               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA16-594

                               Filed: 20 December 2016

Burke County, No. 14 CVS 925

NOLAN RUDOLPH MAUNEY, JR., Plaintiff,

              v.

STEPHANIE BROWN CARROLL, Defendant.


        Appeal by Plaintiff from order entered 28 March 2016 by Judge Yvonne Mims-

Evans in Burke County Superior Court. Heard in the Court of Appeals 2 November

2016.


        Law Offices of Jason E. Taylor, PC, by Lawrence B. Serbin and Jason E. Taylor,
        for the Plaintiff-Appellant.

        Ball Barden & Cury, P.A., by Ervin L. Ball Jr., and Alexandra Cury, for the
        Defendant-Appellee.


        DILLON, Judge.


        Nolan Mauney, Jr., (“Plaintiff”) appeals from the trial court’s order of partial

summary judgment in his suit against Stephanie Carroll (“Defendant”) arising from

a traffic accident which caused damages to a car Plaintiff was leasing.

                                     I. Background

        In March 2013, Plaintiff leased a new 2013 Porsche Boxter S from a dealership

(“Lessor”) for a period of 27 months. In October 2013, Plaintiff and Defendant were

involved in a traffic accident. The accident caused damage to the Porsche. After the
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                                         Opinion of the Court



accident, Plaintiff had the Porsche repaired.                   The repairs were completed in

November 2013, a little over five weeks after the accident. Thereafter, Plaintiff

continued driving the Porsche for approximately fifteen (15) months before trading it

in to the Lessor for a newer Porsche model.

       Plaintiff filed this action against Defendant seeking (1) “repair cost” damages,

(2) “loss of use” damages for the time the Porsche was being repaired, and (3) damages

for the “diminution in value” of the Porsche as a result of the accident.

       Defendant moved for summary judgment. Following a hearing on the matter,

the trial court granted Defendant partial summary judgment on Plaintiff’s claim for

(1) “loss of use” damages and (2) “diminution in value” damages.1 Plaintiff timely

appealed.

                                            II. Analysis

       On appeal, we review a trial court’s grant of a motion for summary judgment

de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). Summary

judgment is appropriate when, viewed in a light most favorable to the non-moving

party, the evidence presents “no genuine issue of material fact” and it is clear that




       1    Although Plaintiff appeals from an order for partial summary judgment, this appeal is not
interlocutory. The record shows that Plaintiff subsequently took a voluntary dismissal with prejudice
of his remaining claim. See Goodman v. Holmes & McLaurin Attorneys at Law, 192 N.C. App. 467,
471, 665 S.E.2d 526, 530 (2008) (holding that a plaintiff’s voluntary dismissal of “[a] remaining claim
. . . has the effect of making the trial court’s grant of partial summary judgment a final order”).

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“any party is entitled to a judgment as a matter of law.” Id.; see also N.C. Gen. Stat.

§ 1A-1, Rule 56(c) (2015).

      Here, Plaintiff challenges the trial court’s grant of summary judgment for

Defendant on Plaintiff’s claims for “diminution in value” damages and “loss of use”

damages. We conclude that Plaintiff failed to present competent evidence concerning

the diminution in value of his lease interest in the Porsche; therefore, we affirm the

trial court’s grant of summary judgment in favor of Defendant on Plaintiff’s

“diminution in value” claim. However, Plaintiff did present evidence sufficient to

create a material issue of fact regarding his entitlement to “loss of use” damages;

therefore, we reverse the trial court’s grant of summary judgment with respect to

Plaintiff’s “loss of use” claim and remand the matter for action consistent with this

opinion. We address our resolution of each claim below.

                             A. Diminution of Value Claim

      In the action, Plaintiff seeks “diminution in value” damages, that is, the

difference in the fair market value of the Porsche before the accident and the fair

market value of the Porsche after the accident. On appeal, Plaintiff argues that the

trial court erred in granting Defendant’s motion for summary judgment on this claim.

We disagree.

      It was Plaintiff’s burden at the summary judgment hearing to present

sufficient evidence to establish his claim for diminution in value damages. Plaintiff



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argues that although he is not the title owner of the Porsche, he is entitled to recover

the diminution of value of the Porsche. As a lessee, Plaintiff does not have standing

to seek damages for the diminution in value of the full ownership interest in the

Porsche, as damages for this loss would be properly asserted by Lessor. See Aubin v.

Susi, 149 N.C. App. 320, 324, 560 S.E.2d 875, 878 (2002) (noting that standing is a

“necessary prerequisite to a court’s proper exercise of subject matter jurisdiction”).

Further, Plaintiff admitted at his deposition that Lessor did not charge him for any

diminution of value when Plaintiff traded in the Porsche.

      Plaintiff also argues that he is entitled to recover for diminution in value of his

leasehold interest. Even assuming that Plaintiff had a valid claim for diminution in

value of his lease interest, Plaintiff failed to present competent evidence of the

diminution in value of this interest. Rather, Plaintiff only offered evidence showing

a diminution in value of the full ownership interest in the Porsche. Specifically, he

offered the opinion of Collision Safety Consultants (“CSC”), a self-described

“diminished value and post collision repair inspector,” that the Porsche’s total value

was $68,000 before the accident and $60,000 after the accident.

