NO. COA14-233

NORTH CAROLINA COURT OF APPEALS

Filed: 6 January 2015

JOANN HESTER, Individually

and as Personal Representative

of the Estate of Leland Hester, 

Plaintiff-Appellant,

v. Bladen County

No. 12 CVS 402

HUBERT VESTER FORD, INC., and 

LARRY McPHAIL,

Defendants-Appellants.

Appeal by Plaintiff from order and judgment filed 11

September 2013, nunc pro tunc 26 August 2013, by Judge Douglas 

B. Sasser in Superior Court, Bladen County. Heard in the Court 

of Appeals 26 August 2014.

Christopher W. Livingston for Plaintiff-Appellant.

Womble & Campbell, P.A., by H. Goldston Womble, Jr.; and C. 

Michael Thompson, for Defendants-Appellees.

McGEE, Chief Judge.

Plaintiff filed claims against Hubert Vester Ford, Inc.

(“Vester Ford”) and Larry McPhail (“Mr. McPhail”)

(“Defendants”), for unfair and deceptive trade practices, fraud, 

and common law extortion arising out of a vehicle purchase.

Plaintiff alleged Defendants contracted to sell Plaintiff a Jeep
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vehicle under certain terms but then compelled Plaintiff to sign 

a second, less-favorable contract under the threat of 

repossession. We find that most, but not all, of Plaintiff’s 

claims were properly resolved through summary judgment. 

I. Standard of Review

This Court reviews a trial court's order allowing summary 

judgment de novo. Builders Mut. Ins. Co. v. North Main Const., 

Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). This review 

is limited to determining whether “there is no genuine issue as 

to any material fact” and whether the moving parties were 

entitled to judgment in their favor as a matter of law. See 

Blades v. City of Raleigh, 280 N.C. 531, 544, 187 S.E.2d 35, 43 

(1972). It generally is sufficient for a nonmoving party to 

survive summary judgment where the party can “produce a forecast 

of evidence demonstrating that [the party] will be able to make 

out at least a prima facie case at trial.” Creech v. Melnik, 

347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citation and 

internal quotations omitted). However, 

in passing upon a motion for summary 

judgment, all affidavits, depositions, 

answers to interrogatories and other 

material filed in support or opposition to 

the motion must be viewed in the light most 

favorable to the party opposing the motion, 

and such party is entitled to the benefit of 

all inferences in [the party’s] favor which 

may be reasonably drawn from such material.
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Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289, 

291 (1974). “The slightest doubt as to the facts entitles the 

non-moving party to a trial.” Ballenger v. Crowell, 38 N.C. 

App. 50, 53, 247 S.E.2d 287, 290 (1978).

II. Background

Because this is an appeal by Plaintiff from a grant of 

summary judgment against her, we take the facts in the light 

most favorable for Plaintiff. Plaintiff’s son, Ryan Hester 

(“Ryan”), became interested in purchasing a 2007 Jeep Wrangler 

(“the Jeep”) from Vester Ford sometime near Labor Day in 2009. 

Ryan had a preliminary phone conversation with Melvin Scott 

(“Mr. Scott”), a salesperson for Vester Ford. During that phone 

call, Ryan obtained some type of “pre-approval,” but Mr. Scott

also notified Ryan that he would need a co-signer in order to 

purchase the Jeep. Plaintiff, Ryan’s mother, agreed to be that 

co-signer.

Plaintiff and Ryan traveled to Vester Ford the following 

evening and test-drove the Jeep. While at Vester Ford, they 

interacted with Mr. Scott and Mr. McPhail, and both stayed late 

to accommodate Plaintiff’s and Ryan’s schedules. Plaintiff and 

Ryan presented Defendants with bank and pay documents that 

showed their respective incomes, which were modest. However, 
-4-

Defendants allegedly agreed to sell the Jeep to Plaintiff and 

Ryan for a base price of about $22,000.00, with a trade-in 

credit of $1,000.00 for Plaintiff’s Mercury Grand Marquis (“the 

Grand Marquis”), and monthly payments in the $300.00 to $350.00

range for between sixty (60) and seventy-two (72) months.

