Murray v. Deerfield Mobile Home Park

• Court: Court of Appeals of North Carolina
• Decided: May 18, 2021
• Docket: 20-382
• Status: Published

Opinion

IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-213

No. COA20-382

Filed 18 May 2021

Pender County, No. 19 CVS 0046

CHRISTOPHER D. MURRAY, Plaintiff,

v.

DEERFIELD MOBILE HOME PARK, LLC and DONALD W. LEWIS, Defendants.

Appeal by plaintiff and cross-appeal by defendants from order entered 13

November 2019 by Judge Andrew T. Heath in Pender County Superior Court. Heard

in the Court of Appeals 14 April 2021.

Hatch, Little & Bunn, L.L.P., by Justin R. Apple and David M. Yopp, for plaintiff-appellant/cross-appellee.

Reiss & Nutt, PLLC, by W. Cory Reiss, for defendant-appellees/cross- appellants.

TYSON, Judge.

¶1 Christopher D. Murray (“Plaintiff”) appeals from an order entered granting

Deerfield Mobile Home Park, LLC (“Deerfield”) and Donald W. Lewis’ (“Defendant”)

(collectively “Defendants”) motion for summary judgment under North Carolina Rule

of Civil Procedure 56. Defendants’ cross-appeal asserts the trial court erred in

granting Plaintiff’s motion for summary judgment on Defendants’ claims under North

Carolina Rule of Civil Procedure 56. We affirm the trial court’s orders. MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

Opinion of the Court

I. Background

A. Defendants’ Properties

¶2 Defendant and wife, Norean G. Lewis, purchased 7.09 acres of land in Pender

County as tenants by the entirety in April 1978. These 7.09 acres are located at 12165

U.S. Highway 117 South. The Lewises moved into a house on the 7.09-acre parcel in

1983. Defendant began leasing mobile homes located on the parcel in 1984.

¶3 In 2005, Defendant formed Deerfield Mobile Home Park, LLC as a single-

member North Carolina limited liability company to operate the mobile home park.

Deerfield’s operating agreement lists Donald Lewis as its sole member and manager.

The Lewises subdivided the original 7.09 acres into two separate parcels.

¶4 The subdivision of the 7.09 acres was completed pursuant to a plat map and

deed recorded in the Pender County Registry on 24 February 2006. The new parcels

were a 5.355-acre parcel containing the Deerfield Mobile Home Park and the 1.721

acres containing the Lewises’ home.

¶5 In 2006, the Lewises conveyed the 5.355 acres containing the Deerfield Mobile

Home Park to Deerfield. Defendant owns nineteen of the mobile homes in the

Deerfield Mobile Home Park in his individual capacity. The Lewises’ home on the

1.721-acre parcel remained owned as tenants by the entirety.

¶6 Defendant purchased a 4.93-acre parcel while married to Mrs. Lewis,

containing a single-family rental unit accessible only via a private dirt road at 4655 MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

Carolina Beach Road in New Hanover County. This property is leased for $650 per

month. Mrs. Lewis holds a marital interest in the property. Defendant could only

convey his interest subject to Mrs. Lewis’ marital interest, without joinder of her

signature. See N.C. Gen. Stat. § 39-9 (2019); Hughes v. Hughes, 102 N.C. 236, 102

N.C. 262, 9 S.E. 437, 9 S.E. 437 (1889).

¶7 Defendant was diagnosed with terminal lung cancer in June 2018. Around

August 2018 Defendant approached Plaintiff at a restaurant, disclosed his cancer

diagnosis, and stated his desire to sell the 5.355-acre Deerfield parcel, the 1.721-acre

parcel containing the personal residence, and the 4.93-acre parcel containing the

single-family rental unit at 4655 Carolina Beach Road.

