MEMORANDUM AND ORDER
THORNBURG, District Judge.
THIS MATTER is before the Court on Plaintiffs and Defendants’ timely filed objections to the Memorandum and Recommendation of United States Magistrate Judge Max O. Cogburn, Jr. Pursuant to standing orders of designation and 28 U.S.C. § 636, the Defendants’ motions for summary judgment were referred to the Magistrate Judge for a recommendation as to disposition. The Court notes that Defendant Neighbor Care Pharmacy Services, Inc., successor in interest to Vitalink Pharmacy Services, Inc., as well as Defendant NeighborCare TCI, Inc., d/b/a Neighbor-Care Hendersonville, successor in interest to Team Care, Inc., d/b/a Team Care Hendersonville, have both filed Chapter 11 Bankruptcy Petitions and have cases pending in the United States Bankruptcy Court for the District of Delaware. However, because the motions and objections of both parties were filed and fully briefed prior to the bankruptcy filings, the Court will render a decision on the dispositive motions. Accordingly, the Court adopts the recommendation of the Magistrate Judge in part and will grant the Defendants’ motions for summary judgment.
I. STANDARD OF REVIEW
The Court reviews
de novo
those portions of a Magistrate Judge’s Memorandum and Recommendation to which specific objections are filed. 28 U.S.C. 636(b). “The district judge must not be a rubber stamp” and “has a duty to reject the Magistrate Judge’s recommendation unless, on
de novo
reconsideration, he or she finds it justified.” 12 Charles A. Wright & Arthur R. Miller,
Federal Practice and Procedure
§ 3070.2 (1997). Those parts of a Magistrate Judge’s Memorandum and Recom
mendation to which no specific objections are filed are given careful review.
Orpi-ano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982).
Summary judgment is proper when the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(c);
Celotex Corp. v. Ca-trett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
II. FACTUAL AND PROCEDURAL BACKGROUND
Between March and May 1998, discussions took place between Vitalink Pharmacy Services, Inc. (“Vitalink”) and Plaintiff Stephen D. Rice, a developer of industrial real estate, regarding Vitalink’s possible lease of Unit C of Plaintiffs Airport Business Center (“ABC”) for a pharmacy operation. Acting on behalf of Vitalink were George Methvin, a local Vitalink manager associated with Defendant Hendersonville Team Care, and Andrew Taguwa, an agent for independent brokers Mohr Partners, Inc. (“Mohr Partners”). Third Party Defendant Robert A. Boylan, Jr., an agent for the Asheville brokerage firm, Beverly-Hanks & Associates, Inc. (“Beverly-Hanks”), acted on behalf of the Plaintiff. Exhibit D, Deposition of Robert A. Boy-lan,
attached to
Defendant Mohr Partners’ Motion for Summary Judgment, filed April 17, 2000, at 14. On or about March 10, Methvin allegedly did a walk-thru of the property and faxed over a proposed floor plan to Boylan.
Id.,
at 18.
Shortly thereafter, Boylan allegedly received a proposal from Vitalink for leasing the space.
Id.,
at 27, 35. Plaintiff alleges that during this period the parties contemplated Vitalink would begin leasing the space on May 1, 1998, and take possession on June 1, 1998.
Id.,
at 31, 131-32, 153. On March 19, 1998, Boylan faxed Taguwa a copy of a letter drafted by Plaintiff which stated Plaintiff was preparing to perform work on the ABC Space. The fax also stated that if Boylan had any potential tenants who wanted to move in by June 1, 1998, Plaintiff needed the first month’s cheek and a signed lease within 14 days. Id, at 38; Exhibit 6, Letter dated March 19, 1998 and attached fax transmittal sheet,
attached to
Defendant Mohr Partners’ Motion. Plaintiff never received a signed lease or check from Vitalink. Boy-lan Deposition, at 40; Exhibit B, Deposition of Stephen D. Rice,
attached to
Defendant Mohr Partners’ Motion, at 60-61. On April 3, 1998, Taguwa sent a letter which instructed Boylan that “[a]ll terms [of a lease] are subject to Board approval reflected through a signed lease document.” Exhibit 53, Letter dated April 3, 1998 and attached fax transmittal sheet,
attached to
Defendant Mohr Partners’ Motion. Plaintiff also received a copy of that letter. Rice Deposition, at 75-77. About April 21, 1998, Boylan sent leases by overnight mail to Vitalink for signing and on May 1, 1998, faxed final floor plans to Vitalink.
