Opinion
No. COA12–1098.
2013-04-16
Warren I. JACKSON, Plaintiff, v. TIM MAGUIRE, INC., d/b/a Ocean Auto Brokers, and Thomas W. Harris, d/b/a London Bridge Auto Service, Defendants.
Warren I. Jackson, Pro Se. Bailey & Dixon, L.L.P., by Mollie M. Livingston, for Defendant–Appellee Tim Maguire, Inc.
Appeal by Plaintiff from orders entered 10 May 2012 and 21 September 2012 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 31 January 2013. Warren I. Jackson, Pro Se. Bailey & Dixon, L.L.P., by Mollie M. Livingston, for Defendant–Appellee Tim Maguire, Inc.
DILLON, Judge.
Warren I. Jackson (Plaintiff) appeals from the trial court's order granting summary judgment in favor of Defendant Tim Maguire, Inc., d/b/a Ocean Auto Brokers (OAB). Plaintiff also appeals from the trial court's order requiring him to pay the attorneys' fees incurred by OAB in defending this action. For the following reasons, we affirm the order granting summary judgment, but vacate the order awarding attorneys' fees and remand for further proceedings consistent with this opinion.
I. Factual & Procedural Background
The evidence of record tends to show the following: Plaintiff is a resident of Wilmington, North Carolina. OAB operates a used-car dealership with its principal place of business located in Virginia Beach, Virginia. On Friday, 3 September 2010, Plaintiff contacted OAB by telephone to inquire about an internet advertisement for a 2003 Mercedes–Benz C320 (the Vehicle). Plaintiff spoke with OAB salesperson, Dave Fruchtenicht, and requested that the Vehicle be placed on hold for a few days so that he could make the trip to Virginia Beach to inspect the car in person. Mr. Fruchtenicht responded that he could not hold the Vehicle.
Plaintiff spoke again with Mr. Fruchtenicht later that day to get more information on the Vehicle. According to Plaintiff, Mr. Fruchtenicht informed him that the Vehicle had passed a Virginia State Police Inspection, that the car was in good condition, and that no warning lights appeared on the dashboard when the Vehicle's ignition switch was in the “on” position. Plaintiff also states in his affidavit that Mr. Fruchtenicht informed him that the Vehicle was being sold “AS–IS,” i.e., without any dealer warranty. Plaintiff and Mr. Fruchtenicht negotiated a purchase price for the Vehicle of $8,670.00, which was charged to Plaintiff's credit card at that time.
Shortly after the telephone conversation ended, OAB faxed Plaintiff a Sales Agreement which had been pre-signed by a representative of OAB and which included the following language:
FOR “AS IS” SALE ONLY:
I UNDERSTAND THAT THIS VEHICLE IS BEING SOLD “AS IS” WITH ALL FAULTS AND IS NOT COVERED BY ANY DEALER WARRANTY. I UNDERSTAND THAT THE DEALER IS NOT REQUIRED TO MAKE ANY REPAIRS AFTER I BUY THIS VEHICLE. I WILL HAVE TO PAY FOR ANY REPAIRS THIS VEHICLE WILL NEED. (R 35)
The Sales Agreement further provided that “[a]ny motor vehicle sold to Purchaser by Dealer under this order is sold WITHOUT WARRANTY, EXPRESS OR IMPLIED, WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE .... “ Plaintiff signed the Sales Agreement and faxed it back to OAB that same day.
The following day, Plaintiff traveled to OAB's place of business to complete the transaction. Plaintiff states in his affidavit that he observed the following upon his initial inspection of the Vehicle: “the muffler had a hole in it or had been removed, i.e., the car was very noisy, the check engine light was illuminated, the glass was broken in the external passenger mirror, the electrical system showed at least seven (7) malfunctions, and the car gave a loud thud and vibration when shifting into reverse or drive.”
After test-driving the Vehicle, Plaintiff executed several documents in furtherance of purchasing the Vehicle, including a buyer's guide, a privacy policy, and a delivery confirmation. Plaintiff initialed a box in the buyer's guide indicating that he understood that the Vehicle was being sold “AS IS” and with “NO WARRANTY.” The language beneath the initialed box read as follows: “YOU WILL PAY ALL COSTS FOR ANY REPAIRS. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.” In addition, the delivery confirmation provided the following:
Please take a moment now to consider the transaction before taking delivery of the vehicle to make sure it is clear to you and that nothing has been promised to you that has not been put into writing. Representatives of this Dealership are not authorized to make any oral promises to you.
