{ "id": 8549639, "name": "T. LaFONTINE ODOM, Trustee; HENRY C. RHYNE, Individually and as Executor under the Last Will and Testament of Daniel P. Rhyne, Sr., deceased, and as beneficiary under said instrument; WILLIAM M. RHYNE and DANIEL P. RHYNE, JR., both Individually and as Beneficiaries under the Last Will and Testament of Daniel P. Rhyne, Sr. v. LITTLE ROCK & I-85 CORPORATION, a corporation; NCNB MORTGAGE CORPORATION, a corporation; EDWARD W. LARGEN, Trustee; TIM, INC., a corporation, Trustee; S. DEAN HAMRICK, Trustee; SOUTHERN NATIONAL BANK OF NORTH CAROLINA, a corporation; and DAVID M. McCONNELL", "name_abbreviation": "Odom v. Little Rock & I-85 Corp.", "decision_date": "1979-03-06", "docket_number": "No. 7826SC293", "first_page": "242", "last_page": "246", "citations": [ { "type": "official", "cite": "40 N.C. App. 242" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "32 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "224 N.C. 837", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616063 ], "year": 1945, "pin_cites": [ { "page": "840" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0837-01" ] }, { "cite": "78 S.E. 2d 131", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "238 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608693 ], "year": 1953, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0377-01" ] }, { "cite": "69 S.E. 2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "235 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624137 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0338-01" ] } ], "analysis": { "cardinality": 495, "char_count": 9774, "ocr_confidence": 0.841, "pagerank": { "raw": 2.511445676723088e-07, "percentile": 0.8105644383128129 }, "sha256": "cafb1e6a29558c1b42e7926932ea358064850b88609ad8cd44de08c37b826fb2", "simhash": "1:7fcbfe49822ea804", "word_count": 1618 }, "last_updated": "2023-07-14T20:01:10.825727+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges PARKER and WEBB concur." ], "parties": [ "T. LaFONTINE ODOM, Trustee; HENRY C. RHYNE, Individually and as Executor under the Last Will and Testament of Daniel P. Rhyne, Sr., deceased, and as beneficiary under said instrument; WILLIAM M. RHYNE and DANIEL P. RHYNE, JR., both Individually and as Beneficiaries under the Last Will and Testament of Daniel P. Rhyne, Sr. v. LITTLE ROCK & I-85 CORPORATION, a corporation; NCNB MORTGAGE CORPORATION, a corporation; EDWARD W. LARGEN, Trustee; TIM, INC., a corporation, Trustee; S. DEAN HAMRICK, Trustee; SOUTHERN NATIONAL BANK OF NORTH CAROLINA, a corporation; and DAVID M. McCONNELL" ], "opinions": [ { "text": "ARNOLD, Judge.\nPlaintiffs argue that the trial court erred in granting summary judgment for defendants, as there were material issues of fact as to (1) whether NCNB breached the option agreement upon which the closing was based and (2) whether NCNB defrauded plaintiffs at the closing by falsely representing to them that the loan funds were to be used for improvements on the property. As will appear, we have concluded that summary judgment was correctly entered.\nNCNB could not have breached the option agreement, because it was not a party to that contract. The option was entered into by plaintiffs\u2019 testator and Little Rock\u2019s assignor. NCNB was never made a party to the option between plaintiffs and Little Rock, or any other contract with the plaintiffs. As lender its only dealings were with Little Rock and McConnell. On this point there is no genuine issue of material fact, as is required to avoid summary judgment. G.S. 1A-1, Rule 56(c).\nThe record reveals that plaintiffs Odom and Henry Rhyne were present at the closing. Neither plaintiffs nor anyone else present at the closing recall specifically what was said, however. The construction loan agreement and deed of trust were available for inspection by plaintiffs. The deed of trust refers throughout to a \u201cConstruction Loan Agreement\u201d incorporated into the deed of trust by reference. The loan agreement, in turn, refers to the \u201cCommitment,\u201d stating that \u201cin the event there be a conflict between the terms and provisions of this Agreement and the terms and provisions of the Commitment . . . said Commitment shall be deemed to control. . . .