French Broad Place, LLC v. Asheville Sav. Bank , 259 N.C. App. 769 ( 2018 )


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  •                IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA17-1087
    Filed: 5 June 2018
    Transylvania County, No. 11 CVS 692
    FRENCH BROAD PLACE, LLC, Plaintiff,
    v.
    ASHEVILLE SAVINGS BANK, S.S.B., Defendant.
    Appeal by plaintiff from order entered 30 January 2017 by Judge Robert C.
    Ervin in Transylvania County Superior Court. Heard in the Court of Appeals 2 May
    2018.
    Johnston, Allison & Hord, P.A., by Martin L. White and Scott R. Miller, for
    plaintiff-appellant.
    Long, Parker, Warren, Anderson, Payne & McClellan, P.A., by Ronald K. Payne
    and Thomas K. McClellan, for defendant-appellee.
    TYSON, Judge.
    French Broad Place, LLC (“Plaintiff”) appeals the trial court’s order granting
    summary judgment to Asheville Savings Bank, S.S.B. (“Defendant”) and dismissing
    all of Plaintiff’s claims. We affirm the trial court’s order.
    I. Background
    A. The Project
    Plaintiff initiated development of a mixed-use construction and development
    project in downtown Brevard, North Carolina, called “French Broad Place” (the
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    “Project”) in 2007. The Project was planned as a four-story building, which would
    include office space, retail space, restaurants, residential condominiums, and an
    attached parking garage.        The project’s estimated cost was approximately
    $19,000,000.   Plaintiff sought a construction lender to finance the Project, and
    eventually selected Defendant as a lender.
    Plaintiff alleges Defendant proposed a tiered or “waterfall financing structure”
    that involved financing the Project in phases of development. Phase 1 allegedly
    included financing for purchasing the land for the Project, designing and constructing
    the building, and completion of the building shells of the individual units to the extent
    that a certificate of occupancy could be obtained. Phase 1 was projected to cost
    approximately $14,000,000.
    Phase 2 was to allegedly include financing for finishing the build-out of the
    residential units and finishing certain common areas. Phase 2 was projected to cost
    approximately $5,000,000.
    Plaintiff and Defendant executed a loan commitment dated 6 December 2007
    (the “Loan Commitment”). The Loan Commitment specified Defendant would loan
    Plaintiff the sum of $9,950,000.     Defendant denies that the loan it proposed to
    Plaintiff was to be phased, tiered, or include “waterfall financing.”
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    The Loan Commitment included several conditions required to be met before
    closing. One Loan Commitment condition required Plaintiff to obtain $700,000 in
    “pre-sales” funds.
    The “pre-sales” requirement of the Loan Commitment specifically states,
    Prior to any Bank funding Borrower shall provide copies of
    purchase agreements totaling a minimum of $8,820,000
    with a minimum of 10% non-refundable deposits. Of these
    pre-sales a minimum of $4,300,000 must be either
    commercial or office space. All purchase agreements must
    be reviewed and deemed acceptable by Asheville Savings
    Bank prior to Bank funding.
    Asheville Savings Bank shall be given first right of refusal
    on all pre-sales or sales to affiliated buyers. On those loans
    where Bank does not exercise that right, the Bank must
    receive and approve any and all written takeout
    commitments as well as any applicable lease agreements.
    Plaintiff alleges that after execution of the Loan Commitment, “Defendant
    agreed to accept commercial leases with options to purchase in lieu of regular pre-
    sale contracts, and agreed to count the leases with purchase options toward the ‘pre-
    sale contract requirement’” in the Loan Commitment. Plaintiff purportedly relied
    upon Defendant’s alleged allowing of the lease-option contracts to count towards the
    Loan Commitment’s pre-sales requirement, and it continued development and
    construction of the Project.
    According to the affidavit of Joshua Burdette, a principal of Plaintiff, on 20
    March 2008, several principals of Plaintiff purportedly met with officers of
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Defendant, to discuss the method by which Defendant would apply the lease-option
    contracts to meet Plaintiff’s pre-sale requirements under the Loan Commitment. At
    that meeting, Defendant’s officers purportedly explained to Plaintiff’s principals:
    [T]hat the lease option contracts alone could not be counted
    [towards] the required pre-sales under the Loan
    Commitment, but that [Defendant] could convert
    Plaintiff’s construction loan into individual “Takeout
    Loans,” . . . on any commercial units which were secured by
    a lease option contract, in lieu of a presale, and that the
    commercial units could simply be retained by Plaintiff as
    investment property to satisfy the presale requirements of
    the Loan Commitment.
    Around 10 June 2008, Bradley Hines, a vice-president of Defendant, contacted
    members of Plaintiff, and informed them that the “Takeout Loans” arrangement
    would have to change.      Plaintiff alleges Defendant instructed it to establish a
    separate legal entity to purchase the commercial units for which Plaintiff had
    previously obtained lease-option contracts: (1) the new entity was to establish deposit
    accounts in an entirely different bank than Defendant; (2) the new entity would enter
    into purchase agreements with Plaintiff for the commercial units that were subject
    to lease-option contracts; (3) the new entity would be pre-qualified to obtain take-out
    loans from Defendant on the commercial units secured by lease-option contracts; and,
    (4) Plaintiff’s guarantors were to seek out and obtain financing term sheets from other
    banks to demonstrate the marketability of the commercial units.
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Plaintiff followed Defendant’s purported recommendations, and several of
    Plaintiff’s officers and guarantors formed LBS Properties, LLC (“LBS”) and
    implemented the steps allegedly proposed by Defendant.
    In addition to the pre-sales requirement, another specific condition of the Loan
    Commitment provided Defendant was to “seek participant funding for no less than
    $2,000,000 from a participant Bank.” Plaintiff alleges it did not understand the
    $9,950,000 loan commitment to be contingent upon Defendant actually obtaining the
    participation from another bank.     Prior to the loan closing, Defendant informed
    Plaintiff that it had not been able to obtain the participation from another bank, and,
    as a result, that it would only be funding $7,750,000 of the $9,950,000 amount
    specified in the Loan Commitment. Defendant also requested Plaintiff to seek a
    replacement lender for the un-funded $2,000,000 of the loan.
