Stanley v. Moore

• Decision Date: 01 February 1994
• Docket Number: No. 9225DC183,9225DC183
• Citation: 113 N.C.App. 523,439 S.E.2d 250
• Parties: Carolyn STANLEY and Ralph Allen Trivette v. John MOORE aka John Tyree.
• Court: North Carolina Court of Appeals

Page 250

439 S.E.2d 250

113 N.C.App. 523

Carolyn STANLEY and Ralph Allen Trivette v. John MOORE aka John Tyree.

No. 9225DC183.

Court of Appeals of North Carolina.

Feb. 1, 1994.

No brief filed for defendant-appellee.

ORR, Judge.

The plaintiffs assign as their only error before this Court the trial court's denial of their claim for damages under the North Carolina Unfair Trade Practices Act and their claim for attorney's fees pursuant to that Act as a result of their constructive eviction from their home. We find that N.C.G.S. § 42-25.9 expressly precludes treble damages as a remedy in actions arising under that Article and therefore affirm the order of the court.

The plaintiffs entered into an oral agreement to lease a mobile home owned by the defendant for $70.00 per week. This lease was entered into with the defendant's mother sometime in July 1990. At the time, the defendant was living out of state. In mid-February 1991, the defendant came to the plaintiffs' home and demanded that they move immediately. The plaintiffs called the sheriff's department who explained to the defendant that summary ejectment procedures were necessary in order to regain possession of the property. That same day, the defendant cut the water supply to the residence and removed the thermostat from the water heater.

On the following day, the defendant forced his way into the residence and demanded to know why the plaintiffs had not moved. During this encounter, he forcibly removed the breaker box from the bedroom wall, leaving exposed live wiring. The plaintiffs were able to restore electrical service to the residence that day; but on or about 22 February, the defendant came to the home and again removed the breaker box. The plaintiffs called the electric company to restore electrical service. However, while utility workers were in the process of restoring service, the defendant returned to the residence and cut the underground electrical wiring leading to the home with a hatchet. The utility company could not restore service due to the extensive damage done to the outside lines to the residence.

The plaintiffs were left with no water or electricity, and were forced to buy bottled water and other sources of heat. Over $200.00 worth of food was spoiled due to lack of refrigeration. At the time of the above incidents, the household consisted of the plaintiffs and four minor children, including a four-month-old infant.

As plaintiffs correctly assert, it is well settled in North Carolina that in order "[t]o prevail on a claim of unfair and deceptive trade practice a plaintiff must show (1) an unfair or deceptive act or practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiff...." Spartan Leasing Inc. v. Pollard, 101 N.C.App. 450, 460, 400 S.E.2d 476, 482 (1991). It is also clear that a tenant is a consumer for purposes of the Act and that the leasing of residential property is within the purview of N.C.G.S. § 75-1.1. Love v. Pressley, 34 N.C.App. 503, 239 S.E.2d 574 (1977), disc. review denied, 294 N.C. 441, 241 S.E.2d 843 (1978), and that N.C.G.S. § 42-40(3) defines "landlord" as "any owner and any rental management company, rental agency, or any other person having the actual or apparent authority of an agent to perform the duties imposed by this Article."

In Allen v. Simmons, 99 N.C.App. 636, 394 S.E.2d 478 (1990), this Court stated that "[w]hether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace. A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." Id. at 643-44, 394 S.E.2d at 483. Additionally, this Court has consistently held that "where a tenant's evidence establishes the residential rental premises were unfit for human habitation and the landlord was aware of needed repairs ... then such evidence would support a factual finding by the jury that the landlord committed an unfair or deceptive trade practice." Foy v. Spinks, 105 N.C.App. 534, 540, 414 S.E.2d 87, 90 (1992). In the case sub judice, there is no question that the plaintiffs have clearly established a claim meeting the above requirements.

However, under these facts, we are bound by the holding in Dobbins v. Paul, 71 N.C.App. 113, 321 S.E.2d 537 (1984). There, the plaintiff was wrongfully evicted by her landlord and brought claims for an accounting and refund of her security deposit, compensatory damages for her eviction and breach of the warranty of quiet enjoyment, punitive damages, treble damages for unfair trade practices, and reasonable attorney's fees. On appeal from directed verdicts in favor of the defendant landlord on all claims, our Court held that

[u]nder our Ejectment Of Residential Tenants Act (the Act), ...