Surratt v. Newton

• Decision Date: 17 July 1990
• Docket Number: No. 8921SC986,8921SC986
• Citation: 99 N.C.App. 396,393 S.E.2d 554
• Parties: Katherine Leary SURRATT, Plaintiff, v. Jerry L. NEWTON, Jr., d/b/a Jerry's Realty Service; and Paul Jeffrey Newton, d/b/a Newton Brothers, Defendants.
• Court: North Carolina Court of Appeals

Page 554

393 S.E.2d 554

99 N.C.App. 396

Katherine Leary SURRATT, Plaintiff, v. Jerry L. NEWTON, Jr., d/b/a Jerry's Realty Service; and Paul Jeffrey Newton, d/b/a Newton Brothers, Defendants.

No. 8921SC986.

Court of Appeals of North Carolina.

July 17, 1990.

Petree Stockton & Robinson by R. Rand Tucker and Mark A. Stafford, Winston-Salem, for defendant-appellant Jerry L. Newton, Jr.

Offices of Hamilton C. Horton, Jr. by Hamilton C. Horton, Jr. and Thomas M. Roth, III, Winston-Salem, for defendant-appellant Paul Jeffrey Newton.

EAGLES, Judge.

I. DEFENDANT PAUL JEFFREY NEWTON'S APPEAL

Defendant Paul Jeffrey Newton assigns as error the trial court's dismissal of his appeal for his failure to timely file notice of appeal in compliance with G.S. 1-279(c) and Rule 3 of the North Carolina Rules of App.Pro. Defendant Paul Jeffrey Newton contends that he had ten days to file his notice of appeal after defendant Jerry Newton filed his notice of appeal on 19 April 1989. We disagree.

Rule 3(c) of the Rules of App.Pro. provides that "[i]f a timely notice of appeal is filed and served by a party, any other party may file and serve a notice of appeal within 10 days after the first notice of appeal was served on such party." Rule 26(b) of the Rules of App.Pro. provides that "[c]opies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served on all other parties to the appeal."

In Williams v. Carolina & Northwestern R.R., 144 N.C. 498, 57 S.E. 216 (1907) plaintiffs brought separate actions against defendant for damages resulting from defendant's failure to stop its train at a flag station to carry them to their destination. The two actions were tried together by consent and both plaintiffs appealed from a verdict against them. Our Supreme Court stated that there should have been separate appeals since "[t]he verdict was substantially separate as to each plaintiff, and the judgment and appeals should have corresponded, two cases being constituted here." Id. at 502, 57 S.E. at 218.

Here, defendant Paul Jeffrey Newton was not an original party to this action but brought into the suit by counterclaim of the plaintiff. Defendants Paul Jeffrey Newton and Jerry Newton were charged with separate violations for separate time periods that each managed the property. Each defendant was represented by his own counsel. The trial court carefully separated each issue as it related to each defendant and the jury rendered separate and distinct verdicts against each defendant. We hold that Rule 3(c) merely contemplates an additional, extended time period for a response only from other parties to that same appeal. Defendant Jerry Newton's appeal was totally unrelated and unaffected by the appeal of defendant Paul Jeffrey Newton. On 17 April 1989 the trial court entered an order in open court denying defendant Paul Jeffrey Newton's motion for JNOV and ordered the entry of the verdict in this action. Defendant Paul Jeffrey Newton did not file notice of appeal until 1 May 1989. This was clearly beyond the ten day period within which a party may file notice of appeal under Rule 3 (prior to its December 1988 amendment which became effective for judgments entered on and after 1 July 1989). Because the provisions of G.S. 1-279 and Rule 3(c) are jurisdictional, the appellate court acquires no jurisdiction of the appeal unless the statutes are complied with and the appeal must be dismissed. First Union National Bank v. King, 63 N.C.App. 757, 759, 306 S.E.2d 508, 509 (1983).

Accordingly, we hold that the trial court correctly dismissed defendant Paul Jeffrey Newton's appeal for his failure to timely file notice of appeal.

II. PLAINTIFF'S APPEAL

Plaintiff assigns as error the trial court's failure to treble all damages awarded by the jury against defendant Paul Jeffrey Newton. Plaintiff also assigns as error the trial court's refusal to award attorney's fees on the grounds that there was no unwarranted refusal by defendant Paul Jeffrey Newton to resolve plaintiff's claims.

