95 N.C. App. 637 | N.C. Ct. App. | 1989
In an opinion in the above-styled matter filed 4 April 1989, this court affirmed summary judgment in favor of defendants on plaintiffs’ claims of fraud, negligent misrepresentation, and unfair
Petitioners allege that the trial judge’s making of findings of fact in his summary judgment order was improper. In ruling on a motion for summary judgment, a judge may recite the material facts forming the basis of his judgment when those facts are not at issue. See Stone v. Conder, 46 N.C. App. 190, 195, 264 S.E.2d 760, 763, disc. rev. denied, 301 N.C. 105 (1980). Petitioners argue that the judge’s finding that defendant West offered to contact the Homeowner’s Association for plaintiffs — which we accepted as a fact not at issue on the basis of our reading of Brett Blackwell’s second deposition — is not supported by the record. Upon reconsideration, we now conclude that the deposition passage cited by the trial judge and by us does not, when read in a light most favorable to plaintiffs, see Brice v. Moore, 30 N.C. App. 365, 367, 226 S.E.2d 882, 883 (1976), demonstrate unequivocally that Mr. West made such an offer. Therefore, we conclude that the judge made a finding that attempted to resolve an issue of material fact, rendering the entry of summary judgment inappropriate. See Stone, 46 N.C. App. at 195, 264 S.E.2d at 763. Consequently, we vacate the award of summary judgment on the fraud and negligent misrepresentation claims as to defendants West and Carolina Beach Realty.
The forecast of the evidence does not demonstrate that plaintiffs ever met with defendant Dorosko or that Mr. Dorosko ever made any representations to plaintiffs. Further, the evidence does not show that Mr. Dorosko exercised any control over the realtors who brokered the sale of his condominium so as to suggest his vicarious liability. See Vaughn v. N.C. Dept. of Human Resources, 296 N.C. 683, 686, 252 S.E.2d 792, 795 (1979). We hold, therefore, that the evidence in the record is insufficient as a matter of law to allow plaintiffs to proceed on these counts against Mr. Dorosko, and we hold that summary judgment was properly entered in his favor on these counts.
Our opinion misstated the legal standard governing unfair and deceptive trade practices by defining a deceptive practice as one
The judgment of the trial court as to defendant Dorosko is affirmed; as to defendants West and Carolina Beach Realty, the judgment is
Reversed and remanded.