An unpublished opinion of the North Carolina Court of Appeals does not constitute 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. COA14-148

NORTH CAROLINA COURT OF APPEALS

Filed: 1 July 2014

RANDALL DYKES and wife TAMARA 

DYKES,

Plaintiffs,

v. Lee County

No. 12 CVS 867

WILLIAM MORRIS LONG and wife VICKY 

LONG,

Defendants.

Appeal by plaintiffs from order entered 28 October 2013 by 

Judge C. Winston Gilchrist in Lee County Superior Court. Heard 

in the Court of Appeals 20 May 2014.

Foyles Law Firm, PLLC, by Jody Stuart Foyles, for 

plaintiffs-appellants. 

Anna S. Lucas for defendants-appellees. 

HUNTER, Robert C., Judge.

Randall and Tamara Dykes (“plaintiffs”) appeal from order 

entered 28 October 2013 granting summary judgment in favor of 

Morris and Vicky Long (“defendants”) on plaintiffs’ fraud claim. 

On appeal, plaintiffs argue that summary judgment was improperly 

entered in defendants’ favor because genuine issues of material 
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fact existed as to whether defendants made a false 

representation with intent to deceive. 

After careful review, we affirm the trial court’s order. 

Background

Plaintiffs entered into a contract on 10 January 2007 to 

buy defendants’ home at 7603 Villanow Drive in Sanford, North 

Carolina. Closing took place on 18 May 2007. In the 

Residential Property Disclosure Statement (“the disclosure 

statement”) signed by defendants in August 2006 and delivered to 

plaintiffs before purchase, defendants indicated that they did 

not know of any problems with the patio, deck, or other 

structural components of the house. A licensed home inspector 

hired by plaintiffs found no problems with the deck or front 

porch when he examined the home in early 2007. In his report, 

the inspector wrote “[t]he front porch appears to be in 

acceptable condition.” 

In the summer of 2011, plaintiffs discovered cracking in 

the foundation of the front porch. They hired a structural 

engineer to assess the damage. He determined that the front 

porch had settled about two inches into the foundation and had 

rotated away from the residence, causing cracks to the front and

right porch foundation wall. He also noticed that previous 
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mortar work and brick repair had been done to the porch. In his 

opinion, the previous work done on the porch did not adequately 

address the structural cause of the damage. 

On 2 August 2012, plaintiffs brought suit against 

defendants and sought punitive damages for fraud and unfair or 

deceptive practices.1 They claimed that by representing no 

knowledge of any structural problems to the porch or deck in the 

disclosure statement, defendants knowingly and fraudulently 

induced plaintiffs into buying their home. 

Defendants filed an answer on 20 August 2012 denying the 

allegations in the complaint. Both defendants provided 

deposition testimony during discovery. Mr. Long testified that 

after having the house built in 1994, he discovered cracks in 

the porch in 1995. He hired contractors to address the problem; 

they installed angle iron and sheet metal before pouring a new 

slab of concrete. The contractors told defendants that the 

structural issues with the porch were repaired and they would 

not have any further problems. Later, in 1996 or 1997, 

defendants paid for a brick mason to replace some cracked bricks 

and mortar, which they characterized as a cosmetic rather than 

structural issues caused by the previous foundation shift. 

 

1 Plaintiffs took voluntary dismissal of the unfair or deceptive 

practices claim on 15 October 2012. 
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After the structural repairs done to the porch in 1995, 

defendants never noticed any further problems with structure of 

the porch or deck. 

Defendants put their house on the market and signed the 

disclosure statement in August 2006, roughly ten years after the 

structural repairs were made. The exact wording of the 

representation defendants made was that they did not “know of 

any problem (malfunction or defect) with [the] . . . foundation, 

slab . . . patio, deck, or other structural components including 

any modifications to them.” When asked during his deposition 

why defendants did not answer “yes” to this question, Mr. Long 

testified that he thought the question was only asking about 

current or ongoing problems. 

Defendants’ motion for summary judgment came on for hearing 

on 9 September 2013. Defendants argued that plaintiffs put 

forth no evidence tending to show there was a problem with the 

house when it was sold in 2007, or if there was a problem, that 

defendants knew of it. The trial court granted defendants’

motion for summary judgment, and plaintiffs filed timely notice 

of appeal from that order. 

Discussion

I. Defendants’ Motion for Summary Judgment
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Plaintiffs’ sole argument on appeal is that the trial court 

erred by granting summary judgment for defendants where genuine 

issues of material fact existed as to whether defendants knew of 

a structural defect when they signed the disclosure statement. 

We disagree. 

Summary judgment is proper 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.” N.C. Gen. Stat. § 

1A-1, Rule 56(c) (2013). “In a motion for summary judgment, the 

evidence presented to the trial court must be . . . viewed in 

a light most favorable to the non-moving party.” Howerton v. 

Arai Helmet, Ltd., 358 N.C. 440, 467, 597 S.E.2d 674, 692 

(2004). This Court reviews an order granting summary judgment 

de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 

572, 576 (2008). 

The elements of fraud in North Carolina are: “(i) false 

representation or concealment of a material fact, (ii) 

reasonably calculated to deceive, (iii) made with intent to 

deceive, (iv) which does in fact deceive, [and] (v) resulting in 

damage to the injured party.” Deans v. Layton, 89 N.C. App. 
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358, 366-67, 366 S.E.2d 560, 565-66 (1988). In order to survive 

a motion for summary judgment on a fraud claim, the plaintiff 

must forecast evidence that shows: (1) the defendant made a 

definite and specific representation that was materially false; 

(2) the defendant made the representation with knowledge of its 

falsity; and (3) the plaintiff reasonably relied on the 

representation to his detriment. Kent v. Humphries, 50 N.C. 

