                               NO. COA13-1297

                     NORTH CAROLINA COURT OF APPEALS

                          Filed:      15 July 2014

JONATHAN RUSSEL FOLMAR and
MARGARET FOLMAR,
     Plaintiffs,

    v.                                    Union County
                                          No. 12 CVS 2956
SAMUEL DAVID KESIAH and LOUIE
KESIAH, SARAH HARRIS and COOKE
REALTY, INC.,
     Defendants.


    Appeal by plaintiffs from order entered 26 April 2013 by

Judge W. David Lee in Union County Superior Court.           Heard in the

Court of Appeals 9 April 2014.


    DeVore Acton & Stafford, PA, by F. William DeVore, IV and
    Fred W. DeVore, III for plaintiff-appellants.

    Perry, Bundy, Plyler, Long & Cox, LLP, by H. Ligon Bundy
    and Natalie J. Broadway for defendant-appellees.


    McCULLOUGH, Judge.


    Plaintiff-homebuyers appeal from a summary judgment entered

in favor of defendant-homeowners for their claims of fraud and

misrepresentation,    breach    of    contract,   and   punitive   damages.

Based on the reasons stated herein, we affirm the order of the

trial court.

                           I.        Background
                                          -2-
       On 15 October 2012, plaintiffs Jonathan Russel Folmar and

Margaret   Folmar    filed    a    complaint       against   defendants   Samuel

David    Kesiah     and    Louis        Kesiah    (collectively    the    “Kesiah

defendants”), as well as against Sarah Harris and Cooke Realty,

Inc.     Sarah Harris (“Harris”) and Cooke Realty, Inc. (“Cooke

Realty”) are not parties to this appeal.

       The complaint alleged that on 30 March 2012, plaintiffs

entered into a purchase agreement (“agreement”) with the Kesiah

defendants regarding real property located on Private Drive in

Ocean Isle Beach, North Carolina (“the property”).                     Harris, a

real estate agent, and Cooke Realty served as dual agents for

both plaintiffs and the Kesiah defendants.                   Prior to closing,

Harris went to the property with Darryl Moffett, a contractor

hired by plaintiffs.         Moffett was originally hired to paint and

complete minor repair work for plaintiffs after closing but had

arranged to meet Harris in order to determine the “scope of the

work    involved.”        While    on    the     property,   Moffett   noticed   a

“deteriorated section of wall cladding on the front elevation

next to the entry door.”           Moffett “pressed his hand against the

wall, and a piece of wall cladding fell off, exposing rotted

oriented strand board (“OSB”) sheathing.”                    Plaintiffs alleged

that other defects were also discovered by Moffett in direct
                                     -3-
view of Harris.     Plaintiffs alleged that despite the fiduciary

and   contractual   obligations   of       Harris   to   plaintiffs,   Harris

never informed plaintiffs of the defects found at the property.

      Relying on the representations made by Harris, Cooke Realty

and the Kesiah defendants, plaintiffs paid $349,000.00 for the

property at closing.     Immediately following closing, plaintiffs

discovered:

           a substantial number of defects with the
           home,   including     but   not   limited   to:
           interior water stains at windows and walls,
           delamated [sic] or missing cedar shingles,
           rotted wall cladding, one area on the front
           elevation wall exhibited previous repairs
           that   included    the   installation   of  new
           beveled    cedar     lap   siding    and   felt
           underlayment    over   wet   and   rotted  wood
           sheathing, many areas of wood rot throughout
           the exterior of the building, etc.

Plaintiffs    alleged   that   the     Kesiah       defendants   had   actual

knowledge of the defects of the property, yet had checked “No”

on the State of North Carolina Residential Property and Owners’

Association Disclosure Statement (“the disclosure”) in regards

to the aforementioned areas.         Plaintiffs also alleged that all

defendants were aware of the defects found in the property prior

to closing and were “responsible to disclose these defects to

Plaintiffs prior to closing.”
                                           -4-
      Plaintiffs        claimed    they     had    been   damaged   in    excess    of

$10,000.00        and    alleged     the     following      claims:       fraud    and

misrepresentation,          breach   of     contract,     and   punitive     damages

against    the     Kesiah    defendants;          fraud   and   misrepresentation,

breach of fiduciary duty, unfair and deceptive trade practices,

and punitive damages against defendants Harris and Cooke Realty.