B. Plaintiff’s involvement

¶8 Plaintiff is in the business of buying and developing real property. He is not a

licensed real estate broker. Defendant desired to retain a life estate in the 1.721-acre

parcel containing the personal residence along with a transition period for Mrs. Lewis

to continue to live there after his death. Defendant told Plaintiff he wanted a

combined sum of $1,500,000 for the three properties.

¶9 Plaintiff proposed a sale of the three properties to Robert Huckabee. Plaintiff

had arranged previous real estate transactions with Huckabee, and he knew

Huckabee had owned at least one other mobile home park. Plaintiff “was going to

represent [Defendant’s] interests” negotiating with Huckabee. Plaintiff never MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

represented himself to be a real estate broker. Defendant acknowledges he had no

special relationship with Plaintiff. Plaintiff was to receive a $10,000 consulting fee

for negotiating the deal with Huckabee.

¶ 10 Plaintiff encouraged Defendant to obtain formal appraisals of the three

properties prior to selling, but Defendant declined to procure appraisals because he

“knew what [he] paid for it, and [he] kn[ew] what [he] want[ed] to sell it for.”

Defendant believed based upon Plaintiff’s “judgment and experience” in selling real

estate the “market . . . would bring his asking price.”

¶ 11 Defendant described Plaintiff’s role as follows:

I trusted [Plaintiff] to be looking out for my best interests, as he had said he was doing, and I trusted that he was using his greater knowledge about real estate to make sure I got true market value. [Plaintiff] said he was my consultant on selling the properties to [Huckabee] for the best price I could get.

¶ 12 Huckabee informed Plaintiff he was interested in purchasing the three

properties. The men conducted a site visit of Deerfield Mobile Home Park. Plaintiff

informed Defendant of Huckabee’s interest in the three properties. Plaintiff

negotiated terms of the sale during subsequent visits with Defendant. Defendant

agreed to a lump sum price of $1,060,000 to sell all three properties.

¶ 13 Defendant prepared a one-page document memorializing their agreement to

the transaction entitled “Agreement to Sell Properties.” On 6 October 2018, MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

Defendant and Plaintiff both signed the one-page document. The “Agreement to Sell

Properties” included the 5.355-acre parcel containing the Deerfield Mobile Home

Park, the 1.721-acre parcel containing the Lewises’ personal residence, and the 4.93-

acre parcel containing the single-family rental unit at 4655 Carolina Beach Road.

The “Agreement to Sell Properties” provided for payment of Plaintiff’s $10,000

consulting fee, monthly rental of the Lewises’ residence after closing, and a transition

time for Mrs. Lewis following Defendant’s death.

C. Amendments to Agreement

¶ 14 Huckabee did not believe the “Agreement to Sell Properties” was binding on

the parties. He had an agent draft a “legitimate real estate agreement.” Huckabee

also informed Plaintiff he did not want to purchase the 4.93-acre parcel containing

the single-family rental unit on Carolina Beach Road in New Hanover County.

Huckabee requested Plaintiff to ask Defendant to separate the purchase prices of the

properties in the “Agreement to Sell Properties.” Defendant agreed to list separate

purchase prices of the properties in a 17 October 2018 document, wherein

handwritten prices were affixed to each property listed on the “Agreement to Sell

Properties.” The 17 October 2018 document priced the 5.355-acre parcel containing

the Deerfield Mobile Home Park and the 1.721-acre parcel containing the personal

residence at $750,000, and priced the 4.93-acre parcel containing the single-family

rental unit at 4655 Carolina Beach Road at $300,000. MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

¶ 15 Plaintiff and Huckabee stopped communicating about the transaction.

Plaintiff believed Huckabee did not want to complete the transaction due to an

unrelated dispute between the two men. Huckabee believed Plaintiff had informed

him Defendant’s daughter “wanted to stop this transaction. She had another real

estate [broker] involved and another buyer[.]”

¶ 16 Huckabee maintained in his deposition he continued to have interest in the

properties and would be able to purchase all three properties in October 2018. After

Plaintiff informed Huckabee that Defendant was no longer interested in selling to

him, Huckabee heard nothing more about the transaction until being subpoenaed for

a deposition.

