REBECCA M. FRIDAY,
Plaintiff
v
.
UNITED DOMINION REALTY TRUST, INC., t/a and d/b/a NORTHWINDS
APARTMENTS,
Defendant
Johnson, Younce, Moore & Moseley, L.L.P., by J. Sam Johnson,
Jr., for plaintiff-appellee.
Smith Moore, LLP, by Stephen P. Millikin and Lisa M. Kaminski,
for defendant-appellant.
CAMPBELL, Judge.
Northwinds Apartments (“Northwinds”) appeals from an order
awarding plaintiff, Rebecca Friday, (“Ms. Friday” or “tenant”)
treble damages and attorney's fees after a bench trial held 8
October 2001. On appeal, Northwinds contends that the trial court
erred in five ways: I. By finding that Northwinds violated N.C.
Gen. Stat. § 42-46; II. By finding that Northwinds violated the
Unfair and Deceptive Trade Practices Act (“UDTPA”); III. By finding
that Northwinds violated the North Carolina Debt Collection Act
(“NCDCA”); IV. In its findings of fact relating to: the notices
tenant received; tenant's appearance at the May 25 2000 magistratehearing; Northwinds' communications with Wind Lake Apartments;
damages assessed for injury to reputation, mental suffering,
humiliation, inconvenience and embarrassment; and damages assessed
for tenant living with her sister; and V. By awarding plaintiff
attorney's fees. We vacate the trial court's judgment and remand
to the trial court for an assessment and award of damages
consistent with this opinion.
Background Information
Ms. Friday began renting from Northwinds in August 1998. She
signed a rental agreement that had the following terms: the rent
is due on the first of each month; a $31 late charge will be
applied if the rent is paid after the 5th day of the month;
reasonable costs of collection will be charged to the tenant; no
personal check will be accepted for late payments; an
administrative fee of $75 will be added to court costs if legal
papers are filed against tenant.
Ms. Friday experienced no problems for the first year that she
resided at Northwinds from August 1998 through August 1999. In
September 1999, she moved into a larger apartment, which increased
her monthly rent to $610. In late 1999, Northwinds increased its
$75 administrative fee to $100 for new tenants. Since Ms. Friday
had lived there for one year, this increase did not apply to her.
In February 2000, however, a rental agent mistakenly applied this
increase to Ms. Friday's lease. This then caused a $100 fee to be
charged to Ms. Friday's account when Northwinds initiated ejectment
actions against her in March 2000, May 2000, and July 2000. Ms. Friday's rent was late multiple times between December
1999 and July 2000. She would eventually pay the rent and all the
$30 late charges and administrative fees that applied. Although
the lease stated that a $31 late fee would apply, Northwinds only
charged Ms. Friday $30 each time, except for once in May 2000 when
a magistrate judge entered a money judgment including a $31 late
fee.
On 6 June 2000, a $30 late fee was charged to Ms. Friday. On
16 June 2000, a $1,425 payment was received by Northwinds from
White Oak Missionary Baptist Church, causing Ms. Friday's account
balance to be $0. She made no rent payment for July. On 13 July
2000, Northwinds filed a complaint against tenant for summary
ejectment, including rent due. On 31 July 2000, judgment for
possession and $45 in court costs was entered on behalf of
Northwinds.
Between December 1999 and July 2000, Northwinds had sent a
number of notices regarding overdue rent and other charges.
Northwinds obtained three summary ejectment judgments against
tenant, two for possession, which Northwinds did not enforce and
one which included an award of money damages. Northwinds did not
initiate any legal proceeding against Ms. Friday after 13 July
2000. On 5 August 2000, Ms. Friday submitted a personal check to
Northwinds for $760. On 7 Aug 2000, Northwinds returned the check
because it did not represent the total amount due on Ms. Friday's
account. Ms. Friday testified that she vacated her apartment “[i]n
August.” In August 2000, Ms. Friday submitted an application anda $99 administrative fee to Wind Lake Apartments (“Wind Lake”).
