff’s owner admitted
that he did not see or rely on the brochure when he purchased the trucks. The trial court also
found that defendant provided evidence showing it had supplied plaintiff with the contact
information of the trucks’ prior owner and the trucks’ warranty histories, as well as affirmative
evidence showing why it repurchased the trucks from their prior owner, and that owner’s
positive comments about defendant.

        With regard to plaintiff’s allegations of silent fraud, the trial court found that the federal
statute plaintiff claimed imposed a duty of disclosure on defendant, § 7541(a) of the Clean Air
Act, 42 USC 7401, et seq., was inapplicable in light of plaintiff’s pleading. The trial court
acknowledged that defendant had been involved in litigation concerning emissions, but stated
that plaintiff’s complaint did not allege that the trucks at issue had emissions problems and noted
that defendant had provided certificates indicating that the trucks comply with the requirements
of the Environmental Protection Agency (EPA). Plaintiff had also relied on a complaint filed by
the Securities and Exchange Commission (SEC) against defendant’s former president and chief
executive officer, and a related litigation release, to provide context for its trucks’ performance
issues. The trial court deemed these documents inadmissible hearsay to the extent that plaintiff
offered them to prove that defendant’s engineers knew its engines were unfit for normal highway
use.4 Based on the foregoing, the trial court concluded that plaintiff failed to produce admissible
evidence sufficient to create a genuine issue of material fact with regard to whether defendant
committed fraud or misrepresentation.

        The trial court also found defendant entitled to summary disposition of plaintiff’s claim
for breach of express warranty (Count II), stating:



4
  Plaintiff theorized that the problems with the trucks it had purchased from defendant stemmed
from defendant’s attempt to develop engines that used exhaust gas recirculation (EGR)
technology to control emissions. In 2016, the Securities and Exchange Commission (SEC) filed
a complaint against Daniel Ustian, defendant’s former president and chief executive officer. The
gist of the complaint was that from 2010 until 2012, defendant spent millions of dollars in an
increasingly and obviously futile attempt to develop engines that used EGR technology to meet
the EPA’s rigorous emissions standards for over-the-road heavy-duty truck engines, while
defendant’s president provided false assurances to investors that EPA approval was imminent.
Defendant abandoned the use of EGR-only technology in 2012.


                                                 -4-
       Plaintiff has not identified a single repair order in which a repair was attempted
       but not actually done, nor has Plaintiff identified a single repair order in which the
       repairs were not done in a workmanlike manner. Instead, Plaintiff merely
       instructs the Court to See Exhibits E-K. The court will not delve through the
       hundreds of pages of records to help Plaintiff satisfy its burden to show that
       repairs reflected therein were not actually made. If any covered repairs were not
       actually made or not performed in a workmanlike fashion, it was incumbent upon
       Plaintiff to identify those for the Court.

        The court rejected plaintiff’s argument that defendant’s warranties failed of their essential
purpose, noting among other things that plaintiff’s response to defendant’s motion for summary
disposition was devoid of any expert testimony regarding the trucks’ service issues, including
which repairs were for repeat problems, which were not performed properly, and which took an
unreasonable amount of time. The court also rejected plaintiff’s contention that defendant
refused to make or pay for repairs under the statutory extension of the warranties provided by
MCL 440.2313b(a), concluding that plaintiff applied the statute incorrectly. Finally, the trial
court found that defendant’s express warranty effectively disclaimed merchantability and,
therefore, that defendant was entitled to summary disposition of plaintiff’s allegations that
defendant breached the implied warranty of merchantability (Count III). In an order dated July
25, 2016, the trial court granted defendant summary disposition of plaintiff’s claim of revocation
of acceptance (Count IV) on the ground that the “as is” clause in the trucks’ sales documents
barred a claim for revocation as a matter of law.

