An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 02-1116


Filed: 19 August 2003


v .                         Carteret County
                            No. 00 CVS 507

    Appeal by plaintiff from order entered 28 March 2002 by Judge W. Allen Cobb, Jr. in Carteret County Superior Court. Heard in the Court of Appeals 14 May 2003.

    Stone & Lumsden, by Treve B. Lumsden, for plaintiff-appellant.

    Wheatly, Wheatly, Nobles, Weeks & Valentine, P.A., by C.R. Wheatly, III, for defendant-appellee HMY Marine Sales, Inc.

    HUDSON, Judge.
    In 1997, plaintiff originally sued defendants Lloyd Johnson (Johnson) and HMY Marine Sales, Inc. (“HMY”), alleging fraud, negligent misrepresentation and unfair and deceptive trade practices. Both defendants were served. Before trial, however, plaintiff voluntarily dismissed the action pursuant to Rule 41 of the North Carolina Rules of Civil Procedure. On 3 May 2000, plaintiff filed this complaint, which is identical to the original. Defendant Johnson could not be located and was not served with process.
    The parties conducted discovery and prior to trial both parties moved for summary judgment. After receiving affidavits andhearing arguments of counsel, the trial court denied plaintiff's motion for summary judgment on the sole issue of prior damage, and granted defendant's motion, thereby dismissing plaintiff's claim. Plaintiff appeals.

Factual Background

    In late June or early July 1995, Lloyd Johnson, the owner of a 1987 thirty-one foot Intrepid motor boat (“the boat”), contracted with HMY to sell the boat for him. HMY acted as the agent for Johnson in the sale of the boat.
    In early August 1995, plaintiff went to HMY and looked at the boat. Plaintiff visually inspected the boat and tested its engines. Plaintiff then took the boat on a “sea trial.” The day after the sea trial, plaintiff returned to HMY and continued negotiations to purchase the boat. At HMY, plaintiff noticed a stain on the port side at midship, indicating that water was leaking from the hull. Plaintiff asked about the leak and was told that it from was a stress crack.
    HMY inspected the hull and at plaintiff's request took the boat to Anthony Petrucci, a repairman, to fix the hull. Defendant Johnson authorized and paid for the repairs to the hull. Plaintiff also contacted Intrepid, the manufacturer of the boat and inquired as to whether such a crack would cause structural problems, and Intrepid informed him that it would not.
    Anthony Petrucci repaired the crack on the hull. In so doing, he found that the boat had been improperly repaired in that area previously. The repair took approximately three days to complete. During the repairs, plaintiff visited the boatyard several times. Plaintiff acknowledges speaking to Petrucci during the repairs but denies being told that the hull had been improperly repaired in the past.
    On 5 August 1995, plaintiff made an offer to purchase the boat. Plaintiff and defendant Johnson negotiated a sales price of $18,500. The “Offer to Purchase and Contract” signed by both plaintiff and a representative of HMY contained the following typed language: “THIS VESSEL IS SOLD AS IS, WHERE IS, FREE AND CLEAR OF ALL LIENS AND INDEBTEDNESS, WITH THE FOLLOWING EXCEPTIONS.” Below this language, plaintiff inserted the following handwritten language: “Hull indicated damage is not structural [and] is repaired to buyer's satisfaction.”
    Plaintiff purchased the boat. On 14 April 1996, approximately seven months after the purchase, plaintiff returned from a ride in the boat to discover a catastrophic failure of the underwater section of the hull. Plaintiff transported the boat to the Intrepid factory in Florida where repairs were made, costing plaintiff in excess of $18,000.

    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 any party is entitled to a judgment as a matter of law.” G.S. § 1A-1, Rule 56(c) (2001).
        An issue is material if the facts alleged would constitute a legal defense, or wouldaffect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The party moving for summary judgment has the burden of establishing the lack of any triable issue of fact. Furthermore, the evidence presented by the parties must be viewed in the light most favorable to the non-movant.

