An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-205


Filed: 7 December 2004

a North Carolina Corporation,

    v .                             Mecklenburg County
                                No. 02 CVS 3831
a North Carolina Limited
Liability Company, and
HENRY T. OGLE, Individually,

    Appeal by plaintiff from judgment filed 23 November 2003 by Judge Timothy L. Patti in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 October 2004.

    Michael E. Utley, P.C., by Michael E. Utley, for plaintiff-appellant.

    Baucom, Claytor, Benton, Morgan & Wood, P.A., by James F. Wood, III, for Henry Ogle, individually, defendant-appellee.

    BRYANT, Judge.

     Choate Construction Company (plaintiff) (Choate) appeals a judgment filed 20 November 2003, granting a motion for directed verdict in favor of Henry T. Ogle (defendant) as to all causes of action, which include misrepresentation and unfair and deceptive trade practices   (See footnote 1)  .    This action arises out of a contract between plaintiff and Enterprize Park Corporation (EPC) for the construction and renovation of property known as Enterprize Park Factory Outlet in Waynesville, North Carolina. Choate submitted its proposal and was awarded the contract for this project in May 1999. The contract encompassed maintenance of the property and construction of shopping facilities. All EPC employees became Choate employees pursuant to the contract. David Jones, former Choate employee and manager on the Enterprize Park project, dealt primarily with Dean Moses (EPC president) and Carolyn Wilson (EPC vice president, office manager, and property manager   (See footnote 2)  . Moses was the designated contact person regarding the Choate contract.
    In May 1999, Choate operations manager, Jeff Hosack, wrote Steve Lusk, one of EPC's managers, and requested that EPC provide information regarding construction financing for the project. On 28 June 1999, Jones sent a facsimile transmission to Moses in which he requested information concerning the loan commitments. On 1 July 1999, Moses sent Jones a copy of a loan commitment letter for a bridge loan from Transcon Financial Group to EPC. At that point, Jones had never had any contact with defendant.
    Jones first met defendant on 28 July 1999. At this time, defendant served as EPC's vice president and treasurer. Defendant hand delivered to Jones, at the 28 July 1999 meeting, a copy of the unaudited financial statement of EPC, for the fiscal year ending 30June 1999. Jones and defendant never discussed defendant's role in the project.
    During August or September 1999, Jones had a conversation with defendant regarding the status of several past due invoices wherein Choate was due payment from EPC. Defendant stated that EPC was working on the closings as fast as possible, and once the closings occurred, Choate's invoices would be paid. On 1 November 1999, defendant sent a letter to Dave Priester, Choate's president, advising that financing on the project had been delayed, but EPC was continuing to obtain financing for the project.
     Choate had the EPC financial statements reviewed by an independent accountant, who advised Choate that they should not rely on these financial statements without reviewing the underlying documents. During the period from August through mid-October 1999, Moses and Wilson both represented that efforts to obtain financing were continuing.
    Choate filed suit against defendant Ogle and other defendants on 25 February 2002. This matter came for hearing at the 17 November 2002 session of Mecklenburg County Superior Court with the Honorable Timothy L. Patti presiding.
    At trial, Wilson testified for Choate stating that Moses was the chief officer of EPC and that she had no knowledge of any involvement with EPC's efforts to obtain financing for the Choate project. Wilson also stated that although defendant had the title of EPC treasurer, he had no check signing authority and did not maintain EPC's books.    In his testimony, Priester acknowledged receiving a loan commitment letter, which included Moses' personal guarantee, but not the guarantees of other persons affiliated with EPC. He further acknowledged that he believed EPC intended to go forward with the project, and had no knowledge of why EPC was not able to secure adequate permanent financing.
    With the consent of counsel for defendant, Choate was allowed to present excerpts from a transcript of a prior hearing in this case, in which defendant testified that he did not have any duties as an EPC officer and essentially was merely an investor in EPC. Defendant testified that although he had the title of vice president and treasurer, he was not involved in the effort to obtain financing for the project at issue. The information contained in the letter defendant wrote to Priester was based on representations made by Moses to defendant. Defendant further testified that he did not have any check signing authority and never had control of any EPC funds.
    Plaintiff rested its case and defendant moved for directed verdict. After hearing arguments from counsel, the trial court granted the motion for directed verdict in favor of defendant as to all claims. Plaintiff appeals.


