Appeal by defendant from order entered 15 March 2004 by Judge
Charles H. Henry in the Superior Court in Craven County. Heard in
the Court of Appeals 16 June 2005.
William F. Ward, III, for plaintiffs.
Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Philip J. Mohr
and Alison R. Bost, for defendant.
Plaintiffs Ray Walker and Betty Staten brought suit against
defendant Fleetwood Homes, Inc., (Fleetwood) and other defendants
asserting various claims arising out of Walker's purchase of a
mobile home for his daughter Staten. After plaintiffs settled with
the other defendants, they proceeded to trial against Fleetwood on
7 July 2003. On 8 September 2003, Judge W. Allen Cobb granted
plaintiff's motion for a mistrial. The case came on for retrial on
29 September 2003 on Walker's claims for breach of contract, breach
of express warranty and unfair and deceptive trade practices
(UDTP), and Staten's claims for breach of contract and UDTP.
Both of plaintiffs' breach of contract claims were dismissed, but
the jury returned a verdict in favor of Walker on his breach of
warranty and UDTP claims, and in favor of Staten on her UDTP claim.
The court heard arguments from the parties on whether judgment
should be entered on the verdict. On 25 November 2003, the court
entered judgment for plaintiffs in accordance with the jury's
verdict, trebling the damages awarded for UDTP. By separate order,
the court awarded attorney's fees to plaintiffs. Defendant then
moved for judgment not withstanding the verdict (JNOV) and a new
trial, which motions the court denied on 12 March 2004. Defendants
appeal. As discussed below, we affirm in part, and dismiss in
part, and remand for a new trial on damages.
In September 2001, Walker made a down payment on a mobile home
from New Way Housing of New Bern, which had to specially order thehome from Fleetwood. Walker entered into a retail installment
contract with Greenpoint Credit, LLC, in order to finance the rest
of the purchase price. Although Walker bought the home for his
daughter Staten in a so-called buy-for arrangement, Walker's name
alone appeared on all related paperwork. Tony Lund, the general
manager of New Way, testified that both he and Greenpoint were
aware of the buy-for arrangement and knew that Staten intended to
live in the home. Lund defined a buy-for arrangement as when a
person buys a home for someone else, and with that information
disclosed to the lender, if there is retail financing. This
arrangement is common and well-understood in the mobile home
industry, as evidenced by plaintiff's exhibit 15, a Notice to
cosigner/borrower in 'buy/for' transactions from Greenpoint Credit
and signed by Walker. The home came with a two-year warranty,
Your new home, including the steel structure
beneath the floor of the home, plumbing,
heating, electrical systems, appliances, and
all equipment installed by the Fleetwood
, is warranted, under
normal use, to be free from defects of
materials and/or workmanship for two years.
(Emphasis in original). Independent contractors hired by New Way
delivered and set up the home on Staten's lot. Plaintiffs found
numerous defects in the home, and contacted New Way about them.
New Way's general manager inspected the home, then contacted
Fleetwood and asked them to make the repairs. On 1 October 2001,
Fleetwood sent out a repair crew to inspect the home, but Staten
asked them to return the following week to give her time to consultan attorney. No one from Fleetwood ever returned or contacted
either plaintiff. On 9 October 2001, Walker attempted to rescind
the purchase contract, which New Way refused to accept because it
was past the three-day right of rescission provided for in the
contract. Plaintiffs then filed this suit.
 Defendant first argues that the court erred in denying its
motion for directed verdict, for JNOV and for a new trial on
plaintiffs' UDTP claims. We disagree.
A motion for JNOV is essentially a renewal of an earlier
motion for directed verdict and the standards of review are the
same. Bryant v. Nationwide Mut. Fire Ins. Co.
, 313 N.C. 362, 368-
69, 329 S.E.2d 333, 337 (1985). In considering such a motion,
the trial court must view all the evidence
that supports the non-movant's claim as being
true and that evidence must be considered in
the light most favorable to the non-movant,
giving to the non-movant the benefit of every
reasonable inference that may legitimately be
drawn from the evidence with contradictions,
conflicts, and inconsistencies being resolved
in the non-movant's favor.
at 369, 329 S.E.2d at 337-38. [A] motion for judgment
notwithstanding the verdict is cautiously and sparingly granted.
at 369, 329 S.E.2d at 338.