Adams v. Jefferson-Pilot Life Ins. Co., 148 N.C. App. 356, 358, 558 S.E.2d 504, 506, disc. review denied, 356 N.C. 159, 568 S.E.2d 186 (2002) (internal citations and quotations omitted).
    In general, a court interprets a contract according to the intent of the parties to the contract. Bueltel v. Lumber Mut. Ins. Co., 134 N.C. App 626, 631, 518 S.E.2d 205, 209 (1999), disc. review denied, 351 N.C. 186, 541 S.E.2d 709 (1999). In addition, “if the plain language of a contract is clear, the intention of the parties is inferred from the words of the contract.” Id. This Court has previously noted that:
        Intention or meaning in a contract may be manifested or conveyed either expressly or impliedly, and it is fundamental that that which is plainly or necessarily implied in the language of a contract is as much a part of it as that which is expressed. If it can be plainly seen from all the provisions of the instrument taken together that the obligation in question was within the contemplation of the parties when making their contract or is necessary to carry their intention into effect, the law will imply the obligation and enforce it. The policy of the law is to supply in contracts what is presumed to have been inadvertently omitted or to have been deemed perfectly obvious by the parties.

Strader v. Sunstates Corp., 129 N.C. App. 562, 569, 500 S.E.2d 752, 756 (1998), disc. review denied, 349 N.C. 240, 514 S.E.2d 274(1998).
    “[W]hen a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law.” Bicycle Transit Authority v. Bell, 314 N.C. 219, 227, 333 S.E.2d 299, 304 (1985) (citations omitted). Moreover, “it is a well-settled principle of legal construction that it must be presumed the parties intended what the language used clearly expresses, and the contract must be construed to mean what on its face it purports to mean.” Hagler v. Hagler, 319 N.C. 287, 294, 354 S.E.2d 228, 234 (1987). “Whether or not the language of a contract is ambiguous or unambiguous is a question for the court to determine.” Piedmont Bank & Trust Co. v. Stevenson, 79 N.C. App. 236, 240, 339 S.E.2d 49, 52, affirmed, 317 N.C. 330, 344 S.E.2d 788 (1986). In making this determination, “words are to be given their usual and ordinary meaning and all the terms of the agreement are to be reconciled if possible.” Id.
A. Fraud
    In Ace, Inc. v. Maynard, 108 N.C. App. 241, 423 S.E.2d 504 (1992), disc. review denied, 333 N.C. 574, 429 S.E.2d 567 (1993), the purchaser of an airplane, prior to taking possession, signed a “Purchase Agreement” which provided that the purchaser understood that the airplane was “being sold 'AS IS' and 'WHERE IS' and that there are 'NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED AS TO ANY MATTER WHATSOEVER, INCLUDING, WHITHOUT [sic] LIMITATION, THE CONDITION OF THE AIRCRAFT, PARTS OR ACCESSORIES, ITSMERCHANTABILITY OR ITS FITNESS FOR A PARTICULAR PURPOSE.” Id. at 244, 423 S.E.2d at 506.
    Upon taking possession of the airplane, the purchaser discovered numerous defects, and the seller refused to make the repairs. The purchaser argued, inter alia, that the seller committed fraud by making false representations about the aircraft prior to the sale. At trial, the jury returned a verdict in favor of the purchaser on the fraud count. However, the court granted defendants motion for JNOV. On appeal, this Court held that where one of the essential elements of a fraud is a “[f]alse representation or concealment of a material fact,” and where the purchaser “effectively agreed when he signed the Purchase Agreement that defendants made no representations whatsoever with regard to the plane, [purchaser was] unable to establish the making of a false representation.” Id. at 249-50, 423 S.E.2d at 510. The court further held that the purchaser failed to establish that the seller concealed a material fact because purchaser presented no evidence of seller's prior knowledge of the damage. Id.
    Here, the Offer to Purchase and Contract, signed by plaintiff, provided the following language similar to that found in Ace: “The terms and conditions on both sides of this contract contains the entire understanding between you and me and that no other representation or inducement, verbal or written, has been made which is not included in this contract of sale.” Here, as in Ace, where plaintiff has not shown that defendant made any representations, plaintiff is “unable to establish the making of afalse representation.” Id. Additionally, the evidence forecast here tends to show that plaintiff and defendant discovered the crack in the hull at the same time, and that plaintiff personally added the language to the contract that the “hull indicated damage is not structural [and] is repaired to buyer's satisfaction.” Thus, the trial court properly concluded that plaintiff's evidence did not show the concealment of a material fact.
B. Negligent Misrepresentation
    “[W]hether liability accrues [for negligent misrepresentation] is highly fact-dependent, with the question of whether a duty is owed a particular plaintiff being of paramount importance.” Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 350 N.C. 214, 220, 513 S.E.2d 320, 325 (1999) (quoting Logan, N.C. Torts § 25.30, at 551). As such, summary judgment is seldom appropriate in such a case, “'unless the evidence is free of material conflict, and the only reasonable inference that can be drawn therefrom is that there was no negligence on the part of defendant, or that his negligence was not the proximate cause of the injury.'” Alva v. Cloninger, 51 N.C. App. 602, 609, 277 S.E.2d 535, 539-40 (1981) (quoting Price v. Miller, 271 N.C. 690, 693, 157 S.E.2d 347, 349-50 (1967)).
    In Powell v. Wold, 88 N.C. App. 61, 67, 362 S.E.2d 796, 799, (1987), this Court stated that North Carolina has adopted the Restatement of Torts definition and requirements for negligent misrepresentation:
        One who in the course of his business or profession supplies information for the guidance of others in their business transactions is subject to liability for harm caused to them by their reliance upon information if
    (a) he fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting, and

