THOMAS A. STEVENS, ELLEN M. STEVENS, and MARYLYNN STEVENS, Plaintiffs,
SHANDA HELLER, JOHN BOSTON HELLER, and BFD PROPERTIES INC. d/b/a RE/MAX UNITED, Defendants.
in the Court of Appeals 3 October 2019.
by Plaintiffs from order entered 11 October 2018 by Judge A.
Graham Shirley in Wake County No. 17-CVS-015449 Superior
A. Stevens, pro se.
Manning Fulton & Skinner P.A., by William C. Smith, Jr.,
for the Defendants.
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.
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.
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 . . . .
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
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.
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.
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.
Stevens makes several arguments on appeal, which we address
after resolving a pending motion to dismiss the appeal.
Motion to Dismiss
Plaintiffs' notice of appeal was timely, Mr.
Stevens's appellate brief was not timely filed.
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
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 ...