Anderson v. Moore , 53 N.C. App. 350 ( 1981 )

ARNOLD, Judge.

Plaintiffs’ sole assignment of error is that the trial court erred in granting summary judgment in favor of the defendants. The party moving for summary judgment has the burden of establishing the lack of a triable issue of material fact by the record properly before the court. Rendition of summary judgment is conditioned upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972).

Plaintiffs allege that defendant Moore fraudulently misrepresented material facts concerning the transfer of shares from the plaintiffs to the defendants with the intention of deceiving them and depriving them of their ownership and control of Concrete Products Company without adequate consideration. More specifically, they allege that prior to entering into the 6 August 1962 agreement, defendant Moore represented to them that they would be financially more secure if they would exchange their shares of common stock for preferred stock, and purposely concealed that the exchange would cause them to forfeit all voting rights and would establish the monetary sum they would receive for their stock when they sold it pursuant to the agreement at the death of E. S. Street.

The parties agree that the 6 August 1962 agreement controls the determination of this action. Plaintiffs contend that they understood the agreement to provide that the conversion of their common stock into preferred was to be at the fair market value of the common stock. The defendants contend that the parties understood that the contract called for conversion from common into preferred stock for book value in 1962, and a sale of the preferred stock at the death of E. S. Street. For the reasons that follow, we find that the defendants, as movants for summary judgment, have shown that there are no genuine issues of material fact as to the alleged fraud and that they are entitled to judgment as a matter of law.

To make out an actionable case of fraud plaintiffs must show: (a) that the defendant made a representation relating to some material past or present fact; (b) that the representation was false; (c) that when he made it defendant knew it was false or he made positive assertions recklessly without any knowledge of their truth; (d) that the defendant made the false representation with the intention that it should be acted on by the plaintiff; (e) that the plaintiff reasonably relied upon the representation and acted upon it; and (f) that the plaintiff suffered injury. Odom v. Little Rock & I-85 Corporation, 299 N.C. 86, 261 S.E. 2d 99 (1980). A thorough review of the deposition of Sophie Anderson reveals that defendant Moore made no representations that constitute actionable fraud.

Mrs. Anderson testified that Mr. Moore made several statements to the effect that their future was secure, and that they “would have so much money they wouldn’t know what to do.” She further testified that she understood the main terms of the agreement, except she thought the value of the preferred stock would be established at the time her father died rather than at the time it was issued, and that no one told her it would be valued at the later time, but she and her mother “just assumed it.” She specifically stated that Don Moore never told them anything and that she and her mother signed what her father told them to sign.

It is apparent that the plaintiff either knew the nature of the transaction or relied upon her father’s representations. There is no evidence that the defendants intentionally or recklessly made fraudulent misrepresentations upon which plaintiff relied. Moreover, there is no evidence in the record that the stock was worth more than the sum defendant Moore paid for it. Since there are no genuine issues of material fact as to the essential elements of actionable fraud, and plaintiffs have failed to make out a prima facie case, the defendants are entitled to judgmént as a matter of law. The judgment of the trial court granting summary judgment in favor of the defendants therefore is affirmed.

Affirmed.

Judges Vaughn and Becton concur.