NO. COA14-233
NORTH CAROLINA COURT OF APPEALS
Filed: 6 January 2015
JOANN HESTER, Individually and as Personal Representative of the Estate of Leland Hester, Plaintiff-Appellant,
v. Bladen County No. 12 CVS 402 HUBERT VESTER FORD, INC., and LARRY McPHAIL, Defendants-Appellants.
Appeal by Plaintiff from order and judgment filed 11
September 2013, nunc pro tunc 26 August 2013, by Judge Douglas
B. Sasser in Superior Court, Bladen County. Heard in the Court
of Appeals 26 August 2014.
Christopher W. Livingston for Plaintiff-Appellant.
Womble & Campbell, P.A., by H. Goldston Womble, Jr.; and C. Michael Thompson, for Defendants-Appellees.
McGEE, Chief Judge.
Plaintiff filed claims against Hubert Vester Ford, Inc.
(“Vester Ford”) and Larry McPhail (“Mr. McPhail”)
(“Defendants”), for unfair and deceptive trade practices, fraud,
and common law extortion arising out of a vehicle purchase.
Plaintiff alleged Defendants contracted to sell Plaintiff a Jeep -2-
vehicle under certain terms but then compelled Plaintiff to sign
a second, less-favorable contract under the threat of
repossession. We find that most, but not all, of Plaintiff’s
claims were properly resolved through summary judgment.
I. Standard of Review
This Court reviews a trial court's order allowing summary
judgment de novo. Builders Mut. Ins. Co. v. North Main Const.,
Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). This review
is limited to determining whether “there is no genuine issue as
to any material fact” and whether the moving parties were
entitled to judgment in their favor as a matter of law. See
Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 43
(1972). It generally is sufficient for a nonmoving party to
survive summary judgment where the party can “produce a forecast
of evidence demonstrating that [the party] will be able to make
out at least a prima facie case at trial.” Creech v. Melnik,
347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citation and
internal quotations omitted). However,
in passing upon a motion for summary judgment, all affidavits, depositions, answers to interrogatories and other material filed in support or opposition to the motion must be viewed in the light most favorable to the party opposing the motion, and such party is entitled to the benefit of all inferences in [the party’s] favor which may be reasonably drawn from such material. -3-
Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289,
291 (1974). “The slightest doubt as to the facts entitles the
non-moving party to a trial.” Ballenger v. Crowell, 38 N.C.
App. 50, 53, 247 S.E.2d 287, 290 (1978).
II. Background
Because this is an appeal by Plaintiff from a grant of
summary judgment against her, we take the facts in the light
most favorable for Plaintiff. Plaintiff’s son, Ryan Hester
(“Ryan”), became interested in purchasing a 2007 Jeep Wrangler
(“the Jeep”) from Vester Ford sometime near Labor Day in 2009.
Ryan had a preliminary phone conversation with Melvin Scott
(“Mr. Scott”), a salesperson for Vester Ford. During that phone
call, Ryan obtained some type of “pre-approval,” but Mr. Scott
also notified Ryan that he would need a co-signer in order to
purchase the Jeep. Plaintiff, Ryan’s mother, agreed to be that
co-signer.
Plaintiff and Ryan traveled to Vester Ford the following
evening and test-drove the Jeep. While at Vester Ford, they
interacted with Mr. Scott and Mr. McPhail, and both stayed late
to accommodate Plaintiff’s and Ryan’s schedules. Plaintiff and
Ryan presented Defendants with bank and pay documents that
showed their respective incomes, which were modest. However, -4-
Defendants allegedly agreed to sell the Jeep to Plaintiff and
Ryan for a base price of about $22,000.00, with a trade-in
credit of $1,000.00 for Plaintiff’s Mercury Grand Marquis (“the
Grand Marquis”), and monthly payments in the $300.00 to $350.00
range for between sixty (60) and seventy-two (72) months.
Plaintiff and Ryan testified during their depositions that: (1)
all parties purportedly signed a purchase contract containing
these terms (the “original” contract); (2) the Grand Marquis’
license plate was transferred to the Jeep at signing; and (3)
Plaintiff and Ryan left with the Jeep that evening.
Plaintiff has been unable to produce a copy of the
“original” contract, and Defendants deny its existence.
