{ "id": 8350705, "name": "EUGENE TUCKER BUILDERS, INC., and EUGENE TUCKER, Plaintiffs v. FORD MOTOR COMPANY, Defendant", "name_abbreviation": "Eugene Tucker Builders, Inc. v. Ford Motor Co.", "decision_date": "2005-12-20", "docket_number": "No. COA05-72", "first_page": "151", "last_page": "157", "citations": [ { "type": "official", "cite": "175 N.C. App. 151" } ], "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": "N.C. Gen. Stat. \u00a7 20-351", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": -1 }, { "cite": "N.C. Gen. Stat. \u00a7 20-351.4", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "546 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135720, 135663, 135731, 135928, 135807 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0373-01", "/nc/353/0373-03", "/nc/353/0373-05", "/nc/353/0373-04", "/nc/353/0373-02" ] }, { "cite": "532 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "256", "parenthetical": "\"content and context [of Rule 56 affidavit] must show its material parts are founded on the affiant's personal knowledge\"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11081037 ], "year": 2000, "pin_cites": [ { "page": "634", "parenthetical": "\"content and context [of Rule 56 affidavit] must show its material parts are founded on the affiant's personal knowledge\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0629-01" ] }, { "cite": "581 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491521, 491781, 491848, 491753, 491727, 491668, 491638, 491482, 491900 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0169-03", "/nc/357/0169-09", "/nc/357/0169-06", "/nc/357/0169-04", "/nc/357/0169-08", "/nc/357/0169-05", "/nc/357/0169-07", "/nc/357/0169-02", "/nc/357/0169-01" ] }, { "cite": "577 S.E.2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "128-29" } ], "opinion_index": 0 }, { "cite": "156 N.C. App. 292", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9190431 ], "pin_cites": [ { "page": "295-96" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0292-01" ] }, { "cite": "499 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "777", "parenthetical": "affiant's statements based upon review of his employer's business records in course of his employment satisfied personal knowledge requirement of Rule 56(e)" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650568 ], "year": 1998, "pin_cites": [ { "page": "396", "parenthetical": "affiant's statements based upon review of his employer's business records in course of his employment satisfied personal knowledge requirement of Rule 56(e)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0389-01" ] }, { "cite": "500 S.E.2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "469", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e)" } ], "opinion_index": 0 }, { "cite": "129 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11651913 ], "year": 1998, "pin_cites": [ { "page": "623", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/129/0618-01" ] }, { "cite": "526 N.W.2d 841", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 8665363 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "843" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/190/0436-01" ] }, { "cite": "451 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "622" }, { "page": "622", "parenthetical": "lessee must show that vehicle failed to conform to manufacturer's express warranty" } ], "opinion_index": 0 }, { "cite": "339 N.C. 238", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556615 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "245" }, { "page": "245" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0238-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 20-351.3", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 20-351", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 } ], "analysis": { "cardinality": 658, "char_count": 15550, "ocr_confidence": 0.758, "pagerank": { "raw": 2.553740814181608e-07, "percentile": 0.8146449850937255 }, "sha256": "3db87e3ff7a528c03dbf15b31e68db90d328c033580edb9759c29a75ac1a87bf", "simhash": "1:1a8df848d30e3cc3", "word_count": 2443 }, "last_updated": "2023-07-14T22:29:36.119960+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge LEWIS concurs.", "Judge HUDSON dissents." ], "parties": [ "EUGENE TUCKER BUILDERS, INC., and EUGENE TUCKER, Plaintiffs v. FORD MOTOR COMPANY, Defendant" ], "opinions": [ { "text": "ELMORE, Judge.\nEugene Tucker Builders, Inc. and Eugene Tucker (plaintiff) appeal an order of the trial court granting summary judgment in favor of Ford Motor Company (defendant). On 2 January 2001 plaintiff leased a new Lincoln Navigator from Town Square, an authorized Ford dealership in Lincolnton, North Carolina. Defendant provided the vehicle with an express warranty, the \u201cNew Vehicle Limited Warranty.\u201d This warranty applied for four years or 50,000 miles, whichever occured first, and covered all parts except tires that are defective in factory-supplied materials or workmanship. The warranty stated that it did not cover damage caused by \u201cnon-Ford parts installed after the vehicle leaves Ford\u2019s control.