COA 372104 MATTHEW SIMONCINI V MATTHEW HARWOOD Opinion - Per Curiam - Unpublished 9/15/2026

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MATTHEW SIMONCINI,
Plaintiff-Appellant,
UNPUBLISHED
September 15, 2026
11:03 AM
v No. 372104
Wayne Circuit Court
MATTHEW HARWOOD, MELANIE HARWOOD,
and HARWOOD MOTORS, LTD.,
LC No. 20-016441-CZ
Defendants-Appellees.
Before: LETICA, P.J., and RICK and GARRETT, JJ.
PER CURIAM.
In this dispute involving the sale of a vintage Corvette, plaintiff appeals as of right the trial
court’s order granting summary disposition to defendants, Matthew Harwood, Melanie Harwood,1
and Harwood Motors, Ltd., under MCR 2.116(C)(10). We affirm in part, reverse in part, and
remand for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
This case involves the sale of a rare 1968 Chevrolet Corvette L89 (the Corvette). Matthew
and Melanie, both Ohio residents, are the co-owners of Harwood Motors, Ltd., an Ohio company
that specializes in the sale of vintage automobiles. Harwood Motors lists all of its available
vehicles on its website, and in September 2019, advertised the Corvette for sale. The listing
described the Corvette as a “special find” that had “a fantastic combination of restored and original
parts that make for a fantastic presentation.” It also represented that the Corvette had been
“recently and extensively serviced, runs superbly, and has no issues so it’s ready to drive and
enjoy.”
1 Because the individual defendants, Matthew and Melanie Harwood, share the same last name,
we will refer to them by their first names to avoid confusion.

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Plaintiff, a Michigan resident and vintage car collector, e-mailed Matthew to inquire about
the Corvette. They later spoke on the phone, and plaintiff alleges that Matthew affirmed that the
representations in the online listing for the Corvette were accurate. Plaintiff offered Matthew
$90,000 in cash for the Corvette, and Matthew accepted the offer the same day. In his e-mail to
plaintiff, Matthew advised that he had driven the Corvette and that it was functionally sound:
“Having driven this Corvette personally, I’ll vouch for the fac [sic] that it’s a great deal of fun to
drive and mechanically excellent.”
The parties electronically executed a purchase agreement, and plaintiff had the Corvette
delivered to his home in Michigan. Plaintiff claims that the Corvette did not work properly when
it arrived. He took the car to a local classic Corvette mechanic who examined the vehicle and
identified numerous serious issues, including the fact that the Corvette had sustained extensive
damage from a collision that had not been properly repaired. Shortly thereafter, the Corvette
caught fire while plaintiff was operating it.
Plaintiff filed the instant suit in December 2020 for breach of express warranties, breach
of implied warranties, fraudulent and innocent misrepresentation, violations of the Michigan
Consumer Protection Act (MCPA), MCL 445.901, et seq., and unjust enrichment. Defendants
moved for summary disposition under MCR 2.116(C)(10), arguing that Ohio law applied to the
claims in plaintiff’s complaint. According to defendants, the “as is” provision in the purchase
agreement effectively disclaimed all express and implied warranties, and plaintiff could not assert
fraud or unjust-enrichment claims which arose out of the breach of an express contract. Finally,
because Ohio law applied to the transaction, defendants contended that plaintiff could not assert
an MCPA claim.
The court held oral argument on the motion but did not render a decision at the hearing.
More than two years later, the trial court issued an order adopting defendants’ arguments in support
of their motion and dismissing plaintiff’s claims with prejudice. This appeal followed.
II. STANDARDS OF REVIEW
An appellate court reviews a trial court’s decision to grant or deny a motion for summary
disposition de novo. Rory v Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005). “A
motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v
Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999); Girimonte v Liberty Mut Ins Co, 348 Mich
App 768, 773; 19 NW3d 921 (2023). When reviewing a motion brought under MCR 2.116(C)(10),
the trial court considers affidavits, pleadings, depositions, admissions, and documentary evidence
filed or submitted by the parties in the light most favorable to the nonmoving party. Quinto v
Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). If the moving party meets its
initial burden, “[t]he burden then shifts to the opposing party to establish that a genuine issue of
disputed fact exists.” Id.; see also Pittsfield Charter Twp v Washtenaw Co Treasurer, 338 Mich
App 440, 448; 980 NW2d 119 (2021). When the nonmoving party has the burden of proof at trial,
it must submit evidence that demonstrates a genuine issue of material fact exists and may not rest
on mere allegations or denials in the pleadings. Quinto, 451 Mich at 362. “If the opposing party
fails to present documentary evidence establishing the existence of a material factual dispute, the
motion is properly granted.” Id. at 363. In other words, “[i]f no facts are in dispute, and if
reasonable minds could not differ regarding the legal effect of those facts, whether summary

