                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A13-2194

                                 Kay Tellinghuisen,
                                    Appellant,

                                         vs.

               Chrysler Group, LLC, a foreign limited liability company
                    transacting business in the State of Minnesota,
                                     Respondent.

                              Filed September 2, 2014
                                     Affirmed
                                    Smith, Judge

                           Hennepin County District Court
                             File No. 27-CV-12-20083

Todd E. Gadtke, Daniel J. Brennan, Gadtke Law Firm, P.A., Maple Grove, Minnesota
(for appellant)

Julian C. Janes, Gislason, Martin, Varpness & Janes, P.A., Edina, Minnesota (for
respondent)

      Considered and decided by Bjorkman, Presiding Judge; Smith, Judge; and

Klaphake, Judge.*




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                          UNPUBLISHED OPINION

SMITH, Judge

      We affirm the district court’s summary judgment dismissal of appellant’s claim

for breach of the implied warranty of merchantability arising from an allegedly defective

braking system because the vehicle was merchantable as a matter of law.

                                         FACTS

      In May 2009, appellant Kay Tellinghuisen purchased a 2009 Dodge Journey

manufactured by respondent Chrysler Group, LLC. On June 29, 2010, when the vehicle

had been driven approximately 30,704 miles, the Journey’s front brake pads and rotors

were replaced.

      In 2010, Chrysler “became aware that the front brake pad lining life on some 2009

Dodge Journey vehicles was not meeting customer expectations.” In response, Chrysler

extended the express limited warranty for repair and replacement of brake pad linings and

brake rotors from 12 months/12,000 miles to 36 months/36,000 miles, with certain

deductibles.     In a letter dated June 1, 2011, Chrysler advised customers, including

Tellinghuisen, that it was “extending the warranty period on your front braking

components because some vehicles may need pads and rotors replaced earlier than

expected.”     Tellinghuisen submitted a claim for reimbursement for the June 2010

replacement of her brake pads and rotors and received full reimbursement, less a $100

deductible.

      Although she has provided documentation for only the 30,000-mile replacement,

Tellinghuisen claims that the brake pads and rotors were replaced a second and third time


                                            2
at unspecified times when the vehicle had approximately 50,000 and 80,000 miles on it.

On May 1, 2013, when the vehicle had approximately 80,000 miles, Tellinghuisen had

the Journey inspected by licensed automobile mechanic Steve Rozell, who concluded that

the front brake pads and rotors are undersized for the weight of the vehicle, that

Tellinghuisen would continue to have to replace them at what he deemed to be premature

intervals, and thus that the “vehicle was delivered to [Tellinghuisen] in a defective state.”

       Tellinghuisen retained counsel and, by letter dated April 16, 2012, notified

Chrysler of breaches of the express warranty and the implied warranty of merchantability

with respect to the Journey. Chrysler did not respond to the letter, and Tellinghuisen

commenced this action on May 11, 2012, asserting claims for violation of the Magnuson-

Moss Warranty Act, 15 U.S.C. § 2310(d); breach of express warranty; and breach of the

implied warranty of merchantability.

       Chrysler moved for summary judgment.            Tellinghuisen opposed the motion,

except with respect to her express-warranty claim, which she voluntarily dismissed with

prejudice. Following a hearing, the district court granted Chrysler’s motion, concluding

that the Journey was merchantable as a matter of law and that Tellinghuisen did not give

timely notice of the alleged breach.       The parties agreed that the Magnuson-Moss-

Warranty-Act claim was contingent on a viable breach-of-the-implied-warranty-of-

merchantability claim. The district court ordered judgment dismissing the complaint, and

judgment was entered on September 25, 2013.




                                              3
                                    DECISION

      On appeal from the summary judgment dismissal of claims, we conduct a de novo

review to determine whether (1) there exist any genuine issues of material fact, and

(2) judgment is appropriate as a matter of law. STAR Ctrs., Inc. v. Faegre & Benson,

L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). We view the evidence in the light most

favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.

1993). But a party may not avoid summary judgment by resting on mere averments or

presenting evidence that “merely creates a metaphysical doubt as to a factual issue.”

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). “[W]hen determining whether a

genuine issue of material fact for trial exists, the court is not required to ignore its

conclusion that a particular piece of evidence may have no probative value, such that

reasonable persons could not draw different conclusions from the evidence presented.”

Id. at 70. Summary judgment is mandatory against a party who fails to establish an

essential element of his or her claim, if that party has the burden of proof, because this

failure renders all other facts immaterial. Carlisle v. City of Minneapolis, 437 N.W.2d

712, 715 (Minn. App. 1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106

S. Ct. 2548, 2552-53 (1986)).

      “To establish a warranty claim the plaintiff must basically prove: the existence of

a warranty, a breach, and a causal link between the breach and the alleged harm.”