\u201d\nAt the time of the lease, on 2 January 2001, plaintiff requested that Town Square install a remote start system in the vehicle. On 3 January 2001 Southland Dealer Services (Southland) sold and delivered a remote start system and an anti-theft bypass, which is a device that connects the remote start system to the vehicle. Southland is an authorized Ford parts distributor located in Charlotte. Southland did not install either the remote start system or the anti-theft bypass. Instead, Mobile Environment, Inc. (Mobile Environment) installed the remote start system shipped by Southland. Mobile Environment also installed an anti-theft bypass, but this device was not the one manufactured by Ford and shipped by Southland. The anti-theft device was manufactured by Directed Electronics, Inc. (DEI).\nWithin one week of accepting delivery of the vehicle, plaintiff began experiencing problems with the vehicle\u2019s electrical system. Plaintiff alleged that the vehicle alarm began to go off every thirty minutes and that the vehicle would suddenly stall while driving on the road. Plaintiff also alleged that he returned the vehicle to Town Square on eight or nine occasions for repair, most recently in December of 2002. By letter dated 7 March 2003 plaintiff informed defendant of his intention to pursue remedies under N.C. Gen. Stat. \u00a7 20-351 el seq., the New Motor Vehicles Warranties Act. In compliance with the statute, plaintiff requested that defendant cure the alleged defects within 15 days of receipt of the letter.\nDuring this cure period, the vehicle was transported to an authorized Ford dealership in Fort Mill, South Carolina. Technicians at the Fort Mill dealership removed the remote start system and the anti-theft bypass. After removal of these accessories, the vehicle was transported back to Town Square. A Ford Service Engineer at Town Square inspected the vehicle and declared it to be in compliance with defendant\u2019s express limited warranties.\nPlaintiff filed the instant action on 11 July 2003. Defendant filed its Answer on 16 September 2003 and moved for summary judgment on 8 March 2004. Following a hearing, the trial court granted defendant\u2019s motion for summary judgment and dismissed plaintiff\u2019s action with prejudice. From this order entered 19 July 2004, plaintiff appeals.\nThe New Motor Vehicles Warranties Act provides that:\nWhen consumer is a lessee, if 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, and which occurred no later than 24 months or 24,000 miles following original delivery of the vehicle, the manufacturer shall, at the option of the consumer, replace the vehicle with a comparable new motor vehicle or accept 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.\nN.C. Gen. Stat. \u00a7 20-351.3(b) (2003). As such, a lessee seeking recovery under this Act must show \u201c(1) the terms of the manufacturer\u2019s express warranty, (2) that the vehicle failed to conform to those terms in the warranty, and (3) that after a reasonable number of attempts to remedy that breach of the warranty (4) the vehicle still failed to conform.\u201d Taylor v. Volvo North America Corp., 339 N.C. 238, 245, 451 S.E.2d 618, 622 (1994).\nPlaintiff assigns error to the trial court\u2019s grant of summary judgment on the basis that issues of material fact exist which should be presented to a jury. Specifically, plaintiff contends that the remote start system and the anti-theft bypass installed on the vehicle were Ford parts covered by the express warranty. Defendants argue, in contrast, that the anti-theft bypass was not manufactured by a Ford-authorized manufacturer and was not installed by a Ford-authorized installer.\nInitially, we note the parties agree that a Ford-authorized parts distributor, Southland, sold and shipped the accessory parts to Town Square. The dispute involves the question of whether the company that manufactured the anti-theft bypass, DEI, is a Ford-authorized manufacturer such that this part was covered by defendant\u2019s express warranty. Defendant contends that summary judgment was properly granted because it is undisputed that a non-Ford part was installed in the vehicle and the plain language of the express warranty excludes damage caused by non-Ford parts. The express warranty provides, in pertinent part:\nWHAT IS NOT COVERED?