{ "id": 8527909, "name": "CURTIS WILSON TAYLOR, Plaintiff-Appellee v. VOLVO NORTH AMERICA CORPORATION, Defendant-Appellant", "name_abbreviation": "Taylor v. Volvo North America Corp.", "decision_date": "1992-10-20", "docket_number": "No. 9118SC753", "first_page": "678", "last_page": "688", "citations": [ { "type": "official", "cite": "107 N.C. App. 678" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "51 ALR4th 872", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "weight": 3, "opinion_index": -1 }, { "cite": "314 S.E.2d 302", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "303", "parenthetical": "\"Under our law, it is rudimentary that the only person who may appeal is the 'party aggrieved.' \"" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 308", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527147 ], "year": 1984, "pin_cites": [ { "page": "309", "parenthetical": "\"Under our law, it is rudimentary that the only person who may appeal is the 'party aggrieved.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0308-01" ] }, { "cite": "377 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488193, 2481926, 2485548, 2485844, 2482615 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0113-01", "/nc/324/0113-05", "/nc/324/0113-02", "/nc/324/0113-03", "/nc/324/0113-04" ] }, { "cite": "372 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "741" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 621", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526357 ], "year": 1988, "pin_cites": [ { "page": "624-25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0621-01" ] }, { "cite": "2 L.Ed.2d 46", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1957, "pin_cites": [ { "parenthetical": "Clayton Act" } ], "opinion_index": 0 }, { "cite": "355 U.S. 835", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6198248, 6198675, 6199477, 6198039, 6198907, 6199100 ], "year": 1957, "pin_cites": [ { "parenthetical": "Clayton Act" } ], "opinion_index": 0, "case_paths": [ "/us/355/0835-02", "/us/355/0835-03", "/us/355/0835-06", "/us/355/0835-01", "/us/355/0835-04", "/us/355/0835-05" ] }, { "cite": "246 F.2d 368", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 400400 ], "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/f2d/246/0368-01" ] }, { "cite": "611 S.W. 2d 127", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9927410 ], "year": 1980, "pin_cites": [ { "page": "136", "parenthetical": "statute similar to N.C.G.S. \u00a7 75-16" } ], "opinion_index": 0, "case_paths": [ "/sw2d/611/0127-01" ] }, { "cite": "379 S.E.2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "69-70" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528467 ], "year": 1989, "pin_cites": [ { "page": "664" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0657-01" ] }, { "cite": "367 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2515083, 2518188, 2517520, 2513395, 2513629 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0113-03", "/nc/322/0113-05", "/nc/322/0113-01", "/nc/322/0113-02", "/nc/322/0113-04" ] }, { "cite": "363 S.E.2d 643", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "652-53" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 404", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358357 ], "year": 1988, "pin_cites": [ { "page": "416-17" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0404-01" ] }, { "cite": "276 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1981, "pin_cites": [ { "page": "400" }, { "page": "403" }, { "page": "403-04", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "543" }, { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "412 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512485, 2510636, 2509427, 2511059, 2509012 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0440-03", "/nc/330/0440-05", "/nc/330/0440-01", "/nc/330/0440-02", "/nc/330/0440-04" ] }, { "cite": "407 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1991, "pin_cites": [ { "page": "620" }, { "page": "620" }, { "page": "620" }, { "page": "621-622" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 61", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520086 ], "weight": 4, "year": 1991, "pin_cites": [ { "page": "64" }, { "page": "64" }, { "page": "64" }, { "page": "65, 67" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0061-01" ] } ], "analysis": { "cardinality": 878, "char_count": 22045, "ocr_confidence": 0.762, "pagerank": { "raw": 2.1411338461345358e-07, "percentile": 0.7672111385644491 }, "sha256": "123a7b6b8435d34706f409a47f46374023ea59a13e565239d23b192a4d28dd1e", "simhash": "1:2fdb8426512f1474", "word_count": 3536 }, "last_updated": "2023-07-14T14:52:31.872261+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "CURTIS WILSON TAYLOR, Plaintiff-Appellee v. VOLVO NORTH AMERICA CORPORATION, Defendant-Appellant" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant raises four assignments of error. After careful consideration, we affirm.