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      "EASTOVER RIDGE, L.L.C., a North Carolina Limited Liability Company, Plaintiff v. METRIC CONSTRUCTORS, INC., Defendant BYRD\u2019S LAWN & LANDSCAPING, INC., Plaintiff v. EASTOVER RIDGE, L.L.C.; METRIC CONSTRUCTORS, INC.; HACKER INDUSTRIES, INC.; NATIONWIDE LIFE INSURANCE COMPANY; and WILLIAM T. GRAVES, as Trustee, Defendants NIX-UNGER CONSTRUCTION CO., INC., Plaintiff v. METRIC CONSTRUCTORS, INC., and EASTOVER RIDGE LIMITED LIABILITY COMPANY, Defendants BASIC ELECTRIC COMPANY, INC., Plaintiff v. METRIC CONSTRUCTORS, INC. and EASTOVER RIDGE, L.L.C., Defendants ALLISON FENCE COMPANY, INC., Plaintiff v. EASTOVER RIDGE LIMITED LIABILITY COMPANY, METRIC CONSTRUCTORS, INC., NATIONWIDE LIFE INSURANCE and WILLIAM T. GRAVES, Trustee, Defendants"
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        "text": "WALKER, Judge.\nThe above five cases listed in the caption of this opinion were consolidated for trial; however, only plaintiff Eastover Ridge and defendant Metric Constructors, Inc. (case no. 96-CVS-13243) are parties to this appeal.\nOn 22 July 1994, plaintiff entered into an agreement with defendant for the construction of 216 apartment units in nine buildings, a clubhouse/leasing building, pool, tennis courts, maintenance building, certain landscape features, and associated site work. Plaintiff initiated this action on 22 October 1996 and filed an amended complaint four days later, asserting claims for breach of contract, breach of fiduciary duty and constructive fraud, unfair trade practices, and equitable relief of recoupment and setoff. Defendant filed an answer and counterclaim, alleging breach of contract by plaintiff and seeking recovery in quantum meruit as well as enforcement of its lien pursuant to N.C. Gen. Stat. \u00a7 44A-13. Plaintiff cross-claimed for quantum meruit recovery in its reply filed 19 February 1997.\nOn 18 September 1998, defendant filed a motion for partial summary judgment, seeking to limit damages in accordance with the liquidated damages provision of the agreement and dismissal of the plaintiffs claim for unfair and deceptive trade practices. After a hearing, the trial court granted defendant\u2019s motion for partial summary judgment, dismissing plaintiff\u2019s claim for unfair and deceptive trade practices. The trial court then certified the judgment as final pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure.\nPlaintiff assigns as error the trial court\u2019s awarding summary judgment in favor of defendant on the claim for unfair and deceptive trade practices since: (1) defendant breached its fiduciary duty to plaintiff resulting in constructive fraud; and (2) there were sufficient aggravating circumstances. \u201cUnder N.C. Gen. Stat. \u00a7 75-1.1, the question of what constitutes an unfair or deceptive trade practice is an issue of law.\u201d L.C. Williams Oil Company, Inc. v. Exxon Corp., 625 F.Supp. 477, 482 (M.D. N.C. 1985) (citations omitted). \u201cWhile a court generally determines whether a practice is an unfair or deceptive act or practice based on the jury\u2019s findings, if the facts are not disputed the court should determine whether the defendant\u2019s conduct constitutes an unfair trade practice.\u201d Id. \u201cSummary judgment has been granted when appropriate.\u201d Id. Summary judgment is proper when there is no genuine issue as to any material fact and any party is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1999); Coastal Leasing Corp. v. T-Bar Corp., 128 N.C. App. 379, 496 S.E.2d 795 (1998). Defendant, as the moving party, bears the burden of showing that no triable issue exists. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-342 (1992). This burden can be met by showing: (1) that an essential element of plaintiff\u2019s claim is nonexistent; (2) that discovery indicates plaintiff cannot produce evidence to support an essential element; or (3) that plaintiff cannot surmount an affirmative defense. Id. at 63, 414 S.E.2d at 342. Once a defendant has met that burden, the plaintiff must forecast evidence tending to show a prima facie case exists. Id.\nAlthough the parties do not raise the issue, we must first consider sua sponte whether the plaintiff\u2019s appeal is properly before this Court. See Bailey v. Gooding, 301 N.C. 205, 208, 270 S.E.2d 431, 433 (1980). There is generally no right to appeal an interlocutory order. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). \u201cAn order or judgment is interlocutory if it is made during the pendency of an action and does not dispose of the case but requires further action by the trial court in order to finally determine the entire controversy.