Doug Curliss - v. -, 2022 SKPC 26

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2022 SKPC 26 Date: June 17, 2022 File: #75 [2021] Location: Saskatoon _____________________________________________________________________________ Between: Doug Curliss - and - Mark Adames Doug Curliss For the Plaintiff Mark Adames For the Defendant _____________________________________________________________________________ JUDGMENT S.D.

SCHIEFNER, J _____________________________________________________________________________ Introduction [ 1 ] This case is about a boat – a boat that broke down very soon after Doug Curliss used it for the first time after buying it from Mark Adames. The boat broke down because a tooth on a planetary gear broke causing an internal failure of the drive mechanism. The gear – and in particular the tooth that broke – was damaged at some point prior to either Mr. Curliss or Mr. Adames owning the boat.

The damage to the gear was neither obvious nor readily apparent to a user of the boat or upon any form of external examination. Detection of the damaged gear would have required disassembly of the drive unit and inspection by someone with mechanical training. In other words, the damage to the gear was a hidden defect unknown to the vendor, Mr. Adames, and neither obvious nor easily discoverable by the purchaser, Mr. Curliss.

[ 2 ] When Mr. Adames advertised the boat for sale, he described the boat as being in “mint condition” and that it “works awesome”. Mr. Curliss now argues that Mr. Adames’ description of the boat was a negligent and misleading misrepresentation as to the actual condition of the boat. Mr. Curliss also argues that the representation created a warrant that there were no hidden defects in the drive mechanism whether known to the vendor or not. Mr.

Curliss seeks compensation for the cost to repair the drive mechanism, for loss of use and enjoyment of the boat while it was under repair, and for his costs in these proceedings. [ 3 ] While I have empathy for Mr. Curliss, I find that his claims against Mr. Adames cannot succeed. I am not satisfied that Mr. Adames was negligent or fraudulent in the representations that he made when advertising the boat for sale. Furthermore, I am also not satisfied that the comments in the advertisement created a defacto warranty that has now been breached. Mr.

Adames did provide an express warranty in the bill of sale regarding the condition of the boat. However, that warranty did not guarantee that the boat was free from latent defects unknown to Mr. Adames, which was the case here. [ 4 ] My reasons for coming to these conclusions are set forth below. Evidence [ 5 ] A trial was conducted in Saskatoon on May 3, 2022. Mr. Curliss testified, as did his wife, Karen Janke-Curliss. In addition, Mr. Curliss called Mr. Brian Brassard, whom I qualified as an expert in diagnosing, repairing, and servicing boats, including boats with a Mercruiser 350 with Alpha Drive.

Finally, Mr. Adames testified. I found all of the witnesses credible and reliable. There was very little dispute as to the facts. As a result, I will recount the facts as I have found them. [ 6 ] Mr. Curliss has owned boats most of his adult life. It was his practice to monitor advertisements for the sale of boats. During the winter/spring of 2019, Mr. Curliss was watching for such ads. He saw an ad for a 2008 Baja Islander 202, together with trailer.

The advertisement was on an online classified advertising service known as “Kijiji” and read as follows: 2008 baja 202 islander Make: Baja Boats Year: 2008 Model: 202 Islander Colour: Black Description: 21’ baja islander. 350 mag merc, through hall exhaust, mint condition, clarion stereo, tinted windows, special order outlaw graphics and 350 mag engine, swim platform, 180hrs. this boat works awesome.includes snap on covers and storage cover and colour matched tandom ez load trailer. new carpet, and a spare stainless prop. [ 7 ] After reading the advertisement, Mr. Curliss became interested in the boat.

In particular, Mr. Curliss noted the statements in the ad that “this boat works awesome” and that it was in “mint condition”. As a result, he contacted the seller which was Mr. Adames. The parties began communicating and agreed on a purchase price, a deposit, and a time and place when the boat could be inspected by Mr. Curliss. [ 8 ] On or about April 4, 2019, Mr. Curliss and his wife travelled to Mr. Adames’ acreage near Silton, Saskatchewan. The boat was present, and Mr. Adames removed the storage tarps to allow access to the boat.