      On 19 November 2012, the Kesiah defendants filed an answer.

On   19   March    2013,    the    Kesiah    defendants     filed   a     motion   for

summary judgment pursuant to Rule 56 of the North Carolina Rules

of Civil Procedure.

      Following a hearing held at the 22 April 2013 session of

Union County Superior Court, the trial court entered summary

judgment     in    favor     of    the    Kesiah     defendants     and    dismissed

plaintiffs’ action with prejudice as to the Kesiah defendants on

26 April 2013.

      On 20 June 2013, defendants Harris and Cooke Realty filed

an amended motion to change venue from Union County to Brunswick

County.      On 12 July 2013, the trial court entered an order

transferring the file to the Brunswick County Clerk of Superior

Court.     On 1 August 2013, Union County filed an “Acknowledgement

of Receipt of Transferred Case File.”
                                      -5-
      On 22 August 2013, plaintiffs voluntarily dismissed their

claims against Harris and Cooke Realty without prejudice.

      Plaintiffs    filed notice of         appeal on 28 August 2014       in

Union County Superior Court.         Plaintiffs are appealing the entry

of the 26 April 2013 order granting summary judgment in favor of

the   Kesiah    defendants    and   dismissing   plaintiffs’    action   with

prejudice as to the Kesiah defendants.

                        II.    Standard of Review

      Summary     judgment     is     proper     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.”              N.C. Gen. Stat. §

1A-1, Rule 56(c) (2013).        “When considering a motion for summary

judgment, the trial judge must view the presented evidence in a

light most favorable to the nonmoving party.”             Hamby v. Profile

Prods., LLC, 197 N.C. App. 99, 105, 676 S.E.2d 594, 599 (2009)

(citation omitted).

           The party moving for summary judgment has
           the burden of establishing the lack of any
           triable issue.   The movant may meet this
           burden by proving that an essential element
           of the opposing party’s claim is non-
           existent, or by showing through discovery
           that the opposing party cannot produce
           evidence to support an essential element of
                                       -6-
            his claim or cannot surmount an affirmative
            defense which would bar the claim.

Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C.

63, 66, 376 S.E.2d 425, 427 (1989) (citations omitted).

    “The standard of review for a trial court’s ruling on a

motion    for   summary   judgment     is    de   novo.     Under     a   de    novo

standard of review, this Court considers the matter anew and

freely    substitutes     its   own   judgment     for    that   of   the      trial

court.”    Horne v. Town of Blowing Rock, __ N.C. App. __, __, 732

S.E.2d 614, 618 (2012) (citations and quotation marks omitted).

                                III. Discussion

    On appeal, plaintiffs argue that the trial court erred by

(A) granting summary judgment in favor of the Kesiah defendants

where plaintiffs established a prima facie showing of fraud and

misrepresentation by the Kesiah defendants and where plaintiffs

exercised due diligence prior to purchasing the home and were

not put on notice of the substantial defects prior to the sale

of the property.     Plaintiffs also argue that (B) the forecast of

evidence demonstrated that summary judgment was not ripe for

hearing.

    As a preliminary matter, we address the Kesiah defendants’

argument that our Court should dismiss plaintiffs’ appeal as it

is not properly before us.            The Kesiah defendants contend that
                                       -7-
because    the   trial   court   entered       an     order   on   12   July   2013

transferring the present case from Union County to Brunswick

County, plaintiffs should have thereafter filed notice of appeal

in   Brunswick    County.        The    Kesiah        defendants    assert     that

plaintiffs’ filing of notice of appeal on 28 April 2014 in Union

County was not in compliance with the North Carolina Rules of

Appellate Procedure and that their appeal should be dismissed

for lack of jurisdiction.