Upon Wind Lake's rejection of Ms. Friday's application for an
apartment, she asked Northwinds what information it had given to
Wind Lake. Northwinds said that the only information it gave to
Wind Lake was that Ms. Friday had a delinquent balance on her
account. On 18 September 2001, Ms. Friday filed a complaint
against Northwinds, alleging violations of the UDTPA, violations of
the NCDCA, abuse of process and slander. She requested treble and
punitive damages. Northwinds answered and counterclaimed for
unpaid rent for July and August.
After unsuccessful attempts to settle the case, the parties
appeared for a non-jury trial on 8 October 2001. In a final
judgment entered 20 November 2001, plaintiff was awarded treble
damages in the amount of $26,679 and attorney's fees of $9,000.
Since defendant assigns error to the findings of fact and
conclusions of law in the final judgment, we will review the trial
court's rulings under a non-jury trial standard of review. In
light of our decision we need not consider defendant's post-trial
motions.
Standard of Review
“The standard of review on appeal from a judgment entered
after a non-jury trial is 'whether there is competent evidence to
support the trial court's findings of fact and whether the findings
support the conclusions of law and ensuing judgment.'” Cartin v.
Harrison, ___ N.C. App. ___, 567 S.E.2d 174 (2002), review denied,
___ N.C. App. ___, ___ S.E.2d ___ (2002) (quoting Sessler v. Marsh,144 N.C. App. 623, 628, 551 S.E.2d 160, 163, disc. review denied,
354 N.C. 365, 556 S.E.2d 577 (2001)). We will consider the
applicable findings and conclusions according to defendant's
assignments of error.
Damages Awarded to Plaintiff
The trial court found as a fact that the following damages
should be awarded to plaintiff:
[N]ine late fees assessed at $30, six being
collected ($270); two administrative fees
collected ($200); one administrative fee
charged ($100); five months rent at $465
[]($232[5]); injury to her reputation, and
mental suffering, humiliation, inconvenience,
and embarrassment ($6,000); total damages
$8,893.
The trial court then ordered:
[T]hat [p]laintiff shall have and recover of
the [d]efendant the full sum of $26,679.00,
the Court having trebled damages found in the
sum of $8,893.00, together with the costs of
court as taxed by the Clerk, which costs shall
include attorneys fees for plaintiff, in the
further sum of $9,000.00, pursuant to GS 75-
1.1 et seq. . . . The [p]laintiff shall not
recover for abuse of process, for slander, nor
for punitive damages, and those actions are
dismissed.
After reviewing the record, we conclude that the evidence presented
at trial does not support many of the findings of fact made by the
trial court as contained in its final judgment. Further, we
conclude that the trial court's conclusions are not in accordance
with law with respect to certain statutes discussed below. For the
reasons stated herein, we hold that the trial court erred in
ordering certain damages and in trebling those damages.
I. N.C. Gen. Stat. § 42-46 Defendant first contends that the trial court erred in its
finding that Northwinds violated N.C. Gen. Stat. § 42-46 by
charging a late fee in excess of 5% of the rental cost by stating
in its lease that a late fee of $31 will be charged and by charging
an administrative fee of $75 as being a “type of 'late charge,'
which would exceed the 5% limitation in GS 42-46(a).” We disagree
with respect to the lease provision for a $31 late fee. We agree
with respect to the $75 administrative fee.
Late fee
N.C. Gen. Stat. § 42-46 provides:
(a) In all residential rental agreements in
which a definite time for the payment of the
rent is fixed, the parties may agree to a late
fee not to exceed fifteen dollars ($15.00) or
five percent (5%) of the rental payment,
whichever is greater, to be charged by the
lessor if any rental payment is five days or
more late.
. . .
(c) Any provision of a residential rental
agreement contrary to the provisions of this
section is against the public policy of this
State and therefore void and unenforceable.
