In re Fifth Third Bank
217 N.C. App. 199
N.C. Ct. App.2011Background
- Plaintiffs Williams, Jr., M.D. and Consulting LLC, and Adelle Williams, M.D. invested in Village of Penland, a development project.
- Dr. Williams obtained a $500,000 loan from Fifth Third Bank secured by five lots financed by the Bank.
- Developers diverted funds; the project failed and Plaintiffs defaulted on the loan.
- Plaintiffs initially asserted numerous claims; later amended to two claims: UDTPA and Tortious Action in Concert/Civil Conspiracy; others were dismissed.
- The trial court granted summary judgment for Fifth Third on all remaining claims and taxed costs against Plaintiffs.
- On appeal, Plaintiffs challenge the summary judgment and tax of costs; Fifth Third seeks affirmation of all orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| UDTPA liability whether defendant violated 75-1.1 | Williams contends UDTPA per se/causal link via banking law violations. | Fifth Third argues no UDTPA violation; no reliance or injury proven from appraisals or banking practices. | No UDTPA liability; summary judgment affirmed. |
| Breach of contract whether bank can enforce promissory note | Williams seeks equitable estoppel due to alleged banking law violations. | Bank timely enforces contract; no fraud shown; estoppel unsupported. | Summary judgment for bank on breach of contract affirmed. |
| Tortious acting in concert and civil conspiracy | Bank and developers acted jointly to cause losses via UDTPA violations. | No evidence of joint action or unlawful concert; UDTPA absence defeats conspiracy claim. | Summary judgment affirmed; no civil conspiracy or concert claims viable. |
| Costs | Taxing costs against Plaintiffs constitutes reversible error if judgment was wrong. | Costs proper after finding no error in summary judgment. | Costs affirmed; no abuse of discretion. |
Key Cases Cited
- Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 377 (1950) (interlocutory appealability when substantial rights affected)
- Turner v. Hammocks Beach Corp., 363 N.C. 555, 681 S.E.2d 770 (2009) (exception to interlocutory appealability when substantial rights affected)
- Davis v. Davis, 360 N.C. 518, 631 S.E.2d 114 (2006) (certification and stay considerations for interlocutory appeals)
- Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981) (unfairness standard for UDTPA; public policy/immorality considered)
- Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 529 S.E.2d 676 (2000) (unfair or deceptive acts in commerce; elements of UDTPA)