Peterson v. Bendix Home Sys., Inc., 318 N.W.2d 50, 52-53 (Minn. 1982). Under the

Minnesota Uniform Commercial Code, “a warranty that the goods shall be merchantable




                                            4
is [generally] implied in a contract for their sale if the seller is a merchant with respect to

goods of that kind.” Minn. Stat. § 336.2-314(1) (2012). To be merchantable, goods

              must be at least such as
                     (a) pass without objection in the trade under the
              contract description; and
                     (b) in the case of fungible goods, are of fair average
              quality within the description; and
                     (c) are fit for the ordinary purposes for which such
              goods are used; and
                     (d) run, within the variations permitted by the
              agreement, of even kind, quality and quantity within each unit
              and among all units involved; and
                     (e) are adequately contained, packaged, and labeled as
              the agreement may require; and
                     (f) conform to the promises or affirmations of fact
              made on the container or label if any.

Minn. Stat. § 336.2-314(2) (2012). In order to recover on a warranty theory, “the buyer

must within a reasonable time after the buyer discovers or should have discovered any

breach notify the seller of breach.” Minn. Stat. § 336.2-607(3)(a) (2012).

       The district court concluded that Tellinghuisen is precluded from recovering under

an implied-warranty theory both because the Journey was merchantable as a matter of

law and because she did not give timely notice of the alleged breach as a matter of law.

We agree with the district court that the Journey was merchantable as a matter of law,

and thus we do not reach the notice issue.

       Although the Minnesota caselaw addressing implied-warranty claims based on

vehicle sales does not state a clear definition of merchantability in that context, courts in

other jurisdictions have held that a vehicle is merchantable if it provides safe, reliable

transportation. See, e.g., Bussian v. DaimlerChrysler Corp., 411 F. Supp. 2d 614, 623



                                              5
(M.D. N.C. 2006) (citing Carlson v. Gen. Motors Corp., 883 F.2d 287, 297-98 (4th Cir.

1989); In re Air Bag Prods. Liab. Litig., 7 F. Supp. 2d 792, 803 (E.D. La. 1998); Taterka

v. Ford Motor Co., 271 N.W.2d 653, 655 (Wis. 1978)). “The implied warranty of

merchantability does not ‘impose a general requirement that goods precisely fulfill the

expectations of the buyer. Instead, it provides for a minimum level of quality.’” Id.

(quoting Skelton v. Gen. Motors Corp., 500 F. Supp. 1181, 1191 (N.D. Ill. 1980), rev’d

on other grounds, 660 F.2d 311 (7th Cir. 1981)). In applying the safe-and-reliable-

transportation standard for merchantability, courts have considered both the length of

time that a vehicle was driven without incident and the severity of the issues that

ultimately arose. As a federal district court explained in Sheris v. Nissan N. Am. Inc.,

“[t]he weight of authority, from courts across the county, indicates that plaintiffs may not

recover for breach of the implied warranty of merchantability under the facts where

plaintiffs have driven their cars without problems for years.” Civ. No. 07-2516 (WHW),

2008 WL 2354908, at *6 (D.N.J. June 3, 2008) (quotation omitted).

         Sheris involved facts strikingly similar to this case, and the district court relied on

Sheris in concluding that Tellinghuisen’s Journey was merchantable as a matter of law.

The plaintiff in Sheris alleged defective rotor/caliper front brake assembly, based on

needing his brake pads and rotors replaced after 20 months and 20,618 miles. Id. at *1-2.

The court held this insufficient to demonstrate that the vehicle was unmerchantable. Id.

at *5.

         Two additional foreign cases inform our analysis. In Bussian, the plaintiff alleged

that the breach of the implied warranty of merchantability was based on premature


                                                6
wearing of the ball joints in his vehicle, contending that the premature wear was due to a

defect in the ball joints’ construction and that “ball joints are designed to, and ordinarily

do, function for periods of time and mileages substantially in excess of those specified in

DaimlerChrysler’s warranties.” 411 F. Supp. 2d at 617-18. The district court dismissed

the implied-warranty claim, explaining:

                 Between the time that Plaintiff purchased his Durango used in
                 May 2001, and the unspecified time in 2003 when he replaced
                 his ball joints, Plaintiff makes no allegation that the allegedly
                 defective ball joints caused him to suffer mechanical
                 problems, lose control of his vehicle, or have an accident.
                 Plaintiff does not allege that his Durango was ever rendered
                 inoperable by the defective ball joints. Plaintiff makes no
                 allegation that he lost faith in his Durango or stopped driving
                 his Durango after he learned of his ball joint problem. Thus
                 with the exception of a single repair five years after original
                 manufacture, Plaintiff’s complaint makes out no allegations
                 that his Durango was not fit for the purposes for which it was
                 intended, i.e., to provide safe and reliable transportation.

