STEPHAN J. WILLEN and ELIZABETH F. WILLEN, Plaintiffs v. SUSANNAH
L. HEWSON, Defendant
Appeal by defendant and plaintiffs from judgment entered 17
June 2004, and appeal by defendant from an order entered 25 June
2004 by Judge Robert C. Ervin in Mecklenburg County Superior Court.
Heard in the Court of Appeals 17 October 2005.
Bishop, Capitano & Moss, P.A., by A. Todd Capitano; Robinson,
Bradshaw & Hinson, P.A., by A. Ward McKeithen, for plaintiff-
Jones, Hewson & Woolard, by Lawrence J. Goldman, for
Susannah Hewson (defendant) appeals from a judgment and an
order of the trial court awarding $322,753.59 to Stephan Willen
(Stephan) and Elizabeth Willen (collectively plaintiffs) on
their claims against defendant for fraud and unfair and deceptive
practices, and from the trial court's granting of attorneys' fees
in the amount of $55,000.00 and costs in the amount of $3,284.18.
Defendant contends on appeal the trial court erred in concluding
that she committed fraud or unfair and deceptive practices.
Plaintiffs also appeal, arguing the trial court failed to awardappropriate attorneys' fees. For the reasons stated herein, we
affirm the judgment and order of the trial court.
Plaintiffs presented evidence at trial tending to show the
following, as found by the trial court: On or about 2 May 2000,
plaintiffs read an advertising circular featuring for sale property
owned by defendant in Mecklenburg County, North Carolina.
Plaintiffs subsequently viewed the property, an estate of
approximately twenty-two acres of land with a large house, known as
Deverill, and received marketing material advertising Deverill as
peaceful and serene. Plaintiffs subsequently met with
defendant at Deverill and informed her of their desire to have a
rural setting in which to raise their four small children.
Defendant had been raised at Deverill and had resided on property
adjacent to Deverill for more than forty years. Defendant had
purchased Deverill only two months earlier at a partition
proceeding for $685,000.00. She informed plaintiffs that Deverill
was suitable for raising children and told them stories of her own
upbringing on the property to encourage their belief as to the
property's suitability. Defendant never informed plaintiffs that
Deverill was not, in fact, peaceful or serene.
In reliance upon defendant's representations concerning
Deverill, including her description of the property as peaceful and
serene, plaintiffs executed two purchase agreements with defendant:One for the house and surrounding eight acres at a purchase price
of $700,000.00, and the other for the remaining approximately
fourteen acres at a purchase price of $238,165.00. The contracts
provided that plaintiffs would be excused from closing on the
property if they were unable to sell their existing residence by 30
August 2000. The contracts also provided plaintiffs the right to
inspect the property and to walk away from the transaction.
During an inspection of the property on 1 July 2000,
plaintiffs encountered defendant's niece, Sherry Langevin
(Langevin). Langevin had resided on property adjacent to
Deverill since 1987. During their conversation, Langevin mentioned
that there had been problems with kids coming onto the property
after high school football games around Halloween. Stephan
subsequently telephoned defendant and specifically inquired whether
Deverill suffered from a trespass problem. Defendant denied any
trespass problem existed, and stated that such incidents had only
happened once or twice. Defendant told Stephan that Langevin often
exaggerated, and that her statement about the trespassing was one
Plaintiffs were unable to sell their home by 30 August 2000.
They did not elect to terminate their contract, however, as was
their right, and eventually closed on the purchase of Deverill on
29 September 2000. Shortly after moving into their new home, plaintiffs
discovered that Deverill suffered from a material, long-standing,
and year-round problem with trespass and vandalism. Over the
ensuing two years, plaintiffs experienced frequent incidents of
trespass and vandalism. Plaintiffs lost numerous items of personal
property due to theft, suffered suspected arson at one of their
buildings, were verbally accosted in their own yard, and had
windows and lights shot out with guns. Stephan was physically
assaulted. These incidents caused plaintiffs to develop a siege
mentality which materially altered their lifestyle. In response
to the trespass and vandalism problems, plaintiffs installed a new
gate at the entrance of their driveway, a home security system, and
a security fence around a portion of the perimeter of their home.
