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  "name": "DONALD J. NESS and wife, CAROL E. NESS v. JACKIE JONES and TOWN & COUNTRY REAL ESTATE OF JACKSONVILLE, INC.",
  "name_abbreviation": "Ness v. Jones",
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    "judges": [
      "Judges Arnold and Phillips concur."
    ],
    "parties": [
      "DONALD J. NESS and wife, CAROL E. NESS v. JACKIE JONES and TOWN & COUNTRY REAL ESTATE OF JACKSONVILLE, INC."
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nThe issue before us in this case is whether plaintiffs\u2019 complaint fails to state a claim upon which relief can be granted. Plaintiffs sued defendants alleging that defendants were negligent in advising plaintiffs that the plaintiff-wife was entitled to V.A. home financing separate and apart from her husband\u2019s V.A. entitlement. The trial court granted defendants\u2019 Rule 12(b)(6) motion to dismiss. We reverse and remand the case for further proceedings.\nThe complaint alleged the following:\nPlaintiffs contracted with defendant Jones, an agent with defendant Town & Country Real Estate, to list and sell their home. Plaintiff-husband had used his Veterans Administration (V.A.) entitlement to purchase the home listed with defendants for sale. Plaintiffs told defendant Jones that it was important to keep plaintiff-husband\u2019s V.A. entitlement for the purchase of a new residence. Defendant Jones told plaintiffs that the wife was eligible for a V.A. loan entitlement by virtue of her military service.\nAfter being advised by Jones that the wife was eligible for V.A. financing, plaintiffs agreed to sell their home to a couple who assumed plaintiffs\u2019 V.A. loan, thereby using up plaintiff-husband\u2019s V.A. entitlement. Plaintiffs entered into a contract to buy another home and applied for V.A. financing using plaintiff-wife\u2019s V.A. entitlement. Plaintiffs were informed by the lending institution that plaintiff-wife was not eligible for V.A. financing. Plaintiffs canceled their contract to purchase the new residence and moved out of that home because they were unable to qualify for financing.\nPlaintiffs claim defendants were negligent in misinforming plaintiffs of eligibility requirements for V.A. financing. Plaintiffs contend defendants had an affirmative duty not to make willful or negligent misrepresentations or omissions of material facts. As real estate agents in the Jacksonville area, defendants should have been familiar with the eligibility rules for V.A. loans because most of the real estate transactions in the Jacksonville area involved V.A. financing.\nWhen reviewing a motion to dismiss, a court considers that allegations made in plaintiffs\u2019 complaint are taken as true. Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E. 2d 240, 241 (1981). A Rule 12(b)(6) motion should be granted only where \u201c \u2018it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. \u2019 \u201d Sutton v. Duke, 277 N.C. 94, 103, 176 S.E. 2d 161, 166 (1970) (emphasis in original).\nPlaintiffs contend in their brief that the complaint has sufficiently alleged a duty, a breach of that duty, and substantial damages to plaintiff proximately caused by that breach. Plaintiffs further contend there is no insurmountable bar raised in the complaint which would prevent recovery.\nIn their brief, defendants respond that the plaintiffs\u2019 complaint fails to establish that plaintiffs justifiably relied upon any false information allegedly provided by the defendants. While admitting that the question of justifiable reliance is generally a factual issue for the jury, defendants contend that the trial court may properly hold that a plaintiffs reliance is unreasonable as a matter of law. In support of this argument defendants rely principally upon Calloway v. Wyatt, 246 N.C. 129, 97 S.E. 2d 881 (1957), and Libby Hill Seafood Restaurants, Inc. v. Owens, 62 N.C. App. 695, 303 S.E. 2d 565, disc. rev. denied, 309 N.C. 321, 307 S.E. 2d 164 (1983). We find defendants\u2019 reliance misplaced, their argument unpersuasive, and the trial court\u2019s order of dismissal error.\nIn Calloway, the Supreme Court affirmed a directed verdict for the defendant at the close of plaintiffs\u2019 evidence in an action grounded on fraud. The Court\u2019s specific holding was that there were insufficient averments of facts in the complaint from which an intent to deceive could be legitimately implied. Calloway, 246 N.C. at 134, 97 S.E. 2d at 885. The Court then went on to state that plaintiffs knew of the water shortage in the area and were not reasonable in relying on defendant\u2019s representations without making further inquiry. Id. at 135, 97 S.E. 2d at 886.\nIn Libby Hill, this Court affirmed the trial court\u2019s granting of directed verdict at the cbse of plaintiffs evidence. On the negligent misrepresentation claim, the Court said:\nEven if Yarbrough\u2019s statements were representations, plaintiff has failed to show reasonable reliance. A purchaser who is on equal footing with the vendor and has equal means of knowing the truth is contributorily negligent if he relies on a vendor\u2019s statements .... We find that, being on equal footing with defendants, plaintiff had no right to rely on defendants\u2019 statements and was negligent in doing so.\nLibby Hill Seafood Restaurants, Inc. v. Owens, 62 N.C. App. at 699-700, 303 S.E. 2d at 569.\nThis case is easily distinguishable from Calloway and Libby Hill. First, in both of those cases, the test was whether the evidence presented by plaintiff was sufficient to withstand a motion for directed verdict. In the case below, the court is testing the sufficiency of plaintiffs\u2019 claim on a Rule 12(b)(6) motion; there is no evidence for the court to review. Second, in both Calloway and Libby Hill, the court relied on plaintiffs knowledge of the problem and plaintiffs insufficient inquiries to sustain a holding of unjustifiable reliance as a matter of law. In the matter below, the amount of plaintiffs\u2019 knowledge and the sufficiency of plaintiffs\u2019 inquiries are factual matters not yet of record.\nWe hold that plaintiffs have stated a sufficient claim for relief and that the trial court erred in dismissing it.\nReversed and remanded.\nJudges Arnold and Phillips concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "Robert T. Hargett for plaintiff appellants.",
      "Womble Carlyle Sandridge & Rice by Robert H. Sasser, III, and Ellen M. Gregg for defendant appellees."
    ],
    "corrections": "",
    "head_matter": "DONALD J. NESS and wife, CAROL E. NESS v. JACKIE JONES and TOWN & COUNTRY REAL ESTATE OF JACKSONVILLE, INC.\nNo. 874SC854\n(Filed 5 April 1988)\nBrokers and Factors \u00a7 4.1\u2014 negligence of real estate broker \u201412(b)(6) dismissal improper\nThe trial court erred by granting defendant\u2019s motion for dismissal under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) in an action in which plaintiffs alleged that defendants were negligent in advising plaintiffs that plaintiff wife was entitled to V.A. home financing apart from her husband\u2019s V.A. entitlement.\nAPPEAL by plaintiffs from Small, Judge. Order entered 11 June 1987 in Superior Court, Onslow County. Heard in the Court of Appeals 9 February 1988.\nRobert T. Hargett for plaintiff appellants.\nWomble Carlyle Sandridge & Rice by Robert H. Sasser, III, and Ellen M. Gregg for defendant appellees."
  },
  "file_name": "0504-01",
  "first_page_order": 532,
  "last_page_order": 535
}
