Johnson v. Phoenix Mut. Life Ins. Co. , 44 N.C. App. 210 ( 1979 )

261 S.E.2d 135 (1979) 44 N.C. App. 210

Roy H. JOHNSON, W. Connette Johnson, Forrest H. Harmon, Lewis E. Lamb, Jr., and Alvin A. Sturdivant, Jr., d/b/a Kerners Village Company
v.
PHOENIX MUTUAL LIFE INSURANCE COMPANY and Cameron-Brown Company.

No. 7821SC1130.

Court of Appeals of North Carolina.

December 18, 1979.

Badgett, Calaway, Phillips, Davis & Montaquila by Chester C. Davis, Winston Salem, for plaintiffs-appellants.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by John L. Jernigan and Raymond H. Goodmon, III, Raleigh, for defendant-appellee Cameron-Brown Co.

Cansler, Lockhart, Parker & Young, P.A. by Thomas Ashe Lockhart and George K. Evans, Jr., Charlotte, for defendant-appellee Phoenix Mut. Life Ins. Co.

WELLS, Judge.

The single issue presented in this appeal is whether the trial court erred in granting defendants' motions for summary judgment. Summary judgment is appropriate only "if 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 any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c); Cox v. Funk, 42 N.C.App. 32, 255 S.E.2d 600 (1979).

"Summary judgment is apt to be inappropriate in an action based on a complex scheme of fraud where the court is asked to decide the motion on lengthy affidavits and documents and voluminous depositions." 6 Moore's Federal Practice ¶ 56.17[27], p. 866 (2d ed. 1979). The case before us is precisely such an action. Plaintiffs contend that Mullins' statement as to the ease with which plaintiffs could substitute other tenants for the minor tenants which would have to be listed in the loan commitment were false and fraudulent. The essential elements of actionable fraud require that there be a material misrepresentation that: 1) relates to a past or existing fact; 2) is definite and specific; 3) was made with knowledge of its falsity or culpable ignorance of its truth; 4) was made with the intention that it should be acted upon; and 5) causes reasonable reliance on the part of the recipient of the misrepresentation to his detriment. Rosenthal v. Perkins, 42 N.C.App. 449, 257 S.E.2d 63 (1979). In order for each defendant to prevail on its Rule 56 motion each must show that evidence of one or more of the above elements of fraud is unavailable to the plaintiffs. Russo v. Mountain High, Inc., 38 N.C.App. 159, 247 S.E.2d 654 (1978).

The depositions before the trial court show a sufficient forecast of evidence that: 1) agent Mullins of Cameron had told KVC that their having secured Lowe's, Revco, Macks and Goodyear as tenants was sufficient for Phoenix to make the permanent loan and that the other tenants would be no problem; 2) Mullins intended that KVC rely on this representation and advance funds towards the project's completion; 3) KVC's attempts to obtain other tenants proved difficult under the loan commitment of 20 July 1973; 4) Mullins knew, or had reason to believe, that the commitment was conditioned on leases which had not been, and might never be, negotiated, especially the bank lease; 5) KVC entered into a construction loan agreement with NCNB which required KVC to comply with the terms of its commitment with Phoenix and NCNB insisted that KVC comply with that part of the Phoenix commitment requiring KVC to have a ground lease with the Bank of North Carolina; and 6) because KVC was unable to satisfy Phoenix, NCNB refused to advance construction funds and Phoenix subsequently exercised its option to terminate the loan commitment.

The depositions, based on first-hand knowledge of two of KVC's officers, reveal that Cameron, through agent Mullins, had represented to plaintiffs that substitution would be no problem. According to Lewis E. Lamb, Jr., at the time KVC submitted its original loan application:

. . . Mr. Mullins reviewed the progress of the loan and he said, "You have secured the four major tenants, which is our primary interest." The four major tenants were Lowe's, Revco, Macks and I believe Goodyear. There was some discussion of the minor tenants, at which time we had some discussion of our negotiations with Sears, but he (Mullins) said that was of no consequence. He (Ralph W. Mullins) said whoever your local, or minor, tenants are, that is—I can't recall if the word substitution was used, or something to that effect. Anyway, . . . what he was conveying was that . . . the loan was not contingent on the . . . smaller leases. He said, "you have gotten your four majors, [and] I have no reason to think that the loan will not . . . go through."

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At the first meeting, Mullins said these four major tenants were acceptable for the progress of the loan (i. e., the permanent financing for this shopping center.)

