Kent v. Humphries, 125

• Decision Date: 17 August 1981
• Docket Number: No. 125,125
• Citation: 281 S.E.2d 43,303 N.C. 675
• Court: North Carolina Supreme Court
• Parties: Melody KENT v. Fletcher HUMPHRIES and H & W Plastics, Inc.

Page 43

281 S.E.2d 43

303 N.C. 675

Melody KENT v. Fletcher HUMPHRIES and H & W Plastics, Inc.

No. 125.

Supreme Court of North Carolina.

Aug. 17, 1981.

White, Hall, Mullen, Brumsey & Small by Gerald F. White and William Brumsey III, Elizabeth City, for defendants-appellants.

Sanford, Adams, McCullough & Beard by J. Allen Adams, Catharine B. Arrowood and William George Pappas, Raleigh, for plaintiffs-appellees.

MEYER, Justice.

The issue presented on this appeal is whether plaintiff forecast sufficient evidence to survive defendants' motion for summary judgment on the issues of nuisance, fraud and unfair trade practices. We hold that she did and therefore affirm the Court of Appeals.

By her complaint, plaintiff Melody Kent alleges that in August of 1976 defendant Humphries orally offered to lease space to her in a shopping center which defendant was building. Plaintiff further alleges that defendant offered a 5-year lease with a fixed rental and an option to renew for another five years, with plaintiff responsible for completing the interior of the leased space. Before agreeing to those terms, plaintiff sought assurances from defendant that he would not operate his plastics and fiberglass manufacturing concern, H & W Plastics, Inc., in or around the shopping center. Plaintiff alleges that she told defendant that she could not conduct her business in the area of a plastics plant due to certain allergies from which she suffered. Plaintiff alleges that defendant assured her that he would not operate his plastics plant near the location of plaintiff's beauty salon.

Relying on those statements allegedly made by defendant, plaintiff accepted defendant's offer to lease space in the shopping center, terminated her former lease arrangement and began to purchase items for and to make improvements to the new leased space.

In January of 1977, according to the complaint, defendant and the defendant corporation began to manufacture plastic and fiberglass products in an area behind the shopping center. At that time, alleges plaintiff, defendant informed plaintiff's husband that the plant's location was only temporary, and that it would move in three months.

On 1 April 1977 plaintiff occupied the leased area and began to operate a beauty salon. Defendant signed and delivered to plaintiff a written lease for five years which plaintiff refused to sign because it varied from the oral agreement in several respects, one of which was that it did not include defendant's promise not to operate a plastics plant in the vicinity of the shopping center. Plaintiff alleges that she was forced to vacate the leased premises on 3 March 1978 because of the air pollution caused by the operation of the plant near her business. Plaintiff seeks damages for personal injuries, lost profits and business losses resulting from defendants' actions. Defendants deny that plaintiff was ever told that the plastics plant would not operate near the shopping center.

In considering the motion for summary judgment, Judge Brown had before him the pleadings, several affidavits and other documents, answers to interrogatories and the depositions of the plaintiff Melody Kent, and defendant Fletcher Humphries and Larry Bryant, a former employee of defendant H & W Plastics, Inc. Since the defendant moved for summary judgment, and therefore had the burden of showing the absence of any triable issue of fact, our task is to review all of that evidence in the light most favorable to the plaintiff. Summary judgment is properly granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). With the proper standard of review in mind, we turn now to a consideration of each of plaintiff's three claims (nuisance, fraud and unfair trade practices). ¹

In order for plaintiff to recover in nuisance, she must show an unreasonable interference with the use and enjoyment of her property. Barrier v. Troutman, 231 N.C. 47, 55 S.E.2d 923 (1949). That question involves three separate inquiries. First, did the defendant interfere with plaintiff's use of her property? Considering plaintiff's allegations as true, the answer is yes. Second, was the interference unreasonable? That is a question of fact reserved for the jury if plaintiff satisfies the third element of this inquiry; that is, did plaintiff have sufficient property interest in the rented space to maintain a nuisance action? Defendants argue that, because plaintiff entered under a void lease, she was merely a tenant at will. As such, she was subject to eviction at any time and thus her constructive eviction by defendants' operation of a plant did not violate the very limited property rights she held in the leased property.

Judge Clark, expressing regret, agreed with defendants that plaintiff's tenancy was one at will under the law in North Carolina. "The invalidity of the rental contract leaves the defendants in the position of tenants at will, whose occupancy may be terminated instanter by demand for possession." Davis v. Lovick, 226 N.C. 252, 255, 37 S.E.2d 680, 681-82 (1946). See also Barbee v. Lamb...