Hester v. Hubert Vester Ford, Inc.

NO. COA14-233

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2015

JOANN HESTER, Individually
and as Personal Representative
of the Estate of Leland Hester,
Plaintiff-Appellant,

v. Bladen County
No. 12 CVS 402
HUBERT VESTER FORD, INC., and
LARRY McPHAIL,
Defendants-Appellants.

Appeal by Plaintiff from order and judgment filed 11

September 2013, nunc pro tunc 26 August 2013, by Judge Douglas

B. Sasser in Superior Court, Bladen County. Heard in the Court

of Appeals 26 August 2014.

Christopher W. Livingston for Plaintiff-Appellant.

Womble & Campbell, P.A., by H. Goldston Womble, Jr.; and C.
Michael Thompson, for Defendants-Appellees.

McGEE, Chief Judge.

Plaintiff filed claims against Hubert Vester Ford, Inc.

(“Vester Ford”) and Larry McPhail (“Mr. McPhail”)

(“Defendants”), for unfair and deceptive trade practices, fraud,

and common law extortion arising out of a vehicle purchase.

Plaintiff alleged Defendants contracted to sell Plaintiff a Jeep
 -2-

vehicle under certain terms but then compelled Plaintiff to sign

a second, less-favorable contract under the threat of

repossession. We find that most, but not all, of Plaintiff’s

claims were properly resolved through summary judgment.

I. Standard of Review

This Court reviews a trial court's order allowing summary

judgment de novo. Builders Mut. Ins. Co. v. North Main Const.,

Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). This review

is limited to determining whether “there is no genuine issue as

to any material fact” and whether the moving parties were

entitled to judgment in their favor as a matter of law. See

Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 43

(1972). It generally is sufficient for a nonmoving party to

survive summary judgment where the party can “produce a forecast

of evidence demonstrating that [the party] will be able to make

out at least a prima facie case at trial.” Creech v. Melnik,

347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citation and

internal quotations omitted). However,

in passing upon a motion for summary
judgment, all affidavits, depositions,
answers to interrogatories and other
material filed in support or opposition to
the motion must be viewed in the light most
favorable to the party opposing the motion,
and such party is entitled to the benefit of
all inferences in [the party’s] favor which
may be reasonably drawn from such material.
 -3-

Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289,

291 (1974). “The slightest doubt as to the facts entitles the

non-moving party to a trial.” Ballenger v. Crowell, 38 N.C.

App. 50, 53, 247 S.E.2d 287, 290 (1978).

II. Background

Because this is an appeal by Plaintiff from a grant of

summary judgment against her, we take the facts in the light

most favorable for Plaintiff. Plaintiff’s son, Ryan Hester

(“Ryan”), became interested in purchasing a 2007 Jeep Wrangler

(“the Jeep”) from Vester Ford sometime near Labor Day in 2009.

Ryan had a preliminary phone conversation with Melvin Scott

(“Mr. Scott”), a salesperson for Vester Ford. During that phone

call, Ryan obtained some type of “pre-approval,” but Mr. Scott

also notified Ryan that he would need a co-signer in order to

purchase the Jeep. Plaintiff, Ryan’s mother, agreed to be that

co-signer.

Plaintiff and Ryan traveled to Vester Ford the following

evening and test-drove the Jeep. While at Vester Ford, they

interacted with Mr. Scott and Mr. McPhail, and both stayed late

to accommodate Plaintiff’s and Ryan’s schedules. Plaintiff and

Ryan presented Defendants with bank and pay documents that

showed their respective incomes, which were modest. However,
 -4-

Defendants allegedly agreed to sell the Jeep to Plaintiff and

Ryan for a base price of about $22,000.00, with a trade-in

credit of $1,000.00 for Plaintiff’s Mercury Grand Marquis (“the

Grand Marquis”), and monthly payments in the $300.00 to $350.00

range for between sixty (60) and seventy-two (72) months.

Plaintiff and Ryan testified during their depositions that: (1)

all parties purportedly signed a purchase contract containing

these terms (the “original” contract); (2) the Grand Marquis’

license plate was transferred to the Jeep at signing; and (3)

Plaintiff and Ryan left with the Jeep that evening.

Plaintiff has been unable to produce a copy of the

“original” contract, and Defendants deny its existence.