[U]nfair or deceptive acts or practices in or affecting
commerce are unlawful. N.C. Gen. Stat. § 75-1.1, et seq.
To prevail on such a claim, a plaintiff must show (1) an unfair or
deceptive act or practice, or an unfair method of competition, (2)
in or affecting commerce, (3) which proximately caused actual
injury to the plaintiff or to his business. Mitchell v. Linville
,148 N.C. App. 71, 73-4, 557 S.E.2d 620, 623 (2001). These
requirements have been further defined by this Court:
If a practice has the capacity or tendency to
deceive, it is deceptive for the purposes of
the statute. 'Unfairness' is a broader
concept than and includes the concept of
'deception.' A practice is unfair when it
offends established public policy, as well as
when the practice is immoral, unethical,
oppressive, unscrupulous, or substantially
injurious to consumers.
at 74, 400 S.E.2d at 623 (internal quotation marks and
citations omitted). [A] mere breach of contract, even if
intentional, is not sufficiently unfair or deceptive to sustain an
action under N.C.G.S. § 75-1.1 [; instead]'[s]ubstantial
aggravating circumstances' must attend the breach in order to
recover under the Act. Id.
at 75, 400 S.E.2d at 623-24 (internal
quotation marks and citations omitted).
Defendant contends that any wrong done to plaintiff was no
more than a breach of warranty. However, the jury found that
defendant engaged in acts which are direct violations of N.C. Gen.
Stat. § 143-143.13, which specifies grounds for denying,
suspending, or revoking licenses of or imposing civil penalties on
members of the manufactured housing industry:
(a) A license may be denied, suspended or
revoked by the Board on any one or more of the
(7) Using unfair methods of competition or
committing unfair or deceptive acts or
N.C. Gen. Stat. § 143-143.13 (2001). The N.C. Manufactured Housing
Board (the Board) has further specified in the North Carolina
Administrative Code that certain specific actions shall be
considered unfair and deceptive trade practices, including:
1. Failure to perform repairs, alterations
and/or additions completely or in a
workmanlike and competent manner.
4. Repeated failure to respond promptly to
consumer complaints and inquiries.
11 N.C.A.C. 8.0907 (2003). We have held that N.C. Gen. Stat. §
75-1.1 should not be narrowly construed. Drouillard v. Keister
Williams Newspaper Services, Inc.
, 108 N.C. App. 169, 172, 423
S.E.2d 324, 326 (1992), disc. review denied and cert. denied
N.C. 344, 427 S.E.2d 617 (1993). This Court has repeatedly held
that the violation of regulatory statutes which govern business
activities may also be a violation of N.C. Gen. Stat. § 75-1.1
whether or not such activities are listed specifically in the
regulatory act as a violation of N.C. Gen. Stat. § 75-1.1. Id.
Here, the jury found that defendant violated the Board's
regulations regarding manufactured housing by failing to perform
repairs, alterations and/or additions completely and in a
workmanlike and competent manner, and repeatedly failing to respond
promptly to consumer complaints and inquiries. We conclude that
the trial court properly decided that defendant's violations of the
Board's regulation regarding UDTP constitute factors sufficient to
support a claim under N.C. Gen. Stat. § 75-1.1. Thus, the court
did not err in denying defendant's motion for JNOV or a new trial.  Defendants also argue that the court erred in allowing
plaintiff Staten to maintain a UDTP claim because she was not a
buyer of the home, and that the court erred in its award of damages
and attorney's fees to both plaintiffs. We disagree.
Two chapters of the North Carolina General Statutes are at the
heart of this case: Article 9A of Chapter 143, North Carolina
Manufactured Housing Board_Manufactured Home Warranties, and
Chapter 75, Monopolies, Trusts and Consumer Protection, which
creates a right of recovery for unfair and deceptive trade
practices. Defendant contends that Article 9A of Chapter 143
allows only buyers of homes to recover for UDTP claims, thus
barring plaintiff Staten's claims. Plaintiffs admit that Walker,
and not Staten, was the buyer here, but assert that Chapter 143
does not prohibit Staten from recovery, and that Chapter 75 allows
her to proceed with her claim.
