NO. COA02-1460

NORTH CAROLINA COURT OF APPEALS

Filed: 04 November 2003

    Appeal by plaintiff from orders entered 17 December 2001 by by Judge D. Jack Hooks, Jr.; 14 January 2002 by Judge E. Lynn Johnson; and 11 March 2002 by Judge E. Lynn Johnson in Columbus County Superior Court. Heard in the Court of Appeals 8 September 2003.

    Tenkasi M. Viswanathan, pro se.

    Maupin, Taylor & Ellis, PA, by M. Keith Kapp and Camden R. Webb, for defendant-appellee Chrysler Financial Company, LLC and Cranfill, Sumner & Hartzog, LLP, by Robert W. Sumner and Jaye E. Bingham, for defendant-appellee American Recovery Specialists.

    STEELMAN, Judge.

    Plaintiff, Tenkasi M. Viswanathan, appeals from orders dismissing his claims against defendants for: (1) unfair and deceptive trade practices under Chapter 75 of the North CarolinaGeneral Statutes; (2) a violation of due process; (3) a violation of his rights under the Fourth Amendment; and (4) a violation of his rights under the North Carolina Constitution. For the reasons discussed herein, we affirm in part and reverse and remand in part.
    Plaintiff's son, Dhuruvan Viswanathan (Dhuruvan), purchased an Isuzu Amigo automobile in July 1996. The purchase was financed with a loan from defendant Chrysler Financial Company (Chrysler). Dhuruvan defaulted on the loan in May 1997. On 6 September 1997, employees of defendant American Recovery Specialists (ARS) came to plaintiff's home, where the Isuzu was parked, and repossessed the car at about 2:30 a.m.
    At the time of the repossession, plaintiff's wife, Uma, was home alone. She saw “powerful floodlights” in the backyard and heard the tow truck driving around her home. Plaintiff alleged that Uma was so overcome with fear that she later resigned her job at the University of North Carolina at Wilmington. He further alleged that the loss of Uma's income strained the Viswanathan marriage. Subsequently, Uma left plaintiff in January 1998. Uma and plaintiff have not seen each other since May 1999.
    Plaintiff filed a complaint on 6 September 2001, seeking “compensatory and exemplary damages,” punitive damages, and attorney fees. Plaintiff alleged that the conduct of defendants: (1) constituted unfair and deceptive trade practices under Chapter75 of the North Carolina General Statutes; (2) violated due process because the vehicle was not repossessed during normal business hours; (3) violated plaintiff's rights under the Fourth Amendment to be secure in his home; and (4) violated his rights under the North Carolina Constitution to not be disseized of his property except by law.
    On 25 October 2001, Chrysler filed a motion seeking dismissal of plaintiff's complaint and attorney fees. The motion to dismiss was made under Rule 12(b)(6) based upon plaintiff's failure to state a claim upon which relief can be granted, and the applicable statute of limitations. Chrysler also sought attorney fees pursuant to N.C. Gen. Stat. § 75-16.1(2). On 13 December 2001, Judge D. Jack Hooks, Jr. entered an order dismissing plaintiff's claims against Chrysler and awarded Chrysler $2,949.00 in attorney fees. On 27 December 2001, plaintiff moved for the trial court to alter or amend the dismissal order pursuant to Rules 52(b) and 59 of the North Carolina Rules of Civil Procedure. This motion was denied by Judge E. Lynn Johnson on 11 March 2002.
    Defendant ARS was served by certified mail on 4 October 2001. On 27 November 2001, plaintiff moved for an entry of default pursuant to Rule 55(a) for ARS's failure to plead. No default was entered. On 14 December 2001, ARS filed a motion to dismiss and a motion for attorney fees. The trial court granted ARS's motion todismiss on 14 January 2002. Plaintiff's motion to alter or amend this order pursuant to Rules 52(b) and 59 was denied on 11 March 2002. Plaintiff appeals the trial court's grant of defendants' motions to dismiss and the trial court's denial of his motions to alter or amend the respective orders.
    In his first assignment of error, plaintiff argues that the trial court should not have heard Chrysler's motion to dismiss pursuant to Rule 12(b)(6) and motion for attorney fees under section 75-16.1 because the motions did not comply with Rule 12(g) of the North Carolina Rules of Civil Procedure. Rule 12(g) allows a party to consolidate all available Rule 12 defenses into one motion. This rule does not, as contended by plaintiff, on its face prohibit Chrysler from presenting its motion for attorney fees along with its motion to dismiss. It has no applicability to the situation in the instant case. This assignment of error is without merit.
    In his second assignment of error, plaintiff argues that Chrysler's motion to dismiss plaintiff's unfair and deceptive trade practice claim should not have been granted. A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint, which will be dismissed if it is completely without merit. Lee v. Paragon Group Contractors, 78 N.C. App. 334, 337 S.E.2d 132 (1985), rev. denied, 316 N.C. 195, 345 S.E.2d 383 (1986); Sutton v. Duke,277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970).
    Under section 75-1.1, one makes a claim for unfair or deceptive trade practices or acts by showing: (a) defendant committed an unfair or deceptive act or practice; (b) the action in question was in or affecting commerce; and (c) the act proximately caused injury to the plaintiff. Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C. App. 650, 464 S.E.2d 47 (1995).     
    In his complaint, plaintiff alleged that “[t]he operation of repossession done about midnight beginning late evening and ending in the wee hours of the next morning constitutes an unfair business act and practice.” He further contends that the manner of the repossession frightened his wife, Uma, ultimately resulting in the dissolution of his marriage.
     It is clear from plaintiff's complaint that the vehicle that was repossessed did not belong to plaintiff, but rather to his son. There is no allegation that plaintiff was even present at the home at the time of the repossession. As such, plaintiff has not alleged an act by defendants that proximately caused him actual injury.
    Plaintiff contends that defendants' conduct caused injury to his wife, which in turn, resulted in damage to him. This is essentially a claim by plaintiff for loss of consortium. Under North Carolina law, a spouse's claim for loss of consortium must bejoined with the other spouse's claim for personal injury. Nicholson v. Hugh Chatham Memorial Hospital, Inc., 300 N.C. 295, 266 S.E.2d 818 (1980). Plaintiff's wife is not a party to this action and plaintiff cannot maintain a separate action for loss of consortium. The trial court did not err in dismissing plaintiff's claim for unfair and deceptive trade practices. This assignment of error is without merit.
    In his third assignment of error, plaintiff argues that the trial court erred in requiring him to show excusable neglect under Rule 60(b) in denying his motions under Rules 52(b) and 59 as to Judge Hooks's order of 17 December 2001. We disagree.
    Plaintiff's motion raised three issues: (1) he did not have adequate notice of the 5 November 2001 hearing; (2) there was insufficient evidence of malice and frivolity to support the trial court's award of attorney fees against him; and (3) the trial court improperly dismissed his claims against Chrysler.
    We first note that motions under Rule 59 are addressed to the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 413 S.E.2d 268 (1992).
    Plaintiff was served with Chrysler's motion to dismiss and motion for attorney fees and a notice of hearing by mail on 23 October 2001. The hearing was noticed for 5 November 2001 at 10:00a.m. at the Columbus County Courthouse. Rule 6(d) of the North Carolina Rules of Civil Procedure provides: “A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.” N.C.R. Civ. P. 6(d).
    There was no specific contrary controlling rule applicable to Chrysler's motions. Since the notice of hearing was served by mail, three additional days must be added to the notice period. N.C.R. Civ. P. 6(e). The mailing was on 23 October 2001, affording to plaintiff 13 days notice, which was more than the required 8 days notice. Plaintiff had proper and adequate notice of the 5 November 2001 hearing.
    Plaintiff's complaint, on its face, reveals that it was frivolous and malicious. Based upon this, the trial court was justified in finding that “Plaintiff knew or should have known that the Complaint filed in this action was frivolous and malicious.”
    As noted above, the trial court properly granted Chrysler's motion to dismiss. This assignment of error is without merit.
    In his fourth and fifth assignments of error, plaintiff argues
that the trial court erred in granting Chrysler's motion for attorney fees. We agree.
    In N.C. Gen. Stat. § 75-16.1 (2003), our General Statutesstate that:
In any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such attorney fee to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that:
. . . .
(2) The party instituting the action knew, or should have known, the action was frivolous and malicious.

