An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
LUDOVICUS N. KEYZER,
a/k/a LUDO KEYZER,
No. 02 CVS 2461
AMERLINK, LTD. and
Appeal by plaintiff from orders entered 12 February 2004 and
13 April 2004 by Judge John R. Jolly, Jr., in Nash County Superior
Court. Heard in the Court of Appeals 9 May 2005.
Barry Nakell for plaintiff-appellant.
Anderson, Johnson, Lawrence, Butler & Bock, L.L.P., by Steven
C. Lawrence, for defendant-appellees.
Plaintiff Ludovicus Keyzer (Keyzer) appeals from orders
granting summary judgment for defendants on plaintiff's claims of
fraud, unfair or deceptive trade practices, and punitive damages,
and denying plaintiff's motion for post-trial relief. We affirm.
AmerLink, Ltd. (AmerLink) is a corporation that does
business in North Carolina selling log home kits. Keyzer is a
Dutch citizen and resident of the Netherlands who purchased a log
home kit from AmerLink. On 22 February 1999 plaintiff filed suit
against Amerlink for breach of contract, breach of express andimplied warranties, fraud, and unfair and deceptive trade
practices, all pertaining to the log home package. On 12 September
2001, after nine days of trial, the parties executed a settlement
agreement. The present appeal arises from this settlement
agreement, and does not concern the merits of plaintiff's original
The settlement agreement generally provided that defendants
would make two payments to plaintiff totaling $200,000, that
plaintiff would release defendants from liability on all claims
arising from the log home sale, and that neither party would
disclose the terms of the settlement contract. Specific provisions
included the following:
1. . . . Amerlink, Ltd. will pay by bank check
the initial lump sum of $50,000.00 . . . on or
before . . . September 12, 2001. Upon receipt
of the check, Plaintiff . . . [will execute a]
release that is contingent upon completion of
the payment term.
2. . . . [Defendant] will pay to Plaintiff . . .
$150,000.00, plus accrued interest at a rate
of eight percent (8%) . . . on or before
November 30, 2002 . . . and time is of the
essence. . . . Richard Spoor, President of
AmerLink, Ltd. personally guarantees the
3. The parties agree to keep confidential the
terms, conditions and amount of the settlement
and if either party is approached by a third
party about the matter they will simply
respond by saying, the matter has been
resolved to the satisfaction of the parties.
. . . .
5. . . . [I]f AmerLink, Ltd. fails to make
payments as outlined above, the Plaintiff may
re-file his lawsuit without prejudice to any
previous judicial orders. . . .
. . . .
11. The undersigned further agree that if a breach
of any of the provisions of this agreement and
release occurs then the non-breaching party
has the right to bring suit to recover damages
against the breaching party[.] . . .
. . . .
As of 30 November 2002 defendants had not made the final payment to
plaintiff of $150,000. On 4 December 2002 plaintiff filed suit
against defendants for breach of contract, fraud, and unfair or
deceptive trade practices. Plaintiff later filed an amended
complaint adding an allegation that defendants had breached the
settlement's confidentiality clause. On 3 December 2003 defendants
filed a motion for summary judgment.
On 12 February 2004 the trial court entered an order granting
summary judgment in favor of plaintiff on the issue of defendants'
breach of the settlement contract's payment provision, and ordering
defendants to pay plaintiff $150,000 plus interest. Defendants
have not appealed this ruling. The court also granted summary
judgment for defendants on plaintiff's claims of fraud, unfair or
deceptive trade practices, and punitive damages. Plaintiff filed
a motion seeking a new trial, amended judgment, or relief from
judgment, which motion was denied by the trial court on 13 April
2004. Plaintiff timely appealed from the summary judgment order
and the order denying his post-trial motion.
Standard of Review
Preliminarily, we note that this is a companion case to Keyzer
v. Amerlink (COA04-1096). We also note that, although plaintiffappealed from the trial court's order denying his post-trial
motion, his brief does not present any arguments addressing this
order. Accordingly, the issue is deemed abandoned. N.C. R. App.