\u201d N.C. Dept. of Transportation v. Page, 119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995).\nThere are only two means by which an interlocutory order may be appealed: (1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) \u201cif the trial court\u2019s decision deprives the appellant of a substantial right which would be lost absent immediate review.\u201d Bartlett v. Jacobs, 124 N.C. App. 521, 524, 477 S.E.2d 693, 695 (1996), disc. review denied, 345 N.C. 340, 483 S.E.2d 161 (1997) (citations omitted); Anderson v. Atlantic Casualty Ins. Co., 134 N.C. App. 724, 518 S.E.2d 786 (1999); N.C. Gen. Stat. \u00a7 1-277 (1999); N.C. Gen. Stat. \u00a7 7A-27 (1999). However, a Rule 54(b) certification is effective to certify an otherwise interlocutory appeal only if the trial court has entered a final judgment with regard to a party or a claim in a case which involves multiple parties or multiple claims. DKH Corp. v. Rankin-Patterson Oil Co., 348 N.C. 583, 500 S.E.2d 666 (1998). Rule 54(b) certification of an appeal is reviewable by this Court \u201cbecause the trial court\u2019s denomination of its decree \u2018a final. . . judgment does not make it so,\u2019 if it is not such a judgment.\u201d First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 247, 507 S.E.2d 56, 60 (1998), citing Industries, Inc. v. Insurance Co., 296 N.C. 486, 491, 251 S.E.2d 443, 447 (1979). Thus, we must determine whether the order granting defendant partial summary judgment was final or, in the alternative, whether a substantial right of plaintiff will be affected absent immediate appellate review.\n\u201cA final judgment is one which disposes of the cause as to all the parties, leaving nothing to be judicially determined between them in the trial court.\u201d Veazey v. Durham, 231 N.C. 357, 361-362, 57 S.E.2d 377, 381, rehearing denied, 232 N.C. 744, 59 S.E.2d 429 (1950). In the case at bar, the trial court\u2019s order granting defendant partial summary judgment on the unfair and deceptive trade practices claim is dispositive of that claim, and the trial court certified that there is no just reason for delaying the appeal pursuant to Rule 54(b). Furthermore, we conclude that a substantial right of plaintiff would be significantly impaired absent immediate appeal due to the possibility of inconsistent verdicts in later proceedings since plaintiff\u2019s claim against defendant for constructive fraud is still pending. See First Atl. Mgmt. Corp., 131 N.C. App. 242, 507 S.E.2d 56; Webb v. Triad Appraisal and Adjustment Service, Inc., 84 N.C. App. 446, 352 S.E.2d 859 (1987). Thus, plaintiff\u2019s appeal is properly before this Court.\nWe next address plaintiff\u2019s contention that summary judgment was improperly granted since defendant breached its fiduciary duty to plaintiff resulting in constructive fraud. Plaintiff argues that if it \u201cprevails on its constructive fraud claim, it will necessarily be entitled to recover for an unfair and deceptive trade practice claim.\u201d See Webb, 84 N.C. App. at 449, 352 S.E.2d at 862. Defendant contends that although plaintiff\u2019s claim for constructive fraud was not raised before nor addressed by the trial court, there is insufficient evidence to establish constructive fraud as a matter of law.\nIn order to maintain a cause of action for constructive fraud, plaintiff must allege \u201cfacts and circumstances\u201d which \u201ccreated the relation of trust and confidence\u201d and \u201cled up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff.\u201d Rhodes v. Jones, 232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950); See Barger v. McCoy Hillard & Parks, 346 N.C. 650, 666, 488 S.E.2d 215, 224 (1997). \u201cConstructive fraud differs from actual fraud in that it is based on a confidential relationship rather than a specific representation.\u201d Barger, 346 N.C. at 666, 488 S.E.2d at 224.\nPlaintiff contends that Article 3 of the parties\u2019 agreement \u201cimposed a fiduciary duty\u201d on defendant. Article 3 provides:\n3.1 The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Architect and utilize the Contractor\u2019s best skill, efforts and judgment in furthering the interests of the Owner. . . .\nPlaintiff also points to the deposition of defendant\u2019s Senior Project Manager, Carl Frinzi, in which the following exchange occurred:\nQ. . . . you knew that [Mr. Griffith, an owner of Eastover] expected you to look after his interests?\nA. Yes.\nQ. Because he told you that?\nA. Yes.\nQ. And you said you were?\nA. Uh-huh (yes).