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Q. (Lockhart): So, when you signed Exhibit One (the July 20, 1973 loan commitment), you knew, and you were on notice, that if you and your associates did not have all of these leases specified in Paragraph Nine, that Phoenix would not have any obligation to make that loan, didn't you?

A. No, I didn't because Mr. Mullins had told me differently.

Q. Different from what you see in that letter there?

A. Yes.

Similarly, in his deposition Roy Johnson stated that at the time the KVC partners signed the loan commitment from Phoenix of 20 July 1973:

Well, we didn't have [the] Sears Store. We didn't have a bank. We may or may not ever get Sears. That's what we knew at that time. But we did have four credit tenants with 73 percent of our space leased and substitutions were not a great problem in the minds of Ralph W. Mullins or ourselves . . . . Well, let me restate that. He led us to believe that there was no problem and he was the expert.

There can be no doubt that this representation was material and specific.

There is also ample evidence that Mullins knew or had reason to believe that his representation as to the ease of substitution was false. Roy Johnson stated in his deposition that on 27 November 1973, at the time Phoenix offered to amend its previous loan commitment, "we had been assured by the people at Cameron-Brown that this would be one of the contingencies that would be taken out [of the commitment]." Nonetheless, Osmers, Phoenix's agent, stated:

Q. (Davis): When was the first time that Mr. Mullins mentioned having a problem with the bank lease or of taking the bank requirement out of the loan commitment, do you recall?

A. Never was mentioned at any time. . . . Never had any telephone conversations at all about the bank lease.

Osmers also stated in his deposition the importance of the bank ground lease to Phoenix:

Q. And it was a matter of significance to the company in approving this project for a loan to have a bank at the facility where the shopping center would be?

A. That's right . . . . The bank has stability, and they are considered usually good tenants, and in this instance, they were going to build their own improvements. . . .

Q. It wasn't just the annual rent that the bank would produce, it was the character and nature of the banking business and the fact that the bank would be building its own improvements that would have value to the project?

A. That's right.

There was also evidence that Cameron was unaware of the problem with the bank until a later date, that some substitutions were routinely granted by lenders such as Phoenix and that Roy Johnson's personal knowledge of the events to which he testified during the deposition was limited. The previous testimony, however, was sufficient to raise a material issue of fact as to whether Mullins intentionally deceived plaintiffs or made culpably ignorant representations.

The existence of fraud necessarily involves a question concerning the existence of a fraudulent intent on the part of the party accused of such fraud. The intent of a party is a state of mind generally within the exclusive knowledge of that party and, by necessity, must be proved by circumstantial evidence. Summary judgment is generally inappropriate under such circumstances.

Bank v. Belk, 41 N.C.App. 328, 339, 255 S.E.2d 430, 437 (1979).

We have been discussing the elements of actual fraud. Since the record contains evidence of an agency relationship between KVC and Cameron, that KVC placed great reliance on Mullins' representations, and that Cameron was deeply involved in the negotiations between KVC and Phoenix, we cannot say that, as a matter of law, no confidential or fiduciary relationship was established between KVC and Cameron. If Cameron should be found to have been KVC's agent, Cameron was a fiduciary. Vail v. Vail, 233 N.C. 109, 63 S.E.2d 202 (1951). As such, Cameron could be found to have committed "constructive fraud" even in the absence of actual dishonesty or intent to defraud. Priddy v. Lumber Co., 258 N.C. 653, 129 S.E.2d 256 (1963).

There can be no dispute that the depositions provided ample evidence to show Mullins intended that KVC risk a great deal of the partners' capital in reliance on his representations that a loan would be forthcoming from Phoenix, or that large sums were lost by KVC when the project fell through. Under these circumstances the reasonableness of KVC's reliance on Mullins' alleged misrepresentations became a question to be resolved by the trier of fact. See, Johnson v. Lockman, 41 N.C.App. 54, 254 S.E.2d 187 (1979), disc. rev. denied, 297 N.C. 610, 257 S.E.2d 436 (1979). Similarly, it cannot be said that as a matter of law Mullins' alleged assurances regarding the availability of substitutions were merely opinions of what future action Phoenix would take with respect to KVC's requests to substitute, as contended by Cameron, which would render any such misrepresentations inactionable. See, e. g., Myrtle Apartments v. Casualty Co., 258 N.C. 49, 127 S.E.2d 759 (1962). Given the expressed reliance by KVC on Mullins' expertise, a reliance which the evidence shows was encouraged by Mullins, Mullins' representations were factual in nature, an explanation of the terms and conditions of the commitment KVC was considering accepting from Phoenix, based on Mullins' prior experience.