Plaintiff and Ryan testified during their depositions that: (1) 

all parties purportedly signed a purchase contract containing 

these terms (the “original” contract); (2) the Grand Marquis’ 

license plate was transferred to the Jeep at signing; and (3) 

Plaintiff and Ryan left with the Jeep that evening.

Plaintiff has been unable to produce a copy of the 

“original” contract, and Defendants deny its existence.

Defendants contend they sold the Jeep to Plaintiff on 30 

September 2009. However, Plaintiff presented an affidavit from 

a neighborhood Labor Day party attendee, averring that he saw 

Ryan in possession of the Jeep several weeks before 30 September 

2009. Vester Ford also submitted a credit application on 

Plaintiff’s behalf to Marine Federal Credit Union to finance the 

purchase of the Jeep (“Marine Credit application”); the Marine 

Credit application was dated 24 September 2009, six days before 

Defendants state they sold Plaintiff the Jeep. Notably, this 

credit application greatly exaggerated Plaintiff’s finances. 

Finally, the Jeep was transferred to Plaintiff’s insurance on 28 
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September 2009, two days before Defendants state they sold 

Plaintiff the Jeep.1

Plaintiff alleged that Mr. Scott contacted her in early 

October 2009 and stated that: (1) the financing for Plaintiff’s

recent Jeep purchase had fallen through; (2) Plaintiff needed to 

sign a new purchase contract for the Jeep, with new financing; 

and (3) if Plaintiff did not sign the new contract, the Jeep 

would be repossessed. Soon thereafter, Mr. Scott arrived at 

Plaintiff’s residence and presented Plaintiff and her husband

with the new contract, which was backdated to 30 September 2009 

(the “30 September” contract). Mr. Scott allegedly informed 

Plaintiff and her husband that the terms in the 30 September 

contract were the same as those in the “original” contract.

Plaintiff alleged that Mr. Scott then physically covered the top 

half of the 30 September contract when he presented it to 

Plaintiff and her husband, obscuring their view of the terms 

therein. Neither Plaintiff nor her husband asked to read the 

terms of the 30 September contract before signing it.

2

 

1 Some of Vester Ford’s documentation indicates that Vester 

Ford did not actually take title to the Jeep until 30 September 

2009.

2 Plaintiff’s co-plaintiff husband has since passed away,

and Plaintiff is the personal representative of her husband’s 

estate in this matter. Plaintiff’s husband’s involvement in 
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The 30 September contract required that Plaintiff make 

monthly payments of $614.83, with an interest rate of 14.69

percent, for sixty (60) months — almost doubling the monthly

payments that Plaintiff contends were required under the 

“original” contract. The terms in the 30 September contract

were based on a line of credit that Vester Ford obtained on 

Plaintiff’s behalf from Ford Motor Credit Company after 

financing for the “original” contract reportedly fell through.

The credit application submitted to Ford Motor Credit Company by 

Vester Ford inflated Plaintiff’s financial data even more than 

the Marine Credit application. 

Ryan remained in possession of the Jeep approximately nine 

months after Plaintiff signed the 30 September contract, 

although he only made a couple of monthly payments thereon. The 

Jeep was repossessed in July 2010, was sold, and a deficiency 

judgment was entered against Plaintiff for the remainder of the 

amount owed under the 30 September contract. However, that 

deficiency judgment was set aside by a consent order, and 

Plaintiff currently owes nothing on the Jeep.

 

this case primarily arises out of his signing the 30 September 

contract.
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Plaintiff filed a complaint against Defendants for unfair 

and deceptive trade practices (“UDTP”), fraud, and common law 

extortion. Plaintiff and Defendants then moved for summary 

judgment against each other. By order filed 11 September 2013, 

the trial court granted Defendants’ motion for summary judgment

but denied Plaintiff’s motion. Plaintiff appeals.