\nI.\nFirst, defendant argues that plaintiff\u2019s evidence was insufficient as a matter of law to support his recovery. We disagree.\nThe New Motor Vehicles Warranties Act (the Act), Article 15A of Chapter 20, establishes a private remedy for consumers. G.S. \u00a7\u00a7 20-351 \u2014 20-351.10 (1989); see Anders v. Hyundai Motor America Corp., 104 N.C. App. 61, 64, 407 S.E.2d 618, 620, disc. rev. denied, 330 N.C. 440, 412 S.E.2d 69 (1991). Under the Act, a consumer may seek recovery from an automobile manufacturer for its failure to conform an automobile to its express warranties. Here, the Act is applicable to plaintiff as a \u201cconsumer\u201d under G.S. \u00a7 20-351.1(1) and to the defendant as a \u201cmanufacturer\u201d under G.S. \u00a7 20-351.1(2).\nIn Anders, 104 N.C. App. at 64, 407 S.E.2d at 620, it was held that \u201cthe Act imposes a duty on the manufacturer post-sale to conform the car to express warranties\u201d as follows:\nExpress warranties for a new motor vehicle shall remain in effect at least one year or 12,000 miles. If a new motor vehicle does not conform to all applicable express warranties for a period of one year, or the term of the express warranties, whichever is greater, following the date of original delivery of the motor vehicle to the consumer, and the consumer reports the nonconformity to the manufacturer, its agent, or its authorized dealer during such period, the manufacturer shall make, or arrange to have made, repairs necessary to conform the vehicle to the express warranties, whether or not these repairs are made after the expiration of the applicable warranty period.\nG.S. \u00a7 20-351.2(a). Defendant contends that the duty does not exist here because \u201cplaintiff failed to introduce any evidence about the source or cause of the problems about which he complains.\u201d The statute places no burden upon a consumer to identify the cause or source of the problems of which he complains. Instead, the statute requires the consumer to show a nonconformity that is covered by an express warranty.\nUnder G.S. \u00a7 20-351.2(a), the consumer must timely complain of the nonconformity to the manufacturer, its agent, or its authorized dealer. Here, plaintiff first complained of the automobile\u2019s front end shimmy and vibration upon initially acquiring the car from the dealer on 27 December 1988, the beginning of the one year warranty period. Shortly thereafter, on 6 January 1989, plaintiff first complained of the clicking noise from the application of the brakes.\nThen, the consumer must show that the nonconformity is covered by an express warranty. Here, defendant\u2019s regional sales manager, who was a parts and service manager during the lease period, testified that he was familiar with defendant\u2019s warranty policies and that the nonconformities were covered by a twelve month-unlimited mileage warranty for parts and workmanship. Specifically, he testified as follows:\nQ: If there were a shimmy in the front wheels of this car, is that warranted under that 1989 warranty?\nA: It would be warranted depending on what causes the shimmy.\nQ: Were the brakes warranted on this car, this particular model for parts and workmanship?\nA: Depending upon the condition of the brakes, yes, sir, they were.\nQ: What did it depend on?\nA: It would depend on what the problem was with the brakes.\nQ: Well, if the problem was a clicking in the brakes that was unexplained and unrepaired, was that warrantied [sic] or not?\nA: The clicking in the brakes?\nQ: Yes, sir.\nA: It would be warrantied [sic] if it were in fact a defect, yes, sir.\nParagraph 36 of the \u201cStandard Provisions\u201d of the \u201cClosed End Lease Agreement\u201d referred to the warranty. Further, the repair receipts indicated that the warranty was in effect.\nThe Act provides that a lessee is entitled to a recovery \u201cif the manufacturer is unable, after a reasonable number of attempts, to conform the motor vehicle to any express warranty by repairing or correcting, or arranging for the repair or correction of, any defect or condition or series of defects or conditions which substantially impair the value of the motor vehicle to the consumer.