           Case: 19-14955   Date Filed: 06/26/2020   Page: 1 of 10



                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-14955
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 8:18-cv-00424-JDW-JSS


GERALDINE KELLY,

                                                            Plaintiff-Appellant,

                                  versus

LEE COUNTY RV SALES COMPANY,
a.k.a. North Trail RV Center,
NEWMAR CORPORATION,

                                                        Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                              (June 26, 2020)

Before WILLIAM PRYOR, Chief Judge, GRANT and LUCK, Circuit Judges.

PER CURIAM:
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      Geraldine Kelly appeals the partial dismissal with prejudice and partial

summary judgment against her complaint against Lee County RV Sales Company,

doing business as North Trail RV Center, and Newmar Corporation. Three years

after North Trail sold her a recreational vehicle manufactured by Newmar, Kelly

sued both companies for alleged defects in the vehicle. The district court ruled that

Kelly’s complaint failed to state a claim of either fraud or fraudulent inducement

and dismissed those claims with prejudice. And the district court later entered

summary judgment against Kelly’s complaint that both companies breached

express and implied warranties in violation of the Magnuson-Moss Warranty Act,

15 U.S.C. § 2302, and breached warranties required by state law, Fla. Stat.

§ 320.835. Because Kelly does not challenge the adverse rulings against her claims

of fraud and violations of state warranties or her claim against North Trail for

violating the Act, we deem those issues abandoned. See Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir.2012). Kelly challenges the

dismissal of her claims of fraudulent inducement and the summary judgment

against her claim that Newmar violated the Act. We affirm.

                                I. BACKGROUND

      On June 4, 2014, Kelly bought a new Canyon Star recreational vehicle from

North Trail. She purchased the vehicle without meeting or talking to a Newmar

representative. North Trail provided Kelly an installment contract, and she


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completed a pre-delivery inspection form. Kelly wrote on the form that she took “2

½ hours” to inspect the vehicle, had driven it “at the time of purchase,” and “found

the vehicle to be without defects.”

      Kelly executed a two-page purchase contract. Each page had a clause,

written in all capital letters and bold font, stating that North Trail “expressly

disclaim[ed] all warranties, either express or implied” and that the contract

constituted their entire agreement. The disclaimer clause on the second page of the

contract also stated “that the manufacturer(s) limited written warranty(s) on this

vehicle . . . contains and constitutes the sole remedy for any problems or defects

this vehicle might contain.” The second page of the contract also contained a

paragraph that defined the terms “dealer,” “purchaser” and “manufacturer” and

described their respective relationships:

      As used in this Contract, the terms (a) “Dealer” or “Seller” shall mean
      the Authorized Dealer to whom this Contract is addressed and who shall
      become a party hereto by its acceptance hereof; (b) “Purchaser” shall
      mean the party executing this Contract as such on the face hereof; and
      (c) “Manufacturer” shall mean the corporation that manufactured the
      vehicle or chassis, it being understood by Purchaser and Dealer that
      Dealer is in no respect the agent, that Dealer and Purchaser are the solo
      parties to this Contract and that reference to Manufacturer herein is for
      the purpose of explaining generally certain contractual relationships
      between Dealer and Manufacturer with respect to new vehicles.

      North Trail told Kelly that Newmar provided a one-year limited warranty for

the vehicle. The certificate from Newmar stated that if “any part” of the vehicle

“fail[ed] because of a manufacturing defect within twelve (12) months from the . . .
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date of purchase, it will be repaired without charge for either parts or labor . . . .”

The certificate also stated it was “an essential term of this warranty” that

purchasers report to and have defects corrected at the “selling dealership or at an

authorized Newmar service center.” The company excluded from its warranty any

product “used for commercial purposes (any use for business or profit),” the

“[i]nstallation of any ‘aftermarket’ devices,” and all routine maintenance, which

included the “[c]osmetic alignment of the ‘slide out(s)’ and other cosmetic

adjustments . . . .”

       In 2014, Kelly had a series of problems with the vehicle. In June, an awning

North Trail added to the vehicle malfunctioned. North Trail replaced a control

board in the unit, which permanently remedied the problem. In October, the

driver’s side slide-out panel would not retract, and Kelly had the panel repaired

without charge at a shop in Pennsylvania that was not approved by Newmar.