        On August 15, 2016, plaintiff filed a motion for reconsideration of the trial court’s orders
of July 21, 2016 and July 25, 2016, attaching to its motion what appears to be the affidavits and
exhibits it tried to enter into evidence at the July 18, 2016 continuation of the hearing on
defendant’s motion for summary disposition. The trial court declined to reconsider its order of
July 21, 2016, because plaintiff’s motion was untimely as to that order, and the court denied
plaintiff’s motion as to its July 25, 2016 order. The court based its denial on grounds that it had
already considered and rejected arguments plaintiff repeated in its motion for reconsideration and
that plaintiff advanced additional arguments based on legal theories and facts it could have raised
in the initial hearings but did not. This appeal followed.

                                          II. ANALYSIS

                                  A. STANDARD OF REVIEW

        We review de novo a trial court’s decision on a motion for summary disposition. Dillard
v Schlussel, 308 Mich App 429, 444; 865 NW2d 648 (2014). Defendant moved for summary
disposition under MCR 2.116(C)(10), which “tests the factual sufficiency of a complaint.”
Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). When reviewing a motion
brought under MCR 2.116(C)(10), the court “must view the evidence in the light most favorable
to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, and
refrain from making credibility determinations or weighing evidence.” Dillard, 308 Mich App at
445. “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a matter of law.” Id.
(quotation marks and citation omitted). “A genuine issue of material fact exists when the record,

                                                -5-
giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which
reasonable minds might differ.” West v Gen Motors Corp, 469 Mich. 177, 183; 665 NW2d 468
(2003).

                            B. BREACH OF EXPRESS WARRANTY

        Plaintiff does not dispute that defendant performed every repair every time plaintiff
brought the subject trucks in for service and that plaintiff accepted the repaired trucks and put
them back on the road after each repair. Instead, plaintiff argues that none of the repairs
addressed the real problem, which was the trucks’ allegedly defective engines, and that because
defendant’s repairs did not address the assumed defects in the engines, defendant’s attempts to
repair the trucks did not satisfy its warranty obligations; therefore, defendant’s warranty failed of
its essential purpose.

        Under MCL 440.2719, regarding contractual modification or limitation of remedies,
plaintiff was limited to defendant’s written warranty providing for repair and replacement of
parts defective in material and workmanship during the warranty period, unless the warranty
failed of its essential purpose. MCL 440.2719(2); Severn v Sperry Corp, 212 Mich App 406,
413; 538 NW2d 50 (1995). Only when a warranty fails of its essential purpose is a buyer
“entitled to seek remedies under the standard UCC warranty provisions.” Id. citing Price Bros
Co v Charles J Rogers Constr Co, 104 Mich App 369, 374-375; 304 NW2d 584 (1981). For a
warranty to fail of its essential purpose, there must be some “unanticipated circumstances” that
prevent defendant from providing plaintiff with the remedy to which they agreed. Severn, 212
Mich App at 409-414 (seller’s inability and unwillingness to repair a cattle feed grinder
constituted sufficient evidence to conclude that the defendant’s limited written warranty failed of
its essential purpose); see also Kelynack v Yamaha Motor Corp, USA, 152 Mich App 105, 112-
113; 394 NW2d 17 (1986) (the defendant’s warranty failed of its essential purpose where the
plaintiff’s motorcycle became inoperable after three months of ownership and the defendant did
not repair it within a reasonable time).

        Plaintiff contends that this Court’s unpublished decision in Forster v Navistar Int’l
Transp Corp,5 governs resolution of the instant case. However, unpublished decisions are not
precedentially binding on this Court and “should not be cited for propositions of law for which
there is published authority.” MCR 7.215(C)(1). Published authority establishes that a repair-or-
replace warranty is not breached where the warrantor performs all warrantable repairs. See
Computer Network, Inc v AM Gen Corp, 265 Mich App 309, 314; 696 NW2d 49 (2005) (finding
no question of material fact with respect to a breach where the defendant performed the required
warranty repairs each of the 17 times the plaintiff presented the vehicle for repair during the 30-
month lease period). Published authority also establishes that where a defendant performs all
warrantable repairs, a plaintiff cannot establish that a repair-or-replace warranty failed of its
essential purpose unless the plaintiff presents evidence of repairs that took an unreasonable time


5
  Forster v Navistar Int’l Transp Corp, unpublished per curiam opinion of the Court of Appeals,
issued August 27, 2002 (Docket Nos. 233048, 234995).


