Appeal by plaintiff from judgment entered 31 January 2005 by
Judge E. Lynn Johnson in Johnston County Superior Court. Heard in
the Court of Appeals 11 January 2006.
Levinson Law Firm, P.A., by James R. Levinson, for plaintiff-
appellant.
Mast, Schulz, Mast, Mills, Johnson & Wells, P.A., by George B.
Mast and Bradley N. Schulz, for defendant-appellees.
SMITH, Judge.
John V. Watson (“plaintiff”) appeals an order of the trial
court granting the motion of Willie L. Snead (“Mr. Snead”) and
Phyllis Snead (“Mrs. Snead”) (hereinafter referred to collectively
as “defendants”) for summary judgment. For the reasons stated
herein, we affirm.
The pertinent factual and procedural history is as follows:
On 10 June 2004, plaintiff filed a complaint alleging a violation
of the Securities Act, fraud, constructive fraud, fraudulent
inducement, breach of fiduciary duty, and unfair and deceptivetrade practices by defendants in the marketing and sale of a “high
yield trading program” also characterized by plaintiff as a “Ponzi”
scheme. Defendants' answer included the affirmative defense of a
release executed by plaintiff and Mr. Snead on 28 January 2002.
Defendants submitted a request for admission in which they
requested plaintiff admit the release was signed and initialed by
plaintiff and defendant Willie Snead and notarized by Jennifer B.
Mooring. Plaintiff admitted the release was signed and initialed
by plaintiff and defendant Willie Snead. Thereafter, defendants
moved for summary judgment for the reasons that Mrs. Snead had no
business dealings with plaintiff and the release was a bar to
plaintiff's claims against Mr. Snead. Plaintiff filed an affidavit
in opposition to defendants' motion alleging his signature on the
release was obtained by fraud and that Mrs. Snead had frequent
contact with him concerning the subject matter of the law suit.
The trial court granted summary judgment for defendant Willie Snead
and defendant Phyllis Snead. Plaintiff appeals.
___________________________
On appeal, plaintiff assigns as error the trial court's grant
of summary judgment for defendants. Specifically, plaintiff
contends there is a genuine issue of material fact as to whether
the release was obtained by fraud.
As an initial matter, we note plaintiff did not assign error
to the grant of summary judgment in favor of Mrs. Snead.
Therefore, that portion of the trial court's order granting summary
judgment in favor of Mrs. Snead is not before this Court on appeal. Our review is limited to whether the trial court erred by granting
summary judgment in favor of defendant Willie Snead.
“[T]he 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.”
Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504
S.E.2d 574, 577 (1998) (citing
Wilmington Star News, Inc. v. New
Hanover Regional Medical Center,
Inc., 125 N.C. App. 174, 178, 480
S.E.2d 53, 55,
appeal dismissed, 346 N.C. 557, 488 S.E.2d 826
(1997)).
See also N.C.R. Civ. P. 56(c).
“A summary judgment
movant bears the burden of establishing the lack of any triable
issue[.]”
Schmidt v. Breeden, 134 N.C. App. 248, 251, 517 S.E.2d
171, 174 (1999). “A defendant who moves for summary judgment may
meet this burden by showing either that (1) an essential element of
plaintiff's claim is nonexistent; (2) plaintiff cannot produce
evidence to support an essential element of its claim; or (3)
plaintiff cannot surmount an affirmative defense raised in bar of
its claim.”
Lyles v. City of Charlotte, 120 N.C. App. 96, 99, 461
S.E.2d 347, 350 (1995),
rev'd on other grounds, 344 N.C. 676, 477
S.E.2d 150 (1996). “If the moving party meets this burden, the
party who opposes the motion for summary judgment must either
assume the burden of showing that a genuine issue of material fact
for trial does exist or provide an excuse for not so doing.”
Zimmerman v. Hogg & Allen, 286 N.C. 24, 29, 209 S.E.2d 795, 798
(1974). “[A] genuine issue is one which can be maintained bysubstantial evidence.”
McNair v. Boyette, 282 N.C. 230, 235, 192
S.E.2d 457, 460 (1972).
In the instant case, defendants pled a release executed by
plaintiff on 28 January 2002 as a bar to plaintiff's claim against
Mr. Snead. The release provides
that Mr. Snead's agreement to and
signature thereon
constitut[es] repayment in kind of all of [Mr.
Snead's] loan debts to [plaintiff], and
[plaintiff] agree[s] to release [Mr. Snead]
from all and any further obligations to
[plaintiff], . . . and [plaintiff] agree[s]
not to proceed against [Mr. Snead] in any
court of law.
Plaintiff admitted he signed the release in response to defendants'
request for admission. The release is a valid release which by its
terms constitutes a bar to plaintiff's claims against defendant
Willie Snead.
See Sykes v. Keiltex Industries, Inc., 123 N.C. App.
482, 485, 473 S.E.2d 341, 344
(1996).
A release, however, is subject to avoidance by a showing that
it was obtained by fraud.
Cunningham v. Brown, 51 N.C. App. 264,
269, 276 S.E.2d 718, 723 (1981). In the instant case, plaintiff
sought to raise the issue of fraud in his affidavit filed in
opposition to defendants' motion for summary judgment. In the
affidavit, plaintiff states, “[M]y signature was fraudulently
obtained thereon.” We hold the affidavit does not meet the
particularity requirement of Rule 9(b) of the Rules of Civil
Procedure and is insufficient to create a question of material fact
as to whether plaintiff's signature on the release was obtained by
fraud. N.C.R. Civ. P. 9(b) (2003) provides in pertinent part: “In
all averments of fraud, duress or mistake, the circumstances
constituting fraud or mistake shall be stated with particularity.”
Our Supreme Court has stated, “The particularity required by the
rule generally encompasses the time, place and contents of the
fraudulent representation, the identity of the person making the
representation and what was obtained by the fraudulent acts or
representations. The particularity required cannot be satisfied by
using conclusory language[.]”
Terry v. Terry, 302 N.C. 77, 85, 273
S.E.2d 674, 678 (1981).
In the instant case, plaintiff's affidavit merely contains the
conclusory statement, “[M]y signature was fraudulently obtained
thereon.” The statement is insufficient to raise an issue of
material fact sufficient to withstand a motion for summary
judgment. Once defendant Willie Snead met his burden by
establishing the release as a bar to plaintiff's claim, plaintiff
was required “to produce a forecast of evidence demonstrating
specific facts, as opposed to allegations, showing that []he can at
least establish a prima facie case at trial.”
Best v. Ford Motor
Co., 148 N.C. App. 42, 47, 557 S.E.2d 163, l66 (2001) (quotation
and citation omitted). Plaintiff failed to allege specific facts
upon which he intends to rely in establishing fraud in obtaining
the release. Thus, the trial court properly granted defendants'
motion for summary judgment.
Affirmed.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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