Boylan Deposition, at 83, 85; Rice Deposition, at 81-85. Vitalink did not respond to these communications. But, during this time, Plaintiff alleges that Taguwa and Methvin stated that although the legal department needed to review documentation of the agreement, “the deal is a go ...” and that the legal approval of the lease documents was merely a “rubber stamp.” Boylan Deposition, at 40-42, 69, 75, 121-22, 129. Taguwa denies making this statement or anything to its effect. Exhibit E, Deposition of Andrew W. Taguwa,
attached to
Defendant Mohr Partners’ Motion, at 73.
Based upon these alleged assurances that the deal was done, Plaintiff entered into an oral agreement with general contractor Jim Allen Construction Company (“Jim Allen”) to perform upfit work to
Unit C according to specifications allegedly approved by Vitalink. Rice Deposition, at 131-33. It is undisputed that Boylan never received a signed lease or requested or received a letter of intent or an indemnity agreement from Vitalink to cover the upfit work.
Boylan Deposition, at 21, 40, 42-43.
Jim Allen began upfit work on Unit C according to specifications supplied by Plaintiff on May 1, 1998. On May 26, 1999, Plaintiff wrote a letter to Boylan stating he still had not received a signed lease or a rent check which were allegedly due on May 1, 1998. Rice Deposition, at 106, 116; Exhibit 15, Letter dated May 27, 1998,
attached to
Defendant Mohr Partners’ Motion. On May 27, Boylan wrote a letter to Vitalink’s corporate counsel stating that he had just been made aware of a merger including Vitalink and that the upfit could not continue without Vitalink’s immediate response.
Boylan Deposition, at 97-99; Exhibit 16, Letter dated May 27, 1998,
attached to
Defendant Mohr Partners’ Motion. Vitalink’s response was that there was no lease agreement. Boylan Deposition, at 106. Subsequently, on June 2, 1998, Plaintiff instructed Jim Allen to find a sensible stopping point on the Unit C upfit. Jim Allen stopped work on June 12,1998, when the upfit of Unit C was approximately 70 percent complete. Jim Allen then sought payment from Plaintiff in the amount of $50,116.40 for the work already performed.
After Plaintiff refused to make payment, Jim Allen sued him in Henderson County Superior Court for $50,116.40. Plaintiff filed an answer denying liability. Plaintiff, who admits that he has never personally made payments to Jim Allen for the upfit work performed on Unit C, is no longer the owner of the ABC space. That property was transferred to MMR Properties, LLC (“MMR”), a limited liability company of which Plaintiff is the sole shareholder. MMR made approximately $25,000 in payments to Jim Alen in 1999 and Plaintiff has not reimbursed MMR for those payments.
In this action, Plaintiff asserts causes of action for breach of contract, negligent misrepresentation, and unfair and deceptive trade practices. Plaintiff seeks to recover $50,116.40 for the cost of the upfit of Unit C and approximately $12,000 for the future removal of the structures. Treble damages are sought by Plaintiff on his claim of unfair and deceptive trade practices. Plaintiffs Complaint, at ¶’s 35-37. Once this case was underway, Defendants brought third-party claims for indemnity and contribution against Beverly-Hanks and Boylan.
The Third-Party Defendants moved for summary judgment and that motion is before this Court as well.
III. DISCUSSION
1. Motion to Amend
The Magistrate Judge recommended the Court allow Plaintiff to amend the Complaint to join MMR as an indispensable party. Defendants object and contend they would be unduly prejudiced and would require additional discovery prior to trial. However, because- this order dismisses all claims against the Defendants, those concerns are moot. Therefore, in
the interest of avoiding duplicative litigation in the future, the Court adopts the Magistrate Judge’s recommendation and will grant the Plaintiffs request for MMR to be added as a party plaintiff to -this action. Fed.R.Civ.P. 19.