                                                -6-
and cost the owner the benefit of the bargain. See Kelynack, 152 Mich App at 112-113. Plaintiff
has failed to indicate any warrantable repair that defendant did not perform, or performed
improperly, or did not perform within a reasonable time. Viewing the evidence in the light most
favorable to plaintiff, and considering the aforementioned published authority, Dillard, 308 Mich
App at 445, we conclude that the trial court did not err in granting defendant summary
disposition of plaintiff’s claim of breach of express warranty.

     C. CREATION OF EXPRESS WARRANTY FROM ADVERTISEMENTS AND OTHER
                            PUBLISHED MATERIALS

       Plaintiff next contends that the trial court erred in determining that statements in
defendant’s MaxxForce® Diesel brochure did not create express warranties. Plaintiff also
contends that a statement purportedly from an owner’s guide and first relied upon by plaintiff in
its motion for reconsideration is sufficiently specific and measurable to create an express
warranty.

         The creation of express warranties is governed by MCL 440.2313(1), which provides:

         (1) Express warranties by the seller are created as follows:

         (a) An 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.

         (b) A description of the goods which is made part of the basis of the bargain
         creates an express warranty that the goods shall conform to the description.

         (c) A sample or model which is made part of the basis of the bargain creates an
         express warranty that the whole of the goods shall conform to the sample or
         model. [MCL 440.2313(1).]

Whether the seller provided affirmations of fact, descriptions, or samples relative to the quality
and condition of a good that became part of the basis of the bargain are generally fact questions.
See MCL 440.2313, Comment 3.6




6
    Comment 3 explains:
         The present section deals with affirmations of fact by the seller, descriptions of
         goods or exhibitions of samples, exactly as any other part of a negotiation which
         ends in a contract is dealt with. No specific intention to make a warranty is
         necessary if any of these factors is made part of the basis of the bargain. In actual
         practice affirmations of fact made by the seller about the goods during a bargain
         are regarded as part of the description of those goods; hence no particular reliance
         on such statements need be shown in order to weave them into the fabric of the


                                                 -7-
         As the statute makes clear, in order for an affirmation, description, or sample to create an
express warranty, the affirmation, description, or sample must become “part of the basis of the
bargain.” The meaning of “basis of the bargain” is not entirely clear, see White & Summers,
Uniform Commercial Code (Hornbook Series, 4th ed.), pp 398-404. However, where, as here, it
is claimed that language in a catalogue, advertisement, or brochure creates an express warranty,
“for such a warranty to arise, ‘the catalogue, advertisement, or brochure must have at least been
read . . . .” Id. at 401, quoting with approval Interco Inc v Randustrial Corp, 533 SW2d 257,
262 (Mo App, 1976). In the case at bar, plaintiff’s owner testified at his 2015 deposition that,
prior to his deposition, he had not seen the brochure that contains the language upon which
plaintiff relies to create an express warranty. It defies logic to characterize something a buyer
first saw nearly three years after his purchase as part of the basis of the earlier bargain.7