¶ 17 Plaintiff informed Defendant that Huckabee had stopped responding and

asserted Huckabee was no longer interested in purchasing the properties. Defendant

responded by reiterating his need to sell the properties as quickly as possible.

Defendant asked Plaintiff “how fast [could he] get him some big money.” When

Plaintiff asked what amount constituted “big money,” Defendant responded

“$500,000 or more.”

¶ 18 Plaintiff told Defendant he would require seller financing to purchase the

properties. Defendant told Plaintiff he would consider some seller financing.

Plaintiff responded he would also confer with other lenders about financing the

purchase. Plaintiff also asked for a year’s extension to pay the full amount. A short MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

time later, Defendant informed Plaintiff he was not interested in seller financing and

inquired if Plaintiff could pay the full amount in a shorter time due to his terminal

prognosis. Defendant provided financial information and tax returns from Deerfield

for lenders to review.

D. Hoosier Daddy, LLC

¶ 19 Plaintiff contacted Jack J. Carlisle to determine whether he was interested in

purchasing the three properties. Carlisle informed Plaintiff he was willing to

purchase the 4.93-acre parcel containing the single-family rental unit at 4655

Carolina Beach Road and would finance Plaintiff’s purchase of the 5.355-acre parcel

containing the Deerfield Mobile Home Park and the 1.721-acre parcel containing the

personal residence. Carlisle gave Plaintiff a check from a limited liability company,

Hoosier Daddy, LLC for $800,000. The check required the signatures of Plaintiff,

Defendant, and an attorney to be negotiated.

¶ 20 Plaintiff met with Defendant on 24 October 2018. Plaintiff offered to purchase

all three properties for $800,000 and handed Defendant the check from Hoosier

Daddy. Plaintiff had written on a copy of the 17 October 2018 document, during the

meeting as values for the properties: $400,000 for 5.355-acre parcel containing the

Deerfield Mobile Home Park, $250,000 for the 1.721-acre parcel containing the

personal residence, and $250,000 for the 4.93-acre parcel containing the single-family

rental unit at 4655 Carolina Beach Road, totaling $900,000. Beneath the values, MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

Plaintiff wrote “Will accept 5% less/purchase price $850,000.” Defendant and

Plaintiff both signed the bottom of this document. Plaintiff believed this document

gave him the option to buy all three properties or just some of them at the listed price

or 5% less.

¶ 21 Plaintiff returned on 7 November 2018 with a proposed contract. Plaintiff told

Defendant he could not obtain more than the $800,000 check from Hoosier Daddy.

Defendant told Plaintiff “we can’t do business. You’re . . . trying to squeeze me too

much. We can’t do business.”

E. Listing with a Broker

¶ 22 Defendant hired a licensed real estate broker to list the 5.355-acre parcel

containing the Deerfield Mobile Home Park and the 1.721-acre parcel containing the

personal residence for sale. This broker presented an offer from another prospective

buyer.

¶ 23 Defendant wanted to sell the 1.721-acre parcel containing the marital

residence together with the Deerfield Mobile Home Park. Defendant believed the

combined sale of the properties would provide the best value for his residence,

another buyer of the house alone would not pay as much to be in front of a mobile

home park, and the 1.721 acres provided expansion room for the new owner of the

Deerfield Mobile Home Park. Defendant reiterated to Plaintiff they would not be

closing on the sale of any properties. MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

F. Litigation

¶ 24 Plaintiff filed a complaint on 17 January 2019, asserting breach of contract

against Defendants. Plaintiff docketed a notice of Lis Pendens with the complaint in

Pender County Superior Court concerning the 5.355-acre parcel containing the

Deerfield Mobile Home Park and the 1.721-acre parcel containing the Lewises’

personal residence.