2. Breach of Contract
The Plaintiff objects to the Magistrate Judge’s recommendation that the Statute of Frauds is a bar to Plaintiffs claim for breach of contract. In stating his objections, the Plaintiff reiterates the argument that promissory estoppel renders the Statute of Frauds inapplicable in this case. In support of this theory, Plaintiff continues to rely on
Campbell v. Virginia Metal Indus., Inc.,
708 F.2d 930 (4th Cir.1983). However, as Defendants and the Magistrate Judge note,
Campbell
has been expressly rejected by the courts of North Carolina.
Home Electric Co. of Lenoir, Inc. v. Hall & Underdown Heating & Air Conditioning Co.,
86 N.C.App. 540, 358 S.E.2d 539 (1987),
aff'd,
322 N.C. 107, 366 S.E.2d 441 (1988);
Clark Trucking of Hope Mills, Inc. v. Lee Paving Co.,
109 N.C.App. 71, 426 S.E.2d 288,
rev. denied,
333 N.C. 790, 431 S.E.2d 21 (1993). The Court declines to accept the Plaintiffs invitation to adopt the reasoning of
Campbell
in favor of the clear controlling law of North Carolina. Because promissory estoppel may not be used as an affirmative cause of action in this state, the Court finds that the Statute of Frauds bars Plaintiffs claim for breach of contract.
Computer Decisions, Inc. v. Rouse Office Management of North Carolina, Inc.,
124 N.C.App. 383, 388, 477 S.E.2d 262, 265 (1996). That claim is hereby dismissed.
Negligent Misrepresentation 3.
The Defendants object to the Magistrate Judge’s recommendation that summary judgment should be denied on Plaintiffs negligent misrepresentation claim. The Magistrate Judge correctly notes that justifiable reliance is an essential element of a claim for negligent misrepresentation.
APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority,
110 N.C.App. 664, 431 S.E.2d 508,
rev. denied,
335 N.C. 171, 438 S.E.2d 197 (1993). The Defendants have made an ample evidentiary showing that a professional developer such as Plaintiff was not reasonable to rely upon an alleged oral promise in light of standard industry practice and prevailing lease law.
Boylan Deposition, at 25, 60-61, 74-75, 85-86, 98,119, 124, 154; Beverly Deposition, at 5; Rice Deposition, at 75, 86, 88; Taguwa Affidavit, at ¶’s 4-5; Exhibit 13,
attached to
Defendant Mohr Partner’s Motion. Thus, the burden shifts to the Plaintiff to show that a genuine issue for trial exists. Fed. R.Civ.P. 56(c);
Celotex Corp., supra.
However, Plaintiff has not produced evidence from which a reasonable jury could conclude that Plaintiff was justified in relying on the alleged verbal statement, “it’s a done deal.” Consequently, the Court will grant Defendants’ motion for summary judgment on Plaintiffs negligent misrepresentation claim.
4. Unfair and Deceptive Trade Practices
The Magistrate Judge recommended that the Court grant Defendants’ motions for summary judgment on the is
sue of Plaintiffs claim for unfair and deceptive trade practices. N.C.Gen.Stat. § 75-1.1. To recover under North Carolina’s Unfair and Deceptive Trade Practices Act, a plaintiff must prove that the conduct in question was “unfair,” which is broader than and includes the concept of “deception.”
Opsahl v. Pinehurst Inc.,
81 N.C.App. 56, 69, 344 S.E.2d 68, 76 (1986) (quoting
Johnson v. Phoenix Mut. Life Ins. Co.,
300 N.C. 247, 263, 266 S.E.2d 610, 621 (1980)).
“ ‘A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.’ ”
Id.
Whether the conduct was unfair or deceptive is a legal issue for the court.