P. 28(a) (Questions raised by assignments of error . . . but not
then presented and discussed in a party's brief, are deemed
Under N.C.G.S. § 1A-1, Rule 56(c) (2003), summary judgment is
proper 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. The burden
is on the party moving for summary judgment to show the absence of
any genuine issue of fact and his entitlement to judgment as a
matter of law. '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.'
Bolick v. Bon Worth, Inc., 150 N.C. App. 428, 429-30, 562 S.E.2d
602, 603 (2002) (citing Savings & Loan Assoc. v. Trust Co., 282
N.C. 44, 191 S.E.2d 683 (1972), and quoting Roumillat v. Simplistic
Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)).
When the movant properly supports his motion for summary judgment,
an 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 thatthere is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be entered against him.
N.C.G.S. § 1A-1, Rule 56(e) (2003).
'The standard of review on appeal from summary judgment is
whether there is any genuine issue of material fact and whether the
moving party is entitled to a judgment as a matter of law.'
McGuire v. Draughon, __ N.C. App. __, __, 612 S.E.2d 428, 430
(2005) (quoting Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.
App. 729, 733, 504 S.E.2d 574, 577 (1998)). Both before the trial
court and on appeal, the evidence must be viewed in the light most
favorable to the non-moving party and all inferences from that
evidence must be drawn against the moving party and in favor of the
non-moving party. White v. Consolidated Planning, Inc., 166 N.C.
App. 283, 296, 603 S.E.2d 147, 157 (2004) (citing Garner v.
Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438,
441 (1999)), disc. review denied, 359 N.C. 286, 610 S.E.2d 717
Plaintiff argues first that the trial court erred by granting
summary judgment on his claim of fraud. We disagree.
The essential elements of fraud are: '(1) False
representation or concealment of a material fact, (2) reasonably
calculated to deceive, (3) made with intent to deceive, (4) which
does in fact deceive, (5) resulting in damage to the injured
party.' Rowan County Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1,
17, 418 S.E.2d 648, 658 (1992) (quoting Terry v. Terry, 302 N.C.77, 83, 273 S.E.2d 674, 677 (1981) (quoting Ragsdale v. Kennedy,
286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974))).
In order for defendants to prevail on their motion for
summary judgment, they did not need to negate every element of
fraud. 'If defendant effectively refutes even one element, summary
judgment is proper.' RD&J Props. v. Lauralea-Dilton Enters., LLC.
165 N.C. App. 737, 745, 600 S.E.2d 492, 498 (2004) (quoting Ramsey
v. Keever's Used Cars, 92 N.C. App. 187, 190, 374 S.E.2d 135, 137
As discussed above, the essential elements of actionable
fraud include a [f]alse representation or concealment of a
material fact . . . which does in fact deceive[.] Ragsdale, id.
at 138, 209 S.E.2d at 500 (citation omitted) (emphasis added). If
plaintiff fails to offer any proof of deception by or reliance on
the alleged misrepresentation, his claim for fraud must be
dismissed. See Godfrey v. Res-Care, Inc., 165 N.C. App. 68, 85,
598 S.E.2d 396, 407-08, disc. review denied, 359 N.C. 67, 604
S.E.2d 310 (2004).
In the instant case, plaintiff alleges no false
representation or concealment of a material fact other than
defendants' alleged state of mind at the time the settlement
contract was signed. Plaintiff asserts that, at the time
defendants signed the settlement contract, they were consciously
planning to breach the agreement. In this regard:
It is the general rule that an unfulfilled
promise cannot be made the basis for an action
for fraud. The rule, of course, is otherwise,
where the promise is made fraudulently with nointention to carry it out, and such promise
constitutes a misrepresentation of a material
Davis v. Davis, 236 N.C. 208, 211, 72 S.E.2d 414, 415 (1952)
We conclude that, even assuming arguendo that plaintiff's
evidence raises a genuine issue regarding defendants' good faith in
entering into the settlement contract such that a claim for fraud
might be sustained, the record contains no evidence that plaintiff
believed, relied on, or was deceived by defendants'
representations. Instead, the circumstantial evidence uniformly
demonstrates the parties' mutual suspicion and distrust of each
other. Plaintiff's first lawsuit against defendants asserted
claims of fraud and unfair and deceptive trade practices, and thus
alleged that defendants were deceitful. Also, plaintiff's Exhibit
2, a record of email correspondence between the parties' counsel,
includes many representations by counsel that plaintiff did not
trust defendants, including the following:
(26 March 2001) AmerLink asked whether Mr.
