                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA18-890

                               Filed: 21 May 2019

Pitt County, No. 14 CVS 2408

HILLS MACHINERY COMPANY, LLC, Plaintiff,

              v.

PEA CREEK MINE, LLC, JOC FARMS, LLC, and JOSEPH D. BRILEY, JR.,
Defendants.


           v.


JOC FARMS, LLC and PEA CREEK MINE, LLC, Counterclaim and Third-Party
Plaintiffs,


         v.


HILLS MACHINERY COMPANY, LLC, Counterclaim Defendant, and CNH
INDUSTRIAL AMERICA, LLC d/b/a CASE IH, Third-Party Defendant.


      Appeal by JOC Farms, LLC from order entered 1 May 2018 by Judge Alma L.

Hinton in Pitt County Superior Court. Heard in the Court of Appeals 26 March 2019.


      Stevens Martin Vaughn & Tadych, PLLC, by Michael J. Tadych, for third-party
      plaintiff-appellant JOC Farms, LLC.

      Womble Bond Dickinson (US) LLP, by Jamie A. Dean and Ryan H. Niland, for
      third-party defendant-appellee CNH Industrial America, LLC.


      TYSON, Judge.
                 HILLS MACHINERY CO., LLC V. PEA CREEK MINE, LLC

                                    Opinion of the Court



       JOC 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 court’s order.

                                     I. Background

       JOC 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 relevant part:

       What’s Covered

              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].

       The 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.



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      The 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].

      The Case Warranty included the following disclaimer:

             THIS DOCUMENT CONTAINS THE ENTIRE CASE
             WARRANTY.   CASE   MAKES       NO      OTHER
             REPRESENTATIONS       OR       WARRANTIES
             EXPRESSED OR IMPLIED AND SPECIFICALLY
             EXCLUDES THE IMPLIED WARRANTIES OF
             MERCHANTABILITY   AND      FITNESS         FOR
             PARTICULAR PURPOSE. [Emphasis in original]

      When 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

purchase.

      When purchasing the Loader, JOC also purchased a 3-year/3,000 hour

extended warranty plan, referred to as a “Purchased Protection Plan,” (“PPP”)



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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.”

      After 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.

      The 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

Case Warranty.

      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 hours.



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      In 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.

      In 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.”

      Sometime 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.

      On 20 February 2012, JOC filed a voluntary petition for bankruptcy protection

under Bankruptcy Code Chapter 11 in the United States Bankruptcy Court for the



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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 bankruptcy filings.

      Sometime 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 against Case.

      On 23 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.



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      Following 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 notice of appeal. JOC and Case are the only parties participating in this

appeal.

                                     II. Jurisdiction

      The trial court certified its interlocutory order, which granted summary

judgment to Case on all of JOC’s claims, as immediately appealable pursuant to Rule

54(b) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule

54(b) (2017).

                                 III. Standard of Review

      “Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that [a] party is entitled to

judgment as a matter of law.” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247,

249 (2003) (citation and internal quotation marks omitted); see N.C. Gen. Stat. § 1A-

1, Rule 56(c) (2017).

                A defendant may show entitlement to summary judgment
                by (1) proving that an essential element of the plaintiff’s
                case is non-existent, or (2) showing through discovery that
                the plaintiff cannot produce evidence to support an
                essential element of his or her claim, or (3) showing that
                the plaintiff cannot surmount an affirmative defense.


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             Summary judgment is not appropriate where matters of
             credibility and determining the weight of the evidence
             exist.

             Once the party seeking summary judgment makes the
             required showing, the burden shifts to the nonmoving
             party to produce a forecast of evidence demonstrating
             specific facts, as opposed to allegations, showing that he
             can at least establish a prima facie case at trial. To hold
             otherwise . . . would be to allow plaintiffs to rest on their
             pleadings, effectively neutralizing the useful and efficient
             procedural tool of summary judgment.

Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735

(2003) (citations and quotation marks omitted), aff’d per curiam, 358 N.C. 131, 591

S.E.2d 521 (2004).

