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concluding that the plaintiffs' UDTPA must be dismissed because the claim accrued on April 29, 2003, and the plaintiffs did not file their claim until July 16, 2007, which was outside the four year statute of limitations
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NO. COA10-1170
08-16-2011
STONY POINT HARDWARE AND GENERAL STORE, INC., EDWARD NEAL ALLISON, and SANDRA L. ALLISON-STORY, Plaintiffs-Appellants, v. PEOPLES BANK, Defendant-Appellee.
C. Gary Triggs, P.A., by C. Gary Triggs, for Plaintiffs-Appellants . Rogers, Townsend & Thomas, PC, by William Walt Pettit, for Defendant-Appellee.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Catawba County No. 08 CVS 2806
Appeal by Plaintiffs from order entered 11 June 2010 by Judge J. Gentry Caudill in Superior Court, Catawba County. Heard in the Court of Appeals 7 March 2011.
C. Gary Triggs, P.A., by C. Gary Triggs, for Plaintiffs-Appellants.
Rogers, Townsend & Thomas, PC, by William Walt Pettit, for Defendant-Appellee.
McGEE, Judge.
Peoples Bank filed a complaint dated 30 August 2006 (the 30 August 2006 complaint) seeking to recover funds owed pursuant to an alleged promissory note executed by Edward Neal Allison (Mr. Allison) and daughter Sandra L. Allison-Story (Ms. AllisonStory) on behalf of Stony Point Hardware and General Store, Inc. Mr. Allison and Ms. Allison-Story filed an answer and counterclaims on 16 July 2007 asserting claims of, inter alia: (1) fraud and misrepresentation, (2) self-dealing, (3) breach of contract, (4) breach of fiduciary duty, and (5) unfair and deceptive trade practices. The parties filed a "stipulation of dismissal without prejudice" pursuant to N.C. Gen. Stat. § 1A-1, Rule 41(a) on 26 July 2007, agreeing to dismiss without prejudice all claims of both parties.
Mr. Allison, Ms. Allison-Story, and Stony Point Hardware and General Store, Inc. (Stony Point) (hereinafter Plaintiffs), filed an application on 17 July 2008 for an order extending time to file a complaint. Plaintiffs were granted an extension until 6 August 2008 to file a complaint and Plaintiffs filed their complaint on 6 August 2008 (the 6 August 2008 complaint). In their 6 August 2008 complaint, Plaintiffs asserted claims for: (1) fraud and misrepresentation, (2) self-dealing, (3) breach of contract, (4) breach of fiduciary duty, (5) tortious interference with contract, (6) civil conspiracy, and (7) unfair and deceptive trade practices.
Peoples Bank (Defendant) filed an amended motion to dismiss dated 9 April 2009, in which it stated the following:
Defendant, by and through counsel, hereby moves the [c]ourt, to dismiss all [c]laims for [r]elief against . . . Defendant, on theThe trial court granted Defendant's motion to dismiss in an order entered 27 April 2009. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 59, Plaintiffs filed a motion for a new trial on 7 May 2009, arguing that their counsel had been unavailable for the hearing that was conducted on Defendant's motion to dismiss. Plaintiffs contended that their attorney failed to provide notice of timing conflicts to the trial court administrator, and that this failure was due to excusable neglect. The trial court elected to treat Plaintiffs' Rule 59 motion as a motion for relief pursuant to Rule 60(b)(1), based on excusable neglect. In an order entered 11 June 2010, the trial court: (1) granted Plaintiffs' motion, (2) set aside its prior 27 April 2009 order dismissing Plaintiffs' 6 August 2008 complaint, and (3) granted Defendant's motion to dismiss pursuant to Rule 12(b)(6). Plaintiffs appeal from that portion of the trial court's 11 June 2010 order granting Defendant's motion to dismiss. Defendant also filed notice of appeal from the trial court's 11 June 2010 order granting Plaintiffs' motion for relief pursuant to Rule 60(b), but Defendant has not filed any brief in support of this appeal and has not argued this issue in its appellate brief.
ground that they fail to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the N.C. Rules of Civil Procedure. In support thereof, Defendant alleges that the doctrine of res judicata barrs [sic] Plaintiff[s'] claim, that Plaintiff[s] have failed to allege fraud with particularity as required by Rule 9(b) of the N.C. Rules of Civil Procedure, that self dealing is not a claim recognized by North Carolina law, that the applicable statute of limitations has expired, that Defendant does not have a fiduciary duty to Plaintiffs, that the civil conspiracy claim is not supported by law and that there is no basis for an unfair and deceptive trade acts or practices claim.