\nDefendant argues that plaintiff\u2019s \u201cconstructive fraud claim is premised on a contractually created alleged fiduciary duty\u201d and that plaintiff has failed to cite to any authority which indicates that the \u201cbreach of a contractually created fiduciary duty[] equates to a constructive fraud claim under North Carolina law.\u201d Defendant further argues that plaintiff has failed to allege the \u201cexistence of a relationship between itself and [defendant] that triggers a presumptive constructive fraud claim.\u201d\nA careful review of the record reveals that defendant had previously participated in a bidding process and submitted the lowest bid for the construction project. Thereafter, the parties negotiated a cost plus contract. While certain terms of this contract were specifically negotiated, there is nothing to indicate that Section 3.1 of Article 3 of the standard AIA Document A201, entitled \u201cGeneral Conditions of the Contract for Construction,\u201d was the subject of any specific discussion between the parties. Furthermore, although Mr. Frinzi did generally indicate during his deposition testimony that defendant knew plaintiff expected it to \u201clook after\u201d plaintiffs interests, this evidence must be viewed in light of the surrounding circumstances. We note that after negotiating the contract in question, plaintiff hired an architect, Greg Wood, to administer the parties\u2019 agreement and oversee the project. Article 4 of the parties\u2019 agreement outlines the extensive duties and responsibilities of the architect and these include:\n4.2.1 The Architect will provide administration of the Contract . . . and will be the Owner\u2019s representative (1) during construction, (2) until final payment is due and (3) with the Owner\u2019s concurrence, from time to time during the correction period described in Paragraph 12.2. The Architect will advise and consult with the Owner. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents ....\n4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the progress and quality of the completed Work and to determine in general if the Work is being performed in a manner indicating that the Work, when completed, will be in accordance with the Contract Documents .... On the basis of on-site observations as an architect, the Architect will keep the Owner informed of progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work.\n4.2.5 Based on the Architect\u2019s observations and evaluations of the Contractor\u2019s Applications for Payment, the Architect will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts.\n4.2.6 The Architect will have authority to reject Work which does not conform to the Contract Documents. Whenever the Architect considers it necessary or advisable for implementation of the intent of the Contract Documents, the Architect will have authority to require additional inspection or testing of the Work . . . whether or not such Work is fabricated, installed or completed. . . .\n4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of final completion . . ., and will issue a final Certificate for Payment upon compliance with the requirement of the Contract Documents.\n4.2.11 The Architect will interpret and decide matters concerning performance under and requirements of the Contract Documents on written request of either the Owner or Contractor.\nNotwithstanding the standard language of Article 3 and Mr. Frinzi\u2019s deposition testimony, we conclude as a matter of law that the architect\u2019s constant, close involvement in the project belies any claim that a \u201crelation of trust and confidence\u201d existed between plaintiff and defendant giving rise to a fiduciary relationship. See Rhodes, 232 N.C. at 549, 61 S.E.2d at 726; See Barger, 346 N.C. at 666, 488 S.E.2d at 224. Thus, plaintiff has failed to establish the existence of a fiduciary duty, the breach of which would give rise to a claim for unfair and deceptive trade practices.\nPlaintiff next contends that the trial court erred in granting defendant summary judgment on the unfair and deceptive trade practices claim since there were sufficient aggravating circumstances. \u201c[A] practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d Warfield v. Hicks, 91 N.C. App. 1, 8, 370 S.E.2d 689, 693, disc. review denied, 323 N.C. 629, 374 S.E.2d 602 (1988) (citations omitted). \u201cIn essence, a party is guilty of an unfair act or practice when it engages in conduct which amounts to an inequitable assertion of its power or position.\u201d Id. \u201cThe concept of \u2018unfairness\u2019 is broader than and includes the concept of \u2018deception.\u2019 \u201d Id.