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    "judges": [
      "Judges ELMORE and DAVIS concur."
    ],
    "parties": [
      "JONATHAN RUSSEL FOLMAR and MARGARET FOLMAR, Plaintiffs v. SAMUEL DAVID KESIAH and LOUIE KESIAH, SARAH HARRIS and COOKE REALTY, INC., Defendants"
    ],
    "opinions": [
      {
        "text": "McCullough, Judge.\nPlaintiff-homebuyers appeal from a summary judgment entered in favor of defendant-homeowners for their claims of fraud and misrepresentation, breach of contract, and punitive damages. Based on the reasons stated herein, we affirm the order of the trial court.\nI. Background\nOn 15 October 2012, plaintiffs Jonathan Russel Folmar and Margaret Folmar filed a complaint against defendants Samuel David Kesiah and Louis Kesiah (collectively the \u201cKesiah defendants\u201d), as well as against Sarah Harris and Cooke Realty, Inc. Sarah Harris (\u201cHarris\u201d) and Cooke Realty, Inc. (\u201cCooke Realty\u201d) are not parties to this appeal.\nThe complaint alleged that on 30 March 2012, plaintiffs entered into a purchase agreement (\u201cagreement\u201d) with the Kesiah defendants regarding real property located on Private Drive in Ocean Isle Beach, North Carolina (\u201cthe property\u201d). Harris, a real estate agent, and Cooke Realty served as dual agents for both plaintiffs and the Kesiah defendants. Prior to closing, Harris went to the property with Darryl Moffett, a contractor hired by plaintiffs. Moffett was originally hired to paint and complete minor repair work for plaintiffs after closing but had arranged to meet Harris in order to determine the \u201cscope of the work involved.\u201d While on the property, Moffett noticed a \u201cdeteriorated section of wall cladding on the front elevation next to the entry door.\u201d Moffett \u201cpressed his hand against the wall, and a piece of wall cladding fell off, exposing rotted oriented strand board (\u201cOSB\u201d) sheathing.\u201d Plaintiffs alleged that other defects were also discovered by Moffett in direct view of Harris. Plaintiffs alleged that despite the fiduciary and contractual obligations of Harris to plaintiffs, Harris never informed plaintiffs of the defects found at the property.\nRelying on the representations made by Harris, Cooke Realty and the Kesiah defendants, plaintiffs paid $349,000.00 for the property at closing. Immediately following closing, plaintiffs discovered:\na substantial number of defects with the home, including but not limited to: interior water stains at windows and walls, delamated [sic] or missing cedar shingles, rotted wall cladding, one area on the front elevation wall exhibited previous repairs that included the installation of new beveled cedar lap siding and felt underiayment over wet and rotted wood sheathing, many areas of wood rot throughout the exterior of the building, etc.\nPlaintiffs alleged that the Kesiah defendants had actual knowledge of the defects of the property, yet had checked \u201cNo\u201d on the State of North Carolina Residential Property and Owners\u2019 Association Disclosure Statement (\u201cthe disclosure\u201d) in regards to the aforementioned areas. Plaintiffs also alleged that all defendants were aware of the defects found in the property prior to closing and were \u201cresponsible to disclose these defects to Plaintiffs prior to closing.\u201d\nPlaintiffs claimed they had been damaged in excess of $10,000.00 and alleged the following claims: fraud and misrepresentation, breach of contract, and punitive damages against the Kesiah defendants; fraud and misrepresentation, breach of fiduciary duty, unfair and deceptive trade practices, and punitive damages against defendants Harris and Cooke Realty.\nOn 19 November 2012, the Kesiah defendants filed an answer. On 19 March 2013, the Kesiah defendants filed a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure.\nFollowing a hearing held at the 22 April 2013 session of Union County Superior Court, the trial court entered summary judgment in favor of the Kesiah defendants and dismissed plaintiffs\u2019 action with prejudice as to the Kesiah defendants on 26 April 2013.\nOn 20 June 2013, defendants Harris and Cooke Realty filed an amended motion to change venue from Union County to Brunswick County. On 12 July 2013, the trial court entered an order transferring the file to the Brunswick County Clerk of Superior Court. On 1 August 2013, Union County filed an \u201cAcknowledgement of Receipt of Transferred Case File.\u201d\nOn 22 August 2013, plaintiffs voluntarily dismissed their claims against Harris and Cooke Realty without prejudice.\nPlaintiffs filed notice of appeal on 28 August 2014 in Union County Superior Court. Plaintiffs are appealing the entry of the 26 April 2013 order granting summary judgment in favor of the Kesiah defendants and dismissing plaintiffs\u2019 action with prejudice as to the Kesiah defendants.\nII. Standard of Review\nSummary judgment is proper where \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. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2013). \u201cWhen considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.