    Plaintiff had commenced construction on the Project well in advance of the loan
    closing. Plaintiff owed Metromont Corporation (“Metromont”), a subcontractor on the
    Project, for portions of the Project, which had already been erected.         Plaintiff
    convinced Metromont to subordinate its contractor’s lien for $2,200,000 for costs
    incurred in exchange for a secured interest in the Project.
    On 8 August 2008, Plaintiff and Defendant closed on the construction loan
    agreement (the “Loan Agreement”) in the specific amount of $7,750,000.00 (the
    “Loan”). The Loan was evidenced by a promissory note (the “Note”) and deed of trust
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    in favor of Defendant. Plaintiff asserts the Loan Commitment required Defendant to
    loan the sum of $9,950,000, but that Defendant required Metromont to provide
    $2,200,000 in order to close. Plaintiff also alleges Defendant underfunded the Loan
    by approximately $300,000 at closing on 8 August 2008, and then wrongfully
    deducted another $300,000 from a draw Plaintiff sought on the Loan for October
    2008.
    In November 2008, Plaintiff submitted a change order request to Defendant in
    the amount of $725,801. Defendant approved the request and the parties agreed to
    a written loan modification (the “First Change in Terms Agreement”), which
    increased the stated total amount of the Loan outstanding from $7,750,000 to
    $8,475,801.    Plaintiff alleges Defendant unnecessarily delayed in approving the
    change order until closing in January 2009.
    By March 2009, three businesses were opening on the ground floor of the
    Project, several more were being constructed, and initial condominium sales were
    several months away from closing. Plaintiff alleges that in March 2009, Defendant
    began to refuse to finance the continued construction of the Project under the alleged
    phased or tiered funding, or “waterfall financing structure,” as Defendant had
    allegedly promised. Defendant also refused to provide the allegedly promised take-
    out loans, which Plaintiff avers ultimately caused the Project to fail due to lack of
    funding.
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Pursuant to a modification agreement the parties executed on 8 June 2009 (the
    “Second Change in Terms Agreement”), Defendant waived the required payment of
    the first $1,000,000 in release fees, due to Defendant upon the sale of commercial
    units in the Project, to help Plaintiff complete the construction on the Project. As
    required by the Second Change in Terms Agreement, the parties also executed a
    modification of Plaintiff’s note, deed of trust and related loan documents regarding
    the Project.     This Modification was recorded at Book 510, Page 398 of the
    Transylvania County Registry (“Modification of Note and Deed of Trust”).
    According to the express terms of this Modification, as of 8 June 2009:
    The total amount of all funds disbursed by Lender to
    Borrower to date under said Note, CLA [Construction Loan
    Agreement] and Deed of Trust, as amended by the LMA
    [Loan Modification Agreement] and Modification of Deed of
    Trust, included those funds deposited in the Interest
    Reserve Account, is $8,475,801.00. There are presently no
    Construction Loan funds left to be disbursed.
    B. The Complaint
    Plaintiff filed a verified complaint against Defendant on 28 December 2011. In
    its complaint, Plaintiff asserts claims for breach of contract, unfair trade practices,
    and breach of a fiduciary duty. Defendant filed a motion to dismiss, an answer and
    counterclaim on 12 March 2012. In its counterclaim, Defendant seeks payment in
    full on the Note and asserts Plaintiff had failed to pay the balance Defendant is owed.
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Upon a joint motion of the parties, the Chief Justice of North Carolina
    designated the matter as an exceptional case pursuant to Rule 2.1 of the General
    Rules of Practice of the Superior and District Courts on 1 October 2012.
    Following discovery, Defendant filed a motion for summary judgment on 15
    November 2016. Attached to Defendant’s motion for summary judgment was an
    affidavit of Brian Gillespie, an employee of Defendant, and an affidavit of David A.
    Kozak, an executive vice-president of Defendant.         In response to Defendant’s
    affidavits, Plaintiff submitted affidavits of Joshua Burdette and Scott Latell,
    principals of Plaintiff.
    The trial court entered an order granting summary judgment in favor of
    Defendant on all of Plaintiff’s claims and also granting summary judgment in favor
    of Defendant on its counterclaim against Plaintiff. Plaintiff filed timely notice of
    appeal.
    II. Jurisdiction
    Jurisdiction lies in this Court pursuant to N.C. Gen. Stat. § 7A-27(b) (2017) as
    an appeal from a final judgment of the superior court.
    III. Standard of Review
    Upon ruling on a motion for summary judgment, the court views the evidence
    in the light most favorable to the non-moving party and engages in a two-part
    analysis of whether:
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    (1) the pleadings, depositions, answers to interrogatories,
    and admissions on file, together with the affidavits, show
    that there is no genuine issue as to any material fact; and
    (2) the moving party is entitled to judgment as a matter of
    law.
    Summary judgment is appropriate if: (1) the non-moving
    party does not have a factual basis for each essential
    element of its claim; (2) the facts are not disputed and only
    a question of law remains; or (3) if the non-moving party is
    unable to overcome an affirmative defense offered by the
    moving party.
    Erthal v. May, 
    223 N.C. App. 373
    , 377-78, 
    736 S.E.2d 514
    , 517 (2012) (citations and
    quotation marks omitted), disc. review denied, 
    366 N.C. 421
    , 
    736 S.E.2d 761
    (2013).
    A defendant may show entitlement to summary judgment
    by (1) proving that an essential element of the plaintiff's
    case is non-existent, or (2) showing through discovery that
    the plaintiff cannot produce evidence to support an
    essential element of his or her claim, or (3) showing that
    the plaintiff cannot surmount an affirmative defense.
    Summary judgment is not appropriate where matters of
    credibility and determining the weight of the evidence
    exist. Once the party seeking summary judgment makes
    the required showing, the burden shifts to the nonmoving
    party to produce a forecast of evidence demonstrating
    specific facts, as opposed to allegations, showing that he
    can at least establish a prima facie case at trial. To hold
    otherwise . . . would be to allow plaintiffs to rest on their
    pleadings, effectively neutralizing the useful and efficient
    procedural tool of summary judgment.