\u201d G.S. \u00a7 20-351.3(b). The Act \u201cassist[s] a consumer in showing a manufacturer\u2019s failure to conform the vehicle to express warranties,\u201d Anders, 104 N.C. App. at 64, 407 S.E.2d at 620, by providing that it is to be \u201cpresumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties if: (1) The same nonconformity has been presented for repair to the manufacturer, its agent, or its authorized dealer four or more times but the same nonconformity continues to exist.\u201d G.S. \u00a7 20-351.5(a). By bringing the automobile to the dealer at least four times regarding the same nonconformity, plaintiff here was entitled to the statutory presumption that a reasonable number of attempts had been undertaken to conform the car to the express warranties. Despite these visits to the dealer, the defect was not repaired. Additionally, defendant failed to prove any of the affirmative defenses under G.S. \u00a7 20-351.4. Accordingly, we hold that the trial court correctly held that the Act had been violated and that plaintiff was entitled to recover.\nII.\nSecond, defendant argues that the trial court erred in trebling damages because plaintiff introduced evidence insufficient as a matter of law to show that defendant unreasonably refused to comply with G.S. \u00a7\u00a7 20-351.2 and 20-351.3. We disagree.\nG.S. \u00a7 20-351.8(2) provides that monetary damages to an injured consumer \u201cshall be trebled upon a finding that the manufacturer unreasonably refused to comply with G.S. 20-351.2 or G.S. 20-351.3.\u201d The Act is a \u201cconsumer protection statute,\u201d and is to be interpreted by an \u201cexamination of the plain language of the statute.\u201d Anders, 104 N.C. App. at 65, 67, 407 S.E.2d at 621-622. After appropriate notice from plaintiff, defendant here failed to cure the defect within 15 days, the maximum statutory period. G.S. \u00a7 20-351.5(a). See G.S. \u00a7 20-351.2(a); G.S. \u00a7 20-351.3(b). Defendant\u2019s only attempt at compliance was one unsuccessful effort to call plaintiff\u2019s attorney approximately one month after plaintiff mailed his notification letter. Given plaintiff\u2019s repeated attempts to have the automobile repaired over a period of approximately eight months and defendant\u2019s continuing inaction, the trial court could reasonably conclude that defendant unreasonably refused to comply with the statute and that plaintiff was entitled to treble damages.\nIII.\nThird, defendant contends that the trial court erred by trebling damages prior to deducting an amount representing a reasonable allowance for plaintiff\u2019s use of the vehicle. We disagree. This issue is not explicitly addressed by the statute. Accordingly, we proceed by examining the language and structure of the statute, prior decisions interpreting statutes with similar language, and the legislature\u2019s intent in establishing this statutorily-created cause of action.\nInitially, we turn to the broad language of the portion of the Act entitled \u201cRemedies,\u201d which provides:\nIn any action brought under this Article, the court may grant as relief:\n(1) A permanent or temporary injunction or other equitable relief as the court deems just;\n(2) Monetary damages to the injured consumer in the amount fixed by the verdict. Such damages shall be trebled upon a finding that the manufacturer unreasonably refused to comply with G.S. 20-351.2 or G.S. 20-351.3. The jury may consider as damages all items listed for refund under G.S. 20-351.3.\nG.S. \u00a7 20-351.8 (emphasis added). Defendant contends that once plaintiff\u2019s damages ($4,511.95) are offset by the reasonable allowance for plaintiff\u2019s use ($5,429.00), \u201cthe \u2018amount fixed by the verdict\u2019 is zero, and there is nothing to treble.\u201d We disagree. The \u201citems listed for refund\u201d constituting the \u201cdamages\u201d that \u201cshall be trebled\u201d under G.S. \u00a7 20-351.8(2) are found for a lessee under G.S. \u00a7 20-351.3(b), which provides that the manufacturer shall\naccept return of the vehicle from the consumer and refund the following:\n(1) To the consumer:\na. All sums previously paid by the consumer under the terms of the lease;\nb. All sums previously paid by the consumer in connection with entering into the lease agreement including, but not limited to, any capitalized cost reduction, sales tax, license and registration fees, and similar government charges; and\nc. Any incidental and monetary consequential damages.\nThe provision for offset to which defendant refers is found in the next subsection of G.S. \u00a7 20-351.3, which provides in pertinent part:\nThe refund to the consumer shall be reduced by a reasonable allowance for the consumer\u2019s use of the vehicle. A reasonable allowance for use is that amount directly attributable to use by the consumer prior to his first report of the nonconformity to the manufacturer, its agent, or its authorized dealer, and during any subsequent period when the vehicle is not out of service because of repair.