\nDamage Caused By:\n\u2022 non-Ford parts installed after the vehicle leaves Ford\u2019s control. For example, but not limited to, cellular phones, alarm systems, and automatic starting systems\nOther Items and Conditions Not Covered\nYour New Vehicle Limited Warranty does not cover:\n\u2022 non-Ford parts of your vehicle, for example, parts (including glass) installed by body builders or manufacturers other than Ford, or damage to Ford components caused by installation of non-Ford parts\nDefendant cites to a case in another jurisdiction, Malone v. Nissan Motor Corp., 526 N.W.2d 841 (Wis. Ct. App. 1994), in which an appellate court determined that an after-market added accessory did not come within a new vehicle express limited warranty. In Malone, the plaintiff argued that a spoiler added to a new vehicle by the dealer was covered by Nissan\u2019s new vehicle limited warranty. However, the court determined that there was no evidence that Nissan manufactured the spoiler and, since Nissan\u2019s warranty covered only parts supplied by Nissan, that the warranty did not include the defective spoiler. Id. at 843. We also determine that under the express warranty here, damage caused by non-Ford parts are excluded from Ford\u2019s express warranty coverage and thus cannot be the basis of relief under the New Motor Vehicles Warranties Act. If the part was not manufactured by Ford, then summary judgment was proper in favor of defendant. Thus, we now consider whether there is evidence in the instant case that DEI, the manufacturer of one of the accessory parts installed, was a Ford-authorized manufacturer.\nBoth parties filed affidavits in connection with the summary judgment hearing. Defendant submitted to the trial court the affidavit of Brett Little, who is employed by Ford Motor Company as an Office Operations Specialist and previously held a position as Ford Service Engineer. Mr. Little stated that these positions required his familiarity with Ford-manufactured parts and accessories. Mr. Little stated that, upon his inspection, the remote start system was a Ford part but the anti-theft bypass was a cheaper non-Ford part. Mr. Little further stated that plaintiff experienced problems with the remote start system because the anti-theft by-, pass was not a Ford part.\nPlaintiff submitted to the court the affidavit of James R. Rhyne, a former manager of the Charlotte, North Carolina office of Mobile Environment. Mr. Rhyne testified that Mobile Environment installed, the anti-theft bypass device in plaintiff\u2019s vehicle and that Mobile Environment is an authorized service and installation representative of Ford Motor Company. He also stated that the manufacturer of the bypass device, DEI, is an authorized manufacturer of Ford Motor Company electronic systems.\nThereafter, defendant submitted the affidavit of Jim Cooper, an employee of Visteon Corporation, a parts supplier for Ford Motor Company. Mr. Cooper stated that he had reviewed the affidavit of James R. Rhyne. Mr. Cooper stated that, contrary to Mr. Rhyne\u2019s statement, Mobile Environment was not affiliated with Ford in any way prior to. 25 February 2004. Mr. Cooper also stated that DEI manufactures an anti-theft bypass that is compatible with Ford vehicles but that DEI does not have any .relationship with Ford and does not manufacture an anti-theft bypass device for Ford.\nAfter carefully reviewing the record, we conclude that plaintiff\u2019s affidavit does not create an issue of material fact regarding whether the manufacturer of the anti-theft device, DEI, was a Ford-authorized manufacturer. \u201c[W]hen affidavits are offered in opposition to a motion for summary judgment, they must \u2018be made on personal knowledge, . . . set forth such facts as would be admissible in evidence, and . .. show affirmatively that the affiant is competent to testify to the matters stated therein.\u2019 \u201d Weatherford v. Glassman, 129 N.C. App. 618, 623, 500 S.E.2d 466, 469 (1998) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e)). Here, Mr. Rhyne\u2019s affidavit does not indicate how he had personal knowledge that DEI is an authorized Ford parts manufacturer. It appears that the source of Mr. Rhyne\u2019s information is an exhibit attached to his affidavit, which is a diagram published by DEI illustrating how to wire an anti-theft bypass to a Ford vehicle. This document does not establish that DEI is a Ford-authorized manufacturer. The document was not published by Ford, and Mr. Rhyne avers no other affiliation with Ford Motor Company or Ford-authorized manufacturers. Also, Mr. Rhyne does not assert that his knowledge is based upon business records that he reviewed in the course of his employment. Cf. Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 396, 499 S.E.2d 772, 777 (1998) (affiant\u2019s statements based upon review of his employer\u2019s business records in course of his employment satisfied personal knowledge requirement of Rule 56(e)). As the content of the Rhyne affidavit does not satisfy the personal knowledge requirement of Rule 56(e), it could not have been considered by the trial court in ruling on the summary judgment motion. See Strickland v. Doe, 156 N.C. App. 292, 295-96, 577 S.E.2d 124, 128-29 (trial court may not consider portions of affidavit which were not made on affiant\u2019s personal knowledge), disc. review denied, 357 N.C. 169, 581 S.E.2d 447 (2003); Hylton v. Koontz, 138 N.C. App. 629, 634, 532 S.E.2d 252, 256 (2000) (\u201ccontent and context [of Rule 56 affidavit] must show its material parts are founded on the affiant\u2019s personal knowledge\u201d), disc. review denied, 353 N.C. 373, 546 S.E.2d 603 (2001).