    Draughon v. Harnett Cty. Bd. of Educ., 
    158 N.C. App. 208
    , 212, 
    580 S.E.2d 732
    , 735
    (2003) (citations and quotation marks omitted), aff’d per curiam, 
    358 N.C. 131
    , 
    591 S.E.2d 521
    (2004).
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    An order granting summary judgment is reviewed de novo on appeal.
    Howerton v. Arai Helmet, Ltd., 
    358 N.C. 440
    , 470, 
    597 S.E.2d 674
    , 693 (2004). The
    trial court’s interpretation of a contract is also reviewed de novo, because it involves
    a question of law. Harris v. Ray Johnson Constr. Co., 
    139 N.C. App. 827
    , 829, 
    534 S.E.2d 653
    , 654 (2000).
    IV. Analysis
    A. Materials Considered by the Trial Court
    Plaintiff argues this Court should not consider documents contained within a
    Rule 11(c) supplement to the record on appeal filed by Defendant. Plaintiff contends
    Defendant only filed four documents in support of its motion for summary judgment:
    (1) the motion, (2) Defendant’s unverified answer, (3) the affidavit of Brian Gillespie,
    and (4) the affidavit of David A. Kozak.
    Rule 56(c) of the N.C. Rules of Civil Procedure provides that summary
    judgment “shall be rendered forthwith 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(c) (2017).
    The proposed record on appeal was settled by agreement between the parties
    on 15 September 2017 and filed with this Court on 2 October 2017. The parties
    stipulated that they disagreed on whether numerous documents constituting
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Defendant’s Rule 11(c) supplement are properly part of the record on appeal. Plaintiff
    contends, while Defendant served the additional documents contained in and
    constituting its Rule 11(c) supplement with its brief in support of its motion for
    summary judgment upon opposing counsel and the trial court, Defendant did not offer
    the documents into evidence nor file the documents with the clerk of superior court.
    Defendant did present a copy to the trial court.
    Presuming, arguendo, the trial court did consider the materials attached to
    Defendant’s brief submitted to the court, Plaintiff failed to make any timely objection.
    Plaintiff argues it did not have to object, because the materials were not “filed” or
    “offered into evidence,” even though they were provided in advance to Plaintiff and
    attached to Defendant’s brief in support of its motion and were submitted to the trial
    court.
    To support its assertion that it did not have to object to the documents at issue,
    Plaintiff cites the reasoning of Judge Greene’s dissenting opinion in Barnhouse v. Am.
    Exp. Fin. Advisors, Inc., 
    151 N.C. App. 507
    , 
    566 S.E.2d 130
    (2002), as non-binding,
    but persuasive, authority. Barnhouse involved a pre-trial motion to stay proceedings
    and compel 
    arbitration. 151 N.C. App. at 507
    , 566 S.E.2d at 131. The trial court
    denied the defendants’ pre-trial motion to stay the proceedings and compel
    arbitration. 
    Id. at 507-08,
    566 S.E.2d at 130. On the defendants’ motion to stay and
    compel arbitration, the trial court had conducted a hearing and the defendants had
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    submitted a brief in support of their motion and attached the alleged arbitration
    agreement to their brief. 
    Id. at 510,
    566 S.E.2d at 133.
    The trial court denied the defendants’ motion to stay and compel arbitration.
    
    Id. On appeal,
    this Court noted there was “no indication that the trial court made
    any determination regarding the existence of an arbitration agreement” and the
    “dispositive issue is whether the trial court properly denied [the] defendants’ motion
    to stay proceedings without first determining whether or not an agreement to
    arbitrate existed between the parties.” 
    Id. at 508,
    509, 566 S.E.2d at 131-32
    . This
    Court reversed the trial court’s order because the trial court had not made a
    determination as to whether or not an agreement to arbitrate existed, and remanded
    to the trial court to make that determination. 
    Id. at 509,
    566 S.E.2d at 132.
    Judge Greene disagreed with the majority’s opinion that the trial court was to
    make findings regarding the existence of an arbitration agreement. 
    Id. at 510,
    566
    S.E.2d at 132 (Greene, J., dissenting). He stated the “dispositive issue is whether
    defendants met their burden of showing the existence of a written agreement to
    arbitrate.” 
    Id. at 511,
    566 S.E.2d at 133.
    Although defendants’ attorney attached a copy of the
    alleged agreement to the memorandum submitted to the
    trial court, the memorandum does not qualify as a Rule
    56(e) affidavit for two reasons: it was not sworn to, and it
    does not “show affirmatively that [the attorney] is
    competent to testify” with respect to the agreement. See
    N.C.G.S. § 1A-1, Rule 56(e). Furthermore, the attachment
    to the memorandum does not qualify as documentary
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    evidence because the memorandum was not filed with the
    trial court or otherwise presented into evidence.
    
    Id. at 512,
    566 S.E.2d at 134 (footnote omitted). Without reference to any authority,
    the dissenting opinion argued,“[b]ecause [the arbitration agreement] was neither
    presented into evidence nor filed with the trial court, plaintiff had no obligation to
    lodge an objection to its consideration.” 
    Id. at 512,
    n. 
    6, 566 S.E.2d at 134
    , n. 6. Judge
    Greene voted to affirm the trial court’s order denying the defendants’ motion to stay
    the proceedings and compel arbitration. 
    Id. at 512,
    566 S.E.2d at 134.
    Judge Greene’s reasoning in Barnhouse is inapplicable to the case at bar for
    several reasons. Barnhouse involved a motion to stay the proceedings and to compel
    arbitration, not a motion for summary judgment. See id. at 
    507, 566 S.E.2d at 131
    .
    The majority’s opinion in Barnhouse did not instruct the trial court to disregard the
    unverified agreement in determining whether an agreement to arbitrate existed upon
    remand, despite the dissenting opinion’s viewpoint that the trial court could not and
    properly did not consider the unverified agreement to arbitrate, attached to the
    defendant’s memorandum. 
