An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NO. COA 05-1652
NORTH CAROLINA COURT OF APPEALS
Filed: 17 October 2006
ROBERT M. MORRIS and wife
FRANCES L. MORRIS,
No. 03 CVS 04690
DEERFIELD EPISCOPAL RETIREMENT
Appeal by plaintiff from order entered 27 September 2005 by
Judge J. Marlene Hyatt in Superior Court, Buncombe County. Heard
in the Court of Appeals 21 September 2006.
Dungan & Associates, P.A., by Chris Brown and Robert Dungan,
Womble Carlyle Sandridge & Rice, PLLC, by Christopher T.
Graebe, for defendant-appellee.
Summary judgment is not properly granted when the evidence,
viewed in the light most favorable to the non-moving party, shows
a genuine issue of material fact.
(See footnote 1)
Here, Plaintiff Robert M.
(See footnote 2)
argues that he presented sufficient evidence to create agenuine issue on his claims for breach of contract and unfair and
deceptive trade practices. Because we find that the record
contains no such evidence, we affirm the trial court's grant of
On 22 June 2000, Mr. Morris and his wife entered into a
Residence and Services Agreement with Defendant Deerfield Episcopal
Retirement Community, Inc. (Deerfield) for an independent living
residence in the retirement community operated by Deerfield. The
relevant portion of that written agreement states:
1.C. Common Areas and Amenities.
Deerfield will provide common areas
and amenities for the use and
benefit of all residents such as a
central dining room, private dining
room, library, mail boxes, multi-
purpose room, lounges, woodworking
shop, arts and crafts room, walking
areas, exercise areas, and on-site
Health Center, and other common
areas and amenities described in the
Community's current literature.
. . .
1.F.11. Nursing and Health Care. Deerfield
will provide nursing and health care
facilities and services as follows:
a. Levels of Care. A Health Center
at Deerfield will be provided
for the benefit of the
residents. The Health Center
will have accommodations,
equipment, and staffing
necessary for skilled nursing
care and assisted living care.
Deerfield's literature included a Questions & Answers pamphlet
containing the following pertinent information:
5. What kind of common areas and amenities will
Deerfield's expansion offer?
A community center and wellness center will
host most of the common areas and amenities.
The community center will include a handsome
lobby, a well-appointed formal dining room,
private dining room, casual dining café,
beverage lounge, outdoor terrace, library and
reading room, multipurpose auditorium, game
room, woodworking shop, arts and crafts
studio, classroom, computer lab, aerobics
room, exercise/weight room, beauty and barber
salon, physical therapy, bank, boutique, and
country store, and central post office
facilities. An indoor swimming pool and
croquet court are in the developmental stage.
. . .
12. What residential services are offered at
In addition to the standard services provided
in the Monthly Fee, Deerfield will provide at
an additional cost: . . . dementia day program
. . . beyond the standard services.
. . .
17. What are the health care services and
what are the accommodations available in
Deerfield's new health center?
. . .
Dementia Day Program
A special area for residents with dementia or
related conditions will be located within the
health center . . . . Special programming
will be provided for residents as well as an
outdoor garden to allow the residents freedom
to enjoy the outdoors in a secured
environment. There will be an additional
charge for this service.
Per the agreement, the Morrises made an initial payment of
$198,365; moved into the apartment in November 2000; and began
paying a monthly fee of at least $2,045. On 21 November 2002, Mr. Morris met with Robert F. Wernet,
Jr., Deerfield's President and Chief Executive Officer, and Mary
Dee Mason, Deerfield's Director of Marketing, regarding the
possibility of moving to a cottage in the facility. At that time,
Mr. Morris's wife had begun to exhibit signs of dementia, including
paranoia, agitation, and short-term memory loss, and Mr. Morris
believed the move might help their situation. A cottage became
available approximately one month later, but Mr. Morris objected to
the additional fee that would be imposed for the move. On 21
December 2002, Mr. Morris notified Deerfield by letter that he was
terminating the couple's residency in accordance with the written
agreement. In January 2003, the Morrises moved into a larger
apartment in Asheville.
On 22 October 2003, Mr. Morris filed his initial complaint in
this case, alleging that Deerfield had breached its contract by
failing to provide an on-site dementia daycare program for
residents. Mr. Morris amended his complaint on 28 June 2004 to
include the allegation that Deerfield had engaged in unfair and
deceptive trade practices through its representations that an on-
site dementia daycare program would be provided. Deerfield moved
for summary judgment on both causes of action on 24 August 2005;
after a hearing on 6 September, the trial court granted summary
judgment to Deerfield on both claims.
Mr. Morris now appeals that ruling, assigning as error that
the trial court erred by granting summary judgment in favor of
Deerfield on his claims of (I) breach of contract and (II) unfairand deceptive trade practices.
Mr. Morris first contends the trial court committed reversible
error by granting summary judgment on his breach of contract claim,
as he presented sufficient evidence to create a genuine issue of
material fact as to the claim.
Contract interpretation is a question of law and is therefore
reviewed de novo. Harris v. Ray Johnson Constr. Co., 139 N.C. App.