         Even if plaintiff had received and read the brochure contemporaneously with the
purchase, we agree with the trial court that the language from the brochure plaintiff relies on
lacks the specificity required to distinguish actionable statements of fact from non-actionable
puffery. General expressions of opinion regarding the quality of goods cannot create an express
warranty. See McGhee v GMC Truck & Coach Div, 98 Mich App 495, 501; 296 NW2d 286
(1980) (explaining that a salesperson’s statement to a knowledgeable buyer that a used car is in
“good condition” cannot be held to create an express warranty). “[I]t is within normal
expectations of commercial dealing for salesmen to ‘hype’ their products beyond objective
proof.” Van Tassel v McDonald Corp, 159 Mich App 745, 751; 407 NW2d 6 (1987); see Hayes
Constr Co v Silverthorn, 343 Mich 421; 72 NW2d 10 (1955) (deeming a salesperson’s
statements that the product would “do the job, that it was miserly in its consumption of fuel, and
the maintenance nil” to be puffery). Here, we agree with the trial court that the specific phrases
plaintiff claims created express warranties are neither specific nor measurable. Statements such
as “Always performing, “enhanced performance,” “uptime for you is top of mind for us” are
advertising hype. Others, such as “low cost of ownership,” “ease of service,” “maximum
reliability and durability,” and “years and years of service,” are relative, subjective, and
immeasurable.

       Plaintiff contends that the statement that defendant’s MaxxForce® 11L & 13L engines
have an “unsurpassed B-50 rating of 1.2 million miles” (the “B-50 rating statement”) is a
statement of fact that is concrete and measurable, and thus creates an express warranty. Whether
the B-50 rating statement creates an express warranty is unpreserved, plaintiff having introduced



       agreement. Rather, any fact which is to take such affirmations, once made, out of
       the agreement requires clear affirmative proof. The issue normally is one of fact.
7
  Plaintiff argues that pre-sale knowledge of a buyer’s product affirmations is not required for
such affirmations to become express warranties under MCL 440.2313(1). However, the cases
plaintiff cites are inapt, as they involve written warranties delivered with or proximately in time
to the goods; they do not involve affirmations or descriptions that become part of the basis of the
bargain, and they certainly do not contemplate an express warranty arising from language in a
brochure first seen three years after the subject purchase.


                                                -8-
the statement in its motion for reconsideration. Accordingly, we need not address it. Vushaj v
Farm Bureau Gen Ins Co, 284 Mich App 513, 519; 773 NW2d 758 (2009) (indicating that an
appellate court need not address issues first raised in a motion for reconsideration). We “may
overlook preservation requirements if the failure to consider the issue would result in manifest
injustice, if consideration is necessary for a proper determination of the case, or if the issue
involves a question of law and the facts necessary for its resolution have been presented.”
Nuculovi v Hill, 287 Mich App 58, 63; 783 NW2d 124 (2010). None of these conditions is met
in the instant case. Further, even if we were to consider the B-50 rating statement, the only thing
that plaintiff has established is that the B-50 rating statement exists. Not only do the parties
dispute the source of the statement, but plaintiff has not presented, or even alluded to, evidence
that would allow a reasonable trier of fact to determine what the statement is actually warranting,
that the statement became part of the basis of the bargain, or that the trucks’ performance was
inconsistent with the statement. Given this absence of evidence on questions essential to the
creation of an express warranty, plaintiff cannot create a genuine issue of material fact that the
B-50 rating statement created an express warranty.

                                      D. JUDICIAL NOTICE

        Plaintiff argues that the trial court erred by failing to take judicial notice of and apply
MCL 440.2313b(a), and by denying plaintiff an opportunity to amend its complaint to plead that
it was entitled to a warranty extension under the statute. We disagree.

       MCL 440.2313b provides for the extension of express limited warranties as follows:

              An express warranty covering goods sold to a purchaser in this state shall
       be extended by a period equal to the number of days prescribed in subdivisions (a)
       and (b), if the cumulative number of days is more than either 10 days or 10% of
       the number of days of the warranty. A merchant or warrantor shall at the time the
       goods are repaired give the purchaser a writing stating the time period prescribed
       in subdivisions (a) and (b):

              (a) The date from which the goods are delivered to the merchant or the
       warrantor for a warranteed repair to the date the purchaser is informed that the
       necessary repair has been completed.

