Prichard Enterprises, Inc. v. Adkins
ORDER granting 34 Motion for Summary Judgment. Signed by Chief Judge James C. Dever III on 3/14/2012. (Sawyer, D.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
PRICHARD ENTERPRISES, INC.,
BOBBY R. ADKINS,
On October 9, 2006, Prichard Enterprises, Inc. ("Prichard Enterprises" or "plaintiff") bought
a 1975 Cessna SkyMaster airplane from Bobby R. Adkins ("Adkins" or "defendant") for $132,500.
Prichard Enterprises is unhappy with the purchase and wants to either rescind the transaction and get
its money back or to recover damages. The main dispute between the parties centers on the meaning
of "airworthy condition" in a warranty contained in the sales contract. On May 28, 2010, Prichard
Enterprises sued Adkins in the Superior Court ofWake County, North Carolina [D.E. 1-2]. On July
2,2010, Adkins removed the case to this court. On August 2,2011, following discovery, Adkins
filed a motion for summary judgment and a supporting memorandum [D.E. 34-35]. Prichard
Enterprises responded in opposition [D.E. 36], and defendant replied [D.E. 38]. As explained
below, the plane was in "airworthy condition" when Adkins sold it. Thus, Adkins did not breach
the warranty, and the court grants Adkins's motion for summary judgment.
Prichard Enterprises is a Nevada corporation and its sole shareholder and employee is Terry
Prichard ("Prichard"). Compi. [D.E. 2-1] ~ 1, 12; Def.'s Mem. Supp. Mot. Summ. 1. [D.E. 35] 2.
In 2006, Prichard became interested in purchasing an aircraft for business and recreational purposes.
Def.'s Mem. Supp. Mot. Summ. J., Ex. 1 ("Prichard Dep.") 10, 18. To minimize his personal tax
liability, Prichard planned to purchase the aircraft through Prichard Enterprises. Id. 15.
Prichard focused his interest on Cessna SkyMasters, which are twin-engine, propeller
aircrafts with four seats, a pressurized cabin, and retractable landing gear. Id. 18; Def. 's Mem. SUpp.
Mot. Summ. J., Ex. 2 ("Adkins Dep.") 13, 37-38. Prichard believed that SkyMasters had good
range, and had many ofthe flying characteristics of single-engine aircraft. Prichard Dep. 18. In the
late 1980s, Prichard became licensed to fly single-engine aircraft. See id. 16. However, he planned
to purchase a SkyMaster, have a friend and twin-engine-licensed pilot, Tim Sorrells ("Sorrells"),
teach him to fly the twin-engine aircraft, and then attain a twin-engine pilot's license from the
Federal Aviation Administration ("FAA''). Id. 18-20. According to Prichard, Sorrells is a
commercially-licensed pilot who is employed by United Parcel Service to fly 747 aircraft. Id. 28.
Sorrells is not a licensed aircraft mechanic. Pl.'s Mem. Opp'n Mot. Summ. J., Ex. A ("Prichard
Aff.") ~ 5.
Adkins is a resident ofDublin, Virginia In 2006, he owned a Cessna SkyMaster aircraft that
he was looking to sell ("plane" or "aircraft',). See Adkins Dep. 30. Adkins wanted to sell the plane
because it did not have de-icing capabilities on its wing and tail surfaces, hindering his routine low
altitude flights to the northeastern United States. Id. Adkins estimated that he flew the plane
approximately fifty or sixty hours during the one year that he owned it. Id. 79. He used the plane
for personal travel, often carrying family members as passengers. Id. 79-80. Adkins intended to
and did replace the plane with an almost identical model that had increased de-icing capabilities.
In 2006, through third-party broker Bill Crews ("Crews"), Prichard contacted Adkins about
purchasing the plane. Id.49. During pre-sale conversations, Prichard arranged to have Sorrells
inspect the plane. Prichard Dep. 26-29. Prichard requested through Crews that Adkins allow
Sorrells to visually inspect the plane, review the logbooks, and fly the aircraft. rd.; Prichard Aff. ~
4. Through Crews, Adkins agreed to these requests and the parties scheduled Sorrells's inspection
for a date in October 2006. See Adkins Dep. 49,1 On the agreed-upon date, Sorrells arrived at the
Rowan County, North Carolina Airport where the aircraft was hangared, and found that the plane
could not be flown that day because mechanics were performing routine maintenance on its avionics
system. See Prichard Dep. 26; Prichard Aff.
6-7. Unable to perform a test flight, Sorrells
conducted a ''walk around" examination ofthe plane's exterior and interior and reviewed the plane's
logbooks. Prichard Dep. 26-28; Prichard Aff. ~ 8.
Prichard then contracted with the maintenance shop ofthe Rowan County Airport to inspect
the plane. Bove Aff.
8; see Prichard Dep. 55-56. Bove, a maintenance shop employee and
certified airframe and powerplant ("A&P") mechanic with an FAA Inspection Authorization ("IA',),
performed the inspection on the same day as Sorrells's inspection. See Bove Aff. ~~ 2, 8. Bove was
familiar with the plane. In fact, in May 2006, Bove had performed the FAA-required annual
inspection ofthe aircraft pursuant to a contract between his employer and Adkins. See id. ~~ 4-6. 2
record does not include the specific date ofSorrells's inspection. The court concludes
that the date was in early October 2006, based upon Prichard's statement that he hired an employee
ofthe Rowan County Airport, Greg Bove ("Bove"), to inspect the plane in Sorrells's presence, see
Prichard Dep. 54-55, Bove' s statement that he inspected the plane for Prichard in October 2006, see
Def.'s Mem. Supp. Mot. Summ. J., Ex. 3 ("Bove Aff.") ~ 8, and the invoice from Bove's inspection
having an opening date of October 3, 2006, see id., Ex. D ("October 2006 Invoice - Prichard").
2 The FAA requires that all United States-registered aircraft cany an airworthiness certificate.
See 14 C.F.R. § 21.173. An owner of a used aircraft can receive an airworthiness certificate by
demonstrating to the FAA that the aircraft "has been inspected in accordance with the performance
rules for 100-hour inspections ... and found airworthy by ... [t]he holder of a repair station
certificate ... [or] the [h]older of a mechanic certificate ...." rd. § 21.183(d). Standard
airworthiness certificates are valid for so long as annual "maintenance, preventive maintenance, and
alterations are performed ...." Id. § 21.181; see also id. § 91.409(a).
