NORTH CAROLINA COURT OF APPEALS
Filed: 5 September 2006
v. Duplin County
No. 04 CVS 61
BRANCH BANKING & TRUST COMPANY,
Appeal by plaintiff from an order entered 19 September 2005 by
Judge W. Allen Cobb, Jr. in Duplin County Superior Court. Heard in
the Court of Appeals 16 August 2006.
Bruce H. Robinson, Jr. for plaintiff-appellant.
Constangy, Brooks & Smith, LLC, by Timothy R. Newton and
Kristine M. Howard, for defendant-appellee.
David Jordan (plaintiff) appeals from an order entered 19
September 2005 granting summary judgment in favor of Branch Banking
& Trust Company (defendant). For the reasons stated herein, we
affirm the trial court's order.
In August 2003, plaintiff accepted the position of Financial
Center Manager for the Rose Hill branch of Branch Banking & Trust
Company. Throughout plaintiff's interview process, defendant's
representatives stressed that plaintiff would be required to move
to Rose Hill and become active in the community if he were to take
the position. Plaintiff stated his willingness to comply withthese requirements, and touted community activities in which he had
been involved in the past, such as the Boy Scouts, the fire
department, and his church. At his hiring, plaintiff agreed in
writing to involve himself in Rose Hill community activities.
Plaintiff never asked defendant for clarification of what was meant
by community activities.
In November 2003, defendant evaluated plaintiff's performance
during his first ninety days of employment, and decided that his
efforts to become involved in the Rose Hill community were
unsatisfactory. On 13 November 2003, defendant gave plaintiff a
60 Day Performance Plan which spelled out specific community
activities that plaintiff would be required to pursue within sixty
days in order to keep his job.
On 6 January 2004, plaintiff's attorney wrote to defendant,
complaining that plaintiff was being unfairly required to attend
church in Rose Hill, to enroll his child in the Rose Hill public
school system rather than in a Christian academy, and to become
active in certain community clubs. Defendant responded on 15
January 2004 with a memorandum in which defendant explained that
plaintiff had misunderstood his job requirements. The memo
clarified that plaintiff was not required to attend church at all,
let alone any particular church, and that it was entirely up to
plaintiff where to send his child to school. Defendant also
reiterated the requirement that plaintiff be involved in the Rose
Hill community, and gave him another opportunity to comply by
extending his probationary period by sixty days. On 27 January 2004, plaintiff filed his complaint, alleging
that defendant fraudulently induced him to leave his old job and
accept defendant's job offer. On 22 February 2004, defendant
terminated plaintiff's employment, citing his failure to satisfy
the conditions of his job.
Plaintiff's complaint alleges that defendant concealed from
him certain facts pertaining to job requirements; that defendant's
misrepresentations with regard to those requirements were
reasonably calculated to deceive and intended to deceive plaintiff;
that plaintiff reasonably relied upon defendant's
misrepresentations in taking the job; and that plaintiff suffered
various injuries as a result of defendant's conduct. Defendant's
answer of 11 March 2004 denies any misrepresentation or concealment
of job requirements.
On 2 June 2005, defendant filed a Motion for Summary Judgment.
A summary judgment hearing was conducted on 6 July 2005, and the
trial court granted summary judgment for defendant on 19 September
2005. Plaintiff appeals to this Court following notice of appeal
dated 23 September 2005.
Plaintiff presents a single issue on appeal: whether the
trial court erred by granting defendant's Motion for Summary
Standard of Review
Under Rule 56(c) of the North Carolina Rules of Civil
Procedure, summary judgment shall be rendered forthwith if thepleadings, 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. N.C. Gen. Stat. §
1A-1, Rule 56(c) (2005). The burden of establishing a lack of any
triable issue is upon the movant. Pembee Mfg. Corp. v. Cape Fear
, 313 N.C. 488, 329 S.E.2d 350 (1985). This burden may
be met 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. Collingwood v. General Electric Real
Estate Equities, Inc.
, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)
(citations omitted). If a defendant moving for summary judgment
presents material that effectively negates even one of the
essential elements of the plaintiff's claim, summary judgment
should be granted in the defendant's favor. Russo v. Mountain
, 38 N.C. App. 159, 162, 247 S.E.2d 654, 656 (1978). It
is not necessary that the defendant negate all of the essential
Once the moving party meets its burden, the nonmovant, in
order to survive the summary judgment motion, must produce a
forecast of evidence demonstrating that the [nonmovant] will be
able to make out at least a prima facie case at trial.
, 324 N.C. at 66, 376 S.E.2d at 427. The nonmovant may
not rest upon the mere allegations or denials of his pleading, buthis response . . . must set forth specific facts showing that there
is a genuine issue for trial. N.C. Gen. Stat. § 1A-1, Rule 56(e)
(2005). In deciding upon a motion for summary judgment, a trial
court must draw all inferences of fact against the movant and in
favor of the nonmovant. Collingwood
, 324 N.C. at 66, 376 S.E.2d at
The essential elements of plaintiff's fraudulent
misrepresentation claim are: (1) a false representation or
concealment of a material fact; (2) reasonably calculated to
deceive; (3) made with the intent to deceive; (4) which does in
fact deceive; (5) resulting in damage to the injured party. Pearce
v. Am. Defender Life Ins. Co.
