Holding: Although the complaint does not make clear what relationship there is between plaintiffs and defendants, plaintiffs allege that defendants misrepresented the condition of a house’s deck to them and concealed a material fact in order to intentionally deceive them, and as a result of that deception plaintiffs purchased the house with the defective deck. While we are not aware of any case in which fraud was ultimately found where there was no relationship alleged between the parties, the complaint alleges all the elements of fraud.
We reverse the trial court’s dismissal of plaintiffs’ fraud and unfair trade practices claims.
In June 2012, plaintiffs attended the open house of a home for sale by BB&T. Plaintiffs noticed the house’s deck appeared to be sagging in some areas.
After plaintiff James Capps (Capps) inquired about the deck, he was given a document dated July 31, 2012, prepared by (former defendant) Geoscience & Technology, P.A., addressed to defendant McSwain, a member manager of defendant Maplestone Construction, LLC. The report advised McSwain as to the repairs required to make the deck safe.
Capps returned to the property, and McSwain told him that all the necessary repairs had been completed and that the deck was up to code. Defendant McSwain even removed a ceiling panel from underneath the deck where he knew there were no issues, knowing that other panels would have shown the repairs Capps was concerned with had not taken place. McSwain knew that all required repairs had not been made and that the deck did not meet the applicable building codes and was unsafe.
Plaintiffs later purchased the house. In October 2015, Capps noticed a sag in the deck and that the floor seems to bounce when one walked on it. A local builder inspected the deck and told Capps that it was extremely dangerous and that no one should be allowed on the deck until it was properly repaired.
Plaintiffs brought this action for fraud and unfair trade practices against McSwain and Maplestone.
Plaintiffs have alleged the elements of a fraud claim. Plaintiffs alleged that defendants misrepresented the condition of the deck to them and concealed a material fact in order to intentionally deceive them, and as a result of that deception they purchased a home with a defective deck.
The relationship between plaintiffs and defendants is not clear. However, the allegations show that defendants were retained to perform repairs but failed to perform them and were charged with advising plaintiffs about the repairs.
We are not aware of any case in which fraud was ultimately found where there was no relationship alleged between the parties. Some sort of legal or contractual relationship seems to be an implicit requirement for a fraud claim, but we have been unable to find any case making this an explicit element of the claim.
Furthermore, we cannot assume from the minimal record before us that defendants are somehow protected from plaintiffs’ claim by the offer to purchase and contract (between plaintiffs and BB&T) or other documents defendants included with their motion to dismiss, because defendants have not shown that they have any legal relationship to BB&T, the seller of the home. Nonetheless, as plaintiffs have properly pled the elements of fraud, their claim should have withstood defendants’ motion to dismiss.
Unfair Trade Practices
The mere purchase and sale of a residence is not an act in or affecting commerce under G.S. § 75-1.1. But defendants did not sell the house to plaintiffs, and claims for unfair and deceptive practices are not limited to a particular type of business relationship. This claim arose out of some sort of “act or practice” related to the repair of the deck.
Plaintiffs properly stated their claims.
Capps v. McSwain (Lawyers Weekly No. 012-032-18, 7 pp.) (Donna Stroud, J.) (Wanda Bryant, J., concurring in the result only without separate opinion) Appealed from Forsyth County Superior Court (Susan Bray, J.) E. Winslow Taylor for plaintiffs; Lee Whitman, Paul Puryear Jr. and Tobias Hampson for defendants. N.C. App. Unpub.