Plaintiff initialed a box immediately beneath the foregoing language, which was accompanied by the following additional language: “I HAVE RECEIVED ALL OF THE PRODUCTS AND SERVICES PROMISED TO ME IN CONNECTION WITH THIS TRANSACTION AT THE TIME OF DELIVERY.” Plaintiff signed the credit card receipt reflecting the purchase price of the Vehicle of $8,670.00, which OAB had charged to Plaintiff's credit card the previous day.
Plaintiff began experiencing problems with the Vehicle on his return trip to Wilmington. Plaintiff subsequently had the Vehicle “inspected in North Carolina and learned that the car's engine had been severely neglected and was full of black sludge, all four tires had steel belts exposed (visible only from a rack), all four rims were bent, and the muffler had been cut out and replaced with a straight pipe.” Plaintiff thus “had to replace among other things, the car's engine so that the car would eventually pass the North Carolina state inspection.”
On 23 May 2011, Plaintiff filed a complaint in New Hanover County Superior Court alleging numerous claims for relief, including breach of contract, fraud, and unfair and deceptive trade practices. OAB moved for summary judgment with respect to these claims on 12 March 2012, arguing in part that some of Plaintiff's claims were not recognized under Virginia law. Plaintiff thereafter moved to amend his complaint “to address deficiencies in stating claims under Virginia Law.” {R 61}
Plaintiff also named Thomas W. Harris, d/b/a London Bridge Auto Service (London Bridge) as a defendant in the action. London Bridge performed the Virginia State Police Inspection on the Vehicle. London Bridge is not a party to this appeal, however, as the trial court granted London Bridge's motion to dismiss for lack of personal jurisdiction, and Plaintiff has not appealed from that order.
By order entered 10 May 2012, the trial court granted OAB's motion for summary judgment. Plaintiff filed his notice of appeal from the summary judgment order on 11 June 2012. By order entered 19 June 2012, the trial court denied Plaintiff's motion to amend his complaint. Subsequently, on 21 September 2012, the trial court entered an additional order directing Plaintiff to pay OAB's attorneys' fees in the amount of $14,211.50. Plaintiff filed his notice of appeal from the order awarding attorneys' fees on 19 October 2012.
II. Analysis
On appeal, Plaintiff contends that the trial court erred (1) by granting OAB's motion for summary judgment; (2) by denying his motion to amend his complaint; and (3) by ordering him to pay OAB's attorneys' fees. We address these contentions in turn.
A. Summary Judgment
A motion for summary judgment is appropriately granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A–1, Rule 56(c) (2011).
In deciding a motion for summary judgment, a trial court must consider the evidence in the light most favorable to the non-moving party. If there is any evidence of a genuine issue of material fact, a motion for summary judgment should be denied. The moving party bears the burden of showing that no triable issue of fact exists. This burden can be met by proving: (1) that an essential element of the non-moving party's claim is nonexistent; (2) that discovery indicates the non-moving party cannot produce evidence to support an essential element of his claim; or (3) that the non-moving party cannot surmount an affirmative defense which would bar the claim. Once the moving party has met its burden, the non-moving party must forecast evidence that demonstrates the existence of a prima facie case.
Azar v. Presbyterian Hosp., 191 N.C.App. 367, 370, 663 S.E.2d 450, 452 (2008) (citations omitted).
Plaintiff contends that the trial court erred in granting OAB's motion for summary judgment with respect to his claims for fraud, punitive damages, unfair and deceptive trade practices, and breach of contract.
1. Fraud
Plaintiff first argues that “the trial court erred by dismissing [his] claim for fraud and violated his right to a trial by jury.” We do not reach the merits of this contention, however, as we conclude that Plaintiff has abandoned the issue.
“The Rules of Appellate Procedure are mandatory” and “apply to everyone—whether acting pro se or being represented by all of the five largest law firms in the state.” Bledsoe v. County of Wilkes, 135 N.C.App. 124, 125, 519 S.E.2d 316, 317 (1999); see also Strauss v. Hunt, 140 N.C.App. 345, 348–49, 536 S.E.2d 636, 639 (2000) (providing that “even pro se appellants must adhere strictly to the [Rules of Appellate Procedure] or risk sanctions”). Rule 28(a) provides as follows:
The function of all briefs required or permitted by these rules is to define clearly the issues presented to the reviewing court and to present the arguments and authorities upon which the parties rely in support of their respective positions thereon. The scope of review on appeal is limited to issues so presented in the several briefs. Issues not presented and discussed in a party's brief are deemed abandoned.