827, 829, 534 S.E.2d 653, 654 (2000). The elements of a claim for
breach of contract are (1) existence of a valid contract and (2)
breach of the terms of that contract. Poor v. Hill, 138 N.C. App.
19, 26, 530 S.E.2d 838, 843 (2000) (citing Jackson v. Carolina
Hardwood Co., 120 N.C. App. 870, 871, 463 S.E.2d 571, 572 (1995)).
In addition, a breach of contract is actionable only if the breach
was material in nature, one that substantially defeats the purpose
of the agreement or goes to the very heart of the agreement, or can
be characterized as a substantial failure to perform. Long v.
Long, 160 N.C. App. 664, 668, 588 S.E.2d 1, 4 (2003) (citing
Fletcher v. Fletcher, 123 N.C. App. 744, 752, 474 S.E.2d 802, 807
(1996), disc. review denied, 345 N.C. 640, 483 S.E.2d 706 (1997)).
The trial court's decision as to whether a breach is material is a
conclusion of law and is likewise reviewed de novo on appeal. Id.
at 668-69, 588 S.E.2d at 4 (citing Fletcher, 123 N.C. App. at 752,
474 S.E.2d at 807)).
The written contract at issue in this case, the Residence and
Services Agreement, does not include any direct mention of an on-site dementia daycare program, but it does incorporate by reference
Deerfield's current literature. Dementia daycare is discussed in
two places in that literature: (1) in a description of other
residential services available at an additional cost; and (2) in a
description of the services available in Deerfield's new Health
Center, referred to in the Residence and Services Agreement.
However, those references are only to a dementia day program that
will be provided at additional cost to residents, as well as a
special area for residents with dementia, [s]pecial
programming, and an outdoor garden.
The record shows that Deerfield, in fact, started an on-site
dementia daycare program in February 2001, including a secure
garden for residents, dedicated staff, and special programming.
Because only a few residents used the facility, Deerfield
determined it could not offer the flexibility and diverse
programming necessary to best serve residents' needs. Deerfield
therefore discontinued its on-site program after several months,
deciding instead to form a partnership with a nearby local dementia
daycare program that apparently offered service with which
residents seemed pleased. The secure garden and other constructed
facilities remained in place at Deerfield's continuing care
Thus, according to the record, Deerfield did offer a dementia
daycare program, first on-site and then as contracted through a
local, off-site provider, with special programming for residents
with dementia, and did construct and make available a special areaand outdoor garden for residents with dementia. Mr. Morris offered
no evidence to refute these facts, arguing instead only that he was
not aware of the facilities provided and that the contract
guaranteed an on-site program. Both the record and the plain
language of the contract itself contradict Mr. Morris's claim of
breach of contract. Moreover, nothing in the record suggests that
such a breach, if it did occur, rose to the level of materiality by
substantially defeat[ing] the purpose of the agreement, given
that Mr. Morris himself stated that he did not know that such a
daycare center was ever provided, nor did he or his wife ever use
either the on- or off-site program prior to terminating their
residency, nor did they state its existence as a primary reason for
either entering into or terminating the contract.
Thus, no genuine issue of material fact as to this claim was
presented to the trial court. Accordingly, we uphold the trial
court's grant of summary judgment to Deerfield on the breach of
Mr. Morris also argues that the trial court committed
reversible error by concluding that Deerfield had not engaged in
unfair or deceptive trade practices.
To support this assertion, Mr. Morris first presents a novel
approach to the question, namely, that as a continuing care
retirement community in North Carolina, Deerfield's conduct falls
under chapter 58 of the North Carolina General Statutes, which
governs contracts of insurance. N.C. Gen. Stat. §§ 58-1-10, etseq. (2005). This approach is novel largely because it is the
first time Mr. Morris has made such an argument at any point in the
case at hand. Neither the original complaint, the amended
complaint, nor the assignments of error make any reference to the
theory that Deerfield is liable as a provider of insurance.
[T]he scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal. N.C. R. App. P. 10(a). Although specific assignments
of error are not required where . . . the sole question presented
in [one party's] brief is whether the trial court erred in granting
summary judgment in favor of [the other party], Vernon, Vernon,
Wooten, Brown & Andrews, P.A. v. Miller
, 73 N.C. App. 295, 297, 326
S.E.2d 316, 319 (1985) (citing West v. Slick
, 60 N.C. App. 345,
347, 299 S.E.2d 657, 659 (1983), rev'd on other grounds
, 313 N.C.
33, 326 S.E.2d 601 (1985)), the appellee in such an instance must
nevertheless still be provided notice of the basis upon which an
appellate court might rule. Viar v. N.C. Dept. of Transp.