In the May 2006 inspection, Bove "complied with all airworthiness directives from the FAA" and
performed the inspection pursuant to the Cessna-provided maintenance manual and checklist. rd.
5; see id., Ex. A ("May 2006 Inspection Checklist"). Thus, Bove inspected "the battery, battery
box, and battery cables; propeller governor cables and controls; internal combustion heater; engines;
and every other system or part in the aircraft required for an airworthiness certification." Bove Aff.
After the May 2006 inspection, Bove informed Adkins ofthirty-five mechanical problems and
proposed remedial measures for them. Id.
6; see id., Ex. B ("May 2006 Invoice"). Adkins
instructed Bove to perform all ofthe proposed remedial measures. Bove Aff. ~ 6. Upon completing
these repairs, Bove certified the aircraft as airworthy. Id. ~ 7; see id., Ex. C ("May 2006 Logbook
Bove's October 2006 inspection for Prichard revealed a few minor mechanical problems,
which Bove reported to Prichard. Bove Aff. ~ 8; see October 2006 Invoice - Prichard; Bove Aff.,
Ex. E ("October 2006 Inspection Notes"). In his report, Bove proposed remedial measures for the
identified problems. See October 2006 Invoice - Prichard. At Adkins's expense, Bove then
completed all but one ofthe proposed remedial measures. Bove Aff. ~ 9; id., Ex. F ("October 2006
Invoice - Adkins"). Bove did not replace a worn cowling door at this time, because a ''worn cowling
[door] is a minor issue that in no way affects [an] aircraft's airworthiness." Bove Aff. ~ 9. During
the October 2006 inspection, Bove "saw no issues whatsoever that affected the aircraft's
airworthiness ...." Id. ~ 10. Bove believes that "the aircraft was airworthy when [he] completed
the pre-purchase inspection and repairs." Id. Bove made such assurances to Sorrells at that time.
See Prichard Dep. 27; Prichard Aff. ~ 8. Sorrells then reported to Prichard that, although Sorrells
had not been able to fly the plane as planned, he did not discover anything about the plane that
caused him concern. See Prichard Dep. 28; Prichard Aff. ~ 9.
Based in part on Sorrells's and Bove's inspections, Prichard decided to have Prichard
Enterprises purchase the plane. See Prichard Dep. 29, 56; Prichard Aff. -,r 10. On October 9, 2006,
Adkins and Prichard Enterprises signed a contract in which Prichard Enterprises agreed to purchase
the 1975 Cessna SkyMaster, Mode11337G-P from Adkins for $132,500. Def.'s Mem. Supp. Mot.
Summ. J., Ex. 5 ("Purchase Agreement") -,r-,r 1-2. In the purchase agreement, Adkins expressly
warranted that "the Aircraft is in airworthy condition ...." Id. -,r 6. lbis was the only warranty or
specific representation about the plane's condition that Adkins made to Prichard Enterprises.
Prichard Dep. 54; see also Purchase Agreement -,r 6.
On the sale date, Adkins, Prichard, and Sorrells met at a Charlotte, North Carolina airport.
Compl. -,r 12; Prichard Dep. 63. Adkins then flew the plane (with Prichard and Sorrells as
passengers) to the Rowan County Airport. Compl. -,r 12; Prichard Dep. 63. Prichard had not ridden
in or flown the plane before this flight. Prichard Dep. 63. When Adkins and Prichard landed at the
Rowan County Airport, they finalized the contract, and Adkins departed on a different plane. See
Compl. -,r 12; Prichard Dep. 63.
The following day, Crews met Prichard and Sorrells at the Rowan County Airport to give
them "kind of an orientation ride ...." Prichard Dep. 64. However, when Crews attempted take
off, the plane began to shudder and vibrate, causing Crews to abort the flight. Id.64-65. Prichard
called Adkins, who informed Prichard that it was common for SkyMasters to shudder in the way that
Prichard experienced, and that a pilot could minimize such shuddering by applying back pressure
on the yoke. See id. 65-66. Prichard then spoke with Bove, who stated that a wheel imbalance
caused the shuddering and that such an imbalance was common on SkyMasters. Id. In subsequent
flights, Prichard's pilots took Adkins's advice and the shuddering did not recur. Id.
On December 5, 2006, Sorrells flew the plane, with Prichard as a passenger, from the Rowan
County Airport to Dallas, Texas, stopping to refuel in Little Rock, Arkansas. Id. 19-20; Def.'s
Mem. Supp. Mot. Summ. J., Ex. 6 ("PI.'s Am. Interr. Ans.")' 7. The following day, Sorrells flew
the plane to Little Rock, leaving Prichard in Dallas. See Prichard Dep. 19-20; PI.'sAm. Interr. Ans.
, 7. Before each of these flights, Sorrells performed a walk around inspection of the plane and
examined the plane's logbook, as required by FAA regulations. Prichard Dep. 92-93; see 14 C.F.R.
Prichard planned to hangar the plane in Little Rock, where Sorrells lived. Prichard Dep.
19-20. Prichard was to fly to Little Rock on a routine basis in order to receive lessons from Sorrells
on flying the twin-engine aircraft. See id. However, Sorrells developed health problems soon
thereafter and was unable to provide the lessons. Id. As a result, the plane sat in the Little Rock
hangar and was not flown between October 2006 and August 2007. See id.
In June 2007, the plane's airworthiness certificate expired. Id. 96. Prichard then hired John
Hum ("Hum") to conduct the annual inspection necessary to renew the airworthiness certificate. Id.
96-98; Pl.'s Mem. Opp'n Mot. Summ. J., Ex. C ("Hum Aff.")' 4. Hum is a certified A&P and
IA and has over thirty years of experience working on Cessna aircraft. Hum Aff., Ex. 1 ("Hum
Biography"). He is also a licensed pilot and a retired Navy combat pilot and mechanic. Id.
On August 8, 2007, Hum and another pilot, Don Roney ("Roney"), traveled to Little Rock
to retrieve the plane and fly it to Dallas where Hum was to perform the annual inspection. Prichard
Dep. 98; Pl.'s Am. Interr. Ans. , 7; Def.'s Mem. Supp. Mot. Summ. J., Ex. 7 ("Def.'s Hum Dep.")