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disposition is proper is a question of law for the Court.” Estate of Miller v Angels’ Place, Inc, 334
Mich App 325, 330; 964 NW2d 839 (2020).
We review questions regarding choice of law de novo. Frydrych v Wentland, 252 Mich
App 360, 363; 652 NW2d 483 (2002). “Moreover, questions involving the proper interpretation
of a contract or the legal effect of a contractual clause are also reviewed de novo.” Rory, 473 Mich
at 464. Unconscionability of a particular contractual provision generally presents a question of
law, Krupp PM Engineering, Inc v Honeywell, Inc, 209 Mich App 104, 108; 530 NW2d 146
(1995), and this Court reviews these questions of law de novo, In re Estate of Hoppert, 347 Mich
App 450, 465; 15 NW3d 337 (2023). Finally, questions of statutory interpretation are reviewed
de novo. Johnson v Johnson, 329 Mich App 110, 118; 940 NW2d 807 (2019).
III. CHOICE OF LAW
Plaintiff first contends that the trial court erred by adopting defendants’ argument that Ohio
law applies to this dispute.2 We conclude that the trial court correctly applied Ohio law to
plaintiff’s contract claim but hold that the trial court erred when it employed Ohio law to analyze
plaintiff’s remaining causes of action.
When a contract relates to the sale of goods, the Michigan Uniform Commercial Code
(UCC), MCL 440.1101, et seq., will govern the transaction. Neibarger v Universal Cooperatives,
Inc, 439 Mich 512, 519-520; 486 NW2d 612 (1992). The Michigan UCC provides that in the
absence of an agreement regarding the choice of law that will apply to the transaction, the
Michigan UCC “applies to transactions bearing an appropriate relation to this state.”
MCL 440.1301(2). However, the UCC “keeps intact those areas of the common law not
superseded by specific provisions of the UCC.” Huron Tool & Engineering Co v Precision
Consulting Servs, Inc, 209 Mich App 365, 374; 532 NW2d 541 (1995); see also MCL 440.1103(2).
Historically, courts in Michigan construed contracts that did not include a choice-of-law
provision “according to the law of the place where the contract was entered into.” Chrysler Corp
v Skyline Indus Servs, Inc, 448 Mich 113, 122; 528 NW2d 698 (1995). However, the Chrysler
Court recognized the evolution from this traditional method and endorsed the approach found in
the Restatement (Second) Conflict of Laws. Id. at 123. Under the Restatement, in the absence of
an effective choice of law by the parties,
the contacts to be taken into account in applying the principles of § 6 to determine
the law applicable to an issue include:
(a) the place of contracting,
2 When a case involves a choice-of-law determination, the forum state’s choice-of-law rules apply.
See Jones v State Farm Mut Auto Ins Co, 202 Mich App 393, 397; 509 NW2d 829 (1993).
Accordingly, we will use Michigan law to make the threshold determination of which state’s
substantive law applies to each claim, and then the relevant claims will be analyzed under the
applicable state’s substantive law.

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(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation and place of
business of the parties. [1 Restatement Conflict of Laws, 2d, § 188(2).]
The place of contracting, under the Restatement, is “the place where occurred the last act
necessary, under the forum’s rules of offer and acceptance, to give the contract binding effect . . . .”
Id., comment e. “The question of when and where the parties became contractually bound depends
on their intention as manifested by their verbal statements and conduct in the light of all the
circumstances.” Lake States Engineering Corp v Lawrence Seaway Corp, 15 Mich App 637, 642;
167 NW2d 320 (1969).
The place of contracting rarely stands alone and must be considered along with the other
factors. Restatement, § 188, comment e. Likewise, the place of negotiation is not significant when
the parties negotiated the contract by phone or mail. Id.
When a contract deals with a specific physical object, the location of the object is a
significant factor for the court to consider. Id. “Indeed, when the thing . . . is the principal subject
of the contract, it can often be assumed that the parties, to the extent that they thought about the
matter at all, would expect that the local law of the state where the thing . . . was located would be
applied to determine many of the issues arising under the contract.” Id.
For noncontractual claims, we use a different framework to evaluate whether the
application of Michigan law is warranted. In such cases, “we will apply Michigan law unless a
‘rational reason’ to do otherwise exists.” Sutherland v Kennington Truck Serv, Ltd, 454 Mich 274,
286; 562 NW2d 466 (1997). To determine whether there is a rational reason to displace Michigan
law, a two-step analysis is required:
First, we must determine if any foreign state has an interest in having its law
applied. If no state has such an interest, the presumption that Michigan law will
apply cannot be overcome. If a foreign state does have an interest in having its law
applied, we must then determine if Michigan’s interests mandate that Michigan law
be applied, despite the foreign interests. [Id.]
In Nesbitt v American Community Mut Ins Co, 236 Mich App 215, 228; 600 NW2d 427
(1999), this Court addressed whether an MCPA claim could be raised to challenge an out-of-state
insurance policy. In Nesbitt, the plaintiff, an Ohio resident, purchased an insurance policy in Ohio.
The plaintiff claimed that the defendant committed an unfair trade practice contrary to the MCPA
by deliberately misrepresenting the meaning of “preexisting condition” to discourage the plaintiff
from filing a suit. Id. at 226. The parties agreed to apply Ohio law to the interpretation of the
insurance contract because the plaintiff executed the contract in Ohio and resided there at the
pertinent time. Id. at 220. But the defendant alleged that the MCPA claim only protected Michigan
consumers and would not govern an insurance policy purchased in Ohio by Ohio residents. Yet,
the defendant failed to dispute that its home office was located in Livonia, Michigan, and all

