An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA05-295


Filed: 7 February 2006

Proprietorship, d/b/a RIVERVIEW

     v .                                 Mitchell County
                                        No. 02 CVD 237
Proprietorship, d/b/a HONEYCUTT

    Appeal by defendant David Honeycutt from judgment entered 9 August 2004 by Judge Alexander Lyerly in Mitchell County District Court. Heard in the Court of Appeals 20 October 2005.

    Bailey and Bailey, by J. Todd Bailey, for plaintiff appellees.

    Staunton Norris for David Honeycutt defendant appellant.

    McCULLOUGH, Judge.

    Defendant David Honeycutt appeals from a district court judgment ordering him to pay damages for unfair and deceptive trade acts or practices which injured plaintiffs Dorothy and James Johnson. We affirm.

    Plaintiff Riverview Construction Company is a sole proprietorship in the business of grading and excavating land. Plaintiff Dorothy Johnson owns Riverview, and plaintiff James Johnson is an employee of the company. Defendant David Honeycuttis the owner of a sole proprietorship doing business as Honeycutt Grading, which engages in grading and excavating land.
    On 15 July 2000, Mr. Honeycutt had for sale at his place of business a used sixteen-foot Virginian dump truck bed with a wet line, pump hoist, and console. Acting on Mrs. Johnson's behalf, Mr. Johnson went to Mr. Honeycutt's place of business to negotiate the purchase of the dump truck bed and equipment (hereinafter “the truck bed”) for use by Riverview. Following those negotiations, on 15 July 2000, Mrs. Johnson executed a check payable to Mr. Honeycutt in the amount of two thousand five hundred dollars; the words “truck bed” were handwritten on the line following the preprinted word “for” on the lower left corner of the check. On 16 July 2000, Mr. Honeycutt signed a receipt dated 16 July 2000 which contained the following language: “1 16 Ft Virginian Dump Bed, Wet line, Pump Hoist & Console. Sold to James Johnson for $2500.00. Paid check.”
    At the time of purchase, Riverview did not have a truck upon which to install the truck bed, and Mr. Johnson informed Mr. Honeycutt that the truck bed would have to be left on Mr. Honeycutt's property until it could be moved. During the following two years, Mr. Johnson and Mr. Honeycutt spoke on a number of occasions about when the Johnsons were planning to move the truck bed. As more time passed, Mr. Honeycutt became less patient and began insisting that the truck bed be removed.
    Chance Boone is an acquaintance of Mr. Honeycutt and Mr. and Mrs. Johnson. In February 2002, Mr. Honeycutt offered Mr. Booneapproximately $200.00 to transport the truck bed to the Johnson's place of business. Mr. Boone then spoke with Mr. Johnson to inquire as to whether the Johnsons also wanted him to bring the truck bed to their place of business. Upon being approached concerning the matter, Mr. Johnson also asked Mr. Boone to move the truck bed the next time he was near Mr. Honeycutt's property. Thereafter, the Johnsons asked Mr. Boone to move the truck bed approximately three or four more times. Mr. Boone never moved the truck bed.
    Sometime in June or July of 2002, Mr. Honeycutt placed a “For Sale” sign on the truck bed. He subsequently sold the truck bed for $1400.00 to Earl Ponder, who had it removed from the property. While driving by Mr. Honeycutt's place of business, Mr. Johnson noticed that the truck bed was missing, so he placed a telephone call to Mr. Honeycutt. During the ensuing conversation, Mr. Honeycutt first stated that Mr. Johnson must have removed the truck bed and claimed that he did not know where it was. At the end of the same conversation, Mr. Honeycutt admitted that he had sold the truck bed to another person. Mr. Honeycutt refused to refund the money paid by Mrs. Johnson for the truck bed.
    On 26 September 2002, the Johnsons filed suit seeking, inter alia, a declaration that they were the owners of the truck bed and a judgment for damages against Honeycutt for, inter alia, unfair and deceptive trade acts or practices in violation of the North Carolina Unfair and Deceptive Trade Practices Act, N.C. Gen. Stat. § 75-1.1, et seq. The Johnsons also sought, and received, a temporary restraining order and a preliminary injunctionprohibiting Mr. Honeycutt and Mr. Ponder from disposing of the truck bed pending a trial on the Johnsons' complaint; however, by the time these injunctions were issued, the truck bed had been affixed to a truck owned by Mr. Ponder at substantial cost. Following a bench trial, the district court ruled in favor of Mr. and Mrs. Johnson with respect to their unfair and deceptive trade practices claim and entered a judgment for treble damages against Mr. Honeycutt. Mr. Honeycutt now appeals.
    On appeal, Mr. Honeycutt first contends that the trial court erred by sustaining an objection to his evidence of facts and circumstances attending the contract negotiations preceding the parties' formal agreement. At trial, Mr. Honeycutt sought to testify that he and Mr. Johnson actually began negotiating the sale of the truck bed in July 1999, but that they did not reach an agreement until January 2000. According to Mr. Honeycutt, the January 2000 agreement included a condition that Mr. Johnson remove the truck bed within six weeks of the sale, and when Mr. Johnson had failed to honor this obligation, the parties modified their agreement in July 2000 to include another essential term governing timely removal of the truck bed from Mr. Honeycutt's property. The Johnsons objected to this testimony, claiming it was violative of the parol evidence rule. The trial court sustained the objection.     On appeal, Mr. Honeycutt essentially concedes that the parol evidence rule barred admission of testimony given for the purpose of disputing the content of the receipt he executed, which setforth in writing the terms of the parties' agreement. See N.C. Gen. Stat. § 25-2-202 (2005) (precluding introduction of parol evidence for the purpose of contradicting terms enumerated in a writing intended by the contracting parties to be a final expression of their agreement). Nevertheless, Mr. Honeycutt contends that the proffered testimony was improperly excluded because it was offered for the permissible purpose of disputing the occurrence of unfair or deceptive acts giving rise to liability under the North Carolina Unfair and Deceptive Trade Practices Act. It is true that parol evidence may be admitted where it is not offered to contradict the provisions of a written contract but is instead offered to prove or disprove the occurrence of an unfair or deceptive trade act or practice. Love v. Keith, 95 N.C. App. 549, 553, 383 S.E.2d 674, 677 (1989), overruled on other grounds by Custom Molders, Inc. v. American Yard Products, Inc., 342 N.C. 133, 140, 463 S.E.2d 199, 203 (1995). However, the Johnsons did not allege or attempt to prove that any unfair or deceptive acts or practices occurred during the parties' contractual negotiations. Rather, the Johnsons sought to prove that Mr. Honeycutt committed an unfair and deceptive act by selling their property to another party without their consent. As such, Mr. Honeycutt's testimony that the receipt excluded an essential term of the agreement not only violated the parol evidence rule but was also irrelevant to the unfair and deceptive trade practices claim. See N.C. Gen. Stat. § 8C-1, Rule 401 (2005) (“'Relevant evidence' means evidence having any tendency to make the existence of any fact that is ofconsequence to the determination of the action more probable or less probable than it would be without the evidence.”); N.C. Gen. Stat. § 8C-1, Rule 402 (2005) (“Evidence which is not relevant is not admissible.”).
    Therefore, the trial court properly excluded the testimony. The corresponding assignment of error is overruled.
    Mr. Honeycutt further contends that the trial court erred by denying his motions to dismiss the Johnsons' claims against him. Specifically, Mr. Honeycutt insists that, under the Uniform Commercial Code, he was entitled to resell the truck bed such that the Johnsons' ensuing suit against him was necessarily feckless. We do not agree.
    We note that Mr. Honeycutt's motion to dismiss was filed pursuant to Rule 41(b) of the North Carolina Rules of Civil Procedure, which provides that
        [a]fter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Rule 52(a).