59-60.3 Because the plane's airworthiness certificate had expired, FAA regulations required Hum
3 Both parties provide excerpts ofthe same Hum deposition.
But because the parties provide
different pages of that deposition, the court will refer to each party's excerpts separately.
to obtain a special "ferry permit" for the flight from Little Rock to Dallas. See 14 C.F.R. §§
21. 197(a)(l), 91.409; Def.'s Hum Dep. 56-58.4 Before departing Little Rock, Hum inspected the
plane extensively, checking the oil, brakes, tire pressure, engine, propellers, and various interior
spaces where bird nests or debris could build up during a plane's inactivity. Def.'s Hum Dep.
60-62. Hum determined that the plane "was in condition for a safe ferry flight ...." Id. 62.
Prichard Enterprises and Hum disagree as to whether the FAA actually issued a ferry permit for
Hum's flight from Little Rock to Dallas, or whether Hum's extensive pre-flight inspection and
subsequent conclusion obviated the need for such a permit. Regardless, after completing the
inspection, Hum and Roney flew the plane from Little Rock to Dallas. See PI.'s Am. Interr. Ans.
7; Def.'s Hum Dep. 80-81. Hum testified that this two-hour flight was "smooth," and that he
noticed only minor deficiencies in the plane's rear engine pressure and pressurization during the
flight. Def.' s Hum Dep. 80-82. 5 When he arrived in Dallas, Hum performed a cursory "post-flight
Title 14, Section 21.197 of the Code of Federal Regulations states that
[a] special flight permit may be issued for an aircraft that may not currently meet applicable
airworthiness requirements but is capable of safe flight, for the ... purpose[ of] ... [f]lying
the aircraft to a base where repairs, alterations, or maintenance are to be performed, or to a
point of storage.
14 C.F.R. § 21. 197(a)(1).
his deposition, Hum testified that the aircraft "[f]lew good." Def.'s Hum Dep. 80. He
also stated that he did not recall the altitude or speed that he reached during the flight. Id. 80-81.
He characterized the problems that he reported as minor, stating that they were "about the only things
that [he] could pick out ...." Id. 81. He reported making minimal efforts to diagnose the problems
during the flight, and that he "didn't pay much attention to" them. Id. However, in opposing
Adkins's motion for summary judgment, Prichard Enterprises submitted an affidavit from Hum. In
the affidavit, Hum tells a different story. Specifically, Hum states that he reached 16,000 or 17,000
feet during the flight, causing the rear engine to fail "two or three times." Hum Aff. ~ 12. He also
states that a faulty turbocharger that could not maintain manifold pressure caused this failure, and
that any flight above 12,000 feet would have resulted in the rear engine's failure. Id. ~~ 13-14.
Hum's affidavit conflicts with his deposition testimony. A party cannot avoid summary
judgment by submitting a witness affidavit that conflicts with the same witness's prior testimony.
look" at the plane, finding no problems. Id. 82.
Soon thereafter, Hum began the annual inspection that Prichard had hired him to perform.
Id.82-83. Hum partially completed the inspection and then emailed Prichard, informing him of
numerous mechanical problems that Hum had encountered up to that point. Id. 83; Def.'s Mem.
Supp. Mot. Summ. J., Ex. 8 ("Sept. 15,2007 Email"); Hum Aff.1[1[ 15-16. Hum states that the
defects he noted in this email "needed to be corrected and made the aircraft not airworthy . . . ."
Hum Aff. 1[ 17.6 In the following days, Hum sent Prichard several additional emails with
photographs and descriptions ofthe identified problems. Id., Ex. 3. On October 14,2007, Hum sent
Prichard an invoice for the work that Hum had performed on the plane up to that point, and for the
cost of the necessary repairs. Def.'s Mem. Supp. Mot. Summ. J., Ex. 9 ("Oct. 14,2007 Email").
The invoice charged $4,549.94 for the needed repairs and charged $3,125 for the annual inspection.
Id. In the invoice, Hum stated that he had already invested $5,500 in the project. Id. Hum also
stated that "only in [his] opinion" several ofthe plane's problems would not have developed "if they
had been caught on the [p]re-[b]uy [inspection] or at the last [a]nnual [inspection]." Id. (emphasis
in original). Hum opines in his affidavit that there "is no question that these same problems existed
in 2006 and perhaps before that time." Hum Aff.1[ 18. According to Hum, the problems that he
See, e.g., Rohrboughv. Wyeth Labs.. Inc., 916F.2d970, 975-76 (4thCir. 1990); Barwickv. Celotex
Corp., 736 F.2d 946, 960 (4th Cir. 1984), Thus, the court disregards the portions ofHum's affidavit
that conflict with his deposition testimony.
6Among the problems Hum identified were problems with the front propeller that he states
resulted from the removal ofthe de-icing boot; the absence ofa cockpit placard indicating removal
ofthe de-icing boot; a crack in the battery box, which someone had previously failed to repair; acid
from the broken battery box leaking onto the heater fuel line; rust and pitting on the rear engine
metal tubing mount; a missing control cable from the tanis heater inlet shroud in the front engine
compartment, preventing an emergency shut-off; a prop governor cable attached to the engine with
safety wire and not properly clamped; several broken ignition leads on the rear engine; a broken
support between the rear-engine turbo and the rear engine; and rusted bolts and clamps on the rear
engine exhaust. Hum Aff. 1[ 17.
found in 2007 were not of the type that would have developed during the plane's idleness. Id.
After receiving the October 14, 2007, invoice from Hum, Prichard paid the amount due and
instructed Hum to discontinue further inspection and repair of the plane. See Prichard Dep. 126;
Def.' s Hum Dep. 83. Based on Hum's diagnosis, Prichard believes that at the time ofsale the plane
had not been in the condition that Adkins had warranted. See Prichard Aff. ~~ 22-23. 7 On October
24,2008, Prichard Enterprises sought to rescind the purchase agreement. Id.
23; Def.'s Mem.
Supp. Mot. Summ. J., Ex. 15 ("Oct. 24, 2008 Letter from Prichard to Adkins"). When Prichard
instructed Hum to discontinue the repair and inspection in October 2007, Hum had removed and not
yet reinstalled various parts of the plane. See Def. ' s Hum Dep. 83. Hum gathered these parts, put
them in boxes, and stored the boxes inside the aircraft. Id. Hum then placed the partially
disassembled SkyMaster in a climate-controlled Dallas hangar. See Prichard Aff.