Ellis v. Northern Star Co.,
326 N.C. 219, 388 S.E.2d 127 (1990).
After a thorough review of the record in this case, the Court agrees with the Magistrate Judge that Plaintiff has failed to allege conduct which is unfair or deceptive. At best, the Court finds that Plaintiff has alleged a situation of mutual misunderstanding between the parties. In
Cockman v. White,
76 N.C.App. 387, 333 S.E.2d 54 (1985), the North Carolina Court of Appeals held that a misunderstanding between the plaintiffs and defendants did not give rise to a claim for deceptive trade practices.
Id.
Despite Plaintiffs attempt to distinguish
Cockman,
the Court finds the reasoning of that.case applicable to the instant situation. Furthermore, the Court again notes the level of sophistication and experience on the part of both parties in this case. Viewed against this backdrop, the Court is not able to find that the alleged conduct was either unfair or deceptive.
See e.g., Spartan Leasing, Inc. v. Pollard,
101 N.C.App. 450, 400 S.E.2d 476 (1991) (holding that sophisticated businessmen could not have been mislead about the nature of a guarantee agreement);
United States Dev. Corp. v. Peoples Federal Savings & Loan Ass’n,
873 F.2d 731 (4th Cir.1989) (“A sophisticated real estate developer such as appellant could not possibly have been deceived by [defendant’s] insistence upon and use of the unilateral right of withdrawal.”);
United Roasters, Inc. v. Colgate-Palmolive,
649 F.2d 985 (4th Cir.1981) (a breach of contract, even if intentional, does not amount to an unfair and deceptive trade violation without a showing of substantial aggravating circumstances). Consequently, the Court will adopt the Magistrate Judge’s recommendation and will dismiss Plaintiffs claim for unfair and deceptive trade practices.
5. Third-Party Defendants
Because all of Plaintiffs claims against the Defendants are hereby dismissed, the Defendants’ third-party claims against Beverly-Hanks and Boylan are no longer viable and will be dismissed.
IV. ORDER
IT IS, THEREFORE, ORDERED, that the Plaintiffs Motion to Amend the Complaint is ALLOWED, and MMR Properties, LLC, is JOINED as a party plaintiff in accordance with Rule 19 of the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that the motions for summary judgment filed by Defendants Vitalink and Mohr Partners are ALLOWED as to all of Plaintiffs claims.
IT IS FURTHER ORDERED that the Third-Party Complaints against Third-Party Defendants Beverly Hanks & Associates, Inc., and Robert A. Boylan, Jr., are moot and are therefore DISMISSED.
A Judgment dismissing this matter in its entirety is filed herewith.
MEMORANDUM AND RECOMMENDATION
COGBURN, United States Magistrate Judge.
THIS MATTER is before the court upon defendant Vitalink Pharmacy Services, Inc.’s Motion for Summary Judgment, defendant Mohr Partner, Inc.’s Motion for Summary Judgment, and defendants Beverly-Hanks & Associates, Inc.’s (collectively “defendants”)
and Robin A. Boylan, Jr.’s Motion for Summary Judgment. Having carefully considered those motions and the various responses of the parties, the undersigned enters the following findings, conclusions, and recommendation.
FINDINGS AND CONCLUSIONS
I. Background
Between March and May 1998, discussions took place between Vitalink and plaintiff regarding Vitalink’s possible lease of Unit C of the Airport Business Center (“ABC”) for a pharmacy operation. During that process, a number of possible floor plans were reviewed. Prior to sending a final floor plan to Vitalink for approval, and without first obtaining a signed lease or any written authorization from Vitalink, plaintiff entered into an oral agreement with general contractor Jim Allen Construction Company to perform upfit work to Unit C according to specifications allegedly approved by Vitalink.
Jim Allen began upfit work on Unit C according to specifications given to it by plaintiff on May 1, 1998. On May 27,1998, plaintiff learned that Vitalink had not signed a lease for Unit C and that lease negotiations were on hold. Subsequently, on June 2, 1998, plaintiff instructed Jim Allen to find a sensible stopping point on the Unit C upfit. Jim Allen stopped work on June 12, 1998, when the upfit of Unit C was approximately 70 percent complete. Subsequently, Jim Allen sought payment from plaintiff in the amount of $50,116.40 for the work already performed.