\nG.S. \u00a7 20-351.3(c). Accordingly, since the \u201citems listed for refund\u201d that constitute the \u201cdamages\u201d that \u201cshall be trebled\u201d under G.S. \u00a7 20-351.8 and the offset are found in different subsections of G.S. \u00a7 20-351.3, we hold that defendant is entitled to an offset only after plaintiff\u2019s damages under G.S. \u00a7 20-351.3(b) have been trebled.\nAdditionally, defendant\u2019s interpretation of the remedies statute is inconsistent with prior interpretations of similar statutory language. The phrase \u201cthe amount fixed by the verdict\u201d also appears in G.S. \u00a7 75-16 (1988), another consumer protection act which provides for treble damages. Marshall v. Miller, 302 N.C. 539, 543, 276 S.E.2d 397, 400 (1981). In Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 416-17, 363 S.E.2d 643, 652-53, disc. rev. denied, 322 N.C. 113, 367 S.E.2d 917 (1988), this Court held under G.S. \u00a7 75-16 that the credit was to be deducted from the plaintiff\u2019s award after trebling plaintiff\u2019s damages, rather than before trebling the damages. See Washburn v. Vandiver, 93 N.C. App. 657, 664, 379 S.E.2d 65, 69-70 (1989); see also Providence Hospital v. Truly, 611 S.W. 2d 127, 136 (Tex. Civ. App. 1980) (statute similar to N.C.G.S. \u00a7 75-16); Flintkote Company v. Lysfjord, 246 F.2d 368, 398 (9th Cir.), cert. denied, 355 U.S. 835, 2 L.Ed.2d 46 (1957) (Clayton Act).\nFurthermore, in interpreting the treble damages provisions of G.S. \u00a7 75-16, our Supreme Court in Marshall, 302 N.C. at 549, 276 S.E.2d at 403, noted that the overall purpose for which the statute was enacted should be considered. There, the Court observed that a \u201cstatutory provision for treble damages . . . serves two purposes. First, it makes more economically feasible the bringing of an action where the possible money damages are limited, and thus encourages private enforcement. Second, it increases the incentive for reaching a settlement.\u201d Id. at 549, 276 S.E.2d at 403-04 (citation omitted). Were we to follow defendant\u2019s suggested interpretation, we would seriously erode both these purposes, reduce the effectiveness of the Act, and circumvent the intent of the legislature. Defendant\u2019s interpretation would also defeat the legislature\u2019s intent in enacting a new statutory scheme creating a cause of action for automobile consumers more broad than traditional common law actions. Accordingly, defendant\u2019s interpretation fails.\nIV.\nFinally, defendant argues that the trial court erred in cancelling, pursuant to G.S. \u00a7 20-351.3(b), the lease that existed between plaintiff and the lessor, Volvo Finance of North America, Inc. Defendant argued in its brief and at oral argument that defendant and Volvo Finance were \u201cseparate corporations.\u201d Accordingly, we hold that defendant does not have standing to raise this issue on behalf of Volvo Finance of North America, Inc. See Lowder v. All Star Mills, 91 N.C. App. 621, 624-25, 372 S.E.2d 739, 741 (1988), disc. rev. denied, 324 N.C. 113, 377 S.E.2d 234 (1989); Lone Star Industries v. Ready Mixed Concrete, 68 N.C. App. 308, 309, 314 S.E.2d 302, 303 (1984) (\u201cUnder our law, it is rudimentary that the only person who may appeal is the \u2018party aggrieved.\u2019 \u201d).\nV.\nIn conclusion, we hold that the trial court correctly found a violation of the New Motor Vehicles Warranties Act and correctly computed plaintiffs damages.\nAffirmed.\nJudges Johnson and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "J. Sam Johnson, Jr. for plaintiff-appellee.", "Smith Helms Mulliss & Moore, by Bynum M. Hunter and William Sam Byassee, for defendant-appellant." ], "corrections": "", "head_matter": "CURTIS WILSON TAYLOR, Plaintiff-Appellee v. VOLVO NORTH AMERICA CORPORATION, Defendant-Appellant\nNo. 9118SC753\n(Filed 20 October 1992)\n1. Automobiles and Other Vehicles \u00a7 254 (NCI4th)\u2014 New Motor Vehicles Warranties Act \u2014 recovery by plaintiff \u2014 evidence sufficient\nThe trial court correctly held that the New Motor Vehicles Warranties Act had been violated and that plaintiff was entitled to recover where plaintiff first complained of a front end shimmy and vibration upon initially acquiring the car, and shortly thereafter complained of the clicking noise upon the application of the brakes; defendant\u2019s regional sales manager, who had been a parts and service manager during the lease period, testified that he was familiar with defendant\u2019s warranty policies and the nonconformities were covered by a twelvemonth-unlimited mileage warranty for parts and workmanship; plaintiff brought the automobile to the dealer at least four times regarding the same nonconformity and the defect was not repaired; and defendant failed to prove any of the affirmative defenses under N.C.G.S. \u00a7 20-351.4. The Act places no burden on consumers to identify the cause or source of problems.