25; Hum Aff.
Prichard has since moved the plane to a different climate-controlled hangar in Dallas, but the
plane remains in the same disassembled state. Pl.'s Am. Interr. Ans.
12; Prichard Aff. ~ 25.
The parties agree that the plane is not presently in airworthy condition. See Prichard Dep.
128; Adkins Dep. 81; Def.'s Hum Dep. 120; Def.'s Mem. Supp. Mot. Summ. J., Ex. 11 ("2d Hyde
4-6; Pl.'s Mem. Opp'n Mot. Summ. J. 3; id., Ex. D ("Bland Aff.")
5. However, the
7 In support of Adkins's motion for summary judgment, Adkins's expert, Russell Hyde
("Hyde"), describes the repair work as routine. See Def.'s Mem. Supp. Mot. Dismiss, Ex. 10 ("1st
Hyde Aff.") ~~ 7, 12. Hyde is a certified A&P and IA and a licensed multi-engine aircraft pilot, who
first began working on Cessna SkyMasters over thirty years ago and who has logged approximately
1,400 hours flying SkyMasters. Id. ~~ 1-3. Hyde states that ''the age and sophistication of Cessna
SkyMasters makes them expensive to own and maintain." Id. ~ 9. He estimates that the average
minimum cost ofan annual inspection ofa SkyMaster is between $3,000 and $5,000, but states that
he routinely performs annual inspections that cost plane owners between $6,000 and $7,000. Id.
Adkins also testified about SkyMasters' maintenance costs, stating that SkyMasters were expensive
to maintain because "[t]hey're a complex aircraft ... [with] several systems ... that have a potential
for failure." Adkins Dep. 75-76. Adkins stated that he routinely paid between $5,000 and $10,000
to complete an annual inspection of the SkyMasters that he has owned. Id.76.
parties dispute the costs necessary to bring the plane into ainvorthy condition. Hum stated that
before storing the plane, he and his fellow mechanics put caps on disconnected wiring, sealed the
engine, taped over exposed holes, and cleaned the body of the plane. Def.'s Hum Dep. 121. He
testified that since the aborted inspection in October 2007, the plane has "been well maintained."
Id. Prichard and Hum both claim that the removed parts could be reinstalled at a minor expense and
that the plane could be restored to its 2006, time-of-sale condition or, at minimum, the condition that
it was in when Hum began his 2007 work. Prichard Aff.
28; Hum Aff.
21. Adkins's expert,
Hyde, inspected the plane on June 28, 2011, and reached a different conclusion. 2d Hyde Aff. ~ 3.
Hyde states that the plane has suffered from non-use and from improper maintenance. Id. ~~ 6-14.
He describes unaddressed corrosion from the leaked battery acid and rust on the engine mounts, both
ofwhich Hum first discovered in 2007, and both ofwhich have since worsened. Id. ~~ 8-11. Hyde
also states that, despite Hum's claims of having covered all of the plane's exposed holes, Hyde
discovered various exposed points of entry in the flight instrument panel and the rear engine that
have probably become filled with debris and insects. Id.
12-13; id., Exs. A-B (providing
photographs of the aircraft taken in June 2011, showing exposed valves and lines). Adkins agreed
with Hyde's conclusion that the plane is now beyond repair, stating, "At this point, it's-it's a
candidate for-for the salvage yard." Adkins Dep. 81.
Despite the immaterial factual dispute regarding the current condition ofthe plane, the parties
agree that it would be expensive to complete an annual inspection of the plane and bring it to
ainvorthy condition. Prichard Enterprises states that an inspection of the plane would cost
approximately $10,000 and needed repairs would cost approximately $140,000. Pl.'s Am. Interr.
Ans. ~ 14. Hum concurs with this statement, affirming that he would demand that Prichard pay a
deposit of $150,000 before Hum would begin work on the plane. Def.'s Hum Dep. 120.
In its complaint, Prichard Enterprises raises four claims under North Carolina law and seeks
punitive damages. Compl." 24-54. First, Prichard Enterprises claims breach ofthe 2006 aircraft
purchase agreement, alleging that Adkins failed to deliver an aircraft in an airworthy condition and
refused to accept rescission ofthe contract. Id." 24-31. For this claim, Prichard Enterprises seeks
to recover the costs ofbringing the plane to the condition bargained for, or a return ofthe money that
it paid for the plane. Id.' 31. Second, Prichard Enterprises alleges that Adkins breached the
warranty that he made to Prichard Enterprises as to the aircraft's being in an airworthy condition at
the time ofsale, and that Prichard Enterprises detrimentally relied on this warranty, entitling Prichard
Enterprises to recover the costs necessary to bring the aircraft to the warranted condition or the
difference in value ofthe aircraft as warranted and as delivered. Id." 32-36. Prichard Enterprises
also raises claims offraud and violations ofthe North Carolina Unfair or Deceptive Trade Practices
Act ("UDTPA") and seeks punitive damages. Id." 37-54. Adkins seeks summary judgment on
all ofplaintiffs claims. Def.'s Mot. Summ. J. [D.E. 34].
Summary judgment is proper when ''the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catren, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby. Inc., 477
U.S. 242, 247-48 (1986). The moving party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex, 477 U.S. at 325. After the moving party has met this
burden, the nonmoving party "must come forward with specific facts showing that there is a genuine
issue for trial." Matsushita Elec. Indus. Co.. Ltd. v. Zenith Radio Com., 475 U.S. 574, 587 (1986)
(emphasis and quotation omitted). A genuine dispute about a material fact exists "if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S.
at 248. The court views the evidence and the inferences drawn therefrom in the light most favorable
to the nonmoving party. Scott v. Harris, 550 U.S. 372,378 (2007).