      We note that Rule 26(a) of the North Carolina Rules of

Appellate Procedure, entitled “Filing and service” provides that

“[p]apers required or permitted by these rules to be filed in

the trial or appellate divisions shall be filed with the clerk

of   the   appropriate    court.”       N.C.     R.    App.   P.   26(a)     (2013)

(emphasis added).        Article II of the North Carolina Rules of

Appellate Procedure governs appeals from judgments and orders of

superior courts and district courts.                   Rule 3 of Article II,

entitled “Appeal in civil cases – How and when taken” provides

as follows:

            (a) Filing the notice of appeal.    Any party
                entitled by law to appeal from a judgment
                or order of a superior or district court
                rendered in a civil action or special
                proceeding may take appeal by filing
                notice of appeal with the clerk of
                superior court[.]
                                      -8-
N.C. R. App. P. Rule 3(a) (2013).

    In the case sub judice, plaintiffs’ complaint was initiated

in Union County       Superior Court.        The order granting summary

judgment in favor of the Kesiah defendants was entered in Union

County Superior Court and was final as to plaintiffs’ claims

against    the    Kesiah   defendants.        Thereafter,    the     remaining

defendants, Harris and Cooke Realty, filed a motion to change

venue to Brunswick County.        The trial court granted this motion

and transferred the file to Brunswick County on 12 July 2013 for

“further proceedings as may be necessary or appropriate.”

    Because the summary judgment order entered in Union County

was final as to plaintiffs’ claims against the Kesiah defendants

and because the proceedings that occurred in Brunswick County

subsequent to the entry of summary judgment had no impact on the

summary judgment order in favor of the Kesiah defendants, we

hold that it was not error for the plaintiffs to file their

notice of appeal in the “appropriate court” in Union County.

Accordingly, we proceed to the merits of plaintiffs’ appeal.

                    A.     Fraud and Misrepresentation

    First,       plaintiffs   argue   that    the   trial   court    erred   by

granting   summary    judgment   in   favor    of   the   Kesiah    defendants

where plaintiffs established a prima facie showing of fraud and
                                            -9-
misrepresentation by the Kesiah defendants.                        In the event that

our Court finds that a genuine issue of material fact exists as

to   plaintiffs’      fraud     and   misrepresentation            claim,   plaintiffs

also argue that there is a genuine issue of material fact as to

their   contract      and   punitive        damages   claims.          Based      on   the

following reasons, we reject plaintiffs’ contentions.

                 The essential elements of actionable
            fraud are (1) [f]alse representation or
            concealment   of   a   material  fact,   (2)
            reasonably calculated to deceive, (3) made
            with intent to deceive, (4) which does in
            fact deceive, (5) resulting in damage to the
            injured   party.  Additionally,  plaintiff’s
            reliance on any misrepresentations must be
            reasonable.

MacFadden v. Louf, 182 N.C. App. 745, 747, 643 S.E.2d 432, 434

(2007) (citations omitted).

      In   the    present     case,    plaintiffs         assert    that    the    Kesiah

defendants falsely represented material facts:                       by marking “no”

on the disclosure which stated “to your knowledge is there any

problem    (malfunction        or     defect)”     with     things     such       as   the

foundation, slab, floors, windows, doors, ceilings, interior and

exterior   walls,      patio,    deck,      or    other    structural       components;

learning of the defects in the property sometime after 2006 and

intentionally listing the property below value to “entice buyers

as   opposed     to   correcting      the    defects”;      previously      performing
                                       -10-
work on the windows, sheathing, exterior walls, etc. prior to

selling the home to plaintiffs and covering up existing rot with

new materials; and having knowledge that many of the areas of

the property were missing sheathing.

       The   Kesiah     defendants    argue    that    even    assuming    arguendo

that they had knowledge of the defects of the property prior to

selling the property to plaintiffs, any reliance by plaintiffs

to the Kesiah defendants’ alleged misrepresentations were not

reasonable.     We agree with the Kesiah defendants.