               (b) The date from which the merchant or warrantor attempts to make a
       warranteed repair to the goods at the purchaser’s residence, domicile, or place of
       business to the date the necessary repairs are completed. In addition to this time
       period, the number of days preceding the date the merchant or warrantor begins a
       repair during which the goods were inoperative due to the need for a warranteed
       repair beginning with the date the purchaser notifies the merchant or warrantor in
       writing that the goods are inoperative and the merchant or warrantor receives the
       notice.

       Plaintiff’s contention that the trial court failed to take “judicial notice” of this statute is
puzzling, given that the transcript of the hearing on defendant’s summary disposition motion
shows that the trial court gave plaintiff every opportunity to demonstrate that it was entitled to

                                                 -9-
the statutory warranty extension, and the trial court addressed the statute’s applicability in its
written opinion and order.

        After defendant met its initial burden of proving that it had performed every warrantable
repair, the burden shifted to plaintiff to present documentary evidence establishing the existence
of a material factual dispute. Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d
314 (1996). Plaintiff’s attorney asserted that one truck was out of service for a total of 171 days,
another was out for 112 days, and the third was out for 124 days. To support its assertion,
plaintiff presented the trial court with a stack of undifferentiated repair orders, apparently
expecting the trial court to comb through the orders, separate the warrantable repairs from the
non-warrantable repairs, determine how many days the warrantable repairs took, and then do the
calculations required by the statute. The trial court indicated that it had reviewed the documents
and attempted without success to ascertain which documents were relevant and how to interpret
them. The court also repeatedly asked plaintiff to point out that relevant evidence, without
success. A party cannot simply provide the trial court with a heap of documents and then expect
the court to do the party’s work of sifting through the relevant and irrelevant information in order
to cull from the data the necessary information that may enable that party to survive a summary
disposition motion. This responsibility belongs to the party. See id; Cf. Mitcham v Detroit, 355
Mich 182, 203; 94 NW2d 388 (1959) (indicating that a party cannot simply announce its position
to a court and expect the court to do the work necessary to support the position). In light of the
foregoing, we find no error in the trial court’s conclusion that plaintiff simply did not provide the
court with the evidence necessary to find that plaintiff was entitled to a statutory warranty
extension.

                            E. FRAUD AND MISREPRESENTATION

        Plaintiff also contends that the trial court erred in dismissing its allegations of affirmative
and silent fraud. Plaintiff asserts that a comparison between the trucks’ repair histories and
statements in defendant’s MaxxForce® Diesel brochure regarding the quality and advantages of
its engines supports allegations of affirmative fraud. Plaintiff further asserts that defendant
committed silent fraud by breaching its duty under the Clean Air Act to disclose to plaintiff the
defects in its engines. Again, we disagree.

       In order to prove affirmative fraud, plaintiff must present evidence that:

       (1) the defendant made a material representation; (2) the representation was false;
       (3) when the defendant made the representation, the defendant knew that it was
       false, or made it recklessly, without knowledge of its truth as a positive assertion;
       (4) the defendant made the representation with the intention that the plaintiff
       would act upon it; (5) the plaintiff acted in reliance upon it; and (6) the plaintiff
       suffered damage. [M&D, Inc v WB McConkey, 231 Mich App 22, 27; 585 NW2d
       33 (1998).]

       Plaintiff bases its allegation of common-law fraud on the same or similar statements in
defendant’s MaxxForce® Diesel brochure that it relied upon to argue that the brochure created an
express warranty. However, as we have already indicated, we agree with the trial court’s
assessment of the statements as sales hype or as too relative, subjective, and immeasurable to

                                                 -10-
constitute affirmative statements of fact. Further, plaintiff provided no evidence of reliance upon
the statements in this brochure; to the contrary, plaintiff’s owner testified at his deposition that he
did not see the brochure prior to purchasing the trucks. Accordingly, plaintiff’s allegations of
affirmative fraud and misrepresentation fail.

       Compared to affirmative fraud, silent fraud, “also known as fraud by nondisclosure or
fraudulent concealment . . . requires a plaintiff to set forth a more complex set of proofs.” Id. at
28. “[S]ilence cannot constitute actionable fraud unless it occurred under circumstances where
there was a legal duty to disclose.” M&D, 231 Mich App at 29 (emphasis in original).

