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EARNEST A. HARGETT v. MIDAS INTERNATIONAL CORPORATION

MAY 27, 1987

EARNEST A. HARGETT
v.
MIDAS INTERNATIONAL CORPORATION



BEFORE WALKER, C.J., PRATHER AND SULLIVAN, JJ.

PRATHER, JUSTICE, FOR THE COURT:

Is the manufacturer of a motor home purchased by a buyer in a used condition considered a" seller "for purposes of the implied warranty of merchantability under the Uniform Commercial Code? From a summary judgment granted by the Circuit Court of Lee County, holding that Midas International Corporation was not the seller of a used motor home, Hargett appeals assigning as error:

(1) The lower court erred in ruling that the appellee was not a" seller "and, therefore, that no implied warranty

 of merchantability was made upon the sale of this motor home.

 (2) The lower court erred in granting the motion for summary judgment on the issues of negligence and breach of express verbal warranty regarding repairs, not even the subject of the appellee's motion for summary judgment.

 I.

 On April 9, 1979, Earnest A. Hargett purchased a used 1978 motor home from Windham Ford Company in Baldwyn, Mississippi. The motor home, bearing an identification number E37AHBA7394, was manufactured by Midas International, a foreign corporation. No express warranties from Midas were given as a part of this sale.

 Soon after the purchase of the motor home, Hargett, allegedly endured a series of difficulties with the motor home to the extent that Hargett describes the motor home as having" completely fallen apart. "In an attempt to have the motor home repaired, Hargett twice drove it to a Midas plant in Tennessee. The first attempt at repair was made at no cost to Hargett, but the second attempt at repair was made with a charge for parts.

 When repairs were not made to his satisfaction, Hargett filed suit against Midas alleging negligence and breach of the implied warranty of merchantability owed by Midas to Hargett. Demanding $45,000 damages, Hargett also contended he should recover under strict liability.

 Midas, in turn, filed a motion for summary judgment contending it was not a" seller "as defined in Miss. Code Ann. 75-2-103 (1972), and was therefore not liable for a breach of an implied warranty of merchantability. The trial judge granted summary judgment on the issues of breach of implied warranty and negligence. From that ruling, Hargett perfects this appeal.

 II.

 Rule 56 (b) of the Mississippi Rules of Civil Procedure provides," A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof. "Rule 56 allows summary judgment where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Brocato v. Mississippi Publishers Corp., 503 So. 2d 241, 243 (Miss.

 1987); Modling v. Bailey Homes & Insurance, 490 So. 2d 887, 891 (Miss. 1986); Brown v. Credit Center Inc., 444 ...


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