Defendants contend they sold the Jeep to Plaintiff on 30

September 2009. However, Plaintiff presented an affidavit from

a neighborhood Labor Day party attendee, averring that he saw

Ryan in possession of the Jeep several weeks before 30 September

2009. Vester Ford also submitted a credit application on

Plaintiff’s behalf to Marine Federal Credit Union to finance the

purchase of the Jeep (“Marine Credit application”); the Marine

Credit application was dated 24 September 2009, six days before

Defendants state they sold Plaintiff the Jeep. Notably, this

credit application greatly exaggerated Plaintiff’s finances.

Finally, the Jeep was transferred to Plaintiff’s insurance on 28
 -5-

September 2009, two days before Defendants state they sold

Plaintiff the Jeep.1

Plaintiff alleged that Mr. Scott contacted her in early

October 2009 and stated that: (1) the financing for Plaintiff’s

recent Jeep purchase had fallen through; (2) Plaintiff needed to

sign a new purchase contract for the Jeep, with new financing;

and (3) if Plaintiff did not sign the new contract, the Jeep

would be repossessed. Soon thereafter, Mr. Scott arrived at

Plaintiff’s residence and presented Plaintiff and her husband

with the new contract, which was backdated to 30 September 2009

(the “30 September” contract). Mr. Scott allegedly informed

Plaintiff and her husband that the terms in the 30 September

contract were the same as those in the “original” contract.

Plaintiff alleged that Mr. Scott then physically covered the top

half of the 30 September contract when he presented it to

Plaintiff and her husband, obscuring their view of the terms

therein. Neither Plaintiff nor her husband asked to read the

terms of the 30 September contract before signing it.2

1
Some of Vester Ford’s documentation indicates that Vester
Ford did not actually take title to the Jeep until 30 September
2009.
2
Plaintiff’s co-plaintiff husband has since passed away,
and Plaintiff is the personal representative of her husband’s
estate in this matter. Plaintiff’s husband’s involvement in
 -6-

The 30 September contract required that Plaintiff make

monthly payments of $614.83, with an interest rate of 14.69

percent, for sixty (60) months — almost doubling the monthly

payments that Plaintiff contends were required under the

“original” contract. The terms in the 30 September contract

were based on a line of credit that Vester Ford obtained on

Plaintiff’s behalf from Ford Motor Credit Company after

financing for the “original” contract reportedly fell through.

The credit application submitted to Ford Motor Credit Company by

Vester Ford inflated Plaintiff’s financial data even more than

the Marine Credit application.

Ryan remained in possession of the Jeep approximately nine

months after Plaintiff signed the 30 September contract,

although he only made a couple of monthly payments thereon. The

Jeep was repossessed in July 2010, was sold, and a deficiency

judgment was entered against Plaintiff for the remainder of the

amount owed under the 30 September contract. However, that

deficiency judgment was set aside by a consent order, and

Plaintiff currently owes nothing on the Jeep.

this case primarily arises out of his signing the 30 September
contract.
 -7-

Plaintiff filed a complaint against Defendants for unfair

and deceptive trade practices (“UDTP”), fraud, and common law

extortion. Plaintiff and Defendants then moved for summary

judgment against each other. By order filed 11 September 2013,

the trial court granted Defendants’ motion for summary judgment

but denied Plaintiff’s motion. Plaintiff appeals.

III. Plaintiff’s Motion for Summary Judgment Denied

As a preliminary matter, Plaintiff appeals both the trial

court’s grant of summary judgment against her and the trial

court’s denial of her motion for summary judgment against

Defendants. However, “the denial of a motion for summary

judgment is not reviewable during appeal from a final judgment

rendered in a trial on the merits.” Harris v. Walden, 314 N.C.

284, 286, 333 S.E.2d 254, 256 (1985). The trial court’s grant

of Defendants’ motion for summary judgment was a final judgment

on the merits. See Id. Therefore, on appeal, we will not

review Plaintiff’s denied motion for summary judgment.

IV. Defendants’ Motion for Summary Judgment Granted

A. Claims Arising Under the 30 September Contract

1. Unfair and Deceptive Trade Practices

Plaintiff presents this Court with a multitude of arguments

on appeal, and many of them emanate from a core UDTP claim

related to the formation of the 30 September contract. “In
 -8-

order to establish a prima facie claim for unfair trade

practices, a plaintiff must show: (1) [the] defendant committed

an unfair or deceptive act or practice, (2) the action in

question was in or affecting commerce, and (3) the act

proximately caused injury to the plaintiff.” Dalton v. Camp,

353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001). The second

requirement, that the act or practice be “in or affecting

commerce,” is not at issue in the present case. Thus, in order

to survive summary judgment, Plaintiff must establish a material

question of fact as to whether Defendants committed unfair or

deceptive acts that proximately injured Plaintiff.