N.C. 400, 401, 610 S.E.2d 360, 361 (2005). In a case in which
summary judgment has been granted without a trial, that notice must
necessarily come from the plaintiff's pleadings, which must give
sufficient detail . . . so that the defendant and the Court can
obtain a fair idea of what the plaintiff is complaining, and can
see that there is some basis for recovery. Manning v. Manning
N.C. App. 149, 154, 201 S.E.2d 46, 50 (1973) (internal quotations
Mr. Morris's contention that Deerfield was on noticeconcerning its insurance claim because it was aware of its own
status as a continuing care community is specious at best. This
Court has stated that [a]n appeal has to follow the theory of the
trial, and where a cause is heard on one theory at trial, appellant
cannot switch to a different theory on appeal. Grissom v. Dep't
, 34 N.C. App. 381, 383, 238 S.E.2d 311, 312-13 (1977),
, 294 N.C. 183, 241 S.E.2d 517 (1978). Moreover, our
Supreme Court has long held that the law does not permit parties
to swap horses between courts in order to get a better mount.
Weil v. Herring
, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). With
respect to his claim of unfair and deceptive trade practices, Mr.
Morris's amended complaint contained no reference to Deerfield's
status as an insurance provider; rather, Mr. Morris asserted it was
Deerfield's representations as to a dementia day program that
constituted the deceptive acts. Mr. Morris cannot now advance a
new theory and hope to have a second bite at the apple, after
seeing his original theory fail at the trial court level. Because
the insurance claim is the only argument Mr. Morris offers in his
brief as the basis of the allegation of unfair and deceptive trade
practices, we dismiss this argument in support of this assignment
Secondly, Mr. Morris contends that he presented sufficient
evidence to create a genuine issue of material fact as to the
question of unfair and deceptive trade practices under Chapter 75.
To prevail on a claim for unfair and deceptive trade
practices, a claimant must demonstrate the existence of threefactors: (1) an unfair or deceptive act or practice, or unfair
method of competition, (2) in or affecting commerce, and (3) which
proximately caused actual injury to the plaintiff or his business.
Miller v. Nationwide Mut. Ins. Co.
, 112 N.C. App. 295, 301, 435
S.E.2d 537, 542 (1993), disc. review denied
, 335 N.C. 770, 442
S.E.2d 519 (1994); see also
N.C. Gen. Stat. § 75-1.1 (2005).
However, this Court has previously held that [i]t is well
recognized . . . that actions for unfair or deceptive trade
practices are distinct from actions for breach of contract, and
that a mere breach of contract, even if intentional, is not
sufficiently unfair or deceptive to sustain an action under
N.C.G.S. § 75-1.1. Branch Banking & Trust Co. v. Thompson
N.C. App. 53, 62, 418 S.E.2d 694, 700, disc. review denied
N.C. 482, 421 S.E.2d 350 (1992) (citations omitted); see also
Eastover Ridge, L.L.C. v. Metric Constructors, Inc.
, 139 N.C. App.
360, 368, 533 S.E.2d 827, 833 (in the context of a breach of
contract action, these sorts of [unfair and deceptive trade
practices] claims are most appropriately addressed by asking simply
whether a party adequately fulfilled its contractual obligations
(quoting Broussard v. Meineke Discount Muffler Shops, Inc.
F.3d 331, 347 (4th Cir. 1998))), disc. review denied
, 353 N.C. 262,
546 S.E.2d 93 (2000). The plaintiff must therefore show
substantial aggravating circumstances attending the breach to
recover under the Act, which allows for treble damages. Thompson
107 N.C. App. at 62, 418 S.E.2d at 700.
In support of his argument, Mr. Morris cites Murray v.Nationwide Mutual Insurance Co.
, a case in which an insurance
provider, after the very event insured against occur[red],
delayed payments and was found to have violated N.C. Gen. Stat. §
75-1.1. 123 N.C. App. 1, 472 S.E.2d 358 (1996), disc. review
, 345 N.C. 344, 483 S.E.2d 173 (1997). The polarity of
power between insurer and insured in such a situation, id.
472 S.E.2d at 363, as well as the violation of the company's duty
to settle claims under the North Carolina statutes governing
insurance providers, see
N.C. Gen. Stat. § 58-63-15(11), were cited
by this Court as factors contributing to liability under N.C. Gen.
Stat. § 75-1.1. Thus, Mr. Morris again attempts to present the new
insurance theory of his case on appeal. Indeed, he argues no such
aggravating circumstances attending the alleged breach of contract
in this case, only that Deerfield's representations regarding a
dementia daycare program were deceptive and calculated to induce
Plaintiffs to enter into an agreement with Deerfield for the
purchase of life care.
The record contains no evidence that
supports this contention of deliberate deception; moreover,
Deerfield made no misrepresentations, as Deerfield subsequently
provided to its residents what the written agreement and
promotional materials indicated.
In sum, because no genuine issue of material fact exists as to
Mr. Morris's claims of breach of contract and unfair and deceptive
trade practices, we affirm the summary judgment for Deerfield.
Judges McGEE and McCULLOUGH concur. Report per rule 30(e).
See Bruce-Terminix Co. v. Zurich Ins. Co.
, 130 N.C. App.
729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted); see also
N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005).
In his 27 July 2005 deposition, Plaintiff Robert Morris
states that his wife, Plaintiff Frances Morris, was judicially
incompetent on 28 May 2004, when she signed the verified amended
complaint in this case, and that she had not read the document
before signing it. Given Mrs. Morris's only technical (at best)
participation in this lawsuit, we refer only to Mr. Morristhroughout this opinion.
*** Converted from WordPerfect ***