Keyzer would be willing to accept payments
over time, and Mr. Keyzer agreed to that as
long as he was given adequate security[.]. . .
. To avoid any shenanigans of the kind . . . .
AmerLink has pulled in the past, Mr. Keyzer
would also like an immediate supply of
postdated checks from AmerLink[.]
(26 March 2001) [Mr. Keyzer] is still willing
to settle the case on . . . [terms that]
include adequate security for the money[.]
. . . He has heard too many horror stories
about AmerLink to trust it without such
arrangements, he told me several times.
(28 March 2001) Why should Mr. Keyzer rely on
AmerLink's commitment if [Spoor] will not even
stand behind it personally?
(30 March 2001) . . . I think that Mr. Keyzer
has no confidence in AmerLink carrying out any
commitment to make payments over time[.]. . .
. We have never trusted AmerLink to carry out
its commitment to the settlement agreement . .
. which is why we insisted on the security for
the deferred payments[.]
(30 March 2001) [I]f Mr. Keyzer were to accept
deferred payments he would require security
for the payments and that security would need
to include both [Spoor's] personal guarantee
and not dismissing the lawsuit until all
payments were made[.]
A plaintiff's mistrust of defendant is some evidence that the
plaintiff was not deceived by a defendant's misrepresentation. In
Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588
S.E.2d 20 (2003), this Court upheld award of summary judgment for
defendants of whom plaintiff previously had expressed suspicion:
Plaintiff further contends that defendants
committed fraud and misrepresentation by
telling her that the article would be
'sympathetic' to her interests. . . . In
plaintiff's deposition, however, she stated
that: 'I've made it a policy . . . to never
talk to anyone who works with The News and
Observer, to avoid them socially, have nothing
to do with them[.] . . . I've learned that
people _ especially people who work for The
News and Observer _ lie glibly.' Based on
plaintiff's own statements, she did not rely
on any statements that might have been made by
defendants. Because an essential element is
missing from plaintiff's claim, summary
judgment was proper.
Id. at 31, 32, 588 S.E.2d at 29 (emphasis added). As in Broughton, plaintiff herein expressed distrust of
defendants. Additionally, the general circumstances, as
established by this record, show very clearly that plaintiff did
not trust defendants and did not rely on their representations.
Moreover, plaintiff offered no direct evidence of his reliance on
the alleged misrepresentation by defendants. Indeed, plaintiff
offered no sworn statement averring his reliance on, or deception
by, any representation by the defendants. In short, none of the
record evidence suggests plaintiff was deceived by defendants'
alleged misrepresentation of their intent to comply with the
The evidence fails to demonstrate the existence of any issue
of fact concerning plaintiff's deception by defendants.
Accordingly, this assignment of error is overruled.
Plaintiff also argues that the trial court erred by granting
summary judgment for defendants on his claim for unfair or
deceptive trade practices. We disagree.
N.C.G.S. § 75-1.1(a) (2003) makes unlawful [u]nfair methods
of competition in or affecting commerce, and unfair or deceptive
acts or practices in or affecting commerce[.] A practice is
unfair if it is unethical or unscrupulous, and it is deceptive if
it has a tendency to deceive. Dalton v. Camp
, 353 N.C. 647, 656,
548 S.E.2d 704, 711 (2001). Under section 75-1.1, a mere breach
of contract does not constitute an unfair or deceptive act.