For cost reasons, plaintiffs did not fully encircle their home or
the entire twenty-two acres of property. The security measures
taken by plaintiffs, however, failed to eliminate the trespass and
Stephan wrote to defendant in March 2001 concerning her
failure to inform plaintiffs of the trespass problems associated
with Deverill and asked that she participate in appropriate
security measures. Defendant responded to the letter by having her
attorney meet with Stephan, through whom defendant denied knowledge of the problem and informed him that the rule of caveat
emptor absolved her of responsibility.
The trial court found that defendant was aware of the scope
and severity of the trespass and vandalism problems at Deverill,
but purposely withheld this information from plaintiffs. In
response to plaintiffs' specific inquiry, defendant denied the
existence of any trespassing problem and represented Deverill as
peaceful and serene, although she knew these representations were
false. Further, defendant engaged in an artifice intended to
discourage [plaintiffs] from making further inquiry about [the
trespass and vandalism problems] by discrediting the Langevins
. . . . The trial court also found that there were not
sufficient indicia of trespass and vandalism problems visible on or
adjacent to Deverill in 2000 to have put reasonable persons in
[plaintiffs'] position on notice of the pervasive trespass problems
associated with the property.
The trial court concluded that defendant's conduct constituted
fraud and unfair and deceptive practices and entered judgment in
favor of plaintiffs in the amount of $322,753.59. The trial court
also awarded reasonable attorneys' fees in the amount of $55,000.00
and costs of $3,284.18. Defendant and plaintiffs appeal.
I. Defendant's Appeal
 Defendant argues the trial court erred in concluding that
she committed fraud. Specifically, defendant contends plaintiffs
failed to demonstrate that they were denied the opportunity to
investigate the property, or that they could not have discovered
the trespass and vandalism problem through the exercise of due
diligence. We find no merit to this argument.
'It is well settled in this jurisdiction that when the trial
court sits without a jury, the standard of review on appeal is
whether there was competent evidence to support the trial court's
findings of fact and whether its conclusions of law were proper in
light of such facts.' Keel v. Private Bus., Inc
., 163 N.C. App.
703, 707, 594 S.E.2d 796, 799 (quoting Shear v. Stevens Building
, 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)), disc.
, 358 N.C. 732, 601 S.E.2d 535 (2004). Where such
competent evidence exists, this Court is bound by the trial court's
findings of fact even if there is also other evidence in the record
that would sustain findings to the contrary. Eley v. Mid/East
., 171 N.C. App. 368, 369, 614 S.E.2d 555, 558
(2005). The trial court's conclusions of law, by contrast, are
reviewable de novo
In the present case, defendant assigned error to numerous
findings of fact by the trial court, but has failed to argue any of
these assignments of error in her brief on appeal. Suchassignments of error are therefore abandoned, and the trial court's
findings are binding on appeal. See
N.C.R. App. P. 28(a). We must
now determine whether the findings made by the trial court support
its conclusion that defendant committed fraud and unfair and
deceptive practices. We begin with an examination of fraud.
An actionable claim for fraud must include the following
elements: (1) a false representation or a concealment of a
material fact which is (2) reasonably calculated to deceive, (3)
made with the intent to deceive, (4) which does in fact deceive,
and (5) results in damage to the injured party. State Properties,
LLC v. Ray
, 155 N.C. App. 65, 72, 574 S.E.2d 180, 186 (2002), disc.
, 356 N.C. 694, 577 S.E.2d 889 (2003). A
plaintiff's reliance on alleged false representations by the
defendant must be reasonable. Id
. Where a plaintiff fails to make
any independent investigation, or if a plaintiff is informed of the
true condition of the property, reliance is not reasonable. Id
73, 574 S.E.2d at 186. The reasonableness of a party's reliance
is a question for the jury, unless the facts are so clear that they
support only one conclusion. Id
Defendant contends plaintiffs' reliance upon her alleged
misrepresentation that no trespass problem existed was unreasonable
as a matter of law, in that plaintiffs failed to make a sufficient
independent investigation. Further, defendant argues, plaintiffshad knowledge of potential trespassing problems from the
information supplied them by Langevin. Defendant contends these
factors are fatal to plaintiffs' claim. We disagree.
'Even if there is no duty to disclose information, if a
seller does speak then he must make a full and fair disclosure of
the matters he discloses.' Phelps-Dickson Builders, LLC v.