, 316 N.C. 461, 468, 343 S.E.2d 174,
178 (1986); Godfrey v. Res-Care, Inc.
165 N.C. App. 68, 74-75, 598
S.E.2d 396, 401, disc. review denied
, 359 N.C. 67, 604 S.E.2d 310
(2004). If defendant successfully negated any of these elements of
plaintiff's case, then the trial court properly granted summary
judgment in defendant's favor.
Plaintiff sought to demonstrate to the trial court that
defendant induced him to leave his old job and to work for
defendant by concealing a number of the requirements of his new
position. Had he known of these requirements, plaintiff claimed,
he would not have accepted the position with defendant. First,
plaintiff claimed defendant required him to attend a local church
in Rose Hill, and to enroll his child in public school in Rose
Hill. In support of its Motion for Summary Judgment, defendant
demonstrated that neither of these was actually required ofplaintiff.
There was simply no evidence plaintiff's employment with
defendant was dependent upon attending any particular church.
Church involvement was merely a suggestion as to how plaintiff
might satisfy his community activity requirement. In fact, it was
plaintiff himself who suggested this possibility.
With regard to the alleged requirement that plaintiff enroll
his child in public school in Rose Hill, the forecast of evidence
does indicate that this became one of defendant's expectations.
However, defendant presented evidence indicating this expectation
arose only after plaintiff himself told defendant's representatives
that he planned to enroll his child in the Rose Hill public school
system. It was not a condition of plaintiff's employment from the
moment of his hiring, as plaintiff contends. In opposing the
summary judgment motion, plaintiff failed to contest defendant's
material on this point, instead merely reiterating what defendant
had already admitted: that defendant eventually came to expect that
plaintiff would enroll his child in public school in Rose Hill.
Further, defendant's memorandum to plaintiff, dated 15 January
2004, made it quite clear that defendant did not intend to
condition plaintiff's employment on attendance of any church, or on
his child's attendance of any particular school. Thus, the
uncontroverted evidence shows that neither of these actions was
required of plaintiff by defendant. Defendant cannot have
fraudulently misrepresented requirements of plaintiff's job if
they were not, in fact, requirements. Plaintiff also took issue with a number of job requirements
that were first spelled out to him in detail four months after he
took the job with defendant. In the 60 Day Performance Plan
dated 13 November 2003, defendant specified the following job
requirements for plaintiff: (a) attend meetings of the Rose Hill
Chamber of Commerce; (b) join the local Lions Club; (c) become a
member of the Rose Hill Parks and Recreation Department; (d) join
the local Boy Scouts group; (e) join the Rose Hill Parent-Teacher
Organization; and (f) take a position on the board, or be an
officer, of at least two of the above named organizations.
Plaintiff's fraudulent misrepresentation claim rested on the
fact that these particular requirements were not made clear to him
at his hiring. It is uncontested, however, that plaintiff
understood at his hiring that involvement in the Rose Hill
community would be an important condition of his employment.
Plaintiff also acknowledged in his deposition that these particular
requirements qualify as community activities. The fact that
defendant did not describe to plaintiff at his hiring each and
every form of community involvement that might be expected of him
does not equate with fraudulent misrepresentation.
If plaintiff desired greater clarification of his duties,
there is nothing to suggest that he could not have received it by
simply asking. This Court has stated in the past that when the
party relying on the false or misleading representation could have
discovered the truth upon inquiry, the complaint must allege that
he was denied the opportunity to investigate or that he could nothave learned the true facts by exercise of reasonable diligence.
Hudson-Cole Dev. Corp. v. Beemer
, 132 N.C. App. 341, 346, 511
S.E.2d 309, 313 (1999); see also Oberlin Capital, L.P. v. Slavin
147 N.C. App. 52, 59-60, 554 S.E.2d 840, 846-47 (2001) (holding
that a creditor failed to state claims for negligent
misrepresentation and fraudulent concealment where the creditor did
not allege that he could not have learned of the borrower's
financial history through exercise of due diligence). No such
allegation is to be found in plaintiff's complaint.
Also, defendant's materials show that participation in these
particular community activities became a condition of plaintiff's
employment only after plaintiff failed, over a period of
approximately four months, to become sufficiently active in the
Rose Hill community. Once defendant felt it necessary to delineate
more specific job requirements, the Performance Plan itself made
them very clear to plaintiff. Plaintiff produced no forecast of
evidence to the contrary. Thus, insofar as these particular
activities were required of plaintiff, they were not misrepresented
Each of plaintiff's claims of concealed or misrepresented job
requirements was thus negated by defendant. Plaintiff did not
produce a forecast of evidence to demonstrate that he was actually
required to attend any particular church, nor that he was required
to enroll his child in public school in Rose Hill. Neither did
plaintiff demonstrate any ability to prove those activities that
truly were required of him were ever concealed or misrepresented. As a result, the first essential element of fraudulent
misrepresentation, false representation or concealment of a
material fact, is not satisfied. Even when all inferences of fact
are drawn against defendant and in plaintiff's favor, plaintiff
failed to set forth specific facts showing there was a genuine
issue for trial. The trial court therefore properly granted
defendant's Motion for Summary Judgment. Accordingly, this
assignment of error is overruled.
Judges McGEE and ELMORE concur.
Report per Rule 30(e).
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