This section contains the nature of the case and procedural background.

P visited D's retail operation to buy a Cruiser Yacht. D gave P a copy of Cruisers' 1999 sales brochure. P read and reviewed this brochure, paying particular attention to a page that contained a photograph of Cruisers' 3375 Esprit model apparently moving at a high rate of speed. Accompanying the photograph was a caption that read as follows: Offering the best performance and cruising accommodations in its class, the 3375 Esprit offers a choice of either stern drive or inboard power, superb handling and sleeping accommodations for six. Due in part to the depictions in the brochure, P bought a 3375 Esprit model yacht for over $150,000. During the test drive on May 20, 1999, and a subsequent test drive approximately a week later, the yacht manifested several electrical and mechanical problems. Pursuant to a limited warranty that accompanied the written contract, D serviced the yacht and attempted to fix the problems. A subsequent test drive of the yacht in early June revealed that problems still existed with the yacht. Due to the mechanical problems, P sought to rescind the sales agreement. Cruisers responded by offering to repair or replace any defective parts as per the limited warranty. P sued for rescission. P argues that the sales photograph and caption were themselves an express warranty. D moved for summary judgment based on the fact that the brochure amounted to mere sales puffery. It was granted, and P appealed.

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