      “The evidence produced by the parties is viewed in the light most favorable to

the non-moving party.” Hardin v. KCS Int’l., Inc., 199 N.C. App. 687, 695, 682 S.E.2d

726, 733 (2009) (citation omitted).      “Our standard of review of an appeal from

summary judgment is de novo[.]” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d

572, 576 (2008) (citations omitted).

                                       IV. Analysis

                                A. Breach of Warranty

      JOC argues genuine issues of material fact exist “regarding when JOC notified

Case of the defects and whether Case’s failures to repair the defects it was notified

about during the shortest of the manufacturer’s warranty periods asserted (one year)




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tolls the statute of limitations (and thereby extends the warranty until the repairs

are made)” to support its breach of warranty claim.

      In response, Case contends it “has not relied on a statute of limitations defense,

and JOC’s arguments concerning tolling of the statute of limitations are misplaced.”

      JOC argues conduct by a warrantor which would toll the statute of limitations

for a breach of warranty claim also extends the warranty period. JOC also implies

that a warrantor receiving notice of a purported defect also extends the warranty

period.

      JOC cites two cases in support of its argument: Haywood Street Redevelopment

Corp. v. Peterson, Co., 120 N.C. App. 832, 463 S.E.2d 564 (1995), and Stutts v. Green

Ford, Inc., 47 N.C. App. 503, 267 S.E.2d 919 (1980).

      In Haywood, this Court held a three-year statute of limitations for a breach of

warranty claim was tolled during the time the defendant attempted to repair a

waterproofing treatment it had applied to the plaintiff’s parking deck to bring it into

conformity with the warranty during the warranty period. 120 N.C. App. at 838, 463

S.E.2d at 567. This Court stated: “A statute of limitations is tolled during the time

the seller endeavors to make repairs to enable the product to comply with a

warranty.” Id. (citations omitted).

      In Stutts, the plaintiff sought repairs on his Ford truck purchased from the

dealership. 47 N.C. App. at 509, 267 S.E.2d at 923. Ford Motor Company and the



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dealership had jointly warranted “(a)ny part [found to be defective in factory material

or workmanship] during the first 12 months or 12,000 miles of operation, whichever

is earliest (except tire and diesel engines manufactured by others than Ford . . .).” Id.

at 512, 267 S.E.2d at 924 (brackets in original). The plaintiff returned the truck to

the dealership to repair an oil leak during the warranty period. Id.

      After the dealership repeatedly fail to fix the oil leak, the plaintiff took the

truck to another Ford dealership. Id. at 513, 267 S.E.2d at 925. At the end of the

warranty period, the truck continued to leak oil despite several attempts by the

selling Ford dealership and the other Ford dealership to fix the leak. Id.

      The plaintiff filed claims, in part, against the dealership from which he had

bought the truck and against Ford, the manufacturer, for breach of warranty. Id. at

507, 267 S.E.2d at 922. The dealership and Ford filed motions for directed verdicts,

which the trial court granted. Id. at 507-08, 267 S.E.2d at 922. On appeal, the

plaintiff argued the trial court erred in granting the defendants’ motions for directed

verdicts. Id. In response, the defendants argued:

             [The dealership] contends that plaintiff has failed to meet
             his burden of showing that [the dealership] failed to repair
             and replace parts found to be defective as required by the
             warranty and, further, that plaintiff’s refusal to permit
             [defendant] to perform any further work on the truck after
             26 October 1976 relieved it of any liability under the
             warranty. Likewise, defendant Ford Motor Company
             contends that its warranty obligation was satisfied when
             either [the selling dealership] or [the other dealership]
             replaced defective parts called to their attention.


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Id. at 511, 267 S.E.2d at 924.

      This Court stated:

             Although limited warranties are valid, compliance with
             their covenants to repair and to replace defective parts
             requires that the warrantor do more than make good faith
             attempts to repair defects when requested to do so. A
             manufacturer or other warrantor may be liable for breach
             of warranty when it repeatedly fails within a reasonable
             time to correct a defect as promised. A party seeking to
             recover for breach of a limited warranty is not required to
             give the warrantor unlimited opportunities to attempt to
             bring the item into compliance with the warranty.

