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Krause v. RK Motors, LLC

Court of Appeals of North Carolina

March 7, 2017

TOM KRAUSE, Plaintiff,

          Heard in the Court of Appeals 9 February 2017.

         Appeal 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 plaintiff-appellant.

          Johnston, Allison & Hord, P.A., by Scott R. Miller and Martin L. White, for defendants-appellees.

          MURPHY, Judge.

         Plaintiff 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.

         RK 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.

         Factual Background

         Krause, 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."

         The 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."

         Krause 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.

         Approximately 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.

         Krause 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."

         On 16 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 ...

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