In Re Baby Boy Shamp

347 S.E.2d 848 (1986)

In re BABY BOY SHAMP, a minor child.

No. 8626SC115.

Court of Appeals of North Carolina.

September 2, 1986.

*851 William F. Burns, Jr., Charlotte, for intervenors, appellees.

Ruff, Bond, Cobb, Wade & McNair by Moses Luski and William H. McNair, Charlotte, for respondent, appellant Mecklenburg County Dept. of Social Services.

Gillespie & Lesesne by Donald S. Gillespie, Jr., Charlotte, for respondent, appellant guardian ad litem for the minor child.

HEDRICK, Chief Judge.

By Assignments of Error Nos. 3 and 4, the respondents, appellants, the Department and the guardian ad litem, contend that the trial court erred by failing to dismiss case which was patently devoid of proper service of process so that personal jurisdiction was lacking." Respondents argue the trial court lacked personal jurisdiction because the parents did not have summons issued and served upon the parties in accordance with G.S. 1A-1, Rule 4. Respondents' contentions are without merit.

This adoption proceeding was instituted when prospective adopting parents filed a petition for adoption in the office of the clerk of superior court pursuant to G.S. 48-15. The natural parents of the child intervened in these proceedings by making a motion to intervene pursuant to G.S. 1A-1, Rule 24. This motion was served upon the attorneys for the guardian ad litem and the Department by depositing a copy of the motion in the United States mail, in accordance with the provision of G.S. 1A-1, Rule 5. A party who intervenes pursuant to Rule 24 is not required to issue a summons and complaint pursuant to G.S. 1A-1, Rule 4. Kahan v. Longiotti, 45 N.C.App. 367, 263 S.E.2d 345, disc. rev. denied, 300 N.C. 374, 267 S.E.2d 675 (1980). Service pursuant to G.S. 1A-1, Rule 5 of the motion accompanied with the pleading is sufficient service upon the party against whom relief is sought or denied in the intervenor's pleading and is sufficient process to acquire jurisdiction over the party if all other requisites for jurisdiction are met. Id. Therefore, in the present case, the intervenor's service of the motion to intervene on the appellants was proper. Respondents argue that the motion was not served in accordance with G.S. 1A-1, Rule 5 upon the parties petitioning to adopt the child. Since these petitioners did not appeal to this Court, this issue is not properly presented by this appeal.

Respondents next assign error to the trial court's denial of their 12(b)(6) motions to dismiss for failure to state a claim upon which relief can be granted and their motions *852 for summary judgment. These assignments of error present no question for review. Harris v. Walden, 314 N.C. 284, 333 S.E.2d 254 (1985); Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755 (1986).

Respondents contend that the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict on the issue of fraud. Respondents also assign error to the trial court's instructions on fraud. Respondents argue that the evidence was insufficient to establish the elements of fraud and therefore, that the consent forms executed by the Shamps were irrevocable.

Pursuant to G.S. 48-9, the parents of a child may, in writing, surrender the child to a director of a county department of social services and consent to the general adoption of the child. G.S. 48-11 provides, in pertinent part, that such consent shall not be revocable after thirty days from the date of the giving of consent. After the statutory period terminates, the right of the natural parent to revoke terminates, absent a showing of fraud in obtaining the consent. In re Kasim, 58 N.C.App. 36, 293 S.E.2d 247, disc. rev. denied, 306 N.C. 742, 295 S.E.2d 478 (1982). The elements of fraud are as follows:

(1) That defendant made a representation relating to some material past or existing fact; (2) that the representation was false; (3) that when he made it, defendant knew that the representation was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that defendant made the representation with intention that it should be acted upon by plaintiff; (5) that plaintiff reasonably relied upon the representation and acted upon it; and (6) that plaintiff thereby suffered injury.

Keith v. Wilder, 241 N.C. 672, 675, 86 S.E.2d 444, 446 (1955) (citations omitted).

Respondent Department contends that Clifford Shamp testified that "he could not remember Laverne King making any representations to him on June 13, 1984, which effectively vitiates his fraud cause of action." Respondent argues that because Clifford Shamp testified that he could not remember Ms. King's statements at the time of the trial, there is no evidence that any misrepresentation was made to him. This contention is without merit. Tammy Shamp, Clifford Shamp's wife, and his mother testified that Clifford Shamp was present in his parents' home on 13 June 1984 when Ms. King made statements relating to his parents' chances of being able to adopt his child and that he participated in the discussion regarding the adoption. This evidence is clearly sufficient for the jury to find that Ms. King made representations to Clifford Shamp regarding the adoption of his child by his parents.

Respondent Department contends that the record contains no evidence of a misrepresentation of a past or existing fact, but that the statements of Ms. King were merely statements of opinion relating to future prospects. Respondent Department and respondent guardian ad litem further contend that there is no evidence that the statements were false or that Ms. King made them with the intent to deceive the parents of the child. We disagree with respondents' contentions.

