An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1316
                       NORTH CAROLINA COURT OF APPEALS
                              Filed:     15 July 2014
ALICE JOPPA CEBULA,
     Plaintiff

                                              Buncombe County
      v.
                                              No. 12 CVS 373

THE GIVENS ESTATES, INC.,
     Defendant


      Appeal by plaintiff from order entered 3 July 2013 by Judge

Alan Z. Thornburg in Buncombe County Superior Court.                     Heard in

the Court of Appeals 9 April 2014.


      Donald H. Barton, P.C., by Donald H. Barton, for Plaintiff.

      McGuire, Wood & Bissette, P.A., by Joseph P. McGuire, for
      Defendant.


      ERVIN, Judge.


      Plaintiff Alice Joppa Cebula appeals from a trial court

order granting summary judgment in favor of Defendant Givens

Estates, Inc., with respect to the claims that she had asserted

against Defendant.        On appeal, Plaintiff contends that the trial

court      lacked    jurisdiction       to   grant     summary      judgment      in

Defendant’s favor on the grounds that this case was on appeal to

this Court at the time that the order granting summary judgment
                                         -2-
in Defendant’s favor was entered and that the existence of a

genuine issue of material fact concerning the date upon which

she discovered that Defendant would not make the entrance and

parking fee refund that she believed to be appropriate precluded

a   determination       that    Plaintiff’s     claims       were    barred     by   the

applicable statute of limitations.                  After careful consideration

of Plaintiff’s challenges to the trial court’s order in light of

the record and the applicable law, we conclude that the trial

court’s order should be affirmed.

                               I. Factual Background

                               A. Substantive Facts

      Defendant operates a retirement community for the elderly

known     as   Givens    Estates.1       On    or    about    7     September    2007,

Plaintiff,     who   was   81    years   old    at    the    time,    met     with   Kim

Lawing, an individual performing sales functions for Defendant,

to discuss the possibility that Plaintiff might begin living in

the community.       At that time, Plaintiff informed Ms. Lawing that

she could only afford to pay the necessary fees associated with

life in the community in the event that she was able to sell the

home in which she currently resided.

      1
      As a result of the fact that the issue raised by
Plaintiff’s appeal is whether the trial court properly granted
summary judgment in Defendant’s favor, the factual statement
contained in the body of this opinion reflects the record viewed
in the light most favorable to Plaintiff.
                                         -3-
       On 12 September 2007, Plaintiff entered into a residence

and services agreement with Defendant.              Plaintiff failed to read

the     residence    and     services      agreement      before   signing    it.

According to the residence and services agreement, Plaintiff was

required to pay a $279,400 entrance fee, ten percent of which

was due upon signing and the remainder of which was due prior to

the date upon which she began to occupy a unit in the retirement

facility, and a $15,000 parking fee, both of which she paid in

full.      In   addition,         the   residence   and    services     agreement

provided that, in the event that Plaintiff wished to terminate

the agreement for any reason within thirty days after entering

into the agreement, any monies that she had paid to Defendant

would be fully refundable.              In the event that Plaintiff wished

to terminate the residence and services agreement after the end

of this initial thirty day period, the refund to which Plaintiff

was entitled would be calculated using a formula spelled out in

that    agreement.         More    specifically,    according      to   Paragraph

VII.E. of the residence and services agreement:

            Amortization of the Entrance Fee.       Your
            Entrance Fee is partially refundable.    The
            portion of the fee that is refundable to You
            will decline over time, at a rate of six
            percent (6%) upon the date of Occupancy of
            the Residence and two percent (2%) on the
            first (1st) day of each calendar month
            thereafter until fifty percent (50%) of the
            Entrance Fee remains.     Regardless of the
            reason for termination, You will always be
                                           -4-
            entitled to a refund of not less than fifty
            percent (50%) of Your Entrance Fee, less any
            non-standard costs requested by You, except
            as otherwise provided by this Agreement.