On motion for summary judgment we cannot say that Phoenix's substitute loan commitment offer of 17 June 1974, which did not include a bank or Sears, but which stated a higher annual interest rate, plus a $250,000 "hold back" of funds by Phoenix unless certain conditions were met by plaintiffs, was sufficient to preclude plaintiffs from suffering any loss as a result of Mullins' alleged misrepresentations. Nor do we agree with defendant Cameron's contention that because the plaintiffs never found any substitute tenants to replace Sears and the Bank of North Carolina, any misrepresentation which Cameron may have made with respect to the ease of substitution was not a cause of the decisions of Phoenix and NCNB to cancel their respective loan commitments. The point is that from the depositions before the trial court, plaintiffs have shown a sufficient forecast of evidence showing difficulty in obtaining permission from Phoenix to substitute anyone other than a bank for the Bank of North Carolina. This evidence is sufficient to show that plaintiffs were fraudulently misled or misinformed by Cameron as to the extent of this difficulty. Plaintiffs, to survive defendant Cameron's motion for summary judgment, are not required to go through the mere formality of obtaining actual substitute tenants who would ultimately be rejected by Phoenix.

Neither are we convinced by defendant Cameron's argument that plaintiffs' damages were caused solely by NCNB's cancellation of its construction loan agreement. Under the specific terms of plaintiffs' commitment with NCNB, plaintiffs' construction loan was conditioned upon plaintiffs'" faithful and timely compliance with all the terms and conditions of [its] commitment [with Phoenix]." Phoenix cancelled its commitment to make a permanent loan on grounds that KVC had not obtained a construction loan. There is certainly a question of fact whether NCNB would have had the right to terminate its construction loan agreement with plaintiffs if substitution for the Bank of North Carolina had been expeditiously permitted by Phoenix under the loan commitment between Phoenix and plaintiffs.

If plaintiffs were induced to employ defendant Cameron by fraudulent misrepresentations as to the ease of substitution for KVC's tenants, Cameron would be precluded by its conduct from retaining the $13,000 "placement fee" it had collected from plaintiffs. Tuggle v. Haines, 26 N.C.App. 365, 216 S.E.2d 460 (1975), cert. denied, 288 N.C. 253, 217 S.E.2d 681 (1975). The "placement fee" was clearly in the nature of a commission for obtaining a lender for KVC's permanent loan.

Although we have determined that the depositions presented a sufficient forecast of evidence available to plaintiffs showing that Cameron, through its agent Mullins, could have deceived and misled plaintiffs, there is no such evidence against Phoenix. All of the evidence adduced shows that Phoenix acted wholly within its contractual prerogative in cancelling its commitment with the plaintiffs. There was no forecast of evidence produced by plaintiffs in support of their allegation of collusion between Phoenix and Cameron to force plaintiffs to abandon their project. Nor was there any evidence produced of misconduct on the part of Phoenix.

Furthermore, from the uncontradicted deposition of Phoenix's agent, Osmers, Phoenix did not pay Cameron any commission or fee for placing the KVC loan and there was no apparent contractual or agency relation between Phoenix and Cameron. Accordingly, summary judgment for Phoenix on both plaintiffs' first cause of action concerning fraud as well as their second cause of action under Chapter 75 of the North Carolina General Statutes was properly granted by the trial court. Similarly, the record fails to show any evidence of Phoenix's willingness to cancel its original loan commitment unless the plaintiffs would enter into a substitute commitment. Under these circumstances there was no "mutual cancellation" of the original loan commitment, and summary judgment for defendant Phoenix was properly granted on plaintiffs' third cause of action. See, Vickery v. Fisher Governor Co., 417 F.2d 466 (9th Cir. 1969).

The trial court also dismissed plaintiffs' second cause of action against defendant Cameron brought pursuant to Chapter 75 of the North Carolina General Statutes. On 14 June 1977, at the time plaintiffs filed their complaint in this action, G.S. 75-1.1 provided in pertinent part:

(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.

(b) The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State.

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(d) Any party claiming to be exempt from the provisions of this section shall have the burden of proof with respect to such claim.

G.S. 75-1.1(a) and (b) were subsequently rewritten, effective as to actions commenced on or after 27 June 1977, to state:

(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.

(b) For the purposes of this section, "commerce" includes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.

1977 N.C.Sess.Laws, ch. 747. The amendment, effective two weeks after the present action was filed, is not applicable here.