The purpose of Chapter 143 is stated as follows:
The General Assembly finds that manufactured
homes have become a primary housing resource
for many of the citizens of North Carolina.
The General Assembly finds further that it is
the responsibility of the manufactured home
industry to provide homes which are of
reasonable quality and safety and to offer
warranties to buyers that provide a means of
remedying quality and safety defects in
manufactured homes. The General Assembly also
finds that it is in the public interest to
provide a means for enforcing such warranties.
N.C. Gen. Stat. § 143-143.8 (2004). N.C. Gen. Stat. § 143-143.12
is entitled Bond required and describes who must have bonds and
in what amounts, also stating that [a]ny buyer of a manufactured home who suffers
any loss or damage by any act of a licensee
that constitutes a violation of this Article
may institute an action to recover against the
licensee and the surety.
N.C. Gen. Stat. § 143-143.12(c) (2004). As set forth in these
quoted sections, the General Assembly specifically created a remedy
for buyers of such homes.
However, we conclude that defendant's reliance N.C. Gen. Stat.
§ 143-143.12(c) is misplaced as it addresses only who may bring an
action against the required surety bonds. While N.C. Gen. Stat. §
143-143.12 specifically sets forth the recourse a buyer may have,
it does not limit the remedies one who is not the buyer may have
under other provisions of law, such as Chapter 75. Thus to
determine who may pursue a claim for unfair and deceptive trade
practices, we believe defendant should look to N.C. Gen. Stat. §
Chapter 75 provides, in pertinent part:
If any person
shall be injured or the business
of any person, firm or corporation shall be
broken up, destroyed or injured by reason of
any act or thing done by any other person,
firm or corporation in violation of the
provisions of this Chapter, such person, firm
or corporation so injured shall have a right
of action on account of such injury done, and
if damages are assessed in such case judgment
shall be rendered in favor of the plaintiff
and against the defendant for treble the
amount fixed by the verdict.
N.C. Gen. Stat. § 75-16 (2004). The statute covers any person
who suffers an injury under Chapter 75, regardless of whether that
person purchased directly from the wrongdoer. Hyde v. Abbott
, 123 N.C. App. 572, 577, 473 S.E.2d 680,684, disc. reviewdenied
, 344 N.C. 734, 478 S.E.2d 5 (1996). Thus, we conclude that
the court did not err in ruling that plaintiff Staten may maintain
a claim for recovery against defendants pursuant to N.C. Gen. Stat.
§ 17-16. The dissent's conclusion that any person does not
include Staten would result in her having no remedy at all, as she
would not be able to recover as a buyer under the bond, nor could
she recover damages under Chapter 75. Such a result would be
inconsistent with the Hyde
case, and with the broad remedial
purpose behind Chapter 75.
 Defendant next argues that the trial court erred in
denying its motion for a new trial for damages pursuant to N.C.
Gen. Stat. § 1A-1 Rule 59(a)(7) and (8) (2004), arguing that
allowing the jury to consider loss of privacy and mental and
emotional distress as a part of Walker's damages in his UDTP claim
constituted error. Even assuming arguendo
that these are proper
bases for damages in an UDTP claim, we hold that because plaintiffs
failed to plead these as damages, the trial court erred in
submitting these issues to the jury. Lassiter v. Cecil
, 145 N.C.
App. 679, 682, 551 S.E.2d 220, 222, disc. review denied
, 354 N.C.
363, 556 S.E.2d 302 (2001). Plaintiffs' complaint does not include
any claim for damages due to loss of privacy or mental and
emotional distress. In fact, plaintiffs' complaint does not
mention loss of privacy or emotional and mental distress, and does
not allege facts supporting these claims as a basis for damages.
at 681-82, 551 S.E.2d at 222
. Plaintiffs' complaint does not
even contain a general request for recovery of damages for pain andsuffering. Plaintiffs made no attempt to amend their complaint to
include these claims for damages, and defendant objected to the
trial court's jury instruction containing the emotional distress
charge. Because plaintiffs' complaint did not give defendants
sufficient notice of such [claims] for damages[,] the trial court
erred in instructing the jury on emotional distress and loss of
privacy, and further erred in denying defendant's motion for a new
trial on damages. Id.
at 682, 551 S.E.2d at 222.
