Forbes v. Par Ten Group, Inc.
| Decision Date | 07 August 1990 |
| Docket Number | No. 8928SC993,8928SC993 |
| Citation | 99 N.C.App. 587,394 S.E.2d 643 |
| Court | North Carolina Court of Appeals |
| Parties | Ernest T. FORBES, III, David J. Drum and wife, Dorothy H. Drum, H.B. Stroup, Jr., and wife, Louise P. Stroup, Steve Woolard, and wife Hazel Jean Woolard, Thomas H. Harder, and wife, Rosemary Harder, Charles Patton, and wife, Madeline H. Patton, William F. Higgs, Jr., Russell Duffner, John Sronce, William Branko and wife, Sonia B. Branko, Jeffrey J. Miller and wife, Susan B. Miller, A.G.G. McWilliam and wife, Marilyn McWilliam, Nicholas Giliberti, Dr. Myron L. Gottfried, Gary D. McKinney, Steve Zebos, Michael Montaperto and wife, Hortencia L. Montaperto, Robert E. Hill, Kenneth H. Henson, Dale A. Deines and wife, Jeanne E. Deines v. The PAR TEN GROUP, INC. The Property Shop, Inc., Jan C. Mansson, William R. Lewis, Douglas R. Bebber, George W. Mathews. |
Shuford, Best, Rowe, Brondyke & Walcott by James Gary Rowe and Patricia L. Arcuri, Asheville, for plaintiffs-appellants.
Patla, Straus, Robinson & Moore, P.A. by Harold K. Bennett, Asheville, for defendants-appellees.
Plaintiffs appeal the trial court's entry of summary judgment for defendants The Property Shop, Inc., William R. Lewis, Douglas R. Bebber and George W. Mathews.
The record shows that the defendants were involved in marketing a resort golf course community. Plaintiffs were purchasers of lots and memberships in the community. Defendants Lewis, Bebber and Mathews were sales agents for defendant Property Shop, Inc. ("Shop"), a real estate brokerage firm. Bebber also was president and sole stockholder of Shop. Defendant Mansson is a Swedish resort property developer, who approached Lewis in 1984 about purchasing a tract of land on which to develop the resort community for a soon-to-be-formed development corporation, defendant Par Ten Group, Inc. ("Group"). On 2 October 1984, Mansson bought the property.
In December, 1984, Group and Shop executed an agreement granting Shop the exclusive rights to market and arrange sales of the resort property lots, which lasted until approximately May, 1985, after which Shop was one of several marketing agents for the community.
As part of the marketing of the property, Shop mailed an informational brochure to prospective buyers which included the following provision:
2. Deposit. The deposit mentioned under (1) shall be held in an interest[-]bearing escrow account with a local bank and will be applied to the purchase price at closing. Interest from said escrow account shall be payable to the PAR TEN GROUP, INC.
The contract for purchase of resort property included this provision:
2. Deposit: The said deposit shall be held in an interest[-]bearing escrow account in Asheville Federal S & L Bank (Seller will be entitled to the interest therefrom) and will be applied to the purchase price at closing....
The money received as a deposit on the properties was paid to Mansson, who transferred the money into his personal checking account to pay his salary, Group's bills, and to develop other projects. Eventually, Mansson depleted most of the funds in the alleged escrow account and confessed his acts in mid-July, 1985.
Defendant Lewis signed agreements on behalf of Group with plaintiff Forbes on 28 May 1985, plaintiffs Harder on 23 November 1984, plaintiffs Patton on 25 May 1985, plaintiff Higgs on 19 January 1985, which defendant Bebber arranged, plaintiffs Branko on 11 July 1985, plaintiffs Montaperto on 14 November 1984, plaintiffs Deines on 30 May 1985, plaintiff Henson on 3 January 1985, plaintiff Hill on 3 January 1985, and plaintiffs McWilliam on 1 April 1985. Additionally, defendant Lewis informed plaintiffs Woolard that their deposit would be held in escrow in Asheville Federal, and they executed an agreement with Group on 12 January 1985, signed by Mansson and witnessed by Lewis.