\nIn contrast, both the Cooper and Little affidavits submitted by defendant state that the information is based on the affiant\u2019s personal knowledge. Moreover, the content of each affidavit reveals that the affiant has personal knowledge of Ford-authorized manufacturers through employment positions. As the moving party, defendant has established that a non-Ford part was installed on plaintiff\u2019s vehicle and that this part is excluded from coverage under the express warranty. Also, defendant has shown that the damage to the vehicle was caused by the non-Ford part. Brett Little stated in his affidavit that plaintiff experienced problems with the remote start system because the anti-theft bypass was not a Ford part. Plaintiff provides no argument or forecast of evidence on this point, and thus has not placed this fact in dispute. As plaintiff has not forecast evidence that his vehicle failed to conform to the express warranty, his claim is lacking in an essential element. See Taylor, 339 N.C. at 245, 451 S.E.2d at 622 (lessee must show that vehicle failed to conform to manufacturer\u2019s express warranty). Accordingly, we hold that the trial court properly granted summary judgment to defendant.\nAffirmed.\nJudge LEWIS concurs.\nJudge HUDSON dissents.\n. Defendant also notes that an unauthorized modification by the consumer is an affirmative defense to a claim under the New Motor Vehicles Warranties Act. See N.C. Gen. Stat. \u00a7 20-351.4 (2003).", "type": "majority", "author": "ELMORE, Judge." }, { "text": "HUDSON, Judge,\ndissenting.\nHaving carefully reviewed the affidavits submitted to the trial court, I do not agree that plaintiff has failed to forecast an issue of fact as to whether DEI was a Ford-authorized manufacturer. As the majority accurately notes, Mr. Rhyne\u2019s affidavit clearly states that \u201cMobil Environment installed the bypass device, which is a piece known as a 555F made by Directed Electronics, Inc., or DEI, also an authorized manufacturer of Ford Motor Company electronic systems.\u201d The majority rejects these assertions in the affidavit, on the basis that the affidavit does not show how Mr. Rhyne had personal knowledge of these facts. I believe that the additional statements in the affidavit and the documents attached, which show that Mr. Rhyne \u201cwas the Manager of the Charlotte, North Carolina office of Mobile Environment, Inc.,\u201d which company installed the parts referred to above, sufficiently showed a basis for his personal knowledge and created an issue of fact regarding whether DEI was a Ford-authorized manufacturer. Thus, I would reverse the grant of summary judgment on this basis, and I respectfully dissent.", "type": "dissent", "author": "HUDSON, Judge," } ], "attorneys": [ "Sigmon, Sigmon & Isenhower, by W. Gene Sigmon, for plaintiffs-appellants.", "Maupin Taylor, P.A., by M. Keith Kapp and Kevin W. Benedict, for defendant-appellee." ], "corrections": "", "head_matter": "EUGENE TUCKER BUILDERS, INC., and EUGENE TUCKER, Plaintiffs v. FORD MOTOR COMPANY, Defendant\nNo. COA05-72\n(Filed 20 December 2005)\nMotor Vehicles; Warranties\u2014 breach of express warranty\u2014 vehicle lease\nThe trial court did not err by granting summary judgment in favor of defendant lessor on plaintiff lessee\u2019s claim seeking remedies under N.C. Gen. Stat. \u00a7 20-351 et seq. of the New Motor Vehicles Warranties Act, because: (1) plaintiff has not forecast evidence that his vehicle failed to conform to the express warranty, and thus, his claim is lacking in an essential element; (2) defendant has established that a non-Ford part was installed on plaintiff\u2019s vehicle, that this part is excluded from coverage under the express warranty, and the damage to the vehicle was caused by the non-Ford part; (3) plaintiff\u2019s affidavit does not create an issue of material fact regarding whether the manufacturer of the anti-theft device, DEI, was a Ford-authorized manufacturer when the affidavit does not satisfy the personal knowledge requirement of N.C.G.S. \u00a7 1A-1, Rule 56(e), and thus, it could not have been considered by the trial court in ruling on the summary judgment motion; and (4) both of defendant\u2019s two affidavits state that the information is based on the affiant\u2019s personal knowledge of Ford-authorized manufacturers through employment positions.\nJudge HUDSON dissenting.\nAppeal by plaintiffs from order entered 19 July 2004 by Judge Robert P. Johnston in Lincoln County Superior Court. Heard in the Court of Appeals 15 September 2005.\nSigmon, Sigmon & Isenhower, by W. Gene Sigmon, for plaintiffs-appellants.\nMaupin Taylor, P.A., by M. Keith Kapp and Kevin W. Benedict, for defendant-appellee." }, "file_name": "0151-01", "first_page_order": 185, "last_page_order": 191 }