Trull v. Central Carolina Bank & Trust Co. , 117 N.C. App. 220 ( 1994 )

450 S.E.2d 542 (1994)

Randolph H. TRULL, Plaintiff,
v.
CENTRAL CAROLINA BANK & TRUST COMPANY; Richard H. Cronk, Jr.: and Player I, a North Carolina general partnership and Kitty Player Beck, Defendants.

No. 9310SC1280.

Court of Appeals of North Carolina.

December 6, 1994.

Burns, Day & Presnell, P.A. by Lacy M. Presnell, III, Raleigh, for plaintiff-appellant.

Barrow and Davis by Paul D. Davis, Raleigh, for defendant-appellee Central Carolina Bank and Trust Co.

THOMPSON, Judge.

Plaintiff appeals from an order entered 13 September 1993 granting defendant CCB's motion for summary judgment on all of plaintiff's claims against CCB. By order entered 4 October 1993, the 13 September 1993 order was amended to certify that the 13 September 1993 order is a final judgment in connection with plaintiff's claims against CCB and is therefore immediately appealable under N.C.Gen.Stat. § 1A-1, Rule 54(b) (1990).

Although plaintiff assigns error to the granting of summary judgment on all of his claims, his brief only discusses the assignment of error with respect to fraud claims. Because plaintiff's brief in chief failed to state any reason, argument or authority in support of its contention that summary judgment was improperly granted on his claims other than fraud, plaintiff's assignments of error with respect to that portion of the order are deemed abandoned. See Rule 28(b)(5) N.C.R.App.P. (1994). We also note that plaintiff has filed a reply brief pursuant to Rule 28(h)(2), which sets forth arguments and cites authority in support of his contention that summary judgment on his other claims was improper. The reply brief cannot, however, revive assignments of error which plaintiff has previously abandoned. Thus, the only issue before us is whether the trial court properly granted defendant CCB's motion for summary judgment on plaintiff's fraud claims.

In his complaint, plaintiff alleges that CCB fraudulently induced him to sign the 1 November 1989 $100,000 promissory note and that CCB and Cronk fraudulently induced him to purchase the property and to execute the $650,000 promissory note. Specifically, plaintiff alleges in his complaint that:

23.... [P]rior to November 1, 1989 CCB had learned that the Cronks were experiencing severe financial problems, difficulties in paying their loans and financial obligations, and were insolvent.

24. On November 1, 1989 CCB, while concealing its knowledge of the Cronks' insolvency, requested Trull to sign a Line of Credit Deed of Trust Promissory Note in the amount of $100,000, and Trull signed this renewal note on or about November 1, 1989. This note was a renewal of CCB loan number 88103 previously made to Richard and Kathleen Cronk. Prior to November 1, 1989, Trull had not signed and had no personal liability for this $100,000 loan. CCB had obtained a Deed of Trust on the property executed by the Cronks on October 13, 1988.

. . . . .

28. Shortly after June 1, 1990 Cronk and W. Emmett Quarles, an officer of CCB, met with Trull at CCB's offices and advised Trull of the foreclosure of the property. At this meeting CCB, acting through its duly authorized officer and Cronk together, made the following representations to Trull:

(a) if Trull did not purchase the property and pay all outstanding loans secured by deeds of trust on the property, CCB would collect its outstanding loans in an amount of over $240,000 from Trull;

(b) Cronk had nothing, and payment of all loans (including the $100,000 note Trull had been fraudulently induced to sign) would have to be paid solely by Trull;

(c) Trull had "no choice" but to buy the property;

(d) Trull should purchase the property, even though Trull told them repeatedly at the meeting that he did not want to buy the property;

(e) CCB would loan Trull the money to fund his purchase of the property; and

(f) that Quarles and Cronk would help Trull sell the property shortly after Trull purchased it.

The complaint further alleges that, because of these fraudulent acts, plaintiff is entitled to rescind his purchase of the property, the $650,000 promissory note to CCB and a 28 June 1991 promissory note for $43,775, which represents interest accrued on the $650,000 promissory note. The complaint also seeks the return of all collateral and security for these loans and damages from Cronk and CCB, jointly and severally, in excess of $10,000 for payments plaintiff made on these notes.