        We agree with the trial court that 42 USC 7541(a) of the Clean Air Act does not impose
on defendant a legal duty to disclose the defects plaintiff alleges are inherent in its engines. The
federal statute requires manufacturers to warrant that they designed, built, and equipped their
new vehicles and engines to conform to the applicable emissions standards and that the vehicles
and engines are “free from defects in materials and workmanship” that would cause them to fail
to comply with the applicable emissions standards during the engines’ useful life.8 Plaintiff did
not allege in its complaint that defendant’s trucks had emissions problems and presented no
evidence that the EGR system did not meet the EPA’s emissions standards. Plaintiff’s operative
assumption is that the problems with the subject trucks stem from defendant’s adoption of an
emissions technology that is incompatible with the normal use and conditions of long-haul
trucking. However, not only has plaintiff not provided admissible evidence substantiating that
assumption, but nothing in 42 USC 7541(a) requires defendant to disclose that the emission
system it installed to meet the EPA’s standards may impair other performance aspects of its
engines. Thus, even if defendant had a duty to disclose, its duty would extend only to
disclosures related to the capability of its engines to meet the EPA’s emission standards.
Defendant’s evidence that the trucks meet the EPA’s emissions standards is unrebutted.

        Plaintiff also argues that a duty to disclose arose from defendant’s exclusive knowledge
of the test data, documented customer complaints, and numerous lawsuits that put defendant on


8
    42 USC 7541(a), provides in relevant part:
         Effective with respect to vehicles and engines manufactured in model years
         beginning more than 60 days after December 31, 1970, the manufacturer of each
         new motor vehicle and new motor vehicle engine shall warrant to the ultimate
         purchaser and each subsequent purchaser that such vehicle or engine is (A)
         designed, built, and equipped so as to conform at the time of sale with applicable
         regulations under section 7521 of this title, and (B) free from defects in materials
         and workmanship which cause such vehicle or engine to fail to conform with
         applicable regulations for its useful life (as determined under section 7521(d) of
         this title). In the case of vehicles and engines manufactured in the model year
         1995 and thereafter[,] such warranty shall require that the vehicle or engine is free
         from any such defects for the warranty period provided under subsection (i) of
         this section.



                                                 -11-
notice that its engines were fatally flawed. In support of its argument, plaintiff offered the SEC
complaint against defendant’s former CEO discussed elsewhere in this opinion, a related SEC
litigation release, a litigation list, and a summary of e-mails filed under seal. The trial court
correctly determined that any allegations made in the SEC complaint regarding the quality or
condition of certain of defendant’s engines was inadmissible hearsay, and that the SEC litigation
release specifically stated that in settling the SEC case, defendant neither admitted nor denied
any of the allegations in the SEC complaint. The litigation list is probative of nothing other than
the names of plaintiffs, their attorneys, the court in which their action was filed, and the date of
filing.

        Finally, the e-mails plaintiff summarizes were not part of the record for purposes of the
trial court’s summary disposition decision. Although plaintiff got the documents into the record
through the back door of a motion for reconsideration, the trial court was not obligated to
consider the documents because that portion of the motion to which the documents were related
was untimely. Further, plaintiff submitted the e-mails under seal and they are not part of the
record transmitted to this Court for appellate review. Having not timely presented these
documents for the trial court’s consideration at any time during the nearly two years that the
parties were litigating this case, plaintiff now expects this Court to reverse the trial court’s
decision on the assumption that documents we have not seen are relevant, admissible, and
correctly summarized, and create a genuine issue of material fact. This we decline to do. See
Lewis v LeGrow, 258 Mich App 175, 210; 670 NW2d 675, 696 (2003) (“[E]rror requiring
reversal may only be predicated on the trial court’s actions and not upon alleged error to which
the aggrieved party contributed by plan or negligence.”).