       In MacFadden v. Louf, 182 N.C. App. 745, 643 S.E.2d 432

(2007), a homebuyer brought an action against the seller for

alleged undisclosed defects in the subject property.                        Id. at

745,   643    S.E.2d     at    433.    The    trial    court    granted     summary

judgment in favor of the seller and the homebuyer appealed to

our Court, arguing that the trial court had erred by granting

summary      judgment     on    her   claims     for    fraud     and     negligent

representation.        Id. at 746, 643 S.E.2d at 433.            Our Court noted

that

             [w]ith respect to the purchase of property,
             [r]eliance is not reasonable if a plaintiff
             fails to make any independent investigation
             unless the plaintiff can demonstrate:    (1)
             it was denied the opportunity to investigate
             the property, (2) it could not discover the
             truth about the property’s condition by
             exercise of reasonable diligence, or (3) it
                                          -11-
              was    induced    to               forego      additional
              investigation     by                the       defendant’s
              misrepresentations.

Id. at 747-48, 643 S.E.2d at 434 (citations and quotation marks

omitted).

       Our    Court       held   that      the     homebuyer    failed        to   show

“reasonable reliance” based on evidence that the homebuyer had

conducted a home inspection prior to closing on the                            subject

property.         The inspection report “put her on notice of potential

problems with the home” by instructing her to have a roofing

contractor inspect the roof for the potential of water to pond

above the kitchen/breeze-way area. Id. at 748, 643 S.E.2d at

434.        The    inspection     report    also    noted,     inter   alia,       water

staining, previous water leakage, rusted and leaking gutters,

and    an    uneven    floor     system    which    showed     signs   of     previous

moisture and pest infestation.                Id.       The homebuyer argued that

“[d]espite the findings of the home inspection report, . . . she

relied on the Residential Disclosure Statement completed by [the

seller.]”         Id. at 748, 643 S.E.2d at 435.               However, our Court

held that         “any reliance on        [the disclosure]       would have been

unreasonable in light of her own home inspection report which

recommended        that   she    have   the      roof    evaluated   by   a    roofing

contractor and that she inquire or monitor the other problem
                                          -12-
areas.”        Id. at 749, 643 S.E.2d at 435.                 Based on the foregoing

reasons, the MacFadden Court affirmed the granting of summary

judgment in favor of the seller on the claims of fraud and

negligent misrepresentation.              Id.

    Upon thorough review, we find the facts in the case sub

judice similar to the facts found in MacFadden.                         On 14 February

2012, the Kesiah defendants marked “no” on the disclosure which

stated “to your knowledge is there any problem (malfunction or

defect)”       with     things   such    as     the    foundation,      slab,    floors,

windows, doors, ceilings, interior and exterior walls, patio,

deck,   or      other     structural      components.           However,    plaintiffs

subsequently       conducted      an    independent       home    inspection      on    23

February       2012,    prior    to    closing    on   the     property.        The   home

inspection report noted several potential issues.                        In regards to

the exterior of the property, the following was noted: as to the

wall cladding: cedar shakes, “some of the siding is missing and

there     is     some    wood    rot     on     the    wall     above    front    door”;

“[u]pstairs door off the master has some wood rot and is very

hard to open, also storm door has damaged the frame”; “[t]he

window on the back left side looks to have water entering from

the top of the window, staining is inside of window. Possible

hidden damage may exist.”                In regards to the interior of the
                                                   -13-
property, the inspection report noted the following:                                      “[w]all

paper    in    front   left        bathroom         is    peeling     due    to    shower       head

leaking”; “[w]ater stains present in the family room but were

tested    and    found       no     active         leak.”       Additionally,           the     home

inspection       report      made        a    recommendation          to     plaintiffs         that

“[e]ach issue indicated in this summary should be evaluated by a

qualified contractor or specialist for corrective measures to

insure    proper       and        safe       use    or     service     of    the       system    in

question.”        Notwithstanding                  the    findings    and     recommendations

made in the home inspection report, plaintiffs proceeded to the

closing on 30 March 2012.