N.C. Gen. Stat. § 42-46(a) and (c) (2001). Northwinds adopted a
computer program that calculates a 5% late payment amount for each
tenant. Northwinds' rental agents include a late payment charge in
each tenant's lease agreement. In this case, the computer's
calculation of 5% of plaintiff's $610 rent equaled $30.50. The
rental agent dealing with Ms. Friday's account rounded the $30.50
charge up to $31.00. Thus, plaintiff's lease agreement stated: “A
$31.00 late charge, together with all reasonable costs of
collection, including legal fees, shall be payable with any rentnot received on or before the fifth day of each calendar month.”
Despite this statement in the lease, Ms. Friday was never charged
and never paid more than $30 for her late rent payment fees. On
all the notices that Northwinds sent to Ms. Friday regarding her
rent being overdue, the late fee was stated as $30.
We cannot, however, ignore the clear language of the statute
that “any provision of a residential rental agreement contrary to
the provisions of this section,” which includes the provision that
a late fee cannot exceed five percent of the rental payment, “is
against the public policy of this State and therefore void and
unenforceable.” N.C. Gen. Stat. § 42-46(c) (2001). We hold that
although Northwinds only charged and Ms. Friday only paid a $30
late fee each time her rent was late, the $31 late fee provision of
the Northwinds lease agreement is contrary to the provisions of
G.S. § 42-46(a) and therefore void and unenforceable as against
North Carolina public policy. Thus, plaintiff's account status
should reflect a credit of the amount paid, i.e., $30 for each time
Ms. Friday submitted a late payment to Northwinds.
Administrative Fee
In addition, Northwinds' lease agreements provide in a
“Special Clauses” section: “If legal papers are filed against you,
there will be an additional $75.00 administrative fee included to
any court cost and rent due.” Ms. Friday initialed this provision
in her lease agreement dated 1 September 1999. The trial court
found as a fact that the $75 administrative fee in the special
clauses section of the lease agreement is “a type of 'late charge,'which would exceed the 5% limitation in GS 42-46(a).” We disagree.
The $75 administrative fee is not a further type of late fee. The
evidence in the record shows that Northwinds' lease agreement
provides for a late fee of $31. The $75 fee is designated as an
“administrative fee” that is only applied upon legal papers being
filed against the tenant. The sole charge for rent being paid
after the fifth of the month is $31. Only upon a filing of legal
papers will the administrative fee be applied. Thus, the $31 late
fee is charged if Ms. Friday does not pay her rent by the fifth of
the month, but the $75 administrative fee is only charged if legal
papers are filed against a tenant. A lease providing for a fee
reasonably related to such an additional expense incurred and not
solely relating to rent being late does not violate G.S. § 42-46.
Such a fee is not a subterfuge, as implied by the trial court's
ruling, for allowing a lessor to collect a late fee exceeding 5% of
the rent payment. Ms. Friday initialed the administrative fee
provision in the lease, indicating she agreed to this provision
being added into the lease. By signing the lease agreement, she
assented to the terms therein, including the administrative fee.
Having decided that the $75 administrative fee is lawful, the
issue remains as to Northwinds' liability for the three times it
mistakenly charged Ms. Friday $100 instead of $75 when ejectment
actions were filed against her. We will consider this issue in our
discussion of G.S. §§ 75-54 and -55 below.
II. UDTPA and III. NCDCA In its next two assignments of error, defendant argues that
the trial court erred in finding that Northwinds violated the UDTPA
and that it violated the NCDCA. We disagree with respect to
certain actions found to be violations by defendant.
The UDTPA is found in N.C. Gen. Stat. Chapter 75. Article 1,
§ 75-1.1, states:
(a) Unfair methods of competition in or
affecting commerce, and unfair or deceptive
acts or practices in or affecting commerce,
are declared unlawful.