III. Plaintiff’s Motion for Summary Judgment Denied

As a preliminary matter, Plaintiff appeals both the trial 

court’s grant of summary judgment against her and the trial 

court’s denial of her motion for summary judgment against 

Defendants. However, “the denial of a motion for summary 

judgment is not reviewable during appeal from a final judgment 

rendered in a trial on the merits.” Harris v. Walden, 314 N.C. 

284, 286, 333 S.E.2d 254, 256 (1985). The trial court’s grant 

of Defendants’ motion for summary judgment was a final judgment

on the merits. See Id. Therefore, on appeal, we will not 

review Plaintiff’s denied motion for summary judgment. 

IV. Defendants’ Motion for Summary Judgment Granted

A. Claims Arising Under the 30 September Contract

1. Unfair and Deceptive Trade Practices

Plaintiff presents this Court with a multitude of arguments 

on appeal, and many of them emanate from a core UDTP claim 

related to the formation of the 30 September contract. “In 
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order to establish a prima facie claim for unfair trade 

practices, a plaintiff must show: (1) [the] defendant committed 

an unfair or deceptive act or practice, (2) the action in 

question was in or affecting commerce, and (3) the act 

proximately caused injury to the plaintiff.” Dalton v. Camp, 

353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001). The second 

requirement, that the act or practice be “in or affecting 

commerce,” is not at issue in the present case. Thus, in order 

to survive summary judgment, Plaintiff must establish a material 

question of fact as to whether Defendants committed unfair or 

deceptive acts that proximately injured Plaintiff. 

Plaintiff contends that she and Defendants entered into the 

“original” contract for the Jeep sometime before Labor Day in 

2009. Plaintiff and Ryan testified during their depositions 

that they signed this “original” contract with Defendants. 

Plaintiff also presented the following circumstantial evidence 

in support of the existence of the “original” contract: (1) an 

affidavit from a neighborhood Labor Day party attendee, averring 

that he saw Ryan in possession of the Jeep early in September 

2009; (2) a credit application that Vester Ford submitted on 

Plaintiff’s behalf on 24 September 2009 to finance the purchase 

of the Jeep, six days before Defendants state they sold 

Plaintiff the Jeep; and (3) an automobile insurance policy 
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statement showing that the Jeep was transferred to Plaintiff’s 

auto insurance on 28 September 2009, two days before Defendants 

state they sold Plaintiff the Jeep. Plaintiff correctly points 

out that transferring auto insurance to a consumer’s policy is 

only supposed to occur once financing is finalized and the 

consumer has taken title to the vehicle. See N.C. Gen. Stat 

§ 20-75.1 (2013).

In light of this evidence, the fact that Defendants 

adamantly deny the existence of the “original” contract creates 

a material issue of fact in the case before this Court. See 

Durham Life Broadcasting, Inc. v. Internat'l Carpet Outlet, 63 

N.C. App. 787, 788, 306 S.E.2d 459 (1983) (“There is clearly a 

dispute in the case sub judice where the defendant denies the 

existence of a contract.”). However, Defendants argue that 

summary judgment for Defendants was proper nonetheless. They 

highlight the fact that Plaintiff has not produced a copy of the 

“original” contract and that Plaintiff’s sworn statements as to 

the terms of this contract are less than precise. However, this 

is not necessarily dispositive of the circumstantial evidence 

that Plaintiff presented to the trial court as to the possible 

existence of the “original” contract. 

Taking the evidence in a light most favorable to Plaintiff, 

the non-moving party in Defendants’ motion for summary judgment, 
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and granting Plaintiff all reasonable inferences therefrom, we 

must assume that the “original” contract existed. Therefore, we 

assume that Plaintiff had a property interest in the Jeep before 

she was presented with the 30 September contract. As such, Mr. 

