ROBERT TAYLOR and SERINA A. TAYLOR, Plaintiffs v. L.R. GORE, NELSON SOLES, SOLES and WALKER, P.A., BAY CIRCLE REALTY, and WILMA MURPHY, DefendantsNO. COA03-219Filed: 18 November 20031. Agency–real estate seller–liable for agent’s actsA real estate seller was liable as the principlal for the actions of the agent, even though the claims arose from the delivery of a survey to plaintiffs.2. Fraud–real estate sale–fraudulent misrepresentation–negligent misrepresentation–summary judgmentSummary judgment was properly granted for defendant seller and defendant real estate agent on a fraudulent misrepresentation claim arising from a real estate sale based upon defendants’ representation to the buyers that none of the property was in a flood zone where defendants’ affidavits that they did not know the property was in a flood zone negated the element of intent to deceive, and plaintiffs did not produce conflicting evidence. Furthermore, summary judgment was also properly entered for defendants on plaintiffs’ negligent misrepresentation claim where defendants’ affidavits showed that they relied upon a survey of the property which stated that the property was not in a flood zone.3. Contracts–real property sales–mistake of fact–flood zoneThe trial court incorrectly granted defendant Gore’s motion for summary judgment on a mistake of fact claim rising from the sale of land in a flood zone. Plaintiff’s allegation of mistakeof fact based on the representations of the seller and his agents was sufficient to state a claim, and there were genuine issues of material fact such as whether the mistake was unilateral or mutual and whether it affected the essence of the contract.Appeal by plaintiffs from orders entered 16 September 2002 and 17September 2002 by Judge Wiley F. Bowen in Columbus County SuperiorCourt. Heard in the Court of Appeals 9 October 2003.Jeffcoat, Pike & Nappier, L.L.C., by Joel T. Gibson, III, for plaintiffs-appellants.Hedrick & Morton, L.L.P., by B. Danforth Morton, for defendants-appellees Bay Circle Realty and Wilma Murphy.William E. Wood, for defendant-appellee L.R. Gore.CALABRIA, Judge.Robert Taylor and Serina A. Taylor (“plaintiffs”) appeal the 16 and 17September 2002 orders granting summary judgment for defendants BayCircle Realty, Wilma Murphy (“Murphy”) and L.R. Gore (“Gore”) (collectively“defendants”). Plaintiffs assert defendants failed to show there is no genuineissue of material fact, and therefore the trial court erred in granting theirmotions for summary judgment. We affirm the summary judgment fordefendants Bay Circle Realty and Murphy, and reverse as to defendant Gore.In April 1999, plaintiffs purchased a 15.26 acre plot of land from Gore.Murphy, on behalf of Bay Circle Realty, served as Gore’s real estate agent.Prior to the sale, Murphy gave plaintiffs a survey of the property that stated“SUBJECT PROPERTY IS NOT IN A FEDERAL (HUD) DESIGNATED FLOODHAZARD AREA.” In July 2001, plaintiffs sought to develop the land anddiscovered it was not suitable because a portion of the property was, in fact,located in a flood zone. In February 2002, plaintiffs filed suit against defendants. Plaintiffsalleged the contract was based on a mistake of fact that the property wasnot located in a flood zone, and since this mistake is substantial and affectsthe essence of the contract, the contract should be rescinded. Plaintiffsfurther alleged defendants Murphy and Bay Circle Realty breached their dutyto communicate truthful information by providing plaintiffs with an incorrectsurvey indicating the property was not in a flood zone, and by failing toadvise plaintiffs to acquire their own survey because of the hazards of relyingon any survey supplied by a seller. Finally, plaintiffs alleged defendantsfailed to disclose that the property was in a flood zone and misrepresentedthat it was not in a flood zone.1Defendants moved for, and obtained, summary judgment by relying onaffidavits of Murphy and Gore stating that prior to the sale they did not know,nor was it suggested, that the property was in a flood zone, and had theyknown they would have communicated the information to plaintiffs. Plaintiffsmoved to set aside the judgment, which the court denied. Plaintiffs appealasserting defendants were not entitled to summary judgment because lackof actual knowledge does not establish a lack of a genuine issue of materialfact for either the misrepresentation claims or the mutual mistake claim.Summary judgment is proper when “the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to any material factand that any party is entitled to a judgment as a matter of law.” N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001). The evidence is considered in the light mostfavorable to the non-moving party, and the moving party bears the burden ofestablishing no triable issue of material fact remains. Bunn Lake Prop.Owner's Ass'n, Inc. v. Setzer, 149 N.C. App. 289, 295, 560 S.E.2d 576, 580(2002). I. Misrepresentation Claims[1] First, we note that Gore, as Murphy’s principal, is liable for Murphy’sactions. MacKay v. McIntosh, 270 N.C. 69, 72-73, 153 S.E.2d 800, 803 (1967)(“‘[a principal] is bound by the agent's material representations of fact to thesame extent as if he had made them himself.’”). Accordingly, although the1Plaintiffs’ claims against surveyors, defendants Nelson R. Soles and Soles and Walker, P.A., for breach of duty of care were voluntarily dismissed without prejudice on 2 December 2002.claims stem from Murphy’s delivery of the survey to plaintiffs, Gore is liablefor Murphy’s actions and representations. Therefore, we address thesedefendants jointly. [2] To prove a claim of fraudulent misrepresentation, “the partyasserting it must show (i) false representation or concealment of a materialfact, (ii) reasonably calculated to deceive, (iii) made with intent to deceive,(iv) which does in fact deceive, (v) resulting in damage to the injured party.”Deans v. Layton, 89 N.C. App. 358, 366-67, 366 S.E.2d 560, 565-66 (1988).“A
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