1. Appeal and Error--partial summary judgment--possibility of
inconsistent verdicts
The appeal of a partial summary judgment was addressed on its
merits where it was reasonably foreseeable that inconsistent
verdicts could result if the appeal was dismissed. If the case
proceeded to trial, the State might obtain a verdict against
defendants Rich and Singletary, but the defendants for whom summary
judgment was granted would not be bound and, should those summary
judgments then be reversed, those defendants would be entitled to
a new trial on the same issues.
2. Unfair Trade Practices--retail installment sales contracts--
liability of finance company purchasing contract
The trial court erred by granting partial summary judgment for
finance companies which had been included as parties to a Chapter
75 action brought by the Attorney General against a retail food
installment sale company where the finance companies had purchased
retail installment sales contracts from the food company. Although
the finance companies argued that there was no showing that they
participated in any deceptive practices, under N.C.G.S. § 25A-25
the purchased contracts were subject to the same claims and
defenses that consumers could assert against the seller. The
provisions of Chapter 75 authorize the Attorney General to bring a
civil action on behalf of North Carolina consumers to enforce the
prohibition against deceptive sales practices, and the finance
companies here must be parties to the litigation in order to
provide a full and meaningful remedy to the consumers for whom the
Attorney General is acting.
3. Estoppel--investigation of retail installment sales company--
no notice to finance company--action by Attorney General not
barred
The Attorney General's claims against finance companies who
purchased retail installment sales contracts from a door-to-door
food plan company were not barred by equitable estoppel, and the
trial court erred by granting partial summary judgment for them,
where the Attorney General did not notify the finance companies of
its investigation of the food company for two-and-a-half years
prior to filing the suit, during which time the finance companies
continued to accept assignment of contracts from the food company
to their prejudice. There were no allegations in the answer of
defendant finance companies which would support the elements ofequitable estoppel and the trial court erred insofar as estoppel
was the basis for its judgment. Moreover, N.C.G.S. § 25A-25 does
not require notice to an assignee of commercial paper that the
seller is being investigated for violations of Chapter 75, andestoppel normally does not act to bar the actions of the State
or its agencies.
4. Damages and Remedies--election of remedies--deceptive sales
practices--partial settlement
The trial court erred by granting partial summary judgment
for defendant finance companies in a Chapter 75 action against a
retail installment sales food company and the assignees of its
contracts where the finance companies argued that the Attorney
General elected his remedies by entering into a consent agreement
with the food company enjoining certain sales practices and
requiring that existing contracts be honored. Defendants did not
plead an election of remedies in bar of plaintiff's claims, and,
even if the plea of election of remedies was properly before the
Court of Appeals, it was premature because a plaintiff in a
deceptive sales practices action under N.C.G.S. § 75-1.1 may
allege inconsistent remedies and need not make its election until
prior to jury instructions or after return of the verdict.
5. Unfair Trade Practices--retail installment sales company--
employee--proper party
The trial court erred by granting summary judgment for
defendant Baldwin in an action brought by the Attorney General
arising from the retail installment sales of food products where
Baldwin contended that he should not have been a party to the
litigation because the Attorney General is not authorized to
bring an unfair and deceptive trade practices action against him
as an employee and that there was insufficient evidence that he
acted as a managing agent of the food company. The plain
language of N.C.G.S. § 75-9 allows the Attorney General to
investigate agents, officers, and employees of corporations and
its is unlikely that the Legislature would have authorized
investigations without intending that such persons be held to
answer for violations of Chapter 75. Furthermore, there was
ample evidence that Baldwin was a key agent and employee of the
food company; his effort to minimize his management role at most
raises a question of fact.
Appeal by plaintiff from orders entered 12 May 1999 and 13
May 1999 by Judge Howard E. Manning, Jr., in Wake County Superior
Court. Heard in the Court of Appeals 6 June 2000.
On 2 April 1998, the State of North Carolina, on relation of
Attorney General Michael F. Easley, filed this civil action on
behalf of North Carolina consumers against Rich Food Services,
Inc., Debra Singletary, Roy Baldwin, and three finance companies:Vernick Financial Services, Kearney Credit Incorporated, and Fair
Finance Company. The verified complaint alleged that defendant
Rich Food Services, Inc. (Rich Food), is a Wyoming corporation
with its principal place of business in Knightdale, North
Carolina. Defendant Debra Singletary (Singletary) is the
president, director and majority shareholder of Rich Food. The
complaint alleged that defendant Roy Baldwin (Baldwin) is a
"managing agent" for Rich Food who "exerts authority and control
over the operations of" Rich Food. The State also submitted
evidence that Baldwin advised Singletary, developed policy and
training materials, hired and directed the sales force, and
conducted many of Rich Food's dealings with its franchiser, the
defendant finance companies and consumers.
