The opinion
Judge CLARK
dissenting.
The majority concludes that Mullins of Cameron-Brown falsely represented to the KVC partners that “substitution would be no problem.”
Assuming that this conclusion is supported by the depositions of the partners and that it was a representation of subsisting fact rather than an opinion or promissory representation, it must be considered in light of the circumstance that Cameron-Brown was a loan broker without any duty to solicit and obtain tenants to occupy space in the Kerners Village project. Nor is there anything in the representation that would relieve the KVC partners of the duty to make a reasonable effort to obtain tenants acceptable to Phoenix. Subsequent to the so-called misrepresentation Phoenix did allow Pic-’N-Pay as a substitution for Sears with no problem to the partners. The statement in the majority opinion that “it cannot be said as a matter of law Mullins’ alleged assurances regarding the availability of substitutions” (emphasis added) indicates to me that the representation was interpreted to mean that acceptable tenants were readily available rather than that acceptable tenants obtained by the partners could be substituted with ease or with no problem. That the partners did not find such tenants available does not have the retroactive effect of making Mullins’ statements a misrepresentation which would constitute an element of actual fraud. Nor does the failure of the partners to find acceptable substitute tenants create a breach by Mullins of a fiduciary duty to disclose all material facts so as to constitute constructive fraud. It is my opinion that all defendants carried the burden of establishing that there was no *224 material issue of facts on plaintiffs’ claims for fraud or for violation of G.S. 75-1.1, and I would affirm the summary judgment in favor of all defendants.