He then provided a source of water to the boat so that the motor could be started. At that time of year, it was not possible to put the boat in the lake. However, the motor was started and the transmission was cycled between forward, neutral and reverse. Being satisfied with his inspection, Mr. Curliss agreed to purchase the boat. He paid for the boat and picked it up on April 5, 2019. [ 9 ] Mr. Curliss prepared a bill of sale from a template he found online (from Alberta) and this document was signed by the parties on April 5, 2019. This document included the following clause that Mr. Curliss added in: 4.

Special conditions of sale (if any): Seller guarantees that the boat is free and clear of all liens and that he has the authority to sell it and that the boat, motor and accessories are in good working order and that he has not wit[h]held any information in that regard. [ 10 ] Although Mr. Curliss purchased the boat in early April, he was not able to use the boat until the end of June, 2019. Mr. Curliss took the boat to Candle Lake and arranged for a day on the water with his family. It was a beautiful day and Mr. Curliss was excited to use his new boat. Prior to launching the boat, Mr.

Curliss checked the oil levels in the boat, including the oil in the drive

mechanism. They were full and the oils were clear. Mr. Curliss launched the boat in the water, ensured that everything was working, and then loaded his family for a planned day on the water. Mr. Curliss drove the boat for approximately 45 minutes during which time, the boat performed as expected. He drove around the lake and ran the boat at various rates of speed, including one short run at 95 kph. Everything was great until it wasn’t. [ 11 ] After operating the boat for about 45 minutes, Mr. Curliss began hearing a loud clicking noise coming from the drive mechanism. Mr.

Curliss immediately shut down the motor and did a visual inspection of the boat. He could not see anything wrong. However, the boat would not restart and he had to be towed back to shore – to his frustration and everyone’s disappointment. [ 12 ] Mr. Curliss took the boat to Brassard Service, a business specializing in all types of marine boats and motors. Mr. Brian Brassard examined the boat. He noted it had a high performance, Mercury engine with an Alpha 1 drive. The drive mechanism was designed to separate into two halves – an upper and a lower half.

The upper half connects to the engine and contains plenary gears. The lower half runs in the water and the propeller is attached. On this model the lower half is also where a water pump is located, as well as the forward and reverse gears. Disassembly of the drive mechanism is required to inspect any of the internal parts. Mr. Brassard made the following observations/conclusions contained in a written report that he prepared: I discovered that the drive was seized up because gear teeth had broken off and jammed in and damaged the upper portion of the gear case.

This drive has an upper and lower gear case, with the propeller mounted at the rear of the lower. In my opinion, the damage to the gear tooth was pre-existing, prior to the incident described by Mr. Curliss, and was caused by an earlier significant impact on the lower gear case/propeller. This damage would have required some disassembly and repair, which should have, but apparently did not, include examination of and repairs to the upper gear case.

Evidence of this earlier impact is the jagged front edge of the lower gear case, the gouging on the front nose cone of the lower gear case, as well as the damaged teeth in the upper gear case. There would also have been significant propeller damage. There are no propeller damage in this case (in fact the lazer II propeller on the drive was in near pristine condition with no signs of any impact) but there were signs of significant impacts, including underneath the repainted lower portion of the drive.

The only reasonable conclusion is that these impacts occurred sometime ago and before this propeller was put on the drive. It could even have been some years ago. Such occurs when, for example, the drive strikes something like a submerged rock. When the lower gear case/propeller take an impact they transmit the shock of impact to the upper gear case where further damage happens, including to the gear teeth. This damage to the teeth may just be cracks and the gear case may run for some time before it finally fails.

The appearance of the teeth in this case is consistent with cracks in the teeth from some time. . . . This damage is not normal wear and tear. The drive struck something, damaging the propeller and both the lower and upper gear case, but only the lower was repaired and eventually the unrepaired damaged upper gear case teeth failed, resulting in it seizing up. If there had not been this pre-existing damage, the drive would have worked for many more years. [ 13 ] In this oral testimony, Mr. Brassard provided a further explanation for his conclusions.

He said that at least one of the teeth on an upper plenary gear had what he described as a “progressive” crack. He said that a progressive crack occurs when a tooth is cracked but remains attached to the gear. The gear will often continue to function normally but eventually, depending on use, the tooth will break. When the tooth breaks, the last part of the tooth to crack will have a different colour than the original crack. Mr. Brassard testified that his inspection of the upper plenary gear showed that the broken teeth showed distinctly different colour markings consistent with a progressive crack. [ 14 ] Mr.

