{
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  "name": "ROBERT A. McCLAIN and MARCIA G. OSWALD, Plaintiffs v. MARY K. WALKER, a/k/a WALKER REALTY ASSOCIATES, RE/MAX REALTY ASSOCIATES, WILMER C. WALDROP, and VIRGINIA WALDROP, Defendants; WILMER C. WALDROP and VIRGINIA WALDROP, Third-Party Plaintiffs v. MARY K. WALKER and PIERRE L. WALKER, each individually and t/a and d/b/a RE/MAX REALTY ASSOCIATES and WALKER REALTY ASSOCIATES, Third-Party Defendants",
  "name_abbreviation": "McClain v. Walker",
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    "judges": [
      "Judges LEWIS and SMITH concur."
    ],
    "parties": [
      "ROBERT A. McCLAIN and MARCIA G. OSWALD, Plaintiffs v. MARY K. WALKER, a/k/a WALKER REALTY ASSOCIATES, RE/MAX REALTY ASSOCIATES, WILMER C. WALDROP, and VIRGINIA WALDROP, Defendants WILMER C. WALDROP and VIRGINIA WALDROP, Third-Party Plaintiffs v. MARY K. WALKER and PIERRE L. WALKER, each individually and t/a and d/b/a RE/MAX REALTY ASSOCIATES and WALKER REALTY ASSOCIATES, Third-Party Defendants"
    ],
    "opinions": [
      {
        "text": "WALKER, Judge.\nIn April, 1991, Wilmer and Virginia Waldrop (the Waldrops) listed their property for sale with Mary K. Walker (Walker), t/a and d/b/a Re/Max Realty Associates and Walker Realty Associates (Walker Realty). Soon thereafter, Walker brought Robert McClain (McClain), a prospective purchaser, to view the Waldrop property. At that time, Mr. Waldrop pointed out to McClain generally where the boundaries of the property were. On 24 April 1991, McClain and his wife made an offer to purchase the property for $250,000.00. The Offer to Purchase and Contract, prepared by Walker, stated the address of the property as \u201cRt. 1, Box 217AA, Maple Hill, N.C.,\u201d and the description of the property as \u201cMetes & bounds as recorded In Deed Book 573, Page 636, Onslow County Registry.\u201d (R. at 55). According to McClain, when he asked why the house and other buildings on the property were not mentioned in the offer, Walker responded that the \u201cmetes and bounds description of property is the most accurate description of property that can be used in the real estate industry.\u201d (R. at 255).\nThe McClains\u2019 offer was accepted by the Waldrops subject to an appraisal of the property and a change in the occupancy date. The McClains applied for a VA loan which also required that the property be appraised. The VA appraisal was $120,000.00, and Walker told McClain that this appraisal value was low because it only included the house and five acres, and not the entire tract. As a result of the VA appraisal, on 11 June 1991, Walker prepared a second offer to purchase the property in the amount of $235,000.00. This offer, which recited the same address and description as the first offer, was also accepted by the Waldrops.\nPrior to the date of the second offer, the Waldrops conveyed two tracts that were included in the description of the original tract recorded in Deed Book 573, Page 636. A 1.0 acre tract, known as the \u201cDorn tract,\u201d was sold on 23 May 1984, and a 1.93 acre tract, known as the \u201cThorne tract,\u201d was sold on 10 May 1991. However, despite the fact that the Waldrops sold these two tracts, the description in both of the McClains\u2019 offers to purchase remained the same. McClain maintains that he was never informed by Walker or the Waldrops that the description contained in his offers did not include the Dorn and Thorne tracts, and that he believed he purchased all the property described in Deed Book 573, Page 636.\nThe McClains filed this action against Walker individually, Walker Realty, and the Waldrops for breach of contract, fraud, and unfair and deceptive trade practices. The Waldrops filed a crossclaim and third-party complaint against Mary and Pierre Walker individually and Walker Realty alleging negligence in the preparation of the second offer to purchase and seeking contribution or indemnity. Subsequently, the trial court ordered the McClains to provide a more definite statement in support of their claims of fraud and unfair and deceptive trade practices by the Waldrops. In their statement, the McClains excluded any fraud or unfair and deceptive trade practices claims against the Waldrops. After a hearing, the trial court granted summary judgment in favor of the Waldrops on the McClains\u2019 breach of contract claim and in favor of Walker and Walker Realty on the McClains\u2019 fraud and unfair and deceptive trade practices claims. The trial court also granted summary judgment in favor of the Walkers and Walker Realty on the Waldrops\u2019 crossclaim and third-party complaint.