Tidwell v. Jensen

2026 UT App 13

THE UTAH COURT OF APPEALS

RICHARD TIDWELL,
Appellant,
v.
BLAKE JENSEN AND MICHAEL TOSCANO,
Appellees.

Opinion
No. 20231081-CA
Filed January 29, 2026

Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 180900259

Ronald Ady, Attorney for Appellant
T. Jake Hinkins, Attorney for Appellees

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1 A used car dealership owned by Blake Jensen and
represented by his agent Michael Toscano bought a Toyota
Tacoma at auction and then sold it to Richard Tidwell under the
terms of a contract of sale. Tidwell later discovered extensive rust
damage to the frame, and he sued Jensen and Toscano for fraud,
negligent misrepresentation, and violations of the Utah
Consumer Sales Practices Act (UCSPA).

¶2 At trial, after Tidwell finished presenting his case, Jensen
and Toscano moved for judgment as a matter of law on all of
Tidwell’s claims. The district court granted the motion,
concluding that (1) there was insufficient evidence to support
Tidwell’s fraud and negligent misrepresentation claims because
Tidwell could not have reasonably relied on Jensen’s and
Toscano’s representations or sustained compensable damages
Tidwell v. Jensen

given the terms of the contract of sale and (2) Tidwell’s UCSPA
claim failed because the UCSPA required him to prove that Jensen
and Toscano knew or intended their representations about the
Tacoma to be false and Tidwell failed to put on evidence of such
knowledge or intent.

¶3 Tidwell appeals, contending as to his fraud and negligent
misrepresentation claims that the evidence at trial was sufficient
to support a finding that he reasonably relied on
misrepresentations by Jensen and Toscano notwithstanding the
terms of the contract of sale. He further asserts that his UCSPA
claim did not require proof that Jensen and Toscano knew or
intended their representations to be false, only that they knew or
intended themselves to be making the representations. Tidwell’s
contentions are well taken. We therefore reverse the grant of
judgment as a matter of law and remand this case for a new trial.

BACKGROUND 1

B. Jensen Auto Sales

¶4 Jensen does business as B. Jensen Auto Sales, and Toscano
is his agent. In May 2017, Toscano appeared virtually at the
Manheim Auto Auction as a representative for B. Jensen Auto
Sales. He was interested in the 2004 Toyota Tacoma truck at issue
in this case.

The National Auto Auction Association’s Arbitration Policy

¶5 Dealers and dealers’ representatives who attend
Manheim’s auctions agree to have read the National Auto

1. Our review of a district court’s grant of judgment as a matter of
law requires us to “examin[e] all evidence in a light most
favorable to the non-moving party,” who in this case is Tidwell.
Montgomery v. Gardiner, 2025 UT App 146, ¶ 30, 579 P.3d 1083
(cleaned up). We recite the facts accordingly.

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Tidwell v. Jensen

Auction Association’s Arbitration Policy (the Arbitration Policy)
and to be bound by its terms. Any dispute between a buyer and
seller at auction that arises from the purchase or sale of a vehicle
through the auction must be resolved through an arbitration
conducted according to the terms of the Arbitration Policy. Jensen
acknowledged that he had “probably” read the Arbitration
Policy, and Toscano recalled having read at least the portion of
the Arbitration Policy that outlines buyers’ responsibilities.

¶6 Under the Arbitration Policy, the seller at auction is
required to disclose “permanent structural damage” and “any
structural alterations” to the vehicle, including any “[a]ltered
suspension that requires the structure to be modified from its
[original] form” and “[c]orrosion of structural components
determined by,” among other things, “the affected area no longer
possess[ing] its absorption or deflection properties.” Nat’l Auto
Auction Ass’n, Arbitration Policy § VIII(3) (effective Apr. 17, 2017),
https://diminishedvalueofgeorgia.com/wp-content/uploads/NA
AA_Arbitration_Policy_for_Auction_Transactions-2017.pdf[http
s://perma.cc/ZD9D-JAEZ]. “Prior to placing bids, the [b]uyer is
responsible for inspecting” and for “reviewing all pertinent
information” about vehicles on which they place bids, including
“announcements, disclosures, condition reports,” and “sale lights
. . . , which identify various sale conditions.” Id. § IV(1).

¶7 The Arbitration Policy explains that auctions will have “a
standard light/video display system to describe the condition
and/or disclosures related to the vehicle being sold.” Id. § II. For
instance, a yellow light “is an indication to the [b]uyer that [the]
Auctioneer or Selling Representative has made announcements
that qualify/clarify the condition or equipment and limit
arbitration of [the] vehicle.” Id. § II(2). “If a structural issue is
properly disclosed, the vehicle may only be arbitrated for
improper repair of the designated area, existing permanent
damage or repairs to other areas of the vehicle not disclosed, or
for failure to be within the [Used Vehicle Measurement Standard]
that was verified by visual inspection.” Id. § VIII(4)(a).

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B. Jensen Auto Sales Purchases the Tacoma

¶8 Prior to purchasing the Tacoma at the Manheim auction in
May 2017, Toscano had access to and looked at the Manheim
Electronic Condition Report (ECR) for the Tacoma, which
contained the note “ALT SUSPENSION/STRUCTURAL.” As the
Tacoma went on the auction block, a yellow light was illuminated
and an announcement was made and displayed indicating that
the Tacoma had the condition “ALT SUSPENSION/
STRUCTURAL.”

¶9 Toscano purchased the Tacoma and was given a bill of sale,
which also noted the condition of the Tacoma as “ALT
SUSPENSION/STRUCTURAL.” Jensen did not later seek to
arbitrate the sale of the vehicle.