N.C. Gen. Stat. § 75-1.1(a) (2001). Article 2 sets out prohibited
acts by debt collectors. We hold that defendant, in seeking to
recover past due rent and related charges, is a debt collector as
defined under the NCDCA, Article 2, § 75-50. This Court has
previously held that, “Chapter 75 applies to residential rentals
because the rental of residential housing is commerce pursuant to
§ 75-1.1.” Creekside Apartments v. Poteat, 116 N.C. App. 26, 446
S.E.2d 826 (1994) (citing Love v. Pressley, 34 N.C. App. 503, 516,
239 S.E.2d 574, 583 (1977)); see also Spinks v. Taylor, 303 N.C.
256, 278 S.E.2d 501 (1981); Davis Lake Community Ass'n, Inc. v.
Feldmann, 138 N.C. App. 292, 530 S.E.2d 865 (2000); Reid v. Ayers,
138 N.C. App. 261, 531 S.E.2d 231 (2000). Thus, defendant is
subject to all provisions of Chapter 75, including Article 2, § 75-
56, which states inter alia:
The specific and general provisions of this
Article [Article 2 Prohibited Acts by Debt
Collectors] shall exclusively constitute the
unfair or deceptive acts or practices
proscribed by G.S. 75-1.1 in the area of
commerce regulated by this Article.
Notwithstanding the provisions of G.S. 75-15.2and G.S. 75-16, in private actions or actions
instituted by the Attorney General, civil
penalties in excess of two thousand dollars
($2,000) shall not be imposed, nor shall
damages be trebled for any violation under
this Article.
N.C. Gen. Stat. § 75-56 (2001). Thus, for any “unfair or deceptive
acts or practices proscribed by” § 75-1.1 that are covered by
Chapter 75, Article 2, civil penalties are limited to $2,000 and
any damages assessed cannot be trebled. Id. If a conclusion of
law is made that a debt collector violates a provision of Article
2, then that violation can be “also a violation of GS 75-1.1,” as
the trial court found in this case with respect to Northwinds'
charge for attorney's fees. However, a debt collector who violates
a provision of Article 2 and thereby violates G.S. § 75-1.1, is
only subject to the damages and penalty provided for in Article 2,
§ 75-56 and is not subject to the damages provisions in Article 1.
An attempt by a debt collector to collect a late fee for past
due rent falls under Article 2 of Chapter 75, the debt collection
statute, as a late fee comes within the definition of “debt” under
§ 75-50. We have concluded that the $31 late fee stated in
plaintiff's lease agreement with Northwinds is void as being in
violation of G.S. § 42-46. Therefore, because Northwinds is a debt
collector under Chapter 75, Article 2, the evidence could support
a conclusion that Northwinds violated certain Article 2 provisions
by a lease provision that violates G.S. § 42-46 by stating a late
fee that exceeds 5% of the rent payment. The evidence supports a
finding that Northwinds may have violated the following Article 2
provisions: §§ 75-54(4),(6) and 75-55(2). § 75-54(4)
This section provides:
No debt collector shall collect or attempt to
collect a debt or obtain information
concerning a consumer by any fraudulent,
deceptive or misleading representation. Such
representations include, but are not limited
to, the following: . . .
(4) Falsely representing the character,
extent, or amount of a debt against a consumer
or of its status in any legal proceeding[.]
N.C. Gen. Stat. § 75-54(4) (2001).