After plaintiff refused to make payment, Jim Allen sued him in Henderson County Superior Court for $50,116.40. Plaintiff filed an answer in that case and denied liability to Jim Allen. Plaintiff, who admits that he has never made payments to Jim Allen for the upfit work performed on Unit C, is no longer the owner of the ABC space. That property was transferred by plaintiff to MMR, a limited liability company, of which plaintiff is the sole shareholder. MMR made approximately $25,000 in payments to Jim Allen in 1999, and plaintiff has not reimbursed MMR for those payments.
In this action, plaintiff asserts causes of action for breach of contract, negligent misrepresentation, and unfair and deceptive trade practices. Plaintiff seeks to recover $50,116.40 for the cost of the upfit of Unit C and approximately $12,000 for the future removal of the upfit. Treble damages are sought by plaintiff on his claim of unfair and deceptive trade practices. It appearing that the amount in controversy exceeds the jurisdictional threshold and that complete diversity exists, this court has jurisdiction over this matter.
II. Summary Judgment Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party’s meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts. In the language of the Rule, the nonmoving party must come forward with “specific facts showing that there is a
genuine issue for trial.”
Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no “genuine issue for trial.”
Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87, 106 S.Ct. 1848, 89 L.Ed.2d 538 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
By reviewing substantive law, the court may determine what matters constitute material facts.
Id.
“Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment.”
Id.,
at 248, 106 S.Ct. 2505. A dispute about a material fact is “genuine” only if the evidence is such that “a reasonable jury could return a verdict for the nonmov-ing party.”
Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).
Cole v. Cole,
633 F.2d 1083, 1092 (4th Cir.1980). Affidavits filed in support of a defendants’ motions for summary judgment are to be used to determine whether issues of fact exist, not to decide the issues themselves.
United States ex rel. Jones v. Rundle,
453 F.2d 147 (3d Cir.1971). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper.
Davis v. Zahrad-nick,
600 F.2d 458 (4th Cir.1979).
II. Plaintiffs Motion to Join MMR
In response to defendants’ motions which attack his standing to bring this action, plaintiff has moved to join MMR as an indispensable party. Despite defendants’ objections to that joinder, the undersigned finds that MMR is an appropriate and indispensable party to this action, for whatever cause of action plaintiff may have had against these defendants was transferred to MMR along with the real property. Finding further that full discovery has been conducted and that joinder would not be unduly prejudicial or impact trial, the undersigned will recommend that MMR be joined as a plaintiff in this action.
IV. Breach of Contract Claim: Statute of Frauds
Defendants next contend that plaintiffs cause of action for “breach of contract” should be dismissed under North Carolina’s Statute of Frauds, which provides, as follows:
[L]eases and contracts for leasing land exceeding in duration three years from the making thereof, 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.
N.C.Gen.Stat. § 22-2. Since the alleged lease in this case was for a term greater than three years, Section 22-2 applies.
Computer Decisions, Inc. v. Rouse Office Management of N.C., Inc.,
124 N.C.App. 383, 388, 477 S.E.2d 262 (1996).
The Statute of Frauds is not, however, an absolute bar. Two equitable doctrines or principles — equitable estoppel and the doctrine of part performance — can take an otherwise unenforceable ' agreement from the domain of the Statute of Frauds. Plaintiff responsively argues that equitable estoppel saves his breach-of-contract claim from the Statute of Frauds. Defendants correctly reply, however, that equitable estoppel is not a cause of action or a weapon that can be used to aid an affirmative cause of action.
It is well established ... that the doctrine of equitable estoppel does not apply to situations in which the party asserting the estoppel has suffered detriment resulting solely from another party’s failure to perform an obhgation under the oral agreement.
Lance J. Marchiafava, Inc. v. Haft, 777
F.2d 942, 945 (4th Cir.1985) (citations omitted). North Carohna law is in accord.