Plaintiff contends that she and Defendants entered into the

“original” contract for the Jeep sometime before Labor Day in

2009. Plaintiff and Ryan testified during their depositions

that they signed this “original” contract with Defendants.

Plaintiff also presented the following circumstantial evidence

in support of the existence of the “original” contract: (1) an

affidavit from a neighborhood Labor Day party attendee, averring

that he saw Ryan in possession of the Jeep early in September

2009; (2) a credit application that Vester Ford submitted on

Plaintiff’s behalf on 24 September 2009 to finance the purchase

of the Jeep, six days before Defendants state they sold

Plaintiff the Jeep; and (3) an automobile insurance policy
 -9-

statement showing that the Jeep was transferred to Plaintiff’s

auto insurance on 28 September 2009, two days before Defendants

state they sold Plaintiff the Jeep. Plaintiff correctly points

out that transferring auto insurance to a consumer’s policy is

only supposed to occur once financing is finalized and the

consumer has taken title to the vehicle. See N.C. Gen. Stat

§ 20-75.1 (2013).

In light of this evidence, the fact that Defendants

adamantly deny the existence of the “original” contract creates

a material issue of fact in the case before this Court. See

Durham Life Broadcasting, Inc. v. Internat'l Carpet Outlet, 63

N.C. App. 787, 788, 306 S.E.2d 459 (1983) (“There is clearly a

dispute in the case sub judice where the defendant denies the

existence of a contract.”). However, Defendants argue that

summary judgment for Defendants was proper nonetheless. They

highlight the fact that Plaintiff has not produced a copy of the

“original” contract and that Plaintiff’s sworn statements as to

the terms of this contract are less than precise. However, this

is not necessarily dispositive of the circumstantial evidence

that Plaintiff presented to the trial court as to the possible

existence of the “original” contract.

Taking the evidence in a light most favorable to Plaintiff,

the non-moving party in Defendants’ motion for summary judgment,
 -10-

and granting Plaintiff all reasonable inferences therefrom, we

must assume that the “original” contract existed. Therefore, we

assume that Plaintiff had a property interest in the Jeep before

she was presented with the 30 September contract. As such, Mr.

Scott’s threat to repossess the Jeep if Plaintiff did not sign

the 30 September contract presents a material question as to

whether Vester Ford, through its agent, Mr. Scott, committed an

unfair or deceptive act in or affecting commerce. If so, the

resulting harm would be that Plaintiff was subjected to a

subsequent purchase contract, the 30 September contract, on

disadvantageous terms. Finally, contrary to Defendants’

contention that Plaintiff has suffered no actual damages because

her liability to Ford Motor Credit Company on the loan for the

Jeep was extinguished, Plaintiff has forecast some actual

damages resulting from Vester Ford’s alleged misconduct – for

instance, losing the value of her Grand Marquis after the Jeep

was repossessed.3 Therefore, Plaintiff has sufficiently

established the necessary elements to support an UDTP claim.

3
Because Plaintiff appeals from the trial court’s grant of
summary judgment against her, our review of Plaintiff’s damages
need not probe beyond finding the existence of actual damages.
See Creech, 347 N.C. at 526, 495 S.E.2d at 911 (“[It is
sufficient for a nonmoving party to survive summary judgment
where the party can] produce a forecast of evidence
 -11-

As Defendants correctly point out, notwithstanding the

possible existence of the “original” contract, Plaintiff’s

failure to read the 30 September contract, and without even

requesting an opportunity to do so, could preclude her from

recovery under the new contract. “One who signs a written

contract without reading it, when [she] can do so

understandingly[,] is bound thereby unless the failure to read

is justified by some special circumstance.” Davis v. Davis, 256

N.C. 468, 472, 124 S.E.2d 130, 133 (1962) (citations omitted).

At its core, the question is whether Plaintiff acted with

“reasonable prudence” by relying on Mr. Scott’s assurances that

the terms of the 30 September contract were the same as those in

the “original” contract, except for the source of financing.