Defendants contend they sold the Jeep to Plaintiff on 30
September 2009. However, Plaintiff presented an affidavit from
a neighborhood Labor Day party attendee, averring that he saw
Ryan in possession of the Jeep several weeks before 30 September
2009. Vester Ford also submitted a credit application on
Plaintiff’s behalf to Marine Federal Credit Union to finance the
purchase of the Jeep (“Marine Credit application”); the Marine
Credit application was dated 24 September 2009, six days before
Defendants state they sold Plaintiff the Jeep. Notably, this
credit application greatly exaggerated Plaintiff’s finances.
Finally, the Jeep was transferred to Plaintiff’s insurance on 28 -5-
September 2009, two days before Defendants state they sold
Plaintiff the Jeep.1
Plaintiff alleged that Mr. Scott contacted her in early
October 2009 and stated that: (1) the financing for Plaintiff’s
recent Jeep purchase had fallen through; (2) Plaintiff needed to
sign a new purchase contract for the Jeep, with new financing;
and (3) if Plaintiff did not sign the new contract, the Jeep
would be repossessed. Soon thereafter, Mr. Scott arrived at
Plaintiff’s residence and presented Plaintiff and her husband
with the new contract, which was backdated to 30 September 2009
(the “30 September” contract). Mr. Scott allegedly informed
Plaintiff and her husband that the terms in the 30 September
contract were the same as those in the “original” contract.
Plaintiff alleged that Mr. Scott then physically covered the top
half of the 30 September contract when he presented it to
Plaintiff and her husband, obscuring their view of the terms
therein. Neither Plaintiff nor her husband asked to read the
terms of the 30 September contract before signing it.2
1 Some of Vester Ford’s documentation indicates that Vester Ford did not actually take title to the Jeep until 30 September 2009. 2 Plaintiff’s co-plaintiff husband has since passed away, and Plaintiff is the personal representative of her husband’s estate in this matter. Plaintiff’s husband’s involvement in -6-
The 30 September contract required that Plaintiff make
monthly payments of $614.83, with an interest rate of 14.69
percent, for sixty (60) months — almost doubling the monthly
payments that Plaintiff contends were required under the
“original” contract. The terms in the 30 September contract
were based on a line of credit that Vester Ford obtained on
Plaintiff’s behalf from Ford Motor Credit Company after
financing for the “original” contract reportedly fell through.
The credit application submitted to Ford Motor Credit Company by
Vester Ford inflated Plaintiff’s financial data even more than
the Marine Credit application.
Ryan remained in possession of the Jeep approximately nine
months after Plaintiff signed the 30 September contract,
although he only made a couple of monthly payments thereon. The
Jeep was repossessed in July 2010, was sold, and a deficiency
judgment was entered against Plaintiff for the remainder of the
amount owed under the 30 September contract. However, that
deficiency judgment was set aside by a consent order, and
Plaintiff currently owes nothing on the Jeep.
this case primarily arises out of his signing the 30 September contract. -7-
Plaintiff filed a complaint against Defendants for unfair
and deceptive trade practices (“UDTP”), fraud, and common law
extortion. Plaintiff and Defendants then moved for summary
judgment against each other. By order filed 11 September 2013,
the trial court granted Defendants’ motion for summary judgment
but denied Plaintiff’s motion. Plaintiff appeals.
III. Plaintiff’s Motion for Summary Judgment Denied
As a preliminary matter, Plaintiff appeals both the trial
court’s grant of summary judgment against her and the trial
court’s denial of her motion for summary judgment against
Defendants. However, “the denial of a motion for summary
judgment is not reviewable during appeal from a final judgment
rendered in a trial on the merits.” Harris v. Walden, 314 N.C.
284, 286, 333 S.E.2d 254, 256 (1985). The trial court’s grant
of Defendants’ motion for summary judgment was a final judgment
on the merits. See Id. Therefore, on appeal, we will not
review Plaintiff’s denied motion for summary judgment.
IV. Defendants’ Motion for Summary Judgment Granted
A. Claims Arising Under the 30 September Contract
1. Unfair and Deceptive Trade Practices
Plaintiff presents this Court with a multitude of arguments
on appeal, and many of them emanate from a core UDTP claim
related to the formation of the 30 September contract. “In -8-
order to establish a prima facie claim for unfair trade
practices, a plaintiff must show: (1) [the] defendant committed
an unfair or deceptive act or practice, (2) the action in
question was in or affecting commerce, and (3) the act
proximately caused injury to the plaintiff.” Dalton v. Camp,
353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001). The second
requirement, that the act or practice be “in or affecting
commerce,” is not at issue in the present case. Thus, in order
to survive summary judgment, Plaintiff must establish a material
question of fact as to whether Defendants committed unfair or
deceptive acts that proximately injured Plaintiff.