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correspondence sent by the defendant to the plaintiff originated from the “Michigan base of
operations[.]” Id. at 228. This Court held that the plaintiff could assert an MCPA claim because
“the language of the MCPA itself not only implies no exclusion of residents from other states, but
instead implies broad applicability.” Id. Consequently, a party to a contract may invoke the
protections of the MCPA for deceptive practices related to a contract even if the contract was
formed in another state and the other state’s substantive law governs the interpretation of the
contract. Id.
Here, plaintiff’s first two claims allege that defendants breached the express and implied
warranties applicable to the sale of the Corvette under Article 2 of Michigan’s UCC. The purchase
agreement did not include a choice-of-law provision, and there is no indication in the record that
the parties came to any understanding as to which state’s law would apply to the sale. Under
MCL 440.1301(2), Michigan law applies “to transactions bearing an appropriate relation to this
state.” But because this provision does not specifically displace the common-law test espoused in
Chrysler, we must consider the Restatement’s choice-of-law analysis even though the transaction
is subject to the UCC. Consequently, we must determine whether the “(a) the place of contracting,
(b) the place of negotiation of the contract, (c) the place of performance, (d) the location of the
subject matter of the contract, and (e) the domicil, residence, nationality, place of incorporation
and place of business of the parties” favor the application of Michigan or Ohio law. Restatement,
§ 188(2).
The first factor, i.e., the place of contracting, requires us to examine “the place where
occurred the last act necessary, under the forum’s rules of offer and acceptance, to give the contract
binding effect . . . .” Id., comment e. The UCC provides the following regarding the formation of
contracts:
(1) A contract for sale of goods may be made in any manner sufficient to
show agreement, including conduct by both parties which recognizes the existence
of such a contract.
(2) An agreement sufficient to constitute a contract for sale may be found
even though the moment of its making is undetermined.
(3) Even though one or more terms are left open a contract for sale does not
fail for indefiniteness if the parties have intended to make a contract and there is a
reasonably certain basis for giving an appropriate remedy. [MCL 440.2204.]
Here, the trial court opined at the summary disposition hearing that the parties formed a
contract by e-mail several days before the written agreement, containing the “as-is” and “where-
is” language, was signed. Indeed, the e-mail correspondence between plaintiff and Matthew
demonstrates that the parties reached an agreement for the sale of the Corvette on September 25,
2019. First, plaintiff wrote to Matthew saying that he “would like to formally offer you $90,000
cash for the car.” Matthew responded with, “Great, we have a deal at $90,000.” These e-mails
make clear that the parties reached an agreement regarding the material terms of the sale on
September 25, 2019, when Matthew accepted plaintiff’s offer to purchase the Corvette and
announced that they had a deal. Matthew’s acceptance, which occurred in Ohio, was the last step

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necessary to form a binding contract. Accordingly, this factor weighs in favor of applying Ohio
law.
The next factor that we must consider is the place of negotiation. Restatement, § 188(2)(b).
Because the parties negotiated the contract over the phone and by e-mail while physically present
in Michigan and Ohio, this factor does not weigh in favor of either state.
Next is the place of performance. Restatement, § 188(2)(c). The parties disagree as to
which state this factor favors and focus on which party had greater performance obligations under
the terms of the contract. However, the parties had obligations under the contract which were
performed in their respective home states. Defendants were obligated to transfer the Corvette to
plaintiff, and the purchase agreement provided that the transfer would take place at Harwood
Motors’ premises in Ohio. Additionally, plaintiff was required to pay the purchase price for the
vehicle, which he did from his home in Michigan. Consequently, the parties had obligations under
the purchase agreement which they completed in Michigan and Ohio. This factor does not favor
either state.
The parties also disagree about which state the fourth factor favors, i.e., the location of the
subject matter of the contract. During the negotiation, formation, and performance of the contract,
the Corvette was located in Ohio. It was only after the parties performed their obligations under
the contract, i.e., payment of the purchase price and transfer of the Corvette at Harwood Motors in
Ohio, that the Corvette was delivered to Michigan. Consequently, during all relevant periods under
the purchase agreement, the car was located in Ohio. This factor favors the application of Ohio
law.
The final factor, the location of the parties, does not weigh in favor of either state. The
individuals involved in this suit are domiciled in Michigan and Ohio. Additionally, Harwood
Motors is an Ohio company with a principal place of business in Ohio. Consequently, this factor
does not favor either state.
After consideration of the factors enumerated in the Restatement, an approach which was
adopted by the Michigan Supreme Court in Chrysler, we conclude that Ohio law is applicable to
plaintiff’s contractual claims.
This is not the end of the inquiry, however, because the choice-of-law analysis for
plaintiff’s other claims is not the same as the analysis for his contract claims. For plaintiff’s tort
and equitable claims, we “apply Michigan law unless a ‘rational reason’ to do otherwise exists.”
Sutherland, 454 Mich at 286. Accordingly, we must determine (1) “if any foreign state has an
interest in having its law applied” and, if so, (2) whether “Michigan’s interests mandate that
Michigan law be applied, despite the foreign interests.” Id. The law of the jurisdiction with the
greater interest applies. Radeljak v DaimlerChrysler Corp, 475 Mich 598, 610; 719 NW2d 40
(2006). Although this analysis “most frequently favors using the forum’s (Michigan’s) law,
Michigan courts nonetheless use another state’s law where the other state has a significant interest
and Michigan has only a minimal interest in the matter[.]” Hall v Gen Motors Corp, 229 Mich
App 580, 585; 582 NW2d 866 (1998). The mere fact that a party has its residence in a foreign
state, without more, “is insufficient to support the choice of a state’s law.” Sutherland, 454 Mich
at 287.