App. 580, 588, 275 S.E.2d 176, 182, aff’d, 303 N.C. 675, 281 

S.E.2d 43 (1981). “A defendant cannot be liable for concealing 

[or falsely representing] a fact of which it was unaware.” 

Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 594, 394 S.E.2d 

643, 647 (1990) (internal quotation marks omitted). “If a 

defendant presents evidence that it did not know of the fact in

issue, the burden shifts to plaintiff to prove that defendant 

knew or had reason to know the fact.” Id. (internal quotation 

marks omitted). “The required scienter for fraud is not present 

without both knowledge [of a material fact] and an intent to 

deceive, manipulate, or defraud.” RD&J Props. v. LauraleaDilton Enters., LLC, 165 N.C. App. 737, 745, 600 S.E.2d 492, 498 

(2004).

Plaintiffs argue that defendants made a false 

representation or concealment of a material fact by filling out 
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the disclosure statement. Specifically, they argue that the 

problems plaintiffs experienced in 2011 were substantially 

similar to those experienced by defendants in 1995, and because 

defendants knew of these issues and failed to either ensure that 

they were adequately addressed or alert plaintiffs as to their 

existence, there is a genuine issue of material fact as to 

whether defendants made a false representation with the required 

intent to deceive. Plaintiff’s argument is unfounded.

First, even taking the evidence in the light most favorable 

to plaintiffs, Howerton, 358 N.C. at 467, 597 S.E.2d at 692,

they have put on no forecast of evidence that there was a 

structural problem with the porch when defendants signed the 

disclosure statement in 2006. Defendants testified that they 

hired contractors to fix the porch when they experienced 

structural problems in 1995. They also fixed cosmetic problems 

such as cracked bricks and mortar caused by the settling of the 

foundation. After the new concrete slab was poured, defendants 

were advised to put in cement caulk between the porch and the 

house to keep debris from collecting, which they did. Aside 

from this work, defendants did nothing more to the porch or the 

foundation, and they both testified that they had no further 

problems with the porch in the roughly ten years between when 
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this work was performed and when they sold the house to 

plaintiffs. Although plaintiffs point to the fact that there 

was a loose column on the porch, Mr. Long testified that the

columns were “more visual aids than anything else” and were 

obviously not structural in nature. He said that it “wasn’t 

like there was a bunch of weight and there wasn’t no weight,”

but rather the column was always a little loose and didn’t 

change over time. Mr. Long never felt like the column was a big 

enough issue to warrant fixing. When defendants sold their 

house to plaintiffs, a licensed inspector examined the porch and 

noted that it appeared to be in acceptable condition. 

Plaintiffs did not notice any issues with the porch until 2011, 

roughly four years after buying the home from defendants. Thus, 

the structural repairs that defendants made to the porch lasted 

for approximately sixteen years before any further problems 

became apparent. In sum, there is no evidence indicating that a 

structural problem existed when defendants signed the disclosure 

statement in 2006. 

Second, even if there was a structural problem with the 

house in 2006, plaintiffs have failed to carry their burden of 

proving that defendants were aware of this defect when they 

signed the disclosure statement. The disclosure statement only 
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asked whether defendants knew of any existing problems, not 

whether they had ever made repairs to fix previous issues. 

Defendants testified that they knew of no problems with the 

porch or structural components of the house when they signed the 

disclosure statement; this testimony was corroborated by 

plaintiffs’ inspector’s report indicating that the porch 

appeared to be in acceptable condition. Thus, the burden 

shifted to plaintiffs to prove that defendants knew or had 

reason to know of the structural defect, if one existed. Forbes,

99 N.C. App. 587, 594, 394 S.E.2d 643, 647. Again, taking the 

evidence in the light most favorable to plaintiffs, they have 

failed to meet this burden. The undisputed evidence shows that 

defendants responded to the structural issues in 1995 and were 

assured by their contractors that the problems were permanently 

fixed. Defendants both testified that they experienced no more 

problems with the porch during their ownership of the house, and 

plaintiffs’ inspector observed no damage when he examined the 

house in early 2007. Thus, there is no evidence indicating that 

defendants knew or should have known about a structural defect 

when they signed the disclosure statement in 2006, if such a 

defect even existed. 
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Based on the foregoing, we conclude that plaintiffs failed 

to forecast evidence that defendants either made a definite and 

specific representation that was materially false or had 

knowledge of its falsity. Accordingly, summary judgment for 

defendants was proper. See Uzzell v. Integon Life Ins. Corp., 

78 N.C. App. 458, 337 S.E.2d 639 (1985); see also Taylor v. 

Gore, 161 N.C. Ap. 300, 588 S.E.2d 51 (2003) (affirming summary 

judgment for the defendants where they falsely represented that 

the land they sold was not in a flood zone because the 

plaintiffs could not forecast evidence that the defendants knew 

or had reason to know the land was in the flood zone when they 

made the misrepresentation). 

Conclusion

After careful review, we affirm the trial court’s order 

granting summary judgment in favor of defendants. 

AFFIRMED.

Judges McGEE and ELMORE concur.

Report per Rule 30(e).