\nHowever, \u201c[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. \u00a7 75-1.\" Branch Banking and 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). The plaintiff must show \u201csubstantial aggravating circumstances attending the breach to recover under the Act, which allows for treble damages.\u201d Id. It is \u201cunlikely that an independent tort could arise in the course of contractual performance, since those sorts of claims are most appropriately addressed by asking simply whether a party adequately fulfilled its contractual obligations.\u201d Broussard v. Meineke Discount Muffler Shops, 155 F.3d 331, 347 (4th Cir. 1998), citing Strum v. Exxon Co., 15 F.3d 327, 333 (4th Cir. 1994).\nDefendant contends that plaintiff has failed to show sufficient aggravating circumstances to establish a claim for unfair and deceptive trade practices and cites to this Court\u2019s decision in Stone v. Homes, Inc., 37 N.C. App. 97, 245 S.E.2d 801, disc, review denied, 295 N.C. 653, 248 S.E.2d 257 (1978). In Stone, supra, the plaintiffs, purchasers of a house, brought an action against the corporate builder vendor, alleging claims for breach of warranties, fraud, and unfair and deceptive trade practices. Id. at 98, 245 S.E.2d at 803. The plaintiffs\u2019 evidence at trial tended to show that the defendant never completed construction of the house and that there were numerous structural defects, including leaking windows, improper sewage drainage, and faulty electrical work, as well as cracks in the chimney and brick veneer. Id. at 99, 245 S.E.2d at 804. The plaintiffs also discovered that the house was constructed on land that had been filled with vegetable debris, causing the house to settle. Id.\nThe jury in Stone returned a special verdict in favor of the plaintiffs, finding that they suffered a total of $16,000.00 in damages, but that only $3,500.00 was allocable to damage due to the settling of the land. Id. at 105, 245 S.E.2d at 807. The trial court denied the plaintiffs\u2019 motion for treble damages. Id. On appeal, this Court found:\nThere is no authority to support plaintiffs\u2019 argument that the remainder of the $16,000, i.e., the portion attributable to damages solely for breach of implied and express warranties, should be trebled.\nId. Thus, the plaintiffs in Stone were entitled to treble the $3,500.00 award for the damage due to the settling of the land since it was attributable to fraud but were not entitled to treble the remainder of the award attributable to damages for breach of warranties arising out of the construction of the house. Id. at 106, 245 S.E.2d at 808.\nIn Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 344 S.E.2d 68 (1986), review dismissed, 319 N.C. 222, 353 S.E.2d 400 (1987), the purchasers of a lot brought an action against the vendor seeking to rescind the contract of sale and seeking damages for unfair and deceptive trade practices. This Court found:\nIt is common knowledge that projected completion dates in the construction industry are often missed for a variety of reasons and may be impossible or impractical to fulfill. In light of this common knowledge and the capacity of consumers to contract with reference thereto, we do not believe the legislature intended that the representation of such dates as firm when in fact they are not, standing alone, should rise to the level of immoral, unethical, oppressive, or unscrupulous conduct, or amount to an inequitable assertion of power or position.\nId. at 69-70, 344 S.E.2d at 77. Thus, the plaintiffs\u2019 remedy \u201clies in contract for material breach only.\u201d Id.\nIn the case at bar, plaintiff alleges in its complaint that defendant \u201cfailed and refused to perform its obligations under the Agreement\u201d and lists examples of defendant\u2019s breaches. Although plaintiff has made numerous allegations that defendant breached its agreement regarding the construction project, we note that a certificate of substantial completion was signed by the architect on 27 March 1996 and that the construction project was subject to local government inspection. Therefore, we conclude that plaintiff has failed to show sufficient aggravating circumstances to establish a claim for unfair and deceptive trade practices.\nAffirmed.\nJudges McGEE and HUNTER concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Robinson, Bradshaw & Hinson, RA., by Robert W. Fuller and Lawrence C. Moore, III, for plaintiff-appellant Eastover Ridge.",
      "Womble Carlyle Sandridge & Rice, P.L.L.C., by Timothy G. Barber and Steven D. Gardner; and Spriggs & Hollingsworth, by Douglas L. Patin and Mark Blando, for defendant-appellee Metric Constructors, Inc."
