An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1316
NORTH CAROLINA COURT OF APPEALS
Filed: 15 July 2014
ALICE JOPPA CEBULA,
Plaintiff
Buncombe County
v.
No. 12 CVS 373
THE GIVENS ESTATES, INC.,
Defendant
Appeal by plaintiff from order entered 3 July 2013 by Judge
Alan Z. Thornburg in Buncombe County Superior Court. Heard in
the Court of Appeals 9 April 2014.
Donald H. Barton, P.C., by Donald H. Barton, for Plaintiff.
McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for
Defendant.
ERVIN, Judge.
Plaintiff Alice Joppa Cebula appeals from a trial court
order granting summary judgment in favor of Defendant Givens
Estates, Inc., with respect to the claims that she had asserted
against Defendant. On appeal, Plaintiff contends that the trial
court lacked jurisdiction to grant summary judgment in
Defendant’s favor on the grounds that this case was on appeal to
this Court at the time that the order granting summary judgment
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in Defendant’s favor was entered and that the existence of a
genuine issue of material fact concerning the date upon which
she discovered that Defendant would not make the entrance and
parking fee refund that she believed to be appropriate precluded
a determination that Plaintiff’s claims were barred by the
applicable statute of limitations. After careful consideration
of Plaintiff’s challenges to the trial court’s order in light of
the record and the applicable law, we conclude that the trial
court’s order should be affirmed.
I. Factual Background
A. Substantive Facts
Defendant operates a retirement community for the elderly
known as Givens Estates.1 On or about 7 September 2007,
Plaintiff, who was 81 years old at the time, met with Kim
Lawing, an individual performing sales functions for Defendant,
to discuss the possibility that Plaintiff might begin living in
the community. At that time, Plaintiff informed Ms. Lawing that
she could only afford to pay the necessary fees associated with
life in the community in the event that she was able to sell the
home in which she currently resided.
1
As a result of the fact that the issue raised by
Plaintiff’s appeal is whether the trial court properly granted
summary judgment in Defendant’s favor, the factual statement
contained in the body of this opinion reflects the record viewed
in the light most favorable to Plaintiff.
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On 12 September 2007, Plaintiff entered into a residence
and services agreement with Defendant. Plaintiff failed to read
the residence and services agreement before signing it.
According to the residence and services agreement, Plaintiff was
required to pay a $279,400 entrance fee, ten percent of which
was due upon signing and the remainder of which was due prior to
the date upon which she began to occupy a unit in the retirement
facility, and a $15,000 parking fee, both of which she paid in
full. In addition, the residence and services agreement
provided that, in the event that Plaintiff wished to terminate
the agreement for any reason within thirty days after entering
into the agreement, any monies that she had paid to Defendant
would be fully refundable. In the event that Plaintiff wished
to terminate the residence and services agreement after the end
of this initial thirty day period, the refund to which Plaintiff
was entitled would be calculated using a formula spelled out in
that agreement. More specifically, according to Paragraph
VII.E. of the residence and services agreement:
Amortization of the Entrance Fee. Your
Entrance Fee is partially refundable. The
portion of the fee that is refundable to You
will decline over time, at a rate of six
percent (6%) upon the date of Occupancy of
the Residence and two percent (2%) on the
first (1st) day of each calendar month
thereafter until fifty percent (50%) of the
Entrance Fee remains. Regardless of the
reason for termination, You will always be
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entitled to a refund of not less than fifty
percent (50%) of Your Entrance Fee, less any
non-standard costs requested by You, except
as otherwise provided by this Agreement.
According to Plaintiff, Ms. Lawing informed her that the
amortization clause only applied to a termination of the
residence and services agreement resulting from death and never
told Plaintiff that she would “forfeit all of her entrance fees
and garage fees.”
After executing the residence and services agreement and
moving into Givens Estates, Plaintiff was unable to sell her
prior home, a development that rendered her unable to make the
monthly fee payments required under the residence and service
agreement. As a result, Plaintiff notified Defendant on 24
August 2011 that she desired to leave Givens Estates, terminate
the residence and services agreement, and obtain a refund of her
entrance and parking fees in their entirety. In response,
Defendant informed Plaintiff that the requested refund would not
be made. According to Plaintiff, given her age and physical and
mental condition, she did not understand the relevant contract
provisions and would not have signed the residence and services
agreement had she understood that the entrance and parking fees
would not be fully refunded in the event that she voluntarily
left Defendant’s retirement facility.
