An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-908


Filed: 3 June 2003

TOM BUMGARNER, trading and
doing business as B & B MOTORS,

     v .                                 Wilkes County
                                        No. 01 CVS 953< br> LOWE'S COMPANIES, INC.,

    Appeal by plaintiff from judgment entered 20 May 2002 by Judge Lindsay R. Davis, Jr., in Wilkes County Superior Court. Heard in the Court of Appeals 24 April 2003.

    Franklin Smith for plaintiff appellant.

    R. Tyson Ferrell for defendant appellee.

    McCULLOUGH, Judge.

    On 10 November 2000, plaintiff Tom Bumgarner placed a bid of $16,000.00 on a 1994 Ford FT900 truck being sold by defendant Lowe's Companies, Inc. (Lowe's). Plaintiff had purchased a number of trucks from defendant in the past and was familiar with the bidding process. When he arrived at Lowe's, plaintiff was given a list of the vehicles for sale; at the bottom of each page was a notation that read, “Please note all equipment is sold as is.” Plaintiff located the 1994 Ford truck on the lot and inspected it, drove it, and checked the oil. After examining the truck to his satisfaction, plaintiff believed it was in good condition and placed his bid.     On 28 November, defendant called plaintiff and told him his bid had been accepted. Plaintiff went to Lowe's, paid for the truck, and drove it to his business. Upon arrival, plaintiff and several other people examined the truck; when plaintiff checked the oil, he discovered it was contaminated with water. Plaintiff took the truck to Piedmont Ford Sterling Truck Sales in Greensboro, where he was told that the engine block was cracked and had a bulge on the side that allowed water from the radiator to get into the engine block and mix with the engine oil. Upon further investigation, plaintiff learned that there were a number of below- freezing nights during the eighteen-day period between 10 November (when he first inspected the truck) and 28 November (when he picked up the truck). Plaintiff believed the cold temperatures caused the crack in the engine block and the subsequent problems with the truck.
    On 5 June 2001, plaintiff filed a complaint, alleging that defendant's negligent failure to winterize the truck caused him to lose the use of the truck. Plaintiff requested damages in excess of $10,000.00, interest, and attorney's fees. On 26 September 2001, defendant filed a document entitled “Motion, Answer and Affirmative Defense” which (1) requested dismissal of plaintiff's complaint for failure to state a claim upon which relief could be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2001); (2) answered the allegations of the complaint; and (3) asserted as an affirmative defense the fact that the truck was sold “as is” and plaintiff had ample opportunity to inspect the truck beforeaccepting it.
    On 3 May 2002, defendant moved for summary judgment and attached to its motion the affidavit of Mr. James McElheney, Jr., defendant's Director of Vehicle Maintenance. Mr. McElheney indicated plaintiff had several opportunities to inspect the truck and was on notice that the truck was sold “as is,” because both the documentation given to prospective bidders and the final bill of sale contained the “as is” language. He also stated that, between 10 November and 28 November, the truck was stored at defendant's vehicle maintenance facility and was not available for anyone's use. On 20 May 2002, the trial court granted defendant's motion for summary judgment, and plaintiff appealed.
    In his sole assignment of error on appeal, plaintiff contends the trial court committed reversible error by granting defendant's motion for summary judgment. Specifically, plaintiff contends the “as is” clause was never enforced in the past dealings between the parties and that there existed an implied warranty that the truck would not be substantially and materially different in character between the time it was bid upon and the time it was paid for. We do not agree.
    Summary judgment shall be granted “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 any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2001). In making this determination, “the evidence presented bythe parties must be viewed in the light most favorable to the non- movant.” Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
        The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact. The purpose of Rule 56 is not to allow the court to decide an issue of fact, but to determine whether a genuine issue of fact exists and thereby eliminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim or defense of a party is exposed.

Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 641-42, 281 S.E.2d 36, 40 (1981). “Once the movant has established its right to summary judgment, the non-movant may not rest upon conclusory allegations but must come forward with affidavits showing that a material factual dispute exists.” Pierce Concrete, Inc. v. Cannon Realty & Construction Co., 77 N.C. App. 411, 412, 335 S.E.2d 30, 31 (1985). With this standard of review in mind, we turn to the case before us.
    Defendant argues, and we agree, that the trial court had only a limited amount of evidence before it at the summary judgment stage. In his brief to this Court, plaintiff argues that he purchased over three hundred vehicles from defendant in the past, some of which had mechanical problems. He contends that defendant never before enforced the “as is” restriction, and made financial concessions instead. Plaintiff maintains that the parties engaged in a “course of dealing,” and pursuant to N.C. Gen. Stat. § 25-1- 205(1) (2001), that course of dealing prevented defendant fromrelying on the “as is” sale provisions. The facts supporting such an allegation are not in the record, however. “On appeal, this Court's standard of review involves a two-step determination of whether (1) the relevant evidence establishes the absence of a genuine issue as to any material fact, and (2) either party is entitled to judgment as a matter of law.” Guthrie v. Conroy, 152 N.C. App. 15, 21, 567 S.E.2d 403, 408 (2002). Plaintiff presented no evidence of an alleged course of dealing before the trial court, and his allegation that he “has purchased used trucks from the Defendant for several years[,]” standing alone, is an insufficient basis for relief.
    On appeal, plaintiff also appears to allege the existence of both express and implied warranties which, according to him, provide a foundation for recovery. However, plaintiff did not assert the existence of express warranties in the pleadings, and did not raise this issue before the trial court. As plaintiff is asserting this theory of recovery for the first time on appeal, we will not examine it. See N.C.R. App. P. 10(b)(2) (2002); and Parkersmith Properties v. Johnson, 136 N.C. App. 626, 631, 525 S.E.2d 491, 494 (2000). E ven if we were to address the express warranty issue argued by plaintiff, we note that the seller's remarks on the documentation provided to bidders, stating that the 1994 Ford truck “runs & drives good[,]” constitutes a statement of opinion, which does not create an express warranty. “A seller's language to that effect, if used in negotiating a sale, is ordinarily regarded as an expression of opinion in 'the puffing ofhis wares,' and does not create an express warranty.” Motors, Inc. v. Allen, 280 N.C. 385, 393, 186 S.E.2d 161, 166 (1972). Having dealt with the issue of express warranties, we now turn to the issue of implied warranties.
    The Uniform Commercial Code deals with transactions in goods. N.C. Gen. Stat. § 25-2-102 (2001). N.C. Gen. Stat. § 25-2- 316(3)(a) (2001) indicates that “unless the circumstances indicate otherwise, all implied warranties are excluded by expressions like 'as is,' 'with all faults' or other language which in common understanding calls the buyer's attention to the exclusion of warranties and makes plain that there is no implied warranty[.]” Official Comment 7 to § 25-2-316 states:
            Paragraph (a) of subsection (3) deals with general terms such as “as is,” “as they stand,” “with all faults,” and the like. Such terms in ordinary commercial usage are understood to mean that the buyer takes the entire risk as to the quality of the goods involved. The terms covered by paragraph (a) are in fact merely a particularization of paragraph (c) which provides for exclusion or modification of implied warranties by usage of trade.
    Plaintiff's complaint acknowledged that he submitted a bid on the truck and knew it was being sold “as is.” Mr. McElheney's affidavit stated that “the subject truck was stored at the vehicle maintenance facility” and was not altered or modified between 10 November and 28 November. When plaintiff paid for the truck, he received a bill of sale that clearly stated “NOTE: ALL VEHICLES SOLD AS IS.” Moreover, plaintiff fully examined the truck on 10 November, when he submitted his bid, and was permitted to do soagain on 28 November, when he paid for the vehicle. In such a situation, there are no implied warranties.
        [W]hen the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him[.]

N.C. Gen. Stat. § 25-2-316(3)(b); see also Motors, Inc., 280 N.C. at 394, 186 S.E.2d at 166.
    In sum, we believe plaintiff had ample opportunity to inspect the truck before purchasing it, and was fully on notice that it was sold “as is.” We further conclude plaintiff can make no valid claims for breach of either express or implied warranties under Article 2 of the Uniform Commercial Code. Defendant has successfully shown that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law, and the trial court properly granted summary judgment in defendant's favor. Accordingly, the judgment of the trial court is
    Judges McGEE and LEVINSON concur.
    Report per Rule 30(e).

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