Over the course of the nine months during which these events
occurred, Northwinds filed three summary ejectment actions against
Ms. Friday. The first complaint, filed 17 March 2000, requested a
total amount of $685 consisting of past due rent of $610 and a $30
late fee and $45 for court costs. On 3 April 2000, the magistrate
entered a judgment for possession in Northwinds' favor. On 14 May
2000, Northwinds filed a complaint requesting a total of $785,
which included past due rent of $610, a $30 late fee, a $100
administrative fee, and $45 for court costs. The magistrate
entered a money judgment of $539, which included a prorated amount
of rent from the beginning of May until the date of the judgment
plus a $31 late fee. The money judgment did not include the
administrative fee or court costs. On 13 July 2000, Northwinds
filed a complaint requesting $785, which included the same fees as
stated above in reference to the 14 May 2000 complaint. The
magistrate entered a judgment in Northwinds' favor for possession
only and taxed $45 to Ms. Friday for court costs. By providing for a late fee that violates G.S. § 42-46, the
evidence could support a finding that Northwinds violated G.S. §
75-54(4) by “[f]alsely representing the . . . amount of a debt”
against Ms. Friday when defendant requested the late fee in all
three of the summary ejectment complaints, or “legal
proceeding[s],” against plaintiff.
In addition, the section may be violated by defendant
representing to the magistrate court in the latter two summary
ejectment complaints that Ms. Friday owed Northwinds a $100
administrative fee when the lease provides for a $75 administrative
fee.
With respect to the $45 sought to be recovered when defendant
files a summary ejectment action, we note that the trial court
found as a fact:
Defendant designated court costs as attorneys
fees because the accounting codes on the
computer it uses applied in several states.
However, the effect on an unsophisticated
debtor of the March 23, 2000 letter was that
an attorney fee was being charged where no
lawyer had been involved in their dealings to
that point. Claiming an attorney fee in the
March 23 letter violated GS 75-5[4](4), by
falsely representing the character and extent
of the debt.
This finding is unsupported by the evidence presented. The notices
Northwinds sent to Ms. Friday regarding her past due rent and the
other charges incurred stated:
If you have not paid all money due by
[applicable date], eviction papers will be
filed and an additional $100.00 administrative
fee and $45.00 court cost will be added to any
balance that is due.
The $45 is a court cost to be imposed by the trial court and not a
“debt” under Article 2, § 75-50. Defendant did not make a false
representation in representing to Ms. Friday that the $45 was a
court cost that would be added to her balance due. Of all the
notices sent to Ms. Friday regarding her overdue charges, only the
23 March 2000 letter lists the $45 as an “Attorney's Fee[].” Our
conclusion that the $45 sought as a recovery of court costs is not
a “debt” under Chapter 75, Article 2, prevents the finding that
defendant violated G.S. § 75-54(4) by referring to the $45 as an
“Attorney's Fee” in the 23 March letter. Additionally, the
paragraph below the list of transaction descriptions on the notices
states that the $45 is a court cost. The character of the $45
court cost is clear and defendant was not in violation of G.S. §
75-4(4) with respect to this item.
§ 75-54(6)
The $31 late fee provision may also be a violation of G.S. §
75-54(6) by defendant “[f]alsely representing that an existing
obligation of the consumer may be increased by the addition of
attorney's fees, investigation fees, service fees, or any other
fees or charges.” N.C. Gen. Stat. § 75-54(6) (2001). We do not,
however, find that the $45 designated as an “attorney fee” in the
23 March 2000 letter or on the account ledger violates Article 2.
As stated above, it is a court cost to be imposed by the trial
court as part of its judgment and not a “debt” under Article 2, §
75-50. Thus, on remand, Northwinds' late notice regarding a $45attorney's fee should not be concluded to be in violation of G.S.
§ 75-54(6).
Again the evidence may support that this section was violated
by defendant representing to Ms. Friday through the notices that
she owed Northwinds an administrative fee increased to $100 when
her lease provides for a $75 administrative fee.
§ 75-55
This section prohibits a debt collector from using
unconscionable means to collect or attempt to collect any debt.
Subsection (2) states that such means include:
(2) Collecting or attempting to collect from
the consumer all or any part of the debt
collector's fee or charge for services
rendered, collecting or attempting to collect
any interest or other charge, fee or expense
incidental to the principal debt unless
legally entitled to such fee or charge.