\u201d Hamby v. Profile Prods., LLC, 197 N.C. App. 99, 105, 676 S.E.2d 594, 599 (2009) (citation omitted).\nThe party moving for summary judgment has the burden of establishing the lack of any triable issue. The movant may meet this burden by proving that an essential element of the opposing party\u2019s claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.\nCollingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citations omitted).\n\u201cThe standard of review for a trial court\u2019s ruling on a motion for summary judgment is de novo. Under a de novo standard of review, this Court considers the matter anew and freely substitutes its own judgment for that of the trial court.\u201d Horne v. Town of Blowing Rock, _ N.C. App. _, _, 732 S.E.2d 614, 618 (2012) (citations and quotation marks omitted).\nIII. Discussion\nOn appeal, plaintiffs argue that the trial court erred by (A) granting summary judgment in favor of the Kesiah defendants where plaintiffs established a prima facie showing of fraud and misrepresentation by the Kesiah defendants and where plaintiffs exercised due diligence prior to purchasing the home and were not put on notice of the substantial defects prior to the sale of the property. Plaintiffs also argue that (B) the forecast of evidence demonstrated that summary judgment was not ripe for hearing.\nAs a preliminary matter, we address the Kesiah defendants\u2019 argument that our Court should dismiss plaintiffs\u2019 appeal as it is not properly before us. The Kesiah defendants contend that because the trial court entered an order on 12 July 2013 transferring the present case from Union County to Brunswick County, plaintiffs should have thereafter filed notice of appeal in Brunswick County. The Kesiah defendants assert that plaintiffs\u2019 filing of notice of appeal on 28 April 2014 in Union County was not in compliance with the North Carolina Rules of Appellate Procedure and that their appeal should be dismissed for lack of jurisdiction.\nWe note that Rule 26(a) of the North Carolina Rules of Appellate Procedure, entitled \u201cFiling and service\u201d provides that \u201c[p]apers required or permitted by these rules to be filed in the trial or appellate divisions shall be filed with the clerk of the appropriate court.\" N.C. R. App. P. 26(a) (2013) (emphasis added). Article II of the North Carolina Rules of Appellate Procedure governs appeals from judgments and orders of superior courts and district courts. Rule 3 of Article II, entitled \u201cAppeal in civil cases - How and when taken\u201d provides as follows:\n(a) Filing the notice of appeal. Any party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court[.]\nN.C. R. App. P. Rule 3(a) (2013).\nIn the case sub judice, plaintiffs\u2019 complaint was initiated in Union County Superior Court. The order granting summary judgment in favor of the Kesiah defendants was entered in Union County Superior Court and was final as to plaintiffs\u2019 claims against the Kesiah defendants. Thereafter, the remaining defendants, Harris and Cooke Realty, filed a motion to change venue to Brunswick County. The trial court granted this motion and transferred the file to Brunswick County on 12 July 2013 for \u201cfurther proceedings as may be necessary or appropriate.\u201d\nBecause the summary judgment order entered in Union County was final as to plaintiffs\u2019 claims against the Kesiah defendants and because the proceedings that occurred in Brunswick County subsequent to the entry of summary judgment had no impact on the summary judgment order in favor of the Kesiah defendants, we hold that it was not error for the plaintiffs to file their notice of appeal in the \u201cappropriate court\u201d in Union County. Accordingly, we proceed to the merits of plaintiffs\u2019 appeal.\nA. Fraud and Misrepresentation\nFirst, plaintiffs argue that the trial court erred by granting summary judgment in favor of the Kesiah defendants where plaintiffs established a prima facie showing of fraud and misrepresentation by the Kesiah defendants. In the event that our Court finds that a genuine issue of material fact exists as to plaintiffs\u2019 fraud and misrepresentation claim, plaintiffs also argue that there is a genuine issue of material fact as to their contract and punitive damages claims. Based on the following reasons, we reject plaintiffs\u2019 contentions.\nThe essential elements of actionable fraud are (1) [f]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Additionally, plaintiff\u2019s reliance on any misrepresentations must be reasonable.\nMacFadden v. Louf, 182 N.C. App. 745, 747, 643 S.E.2d 432, 434 (2007) (citations omitted).\nIn the present case, plaintiffs assert that the Kesiah defendants falsely represented material facts: by marking \u201cno\u201d on the disclosure which stated \u201cto your knowledge is there any problem (malfunction or defect)\u201d with things such as the foundation, slab, floors, windows, doors, ceilings, interior and exterior walls, patio, deck, or other structural components; learning of the defects in the property sometime after 2006 and intentionally fisting the property below value to \u201centice buyers as opposed to correcting the defects\u201d; previously performing work on the windows, sheathing, exterior walls, etc. prior to selling the home to plaintiffs and covering up existing rot with new materials; and having knowledge that many of the areas of the property were missing sheathing.