Widener v Widener, (02-1242) 08/05/2003

Appeal by defendant from order dated 14 May 2002 by Judge Andrew R. Hassell in District Court, Guilford County. Heard in the Court of Appeals 5 June 2003.

Douglas, Ravenel, Hardy, Crihfield & Hoyle, L.L.P., by Eric A. Halus and G.S. Crihfield, for plaintiff-appellee.

Michelle D. Reingold for defendant-appellant.

    McGEE, Judge.

    Robert Lee Widener, Jr. (plaintiff) filed a complaint for absolute divorce on 19 April 2001. Delena Carter Widener (defendant) filed an answer and counterclaim that included allegations of breach of fiduciary duty, fraud, unconscionability, duress, and coercion. A divorce judgment was entered on 12 July 2001.
    Plaintiff filed a reply to the counterclaim on 17 September 2001. He filed a motion for summary judgment with a supporting affidavit on 15 March 2002. Defendant filed an affidavit with the trial court on 2 May 2002. After a hearing, the trial court granted plaintiff's motion for summary judgment on 16 May 2002. Defendant appeals.
            Summary judgment should be rendered only when the pleadings, depositions, answers to interrogatories, admissions, and affidavits disclose no genuine issue of material fact entitling the moving party to judgment as a matter of law. If an issue of material fact exists, then the trial court should not grant summary judgment. The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact.

Thomco Realty, Inc. v. Helms, 107 N.C. App. 224, 226, 418 S.E.2d 834, 835-36, disc. review denied, 332 N.C. 672, 424 S.E.2d 407 (1992) (citation omitted).
        "The movant 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. at 228, 418 S.E.2d at 837 (quoting Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)).
    Defendant first argues the trial court erred in granting plaintiff's motion for summary judgment where there was a genuine issue of material fact regarding a confidential and fiduciary relationship between the parties. Plaintiff points out in his brief that defendant failed to properly assign error on the issue of fiduciary duty and therefore did not preserve this argument for appellate review. This Court's scope of review on appeal is limited to consideration of those assignments of error properly set in the record on appeal. N.C.R. App. P. 10(a). Assignments of error "shall, so far as practicable, be confined to a single issueof law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned." N.C.R. App. P. 10(c)(1). An assignment of error should direct the Court's attention to the particular error about which the argument is made. Id. In the case before us, no assignment of error corresponds with the argument presented by defendant regarding fiduciary duty. Accordingly, this argument is not properly before this Court for consideration and is dismissed. See State v. Thomas, 332 N.C. 544, 553-54, 423 S.E.2d 75, 80 (1992), overruled on other grounds, State v. Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998), cert. denied, Richmond v. North Carolina, 525 U.S. 843, 142 L. Ed. 2d 88 (1998).
    Defendant next argues the trial court erred in granting summary judgment for plaintiff where there were genuine issues of material fact regarding fraud. "Separation [and] property settlement agreements are contracts and as such are subject to recission on the grounds of (1) lack of mental capacity, (2) mistake, (3) fraud, (4) duress, or (5) undue influence." Sidden v. Mailman, 137 N.C. App. 669, 675, 529 S.E.2d 266, 270 (2001).
            The essential elements of fraud in the inducement are: (i) that defendant made a false representation or concealed a material fact he had a duty to disclose[;] (ii) that the false representation related to a past or existing fact; (iii) that defendant made the representation knowing it was false or made it recklessly without knowledge of its truth; (iv) that defendant made the representation intending to deceive plaintiff; (v) that plaintiff reasonably relied on the representation and acted upon it; and (vi) plaintiff suffered injury.
Harton v. Harton, 81 N.C. App. 295, 298-99, 344 S.E.2d 117, 119-20, disc. review denied, 317 N.C. 703, 347 S.E.2d 41 (1986).
    Defendant alleged in her counterclaim that plaintiff failed to disclose the balances of accounts at Wachovia and the existence and balances of various other accounts and assets. The record indicates that the only evidence in support of defendant's counterclaim was contained in her affidavit. Defendant's affidavit states that plaintiff failed to disclose the "[b]alances of accounts at Wachovia in Plaintiff's name that contained marital funds," but there is no forecast of evidence as to the amount of those funds or the injury defendant suffered as a result of plaintiff's failure to disclose.