Rich Food is engaged in the business of door-to-door sales
of home food service plans, freezers, cookware, and other
services and goods. During its in-home sales presentations, Rich
Food offers potential customers a large order of frozen foods
including bulk meat, fruits, vegetables, beef, poultry, seafood,
pork and "specialty items." The food plans do not include many of
the items consumers usually purchase at the grocery store, such
as dairy items, cereal, flour, spices, cleaning fluids, dish
detergent, and paper products. Rich Food also represents that all
food will be frozen, packaged, delivered to the customer's home
and placed in the customer's freezer by agents of Rich Food.
Rich Food offers discounts on future food purchases, sells
freezers to its customers and offers them limited warranties onfreezer repairs.
The Rich Food salesperson gives numerous booklets and
documents to purchasers, but does not provide buyers a single
document which discloses the price of the individual food items,
service charges, or the total plan price. The parties disagree
about whether Rich Food was required to summarize all transactions
in one document. After each customer's three-day right to cancel
expires, Rich Food delivers the purchases to the consumer's home.
Rich Food offered financing of its retail installment salescontracts through various finance companies. Defendants
Vernick
Financial Services (Vernick), Kearney Credit Incorporated
(Kearney), and Fair Finance Company (Fair Finance) have purchased
retail installment sales contracts from Rich Food.
At the time it filed its Answer in this case, Rich Food did
not maintain contractual liability insurance or reimbursement
insurance to guarantee that it could meet future obligations and
fulfill its warranties. In addition to alleging that Rich Food
sold "insurance" in violation of statutory provisions, the State
alleged--among other things--that Rich Food's sales practices
deceived purchasers by representing to them that they would save
money with the Rich Plan, by failing to disclose the unit price of
the food sold, and by misrepresenting the value of the goods and
services being sold.
On 12 May 1998, Rich Food, Baldwin, and Singletary, entered
into an Order for Preliminary Injunction by Consent, which provided
in part that they would honor the membership and service agreements
they had sold to consumers pending the outcome of this litigation.
On 5 March 1999, defendant finance companies filed a joint
motion for summary judgment on the grounds that there was no
genuine issue of material fact and that they were entitled to
judgment as a matter of law. On 31 March 1999, plaintiff also filed
a motion for summary judgment against all defendants. The State
supported its motion for summary judgment with the affidavits of 26
disgruntled consumers who had made purchases from defendant Rich
Food. On 12 May 1999, the trial court entered summary judgment infavor of defendant Roy Baldwin and denied plaintiff's motion for
summary judgment against Rich Food on the issue of damages, civil
penalties and attorney fees. The trial court granted summary
judgment for the plaintiff on the issue of whether the Rich Plan
Service Agreement constitutes "insurance" within the meaning of
Chapter 58 of the North Carolina General Statutes. On the
following day, the trial court denied plaintiff's motion for
summary judgment as to Debra Singletary and granted partial summary
judgment in favor of the three defendant finance companies.
Plaintiff timely filed notice of appeal, assigning error.
Attorney General Michael F. Easley, by Assistant Attorneys
General Barbara A. Shaw and K. D. Sturgis, for the State.
Allen & Pinnix, P.A., by D. James Jones, Jr., for Roy Baldwin
defendant appellee; and Smith, Anderson, Blount, Dorsett,
Mitchell & Jernigan, L.L.P., by Robin K. Vinson, for Vernick
Financial Services, Kearney Credit Incorporated and Fair
Finance Company defendant appellees.
HORTON, Judge.
[1]Plaintiff argues the trial court erred in granting summary
judgment for Roy Baldwin and partial summary judgment for the
defendant finance companies. Defendants contend, however, that we
should dismiss the State's appeal without reaching its merits,
because the entries of summary judgment are merely interlocutory
orders, from which no appeal of right lies.
"An interlocutory order is one made during the pendency of an
action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and determinethe entire controversy." Veazey v. Durham, 231 N.C. 357, 362,
57
S.E.2d 377, 381, reh'g denied, 232 N.C. 744, 59 S.E.2d 429 (1950).