\nThe Kesiah defendants argue that even assuming arguendo that they had knowledge of the defects of the property prior to selling the property to plaintiffs, any reliance by plaintiffs to the Kesiah defendants\u2019 alleged misrepresentations were not reasonable. We agree with the Kesiah defendants.\nIn MacFadden v. Louf, 182 N.C. App. 745, 643 S.E.2d 432 (2007), a homebuyer brought an action against the seller for alleged undisclosed defects in the subject property. Id. at 745, 643 S.E.2d at 433. The trial court granted summary judgment in favor of the seller and the home-buyer appealed to our Court, arguing that the trial court had erred by granting summary judgment on her claims for fraud and negligent representation. Id. at 746, 643 S.E.2d at 433. Our Court noted that\n[w]ith respect to the purchase of property, [r]eliance is not reasonable if a plaintiff fails to make any independent investigation unless the plaintiff can demonstrate: (1) it was denied the opportunity to investigate the property, (2) it could not discover the truth about the property\u2019s condition by exercise of reasonable diligence, or (3) it was induced to forego additional investigation by the defendant\u2019s misrepresentations.\nId. at 747-48, 643 S.E.2d at 434 (citations and quotation marks omitted).\nOur Court held that the homebuyer failed to show \u201creasonable reliance\u201d based on evidence that the homebuyer had conducted a home inspection prior to closing on the subject property. The inspection report \u201cput her on notice of potential problems with the home\u201d by instructing her to have a roofing contractor inspect the roof for the potential of water to pond above the kitchen/breeze-way area. Id. at 748, 643 S.E.2d at 434. The inspection report also noted, inter alia, water staining, previous water leakage, rusted and leaking gutters, and an uneven floor system which showed signs of previous moisture and pest infestation. Id. The homebuyer argued that \u201c[d] espite the findings of the home inspection report,... she relied on the Residential Disclosure Statement completed by [the seller.]\u201d Id. at 748, 643 S.E.2d at 435. However, our Court held that \u201cany reliance on [the disclosure] would have been unreasonable in light of her own home inspection report which recommended that she have the roof evaluated by a roofing contractor and that she inquire or monitor the other problem areas.\u201d Id. at 749, 643 S.E.2d at 435. Based on the foregoing reasons, the MacFadden Court affirmed the granting of summary judgment in favor of the seller on the claims of fraud and negligent misrepresentation. Id.\nUpon thorough review, we find the facts in the case sub judice similar to the facts found in MacFadden. On 14 February 2012, the Kesiah defendants marked \u201cno\u201d on the disclosure which stated \u201cto your knowledge is there any problem (malfunction or defect)\u201d with things such as the foundation, slab, floors, windows, doors, ceilings, interior and exterior walls, patio, deck, or other structural components. However, plaintiffs subsequently conducted an independent home inspection on 23 February 2012, prior to closing on the property. The home inspection report noted several potential issues. In regards to the exterior of the property, the following was noted: as to the wall cladding: cedar shakes, \u201csome of the siding is missing and there is some wood rot on the wall above front door\u201d; \u201c[u]pstairs door off the master has some wood rot and is very hard to open, also storm door has damaged the frame\u201d; \u201c[t]he window on the back left side looks to have water entering from the top of the window, staining is inside of window. Possible hidden damage may exist.\u201d In regards to the interior of the property, the inspection report noted the following: \u201c[w]all paper in front left bathroom is peeling due to shower head leaking\u201d; \u201c[w]ater stains present in the family room but were tested and found no active leak.\u201d Additionally, the home inspection report made a recommendation to plaintiffs that \u201c[e]ach issue indicated in this summary should be evaluated by a qualified contractor or specialist for corrective measures to insure proper and safe use or service of the system in question.\u201d Notwithstanding the findings and recommendations made in the home inspection report, plaintiffs proceeded to the closing on 30 March 2012.