Heme Electric Co. of Lenoir, Inc. v. Hall and Underdown Heating and Air Conditioning Co.,
86 N.C.App. 540, 358 S.E.2d 539 (1987),
aff'd,
322 N.C. 107, 366 S.E.2d 441 (1988)
(rejecting Allen M. Campbell Co. v. Virginia Metal Industries,
708 F.2d 930 (4th Cir.1983)).
Plaintiff argues that his performance was occasioned by a statement from defendants that “the deal is a go.” While defendants deny making such a statement, it is taken as true for the limited purpose of the pending motions. The North Carohna Supreme Court, in a most analogous North Carohna case,
Computer Decisions, Inc., supra,
held, as follows:
Furthermore, assuming that Jody Clark’s statement that the parties “had a deal” was a promise that defendants thereafter breached, breach of promise alone is insufficient to estabhsh estoppel. Vick v. Vick, 126 N.C. 123, 128, 35 S.E. 257, 258 (1900). We hold that there is no genuine dispute of material fact, and that, as a matter of law, defendants are not equitably estopped from asserting the Statute of Frauds.
Id.,
at 387, 477 S.E.2d 262. Plaintiffs breach-of-contract claim cannot be saved by equitable estoppel.
The only other exception to the Statute of Frauds is the doctrine of part performance. Here, plaintiff contends that he partially performed by improving the leasehold to meet defendants’ particularized needs. In some states, part performance of an oral contract can remove the bar of the Statute of Frauds if the part performance consists of acts that would not have been done but for the existence of the contract.
Anticipatory, preparatory, collateral and ancillary acts, performed in reliance on a verbal contract ... done with knowledge of the other party, and if the change in circumstances resulting from such acts are of such nature that the consequences thereof are, or may be, disastrous, the court may enforce the contract, event though the acts are not, strictly speaking, in execution of the contract.
Pointer v. Ward,
429 S.W.2d 269, 273 (Mo. 1968). North Carohna, however, is one of a handful of states to wholly reject the doctrine of part performance.
Duckett v. Harrison,
235 N.C. 145, 69 S.E.2d 176 (1952);
Grantham v. Grantham,
205 N.C. 363, 171 S.E. 331 (1933). Plaintiffs breach-of-contract claim, therefore, cannot be saved by the final exception to the Statute of Frauds — part performance.
Despite his having asserted a claim for breach of contract which is barred by the Statute of Frauds, and not saved by the common-law exceptions, close review of North Carohna law reveals that plaintiff is not without a cause of action or remedy. The common law of North Carohna provides that a plaintiff who is foreclosed by the Statute of Frauds, but who alleges that he has detrimentally relied on the promise of a defendant, has a cause of action for implied
assumpsit
or
quantum meruit
for the value of the services rendered. Even where an oral contract for the transfer of an interest in real property is made unenforceable by the Statute of Frauds, a party who has made improvements may be refunded his advances.
Kivett v. McKeithan,
90 N.C. 106 (1884).
In
Pickelsimer v. Pickelsimer,
257 N.C. 696, 127 S.E.2d 557 (1962), the North Car-ohna Supreme Court held that the remedy of a promisee who has rendered personal services in consideration of an oral contract to devise real estate, which contract is void under the Statute of Frauds, is found in an action for imphed
assumpsit
or
quantum meruit
for the value of the ser
vices rendered. The measure of such damages is the reasonable value of services rendered by plaintiff, less any benefits received by plaintiff.
Id.
Plaintiff would be limited to recovery of his actual damages. In
Stewart v. Wyrick,
228 N.C. 429, 45 S.E.2d 764 (1947), the North Carolina Supreme Court explained:
The contract being unenforceable under the Statute of Frauds, no recovery can be had upon it; no damages can be recovered on account of its breach for the same reason; and upon the same principle, the contract being unenforceable, the value of plaintiffs services cannot be concluded by its terms. In place of the unenforceable promise to devise real estate in consideration of services to be performed, the law substitutes the valid promise to pay their reasonable worth. The mainspring of the Statute of Frauds is to prevent frauds not to promote them.
Id.
(citation omitted).
