in the Court of Appeals 9 February 2017.
by plaintiff from order entered 7 June 2016 by Judge Hugh B.
Lewis in Mecklenburg County No. 15 CVS 8568 Superior Court.
Blossom Law PLLC, by Rashad Blossom, and The Law Offices of
Jason E. Taylor, by Lawrence B. Serbin, for
Johnston, Allison & Hord, P.A., by Scott R. Miller and
Martin L. White, for defendants-appellees.
Tom Krause ("Krause") appeals from the trial
court's order granting RK Motors, LLC ("RK
Motors") and Western Surety Company's (collectively
"Defendants") motion for summary judgment.
Specifically, he contends the trial court erred in granting
Defendants' motion as the motion failed to state with
particularity its bases, and in making findings of
controverted fact and conclusions of law in its order.
Further, Krause argues that the trial court's grant of
summary judgment in Defendants' favor as to his claims
for fraud, unfair and deceptive trade practices, negligent
misrepresentation, and breach of express warranty were
unsupported by law.
Motors' counterclaim for unfair and deceptive trade
practices remains before the trial court. Additionally, the
trial court's order granting summary judgment retained
jurisdiction over the case "for such other and further
orders as may be necessary and appropriate including, but not
limited, to orders for the award of attorneys' fees and
recovery of costs." On these bases, the present appeal
is interlocutory. Neither party has argued why this case is
properly before us despite its interlocutory nature, and it
is not the role of this Court to create an appeal for an
appellant. Accordingly, we dismiss the appeal for lack of
subject matter jurisdiction.
a citizen and resident of California, was in the market to
purchase a restored vintage performance automobile when he
came across RK Motors' online listing for a 1967
Chevrolet Nova (the "Nova"). RK Motors is a North
Carolina limited liability company located in Charlotte that
holds itself out as a dealer of antique, collectible, and
customized cars. Its website states that all cars in its
showroom earn "the RKM Performance Center Seal of
Approval, a comprehensive 70 point inspection performed by
one of [the company's] ASE certified technicians where
any major issues are found and addressed."
listing described the Nova and also displayed several
pictures as well as a video of the car. As alleged in
Krause's complaint, between its posting and
communications with him, RK Motors represented that the Nova:
Had 137 miles on it; contained a 383 cubic inch small block
V8 supercharged engine with 540 horsepower designed "to
go straight at a very high rate of speed"; was
professionally assembled and restored; would be an excellent
car for someone looking for sheer performance; could be
driven and enjoyed; was a "pavement-scorcher" with
a six-figure build cost after months of skilled workmanship
and hours of thorough detailing in accordance with exacting
specifications; had a no-compromises, impressive drivetrain
with momentum that perfectly complemented solid, undercoated
floor plans and a long roster of serious speed equipment;
included a transmission that executed "quick, efficient
shifts on the heels of wheel stand-inducing launches";
was "fully sorted and ready to pound the pavement";
and was "ready to hit the road for Friday night cruises,
Saturday morning poker runs or Sunday afternoon shows."
The listing also reassured that RK Motors was a company of
car enthusiasts who "know the kind of dedication a high
dollar project takes."
first contacted RK Motors regarding the Nova on 16 August
2013, and he was informed that there was a pending sale of
the car. Unbeknownst to Krause, when the other buyer arrived
to pick up the Nova, it ran poorly, overheated, and was
spewing radiator fluid after being driven only one-eighth of
a mile. That buyer rescinded the contract to purchase the
Nova on the spot.
one month later, Krause revisited the website and noticed the
listing was still posted and the "pending sale"
note had been removed. On 15 September 2013, Krause emailed
Frank Carroll ("Carroll"), RK Motors' Vice
President of Sales, and was told the earlier buyer's
"wife had nixed the deal." Later, however,
Carroll's story changed, and he reported that the
previous buyer had "a bad record" with the bank,
making it difficult for him to get insurance for a classic
car. This change likely resulted from Carroll's tendency
to, as he put it, "ma[k]e up something" when asked
why a deal fell through.
asked Dave Kindig ("Kindig"), a professional car
builder, to review the listing and then contacted Carroll to
ask a few questions about the Nova. Krause explained that he
and Kindig had noticed the Nova had a crack in its
lower-left-rear panel above the exhaust pipe, and he wanted
to know what had caused the crack and whether it had been
repaired. Carroll replied "that the [Nova]'s
horsepower caused vibration that might have caused the crack,
" but the crack "had been repaired."
September 2013, RK Motors emailed Krause a number of
documents pertaining to the proposed sale of the Nova,
including a Bill of Sale and Odometer Disclosure Statement,
both signed by the company's president. That paperwork
reiterated that there were 137 miles on the Nova. Based on RK
Motors' advertisement, photographs, video, emails, verbal
representations, Bill of Sale, and Odometer Disclosure
Statement, Krause was induced to enter into the contract to
purchase the Nova. He paid $67, 000.00 to RK Motors in the