"An appeal does not lie to the [appellate courts] from an
interlocutory order of the Superior Court, unless such order
affects some substantial right claimed by the appellant and will
work an injury to him if not corrected before an appeal from the
final judgment." Id.
Plaintiff contends that it has a substantial right to avoid
the possibility of two trials on the same issues. "'Ordinarily the
possibility of undergoing a second trial affects a substantial
right only when the same issues are present in both trials,
creating the possibility that a party will be prejudiced by
different juries in separate trials rendering inconsistent verdicts
on the same factual issue.'" Turner v. Norfolk S. Corp., 137 N.C.
App. 138, 142, 526 S.E.2d 666, 670 (2000) (citation omitted).
Here, it is reasonably foreseeable that, if we dismiss this appeal
and defer consideration of the errors assigned by the State,
inconsistent verdicts might well result.
The State contends, among other things, that Rich Food, its
President Singletary, and Managing Agent Baldwin, have violated the
provisions of Chapters 75 and 58 of our General Statutes by
engaging in a pattern of deceptive practices and by selling
insurance without being licensed to do so. The State seeks to
enjoin such practices, cancel contracts entered into in violation
of law, and obtain restitution for consumers. The State further
contends that it cannot obtain full relief for consumers injured bythe actions of Rich Food without the presence of the defendant
finance companies because they are the assignees of the contracts
in question. As we will discuss more fully below, the State
contends that the defendant finance companies are subject under the
provisions of N.C. Gen. Stat. § 25A-25 to the same claims and
defenses which can be asserted against Rich Food. However, if we
dismiss the State's appeal as premature, the defendant finance
companies would not be bound by any verdict or judgment against
Rich Food. A later reversal of the entries of partial summary
judgment which are the subject of this appeal would then
necessitate another trial on the same issues, with the possibility
of inconsistent verdicts.
Likewise, as to the defendant Baldwin, a subsequent trial
against him would involve many of the same issues involved in the
trial of the charges against Rich Food, because the State contends
that Baldwin has engaged in the same deceptive acts as Rich Food.
In summary, if the case proceeds to trial in its present
posture, the State might well obtain a verdict and judgment against
Rich Food and Singletary, but the defendant finance companies and
Baldwin would not be bound by its terms. Should we then reverse
the orders of the trial court granting summary judgment for Baldwin
and for the finance company defendants, those defendants would be
entitled to a new trial on the same issues. That is particularly
true in the case of the defendant finance companies, as those
defendants have requested a trial by jury. Therefore, we hold that
inconsistent verdicts might well result from a fragmentation of thetrial of this matter, and we will address this appeal on its
merits.
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS
SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE
DEBTOR COULD ASSERT AGAINST THE SELLER OF
GOODS OR SERVICES OBTAINED PURSUANT HERETO OR
WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER
BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY
THE DEBTOR HEREUNDER.
Id. The State argues that it may, pursuant to N.C. Gen. Stat.
§ 25A-25, assert its claims for unfair and deceptive trade
practices both against the original seller (Rich Food) and against
defendant finance companies as assignees of Rich Food. Further,
the State contends that it is entitled pursuant to N.C. Gen. Stat.§ 75-15.1 to seek cancellation of contracts and restitution on
behalf of consumers injured by unfair and deceptive trade
practices. The trial court disagreed with the State's position,
however, and granted partial summary judgment in favor of
defendants "as to any claims against them for money damages or
restitution damages (affirmative damages) arising out of any of the
transactions complained of prior to the date of the institution of
this action and service of the complaints upon each separate
defendant." In effect, the trial court ruled that the plaintiff
could maintain its action against defendant finance companies for
cancellation and restitution relating to assignments of retail
credit transactions entered into after the service of process on
the individual finance company. The finance companies did not
appeal from the ruling of the trial court as to their inclusion of
defendants for the purposes of possible future liability, and the
question is thus not before us. However, for the sake of clarity
in this important area, we will consider the power of the Attorney
General to include financial institutions as parties in an action
pursuant to N.C. Gen. Stat. § 75-1.1 on behalf of North Carolina
consumers.
As both Chapters 75 and 25A-25 share the common purpose of
protecting consumers, we are to read the statutes in pari materia
("in the same matter," Black's Law Dictionary 794 (7th ed. 1999)).