Scott’s threat to repossess the Jeep if Plaintiff did not sign 

the 30 September contract presents a material question as to 

whether Vester Ford, through its agent, Mr. Scott, committed an 

unfair or deceptive act in or affecting commerce. If so, the 

resulting harm would be that Plaintiff was subjected to a 

subsequent purchase contract, the 30 September contract, on 

disadvantageous terms. Finally, contrary to Defendants’ 

contention that Plaintiff has suffered no actual damages because 

her liability to Ford Motor Credit Company on the loan for the 

Jeep was extinguished, Plaintiff has forecast some actual 

damages resulting from Vester Ford’s alleged misconduct – for 

instance, losing the value of her Grand Marquis after the Jeep 

was repossessed.3 Therefore, Plaintiff has sufficiently 

established the necessary elements to support an UDTP claim.

 

3 Because Plaintiff appeals from the trial court’s grant of 

summary judgment against her, our review of Plaintiff’s damages 

need not probe beyond finding the existence of actual damages. 

See Creech, 347 N.C. at 526, 495 S.E.2d at 911 (“[It is 

sufficient for a nonmoving party to survive summary judgment 

where the party can] produce a forecast of evidence 
-11-

As Defendants correctly point out, notwithstanding the 

possible existence of the “original” contract, Plaintiff’s 

failure to read the 30 September contract, and without even 

requesting an opportunity to do so, could preclude her from 

recovery under the new contract. “One who signs a written 

contract without reading it, when [she] can do so 

understandingly[,] is bound thereby unless the failure to read 

is justified by some special circumstance.” Davis v. Davis, 256 

N.C. 468, 472, 124 S.E.2d 130, 133 (1962) (citations omitted). 

At its core, the question is whether Plaintiff acted with 

“reasonable prudence” by relying on Mr. Scott’s assurances that 

the terms of the 30 September contract were the same as those in 

the “original” contract, except for the source of financing. 

See id. “What a reasonably prudent person will or will not do 

under various circumstances . . . is nearly always a question of 

fact, not of law. Only when the facts are such that reasonable 

minds can reach but one conclusion does the question become one 

of law.” Hulcher Brothers & Co. v. N.C. Dep't of 

Transportation, 76 N.C. App. 342, 343, 332 S.E.2d 744, 745 

(1985). Moreover, 

 

demonstrating that [the party] will be able to make out at least 

a prima facie case at trial.”). 
-12-

[i]t is only in exceptional cases that the 

issue of reasonable reliance may be decided 

by the summary judgment procedure. . . . [An 

aggrieved party who failed to read a 

contract] will not be charged with knowledge 

of the contents of [the contract she] signed 

if it were obtained by trick or artifice.

Northwestern Bank v. Roseman, 81 N.C. App. 228, 234, 344 S.E.2d 

120, 125 (1986), aff'd, 319 N.C. 394, 354 S.E.2d 238 (1987) 

(emphasis added) (citations omitted). 

Although Plaintiff’s failure to read the 30 September 

contract likely is harmful to her claim, Plaintiff contends that 

her signature on the 30 September contract was made under duress 

and obtained through fraud. Given that we must presume 

Plaintiff was operating under the notion that the “original” 

contract established a set, binding, and existent agreement 

between her and Vester Ford, there remains the question of 

whether Plaintiff reasonably relied on Mr. Scott’s assertions 

that the terms of the 30 September contract were identical to 

those in the “original” contract, except for the source of 

financing. Alternatively, when faced with Mr. Scott’s threat to 

repossess the Jeep, there is a question as to whether Plaintiff 

would have signed the 30 September contract under duress, even 

if she had read it and objected to the new terms. These are 

questions of fact for a jury to determine.
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Defendants further assert that Plaintiff is estopped from 

recovery because she accepted the benefits of the 30 September 

contract by using the Jeep for a number of months after signing 

the 30 September contract. To support this contention, 

Defendants note that “the acceptance of benefits [under a 

contract] precludes a subsequent inconsistent position [by an 

aggrieved party], even where acceptance is involuntary, arises 

by necessity, or where . . . a party voluntarily accepts a 

benefit to avoid the risk of harm". Shell Island Homeowners 

Ass'n v. Tomlinson, 134 N.C. App. 217, 226, 517 S.E.2d 406, 413 

(1999) (citing Carolina Medicorp, Inc. v. Board of Trustees, 118 

N.C. App. 485, 493–93, 456 S.E.2d 116, 120 (1995)) (quotes 

omitted). 