According    to    Plaintiff,        Ms.    Lawing    informed    her    that   the

amortization      clause     only    applied     to    a   termination     of   the

residence and services agreement resulting from death and never

told Plaintiff that she would “forfeit all of her entrance fees

and garage fees.”

    After executing the residence and services agreement and

moving into Givens Estates, Plaintiff was unable to sell her

prior home, a development that rendered her unable to make the

monthly fee payments required under the residence and service

agreement.        As a result,       Plaintiff notified Defendant           on 24

August 2011 that she desired to leave Givens Estates, terminate

the residence and services agreement, and obtain a refund of her

entrance    and    parking    fees    in    their     entirety.    In    response,

Defendant informed Plaintiff that the requested refund would not

be made.     According to Plaintiff, given her age and physical and

mental condition, she did not understand the relevant contract

provisions and would not have signed the residence and services

agreement had she understood that the entrance and parking fees

would not be fully refunded in the event that she voluntarily

left Defendant’s retirement facility.
                                                -5-
                                     B. Procedural History

          On 25 January 2012, Plaintiff filed a verified complaint in

which she asserted claims against Defendant for rescission of

the    residence          and    services    agreement      based    upon   an    unjust

enrichment          and   unconscionability           theory;   cancellation     of   the

residence and services agreement based upon                          misrepresentation

and fraud; rescission of the residence and services agreement

based upon undue influence, coercion, and duress; and unfair and

deceptive trade practices.                 On 2 April 2012, Defendant filed an

answer         in    which      it     denied     the    material     allegations     of

Plaintiff’s complaint and asserted various affirmative defenses,

including, but not limited to, estoppel, quasi-estoppel, unclean

hands stemming from Plaintiff’s failure to read the residence

and services agreement, laches, and the applicable statute of

limitations.

          As   a    result      of    Plaintiff’s     failure   to    provide    certain

discovery materials, Judge Marvin P. Pope, Jr., entered an order

on    4    September         2012     granting    Defendant’s     motion    to   compel

discovery and requiring Plaintiff to pay $2,210 in attorney’s

fees to Defendant.               Cebula v. Givens Estates, Inc., No. 13-242,

2013 N.C. App. LEXIS 996 at *2-3 (2013).                         Plaintiff noted an

appeal to this Court from Judge Pope’s order.                           On 1 October

2013, this Court filed an opinion dismissing Plaintiff’s appeal
                                             -6-
as having been taken from an unappealable interlocutory order.

Id. at *3-4.

       On or about 18 June 2013, Defendant filed a motion seeking

the entry of summary judgment in its favor.                     On 3 July 2013, the

trial       court   entered        an   order      granting     Defendant’s   summary

judgment motion.          Plaintiff noted an appeal to this Court from

the trial court’s order.

                         II. Substantive Legal Analysis

        A. Trial Court’s Authority to Grant Summary Judgment

       In     her   first      challenge        to   the    trial   court’s    order,

Plaintiff argues that the trial court lacked jurisdiction to

hear    and     decide       the    issues      raised     by   Defendant’s   summary

judgment motion.         More specifically, Plaintiff contends that her

appeal from Judge Pope’s order divested the trial court of any

authority to grant summary judgment in Defendant’s favor and

asserts that we should invalidate the trial court’s order for

that reason.        Plaintiff’s contention lacks merit.

              When an appeal is perfected as provided by
              this   Article   it   stays   all   further
              proceedings in the court below upon the
              judgment appealed from, or upon the matter
              embraced therein; but the court below may
              proceed upon any other matter included in
              the action and not affected by the judgment
              appealed from.

N.C. Gen. Stat.          §    1-294.      In view of the fact that             “[t]he

perfection of, or docketing of, an appeal relates back to the
                                        -7-
time of giving notice of the appeal and operates as a stay of

proceedings within the meaning of the statute,” a trial court is

“without jurisdiction to proceed on the matter until the case is

returned by mandate of the appellate court.”                 Woodard v. N.C.