\u201d The commitment, although entitled \u201cReal Estate Loan Commitment,\u201d says clearly that NCNB \u201cshall disperse the total loan amount at closing\u201d and that \u201cthe draw, upon closing, for land acquisition is to be limited to $150,000.\u201d\nPlaintiff Odom, an attorney, \u201cwas not shown, nor did [he] ask to see, any loan documents.\u201d Plaintiff Rhyne likewise failed to read the construction loan deed of trust. They were thus unaware of the actual situation when their deed of trust was subordinated to the deed of trust in favor of NCNB.\nIt appears that all of the possible evidence relevant to plaintiff\u2019s contention that NCNB defrauded them by misrepresenting that the loan funds were to be used for improvements was before the trial court. The burden is of course on the party alleging fraud to show that the essential elements exist. Foster v. Snead, 235 N.C. 338, 69 S.E. 2d 604 (1952). The essential elements of fraud are:\n(1) That defendant made a representation relating to some material past or existing fact; (2) that the representation was false; (3) that when he made it, defendant knew that the representation was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that defendant made the representation with intention that it should be acted upon by plaintiff; (5) that plaintiff reasonably relied upon the representation, and acted upon it; and (6) that plaintiff thereby suffered injury.\nCofield v. Griffin, 238 N.C. 377, 379, 78 S.E. 2d 131, 133 (1953).\nPlaintiffs have made no showing of any representation on the part of NCNB, no showing of any reasonable reliance upon a representation, or any of the remaining elements essential to make out a case of fraud against NCNB. Summary judgment was appropriate.\nMoreover, while we might agree with plaintiffs that it was misleading for the deed of trust to be labeled \u201cConstruction Loan\u201d and to refer to improvements to be constructed on the land when the deed of trust was actually intended to secure a land acquisition loan, we must recognize that a party is required to exercise some diligence in protecting his own interests.\n\u2018Where ordinary care and prudence are sufficient for full protection, it is the duty of the party to make use of them, and . . . , therefore, if false representations are made regarding matters of fact, and the means of knowledge are at hand and equally available to both parties, and the party, instead of resorting to them, sees fit to trust himself in the hands of one whose interest it is to mislead him, the law, in general, will leave him where he has been placed by his own imprudent confidence.\u2019 (cite omitted)\nMcLain v. Shenandoah Life Insurance Co., 224 N.C. 837, 840, 32 S.E. 2d 592, 594 (1945). Assuming there were misrepresentations by defendants, they could have been counteracted had the plaintiffs taken the trouble to read the documents involved.\nFor the reasons given, summary judgment was properly granted.\nAffirmed.\nJudges PARKER and WEBB concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Wade and Carmichael, by J. J. Wade, Jr., for plaintiff appellants.", "Cansler, Lockhart, Parker & Young, by Sarah Elizabeth Parker, for defendant appellees." ], "corrections": "", "head_matter": "T. LaFONTINE ODOM, Trustee; HENRY C. RHYNE, Individually and as Executor under the Last Will and Testament of Daniel P. Rhyne, Sr., deceased, and as beneficiary under said instrument; WILLIAM M. RHYNE and DANIEL P. RHYNE, JR., both Individually and as Beneficiaries under the Last Will and Testament of Daniel P. Rhyne, Sr. v. LITTLE ROCK & I-85 CORPORATION, a corporation; NCNB MORTGAGE CORPORATION, a corporation; EDWARD W. LARGEN, Trustee; TIM, INC., a corporation, Trustee; S. DEAN HAMRICK, Trustee; SOUTHERN NATIONAL BANK OF NORTH CAROLINA, a corporation; and DAVID M. McCONNELL\nNo. 7826SC293\n(Filed 6 March 1979)\n1. Vendor and Purchaser \u00a7 10\u2014 option agreement \u2014 no breach by lending bank\nA bank which loaned money to the purchaser of property could not be guilty of a breach of the option to purchase agreement since it was not a party to the option.