This authority, however, is distinguishable from the 

present case. Carolina Medicorp, on which Defendants’ authority 

relies, involved a contractual dispute between some North 

Carolina hospitals and the North Carolina state employee health 

insurance plan. Carolina Medicorp, 118 N.C. App. at 487–88, 456 

S.E.2d at 117–18. The plaintiff hospitals had contracted to 

accept lower reimbursement rates in exchange for being 

designated “preferred providers” by the state health plan; state 

employees, in turn, would pay less out-of-pocket for services 

received at “preferred providers,” making the hospitals 
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financially attractive to patients. Id. The hospitals 

subsequently challenged the lower reimbursement rates under 

their contracts, contending that the hospitals entered into the 

contracts involuntarily. Id. However, the hospitals were 

estopped from litigating the issue because they had already 

accepted the benefits of being “preferred providers” under the 

plan. Id. at 492–94, 456 S.E.2d at 120–21 (“[V]oluntariness is 

not an element under the doctrine of quasi estoppel. 

Furthermore, even if it were an element of quasi estoppel, 

petitioners were not compelled to sign the contracts. They 

chose to avoid the risk of losing patients to other preferred 

provider hospitals by signing the contracts.”).

In the present case, Plaintiff is not challenging the 

enforcement of the 30 September contract with Vester Ford; 

indeed, a default judgment was entered against Plaintiff after 

she stopped making monthly payments to Ford Motor Credit 

Company, and that default judgment was later set aside. There 

is nothing left to enforce under the 30 September contract. 

Instead, Plaintiff contends that Defendants engaged in unfair 

and deceptive trade practices during the formation of the 30 

September contract, which presents a different legal question.

“[T]he essential purpose of quasi-estoppel . . . is to 

prevent a party from benefitting by taking two clearly 
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inconsistent positions” under a contract. B & F Slosman v. 

Sonopress, Inc., 148 N.C. App. 81, 88, 557 S.E.2d 176, 181 

(2001). North Carolina’s UDTP laws, however, are designed to 

provide consumers with a remedy for injuries done to them by 

dishonest and unscrupulous business practices. See N.C. Gen. 

Stat. § 75-16 (2013). Even where an aggrieved party is estopped 

from taking a subsequent inconsistent position under a contract 

due to quasi-estoppel, the party on the other side of the 

agreement is not categorically absolved of its unlawful acts 

during the formation of that same contract. Therefore, quasiestoppel does not apply in the present case.

Plaintiff has established a prima facie UDTP claim against 

Vester Ford regarding the formation of the 30 September 

contract. The fact that Plaintiff has not produced the 

“original” contract and did not read the 30 September contract 

is not necessarily dispositive. Moreover, because Plaintiff’s 

UDTP claim does not challenge the enforcement of the 30 

September contract, quasi-estoppel does not apply. As such, the 

trial court erred by granting summary judgment as to Vester Ford 

on this claim.

2. Fraud

Plaintiff’s complaint also raised an alternative, but 

related, fraud claim against Defendants based on the same facts 
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that gave rise to Plaintiff’s UDTP claim above. The elements of 

fraud are well-established: “(1) [f]alse representation or 

concealment of a material fact, (2) reasonably calculated to 

deceive, (3) made with the intent to deceive, (4) which does in 

fact deceive, (5) resulting in damage to the injured party.” 

Helms v. Holland, 124 N.C. App. 629, 634, 478 S.E.2d 513, 516 

(1996) (citation and quotes omitted). Plaintiff presented 

evidence that Vester Ford intentionally and falsely represented 

to Plaintiff that Vester Ford could repossess the Jeep in order 

to induce her to sign the 30 September contract. Therefore, for 

reasons similar to those discussed in the previous section,

Plaintiff’s alternative claim for fraud as to Vester Ford should 

survive summary judgment.