Williams v. Williams, 299 N.C. 174, 180, 261 S.E.2d 849, 854
(1980); see also Marshall v. Miller, 302 N.C. 539, 547, 276 S.E.2d
397, 402 (1981) (violation of certain statutes designed to protectconsumers also constitutes a violation of unfair and deceptive
trade practices). Since the plain language of N.C. Gen. Stat.
§ 25A-25 suggests that the defendant finance companies are subject
to any claim or defense which might be asserted against Rich Food,
and plaintiff has stated a cause of action against Rich Food for
unfair or deceptive business practices, plaintiff may assert those
same claims against the finance companies. If plaintiff is
successful in the litigation, N.C. Gen. Stat. § 75-15.1 (1999)
provides that the trial court may "upon a final determination of
the cause, order the restoration of any moneys or property and the
cancellation of any contract obtained by any defendant as a result
of such violation." Id. In order for the consumers on whose
behalf the State has instituted this litigation to obtain a full
remedy, the three named finance companies must be bound by the
results of the litigation, and must therefore be parties defendant.
The issue of whether the State is authorized to bring this
action against defendant finance companies appears to be one of
first impression in this jurisdiction. However, several of our
sister states with similar statutory schemes have addressed this
issue in well-reasoned and instructive opinions. In State ex rel.
McGraw v. Scott Runyon Pontiac-Buick, Inc., 194 W.Va. 770, 461
S.E.2d 516 (1995), the West Virginia Attorney General sued an
automobile dealership for unfair and deceptive trade practices
arising from the allegedly unlawful sale of extended warranties for
motor vehicles. General Motors Acceptance Corporation and Citizens
National Bank of St. Albans (later, Bank One), both of whichfinanced the sales of extended warranties by the dealership, were
named as additional defendants. The Supreme Court of West Virginia
observed that West Virginia law requires finance companies to
purchase consumer credit "'subject to all claims and defenses of
the buyer or lessee against the seller or lessor[,]'" and held that
"the Attorney General clearly has the right to bring a civil action
against an assignee to collect a refund of an excess charge imposed
upon a consumer regardless of whether the assignee committed any
wrongdoing." McGraw, 194 W.Va. at 779, 461 S.E.2d at 525 (citation
omitted) (emphasis added). In so holding, the Court reasoned that
[l]ogic and experience dictate that if the
types of lawsuits which the Attorney General
could bring under the CCPA [Consumer Credit
and Protection Act] did not include lawsuits
against financial institutions such as the
defendants, these institutions could, if
unsavory, run in effect a "laundry" for "fly-
by-night" retailers that seek to excessively
charge their customers. Consequently, the real
meaning of consumer protection would be
stripped of its efficacy.
Id. at 780, 461 S.E.2d at 526. As additional bases for its
holding, the McGraw Court reasoned that
logic dictates that the burden of cost of the
seller's misconduct in violation of the CCPA
may be placed on the financing party to the
transaction. Financing parties, more so than
consumers, are in a position to police the
activities of the seller-retailer and to
protect themselves against misconduct.
Id. Finally, the McGraw Court notes that consumer claims seeking
refunds often involve small sums, and an action by the Attorney
General is a “practical way” to litigate such matters. Id.
In another case, State v. Excel Management Services, 111 Wis.2d 479, 331 N.W.2d 312 (1983), the Wisconsin At
torney General sued
a seller of swimming pools, alleging that it used deceptive trade
practices. The Supreme Court of Wisconsin observed that, under
applicable Wisconsin statutes, First Savings purchased the sales
contracts from the seller "'subject to all claims and defenses of
the buyer or his successor in interest'" and thus could be held
responsible for the seller's deceptive trade practices. Excel, 111
Wis. 2d at 487, 331 N.W.2d at 316 (citation omitted). The Court
noted that Wisconsin law provides that "'[t]he court may in its
discretion, prior to entry of final judgment make such orders or
judgments as may be necessary to restore to any person any
pecuniary loss suffered because of the acts or practices involved
in the action . . . .'" Id. at 486, 331 N.W.2d at 315 (citation
omitted). Consistent with that purpose, the Court concluded that
the Wisconsin Attorney General was authorized to sue First Savings
in order to assist consumers in recovering their pecuniary losses.
Id. at 488, 331 N.W.2d at 316.