Plaintiff contends that she and Defendants entered into the
“original” contract for the Jeep sometime before Labor Day in
2009. Plaintiff and Ryan testified during their depositions
that they signed this “original” contract with Defendants.
Plaintiff also presented the following circumstantial evidence
in support of the existence of the “original” contract: (1) an
affidavit from a neighborhood Labor Day party attendee, averring
that he saw Ryan in possession of the Jeep early in September
2009; (2) a credit application that Vester Ford submitted on
Plaintiff’s behalf on 24 September 2009 to finance the purchase
of the Jeep, six days before Defendants state they sold
Plaintiff the Jeep; and (3) an automobile insurance policy -9-
statement showing that the Jeep was transferred to Plaintiff’s
auto insurance on 28 September 2009, two days before Defendants
state they sold Plaintiff the Jeep. Plaintiff correctly points
out that transferring auto insurance to a consumer’s policy is
only supposed to occur once financing is finalized and the
consumer has taken title to the vehicle. See N.C. Gen. Stat
§ 20-75.1 (2013).
In light of this evidence, the fact that Defendants
adamantly deny the existence of the “original” contract creates
a material issue of fact in the case before this Court. See
Durham Life Broadcasting, Inc. v. Internat'l Carpet Outlet, 63
N.C. App. 787, 788, 306 S.E.2d 459 (1983) (“There is clearly a
dispute in the case sub judice where the defendant denies the
existence of a contract.”). However, Defendants argue that
summary judgment for Defendants was proper nonetheless. They
highlight the fact that Plaintiff has not produced a copy of the
“original” contract and that Plaintiff’s sworn statements as to
the terms of this contract are less than precise. However, this
is not necessarily dispositive of the circumstantial evidence
that Plaintiff presented to the trial court as to the possible
existence of the “original” contract.
Taking the evidence in a light most favorable to Plaintiff,
the non-moving party in Defendants’ motion for summary judgment, -10-
and granting Plaintiff all reasonable inferences therefrom, we
must assume that the “original” contract existed. Therefore, we
assume that Plaintiff had a property interest in the Jeep before
she was presented with the 30 September contract. As such, Mr.
Scott’s threat to repossess the Jeep if Plaintiff did not sign
the 30 September contract presents a material question as to
whether Vester Ford, through its agent, Mr. Scott, committed an
unfair or deceptive act in or affecting commerce. If so, the
resulting harm would be that Plaintiff was subjected to a
subsequent purchase contract, the 30 September contract, on
disadvantageous terms. Finally, contrary to Defendants’
contention that Plaintiff has suffered no actual damages because
her liability to Ford Motor Credit Company on the loan for the
Jeep was extinguished, Plaintiff has forecast some actual
damages resulting from Vester Ford’s alleged misconduct – for
instance, losing the value of her Grand Marquis after the Jeep
was repossessed.3 Therefore, Plaintiff has sufficiently
established the necessary elements to support an UDTP claim.
3 Because Plaintiff appeals from the trial court’s grant of summary judgment against her, our review of Plaintiff’s damages need not probe beyond finding the existence of actual damages. See Creech, 347 N.C. at 526, 495 S.E.2d at 911 (“[It is sufficient for a nonmoving party to survive summary judgment where the party can] produce a forecast of evidence -11-
As Defendants correctly point out, notwithstanding the
possible existence of the “original” contract, Plaintiff’s
failure to read the 30 September contract, and without even
requesting an opportunity to do so, could preclude her from
recovery under the new contract. “One who signs a written
contract without reading it, when [she] can do so
understandingly[,] is bound thereby unless the failure to read
is justified by some special circumstance.” Davis v. Davis, 256
N.C. 468, 472, 124 S.E.2d 130, 133 (1962) (citations omitted).
At its core, the question is whether Plaintiff acted with
“reasonable prudence” by relying on Mr. Scott’s assurances that
the terms of the 30 September contract were the same as those in
the “original” contract, except for the source of financing.