\nIt is clear from the record that plaintiffs were not denied the opportunity to investigate the property and that plaintiffs were not induced to forego additional investigations by the Kesiah defendants\u2019 alleged misrepresentations. Had plaintiffs heeded the recommendation of the home inspection report that the aforementioned issues be evaluated by a specialist, it is likely that plaintiffs would have discovered the alleged defects to the house prior to closing. Accordingly, we hold that the trial court did not err by granting summary judgment in favor of the Kesiah defendants on plaintiffs\u2019 claims of fraud and misrepresentation where the evidence fails to establish reasonable reliance by plaintiffs, as any reliance on the disclosure would have been unreasonable in light of plaintiffs\u2019 independent home inspection report.\nNext, plaintiffs rely on Everts v. Parkinson, 147 N.C. App. 315, 555 S.E.2d 667 (2001), to argue that they exercised due diligence prior to purchasing the home and that the inspection report did not put plaintiffs on notice of the substantial defects of the property. Plaintiffs argue that the \u201cmajority of the numerous material defects [of the property] were not discovered until after the closing, and were concealed behind the exterior wall cladding.\u201d Because the inspection report only had a \u201cbrief description of some issues[,]\u201d plaintiffs contend that they were not put on notice of the defects alleged in their complaint. Based upon a thorough review, we find the facts found in Everts to be distinguishable from the circumstances of the present case.\nIn Everts, the plaintiff-homebuyers filed a complaint against the original owners of a house - Mr. and Mrs. Parkinson, the builders, and the company that performed improvement work on the house, alleging claims of fraud, negligent misrepresentation, breach of contract, breach of express warranty, breach of implied warranty, and negligence. The complaint alleged that the plaintiffs had to undertake extensive and costly repairs to the house as a result of water intrusion and wood rot problems. Id. at 318, 555 S.E.2d at 670. The trial court granted summary judgment in favor of the defendants on all claims against them and the plaintiffs appealed. Id. Our Court noted that after the Parkinsons moved into the house, they experienced numerous problems with window lights, rotting brick mold, and a rotting window. Id. at 321-22, 555 S.E.2d at 672. Subsequently, Mr. Parkinson replaced the window lights, performed brick mold repair work on a number of windows and doors, and completed extensive repair work to the particular window at issue. Id. at 324, 555 S.E.2d at 673-74. In regards to the requirement of an \u201cintent to deceive,\u201d our Court found that Mr. Parkinson had engaged in such conduct by not informing the plaintiffs about any of the repair work and testifying that he did not disclose this information to the plaintiffs because \u201che did not feel that he had an obligation to do so[.]\u201d Id. at 324, 555 S.E.2d at 674.\nIn regards to the requirement of showing reasonable reliance in cases of fraud, our Court noted that a duty to disclose material facts arises \u201c[w]here material facts are accessible to the vendor only, and he knows them not to be within the reach of the diligent attention, observation and judgment of the purchaser.\u201d Id. at 325, 555 S.E.2d 674 (citation omitted) (emphasis in original). Our Court found that there were genuine issues of material fact as to whether the alleged defects were discoverable in the exercise of the plaintiffs\u2019 \u201cdiligent attention or observation and, therefore, whether Mr. Parkinson had a duty to disclose the defects.\u201d Id. at 327, 555 S.E.2d at 675. The record contained an affidavit from a licensed residential home inspector who performed an inspection on the house at issue at the request of the plaintiffs prior to purchase. He testified to the following:\nat the time of the inspection, he \u201cdid not observe any rot or water infiltration,\u201d or \u201cany problems with the exterior windows or doors on the house.\u201d He further testified that the \u201cdecorative bands,\u201d which had been installed around the windows before his inspection, \u201cconcealed the joint where the synthetic stucco met the window brick molding\u201d and that, as a result, he \u201cwas not able to visually observe the perimeter joints of the exterior windows.\u201d He also stated that he \u201cwas not informed by the owner or the owner\u2019s realtor of any moisture intrusion problems involving the windows or window joint perimeter prior to [his] inspection,\u201d and that such information is \u201ccrucial information that [he] would have needed to know.\u201d\nId. Based on the foregoing, our Court held that, viewing the evidence in the light most favorable to the plaintiffs, Mr. Parkinson knew of the alleged defects, knew that the defects, \u201cof which [the] plaintiffs were unaware, were not discoverable in the exercise of [the] plaintiffs\u2019 diligent attention or observation^]\u201d and, therefore, had a duty to disclose the existence of the defects to the plaintiffs, which he failed to do. Id. at 327-28, 555 S.E.2d at 675. As to Mr. Parkinson, our Court reversed the trial court\u2019s summary judgment on the claim of fraud. Id. at 328, 555 S.E.2d at 676.