Brassard testified that the progressive crack was likely caused by a significant impact to the drive mechanism at some point in the past. Mr. Brassard’s observations lead him to conclude that part of the drive mechanism had been repaired (the lower leg) but that the portion of the drive mechanism where the damaged gear was located (the upper leg) had not been repaired. Mr. Brassard could not tell when the original damage occurred.

In his words, the impact to the lower leg that caused the damage to the gear (that caused the progressive crack in the tooth) could have happened ten minutes before the tooth broke or ten years. [ 15 ] Mr. Brassard noted that it is unlikely that a person using the boat after it was fixed would have known the gear was damaged (that it contained a progressive crack). In Mr. Brassard’s opinion, after the boat was repaired and until the tooth ultimately broke, the damage would not have been apparent to users of the boat.

Even after the tooth broke, there was no external evidence as to what had gone wrong with the drive mechanism. It was not until Mr. Brassard opened the drive and inspected it that he discovered a broken tooth on one of the main planetary gears. Simply put, detection of the damaged gear prior to its failure would have required disassembly of the drive unit and inspection by someone with advanced mechanical training. [ 16 ] I accept as a fact that Mr.

Curliss did not impact a submerged rock or any other object that caused the damage to the drive mechanism during the period of time that he owned the boat. [ 17 ] When he testified, Mr. Adames explained that two people owned the boat prior to him and that he was friends with the person who sold it to him. Mr. Adames said that he had seen the boat operating in the water for at least three years before he bought it. He testified that, as far has he knew, the boat had always worked awesome and had never been damaged. Mr.

Adames testified that the boat did not hit any submerged rocks or any other object when he owned it and he did not observe the boat hitting any submerged rocks or any other object when the previous owner had it. [ 18 ] Mr. Adames explained that, when Mr. Curliss told him about the problem with the boat, he contacted both the original owner of the boat, as well as the person whom he bought it from. Both individuals denied that the boat had been repaired.

However, the previous owner did indicate that he hit a “sand bar” once but did not think it had been damaged during the incident. [ 19 ] I find on the balance of probabilities that the impact that damaged the plenary gear and caused the progressive crack in the

teeth of that gear occurred at some time prior to Mr. Adames’ ownership of the boat. I also accept that Mr. Adames had no knowledge of the “sand bar” impact that the previous owner described or any other impact to the drive mechanism at the time he sold the boat to Mr. Curliss. Finally, I accept that Mr. Adames had no knowledge of the previous damage to the plenary gear, or the progressive crack in the tooth that ultimately broke. Issues [ 20 ] The maxim of caveat emptor is the legal foundation governing the sale and purchase of used property in a non-commercial setting.

Where there is no evidence of fraud or active concealment, the purchaser of a product may not later complain of defects in that product provided the purchaser had an opportunity to inspect the product before purchase. As noted by the Court in Frey v Sarvajc , 2000 SKQB 281 , 194 Sask R 249, it is expected that, if the vendor has not been fraudulent in the sale of a product, it is the responsibility of the purchaser to either bear the risk of unknown latent defects or to obtain a warranty on the item before agreeing to buy it.

The underlying philosophy of the contract law is to leave the parties to make their own bargain. [ 21 ] In the present case, there is no evidence of fraud or active concealment on Mr. Adames’s part. I am satisfied that he had no knowledge at the time he sold the boat to Mr. Curliss of any prior damage to the drive mechanism or the progressive crack in the tooth in the plenary gear. There is no evidence that Mr. Adames repaired the driver mechanism, painted the lower half, or replaced a damaged propeller. Furthermore, it appears that Mr. Adames permitted Mr.

Curliss to freely inspect the boat and openly shared his knowledge of the boat to Mr. Curliss during the negotiation process. [ 22 ] In this case, Mr. Curliss argues that Mr. Adames’ description of the boat was a negligent and misleading misrepresentation as to the actual condition of the boat. Mr. Curliss also argues that the representation in the Kijiji advertisement created a warranty that there were no hidden or latent defects in the drive mechanism whether known to the vendor or not. Mr.

Curliss seeks compensation for the cost to repair the drive mechanism, for loss of use and enjoyment of the boat while it was under repair, and for his costs in these proceedings. In addition (and although not argued by Mr. Curliss), there was language inserted into the bill of sale that bears on the matters in dispute. [ 23 ] To determine whether or not Mr. Curliss has a claim against Mr. Adames, I must determine the following issues: 1. Were the representations made by Mr.