3. Common Law Extortion

Plaintiff’s complaint raised a third alternative tort claim 

for common law extortion based on the same facts that gave rise 

to her UDTP and fraud claims. However, no civil cause of action 

for extortion currently exists under North Carolina law. See 

Free Spirit Aviation, Inc. v. Rutherford Airport Auth., 191 N.C. 

App. 581, 585, 664 S.E.2d 8, 12 (2008). Nonetheless, Plaintiff 

proposes that “[e]ven if extortion is not yet a recognized tort

[under North Carolina law], it must become one.”
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To date, this Court has not been presented with a direct, 

supported, or convincing argument that extortion should be a 

cognizable tort under North Carolina law. See, e.g., Brawley v. 

Elizabeth Townes Homeowners Ass'n, Inc., __ N.C. App. __, __ 

S.E.2d __, COA14–135, slip op. at 9–10 (Aug. 19, 2014)

(unpublished) (affirming the dismissal of, inter alia, a pro se 

extortion claim on collateral estoppel grounds); Lawson v. 

White, 197 N.C. App. 758, 680 S.E.2d 904, COA07-296-2, slip op. 

at 5 (July 7, 2009) (unpublished) (“Plaintiff fails to cite any 

cases on point and fails to set forth what the elements of 

[extortion] might be.”); Free Spirit Aviation, 191 N.C. App. at 

585, 585 n.3, 664 S.E.2d at 12, 12 n.3 (2008) (“[Plaintiffs' 

complaint . . . expressly states a claim for extortion. . . . 

[However,] the issue of whether a civil claim for extortion 

exists in North Carolina was not argued [on appeal, so] we make 

no ruling either way on this issue.”). Although “this Court 

will not shirk its duty to fully consider new causes of actions 

when they are properly presented,” Woodell v. Pinehurst Surgical 

Clinic, P.A., 78 N.C. App. 230, 233, 336 S.E.2d 716, 718 (1985),

aff'd, 316 N.C. 550, 342 S.E.2d 523 (1986), overruled on other 

grounds by Johnson v. Ruark Obstetrics, 327 N.C. 283, 300–01,

395 S.E.2d 85, 95 (1990), so too must we proceed with the utmost 

caution and deliberateness in the face of such a request.
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Plaintiff, in support of her argument that extortion should 

be a cognizable tort under North Carolina law, presents this 

Court with non-controlling authority from New Jersey, People 

Exp. Airlines, Inc. v. Consol. Rail Corp., 495 A.2d 107, 111 

(N.J. 1985), which discusses the adaptability of the common law

in the face of significant, long-term shifts in societal norms.

Plaintiff also cites the Open Courts Clause of the North 

Carolina Constitution, which states that “[a]ll courts shall be 

open; every person for an injury done him in his lands, goods, 

person, or reputation shall have remedy by due course of law; 

and right and justice shall be administered without favor, 

denial, or delay.” N.C. Const. Art. 1 § 18. In light of this 

authority, Plaintiff contends that her remedy for Defendants’

inducing her to sign the 30 September contract, “falls between 

the two stools of fraud (if deception is absent) and conversion 

(if consent is present)[.]” Between these two “stools,”

Plaintiff argues, necessarily sits her claim for extortion. We 

disagree.

First, we note that Plaintiff has raised a claim for fraud, 

alleging deception by Defendants, which allegedly was aimed at

inducing Plaintiff to sign the 30 September contract. Second, 

the space between the two “stools” of fraud and conversion has 

been fully, and adequately, occupied by Plaintiff’s UDTP claim. 
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Plaintiff argues in her brief that she would need to prove two 

things for an extortion claim against Defendants: (1) that 

Defendants unlawfully threatened Plaintiff with repossession of 

the Jeep (2) in order to obtain value from Plaintiff by binding 

her to the allegedly disadvantageous terms of the 30 September 

contract. These essentially are the same facts that Plaintiff

needs to prove in her UDTP claim and to obtain appropriate 

relief from the alleged harm done to her by Defendants. As 

such, Plaintiff is not being denied a “remedy by due course of 

law” presently, and we decline to use this case to recognize a 

cognizable tort of common law extortion under North Carolina 

law.