    Id. at 509,
    566 S.E.2d at 132.
    Plaintiff also cites Gemini Drilling & Found., LLC v. Nat’l Fire Ins. Co. of
    Hartford to support its assertion that it did not have to object to Defendant’s
    submission of the documents at issue provided for the trial court’s consideration. 
    192 N.C. App. 376
    , 
    665 S.E.2d 505
    (2008). Gemini involved a bench trial on the plaintiff’s
    contractual claims. 
    Id. at 378-80,
    665 S.E.2d at 507-08. On appeal, the defendant
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    argued “the trial court erred by rejecting and refusing to consider certain exhibits
    that defense counsel had marked as exhibits but did not formally offer into evidence.”
    
    Id. at 386,
    665 S.E.2d at 511. This Court noted, “[d]uring the trial, defendant marked
    twenty-seven exhibits, but only formally offered into evidence five of them.” 
    Id. The defendant
    claimed its trial counsel had used the same language to enter
    into evidence the five admitted exhibits as it had eleven of the non-admitted exhibits
    “but, ‘without Trial Counsel’s notice, the Court’s manner of reply changed, effectively
    denying admission even though the gist of the Court’s response suggested that the
    documents were entered as evidence.’” 
    Id. (emphasis omitted).
               The defendant
    asserted the trial judge had made the comment, “All the evidence has now been
    presented. Anything which was marked but not offered into evidence is not in
    evidence in this particular case[,]” right as the trial judge left the bench, leaving the
    defendant no opportunity to request the trial court to consider the exhibits that had
    not been formally offered into evidence. 
    Id. This Court,
    after reviewing the trial record, concluded the defendant “had
    ample opportunity to clarify and rectify the situation[,]” because the trial judge did
    not make the comment in question, quoted above, literally as the trial judge was
    leaving the bench, but before closing arguments. 
    Id. After the
    trial judge made the
    comment in question, “[b]oth attorneys conversed with [the trial judge] before he
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    closed court and [the trial judge] specifically asked defense counsel if there was
    ‘[a]nything else’ that he wanted the court to consider.” 
    Id. at 387,
    665 S.E.2d at 512.
    Gemini is easily distinguished from the case at bar and does not support
    Plaintiff’s argument. The issue in Gemini regarded the trial exhibits and did not
    involve a motion for summary judgment. See 
    id. The exhibits
    in Gemini had been
    presented at trial, and were not documents submitted in support of a pre-trial motion
    for summary judgment. See 
    id. The reasoning
    of Gemini actually rebuts Plaintiff’s argument. The trial court
    in Gemini put the defendant on notice that it would not consider exhibits that had
    been marked, but not offered into evidence. 
    Id. On appeal,
    this Court overruled the
    defendant’s assignment of error, because the defendant had “an ample opportunity to
    clarify and rectify the situation.” 
    Id. The materials
    at issue were not “on file” with the trial court because they had
    not been filed with the clerk of court in accordance with Rule 5(d) of the Rules of Civil
    Procedure. N.C. Gen. Stat. § 1A-1, Rule 5(d). Plaintiff does not deny the documents
    at issue were served upon it and attached to Defendant’s brief in support of
    Defendant’s motion for summary judgment in accordance with Rule 5(a1) of the Rules
    of Civil Procedure. See N.C. Gen. Stat. § 1A-1, Rule 5 (2017) (requiring briefs or
    memoranda in support of summary judgment, and other dispositive motions, to be
    served upon each of the parties at least two days before the hearing on the motion).
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Defendant repeatedly referred to material in the documents at issue during the trial
    court’s hearing on its motion for summary judgment, in which Plaintiff had ample
    opportunity to object to Defendant’s submission of the documents.
    Plaintiff has failed to cite any binding authority, which supports its assertion
    that it was not required to object to Defendant’s submission of the documents at issue.
    Rule 56 of the Rules of Civil Procedure indicates a trial court is to only consider “the
    pleadings, depositions, answers to interrogatories, and admissions on file” in deciding
    whether to grant or deny summary judgment. N.C. Gen. Stat. § 1A-1, Rule 56
    (emphasis supplied).
    In other contexts, this Court has repeatedly held that a party’s failure to object
    to materials submitted to a trial court, which do not comply with the requirements of
    Rule 56, waives that party’s objection. See Yamaha Int’l Corp. v. Parks, 
    72 N.C. App. 625
    , 629, 
    325 S.E.2d 55
    , 58 (1985) (stating that, “[o]n a motion for summary
    judgment, uncertified or otherwise inadmissible documents may be considered if not
    challenged by timely objection.”); Whitehurst v. Corey, 
    88 N.C. App. 746
    , 748, 
    364 S.E.2d 728
    , 729-30 (1988) (stating that “failure to object to form or sufficiency of
    pleadings and affidavits waives objection on summary judgment” and an “affidavit
    not conforming to Rule 56(e) is subject to motion to strike,” but objection is waived
    absent the motion); Crocker v. Roethling, 
    217 N.C. App. 160
    , 165, 
    719 S.E.2d 83
    , 87-
    88 (2011) (holding, in part, that the plaintiff waived ten-day procedural notice
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    requirement of Rule 56(c) by participating in summary judgment hearing); N.
    Carolina Nat. Bank v. Harwell, 
    38 N.C. App. 190
    , 192, 
    247 S.E.2d 720
    , 722 (1978)
    (stating that “[f]ailure to make a timely objection to the form of affidavits supporting
    a motion for summary judgment [under Rule 56] is deemed a waiver of any
    objections.” (citations omitted)).
    Plaintiff acknowledges the materials were timely served upon it in connection
    with Defendant’s brief in support of its motion for summary judgment accordance
    with Rule 5(c). N.C. Gen. Stat. § 1A-1, Rule 5(c). Plaintiff had adequate notice of the
    materials because of Defendant’s repeated reference to them during the hearing on
    the motion for summary judgment. Plaintiff has offered no argument to support its
    notion that this Court should treat the disputed materials here any differently than
    other materials that do not conform to the requirements of Rule 56, and for which a
    party fails to make a timely objection before the trial court. Plaintiff was required to
    object to the disputed material’s failure to be filed and failed to do so. See 
    Yamaha, 72 N.C. App. at 629
    , 325 S.E.2d at 58; 
    Whitehurst, 88 N.C. App. at 748
    , 364 S.E.2d at
    729-30; 
    Crocker, 217 N.C. App. at 165
    , 719 S.E.2d at 87-88; 
    Harwell, 38 N.C. App. at 192
    , 247 S.E.2d at 722. Plaintiff’s argument is overruled.