"Breach ofwarranty in a sales contract is an affirmative plea, whether as a defense or ground
for the recovery of damages, and the burden is on one who asserts it to establish it by the greater
weight of the evidence." Gamer v. Keams, 257 N.C. 149, 151, 125 S.E.2d 390, 392 (1962) (per
curiam) (quotation omitted); see N.C. Gen. Stat. § 25-2-313(I)(a). Under North Carolina law, the
elements of a claim for breach of express warranty in a sales contract are "(1) an express warranty
as to a fact or promise relating to the goods, (2) which was relied upon by the plaintiff in making his
decision to purchase, (3) and that this express warranty was breached by the defendant." Harbour
Point Homeowners' Ass'n. Inc. ex reI. Bd. ofDirs. v. DJF Enters .. Inc., 697 S.E.2d 439, 447 (N.C.
Ct.App. 2010)(quotationomitted); see Hall v. T.L. Kemp Jewelry. Inc., 71 N.C. App. 101, 104,322
S.E.2d 7, 10 (1984). To recover damages for a breach, a plaintiff must show that the breach
proximately caused the loss sustained. See Rose v. Epley Motor Sales, 288 N.C. 53, 60,215 S.E.2d
573, 577 (1975); City of Charlotte v. Skidmore. Owings & Merrill, 103 N.C. App. 667, 679,407
S.E.2d 571, 579 (1991).
In determining whether a seller made an express warranty, courts focus on whether the
seller's statements were so regarded by the buyer as part of his reason for purchasing the goods.
Pake v. Byrd, 55 N.C. App. 551, 552-53,286 S.E.2d 588, 589-90 (1982). While a seller need not
"use formal words such as 'warrant' or 'guarantee' or ... have a specific intention to make a
warranty, ... an affIrmation merely ofthe value ofthe goods or a statement purporting to be merely
the seller's opinion or commendation of the goods does not create a warranty." N.C. Gen. Stat. §
25-2-313(2). Moreover, a plaintiff must have relied upon a warrantor's statement in order to
establish a breach ofan express warranty. Garner, 257 N.C. at 151, 125 S.E.2d at 392; see Pake, 55
N.C. App. at 553, 286 S.E.2d at 590 ("[W]here the buyer relies on his own skill and judgment,
thereby essentially disclaiming any warranty, the seller's statements cannot be viewed as the basis
ofthe bargain."). However, "the element ofreliance can often be inferred from allegations ofmere
purchase or use ifthe natural tendency ofthe representations made is such as to induce such purchase
or use." Bernick v. Jurden, 306 N.C. 435, 448, 293 S.E.2d 405,413 (1982); see Kinlaw v. Long
Mfg. N.C .. Inc., 298 N.C. 494,500 n.7, 259 S.E.2d 552, 557 n.7 (1979). Finally, to establish a
breach ofan express warranty, a plaintiff must demonstrate that ''the defects complained of existed
at the time ofthe sale." Pake, 55 N.C. App. at 554, 286 S.E.2d at 590 ("The seller's warranty is not
his personal guaran~ee concerning the continuous and future operation of the goods which he has
sold." (quotation omitted)); see also Bailey v. LeBeay, 79 N.C. App. 345, 350, 339 S.E.2d 460, 463
(1986), affd, 318 N.C. 411, 348 S.E.2d 524 (1986).
In support of his summary judgment motion, Adkins concedes that the purchase agreement
contains an express warranty. Cf. Def.'s Mem. Supp. Mot. Summ. J. 22-25. The purchase
agreement states, inter ali~
Seller warrants that: (a) the Aircraft is in airworthy condition; (b) the Aircraft has a current
annual inspection; (c) the Aircraft has a currently effective Standard Category Airworthiness
certificate issued by the Federal Aviation Administration; (d) all ofthe Aircraft's logbooks
are there; (e) flight manual and owners handbook are present.
Purchase Agreement ~ 6. 8
8 Plaintiff's complaint states that Adkins warranted that ''the [a]ircraft was airworthy at the
time of sale." See CompI. ~ 33. The court construes this statement as a claim that Adkins breached
the first express warranty-that the plane is in airworthy condition. See id. Although Prichard
Enterprises goes on to allege that the plane did not conform to FAA regulations, these statements do
not suggest that Adkins violated the second or third express warranties listed. See id. ~ 34.
Furthermore, Prichard Enterprises does not dispute that, at the time of sale, the plane had a current
annual inspection and airworthiness certificate. See Bland Aff., Ex. 2 ("Airworthiness
Initially, Adkins argues that summary judgment is appropriate because Prichard Enterprises
did not rely on the purchase agreement's express warranty in deciding to purchase the aircraft.
Def.'s Mem. Supp. Mot. Summ. J. 22-23. In support, Adkins contends that Prichard Enterprises
instead decided to purchase the aircraft in reliance on the pre-purchase inspections that Prichard
hired Sorrells and Bove to perform. Id.23.
The court need not address Adkins's argument concerning reliance. Instead, the court
focuses on whether the plane was in "airworthy condition" when sold.
Adkins argues that plaintiffs breach-of-express-warranty claim should be rejected because
''the undisputed evidence from the time of sale shows the [a]ircraft was airworthy." Id. 24. In
support, Adkins notes that, around the time of the sale, the only mechanical problem that Prichard
encountered was "shuddering in the landing gear," which resulted from a wheel imbalance and could
be avoided with the proper technique. Id. Moreover, in successive flights after the October 2006
purchase, but before Hum's October 2007 inspection, pilots ofthe plane observed no problems, and
flew the plane only after standard pre-flight walk around inspections. Id. Adkins notes that Hum
performed a particularly lengthy pre-flight inspection in Little Rock before flying the plane to Dallas
in August 2007 and that this inspection revealed no problems. Id. Adkins also cites the testimony
of his retained expert, Hyde. In his first affidavit, Hyde states that the majority of the plane's
problems that Hum identified in October 2007 were "routine issues that arise with SkyMaster
aircraft." 1st Hyde Aff. ~ 12. Hyde also opines that the few non-routine problems listed by Hum
did not pertain to FAA-required equipment. Id. ~ 13. Therefore, the plane was airworthy, so long
as its owner properly placarded the faulty equipment. Id.
