NELSON PAGE TUCKER,
Plaintiff
v
.
THE BOULEVARD AT PIPER GLEN LLC,
Defendant
Weaver, Bennett & Bland, P.A., by Michael David Bland and
Joseph T. Copeland, for plaintiff-appellant-appellee.
Robinson, Bradshaw & Hinson, P.A., by Thomas Holderness, for
defendant-appellee-appellant.
HUNTER, Judge.
Nelson Page Tucker (“plaintiff”) appeals from the trial
court's 12 April 2001 order granting summary judgment in favor of
The Boulevard at Piper Glen LLC (“defendant”), and defendant
appeals from the same order denying defendant's motion for
sanctions. We affirm the grant of defendant's motion for summary
judgment, and we remand to the trial court for entry of findings
and conclusions in support of its denial of defendant's motion for
sanctions.
On 20 April 2000, plaintiff filed the complaint in this action
alleging that defendant had engaged in an unfair and deceptive
practice. The complaint sets forth the following factual
allegations: that plaintiff and defendant entered into a contracton 15 July 1998 whereby defendant agreed to construct and sell to
plaintiff a townhouse for the cost of $344,900.00; that plaintiff's
willingness to enter into the contract was based, in part, upon
defendant's verbal and written representations that the townhouse
would have a “dramatic,” “unparalleled,” and “panoramic” view
“overlooking the ninth green of the Piper Glen RPC Course”; that
the townhouse, once constructed, offered a view of the golf course
that was partially obscured by “a large number of trees”; that
plaintiff complained to defendant about the obscured view but
defendant refused to reduce the sales price; that plaintiff closed
on the purchase of the townhouse at the agreed price of
$344,900.00; that defendant knew or should have known that the
townhouse as constructed would not offer the kind of view that
defendant represented and promised it would offer; and that, as a
result of defendant's misrepresentations, plaintiff suffered
damages in excess of $75,000.00 because the townhouse, as
constructed, was worth no more than $269,900.00 at the time of
closing.
During discovery, plaintiff responded to defendant's request
for admissions and admitted that in August of 1999, the townhouse
had been appraised by “plaintiff's lender” at a value of
$362,500.00, and that this appraisal was available to plaintiff
prior to closing on the sale of the townhouse. At his deposition,
plaintiff testified that he believed the townhouse was worth at
least $350,000.00 at the time of closing (31 August 1999), and that
he had been willing to close on the townhouse, and to accept thepartially obstructed view, because he believed the property was a
“sound investment.” He further testified that he believed the
townhouse would be worth an additional $75,000.00 if the view were
unobstructed, and that this belief was merely his own assumption
and was not based upon any appraisal of the property. In addition,
plaintiff was specifically asked about his allegation in the
complaint that the townhouse was worth no more than $269,900.00 at
the time of closing:
Q. So when you told the court that your home
was worth no more than $269,900, you
didn't really mean that?
A. Right, I'm just using the value minus
what I think the view is worth.
Based upon plaintiff's admissions and his deposition
testimony, defendant moved for summary judgment pursuant to Rule 56
of the North Carolina Rules of Civil Procedure, N.C. Gen. Stat. §
1A-1, Rule 56 (1999) (“Rule 56”), and for sanctions pursuant to
Rule 11 of the North Carolina Rules of Civil Procedure, N.C. Gen.
Stat. § 1A-1, Rule 11 (1999) (“Rule 11”). In response, plaintiff
submitted an affidavit from himself alleging that he has suffered
damages of $50,000.00 to $75,000.00 as a result of the partially
obstructed view. He also submitted an affidavit from a
professional appraiser alleging that the townhouse would be worth
approximately $45,000.00 more if it had an unobstructed view.
Following a hearing on defendant's motions, the trial court granted
summary judgment in favor of defendant but denied defendant's
motion for Rule 11 sanctions. Plaintiff and defendant both appeal. On appeal, plaintiff assigns error to the trial court's grant
of summary judgment in favor of defendant. We hold that the trial
court did not err in granting summary judgment here because the
facts are not in dispute, and because the evidence produced during
discovery establishes that defendant's conduct does not constitute
an unfair or deceptive practice as a matter of law.
Section 75-1.1 of our General Statutes provides that “unfair
or deceptive acts or practices in or affecting commerce” are
unlawful. N.C. Gen. Stat. § 75-1.1(a) (1999). “'Under N.C. Gen.
Stat. § 75-1.1, the question of what constitutes an unfair or
deceptive trade practice is an issue of law.'” Eastover Ridge,
L.L.C. v. Metric Constructors, Inc., 139 N.C. App. 360, 363, 533
S.E.2d 827, 830 (2000) (citation omitted). Although a court
generally determines whether an act or practice is unfair or
deceptive based upon the jury's findings, a court may grant summary
judgment if the facts are not disputed and the moving party is
entitled to judgment as a matter of law. Id. A defendant moving
for summary judgment bears the burden of showing that: (1) an
essential element of plaintiff's claim is nonexistent; (2)
discovery indicates plaintiff cannot produce evidence to support an
essential element; or (3) plaintiff cannot surmount an affirmative
defense. Id. “Once a defendant has met that burden, the plaintiff
must forecast evidence tending to show a prima facie case exists.”
