McNamara v. Wilmington Mall Realty Corp, COA95-176

• Citation: 121 N.C.App. 400,466 S.E.2d 324
• Decision Date: 06 February 1996
• Docket Number: No. COA95-176,COA95-176
• Court: North Carolina Court of Appeals
• Parties: John B. McNAMARA, d/b/a McNamara Jewelers, Plaintiff/Appellee v. WILMINGTON MALL REALTY CORP., Defendant/Appellant.

Page 324

466 S.E.2d 324

121 N.C.App. 400

John B. McNAMARA, d/b/a McNamara Jewelers, Plaintiff/Appellee v. WILMINGTON MALL REALTY CORP., Defendant/Appellant.

No. COA95-176.

Court of Appeals of North Carolina.

Feb. 6, 1996.

Shipman & Lea by Gary K. Shipman, Wilmington, for plaintiff-appellee.

Murchison, Taylor, Kendrick, Gibson & Davenport, L.L.P. by Michael Murchison, Wilmington, for defendant-appellant.

WALKER, Judge.

In late spring 1991, plaintiff John B. McNamara became interested in leasing space at Long Leaf Mall (the Mall) to house a retail custom jewelry store. The Mall was at all relevant times owned by defendant Wilmington Mall Realty Corp. and managed by Great Atlantic Real Estate-Property Management (Great Atlantic). Plaintiff approached Newby Toms (Toms), a leasing agent for Great Atlantic, and brief negotiations followed. As a result of these negotiations, plaintiff and defendant, through Great Atlantic, executed a five-year lease for store space 26 in the Mall. Thereafter, plaintiff renovated the store space at his own expense and commenced operations in August 1991.

In January or February 1992, Toms informed plaintiff that he was proposing to locate an aerobics studio in the space adjacent to plaintiff's store. Toms informed plaintiff that under the terms of the lease with the aerobics studio, the studio was required to do soundproofing and could be relocated if necessary. On 17 February 1992, the studio commenced operating.

Plaintiff immediately began objecting to Toms that the music coming from the aerobics studio was too loud and could be heard in his store. He also complained to Nancy Arnoux, the owner of the studio. By letter dated 26 February 1992, plaintiff notified defendant that he was dissatisfied with defendant's lack of efforts to remedy the situation and demanded a resolution of the matter within seven (7) days of defendant's receipt of the letter. After receiving no response, plaintiff contacted an attorney, who notified Great Atlantic by letter dated 12 March 1992 that plaintiff would be depositing his current rental payment into an escrow account until the nuisance was abated. In response, Toms directed the studio to install insulation as required by the terms of the studio's lease. The insulation was promptly installed, but plaintiff continued to complain that the noise from the studio was disrupting his business. Great Atlantic informed plaintiff by letter dated 31 March 1992 that remedial action had been completed and it considered the matter closed. Great Atlantic demanded payment of the March and April rent within five (5) days of plaintiff's receipt of the letter. By letter dated 9 April 1992, plaintiff's attorney notified Great Atlantic that plaintiff disagreed that the matter was resolved. He stated that plaintiff would pay Toms his customary April rent but would continue to hold the March rent in escrow until the matter was resolved. In late April or early May, Great Atlantic agreed to pump insulation into the wall space between plaintiff's store and the aerobics studio. After this was done, Great Atlantic told plaintiff it considered the matter closed and demanded that plaintiff begin paying rent. Plaintiff paid no rent after April 1992, and on 24 December 1992, plaintiff abandoned his space in the Mall.

On 29 September 1992, plaintiff sued defendant for breach of contract based upon the theories of constructive eviction and breach of the covenant of quiet enjoyment. Defendant counterclaimed for past due rent. Plaintiff later amended his complaint to allege damages for fraud, negligent misrepresentation, and unfair and deceptive trade practices.

At trial, after the close of all the evidence, the trial court granted defendant's motion to dismiss the fraud, negligent misrepresentation, and unfair and deceptive trade practices claims. The jury thereafter returned a verdict for plaintiff in the amount of $110,000 on the breach of contract claim. The trial court denied defendant's motions for judgment notwithstanding the verdict (JNOV), new trial, remittitur, and amendment of the judgment.

I.

We first address defendant's argument that the trial court erred in denying its motions for directed verdict and JNOV on plaintiff's breach of contract claim. Specifically, defendant argues that the evidence was insufficient as a matter of law to support plaintiff's constructive eviction claim.