Prichard Enterprises responds in opposition and argues that it has provided sufficient
evidence to demonstrate a genuine issue of material fact as to whether the plane was "in airworthy
condition" at the time of sale. Pl.'s Mem. Opp'n Mot. Summ. J. 4-7. It relies on the opinions of
Hum and ofits retained expert, Gene Michael Bland ("Bland"). Id.5,9 Hum states in an affidavit
that ''there is no question that [the problems that he encountered in the October 2007 aborted annual
inspection] existed in 2006 and perhaps before that time." Hum Aff. -,r 18. Hum rejects the
possibility that the problems might have developed between October 2006 and August 2007 while
the plane was hangared in Arkansas. Id. Bland also opines that the aircraft "would not [have been]
considered airworthy because it ... was not in a condition for safe operation on or about 12-06-2006
, , .." Airworthiness Determination 4. Bland concludes that various mechanical problems as well
as Adkins's failure to properly record mechanical alterations in the plane's logbook "made the
aircraft unairworthy by regulatory standards [and] also made the aircraft dangerous to fly." Bland
Aff. -,r 6; Airworthiness Determination 4. Bland believes that the problems he noted in June 2011
would have existed in 2006 and were "not problems that would have developed during the time
when the aircraft was idle." Bland Aff. -,r 7.
To determine whether Adkins breached the express warranty at the time of sale, the court
must determine the meaning ofthe warranty's term "airworthy condition." See Purchase Agreement
-,r 6. Under North Carolina law, interpretation of a written and unambiguous contract is a question
of law for the court. Briggs v. Am. & Efird Mills. Inc., 251 N.C. 642, 644, 111 S.E.2d 841, 843
(1960). When construing contractual terms, a contracf s plain language controls.
Philip Morris USA Inc., 363 N.C. 623, 631-32, 685 S.E.2d 85, 90-91 (2009); Hodgin v. Brighton,
196 N.C. App. 126, 128-29,674 S.E.2d 444, 446 (2009); Hemric v. Groce, 169 N.C. App. 69, 76,
9Bland is an aviation consultant that Prichard Enterprises hired to examine the plane for this
litigation. See Bland Aff. W2, 4. Bland is a licensed A&P and IA with over thirty-seven years of
aviation experience, during which he has worked as an aviation maintenance instructor, an aviation
safety inspector, and as the director of several aviation maintenance shops. Id., Ex. 1 ("Bland
609 S.E.2d 276,282 (2005); Martin v. Martin, 26 N.C. App. 506, 508,216 S.E.2d 456, 457-58
Other courts have addressed the term "airworthy condition" in warranty provisions similar
to the one at issue in this case. InIDI Holdings. LLC v. Jet Management, Inc., 732 F. Supp. 2d 1205
(N.D. Fla. 2010), the parties executed a 2005 aircraft purchase agreement that "obligated the seller
to deliver [a 1984 Cessna Citation Model 650 jet aircraft] in an airworthy condition ...." Id. at
1214. The court noted that the parties did not define "airworthy" in the agreement, but held that the
word's meaning was "well understood by those in the aircraft industry." Id. at 1213-14 & n.17. The
parties agreed that, although different mechanics could "have differing views and opinions on what
is and is not airworthy ... an opinion on airworthiness attests only to the condition ofan individual
item at that point in time; it could break the next day." Id. at 1214 n.17. In IDI Holdings, plaintiff
buyer subjected the aircraft to an extensive pre-purchase inspection at a designated Cessna service
center, where mechanics made various repairs to resolve "airworthy discrepancies." Id. at 1214-20.
However, after closing, plaintiff encountered mechanical problems during his initial flights that led
his mechanic to identify an additional forty-six items in need of repair. Id. at 1221-22. Plaintiff's
mechanic grounded the plane and obtained a ferry permit to transport the plane to a Cessna service
center. Id. at 1222. After defendant-seller refused to indemnify plaintiff for the repair costs, plaintiff
sued, claiming breach of the purchase agreement's warranty that the plane was "in an airworthy
condition." See id. at 1226. Plaintiff sought to establish the breach ofwarranty by referring to items
deferred and not repaired during the pre-purchase inspection.
Id. at 1226-27.
defendant's Rule 52(c) motion at the close ofplaintiff's evidence in a bench trial, the court held that
although the contract did not define "airworthy condition" or "specify who would decide whether
or not a discrepancy was airworthy if a dispute arose," plaintiff's evidence demonstrated that
defendant had "delivered the aircraft in conformance with the contract." Id. at 1227. The court
reached this conclusion because none of the deferred items "presented an airworthiness problem"
and "no pilots had noted airworthy defects or grounded the plane on [plaintiff's] trips immediately
after closing." Id. (noting that the plane was not grounded until a month after closing, and only then
by a mechanic and not a pilot).
The Texas Court ofAppeals reached a similar conclusion in construing a warranty containing
the phrase "airworthy condition" in Tice v. Ron Farish Aircraft. Inc., No. 11-91-293-CV, 1993 WL
13141539, at *2 (Tex. App. July 22, 1993) (unpublished). In Tice, the parties agreed that the
"[a]ircraft [being sold] is to be in airworthy condition with all systems functioning normally ...."
Id. (emphasis removed). Before closing, plaintiff-buyer paid Johnson Aviation, a third party, to
perform the plane's annual inspection, thereby renewing the plane's airworthiness certificate. Id.
After the sale, plaintiff flew the plane approximately seven times over the course ofa month before
the plane's electrical system failed during flight, causing plaintiff to execute an emergency landing.
Id. Plaintiff concluded that the plane was no longer in an airworthy condition and sued defendant
for breach ofwarranty. See id. at *2-3. The Texas Court of Appeals upheld the trial court's grant
of a directed verdict for defendant, holding that plaintiff had "failed to offer competent proof that
the airplane was not in an 'airworthy condition'" at the time ofsale. Id. at *3. The court based this
conclusion on several facts: that plaintiff had taken possession of the aircraft soon after Johnson
Aviation had performed an annual inspection; that plaintiff, "an exceptionally well-qualified pilot,"
thought the plane was in airworthy condition when he took possession of it; and that plaintiff flew
more than 2,000 miles in the plane before experiencing any problems with it. Id.
Here, the purchase agreement does not define "airworthy condition."
Agreement ~ 6. Absent a definition of a contractual term, the court seeks to give effect to the
meaning that the parties intended the term to have at the time of contracting. See,~, Lane v.