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Applying this framework, Michigan law governs plaintiff’s tort and equitable claims.
Plaintiff resides in Michigan, and he alleges that defendants sold him a car that was unsafe to drive
despite representations to the contrary. Michigan has a strong interest in protecting its residents
from fraudulent conduct and ensuring that the cars traveling on its roadways are safe. Although
Ohio has an interest in having its law applied because defendants reside and operate a business in
Ohio, this interest is insufficient to displace the strong presumption in favor of Michigan law in
light of the connection Michigan has to the case. Hall, 229 Mich App at 585. Accordingly,
Michigan has a greater interest, and Michigan law applies to plaintiff’s tort and equitable claims.
Likewise, plaintiff’s MCPA claim can proceed despite Ohio law’s application to plaintiff’s
contractual claims. Because the MCPA is remedial in nature, it must be liberally construed to
achieve its intended goals. Jordan v Transnational Motors, Inc, 212 Mich App 94, 98; 537 NW2d
471 (1995). The MCPA applies to “a person who suffers loss” for an MCPA violation,
MCL 445.911(2), or in the context of a class action, to all “persons residing or injured in this state,”
MCL 445.911(4), such that MCPA relief is warranted. This is true even if the remedies are sought
in connection with a contract that is governed by another state’s laws. Nesbitt, 236 Mich App
at 228. Because plaintiff both resides in and was allegedly injured in this state, he may raise an
MCPA claim. Consequently, the trial court erred by adopting defendants’ argument that the
application of Ohio law barred plaintiff’s MCPA claim.
In sum, the trial court did not err when it adopted defendants’ argument that plaintiff’s
contractual claims are governed by Ohio law. But, using the separate framework for
noncontractual claims, the trial court erred when it adopted defendants’ arguments and applied
Ohio law to plaintiff’s statutory, equitable, and tort claims.
IV. BREACH-OF-WARRANTY CLAIMS
Plaintiff argues that the trial court erred when it dismissed his breach-of-warranty claims
because the warranty disclaimer provision in the purchase agreement was unenforceable. We
agree that the trial court erred when it dismissed plaintiff’s claim for breach of an express warranty.
However, the contractual “as is” clause effectively disclaimed all implied warranties, and
therefore, the trial court did not err when it dismissed plaintiff’s claim for breach of implied
warranties.
Under Ohio law, “[w]hen a transaction involves only the sale of goods, as defined in RC
1302.01(A)(8), a court can conclude, without further inquiry, that the case is governed by the
UCC.” H & C Ag Servs, LLC v Ohio Fresh Eggs, LLC, 2015-Ohio-3714, ¶ 33; 41 NE3d 915 (Ohio
App, 2015). Motor vehicles fall within the statutory definition of goods, and so the sale of a used
car is governed by Ohio UCC. Sellers v Morrow Auto Sales, 124 Ohio App 3d 543, 546; 706
NE2d 837 (1997).
The Ohio UCC provides that a seller may create express warranties in the following ways:
(1) Any 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.

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(2) Any 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.
(3) Any 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. [Ohio Rev Code Ann 1302.26(A) (West).]
Express warranties can be made through verbal representations. Sellers, 124 Ohio App 3d at 546.
But “an affirmation merely of the value of the goods or a statement purporting to be merely the
seller’s opinion or commendation of the goods does not create a warranty.” Ohio Rev Code Ann
1302.26(B) (West). To determine whether an express warranty was made, “[t]he sole question is
whether the language * * * [is] fairly to be regarded as part of the contract.” Mitchell v Michael J
Auto Sales, 2022-Ohio-2591, ¶ 19; 194 NE3d 428 (Ohio App, 2022) (quotation marks and citation
omitted; alterations in original). “If language is used after the closing of the deal * * * the warranty
becomes a modification, and need not be supported by consideration if it is otherwise reasonable
and in order.” Id. (quotation marks and citation omitted). “A seller’s breach of an express warranty
can give rise to the buyer’s right to recover incidental and consequential damages.” Volovetz v
Tremco Barrier Solutions, Inc, 2016-Ohio-7707, ¶ 22; 74 NE3d 743 (Ohio App, 2016).
In addition to any express warranties, the Ohio UCC also provides that certain warranties
may be implied. Banks v Shark Auto Sales LLC, 2022-Ohio-3489, ¶ 10; 197 NE3d 50 (Ohio App,
2022). First, there is an implied warranty of merchantability. Ohio Rev Code Ann 1302.27 (West).
“[A] warranty that the goods shall be merchantable is implied in a contract for their sale if the
seller is a merchant with respect to goods of that kind” unless the parties modify or exclude the
implied warranty of merchantability. Ohio Rev Code Ann 1302.27(A) (West). To meet this
merchantability requirement, the goods sold must be, among other things, “fit for the ordinary
purposes for which such goods are used.” Ohio Rev Code Ann 1302.27(B)(3) (West). Second,
there is an implied warranty of fitness for a particular purpose:
Where the seller at the time of contracting has reason to know any particular
purpose for which the goods are required and that the buyer is relying on the seller’s
skill or judgment to select or furnish suitable goods, there is unless excluded or
modified under section 1302.29 of the Revised Code an implied warranty that the
goods shall be fit for such purpose. [Ohio Rev Code Ann 1302.28 (West).]
The parties may, however, agree to limit both express and implied warranties. Johnson v
TKP Auto Sales, Inc, 2025-Ohio-2930, ¶ 12; 271 NE3d 975 (Ohio App, 2025). To limit the
implied warranties, the contract’s language must be conspicuous, but “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.” Ohio Rev Code Ann 1302.29(B)-
(C) (West). See also Johnson, 2025-Ohio-2930 at ¶ 12 (“An ‘as is’ clause in a sales contract
normally excludes any implied warranties.”).
But “express oral warranties made to a buyer can survive an ‘as-is’ clause.” Id. (quotation
marks and citation omitted). “When the sales contract includes an express warranty in addition to
an ‘as is’ clause, ‘the phrase “as is” excludes all warranties except those expressly made to the