    (b) the harm is suffered

        (i) by the person or one of the class of persons for whose guidance the information was supplied, and

        (ii) because of his justifiable reliance upon it in a transaction in which it was intended to influence his conduct or in a transaction substantially identical therewith.
Id. (quoting Restatement (Second) of Torts § 552 (1977)). Nothing in the record shows defendants negligently misinformed plaintiffs about the condition of the boat. As we have already noted, the evidence indicates that both plaintiff and defendant discovered the crack in the hull at the same time, after plaintiff returned from a sea trial with the boat. Plaintiff requested the damage be examined by an independent boat repairman, which was done. After the repairs were completed, plaintiff inserted language on the Offer to Purchase and Contract acknowledging that the damage was not structural and that the repairs were made satisfactorily. Additionally, in answers to interrogatories in the original suit, the previous owner of the boat stated that the only repairs he had done to the boat were “Normal boat maintenance, cosmetic repairs, superficial stress cracks.”
    Even assuming, arguendo, that HMY made negligent misrepresentations to plaintiff regarding the condition of the boat, the evidence did not indicate that any damage resulted from plaintiff's reliance on this information. Thus, the trial courtcorrectly concluded that plaintiff's claim must fail. Because plaintiff contacted the manufacturer of the boat and inquired about the structural integrity of the hull, and because plaintiff's evidence showed that HMY made no representations, plaintiff's claim for negligent misrepresentation fails.
C. Unfair and Deceptive Trade Practices
    In Coble v. Richardson Corp., 71 N.C. App. 511, 322 S.E.2d 817 (1984), this court noted that:
    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. [A] party is guilty of an unfair act or practice when it engages in conduct that amounts to an inequitable assertion of its power or position.

Id. at 520, 322 S.E.2d at 823-24 (citations and quotation marks omitted).
    In Coble, the plaintiff sued on a theory of unfair and deceptive trade practices for damages to correct a drainage problem on a tract of land she had purchased. This court noted that:
    The case before us involves a breach of contract based on written warranties and oral representations that were essentially restatements of what defendant was already bound to do under the warranty. There is nothing so oppressive or overreaching about defendant's behavior in breaching the contract that would transform the case into one for an unfair trade practice.

    Here, we find that there is nothing in the record to indicate that any behavior by defendant HMY amounted to oppressive or overreaching conduct. By admitting that the repairs to the boat were done to his satisfaction, plaintiff fails in his claim that he was unfairly induced into purchasing the boat. As such, his claimfor unfair and deceptive trade practices fails.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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