I. Factual Background
Plaintiffs' 6 August 2008 complaint contains the following pertinent allegations. In or about November 2002, Mr. Allison and Ms. Allison-Story began restoration of a building in Stony Point and incorporated the business of Stony Point Hardware and General Store, Inc., with the intention of operating the business as a general store and historical landmark. Plaintiffs met with Defendant regarding financing for Stony Point. Plaintiffs obtained an appraisal from Christopher Brookshire (Mr. Brookshire), who had been chosen by Defendant.
During December 2002, Ms. Allison-Story expressed concerns to Defendant regarding the proposed structure of loans Plaintiffs were to enter into with Defendant, particularly the amount of the monthly payments. Plaintiffs asserted in their 6 August 2008 complaint that Ms. Allison-Story was advised by Defendant's agent, "Mr. Gibson," that Plaintiffs "'should take whatever loan [they] [could] get to buy [Stony Point] and then redo the loan in two (2) years.'" Plaintiffs further alleged that "[a]t all relevant times the agents for . . . Defendant assured . . . Plaintiffs that [Defendant] would be willing to redo the loan in two (2) years as [Stony Point] progressed." Plaintiffs proceeded with the loan application process, and the loan closing was supervised by Kurt Vaught (Mr. Vaught), an attorney approved by Defendant. The record contains a promissory note and security agreement dated 4 December 2002, signed by Stony Point as borrower by Mr. Allison and Ms. Allison-Story. The promissory note and security agreement in the amount of $88,000.00 were secured by real property owned by the Stony Point business. The record also contains guaranty agreements dated and signed 4 December 2002, signed by Mr. Allison and Ms. Allison-Story as guarantors of the loan to Stony Point.
Plaintiffs alleged in their 6 August 2008 complaint that problems began "almost immediately after" the loan documents were executed. Plaintiffs further alleged that Mr. Gibson told them that Mr. Vaught had "'messed up the closing documents'" and that if Ms. Allison-Story "did not sign more papers, [Defendant] w[as] going after [Mr.] Vaught." Plaintiffs also alleged that Mr. Gibson threatened to "recall" the loan if Plaintiffs established a deposit account with a bank other than Defendant.
Plaintiffs alleged that they received a letter "[i]n the period between February 21, 2003 and April 29, 2003" from Mr. Gibson stating that the loan was in default and threatening to "recall the loan." Plaintiffs scheduled a meeting with Mr. Gibson and other representatives of Defendant on 29 April 2003. Plaintiffs were "assured [by Defendant's representatives] that, if they would sign the documents that had been prepared by [D]efendant's attorneys, [Defendant] would 'help them with their business and redo the loans so [Plaintiffs] could make it.'"
Mr. Gibson retired shortly after the 29 April 2003 meeting, and the relationship between Plaintiffs and Defendant continued to deteriorate. Mr. Gibson was replaced by John Duncan (Mr. Duncan), and Plaintiffs alleged his "attitude towards . . . Plaintiffs was rude, uncaring, and demonstrated a desire to end the relationship regardless of the effect upon . . . Plaintiffs." On or about 29 April 2005, Plaintiffs received another letter from Mr. Duncan stating that "all loans were being called." Plaintiffs received a letter from Mr. Duncan on 2 May 2005 indicating that $3,671.13 had been taken from Plaintiffs' business checking account with Defendant. Defendant closed Plaintiffs' business checking account on 5 May 2005.
Ms. Allison-Story met with Defendant's agents on 14 May 2005 and advised Defendant that Plaintiffs needed to consolidate the loans in order for Stony Point to remain successful. Defendant told Ms. Allison-Story that "if [Plaintiffs] would come up with the money to bring everything current, . . . Defendant would work with [Plaintiffs]." On 17 June 2005, Defendant requested that Plaintiffs sign a "Forbearance Agreement" or Defendant "[would] tak[e] control of [Stony Point]." Plaintiffs signed the agreement, though Plaintiffs' 6 August 2008 complaint does not specify the terms of that agreement. In the 30 August 2006 complaint, two copies of a forbearance agreement, both dated 4 January 2006, were attached as Exhibit 7 and Exhibit 11, and set out details between the parties whereby Defendant, pursuant to certain terms, would not take legal action against Plaintiffs regarding the loan. Nonetheless, Plaintiffs' 6 August 2008 complaint alleged that foreclosure proceedings were filed by Defendant "in the period between February and May of 2006," and that the "real property was . . . sold for an amount for [sic] less than the fair market value[.]"