¶ 25 Plaintiff also filed a complaint on 17 January 2019 asserting breach of contract

concerning the 4.93-acre parcel containing the single-family rental unit at 4655

Carolina Beach Road in New Hanover County Superior Court. The action in New

Hanover County Superior Court is being held in abeyance pending resolution of this

case.

¶ 26 Defendants filed counterclaims asserting constructive fraud, undue influence,

and duress, and sought recission of the contract. Both Plaintiff and Defendants filed

motions for summary judgment. The trial court entered an order granting

Defendants’ motion for summary judgment on Plaintiff’s claims and granting

Plaintiff’s motion for summary judgment on Defendant’s counterclaims on 13

November 2019. Plaintiff appeals. Defendants cross-appeal.

II. Jurisdiction

¶ 27 Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2019).

III. Issues MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

¶ 28 Plaintiff argues the trial court erred by granting Defendants’ motion for

summary judgment and by denying his motion for summary judgment and for specific

performance of the contract.

¶ 29 Defendants argue the trial court erred by granting Plaintiff’s motion for

summary judgment on the counterclaims. Defendants further argue the trial court

abused its discretion and erred by denying their proposed amendments to the

counterclaims.

IV. Cross Motions for Summary Judgment

A. Standard of Review

¶ 30 North Carolina Rule of Civil Procedure 56(c) entitles a movant to obtain

summary judgment upon demonstrating “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits” shows there is

“no genuine issue as to any material fact” and the movant is “entitled to a judgment

as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019).

¶ 31 A genuine issue of material fact is one supported by evidence that would

“persuade a reasonable mind to accept a conclusion.” Liberty Mut. Ins. Co. v.

Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002) (citation omitted). “An

issue is material if the facts alleged would . . . affect the result of the action.” Koontz

v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972).

¶ 32 “The party moving for summary judgment bears the burden of establishing MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

that there is no triable issue of material fact.” DeWitt v. Eveready Battery Co., 355

N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (citation omitted). A party may meet this

burden “by proving that an essential element of the opposing party’s claim is

nonexistent, or by showing through discovery that the opposing party cannot produce

evidence to support an essential element of his claim or cannot surmount an

affirmative defense which would bar the claim.” Id. (citation and internal quotation

marks omitted).

¶ 33 When the court reviews the evidence at summary judgment, “[a]ll inferences

of fact from the proofs offered at the hearing must be drawn against the movant and

in favor of the party opposing the motion.” Boudreau v. Baughman, 322 N.C. 331,

343, 368 S.E.2d 849, 858 (1988) (citation omitted). On appeal, “[t]he standard of

review for summary judgment is de novo.” Forbis v. Neal, 361 N.C. 519, 524, 649

S.E.2d 382, 385 (2007) (citation omitted).

B. Plaintiff’s Appeal: Defendant’s Motion for Summary Judgment

1. Validity of Contract

¶ 34 Plaintiff argues the trial court erred by granting Defendants’ motion for

summary judgment. He asserts the parties formed a severable contract that complies

with the statute of frauds and the 24 October 2018 document is sufficient to satisfy

the statute of frauds. N.C. Gen. Stat. § 22-2 provides:

All contracts to sell or convey any lands, tenements or MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

hereditaments, or any interest in or concerning them, . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.

N.C. Gen. Stat. § 22-2 (2019).

¶ 35 Plaintiff concedes Defendant, as a tenant by the entirety, could not convey the

1.721-acre parcel containing the personal residence without joinder of his wife.

Plaintiff asserts 24 October 2018 document is severable from the 4.93-acre parcel

containing the single-family rental unit at 4655 Carolina Beach Road, which forms

the New Hanover County case, and for sale of the 5.355-acre parcel containing the

Deerfield Mobile Home Park.

¶ 36 “The well-settled elements of a valid contract are offer, acceptance,

consideration, and mutuality of assent to the contract’s essential terms.” Se.