B. Jensen Auto Sales Sells the Tacoma to Tidwell

¶10 B. Jensen Auto Sales posted an ad for the Tacoma online,
and on June 23, 2017, Tidwell came to the dealership to inquire
about the truck. Toscano showed Tidwell the Tacoma. Tidwell
repeatedly asked Toscano about the frame, and Toscano told him
“it was fine.” Toscano told Tidwell that “they” (apparently
meaning the auction) had sprayed a rubberized coating on the
frame for “extra rust protection.” Tidwell “tried looking at” the
frame, but Toscano stopped him, pointing to a spot that was in
good condition and had not been sprayed and saying, “That’s
what the rest of the frame looks like.” Toscano also told Tidwell
that the truck had “passed inspection.” Tidwell did not take the
truck for a test drive, but he expressed a desire to obtain an
independent inspection. Toscano dissuaded him, saying, “You’ll
waste $50. It’s been inspected already. So why?” Toscano told
Tidwell that he needed to leave for another commitment, and
Tidwell indicated that he would probably return the following
morning to purchase the truck.

¶11 Tidwell returned the following morning. The dealership
had, that morning, obtained a third-party safety inspection of the

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Tacoma. Tidwell talked to Toscano about his plans to use the
Tacoma to go hunting in the mountains, and Toscano replied that
the truck would “do great,” while Jensen—who was sitting
nearby—said it would “climb walls.” Tidwell again wanted to
take the Tacoma for an inspection, but Toscano indicated that
another person interested in the truck was on his way to the
dealership and that the dealership would sell it to whomever was
ready to purchase it first.

¶12 Tidwell began filling out paperwork with Toscano to
purchase the Tacoma. Although not originally displayed in the
Tacoma’s window, a Buyer’s Guide was produced by Toscano
while Tidwell was signing papers, and Tidwell signed it. The
Buyer’s Guide stated, “IMPORTANT: Spoken promises are
difficult to enforce. Ask the dealer to put all promises in writing.”
Also on the Buyer’s Guide, a box was marked indicating that the
sale was “AS IS—NO WARRANTY.” Below this box was printed,
“YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer
assumes no responsibility for any repairs regardless of any oral
statements about the vehicle.”

¶13 Tidwell also signed a Motor Vehicle Contract of Sale (the
Contract). The Contract contains the following notice: “The
information you see on the window form [Buyer’s Guide] for this
vehicle is part of [the Contract]. Information on the window form
overrides any contrary provisions in the [Contract].” (First
brackets in original.) The back page of the Contract is labelled
“Conditions and Warranties.” One of the terms contained therein
says,

NO WARRANTIES, EXPRESS OR IMPLIED, ARE
MADE OR WILL BE DEEMED TO HAVE BEEN
MADE BY EITHER SELLER OR THE
MANUFACTURER . . . EXCEPTING ONLY THE
CURRENT PRINTED WARRANTY . . . , WHICH
WARRANTY . . . SHALL BE EXPRESSLY IN LIEU
OF ANY OTHER WARRANTY, EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO

20231081-CA 5 2026 UT App 13
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ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE . . . .

¶14 Tidwell purchased the Tacoma for $11,000.

Tidwell Discovers the Tacoma’s Frame is Rusted Out

¶15 Several weeks later, Tidwell drove the Tacoma on the
freeway for the first time and noticed that “it was kind of
wobbling” and “not going straight.” So he took the truck to an
auto repair shop and left it for the shop to “[f]igure out what was
going on.” A state-certified safety inspector from the shop
(Inspector) later called Tidwell and told him the “frame [was]
cancered out.” Inspector reported that the frame was so rusted
that it could break at any time and that the truck was “just not
safe” for anyone to drive. Tidwell left the truck parked at the auto
repair shop “for a couple of months” before retrieving it.

¶16 The same day Inspector called Tidwell, Tidwell called
Toscano and told him the Tacoma’s frame was “rusted out” and
could not safely be driven. Through several subsequent phone
conversations, Tidwell indicated that he wanted to return the
truck and get his money back. Toscano told him “the money [was]
long gone” and encouraged him to sell the truck to someone else.
At that point, Tidwell retained counsel and filed the present
lawsuit.

The Complaint and Trial

¶17 Tidwell alleged claims against Jensen and Toscano for
fraud, negligent misrepresentation, and violations of the UCSPA. 2

2. Tidwell initially alleged additional claims against Jensen,
Toscano, and others as well, but he later stipulated to the
dismissal of all these additional claims except three that he
(continued…)

20231081-CA 6 2026 UT App 13
Tidwell v. Jensen

¶18 The case proceeded to a three-day jury trial. Tidwell called
Jensen, Toscano, Inspector, the manager of the auto shop where
Inspector worked (Manager), and Tidwell’s daughter as
witnesses. Tidwell also testified, relating the facts set forth above
regarding his interactions with Jensen and Toscano.

¶19 Jensen testified regarding the provisions of the Arbitration
Policy that are set forth above. He also acknowledged that when
purchasing a vehicle at a Manheim auction, it was his
“responsibility” to review the announcements and disclosures
regarding the vehicles he purchased. He initially testified that he
interprets an “alt suspension/structural” announcement at
auction to mean the vehicle’s suspension has been altered and not
that the vehicle has structural damage, explaining that he would
expect structural damage to be announced as “structural
damage.” He also said that the Tacoma had been “lifted” and,
thus, that it “fit . . . the announcement.” Later, however, he
testified, as follows, that an “alt suspension/structural”
announcement can refer to “structural damage”:

Q. So according to these arbitration policies, “alt
suspension/structural” is not limited to lift
kits, is it?

A. Altered suspension? No.

Q. It also includes structural damage to the
vehicle, correct? . . .

A. From the altered suspension?

brought against the shop that inspected the Tacoma for B. Jensen
Auto Sales on the morning Tidwell purchased the Tacoma. The
court ultimately dismissed those three claims, and Tidwell does
not challenge that ruling. Accordingly, we do not discuss the
additional claims further.