In another case, State v. Custom Pools, 150 Vt. 533, 556 A.2d
72 (1988), the Vermont Attorney General sued a seller of above-
ground pools for deceptive "bait-and-switch" tactics. Additional
defendants were two financing parties. The trial court dismissed
the action as to the financing parties on the grounds they had not
committed unlawful practices. In reversing, the Supreme Court of
Vermont stated, "[t]he Legislature intended to place the burden of
the cost of seller misconduct violative of the Consumer Fraud Act
on the financing parties to the transaction. Such parties, unlikeconsumers, are in a position both to police the activities of the
seller and to protect themselves against misconduct." Id. at 536-
37, 556 A.2d at 74.
In the case before us, the defendant finance companies
purchased the retail installment sales contracts from the seller,
Rich Food, subject to the same claims and defenses that consumers
could assert against the seller, defendant Rich Food. N.C. Gen.
Stat. § 25A-25. Therefore, it seems clear that an individual
consumer could bring an action against Rich Food for fraudulent and
deceptive sales practices, and include the assignee of the
consumer's retail sales contract as a defendant. Without the
presence of the financing party, a full remedy, including
cancellation of the sales contract and restitution for payments
pursuant to the invalid contract, would not be available to the
consumer. The express provisions of Chapter 75 authorize the
Attorney General to bring a civil action on behalf of North
Carolina consumers to enforce the Chapter's prohibition against
deceptive sales practices. We now hold that in such an action the
Attorney General may join as party defendants the assignees of
sales contracts which were allegedly obtained in violation of
Chapter 75.
Our position is supported by the reasoning of the West
Virginia Supreme Court in McGraw. Insulating the financing parties
who are assignees of sales contracts from liability would allow
unscrupulous sellers to “launder” their unlawfully obtained
contracts and would vitiate the public policy expressed in N.C.Gen. Stat. § 25A-25. Although the financing parties may not be
involved in the deceptive practices of a seller, such financing
parties are in a better position than consumers to “police” the
activities of the sellers with whom they deal and protect
themselves from loss. Thus, as between an innocent consumer and
innocent financing party, the burden of loss must fall on the
financing party. The financing party must then look to the seller
to be made whole.
Although Chapter 75 gives a broad remedy to an aggrieved
consumer, and seeks to make that remedy more attractive through the
possibility of treble damages and attorneys' fees, the individual
amounts involved in these consumer cases may make prosecution
difficult. The Attorney General may, however, seek recovery on
behalf of a large group of injured consumers, and may secure
injunctive relief in protection of prospective customers. Thus, the
resources of the State are brought to the aid of consumers who
might be unable otherwise to obtain full redress for their losses.
Our position is also consistent with the provision of Chapter
75 that "[i]n any suit instituted by the Attorney General to enjoin
a practice alleged to violate G.S. 75-1.1, the presiding judge may,
upon a final determination of the cause, order the restoration of
any moneys or property and the cancellation of any contract
obtained by any defendant as a result of such violation." N.C.
Gen. Stat. § 75-15.1 (emphasis added). In order to provide a full
and meaningful remedy to the consumers on whose behalf the Attorney
General is acting, and to do complete justice between the parties,the defendant finance companies must be parties to this litigation
and thus be bound by any orders of restitution or cancellation
entered by the trial court.
[3]Defendant finance companies contend, however, that the
doctrine of equitable estoppel bars plaintiff's claims against
them. Equitable estoppel arises when a party "'by acts,
representations, admissions, or by silence . . . induces another to
believe that certain facts exist, and such other person rightfully
relies and acts upon that belief to his or her detriment.'" Lewis
v. Jones, 132 N.C. App. 368, 372, 512 S.E.2d 87, 90 (1999)
(citation omitted). Defendants argue that plaintiff "failed to
inform the Finance Company Defendants that it was investigating
Rich Food Services, Inc. for over the two-and-a-half years
immediately prior to filing this suit." Defendants also argue, and
the trial court apparently agreed, that they were prejudiced by the
Attorney General's failure to notify them that the State was
investigating Rich Food, that they continued to accept assignment
of contracts from Rich Food to their prejudice, and that plaintiff
should be estopped to seek cancellation of any of the contracts or
to seek restitution for the involved consumers.
The essential elements of estoppel are (1) conduct on the part
of the party sought to be estopped which amounts to a false
representation or concealment of material facts; (2) the intention
that such conduct will be acted on by the other party; and (3)
knowledge, actual or constructive, of the real facts. The party
asserting the defense must have (1) a lack of knowledge and themeans of knowledge as to the real facts in question; and (2)
relied upon the conduct of the party sought to be estopped to his
prejudice. Friedland v. Gales, 131 N.C. App. 802, 807, 509 S.E.2d
793, 796-97 (1998).