      Therefore, we conclude that the trial court properly granted summary

judgment on Plaintiff’s “diminution in value” claim.

                               B. Loss of Use Damages




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      Plaintiff also seeks “loss of use” damages, contending that he is entitled to

damages for the time he was deprived of use of the Porsche during the 37 days it was

being repaired. We conclude that there was enough evidence to create a genuine

issue of fact on this issue. Accordingly, we reverse the grant of summary judgment

on this claim and remand the matter for further proceedings consistent with this

opinion.

      Our Supreme Court has held that the owner of a vehicle damaged by the

negligence of another may recover damages for loss of use of a vehicle during the time

it is being repaired. Roberts v. Pilot Freight Carriers, Inc., 273 N.C. 600, 606, 160

S.E.2d 712, 717 (1968). Specifically, in Roberts the Court held that if the damaged

vehicle “can be repaired at a reasonable cost and within a reasonable time,” the owner

of the vehicle is “entitled to recover such special damages as he has properly pleaded

and proven for the loss of its use during the time he was necessarily deprived of it.”

Id. The Court also held that the cost of renting a substitute vehicle “during the time

reasonably necessary to . . . repair the [damaged vehicle] is the measure of [loss of

use] damage even though no other vehicle was [actually] rented.” Id. at 607, 160

S.E.2d at 718 (emphasis added). Roberts involved damages to a business vehicle. Our

Court has held that this same rule applies to personal and pleasure vehicles, stating

that an owner is entitled to “loss of use” damages of a personal vehicle even if he did

not actually rent a substitute vehicle while the damaged vehicle was being repaired:



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                                     Opinion of the Court



               A loss of use recovery is generally allowed as to pleasure
               vehicles as well as business vehicles. Even though loss of
               use is allowed for pleasure vehicles, some courts have
               denied recovery unless an actual substitute is obtained. We
               decline to hold that plaintiffs must actually rent a
               substitute to recover for loss of use of a pleasure vehicle.

Martin v. Hare, 78 N.C. App. 358, 364-65, 337 S.E.2d 632, 636 (1985) (citations

omitted) (emphasis added).

         In the present case, Plaintiff is not the title owner of the Porsche. Plaintiff

admitted this fact in his deposition testimony and by failing to respond to a request

for admission which established that he was not the owner. Defendant therefore

argues that Plaintiff lacks standing to seek “loss of use” damages. We disagree.

         While Plaintiff is not the title owner, he did own a lease interest in the Porsche.

Thus, it was Plaintiff who was deprived of his right to use the Porsche while it was

being repaired. Lessor, the title owner, did not suffer any loss of use damage during

this period because it had no right to use the Porsche for the duration of Plaintiff’s

lease.

         We conclude that there was sufficient evidence before the trial court to create

a genuine issue of material fact as to whether Plaintiff is entitled to “loss of use”

damages based on whether the Porsche was repaired at a reasonable cost and within

a reasonable time. See Roberts, 273 N.C. at 607, 160 S.E.2d at 718. Specifically, there

was evidence that the Porsche was repaired in 38 days after the accident and that




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                                   Opinion of the Court



the repairs cost $6,311.00. It is for a jury to determine whether the repair time and

costs were reasonable.

      We further conclude that there is a genuine issue of material fact regarding

the amount of Plaintiff’s “loss of use” damages. For example, Plaintiff offered a report

showing that it would have cost him $400 per day to lease the identical make and

model car, evidence which our Supreme Court held in Roberts is competent to

measure “loss of use” damages. Further, the lease contract between Plaintiff and

Lessor – which shows that Plaintiff had agreed to lease the Porsche for twenty-seven

(27) months for a total cost of approximately $33,000, or about $40 per day – is some

evidence of the cost to rent a replacement car. See Sprinkle v. N.C. Wildlife Res.

Comm’n, 165 N.C. App. 721, 728-29, 600 S.E.2d 473, 478 (2004) (concluding that

evidence of monthly finance payments made by the owner of a boat was appropriate

to consider in measuring loss of use damages).

      This is not to say that Plaintiff has established as a matter of law that he is, in

fact, entitled to “loss of use” damages. For instance, Plaintiff has a duty to mitigate

his damages, and there is evidence that Plaintiff refused offers from the insurance

companies involved to provide a rental car while the Porsche was being repaired.

Further, there was evidence that Plaintiff actually used another vehicle available to

him while the Porsche was being repaired, evidence which a jury could consider in

calculating “loss of use” damages. It is for a jury to wade through this evidence and



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other competent evidence that might be introduced at trial to determine what

amount, if any, Plaintiff is entitled to recover for “loss of use” damages.

      AFFIRMED IN PART, REVERSED AND REMANDED IN PART.

      Judges ELMORE and HUNTER, JR., concur.




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