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Stevens v. Heller

Court of Appeals of North Carolina

December 3, 2019

THOMAS A. STEVENS, ELLEN M. STEVENS, and MARYLYNN STEVENS, Plaintiffs,
v.
SHANDA HELLER, JOHN BOSTON HELLER, and BFD PROPERTIES INC. d/b/a RE/MAX UNITED, Defendants.

          Heard in the Court of Appeals 3 October 2019.

          Appeal by Plaintiffs from order entered 11 October 2018 by Judge A. Graham Shirley in Wake County No. 17-CVS-015449 Superior Court.

          Thomas A. Stevens, pro se.

          Manning Fulton & Skinner P.A., by William C. Smith, Jr., for the Defendants.

          BROOK, JUDGE.

         Thomas A. Stevens, Ellen M. Stevens, and MaryLynn Stevens ("Plaintiffs") appeal the trial court's order granting summary judgment in favor of Shanda Heller, John Boston Heller, and BFD Properties, Inc. d/b/a RE/MAX United ("Defendants") and denying their partial cross-motion for summary judgment. We affirm.

         I. Background

         Thomas Stevens is a lawyer who lives in Delaware with his wife, Ellen Stevens. Shanda Heller and John Boston Heller are married and live in North Carolina. The Hellers own BFD Properties, Inc. ("BFD Properties"), a real estate agency located in Cary, North Carolina that does business as RE/MAX United. Ms. Heller is a real estate broker and an independent contractor and agent of BFD Properties.

         On 29 June 2017 a real estate broker engaged by Mr. Stevens presented an offer to Ms. Heller to purchase real property located at 1431 Collegiate Circle in Raleigh, North Carolina. Ms. Heller counter-offered the following day. In her counter-offer Ms. Heller explained that she and her husband owned the property as an investment but had decided to sell it because their son was leaving home for college, presenting the Hellers with the opportunity to obtain housing for their son for his college years through a tax-deferred exchange. Attaching residential property disclosures to her counter-offer, Ms. Heller noted:

I have checked a few items as "No Representation" because we've never lived in the property and I am not 100% sure (i.e. type of plumbing, age of roof) of ages or types of systems. To our knowledge everything is in good working order. I can try to verify when roof was replaced and plumbing with management company . . . .

         Mr. Stevens and his broker both electronically confirmed receipt of the disclosures and Mr. Stevens and Ms. Heller then executed a purchase agreement for the property that same day, on 30 June 2017. The purchase agreement set 14 July 2017 as the settlement date for the transaction. It stipulated that Mr. Stevens's due diligence period began on 30 June 2017, the date of the purchase agreement, and concluded at 5:00 p.m. on 13 July 2017, the day before the date set for settlement.

         On 14 July 2017, the date set for settlement and the day after the expiration of the due diligence period, a contractor performed maintenance on the HVAC system in the property, damaging the system in the process. The contractor informed the Hellers of the damage and that the damage had been repaired and Ms. Heller conveyed this information to Mr. Stevens, providing Mr. Stevens with copies of invoices for the work. The transaction then closed three days later on 17 July 2017. Ultimately, no inspection of the property was conducted by Mr. Stevens or anyone acting on his behalf prior to the closing of the transaction.[1]

         Plaintiffs thereafter initiated the present action in Wake County Superior Court. In their first amended complaint, Plaintiffs asserted claims for breach of contract, fraud, fraud in the inducement, negligent misrepresentation, and unfair and deceptive practices, alleging essentially that the HVAC system in the property needed to be completely replaced and that Defendants knew or should have known about this defect but failed to disclose it to Mr. Stevens prior to the closing of the transaction. Throughout their complaint, Plaintiffs advanced the theory that the duty of Ms. Heller to disclose information about latent defects of which she was or should have been aware was heightened because she was both an owner of the property and a licensed real estate broker.

         On 23 July 2018 Defendants filed a motion for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. On 13 September 2018 Plaintiffs filed a partial cross-motion for summary judgment on liability only. The motions came on for hearing on 24 September 2018 before the Honorable A. Graham Shirley, II. In an order entered on 11 October 2018, Judge Shirley granted Defendants' motion and denied Plaintiffs' motion. Plaintiffs entered timely written notice of appeal on 8 November 2018.

         II. Analysis

         Mr. Stevens makes several arguments on appeal, which we address after resolving a pending motion to dismiss the appeal.

         A. Motion to Dismiss

         While Plaintiffs' notice of appeal was timely, Mr. Stevens's appellate brief was not timely filed.

         On 10 May 2019, Mr. Stevens filed a motion requesting an extension of the time to file an appellate brief. This Court allowed the motion in a 14 May 2019 order, setting a new deadline of 20 May 2019 for filing and service of Mr. Stevens's appellate brief.

         By 20 May 2019, however, Mr. Stevens did not file and serve his appellate brief, as ordered on 14 May 2019, nor did he request a second extension prior ...


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