Local Governmental Emps. Ret. Sys., 110 N.C. App. 83, 85, 87,

428 S.E.2d 849, 850-51 (1993).            As a result, Plaintiff contends

that,   because    the    trial   court       granted   summary   judgment   in

Defendant’s      favor    prior   to     the    issuance    of    the   mandate

reflecting our decision in connection with Plaintiff’s appeal

from Judge Pope’s order, the trial court lacked the authority to

hear    and    decide    the   issues    raised    by   Defendant’s     summary

judgment motion.

       The fundamental problem with Plaintiff’s argument is that

it takes no account of our holding that Plaintiff’s prior appeal

had been taken from an unappealable interlocutory order.                As the

Supreme Court has clearly stated:

              A litigant cannot deprive the Superior Court
              of jurisdiction to try and determine a case
              on its merits by taking an appeal to the
              Supreme    Court    from   a   nonappealable
              interlocutory order of the Superior Court.
              A   contrary   decision  would   necessarily
              require an acceptance of the paradoxical
              paralogism that a party to an action can
              paralyze the administration of justice in
              the Superior Court by the simple expedient
              of doing what the law does not allow him to
              do, i.e., taking an appeal from an order
              which is not appealable.
                                            -8-
Veazey v. City of Durham, 231 N.C. 357, 364, 57 S.E.2d 377, 382-

83 (1950).       Although this Court has stated, as Plaintiff notes,

“‘that an appeal, even of an interlocutory order, operates as a

stay of all proceedings in the [lower court] relating to issues

included     therein      until     the     matters          are    determined          in       the

[appellate court],’” Woodard, 110 N.C. App. at 85, 428 S.E.2d at

850 (internal quotation marks omitted) (alterations and emphasis

in original) (quoting Lowder v. Mills, Inc., 301 N.C. 561, 580,

273 S.E.2d 247, 258 (1981)), this principle only applies “[w]hen

a   litigant     takes    an     appeal   to      [an    appellate         court]       from      an

appealable       interlocutory       order        of     the       Superior       Court          and

perfects such appeal in conformity to law.”                         Veazey, 231 N.C. at

363, 57 S.E.2d at 382; see also Velez v. Dick Keffer Pontiac-GMC

Truck,    144    N.C.     App.    589,    591,     551       S.E.2d    873,       875       (2001)

(quoting Veazey, 231 N.C. at 364, 57 S.E.2d at 383) (stating

that ‘‘[o]ur conclusion [that the trial court had the authority

to enter an order compelling discovery when an appeal from a

prior    discovery-related          order      was      pending       in    the       appellate

courts]     finds    full      sanction      in      previous         decisions         .    .     .

adjudging       that[,]    when    an     appeal        is   taken     .    .     .    from       an

interlocutory order of the Superior Court which is not subject

to appeal, the Superior Court need not stay proceedings, but may

disregard the appeal and proceed to try the action while the
                                             -9-
appeal   on    the     interlocutory           matter         is   in    the     [appellate

courts]’”); T & T Dev. Co. v. S. Nat. Bank of S.C., 125 N.C.

App. 600, 603, 481 S.E.2d 347, 349 (stating that, since the

“plaintiffs had no right to appeal the granting of the motion in

limine, the trial court was not deprived of jurisdiction and did

not err in calling the case for trial and dismissing it when

plaintiffs failed to offer any evidence”), disc. review denied,

346 N.C. 185, 486 S.E.2d 219 (1997).                      As a result, since Woodard

involved an appeal taken from an appealable interlocutory order,

110   N.C.    App.   at    86,        428      S.E.2d         at   851   (stating      that,

“[a]lthough    normally         the    denial        of   a    motion    to     dismiss   is

interlocutory    and      not    immediately          appealable,        this    Court    has

held that the doctrine of sovereign immunity presents a question

of personal jurisdiction and an appeal of a motion to dismiss

based    on   this      ground        is     immediately           appealable”),       while

Plaintiff’s     prior     appeal        in     this       case     was   taken     from   an

unappealable     interlocutory              order,    the        principle      upon   which

Plaintiff relies in challenging the trial court’s order simply

has no application in this instance.                      Thus, the trial court did

not err by proceeding to hear and decide Defendant’s summary

judgment motion despite the fact that Plaintiff’s appeal from

Judge Pope’s order was still pending in this Court.

