in the Court of Appeals 26 March 2019.
by JOC Farms, LLC from order entered 1 May 2018 by Judge Alma
L. Hinton in Pitt County, No. 14 CVS 2408 Superior Court.
Stevens Martin Vaughn & Tadych, PLLC, by Michael J.
Tadych, for third-party plaintiff-appellant JOC Farms, LLC.
Bond Dickinson (US) LLP, by Jamie A. Dean and Ryan H. Niland,
for third-party defendant-appellee CNH Industrial America,
Farms, LLC ("JOC") appeals from the trial
court's order, which granted CNH Industrial America, LLC,
d/b/a Case IH ("Case") summary judgment on
JOC's claims for breach of warranty, fraud, and unfair
and deceptive trade practices. We affirm the trial
purchased a 2006 model 921C loader (the "Loader")
manufactured by Case from Briggs Construction Equipment, Inc.
("Briggs") on or about 30 April 2009. Briggs had
previously purchased the Loader from Case on 29 August 2008.
Case had issued a manufacturer's warranty (the "Case
Warranty") for the Loader. The Case Warranty states, in
If a defect in material or workmanship is found in a unit
and reported during the Warranty Period, Case will pay
parts and labor costs to repair the defect, if the services
are performed by an authorized Case dealer at the
dealer's location. [Emphasis supplied].
warranty period stated in the Case Warranty began "at
the time that any person, dealer or agent first places the
unit into service" and ended "when either the month
or machine hour limit is reached, whichever limit occurs
first." The warranty period for the Loader's engine
lasted 24 months or until the engine reached 2, 000 machine
hours, whichever occurred first. The warranty period for
components, other than the engine, was one year after the
date the Loader was placed into service.
Case Warranty also states, in relevant part:
No Modification or Extension of Warranty
The Case Warranty is limited to the written terms in this
pamphlet. Case does not authorize any person, dealer or
agent to change or extend the terms of this warranty in
any manner. Any assistance to the purchaser in the repair
or operation of any Case product outside the terms or
limitations or exclusions of this warranty will not
constitute a waiver of the terms, limitations or exclusions
of this warranty, nor will such assistance extend or
re-establish the warranty. [Emphasis supplied].
Case Warranty included the following disclaimer:
THIS DOCUMENT CONTAINS THE ENTIRE CASE WARRANTY. CASE
MAKES NO OTHER REPRESENTATIONS OR WARRANTIESEXPRESSED OR
IMPLIED AND SPECIFICALLY EXCLUDES THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE.
[Emphasis in original]
Appellant purchased the Loader from Briggs, the Loader had
already accrued 887 machine hours. Before completing the
purchase, Appellant's owner Joseph Briley, Jr.
("Briley) took the Loader for a test drive. During the
test drive, Briley mentioned to Briggs' salesman that the
Loader exhibited a significant vibration. Briley did not
think the vibration was significant enough to preclude his
purchasing the Loader, JOC also purchased a 3-year/3, 000
hour extended warranty plan, referred to as a "Purchased
Protection Plan," ("PPP") through Briggs'
dealership. The PPP was issued by EPG Insurance, Inc.
("EPG"). According to the affidavit of Mark T.
Heman ("Heman"), a product support manager for
Case, "PPPs are sold through the dealer and are
generally designed to cover defects that arise after the
manufacturer's warranty has expired[, ]" and
"[Case] is not a party to any PPP issued by EPG."
JOC's purchase of the Loader, JOC and a sister company
named Pea Creek Mine, LLC ("Pea Creek") began using
the Loader for industrial tasks, including extracting sand,
loading, and hauling lime and fertilizer. Pea Creek was also
owned by JOC's owner, Briley. Over a five year period
after purchase, JOC and Pea Creek amassed more than 7, 000
machine hours on the Loader.
first time JOC took the Loader to Briggs for servicing was on
8 June 2009. JOC reported that the Loader's battery would
not hold a charge and the cables were not working. A warranty
claim was submitted to Case, who paid the claim under the
next time JOC brought the Loader to Briggs for repairs was
September 2010. The reported issue was a problem with the
Loader's fuel coil. A warranty claim was not submitted to
Case for this problem. Instead a claim was submitted to EPG
by Briggs under the PPP. EPG paid the covered portion of this
claim. At the time JOC brought the loader to Briggs for
repair in September 2010, the Loader had accrued 2, 508
February 2011, JOC brought the Loader to East Carolina
Equipment Company for repairs related to a bearing in the
transmission which was causing "vibration in power train
while traveling." A claim was submitted to EPG for the
repairs and EPG paid the covered portion under the PPP.
April 2011, Case received a warranty claim relating to the
Loader's transmission. In October 2011, Case received
another warranty claim relating to the Loader's
instrumentation. The Case Warranty had long expired by
accrued hours and passage of time when both of these claims
were filed. According to Heman's affidavit, for the April
2011 claim, Case paid $6, 625.00 to JOC for a rental loader.
For the October 2011 claim, Case paid $1, 146.29 towards the
repair costs. According to Heman, Case made these payments as
gestures of goodwill to maintain clients and as
"assistance to the purchaser in the repair or operation
of any Case product outside the terms or limitations or
exclusions of [the] warranty."
in 2011 or 2012, JOC contacted Case to request further
financial assistance with an alleged vibration problem with
the Loader. Case's product support manager, Jeffrey
Schoch, met with JOC's representatives to discuss the
issue. According to JOC's owner, Briley, Schoch told him
that Case "would stand behind their product." JOC
and Pea Creek continued to use the Loader.
February 2012, JOC filed a voluntary petition for bankruptcy
protection under Bankruptcy Code Chapter 11 in the United
States Bankruptcy Court for the Eastern District of North
Carolina. See 11 U.S.C. § 301.
On 26 February 2013, the Bankruptcy Court approved JOC's
proposed plan of reorganization. JOC did not list any
potential legal claims against Case as an asset in its
in September 2013, JOC brought the Loader to Hills Machinery
Company, LLC ("Hills") for repairs. In May 2015,
Hills filed suit against JOC, Pea Creek, and Briley,
allegedly for the failure to pay a balance due of $34, 708
allegedly owed for repairs to the Loader. JOC responded by
filing counterclaims against Hills and asserting third-party
claims against Case on 4 August 2015. JOC alleged that
problems with the Loader were related to a vibration it
asserted Case had undertaken to repair during the warranty
period, but had failed to do. JOC asserted claims for breach
of warranty, fraud, and unfair and deceptive trade practices
October 2017, Case filed a motion for summary judgment on
JOC's claims pursuant to Rule 56(b) of the North Carolina
Rules of Civil Procedure. On 26 October 2017, Pea Creek and
JOC gave notice of five depositions to Hills and Case. Hills
filed a motion for a protective order to reschedule the
deposition of one of its witnesses due to a medical
condition. Case filed an emergency motion for a protective
order to prevent Pea Creek and JOC from proceeding with the
depositions. The trial court heard Case's and Hills's
motions for protective order, and ordered JOC to postpone one
of the noticed depositions. The parties consented to JOC and
Pea Creek proceeding with the other four depositions.
the completion of depositions by JOC and Pea Creek, Case
filed a renewed motion for summary judgment. The trial court
heard Case's summary judgment motion and granted summary
judgment to Case on all of JOC's claims. JOC filed timely