Caissons, LLC v. Choate Constr. Co., 247 N.C. App. 104, 110, 784 S.E.2d 650, 654

(2016) (citation omitted). “A contract is simply a promise supported by consideration,

which arises . . . when the terms of an offer are accepted by the party to whom it is

extended.” McLamb v. T.P., Inc., 173 N.C. App. 586, 588, 619 S.E.2d 577, 580 (2005)

(citation omitted). “Generally, a party seeking to enforce a contract has the burden

of proving the essential elements of a valid contract.” Orthodontic Ctrs. Of Am., Inc.

v. Hanachi, 151 N.C. App. 133, 135, 564 S.E.2d 573, 575 (2002) (citation omitted).

¶ 37 “The heart of a contract is the intention of the parties, which is ascertained by MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

the subject matter of the contract, the language used, the purpose sought, and the

situation of the parties at the time.” Pike v. Wachovia Bank & Trust Co., 274 N.C. 1,

11, 161 S.E.2d 453, 462 (1968) (citations omitted).

¶ 38 “One of the most fundamental principles of contract interpretation is that

ambiguities are to be construed against the party who prepared the writing.” Chavis

v. S. Life Ins. Co., 318 N.C. 259, 262, 347 S.E.2d 425, 427 (1986).

¶ 39 One hundred and thirty years ago, our Supreme Court examined the

severability of a contract with unenforceable provisions, holding:

A contract is entire, and not severable, when by its terms, nature and purpose it contemplates and intends that each and all of its parts, material provisions, and the consideration, are common each to the other and interdependent. Such a contract possesses essential oneness in all material respects. The consideration of it is entire on both sides. Hence, where there is a contract to pay a gross sum of money for a certain definite consideration, it is entire, and not severable or apportionable in law or equity. Thus, where a particular thing is sold for a definite price, the contract is an entirety, and the purchaser will be liable for the entire sum agreed to be paid. And so, also, when two or more things are sold together for a gross sum, the contract is not severable. The seller is bound to deliver the whole of the things sold, and the buyer to pay the whole price, in the absence of fraud.

...

“[A] severable contract is one in its nature and purpose susceptible of division and apportionment, having two or more parts, in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

other, nor is it intended by the parties that they shall be.

Wooten v. Walters, 110 N.C. 251, 254-55, 14 S.E. 734, 735 (1892).

¶ 40 Plaintiff argues the 24 October 2018 amended agreement constituted a valid

and severable contract to convey. This document listed and assigned separate prices

to each of the three properties. The document is signed by Defendant and Plaintiff.

Defendants argue the 24 October 2018 agreement does not constitute a valid contract.

¶ 41 “The essence of any contract is the mutual assent of both parties to the terms

of the agreement so as to establish a meeting of the minds.” Snyder v. Freeman, 300

N.C 204, 218, 266 S.E.2d 593, 602 (1980). Our Supreme Court has held: “For an

agreement to constitute a valid contract, the parties’ minds must meet as to all the

terms. If any portion of the proposed terms is not settled, or no mode agreed on by

which they may be settled, there is no agreement.” Chappell v. Roth, 353 N.C. 690,

692, 548 S.E.2d 499, 500 (2001) (citations and internal quotation marks omitted).

2. Unilateral Option Agreement

¶ 42 “[A]n option is a contract by which the owner agrees to give another the

exclusive right to buy property at a fixed price within a specified time. In effect, an

owner of property agrees to hold his offer [to sell] open for a specified period of time.”

Normile v. Miller, 313 N.C. 98, 105, 326 S.E.2d 11, 16 (1985) (emphasis supplied)

(citations and internal quotation marks omitted).

a. Specified Date MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

¶ 43 The writing must contain an express “promise or agreement that [the offer will]

remain open for a specified period of time” for an option contract to be valid. Id. An

option contract does not exist if “there is no language indicating that [the seller] in

any way agreed to sell or convey [their] real property to [a prospective buyer] at their

request within a specified period of time.” Id. at 106, 326 S.E.2d at 16 (emphasis

supplied).