20231081-CA 7 2026 UT App 13
Tidwell v. Jensen

Q. So when you—

A. Yes. Yes.

Q. Yes. So when you testified . . . that “alt
suspension/structural” referred to a lift kit—
that’s what you understood it to mean—
that’s not correct is it?

A. It is correct.

Q. But “alt suspension/structural” also refers to
structural damage, correct?

A. It can.

¶20 Jensen further testified that the Tacoma had undergone a
post-sale inspection by Manheim and passed. But he
acknowledged that Manheim’s post-sale inspection policy stated
that “items disclosed by the seller will not be inspected and/or
guaranteed under” the post-sale inspection.

¶21 During Jensen’s testimony, an issue arose concerning the
admissibility of a Toyota “Case Activity Report.” The report
apparently showed that Toyota headquarters received two calls
on June 14, 2017—after B. Jensen Auto Sales bought the Tacoma
at auction and nine days before Tidwell came to B. Jensen Auto
Sales—about the Tacoma. The notes for the first call indicate that
the caller claimed to be the Tacoma’s owner, said the frame was
“cracking every[where] and he had the spray done,” and was
seeking repair of the rusted frame. The notes for the second call
indicate that it came from someone “looking to purchase this
vehicle” who “want[ed] to know if [the] frame could be replaced
by [T]oyota.”

¶22 When Tidwell’s counsel attempted to question Jensen
about the report, Jensen’s counsel objected, arguing that the
document was hearsay and that a proper foundation for the

20231081-CA 8 2026 UT App 13
Tidwell v. Jensen

document had not been laid. Tidwell’s counsel responded that the
document was not hearsay because it was a regularly kept
business record, as indicated by an affidavit from a Toyota
representative, and that Jensen could read the document to the
jury because he was the owner and in sole possession of the truck
at the time of the calls. The court ruled that because Jensen had
never seen the document and did not provide it, there was
insufficient foundation “for him to testify from the document.”
Tidwell’s counsel indicated that he would still like to have the
document admitted, even if Jensen could not read from it. The
court—after noting that the “business records affidavit” Tidwell’s
counsel said Toyota had provided to authenticate the document
was not “in front of” the court—responded, “No. . . . There isn’t
sufficient foundation laid for this.”

¶23 Toscano then testified. He said that his understanding of
the “alt suspension/structural” announcement was that it
indicated only an altered suspension, not frame damage, and that
an announcement for frame damage would say “frame damage.”
He also stated that the grade Manheim reported for the Tacoma—
3.4—would have been 1.9 or lower if it had frame damage. He said
there was no reason to arbitrate the Tacoma because the truck
arrived at the dealership looking “beautiful” and having “no
troubles.”

¶24 Toscano further testified that the Buyer’s Guide was
displayed in the Tacoma’s window when Toscano showed
Tidwell the Tacoma. Toscano denied that Tidwell told Toscano he
planned to use the truck to go hunting. Toscano also denied
saying “the Tacoma would go up the back roads used for hunting,
no problem.” Toscano said he did not discourage Tidwell from
visually inspecting the Tacoma’s frame or assure him that the
frame was in good condition. He insisted that although he did
have to leave the dealership for another commitment while
Tidwell was there the first time, he did not tell Tidwell he could
not take the Tacoma for a test drive. Rather, Toscano said that
Tidwell asked to take the truck overnight, that taking the truck
overnight was not permitted, and that Tidwell could have taken

20231081-CA 9 2026 UT App 13
Tidwell v. Jensen

the truck the following day for an independent inspection.
Toscano also denied warning Tidwell, in light of Tidwell’s desire
to take the Tacoma for an inspection, that another potential buyer
was coming for the Tacoma.

¶25 Toscano testified that Tidwell noticed the rubberized
undercoating—a coating Toscano said some people put on lifted
trucks to make the exposed frame “look better”—but that Toscano
did not see a spot where the undercoating was missing. Toscano
also agreed that he had “assured Mr. Tidwell, prior to his signing
the papers, that the vehicle passed [a] safety emissions
inspection,” although he denied telling Tidwell on the evening
before the sale that this had already taken place and claimed,
instead, to have said as much on the morning Tidwell returned to
purchase the Tacoma, after the safety inspection had been
completed. He further confirmed that Jensen told Tidwell
“something like,” “Yeah, the truck will get you out of anything.
That [truck] will climb a wall if it has to.”

¶26 Inspector testified regarding photos taken of the Tacoma
while it was in the repair shop, which were submitted to the jury
as exhibits and showed obvious and significant rust damage. He
stated that when he inspected the Tacoma, the frame was cracked
and the vehicle “looked like it was about ready to break apart.”
He explained that although he did not inspect the Tacoma until
several weeks after Tidwell purchased it, he had never “seen a
vehicle where rust damage ha[d] occurred in the course of six
weeks.” Inspector opined that the Tacoma “was unsafe to drive.”
And he acknowledged that someone would have to climb
underneath the Tacoma to see the damage.