N.C. Gen. Stat. § 75-55(2) (2001). The trial court found that,
“The false representations by letters of Defendant to Plaintiff
violate GS 75-55(2), as attempts to collect a debt by
unconscionable means.” The evidence could support a conclusion
that Northwinds violated this section by “collecting or attempting
to collect” a charge “incidental to the principal debt” to which it
is not legally entitled by charging void late fees and by twice
overstating the administrative fee by $25. Id.
IV. Trial court's findings of fact
Defendant next assigns error to the trial court's findings of
fact relating to: the notices tenant received; tenant's appearance
at the 25 May 2000 magistrate hearing; Northwinds' communicationswith Wind Lake Apartments; damages assessed for injury to
reputation, mental suffering, humiliation, inconvenience and
embarrassment; and damages assessed for tenant having to live with
her sister. We agree.
The notices tenant received
The trial court found:
Under the totality of the circumstances here,
it is an unfair and deceptive trade practice
for a residential landlord to send a series of
letters, and engage in a series of summary
ejectment filings, over a period of at least
five months, seeking not only to recover rent
and court costs, but seeking unjustified
administrative fees and void late fees, . . .
Although we have concluded that the $31 fee is void as violating
G.S. § 42-46, we do not conclude that the evidence supports the
above finding. Sending notices to a tenant regarding past due rent
is a debt collection practice covered by Article 2 and this Article
“exclusively constitute[s] the unfair or deceptive acts or
practices proscribed by G.S. 75-1.1 in the area of commerce
regulated by this Article.” N.C. Gen. Stat. § 75-56 (2001). The
evidence presented is not sufficient to support a finding that
Northwinds' notices regarding overdue rent sent to Ms. Friday
violate any Article 2 provision, other than as we have already
concluded and discussed. Thus, on these facts, sending the notices
does not constitute an unfair and deceptive trade practice.
Northwinds' communications with Wind Lake Apartments
The trial court found that “it is an unfair and deceptive
trade practice for a residential landlord . . . to tell the
tenant's prospective landlord that she still owes it money, andurge the prospective landlord not to rent to plaintiff because she
still owes defendant money.” After a careful review of the record,
we find no evidence to support a finding that Northwinds “urged”
Wind Lake Apartments not to rent to plaintiff. This finding is
erroneous as unsupported by the evidence.
Even if, at Wind Lake's request, Northwinds stated that Ms.
Friday's account with Northwinds was delinquent, this does not, in
and of itself, amount to an unfair and deceptive trade practice.
The question remains whether or not Ms. Friday was actually
delinquent when Wind Lake conferred with Northwinds. Considering
the $30 charges void under G.S. § 42-46 and the overcharge of $25
for each $100 administrative fee unlawful, then Ms. Friday's
account balance may have been different from what defendant
calculated when Wind Lake called Northwinds in August 2000. Our
calculations show that from December 1999 through August 2000, Ms.
Friday owed Northwinds a total of $5,850 consisting of nine months'
rent at $610 per month; three $45 court cost fees; and three $75
administrative fees. Through July 2000, Ms. Friday paid Northwinds
a total of $4,740 for the following charges: seven months of rent
($4,270); six $30 late fees ($180); two $45 court cost fees; and
two $100 administrative fees. Thus, applying all that she paid to
the total she owed for rent in July and August, her balance due was
$1,110. If Northwinds had accepted the $760 payment she brought to
Northwinds on 5 August 2000, Ms. Friday would still have a $350
outstanding balance remaining on her account. In spite of the
charges that defendant wrongfully charged to plaintiff, Northwindsresponded correctly and in good faith to Wind Lake's inquiry, that
plaintiff's account was delinquent. We conclude that Northwinds
did not violate the UDTPA by doing so.