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buyer.’ ” Id. (citation omitted). The reviewing court must endeavor to construe words or conduct
relevant to the creation of an express warranty and words or conduct that negates or limits
warranties consistent with each other whenever reasonable, but “negation or limitation is
inoperative to the extent that such construction is unreasonable.” Ohio Rev Code Ann 1302.29(A)
(West). See also Mitchell, 2022-Ohio-2591, ¶ 20 (“[W]here the ‘as-is’ clause cannot be reasonably
construed as consistent with the seller’s oral express warranty, the express warranty will prevail
and the inconsistent provisions deemed inoperative to the extent they are unreasonable.”)
(quotation marks and citation omitted).
If a court finds that a clause in a contract was unconscionable at the time it was made, the
court may refuse to enforce the unconscionable clause. Ohio Rev Code Ann 1302.15(A) (West).
“Generally, contracts or clauses thereof are ‘unconscionable’ where one party has been misled as
to the ‘basis of the bargain,’ where a severe imbalance in bargaining power exists, or where specific
contractual terms are outrageous.” Orlett v Suburban Propane, 54 Ohio App 3d 127, 129; 561
NE2d 1066 (1989). Consequently, “[u]nconscionability embodies two separate concepts:
(1) substantive unconscionability, i.e., ‘those factors which relate to the contract terms themselves
and whether they are commercially reasonable,’ and (2) procedural unconscionability, i.e., ‘those
factors bearing on the relative bargaining position of the contracting parties.’ ” Hurst v Enterprise
Title Agency, Inc, 157 Ohio App 3d 133, 141; 2004-Ohio-2307; 809 NE2d 689 (2004) (citations
omitted).
In the first claim in plaintiff’s complaint, plaintiff asserted that defendants marketed the
vehicle as safe to drive, in excellent condition, and having no prior accident history. These express
warranties formed the basis of the bargain and influenced plaintiff’s decision to purchase the
Corvette. The website advertising the Corvette was replete with specific promises about the
restoration and operability of the vehicle, including the representation that the car “has been
recently and extensively serviced, runs superbly, and has no issues so it’s ready to drive and enjoy.”
Plaintiff spoke with Matthew on the phone before making an offer for the vehicle, and Matthew
allegedly confirmed that the representations made in the online description of the Corvette were
accurate. Indeed, in his e-mail accepting plaintiff’s $90,000 offer for the vehicle, Matthew told
plaintiff that he had personally driven the Corvete and he vouched for “the fac (sic) that it’s a great
deal of fun to drive and mechanically excellent.”
Under Ohio law, defendants’ written promises about the operability of the vehicle made by
the seller to the buyer which related to the condition of the car and became part of the basis of the
bargain created an express warranty. Ohio Rev Code Ann 1302.26(A)(1) (West). “When the sales
contract includes an express warranty in addition to an ‘as is’ clause, ‘the phrase “as is” excludes
all warranties except those expressly made to the buyer.’ ” Johnson, 2025-Ohio-2930 at ¶ 12
(citation omitted). If the express warranty cannot be read consistently with the disclaimers in the
purchase agreement, the disclaimers are ineffective. Ohio Rev Code Ann 1302.29(A) (West).
Here, the written promises made by defendants both on the Harwood Motors’ website and
in Matthew’s e-mail message regarding the restoration and operability of the vehicle formed
express warranties. The purchase agreement’s disclaimers provided that Harwood Motors could
not guarantee the condition of the vehicle’s mechanical equipment. But Matthew promised
plaintiff that he could personally vouch for the fact that the car was “mechanically excellent.”
Because the express warranties made to plaintiff that became a part of the bargain were

