This case involves defendant's sale of commercial land ("Out Parcel Number 5") to plaintiff. Defendant initially purchased a tract of land known as the Randolph Mall site, which included Out Parcel Number 5, to build a shopping mall. Defendant hired ATEC Associates to perform a preliminary subsurface investigation and a geotechnical engineering evaluation. ATEC's 13 February 1980 report referred to "two areas of existing fill which apparently resulted from previous grading on the sight. These areas are suspected of having buried organic material including trees and tree stumps." ATEC's second report revealed the precise location and reaffirmed ATEC's earlier recommendation to "undercut" and "backfill" the areas. On 1 June 1980, defendant contracted to have the unsuitable materials removed. During grading, the lot was "excavated, undercut, and backfilled" to a level consistent with the anticipated floor level of the mall. The out parcels were then smooth graded and sown with grass.
The trial judge made the following findings of fact concerning plaintiff's later purchase of the land:
. . . .
After the restaurant opened, cracks appeared in the walls. Plaintiff hired an engineering firm to analyze the damage. The firm's test conclusions found the structural damage directly resulted from settlement of the soil beneath the restaurant, which was partially caused by decomposition of the organic material or trash.
On 24 May 1989, plaintiff filed a complaint against defendant alleging fraud, negligent misrepresentation, and unfair and deceptive trade practices. The parties waived a jury trial. The trial court heard evidence from both parties on 14 January 1991. Defendant moved for a directed verdict.
On 20 March 1991, the trial court, treating defendant's motion as a motion for involuntary dismissal pursuant to N.C.G.S. 1A-1, Rule 41(b), granted defendant's motion and dismissed the action with prejudice. From this judgment, plaintiff appeals.
EAGLES, Judge.
Plaintiff contends that the trial court did not base its findings on competent evidence and erred by granting defendant's motion for involuntary dismissal with prejudice. After a careful examination of the record, we disagree and affirm.
The standard regarding involuntary dismissal is as follows:
"When a motion to dismiss pursuant to [N.C.G.S. 1A-1, Rule] 41(b) is made, the judge becomes both the judge and the jury and he must consider and weigh all competent evidence before him." Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc.,
305 N.C. 633, 640,
291 S.E.2d 137, 141 (1982). The trial judge in a non-jury case does not weigh the evidence in the light most favorable to the plaintiff as he does on a motion for directed verdict in a jury trial. Id. at 638, 291 S.E.2d at 13. Dismissal with prejudice pursuant to a Rule 41(b) motion is a judgment on the merits, subject to the usual rules of res judicata. Barnes v. McGee,
21 N.C. App. 287, 289,
204 S.E.2d 203, 205 (1974).
Progressive Sales, Inc. v. Williams, Willeford, Boger, Grady Davis, 86 N.C. App. 51, 55, 356 S.E.2d 372, 375 (1987).
Plaintiff argues that its claims of actionable fraud and negligent misrepresentation should have survived the motion for involuntary dismissal because it met its burden of proof on all essential elements. We disagree.
First, plaintiff alleges that defendant's nondisclosure was fraudulent because defendant "had at least constructive knowledge" of the presence of the organic materials from the 13 February 1980 report by ATEC. In Rowan County Board of Education v. U.S. Gypsum Co., 332 N.C. 1, 17, 418 S.E.2d 648, 658-59 (1992), our Supreme Court stated:
The essential elements of fraud are: "(1) [F]alse representation or concealment of a material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party." Terry v. Terry,
302 N.C. 77, 83,
273 S.E.2d 674, 677 (1981) (quoting Ragsdale v. Kennedy,
286 N.C. 130, 138,
209 S.E.2d 494, 500 (1974)); accord Cofield v. Griffin,
238 N.C. 377, 379,
78 S.E.2d 131, 133 (1953).
Additionally, plaintiff's reliance must be reasonable. Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 594, 394 S.E.2d 643, 647 (1990), rev. denied, 328 N.C. 89, 402 S.E.2d 824 (1991); Myers Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 568, 374 S.E.2d 385, 391 (1988), reh'g denied, 324 N.C. 117, 377 S.E.2d 235 (1989). Here, plaintiff showed neither defendant's intent to deceive nor plaintiff's own reasonable reliance. We note that this was a transaction involving commercial real estate between two commercial parties. Accordingly, defendant owed no duty of disclosure to plaintiff. Libby Hill Seafood Restaurants, Inc. v. Owens, 62 N.C. App. 695, 699, 303 S.E.2d 565, 568, rev. denied, 309 N.C. 321, 307 S.E.2d 164 (1983).
"An action in fraud for misrepresentations regarding realty will lie only where the purchaser has been fraudulently induced to forego inquiries which he otherwise would have made. Thus, the representation generally must be definite and specific." Id. at 698, 303 S.E.2d at 568 (citations omitted). The evidence before the trial court showed that prior to its purchase, plaintiff requested and received from defendant a topographical map. This map contained both the original and current soil grades, including a specific indication that fill had been placed upon certain portions of the parcel.
This map served to put plaintiff on notice that a further investigation of the soil would be prudent before beginning construction. Instead, plaintiff chose to rely upon the mere appearance of the land, which it alleges appeared "ready-to-build." The trial court correctly found that plaintiff's reliance was not reasonable and that plaintiff was contributorily negligent in not performing further investigation. The agreement for purchase and sale gave plaintiff access to the property to perform tests. Furthermore, plaintiff's president, Cecil Nash, testified that such pre-construction soil tests had not been performed in the purchase of other properties by plaintiff, because "I never saw a need to do it."
Where "the purchaser has full opportunity to make pertinent inquiries but fails to do so through no artifice or inducement of the seller, an action in fraud will not lie." Id. at 698, 303 S.E.2d at 568. Here, plaintiff had a full opportunity to make pertinent inquiries and failed to do so through no inducement of the seller. By the exercise of reasonable diligence prior to its purchase, plaintiff could have discovered the problem and protected its interests accordingly. Similarly, the negligent misrepresentation claim fails because plaintiff has not established that defendant has breached any duty of care it owed as a seller of commercial real estate. Id. at 699, 303 S.E.2d at 568-69.
Finally, plaintiff's claim for unfair and deceptive trade practices pursuant to N.C.G.S. 75-1.1 was appropriately dismissed. "In essence, a party is guilty of an unfair act or practice when it engages in conduct that amounts to an inequitable assertion of its power or position." Libby Hill, 62 N.C. App. at 700, 303 S.E.2d at 569. We find no such conduct here and hold that the trial court properly dismissed the unfair and deceptive trade practices claim.
Affirmed.
Judges JOHNSON and PARKER concur.