                 B. Validity of Trial Court’s Decision
                       to Grant Summary Judgment
                                   -10-
    Secondly, Plaintiff contends that the trial court erred by

granting   Defendant’s   summary    judgment   motion   given   that    the

record demonstrated the existence of genuine issues of material

fact relating to the date upon which Plaintiff’s claim against

Defendant accrued for statute of limitations purposes.                 More

specifically, Plaintiff contends that the statute of limitations

applicable to her fraud and misrepresentation and her unfair and

deceptive trade practices claims did not begin to run until she

learned that Defendant would not act in accordance with this

understanding, a date which was within three years of the date

upon which she filed her action against Defendant.2         Once again,

we conclude that Plaintiff’s argument lacks merit.

    2
      As we have noted in the text of this opinion, Plaintiff
asserted a number of different claims in her complaint.
However, the only substantive challenge that she has advanced in
opposition to the trial court’s decision to grant summary
judgment in Defendant’s favor rests upon a contention that the
trial court erred by refusing to allow her fraud and
misrepresentation-based claims and her unfair and deceptive
trade practices claim to proceed to trial.    Although Plaintiff
states in her brief that, “[a]s to any remaining issues
presented by [the summary judgment motion], Plaintiff-Appellant
would contend that her complaint and the alleged facts of the
complaint present genuine issues of material fact for trial,”
Plaintiff has not advanced any legal or factual support for this
contention.   As a result, Plaintiff has waived any right to
challenge the trial court’s order granting summary judgment in
favor of Defendant on any basis other than that discussed in the
text of this opinion.    See N.C.R. App. P. 28(b)(6) (providing
that “[i]ssues not presented in a party’s brief, or in support
of which no reason or argument is stated, will be taken as
abandoned”); Belk v. Belk, __ N.C. App. __, __, 728 S.E.2d 356,
372-73 (2012) (deeming the “respondent’s arguments as to his
                                    -11-
      “Upon   motion,    summary   judgment     is    appropriately        entered

where ‘the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that any party is entitled to a judgment as a matter of law.’”

Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491,

329 S.E.2d 350, 353 (1985) (quoting N.C. Gen. Stat. § 1A-1, Rule

56(c)).    In evaluating the validity of a party’s challenge to a

trial   court    order   ruling    on   a   summary       judgment   motion,       we

“carefully      scrutinize   the   moving    party’s       papers    and   .   .   .

resolve all inferences against him.”                Id.     However, “[o]nce a

defendant has properly pleaded the statute of limitations, the

burden is then placed upon the plaintiff to offer a forecast of

evidence   showing    that   the   action     was    instituted      within    the

permissible period after the accrual of the cause of action.”

Id.

      According to N.C. Gen. Stat. § 1-52(9), actions for fraud

and misrepresentation must be brought within three years of the

act giving rise to the action, with the plaintiff’s action not

“deemed to have accrued until the discovery by the aggrieved

party of the facts constituting the fraud.”                    Actions brought

affirmative defenses abandoned, as respondent failed completely
in his duty to follow the appellate rules and provide a coherent
argument   containing  legal  authority   in  support  of   that
argument”).
                                        -12-
under Chapter 75 of the North Carolina General Statutes must be

brought “within four years after the cause of action accrues.”

N.C. Gen. Stat. § 75-16.2.              According to Plaintiff, Defendant

acted in a fraudulent or deceptive manner when Ms. Lawing told

her in 2007 that she would be entitled to a full refund of her

entrance and parking fees in the event that she left Givens

Estates      for   any   reason    other       than   death    even      though    the

residence and services agreement provided otherwise.                        Assuming

that    Plaintiff’s      fraud    and   misrepresentation          and   unfair    and

deceptive trade practices claims accrued in 2007, both of those

claims would clearly be barred by the applicable statute of

limitations.        As    a   result,      the    ultimate     issue      raised    by

Plaintiff’s challenge to the trial court’s order is whether the

claims that she persists in asserting against Defendant accrued

at a later time.