II. Standard of Review
Plaintiffs argue in their brief that the trial court erred in granting Defendant's motion to dismiss as to its claims for: (1) fraud and misrepresentation, (2) breach of contract, (3) tortious interference with contract, (4) breach of fiduciary duty, and (5) unfair and deceptive trade practices. "'A Rule 12(b)(6) motion tests the legal sufficiency of the pleading.'" Carlisle v. Keith, 169 N.C. App. 674, 681, 614 S.E.2d 542, 547 (2005) (citation omitted).
When determining whether a complaint is sufficient to withstand a Rule 12(b)(6) motion to dismiss, the trial court must discern "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory."Id. (citation omitted). "'When considering a 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff's recovery.'" Id. (citation omitted).
III. Analysis
A. Fraud
We note that "'[d]ismissal of a complaint is proper under the provisions of Rule 12(b)(6) of the North Carolina Rules of Civil Procedure . . . when some fact disclosed in the complaint necessarily defeats the plaintiff's claim.'" Hooper v. Liberty Mut. Ins. Co., 84 N.C. App. 549, 551, 353 S.E.2d 248, 249-50 (1987) (citation omitted). "A motion to dismiss under Rule 12(b)(6) is an appropriate method of determining whether the statutes of limitation bar plaintiff's claims if the bar is disclosed in the complaint." Carlisle, 169 N.C. App. at 681, 614 S.E.2d at 547. The statute of limitations for claims for "relief on the ground of fraud or mistake" is three years from the time of discovery. N.C. Gen. Stat. § 1-52(9) (2009).
Our Supreme Court has held that a claim for fraud accrues "'at the time of discovery regardless of the length of time between the fraudulent act or mistake and plaintiff's discovery of it.'" Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 386 (2007) (citation and emphasis omitted). In this context, "'discovery' means either actual discovery or when the fraud should have been discovered in the exercise of 'reasonable diligence under the circumstances.'" Id. (citation omitted). "Ordinarily, a jury must decide when fraud should have been discovered in the exercise of reasonable diligence under the circumstances." Id. "When, however, 'the evidence is clear and shows without conflict that the claimant had both the capacity and opportunity to discover the fraud but failed to do so, the absence of reasonable diligence is established as a matter of law.'" White v. Consolidated Planning, Inc., 166 N.C. App. 283, 307, 603 S.E.2d 147, 163 (2004) (citation omitted).
Plaintiffs' 6 August 2008 complaint contains the following allegations related to Defendant's alleged fraud and Plaintiffs' knowledge thereof:
18. That at all relevant times prior to the actual entry into the loans, various promises and inducements were made to Plaintiffs by . . . Defendant which included but are not limited to the following:Plaintiffs further alleged:
a. That . . . Defendant and/or its agents had reviewed the business plan of . . . Plaintiffs and that the same was a sound business plan capable of being successful.19. That at all relevant times . . . Plaintiffs relied upon the statements, assurances and inducements made by . . . Defendant and/or its agents to . . .
b. That the loans as put together initially were manageable loans and would be restructured as necessary to allow . . . Plaintiffs to continue the operation of the business to maximize the potential for success.
c. That . . . Defendants would [be] flexible and willing to work with . . . Plaintiffs as necessary to help insure the success of the venture and provide sufficient capital or restructuring of loans to enable the continuation of the enterprise through its up-fit and beginning phases, during which losses were expected.
d. That . . . Defendant was a community oriented bank who was very interested in projects of the type contemplated by . . . Plaintiff and wanted to work with them in every aspect throughout the life of the business venture to help promote its success.
Plaintiffs as being truthful.
. . . .
22. That upon information and belief, the acts and omissions on the part of . . . Defendant and/or its agents constituted fraud in the factum and as a direct and proximate result of the promises and inducements by . . . Defendant and/or its agents which are now contended by . . . Plaintiffs to have been fraudulent and misleading.