\nIn the present case, plaintiffs neither alleged in their complaint nor produced any evidence that the alleged defects were not discoverable in the exercise of due diligence. Rather, as we previously stated, plaintiffs\u2019 inspection report recommended that they have a qualified contractor or specialist evaluate the noted issues. Also dissimilar to the facts found \u2022 in Everts, both of the Kesiah defendants testified through affidavits that they \u201cdid not know of any unrepaired deterioration of the house when we signed the disclosure statement or before the closing took place.\u201d Thus, we reject plaintiffs\u2019 contentions that they exercised due diligence and were not put on notice of the alleged defects of the property.\nB. Rine for Hearing\nIn their last argument, plaintiffs argue that the forecast of evidence demonstrated that summary judgment was not ripe for hearing and that summary judgment should have been denied or the hearing continued. Plaintiffs assert that they intended to locate and depose Mr. Dennis Harold, the Kesiah defendants\u2019 contractor who allegedly made repairs on the property.\nRule 56(f) of the North Carolina Rules of Civil Procedure provides the following:\nWhen affidavits are unavailable. - Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 56(f) (2013). Rule 56(f) \u201cgives the trial court the discretion to refuse the motion for judgment or order a continuance, if the opposing party states by affidavit the reasons why he is unable to present the necessary opposing material.\u201d Gillis v. Whitley\u2019s Discount Auto Sales, Inc., 70 N.C. App. 270, 274, 319 S.E.2d 661, 664 (1984) (emphasis added).\nIn the present case, while plaintiffs argue that their intent to depose Mr. Harold \u201ccould be inferred by a cursory reading\u201d of the affidavit of their contractor, Darryl Moffett, we find this to be inadequate. Rule 56(f) requires an affidavit by the opposing party stating the reasons why they were unable to present the necessary opposing material and the record is clear that plaintiffs failed to do so. Thus, we reject plaintiffs\u2019 arguments that summary judgment was not ripe for hearing.\nIV. Conclusion\nWhere we hold that the trial court did not err by granting summary judgment in favor of the Kesiah defendants on the claims of fraud and misrepresentation and where we reject plaintiffs\u2019 argument that summary judgment was not . ripe for hearing, we affirm the 26 April 2013 order of the trial court.\nAffirmed.\nJudges ELMORE and DAVIS concur.",
        "type": "majority",
        "author": "McCullough, Judge."
      }
    ],
    "attorneys": [
      "DeVore Acton & Stafford, PA, by F. William DeVore, IV and Fred W. DeVore, III for plaintiff-appellants.",
      "Perry, Bundy, Plyler, Long & Cox, LLP, by H. Lig\u00f3n Bundy and Natalie J. Broadway for defendant-appellees."
    ],
    "corrections": "",
    "head_matter": "JONATHAN RUSSEL FOLMAR and MARGARET FOLMAR, Plaintiffs v. SAMUEL DAVID KESIAH and LOUIE KESIAH, SARAH HARRIS and COOKE REALTY, INC., Defendants\nNo. COA13-1297\nFiled 15 July 2014\n1. Appeal and Error\u2014appealability\u2014appropriate court for filing notice of appeal\nBecause the summary judgment order entered in Union County was final as to plaintiffs\u2019 claims against the Kesiah defendants and the proceedings that occurred in Brunswick County subsequent to the entry of summary judgment had no impact on the summary judgment order in favor of the Kesiah defendants, it was not error for the plaintiffs to file their notice of appeal in the \u201cappropriate court\u201d in Union County.\n2. Fraud\u2014misrepresentation\u2014no reasonable reliance\u2014due diligence\nThe trial court did not err by granting summary judgment in favor of the Kesiah defendants on plaintiffs\u2019 claims of fraud and misrepresentation where the evidence failed to establish reasonable reliance by plaintiffs. Any reliance would have been unreasonable in light of plaintiffs\u2019 independent home inspection report. Plaintiffs neither alleged nor produced any evidence that the alleged defects were not discoverable in the exercise of due diligence.\n3. Pleadings\u2014summary judgment\u2014ripeness\u2014affidavit required\nAthough plaintiffs argue that the forecast of evidence demonstrated that summary judgment was not ripe for hearing and that summary judgment should have been denied or the hearing continued, N.C.G.S. \u00a7 1A-1, Rule 56(f) required an affidavit by the opposing party stating the reasons why they were unable to present the necessary opposing material and the record revealed that plaintiffs failed to do so.\nAppeal by plaintiffs from order entered 26 April 2013 by Judge W. David Lee in Union County Superior Court. Heard in the Court of Appeals 9 April 2014.\nDeVore Acton & Stafford, PA, by F. William DeVore, IV and Fred W. DeVore, III for plaintiff-appellants.\nPerry, Bundy, Plyler, Long & Cox, LLP, by H. Lig\u00f3n Bundy and Natalie J. Broadway for defendant-appellees."
  },
  "file_name": "0020-01",
  "first_page_order": 30,
  "last_page_order": 40
}