See id. “What a reasonably prudent person will or will not do
under various circumstances . . . is nearly always a question of
fact, not of law. Only when the facts are such that reasonable
minds can reach but one conclusion does the question become one
of law.” Hulcher Brothers & Co. v. N.C. Dep't of
Transportation, 76 N.C. App. 342, 343, 332 S.E.2d 744, 745
(1985). Moreover,
demonstrating that [the party] will be able to make out at least a prima facie case at trial.”). -12-
[i]t is only in exceptional cases that the issue of reasonable reliance may be decided by the summary judgment procedure. . . . [An aggrieved party who failed to read a contract] will not be charged with knowledge of the contents of [the contract she] signed if it were obtained by trick or artifice.
Northwestern Bank v. Roseman, 81 N.C. App. 228, 234, 344 S.E.2d
120, 125 (1986), aff'd, 319 N.C. 394, 354 S.E.2d 238 (1987)
(emphasis added) (citations omitted).
Although Plaintiff’s failure to read the 30 September
contract likely is harmful to her claim, Plaintiff contends that
her signature on the 30 September contract was made under duress
and obtained through fraud. Given that we must presume
Plaintiff was operating under the notion that the “original”
contract established a set, binding, and existent agreement
between her and Vester Ford, there remains the question of
whether Plaintiff reasonably relied on Mr. Scott’s assertions
that the terms of the 30 September contract were identical to
those in the “original” contract, except for the source of
financing. Alternatively, when faced with Mr. Scott’s threat to
repossess the Jeep, there is a question as to whether Plaintiff
would have signed the 30 September contract under duress, even
if she had read it and objected to the new terms. These are
questions of fact for a jury to determine. -13-
Defendants further assert that Plaintiff is estopped from
recovery because she accepted the benefits of the 30 September
contract by using the Jeep for a number of months after signing
the 30 September contract. To support this contention,
Defendants note that “the acceptance of benefits [under a
contract] precludes a subsequent inconsistent position [by an
aggrieved party], even where acceptance is involuntary, arises
by necessity, or where . . . a party voluntarily accepts a
benefit to avoid the risk of harm". Shell Island Homeowners
Ass'n v. Tomlinson, 134 N.C. App. 217, 226, 517 S.E.2d 406, 413
(1999) (citing Carolina Medicorp, Inc. v. Board of Trustees, 118
N.C. App. 485, 493–93, 456 S.E.2d 116, 120 (1995)) (quotes
omitted).
This authority, however, is distinguishable from the
present case. Carolina Medicorp, on which Defendants’ authority
relies, involved a contractual dispute between some North
Carolina hospitals and the North Carolina state employee health
insurance plan. Carolina Medicorp, 118 N.C. App. at 487–88, 456
S.E.2d at 117–18. The plaintiff hospitals had contracted to
accept lower reimbursement rates in exchange for being
designated “preferred providers” by the state health plan; state
employees, in turn, would pay less out-of-pocket for services
received at “preferred providers,” making the hospitals -14-
financially attractive to patients. Id. The hospitals
subsequently challenged the lower reimbursement rates under
their contracts, contending that the hospitals entered into the
contracts involuntarily. Id. However, the hospitals were
estopped from litigating the issue because they had already
accepted the benefits of being “preferred providers” under the
plan. Id. at 492–94, 456 S.E.2d at 120–21 (“[V]oluntariness is
not an element under the doctrine of quasi estoppel.
Furthermore, even if it were an element of quasi estoppel,
petitioners were not compelled to sign the contracts. They
chose to avoid the risk of losing patients to other preferred
provider hospitals by signing the contracts.”).
In the present case, Plaintiff is not challenging the
enforcement of the 30 September contract with Vester Ford;
indeed, a default judgment was entered against Plaintiff after
she stopped making monthly payments to Ford Motor Credit
Company, and that default judgment was later set aside. There
is nothing left to enforce under the 30 September contract.
Instead, Plaintiff contends that Defendants engaged in unfair
and deceptive trade practices during the formation of the 30
September contract, which presents a different legal question.
“[T]he essential purpose of quasi-estoppel . . . is to
prevent a party from benefitting by taking two clearly -15-
inconsistent positions” under a contract. B & F Slosman v.