We note that plaintiff moved to dismiss defendant Paul Jeffrey Newton's appeal for his failure to timely file notice of appeal. Here plaintiff appeals the award of damages as to defendant Paul Jeffrey Newton. Plaintiff gave notice of appeal on 10 May 1989. Final judgment in this action was entered in open court on 17 April 1989. Here plaintiff's appeal was within ten days of Paul Jeffrey Newton's purported appeal and pursuant to Rule 3(c) would have been timely; however, since Paul Jeffrey Newton's appeal was untimely, plaintiff is not entitled to an additional ten days in which to file her notice of appeal in the case against Paul Jeffrey Newton. Plaintiff's filing of her notice of appeal was clearly beyond the ten day period for filing notice of appeal as set out in Rule 3 of the Rules of App.Pro. in effect at that time. Plaintiff's appeal must also be dismissed for her failure to comply with Rule 3(c) of the Rules of App.Pro.

III. DEFENDANT JERRY NEWTON'S APPEAL

Defendant first assigns as error the trial court's failure to grant directed verdict or judgment notwithstanding the verdict in his favor because he contends he was not a proper defendant for this rent abatement action. We disagree.

Initially we note that "[b]y the enactment in 1977 of the Residential Rental Agreements Act, N.C.Gen.Stat. Secs. 42-38 et seq., our legislature implicitly adopted the rule, now followed in most jurisdictions, that a landlord impliedly warrants to the tenant that rented or leased residential premises are fit for human habitation. The implied warranty of habitability is coextensive with the provisions of the Act." Miller v. C.W. Myers Trading Post, Inc., 85 N.C.App. 362, 366, 355 S.E.2d 189, 192 (1987). G.S. 42-38 provides that "[t]his Article determines the rights, obligations, and remedies under a rental agreement for a dwelling unit within this State." 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." G.S. 42-42(a) provides that

(a) The landlord shall: (1) Comply with the current applicable building and housing codes, whether enacted before or after October 1, 1977, to the extent required by the operation of such codes; no new requirement is imposed by this subdivision (a)(1) if a structure is exempt from a current building code; (2) Make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition; (3) Keep all common areas of the premises in safe condition; and (4) Maintain good and safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances supplied or required to be supplied by him provided that notification of needed repairs is made to the landlord in writing by the tenant except in emergency situations.

G.S. 42-44(a) further provides that "[a]ny right or obligation declared by this Chapter is enforceable by civil action, in addition to other remedies of law and in equity." "Tenants may bring an action for breach of the implied warranty of habitability, seeking rent abatement, based on their landlord's noncompliance with N.C.G.S. Sec. 42-42(a)." Cotton v. Stanley, 86 N.C.App. 534, 537, 358 S.E.2d 692, 694, disc. rev. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

Here defendant Jerry Newton argues that in Collingwood v. General Electric Real Estate Equities, Inc., 89 N.C.App. 656, 659, 366 S.E.2d 901, 903 (1988), rev'd in part on other grounds, 324 N.C. 63, 376 S.E.2d 425 (1989) this court held that a manager was "merely managing" the property and could not be held liable under G.S. § 42-42(a)(1) for design or construction defects. On the contrary, Collingwood merely held that a landlord who merely manages the property cannot be held liable for possible defects of design and construction if he complies with G.S. 42-42(a)(1).

On these facts, we hold that defendant Jerry Newton is a proper party for a rent abatement action. At trial plaintiff presented evidence that defendant had actual authority to repair and keep the premises in a fit and habitable condition and had failed to do so during her tenancy. As landlord, defendant's violation of the statute subjects him to liability for rent abatement. Accordingly this assignment of error must fail.

Defendant next assigns as error the trial court's failure to grant a directed verdict or judgment notwithstanding the verdict in favor of defendant Jerry Newton because plaintiff produced no evidence of notice as required by the statute. Defendant argues that "[u]nder the Residential Rental Agreement Act, an action for rent abatement requires that the tenant give the landlord notice of any defects in the property and that the landlord have a reasonable opportunity to cure such defects." Defendant also argues that the trial court erred in giving the following jury instructions:

[W]ith regard to any defects in electrical, plumbing, sanitary, heating and other facilities or appliances supplied or required to be supplied by the defendant--for the purpose of the first issue, you may consider any such defect in the specific items enumerated only to the extent that any condition of either the electrical, plumbing, sanitary, heating facilities--or heating facilities were in such a defective condition so as to render the house in violation of the local building code or was such--was of such defective condition, nothing else appearing, so as to make the house unfit or uninhabitable.

Defendant argues that plaintiff cannot recover for those defects enumerated in G.S. 42-42(a)(4) unless written notice was given to the landlord. We disagree.

While G.S. 42-42(a)(4) does require written notification of needed repairs involving electrical, plumbing, sanitary, heating,...