¶27 Manager testified that the Tacoma’s frame was cracked and
“severely rusted” and that he informed Tidwell the vehicle was
unsafe and should never have “been able to be safety inspected
and passed.” He also testified that he did not know who applied
the rubberized undercoating but that “[i]t looked like it was used
to cover up the rust and the cracks in the frame.” Manager
acknowledged on cross-examination that the Tacoma’s CARFAX

20231081-CA 10 2026 UT App 13
Tidwell v. Jensen

Vehicle History Report indicated that the vehicle passed
inspections both before and after it was brought to his shop and
that various entries in the CARFAX report did not catalog any
frame damage.

¶28 Tidwell’s daughter testified that she had called Toscano
about the truck and he told her that “he was not able to help,” “his
hands were tied,” and “returning the truck and getting money
back” was not an option.

Judgment as a Matter of Law

¶29 At the close of Tidwell’s evidence, Jensen and Toscano
moved for judgment as a matter of law under rule 50 of the Utah
Rules of Civil Procedure. The court granted the motion orally the
next day. In doing so, it highlighted that the Contract stated that
no warranties applied and that the Contract incorporated the
Buyer’s Guide, which indicated that the Tacoma was being sold
“as is, no warranty” and that the purchaser would “pay for all
costs for any repairs.” The court then reasoned,

[W]hile the tort claims are outside of the [C]ontract
. . . , the [C]ontract is still relevant to establish the
context in which statements were made about the
subject vehicle.

And while no party has raised or argued the
applicability of the economic loss rule, . . . [and] my
ruling is not dependent on the economic loss rule[,]
. . . the policy of the economic loss rule is still
instructive.

That is, contract terms define and govern the
subject of the transaction, as they are the best
expression of the parties’ agreement. They’re
relevant to analyzing the tort claims in this case,
since those tort claims arise from the subject of the
contractual transaction.

20231081-CA 11 2026 UT App 13
Tidwell v. Jensen

I find that a reasonable jury would not have
a legally sufficient evidentiary basis to find for Mr.
Tidwell on his claims for fraud or negligent
misrepresentation against Mr. Jensen or Mr.
Toscano for two reasons.

First, Mr. Tidwell could not have reasonably
relied on statements Mr. Toscano, or anyone with B.
Jensen Auto Sales, made in conjunction with the
sale[] [b]ecause Mr. Tidwell acknowledged, in
entering into the [C]ontract, that he was not relying
on oral statements made during the sale, and that no
warranties were given.

Second, both causes of action have the
required element that Mr. Tidwell suffered damage
as a result of relying on statements or
representations made to him about the vehicle. But
Mr. Tidwell’s damages, to the extent they relate to
repairs of the vehicle, were expressly waived by him
in the [C]ontract provisions.

¶30 The court then addressed Tidwell’s UCSPA claim in
relevant part as follows:

The [UCSPA] requires that a supplier act
knowingly or intentionally . . . . So for . . . example,
there must be evidence that defendants knowingly
or intentionally indicated that the subject of a
consumer transaction . . . [had certain] performance
characteristics, accessories, uses, or benefits, [when]
it [did] not.

Said differently, Mr. Tidwell must have
presented evidence that the defendants indicated
that the subject vehicle had a particular . . .

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Tidwell v. Jensen

mechanical condition or use, and knew it did not
have such condition or use.

The requisite mental state applies to both
making the indication—that is the statement—and
the statement’s falsity. A mistake of fact or
ignorance of fact, in my reading of the statute, is not
enough to be a violation of the [UCSPA].

Mr. Tidwell has not presented evidence that
any of the defendants actually knew that the subject
vehicle had frame damage, or was unsuitable for
Mr. Tidwell’s use. Instead, he has argued that they
should have known, or made reasonable
investigation before making the statements. But
that’s not enough under the [UCSPA].

The Posttrial Proceedings

¶31 The court memorialized its foregoing ruling and reasoning
in an Order Granting Defendants’ Motion for Judgment as a
Matter of Law, which dismissed Tidwell’s claims against Jensen
and Toscano with prejudice. Tidwell then filed a timely motion
for a new trial under rule 59 of the Utah Rules of Civil Procedure,
which the court orally denied at a hearing on the motion. Tidwell
then filed a notice of appeal, after which the district court entered
its written order denying Tidwell’s motion for a new trial. 3

3. Because Tidwell filed no new or amended notice of appeal after
the district court entered its written order denying his rule 59
motion, we are precluded from considering issues arising solely
from the rule 59 motion. See Utah R. App. P. 4(b)(2) (stating that a
“notice of appeal filed after announcement or entry of judgment,
but before entry of an order disposing of” a rule 59 motion for a
new trial is “effective to appeal only the underlying judgment”).
(continued…)

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Tidwell v. Jensen

ISSUE AND STANDARD OF REVIEW

¶32 On appeal, Tidwell argues that the district court erred in
granting Jensen and Toscano’s motion for judgment as a matter of
law. “This court’s standard of review of a judgment as a matter of
law is the same as that imposed upon a trial court. A trial court is
justified in granting a judgment as a matter of law only if,
examining all evidence in a light most favorable to the non-
moving party, there is no competent evidence that would support
a verdict in the non-moving party’s favor.” Sheppard v. Geneva
Rock, 2021 UT 31, ¶ 24, 493 P.3d 632 (cleaned up). 4

ANALYSIS

I. Judgment As a Matter of Law

¶33 Tidwell asserts that the district court erred in granting
Jensen and Toscano’s motion for judgment as a matter of law.
First, he argues that his tort claims were improperly dismissed
because (1) notwithstanding the language in the Contract
disclaiming warranties “regardless of any oral statements about

As a practical matter, however, this does not affect the scope of
our analysis because the arguments Tidwell made in his rule 59
motion were also addressed in the court’s order granting Jensen
and Toscano’s motion for judgment as a matter of law, from
which Tidwell properly appeals.