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fundamentally incompatible with the written disclaimers in the purchase agreement, the
disclaimers are ineffective. Ohio Rev Code Ann 1302.29(A) (West). Accordingly, the trial court
erred when it dismissed plaintiff’s express warranty claim, and reversal is required.
Plaintiff also pleaded a claim for a breach of implied warranties. An “as is” clause in a
sales contract is generally effective to exclude any implied warranties. Johnson, 2025-Ohio-2930
at ¶ 12; Ohio Rev Code Ann 1302.29(B)-(C) (West). Here, the purchase agreement’s “as is” clause
is both conspicuous and clear in its intention to disclaim “any implied warranties of
merchantability or fitness for a particular purpose.” Consequently, under ordinary circumstances,
the warranty disclaimer would prevent plaintiff from recovering for the breach of any implied
warranties.
However, plaintiff also alleges that the disclaimer provisions in the purchase agreement are
procedurally and substantively unconscionable, thereby rendering these provisions unenforceable.
This argument is without merit. A party raising the issue of unconscionability must demonstrate
both procedural and substantive unconscionability. Taylor Bldg Corp of America v Benfield, 117
Ohio St 3d 352, 358-359; 2008-Ohio-938; 884 NE2d 12 (2008). Procedural unconscionability
focuses on the relative bargaining position of the parties, which includes an evaluation of the
relative sophistication of the parties and whether alteration of the printed terms was possible. Id.
at 361-362.
Although the purchase agreement was a preprinted form and plaintiff’s assent to the
disclaimers was mandatory, this does not itself indicate that the terms were procedurally
unconscionable. Id. Plaintiff evidently negotiated other terms of the sale, including the vehicle’s
purchase price. There was no indication that plaintiff, who was apparently a successful
businessman before his retirement, had any deficiency in education, intelligence, business acumen,
or experience, such that he was unable to understand or assent to the terms of the agreement. Id.
And, in evaluating procedural unconscionability, we may also consider whether there were
alternative sources of supply for the goods in question. Id. Although plaintiff states that the
Corvette was a “rare find,” he did not say that he could not have obtained the vehicle from another
seller. Consequently, plaintiff has not demonstrated that the circumstances that led to the
execution of the purchase agreement were tainted by procedural unconscionability.3
Accordingly, the trial court erred when it dismissed plaintiff’s claim for breach of express
warranties because the express warranties were fundamentally incompatible with the warranty
disclaimers such that the warranty disclaimers were inoperative. But the court did not err when it
dismissed plaintiff’s claim for a breach of implied warranties because the “as is” clause properly
disclaimed any such warranties.
3 To invalidate a contract provision on the basis of unconscionability, a plaintiff is required to
demonstrate both substantive and procedural unconscionability. Taylor, 117 Ohio St 3d at 359.
Because plaintiff cannot show that the agreement was procedurally unconscionable, he cannot
demonstrate that disclaimer of implied warranties was unenforceable, and we need not reach the
issue of whether the disclaimer was substantively unconscionable. Id. See also Ohio Rev Code
Ann 1302.15 (West).

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V. FRAUDULENT AND INNOCENT MISREPRESENTATION
Next, plaintiff contends that the trial court erred when it adopted defendants’ arguments
and dismissed his misrepresentation claim, which includes both fraudulent misrepresentation and
innocent misrepresentation. We disagree.
Michigan law recognizes several interrelated but distinct causes of action under the general
rubric of “fraud.” Titan Ins Co v Hyten, 491 Mich 547, 555; 817 NW2d 562 (2012). The first
such claim is fraudulent misrepresentation, also called actionable fraud, in which a plaintiff may
recover damages suffered in reliance on another party’s false statements. Id. at 555-558. To
prevail on a claim of fraudulent misrepresentation, a plaintiff must prove:
(1) That defendant made a material representation; (2) that it was false; (3) that
when he made it he knew that it was false, or made it recklessly, without any
knowledge of its truth and as a positive assertion; (4) that he made it with the
intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance
upon it; and (6) that he thereby suffered injury. [Id. at 555 (quotation marks and
citation omitted).]
In order to rescind a contract on the basis of fraudulent inducement, a party must prove these same
six elements. Bank of America, NA v Fidelity Nat’l Title Ins Co, 316 Mich App 480, 499; 892
NW2d 467 (2016).
Innocent misrepresentation, in contrast, requires a plaintiff to prove the following elements:
“(1) the defendant made a material representation, (2) the representation was false, (3) the
defendant made it with the intention of inducing reliance by the plaintiff, (4) the plaintiff acted in
reliance on the representation, and (5) the plaintiff thereby suffered an injury that benefited the
defendant.” Abdelmaguid v Dimensions Ins Group, LLC, 350 Mich App 214, 228-229; 31 NW3d
833 (2024) (quotation marks and citation omitted).
“Because fraud must be pleaded with particularity, and is not to be lightly presumed, but
must be clearly proved, by clear, satisfactory and convincing evidence, trial courts should ensure
that these standards are clearly satisfied with regard to all of the elements of a fraud claim.” Cooper
v Auto Club Ins Ass’n, 481 Mich 399, 414; 751 NW2d 443 (2008) (quotation marks and citations
omitted).
Michigan has adopted the economic loss doctrine, a judicially created limitation on tort
actions that seek to recover economic damages resulting from contractual breaches. Quest
Diagnostics, Inc v MCI WorldCom, Inc, 254 Mich App 372, 376-377; 656 NW2d 858 (2002).
Essentially, the economic loss doctrine stands for the proposition that “economic losses that relate
to commercial transactions are not recoverable in tort.” Id. at 376. Our Supreme Court has
explained:
The economic loss doctrine, simply stated, provides that [w]here a
purchaser’s expectations in a sale are frustrated because the product he bought is
not working properly, his remedy is said to be in contract alone, for he has suffered
only economic losses. This doctrine hinges on a distinction drawn between
transactions involving the sale of goods for commercial purposes where economic