(Emphasis added).
    The trial court found that plaintiff knew or should have known that the action was frivolous and malicious. An award of attorney fees under section 75-16.1 is within the sound discretion of the trial judge. Borders v. Newton, 68 N.C. App. 768, 315 S.E.2d 731 (1984). There is no evidence that the trial judge abused his discretion in determining that Chrysler was entitled to attorney fees. However, in awarding attorney fees under this statute, the trial court must make findings of fact to support the award as to the time and labor expended, required skill to defend the action, customary fee, and the experience and ability of the attorney. See Lapierre v. Samco Dev. Corp., 103 N.C. App. 551, 406 S.E.2d 646 (1991). The order of the trial court made no findings concerning these matters. Without proper findings, this Court cannot properly review the decision of the trial court, even though there may beevidence to support the judgment. Farmers Bank, Pilot Mountain v. Michael T. Brown Distributors, Inc., 307 N.C. 342, 298 S.E.2d 357 (1983). We therefore remand the issue of the amount of attorney fees to the trial court for entry of adequate findings of fact and conclusions of law based thereon.
    In his sixth assignment of error, plaintiff argues that the trial court erred by denying his motion for entry of default against ARS due to their untimely answer. We disagree.
    Plaintiff's complaint was filed 6 September 2001. It was served upon ARS on 4 October 2001. ARS's motion to dismiss was not filed until 14 December 2001. Its answer was filed 17 December 2001. ARS did not seek an extension of time in which to file an answer.
    Default judgments are disfavored in the law, and therefore any doubts should be resolved in favor of allowing the case to proceed on the merits. North Carolina Nat'l Bank v. McKee, 63 N.C. App. 58, 303 S.E.2d 842 (1983). In Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981), the defendant filed an untimely answer. After the answer was filed, the clerk entered a default against the defendant. The trial court refused to set aside the entry of default. Our Supreme Court reversed, holding that once an answer has been filed, default may not be entered, even though the answer was late. Here, the trial court was correct in not enteringdefault, even though defendant's answer was untimely, as the answer had been filed. See Broughton v. McClatchy Newspapers, Inc., et al. (COA02-1034) (Filed: Nov. 4, 2003). Further, plaintiff never moved to strike the answer of ARS and did not even appear for the hearing on ARS's motion to dismiss. This case is
    AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
    Chief Judge EAGLES and Judge MCCULLOUGH concur.
    Report per Rule 30(e).    

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