4. Tidwell also argues that the district court abused its discretion
by excluding the Toyota Case Activity Report. Because we reverse
based on the evidentiary record before us, we need not rule on the
admissibility of the Case Activity Report. We note only that the
court’s inadmissibility ruling appears to have been based
ultimately on the lack of an adequate foundation. On remand,
Tidwell may again seek admission of the report. If he does, the
court should evaluate—along with any other relevant
considerations—the foundation laid at that time.

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the vehicle,” he produced evidence at trial sufficient to support a
finding that he reasonably relied on misrepresentations by Jensen
and Toscano about the Tacoma and (2) he did not disclaim tort
damages by entering into the Contract. Second, Tidwell contends
that his UCSPA claim was improperly dismissed because that
statute does not require an intent to deceive. Tidwell’s arguments
are well taken, and we address each of them in turn.

A. Tidwell’s Tort Claims

1. The Contract did not as a matter of law preclude Tidwell’s
reasonable reliance on Jensen’s and Toscano’s
representations

¶34 Tidwell contends that the district court erred by
concluding as a matter of law that because of statements made in
the Contract, he could not have reasonably relied on Jensen’s and
Toscano’s representations. 5 We agree.

5. Tidwell frames his argument by saying that the Contract does
“not state a disclaimer of liability in tort” and that the Contract
“cannot operate as a waiver of [Jensen’s and Toscano’s] liability
in tort.” But the district court did not conclude that the Contract
constituted an outright disclaimer or waiver of Tidwell’s tort
claims; rather, it acknowledged that “the tort claims are outside of
the [C]ontract.” The court reasoned, however, that the terms of
the Contract are “relevant to analyzing the tort claims” and that
in light of certain terms in the Contract, “a reasonable jury would
not have a legally sufficient evidentiary basis to find” that Tidwell
“reasonably relied on statements” made by Jensen and Toscano
outside the Contract. Although Tidwell’s argument as articulated
may misapprehend the district court’s analysis, because his
argument is a challenge to the court’s ruling, we construe it
(particularly in light of its reliance on Robinson v. Tripco
Investment, Inc., 2000 UT App 200, 21 P.3d 219—see infra ¶¶ 36–42)
to be that the court erred by concluding as a matter of law that
(continued…)

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¶35 In ruling on Jensen and Toscano’s motion for judgment as
a matter of law, the district court highlighted the language in the
Contract stating that no warranties applied and the language of
the Buyer’s Guide indicating that the Tacoma was being sold “as
is, no warranty.” The court then reasoned that those contractual
statements were “the best expression of the parties’ agreement”
and, thus, that “a reasonable jury would not have a legally
sufficient evidentiary basis to find” that Tidwell “reasonably
relied on statements [Toscano], or anyone with B. Jensen Auto
Sales, made in conjunction with the sale” outside the Contract. 6

¶36 In support of a contrary conclusion, Tidwell points to
Robinson v. Tripco Investment, Inc., 2000 UT App 200, 21 P.3d 219.
In that case, a buyer purchased an apartment building from a
seller. See id. ¶ 4. When the buyer’s manager inspected the
building with the seller before purchasing it, “he observed a
sloping of the concrete floor, cracks in the plaster, gaps between

because of statements made in the Contract, Tidwell could not
have reasonably relied on Jensen’s and Toscano’s representations.

6. In articulating its reasoning, the district court said that it found
“the policy of the economic loss rule [to be] instructive.” But it
also said that its “ruling [was] not dependent on the economic loss
rule.” Because the district court did not decide whether the
economic loss rule precludes Tidwell’s fraud and negligent
misrepresentation claims, we do not reach that potential question.
See generally Richmond v. Bateman, 2024 UT App 103, ¶ 31, 554 P.3d
341 (“We are mindful that we are a court of review, not of first
view.” (cleaned up)). On remand, the parties remain free to argue
the applicability of the economic loss rule. In that regard, we note
only that our supreme court has “conclude[d] that the economic
loss rule applies where a party’s tort claims are entirely
duplicative of its contract claims,” but that it has “not foreclose[d]
the possibility of a fraudulent inducement exception [to the
economic loss rule] in some other circumstance.” See HealthBanc
Int’l, LLC v. Synergy Worldwide, Inc., 2018 UT 61, ¶¶ 22–23, 435 P.3d
193.

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the walls and the ceiling, and some ill-fitting doors.” Id. ¶ 5.
However, the seller “represented that the building was strong
and free of any structural problems,” and he “indicated that
he was involved in the engineering and construction of the
building . . . and that it was over-engineered and over-built.” Id.
He also told the buyer “that the building would withstand
earthquakes that many other buildings would not.” Id.
Additionally, “[a]fter making these representations, [the seller]
provided [the buyer] with an inspection report he had previously
obtained, and which did not identify any problems with the
support system.” Id.

¶37 The parties then signed a sales agreement that stated,
among other things, that the buyer agreed that it was “purchasing
[the] property upon [the buyer’s] own examination and judgment
and not by reason of any representation made to [the buyer] by
[the seller] . . . as to its condition”; that the buyer accepted “the
property in ‘as is’ condition”; that the agreement constituted “the
entire agreement between the parties and supercede[d] and
cancel[ed] any and all prior negotiations, representations,
warranties, understandings or agreements between the parties”;
and that there were “no oral agreements which modif[ied] or
affect[ed] [the] agreement.” Id. ¶ 4.

