                                 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.