Scarborough, 284 N.C. 407, 409-11, 200 S.E.2d 622, 624-25 (1973). In opposing Adkins's motion
for summary judgment, Prichard Enterprises does not expressly state what meaning it attached to the
term "airworthy condition" at the time of sale. See Pl.'s Mem. Opp'n Mot. Summ. J. 4-7. Adkins
provides his understanding ofthe term in his reply brief. See Def. 's Reply [D.E. 38] 3 ("[A]irworthy
condition is a flight-by-flight determination that evaluates the physical aspects ofthe aircraft ... [to
determine] an aircraft's safety and ability to undertake a given flight ...."). Notably, Adkins's
proposed definition comports with the deftnition of "airworthy condition" provided by Hum, one
ofPrichard Enterprises's experts. See Pl.'s Mem. Supp. Mot. Summ. J., Ex. C ("P1.'s Hum Dep.")
63--64 ("[Airworthy condition] means that [an aircraft] would be-mechanically, electrically and
structurally conditions occur for that given date and time for the trip that we're going to be taking
. . . . [An aircraft] may be in an un-airworthy condition because of the paperwork, has not had its
latest inspection, but it mechanically or electrically or structurally would be safe for a flight. ").
Although not explicitly referenced in the purchase agreement, FAA regulations dealing with
airworthiness are instructive. As noted, 14 C.F.R. § 91.7 states that "[n]o person may operate a civil
aircraft unless it is in an airworthy condition," and goes on to state that "[t]he pilot in command of
a civil aircraft is responsible for determining whether that aircraft is in condition for a safe flight."
14 C.F.R. § 91.7(a)--(b). The FAA regulation does not explicitly deftne "airworthy condition."
However, it prohibits flying an aircraft that is not in an airworthy condition. Moreover, the FAA
regulation requires a pilot to make a flight-by-flight evaluation ofan aircraft's "airworthy condition"
to determine whether an aircraft may be safely operated during an immediate flight. See id.; cf.
Holbrook v. United States, No. 10-2355,2012 WL 764471, at *7 (4th Cir. Mar. 12,2012). This
definition comports with those that Adkins and Hum provide, and the definitions that the courts in
JDI Holdings and Tice adopted. Accordingly, the court concludes that the parties intended
"airworthy condition" to be construed consistently with this generally accepted definition. Thus,
Adkins warranted only that, at the time of sale, the plane was in a condition such that it could be
safely operated during an immediate flight.
With this definition in mind, Prichard Enterprises has failed to raise a genuine issue of
material fact regarding whether the plane was "in airworthy condition" at the time of sale. Indeed,
the evidence shows that the plane was in "airworthy condition" at the time of the sale. First,
although plaintiff's pre-purchase examination of the plane obviously was not as exhaustive as
plaintiff or Prichard would have liked in hindsight, the fact remains that Prichard Enterprises hired
two individuals to inspect the plane immediately before the sale, neither of whom reported defects
that called into question whether the plane was in an "airworthy condition." As noted in Tice and
JDI Holdings, an adequate pre-purchase inspection that reveals no defects strongly suggests that an
aircraft was in an "airworthy condition" at the time of sale. See JDI Holdings, 732 F. Supp. 2d at
1226-27; Tice, 1993 WL 13141539, at *2-3.
Second, the plane made at least four flights shortly after the sale and before Hum discovered
any defects in October 2007. Opposing this conclusion, Prichard Enterprises notes the shq.ddering
that occurred during the 2006 attempted test flight at the Rowan County Airport, and the
turbocharger problems that Hum experienced during the August 2007 flight from Little Rock to
Dallas. PI.' s Mem. Opp'n Mot. Summ. J. 5-6. Prichard Enterprises then argues that these problems
support its position that the plane was not in an airworthy condition at the time of sale. See id.
However, Hum's deposition testimony regarding the August 2007 flight shows that despite these
problems, the plane was in "airworthy condition." See Tice, 1993 WL 13141539, at *3 (holding that
plaintiff's ability to safely fly the aircraft at issue seven times before experiencing difficulties
indicated that the plane was airworthy at the time of sale). Furthennore, Prichard admitted that the
shuddering that he, Crews, and Sorrells felt in October 2006 did not recur when the pilot applied
back pressure on the yoke. See Prichard Dep. 65-68.
Third, plaintiff s evidence fails to demonstrate that the defects that Hum identified in October
2007 were sufficiently severe to cause the plane to not be in an "airworthy condition" at the time of
sale. The estimate to complete the inspection that Hum provided Prichard in October 2007 is
consistent with the routine maintenance costs that Adkins and his expert described for similar
aircraft. Adkins Dep. 76-78; 1st Hyde MI.
9. Although the estimate appears to have been
provided in anticipation ofadditional repairs, plaintiff has not proven the existence ofany additional
defects. Moreover, nothing suggests that the defects discovered, or those that were likely to be
discovered, were abnonnal for a forty-five year old plane that was months overdue for its annual
inspection. See JDI Holdings, 732 F. Supp. 2d at 1226-27; 1st Hyde MI. ~ 12.
Finally, even if the defects Hum allegedly discovered in October 2007 affected whether the
plane was in an "airworthy condition" in 2007, the record lacks probative evidence from which a
rational jury could fmd that the plane was not in an "airworthy condition" at the time ofthe October
2006 sale. Plaintiff provides only Bland's and Hum's conclusory statements that the defects
discovered were not of the type that would have arisen during the plane's period of idleness from
August 2007 to date. See Hum MI. ~ 18-19; Bland Aff. ~ 7; cf. Matthiesen v. Banc One Mortg.
Corp., 173 F.3d 1242, 1247 (lOth Cir. 1999) ("[T]he testimony of an expert can be rejected on
summary judgment ifit is conclusory and thus fails to raise a genuine issue ofmaterial fact."); M&M
Med. Supplies & Serv.. Inc. v. Pleasant Valley Hosp .. Inc., 981 F.2d 160, 165 (4th Cir. 1992) (en
banc) ("An expert's affidavit that is wholly conclusory and devoid of reasoning does not comply
with Fed. R. Civ. P. 56(e)."); Evers v. Gen. Motors Corp., 770 F.2d 984,986 (11th Cir. 1985) ("[A]
party may not avoid summary judgment solely on the basis of an expert's opinion that fails to
provide specific facts from the record to support its conclusory allegations."); Adkins Dep. 79-81;
1st Hyde Aff. ~ 14. However, Hum's affidavit contradicts his deposition testimony that the plane
"was in a safe operational condition" during the August 2007 flight from Little Rock to Dallas. See
P1.'s Hum Dep. 142-43. Thus, the court disregards it. See Rohrbough, 916 F.2d at 975-76;
Barwick, 736 F .2d at 960. Moreover, Bland reached his conclusion almost five years after the sale,
after the plane had been partially disassembled, and after the plane had been idle for five years.