¶38 After purchasing the building and subsequently facing
either expensive repairs or condemnation of the property by the
city, the buyer brought suit against the seller, claiming, among
other things, fraud with respect to major structural defects. See id.
¶ 7. The district court granted summary judgment in the seller’s
favor. See id. ¶ 8. On appeal, the buyer argued that the court had
erroneously dismissed its fraud claim by concluding, among
other things, that the buyer could not have reasonably relied on
the seller’s representations in light of the language of their
agreement. See id. ¶ 15. This court agreed with the buyer. See id.
¶¶ 19–22.

¶39 We first explained the relevant element of the buyer’s
fraud claim, stating:

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Tidwell v. Jensen

One of the elements of fraud that a plaintiff must
prove is that he or she, acting reasonably and in
ignorance of the statement’s falsity, did in fact rely
upon the misrepresentation. Thus, not only must
there be reliance, but the reliance must be justifiable
under the circumstances. While the question of
whether a plaintiff was reasonable in his or her
reliance is usually a matter within the province of
the jury, there are instances where courts may
conclude that as a matter of law, there was no
reasonable reliance.

To determine whether the reliance was
reasonable, the reliance must be considered with
reference to the facts of each case. In general, a
plaintiff may justifiably rely on positive assertions
of fact without independent investigation. It is only
where, under the circumstances, the facts should
make it apparent to one of his [or her] knowledge
and intelligence, or he [or she] has discovered
something which should serve as a warning that he
[or she] is being deceived, that a plaintiff is required
to make his [or her] own investigation.

Id. ¶¶ 19–20 (cleaned up).

¶40 We then considered whether there was a genuine issue of
material fact as to whether the buyer had reasonably relied on the
seller’s representations, reasoning as follows:

Applying the foregoing legal principles to the facts
of this case, we cannot say as a matter of law that
[the buyer] was unreasonable in its reliance on [the
seller’s] statements regarding the structural
integrity of the building. Viewing the facts in the
light most favorable to [the buyer], they
demonstrate that [the buyer’s manager] walked

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Tidwell v. Jensen

through the building with [the seller] before [the
buyer] purchased it. [The buyer’s manager]
questioned [the seller] regarding some problems he
observed and [the seller] responded that he had
been involved in the construction and engineering
of the building, and that the building had no
structural defects. To support that claim, [the seller]
then provided [the buyer’s manager] with an
inspection report that failed to note any structural
problems with the building. Simply stated, because
[the seller] held himself out as someone with
superior knowledge of the building and then lent
support to his representations by providing an
inspection report, a genuine issue of material fact
exists as to whether [the buyer’s] reliance was
reasonable.

Id. ¶ 21. Accordingly, we held that the district court’s grant of
summary judgment was improper. See id. ¶ 22.

¶41 While Robinson was decided on summary judgment prior
to trial rather than on a motion during trial for judgment as a
matter of law, it is informative as to whether the question of
Tidwell’s reasonable reliance was properly resolved as a matter of
law. As we noted in Robinson, “the question of whether a plaintiff
was reasonable in his or her reliance is usually a matter within the
province of the jury.” Id. ¶ 19 (cleaned up). And we determined
in Robinson that the buyer’s claim of reasonable reliance was
viable even though the sales agreement stated that the buyer was
“purchasing [the] property . . . not by reason of any representation
made to [the buyer] by [the seller],” that the written agreement
“constitute[d] the entire agreement between the parties and
supercede[d] and cancel[ed] any and all prior . . .
representations,” and that there were “no oral agreements which
modif[ied] or affect[ed] [the written] agreement.” Id. ¶ 4. In other
words, the language of the contract in Robinson was at least as
exhaustive in disclaiming reliance on oral representations as the

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language of the Contract here, yet we still determined that the
issue of whether the buyer nevertheless reasonably relied on the
representations the seller made outside the contract should
survive summary judgment. In so determining, we emphasized
the seller’s claim to superior knowledge regarding the building
and his production of an inspection report to support his
representations.

¶42 Based on that determination, a similar outcome is required
here. Tidwell testified that he talked to Toscano about his plans to
take the Tacoma into the mountains to go hunting. At that point,
Toscano—implying that he had superior knowledge about the
Tacoma—indicated that the truck would “do great,” while
Jensen—who was sitting nearby—likewise said it would “climb
walls.” Tidwell also testified that Toscano pointed to a visible, un-
rusted spot on the frame and said, “That’s what the rest of the
frame looks like.” Also like the seller in Robinson, Toscano
supported his own assessment of the Tacoma by assuring Tidwell
that the truck had passed a safety inspection, and Tidwell testified
that Toscano even dissuaded him from obtaining an independent
inspection. This evidence provided a basis for the jury to find that
Tidwell reasonably relied—for tort purposes—on Jensen’s and
Toscano’s representations notwithstanding his contractual
disclaimer of warranties and his contractual acknowledgment
that he was purchasing the truck as-is. Accordingly, the district
court erred by concluding otherwise.

2. Tidwell did not disclaim tort damages by entering the
Contract

¶43 Tidwell also contends that the district court erred by
concluding as a matter of law that he disclaimed tort damages by
entering the Contract. Again, we agree.

¶44 In ruling on Jensen and Toscano’s motion for judgment as
a matter of law, the district court noted that both of Tidwell’s tort
claims require Tidwell to have suffered damage as a result of
relying on the representations made to him about the Tacoma. It

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Tidwell v. Jensen

then reasoned that any “damages, to the extent they relate to
repairs of the vehicle, were expressly waived by him in the
[C]ontract provisions.” In so reasoning, the court appears to have
been referring to this statement in the Contract: “The dealer
assumes no responsibility for any repairs regardless of any oral
statements about the vehicle.”