       During Kelly’s first year of ownership, North Trail made other repairs to her

vehicle without charge. In November 2014, North Trail repaired the passenger’s

side slide-out panel and the microwave. In January 2015, North Trail installed a

surge protector, and in April 2015, it replaced the microwave. And when Kelly

reported that her windshield “fell out,” North Trail returned the windshield to its

frame and re-sealed the molding.




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      North Trail also repaired Kelly’s vehicle without charge after the one-year

warranty period expired. In 2016, North Trail replaced Kelly’s hot water heater.

Although Newmar “respectfully declined [Kelly’s] request for trade assistance” in

January 2017 to repair the chassis of her vehicle, later that year North Trail re-

attached the molding surrounding Kelly’s windshield after it detached.

       In 2018, Kelly filed a complaint in a Florida court against North Trail and

Newmar, which the companies removed to the district court. Kelly alleged claims

of breach of express and implied warranties in violation of the Magnuson-Moss

Act, fraud, and fraudulent inducement. The district court ruled that Kelly’s latter

two claims failed as a matter of law and dismissed those claims with prejudice. The

district court also dismissed her claims based on the Act without prejudice and

granted her leave to amend her complaint.

      Kelly’s third amended complaint alleged claims against North Trail and

Newmar under the Act. Kelly alleged that North Trail breached “a ‘written

warranty’” and an “implied[] warrant[y] that said recreational vehicle was of

merchantable quality” that were created when it “completed a pre-delivery

inspection form(s).” Kelly also alleged that Newmar breached an implied warranty

of merchantability created by its agent, North Trail, and that Newmar breached its

written limited warranty by failing to remedy defects in the slide-out panels on the

vehicle and in the windshield.


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      The district court granted summary judgment in favor of North Trail and

Newmar. The district court ruled that North Trail had expressly and conspicuously

disclaimed all warranties in compliance with Florida law and that Kelly offered no

evidence that “the pre-delivery form constituted a written warranty” that the

vehicle “would be free from defects in material or workmanship.” The district

court also ruled that Kelly’s claim against Newmar for breach of an implied

warranty failed because North Trail was not an agent of Newmar and Kelly lacked

privity of contract with Newmar. And the district court ruled that Kelly’s claim

that Newmar breached its express warranty failed as a matter of law.

                          II. STANDARD OF REVIEW

      We review de novo the dismissal of a complaint for failure to state a claim

and accept its allegations as true, construing them in the light most favorable to the

plaintiff. Hunt v. Aimco Properties, L.P., 814 F.3d 1213, 1221 (11th Cir. 2016).

We also review de novo a summary judgment. Glob. Quest, LLC v. Horizon

Yachts, Inc., 849 F.3d 1022, 1026 (11th Cir. 2017).

                                 III. DISCUSSION

      Kelly raises three arguments on appeal. First, she argues that she enjoyed

privity of contract with Newmar for her claim of breach of the implied warranty of

merchantability. Second, Kelly argues that the record establishes that Newmar

breached its express warranty. Third, Kelly argues that the district court erred by


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dismissing her complaint of fraudulent inducement against North Trail. We address

each argument in turn.

                 A. Kelly Lacked Privity of Contract with Newmar.

      The Magnuson-Moss Act provides a cause of action for a “consumer”

damaged by a supplier’s breach of an implied warranty. 15 U.S.C. § 2310(d)(1).

The Act defines “implied warranty” as “an implied warranty arising under State

law . . . in connection with the sale by a supplier of a consumer product.” Id.

§ 2301(7). Under Florida law, a consumer must enjoy privity of contract with a

supplier to recover for breach of an implied warranty. Mesa v. BMW of North Am.,

LLC, 904 So. 2d 450, 458 (Fla. Dist. Ct. App. 2005) (“[A] plaintiff cannot recover

economic losses for breach of implied warranty in the absence of privity.”); see

Rentas v. DaimlerChrysler Corp., 936 So. 2d 747, 751 (Fla. Dist. Ct. App. 2006)

(affirming dismissal of claim based on Magnuson–Moss Warranty Act for breach

of implied warranty due to lack of privity between buyers of used vehicle and its

manufacturer). That is, a consumer must purchase the product from the supplier

because “a warranty that the goods shall be merchantable is implied in a contract

for their sale if the seller is a merchant with respect to goods of that kind.” Fla.

