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Civil Practice – Summary Judgment – Supporting Documents – Real Property – Construction Loan

N.C. R. Civ. P. 56 indicates that a trial court is to consider only “the pleadings, depositions, answers to interrogatories, and admissions on file” in deciding whether to grant or deny summary judgment, but defendant attached additional documents to its summary judgment motion and served them on plaintiff and the trial court. Since defendant repeatedly referred to the additional documents during the summary judgment hearing, and since plaintiff failed to object, plaintiff waived its objection to the trial court’s consideration of the additional documents.

We affirm summary judgment for defendant.

The plaintiff-developer claims that the defendant-bank breached their loan agreement by reducing the initial financing from $9,950,000 to $7,750,000. However, the closing documents included a notice of final agreement, which had merger clause indicating that it superseded the parties’ earlier loan commitment. In addition, the parties subsequently executed a “Second Change in Terms Agreement” in which the developer waived any claims it may have had for the bank’s failure to provide the initial amount of financing. No genuine issue of material fact exists with respect to the bank’s alleged breach of the loan commitment.

The developer alleges that the bank breached an agreement to lend the developer funds if a commercial tenant entered into a lease-purchase agreement for space in the developer’s building. However, the developer’s requests for such “take-out” loans were in the amounts of $460,000 and $797,000.

The Statute of Frauds requires that any commitment to make a commercial loan in excess of $50,000 be in writing and signed by the parties. G.S. § 22-5. The developer has failed to indicate the existence of any written agreement which obligated the bank to provide the alleged take-out loans.

Moreover, to the extent the bank or its representatives may have orally promised to provide the take-out financing prior to the execution of the loan agreement, the parties’ notice of final agreement expressly disclaims the existence of any oral agreement obligating the bank to do so.

Although the developer alleges a breach of fiduciary duty, nothing in the record tends to show that the parties’ relationship was anything other than an agreement between two sophisticated commercial entities dealing at arm’s length. In fact, plaintiff’s development team had accumulated nearly 150 years’ worth of combined experience in commercial real estate construction and development, and plaintiff used the services of a consultant who was “very knowledgeable with banking and lending and borrowing.” No evidence shows that the bank essentially dominated the will of the developer or completely dominated and controlled the developer’s affairs; accordingly, the developer has not produced evidence that the parties were in a fiduciary relationship.


French Broad Place, LLC v. Asheville Savings Bank, S.S.B. (Lawyers Weekly No. 011-184-18, 33 pp.) (John Tyson, J.) Appealed from Transylvania County Superior Court (Robert Ervin, J.) Martin White and Scott Miller for plaintiff; Ronald Payne and Thomas McClellan for defendant. N.C. App.


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