\n2. Fraud \u00a7 12.1; Mortgages and Deeds of Trust \u00a7 2\u2014 fraud in securing subordination of deed of trust \u2014 insufficient evidence \u2014 summary judgment\nIn an action by plaintiffs to have their purchase money deed of trust declared a first lien with priority over defendant bank\u2019s deed of trust, summary judgment was properly entered for defendant bank on the issue of fraud in procuring the subordination of plaintiffs\u2019 deed of trust to the bank\u2019s deed of trust where the evidence showed that plaintiffs agreed with the purchasers of their land to subordinate their deed of trust to any deed of trust placed on the land for improvements; defendant bank\u2019s deed of trust was labeled \u201cConstruction Loan\u201d and referred to improvements to be placed on the land when it was actually intended to secure a loan for acquisition of the land; the documents for the bank\u2019s loan to the purchasers were available for inspection by plaintiffs and showed that the entire amount of the loan would be dispersed at the closing; plaintiffs attended the loan closing; and plaintiffs could have counteracted any misrepresentations if they had taken the trouble to read the loan documents.\nAPPEAL by plaintiffs from H. Martin, Judge. Judgment entered 31 October 1977 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 16 January 1979.\nDefendant Little Rock & 1-85 Corporation (Little Rock) held an option to purchase a tract of land from Daniel P. Rhyne, Sr., testator of the plaintiffs Rhyne. This option provided in part that:\n3. Seller agrees that it will subordinate its purchase money note and Deed of Trust ... to the lien or liens of any mortgage or deed of trust to any bank, insurance company, or other lending institution which is placed on said property ... for improvements made to said property.\nOn 28 December 1973, two transactions took place. First, under a \u201cReal Estate Loan Commitment\u201d executed 27 December, defendants Little Rock and McConnell borrowed $150,000 from NCNB, executing in return a promissory note, a \u201cConstruction Loan Agreement\u201d and a \u201cDeed of Trust (Construction Loan).\u201d The \u201cDeed of Trust (Construction Loan)\u201d was received by defendants Lar gen and TIM as trustees for NCNB. The majority of the $150,000 ($92,978.48) was used as a downpayment in the second transaction, the closing of the real estate sale under the option. As part of the sale, plaintiffs received a promissory note for $234,981.79 secured by a balance purchase money deed of trust which provided that it was \u201cgiven as a second deed of trust and subordinate to a deed of trust . . . given by the party of the first part [Little Rock] to NCNB Mortgage Corporation coverning [sic] all or a portion of the described property. . . . [T]he party of the third part [plaintiffs] [subordinate] this deed of trust to the deed of trust to NCNB Mortgage Corporation (or such other deed of trust as may be placed hereon for improvements). . . .\u201d Language in the promissory note indicated that the deed of trust was \u201csubordinate to deeds of trust given ... to NCNB Mortgage Corporation or such other lending institution in order to effect improvements to the property.\u201d Plaintiff Odom, as trustee for the plaintiffs Rhyne, received the balance purchase money deed of trust.\nLittle Rock later defaulted in its payment of the purchase price. Plaintiffs, observing that no improvements had been made upon the land, and assuming that no funds had been distributed under the construction loan, requested that NCNB cancel its note and deed of trust. It was at this point that plaintiffs first learned that the entire $150,000 had been paid out to Little Rock at about the time of the closing, and that the major portion of the money had been used as the downpayment on the property. Plaintiffs allege that the fair market value of the property is not enough to pay off both deeds of trust, and they seek by this action to have their deed of trust declared a first lien on the property, alleging fraud and breach of contract by NCNB in procuring the subordination of plaintiff\u2019s deed of trust.\nDefendants NCNB, Largen and TIM moved for summary judgment, which was granted. Plaintiffs appeal.\nWade and Carmichael, by J. J. Wade, Jr., for plaintiff appellants.\nCansler, Lockhart, Parker & Young, by Sarah Elizabeth Parker, for defendant appellees." }, "file_name": "0242-01", "first_page_order": 270, "last_page_order": 274 }