                                        F. REVOCATION

        Plaintiff next contends that the trial court erred in dismissing its claim of revocation of
acceptance. The gravamen of plaintiff’s argument on appeal is that it did not purchase the trucks
at issue “as is,” but with a warranty, and that even if it did purchase the trucks “as is,” that does
not negate defendant’s contractual promise to repair or replace. We find plaintiff’s argument
unpersuasive.

       MCL 440.2608 states in relevant part that buyers who have already accepted goods may
revoke their acceptance under the following circumstances:

       (1) The buyer may revoke his acceptance of a lot or commercial unit whose
       nonconformity substantially impairs its value to him if he has accepted it

       (a) on the reasonable assumption that its nonconformity would be cured and it has
       not been seasonably cured; or

       (b) without discovery of such nonconformity if his acceptance was reasonably
       induced either by the difficulty of discovery before acceptance or by the seller’s
       assurances.

       The nonconformity that provides the basis for revocation pertains to the good(s)
themselves, not to any party’s failure to perform—their actions or inactions—under a warranty.

                                                -12-
Davis v LaFontaine Motors, Inc, 271 Mich App 68, 81; 719 NW2d 890 (2006). The relevant
question is whether the good is nonconforming under the parties’ sale contract. Id. When goods
are sold “as is,” “the buyer takes the entire risk as to the quality of the goods.” Id. (quotation
marks and citation omitted). In other words, a vehicle purchased “as is,” even if the vehicle has
defects, “conforms to the contract and therefore necessarily conforms to the parties’ legitimate
contractual expectations.” Davis, 271 Mich App at 82.

        As already indicated, the invoices and retail order forms for the subject trucks
conspicuously stated that the trucks were sold “as is.” Under this Court’s reasoning in Davis,
because plaintiff purchased the trucks “as is,” the trucks, “even with the alleged defects,
conform[] to the contract and therefore necessarily conform[] to the parties’ legitimate
contractual expectations.” Id. Plaintiff’s contention that defendant’s written repair-or-replace
warranty gave rise to expectations that the warranty would operate to give plaintiff trucks that
conformed to the contract within a reasonable time after discovery of the trucks’ defects does not
change our analysis. Plaintiff acknowledges that the “as is” clause relates to the condition and
quality of the trucks while the warranties are defendant’s promise to provide certain remedies for
defects. See Grosse Pointe Law Firm v Jaguar Land Rover North America, LLC, 317 Mich App
395, 405-406; 894 NW2d 700 (2016) (observing that “a promise to repair or replace says nothing
about the quality of the goods themselves”). Thus, the warranties are defendant’s promise to
repair any defects and return the trucks to their “as is” condition, not to make the trucks better
than they were when plaintiff purchased them. Plaintiff does not dispute that defendant
performed every warrantable repair during the warranty period and has not argued that the
repairs failed to return the trucks to their “as is” condition. Based on the foregoing, we conclude
that the trial court did not err in determining that plaintiff’s “as is” purchase of the trucks bars its
claim that it revoked acceptance of the trucks based on their alleged nonconformity.

                                  G. DISPARATE TREATMENT

        Finally, plaintiff asserts that the trial court abused its discretion by treating defendant
more favorably than plaintiff. Specifically, plaintiff argues that the trial court allowed defendant
to file a summary disposition motion beyond the scheduling order’s cutoff date for dispositive
motions, and to file two other briefs, one allegedly without leave, and the other less than an hour
before the related hearing.9 By contrast, the trial court refused to consider for purposes of
summary disposition a document that plaintiff had not attached to its brief in opposition to
summary disposition, denied plaintiff an in camera review of protected documents, and refused
to allow plaintiff to introduce new evidence on the second day of the summary disposition
hearing.

      Disparate treatment involves treating parties in identical circumstances differently.
Thorne v Bell, 206 Mich App 625, 635-636; 522 NW2d 711 (1994). In Thorne, a procedurally


9
 The record shows that, not only did the trial court give defendant permission to file its summary
disposition motion beyond the scheduling order’s cutoff date, but also that defendant filed the
other two briefs with the court’s permission or at the court’s request.