It appears, then, that the common law of North Carolina would extend to plaintiff a cause of action or a remedy in these circumstances; however, plaintiff has not explicitly set forth such causes of action in his complaint. The issue is whether the complaint requires amendment to assert such a claim. In a similar situation,
Jamerson v. Logan,
228 N.C. 540, 46 S.E.2d 561 (1948), the North Carolina Supreme Court held:
The complaint is broad enough, however, to support a recovery on implied assumpsit to pay the plaintiff the reasonable worth of her services or quantum meruit as expressed in some of the cases, and there is evidence to warrant the submission of the case to the jury on this theory. Indeed, it may be doubted whether the complaint or the evidence shows more than a cause of action for the reasonable worth of plaintiffs services. “Where the plaintiff alleged a contract to pay for services performed, and, upon the trial, failed to prove a special contract, but did prove the performance of the services and their value: Held, that he was entitled to recover upon quantum meruit without amending the complaint.”
Id.,
at 544-45, 46 S.E.2d 561 (citations omitted;
quoting
Third Syllabus,
Stokes v. Taylor,
104 N.C. 394,10 S.E. 566).
To that end, the undersigned will recommend to the district court that plaintiffs cause of action for breach of contract be dismissed based on the operation of the Statute of Frauds; but that under the common law of North Carolina, plaintiff be allowed to proceed to trial on the pleadings, inasmuch as the complaint is broad enough for a cause of action for implied
assumpsit
or
quantum meruit
to be inferred.
Y. Negligent Misrepresentation Claim
Justifiable reliance is an essential element of a claim for negligent misrepresentation.
APAC-Carolina, Inc. v. Greensboro-High Point Airport Authority,
110 N.C.App. 664, 431 S.E.2d 508,
rev. denied,
335 N.C. 171, 438 S.E.2d 197 (1993). In this case, it has been alleged that an agent of defendants told plaintiffs real estate agent that the commercial lease “was a done deal,” and that plaintiff, relying upon such alleged statement, proceeded with an upfit to meet plaintiffs needs. Defendants contend that summary judgment is appropriate because plaintiff, a professional developer, could not reasonably have relied upon an alleged oral promise, in light of industry practice and prevailing lease law. Basically, defendants are arguing that it is no longer reasonable or justifiable for one man to act upon the word of another in the commercial world.
Without doubt, sound business practices would counsel against proceeding without a written agreement. Even though an oral lease of real property exceeding three years is unenforceable, it is not illegal. This court is not in a position to say that, through a course of dealings, plaintiff was not justified in relying upon the alleged
unilateral promise of defendants — “if plaintiff will upfit the property, we will lease it” — to upfit the property. The only way to benefit from a unilateral promise is to give the performance requested.
See Scott v. J.F. Duthie & Co.,
125 Wash. 470, 216 P. 853 (1923). Finding that genuine issues of material fact remain on “justifiable reliance,” the undersigned will recommend that defendants’ motions for summary judgment on plaintiffs claim of negligent misrepresentation be denied.
VI. Unfair and Deceptive Trade Practices Claims
Unfair methods of competition and deceptive acts, in or affecting commerce, are unlawful. N.C.Gen.Stat. 75-1.1. A plaintiff must prove that a defendant has engaged in unfair conduct which offends established public policy or is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.
Tar Heel Ind. v. E.I. duPont de Nemours & Co., Inc.,
91 N.C.App. 51, 370 S.E.2d 449 (1988). Taken in a light most favorable to plaintiff, the evidence produced in this matter, at most, would support a finding that defendants
negligently
misled plaintiff or failed to follow through on an oral promise. All the parties to this action are sophisticated business people, and it cannot be inferred from the pleadings that there was any inequitable assertion of power or position.
Johnson v. Insurance Co.,
300 N.C. 247, 266 S.E.2d 610 (1980). Examining the facts surrounding this transaction, the court can find no actionable impact on the marketplace or consumers.
Warfield v. Hicks,
91 N.C.App. 1, 370 S.E.2d 689 (1988). Not every commercial transaction resulting in litigation forms a basis for an action for unfair or deceptive practices.
Hageman v. Twin City Chrysler-Plymouth, Inc.,
681 F.Supp. 303 (M.D.N.C. 1988). Negligent misrepresentations, mere disagreements, and misunderstandings do not give rise to a claim for deceptive trade practice.