Damages assessed for injury to reputation, mental suffering,
humiliation, inconvenience and embarrassment
There is no evidence in the record that supports the trial
court's finding that plaintiff suffered “injury to her reputation,
and mental suffering, humiliation, inconvenience, and
embarrassment.” The trial court awarded Ms. Friday $6,000 in
damages for these injuries. Plaintiff's complaint filed against
defendant included allegations of slander, which, if proven, would
have included a finding of damage to her reputation. However, the
trial court specifically found: “Plaintiff has not maintained an
action for Slander [sic], as words spoken or published by the
participants in a judicial proceeding are absolutely privileged.”
The only possible damage to plaintiff's reputation is that the
failure to remove the magistrate's judgments against plaintiff
could have affected her credit reputation. The trial court found:
It is an unfair and deceptive trade practice
for a residential landlord, who owns some 1500
apartments in the central Piedmont of N.C., to
regularly and repeatedly take judgments
against delinquent tenants for money damages
and court costs, and to fail to notify the
clerk to mark those judgments satisfied, as
required by GS 1-329(c). . . .
We conclude, however, that defendant did not violate G.S. § 1-239.
N.C. Gen. Stat. § 1-239 states:
(c) Upon receipt by the judgment creditor of
any payment of money upon a judgment, the
judgment creditor shall within 60 days afterreceipt of the payment give satisfactory
notice thereof to the clerk of the superior
court in which the judgment was rendered, . .
. If the judgment creditor fails to file the
notice required by this subsection within 30
days following written demand by the debtor,
he may be required to pay a civil penalty of
one hundred dollars ($100.00) in addition to
attorneys' fees and any loss caused to the
debtor by such failure.
N.C. Gen. Stat. § 1-239(c) (2001). Nothing in this section
requires a creditor to file a notice that the judgment has been
satisfied until a written demand has been made. There is no
finding of fact and no evidence to support a finding that plaintiff
ever submitted such a request.
In addition, there is absolutely no evidence in the record
that supports the trial court's finding that United Dominion Realty
Trust, Inc., d/b/a Northwinds Apartments is engaged in a practice
of “regularly and repeatedly” failing to notify the clerk to mark
judgments taken against delinquent tenants satisfied.
Finally, there are no allegations that plaintiff suffered from
intentional or negligent infliction of emotional distress and there
are no facts to support such a conclusion. Nonetheless, the trial
court awarded plaintiff $6,000 for injury to her reputation, mental
suffering, humiliation, inconvenience, and embarrassment. This
award is not supported by the evidence and not in accordance with
law.
Damages assessed for tenant living with her sister
Plaintiff presented evidence that the rent she would have been
charged if she rented an apartment with Wind Lake was $465 per
month. Upon finding that Northwinds urged Wind Lake “not to rentto plaintiff because she still owes defendant money,” the trial
court found that plaintiff's damages include “five months rent at
$465 []($232[5]).” We find no evidence to support such a finding,
which then led to an erroneous assessment of damages in the order.
Plaintiff paid no rent for five months to her sister, at whose
house she resided for five months. Plaintiff presented no evidence
that she suffered any injury or is entitled to any damages for
living rent free for five months. Thus, the $2325 assessed as
damages for five months' rent at $465 is erroneous.
V. Awarding tenant attorney's fees
The trial court awarded plaintiff attorney's fees of $9,000 to
be paid by defendant. An award of an attorney's fee is appropriate
for a violation of Article 2 in the same manner as any other part
of Chapter 75. G.S. § 75-56 does not limit the award of an
attorney's fee as allowed by § 75-16.1. However, it will be
necessary for the trial court to make new findings and conclusions
consistent with this opinion to support an award of an attorney's
fee.
We vacate the trial court's order and remand for the trial
court to: (1) make findings of fact supported by the evidence; (2)
make conclusions of law based on those findings; and (3) reassess
and award the appropriate amount of damages in accordance with this
opinion.
Vacated and remanded.
Judges WALKER and McCULLOUGH concur. Judges WALKER and McCULLOUGH concurred in this opinion prior
to 31 December 2002.
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