See id. “What a reasonably prudent person will or will not do

under various circumstances . . . is nearly always a question of

fact, not of law. Only when the facts are such that reasonable

minds can reach but one conclusion does the question become one

of law.” Hulcher Brothers & Co. v. N.C. Dep't of

Transportation, 76 N.C. App. 342, 343, 332 S.E.2d 744, 745

(1985). Moreover,

demonstrating that [the party] will be able to make out at least
a prima facie case at trial.”).
 -12-

[i]t is only in exceptional cases that the
issue of reasonable reliance may be decided
by the summary judgment procedure. . . . [An
aggrieved party who failed to read a
contract] will not be charged with knowledge
of the contents of [the contract she] signed
if it were obtained by trick or artifice.

Northwestern Bank v. Roseman, 81 N.C. App. 228, 234, 344 S.E.2d

120, 125 (1986), aff'd, 319 N.C. 394, 354 S.E.2d 238 (1987)

(emphasis added) (citations omitted).

Although Plaintiff’s failure to read the 30 September

contract likely is harmful to her claim, Plaintiff contends that

her signature on the 30 September contract was made under duress

and obtained through fraud. Given that we must presume

Plaintiff was operating under the notion that the “original”

contract established a set, binding, and existent agreement

between her and Vester Ford, there remains the question of

whether Plaintiff reasonably relied on Mr. Scott’s assertions

that the terms of the 30 September contract were identical to

those in the “original” contract, except for the source of

financing. Alternatively, when faced with Mr. Scott’s threat to

repossess the Jeep, there is a question as to whether Plaintiff

would have signed the 30 September contract under duress, even

if she had read it and objected to the new terms. These are

questions of fact for a jury to determine.
 -13-

Defendants further assert that Plaintiff is estopped from

recovery because she accepted the benefits of the 30 September

contract by using the Jeep for a number of months after signing

the 30 September contract. To support this contention,

Defendants note that “the acceptance of benefits [under a

contract] precludes a subsequent inconsistent position [by an

aggrieved party], even where acceptance is involuntary, arises

by necessity, or where . . . a party voluntarily accepts a

benefit to avoid the risk of harm". Shell Island Homeowners

Ass'n v. Tomlinson, 134 N.C. App. 217, 226, 517 S.E.2d 406, 413

(1999) (citing Carolina Medicorp, Inc. v. Board of Trustees, 118

N.C. App. 485, 493–93, 456 S.E.2d 116, 120 (1995)) (quotes

omitted).

This authority, however, is distinguishable from the

present case. Carolina Medicorp, on which Defendants’ authority

relies, involved a contractual dispute between some North

Carolina hospitals and the North Carolina state employee health

insurance plan. Carolina Medicorp, 118 N.C. App. at 487–88, 456

S.E.2d at 117–18. The plaintiff hospitals had contracted to

accept lower reimbursement rates in exchange for being

designated “preferred providers” by the state health plan; state

employees, in turn, would pay less out-of-pocket for services

received at “preferred providers,” making the hospitals
 -14-

financially attractive to patients. Id. The hospitals

subsequently challenged the lower reimbursement rates under

their contracts, contending that the hospitals entered into the

contracts involuntarily. Id. However, the hospitals were

estopped from litigating the issue because they had already

accepted the benefits of being “preferred providers” under the

plan. Id. at 492–94, 456 S.E.2d at 120–21 (“[V]oluntariness is

not an element under the doctrine of quasi estoppel.

Furthermore, even if it were an element of quasi estoppel,

petitioners were not compelled to sign the contracts. They

chose to avoid the risk of losing patients to other preferred

provider hospitals by signing the contracts.”).

In the present case, Plaintiff is not challenging the

enforcement of the 30 September contract with Vester Ford;

indeed, a default judgment was entered against Plaintiff after

she stopped making monthly payments to Ford Motor Credit

Company, and that default judgment was later set aside. There

is nothing left to enforce under the 30 September contract.

Instead, Plaintiff contends that Defendants engaged in unfair

and deceptive trade practices during the formation of the 30

September contract, which presents a different legal question.

“[T]he essential purpose of quasi-estoppel . . . is to

prevent a party from benefitting by taking two clearly
 -15-

inconsistent positions” under a contract. B & F Slosman v.

Sonopress, Inc., 148 N.C. App. 81, 88, 557 S.E.2d 176, 181

(2001). North Carolina’s UDTP laws, however, are designed to

provide consumers with a remedy for injuries done to them by

dishonest and unscrupulous business practices. See N.C. Gen.