\nThe McClains contend the trial court erred in granting summary judgment arguing that an issue of fact exists regarding whether the Waldrops, through their selling agent, Walker, breached their contract with the McClains to sell the property described in Deed Book 573, Page 636, and also that Walker knowingly made material misrepresentations to or concealed material facts from the McClains about this property by using the description of the original Waldrop tract in the McClains\u2019 offers to purchase after the Dorn and Thome tracts had been conveyed. Additionally, the Waldrops contend the trial court erred by granting summary judgment on their crossclaim and third-party complaint because an issue of fact exists as to whether Walker was negligent in the preparation of the second offer to purchase.\nSummary judgment is proper when \u201cthe 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.\u201d N.C.R. Civ. P. 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Builders Supply Co. v. Eastern Associates, 24 N.C. App. 533, 536, 211 S.E.2d 472, 474-75 (1975). In passing on a motion for summary judgment, the trial court \u201cmust consider the evidence in the light most favorable to the nonmovant, and the slightest doubt as to the facts entitles him to a trial.\u201d Snipes v. Jackson, 69 N.C. App. 64, 72, 316 S.E.2d 657, 661, appeal dismissed and cert. denied, 312 N.C. 85, 321 S.E.2d 899 (1984).\nAt summary judgment, the evidence presented, when viewed in the light most favorable to the McClains, established that an issue of fact exists regarding whether the parties intended for the description in Deed Book 573, Page 636 to control their agreement.\nWhere issues surrounding the interpretation of the terms of a contractual agreement are concerned, the generally accepted rule is that the intention of the parties controls, and the intention can usually be determined by considering the subject matter of the contract, language employed, the objective sought and the situation of the parties at the time when the agreement was reached.... [I]f the terms employed are subject to more than one reasonable meaning, the interpretation of the contract is a jury question.\nRobertson v. Hartman, 90 N.C. App. 250, 252-53, 368 S.E.2d 199, 200 (1988). Thus, summary judgment on the McClains\u2019 breach of contract claim against the Waldrops was improper.\nTo survive Walker\u2019s motion for summary judgment on the claims for fraud and unfair and deceptive trade practices against her and Walker Realty, the McClains only needed to forecast evidence that (1) Walker made a definite and specific representation to McClain that was materially false; (2) Walker made the representation with knowledge of its falsity; and (3) the McClains reasonably relied on the representation to their detriment. See Kent v. Humphries, 50 N.C. App. 580, 588, 275 S.E.2d 176, 182, modified and aff'd, 303 N.C. 675, 281 S.E.2d 43 (1981). When viewed in the light most favorable to the McClains, the evidence presented established that issues of fact exist regarding whether Walker made material misrepresentations to or concealed material facts from the McClains about the property by using the description of the original Waldrop tract in the McClains\u2019 offers to purchase after the Dorn and Thorne tracts had been conveyed. Because the McClains\u2019 evidence supported their fraud claim against Walker, it also supported their unfair and deceptive trade practices claims. Id. at 589, 275 S.E.2d at 183. Thus, summary judgment on these issues was also improper.\nWe next address the Waldrops\u2019 crossclaim and third-party complaint. Walker, as the Waldrops\u2019 selling agent, owed a duty to the Waldrops to exercise the reasonable care and skill ordinarily used by others engaged in a similar undertaking, or face liability for all damages caused by her neglig\u00e9nce. Carver v. Lykes, 262 N.C. 345, 354-55, 137 S.E.2d 139, 147 (1964). Because the McClains\u2019 breach of contract claim against the Waldrops could expose them to liability stemming from Walker\u2019s alleged negligence, the Waldrops\u2019 claim against the Walkers for negligence must survive. Thus, summary judgment on this issue was also improper.\nReversed.\nJudges LEWIS and SMITH concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Chestnutt, Clemmons & Thomas, P.A., by Gary H. Clemmons, for plaintiffs-appellants.",
      "Ellis, Hooper, Warlick, Morgan & Henry, by John P. Swart, for defendants-appellees Waldrops.",
      "Sumrell, Sugg, Carmichael & Ashton, by Scott C. Hart, for defendants-appellees Walkers."