, 172 N.C. App. 427, 438, 617 S.E.2d 664, 671
(2005) (quoting Freese v. Smith
, 110 N.C. App. 28, 35, 428 S.E.2d
841, 846 (1993)). Even where a plaintiff's reliance is
in close cases, sellers [who] intentionally
and falsely represent material facts so as
to induce a party to action should not be
permitted to say in effect, 'You ought not to
have trusted me. If you had not been so
gullible, ignorant, or negligent, I could not
have deceived you.'
. (quoting Johnson v. Owens
, 263 N.C. 754, 758, 140 S.E.2d 311,
In the instant case, the evidence tended to show, and the
trial court found, that [plaintiffs] reasonably relied upon
[defendant's] representations that Deverill was peaceful and serene
and that it did not suffer from trespass problems. Further, the
trial court found that [defendant] intended that [plaintiffs] rely
on her representations concerning the peaceful and serene character
of Deverill and her denial of a trespass problem and that theyforego any further inquiry concerning the subject matter. The
trial court found that there were not sufficient indicia of
trespass and vandalism problems visible on or adjacent to Deverill
in 2000 to have put reasonable persons in the [plaintiffs']
position on notice of the pervasive trespass problems associated
with the property. Finally, the trial court found that
[defendant] engaged in an artifice intended to discourage the
[plaintiffs] from making further inquiry about such issues by
discrediting the Langevins in her July 3, 2000 telephone call with
When plaintiffs specifically inquired of defendant regarding
a potential trespass problem, she denied that such problem existed,
although she had full knowledge of the severity of the trespass and
vandalism problem at Deverill. The trespass problem was a material
fact which defendant deliberately concealed in order to realize a
substantial profit on the sale of her property. The trial court
found that plaintiffs would not have purchased the property had
they known of the trespass and vandalism problem. We conclude the
trial court properly determined that plaintiffs' reliance upon
defendant's false representations was reasonable and not fatal to
their claim of fraud. We overrule this assignment of error.
 By further assignment of error, defendant argues the trial
court erred in concluding her actions constituted unfair anddeceptive practices. The elements for a claim for unfair and
deceptive trade practices are (1) defendants committed an unfair or
deceptive act or practice, (2) in or affecting commerce and (3)
plaintiff was injured as a result. Phelps-Dickson Builders LLC
172 N.C. App. at 439, 617 S.E.2d at 671. Whether the facts that
are proven at trial establish an unfair or deceptive practice is a
question of law addressed by the court. Id
. at 439, 617 S.E.2d at
672. 'Proof of fraud would necessarily constitute a violation of
the prohibition against unfair and deceptive acts . . . .' Bhatti
, 328 N.C. 240, 243, 400 S.E.2d 440, 442 (1991) (quoting
Hardy v. Toler
, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975)).
Once the plaintiff has proven fraud, thereby establishing prima
a violation of Chapter 75, the burden shifts to the defendant
to prove that he is exempt from the provisions of N.C.G.S. § 75-
. at 243-44, 400 S.E.2d at 442 (emphasis added) (citation
Defendant argues she is exempt from Chapter 75, in that the
sale of Deverill was an isolated occurrence which did not affect
commerce. Our Supreme Court rejected this argument in Bhatti
Assuming that a homeowner's exception
exists, its application is limited to an
individual involved in the sale of his or her
own residence. . . .
The defendant did not prove that the
transaction was anything other than a businessactivity well within the banks of the stream
of commerce as broadly defined by the General
Assembly in N.C.G.S. § 75-1.1. As such,
plaintiff is entitled to the protection of the
. at 246, 400 S.E.2d at 444.
Defendant here was not engaged in the sale of her own
residence. In fact, she had purchased the property only two months
earlier for $685,000.00. The trial court found that she was
motivated by the potential for profit, and she received actual
gross profit in the amount of $253,165 from her conduct[.] As
such, she has not carried her burden of demonstrating that the
transaction was beyond the scope of Chapter 75. We overrule this
assignment of error.
 Finally, defendant argues the trial court abused its
discretion in awarding attorneys' fees. A trial court's award for
attorney's fees may only be overturned on appeal if the trial court
abused its discretion. Reinhold v. Lucas
, 167 N.C. App. 735, 739,
606 S.E.2d 412, 415 (2005). Abuse of discretion occurs where a
trial court's determination cannot be supported by reason. Id
Section 75-16.1 of our General Statutes provides 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 payableby the losing party, upon a finding by the
presiding judge that:
(1) The party charged with the violation
has willfully engaged in the act or
practice, and there was an
unwarranted refusal by such party to
fully resolve the matter which
constitutes the basis of such suit;
(2) The party instituting the action
knew, or should have known, the
action was frivolous and malicious.