We conclude that
a new trial on damages is warranted. At the new trial, the court
should carefully instruct the jury so that there is no duplication
in damages as to the claims of Walker and Staten. Because during
that trial, the court will revisit the issues of attorney's fees
and costs, we need not address these issues here.
 Defendant next argues that the trial court erred in
failing to reduce plaintiffs' damages award by the settlement
amount paid by New Way Housing. New Way Housing, the retail seller
of the defective mobile home, settled with plaintiffs for
$12,500.00. Defendant argues that the damages awarded by the jury
should have been reduced by this amount. However, defendant did
not bring this issue forward in its motion for JNOV or for a new
trial. Because it is only from this motion defendant appeals, this
issue has not been properly preserved and the Court has no
jurisdiction to hear it. Boger v. Gatton
, 123 N.C. App. 635, 637,
473 S.E.2d 672, 675, disc. review denied
, 344 N.C. 733, 478 S.E.2d
3 (1996). This argument is dismissed. Affirmed in part, dismissed in part, and remanded for new
trial on damages.
Judge STEELMAN concurs.
Judge JACKSON concurs in part, dissents in part.
JACKSON, Judge concurring in part, dissenting in part.
For the reasons stated below, I must respectfully dissent from
the majority's conclusion that the trial court acted properly in
allowing Staten to maintain her claim for unfair and deceptive
trade practices. I concur, however, with the majority's conclusion
that the trial court acted properly in denying defendant's motions
as to the claims of plaintiff Walker. I also concur with
majority's conclusion that the trial court erred in submitting to
the jury the issues of Walker's damages based on loss of privacy
and mental and emotional distress, and that defendant failed to
preserve for appeal the issue of whether the trial court erred in
failing to reduce plaintiffs' damages.
Defendant's motion for judgment notwithstanding the verdict
specifically stated that one of the grounds for its motion was that
Plaintiff Staten was not a buyer of the mobile home and therefore
cannot maintain a cause of action for unfair and deceptive trade
practices pursuant to G.S. § 143-143.8, et seq. and G.S. § 75-16.
The facts of this case are largely undisputed, in that Walker
purchased the mobile home for Staten, and that Walker's name
appeared on all paperwork involved in the sale and manufacture of
the home. In addition, Walker paid all monies which were exchangedas a result of the contract. At no point during the manufacture of
this home was defendant made aware of Staten's existence or that
the home was being built for her use.
Article 9A of our General Statutes sets forth provisions
pertaining to enforcement of warranties for manufactured homes
purchased in North Carolina. N.C. Gen. Stat. § 143-143.8 (2001).
As found by the jury, and upheld by the majority, defendant was
found to have engaged in acts in violation of North Carolina
General Statutes, section 143-143.13. North Carolina General
Statutes, section 143-143.12(c) (2001) provides that [a]ny buyer
of a manufactured home who suffers any loss or damage by any act of
a licensee that constitutes a violation of this Article may
institute an action to recover against the licensee and the
surety. (Emphasis added). However, a buyer is defined as [a]
person who purchases at retail from a dealer or manufacturer a
manufactured home for personal use as a residence or other related
use. N.C. Gen. Stat. § 143-143.9(2) (2001). In the instant case,
plaintiff Staten was not the person who purchased the mobile home
or who paid money for the home. Therefore, she can not be
considered to be a buyer who would be entitled to bring a cause
of action based upon violations of North Carolina General Statutes,
section 143-143.13, and thus she did not have standing to bring an
action based on violations of this statute.
As noted by the majority, a plaintiff may maintain a claim for
unfair and deceptive trade practices under North Carolina General
Statutes, section 75-1.1, however, I believe plaintiff Staten waswithout standing under this statute as well. Our courts permit
consumers not in privity to the original contract to recover when
they are injured as a result of unfair and deceptive trade
practices. Hyde v. Abbott Laboratories, 123 N.C. App. 572, 584,
473 S.E.2d 680, 688, disc. review denied, 344 N.C. 734, 478 S.E.2d
5 (1996) (allowing indirect purchasers to sue for Chapter 75
violations will best advance the legislative intent that such
violations be deterred, and that aggrieved consumers have a private
cause of action to redress Chapter 75 violations (emphasis
added)). Under North Carolina General Statutes, section 75-16
(2001), any person who is injured by the acts of another person,
firm or corporation, which were done in violation of Chapter 75,
has a right of action to recover for their injury.