. . . .
23. Relying upon the promises and inducements of . . . Defendant through its agents, . . . individual Plaintiffs [Mr.] Allison and [Ms.] Allison-Story executed and delivered to . . . Defendant purported guarantees, copies of which are attached marked Exhibits "4" and "5" which are now contended by the individual Plaintiffs to have been without consideration and as a result of fraud and misrepresentation of the part of . . . Defendant and/or its agents.
24. That almost immediately after the entry into the loan agreement problems began at first with complaints from . . . Defendant and particularly from Mr. Gibson alleging that Mr. Vaught had "messed up the closing documents" and "if I ([Ms.] Allison[-Story]) did not sign more papers, they were going after Vaught."
25. That as problems began to manifest themselves, . . . Plaintiffs, as would any reasonable business person, looked at the possibility of establishing more than one banking relationship in order to insure the success of the business venture; however, upon learning that . . . Plaintiffs were even considering a deposit relationship at
another bank, . . . Plaintiffs were contacted by Mr. Gibson by a letter in which he very tersely stated to . . . Plaintiffs that all accounts had to be with Peoples Bank or he would consider recalling the loan. In the period between February 21, 2003, and April 29, 2003, Mr. Gibson continued his harassment which included sending a letter indicating that the loan was in default as a result of alleged failure to complete four (4) items listed and again threatened to recall the loan.
26. That at all relevant times . . . Plaintiffs attempted to do all within their power to insure that the loan was properly handled which included the arranging of a meeting on April 29, 2003, at Peoples Bank. . . .
27. That at the meeting on April 29, 2003, . . . Defendants through their agents, placed extreme pressure on . . . Plaintiffs to sign additional documents and told . . . Plaintiffs that, "if they did not sign the documents as requested, the bank would call the loans!" . . . Plaintiffs, expressed on numerous occasions to Mr. McNeely and other agents of . . . Defendants present that the loans needed to be redone in order to allow the business to survive and that, if they were not redone, the business and its ability to repay the loans would be placed in jeopardy.
28. That at the April 29, 2003, meeting, . . . Plaintiffs were assured that, if they would sign the documents that had been prepared by . . . Defendant's attorneys, the bank would "help them with their business and redo the loans so they could make it."
29. That again based upon the promises and assurances of . . . Defendant and its
agents, . . . Plaintiffs signed the documents that were presented with the understanding and belief that the notes would be redone to insure the survivability of the business; however that certainly was not the case. Almost immediately after the amended notes were signed, calls from . . . Plaintiffs to . . . Defendants went unanswered and requests for additional funding or redoing of the loans were ignored.
30. That shortly after the meeting, . . . Plaintiffs were advised that Mr. Gibson had retired and that John Duncan had now taken over the handling of this account. From the beginning of the handling of the account by Mr. Duncan, his attitude toward . . . Plaintiffs was rude, uncaring and demonstrated a desire to end the relationship regardless of the effect upon . . . Plaintiffs.
31. That the acts and omissions on the part of . . . Defendant through its agents interfered with the operation of the business, said acts included but are not limited to the following:Thus, the alleged fraud in this case was that Defendant falsely assured Plaintiffs that Defendant would take steps to ensure loan restructuring as well as other cooperative measures. Plaintiffs contend Defendant fraudulently induced them to enter into the 4 December 2002 loan agreement. Plaintiffs further alleged in their 6 August 2008 complaint that "almost immediately after the entry into the loan agreement[,] problems began[.]" Plaintiffs alleged that "shortly after the meeting [on 29 April 2003]," Defendant's agent "demonstrated a desire to end the relationship regardless of the effect upon . . . Plaintiffs." Reviewing the allegations in Plaintiffs' 6 August 2008 complaint, we hold it is clear that Plaintiffs discovered, or reasonably should have discovered, the alleged fraud no later than when they met with Defendant on 29 April 2003. To the extent any fraud on the part of Defendant was alleged to have occurred after 29 April 2003, we hold that, by that time, Plaintiffs reasonably should already have been on notice of Defendant's allegedly fraudulent activity. Thus, the statute of limitations for Plaintiffs' alleged fraud claim expired not later than 29 April 2007.
a. Making rude or threatening phone calls on a routine basis to . . . Plaintiffs which interfered with the operation of the business.
b. Making visits to the store during the hours of operation and discussing or attempting to discuss the matters of business in the presence of customers or other persons who were not involved in the management or operation of the business.
c. Failing to honor the promises and inducements made to . . . Plaintiffs.
d. Making false and misleading statements to . . . Plaintiffs about the Bank[']s intentions regarding the loans.