       In seeking to persuade us that her claims against Defendant

are    not   time-barred,     Plaintiff     argues,     in    reliance     upon    the

discovery rule embodied in the relevant statutory provisions,

that her claims against Defendant did not accrue in 2007.                          More

specifically, Plaintiff argues that, since she did not actually

learn that the oral representations allegedly made by Ms. Lawing

contradicted       the   language       contained     in     the    residence      and

services      agreement       until     2011,     neither      her       fraud     and
                                        -13-
misrepresentation nor her unfair and deceptive trade practices

claims   are    barred    by   the    applicable       statute   of   limitations.

Plaintiff’s contention lacks merit.

      As a general proposition, a “cause of action [predicated

upon allegedly fraudulent conduct] accrues upon discovery of the

fraud or from the time it should have been discovered,” with the

issue of “[w]hether a plaintiff should have discovered the facts

constituting      fraud    more       than     three     years   prior        to   the

institution of the action ordinarily [being] a question for the

jury.”   N.C. Nat’l Bank v. Carter, 71 N.C. App. 118, 124, 322

S.E.2d 180, 184 (1984).              The same general rule appears to be

applicable to fraud-based claims brought pursuant to N.C. Gen.

Stat. § 75-1.1.        Shepard v. Ocwen Fed Bank, FSB, 361 N.C. 137,

141-42, 638 S.E.2d 197 200 (2006) (holding that an unfair and

deceptive      trade   practices      claim    resting    upon   allegations        of

usury should be subject to the statute of limitations applicable

to   usury   based     claims).       “‘Discovery’       is   defined    as    actual

discovery or the time when the fraud should have been discovered

in the exercise of due diligence.”                Spears v. Moore, 145 N.C.

App. 706, 708, 551             S.E.2d 483, 485 (2001) (citing Hyde v.

Taylor, 70 N.C. App. 523, 528, 320 S.E.2d 904, 908 (1984)).

“Failure to exercise due diligence may be determined as a matter

of law . . . where it is ‘clear that there was both capacity and
                                        -14-
opportunity to discover the [fraud or] mistake.’”                    Id. at 708-

09, 551 S.E.2d at 485 (quoting Huss v. Huss, 31 N.C. App. 463,

468, 230 S.E.2d 159, 163 (1976)).              As a result, in order to rely

on   the    discovery      rule    to    defeat       Defendant’s    statute   of

limitations defense, Plaintiff was required to forecast evidence

from which a finder of fact could determine that her failure to

discover the position that Defendant took with respect to her

right to obtain a full refund of the entrance and parking fees

that she paid to Defendant in 2007 did not result from a lack of

due diligence on her part.              Piedmont Inst. of Pain Mgmt. v.

Staton Found., 157 N.C. App. 577, 585, 581 S.E.2d 68, 73 (2003)

(stating that, “‘when there is a dispute as to a material fact

regarding when the plaintiff should have discovered the fraud,

summary judgment is inappropriate, and it is for the jury to

decide     if    the   plaintiff   should      have   discovered    the   fraud’”)

(quoting Spears, 145 N.C. App. at 708, 551 S.E.2d at 485).