N.C. R.App. P. 28(a) (2013). Moreover, an appellant's brief must set forth the following:
An argument, to contain the contentions of the appellant with respect to each issue presented. Issues not presented in a party's brief, or in support of which no reason or argument is stated, will be taken as abandoned.
....
The body of the argument and the statement of applicable standard(s) of review shall contain citations of the authorities upon which the appellant relies.
N.C. R.App. P. 28(b)(6) (2013).
Preliminarily, we note that although Plaintiff captions his argument “the trial court erred by dismissing [his] claim for fraud” (Original in all caps), he fails to argue or explain any such error. Moreover, Plaintiff presents no authority in support of his position that the trial court erred in granting summary judgment in favor of OAB with respect to his fraud claim. See id. Plaintiff does not set forth the elements of fraud, contend that there existed a genuine issue of material fact, or even argue that the evidence before the trial court was sufficient to withstand OAB's motion for summary judgment. It is not the function of this Court to mold Plaintiff's conclusory assertions into a tenable legal argument. See Foster v. Crandell, 181 N.C.App. 152, 173, 638 S .E.2d 526, 540 (2007) (holding that “[i]t is not the responsibility of this Court to construct arguments for a party”); Goodson v. P.H. Glatfelter Co., 171 N.C.App. 596, 606, 615 S.E.2d 350, 358 (2005) (“It is not the duty of this Court to supplement an appellant's brief with legal authority or arguments not contained therein.”). Accordingly, we deem this issue abandoned. SeeN.C.R.App. P. 28(b)(6).
Even assuming arguendo that Plaintiff has preserved this issue for appellate review, his argument still fails under this Court's decision in Ace, Inc. v. Maynard, 108 N.C.App. 241, 423 S.E.2d 504 (1992). There, the plaintiff, who lived in North Carolina, telephoned the defendant, who lived in Texas, regarding a used airplane that the defendant had advertised for sale in an aviation journal. Id. at 242–43, 423 S.E.2d at 505. The parties negotiated a purchase price during the course of their telephone conversation. Id. at 243, 423 S.E.2d at 506. Plaintiff wired the entire purchase price to the defendant before picking up the plane. Id. Thereafter, the plaintiff traveled to Texas to pick up the plane whereupon he was immediately “disappointed” with the plane's cosmetic features. Id. Before leaving with the plane, however, the plaintiff signed a one-page “Purchase Agreement,” which provided that the plane was being sold “AS IS,” without any warranties. Id. at 243–44, 423 S.E.2d at 506. The plaintiff departed in the plane and immediately experienced mechanical problems, which the defendant refused to fix notwithstanding his oral promise—according to the plaintiff—to do so. Id. at 244, 423 S.E.2d at 506. The plaintiff thereafter sued the defendant for breach of warranty, fraud, and unfair and deceptive trade practices. Id. at 244–45, 423 S.E.2d at 507. At trial, the jury returned a verdict for the plaintiff with respect to his claims for fraud and breach of contract; however, the trial court granted the defendant's motion for judgment notwithstanding the verdict. Id. On appeal, this Court affirmed the trial court's decision and held the following with respect to the plaintiff's failure to establish his fraud claim as a matter of law:
[B]ecause [the plaintiff] effectively agreed when he signed the Purchase Agreement that defendants made no representations whatsoever with regard to the plane, plaintiff is unable to establish the making of a false representation. Moreover, plaintiff failed to establish concealment of a material fact on the part of defendants because plaintiff presented no evidence that defendants knew of any defects in the plane.
Id. at 250, 423 S.E.2d at 510.
Here, Plaintiff signed an “AS–IS” sales agreement in connection with his purchase of the Vehicle. Moreover, our review of the record reveals that Plaintiff failed to present any forecast of evidence indicating that Defendant knew of any defects in the Vehicle prior to its sale. Thus, under Maynard, Plaintiff has not established a “false representation” or “concealment of a material fact,” and his fraud claim must fail as a matter of law. Id.; New Bern Pool & Supply Co. v. Graubart, 94 N.C.App. 619, 627, 381 S.E.2d 156, 160 (1989).
