99 N.C. App. 750 | N.C. Ct. App. | 1990
Lead Opinion
Plaintiff appeals the denial of treble damages and attorney’s fees pursuant to G.S. Chapter 75. G.S. § 75-1.1 makes it unlawful to engage in “unfair or deceptive acts or practices in or affecting commerce.” G.S. § 75-16 and § 75-16.1 provide for the award of treble damages and attorney’s fees for violations of Chapter 75. Defendant has violated Chapter 75. “Proof of fraud would necessarily constitute a violation of the prohibition against unfair and deceptive acts. . . .” Hardy v. Toler, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975); Rosenthal v. Perkins, 42 N.C. App. 449, 455, 257 S.E.2d 63, 67 (1979). Therefore, the issue before us is whether appellee .Buckland’s activities were “in or affecting commerce.” G.S. § 75-1.1.
Defendant argues that because he is a private individual, his actions were not “in or affecting commerce.” In support of this proposition he cites Rosenthal v. Perkins, supra, and Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672 (1988). Both of these cases dealt with private individuals who engaged realtors to sell their residences. The Court, in Rosenthal, stated “The defendants Goldberg [individuals] were not engaged in trade or commerce. They did not by the sale of their residence on this one occasion become realtors. It is clear from the cases involving violation of the Unfair Trade Practices Act that the alleged violators must be engaged in a business, a commercial or industrial establishment or enterprise.” 42 N.C. App. at 454, 257 S.E.2d 67 (citations omitted). The Court went on to find that the defendants’ realtor was engaged in commerce within the meaning of G.S. § 75-1.1. Id. Similarly, in Robertson, the Court stated, “Defendants Boyd, being private parties engaged in the sale of a residence, were not involved in
Affirmed.
Dissenting Opinion
dissenting.
The majority determines that the Rosenthal and Robertson decisions dictate the holding that the trial court correctly found that defendant’s sale of a residence was not “in or affecting commerce.” I disagree.
I read the Rosenthal and Robertson decisions to exempt only individual homeowners selling their own homes from operation of the Unfair and Deceptive Trade Practices Act. This court noted that for defendants in the Rosenthal decision, the “sale of their own home was an isolated transaction.” Wilder v. Squires, 68 N.C. App. 310, 314, 315 S.E.2d 63, 66, disc. rev. denied, 311 N.C. 769, 321 S.E.2d 158 (1984). For defendant to take advantage of the homeowners exception created by Rosenthal and Robertson, he must raise and prove as an affirmative defense his status as a homeowner selling his own home in an isolated transaction. Here, no record evidence supports a finding that defendant was a homeowner selling his own home. On the contrary, defendant’s pleadings indicate that the property in question was not his home. Therefore, I would reverse the trial court’s denial of treble damages, and remand for trebling of the damages. See Marshall v. Miller, 302 N.C. 539, 547, 276 S.E.2d 397, 402 (1981). I would also remand
Even if this defendant were a homeowner selling his home, no language in N.C.G.S. § 75-1.1 indicates that the legislature intended to insulate from liability homeowners who engage in unfair and deceptive acts, since a house sale always is ‘in commerce’ or ‘affects commerce.’ See Johnson v. Beverly-Hanks & Associates, 97 N.C. App. 335, 350-52, 388 S.E.2d 584, 592-93 (1990) (Greene, J., concurring in part and dissenting in part).