Stat. § 75-16 (2013). Even where an aggrieved party is estopped

from taking a subsequent inconsistent position under a contract

due to quasi-estoppel, the party on the other side of the

agreement is not categorically absolved of its unlawful acts

during the formation of that same contract. Therefore, quasi-

estoppel does not apply in the present case.

Plaintiff has established a prima facie UDTP claim against

Vester Ford regarding the formation of the 30 September

contract. The fact that Plaintiff has not produced the

“original” contract and did not read the 30 September contract

is not necessarily dispositive. Moreover, because Plaintiff’s

UDTP claim does not challenge the enforcement of the 30

September contract, quasi-estoppel does not apply. As such, the

trial court erred by granting summary judgment as to Vester Ford

on this claim.

2. Fraud

Plaintiff’s complaint also raised an alternative, but

related, fraud claim against Defendants based on the same facts
 -16-

that gave rise to Plaintiff’s UDTP claim above. The elements of

fraud are well-established: “(1) [f]alse representation or

concealment of a material fact, (2) reasonably calculated to

deceive, (3) made with the intent to deceive, (4) which does in

fact deceive, (5) resulting in damage to the injured party.”

Helms v. Holland, 124 N.C. App. 629, 634, 478 S.E.2d 513, 516

(1996) (citation and quotes omitted). Plaintiff presented

evidence that Vester Ford intentionally and falsely represented

to Plaintiff that Vester Ford could repossess the Jeep in order

to induce her to sign the 30 September contract. Therefore, for

reasons similar to those discussed in the previous section,

Plaintiff’s alternative claim for fraud as to Vester Ford should

survive summary judgment.

3. Common Law Extortion

Plaintiff’s complaint raised a third alternative tort claim

for common law extortion based on the same facts that gave rise

to her UDTP and fraud claims. However, no civil cause of action

for extortion currently exists under North Carolina law. See

Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C.

App. 581, 585, 664 S.E.2d 8, 12 (2008). Nonetheless, Plaintiff

proposes that “[e]ven if extortion is not yet a recognized tort

[under North Carolina law], it must become one.”
 -17-

To date, this Court has not been presented with a direct,

supported, or convincing argument that extortion should be a

cognizable tort under North Carolina law. See, e.g., Brawley v.

Elizabeth Townes Homeowners Ass'n, Inc., __ N.C. App. __, __

S.E.2d __, COA14–135, slip op. at 9–10 (Aug. 19, 2014)

(unpublished) (affirming the dismissal of, inter alia, a pro se

extortion claim on collateral estoppel grounds); Lawson v.

White, 197 N.C. App. 758, 680 S.E.2d 904, COA07-296-2, slip op.

at 5 (July 7, 2009) (unpublished) (“Plaintiff fails to cite any

cases on point and fails to set forth what the elements of

[extortion] might be.”); Free Spirit Aviation, 191 N.C. App. at

585, 585 n.3, 664 S.E.2d at 12, 12 n.3 (2008) (“[Plaintiffs'

complaint . . . expressly states a claim for extortion. . . .

[However,] the issue of whether a civil claim for extortion

exists in North Carolina was not argued [on appeal, so] we make

no ruling either way on this issue.”). Although “this Court

will not shirk its duty to fully consider new causes of actions

when they are properly presented,” Woodell v. Pinehurst Surgical

Clinic, P.A., 78 N.C. App. 230, 233, 336 S.E.2d 716, 718 (1985),

aff'd, 316 N.C. 550, 342 S.E.2d 523 (1986), overruled on other

grounds by Johnson v. Ruark Obstetrics, 327 N.C. 283, 300–01,

395 S.E.2d 85, 95 (1990), so too must we proceed with the utmost

caution and deliberateness in the face of such a request.
 -18-

Plaintiff, in support of her argument that extortion should

be a cognizable tort under North Carolina law, presents this

Court with non-controlling authority from New Jersey, People

Exp. Airlines, Inc. v. Consol. Rail Corp., 495 A.2d 107, 111

(N.J. 1985), which discusses the adaptability of the common law

in the face of significant, long-term shifts in societal norms.