       It is clear from the record that plaintiffs were not denied

the opportunity to investigate the property and that plaintiffs

were    not    induced       to    forego          additional    investigations            by    the

Kesiah defendants’ alleged misrepresentations.                                Had plaintiffs

heeded the recommendation of the home inspection report that the

aforementioned issues be evaluated by a specialist, it is likely

that plaintiffs would have discovered the alleged defects to the

house prior to closing.                      Accordingly, we hold that the trial

court did not err by granting summary judgment in favor of the

Kesiah        defendants          on     plaintiffs’           claims        of        fraud    and

misrepresentation            where           the     evidence        fails        to    establish
                                            -14-
reasonable        reliance       by   plaintiffs,         as    any       reliance      on   the

disclosure would have been unreasonable in light of plaintiffs’

independent home inspection report.

      Next, plaintiffs rely on Everts v. Parkinson, 147 N.C. App.

315, 555 S.E.2d 667 (2001), to argue that they exercised due

diligence prior to purchasing the home and that the inspection

report     did    not     put    plaintiffs       on     notice      of    the       substantial

defects of the property.                 Plaintiffs argue that the “majority of

the   numerous       material         defects      [of    the     property]           were   not

discovered until after the closing, and were concealed behind

the exterior wall cladding.”                 Because the inspection report only

had a “brief description of some issues[,]” plaintiffs contend

that they were not put on notice of the defects alleged in their

complaint.          Based upon a thorough review, we find the facts

found in Everts to be distinguishable from the circumstances of

the present case.

      In     Everts,       the     plaintiff-homebuyers              filed       a     complaint

against the original owners of a house – Mr. and Mrs. Parkinson,

the builders, and the company that performed improvement work on

the        house,         alleging         claims         of         fraud,           negligent

misrepresentation,              breach     of     contract,       breach         of      express

warranty,        breach    of     implied       warranty,      and    negligence.            The
                                     -15-
complaint alleged that the plaintiffs had to undertake extensive

and costly repairs to the house as a result of water intrusion

and wood rot problems.            Id. at 318, 555 S.E.2d at 670.          The

trial court granted summary judgment in favor of the defendants

on all claims against them and the plaintiffs appealed.                   Id.

Our Court noted that after the Parkinsons moved into the house,

they experienced numerous problems with window lights, rotting

brick mold, and a rotting window.            Id. at 321-22, 555 S.E.2d at

672.     Subsequently, Mr. Parkinson replaced the window lights,

performed brick mold repair work on a number of windows and

doors, and completed extensive repair work to the particular

window at issue.       Id. at 324, 555 S.E.2d at 673-74.          In regards

to the requirement of an “intent to deceive,” our Court found

that Mr. Parkinson had engaged in such conduct by not informing

the plaintiffs about any of the repair work and testifying that

he did not disclose this information to the plaintiffs because

“he did not feel that he had an obligation to do so[.]”              Id. at

324, 555 S.E.2d at 674.

       In   regards    to   the    requirement    of   showing    reasonable

reliance in cases of fraud, our Court noted that a duty to

disclose    material    facts     arises    “[w]here   material   facts   are

accessible to the vendor only, and he knows them not to be
                                               -16-
within     the    reach      of    the    diligent      attention,     observation       and

judgment     of    the    purchaser.”             Id.    at    325,    555    S.E.2d     674

(citation omitted) (emphasis in original).                       Our Court found that

there were genuine issues of material fact as to whether the

alleged     defects       were       discoverable        in    the    exercise    of     the

plaintiffs’ “diligent attention or observation and, therefore,

whether Mr. Parkinson had a duty to disclose the defects.”                               Id.

at 327, 555 S.E.2d at 675.                     The record contained an affidavit

from   a   licensed       residential          home   inspector       who    performed    an

inspection        on   the        house   at    issue     at    the    request    of     the

plaintiffs prior to purchase.                  He testified to the following:

             at the time of the inspection, he “did not
             observe any rot or water infiltration,” or
             “any problems with the exterior windows or
             doors on the house.”     He further testified
             that the “decorative bands,” which had been
             installed around the windows before his
             inspection, “concealed the joint where the
             synthetic  stucco   met    the  window   brick
             molding”
             and that, as a result, he “was not able to
             visually observe the perimeter joints of the
             exterior windows.”    He also stated that he
             “was not informed by the owner or the
             owner’s realtor of any moisture intrusion
             problems involving the windows or window
             joint perimeter prior to [his] inspection,”
             and   that  such   information   is   “crucial
             information that [he] would have needed to
             know.”
                                            -17-
Id.    Based on the foregoing, our Court held that, viewing the

evidence in the light most favorable to the plaintiffs, Mr.