Plaintiffs contend that their claims are not barred by the statute of limitations because Defendant's original complaint was filed 30 August 2006. However, Plaintiffs' 16 July 2007 answer and counterclaims are the pertinent filings for this issue. See Pharmaresearch Corp. v. Mash, 163 N.C. App. 419, 426-27, 594 S.E.2d 148, 153-54 (2004) (holding that "counterclaims do not 'relate back' to the date the plaintiff's action was filed"). "[U]nder Rule 41, a plaintiff may 'dismiss an action that originally was filed within the statute of limitations and then refile the action after the statute of limitations ordinarily would have expired.'" Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 594, 528 S.E.2d 568, 571 (2000) (citation omitted). However, Plaintiffs' counterclaims were filed 16 July 2007. Thus, Plaintiffs' fraud claims are barred by the statute of limitations and the trial court did not err in granting Defendant's motion to dismiss as to Plaintiffs' fraud claim.
B. Breach of Fiduciary Duty
"For a breach of fiduciary duty to exist, there must first be a fiduciary relationship between the parties." Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001). Our Supreme Court has stated that a fiduciary relationship
has been broadly defined by this Court as one in which "there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence . . ., [and] 'it extends to any possible case in which a fiduciary relationship exists in fact, and in which there is confidence reposed on one side, and resulting domination and influence on the other.'"Id., 548 S.E.2d at 707-08 (emphasis in the original, citation omitted).
This Court has recognized that "an ordinary debtor-creditor relationship generally does not give rise to such a 'special confidence': '[t]he mere existence of a debtor-creditor relationship between [the parties does] not create a fiduciary relationship.'" Branch Banking and Trust Co. v. Thompson, 107 N.C. App. 53, 61, 418 S.E.2d 694, 699 (1992) (citation omitted). In Branch, our Court cautioned that "[t]his is not to say, however, that a bank-customer relationship will never give rise to a fiduciary relationship given the proper circumstances. Rather, parties to a contract do not thereby become each others' fiduciaries[.]" Id. (citation omitted).
In their 6 August 2008 complaint, Plaintiffs alleged no special confidence or relationship with Defendants. Plaintiffs did allege that "at all relevant times, . . . Defendant owed to . . . Plaintiffs a [f]iduciary duty to act in good faith in their dealings with . . . Plaintiffs." However, Plaintiffs did not allege under what circumstances that fiduciary duty arose. In their 6 August 2008 complaint, Plaintiffs also did not allege or suggest a unique relationship or "special confidence" in any way different from a typical debtor-creditor relationship. Likewise, there were no allegations that suggested that the relationship between the parties resulted in Defendant's having "'domination and influence'" over Plaintiffs. Dalton, 353 N.C. at 651, 548 S.E.2d at 708 (citation omitted). We find no error in the trial court's dismissal of Plaintiffs' breach of fiduciary duty claim.
C. Breach of Contract
"To state a claim for breach of contract, the complaint must allege that a valid contract existed between the parties, that defendant breached the terms thereof, the facts constituting the breach, and that damages resulted from such breach." Claggett v. Wake Forest University, 126 N.C. App. 602, 608, 486 S.E.2d 443, 446 (1997). In their 6 August 2008 complaint, Plaintiffs alleged the following under the heading "Breach of Contract":
62. All preceding paragraphs are
incorporated herein by reference as if fully set forth herein.
63. That at all relevant times, . . . Plaintiffs complied with the contract up until the time that . . . Defendant, through its fraudulent misrepresentations, acts and omissions breached the terms of the contract placing . . . Plaintiffs in the position of being unable to honor the contract.
64. That the acts and omissions on the part of . . . Defendant constitute a breach of contract.
65. That, as a direct and proximate result of the breach of contract, . . . Plaintiffs have suffered compensatory damages in an amount in excess of Ten Thousand Dollars ($10,000.00).
