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NO. COA97-540 NORTH CAROLINA COURT OF APPEALS Filed: 3 November 1998 FIRST ATLANTIC MANAGEMENT, CORPORATION, Plaintiff, v. DUNLEA REALTY, CO., H. STEVEN HARRIS, and Defendants. JEFFREY L. DUNLEA,

Appeal by plaintiff and cross appeal by defendants from order entered 6 March 1997 by Judge James R. Strickland in New Hanover County Superior Court. January 1998. Ward and Smith, P.A., by Shelli Stoker Stillerman and John M. Martin, for plaintiff-appellant. Shanklin & McDaniel, L.L.P., by Kenneth A. Shanklin and Susan McDaniel, for defendants-appellees. JOHN, Judge. Plaintiff appeals the trial court's denial of its motion for partial summary judgment and allowance of defendants' motion for partial summary judgment on plaintiff's claim of unfair and deceptive trade practices. Defendants appeal denial of their Heard in the Court of Appeals 14

motion for partial summary judgment alleging res judicata, and denial of their motion to strike certain affidavits offered by plaintiff. We reverse the trial court's grant of partial summary

judgment to defendants and dismiss the remaining appeals. Pertinent facts and procedural history include the following: In October 1994, James A. Holmes, III (Holmes) and F.

Spruill Thompson (Thompson), officers and directors of plaintiff First Atlantic Management Corporation (First Atlantic), began negotiations with defendant Dunlea Realty Company (Dunlea Realty), acting through defendant H. Steven Harris (Harris), for the purchase of certain Dunlea Realty assets. The latter

comprised property management accounts (the accounts) consisting of the right to receive payment from owners of rental property in exchange for management services. On 23 February 1995, First Atlantic and Dunlea Realty entered into an Offer to Purchase and Contract regarding the accounts. Although a 28 February 1995 closing date was

originally agreed upon, closing in actuality took place 4 April 1995. At that time, an Acquisition Agreement (Agreement) was

executed, which included a listing of the accounts being sold to First Atlantic. However, shortly before 4 April 1995, Harris was contacted by Ed Taylor (Taylor), president of Property Management Incorporated (PMI), a competitor of Dunlea Realty. During a 3

April 1995 telephone conversation, Taylor informed Harris that certain of the accounts desired to engage the services of PMI. Harris requested that information concerning the affected accounts be telefaxed to his office. However, Harris did not

reveal to representatives of First Atlantic that some of the accounts involved in the asset sale were seeking to secure other property management services. Several hours following conclusion of the closing on 4 April 1995 and after receiving a telefax list of accounts transferring

to PMI, Harris went to plaintiff's offices and disclosed the pending loss of certain accounts including, according to plaintiff, "the Abee Account which . . . represented a substantial amount of the monthly revenues of the entire property management accounts." On 3 May 1995, plaintiff filed suit alleging breach of contract, fraudulent misrepresentation and nondisclosure, and unfair and deceptive trade practices. Plaintiff thereafter moved

for partial summary judgment on the issue of unfair and deceptive trade practices. The trial court denied the motion, and

plaintiff voluntarily dismissed its action without prejudice on 3 April 1996. Plaintiff reinstituted suit 25 April 1996 alleging breach of contract, fraudulent misrepresentation and nondisclosure, and unfair and deceptive trade practices under N.C.G.S.

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