A motion for directed verdict tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the non-movant. Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977). In ruling on a defendant's motion for directed verdict, the evidence must be viewed in the light most favorable to the plaintiff. United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). All conflicts in the evidence must be resolved in the plaintiff's favor, and he must be given the benefit of every reasonable inference that can be drawn in his favor. Id. Only where the evidence is insufficient to support a verdict in the plaintiff's favor should the defendant's motion be granted. West v. Slick, 313 N.C. 33, 40, 326 S.E.2d 601, 606 (1985). If there is a scintilla of evidence supporting the plaintiff's prima facie case, then the motion should be denied. Burris v. Shumate, 77 N.C.App. 209, 211, 334 S.E.2d 514, 515-16 (1985). A motion for JNOV is essentially the renewal of a prior motion for directed verdict, and the same rules regarding the sufficiency of the evidence apply. Henderson v. Traditional Log Homes, Inc., 70 N.C.App. 303, 306, 319 S.E.2d 290, 292, review denied, 312 N.C. 622, 323 S.E.2d 923 (1984).

At the outset it must be noted that plaintiff had two theories of recovery on his breach of contract claim: constructive eviction and breach of the covenant of quiet enjoyment. Although the trial court instructed the jury on both theories, a single issue was submitted to the jury which read, "Did the Defendant, Wilmington Mall Realty, breach the lease agreement with the Plaintiff?" On appeal, defendant does not challenge the issue as submitted. Therefore, if there was more than a scintilla of evidence to support either constructive eviction or breach of the covenant of quiet enjoyment, then the court properly denied defendant's motions for directed verdict and JNOV on the issue of breach of contract.

Constructive eviction is defined as "[a]n act of a landlord which deprives his tenant of that beneficial enjoyment of the premises to which he is entitled under his lease, causing the tenant to abandon them...." Marina Food Assoc., Inc. v. Marina Restaurant, Inc., 100 N.C.App. 82, 92, 394 S.E.2d 824, 830, review denied, 327 N.C. 636, 399 S.E.2d 328 (1990). Stated another way, constructive eviction occurs "when a landlord breaches a duty under the lease which renders the premises untenable...." Id. As the trial court correctly instructed the jury here, a tenant seeking to establish a claim for constructive eviction has the burden of showing that he abandoned the premises within a reasonable time after the landlord's wrongful act and that the abandonment was proximately caused by the landlord's breach. Thompson v. Shoemaker, 7 N.C.App. 687, 690, 173 S.E.2d 627, 630 (1970); see also 49 Am.Jur.2d, Landlord & Tenant §§ 644-647 (1995). Defendant argues that plaintiff made neither of these required showings.

Plaintiff first complained of noise in February 1992. Although defendant informed plaintiff in May 1992 that it considered the matter closed, plaintiff continued to lodge complaints with defendant's leasing agent into the fall of 1992 in an effort to resolve the situation. In mid-October plaintiff called a security officer to abate the noise, and six weeks later plaintiff abandoned the property.

Defendant argues that even given the benefit of the time period during which repairs were made, plaintiff's abandonment of the premises some seven to eight months later was not within a reasonable time as a matter of law. While defendant directs us to cases from other jurisdictions which it claims support its position, we are unable to conclude that the time frame for plaintiff's abandonment was unreasonable as a matter of law. What constitutes a reasonable time for abandonment depends on the circumstances of each case and is an issue of fact for the jury. See Marina Food Assoc., 100 N.C.App. at 92-93, 394 S.E.2d at 830 (evidence was sufficient to support constructive eviction claim even though landlord's alleged wrongful acts occurred prior to March 1985 and tenant did not abandon the premises until January 1986). We find that the above facts, viewed in the light most favorable to plaintiff, constituted sufficient evidence to support a jury finding that plaintiff abandoned the premises within a reasonable time and that the abandonment was the result of defendant's failure to remedy the noise from the studio. Thus, we hold the trial court did not err in denying defendant's motions for directed verdict and JNOV on plaintiff's constructive eviction claim.

The trial court also instructed the jury on breach of the covenant of quiet enjoyment. North Carolina law provides that a lease, in the absence of a provision to the contrary, carries with it an implied covenant that the tenant will have the quiet and peaceable possession of the leased premises during the term of the lease. Marina Food Assoc., 100 N.C.App. at 92, 394 S.E.2d at 830; Dobbins v. Paul, 71 N.C.App. 113, 117, 321 S.E.2d 537, 541 (1984) (citing Andrews & Knowles Produce Co. v. Currin, 243 N.C. 131, 135, 90 S.E.2d 228, 230 (1955)), overruled on other grounds, Stanley v. Moore, 339 N.C. 717, 454 S.E.2d 225 (1995). Our courts have held that where a tenant has been constructively evicted, the covenant of quiet enjoyment has been breached. Marina Food Assoc., 100 N.C.App. at 92, 394 S.E.2d at 830 (citing Dobbins, 71 N.C.App. at 117-18, 321 S.E.2d at 541). Since we have...