Sonopress, Inc., 148 N.C. App. 81, 88, 557 S.E.2d 176, 181
(2001). North Carolina’s UDTP laws, however, are designed to
provide consumers with a remedy for injuries done to them by
dishonest and unscrupulous business practices. See N.C. Gen.
Stat. § 75-16 (2013). Even where an aggrieved party is estopped
from taking a subsequent inconsistent position under a contract
due to quasi-estoppel, the party on the other side of the
agreement is not categorically absolved of its unlawful acts
during the formation of that same contract. Therefore, quasi-
estoppel does not apply in the present case.
Plaintiff has established a prima facie UDTP claim against
Vester Ford regarding the formation of the 30 September
contract. The fact that Plaintiff has not produced the
“original” contract and did not read the 30 September contract
is not necessarily dispositive. Moreover, because Plaintiff’s
UDTP claim does not challenge the enforcement of the 30
September contract, quasi-estoppel does not apply. As such, the
trial court erred by granting summary judgment as to Vester Ford
on this claim.
2. Fraud
Plaintiff’s complaint also raised an alternative, but
related, fraud claim against Defendants based on the same facts -16-
that gave rise to Plaintiff’s UDTP claim above. The elements of
fraud are well-established: “(1) [f]alse representation or
concealment of a material fact, (2) reasonably calculated to
deceive, (3) made with the intent to deceive, (4) which does in
fact deceive, (5) resulting in damage to the injured party.”
Helms v. Holland, 124 N.C. App. 629, 634, 478 S.E.2d 513, 516
(1996) (citation and quotes omitted). Plaintiff presented
evidence that Vester Ford intentionally and falsely represented
to Plaintiff that Vester Ford could repossess the Jeep in order
to induce her to sign the 30 September contract. Therefore, for
reasons similar to those discussed in the previous section,
Plaintiff’s alternative claim for fraud as to Vester Ford should
survive summary judgment.
3. Common Law Extortion
Plaintiff’s complaint raised a third alternative tort claim
for common law extortion based on the same facts that gave rise
to her UDTP and fraud claims. However, no civil cause of action
for extortion currently exists under North Carolina law. See
Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C.
App. 581, 585, 664 S.E.2d 8, 12 (2008). Nonetheless, Plaintiff
proposes that “[e]ven if extortion is not yet a recognized tort
[under North Carolina law], it must become one.” -17-
To date, this Court has not been presented with a direct,
supported, or convincing argument that extortion should be a
cognizable tort under North Carolina law. See, e.g., Brawley v.
Elizabeth Townes Homeowners Ass'n, Inc., __ N.C. App. __, __
S.E.2d __, COA14–135, slip op. at 9–10 (Aug. 19, 2014)
(unpublished) (affirming the dismissal of, inter alia, a pro se
extortion claim on collateral estoppel grounds); Lawson v.
White, 197 N.C. App. 758, 680 S.E.2d 904, COA07-296-2, slip op.
at 5 (July 7, 2009) (unpublished) (“Plaintiff fails to cite any
cases on point and fails to set forth what the elements of
[extortion] might be.”); Free Spirit Aviation, 191 N.C. App. at
585, 585 n.3, 664 S.E.2d at 12, 12 n.3 (2008) (“[Plaintiffs'
complaint . . . expressly states a claim for extortion. . . .
[However,] the issue of whether a civil claim for extortion
exists in North Carolina was not argued [on appeal, so] we make
no ruling either way on this issue.”). Although “this Court
will not shirk its duty to fully consider new causes of actions
when they are properly presented,” Woodell v. Pinehurst Surgical
Clinic, P.A., 78 N.C. App. 230, 233, 336 S.E.2d 716, 718 (1985),
aff'd, 316 N.C. 550, 342 S.E.2d 523 (1986), overruled on other
grounds by Johnson v. Ruark Obstetrics, 327 N.C. 283, 300–01,
395 S.E.2d 85, 95 (1990), so too must we proceed with the utmost
caution and deliberateness in the face of such a request. -18-
Plaintiff, in support of her argument that extortion should
be a cognizable tort under North Carolina law, presents this
Court with non-controlling authority from New Jersey, People
Exp. Airlines, Inc. v. Consol. Rail Corp., 495 A.2d 107, 111
(N.J. 1985), which discusses the adaptability of the common law
in the face of significant, long-term shifts in societal norms.