Since we have held that there was sufficient evidence of fraud to withstand defendant Cameron's motion for summary judgment, this evidence would likewise be sufficient to constitute an unfair or deceptive act under G.S. 75-1.1(a). Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975). Cameron, however, argues that prior case law and the qualifying language of G.S. 75-1.1(b) referring to "buyers and sellers" renders Chapter 75 inapplicable to the present action. We do not agree.

We have previously held that a real estate agency was engaged in "trade or commerce" within the purview of G.S. 75-1.1(a). Rosenthal v. Perkins, 42 N.C.App. 449, 257 S.E.2d 63 (1979). Similarly, a Federal court applying North Carolina substantive law has held that Chapter 75, as this statute was worded prior to the 1977 amendments, was applicable to the sale of insurance. Ray v. Insurance Co., 430 F. Supp. 1353 (W.D.N.C.1977). We hold that defendant Cameron was engaged in the commerce or trade of selling its services as a loan finder for plaintiffs' permanent loan, and as such, was regulated by Chapter 75. Our Supreme Court's decision in State ex rel. Edmisten v. Penney, Co., 292 N.C. 311, 233 S.E.2d 895 (1977), holding Chapter 75 inapplicable to debt collection practices, is factually distinguishable from the present action. In light of the General Assembly's action amending the statute virtually immediately after the J. C. Penney opinion was filed, we believe the Court's holding in that case should be narrowly construed.

Defendant Cameron also argues that plaintiffs' claims for fraud and under Chapter 75 are barred by the statute of limitations. The three-year statute is applicable to both causes of action. G.S. 1-52(9); Holley v. Coggin Pontiac, Inc., 43 N.C.App. 229, 259 S.E.2d 1 (1979). However, the statute accrues from the time a reasonable person would be put on notice of the facts constituting fraud. Driggers v. Commercial Credit Corp., 31 N.C.App. 561, 230 S.E.2d 201 (1976). Whether a plaintiff should have discovered these facts more than three years prior to the institution of the action is ordinarily for the jury to decide. Huss v. Huss, 31 N.C.App. 463, 230 S.E.2d 159 (1976).

In the present action there is evidence that plaintiffs only gradually became aware of the difficulty of substitution. We do not agree with defendant Cameron that, as a matter of law, plaintiffs were aware of the difficulty of substitution by 23 May 1974, the date NCNB terminated its construction loan commitment with plaintiffs. The record provides evidence that at that point in time Phoenix was preparing a proposal that would have deleted Sears and any bank from the loan commitment. A jury could reasonably find that plaintiffs could not have been expected to discover the fraud until after they realized the terms under which Phoenix would permit substitution.

We affirm the trial court's award of summary judgment as to defendant Phoenix on all plaintiffs' claims, and reverse the granting of defendant Cameron's motion for summary judgment as to plaintiffs' claims for fraud, violation of G.S. 75-1.1 and the return of plaintiffs' placement fee.

Affirmed in part and reversed in part.

ERWIN, J., concurs.

CLARK, J., dissents.

CLARK, Judge, dissenting:

The majority concludes that Mullins of Cameron-Brown falsely represented to the KVC partners that "substitution would be no problem."

Assuming that this conclusion is supported by the depositions of the partners and that it was a representation of subsisting fact rather than an opinion or promissory representation, it must be considered in light of the circumstance that Cameron-Brown was a loan broker without any duty to solicit and obtain tenants to occupy space in the Kerners Village project. Nor is there anything in the representation that would relieve the KVC partners of the duty to make a reasonable effort to obtain tenants acceptable to Phoenix. Subsequent to the so-called misrepresentation Phoenix did allow `Pic-'N-Pay as a substitution for Sears with no problem to the partners. The statement in the majority opinion that "it cannot be said as a matter of law Mullins' alleged assurances regarding the availability of substitutions" (emphasis added) indicates to me that the representation was interpreted to mean that acceptable tenants were readily available rather than that acceptable tenants obtained by the partners could be substituted with ease or with no problem. That the partners did not find such tenants available does not have the retroactive effect of making Mullins' statements a misrepresentation which would constitute an element of actual fraud. Nor does the failure of the partners to find acceptable substitute tenants create a breach by Mullins of a fiduciary duty to disclose all material facts so as to constitute constructive fraud. It is my opinion that all defendants carried the burden of establishing that there was no material issue of facts on plaintiffs' claims for fraud or for violation of G.S. 75-1.1, and I would affirm the summary judgment in favor of all defendants.