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B. Procedural History
On 25 January 2012, Plaintiff filed a verified complaint in
which she asserted claims against Defendant for rescission of
the residence and services agreement based upon an unjust
enrichment and unconscionability theory; cancellation of the
residence and services agreement based upon misrepresentation
and fraud; rescission of the residence and services agreement
based upon undue influence, coercion, and duress; and unfair and
deceptive trade practices. On 2 April 2012, Defendant filed an
answer in which it denied the material allegations of
Plaintiff’s complaint and asserted various affirmative defenses,
including, but not limited to, estoppel, quasi-estoppel, unclean
hands stemming from Plaintiff’s failure to read the residence
and services agreement, laches, and the applicable statute of
limitations.
As a result of Plaintiff’s failure to provide certain
discovery materials, Judge Marvin P. Pope, Jr., entered an order
on 4 September 2012 granting Defendant’s motion to compel
discovery and requiring Plaintiff to pay $2,210 in attorney’s
fees to Defendant. Cebula v. Givens Estates, Inc., No. 13-242,
2013 N.C. App. LEXIS 996 at *2-3 (2013). Plaintiff noted an
appeal to this Court from Judge Pope’s order. On 1 October
2013, this Court filed an opinion dismissing Plaintiff’s appeal
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as having been taken from an unappealable interlocutory order.
Id. at *3-4.
On or about 18 June 2013, Defendant filed a motion seeking
the entry of summary judgment in its favor. On 3 July 2013, the
trial court entered an order granting Defendant’s summary
judgment motion. Plaintiff noted an appeal to this Court from
the trial court’s order.
II. Substantive Legal Analysis
A. Trial Court’s Authority to Grant Summary Judgment
In her first challenge to the trial court’s order,
Plaintiff argues that the trial court lacked jurisdiction to
hear and decide the issues raised by Defendant’s summary
judgment motion. More specifically, Plaintiff contends that her
appeal from Judge Pope’s order divested the trial court of any
authority to grant summary judgment in Defendant’s favor and
asserts that we should invalidate the trial court’s order for
that reason. Plaintiff’s contention lacks merit.
When an appeal is perfected as provided by
this Article it stays all further
proceedings in the court below upon the
judgment appealed from, or upon the matter
embraced therein; but the court below may
proceed upon any other matter included in
the action and not affected by the judgment
appealed from.
N.C. Gen. Stat. § 1-294. In view of the fact that “[t]he
perfection of, or docketing of, an appeal relates back to the
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time of giving notice of the appeal and operates as a stay of
proceedings within the meaning of the statute,” a trial court is
“without jurisdiction to proceed on the matter until the case is
returned by mandate of the appellate court.” Woodard v. N.C.
Local Governmental Emps. Ret. Sys., 110 N.C. App. 83, 85, 87,
428 S.E.2d 849, 850-51 (1993). As a result, Plaintiff contends
that, because the trial court granted summary judgment in
Defendant’s favor prior to the issuance of the mandate
reflecting our decision in connection with Plaintiff’s appeal
from Judge Pope’s order, the trial court lacked the authority to
hear and decide the issues raised by Defendant’s summary
judgment motion.
The fundamental problem with Plaintiff’s argument is that
it takes no account of our holding that Plaintiff’s prior appeal
had been taken from an unappealable interlocutory order. As the
Supreme Court has clearly stated:
A litigant cannot deprive the Superior Court
of jurisdiction to try and determine a case
on its merits by taking an appeal to the
Supreme Court from a nonappealable
interlocutory order of the Superior Court.
A contrary decision would necessarily
require an acceptance of the paradoxical
paralogism that a party to an action can
paralyze the administration of justice in
the Superior Court by the simple expedient
of doing what the law does not allow him to
do, i.e., taking an appeal from an order
which is not appealable.