¶45 For parties to successfully disclaim tort claims generally
via a contract, the language of the contract must clearly and
unequivocally state that disclaimer. See Interwest Constr. v. Palmer,
923 P.2d 1350, 1356 (Utah 1996) (“While parties to a contract may
generally exempt themselves from negligence liability, the
language they use must clearly and unequivocally express an
intent to limit tort liability in the contract itself.” (cleaned up)).
“Without such an expression of intent, the presumption is against
any such intention, and it is not achieved by inference or
implication from general language.” Id. (cleaned up). Logically,
the same requirement must apply to a disclaimer of tort damages
because a disclaimer of tort damages is effectively a disclaimer of
any meaningful ability to pursue the tort claim generally.

¶46 Here, there is nothing in the Contract or the incorporated
Buyer’s Guide that clearly and unequivocally expressed an intent
to limit tort liability generally or tort damages specifically.
Therefore, Tidwell did not bargain away his ability to seek tort
damages under the language of the Contract and Buyer’s Guide,
and to the extent the court determined that he did, it erred.

3. Tidwell produced evidence in support of the other
elements of fraud and negligent misrepresentation

¶47 To preclude judgment as a matter of law, Tidwell was
required to put on evidence of the elements of fraud and negligent
misrepresentation in addition to evidence of his reasonable
reliance on Jensen’s and Toscano’s representations. We therefore
consider whether there was an evidentiary basis for the jury to
find the other elements of fraud and negligent misrepresentation.
See generally Olguin v. Anderton, 2019 UT 73, ¶ 20, 456 P.3d 760 (“It

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Tidwell v. Jensen

is within our discretion to affirm a judgment on an alternative
ground if it is apparent in the record.” (cleaned up)).

¶48 Fraud requires proof of the following elements:

(1) a representation; (2) concerning a presently
existing material fact; (3) which was false; (4) which
the representor either (a) knew to be false, or
(b) made recklessly, knowing that he or she had
insufficient knowledge on which to base such
representation; (5) for the purpose of inducing the
other party to act upon it; (6) that the other party,
acting reasonably and in ignorance of its falsity;
(7) did in fact rely upon it; (8) and was thereby
induced to act; (9) to his or her injury and damage.

Robinson v. Tripco Inv., Inc., 2000 UT App 200, ¶ 12, 21 P.3d 219
(cleaned up).

¶49 Examining the evidence in a light most favorable to
Tidwell, as we must, see Montgomery v. Gardiner, 2025 UT App 146,
¶ 30, 579 P.3d 1083, we determine that he presented evidence
from which a jury could find that each of these elements was
satisfied. We have already determined that there was evidence
that Tidwell reasonably relied on Jensen’s and Toscano’s
representations regarding the Tacoma, the sixth element
identified above. Additionally, there was evidence sufficient to
support the first, second, third, fifth, seventh, eighth, and ninth
elements of fraud: (1) Tidwell testified that Toscano and Jensen
made representations that the Tacoma’s frame was in good
condition and suitable for driving on mountain roads; (2)
according to Tidwell, these statements applied to the status of the
frame at the time the Tacoma was sold to him; (3) Inspector and
Manager testified that the Tacoma’s frame was rusted out, making
Jensen’s and Toscano’s representations false; (5) a reasonable
inference may be drawn that Jensen’s and Toscano’s statements
were intended to induce Tidwell to purchase the Tacoma by
allaying his concerns about the frame and assuring him the

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Tidwell v. Jensen

Tacoma would suit his needs; (7) Tidwell testified that he relied
on these statements when deciding to purchase the Tacoma; (8) it
is undisputed that Tidwell actually purchased the Tacoma; and
(9) if the foregoing evidence is believed, then Tidwell was
damaged when he spent $11,000 on a vehicle that was unsafe to
drive.

¶50 We further determine that there was also evidence of the
fourth element identified above, namely, that Jensen and Toscano
were at least reckless as to whether their representations about the
Tacoma were true. Jensen testified that dealers and dealers’ agents
who attend Manheim auctions agree to have read the Arbitration
Policy, and the jury heard evidence that Jensen had actually read
the Arbitration Policy. Toscano testified that he recalled having
read at least the portion of the Arbitration Policy that outlines
buyers’ responsibilities. Under the Arbitration Policy, buyers are
responsible for “reviewing all pertinent information” about
vehicles on which they place bids, including “announcements,
disclosures, condition reports,” and “sale lights . . . , which
identify various sale conditions.” Nat’l Auto Auction Ass’n,
Arbitration Policy § IV(1) (effective Apr. 17, 2017). And here,
Toscano acknowledges having reviewed a condition report prior
to bidding on the Tacoma, having seen the yellow light as the
Tacoma went across the auction block, and otherwise having
known of the “alt suspension/structural” disclosure. Jensen
testified that an “alt suspension/structural” disclosure can refer to
structural damage in at least some circumstances. And after
Jensen and Toscano learned that the Tacoma had significant rust
damage, they did not pursue arbitration through Manheim,
suggesting that they knew the rust damage had been properly
disclosed. This evidence suggests that Jensen and Toscano acted
recklessly with regard to the truth of their representations about
the Tacoma.

¶51 Additionally, Tidwell testified that Toscano dissuaded him
from looking at the Tacoma’s frame, including by pointing to a
spot on the frame that was in good condition and saying, “That’s
what the rest of the frame looks like.” Tidwell also testified that

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Tidwell v. Jensen

Toscano twice dissuaded him from getting an independent
inspection of the truck—once by telling him it would be a waste
of money and once by saying another potential buyer was on his
way to the dealership. This testimony, if believed, supports an
inference that the dealership knew of the rust damage because it
had looked under the truck and, thus, must have seen the obvious
problems. It also supports an inference that Toscano personally
knew of the rust damage and was trying to prevent Tidwell from
discovering it by looking under the truck himself or taking it for
an independent inspection.