Staten argues that the words any person should permit her to
recover for defendant's unfair and deceptive trade practices. As
the majority has held, and I concur, the trial court properly
concluded that defendant committed acts constituting unfair and
deceptive trade practices in violation of North Carolina General
Statutes, section 75-1.1. However, I would hold Staten is not
entitled to the use of the broad classification of any person
based on our well-settled canons of statutory construction.
Our Supreme Court has held that 'a statute dealing with a
specific situation controls, with respect to that situation, [over]
sections which are general in their application.' In re Charnock,
358 N.C. 523, 529, 597 S.E.2d 706, 710 (2004) (quoting State ex
rel. Util. Comm'n v. Lumbee River Elec. Membership Corp., 275 N.C.250, 260, 166 S.E.2d 663, 670 (1969)). In such situation the
specially treated situation is regarded as an exception to the
general provision. State ex rel. Util. Comm., 275 N.C. at 260,
166 S.E.2d at 670 (citation omitted). This rule of construction
is especially applicable where the specific provision is the later
enactment. Id. North Carolina General Statutes, section 75-16
was originally enacted in 1913, and was amended in 1969 to include
the language [i]f any person shall be injured. However, North
Carolina General Statutes, section 143-143.12 originally was
enacted in 1981. When two statutes 'deal with the same subject
matter, they must be construed in pari materia and harmonized to
give effect to each.' State ex rel. Util. Comm., 275 N.C. at 260,
166 S.E.2d at 670
(quoting Gravel Co. v. Taylor, 269 N.C. 617, 620,
153 S.E.2d 19, 21 (1967)). However, when the statute dealing with
a specific matter is clear and understandable on its face, it
requires no construction. Id. (citing Highway Commission v.
Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967); Davis v. Granite
Corporation, 259 N.C. 672, 131 S.E.2d 335 (1963); Long v.
Smitherman, 251 N.C. 682, 111 S.E.2d 834 (1960)).
As previously noted, Chapter 143 of Article 9A of our General
Statutes specifically provides remedies for individuals injured as
a result of the purchase of a manufactured home in our State. As
such, I believe the specificity of North Carolina General Statutes,
section 143-143.12, which provides a cause of action for buyers
injured by violations of Chapter 143 of Article 9A, should be
controlling in the instant case over the general requirements foran unfair and deceptive trade practice claim pursuant to North
Carolina General Statutes, section 75-16. As Staten lacks standing
to maintain a claim under North Carolina General Statutes, section
143-143.12, then she also cannot be entitled to maintain a claim
entitling her to treble damages under North Carolina General
Statutes, section 75-16. See Smith v. King, 52 N.C. App. 158, 161,
277 S.E.2d 875, 877 (1981) (court held that where plaintiff was
unable to satisfy the statutory requirements in order to maintain
a claim for unfair and deceptive trade practices under N.C. Gen.
Stat. § 58-54.4(11), plaintiff therefore was
not entitled to
treble damages under N.C. Gen. Stat. § 75-16).
The majority argues that this position is inconsistent with
this Court's holding in Hyde, however I cannot agree that it is.
In Hyde, the plaintiffs actually
were purchasers, in that they each
spent monies and purchased infant formula through parties other
than the defendant manufacturer. The Court concluded plaintiffs
were indirect purchasers based on the fact that they actually
purchased the infant formula themselves, and that they were alleged
to have been damaged as a result of paying higher prices for the
formula than they would have absent the illegal conduct. Hyde, 123
N.C. App. at 574, 473 S.E.2d at 681-82. In the instant case,
Staten did not purchase the mobile home, nor did she expend any of
her own monies to assist in the purchase. Therefore, I do not
believe that a finding that Staten was without standing to maintain
her claim for unfair and deceptive trade practices would beinconsistent with Hyde or the broad remedial purpose behind Chapter
Accordingly, I would hold Staten was without standing to bring
her claim for unfair and deceptive acts. Therefore,
respectfully dissent from the majority's opinion to the extent that
it finds the trial court acted properly in denying defendant's
motion for judgment notwithstanding the verdict as to Staten's
claim for unfair and deceptive trade practices.
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