    The issues on appeal are whether the trial court erred in: (I) granting directed verdict in favor of defendant; and (II) disallowing plaintiff's amendment to the pleadings to reflect that plaintiff was a North Carolina corporation.
    First, plaintiff argues the trial court erred in granting a directed verdict as to all claims, where plaintiff introduced competent evidence that defendant made misleading and false representations to plaintiff regarding Enterprize Park Corporation's (EPC's) financial condition and project financing.
    “A motion for a directed verdict tests the legal sufficiency of the evidence.” Lee v. Rice, 154 N.C. App. 471, 474, 572 S.E.2d 219, 221 (2002). “A motion for directed verdict is appropriately granted only by looking at the evidence in the light most favorable to the nonmovant, and giving the nonmovant the benefit of every reasonable inference arising from the evidence.” Crist v. Crist, 145 N.C. App. 418, 422, 550 S.E.2d 260, 264 (2001).
Misrepresentation / Fraud
    “Actionable misrepresentation [or fraud] consists of [:](1) a representation of a material fact, (2) which was false, (3) which was either known to be so by the defendant when it was made or which was made recklessly without any knowledge of its truth, (4) which was intended to induce reliance, and (5) which did induce reasonable reliance, (6) reliance which resulted in injury to plaintiff.” Austin v. Tire Treads, Inc., 21 N.C. App. 737, 739, 205 S.E.2d 615, 616 (1974); see Gunther v. Parker, 29 N.C. App. 264, 269, 224 S.E.2d 239, 242 (1976). “[P]laintiff ha[s] to prove the falsity of defendant's representations. Ordinarily, falsity is evaluated at the time a representation is made or when it is acted upon by the plaintiff.” Austin, 21 N.C. App. at 739, 205 S.E.2d at616.     
    Plaintiff argues that defendant, EPC's vice president and treasurer, knowingly misrepresented EPC's financial condition. Defendant knew EPC could not pay for the work ordered and did not have a loan commitment as represented by defendant. Priester met defendant on 28 July 1999, when defendant delivered to Priester financial statements; and Priester later talked to defendant on two separate occasions, where defendant assured Priester that the loan commitment was in place and loan closing was imminent. Priester relied on: both (1) these assurances, and (2) a letter from defendant stating that a loan commitment had been made and a loan closing was impending. Plaintiff argues that it was injured as a proximate cause of defendant's intentional misrepresentations.
    Having reviewed the evidence, it appears plaintiff has failed to present prima facie evidence that defendant knew the representations were false or that defendant made the representations with reckless disregard of the truth. Wilson, EPC's vice president, office manager and property manager, testified that defendant had no involvement with EPC's efforts to obtain financing. Moses, EPC's president, provided plaintiff with a copy of a loan commitment letter. Wilson testified that Moses lied to both her and defendant concerning whether a loan commitment had been secured; and plaintiff failed to offer any evidence that defendant knew that Moses provided defendant false information on which defendant relied and passed on to plaintiff. In addition, the evidence tended to show that defendant, although EPC'streasurer, had no check signing authority and did not have any control over the finances or financial records. Without evidence that defendant intentionally made false representations or recklessly disregarded the truth of the representations, plaintiff has failed to establish a prima facie case for misrepresentation or fraud. This assignment of error is overruled.
Unfair and Deceptive Trade Practices
    In order to establish a claim under Chapter 75 of the General Statutes, a claimant must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, (3) which proximately caused actual injury to the claimant. Market America, Inc. v. Christman-Orth, 135 N.C. App. 143, 155, 520 S.E.2d 570, 579 (1999); Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 262, 266 S.E.2d 610, 620 (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.” Johnson, 300 N.C. at 263, 266 S.E.2d at 621. A practice is deceptive if it has the capacity or tendency to deceive; proof of actual deception is not required. Id. at 265, 266 S.E.2d at 622. Whether an act or practice violates Chapter 75 is a question of law. Budd Tire Corp. v. Pierce Tire Co. Inc., 90 N.C. App. 684, 691, 370 S.E.2d 267, 271 (1988). Whether an action is unfair or deceptive will depend on the facts of each case and its impact on the marketplace. Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981).     Plaintiff argues that defendant falsely represented that there were loan commitments in place. Defendant was engaged in commerce and knew of the falsity of the representations. Plaintiff relied on these representations to its detriment. Plaintiff contends that the trial court, therefore, erred in granting a directed verdict in favor of defendant on this claim.
    As stated previously, evidence was presented showing that defendant relied on information received from EPC's president. Plaintiff has not shown defendant's reliance on information provided by the company's president was “immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers,” Johnson, 300 N.C. at 263, 266 S.E.2d at 621, nor that the act was in and of itself “deceptive.” This assignment of error is overruled.
    Next, plaintiff argues the trial court erred in preventing plaintiff from amending the pleadings to reflect that plaintiff was, in fact, a Georgia corporation and not a North Carolina corporation as stated in the pleadings.
    Rule 10(a) of the rules of appellate procedure states that “the scope of review on appeal is confined to a consideration of those assignments of error set out in the record.” N.C.R. App. P. 10(a). Here, plaintiff's sole assignment of error states that “[t]he [t]rial court erred as a matter of law in granting Defendant-Appellee Henry T. Ogle's Motion for a directed verdict under Rule 50 of the North Carolina Rules of Civil Procedure.” Plaintiff has not properly preserved for review the issue of amendment of the pleadings as it failed to assign it as error.
    Moreover, Rule 10(b)(1) requires a party to present a motion and “obtain a ruling upon the . . . motion,” in order to properly preserve an issue for appellate review. Although plaintiff did present a motion to the trial court to allow plaintiff to amend its pleadings to reflect it is a Georgia corporation, the trial court never ruled on that motion. Rather, the trial court ruled only on the motion for directed verdict.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

Footnote: 1
    The portion of the case that is presently on appeal was tried solely against defendant, who served as an Enterprize Park Corporation officer and investor. Plaintiff has obtained judgment in the remaining matters; thus, this case is final as to all claims and parties.
Footnote: 2
    At trial, Jones testified that he dealt primarily with Moses and Wilson regarding financial issues on the project.

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