Opinion
74891.
DECIDED SEPTEMBER 8, 1987.
Breach of warranty, etc. Worth State Court. Before Judge Miller.
Billy C. Mathis, Jr., for appellant.
Robert B. Langstaff, for appellee.
In September 1985 the appellant, Rex Davis, purchased a boat, motor, and trailer from the appellee Rex Beard. Shortly after the purchase, Davis had to have expensive repair work on the outboard motor. Subsequently, Davis commenced this action against Beard, alleging breach of express warranty as to the condition of the boat and motor, and fraudulent concealment of the defect (a crack in the foot of the motor) which had to be repaired. Davis here appeals from the trial court's grant of summary judgment for Beard. Held:
Beard supported his motion for summary judgment with an affidavit in which he stated that he made no warranties other than the motor was in running condition, and that there was no crack in the foot of the motor at the time of the sale. In response to this evidence, Davis submitted his own affidavit, in which he merely stated that (1) he purchased the boat from Beard; (2) Beard had executed a bill of sale, witnessed by Beard's father; and (3) he had dealt directly with Beard in purchasing the boat. In granting summary judgment for Beard, the trial court found that Davis's affidavit simply failed to rebut Beard's evidence which defeated Davis's claims, and we agree.
The trial court was so obviously correct, in fact, that this court is compelled to regard this appeal as frivolous. Accordingly, pursuant to Court of Appeals Rule 26 (b), we assess against the appellant a penalty of $200 for filing a frivolous appeal.
Judgment affirmed. Birdsong, C. J., and Pope, J., concur.