-8-
Veazey v. City of Durham, 231 N.C. 357, 364, 57 S.E.2d 377, 382-
83 (1950). Although this Court has stated, as Plaintiff notes,
“‘that an appeal, even of an interlocutory order, operates as a
stay of all proceedings in the [lower court] relating to issues
included therein until the matters are determined in the
[appellate court],’” Woodard, 110 N.C. App. at 85, 428 S.E.2d at
850 (internal quotation marks omitted) (alterations and emphasis
in original) (quoting Lowder v. Mills, Inc., 301 N.C. 561, 580,
273 S.E.2d 247, 258 (1981)), this principle only applies “[w]hen
a litigant takes an appeal to [an appellate court] from an
appealable interlocutory order of the Superior Court and
perfects such appeal in conformity to law.” Veazey, 231 N.C. at
363, 57 S.E.2d at 382; see also Velez v. Dick Keffer Pontiac-GMC
Truck, 144 N.C. App. 589, 591, 551 S.E.2d 873, 875 (2001)
(quoting Veazey, 231 N.C. at 364, 57 S.E.2d at 383) (stating
that ‘‘[o]ur conclusion [that the trial court had the authority
to enter an order compelling discovery when an appeal from a
prior discovery-related order was pending in the appellate
courts] finds full sanction in previous decisions . . .
adjudging that[,] when an appeal is taken . . . from an
interlocutory order of the Superior Court which is not subject
to appeal, the Superior Court need not stay proceedings, but may
disregard the appeal and proceed to try the action while the
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appeal on the interlocutory matter is in the [appellate
courts]’”); T & T Dev. Co. v. S. Nat. Bank of S.C., 125 N.C.
App. 600, 603, 481 S.E.2d 347, 349 (stating that, since the
“plaintiffs had no right to appeal the granting of the motion in
limine, the trial court was not deprived of jurisdiction and did
not err in calling the case for trial and dismissing it when
plaintiffs failed to offer any evidence”), disc. review denied,
346 N.C. 185, 486 S.E.2d 219 (1997). As a result, since Woodard
involved an appeal taken from an appealable interlocutory order,
110 N.C. App. at 86, 428 S.E.2d at 851 (stating that,
“[a]lthough normally the denial of a motion to dismiss is
interlocutory and not immediately appealable, this Court has
held that the doctrine of sovereign immunity presents a question
of personal jurisdiction and an appeal of a motion to dismiss
based on this ground is immediately appealable”), while
Plaintiff’s prior appeal in this case was taken from an
unappealable interlocutory order, the principle upon which
Plaintiff relies in challenging the trial court’s order simply
has no application in this instance. Thus, the trial court did
not err by proceeding to hear and decide Defendant’s summary
judgment motion despite the fact that Plaintiff’s appeal from
Judge Pope’s order was still pending in this Court.
B. Validity of Trial Court’s Decision
to Grant Summary Judgment
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Secondly, Plaintiff contends that the trial court erred by
granting Defendant’s summary judgment motion given that the
record demonstrated the existence of genuine issues of material
fact relating to the date upon which Plaintiff’s claim against
Defendant accrued for statute of limitations purposes. More
specifically, Plaintiff contends that the statute of limitations
applicable to her fraud and misrepresentation and her unfair and
deceptive trade practices claims did not begin to run until she
learned that Defendant would not act in accordance with this
understanding, a date which was within three years of the date
upon which she filed her action against Defendant.2 Once again,
we conclude that Plaintiff’s argument lacks merit.
2
As we have noted in the text of this opinion, Plaintiff
asserted a number of different claims in her complaint.
However, the only substantive challenge that she has advanced in
opposition to the trial court’s decision to grant summary
judgment in Defendant’s favor rests upon a contention that the
trial court erred by refusing to allow her fraud and
misrepresentation-based claims and her unfair and deceptive
trade practices claim to proceed to trial. Although Plaintiff
states in her brief that, “[a]s to any remaining issues
presented by [the summary judgment motion], Plaintiff-Appellant
would contend that her complaint and the alleged facts of the
complaint present genuine issues of material fact for trial,”
Plaintiff has not advanced any legal or factual support for this
contention. As a result, Plaintiff has waived any right to
challenge the trial court’s order granting summary judgment in
favor of Defendant on any basis other than that discussed in the
text of this opinion. See N.C.R. App. P. 28(b)(6) (providing
that “[i]ssues not presented in a party’s brief, or in support
of which no reason or argument is stated, will be taken as
abandoned”); Belk v. Belk, __ N.C. App. __, __, 728 S.E.2d 356,
372-73 (2012) (deeming the “respondent’s arguments as to his
-11-
“Upon motion, summary judgment is appropriately entered
where ‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that any party is entitled to a judgment as a matter of law.’”
Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491,
329 S.E.2d 350, 353 (1985) (quoting N.C. Gen. Stat. § 1A-1, Rule
56(c)). In evaluating the validity of a party’s challenge to a
trial court order ruling on a summary judgment motion, we
“carefully scrutinize the moving party’s papers and . . .
resolve all inferences against him.” Id. However, “[o]nce a
defendant has properly pleaded the statute of limitations, the
burden is then placed upon the plaintiff to offer a forecast of
evidence showing that the action was instituted within the
permissible period after the accrual of the cause of action.”
Id.
According to N.C. Gen. Stat. § 1-52(9), actions for fraud
and misrepresentation must be brought within three years of the
act giving rise to the action, with the plaintiff’s action not
“deemed to have accrued until the discovery by the aggrieved
party of the facts constituting the fraud.” Actions brought
affirmative defenses abandoned, as respondent failed completely
in his duty to follow the appellate rules and provide a coherent
argument containing legal authority in support of that
argument”).
-12-
under Chapter 75 of the North Carolina General Statutes must be
brought “within four years after the cause of action accrues.”
N.C. Gen. Stat. § 75-16.2. According to Plaintiff, Defendant
acted in a fraudulent or deceptive manner when Ms. Lawing told
her in 2007 that she would be entitled to a full refund of her
entrance and parking fees in the event that she left Givens
Estates for any reason other than death even though the
residence and services agreement provided otherwise. Assuming
that Plaintiff’s fraud and misrepresentation and unfair and
deceptive trade practices claims accrued in 2007, both of those
claims would clearly be barred by the applicable statute of
limitations. As a result, the ultimate issue raised by
Plaintiff’s challenge to the trial court’s order is whether the
claims that she persists in asserting against Defendant accrued
at a later time.
In seeking to persuade us that her claims against Defendant
are not time-barred, Plaintiff argues, in reliance upon the
discovery rule embodied in the relevant statutory provisions,
that her claims against Defendant did not accrue in 2007. More
specifically, Plaintiff argues that, since she did not actually
learn that the oral representations allegedly made by Ms. Lawing
contradicted the language contained in the residence and
services agreement until 2011, neither her fraud and
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misrepresentation nor her unfair and deceptive trade practices
claims are barred by the applicable statute of limitations.
Plaintiff’s contention lacks merit.
As a general proposition, a “cause of action [predicated
upon allegedly fraudulent conduct] accrues upon discovery of the
fraud or from the time it should have been discovered,” with the
issue of “[w]hether a plaintiff should have discovered the facts
constituting fraud more than three years prior to the
institution of the action ordinarily [being] a question for the
jury.” N.C. Nat’l Bank v. Carter, 71 N.C. App. 118, 124, 322
S.E.2d 180, 184 (1984). The same general rule appears to be
applicable to fraud-based claims brought pursuant to N.C. Gen.
Stat. § 75-1.1. Shepard v. Ocwen Fed Bank, FSB, 361 N.C. 137,
141-42, 638 S.E.2d 197 200 (2006) (holding that an unfair and
deceptive trade practices claim resting upon allegations of
usury should be subject to the statute of limitations applicable
to usury based claims). “‘Discovery’ is defined as actual
discovery or the time when the fraud should have been discovered
in the exercise of due diligence.” Spears v. Moore, 145 N.C.
App. 706, 708, 551 S.E.2d 483, 485 (2001) (citing Hyde v.
Taylor, 70 N.C. App. 523, 528, 320 S.E.2d 904, 908 (1984)).
“Failure to exercise due diligence may be determined as a matter
of law . . . where it is ‘clear that there was both capacity and
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opportunity to discover the [fraud or] mistake.’” Id. at 708-
09, 551 S.E.2d at 485 (quoting Huss v. Huss, 31 N.C. App. 463,
468, 230 S.E.2d 159, 163 (1976)). As a result, in order to rely
on the discovery rule to defeat Defendant’s statute of
limitations defense, Plaintiff was required to forecast evidence
from which a finder of fact could determine that her failure to
discover the position that Defendant took with respect to her
right to obtain a full refund of the entrance and parking fees
that she paid to Defendant in 2007 did not result from a lack of
due diligence on her part. Piedmont Inst. of Pain Mgmt. v.