Defendant Bebber dealt with plaintiff Higgs before he signed his agreement with Group, and represented to plaintiff Forbes that his deposit would be safely held in escrow in Asheville Federal. Defendant Bebber may have also dealt with plaintiffs Hill and Henson by selling them property, facts unclear from Lewis's affidavit.
Defendant Mathews sold lots to plaintiffs Drum, Stroup and Sronce. Plaintiff Drum executed an agreement signed by Mansson on 23 April 1985. Plaintiffs Stroups executed an agreement on 5 January 1989.
Mansson apparently signed agreements between Group and: plaintiff Giliberti on 10 December 1984, which Shop's sales agent Arlene Schandler arranged, plaintiff Zebos on 5 June 1985, plaintiff McKinney on 17 May 1985, and plaintiffs Gottfried on an undesignated date.
Plaintiffs Miller signed an agreement with Group on 25 June 1985, which shows no signature by a Group representative or other person. Plaintiff Duffner signed an agreement on 4 November 1984, which shows no signature by a Group representative or other person, but which Bebber averred had been executed with Shop on 28 November 1984.
Plaintiffs brought suit to recover the deposit money from defendants, alleging that defendants committed fraudulent misrepresentation, negligent misrepresentation, unfair and deceptive trade practices, and breach of fiduciary duty in failing to comply with escrow requirements for the payments.
Defendants Lewis, Shop, Bebber and Mathews answered, denying plaintiffs' allegations. Neither defendant Mansson nor defendant Group answered. Mansson allegedly fled the country, and Group allegedly is insolvent.
In support of their motion for summary judgment, these defendants offered various affidavits, all to the effect that they at no time had any knowledge that the deposit monies were not placed in an escrow account.
In support of defendants' motion for summary judgment, defendant Bebber introduced his affidavit, averring that:
the following are the only Contracts of Sale of [resort] property obtained by ... Shop and its associates:
Purchaser Date of Contract or Sale Associate
Ernest T. Forbes, III 5/28/85 Walter McGuire
--The
Property Shop
David Drum and wife 4/23/85 George Mathews
--The
Property Shop
H.B. Stroupe [sic]
and wife 1/5/85 George Mathews
--The
Property Shop
Steve Woolard and wife 1/12/85 Ron Lewis
--The
Property Shop
Thomas Harder and wife 11/23/84 Arlene Schandler
--The
Property Shop
William F. Higgs, Jr. 1/19/85 Douglas Bebber
--The
Property Shop
Russell Duffner 11/28/84 Beatrice Pollock
--The
Property Shop
John Sronce Early 1985, George Mathews
prior to May --The
Property Shop
A.G.G. McWilliam
and wife 4/1/85 Charles Baskerville
--The
Property Shop
Nicholas Giliberti 12/10/84 Arlene Schandler
--The
Property Shop
Michael Montaperto
and wife 11/14/84 Ron Lewis
--The
Property Shop
Robert E. Hill 1/3/85 Ron Lewis
--The
Property Shop
Plaintiffs countered with evidence of the sales brochure and the contract for purchase, both of which contained specific language that the deposit would be held in an interest-bearing escrow account in a local bank and applied to the purchase price at closing. Several plaintiffs testified that some defendants, in addition to the written information contained in the contract and brochure, orally told them that the deposit would be held in an escrow account until closing on the property.
Plaintiff Drum offered an affidavit including this averment: "Mathews ... told me ... that [a] deposit would be held in an escrow account until closing on the property ... He also offered to act on our behalf in completing this transaction." The record includes a letter to Drum, in which Mathews stated:
I'll be happy to draw for your particular parcel or Nancy could do it when the time for the drawing arrives. Or, if possible, you might want to come pick your lot personally. If you are to require some financing I will be happy to help with the arrangements. Whatever is convenient with you I will endeavor to accomplish.
On 30 May 1989, the trial court entered summary judgment for Shop, Bebber and Mathews, certifying that there was no just reason for delaying appeal of judgment for these defendants pursuant to N.C.G.S. § 1A-1, Rule 54(b). On 8 June 1989, the trial court entered summary judgment for Lewis, also certifying that there was no just reason for delaying the appeal.
__________
The issues are: whether the trial court properly granted...
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