To constitute fraud, the misrepresentation must relate to a subsisting or ascertainable fact, as distinguished from a matter of opinion or a representation relating to future prospects. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974). Generally, the statement must be definite and specific, but the specificity required depends upon the tendency to deceive under the circumstances. Id. In Ragsdale, our Supreme Court held that statements by the plaintiff that a corporation was a "gold mine" and a "going concern," where plaintiff, as president of the corporation, had peculiar knowledge of the facts and knew that the business had lost money in recent months, presented a jury question as to whether the representations were mere expressions of opinion or statements of material fact. The Court further held that the plaintiff had the duty to make a full disclosure *853 of the financial conditions of the corporation, because once he assumed to speak, he had the duty to make a full disclosure of all matters discussed. Id.; see also, Shaver v. Monroe Construction Co., 63 N.C.App. 605, 306 S.E.2d 519 (1983), disc. rev. denied, 310 N.C. 154, 311 S.E.2d 294 (1984).

Mere unfulfilled promises, generally, cannot be the basis for an action in fraud. Williams v. Williams, 220 N.C. 806, 18 S.E.2d 364 (1942). If, however, the promise is made to induce the promissee to act and with no intention of carrying it out, this being a misrepresentation of the promissor's state of mind which is a material fact, it will support an action for fraud. Id.

In the present case, the parents introduced evidence tending to show that Ms. King told them that the grandparents had a "fifty/fifty chance of being able to adopt Bobby, but, off the record, since they were family, there shouldn't be any problem, because Social Services always tries to keep the baby in the family." This statement, together with evidence tending to show that Ms. King had knowledge of the Department's adoption procedures and of her impact on the adoption of the Shamp child, presented a jury question as to whether this statement about the grandparents' chances of adopting the child was an expression of an opinion or a statement of material fact. The evidence in the record tending to show that Ms. King had an opinion at the time of the representation that the grandparents were not suitable to adopt the child and knew that this opinion would be considered by the Department in making a decision, is sufficient for the jury to find that the representation was false. Once Ms. King assumed to speak to the Shamps regarding the grandparents' chances of adopting the child, she had the duty to make a full disclosure of facts relating to this matter. See, Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974). This evidence is also sufficient for the jury to find that Ms. King made the statement to induce the Shamps to execute the consent forms, with the intention of relating to the Department adoption committee her opinion that the grandparents should not be allowed to adopt, thus misrepresenting her state of mind. Furthermore, this evidence also tends to show that Ms. King's representation that the Department "always tries to keep the baby in the family," which was clearly a representation of an existing and material fact, was false. We hold, therefore, that the evidence is sufficient to support findings that Ms. King made a misrepresentation of an existing fact, with knowledge that it was false and with the intent to deceive the Shamps. We have examined the instructions to the jury by the trial court on these issues and hold that they were proper.

Respondent Department further contends that the evidence was insufficient for the jury to find that the parents could have reasonably relied upon the statements of Ms. King, because they both signed written consent agreements which gave the director of social services absolute discretion over the placement of the child, without reading them. Respondent argues that as a matter of law, the parents had no right to rely on the representation of Ms. King. This contention is without merit. One who signs a written instrument is "under a duty to ascertain its contents, and in the absence of a showing that he was willfully misled or misinformed by the defendant as to these contents, or that they were kept from him in fraudulent opposition to his request, he is held to have signed with full knowledge and assent as to what is therein contained." Williams v. Williams, 220 N.C. 806, 809-10, 18 S.E.2d 364, 366 (1942) (citations omitted). Whether a prudent person, under similar circumstances, would have signed an instrument without reading it, is a question of fact for the jury. Cowart v. Honeycutt, 257 N.C. 136, 125 S.E.2d 382 (1962).

In the present case, there is evidence tending to show the following: Tammy Shamp first contacted the Department to get financial assistance and counseling because she and her husband were using *854 drugs and needed help taking care of their baby. Ms. King arranged to meet with the parents and grandparents of the child in the grandparents' home to discuss the family situation. Ms. King had superior knowledge to that of the parents, who were seventeen years old at that time, of the adoption procedures of the Department and knew that she would have input into the decision about placing the child for adoption. At the meeting, Ms. King asked each parent whether they wanted the grandparents to be allowed to adopt the child and they responded affirmatively. While purporting to explain the adoption procedures of the Department to the Shamps, she told them that the grandparents, who had temporary custody of the child, should have no problem in adopting the child because "Social Services always tries to keep the baby in the family." Ms. King did not tell them that anyone other than the parents could be considered for the adoption. There is also evidence tending to show that when the parents arrived at the Department to execute the consents on 15 June 1984, Ms. King briefly went over the forms with them and told them that the forms were "a formality that had to be signed in order for Barbara and Clifford Shamp [the grandparents] to file for adoption." Under these circumstances, clearly there is sufficient evidence for the jury to find that a prudent person could have reasonably relied on Ms. King's statements concerning the adoption process and the contents of the forms and signed the forms without reading them.

The final contention of the respondent guardian ad litem is that the trial court erred in failing to give specific requested instructions relating to adoption laws in North Carolina and the duty of a person signing a legal document to read it. This contention is without merit. The requested instructions were given in substance, although not in the precise language requested by the guardian ad litem. Therefore, the trial court did not err in failing to give the requested instruction. King v. Higgins, 272 N.C. 267, 158 S.E.2d 67 (1967).

For the foregoing reasons, we hold that the trial court properly denied respondents' motions for directed verdict and judgment notwithstanding the verdict and properly instructed the jury. The judgment appealed from is

Affirmed.

WEBB and WELLS, JJ., concur.