    ],
    "corrections": "",
    "head_matter": "ROBERT A. McCLAIN and MARCIA G. OSWALD, Plaintiffs v. MARY K. WALKER, a/k/a WALKER REALTY ASSOCIATES, RE/MAX REALTY ASSOCIATES, WILMER C. WALDROP, and VIRGINIA WALDROP, Defendants WILMER C. WALDROP and VIRGINIA WALDROP, Third-Party Plaintiffs v. MARY K. WALKER and PIERRE L. WALKER, each individually and t/a and d/b/a RE/MAX REALTY ASSOCIATES and WALKER REALTY ASSOCIATES, Third-Party Defendants\nNo. COA96-188\n(Filed 17 December 1996)\n1. Trial \u00a7 38 (NCI4th)\u2014 summary judgment \u2014 no genuine issue of material fact\nSummary judgment is proper when 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.R. Civ. P. 56(c).\nAm Jnr 2d, Summary Judgment \u00a7\u00a7 26, 27.\n2. Vendor and Purchaser \u00a7 41 (NCI4th)\u2014 breach of contract \u2014 factual issue regarding description of property\u2014 intention of parties \u2014 summary judgment improper\nSummary judgment in favor of defendant sellers in a breach of contract claim arising from the sale of real estate was improper where the plaintiff buyers\u2019 evidence established that an issue of fact existed regarding whether the parties intended for the description in the deed book to control their agreement.\nAm Jur 2d, Vendor and Purchaser \u00a7\u00a7 380-386.\n3. Brokers and Factors \u00a7 61 (NCI4th)\u2014 fraud \u2014 unfair and deceptive trade practices \u2014 material misrepresentation\u2014 summary judgment improper\nThe trial court erred in granting defendant realtor\u2019s summary judgment motion on the plaintiff buyers\u2019 fraud and unfair and deceptive trade practices claim where the plaintiffs\u2019 forecast of evidence established that issues of fact existed regarding whether the realtor made material misrepresentations to or concealed material facts from the plaintiffs about the property by using the description of the original tract in the plaintiffs\u2019 offer to purchase after two portions of the original tract had been conveyed.\nAm Jur 2d, Brokers \u00a7\u00a7 83 et seq.\n4. Brokers and Factors \u00a7 57 (NCI4th)\u2014 summary judgment improper \u2014 third-party claim \u2014 sellers potentially liable as a result of claim against realtor\nSummary judgment against the defendant sellers was improper on their crossclaim and third-party claim for negligence against a real estate broker because the plaintiff buyers\u2019 breach of contract claim against the defendant sellers could expose the sellers to liability stemming from the realtor\u2019s alleged negligence.\nAm Jur 2d, Brokers \u00a7\u00a7 101 et seq.\nAppeal by plaintiffs and third-party plaintiffs from orders entered 31 August 1995 by Judge Russell J. Lanier in Onslow County Superior Court. Heard in the Court of Appeals 23 October 1996.\nChestnutt, Clemmons & Thomas, P.A., by Gary H. Clemmons, for plaintiffs-appellants.\nEllis, Hooper, Warlick, Morgan & Henry, by John P. Swart, for defendants-appellees Waldrops.\nSumrell, Sugg, Carmichael & Ashton, by Scott C. Hart, for defendants-appellees Walkers."
  },
  "file_name": "0765-01",
  "first_page_order": 803,
  "last_page_order": 808
}