Id. Here, plaintiff is unable to establish at least two essential
elements of his claim. “To establish a prima facie claim for unfair trade practices,
the plaintiff must show: (1) 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.” Pleasant Valley Promenade v. Lechmere, Inc., 120
N.C. App. 650, 664, 464 S.E.2d 47, 58 (1995) (citation omitted).
Where an unfair or deceptive practice claim is based upon an
alleged misrepresentation by the defendant, the plaintiff must show
“actual reliance” on the alleged misrepresentation in order to
establish that the alleged misrepresentation “proximately caused”
the injury of which plaintiff complains. Id. Here, plaintiff's
claim is based upon the allegation that defendant represented that
the townhouse would have a “dramatic,” “spectacular,” and
“panoramic” view. However, the “Purchase and Sale Agreement”
entered into by plaintiff and defendant, which does not include any
such descriptions of the townhouse view, includes the following
provision: “Neither party is relying on any statement or
representation made by or on behalf of the other party that is not
set forth in this Agreement.” Thus, discovery indicates that
plaintiff cannot produce evidence to support the essential element
of “actual reliance” by plaintiff upon the alleged
misrepresentations of defendant.
Discovery also indicates that plaintiff cannot produce
evidence to support the essential element of some injury or damage
proximately caused by defendant's allegedly unfair or deceptive
acts. In his complaint, plaintiff alleges that he has suffereddamages in excess of $75,000.00 because he paid $344,900.00 for the
townhouse when it was worth no more than $269,900.00 at closing.
However, during his deposition, plaintiff acknowledged that his
townhouse was worth at least $350,000.00 at closing. By his
affidavit submitted in response to defendant's motion for summary
judgment, plaintiff now appears to contend that, although his
townhouse at closing was, in fact, worth more than what he paid for
it, plaintiff had expected at the time he entered into the contract
to pay $344,900.00 for a townhouse that would be worth closer to
$400,000.00 at closing. In other words, plaintiff essentially
complains that his townhouse at closing was worth only slightly
more than what he paid for it instead of being worth a lot more
than what he paid for it. These allegations fail to establish that
plaintiff has suffered any legally cognizable damage as a result of
defendant's acts. For these reasons, we affirm the trial court's
grant of summary judgment.
Defendant also appeals from the trial court's order, arguing
that the trial court erred in denying defendant's motion for Rule
11 sanctions. A trial court's decision to grant or deny a motion
to impose sanctions is reviewable de novo as a legal issue. See
Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714
(1989), disc. review denied, 329 N.C. 505, 407 S.E.2d 552 (1991).
This de novo review requires the court to determine: (1) whether
the findings of fact of the trial court are supported by a
sufficiency of the evidence; (2) whether the conclusions of law are
supported by the findings of fact; and (3) whether the conclusionsof law support the judgment. Id. “As a general rule, remand is
necessary where a trial court fails to enter findings of fact and
conclusions of law regarding a motion for sanctions pursuant to
Rule 11.” Sholar Bus. Assocs. v. Davis, 138 N.C. App. 298, 303,
531 S.E.2d 236, 240 (2000). “'However, remand is not necessary
when there is no evidence in the record, considered in the light
most favorable to the movant, which could support a legal
conclusion that sanctions are proper.'” Id. at 304, 531 S.E.2d at
240 (citation omitted).
In the present case, the trial court did not make any findings
of fact or conclusions of law in support of its denial of
defendant's motion for Rule 11 sanctions. Defendant's motion for
sanctions was based upon the contention that plaintiff's complaint,
which alleges that the townhouse was worth no more than
$269,900.00 at the time of closing, was not well grounded in fact.
For purposes of Rule 11, a complaint is considered factually
insufficient if either (1) the plaintiff failed to undertake a
reasonable inquiry into the facts, or (2) the plaintiff, after
reviewing the results of his inquiry, could not have reasonably
believed that his position was well grounded in fact. See, e.g.,
Golds v. Central Express, Inc., 142 N.C. App. 664, 669, 544 S.E.2d
23, 27 (2001).
Here, plaintiff admitted during discovery that in August of
1999, the townhouse had been appraised by “plaintiff's lender” at
a value of $362,500.00, and that this appraisal was available to
plaintiff prior to closing. Furthermore, at his deposition,plaintiff testified that he believed the townhouse was worth at
least $350,000.00 at the time of closing. He also testified that
he believed the townhouse would be worth an additional $75,000.00
if the view were unobstructed, but admitted that this belief was
merely his own assumption and was not based upon any appraisal of
the property. In addition, plaintiff was specifically asked about
his allegation in the complaint that the townhouse was worth no
more than $269,900.00 at the time of closing:
Q. So when you told the court that your home
was worth no more than $269,900, you
didn't really mean that?
A. Right, I'm just using the value minus
what I think the view is worth.
Considering the record in the light most favorable to defendant, we
find at least some evidence that might support an award of
sanctions. Therefore, we believe it is necessary to remand the
case to the trial court for entry of findings and conclusions in
support of its denial of defendant's motion for Rule 11 sanctions.
For the reasons stated herein, we affirm the trial court's
grant of summary judgment in favor of defendant, and we remand to
the trial court for entry of findings and conclusions in support of
its denial of defendant's motion for sanctions.
Affirmed in part and remanded in part.
Judges GREENE and TIMMONS-GOODSON concur.
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