Adames in the Kijiji advertisement (indicating that the boat “works awesome” and that it was in “mint condition”) negligent or fraudulent? 2. Did the representations in the Kijiji advertisement create a defacto warranty regarding latent defects in the boat even if those defects were unknown to Mr. Adames? 3. Did the clause in the bill of sale indicating that the boat, motor and all accessories were in “good working order” effectively create a warranty regarding latent defects in the boat unknown to Mr. Adames? 4. What are the damages and how should they be calculated?

Where the representations in the advertisement negligent or fraudulent ? [ 24 ] Mr. Curliss argues that Mr. Adames was negligent in making the statements in the advertisement indicating that the boat “works awesome” and that it was in “mint condition”. Mr. Curliss takes the position that the boat was not in “mint condition” and that Mr. Adames could have and, in fact, should have known that it was not in “mint” condition. Mr. Curliss argues that, if Mr. Adames was going to make that kind of claim, he should have obtained the maintenance records for the boat from either the previous owners or the dealership.

His failure to do so was negligent on his part and thus he made statements about the boat that were not true, and he did so negligently. [ 25 ] The common law rule respecting transactions involving the sale of used products between individuals is caveat emptor or buyer beware. As noted, there is no onus on a seller to disclose each and every defect known to him/her about the product he is selling provided there is an opportunity for the buyer to inspect the product and provided there is no fraud or active concealment on the part of the seller respecting latent defects. It is speculative to argue that, if Mr.

Adames had researched the maintenance history of the boat, he would have discovered that the drive mechanism had been repaired. Furthermore, there is no onus on a seller to research potential defects unknown to the seller and then disclose that information to a potential purchaser. Finally, I am not satisfied, on the balance of probabilities, that the impugned comments in the advertisement induced Mr. Curliss to do anything other than look at the boat. Mr. Curliss specifically asked for an opportunity to inspect the boat, to hear the engine run, and see the transmission operate.

With all due respect, the compelling inference from the evidence was that Mr. Curliss liked what he saw when he inspected the boat and he decided to purchase it based on his inspection, not based on Mr. Adames’ statement that it was in “mint condition” or that it “worked awesome”. Simply put, I see no cause of action in the present case for negligent misrepresentation on the part of Mr. Adames. None of the requirements for a successful claim based on negligent misrepresentation are present.

See: Britt v Klimczak , 2010 SKQB 407 at para 41 , 365 Sask R 52 [ Klimczak ]. [ 26 ] Statements such as “works awesome”, “mint condition”, “like new”, “barely used”, “gently used” and “immaculate” are commonly used in advertisements for the sale of used products. While some of these terms can have objective meanings, words like “awesome” and “gently used” are clearly subjective expressions – little more than advertising puffery. Even for words that would otherwise have an objective meaning, the words must be interpreted in the context within which they are used.

For example, even though “mint” means in near perfect condition - as if never touched or used, Mr. Adames’ advertisement was clear that the boat had been both touched and used – for ten years and 180 hours. [ 27 ] In his advertisement, Mr. Adames used a variety of terms to describe the boat and it is an error of

interpretation to not examine both the impugned words and the context within which they were used. In the context used, “mint condition” would mean that Mr. Adames was selling a boat that was in “mint condition” for a ten-year old boat that had 180 hours of operation on it. It is improbable in the extreme that Mr. Curliss or anyone else would have interpreted the statement “mint condition” in the context of Mr. Adames’ Kijiji

advertisement to mean that there was no risk of latent defects unknown to the vendor. In light of the fact that Mr. Curliss wanted an opportunity to inspect the boat, to hear the motor running, and to operate the transmission, the compelling inference is that he was well aware the boat was ten years old and had 180 hours of it. He did not base his decision to purchase on the Kijiji advertisement – he based his decision on his own inspection and experience. [ 28 ] Even if I assume that Mr.

Adames was negligent in describing the boat as being in “mint condition” at the time he sold it (a conclusion I do not accept), the representation does not assist Mr. Curliss in his claim for another reason. The statement in the advertisement about the condition of the boat was a pre-contractual representation which was ultimately amended by contract (the words in the bill of sale) to a simple warranty that the boat was in “good working order”.