Plaintiff also cites the Open Courts Clause of the North

Carolina Constitution, which states that “[a]ll courts shall be

open; every person for an injury done him in his lands, goods,

person, or reputation shall have remedy by due course of law;

and right and justice shall be administered without favor,

denial, or delay.” N.C. Const. Art. 1 § 18. In light of this

authority, Plaintiff contends that her remedy for Defendants’

inducing her to sign the 30 September contract, “falls between

the two stools of fraud (if deception is absent) and conversion

(if consent is present)[.]” Between these two “stools,”

Plaintiff argues, necessarily sits her claim for extortion. We

disagree.

First, we note that Plaintiff has raised a claim for fraud,

alleging deception by Defendants, which allegedly was aimed at

inducing Plaintiff to sign the 30 September contract. Second,

the space between the two “stools” of fraud and conversion has

been fully, and adequately, occupied by Plaintiff’s UDTP claim.
 -19-

Plaintiff argues in her brief that she would need to prove two

things for an extortion claim against Defendants: (1) that

Defendants unlawfully threatened Plaintiff with repossession of

the Jeep (2) in order to obtain value from Plaintiff by binding

her to the allegedly disadvantageous terms of the 30 September

contract. These essentially are the same facts that Plaintiff

needs to prove in her UDTP claim and to obtain appropriate

relief from the alleged harm done to her by Defendants. As

such, Plaintiff is not being denied a “remedy by due course of

law” presently, and we decline to use this case to recognize a

cognizable tort of common law extortion under North Carolina

law.

B. Claims Arising Under the “Enhanced” Credit Applications

1. Unfair and Deceptive Trade Practices

On appeal, Plaintiff attempts to argue that Defendants

committed unfair and deceptive trade practices by submitting

credit applications on her behalf for the purchase of the Jeep

that greatly “enhanced” Plaintiff’s financial data. However,

Plaintiff did not plead this claim in her complaint. Therefore,

we will not consider it. See N.C.R. App. P. 10(a)(1) (“In order

to preserve an issue for appellate review, a party must have

presented to the trial court a timely request, objection, or

motion, stating the specific grounds for the ruling the party
 -20-

desired the court to make if the specific grounds were not

apparent from the context.”).

2. Fraud

Plaintiff also alleged fraud against Defendants based on

Defendants’ purportedly “enhancing” Plaintiff’s financial

information when submitting credit applications on her behalf.

Again, the elements of fraud are: “(1) [f]alse representation

or concealment of a material fact, (2) reasonably calculated to

deceive, (3) made with the intent to deceive, (4) which does in

fact deceive, (5) resulting in damage to the injured party.”

Helms v. Holland, 124 N.C. App. 629, 634, 478 S.E.2d 513, 516

(1996) (citation and quotes omitted). Plaintiff does not

contend that Defendants made false representations to Plaintiff

regarding her financial information. Instead, Plaintiff’s fraud

claim here rests on the contention that Ford Motor Credit

Company was deceived by Defendants’ “enhancing” Plaintiff’s

financial data when submitting credit applications on her behalf

and that Plaintiff was subsequently injured thereby. Plaintiff

asserts that “[e]lements (2), (3), and (4) [of fraud] do not

require that the deceived person be the same person as the

injured party.” However, Plaintiff provides this Court with no

authority to support this argument, and we do not agree.
 -21-

Notably, Plaintiff did not file a claim of constructive

fraud against Defendants. A claim for constructive fraud would

require only that Plaintiff show that she and Defendants were in

a “relation of trust and confidence . . . [which] led up to and

surrounded the consummation of the transaction in which

[Defendants are] alleged to have taken advantage of [their]

position of trust to the hurt of [Plaintiff].” Rhodes v. Jones,

232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950). “[C]harging

actual fraud is ‘more exacting’ than charging constructive

fraud.” Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674, 677

(1981).

We need not, and do not, decide whether Defendants, by

allegedly “enhancing” Plaintiff’s financial data while obtaining

credit on her behalf, may have committed constructive fraud

against Plaintiff; Plaintiff did not plead such a claim in her

complaint. See N.C.R. App. P. 10(a)(1). Thus, restricting our

analysis to the “exacting” elements of “actual” fraud, Plaintiff

has not sufficiently pleaded facts that Defendants made

deceptive statements to Plaintiff regarding her financial data

and in the course of obtaining a line of credit on her behalf.

Therefore, Plaintiff has not established a prima facie fraud

claim against Defendants here, and the trial court did not err

by granting summary judgment on this claim.
 -22-

C. Summary Judgment as to Mr. McPhail

Finally, Plaintiff assigns error to the trial court’s

granting summary judgment as to her claims against Mr. McPhail.