¶ 44 The 24 October 2018 agreement contains no provisions requiring Defendants

to convey the listed properties by a specific date. Nothing required Plaintiff to

actually purchase any single or combination of the three properties. Nothing shows

the 24 October 2018 document represented anything more than a revocable offer to

sell that Defendants could revoke at any period of time prior to acceptance according

to its terms.

b. Consideration

¶ 45 “[An] option contract must also be supported by valuable consideration.” Id. at

105, 326 S.E.2d at 16. The 24 October 2018 agreement along with Plaintiff’s

pleadings, depositions, and affidavits do not provide for any consideration. The

record is devoid of language for any deposit, due diligence fee, or earnest money

deposit paid by Plaintiff for Defendant to forebear selling his properties. No valid

option contract existed to which Plaintiff could allege a breach thereof by Defendants.

¶ 46 Without a valid and enforceable option contract, no claim for breach of contract MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

arises. The trial court properly entered summary judgment for Defendants on

Plaintiff’s breach of contract claims. Plaintiff’s arguments are overruled.

C. Defendants’ Appeal: Plaintiff’s Motion for Summary Judgment

¶ 47 Defendants argue the trial court erred by granting Plaintiff’s motion for

summary judgment and assert their claims of undue influence, duress, fraud, and for

recission of the documents raise genuine issues of material fact to preclude summary

judgment for Plaintiff. We have held no enforceable contract exists between the

parties, Defendants counterclaims for undue influence, duress, and recission are

therefore moot.

1. Fraud

¶ 48 Fraud may be actual or constructive. Terry v. Terry, 302 N.C. 77, 82, 273

S.E.2d 674, 677 (1981). Constructive fraud arises when a confidential or fiduciary

relationship exists. Id. at 83, 273 S.E.2d at 677.

¶ 49 “Allegations of fraud are subject to more exacting pleading requirements than

are generally demanded by our liberal rules of notice pleading.” Harrold v. Dowd,

149 N.C. App. 777, 782, 561 S.E.2d 914, 918 (2002) (citations and internal quotation

marks omitted). Rule 9(b) of the North Carolina Rules of Civil Procedure require that

“[i]n all averments of fraud, . . . the circumstances constituting fraud . . . shall be

stated with particularity.” N.C. Gen. Stat. § 1A-1, Rule 9(b) (2019). MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

¶ 50 Our Supreme Court has held Rule 9(b)’s particularity requirement for a fraud

claim “is met by alleging time, place and content of the fraudulent representation,

identity of the person making the representation and what was obtained as a result

of the fraudulent acts or representations.” Terry, 302 N.C. at 85, 273 S.E.2d at 678.

¶ 51 “[A] fiduciary relationship is generally described as arising when there has

been a special confidence reposed in one who in equity and good conscience is bound

to act in good faith and with due regard to the interests of the one reposing

confidence.” Dallaire v. Bank of Am. N.A., 367 N.C. 363, 367, 760 S.E.2d 263, 266

(2014) (citation and internal quotation marks omitted).

¶ 52 Allegations of fraud are rarely resolved at the pleading or summary judgment

stage, because resolution of the cause requires the determination of a litigant’s state

of mind. Whitman v. Forbes, 55 N.C. App. 706, 713, 286 S.E.2d 889, 893 (1982)

(citations omitted).

¶ 53 “In the event that a party fails to allege any special circumstances that could

establish a fiduciary relationship, dismissal of a claim which hinges upon the

existence of such a relationship would be appropriate.” Azure Dolphin, LLC. v.

Barton, 371 N.C. 579, 599, 821 S.E.2d 711, 725 (2018) (citations and internal

quotation marks omitted).