Cockman v. White,
76 N.C.App. 387, 333 S.E.2d 54 (1985). The undersigned can discern no reason why this particular claim should go any further and will recommend that summary judgment be granted in favor of defendants on such claim.
VII. Third-Party Defendants’ Motion for Summary Judgment
Defendants brought the third-party defendants into this action under a theory of indemnity or contribution in the event defendants were found to be liable. Review of the pleadings reveals that the third-party defendants acted merely as a conduit for information between the proposed lessor and the lessee, which included passing on oral statements, some of which defendants now deny making. Despite the practices and policies of real estate professionals in general, third-party defendants were in no way obligated to prevent plaintiff from improving his property without a written lease agreement. Defendants argue that there is evidence sufficient to withstand summary judgment that the conduct of the third-party defendants united in time and circumstance to cause plaintiffs alleged injury and that defendants, therefore, are entitled to seek contribution or indemnification from such parties.
There simply is no evidence that the third-party defendants materially contributed in any manner to the misunderstanding of these parties. If plaintiff is to recover, the recovery will be based on a negligent misrepresentation made by defendants, which third-party defendants allegedly passed on to plaintiff. If defendants prevail, there is no liability of the third-party defendants; if plaintiff prevails, it, by necessity, will be upon what the jury determines to be the actions or promises of defendants, not misinformation the real estate company or agent may have passed along. Defendants simply cannot be held liable for any statement the jury finds that they did not make.
There being no plausible scenario for liability of the third-party defendants, the undersigned can see no reason to keep
them in this action and will recommend that summary judgment be granted in their favor and they be dismissed from this action.
VIII. Other Requests for Summary Judgment
The undersigned has addressed the substantive summary judgment issues that go to the merits of plaintiffs complaint. As to the remaining issues, the undersigned would recommend that in light of the recommendations contained herein, all other grounds for summary judgment be denied without prejudice at this time, subject to oral resubmission at the close of plaintiffs evidence.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that
(1) plaintiffs Motion to Amend the Complaint be allowed, and that MMR Properties, LLC, be JOINED as a party plaintiff in accordance with Rule 19, Federal Rules of Civil Procedure, or SUBSTITUTED as party plaintiff as the successor-in-interest to the named plaintiff in accordance with Rule 25(c), Federal Rules of Civil Procedure;
(2) defendant Vitalink Pharmacy Services, Inc.’s Motion for Summary Judgment and defendant Mohr partner, Inc.’s Motion for Summary Judgment be ALLOWED in part and DENIED in part, as follows:
(a) summary judgment be GRANTED on plaintiffs cause of action for breach of contract, and such claim be DISMISSED with prejudice as barred by the Statute of Frauds, but that claims for implied
assumpsit
and/or
quantum meruit
be inferred from plaintiffs broad complaint, and that the court proceed to trial on such claims during the July 2000 term;
(b) summary judgment be DENIED on plaintiffs claim of negligent misrepresentation;
(c) summary judgment be GRANTED on plaintiffs claim of unfair and deceptive trade practices, and that such claim be dismissed with prejudice; and
(d) all other requests for summary judgment be DENIED without prejudice as to oral reassertion at the close of plaintiffs evidence; and
(3)defendants Beverly-Hanks & Associates, Inc.’s and Robin A. Boylan, Jr.’s Motion for Summary Judgment be GRANTED, and that such defendants be DISMISSED with prejudice from further defending this action.
The parties are hereby advised that, pursuant to 28, United States Code, Section 686(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal.
Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985),
reh’g denied,
474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986);
United States v. Schronee,
727 F.2d 91 (4th Cir.),
cert. denied,
467 U.S. 1208, 104 S.Ct. 2395, 81 L.Ed.2d 352 (1984).
This Memorandum and Recommendation is entered in response to defendant Vitalink Pharmacy Services, Inc.’s Motion for Summary Judgment (#42), defendant Mohr Partner, Inc.’s Motion for Summary Judgment (# 44), defendants Beverly-Hanks & Associates, Inc.’s and Robin A. Boylan, Jr.’s Motion for Summary Judgment (# 54), and a Motion to Amend contained within plaintiffs response (# 52).
June 20, 2000.