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 721 et seq.\nValidity, construction, 'and effect of state motor vehicle warranty legislation (lemon law). 51 ALR4th 872.\n2. Automobiles and Other Vehicles \u00a7 259 (NCI4th)\u2014 New Motor Vehicles Warranties Act \u2014damages trebled \u2014no error\nThe trial court did not err by trebling damages in an action under the New Motor Vehicles Warranties Act where the court could reasonably conclude that defendant unreasonably refused to comply with the statute, given plaintiff\u2019s repeated attempts to have the automobile repaired over a period of approximately eight months and defendant\u2019s continuing inaction.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 721 et seq.\nValidity, construction, and effect of state motor vehicle warranty legislation (lemon law). 51 ALR4th 872.\n3. Automobiles and Other Vehicles \u00a7 259 (NCI4th)\u2014 New Motor Vehicles Warranties Act \u2014damages trebled before set-off \u2014 no error\nThe trial court did not err in an action under the New Motor Vehicles Warranties Act by trebling damages prior to deducting an amount representing a reasonable allowance for plaintiffs use of the vehicle. Since the items listed for refund that constitute damages to be trebled under N.C.G.S. \u00a7 20-351.8 and the offset are found in different subsections of N.C.G.S. \u00a7 20-351.3, defendant is entitled to an offset only after plaintiff\u2019s damages have been trebled. Defendant\u2019s contrary interpretation of the remedies statute is inconsistent with prior interpretations of similar statutory language and would seriously erode the overall purpose for which the statute was enacted, reduce the effectiveness of the Act, and circumvent the intent of the legislature.\nAm Jur 2d, Automobiles and Highway Traffic \u00a7\u00a7 721 et seq.\nValidity, construction, and effect of state motor vehicle warranty legislation (lemon law). 51 ALR4th 872.\n4. Appeal and Error \u00a7 63 (NCI4th)\u2014 New Vehicles Warranties Act \u2014lease cancelled \u2014no standing to object\nThe defendant in an action under the New Vehicles Warranties Act, Volvo North America Corporation, did not have standing to object to the cancellation of a lease between plaintiff and Volvo Finance of North America where defendant argued in its brief and at oral argument that it and Volvo Finance were separate corporations.\nAm Jur 2d, Appeal and Error \u00a7 172.\nAppeal by defendant from judgment filed 22 February 1991 by Judge W. Steven Allen in GUILFORD County Superior Court. Heard in the Court of Appeals 25 August 1992.\nPlaintiff brought this action on 16 November 1989, under the New Motor Vehicles Warranties Act, G.S. \u00a7 20-351 et seq. The parties waived a jury trial. After hearing evidence from both parties, the trial court found the following facts:\n2. On 27 December 1988, plaintiff entered a lease contract with Maxwell Volkswagen, Inc. as to the subject 1989 Volvo vehicle, agreeing to make 72 monthly payments totaling $34,992.00. Plaintiff took delivery of the automobile on 27 December 1988. Plaintiff made the first monthly payment and deposited $500.00 as security.\n3. Upon test driving the vehicle, plaintiff detected a \u201cshimmy\u201d in the wheel when driving, and informed the dealership\u2019s sales manager. Upon delivery, the vehicle had 736 miles on the odometer, it having been driven by the wife of the dealer as a demonstrator. The dealership assured plaintiff that problems would be corrected at the 1,000 mile checkup. When plaintiff brought the vehicle in on 6 January 1989 for that checkup, this condition was not corrected.