B. Claims Arising Under the “Enhanced” Credit Applications 

1. Unfair and Deceptive Trade Practices

On appeal, Plaintiff attempts to argue that Defendants 

committed unfair and deceptive trade practices by submitting 

credit applications on her behalf for the purchase of the Jeep 

that greatly “enhanced” Plaintiff’s financial data. However, 

Plaintiff did not plead this claim in her complaint. Therefore, 

we will not consider it. See N.C.R. App. P. 10(a)(1) (“In order 

to preserve an issue for appellate review, a party must have 

presented to the trial court a timely request, objection, or 

motion, stating the specific grounds for the ruling the party 
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desired the court to make if the specific grounds were not 

apparent from the context.”).

2. Fraud

Plaintiff also alleged fraud against Defendants based on 

Defendants’ purportedly “enhancing” Plaintiff’s financial 

information when submitting credit applications on her behalf.

Again, the elements of fraud are: “(1) [f]alse representation 

or concealment of a material fact, (2) reasonably calculated to 

deceive, (3) made with the intent to deceive, (4) which does in 

fact deceive, (5) resulting in damage to the injured party.”

Helms v. Holland, 124 N.C. App. 629, 634, 478 S.E.2d 513, 516 

(1996) (citation and quotes omitted). Plaintiff does not 

contend that Defendants made false representations to Plaintiff 

regarding her financial information. Instead, Plaintiff’s fraud 

claim here rests on the contention that Ford Motor Credit 

Company was deceived by Defendants’ “enhancing” Plaintiff’s 

financial data when submitting credit applications on her behalf 

and that Plaintiff was subsequently injured thereby. Plaintiff 

asserts that “[e]lements (2), (3), and (4) [of fraud] do not 

require that the deceived person be the same person as the 

injured party.” However, Plaintiff provides this Court with no 

authority to support this argument, and we do not agree.
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Notably, Plaintiff did not file a claim of constructive 

fraud against Defendants. A claim for constructive fraud would 

require only that Plaintiff show that she and Defendants were in 

a “relation of trust and confidence . . . [which] led up to and 

surrounded the consummation of the transaction in which 

[Defendants are] alleged to have taken advantage of [their]

position of trust to the hurt of [Plaintiff].” Rhodes v. Jones, 

232 N.C. 547, 549, 61 S.E.2d 725, 726 (1950). “[C]harging 

actual fraud is ‘more exacting’ than charging constructive 

fraud.” Terry v. Terry, 302 N.C. 77, 83, 273 S.E.2d 674, 677 

(1981). 

We need not, and do not, decide whether Defendants, by 

allegedly “enhancing” Plaintiff’s financial data while obtaining 

credit on her behalf, may have committed constructive fraud 

against Plaintiff; Plaintiff did not plead such a claim in her 

complaint. See N.C.R. App. P. 10(a)(1). Thus, restricting our 

analysis to the “exacting” elements of “actual” fraud, Plaintiff 

has not sufficiently pleaded facts that Defendants made 

deceptive statements to Plaintiff regarding her financial data

and in the course of obtaining a line of credit on her behalf. 

Therefore, Plaintiff has not established a prima facie fraud 

claim against Defendants here, and the trial court did not err

by granting summary judgment on this claim.
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C. Summary Judgment as to Mr. McPhail

Finally, Plaintiff assigns error to the trial court’s

granting summary judgment as to her claims against Mr. McPhail.

1. Mr. McPhail’s Liability Regarding the 30 September 

Contract

On appeal, Plaintiff argues that Mr. McPhail should be held 

personally liable in the present case because Mr. McPhail knew 

of Plaintiff’s modest finances, but he authorized the 30 

September contract nonetheless, and this resulted in harm to 

Plaintiff. “As an essential element of a cause of action under 

G.S. 75-16 [for UDTP], [P]laintiff must prove . . . that 

[P]laintiff has suffered actual injury as a proximate result” of 

Defendants’ actions. Bailey v. LeBeau, 79 N.C. App. 345, 352, 

339 S.E.2d 460, 464 (1986), aff'd as modified, 318 N.C. 411, 348 

S.E.2d 524 (1986). The same is true for a claim of fraud. See 

Jay Group, Ltd. v. Glasgow, 139 N.C. App. 595, 599–601, 534 

S.E.2d 233, 236–37 (2000). 