Egregious or aggravating circumstances must be alleged before theprovisions of the Act may take effect. Becker v. Graber Builders,
, 149 N.C. App. 787, 794, 561 S.E.2d 905, 910-11 (2002) (citing
Branch Banking and Trust Co. v. Thompson
, 107 N.C. App. 53, 62, 418
S.E.2d 694, 700 (1992), and Bartolomeo v. S.B. Thomas, Inc
F.2d 530, 535 (4th Cir. 1989)).
In the instant case, defendant Richard Spoor (Spoor), signed
the settlement contract both as representative of AmerLink, and as
personal guarantor of the debt owed under the terms of the
contract. Plaintiff asserts that Spoor executed the settlement
contract, but had no intention of making the payment required by
its terms, and thereby misrepresented defendants' state of mind.
Plaintiff also argues that defendants engaged in other deceptive
practices. We conclude that plaintiff failed to present evidence
raising a genuine issue of material fact on the issue of unfair or
deceptive trade practices.
During discovery, Spoor was twice deposed and questioned about
defendants' execution of the settlement agreement. His testimony
included, in relevant part, the following:
SPOOR: . . . I agreed to pay him two hundred
thousand dollars; he agreed that he wouldn't
discuss anything about the contract. I was
prepared to pay him the other hundred and
fifty until I found out he'd breached the
contract. We made preparations . . . to pay
the hundred and fifty.
PLAINTIFF'S COUNSEL: What preparations did you
SPOOR: Setting aside the hundred and fifty
thousand, hundred and sixty-two thousand
dollars [including interest].
. . . .
PLAINTIFF'S COUNSEL: When did you discuss it?
SPOOR: From the time we were obligated,
September 12 I guess it was, up until the date
it was due.
. . .
SPOOR: . . . [O]ur objective was to pay you
on the day that the monies were due. . . .
SPOOR: Well, you know, we entered into this
settlement in good faith and as far as we're
concerned we've remained faithful to what we
agreed on. . . .
We conclude that Spoor's testimony shifted the burden to plaintiff
to produce evidence showing a genuine issue of material fact on the
issue of whether defendants intended to make the final payment
under the settlement agreement.
Plaintiff's contention that defendants falsely represented
their intention to honor the settlement contract is primarily based
on allegations that: (1) defendants conducted an investigation to
determine whether plaintiff was complying with the confidentiality
clause of the settlement contract, in part because Spoor held the
belief that plaintiff's breach of confidentiality might mean that
defendants did not have to make the second payment; (2) certain
aspects of defendants' bookkeeping and corporate decision-making
were not the best business practices in that Spoor consulted only
his attorneys about the settlement, and failed to properly record
the debt in AmerLink's financial records; (3) defendants later
filed a claim that Keyzer had violated the confidentiality clause,
and a motion to dismiss Keyzer's refiled claims against defendants;
and (4) defendant's pattern of fraud, consisting of anotherlawsuit years earlier, speculation about the nature of Spoor's
previous disability claim, and the North Carolina Attorney
General's request that AmerLink add certain language to its sales
We conclude generally that the alleged acts do not constitute
unfair or deceptive trade practices. We conclude further that: (1)
neither Spoor's view on legal implications of a breach of contract,
nor defendants' investigation of plaintiff's compliance with the
settlement agreement, is evidence of defendants' intention not to
comply with the contract; (2) defendants' business practices do not
bear on their intention to comply with the settlement contract when
it was signed; (3) plaintiff's allegations fail to show either a
pattern of previous misconduct or evidence of bad faith existing
at the time the settlement contract was signed; and (4) the merits
of defendants' other legal filings do not tend to show defendants'
state of mind when they executed the agreement.
We conclude that plaintiff failed to present evidence raising
a genuine issue of material fact as to his claims of fraud or
unfair or deceptive trade practices, and that the trial court did
not err by entering summary judgment in favor of defendants on
these claims. Accordingly, the trial court's order is
Chief Judge MARTIN and Judge TYSON concur.
Report per Rule 30(e).
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