    B. Affidavit of Scott Latell
    Defendant challenges the trial court’s consideration of the affidavit of Scott
    Latell and two attached telephone conversation transcripts submitted by Plaintiff to
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    the trial court. Although the trial court ultimately granted summary judgment in
    favor of Defendant, Defendant contends the trial court erred in admitting and
    considering the affidavit and the two attached transcripts. In light of our holding to
    affirm the trial court’s order granting summary judgment to Defendant, it is not
    necessary, and we decline, to address Defendant’s objection to the trial court’s
    consideration of Scott Latell’s affidavit and the two attached transcripts.
    C. Breach of Contract
    Plaintiff argues genuine issues of material fact exist in regard to its breach of
    contract claim. “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).
    Plaintiff’s verified complaint alleges Defendant committed several breaches of
    the agreements the parties had entered into with regard to financing the Project,
    including:
    a. failing to provide the required amount of initial
    financing;
    b. underfunding the loan;
    c. delaying change-order requests;
    d. refusing to finance the Take-Out Loans as
    promised; and
    e. violating the covenant of good faith and fair
    dealing.
    - 18 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    We analyze each alleged breach in turn.
    1. Failure to Provide the Required Amount of Initial Financing
    Plaintiff asserts the parties’ Loan Commitment required Defendant to provide
    $9,950,000 in funds for initial financing from the Loan Agreement instead of the
    $7,750,000 provided and advanced at closing. Viewing the evidence in the light most
    favorable to Plaintiff including the loan documents attached to Plaintiff’s complaint,
    no genuine issue of material fact exists of whether Defendant failed to provide the
    initial amount of financing. When the parties closed on the loan on 8 August 2008,
    in addition to the Loan Agreement, they executed a notice of final agreement
    containing a merger clause indicating it supersedes the earlier executed Loan
    Commitment. Specifically, the notice of final agreement states, in relevant part:
    BY SIGNING THIS DOCUMENT EACH PARTY
    REPRESENTS AND AGREES THAT: (A) THE WRITTEN
    LOAN AGREEMENT REPRESENTS THE FINAL
    AGREEMENT BETWEEN THE PARTIES, (B) THERE
    ARE     NO UNWRITTEN     ORAL   AGREEMENTS
    BETWEEN THE PARTIES, AND (C) THE WRITTEN
    LOAN AGREEMENT MAY NOT BE CONTRADICTED
    BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS,
    OR    SUBSEQUENT    ORAL   AGREEMENTS    OR
    UNDERSTANDINGS OF THE PARTIES. [Emphasis
    supplied].
    In addition, the Loan Agreement provides:
    RELATIONSHIP TO THE AGREEMENT: The terms and
    provisions of this Agreement, the Note and the Related
    Documents supersede any inconsistent terms and
    - 19 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    conditions of Lender’s construction loan commitment letter
    to Borrower, provided that all obligations of Borrower
    under this commitment to pay any fees to Lender or any
    costs and expenses relating to the Loan on the commitment
    shall survive the execution and delivery of this Agreement,
    the Note and the Related Documents. [Emphasis supplied].
    The plain language in the Loan Agreement, which Plaintiff does not contest it
    executed, indicates the Loan Agreement’s provision for $7,750,000 in financing
    supersedes the earlier Loan Commitment’s provision for $9,950,000.
    The parties also executed the Second Change in Terms Agreement in June
    2009, several months after Plaintiff alleges Defendant had failed to provide the initial
    amount of financing. The Second Change in Terms Agreement provides in relevant
    part:
    13. Ratification of all Loan Documents, as Modified.
    Borrower and Lender agree that the Note, Deed of Trust,
    CLA [Construction Loan Agreement] and all other Loan
    Documents, as modified by the LMA [Loan Modification
    Agreement], the Modification of Deed of Trust and this
    Modification, are hereby ratified and confirmed to be in full
    force and effect and Borrower further confirms and agrees
    that there presently exists no defenses, offsets, or other
    claims with respect to the same, as modified hereby.
    [Emphasis supplied].
    Based upon the clear and unambiguous language of the Loan Agreement and
    the two Change in Terms Agreements, Defendant was not obligated to provide the
    $9,950,000 in financing initially specified by the Loan Commitment. Presuming¸
    arguendo, Defendant was obligated to provide the $9,950,000 under the Loan
    - 20 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Agreement, Plaintiff waived any claims it may have had for Defendant’s failure to
    provide the initial amount of financing in the Second Change in Terms Agreement.
    Plaintiff does not dispute they entered into these agreements. No genuine issue of
    material fact exists with respect to this alleged breach. Defendant’s argument is
    overruled.
    2. Underfunding the Loan
    Plaintiff also alleges Defendant breached the parties’ loan contracts by
    underfunding the Loan. According to the Modification of Note and Deed of Trust
    executed by the parties on 18 June 2009, Defendant had disbursed all of the loan
    funds it was required to disburse under the parties’ Loan Commitment, Loan
    Agreement, and later modifications. The Modification of Note and Deed of Trust both
    parties executed specifically provides:
    The total amount of all funds disbursed by Lender to
    Borrower to date under said Note, CLA [Construction Loan
    Agreement] and Deed of Trust, as amended by the LMA
    [Loan Modification Agreement] and Modification of Deed of
    Trust, including those funds deposited in the Interest
    Reserve Account, is $8,475,801.00. There are presently no
    Construction Loan funds left to be disbursed.
    Plaintiff has failed to produce any writing or agreement contradicting the
    Modification of Note and Deed of Trust to indicate Defendant underfunded the loan.
    Plaintiff has not alleged Defendant entered into any subsequent modification of the
    Loan Agreement after 18 June 2009, which obligated Defendant to loan additional
    - 21 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    funds beyond the stated amount. Plaintiff’s arguments regarding Defendant’s alleged
    underfunding of the loan are overruled.
