Sign-N-Ryde v. Larry King Chevrolet

THIS
OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS
PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Sign-N-Ryde, LLC, Appellant,

v.

Preferred
Automotive Group, LLC, and Larry King Chevrolet, LLC, Defendants,

Of whom Larry
King Chevrolet, LLC, is Respondent.

Appeal From Spartanburg County

Roger L. Couch, Circuit Court Judge

Unpublished Opinion No. 2011-UP-554

Heard October 19, 2011 – Filed December 9,
2011   

AFFIRMED

William S.F. Freeman, of Greenville, for
Appellant.

Robert Lawrence Reibold, of Columbia, for
Respondent.

PER CURIAM: Sign-N-Ryde, LLC, appeals the dismissal
of its claims against Larry King Chevrolet, LLC, for false light invasion of
privacy, breach of implied warranty, and violation of the South Carolina
Regulation of Manufacturers, Distributors and Dealers Act.  We affirm.

1. As to the dismissal of the
cause of action for false light invasion of privacy, we agree with Sign-N-Ryde
that dismissal of this claim at the pleading stage solely on the ground that it
has not yet been recognized as an actionable tort is premature.  See Madison
v. Am. Home Prods. Corp., 358 S.C. 449, 451, 595 S.E.2d 493, 494 (2004)
("As a general rule, important questions of novel impression should not be
decided on a motion to dismiss.").  Nevertheless, we hold the dismissal
pursuant to Rule 12(b)(6), SCRCP, on the ground that the complaint did not
allege Larry King Chevrolet publicized facts specifically about Sign-N-Ryde was
proper.  See Restatement (Second) of Torts § 652E (1977) (stating
a party is subject to liability for false light invasion of privacy if that
party "gives publicity to a matter concerning another that places
the other before the public in a false light" (emphasis added)).  Here, Sign-N-Ryde
asserted only that Larry King Chevrolet "caused the cars to be identified
in the system as stolen"; there is no allegation in the complaint that Larry
King Chevrolet made any representations concerning Sign-N-Ryde.

2. We hold the trial court
correctly dismissed Sign-N-Ryde's claim for breach of warranty of merchantability
based on the absence of any allegation that the vehicles were mechanically
defective.  See S.C. Code Ann. § 36-2-314 (2003) (stating that for goods
to be merchantable, they must (1) pass without objection in the trade under the
contract description; (2) if fungible, be of fair average quality; (3) be fit
for the ordinary purposes for which they are used; (4) run, within variation
permitted by the sales agreement, of even kind, quality, and quantity within
each unit and among all units involved; (5) be adequately contained, packaged,
and labeled as the agreement may require; and (6) when applicable, conform to
other warranties from course of dealing or trade usage); S.C. Code Ann. §
36-2-315 (2003) (providing a warranty of fitness for a particular purpose is
implied if "the seller at the time of contracting has reason to
know any particular purpose for which the goods are required and that
the buyer is relying on the seller's skill or judgment to select or
furnish suitable goods" (emphasis added)).  The vehicles involved in this
action were purchased by Sign-N-Ryde from a third party that in turn had obtained
them from Larry King Chevrolet; therefore, no buyer-seller relationship existed
between Sign-N-Ryde and Larry King Chevrolet.  Moreover, Larry King Chevrolet
acknowledged in its brief that it did not seek dismissal of a separate cause of
action arising from Sign-N-Ryde's assertion that it "was an innocent
holder in due course who gave valuable consideration for title to the
vehicles."  Because we affirm the dismissal of the breach of warranty
claims based on Sign-N-Ryde's failure to allege any problems with the vehicles
other than title defects, we need not address Sign-N-Ryde's argument that the
trial court, in dismissing these claims, incorrectly relied on North Carolina
law to hold that privity was required.  See Futch v. McAllister
Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999)
(stating an appellate court need not address remaining issues when a decision
on a prior issue is dispositive).

3. Finally, we affirm the trial court's
dismissal of Sign-N-Ryde's claim under the South Carolina Manufacturers,
Distributors and Dealers Act, sections 56-15-10 to -140 of the South Carolina Code (2006 & Supp.
2010), on the ground that the
Act does not cover vehicle sales in North Carolina by a North Carolina car
dealer.  See Robertson v. Bumper Man Franchising Co., 364 S.C.
155, 157, 612 S.E.2d 451, 452-53 (2005) (citing the rule that "state
statutes have no extraterritorial effect" and further rejecting the
argument that a subsequent contract executed by the parties in South Carolina
did not cause the particular legislation at issue "to relate back and
apply to" the prior out-of-state transaction) (cited in Carolina
Trucks & Equip. v. Volvo Trucks of N. Am., 492 F.2d 484, 489 (4th Cir.
2007)).

AFFIRMED.

FEW,
C.J., and THOMAS and KONDUROS, JJ., concur.