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expectations are protected by commercial and contract law, and those involving the
sale of defective products to individual consumers who are injured in a manner
which has traditionally been remedied by resort to the law of torts. [Neibarger, 439
Mich at 520-521 (quotation marks and citations omitted).]
The doctrine attempts to prevent contract law from drowning in a sea of tort. Id. at 528. “This
Court has extended the economic loss doctrine beyond commercial transactions involving
sophisticated users to the sale of consumer goods, even when the plaintiff consumer enters into a
transaction with an entity of greater knowledge or bargaining power.” Quest Diagnostics, Inc, 254
Mich App at 378.
When the plaintiff alleges fraud in connection with a commercial transaction, the economic
loss doctrine applies when the claimed fraudulent representations “are indistinguishable from the
terms of the contract and warranty that [the] plaintiff alleges were breached.” Huron Tool, 209
Mich App at 375. When the fraudulent representations concern the quality and characteristics of
the goods at issue in the contract, the plaintiff will be limited to the contractual remedies in the
UCC. Id.
There is a limited exception to the economic loss doctrine for claims of fraud in the
inducement, wherein “the ability of one party to negotiate fair terms and make an informed
decision is undermined by the other party’s fraudulent behavior.” Id. at 372-373. When, however,
“the only misrepresentation by the dishonest party concerns the quality or character of the goods
sold, the other party is still free to negotiate warranty and other terms to account for possible
defects in the goods.” Id. at 373. Consequently, when evaluating the application of the doctrine,
a reviewing court must look within the four corners of the complaint and examine whether the
alleged misrepresentations are extraneous to the contractual dispute such that they are
“independent of defendants’ breach of contract and warranty.” Id. at 375.
Plaintiff contends that the trial court erred when it adopted defendants’ argument that
summary disposition of his misrepresentation claim was warranted under the economic loss
doctrine. We disagree.
In Huron Tool, this Court instructed that the reviewing court “look to the four corners of
plaintiff’s complaint, accept all factual allegations as true, and determine whether the fraud claim
falls outside the ambit of the economic loss doctrine.” Id. at 375. Applying these principles and
reviewing plaintiff’s complaint, it is clear that the fraud claim is not viable because the alleged
misrepresentations that form the basis of plaintiff’s fraud claim are precisely the same as those
alleged in the breach-of-warranty claim, namely, the Corvette’s condition, its drivability, and its
safe restoration.
It is clear from the face of the complaint that the fraud allegations are not extraneous to the
contractual dispute because the allegations of fraud are so intertwined with the allegations of
breach of the express warranties as to be indistinguishable. Because the alleged fraudulent
representations concern the quality and characteristics of the Corvette, which is the subject of the
purchase agreement, plaintiff is limited to the contractual remedies in the UCC. Huron Tool, 209

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Mich App at 375. Accordingly, the trial court did not err when it held that summary disposition
of plaintiff’s fraud claim was warranted under the economic loss doctrine.4
VI. MCPA
Next, plaintiff contends that the trial court erred when it dismissed his claim under the
MCPA. We agree.
“The Consumer Protection Act was enacted to provide an enlarged remedy for consumers
who are mulcted by deceptive business practices . . . .” Dix v American Bankers Life Assurance
Co of Florida, 429 Mich 410, 417; 415 NW2d 206 (1987). “The MCPA prohibits the use of unfair,
unconscionable, or deceptive methods, acts, or practices in the conduct of trade or commerce.”
Zine v Chrysler Corp, 236 Mich App 261, 270-271; 600 NW2d 384 (1999). The statute is remedial
in nature, designed “to prohibit unfair practices in trade or commerce and must be liberally
construed to achieve its intended goals.” Newton v West, 262 Mich App 434, 437; 686 NW2d 491
(2004) (quotation marks and citation omitted).
As relevant to the present case, MCL 445.903(1) includes within the definition of an
unlawful, unfair, unconscionable, or deceptive practice representations that goods are a particular
style or model when they are of another, MCL 445.903(1)(e), omissions of material facts that tend
to mislead or deceive the consumer and that could not reasonably be known to the consumer,
MCL 445.903(1)(s), and making factual representations to cause a person to have a reasonable
belief when the facts or statements are to the contrary, MCL 445.903(1)(bb).
Courts consider the provisions of the MCPA “with reference to the common-law tort of
fraud.” Zine, 236 Mich App at 282-283 (quotation marks and citation omitted). Some of the
MCPA’s prohibited practices involve affirmative representations, while others involve omissions.
Id. at 281-282. Moreover, a single act may violate more than one subsection of the MCPA. Id.
at 282. A person who suffers a loss under the MCPA is entitled to “actual damages or $250.00,
whichever is greater . . . .” MCL 445.911(2).
In this case, defendants moved for summary disposition of plaintiff’s MCPA claim because
Ohio law applied to the transaction such that the Michigan-specific cause of action failed as a
matter of law. As discussed above, this argument is without merit and was not a proper basis for
the trial court to dismiss plaintiff’s MCPA claim.
On appeal, however, defendants now argue that plaintiff’s MCPA claim fails because the
claim relates to warranties that were properly disclaimed by the purchase agreement. Defendants,
as the appellees, can argue alternative grounds for affirmance without filing a cross-appeal, but to
4 Because summary disposition of plaintiff’s misrepresentation claim was warranted under the
economic loss doctrine, we need not reach plaintiff’s remaining arguments regarding puffery and
reasonable reliance because they are moot. An issue is rendered moot if it presents nothing more
than an abstract question of law, the determination of which would not result in the granting of
any further relief. Detroit Media Group, LLC v Detroit Bd of Zoning Appeals, 339 Mich App 38,
63; 981 NW2d 88 (2021).