    3. Delaying Change Order Requests
    Plaintiff also alleges Defendant breached the parties’ loan agreements by its
    delay in approving Plaintiff’s November 2008 change order request for $725,801. The
    Loan Agreement does not indicate Defendant was required to loan any more money
    at the time Plaintiff submitted its change order request. The Modification of Note
    and Deed of Trust executed by the parties and attached to Plaintiff’s verified
    complaint specifically states:
    WHEREAS, at the request of Borrower, Lender agreed to
    lend Borrower an additional $725,801.00 by increasing the
    amount of the Construction Loan from $7,750,000 to
    $8,475,800.00. To reflect this increase in the amount of the
    Construction Loan, Borrower and Lender entered into a
    Change In Terms Agreement dated January 23, 2009 (the
    “LMA”) increasing the amount of the Construction Loan,
    and the principal amount of the Note, from $7,750,000.00
    to $8,475,801.00.
    As analyzed above, Plaintiff specifically waived claims relating to the parties’
    obligations under the Loan Agreement and related documents in the Modification of
    Note and Deed of Trust, which states:
    Borrower and Lender agree that the Note, Deed of Trust,
    CLA [Loan Agreement] and all other Loan Documents, as
    modified by the LMA [Change in Terms Agreement], the
    Modification of Deed of Trust and this Modification, are
    hereby ratified and confirmed to be in full force and effect
    and Borrower further confirms and agrees that there
    - 22 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    presently exists no defenses, offsets or other claims with
    respect to the same, as modified hereby.
    Plaintiff has specifically waived any claim asserting Defendant has breached
    the Loan Agreement and related agreements by its purported delay in funding
    Plaintiff’s change order request. The Loan Agreement and related modifications,
    which Plaintiff does not deny it executed and which are attached and referenced in
    its verified complaint, establish no genuine issue of material fact exists with regard
    to Defendant’s alleged breach due to any purported delay in funding Plaintiff’s change
    order request. Plaintiff’s arguments are overruled.
    4. Refusing to Finance Take-Out Loans
    Plaintiff also alleges Defendant breached its loan agreements by failing to
    provide take-out financing for the purchase of commercial units by LBS, the
    additional ownership entity established by Plaintiff. Nothing in the terms of the Loan
    Commitment, Loan Agreement, and any related modifications obligated Defendant
    to provide take-out loans to either Plaintiff or LBS.
    Brian Gillespie’s affidavit, submitted by Defendant in support of its motion for
    summary judgment, states, in relevant part:
    18. Shortly after the closing, Bradley Hines, with whom I
    worked on this project, and I began to make inquiry of
    French Broad Place, LLC as to how it was going with
    respect to obtaining loan commitments for the purchases
    by LBS. These communications continued over a period of
    time and we were constantly told that LBS had a lot of
    interest from other lenders to make the “take-out loans” to
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    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    LBS.
    19. Thereafter, an email was sent to Lyle Priest who had
    sent two emails requesting loans for take-outs for LBS and
    Mr. Priest was informed that certain documentation would
    be needed in order for the LBS loan requests to be
    considered by Asheville Savings Bank.
    20. Subsequent to the request for financial information
    sought in an email dated February 17, 2010 from Bradley
    Hines, neither LBS nor any of the principals submitted any
    of the requested information necessary for Asheville
    Savings Bank to determine whether or not such loan could
    be approved.
    Viewing the evidence in the light most favorable to Plaintiff, nothing in the
    record challenges or contradicts Brian Gillespie’s sworn statement that the LBS
    financial information requested by Defendant was not provided.          Additionally,
    Plaintiff has not provided written documents detailing the specific terms of any take-
    out loans that Defendant allegedly agreed to make, only an affidavit of Joshua
    Burdette, recollecting the essential terms of potential take-out loans discussed
    between the parties on 20 March 2008. As 
    discussed supra
    , when the parties closed
    on the construction loan on 8 August 2008, they executed a notice of final agreement
    which states, in relevant part:
    BY SIGNING THIS DOCUMENT EACH PARTY
    REPRESENTS AND AGREES THAT: (A) THE WRITTEN
    LOAN AGREEMENT REPRESENTS THE FINAL
    AGREEMENT BETWEEN THE PARTIES, (B) THERE
    ARE  NO   UNWRITTEN    ORAL     AGREEMENTS
    BETWEEN THE PARTIES, AND (C) THE WRITTEN
    LOAN AGREEMENT MAY NOT BE CONTRADICTED
    - 24 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS,
    OR    SUBSEQUENT    ORAL   AGREEMENTS  OR
    UNDERSTANDINGS OF THE PARTIES. [Emphasis
    supplied].
    Plaintiff has failed to produce or indicate the existence of any written
    agreement, which obligated Defendant to provide the alleged take-out loans. To the
    extent Defendant or its representatives may have orally promised to provide take-out
    financing prior to the execution of the Loan Agreement, the notice of final agreement
    entered into between the parties expressly disclaims the existence of any oral
    agreement or contract obligating Defendant to do so.
    Additionally, any commitment to make a commercial loan in excess of $50,000
    must be in writing and signed by the parties pursuant to the relevant statute of
    frauds. N.C. Gen. Stat. § 22-5 (2017).
    Undisputed evidence indicates LBS did not make requests for take-out loans
    until February 2010, when it made requests for two loans. Both of these requests
    were for take-out loans of $460,000 and $797,000, respectively, well in excess of the
    $50,000 limit to trigger the statute of frauds.
    Any commitment Defendant would have made to provide take-out loans in
    excess of $50,000 was required to be in writing and signed by the parties. 
    Id. Plaintiff has
    not produced any such writing nor alleged such a writing exists. Plaintiff has
    failed to demonstrate any genuine issue of material fact exists that Defendant
    breached an agreement to provide take-out loans.
    - 25 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    5. Violating the Implied Covenant of Good Faith and Fair Dealing
    Plaintiff alleges Defendant breached their loan agreements by violating the
    implied covenant of good faith and fair dealing. “In every contract there is an implied
    covenant of good faith and fair dealing that neither party will do anything which
    injures the right of the other to receive the benefits of the agreement.” Bicycle Transit
    Authority v. Bell, 
    314 N.C. 219
    , 228, 
    333 S.E.2d 299
    , 305 (1985) (citation omitted).