                                                 -13-
complex case involving multiple causes of action, two counterclaims, and a third-party
complaint, the trial court dismissed the Thornes’ complaint because they failed to file their
witness and exhibit lists in accordance with the scheduling order. Id. at 630-631, 634. However,
when the same defendant who had won dismissal of the Thornes’ complaint moved for dismissal
of the complaint filed by third-party plaintiff Little Caesar Enterprise, Inc., (LCE), for the same
reason and relying on the same arguments, the trial court denied the motion, thus allowing LCE’s
complaint to go forward. Id. at 635. The court rationalized its ruling by attempting to
distinguish between the Thornes and LCE, noting that the latter’s failure to comply with the
scheduling order was accidental and resulted in little prejudice to the defendant, given that LCE
had “revealed its witnesses and exhibits in its pretrial summary.” Id. On the Thornes’ appeal of
the trial court’s decision, this Court observed that defendants were given as much notice of the
Thornes’ witnesses and exhibits as they were of LCE’s. The Court concluded that “[t]he trial
court’s disparate treatment of LCE and [the Thornes] under identical circumstances is contrary to
our notion of fairness and its ruling with respect to [the Thornes] must be reversed.” Id. at 636.
        The case at bar is distinguishable from Thorne. The Thornes and LCE were situated
identically relative to the notification they had provided the defendants of their witnesses and
trial exhibits and their failure to comply with the trial court’s scheduling order for the submission
of their witness and exhibit lists. By contrast, plaintiff has not shown how the parties in the
instant case were identically situated. Instead, plaintiff asserts that the trial court’s disparate
treatment consisted of affording “courtesies” to one side that it did not show to the other, that is,
that the trial court treated the parties differently by allowing defendant to do certain things while
denying plaintiff the opportunity to do certain other, different things. This does not constitute
“disparate treatment” as described in Thorne. We will not disturb a trial court’s exercise of its
inherent authority to manage its own docket absent a finding “that there has been a clear abuse of
discretion.” Baynesan v Wayne State Univ, 316 Mich App 643, 651; 894 NW2d 102 (2016),
quoting Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). Plaintiff has not
established that the trial court treated the parties differently in identical situations, nor has
plaintiff argued that any of the trial court’s decisions, taken in isolation, constituted an abuse of
discretion. Thus, plaintiff has not shown that the trial court clearly abused its discretion, and is
not entitled to reversal of any of the decisions of which it complains.

                                        III. CONCLUSION

        Viewing the evidence in the light most favorable to plaintiff, Dillard, 308 Mich App at
445, we conclude that the trial court did not err in granting defendant summary disposition of
plaintiff’s allegations of fraud and misrepresentation (Count I). Plaintiff’s claim of affirmative
fraud fails because plaintiff did not present any evidence that plaintiff’s owner received, read, or
relied on the alleged affirmations and descriptions in defendant’s MaxxForce® Diesel brochure
when purchasing the subject trucks. Its claim of silent fraud fails because it has not established
that defendant had a duty to disclose any alleged defects in its engines. We likewise conclude
that the trial court did not err in granting defendant summary disposition of plaintiff’s breach of
warranty claims (Counts II and III). Plaintiff has not raised a genuine issue of material fact
regarding whether defendant properly and timely performed all warrantable repairs under its
warranty, whether it was entitled to a statutory warranty extension, or whether defendant’s
warranty failed of its essential purpose. Finally, we conclude that the trial court did not err in



                                                -14-
determining that plaintiff’s “as is” purchase of the trucks barred its revocation claim as a matter
of law (Count IV).

        Given our conclusions as summarized above, we need not address plaintiff’s associated
derivative arguments, nor will we address defendant’s arguments concerning alternative grounds
to affirm.

       Affirmed.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Jane M. Beckering
                                                            /s/ Amy Ronayne Krause




                                               -15-