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properly preserve a claim for appeal, the reasons must first be presented to the lower court.
Riverview v Sibley Limestone, 270 Mich App 627, 633 n 4; 716 NW2d 615 (2006). “If a litigant
does not raise an issue in the trial court, this Court has no obligation to consider the issue.” Tolas
Oil & Gas Exploration Co v Bach Servs & Mfg, LLC, 347 Mich App 280, 289; 14 NW3d 472
(2023). Consequently, we decline to address this argument for the first time on appeal.5
VII. UNJUST ENRICHMENT
Finally, plaintiff asserts that the trial court erred when it dismissed his claim for unjust
enrichment. Plaintiff asserts that he is only pursuing his unjust-enrichment claim against Matthew
and Melanie, who were not parties to the purchase agreement. In light of the record, we agree.
Under the equitable doctrine of unjust enrichment, “[a] person who has been unjustly
enriched at the expense of another is required to make restitution to the other.” Kammer Asphalt
Paving Co v East China Twp Sch, 443 Mich 176, 185; 504 NW2d 635 (1993) (quotation marks
and citation omitted; alteration in original). To maintain a claim for unjust enrichment, a plaintiff
must demonstrate “(1) the receipt of a benefit by the defendant from the plaintiff and (2) an
inequity resulting to the plaintiff because of the retention of the benefit by the defendant.” Morris
Pumps v Centerline Piping, Inc, 273 Mich App 187, 195; 729 NW2d 898 (2006). The claim is
“grounded in the idea that a party shall not be allowed to profit or enrich himself inequitably at
another’s expense.” Wright v Genesee Co, 504 Mich 410, 417-418; 934 NW2d 805 (2019)
(quotation marks and citation omitted). Consequently, “[e]ven where a person has received a
benefit from another, he is liable to pay therefor only if the circumstances of its receipt or retention
are such that, as between the two persons, it is unjust for him to retain it.” NL Ventures VI
Farmington, LLC v Livonia, 314 Mich App 222, 241; 886 NW2d 772 (2016) (quotation marks and
citation omitted). The law of unjust enrichment “corrects for a benefit received by the defendant
rather than compensating for the defendant’s wrongful behavior.” Wright, 504 Mich at 422. “The
remedy for unjust enrichment is restitution.” Id. at 418. Restitution “restores a party who yielded
excessive and unjust benefits to his or her rightful position.” Id. at 419.
The theory underlying recovery for unjust enrichment is that “the law will imply a contract
in order to prevent unjust enrichment when one party inequitably receives and retains a benefit
from another.” Morris Pumps, 273 Mich App at 194. Courts, however, will not imply a contract
when there is already an express contract between the parties. Id. “Generally, an implied contract
5 At oral argument on the motion, the trial court raised numerous issues regarding the payment of
taxes, the issuance of title, the odometer reading, and the odometer knob in light of the expert
report addressing the Corvette’s condition. The parties offered some answers, referencing the
purchase agreement terms but did not file supplemental briefs in light of the trial court’s questions.
Additionally, the documentary evidence offered in support of summary disposition consisted of
affidavits from plaintiff and Matthew. There is no indication that the parties’ depositions were
taken. And the content of Matthew’s affidavit did not state that his statements about plaintiff’s
career and professional stature were premised on personal knowledge. See MCR 2.119(B)(1)(a).
In light of the limited record, we decline to address this issue, particularly when the trial court did
not receive definitive answers to the questions posed.

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may not be found if there is an express contract between the same parties on the same subject
matter.” Id. (quotation marks and citation omitted).
Here, the parties submitted a copy of the purchase agreement. Although the document
reflects that the agreement was made with Harwood Motors, the signature representing Harwood
Motors is not legible and the capacity of the signatory is not visible on the document. The parties
did not address this deficiency or the ability to disregard a corporate entity for wrongs or unjust
injury. See Florence Cement Co v Vettraino, 292 Mich App 461, 469; 807 NW2d 917 (2011).
Stated otherwise, defendants did not adequately make and support entitlement to summary
disposition of this claim with documentary evidence. Quinto, 451 Mich at 358. Accordingly, the
trial court erred in granting summary disposition of the cause of action for unjust enrichment.6
Accordingly, we affirm the trial court’s grant of summary disposition of plaintiff’s claims
for breach of implied warranties and fraudulent and innocent misrepresentation. We reverse the
trial court’s grant of summary disposition of plaintiff’s claims for breach of an express warranty,
violations of the MCPA, and unjust enrichment as to Matthew and Melanie. The case is remanded
for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Anica Letica
/s/ Michelle M. Rick
/s/ Kristina Robinson Garrett
6 Defendants did not separately contest whether plaintiff adequately pleaded or presented evidence
that would support the elements of an unjust-enrichment claim against the individual defendants,
i.e., (1) the receipt of a benefit by Matthew and Melanie from plaintiff, and (2) an inequity resulting
to plaintiff because of their retention that benefit. Accordingly, we express no opinion on the
merits of this claim outside of the narrow argument raised on appeal.

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