Id. at 511-12, 267 S.E.2d at 924.

      This Court rejected the dealership and Ford’s arguments, reasoning:

             [T]here is sufficient evidence presented in the record from
             which the jury could infer that [the dealership] either
             refused to perform further repairs on plaintiff’s truck, or
             that it failed to make proper repair of defective parts on the
             truck within a reasonable time, thereby causing plaintiff to
             seek repairs from another Ford dealer. In either event,
             both defendants’ liability for breach would attach, and the
             plaintiff’s refusal to return the vehicle to the selling dealer
             for further repairs would not preclude him from recovery.

Id. at 513, 267 S.E.2d at 925.

      This Court reversed the trial court’s grant of the defendants’ motions for

directed verdicts and remanded for a new trial. Id. at 514, 267 S.E.2d at 925.

      Stutts and Haywood do not address the rule for which JOC purports to cite

them. Neither case held that conduct by a warrantor, which may toll the statute of



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limitations on a breach of warranty claim, also extends the warranty period. See id;

Haywood, 120 N.C. App. at 838, 463 S.E.2d at 567. Neither of these cases hold that

a warrantor’s notice of a defect extends the warranty period until the defect is

repaired. After extensive review of the case law, we have found no cases which stand

for the proposition JOC attempts to assert.

      Presuming, arguendo, attempts by a warrantor to correct a defect or notice of

a defect during the term of the warranty extends the warranty period, the evidence,

viewed in the light most favorable to JOC, does not establish a genuine issue of

material fact with respect to its breach of warranty claim.

      The Case Warranty is a written express warranty. “ ‘An express warranty is

an element in a sale contract and is contractual in nature.’ ” Atlantic Coast Mech.,

Inc. v. Arcadis, Geraghty & Miller of N.C., Inc., 175 N.C. App. 339, 343, 623 S.E.2d

334, 338 (2006) (quoting Perfecting Serv. Co. v. Product Development & Sales, Co.,

261 N.C. 660, 668, 136 S.E.2d 56,62 (1964)). As a contract being interpreted, the

terms of an express warranty “are therefore construed in accordance with their plain

meaning,” Coates v. Niblock Dev. Corp., 161 N.C. App. 515, 517, 558 S.E.2d 492, 494

(2003) (citations omitted).

      The Case Warranty expressly states that the warranty period for the Loader

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



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occurs first.” Service records for the Loader indisputably show it was placed into

service beginning on 29 August 2008. Briley, the owner of JOC, acknowledged in his

deposition he knew the Loader had been used by a company in Florida prior to JOC’s

purchase.

      The plain language of the Case Warranty indicates the applicable warranty

period for the Loader’s engine lasted 24 months after the Loader was placed into

service or until the engine reached 2,000 machine hours, whichever occurred first.

The warranty period for components, other than the engine, was one year from the

date the Loader was placed into service. Under its plain and unambiguous terms,

the latest time the Case Warranty would cover any defects would have been 29 August

2010, or 24 months after the Loader was placed into service.

      The Case Warranty plainly states that a repair is covered “[i]f a defect in

material or workmanship is found in a unit and reported during the Warranty

Period[.]”

      Between 30 April 2009, when Briley purchased the Loader on JOC’s behalf,

and 29 August 2010, the latest time the Case Warranty was in force and valid, the

Loader was never brought to Briggs nor any other Case dealer for repairs related to

the vibration that JOC’s claim is premised upon. The undisputed evidence presented

by the parties shows the only claim submitted during the longest period the Case

Warranty could have covered was for repairs to the Loader’s battery and cables in



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June 2009. Case paid for the costs for this claim, which JOC does not dispute. Case’s

records from June 2009 do not mention any vibration in the Loader.            JOC has

produced no evidence tending to indicate the problems with the battery and cables in

June 2009 were related to or caused by the vibration issue.