    The undisputed terms of the parties’ Modification of Note and Deed of Trust
    indicates Defendant had disbursed all of the loan funds it was contractually obligated
    to disburse under the parties’ Loan Agreement and related modifications. Defendant
    exceeded the initial terms of the parties’ Loan Agreement by agreeing to waive the
    first $1,000,000 in release fees owed in order to help Plaintiff. Plaintiff has failed to
    demonstrate any genuine issue of material fact that Defendant breached the covenant
    of good faith and fair dealing.
    D. Unfair or Deceptive Trade Practices
    Plaintiff alleges Defendant engaged in unfair or deceptive trade practices
    based upon Defendant’s alleged breaches of the loan agreements. “Breach of contract,
    even if intentional, can only create a basis for an unfair [or] deceptive trade practices
    claim if substantial aggravating circumstances attend the breach.” Rider v. Hodges,
    __ N.C. App. __, __, 
    804 S.E.2d 242
    , 249 (2017) (citing Watson Elec. Constr. Co. v.
    Summit Cos., LLC, 
    160 N.C. App. 647
    , 657, 
    587 S.E.2d 87
    , 95 (2003)).
    - 26 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    We decline to address if aggravating circumstances tend to support Plaintiff’s
    unfair or deceptive trade practices claim. Plaintiff has failed to demonstrate any
    genuine issues of material fact exist that Defendant breached any of the parties’ loan
    agreements. See 
    id. E. Breach
    of Fiduciary Duty
    Plaintiff alleges Defendant owed it a fiduciary duty “to act in good faith and
    with due regard to the interests of Plaintiff” and that Defendant breached its
    fiduciary duty by: (1) failing to provide the required amount of initial financing; (2)
    underfunding the loan; (3) delaying change-order requests; and (4) refusing to finance
    take-out loans as promised.
    For a breach of fiduciary duty to exist, there must first be
    a fiduciary relationship between the parties. Such a
    relationship has been broadly defined by this Court as one
    in which there has been a special confidence reposed in one
    who in equity and good conscience is bound to act in good
    faith and with due regard to the interests of the one
    reposing confidence . . . [and] it extends to any possible case
    in which a fiduciary relationship exists in fact, and in
    which there is confidence reposed on one side, and
    resulting domination and influence on the other.
    Dalton v. Camp, 
    353 N.C. 647
    , 651, 
    548 S.E.2d 704
    , 707-08 (2001) (internal quotation
    marks omitted).
    To establish a claim for breach of a fiduciary duty, claimants are “required to
    produce evidence that (1) defendants owed them a fiduciary duty of care; (2)
    defendants . . . violat[ed] . . . their fiduciary duty; and (3) this breach of duty was a
    - 27 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    proximate cause of injury to plaintiffs.” Farndale Co., LLC v. Gibellini, 
    176 N.C. App. 60
    , 68, 
    628 S.E.2d 15
    , 20 (2006). In North Carolina, the general rule holds:
    Ordinary borrower-lender transactions . . . are considered
    arm’s length and do not typically give rise to fiduciary
    duties. In other words, the law does not typically impose
    upon lenders a duty to put borrowers’ interests ahead of
    their own. Rather, borrowers and lenders are generally
    bound only by the terms of their contract and the Uniform
    Commercial Code.
    Dallaire v. Bank of Am., N.A., 
    367 N.C. 363
    , 368, 
    760 S.E.2d 263
    , 266-67 (2014)
    (internal citations omitted); see Sec. Nat’l Bank of Greensboro v. Educators Mut. Life
    Ins. Co., 
    265 N.C. 86
    , 95, 
    143 S.E.2d 270
    , 276 (1965) (“There was no fiduciary
    relationship; the relation was that of debtor and creditor.”).
    “Nonetheless, because a fiduciary relationship may exist under a variety of
    circumstances, it is possible, at least theoretically, for a particular bank-customer
    transaction to give rise to a fiduciary relation given the proper circumstances.” 
    Id. at 368,
    760 S.E.2d at 267 (internal citations and quotation marks omitted). To establish
    a fiduciary relationship in the creditor-debtor context, there “must [be] some
    additional fact which tends to elevate the relationship above that of a typical debtor
    and creditor.” Lynn v. Federal Nat. Mort. Ass’n, 
    235 N.C. App. 77
    , 82, 
    760 S.E.2d 372
    ,
    376 (2014).
    A fiduciary duty, in the context of a financing party to a
    corporation, arises only when the evidence establishes that
    the party providing financing to a corporation completely
    dominates and controls its affairs. Edwards v. Bank, 39
    - 28 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    N.C. App. 261, 277, 
    250 S.E.2d 651
    , 662 (1979); Pappas v.
    NCNB Nat. Bank of North Carolina, 
    653 F. Supp. 699
    , 704
    (M.D.N.C. 1987). Further, to justify the imposition of a
    fiduciary obligation on a party financing the affairs of a
    corporation, it must be shown that the financing party
    essentially dominated the will of its debtor. In re Prima
    Co., 
    98 F.2d 952
    (7th Cir. 1938), cert. denied, 
    305 U.S. 658
    ,
    
    83 L. Ed. 426
    (1939).
    Multifamily Mortg. Tr. 1996-1 v. Century Oaks Ltd., 
    139 N.C. App. 140
    , 146, 
    532 S.E.2d 578
    , 581-82 (2000) (emphasis supplied).
    Here, there is no genuine issue that Plaintiff and Defendant were in a debtor-
    creditor relationship, which is not per se a fiduciary relationship. See 
    Dallaire, 367 N.C. at 368
    , 760 S.E.2d at 266-67.         Plaintiff alleges and argues Defendant so
    thoroughly dominated the will of Plaintiff with respect to the Project that a fiduciary
    relationship existed between them.
