Converted WP file 051652-1

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, for plaintiff-appellant.

Womble Carlyle Sandridge & Rice, PLLC, by Christopher T. Graebe, for defendant-appellee.

    WYNN, Judge.

    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. Morris   (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 summary judgment.
    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 additional cost?

        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 community.
    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 contract claim.

    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., 359 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, 20 N.C. App. 149, 154, 201 S.E.2d 46, 50 (1973) (internal quotations omitted).
    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 of Revenue, 34 N.C. App. 381, 383, 238 S.E.2d 311, 312-13 (1977), cert. denied, 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 of error.
    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, 107 N.C. App. 53, 62, 418 S.E.2d 694, 700, disc. review denied, 332 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., 155 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 denied, 345 N.C. 344, 483 S.E.2d 173 (1997). The “polarity of power between insurer and insured” in such a situation, id. at 10, 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.
    Affirmed.
    Judges McGEE and McCULLOUGH concur.    Report per rule 30(e).

Footnote: 1