Gunther v. Parker , 29 N.C. App. 264 ( 1976 )

MORRIS, Judge.

Plaintiff appellants contend that the trial court erred in granting defendants’ motion for a directed verdict. We agree.

Judge Arnold, speaking for our Court in Freeman v. Development Co., 25 N.C. App. 56, 59, 212 S.E. 2d 190 (1975), noted the general rule that “[i]n considering a motion for directed verdict, the court must view the evidence in the light most favorable to the non-moving party, giving to it the benefit of all reasonable inferences and resolving all inconsistencies in its favor. . . . The motion should be granted only if, as a matter of law, the evidence is insufficient to support a verdict for the non-movant.” Stated differently, “[i]n determining whether a judgment directing verdict for the defendant may be sustained . . . [a] 11 of the evidence which tends to support plaintiff’s claim must be taken as true and considered in the light most favorable to plaintiff, giving him the benefit of every reasonable inference which legitimately may be drawn therefrom.” May v. Mitchell, 9 N.C. App. 298, 300, 176 S.E. 2d 3 (1970).

Plaintiffs’ case touches on various theories of fraud, deceit, concealment and misrepresentation, but ostensibly, mainly rests on the alleged misrepresentation of the basement’s ability to withstand water inflows and the alleged concealment of circumstances which would have indicated that a serious problem existed.

The complaint for “ [a] ctionable misrepresentation consists of (1) a representation of a material fact, (2) which was false, (3) which was either known to be so by the defendant when it was made or which was made recklessly without any knowledge of its truth, (4) which was intended to induce reliance, and (5) which did induce reasonable reliance, (6) reliance which resulted in injury to plaintiff.” Austin v. Tire Treads, Inc., 21 N.C. App. 737, 739, 205 S.E. 2d 615 (1974). The plaintiffs’ duty to prove falsity, furthermore, must be “. . . evaluated at the time . . . [the alleged] representation . . . [was] made or when it . . . [was] acted upon by the plaintiff.” Id. at 740.

Here plaintiffs’ proof tended to meet the aforesaid requirements and indicated that defendants advised plaintiffs, upon inquiry, that the basement was “dry” but for one instance when water entered the homesite from broken or defective water downspouts. Plaintiffs’ evidence, however, contradicted defendants’ alleged representations, showing that defendants had engaged plumbers to render temporary repairs to a hopelessly defective sewer line system which had created a serious backflow into the basement. Plaintiffs also presented evidence tending to show that the plumbers’ initial probe trench for the sewer line was described to plaintiffs as merely an area suffering from soil erosion. Finally, plaintiffs presented uncontradicted evidence that defendants’ list of recommended repairmen omitted the name of the very plumbing company which had responded to defendants’ initial sewer problem several months prior to the sale.

Taken in the light most favorable to plaintiffs, this evidence warranted a denial of defendants’ motion for directed verdict. See: Jenkins v. Hawthorne, 269 N.C. 672, 153 S.E. 2d 339 (1967).

We are aware of this Court’s opinion in Goff v. Realty and Insurance Co., 21 N.C. App. 25, 203 S.E. 2d 65 (1974), cert. denied 285 N.C. 373 (1974), wherein the plaintiff buyer of a home sued the seller for fraud when sewage from other homes standing on higher ground flowed into plaintiffs’ property. Here, unlike Goff, the defendants, by failing to disclose upon inquiry the true nature of the dirt patch in the front of the house and in stating that the basement basically was “dry,” created a situation such that a jury could find that they had “resorted to . . . artifice which was calculated to induce plaintiffs to forego investigation.” Id. at 30.

The defendants’ alleged actions, representations, omissions and concealments raise important questions of fact and infer strongly that defendants purposely misled plaintiffs. Every seller wants to present his property in the best possible light, but that must not be confused with the kind of behavior alleged by plaintiffs and inferred by their evidence. This is not technically a lawsuit for concealment or misrepresentation of a defective sewer system; it is an action for misrepresentation of a basement’s condition and the related propriety of defendant’s purported behavior. As to this problem, plaintiffs have presented sufficient evidence, in our opinion, to have the question submitted to the jury.

Reversed.

Judges Hedrick and Arnold concur.