       JOC also contends it gave Case notice of the alleged vibration defect when

Briley test drove the Loader with Briggs’s sales representative, Billy Tedder, in April

2009. Briley test drove the Loader prior to purchase. Briley testified in his deposition

he noticed a vibration in the Loader when he test drove it, but “[a]t the time [he]

didn’t think it was a problem.” Briley mentioned to Tedder that the Loader “had a

vibration in it.” Briley further testified:

              [Briley]: Well, I – I figured a new model machine, didn’t
              know it was a problem. But I did make Billy aware of it as
              we were driving it. Not, you know – not in the sense that –
              basically curious, asked Billy, it seems to have a shake
              compared to the other loaders we’ve had before, a vibration.

              Q. Did you do anything else to make sure the [L]oader
              worked before you bought it other than this test drive?

              [Briley]: No.

              Q. When you told Billy that the [L]oader seemed to have a
              vibration problem during the test drive, what did Billy say?

              [Briley]: Basically he stated that it had the remaining
              warranty on it and that if we want to purchase extended
              warranty through them, that it would cover it if there’s an
              issue with it. But as far as he’s concerned, he – really
              wasn’t familiar with the bigger loaders, that he thought
              maybe all of them had that type of vibration in them.


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      Later in his deposition, Briley was asked, “Does JOC claim that [Case] knew

the [L]oader was defective before it was sold?” Briley responded: “No. I can’t say that.

But they knew immediately afterwards it did.”

      JOC has produced no evidence showing what notice Case had of the vibration

problem in between the time Briley purchased the Loader and the latest time the

Case Warranty could have expired in August 2010. Briley admitted he did not think

the vibration was a problem when he test drove the Loader and no evidence shows

JOC brought the Loader to Briggs, nor any other authorized Case dealer, to

investigate or repair the vibration during the Case Warranty period. JOC contends

the comments Briley made during the pre-purchase test drive put Case on notice of

the alleged defect, but Briley admitted in his own testimony that Case did not know

the Loader was defective before it was sold.

      Briley signed and acknowledged the terms of the Case Warranty when he

purchased the Loader on JOC’s behalf. Briley testified he understood “that in order

to be covered by the manufacturer’s [Case] warranty, a defect would have to be

reported within the warranty period.”

      Based upon the plain language of the Case Warranty, the documentary

exhibits, and Briley’s deposition testimony, JOC is unable to establish a genuine issue

of material fact exists with respect to its breach of warranty claim. JOC did not

provide Case the notice of the alleged vibration defect during the warranty period, as


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is required by the express terms of the Case Warranty. JOC’s argument is overruled.

                B. Fraud and Unfair and Deceptive Trade Practices

      JOC also argues genuine issues of material fact exist with regards to its fraud

and unfair and deceptive trade practices claims against Case. We disagree.

      Unfair and deceptive trade practice (“UDTP”) claims are governed by N.C. Gen.

Stat. § 75-1.1. Bumpers v. Cmty. Bank of N. Va., 367 N.C. 81, 87-88, 747 S.E.2d 220,

226 (2013).   Under the statute, “Unfair methods of competition in or affecting

commerce, and unfair or deceptive acts or practices in or affecting commerce, are

declared unlawful.” N.C. Gen. Stat. § 75-1.1(a) (2017).

      To prevail upon a UDTP claim, a plaintiff must establish the following

elements: “ ‘(1) [the] defendant committed an unfair or deceptive act or practice, (2)

the action in question was in or affecting commerce, and (3) the act proximately

caused injury to the plaintiff.’ ”Capital Res., LLC v. Chelda, Inc., 223 N.C. App. 227,

239, 735 S.E.2d 203, 212 (2012) (citation omitted) (alteration in original), review

dismissed, cert. denied, __ N.C. __, 736 S.E.2d 191 (2013).