Stat. § 672.314(1).

      Kelly lacked contractual privity with Newmar. Kelly purchased her vehicle

from and entered into a contract with North Trail. Her complaint identified North


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Trail as the “seller.” And she acknowledged in the purchase contract that she

“understood . . . [North Trail] is in no respect the agent” of the manufacturer.

      Kelly argues that Global Quest, 849 F.3d 1022, establishes she that enjoys

contractual privity with Newmar based on its written warranty, but we disagree.

We concluded in Global Quest that an issue of material fact existed whether privity

existed between the consumer and manufacturer because the written warranty was

made an addendum to the purchase contract, the seller was an agent of the

manufacturer, the seller and manufacturer had similar names, and an executive for

the manufacturer owned part of the seller. Id. at 1025, 1032. Kelly presented no

evidence that the limited express warranty was made part of her contract with

North Trail or that Newmar was involved in the sale. Indeed, Kelly admitted that

she had no contact with Newmar before her purchase.

                 B. Newmar Did Not Breach Its Express Warranty.

      The Magnuson-Moss Act also provides a cause of action for a consumer to

sue for breach of an express warranty. See 15 U.S.C. § 2310(d). The Act allows a

warrantor to limit its warranty, so long as it does so “conspicuously.” See id.

§ 2303(a)(2). Florida law governs whether Newmar breached its express warranty.

      In Florida, a warrantor is permitted to limit the remedies available to the

consumer. Fla. Stat. § 672.719(1)(a). A limited warranty fails of its essential

purpose when the warrantor neglects to repair defects within a reasonable time or


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reasonable number of attempts. See Typographical Serv., Inc. v. Itek Corp., 721

F.2d 1317, 1320 (11th Cir. 1983). To establish the breach of a limited warranty, a

consumer must prove that the product had a defect covered by the warranty when

sold, the consumer provided notice of the defect to the warrantor within a

reasonable time after its discovery, and the warrantor failed to repair the defect.

See Fla. Stat. § 672.607(3)(a).

      Kelly presented no evidence that Newmar breached its limited warranty.

Kelly declared on her pre-delivery inspection form and later testified that her

vehicle was in good condition when she purchased it. She also testified that North

Trail and others repaired problems with her slide-out panels and windshield

without charge, even beyond her first year of ownership. Newmar submitted expert

testimony that the slide-out panels on Kelly’s vehicle operated normally and were

defect-free and that her windshield was an “after-market” item that required

adhesive to affix it to the molding. And Kelly offered no expert testimony that her

vehicle had any defects. Kelly argues that “various recall notices were issued” by

Newmar, but she identifies no evidence that the recalls concerned the defects she

alleged.

                 C. Kelly’s Claim of Fraudulent Inducement Fails.

      Kelly’s complaint of fraudulent inducement fails as a matter of law. Under

Florida law, “no cause of action in tort can arise from a breach of a duty existing


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by virtue of contract.” Weimar v. Yacht Club Point Estates, Inc., 223 So. 2d 100,

103 (Fla. Dist. Ct. App. 1969); see Bankers Risk Mgmt. Servs., Inc. v. Av-Med

Managed Care, Inc., 697 So. 2d 158, 161 (Fla. Dist. Ct. App. 1997) (“fraudulent

representations . . . intertwined with the performance of the contract . . . do not rise

to the level of an independent tort”). Kelly’s complaint alleged that her retail

installment contract promised that “[w]arranty information [would be] provided to

[her] separately,” but that she “never received any separate warranty information or

book.” Because Kelly’s complaint alleged no injury separate from a breach of a

contractual duty, the district court committed no error when it dismissed her claim

for the tort of fraudulent inducement.

                                 IV. CONCLUSION

      We AFFIRM the judgment in favor of North Trail and Newmar.




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