Plaintiff also cites the Open Courts Clause of the North
Carolina Constitution, which states that “[a]ll courts shall be
open; every person for an injury done him in his lands, goods,
person, or reputation shall have remedy by due course of law;
and right and justice shall be administered without favor,
denial, or delay.” N.C. Const. Art. 1 § 18. In light of this
authority, Plaintiff contends that her remedy for Defendants’
inducing her to sign the 30 September contract, “falls between
the two stools of fraud (if deception is absent) and conversion
(if consent is present)[.]” Between these two “stools,”
Plaintiff argues, necessarily sits her claim for extortion. We
disagree.
First, we note that Plaintiff has raised a claim for fraud,
alleging deception by Defendants, which allegedly was aimed at
inducing Plaintiff to sign the 30 September contract. Second,
the space between the two “stools” of fraud and conversion has
been fully, and adequately, occupied by Plaintiff’s UDTP claim. -19-
Plaintiff argues in her brief that she would need to prove two
things for an extortion claim against Defendants: (1) that
Defendants unlawfully threatened Plaintiff with repossession of
the Jeep (2) in order to obtain value from Plaintiff by binding
her to the allegedly disadvantageous terms of the 30 September
contract. These essentially are the same facts that Plaintiff
needs to prove in her UDTP claim and to obtain appropriate
relief from the alleged harm done to her by Defendants. As
such, Plaintiff is not being denied a “remedy by due course of
law” presently, and we decline to use this case to recognize a
cognizable tort of common law extortion under North Carolina
law.
B. Claims Arising Under the “Enhanced” Credit Applications
On appeal, Plaintiff attempts to argue that Defendants
committed unfair and deceptive trade practices by submitting
credit applications on her behalf for the purchase of the Jeep
that greatly “enhanced” Plaintiff’s financial data. However,
Plaintiff did not plead this claim in her complaint. Therefore,
we will not consider it. See N.C.R. App. P. 10(a)(1) (“In order
to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or
motion, stating the specific grounds for the ruling the party -20-
desired the court to make if the specific grounds were not
apparent from the context.”).
Plaintiff also alleged fraud against Defendants based on
Defendants’ purportedly “enhancing” Plaintiff’s financial
information when submitting credit applications on her behalf.
Again, the elements of fraud are: “(1) [f]alse representation
or concealment of a material fact, (2) reasonably calculated to
deceive, (3) made with the intent to deceive, (4) which does in
Helms v. Holland, 124 N.C. App. 629, 634, 478 S.E.2d 513, 516
(1996) (citation and quotes omitted). Plaintiff does not
contend that Defendants made false representations to Plaintiff
regarding her financial information. Instead, Plaintiff’s fraud
claim here rests on the contention that Ford Motor Credit
Company was deceived by Defendants’ “enhancing” Plaintiff’s
financial data when submitting credit applications on her behalf
and that Plaintiff was subsequently injured thereby. Plaintiff
asserts that “[e]lements (2), (3), and (4) [of fraud] do not
require that the deceived person be the same person as the
injured party.” However, Plaintiff provides this Court with no
authority to support this argument, and we do not agree. -21-
Notably, Plaintiff did not file a claim of constructive
fraud against Defendants. A claim for constructive fraud would
require only that Plaintiff show that she and Defendants were in
a “relation of trust and confidence . . . [which] led up to and
surrounded the consummation of the transaction in which
[Defendants are] alleged to have taken advantage of [their]
position of trust to the hurt of [Plaintiff].” Rhodes v. Jones,
232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950). “[C]harging
actual fraud is ‘more exacting’ than charging constructive
fraud.” Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674, 677
(1981).
We need not, and do not, decide whether Defendants, by
allegedly “enhancing” Plaintiff’s financial data while obtaining
credit on her behalf, may have committed constructive fraud
against Plaintiff; Plaintiff did not plead such a claim in her
complaint. See N.C.R. App. P. 10(a)(1). Thus, restricting our
analysis to the “exacting” elements of “actual” fraud, Plaintiff
has not sufficiently pleaded facts that Defendants made
deceptive statements to Plaintiff regarding her financial data
and in the course of obtaining a line of credit on her behalf.