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." N.C.Gen.Stat. § 1A-1, Rule 56 (1990). The movant has the burden of establishing the lack of any genuine issue of material fact. Ramsey v. Keever's Used Cars, 92 N.C.App. 187, 374 S.E.2d 135 (1988). The movant may meet this burden by proving that an essential element of the opposing party's claim does not exist. If the movant satisfies his burden, the opposing party must come forward with facts which controvert the facts set forth in the moving party's case. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 414 S.E.2d 339 (1992).

The essential elements of an action based on fraud are (1) a 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, and (5) which results in damage to the injured party. N.C. Gen.Stat. § 1A-1, Rule 9(b) (1992) requires that a complaint charging fraud allege these elements with particularity. Hunter v. Spaulding, 97 N.C.App. 372, 377, 388 S.E.2d 630, 634 (1990). If it does not, summary judgment is proper. See Leake v. Sunbelt Ltd. of Raleigh, 93 N.C.App. 199, 205, 377 S.E.2d 285, 289, cert. denied 324 N.C. 578, 381 S.E.2d 774 (1989) (summary judgment proper on fraudulent representation claim where plaintiffs failed to allege defendants' intent at the time the alleged fraudulent misrepresentations were made and thus failed to satisfy Rule 9(b)). Defendant argues that summary judgment was proper because plaintiff's complaint failed to allege the essential elements of fraud with particularity. We agree. A complaint charging fraud against a corporation must specifically allege the time and occasion of the misrepresentation or concealment of material fact and the individual who made the misrepresentation or concealment in order to satisfy the requirements of Rule 9(b). Coley v. North Carolina National Bank, 41 N.C.App. 121, 125, 254 S.E.2d 217, 220 (1979).

Plaintiff's claim that CCB fraudulently procured his signature on the $100,000 promissory note fails to satisfy the particularity requirements because his complaint failed to allege the individual who concealed Cronk's financial condition and requested his signature on the $100,000 promissory note.

Plaintiff's claim that CCB fraudulently induced him to purchase the property and execute the $650,000 note does not meet the particularity requirements because there is no allegation that the representations which CCB's agent, W. Emmett Quarles, made were false or that Quarles either knew them to be false or made them with reckless indifference to the truth. See Watts v. Cumberland County Hosp. System, 74 N.C.App. 769, 774, 330 S.E.2d 256, 260-267 (1985), rev'd in part on other grounds, 317 N.C. 110, 343 S.E.2d 879 (1986) (plaintiff must prove that the false representations were made with knowledge of the truth or with reckless indifference thereto). Moreover, except for the representation that "Cronk had nothing," these representations were not of past or existing facts. While the representation that "Cronk had nothing," is of a past or existing fact, plaintiff's complaint asserts that this representation was true. The representations that CCB would collect its outstanding loans from Trull if Trull did not purchase the property, that CCB would lend Trull the money to purchase the property, and that Quarles and Cronk would help Trull sell the property shortly after he purchased it are promissory representations. A promissory misrepresentation will not normally support an allegation of fraud. It is true that fraud may be found where a promissory misrepresentation is made with an intent to deceive the party and at the time the misrepresentation is made defendant has no intention of performing his promise. Leake v. Sunbelt Ltd. of Raleigh, 93 N.C.App. 199, 204-205, 377 S.E.2d 285, 288-289, cert. denied, 324 N.C. 578, 381 S.E.2d 774 (1989). In this case, the representation that CCB would lend Trull the money to purchase the property was true. Even assuming that the promissory representations were false, there is no allegation that Quarles knew that CCB would not collect its outstanding loans from Trull or that Quarles and Cronk would not help Trull sell the property shortly after Trull purchased it. Thus, plaintiff has failed to allege defendant's fraudulent intent at the time those representations were made.

Even if plaintiff had properly pleaded fraud, defendant CCB would have been entitled to summary judgment as a matter of law. The record shows no genuine issue of material fact as to whether CCB fraudulently induced plaintiff to sign the $100,000 promissory note, to purchase the property, or to execute the $650,000 promissory note.

The order granting defendant CCB's motion for summary judgment is

Affirmed.

ARNOLD, C.J., and MARTIN, J., concur.