¶ 54 Defendants have not alleged Plaintiff held himself out to be a real estate broker

or in any confidential relationship with Defendants. Defendants allege Plaintiff was MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

an advisor, consultant, and deal maker due to his superior knowledge and experience

regarding real property values and transactions. Defendants further allege the

existence of a de jure fiduciary relationship. Defendants did not assert this argument

before the trial court and have waived it for appellate review. See N.C. R. App. P. 10.

¶ 55 In Azure Dolphin, the plaintiff argued a party acting as a real estate

investment expert and advisor created a fiduciary relationship. Azure Dolphin, 371

N.C. at 601, 821 S.E.2d at 726. Our Supreme Court disagreed and held the

allegations did not create a fiduciary relationship between the parties. Id. at 601-02,

821 S.E.2d at 726-27. Here, Defendants have not shown how their purported reliance

on Plaintiff created a “confidence reposed on one side, and the resulting superiority

and influence on the other, necessary to show the existence of a fiduciary relationship

as a matter of fact.” Id. at 601-02, 821 S.E.2d at 726-27. Defendant initiated the

negotiations by soliciting Plaintiff’s involvement and averred Plaintiff was

“negotiating for” Huckabee. The trial court did not err in granting summary

judgment for Plaintiff on Defendants’ claims for constructive fraud and for breach of

a fiduciary duty. Defendants’ arguments are overruled.

V. Defendants’ Appeal: Motion to Amend

¶ 56 Defendants further argue the trial court abused its discretion and erred by

denying their motion to amend their counterclaims. Defendants sought to amend

their counterclaims and file new claims for actual fraud, slander to title, malicious MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

prosecution, and tortious interference with contract. These allegations are based

upon a premise of actual fraud.

¶ 57 “Reasons justifying denial of an amendment are (a) undue delay, (b) bad faith,

(c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects

by previous amendments.” Martin v. Hare, 78 N.C. App. 358, 361, 337 S.E.2d 632,

634 (1985). Once the pleadings are joined “[a] motion to amend is addressed to the

discretion of the court, and its decision thereon is not subject to review except in case

of manifest abuse.” Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484,

488 (1972); see N.C. Gen. Stat. § 1A-1, Rule 15 (2019).

B. Analysis

¶ 58 The trial court denied Defendants’ motion to amend their pleadings because

such amendment would be futile. “To successfully assert an allegation of actual

fraud, the plaintiff must plead five elements: (1) false representation or concealment

of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive,

(4) which does in fact deceive, (5) resulting in damage to the injured party.” Head v.

Gould Killian CPA Grp., P.A., 371 N.C. 2, 9, 812 S.E.2d 831, 837 (2018) (citations and

internal quotation marks omitted).

¶ 59 “[A]ny reliance on the allegedly false representations must be reasonable.” Id.

(citations omitted). Rule 9 of our Rules of Civil Procedure place an increased burden MURRAY V. DEERFIELD MOBILE HOME PARK, LLC

on the pleader requiring “the circumstances constituting fraud . . . shall be stated

with particularity.” N.C. Gen. Stat. § 1A-1, Rule 9(b). Defendants failed to assert a

sufficient allegation and showing in their pleadings, depositions, and affidavits of any

reasonable reliance upon false representations by Plaintiff to constitute actual fraud

to overcome Plaintiff’s motion for summary judgment. Defendants failed to show any

abuse of discretion in the trial court’s denial of Defendants’ motion to amend their

pleadings, where such amendment would be futile. Defendants’ arguments are

overruled.

VI. Conclusion

¶ 60 Viewed in the light most favorable to Plaintiff and Defendants on their

respective motions for summary judgment and giving both parties the benefit of any

disputed inferences of their respective claims, the trial court properly entered

summary judgment on all claims. The trial court did not err, much less abuse its

discretion, in denying Defendants’ motions to amend their counterclaims. The trial

court’s order is affirmed. It is so ordered.

AFFIRMED.

Judges COLLINS and CARPENTER concur.