Therefore, Plaintiff has not established a prima facie fraud
claim against Defendants here, and the trial court did not err
by granting summary judgment on this claim. -22-
C. Summary Judgment as to Mr. McPhail
Finally, Plaintiff assigns error to the trial court’s
granting summary judgment as to her claims against Mr. McPhail.
1. Mr. McPhail’s Liability Regarding the 30 September
Contract
On appeal, Plaintiff argues that Mr. McPhail should be held
personally liable in the present case because Mr. McPhail knew
of Plaintiff’s modest finances, but he authorized the 30
September contract nonetheless, and this resulted in harm to
Plaintiff. “As an essential element of a cause of action under
G.S. 75-16 [for UDTP], [P]laintiff must prove . . . that
[P]laintiff has suffered actual injury as a proximate result” of
Defendants’ actions. Bailey v. LeBeau, 79 N.C. App. 345, 352,
339 S.E.2d 460, 464 (1986), aff'd as modified, 318 N.C. 411, 348
S.E.2d 524 (1986). The same is true for a claim of fraud. See
Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599–601, 534
S.E.2d 233, 236–37 (2000).
Although Mr. McPhail may have been aware of the modest
finances of Plaintiff and Ryan, the financing terms in the 30
September contract that Mr. McPhail approved were those given to
Vester Ford by the Ford Motor Credit Company. Plaintiff has not
alleged that Mr. McPhail was aware of, or in any way involved
with, the “enhancements” to Plaintiff’s financial data in the -23-
respective credit application that lead to the terms of the 30
September contract. As such, Mr. McPhail’s merely authorizing
the 30 September contract alone is not sufficient to maintain an
UDTP or fraud claim against him.
2. Mr. McPhail’s Liability Regarding the “Original” Contract
On appeal, Plaintiff also asserts certain additional facts
as to her interactions with Mr. McPhail. Specifically, she
argues that Mr. McPhail should be held personally liable in the
present case because he was the Vester Ford employee who
negotiated and agreed to the “original” contract; yet he still
authorized the 30 September contract. Notably, in Plaintiff’s
complaint, she asserted that
14. Mr. Scott or Mr. McPhail on behalf of Vester told Mrs. Hester and Ryan that their credit was approved, and agreed unconditionally to sell the Jeep to Ryan and Mrs. Hester for a principal amount of about $23,000, paid in installments of about $320 per month (but not more than $350/month) for 60 months, in return for a trade-in allowance of $1,000 on Mrs. Hester's 1993 Mercury Grand Marquis.
Although Plaintiff’s complaint named “Mr. Scott or Mr. McPhail”
as the one who negotiated and agreed to the “original” contract,
the depositions of Plaintiff and Ryan do not implicate Mr.
McPhail as such. Plaintiff and Ryan even testified that they
almost exclusively dealt with Mr. Scott during the purchase of -24-
the Jeep and that Mr. McPhail performed only ministerial
functions in relation thereto. In fact, the only evidence
presented to the trial court that Mr. McPhail was the Vester
Ford employee who negotiated and agreed to the “original”
contract came in the form of nearly identical affidavits, filed
by Plaintiff and Ryan, only four days before the summary
judgment hearing on 26 August 2013. On this point, it is clear:
The affidavits [presented by Plaintiff and Ryan] materially alter the deposition testimony in order to address gaps in the evidence necessary to survive summary judgment. . . . [I]f a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his [or her] own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.
See Marion Partners, LLC v. Weatherspoon & Voltz, LLP, 215 N.C.
App. 357, 362-63, 716 S.E.2d 29, 33 (2011) (citation and quotes
omitted). Therefore, the trial court properly was not persuaded
by this “evidence” in granting summary judgment as to Mr.
McPhail. Plaintiff has presented no other argument that Mr.
McPhail should be held personally liable in this case for his
involvement in the purported execution of the “original”
contract.
V. Conclusion -25-
The trial court properly granted summary judgment to Mr.
McPhail on all of Plaintiff’s claims against him. The trial
court also properly granted summary judgment to Vester Ford with
respect to Plaintiff’s common law extortion claim, as well as
her UDTP and fraud claims arising out of Vester Ford allegedly
“enhancing” Plaintiff’s financial information on credit
applications. However, the trial court erred by granting
summary judgment to Vester Ford on Plaintiff’s UDTP and fraud
claims arising out of the formation of the 30 September
Reversed in part, and remanded; affirmed in part.
Judges BRYANT and STROUD concur.