In the recent case of Castle v. Barrett-Jackson Auction Company, 634 Ariz. Adv. Rep. 24 (App. Div. 1, May 10, 2012) Arizona Court of Appeals found that where a Defendant clearly disclaimed in writing that it was making any representations regarding car sale and Plaintiff signed agreement acknowledging this fact, consumer fraud action could not withstand motion to dismiss.
The Plaintiff, Castle bought a 1957 Ford Thunderbird automobile from Defendant, Barrett-Jackson Auction Company. Defendant is an auctioneer which sells classic cars on consignment. The Defendant expressly stated in writing on the “car card” affixed to the Ford Thunderbird that it was making no representations regarding the car and that any representations included on the car card were those of the owner selling on consignment. Plaintiff also signed a bidders’ agreement which reiterated the no representations. The Trial Court granted the Defendants’ Motion to Dismiss which was affirmed by the Arizona Court of Appeals.
In its opinion the Court of Appeals noted although A.R.S. §44-1521 does create a private cause of action for fraud in which reliance need not be proven, it does not create a cause of action where no representation was ever made by the Defendant. The Court noted the disclaimers in this case were clear and unambiguous and signed by the Plaintiff. There was no evidence of any representations by Defendant. The Defendant as, the prevailing party pursuant to A.R.S. §12-341.01 was awarded attorneys’ fees and costs on appeal. As this was also an expressed provision in the bidder agreement.