    ],
    "corrections": "",
    "head_matter": "EASTOVER RIDGE, L.L.C., a North Carolina Limited Liability Company, Plaintiff v. METRIC CONSTRUCTORS, INC., Defendant BYRD\u2019S LAWN & LANDSCAPING, INC., Plaintiff v. EASTOVER RIDGE, L.L.C.; METRIC CONSTRUCTORS, INC.; HACKER INDUSTRIES, INC.; NATIONWIDE LIFE INSURANCE COMPANY; and WILLIAM T. GRAVES, as Trustee, Defendants NIX-UNGER CONSTRUCTION CO., INC., Plaintiff v. METRIC CONSTRUCTORS, INC., and EASTOVER RIDGE LIMITED LIABILITY COMPANY, Defendants BASIC ELECTRIC COMPANY, INC., Plaintiff v. METRIC CONSTRUCTORS, INC. and EASTOVER RIDGE, L.L.C., Defendants ALLISON FENCE COMPANY, INC., Plaintiff v. EASTOVER RIDGE LIMITED LIABILITY COMPANY, METRIC CONSTRUCTORS, INC., NATIONWIDE LIFE INSURANCE and WILLIAM T. GRAVES, Trustee, Defendants\nNo. COA99-960\n(Filed 1 August 2000)\n1. Appeal and Error\u2014 appealability \u2014 partial summary judgment\nThe appeal of a partial summary judgment on a claim arising from the construction of apartment units was properly before the Court of Appeals where the order granting summary judgment on the unfair and deceptive trade practices claim was dispositive of that claim, the trial court certified that there is no just reason for delaying the appeal, and a substantial right would be significantly impaired absent immediate appeal due to the possibility of inconsistent verdicts.\n2. Fraud\u2014 constructive \u2014 no fiduciary relationship\nThe trial court did not err by granting a partial summary judgment for defendant on an unfair and deceptive trade practices claim in an action arising from the construction of apartments where plaintiff contended that it would necessarily be entitled to recover on its unfair and deceptive trade practices claim if it prevailed on its constructive fraud claim. Constructive fraud requires a relationship of trust and confidence; notwithstanding standard language in the agreement between plaintiff and defendant (the contractor) regarding a relationship of trust and confidence, and deposition testimony that defendant knew that plaintiff expected defendant to \u201clook after\u201d plaintiffs interests, the architect\u2019s constant, close involvement in the project belies any claim that a \u201crelation of trust and confidence\u201d existed between plaintiff and defendant giving rise to a fiduciary relationship.\n3. Unfair Trade Practices\u2014 construction contract \u2014 insufficient aggravating circumstances\nThe trial court did not err by granting partial summary judgment for defendant on an unfair and deceptive trade practices claim arising from the construction of apartments where plaintiff contended that there were sufficient aggravating circumstances to support the claim. Although plaintiff made numerous allegations that defendant breached its agreement regarding the construction project, a certificate of substantial completion was signed by the architect and the project was subject to local government inspection.\nAppeal by plaintiff Eastover Ridge from judgment entered 24 May 1999 by Judge L. Oliver Noble, Jr. in Mecklenburg County Superior Court. Heard in the Court of Appeals 11 May 2000.\nRobinson, Bradshaw & Hinson, RA., by Robert W. Fuller and Lawrence C. Moore, III, for plaintiff-appellant Eastover Ridge.\nWomble Carlyle Sandridge & Rice, P.L.L.C., by Timothy G. Barber and Steven D. Gardner; and Spriggs & Hollingsworth, by Douglas L. Patin and Mark Blando, for defendant-appellee Metric Constructors, Inc."
  },
  "file_name": "0360-01",
  "first_page_order": 392,
  "last_page_order": 401
}