    Plaintiff asserts the following facts tend to show Defendant dominated and
    controlled Plaintiff’s affairs: Defendant’s control of distribution and withdrawals to
    members and all buy/sell agreements between the members for membership
    interests, Defendant’s giving of legal advice regarding how to set up LBS, Defendant’s
    dictating of financing regarding Metromont, Defendant’s promise to make take-out
    loans upon which Plaintiff relied, and Plaintiff’s utter dependence on Defendant’s
    financing.
    “As a matter of law, there can be no fiduciary relationship between ‘parties in
    equal bargaining positions dealing at arm’s length, even though they are mutually
    - 29 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    interdependent businesses.’” Dreamstreet Investments, Inc. v. MidCountry Bank, 
    842 F.3d 825
    , 831 (4th Cir. 2016) (quoting Strickland v. Lawrence, 
    176 N.C. App. 656
    ,
    662, 
    627 S.E.2d 301
    , 306 (2006)).
    Reviewing the evidence in the light most favorable to Plaintiff, nothing tends
    to show the relationship between Plaintiff and Defendant was anything other than
    an agreement between two sophisticated commercial entities dealing at arm’s length.
    Undisputed evidence in the record indicates Plaintiff’s development team members
    had accumulated nearly 150-years’ worth of combined experience in commercial real
    estate construction and development before entering into the loan agreements with
    Defendant.
    Additionally, Mark Latell, a principal of Plaintiff, indicated in his deposition
    that Plaintiff had retained a consultant, Lyle Preest, to help them find lenders for the
    Project. Mr. Latell described Mr. Preest as “very knowledgeable with banking and
    lending and borrowing.”      Numerous emails submitted to the trial court show
    correspondence between Mr. Preest and Bradley Hines, the vice-president of
    commercial lending of Defendant, dating from before and after the closing of the Loan
    Agreement.    These emails discuss several critical matters relating to the loan
    agreements, including Plaintiff obtaining third-party financing, obtaining take-out
    financing, and the pre-sales of commercial units.
    - 30 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    Nothing indicates Plaintiff reposed any sort of special confidence in Defendant
    to create a fiduciary relationship. 
    Dalton, 353 N.C. at 651
    , 548 S.E.2d at 707.
    Plaintiff’s consultation with Lyle Preest as an outside expert is inconsistent with a
    fiduciary relationship. See Branch Banking & Trust Co. v. Thompson, 
    107 N.C. App. 53
    , 61, 
    418 S.E.2d 694
    , 699 (1992) (finding no fiduciary relationship on action for
    summary judgment where party asserting fiduciary relationship with bank consulted
    with banker and accountant before entering into agreement); see also Sullivan v.
    Mebane Packaging Grp., Inc., 
    158 N.C. App. 19
    , 33, 
    581 S.E.2d 452
    , 462 (2003)
    (finding evidence that complaining party obtained outside counsel rebuts existence of
    fiduciary relationship necessary for constructive fraud claim). Furthermore, nothing
    in the record indicates Plaintiff was foreclosed from consulting with an attorney, or
    other advisors of its choice, prior to executing the Loan Commitment and Loan
    Agreement with Defendant.
    No evidence tends to show Defendant “essentially dominated the will” of
    Plaintiff or “completely dominate[d] and control[led]” Plaintiff’s affairs. Multifamily
    Mortg., 
    139 N.C. App. 140
    , 146, 
    532 S.E.2d 578
    , 581-82 (2012) (citations omitted).
    No genuine issue of material facts exists of whether Plaintiff and Defendant
    were in a fiduciary relationship. Plaintiff has not produced evidence tending to show
    this essential element of a breach of fiduciary relationship claim. The trial court’s
    order properly granted Defendant summary judgment on this claim.
    - 31 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    F. Defendant’s Counterclaim on Promissory Note
    Plaintiff argues the trial court erred in granting Defendant’s motion for
    summary judgment on Defendant’s counterclaim for payment on the promissory note.
    The promissory note was executed by Plaintiff on 8 August 2008 for the principal
    amount of $7,750,000.00. This note was modified by the First Change in Terms
    Agreement on 23 January 2009, and the principal amount was increased to
    $8,475,801.00.   On 8 June 2009, Plaintiff executed a Second Change in Terms
    Agreement, which altered the formula used to calculate the interest rate.
    In support of Defendant’s motion for summary judgment, Defendant submitted
    the affidavit of David A. Kozak, executive vice-president of Defendant. David A.
    Kozak stated that Defendant was owed $10,491,440.16 along with interest and
    attorney’s fees per the parties’ Loan Agreement and that Plaintiff had defaulted.
    Plaintiff argues due to Defendant allegedly breaching its obligations under the
    loan agreements, Plaintiff is not obligated to pay on the note. The uncontradicted
    evidence in the form of the parties’ 18 June 2009 Modification of Note and Deed of
    Trust shows Defendant disbursed all funds it was required to loan under the
    agreements evidenced by the note.      Plaintiff has not presented any evidence to
    contradict David A. Kozak’s affidavit stating Plaintiff was in default.
    Based upon our holding to affirm the trial court’s determination that
    Defendant is entitled to summary judgment on Plaintiff’s breach of contract claims,
    - 32 -
    FRENCH BROAD PLACE, LLC V. ASHEVILLE SAVINGS BANK, S.S.B.
    Opinion of the Court
    no genuine issue of material fact exists with regard to Defendant’s counterclaim for
    collection on the stated and uncontested sums in the note with interest and
    contractually-agreed attorney’s fees. Plaintiff’s arguments are overruled.
    V. Conclusion
    Viewing the evidence in the light most favorable to Plaintiff, Plaintiff has failed
    to establish any genuine issue of material fact exists with regard to its claims for
    breach of contract, unfair or deceptive trade practices, and breach of fiduciary duty.
    Plaintiff has also failed to demonstrate any genuine issue of material fact exists with
    respect to Defendant’s counterclaim for contribution on the promissory note.
    Defendant is entitled to summary judgment as a matter of law with respect to
    Plaintiff’s claims and its counterclaim. The trial court’s order granting summary
    judgment to Defendant is affirmed. It is so ordered.
    AFFIRMED.
    Judges ELMORE and ZACHARY concur.
    - 33 -