      “A practice is unfair when it offends established public policy as well as when

the practice is immoral, unethical, oppressive, unscrupulous, or substantially

injurious to consumers.” Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403

(1981). “To prove deception, while ‘it is not necessary . . . to show fraud, bad faith,

deliberate or knowing acts of deception, or actual deception, [a] plaintiff must,



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nevertheless, show that the acts complained of possessed the tendency or capacity to

mislead, or created the likelihood of deception.’ ” Capital Res., 223 N.C. App. at 239,

735 S.E.2d at 212 (citation omitted) (alterations in original).

      “Where an unfair or deceptive practice claim is based upon an alleged

misrepresentation by the defendant, the plaintiff must show actual reliance on the

alleged misrepresentation in order to establish that the alleged misrepresentation

proximately caused the injury of which plaintiff complains.” Tucker v. Blvd. At Piper

Glen, LLC, 150 N.C. App. 150, 154, 564 S.E.2d 248, 251 (2002) (citation and quotation

marks omitted).

      With respect to a fraud claim, a plaintiff must establish the following elements:

             (1) that the defendant made a representation of a material
             past or present fact; (2) that the representation was false;
             (3) that it was made by the defendant with knowledge that
             it was false or made recklessly without regard to its truth;
             (4) that the defendant intended that the plaintiff rely on
             the representation; (5) that the plaintiff did reasonably rely
             on it; and (6) injury.

      Braun v. Glade Valley Sch., Inc., 77 N.C. App. 83, 87, 334 S.E.2d 404, 407

(1985) (citing Johnson v. Phoenix Mutual Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610

(1980)).

      “[A] mere promissory representation will not support an action for fraud.” Id.

“However, a promissory misrepresentation may constitute actual fraud if the




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misrepresentation is made with intent to deceive and with no intent to comply with

the stated promise or representation.” Id. (citations omitted).

      In support of its UDTP and fraud arguments, JOC asserts: “Case

acknowledged repeatedly by word and deed that the Loader had yet to be repaired to

address JOC’s very first vibration complaints while at the same time telling Mr.

Briley to go ahead and run the Loader. JOC, Pea Creek and Mr. Briley relied on

those words and deeds to their detriment.”

      In its complaint, JOC alleges UDTP and fraud against Case based upon

“fraudulent misrepresentations.” Briley testified that “roughly three years after JOC

purchased the Loader,” he met with Jeffrey Schoch, a product support manager with

Case, to discuss the vibration issue with the Loader. If the meeting occurred three

years after JOC had purchased the Loader, it would have occurred outside the

maximum time period the Case Warranty could have covered any defects. Briley

testified that, at this meeting, Schoch told him Case “stand[s] behind their product

and they were going to have [the Loader] fixed.”

       Case concedes in its brief that “for the purposes of summary judgment, Case

does not dispute that the statement was made.” Briley acknowledged JOC was not

relying on any statements other than “we stand behind our product to support its

fraud claim[.]”




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      Viewed in the light most favorable to JOC, no evidence establishes a genuine

issue of fact with respect to JOC’s fraud claim. Even if Schoch’s statements that Case

“stands behind their product and they were going to have it fixed” is construed as a

promise that Case would fix the Loader, this is a promise of future performance. The

Supreme Court of North Carolina has long recognized: “It is generally held, and is

the law in this State, that mere unfulfilled promises cannot be made the basis for an

action of fraud.” Williams v. Williams, 220 N.C. 806, 810, 18 S.E.2d 364, 366 (1942).

“Mere proof of nonperformance is not sufficient to establish the necessary fraudulent

intent.” Id. at 811, 18 S.E.2d at 367. This Court has stated: “The general rule is that

an unfulfilled promise cannot be the basis for an action for fraud unless the promise

is made with no intention to carry it out.” Northwestern Bank v. Rash, 74 N.C. App.

101, 105, 327 S.E.2d 302, 305 (1985) (citation omitted).