Bland Aff. ~ 4; Airworthiness Determination. Despite Bland's credentials, his conclusion relies on
conjecture, and fails to create a genuine issue of material fact. See Anderson, 477 U.S. at 249-52;
Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) ("The nonmoving party ... cannot create a
genuine issue of material fact through mere speculation or the building of one inference upon
In sum, after considering the evidence in the light most favorable to Prichard Enterprises,
there is not a genuine issue of material fact as to whether the plane was in "airworthy condition"
when Adkins sold it to Prichard Enterprises in October 2006. It was. Thus, Adkins is entitled to
summary judgment as to Prichard Enterprises's breach ofwarranty claim in counts one and two.
Next, the court addresses plaintiff's rescission claim under North Carolina's version of
Article 2 ofthe Uniform Commercial Code ("UCC"). See Ace, Inc. v. Maynard, 108 N.C. App. 241,
246,423 S.E.2d 504, 507 (1992) ("The sale of [an] airplane constitutes the sale ofgoods and is thus
governed by Article 2 of the Uniform Commercial Code (VCC)."). Under the UCC, the common
law doctrine of rescission is equivalent to "revocation of acceptance." Riley v. Ken Wilson Ford.
Inc., 109 N.C. App. 163, 173,426 S.E.2d 717, 724 (1993)("Rescission ofa contract is not addressed
in the Uniform Commercial Code, but it has been treated as revocation of acceptance in the context
of a sale of goods. ").
The UCC states that a "buyer may revoke his acceptance of a ... commercial unit whose
nonconformity substantially impairs its value to him if he has accepted it ... without discovery of
such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery
before acceptance or by the seller's assurances." N.C. Gen. Stat. § 25-2-608(1). However, the UCC
conditions the buyer's right of revocation on his exercising it "within a reasonable time after the
buyer discovers or should have discovered the ground for it and before any substantial change in
condition of the goods which is not caused by their own defects." Id. § 25-2-608(2).
Adkins argues that Prichard Enterprises did not demand revocation within a reasonable time
after its October 2007 discovery of the alleged defects. See Def.'s Mem. Supp. Mot. Summ. J.
18-21. Adkins notes that Prichard Enterprises waited approximately one year after discovering the
alleged defects before demanding revocation and argues that this one-year delay was unreasonable.
Id.; see Oct. 24, 2008 letter from Prichard to Adkins.
"[W]here the facts are undisputed and only one inference can be drawn therefrom, the
question ofreasonableness is a question oflaw properly left to the court." Bus. Commc'ns. Inc. v.
K.I Networks. Inc., 157 N.C. App. 710, 714, 580 S.E.2d 77, 79 (2003). "In determining whether
revocation was made within a reasonable time . . . it is proper to consider all the surrounding
circumstances, including the nature of the defect, the complexity of the goods involved, the
sophistication of the buyer, and the difficulty of [the defect's] discovery." Harrington Mfg. Co.,
Inc. v. Logan Tontz Co., 40 N.C. App. 496, 503, 253 S.E.2d 282, 286 (1979). In Business
Communications, the North Carolina Court of Appeals held that defendant's six-month delay in
informing plaintiff of defendant's revocation after discovering the good's defective nature was
unreasonable as a matter oflaw. Bus. Commc'ns, 157 N.C. App. at 714-15,580 S.E.2d at 79-80.
The North Carolina Court of Appeals reached similar conclusions concerning five-month and
seventeen-month delays. See m-Indus. Credit Co. v. Milo Concrete Co., Inc., 31 N.C. App. 450,
461,229 S.E.2d 814, 822 (1976) (holding that a buyer of a concrete pump could not revoke his
acceptance of the pump after retaining it for five months because the buyer "had ample time to
effectively reject the goods, particularly since the pump's defects were observed at the beginning of
its operation''); Cooper v. Mason, 14 N.C. App. 472, 474, 188 S.E.2d 653,655 (1972) ("It would
seem that seventeen months and 30,000 miles [of post-defect-discovery use of an automobile]
exceed a reasonable time for revocation of the purchase of the automobile under the most liberal
interpretations of [reasonable].") (emphasis removed).
Here, Plaintiff s actions and statements in October 2007 indicate that it considered the
alleged defects to be of a severe enough character to warrant revocation ofacceptance, yet plaintiff
failed to act for approximately one year. Even viewing the record in the light most favorable to
plaintiff, plaintiff s one-year delay in notifying Adkins of the alleged defects and demanding
revocation of the purchase was not reasonable. See Bus. Commc'ns, 157 N.C. App. at 714,580
S.E.2d at 79; ITT-Indus. Credit, 31 N.C. App. at 461, 229 S.E.2d at 822; Cooper, 14 N.C. App. at
474, 188 S.E.2d at 655.
In opposition to this conclusion, Prichard Enterprises claims that it was unaware of its legal
rights, and laments that it initially hired an inexperienced attorney to review the matter. These
excuses provide no comfort to plaintiff. Likewise, Prichard's need to manage his deceased mother's
estate does not absolve Prichard Enterprises of its duty to act reasonably. Accordingly, Prichard
Enterprises has failed to demonstrate that a genuine issue of material fact exists regarding its claim
for contract rescission and the court grants summary judgment to Adkins on that claim.
Finally, Prichard Enterprises has presented insufficient evidence to support its fraud or
UDTPA claims. Merely asserting a fraud or UDTPA claim cannot transfonn this breach ofwarranty
case into a fraud or UDTPA case.
Broussard v. Meineke Discount Muffler Shops, Inc.,
155 F.3d 331,347 (4th Cir. 1998); PCS Phosphate Co.. Inc. v. Norfolk S. Corp., 520 F. Supp. 2d
705,717-18 (E.D.N.C. 2007), aff'd, 559 F.3d 212 (4th Cir. 2009). Thus, the court grants summary
judgment to Adkins on these claims.
In sum, the court GRANTS defendant's motion for summary judgment [D.E. 34]. The Clerk
of Court shall close the case.
SO ORDERED. This
Ji day ofMarch 2012.
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