        [A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

N.C. Gen. Stat. § 1A-1, Rule 56(e) (2001).
    Defendant's affidavit simply restates the allegations of her counterclaim and fails to set forth specific facts demonstrating an injury for which she is entitled to relief. An examination of the record shows that defendant has failed to produce any evidence that she suffered injury from plaintiff's failure to disclose the balances of the Wachovia accounts or the existence and value of other accounts and assets. The record further fails to show that defendant attempted to conduct discovery or otherwise submit evidence regarding the amount of the undisclosed funds in theWachovia accounts. Defendant's mere speculation that the division of property might have been unequal due to fraudulent conduct by plaintiff is insufficient absent some showing of evidence of injury. See Johnson v. Scott, 137 N.C. App. 534, 537, 528 S.E.2d 402, 404 (2000) (stating that once the moving party has met its burden, the party opposing summary judgment must present specific facts and not mere allegations or speculation). Absent a forecast of evidence showing that defendant has suffered an injury in reliance upon plaintiff's representations, defendant's counterclaim for fraud fails. This assignment of error is without merit.
    Defendant also argues the trial court erred in granting summary judgment for plaintiff where there was a genuine issue of material fact regarding duress and coercion. "Coercion" is defined as "compelling by force or arms or threat." Black's Law Dictionary 258 (6^th ed. 1990). Duress is the result of coercion and occurs where a party is induced through the unlawful acts of another to execute a contract under circumstances that deprive the coerced party of the exercise of free will. Stegall v. Stegall, 100 N.C. App. 398, 401, 397 S.E.2d 306, 307-08 (1990), disc. review denied, 328 N.C. 274, 400 S.E.2d 461 (1991). Duress may exist even though the victim may be completely aware of all material facts relating to the victim's decision. Id.
    Defendant stated in her affidavit that plaintiff demanded that defendant sign the separation agreement
        in a more emotional and forceful way than Plaintiff had ever done before with Defendant and used his influence over [defendant] to coerce her into signing the SeparationAgreement without consulting an attorney or truly negotiating the terms of the agreement.

Once again, defendant's affidavit simply restated the allegations in her counterclaim and failed to set forth specific facts for trial. An examination of the record fails to show any further evidence of duress or coercion that deprived defendant of her exercise of free will in signing the separation agreement. Defendant's restatement of her allegations are insufficient to demonstrate a genuine issue of material fact regarding defendant's claim of duress and coercion and therefore plaintiff was entitled to summary judgment. This assignment of error is without merit.
    Defendant next argues that the trial court erred in granting summary judgment for plaintiff when a genuine issue of material fact existed regarding the unconscionability of the separation agreement. A separation agreement is unenforceable if the terms are unconscionable. King v. King, 114 N.C. App. 454, 457, 442 S.E.2d 154, 157 (1994). In order to determine that a contract is unconscionable, this Court must find that the agreement was both substantively and procedurally unconscionable. Sidden, 137 N.C. App. at 675, 529 S.E.2d at 271. Procedural unconscionability involves fraud, coercion, duress, undue influence, inadequate disclosure, and misrepresentation in the formation of the contract. King, 114 N.C. at 458, 442 S.E.2d at 157. Substantive unconscionablility involves harsh, one-sided, and oppressive terms of a contract. Id. However, the inequality of the bargain must be "'so manifest as to shock the judgment of a person of common sense, and . . . the terms . . . so oppressive that no reasonable personwould make them on the one hand, and no honest and fair person would accept them on the other.'" Id. (quoting Brenner v. School House, Ltd., 302 N.C. 207, 213, 274 S.E.2d 206, 210 (1981)).
    An examination of the record shows that defendant has failed to offer evidence that demonstrates a genuine issue of material fact regarding her claim of unconscionability. Defendant must produce evidence of specific facts that supports her claim that the terms of the separation agreement she entered into were unconscionable. Defendant offers no evidence of the amount of the undisclosed funds in the bank accounts or of an inequality in the bargain reached between the parties. Defendant's restatement of her allegations in her affidavit and mere speculation that the agreement might be unconscionable due to the non-disclosure is insufficient to survive a motion for summary judgment absent some showing of evidence of an inequality of the bargain. Additionally, we have already held that defendant forecast no evidence of an injury for which she would be entitled to relief. Since there was no evidence in the record that the separation agreement was unconscionable to defendant, plaintiff was entitled to summary judgment on this issue. This assignment of error is without merit.
    We hold that the evidence shows there is no genuine issue of material fact regarding defendant's counterclaim and the trial court did not err in granting summary judgment for plaintiff. Having affirmed summary judgment for plaintiff due to defendant's failure to demonstrate a genuine issue of material fact regarding her counterclaims, we decline to reach defendant's remainingarguments.
    Affirmed.

    Judges TYSON and CALABRIA concur.

    Report per Rule 30(e).

*** Converted from WordPerfect ***