As I will note later in these reasons for decision, the description of the quality of the boat in the bill of sale did not include a warranty that it was free from latent or hidden defects – only that it was in good working order. My point being that, even if Mr. Curliss was influenced by the words “mint condition” in his decision to purchase the boat (a conclusion I do not accept), he chose different words to describe his qualitative expectations of the boat in the bill of sale. [ 29 ] A fraudulent misrepresentation on the part of a seller can have an impact on the principle of caveat emptor .

A fraudulent misrepresentation is a statement known to be false or made not caring whether it is true or false (Waddams, The Law of Contracts , 7 th ed. para. 421; Derry v. Peek (1889), 14 App. Cas. 337 (H.L.(E.)). Such a statement must be material to the decision of the purchaser to enter the agreement and the misstatement must serve as an inducement to the making of that decision (McCamus, The Law of Contracts , 2005, p. 326). See: Wong v Wruck , 2008 SKPC 116 at para 21 , 342 Sask R 179 . [ 30 ] There is no evidence before me that Mr.

Adames was being fraudulent when he described the boat in the Kijiji advertisement as being in “mint condition” or that it “worked awesome”. These representations were consistent with his experience over the past six years with the boat. Mr. Adames disclosed what he knew about the boat and there is no evidence that he was aware of the pre-existing damage or that he took any steps to actively conceal it. Did the representations effectively act as a warranty ? [ 31 ] Mr. Curliss takes the position that Mr.

Adames’ representations in the advertisement created a defacto warranty that the boat was in “mint condition” and “works awesome” and seeks indemnification for the losses because of a breach of that warranty. A warranty is a promise by a seller that a certain fact is true. It is intended to be relieved upon by the purchaser such that the purchaser need not investigate for themselves whether or not that particular fact is true.

A successful claim for a breach of that warranty requires the purchaser to have relied upon the accuracy of the warranty to his/her detriment. [ 32 ] With all due respect, the comments in the Kijiji advertisement were vague, non-specific, and pre-contractual. As I have already noted, the term “awesome” is a subjective expression. The representations that the boat was in “mint condition” must be viewed in the context that it was provided.

Even though “mint” means in near perfect condition as if never touch or used, the ad was clear that the boat had been both touched and used – for ten years and 180 hours. [ 33 ] Simply put, these representations do not assist Mr. Curliss in his claim for two reasons. First, as I have already noted, the representations were pre-contractual statements which were ultimately amended by contract to simply identify that the boat was in “good working order” at the time of sale.

In my view, the language inserted in the bill of sale nullified the earlier representations and contractually defined the expected condition of the boat at the time of sale. Second, in order for a misrepresentation to be actionable, a purchaser must, in accordance with the test set out in Klimczak , reasonably rely on the stated description of an item to his/her detriment. As I have already noted, Mr. Curliss did not forego the opportunity to inspect the boat based on the words “mint condition”. I find that Mr. Curliss either knew, or reasonably ought to have known, that the boat was not mint.

Specifically, he was alert to the fact the boat was ten years old and had been used for 180 hours. Therefore, I find that Mr. Curliss understood that Mr. Adames’ characterization of the boat as being in “mint condition” was a subjective expression as to condition as opposed to a warranty against latent or hidden defects unknown to the vendor. [ 34 ] In short, and when analyzed in the factual context within which they were given, the two impugned comments in the Kijiji ad were mere puffery.

They were non-measurable claims – the type of which a purchaser of a boat would not normally rely on or would have caused a purchaser to fail to conduct his/her own reasonable investigations. Did the “guarantee” in the bill of sale create a warranty ? [ 35 ] It is not unusual for parties in small claims proceedings to struggle to articulate the legal basis for their claim. Although not specifically argued by Mr. Curliss, I note that the bill of sale included express language dealing with the quality of the boat – language framed as a “guarantee” by Mr. Adames. The essence of Mr. Curliss’s claim is that Mr.

Adames sold him a boat that was defective and, as a result, he should be reimbursed by Mr. Adames for his losses. In the interest of a full record, I will also consider whether a cause of action arises out of the language that was contained in the bill of sale even though that specific claim in that regard was not asserted by Mr. Curliss. [ 36 ] The bill of sale included the following condition that was added by Mr. Curliss. This condition reads as follow: 4.

