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Terrell v. Kernersville Chrysler Dodge, LLC

Court of Appeals of North Carolina

March 21, 2017

MICAH TERRELL, Plaintiff,
v.
KERNERSVILLE CHRYSLER DODGE, LLC, Defendant.

          Heard in the Court of Appeals 6 October 2016.

         Appeal by defendant from order entered 17 December 2015 by Judge David L. Hall in Superior Court, Forsyth County. Forsyth County, No. 15 CVS 3771

          Public Justice, P.C., by Leah M. Nicholls, pro hac vice, and Norris Law Firm, PLLC, by J. Matthew Norris, for plaintiff-appellee.

          Jeffrey F. Hutchins for defendant-appellant.

          STROUD, Judge.

         Defendant Kernersville Chrysler Dodge, LLC ("defendant") appeals from the trial court's order denying defendant's motion to compel arbitration. Because the trial court failed to include any findings of fact in its order denying defendant's motion, we must reverse its order and remand for the trial court to make findings and conclusions on the motion.

         Facts

         Plaintiff's complaint set forth the following allegations. On 23 April 2015, plaintiff contacted defendant about a vehicle defendant had advertised for sale ("the vehicle"). Plaintiff placed a $500.00 hold on the vehicle over the phone, and defendant's employee, Larissa Santos, provided plaintiff with information and photographs of the vehicle. Plaintiff also gave Ms. Santos several questions to ask the service department about the vehicle's condition. Ms. Santos contacted plaintiff the following day and let him know that his questions had been given to the service department and that the vehicle was currently being serviced. Ms. Santos gave plaintiff a price quote for the vehicle, and on 25 April 2015, plaintiff drove down from Charlottesville, Virginia, for a test drive and, if he decided to buy it, to complete his purchase of the vehicle.

         After arriving, plaintiff met salesperson Brandon Widener and took the car for a test drive. During the test drive, plaintiff noticed a noise coming from the engine compartment and brought it to Mr. Widener's attention, who took the vehicle to one of defendant's mechanics for an inspection. After approximately two hours, plaintiff was told that the " 'tensioner pulley' " was causing the noise and that the part had been replaced. Plaintiff alleged that defendant "assured [p]laintiff that the Vehicle had undergone a thorough inspection prior to sale, that it was a safe Vehicle, and that there were no major structural or mechanical problems." Relying on those representations, plaintiff purchased the vehicle and drove it home.

         On the way home, plaintiff noticed "some slight issues with the steering and the u-joint/ball joint/axle area." Shortly after getting back home, plaintiff contacted defendant about these issues and let Ms. Santos know that he planned to have the issues looked at by a repair shop in Charlottesville. Plaintiff dropped the vehicle off on 30 April 2015, and two days later, the repair shop told plaintiff that the vehicle "had significant 'frame rot', caused by rust and decay over the entire underside frame and engine mount." Because of this issue, the vehicle would not pass a Virginia State Inspection and was unsafe to drive.

         Plaintiff filed his complaint on 25 June 2015, alleging defendant engaged in unfair and deceptive trade practices, fraud, and breach of an express warranty. Defendant initially filed a pro se answer denying the material allegations in plaintiff's complaint, which was stricken by the trial court on 1 September 2015. Defendant then filed a new answer on 17 September 2015, followed by a motion to compel arbitration on 13 November 2015. Defendant attached to the motion copies of the documents it alleged were the governing arbitration agreement and the retail purchase agreement. The copy of the retail purchase agreement -- as attached by defendant - appears to be signed and dated by plaintiff. The form has two signature lines for "purchaser" at the bottom left side and the signature appears on one of the lines. There are two additional blank lines at the bottom of the form on the right. The top line is labeled as "salesperson" and is filled in with the typewritten name "Brandon P. Widener." The bottom line is labeled "accepted by authorized dealership representative" and the handwritten initials "RCM" appear above this line. We also note that it is not clear if the retail purchase agreement as it appears in our record has only one page or if the "Governing Arbitration Agreement" is a separate form, although the arbitration agreement may be on the reverse side of the retail purchase agreement.[1] One section of the retail purchase agreement, entitled "OTHER MATERIAL UNDERSTANDINGS AND INCORPORATED DOCUMENTS" has a provision which states as follows:

4. I understand that any dispute arising from, or relating to this transaction, shall be settled by neutral arbitration pursuant to the GOVERNING ARBITRATION AGREEMENT signed by my hand and incorporated into this Agreement.
(CONTINUED ON THE REVERSE SIDE OF THIS AGREEMENT)
I HAVE BEEN GIVEN AMPLE OPPORTUNITY TO EXAMINE THIS ENTIRE RETAIL PURCHASE AGREEMENT, FRONT AND BACK, AND I HEREBY ACCEPT THE TERMS AND CONDITIONS INCLUDING THOSE LISTED ON THE REVERSE SIDE OF THIS AGREEMENT.

         The retail purchase agreement also has the following provision just above the signature lines:

I HEREBY ACKNOWLEDGE THIS AGREEMENT IS COMPLETE AND ACCURATELY REFLECTS ANY AND ALL RELATED DOCUMENTS SIGNED BY MY HAND AND REFERENCED AS INCORPORATED INTO THIS ...

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