However, in reviewing Plaintiffs' 6 August 2008 complaint, we find Plaintiffs did not indicate which terms in which contracts Defendant was alleged to have breached. Nor did Plaintiffs indicate which facts constituted any such breach. Thus, the trial court did not err in dismissing Plaintiffs' breach of contract claim. See, e.g., Cantrell v. Woodhill Enterprises, Inc., 273 N.C. 490, 497, 160 S.E.2d 476, 481 (1968) ("In an action for breach of a building or construction contract—just as in any other contract case—the complaint must allege the existence of a contract between plaintiff and defendant, the specific provisions breached, the facts constituting the breach, and the amount of damages resulting to plaintiff from such breach."); see also RGK, Inc. v. Guaranty Co., 292 N.C. 668, 235 S.E.2d 234 (1977); Harrington v. Perry, 103 N.C. App. 376, 406 S.E.2d 1 (1991).
D. Tortious Interference With Contract
The elements of a claim for tortious interference with contract are:
"(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to the plaintiff."Embree Construction Group v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992) (citation omitted).
Plaintiffs' 6 August 2008 complaint contained the following allegations:
71. All preceding paragraphs are incorporated herein by reference as fully set forth herein.Plaintiffs' 6 August 2008 complaint contained no allegations concerning the existence or nature of the alleged contracts between Plaintiffs and their customers. Further, assuming arguendo there were such contracts, Plaintiffs did not allege that Defendant "'intentionally induce[d] the third person not to perform the contract[.]'" Embree, 330 N.C. at 498, 411 S.E.2d at 924 (citation omitted). Therefore, the trial court did not err in dismissing Plaintiffs' tortious interference with contract claim.
72. At all relevant times . . . Defendant and/or its agents knew or reasonable diligence should have known of the interaction between . . . [Stony Point] and its customers which constituted contracts; however, despite such knowledge . . . Defendant and/or its agents engaged in acts and omissions intended to interfere with which did in fact interfere with the contracts existing between [Stony Point] and its customers.
73. That in addition to the interference between . . . [Stony Point] and its customers by . . . Defendant . . . Defendant also engaged in direct interference with . . . Plaintiffs['] attempts to sale [sic] the subject property after the calling of the notes at the highest price possible by refusing to negotiate in good faith with perspective [sic] buyers choosing instead upon information and belief, to sale [sic] the property to someone favored by [Defendant] for a price less than the fair market value or the price that could have been obtained.
74. As direct and proximate result of the acts and omissions on the part of . . . Defendant and/or its agents . . . Plaintiffs suffered compensatory damages in an amount of excess of Ten Thousand Dollars ($10,000.00).
75. As direct and proximate result of the acts and omissions on the acts on the part of . . . Defendant and/or its agents . . . Plaintiff[s] suffered punitive damages in an amount of excess of Ten Thousand Dollars ($10,000.00).
Unfair and Deceptive Trade Practices
In their 6 August 2008 complaint, Plaintiffs alleged that "the acts and omissions on the part of . . . Defendant constitute[d] fraud and misrepresentation which are unfair and deceptive trade practices[.]" "[O]ur Court has consistently treated [unfair and deceptive trade practices] claims as separate and distinct from other claims with respect to statutes of limitations." Page v. Lexington Ins. Co., 177 N.C. App. 246, 250, 628 S.E.2d 427, 430 (2006). The statute of limitations for unfair and deceptive trade practices claims is four years. N.C. Gen. Stat. § 75-16.2 (2009). For unfair and deceptive trade practices claims based on fraud, the statute of limitations begins to run when "the fraud is discovered or should have been discovered with the exercise of reasonable diligence." Nash v. Motorola Communications and Electronics, 96 N.C. App. 329, 331, 385 S.E.2d 537, 538 (1989).
As already discussed, the fraud by Defendant alleged by Plaintiffs was "discovered or should have been discovered" on or about 29 April 2003. Thus, the statute of limitations would have expired on or about 29 April 2007. As Plaintiffs' counterclaims were not filed until 16 July 2007, Plaintiffs' unfair and deceptive trade practices claim is barred by the statute of limitations. Thus, the trial court did not err in dismissing this claim.
Affirmed.
Chief Judge MARTIN and Judge McCULLOUGH concur.
Report per Rule 30(e).