Staton Found., 157 N.C. App. 577, 585, 581 S.E.2d 68, 73 (2003)
(stating that, “‘when there is a dispute as to a material fact
regarding when the plaintiff should have discovered the fraud,
summary judgment is inappropriate, and it is for the jury to
decide if the plaintiff should have discovered the fraud’”)
(quoting Spears, 145 N.C. App. at 708, 551 S.E.2d at 485).
According to well-established North Carolina law,
one who signs a paper writing is under a
duty to ascertain its contents, and in the
absence of a showing that he was wilfully
misled or misinformed by the defendant as to
these contents, or that they were kept from
him in fraudulent opposition to his request,
he is held to have signed with full
knowledge and assent as to what is therein
contained. If unable to read or write, he
must ask that the paper be read to him or
its meaning explained.
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Williams v. Williams, 220 N.C. 806, 809-10, 18 S.E.2d 364, 366
(1942) (citations omitted). “It is well established in North
Carolina that ‘[o]ne who signs a written contract without
reading it, when he can do so[,] understandably is bound thereby
unless the failure to read is justified by some special
circumstances.’” Marion Partners, LLC v. Weatherspoon & Voltz,
LLP, 215 N.C. App. 357, 359, 716 S.E.2d 29, 31 (2011) (first
alteration in original) (quoting Davis v. Davis, 256 N.C. 468,
472, 124 S.E.2d 130, 133 (1962)). As a result, a litigant’s
“‘duty to read an instrument or to have it read before signing
it, is a positive one, and the failure to do so, in the absence
of any mistake, fraud or oppression, is a circumstance against
which no relief may be had, either at law or in equity.’” Mills
v. Lynch, 259 N.C. 359, 362, 130 S.E.2d 541, 543-44 (1963)
(quoting Furst v. Merritt, 190 N.C. 397, 402, 130 S.E. 40, 43
(1925)). We do not believe that Plaintiff has provided
sufficient justification for her failure to read the residence
and services agreement to preclude the entry of summary judgment
in Defendant’s favor.
As the undisputed evidence clearly reflects, Plaintiff did
not read the residence and services agreement before signing it.
Although she suggests that the record shows the existence of
general issues of material fact concerning the extent to which
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she should have discovered that Defendant did not intend to make
a full refund of the entrance and parking fees that she paid
when she began to reside at Givens Estates, Plaintiff has not
forecast any evidence tending to show that Defendant did
anything to prevent her from reading the residence and services
agreement or that she lacked the capacity, as the result of age,
ill health, mental limitations, or any other factor, to read and
understand that document. As a result, given the undisputed
evidence tending to show that Plaintiff failed to read the
relevant portions of the residence and services agreement before
signing it in 2007 and the complete absence of any non-
conclusory evidence tending to show that Plaintiff had an
adequate justification for failing to read that document at that
time, the record presented to the trial court in support of and
in opposition to Defendant’s summary judgment motion provides no
basis for any determination that Plaintiff’s claims against
Defendant accrued at any time after 2007.
In an attempt to persuade us to reach a different result,
Plaintiff notes that “‘the failure of the defrauded person to
use diligence in discovering the fraud may be excused where
there exists a relation of trust and confidence between the
parties,’” Vail v. Vail, 233 N.C. 109, 116, 63 S.E.2d 202, 207
(1951) (quoting 54 C.J.S., Limitations of Actions, § 194
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(1948)), and argues that she reposed special confidence in
Defendant due to their shared Christian faith. Although the
record does reflect that Plaintiff is a Russian Orthodox
Christian and Defendant is affiliated with the United Methodist
Church, Plaintiff forecast no evidence tending to show that the
underlying transaction at issue in this case was anything other
than economic in nature. Plaintiff has not cited any authority
tending to establish that a shared religious faith, without
more, suffices to create a relationship of trust and confidence
between the parties, and we know of none. As a result, the
religious faith that Plaintiff shared with Defendant does not
provide any justification for excusing Plaintiff’s failure to
read the residence and services agreement at the time that she
began residing at the retirement community operated by
Defendant. As a result, the trial court did not err by
concluding that the claims that Plaintiff sought to assert
against Defendant were barred by the applicable statute of
limitations.
III. Conclusion
Thus, we conclude that neither of Plaintiff’s challenges to
the trial court’s order have any merit. As a result, the trial
court’s order should be, and hereby is, affirmed.
AFFIRMED.
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Judges GEER and STEPHENS concur.
Report per Rule 30(e).