Parkinson knew of the alleged defects, knew that the defects,

“of which [the] plaintiffs were unaware, were not discoverable

in    the   exercise    of     [the]    plaintiffs’             diligent     attention   or

observation[,]”        and,    therefore,          had    a     duty    to   disclose    the

existence of the defects to the plaintiffs, which he failed to

do. Id. at 327-28, 555 S.E.2d at 675.                      As to Mr. Parkinson, our

Court reversed the trial court’s summary judgment on the claim

of fraud. Id. at 328, 555 S.E.2d at 676.

       In the present case, plaintiffs neither alleged in their

complaint nor produced any evidence that the alleged defects

were not discoverable in the exercise of due diligence.                            Rather,

as    we    previously         stated,       plaintiffs’           inspection       report

recommended that they have a qualified contractor or specialist

evaluate the noted issues.               Also dissimilar to the facts found

in    Everts,   both    of     the    Kesiah       defendants          testified   through

affidavits      that     they        “did    not         know     of     any   unrepaired

deterioration     of     the    house       when     we       signed     the   disclosure

statement or before the closing took place.”                             Thus, we reject

plaintiffs’ contentions that they exercised due diligence and

were not put on notice of the alleged defects of the property.
                                            -18-
                               B.     Ripe for Hearing

     In their last argument, plaintiffs argue that the forecast

of evidence demonstrated that summary judgment was not ripe for

hearing and that summary judgment should have been denied or the

hearing   continued.           Plaintiffs      assert     that     they    intended   to

locate    and       depose   Mr.    Dennis    Harold,     the     Kesiah   defendants’

contractor who allegedly made repairs on the property.

     Rule 56(f) of the North Carolina Rules of Civil Procedure

provides the following:

              When affidavits are unavailable. – Should it
              appear from the affidavits of a party
              opposing the motion that he cannot for
              reasons stated present by affidavit facts
              essential to justify his opposition, the
              court   may   refuse  the   application   for
              judgment or may order a continuance to
              permit   affidavits   to   be   obtained   or
              depositions to be taken or discovery to be
              had or may make such other order as is just.

N.C. Gen. Stat. § 1A-1, Rule 56(f) (2013).                         Rule 56(f) “gives

the trial court the discretion to refuse the motion for judgment

or   order      a    continuance,      if     the    opposing      party    states    by

affidavit the reasons why he is unable to present the necessary

opposing material.”            Gillis v. Whitley’s Discount Auto Sales,

Inc.,    70     N.C.    App.   270,     274,       319   S.E.2d    661,    664   (1984)

(emphasis added).
                                     -19-
    In     the   present   case,    while   plaintiffs   argue   that    their

intent to depose Mr. Harold “could be inferred by a cursory

reading” of the affidavit of their contractor, Darryl Moffett,

we find this to be inadequate.         Rule 56(f) requires an affidavit

by the opposing party stating the reasons why they were unable

to present the necessary opposing material and the record is

clear   that     plaintiffs   failed   to    do   so.    Thus,   we     reject

plaintiffs’ arguments that summary judgment was not ripe for

hearing.

                              IV.    Conclusion

    Where we hold that the trial court did not err by granting

summary judgment in favor of the Kesiah defendants on the claims

of fraud and misrepresentation and where we reject plaintiffs’

argument that      summary judgment was       not ripe for hearing, we

affirm the 26 April 2013 order of the trial court.

    Affirmed.

    Judges ELMORE and DAVIS concur.