Although defendants now attempt to raise the defense of
estoppel in their brief to this Court, they did not plead estoppel
as an affirmative defense in their answer, as required by our Rules
of Civil Procedure. Rule 8(c) provides in pertinent part that "[i]n
pleading to a preceding pleading, a party shall set forth
affirmatively . . . estoppel . . . and any other matter
constituting an avoidance or affirmative defense." N.C. Gen. Stat.
§ 1A-1, Rule 8(c) (1999). Where estoppel is not raised as a
defense in the answer, a defendant may not raise it for the first
time in this Court. Forbes v. Par Ten Group, Inc., 99 N.C. App.
587, 598, 394 S.E.2d 643, 649 (1990), disc. review denied, 328 N.C.
89, 402 S.E.2d 824 (1991). Although defendant finance companies
did not affirmatively plead estoppel, it appears that the trial
court relied on an estoppel theory in its partial grant of summary
judgment for them "as to any claims against them for money damages
or restitution damages (affirmative damages) arising out of any of
the transactions complained of prior to the date of the institution
of this action and service of the complaints upon each separate
defendant." There are no allegations in the answer of defendant
finance companies which would support the elements of an equitable
estoppel. Thus, insofar as estoppel was the basis for the trial
court's partial grant of summary judgment, the trial court erred. In any event, N.C. Gen. Stat. § 25A-25 does
not require that
notice be provided to a financial party which is an assignee of
commercial paper, such as retail sales contracts; that the seller
of that paper is being investigated for violations of Chapter 75;
and that a lawsuit against both the seller and its assignee may
occur. In the usual case, it appears that the transaction giving
rise to an alleged violation of Chapter 75 would occur prior to the
institution of a civil action to seek affirmative relief from the
transaction. In the present case, the delay before this action was
filed may be attributed to the extensive investigation undertaken
by the Consumer Protection Division of the Attorney General's
Office, the efforts to obtain information from Rich Food, and
intensive-_although unsuccessful_-efforts to arrive at a fair
resolution of the issues involved in this case. Although defendant
finance companies complain that they were unjustly prejudiced by
plaintiff's failure to give them notice of the ongoing
investigation, they did not plead plaintiff's alleged inaction in
bar of this claim as required. We note that estoppel does not
normally operate to bar the actions of the State or its agencies,
and arises only “if such an estoppel will not impair the exercise
of the governmental powers of the county.” Washington v.
McLawhorn, 237 N.C. 449, 454, 75 S.E.2d 402, 406 (1953). See also
Hicks v. Freeman, 273 F. Supp. 334, 338 (M.D.N.C. 1967)(“estoppel
should be applied with great caution to the Government and its
officials”), aff'd, 397 F.2d 193 (4th Cir. 1968), cert. denied, 393
U.S. 1064, 21 L. Ed. 2d 707 (1969). [4]Likewise, defendant finance companies now seek to argue
that plaintiff has elected its remedy by entering into a consent
judgment with Rich Food enjoining certain sales practices, and
requiring that Rich Food honor the terms of contracts to which Rich
Food has already entered. Again, we note that the defendant
appellants did not plead an election of remedies in bar of
plaintiff's claims against them. Election of remedies is merely a
form of estoppel, which must be pled as an affirmative defense
under the provisions of Rule 8. See Baker v. Edwards, 176 N.C.
229, 233-34, 97 S.E.2d 16, 18 (1918); N.C. Gen. Stat. § 1A-1, Rule
8(c).
Further, in an action under N.C. Gen. Stat. § 75-1.1 based on
deceptive sales practices, a plaintiff may allege inconsistent
remedies, and need not make its election until either prior to jury
instructions or after return of the jury verdict. See First Atl.
Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 256-57, 507
S.E.2d 56, 65-66 (1998) (“entry of summary judgment against
plaintiff on its unfair and deceptive trade practices claim would
be inappropriate on the basis of inconsistent remedies.”). Thus,
even if defendants' plea of election of remedies were properly
before us, it is prematurely made.
In summary, we hold that the trial court erred in granting
partial summary judgment in favor of defendants Vernick Financial
Services, Kearney Credit Incorporated and Fair Finance Company as
to transactions which occurred prior to the institution and service
of this action, and reverse its ruling.
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