2. Punitive Damages
Plaintiff next contends that the trial court erred in failing to award him punitive damages based upon his fraud claim. This contention suffers from the same deficiency as Plaintiff's first contention, supra, in that Plaintiff fails to advance any authority in support of his position. SeeN.C. R.App. P. 28(b)(6). Additionally, Plaintiff's claim for punitive damages is predicated upon his claim for fraud, which, as discussed supra, Plaintiff has abandoned. Accordingly, this contention is overruled.
3. Unfair and Deceptive Trade Practices
Plaintiff further contends that “the trial court erred by dismissing [his] claim for unfair and deceptive trade practices.” We disagree.
Section 75–1.1 of our General Statutes governs unfair and deceptive trade practices (UDTP) claims and provides as follows: “Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.” N.C. Gen.Stat. § 75–1.1(a) (2011). To prevail on a UDTP claim, a plaintiff must establish the following elements: “ ‘(1)[the] defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff .’ “ Capital Res., LLC v. Chelda, Inc., ––– N.C.App. ––––, ––––, 735 S.E.2d 203, 212 (2012) review dismissed, cert. denied,––– N.C. ––––, 736 S.E.2d 191 (2013) (citation omitted) (alteration in original). “A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). “To prove deception, while ‘it is not necessary ... to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception, [a] plaintiff must, nevertheless, show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception.’ “ Capital Res., LLC, ––– N.C.App. at ––––, 735 S.E.2d at 212 (citation omitted) (alterations in original).
Here, Plaintiff contends that OAB violated various North Carolina and Virginia statutes relating to motor vehicles. However, Plaintiff fails to draw any meaningful nexus between these statutes and his claim for unfair and deceptive trade practices. As stated previously, it is not this Court's function to create an argument on Plaintiff's behalf. Foster, 181 N.C.App. at 173, 638 S.E.2d at 540;Goodson, 171 N.C.App. at 606, 615 S.E.2d at 358.
We note Plaintiff's assertion that “a showing of fraud automatically gives a claim [sic] to an unfair and deceptive trade practice.” This assertion is meritless in light of our discussion in Part II(A)(1), supra, and, in any event, “[t]he trial court's correct ruling [on Plaintiff's fraud claim] makes it unnecessary to address plaintiff's [argument] regarding his claim for unfair and deceptive trade practices [on the basis of an allegation of fraud].” Maynard, 108 N.C.App. at 250, 423 S.E.2d at 510. This argument is accordingly overruled.
4. Breach of Contract
Plaintiff next contends that “the trial court erred by dismissing [his] claim for breach of contract when there was an implied warranty.” Plaintiff argues that there was “no written contract in place and an unenforceable oral contract” and that “we must turn to the uniform commercial code ... [where] we find that the implied warranty of merchantability arises upon sale of a used car by a dealer.” Plaintiff's argument fails because an implied warranty, such as the implied warranty of merchantability, cannot arise absent a valid contract. SeeN.C. Gen.Stat. § 25–2–314(1) (2011). Further, the “AS–IS” language in the Sales Agreement signed by Plaintiff foreclosed any such claim for breach of an implied warranty. SeeN.C. Gen.Stat. § 25–2–316(3)(a) (2011) (providing that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like ‘as is,’ ‘with all fault’ or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty”). We further note that the language on the second page of the Sales Agreement, which states in relevant part that the Vehicle was “sold WITHOUT WARRANTY, EXPRESS OR IMPLIED, WARRANTY OF MERCHANTABILITY[,]” also precluded Plaintiff's claim for breach of the implied warranty of merchantability. SeeN.C. Gen.Stat. § 25–2–316(2) (2011) (providing that the implied warranty of merchantability may be excluded by a “conspicuous” written disclaimer of “merchantability”); Maynard, 108 N.C.App. at 249, 423 S.E.2d at 509 (holding that “the Purchase Agreement contained more than that necessary to properly exclude the implied warranty of merchantability” where the agreement “mention[ed][ ] ‘merchantability’ in conspicuous language”). Plaintiff's contention is accordingly overruled.
B. Plaintiff's Motion to Amend Complaint
We next address Plaintiff's contention that the trial court erred in denying his motion to amend his complaint. Our review of the record reveals that Plaintiff has not appealed from the trial court's 19 June 2012 order denying his motion to amend. The notices of appeal included in the appellate record reference only the 10 May 2012 summary judgment order and the 21 September 2012 order awarding attorneys' fees. Accordingly, we do not have jurisdiction to consider this issue. SeeN.C.R.App. P. 3(d) (2013) (providing that the “notice of appeal ... shall designate the judgment or order from which appeal is taken”); see also Zairy v. VKO, Inc., ––– N.C.App. ––––, ––––, 712 S.E.2d 392, 393 (2011) (declining to consider order not designated in the notice of appeal).