      JOC failed to forecast any evidence to show Case lacked the intent to fix the

Loader at the time Schoch made the statement in question in 2011. Case submitted

the affidavit of one of its product support managers, Heman, in support of its motion

for summary judgment. Included as an exhibit to Heman’s affidavit, is a copy of

Case’s “internal database called ASIST [which is used] to track any repairs for which

a dealer requests assistance.” The ASIST records show instances from 2013 and 2014

where Case employees provided advice to Hills’s mechanics on how to fix the Loader’s

front axle and differential.



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                                  Opinion of the Court



      To the extent JOC purportedly argues Schoch’s representations in 2011

somehow renewed or extended the Case Warranty, such a situation is expressly

disclaimed by the Case Warranty, which states:

             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.

      Upon review of the evidence in the record, no genuine issue of material fact

exists with respect to JOC’s fraud claim against Case. See Supplee v. Miller-Motte

Bus. C., Inc., 239 N.C. App. 208, 229, 768 S.E.2d 582, 598 (2015) (affirming trial

court’s grant of summary judgment where plaintiff “failed to present specific evidence

that . . . defendants had no intention of carrying out its unfulfilled promise; an

essential element for a successful fraud claim.”).

      With respect to JOC’s UDTP claim, the evidence of Schoch’s statement that

Case “stands behind its product,” and promised to fix the vibration in the Loader,

when viewed most favorably to JOC, shows, at most, a broken promise. A broken

promise, standing alone, is not enough to establish a UDTP claim, unless the evidence

shows the promisor “intended to break its promise at the time that it made the

promise.” Wells Fargo Bank, N.A. v. Corneal, 238 N.C. App. 192, 196, 767 S.E.2d 374,




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                                   Opinion of the Court



378 (2014); see Overstreet v. Brookland, Inc., 52 N.C. App. 444, 451-52, 279 S.E.2d 1,

6 (1981).

      In Overstreet, the defendant promised to the plaintiff that no part of a

subdivision would be used for non-residential purposes. Overstreet, 52 N.C. App. at

451-52, 279 S.E.2d at 6. A year later, the defendant sold a subdivision lot to a buyer

who it knew would use the lot for non-residential purposes. Id. On review of the trial

court’s grant of a motion for directed verdict to the defendant, this Court held that no

evidence indicated that the defendant intended to break its promise at the time

defendant made the promise and plaintiff had failed to establish a UDTP claim. Id.

at 452-53, 279 S.E.2d at 6-7.

      JOC has produced no evidence to indicate Case did not intend to fix the Loader

at the time Schoch made the unauthorized representation to Briley in 2011. Wells

Fargo, 238 N.C. App. at 196-97, 767 S.E.2d at 378.         Schoch’s representation is

contrary to the express terms of the “No Modification or Extension of Warranty”

provision in the Case Warranty, which prohibits “any person, dealer or agent to

change or extend the terms of [the] warranty in any manner.” The ASIST system

records show Case continued to provide information and advice to Hills’s mechanics

on how to repair the Loader after Briley had met with Schoch in 2011. No genuine

issue of material fact exists to support JOC’s UDTP claim. JOC’s arguments are

overruled.



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                                   Opinion of the Court



                                 C. Judicial Estoppel

      Case argues the equitable defense of judicial estoppel as an alternative and

independent basis to support summary judgment. Case argued the equitable defense

of judicial estoppel as one of the bases for its motion for summary judgment before

the trial court. Based upon our holding to affirm the trial court’s order on the grounds

that there are no genuine issues of material fact with respect to any of JOC’s claims,

it is unnecessary and we decline to address Case’s judicial estoppel argument.

                                    V. Conclusion

      Viewed in the light most favorable to JOC, no genuine issues of material fact

exist with respect to JOC’s claims for breach of warranty, fraud, and UDTP. The trial

court correctly ruled Case was entitled to summary judgment as a matter of law. See

Summey, 357 N.C. at 496, 586 S.E.2d at 249; Draughon, 158 N.C. App. at 212, 580

S.E.2d at 735. The trial court’s order, which granted summary judgment to Case, is

affirmed. It is so ordered.

      AFFIRMED.

      Judges DIETZ and HAMPSON concur.




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