Abernathy v. Ralph Squires Realty Co., Inc., 8119DC365

• Citation: 55 N.C.App. 354,285 S.E.2d 325
• Decision Date: 05 January 1982
• Docket Number: No. 8119DC365,8119DC365
• Parties: Lester Taylor ABERNATHY and Nancy A. Abernathy, his wife v. RALPH SQUIRES REALTY CO., INC.
• Court: Court of Appeal of North Carolina (US)

Page 325

285 S.E.2d 325

55 N.C.App. 354

Lester Taylor ABERNATHY and Nancy A. Abernathy, his wife v. RALPH SQUIRES REALTY CO., INC.

No. 8119DC365.

Court of Appeals of North Carolina.

Jan. 5, 1982.

Grant & Hastings, P. A. by Randell F. Hastings, Concord, for plaintiffs-appellants.

Parham, Helms & Kellman by James H. Morton, Charlotte, for defendant-appellee.

BECTON, Judge.

The sole issue for our determination is whether the trial court erred in allowing defendant's motion for a directed verdict.

Plaintiffs elected to try their case on "unfair or deceptive acts or practices" theories. G.S. 75-1.1. Whether the facts found by the jury regarding defendant's conduct constitute a violation of G.S. 75-1.1 is a question of law for the trial court's determination. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975).

In the instant case the question presented by defendant's motion for a directed verdict was whether the evidence, considered in the light most favorable to the plaintiffs, was sufficient to show that defendant engaged in unfair and deceptive trade practices in its business dealings with the plaintiffs. See Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). We conclude that the evidence was not sufficient for submission to the jury.

The concept of unfair and deceptive trade practices has been an elusive one in our courts. The statute does not define the terms "unfair" or "deceptive," and case law, until recently, has shed little light on their meanings. References to the same language in the Federal Trade Commission (FTC) Act, 15 U.S.C. § 45(a)(1), have been made. See Johnson v. Insurance Co., 300 N.C. 247, 266 S.E.2d 610 (1980); Hardy v. Toler. In Johnson, the Supreme Court, noting the broad language of the FTC Act, stated that "[w]hat is an unfair or deceptive trade practice usually depends upon the facts of each case and the impact the practice has in the marketplace." [Citations omitted.] 300 N.C. at 262-63, 266 S.E.2d at 621. The Court went on to define an unfair practice as one which "offends established public policy as well as ... [one which] is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." [Citations omitted.] Id. at 263, 266 S.E.2d at 621. A deceptive practice is one which has the "capacity or tendency to deceive;" proof of actual deception is not necessary. Id. at 265, 266 S.E.2d at 622. "In determining whether a representation is deceptive, its effect on the average consumer is considered." Id. at 265-66, 266 S.E.2d at 622.

With these definitions in mind, we have reviewed the evidence in the light most favorable to plaintiffs, and we have paid particular attention to evidence highlighted in plaintiffs' arguments. First, plaintiffs emphasize that, if their evidence were believed, defendant altered the contract in which plaintiffs agreed to sell defendant the Delganey house, so that instead of reading "50% of net proceeds," it read "50% of net proceeds (expenses including closing costs, mortgage payments, grass cutting, general maintenance, etc.) at closing." Assuming that defendant did alter the contractual language by adding the parenthetically noted items, we do not find that the alteration changed the import of the term "net proceeds." Equally important, the expenses incurred in selling the Delganey property were charged equally against defendant's potential profit and it, therefore, behooved defendant none to incur unnecessary expenses in order to sell the house.

Had the plaintiffs pursued their contract theory, the jury might have been called upon to determine whether the contract was altered and, if so, what the parties intended by the term "net proceeds." Plaintiffs, however, misinterpreting Marshall v. Miller, 47 N.C.App. 530, 268 S.E.2d 97 (1980), petition for disc. review by plaintiffs denied 301 N.C. 401, 274 S.E.2d 226 (1980), petition by Attorney General for rehearing allowed 301 N.C. 721, 274 S.E.2d 229 (1981), modified and affirmed 302 N.C. 539, 276 S.E.2d 397 (1981), waived their right to proceed on this theory and thereby waived this issue. The Marshall case held erroneous jury instructions which allowed the jury to assess damages twice for the same default--once on a breach of contract theory and once under G.S. 75-1.1. The prohibition against double recovery should not be read to mean that the two theories of...