     According to well-established North Carolina law,

                one who signs a paper writing is under a
                duty to ascertain its contents, and in the
                absence of a showing that he was wilfully
                misled or misinformed by the defendant as to
                these contents, or that they were kept from
                him in fraudulent opposition to his request,
                he is held to have signed with full
                knowledge and assent as to what is therein
                contained.   If unable to read or write, he
                must ask that the paper be read to him or
                its meaning explained.
                                             -15-
Williams v. Williams, 220 N.C. 806, 809-10, 18 S.E.2d 364, 366

(1942) (citations omitted).                  “It is well established in North

Carolina      that     ‘[o]ne       who    signs       a     written   contract      without

reading it, when he can do so[,] understandably is bound thereby

unless     the    failure       to    read       is    justified       by   some     special

circumstances.’”            Marion Partners, LLC v. Weatherspoon & Voltz,

LLP, 215 N.C. App. 357, 359, 716 S.E.2d 29, 31 (2011) (first

alteration in original) (quoting Davis v. Davis, 256 N.C. 468,

472, 124 S.E.2d 130, 133 (1962)).                          As a result, a litigant’s

“‘duty to read an instrument or to have it read before signing

it, is a positive one, and the failure to do so, in the absence

of any mistake, fraud or oppression, is a circumstance against

which no relief may be had, either at law or in equity.’”                              Mills

v.   Lynch,      259   N.C.    359,       362,   130       S.E.2d   541,    543-44    (1963)

(quoting Furst v. Merritt, 190 N.C. 397, 402, 130 S.E. 40, 43

(1925)).         We    do     not    believe          that    Plaintiff     has    provided

sufficient justification for her failure to read the residence

and services agreement to preclude the entry of summary judgment

in Defendant’s favor.

      As the undisputed evidence clearly reflects, Plaintiff did

not read the residence and services agreement before signing it.

Although she suggests that the record shows the existence of

general issues of material fact concerning the extent to which
                                         -16-
she should have discovered that Defendant did not intend to make

a full refund of the entrance and parking fees that she paid

when she began to reside at Givens Estates, Plaintiff has not

forecast       any    evidence   tending       to    show    that     Defendant       did

anything to prevent her from reading the residence and services

agreement or that she lacked the capacity, as the result of age,

ill health, mental limitations, or any other factor, to read and

understand that document.               As a result, given the undisputed

evidence    tending      to   show   that     Plaintiff      failed     to     read   the

relevant portions of the residence and services agreement before

signing    it    in    2007    and   the      complete      absence    of     any     non-

conclusory      evidence      tending    to     show   that       Plaintiff     had    an

adequate justification for failing to read that document at that

time, the record presented to the trial court in support of and

in opposition to Defendant’s summary judgment motion provides no

basis    for    any    determination       that     Plaintiff’s       claims    against

Defendant accrued at any time after 2007.

    In an attempt to persuade us to reach a different result,

Plaintiff notes that “‘the failure of the defrauded person to

use diligence in discovering the fraud may be excused where

there exists a relation of trust and                     confidence between the

parties,’”       Vail v. Vail, 233 N.C. 109, 116, 63 S.E.2d 202, 207

(1951)     (quoting      54   C.J.S.,      Limitations       of     Actions,     §    194
                                           -17-
(1948)),    and     argues    that     she    reposed      special    confidence        in

Defendant due to their shared Christian faith.                            Although the

record     does    reflect     that     Plaintiff         is   a   Russian      Orthodox

Christian and Defendant is affiliated with the United Methodist

Church, Plaintiff forecast no evidence tending to show that the

underlying transaction at issue in this case was anything other

than economic in nature.             Plaintiff has not cited any authority

tending    to     establish    that    a     shared    religious      faith,      without

more, suffices to create a relationship of trust and confidence

between the parties, and we know of none.                          As a result, the

religious faith that Plaintiff shared with Defendant does not

provide any justification for excusing Plaintiff’s failure to

read the residence and services agreement at the time that she

began     residing      at     the     retirement         community       operated      by

Defendant.         As   a    result,    the    trial      court     did   not     err   by

concluding      that    the   claims       that    Plaintiff       sought    to   assert

against    Defendant        were   barred     by    the    applicable       statute     of

limitations.

                                   III. Conclusion

    Thus, we conclude that neither of Plaintiff’s challenges to

the trial court’s order have any merit.                    As a result, the trial

court’s order should be, and hereby is, affirmed.

    AFFIRMED.
                         -18-
Judges GEER and STEPHENS concur.

Report per Rule 30(e).