1. Mr. McPhail’s Liability Regarding the 30 September

Contract

On appeal, Plaintiff argues that Mr. McPhail should be held

personally liable in the present case because Mr. McPhail knew

of Plaintiff’s modest finances, but he authorized the 30

September contract nonetheless, and this resulted in harm to

Plaintiff. “As an essential element of a cause of action under

G.S. 75-16 [for UDTP], [P]laintiff must prove . . . that

[P]laintiff has suffered actual injury as a proximate result” of

Defendants’ actions. Bailey v. LeBeau, 79 N.C. App. 345, 352,

339 S.E.2d 460, 464 (1986), aff'd as modified, 318 N.C. 411, 348

S.E.2d 524 (1986). The same is true for a claim of fraud. See

Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599–601, 534

S.E.2d 233, 236–37 (2000).

Although Mr. McPhail may have been aware of the modest

finances of Plaintiff and Ryan, the financing terms in the 30

September contract that Mr. McPhail approved were those given to

Vester Ford by the Ford Motor Credit Company. Plaintiff has not

alleged that Mr. McPhail was aware of, or in any way involved

with, the “enhancements” to Plaintiff’s financial data in the
 -23-

respective credit application that lead to the terms of the 30

September contract. As such, Mr. McPhail’s merely authorizing

the 30 September contract alone is not sufficient to maintain an

UDTP or fraud claim against him.

2. Mr. McPhail’s Liability Regarding the “Original” Contract

On appeal, Plaintiff also asserts certain additional facts

as to her interactions with Mr. McPhail. Specifically, she

argues that Mr. McPhail should be held personally liable in the

present case because he was the Vester Ford employee who

negotiated and agreed to the “original” contract; yet he still

authorized the 30 September contract. Notably, in Plaintiff’s

complaint, she asserted that

14. Mr. Scott or Mr. McPhail on behalf of
Vester told Mrs. Hester and Ryan that their
credit was approved, and agreed
unconditionally to sell the Jeep to Ryan and
Mrs. Hester for a principal amount of about
$23,000, paid in installments of about $320
per month (but not more than $350/month) for
60 months, in return for a trade-in
allowance of $1,000 on Mrs. Hester's 1993
Mercury Grand Marquis.

Although Plaintiff’s complaint named “Mr. Scott or Mr. McPhail”

as the one who negotiated and agreed to the “original” contract,

the depositions of Plaintiff and Ryan do not implicate Mr.

McPhail as such. Plaintiff and Ryan even testified that they

almost exclusively dealt with Mr. Scott during the purchase of
 -24-

the Jeep and that Mr. McPhail performed only ministerial

functions in relation thereto. In fact, the only evidence

presented to the trial court that Mr. McPhail was the Vester

Ford employee who negotiated and agreed to the “original”

contract came in the form of nearly identical affidavits, filed

by Plaintiff and Ryan, only four days before the summary

judgment hearing on 26 August 2013. On this point, it is clear:

The affidavits [presented by Plaintiff and
Ryan] materially alter the deposition
testimony in order to address gaps in the
evidence necessary to survive summary
judgment. . . . [I]f a party who has been
examined at length on deposition could raise
an issue of fact simply by submitting an
affidavit contradicting his [or her] own
prior testimony, this would greatly diminish
the utility of summary judgment as a
procedure for screening out sham issues of
fact.

See Marion Partners, LLC v. Weatherspoon & Voltz, LLP, 215 N.C.

App. 357, 362-63, 716 S.E.2d 29, 33 (2011) (citation and quotes

omitted). Therefore, the trial court properly was not persuaded

by this “evidence” in granting summary judgment as to Mr.

McPhail. Plaintiff has presented no other argument that Mr.

McPhail should be held personally liable in this case for his

involvement in the purported execution of the “original”

contract.

V. Conclusion
 -25-

The trial court properly granted summary judgment to Mr.

McPhail on all of Plaintiff’s claims against him. The trial

court also properly granted summary judgment to Vester Ford with

respect to Plaintiff’s common law extortion claim, as well as

her UDTP and fraud claims arising out of Vester Ford allegedly

“enhancing” Plaintiff’s financial information on credit

applications. However, the trial court erred by granting

summary judgment to Vester Ford on Plaintiff’s UDTP and fraud

claims arising out of the formation of the 30 September

contract.

Reversed in part, and remanded; affirmed in part.

Judges BRYANT and STROUD concur.