N.C. Gen. Stat. § 75-16.1 (2003). In order to award attorneys'
fees under this section,
the trial court must find: (1) plaintiff is
the prevailing party; (2) defendant willfully
engaged in the act at issue; and (3) defendant
made an unwarranted refusal to fully resolve
the matter. Even if the requirements are met,
an award of attorney's fees under N.C. Gen.
Stat. § 75-16.1 is in the trial court's
Evans v. Full Circle Productions
, 114 N.C. App. 777, 781, 443
S.E.2d 108, 110 (1994).
There is no evidence of an abuse of discretion by the trial
court in the present case. The trial court made all of the
necessary findings to support its award of attorneys' fees. It is
clear from the detailed findings in its judgment and order that the
trial court examined the record and made reasonable findings.
Although defendant assigned error to the trial court's award of
costs, she has made no argument regarding costs in her brief onappeal. Defendant has abandoned this assignment of error, and we
therefore do not address it. We overrule defendant's final
assignment of error.
II. Plaintiffs' Appeal
 Plaintiffs also argue the trial court abused its
discretion when it failed to award more than $55,000.00 in
attorneys' fees. The trial court found that the time spent by
plaintiffs' counsel in the prosecution of this matter was
reasonably warranted by the complexity of the case, the scope of
the harm suffered by the [plaintiffs] and the defendant's refusal
to resolve the matter before trial. The trial court also found
that [p]laintiffs' counsel were experienced lawyers within the
community, and the hourly rates they and their staff charged were
reasonable both in the context of their levels of experience and in
relation to their peers. Plaintiffs' attorneys submitted
affidavits showing the reasonable value of the legal services
rendered to plaintiffs to be $112,869.50. Given that the trial
court found that (1) the time and (2) the hourly rates by
plaintiffs' attorneys were both reasonable, plaintiffs argue the
trial court abused its discretion by failing to award any amount
less than the sum of these two factors (in this case, $112,869.50).
We disagree. As noted supra
, [e]ven if the requirements are met, an award
of attorney's fees under N.C. Gen. Stat. § 75-16.1 is in the trial
court's discretion. Evans
, 114 N.C. App. at 781, 443 S.E.2d at
110. Thus, even where the trial court finds that the plaintiff is
the prevailing party, and the defendant willfully engaged in unfair
and deceptive practices and made an unwarranted refusal to resolve
the matter, the trial court may still, in its discretion, refuse to
award attorneys' fees. Given that the trial court may refuse to
award any attorneys' fees, we cannot say that the decision to award
approximately half of the amount requested by plaintiffs' attorneys
constitutes an abuse of discretion, manifestly unsupported by
reason. See id
. We conclude there is no abuse of discretion by
the trial court in its award of attorneys' fees.
Plaintiffs have also requested attorneys' fees incurred during
this appeal. 'Upon a finding that [appellees] were entitled to
attorney's fees in obtaining their judgment [under N.C. Gen. Stat.
§ 75-16.1], any effort by [appellees] to protect that judgment
should likewise entitle them to attorney's fees.' Eley v.
Mid/East Acceptance Corp
., 171 N.C. App. at 376-77, 614 S.E.2d at
562 (quoting City Finance Co. v. Boykin
, 86 N.C. App. 446, 449,
358 S.E.2d 83, 85 (1987)); see also Garlock v. Henson
, 112 N.C.
App. 243, 247, 435 S.E.2d 114, 116 (1993) (citations omitted)
([b]ecause plaintiff is entitled to attorney fees for time spentprotecting his judgment, we remand this case for a determination
and award of a reasonable attorney fee for time spent defending
this appeal). Accordingly, because plaintiffs were entitled to
attorneys' fees for hours expended at the trial level, plaintiffs
are entitled to attorneys' fees on appeal. We remand to the trial
court for a determination of the hours spent on appeal and a
reasonable hourly rate and for the entry of an appropriate
attorneys' fee award.
The judgment and order of the trial court are affirmed. We
remand for a determination of entry of an appropriate attorneys'
Affirmed and remanded.
Chief Judge MARTIN and Judge STEELMAN concur.
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