\n4. Complaints as to \u201chigh idling\" were corrected, but the car had a clicking noise in the left front wheel, and it continued to shimmy at 45 miles per hour, which conditions appreciably impaired its value to the consumer, who had leased the vehicle for business purposes. The vehicle was returned to the dealership on 6 March 1989, on 16 May 1989, on 3 July 1989, and on 10 July 1989, for various complaints, including the clicking in the wheel and the shimmy. The car was left at the dealership, and plaintiff had to be transported by his employees, after which he returned to pick up the vehicle. He continued to complain of the shimmy on each occasion, and the clicking in the brakes, neither of which was repaired. At the 5,000-mile maintenance checkup, he complained of loss of power, the clicking noise, the shimmy and shaking, none of which were corrected except the loss of power. On 16 May, the dealership attempted to correct warped rotors, resurfacing them, but the car still had the clicking noise and shimmy at the front. On 3 July 1989, the left front door would not open; the dealer had to replace it. The right front seat switch was not operating, the brake pads had to be changed, and the dealership\u2019s shop foreman drove the vehicle, determined that there was a shimmy and a clicking which he attributed to the anti-lock brakes defendant had just installed that year. On 10 July, the windshield wipers were non-operative, more repair had to be made on the rotors, and the seat switch was said to be back ordered from Holland.\n5.Defendant extended to plaintiff as to the subject vehicle an express warranty that it would be free from defect in parts and workmanship for at least twelve months and for unlimited mileage, with some exceptions which are not applicable in this case. The continuing and uncorrected clicking noise and shimmy in the front of the vehicle were direct violations of that warranty so as substantially to impair the vehicle to plaintiff as consumer, making it non-conforming to the contract.\n6. Upon obtaining an attorney in September, 1989, plaintiff notified defendant on 11 September 1989 by letter of his intent to exercise rights under North Carolina\u2019s Lemon law, G.S. Section 20-351 et seq., and defendant responded with only one telephone call to plaintiff\u2019s counsel after that.\n7. The window sticker on the vehicle gave defendant\u2019s address, as did the warranty manual, and plaintiff used that address to notify both the defendant and the lessor-assignee, Volvo Finance of North America, Inc., the addresses being virtually the same.\n8. On 10 October 1989, defendant acknowledges receipt of plaintiff\u2019s counsel\u2019s 11 September 1989 letter, whereby both defendant and Volvo Finance of North America, Inc. were notified under G.S. 20-351 et seq., and between then and 25 October 1989, defendant attempted only one telephone call, which was unsuccessful, and it took no further action to attempt to remedy the nonconformity in its warranty or to attempt to repair the subject vehicle. Plaintiff attempted to return the car to defendant\u2019s dealer, and the dealer refused to accept the car.\n9. At the time of lease agreement, plaintiff informed the defendant\u2019s dealer of his reliance on the subject vehicle for safety and reliability, and informed it of the clicking noise and shimmy causing him concern, and the failure to repair these conditions was a substantial impairment of its value to him, and a breach of defendant\u2019s express warranty.\n10. Plaintiff made all lease payments from January through August, 1989, prior to the vehicle\u2019s being repossessed by Volvo Finance of North America, Inc. During the time plaintiff used the vehicle from 27 December 1988 until repossession, he put approximately 21,000 miles on the vehicle\u2019s odometer.\nThe trial court found that defendant breached its express warranties and accordingly held that defendant violated the New Motor Vehicles Warranties Act. In addition to terminating plaintiff\u2019s lease without penalty, the trial court held that plaintiff could recover $4,511.95, which included lease payments, the security deposit, and repair costs. This amount was then trebled because the defendant \u201cunreasonably refused to comply with the requirements of G.S. \u00a7\u00a7 20-351.2 and [20-]351.3, in that it made only one unsuccessful telephone call to plaintiff\u2019s attorney to attempt to remedy the matter.\u201d From the trebled award of $13,535.85, the trial court deducted $5,429.00 as an offset representing a reasonable allowance for plaintiff\u2019s use of the automobile. This reduced plaintiff\u2019s award to $8,106.85. Additionally, the trial court awarded the plaintiff $4,125.00 in attorney\u2019s fees pursuant to G.S. \u00a7 20-351.8(3)(a), due to the manufacturer\u2019s \u201cunreasonable failfure] to resolve this matter, as required by statute.\u201d Defendant appeals.\nJ. Sam Johnson, Jr. for plaintiff-appellee.\nSmith Helms Mulliss & Moore, by Bynum M. Hunter and William Sam Byassee, for defendant-appellant." }, "file_name": "0678-01", "first_page_order": 706, "last_page_order": 716 }