Special conditions of sale (if any): Seller guarantees that the boat is free and clear of all liens and that he has the authority to sell it and that the boat, motor and accessories are in good working order and that he has not wit[h]held any information in that regard. (Emphasis added) [ 37 ] Through this clause, the common law presumption of caveat emptor was modified. Through his clause, Mr. Curliss obtained a number of guarantees/warranties from Mr. Adames, two of which are relevant to these proceedings: 1. That the boat, motor and accessories were in “good working order”.

2. That Mr. Adames had not withheld any information respecting the working order of the boat, motor and accessories. [ 38 ] What does “good working order” mean? Does it mean that the boat was functioning properly at the time of sale or does it also mean that the boat would remain in good working order and, if so, for how long? [ 39 ] Other than a minor problem with the blower motor (a loose wire), the evidence establishes that the boat was functioning properly when Mr. Adames sold it to Mr. Curliss. By his own description, the boat functioned as expected for at least 45 minutes.

If the clause only required the boat to be in good working order at the time of sale, the facts do not support a breach (except for the blower motor). However, does the guarantee/warranty extend further? For example, through this clause, did Mr. Adames also provide a guarantee/warranty that the boat was free from latent defects – in other words, that it would remain in good working order for longer than 45 minutes? [ 40 ] Because this provision was added by Mr. Curliss, any ambiguity in

interpretation must be resolved in Mr. Adames’s favour. However, in my opinion, there is no ambiguity in the clause. Mr. Adames’ guarantee/warranty that the boat was in “good working order” did not guarantee that the boat was free from latent defects unknown to the seller. A warranty of that nature would require very specific language, including terms, such as how long the warranty would remain in effect and the remedy in the event of a breach. The clause in the bill of sale does not mention latent defects nor is there any evidence that Mr. Adames agreed to provide a warranty with respect to latent defects.

It would be an error of law to read words into the clause to create a warranty to which the parties themselves did agree. [ 41 ] Simply put, according to Mr. Curliss’s own expert, the progressive crack in the plenary gear could have lasted for ten years during which time the boat would have functioned properly. Unfortunately for Mr. Curliss, it only lasted for 45 minutes after he purchased it. The guarantee that Mr. Adames provided to Mr. Curliss in the bill of sale did not warranty that the boat was free from latent defects unknown to the vendor. The warranty required Mr.

Adames to disclose what he knew about the boat (which he did) and that it was functioning properly at the time he sold it (which it was). [ 42 ] Mr. Curliss was aware that he was purchasing a used boat. Because the guarantee he obtained from Mr. Adames in the bill of sale did not warranty the boat free from latent or hidden defects unknown to the vendor (and that is what we have here), it is solely Mr. Curliss’ responsibility to bear the loss. I find no fault on the part of Mr. Adames. Calculation of damages : [ 43 ] Although I have concluded that Mr. Curliss is unsuccessful in his claim against Mr.

Adames, to ensure the fullness of the record, I will provide a calculation of damages based on the evidence in these proceedings: Replacement part – upper drive mechanism: $759.00 Labour to install upper drive mechanism: $556.27 Loss of use and enjoyment of the boat: Nil Total damages: $1,415.27 [ 44 ] If Mr. Curliss had been successful in his action, the total award of damages would have been $1,415.27. When Mr. Brassard repaired the drive mechanism, he also repaired the blower motor on the boat. Mr. Brassard testified that he spent approximately one-half hour of shop time to do so – or the equivalent of $60.00.

If Mr. Curliss had been successful in his action, I would have included this cost in the calculation of damages. [ 45 ] Mr. Curliss sought recovery for the loss of use and enjoyment of the boat while the boat was under repair. Mr. Curliss estimated that he might have gone boating six or eight times during that period. Mr. Curliss provided evidence to the court that, if he had rented a replacement boat, the cost would have been approximately $380.00 per day. However, Mr. Curliss did not rent a replacement boat.

As such, I would not have awarded damages for the loss of use and enjoyment while the boat was under repair. [ 46 ] Finally, I would have reserved my decision on costs and would have sought further submission from the parties because I heard an indication during the trial that there may have been an offer of settlement on the table at the time matters proceeded to trial. Conclusion: [ 47 ] For the foregoing reasons, Mr. Curliss’s claim is dismissed. [ 48 ] Dated this 17 th day of June, 2022 __________________________ S.D. Schiefner, J