Although Mr. McPhail may have been aware of the modest 

finances of Plaintiff and Ryan, the financing terms in the 30 

September contract that Mr. McPhail approved were those given to 

Vester Ford by the Ford Motor Credit Company. Plaintiff has not 

alleged that Mr. McPhail was aware of, or in any way involved 

with, the “enhancements” to Plaintiff’s financial data in the 
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respective credit application that lead to the terms of the 30 

September contract. As such, Mr. McPhail’s merely authorizing 

the 30 September contract alone is not sufficient to maintain an 

UDTP or fraud claim against him. 

2. Mr. McPhail’s Liability Regarding the “Original” Contract

On appeal, Plaintiff also asserts certain additional facts 

as to her interactions with Mr. McPhail. Specifically, she 

argues that Mr. McPhail should be held personally liable in the 

present case because he was the Vester Ford employee who 

negotiated and agreed to the “original” contract; yet he still 

authorized the 30 September contract. Notably, in Plaintiff’s 

complaint, she asserted that

14. Mr. Scott or Mr. McPhail on behalf of 

Vester told Mrs. Hester and Ryan that their 

credit was approved, and agreed 

unconditionally to sell the Jeep to Ryan and 

Mrs. Hester for a principal amount of about 

$23,000, paid in installments of about $320 

per month (but not more than $350/month) for 

60 months, in return for a trade-in 

allowance of $1,000 on Mrs. Hester's 1993 

Mercury Grand Marquis.

Although Plaintiff’s complaint named “Mr. Scott or Mr. McPhail” 

as the one who negotiated and agreed to the “original” contract, 

the depositions of Plaintiff and Ryan do not implicate Mr. 

McPhail as such. Plaintiff and Ryan even testified that they 

almost exclusively dealt with Mr. Scott during the purchase of 
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the Jeep and that Mr. McPhail performed only ministerial 

functions in relation thereto. In fact, the only evidence 

presented to the trial court that Mr. McPhail was the Vester

Ford employee who negotiated and agreed to the “original” 

contract came in the form of nearly identical affidavits, filed 

by Plaintiff and Ryan, only four days before the summary 

judgment hearing on 26 August 2013. On this point, it is clear:

The affidavits [presented by Plaintiff and 

Ryan] materially alter the deposition 

testimony in order to address gaps in the 

evidence necessary to survive summary 

judgment. . . . [I]f a party who has been 

examined at length on deposition could raise 

an issue of fact simply by submitting an 

affidavit contradicting his [or her] own 

prior testimony, this would greatly diminish 

the utility of summary judgment as a 

procedure for screening out sham issues of 

fact.

See Marion Partners, LLC v. Weatherspoon & Voltz, LLP, 215 N.C. 

App. 357, 362-63, 716 S.E.2d 29, 33 (2011) (citation and quotes 

omitted). Therefore, the trial court properly was not persuaded

by this “evidence” in granting summary judgment as to Mr. 

McPhail. Plaintiff has presented no other argument that Mr. 

McPhail should be held personally liable in this case for his 

involvement in the purported execution of the “original” 

contract.

V. Conclusion
-25-

The trial court properly granted summary judgment to Mr. 

McPhail on all of Plaintiff’s claims against him. The trial 

court also properly granted summary judgment to Vester Ford with 

respect to Plaintiff’s common law extortion claim, as well as 

her UDTP and fraud claims arising out of Vester Ford allegedly 

“enhancing” Plaintiff’s financial information on credit 

applications. However, the trial court erred by granting 

summary judgment to Vester Ford on Plaintiff’s UDTP and fraud 

claims arising out of the formation of the 30 September 

contract. 

Reversed in part, and remanded; affirmed in part.

Judges BRYANT and STROUD concur.