Id. at 623-24.

       In Ford Motor Co. v. Fairley, a plaintiff alleged breach of the implied warranty of

merchantability based on problems with “piston scuffing” in his vehicle. 398 So.2d 216,

217-18 (Miss. 1981). Notably, as in this case, the manufacturer had acknowledged the

problem and extended the warranty over affected parts. Id. But plaintiff had experienced

no problem with the vehicle for more than two years and 26,649 miles, and the

Mississippi Supreme Court concluded that “[s]uch service as a matter of law negates a

breach of an implied warranty of merchantability of this car.” Id. at 219.

       The cases allowing claims under an implied-warranty theory generally implicate

either defects, including minor defects that manifest early on, or catastrophic defects that


                                                7
manifest within the reasonably expected life of the vehicle. In Nelson v. Wilkins Dodge,

Inc., a case on which Tellinghuisen relies, multiple defects manifested within the first six

months and 12,000 miles of ownership. 256 N.W.2d 472, 473-74 (Minn. 1977).1 The

court reversed a directed verdict and remanded the claim for a new trial, reasoning that

“[i]t is reasonable to suppose . . . that vehicles that are fit for ordinary purposes probably

do not display these defects this early, even if they are driven a great deal within a short

period of time.”    Nelson, 256 N.W.2d at 476.         In Daigle v. Ford Motor Co., the

Minnesota federal district court allowed an implied-warranty claim based on alleged

defects in torque converters that caused the “splines” connecting their engines and

transmissions to strip, leading to transmission failure. 713 F. Supp. 2d 822, 824-27 (D.

Minn. 2010). The manufacturer in that case argued that “the claim should be dismissed

because all cars are built with components that break down over time.” Id. at 826. The

court rejected that argument, explaining that, “[a]rguably, a vehicle that suffers a major,

1
  Tellinghuisen relies on two other Minnesota cases, both of which are inapposite. In
Pfeiffer v. Ford Motor Co., we concluded that the district court erred by denying
appellants’ motion to amend their complaint to state a claim for “breach of implied
warranty and fitness for a particular purpose under the UCC.” 517 N.W.2d 76, 80 (Minn.
App. 1994), review denied (Minn. Aug. 11, 1994). The case arose out of allegations that
the dealer knew of appellants’ need for a particular level of horsepower, and it is not clear
that appellants even attempted to plead a claim based on merchantability. In Graffunder
v. Toyota Motor Sales U.S.A., Inc., we held that evidence of a noise coming from near the
brake pedal was sufficient to support a claim under Minnesota’s lemon law, Minn. Stat. §
325F.665 (2006). No. A09-563, 2010 WL 274203, at *7 (Minn. App. Jan. 26, 2010). In
a footnote, we noted that the claims might also be pursued under an implied-warranty
theory. Id. at *7 n.2. The footnote is dicta in an unpublished opinion. See Minn. Stat. §
480A.08, subd. 3 (2012) (providing that unpublished decisions are not precedential);
Wandersee v. Brellenthin Chevrolet Co., 258 Minn. 19, 28, 102 N.W.2d 514, 520 (1960)
(noting that dicta is not binding).        Moreover, because the defect in Graffunder
manifested itself within one day of ownership, allowing pursuit of an implied-warranty
theory would not be inconsistent with the caselaw.

                                              8
systemic malfunction within five years of purchase—even with rigorous driving—may

not be ‘fit’ within the meaning of the implied warranty statute.” Id.

       We conclude that the district court did not err by determining that Tellinghuisen’s

Journey was merchantable as a matter of law. The defect that Tellinghuisen alleges is

distinguishable from those that the courts have found to support implied-warranty claims.

As the district court emphasized, Tellinghuisen drove the car for nearly 31,000 miles over

the course of more than a year before the alleged defect first manifested itself. Thus, this

case is distinguishable from Nelson and other cases in which the defects, although

arguably minor, manifested themselves early in ownership. Moreover, the defect did not

cause a catastrophic event like the transmission failure experienced in Daigle. Instead,

the defect causes symptoms—shaking in the steering wheel, a “droning” sound, and heat

in the front braking area—that have prompted Tellinghuisen to get her brakes repaired.

Accordingly, we conclude that the district court did not err by dismissing Tellinghuisen’s

implied warranty claim.

       Affirmed.




                                             9