C. Attorneys' Fees
Plaintiff finally contends that the trial court erred in ordering him to pay OAB's attorneys' fees, arguing that the trial court lacked jurisdiction over this matter at the time it entered the order awarding attorneys' fees. We agree.
The appellate record regarding Plaintiff's challenge to the trial court's summary judgment order was filed with this Court on 11 September 2012. Ten days later, the trial court entered its order awarding attorneys' fees. Plaintiff timely filed a separate notice of appeal from that order on 19 October 2012; by that time, Plaintiff had already filed his principal brief, which does not raise the issue of attorneys' fees. However, OAB raised this issue in its appellee brief, contending that the trial court correctly awarded attorneys' fees in its favor; and Plaintiff responded with countering arguments in a subsequently filed reply brief. Because Plaintiff properly noticed his appeal from the trial court's order and because the issue has been briefed by both parties, we exercise our discretion pursuant to Rule 2 of our Appellate Rules in order to reach the merits on this issue. SeeN.C. R.App. P. 2 (2013) (providing that an appellate court may “suspend or vary the requirements” of the appellate rules in order “[t]o prevent manifest injustice to a party, or to expedite decision in the public interest”).
Plaintiff argues, in substance, that his 11 June 2012 notice of appeal from the trial court's summary judgment order divested the trial court of the requisite jurisdiction to enter a subsequent order awarding attorneys' fees. The “general rule” is that “a timely notice of appeal removes jurisdiction from the trial court and places it in the appellate court[.]” Parrish v. Cole, 38 N .C.App. 691, 693, 248 S.E.2d 878, 879 (1978) (citing Machine Co. v.. Dixon, 260 N.C. 732, 133 S.E.2d 659 (1963)). “Pending appeal, ‘the trial judge is [generally] functus officio, subject to two exceptions and one qualification, none of which are applicable to the instant case.’ “ McClure, 185 N.C.App. at 469, 648 S.E.2d at 550 (quoting Kirby Bldg. Sys., Inc. v. McNiel, 327 N.C. 234, 240, 393 S.E.2d 827, 831 (1990)). The relevant portion of N.C. Gen.Stat. § 1–294, which governs this issue, provides as follows:
When an appeal is perfected as provided by this Article it stays all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action and not affected by the judgment appealed from.
N.C. Gen.Stat. § 1–294 (2011). “In McClure, this Court held that a trial court lacked subject matter jurisdiction under N.C. Gen.Stat. § 1–294 ... to enter an order awarding attorneys' fees and costs after notice of appeal had been filed as to the underlying judgment.” In re Johnson, –––N.C.App. ––––, ––––, 714 S.E.2d 169, 175 (2011) (citing McClure, 185 N.C.App. at 471, 648 S.E.2d at 552). Further, “if an award of attorneys' fees is the result of a party's prevailing as to the underlying judgment, then the issue of attorneys' fees cannot be deemed a ‘matter included in the action and not affected by the judgment appealed from,’ ... and, therefore, the trial court lacks jurisdiction to enter an order awarding attorneys' fees following appeal of the judgment.” Johnson, ––– N.C App. at ––––, 714 S.E.2d at 175) (quoting N.C. Gen.Stat. § 1–294).
Here, the trial court entered its order awarding attorneys' fees on 21 September 2012, more than three months after Plaintiff noticed his appeal from the trial court's summary judgment order on 11 June 2012. We conclude that Plaintiff's notice of appeal from the summary judgment order divested the trial court of the jurisdiction required to enter the subsequent order awarding attorneys' fees. We express no opinion with respect to whether OAB had or has a valid claim for attorneys' fees; rather, because we have concluded that the trial court lacked jurisdiction to enter the 21 September 2012 order, we vacate and remand the order to the trial court to address this issue. See Johnson, ––– N.C.App. at ––––, 714 S.E.2d at 176 (vacating and remanding the trial court's order awarding attorneys' fees upon concluding that the trial court lacked jurisdiction to enter the order).
III. Conclusion
For the foregoing reasons, the trial court's order awarding summary judgment in favor of OAB is affirmed. However, the trial court's order awarding attorneys' fees is vacated and remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; and REMANDED. Judges STEPHENS and STROUD concur.
Report per Rule 30(e).