Uzzell v. Integon Life Ins. Corp.

337 S.E.2d 639 (1985)

J. Taylor UZZELL, Jr., Richard M. Hager, Business and Estate Conservation, Inc. d/b/a BEC, Inc. v. INTEGON LIFE INSURANCE CORPORATION, Leonard T. Tippett, Robert L. Brantley.

No. 8511SC117.

Court of Appeals of North Carolina.

December 17, 1985.

*642 Harrington & Gilleland by Robert B. Gilleland, Sanford, for plaintiff-appellant Uzzell.

Cameron, Hager & Kinnaman, P.A. by Richard B. Hager, Sanford, for plaintiff-appellant Hager.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by James K. Dorsett, III, Raleigh, for defendant-appellee Integon Life Ins. Corp.

Smith, Moore, Smith, Schell & Hunter by Alan W. Duncan, Greensboro, for defendant-appellee Tippett.

PARKER, Judge.

At the outset, we note that appellants' claims based on G.S. 75-1.1 are not before this court. Appellants' brief made no argument and cited no authority in support of these claims; therefore, they are deemed abandoned. Rule 28(b)(5), Rules of App.Proc. Appellants assign as error (i) the entry of summary judgment for Integon on Hager and Uzzell's claims based on fraud and (ii) the entry of summary judgment for Tippett on BEC's claim premised on malicious interference with BEC's contract with Integon.

In order to prevail when moving for summary judgment, the moving party must establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law when all factual inferences arising from the evidence are taken in the light most favorable to the nonmoving party. Speck v. North Carolina Dairy Foundation, Inc., 311 N.C. 679, 319 S.E.2d 139 (1984).

Appellants' surviving claim against appellee Integon is based on fraud and misrepresentations inducing them to terminate their old contracts, sacrifice substantial benefits, and enter into the new contracts. The essential elements of fraud in the inducement were set out by our Supreme Court in Johnson v. Phoenix Mutual Life Insurance Company, 300 N.C. 247, 266 S.E.2d 610 (1980).

To make out a case of actionable fraud, plaintiffs must show: (a) that defendant made a representation relating to some material past or existing fact; (b) that the representation was false; (c) that defendant knew the representation was false when it was made or made it recklessly without any knowledge of its truth and as a positive assertion; (d) that defendant made the false representation with the intention that it should be relied upon by plaintiffs; (e) that plaintiffs reasonably relied upon the representation and acted upon it; and (f) that plaintiffs suffered injury.

300 N.C. at 253, 266 S.E.2d at 615.

Appellants' claim that James Perry, regional director for Integon, and appellee *643 Tippett represented to them that the appellants, under their new contract, could channel business from other insurance brokers in Sanford through their contract with Integon. This, in effect, would have given appellants the authority to sell Integon insurance products through any person of their choice, so long as that person was duly licensed to sell insurance by the State of North Carolina. Appellants assert that this representation was material to their acceptance of the new contract and was relied upon by them when surrendering the benefits accumulated under their old contracts.

When the evidence available for consideration on the summary judgment motion is viewed in the light most favorable to appellants, it falls short of establishing the elements of fraud as outlined in Johnson, supra. Appellants have made no showing that the asserted representation was false. Even if such a representation were made, there were never any representations made as to specific individuals being approved to sell Integon products. The evidence shows that it was made clear throughout the discussions between the parties that Tippett and Integon would continue to require that persons selling Integon products be approved by Tippett before any business from them would be accepted. The general representation made by Integon that other persons could channel business through appellants for Integon was not false merely because Integon failed to approve specific individuals for selling Integon products. Moreover, the evidence is undisputed that Tippett advised Uzzell and Hager, before they signed the new contracts, that he would not approve the person around whom most of the controversy centered.

Appellants in this case have failed to present a sufficient forecast of evidence to refute the appellees' showing that no genuine issue of material fact exists as to an essential element of appellants' claim for fraud. In a claim for relief based on fraud, summary judgment for defendant (appellees here) is proper where the forecast of evidence shows that even one of the essential elements of fraud is missing. E.g., Briggs v. Mid-State Oil Co., 53 N.C. App. 203, 207, 280 S.E.2d 501, 504 (1981). In the case at bar, defendant-appellees' forecast of evidence showed that there was no genuine issue of material fact as to the falsity of the representation. As this forecast was not refuted by an adequate forecast from plaintiff-appellants, defendant Integon was entitled to summary judgment as a matter of law on the claim for fraud. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975).

The same is true of appellants' surviving claim for malicious interference with contract against defendant Tippett. The essential elements of this tort are that (i) a valid contract existed between plaintiff and a third person; (ii) defendant had knowledge of such contract; (iii) defendant intentionally induced the third person not to perform his contract with plaintiff; and (iv) that defendant acted without justification. Childress v. Abeles, 240 N.C. 667, 84 S.E.2d 176 (1954). The facts viewed in the light most favorable to appellants establish the existence of the first three elements. However, there is no genuine issue of material fact as to the element of justification. The evidence is uncontroverted that Tippett was responsible for the recruiting of agents in the Sanford area. Part of his job was to recommend that certain persons be retained as agents or be terminated. Clearly, he acted within the scope of his authority in recommending to Integon that appellants' contracts be terminated for violating the express policy of Tippett that certain persons not be allowed to sell Integon products and channel that business through BEC. Appellants made no forecast of evidence to rebut Tippett's showing of justificationthat use of these individuals was causing dissent among the other agents under Tippett and that the policies sold by those unapproved individuals were being cancelled after short periods, causing both personal financial loss on account chargebacks to Tippett and business losses for Integon. Tippett had a legitimate business *644 interest to protect by assuring that people selling Integon products under his jurisdiction were reputable, reliable and able to meet company standards. Appellants were warned by Tippett that he considered the use of these individuals as grounds for terminating appellants' contracts. The contracts, in writing, were terminable at will. There is no genuine issue of material fact as to the existence of justification for Tippett's actions. Appellee Tippett was entitled to summary judgment as a matter of law.

The trial court properly granted Tippett and Integon's motions for summary judgment.

Affirmed.

JOHNSON and EAGLES, JJ., concur.