Bryant v. Eagan

HEDRICK, Chief Judge. Plaintiffs’ sole contention on appeal is the trial court erred in granting defendants’ motion for summary judgment. It is a fun [744] damental principle of law that summary judgment should be granted only when the materials submitted to the court establish that there is no genuine issue as to a material fact and that a party is entitled to judgment as a matter of law. Parker Marking Systems, Inc. v. Diagraph-Bradley Industries, Inc., 80 N.C. App. 177, 341 S.E. 2d 92 (1986). The party moving for a summary judgment has the burden of clearly establishing the lack of any triable issue of fact. Rockingham Square Shopping Center, Inc. v. Integon Life Ins. Corp., 52 N.C. App. 633, 279 S.E. 2d 918, disc. rev. denied, 304 N.C. 196, 285 S.E. 2d 101 (1981). According to the pleadings and affidavits in the record, the parties are in agreement as to the material facts in this case. While there are some deviations and differences, they are not sufficient to raise a genuine issue of material fact. This conclusion does not end the inquiry. If there are no genuine issues of material fact the evidence offered in support of the motion must be examined in light of the substantive rules of law as they relate to a plaintiffs claim for relief in order to determine whether a party is entitled to a judgment as a matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E. 2d 610 (1980). Plaintiffs seek damages for fraud and misrepresentation from John T. Eagan, Jr., and Ronald A. Matamoros. To support an action for fraud, plaintiffs must show: (a) that defendant made a representation relating to some material past or existing fact; (b) that the representation was false; (c) that defendant knew the representation was false when it was made or made it recklessly without any knowledge of its truth and as a positive assertion; (d) that defendant made the false representation with the intention that it should be relied upon by plaintiffs; (e) that plaintiffs reasonably relied upon the representation and acted upon it; and (f) that plaintiffs suffered injury. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 253, 266 S.E. 2d 610, 615 (1980). In an action for fraud, a defendant may prevail on a motion for summary judgment if the defendant can present material which effectively negates even one of the essential elements of fraud. Russo v. Mountain High, Inc., 38 N.C. App. 159, 247 S.E. 2d [745] 654 (1978). “It is not necessary that defendant’s material negate all of the essential elements. . . .” Id. at 162, 247 S.E. 2d at 656. While it is possible for there to be a genuine issue of material fact regarding the representations or omissions of defendants here, plaintiffs have shown no evidence of any injury resulting from the alleged representations. The only damage claimed by plaintiffs in their complaint is that “the property at 632 Balfour Road is not a [sic] attractive investment. . . .” Plaintiffs failed to further substantiate this assertion in their affidavits or pleadings and summary judgment is appropriate where the damages alleged are at best speculative. Harris v. Maready, 84 N.C. App. 607, 353 S.E. 2d 656 (1987). Therefore, defendants have presented material that negates the last essential element of fraud, i.e. “that the plaintiff suffered injury.” The granting of summary judgment for defendants on plaintiffs’ alleged claim for fraud was proper. In their brief plaintiffs only argue their claim for negligence against Ronald A. Matamoros and fraud on the part of Waterford and John T. Eagan. Plaintiffs are thereby deemed to have abandoned their other claims of relief pursuant to Rule 28 of the North Carolina Rules of Appellate Procedure. See Brown v. North Carolina Wesleyan College, Inc., 65 N.C. App. 579, 309 S.E. 2d 701 (1983). Furthermore, plaintiffs cannot assert on appeal a claim of negligence against Matamoros. Plaintiffs, in their complaint, only assert a fraud claim against Matamoros. The claim for negligence, which was not asserted before the trial court, cannot be raised for the first time on appeal. Watts v. Cumberland County Hosp. System, 75 N.C. App. 1, 330 S.E. 2d 280 (1985), rev’d on other grounds, 317 N.C. 321, 345 S.E. 2d 201 (1986); Rkeinberg-Kellerei GMBH v. Vineyard Wine Co., 53 N.C. App. 560, 281 S.E. 2d 425, disc. rev. denied, 304 N.C. 588, 289 S.E. 2d 564 (1981). However, even if the claim was properly before this Court, plaintiffs’ contention would be without merit. Plaintiffs have failed to demonstrate that any of Matamoros’ actions proximately caused any damages whatsoever. The decision of the trial court granting defendant’s motion for summary judgment is [746] Affirmed. Judges BeCTON and SMITH concur.