¶52 In sum, while it is not certain whether Tidwell would have
prevailed on either tort claim at trial, we cannot say “there [was]
no competent evidence that would [have] support[ed] a verdict in
[his] favor.” Sheppard v. Geneva Rock, 2021 UT 31, ¶ 24, 493 P.3d
632 (cleaned up).

¶53 “A claim for negligent misrepresentation requires a party
to demonstrate that (1) a party carelessly or negligently makes a
false representation expecting the other party to rely and act
thereon, (2) the [other party] actually relies on the statement, and
(3) [the other party] suffers a loss as a result of that reliance.”
Moore v. Smith, 2007 UT App 101, ¶ 36 n.12, 158 P.3d 562 (cleaned
up). For the same reasons identified above, Tidwell presented
evidence upon which the jury could rely in finding that these
elements were satisfied.

¶54 Because Tidwell provided evidence from which a jury
could have found in his favor, the district court erred in granting
judgment as a matter of law to Jensen and Toscano on Tidwell’s
tort claims.

B. Tidwell’s UCSPA Claims

¶55 We next consider whether the district court properly
dismissed Tidwell’s UCSPA claims. We conclude that it did not.

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Tidwell v. Jensen

¶56 The UCSPA is set forth in Chapter 11 of Title 13 of the Utah
Code. 7 The version in effect at the time of the events giving rise to
this case stated that “a supplier commits a deceptive act or
practice if,” among other things, “the supplier knowingly or
intentionally . . . indicates that the subject of a consumer
transaction has . . . performance characteristics, . . . uses, or
benefits, if it has not.” Utah Code § 13-11-4(2) (2017). 8

¶57 The district court interpreted this provision as saying both
that the supplier must knowingly or intentionally indicate that the
item has certain performance characteristics, uses, or benefits and
that the supplier must know or intend that the item does not have
those characteristics, uses, or benefits, saying:

Tidwell must have presented evidence that the
defendants indicated that the subject vehicle had a
particular . . . mechanical condition or use, and
knew it did not have such condition or use. The
requisite mental state applies to both making the
indication—that is the statement—and the
statement’s falsity. A mistake of fact or ignorance of
fact, in my reading of the statute, is not enough to be
a violation of the [UCSPA].

The court erred in its interpretation.

¶58 “The first step of statutory interpretation is to look to the
plain language, and where statutory language is plain and
unambiguous, [we] will not look beyond the same to divine

7. The version of the UCSPA in effect at the time of the events
giving rise to this case allowed “[a] consumer who suffer[ed] loss
as a result of a violation of [the UCSPA to] recover, but not in a
class action, actual damages or $2,000, whichever is greater, plus
court costs.” Utah Code § 13-11-19(2) (2017).

8. This subsection has since been amended to remove “knowingly
or intentionally.” See Utah Code § 13-11-4(2).

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Tidwell v. Jensen

legislative intent. Rather, we are guided by the rule that a statute
should generally be construed according to its plain language.”
Bryner v. Cardon Outreach, LLC, 2018 UT 52, ¶ 9, 428 P.3d 1096
(cleaned up).

¶59 The plain language of this provision does not require the
supplier to have knowledge or intent as to whether the subject of
the transaction actually has the attribute the supplier indicated.
See Utah Code § 13-11-4(2)(a) (2017). Instead, the supplier must
simply make the indication knowingly or intentionally, and if the
item does not possess the attribute, the supplier has committed a
“deceptive act” as that term is used in the statute. See id. This is
evidenced by the fact that the conditional clause “if it has not” has
a different subject—namely, “it,” meaning the item itself—from
the clause that precedes it, whose subject is a supplier who
knowingly or intentionally indicates something. Because the
supplier’s knowledge or intent is, thus, grammatically
disconnected from the actual condition of the item, a person
bringing a claim under this provision need not prove that the
supplier knew or intended the item to not have the characteristics,
uses, or benefits indicated.

¶60 In sum, the district court erred by interpreting the UCSPA
as requiring Tidwell to prove that Toscano and Jensen intended
or knew their representations to be false. And because Tidwell
provided evidence that (1) Toscano and Jensen knowingly or
intentionally indicated the Tacoma had certain performance
characteristics, uses, or benefits and (2) the Tacoma did not have
those performance characteristics, uses, or benefits, the court
erred in dismissing Tidwell’s UCSPA claims. We therefore
reverse the dismissal of those claims.

II. Attorney Fees

¶61 Tidwell also requests his attorney fees on appeal. We deny
this request.

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Tidwell v. Jensen

¶62 “In Utah, attorney fees are awardable only if authorized by
statute or contract.” Cheney v. Hinton Burdick Hall & Spilker, PLLC,
2015 UT App 242, ¶ 19, 366 P.3d 1220 (cleaned up). Tidwell points
to the Contract as the basis for his fee request, noting that the
Contract “provides for recovery of attorney fees if it becomes
necessary for the seller to enforce its terms” and arguing that
“[u]nder the reciprocal fees statute, Utah Code Ann. [section] 78B-
5-826, [he is] entitled to an award of attorney fees if [he] prevail[s]
on the current appeal.”

¶63 However, the entire thrust of Tidwell’s argument in
combatting the district court’s dismissal of his tort claims is that
his tort claims are distinct from and not based on the Contract.
Therefore, it is inappropriate to award him attorney fees based on
a provision of the Contract related to enforcing the terms of the
Contract.

CONCLUSION

¶64 The district court erred in dismissing Tidwell’s claims
against Jensen and Toscano as a matter of law. We remand this
matter for a new trial.

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