N.C. Gen. Stat. § 1A-1, Rule 41(b) (2005). “When a motion to dismiss pursuant to [N.C. Gen. Stat. § 1A-1, Rule] 41(b) is made,the judge becomes both the judge and the jury and he must consider and weigh all competent evidence before him.” Dealers Specialties, Inc. v. Housing Services, 305 N.C. 633, 640, 291 S.E.2d 137, 141 (1982). “The trial judge in a non-jury case does not weigh the evidence in the light most favorable to the plaintiff as he does on a motion for directed verdict in a jury trial.” Progressive Sales, Inc. v. Williams, Willeford, Boger, Grady & Davis, 86 N.C. App. 51, 55, 356 S.E.2d 372, 375 (1987).
    In the instant case, Mr. Honeycutt insists that the evidence at trial necessarily established that, under the Uniform Commercial Code (“the U.C.C.”), title to the truck bed had “revested” in him such that he could permissibly resell it. Under the U.C.C., “[a] rejection or other refusal by the buyer to receive or retain . . . goods, whether or not justified, or a justified revocation of acceptance revests title to the goods in the seller. Such revesting occurs by operation of law and is not a 'sale.'” N.C. Gen. Stat. § 25-2-401(4) (2005). “'Receipt' of goods means taking physical possession of them.” N.C. Gen. Stat. § 25-2-103 (2005). Because the present parties' agreement did not include a provision concerning when the Johnsons were to take receipt of the truck bed, the time of receipt was governed by the following provision of the U.C.C.: “The time for shipment or delivery or any other action under a contract if not . . . agreed upon shall be a reasonable time.” N.C. Gen. Stat. § 25-2-309(1) (2005). “What is a reasonable time for taking any action depends on the nature, purpose andcircumstances of such action.” N.C. Gen. Stat. § 25-1-204(2) (2005).
    At trial, Mr. Honeycutt argued that the Johnsons had refused to receive the truck bed by failing to retrieve it in a reasonable amount of time following the sale. The trial court determined that
        a period of over two years [was] not an unreasonable time considering the height, weight and nature of the sixteen foot Virginian dump truck bed with wet line, pump hoist and console and . . . further considering the repeated requests of the [Johnsons] to Chance Boone to remove the dump truck bed with attached equipment[,] and in fact said time period is a reasonable time.

Further, the trial court ruled that the Johnsons were the owners of the truck bed at the time Mr. Honeycutt sold it to Mr. Ponder. As these conclusions are supported by sufficient findings of fact and competent evidence in the record, they must be affirmed. See Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (noting that this Court's standard of review is whether a trial court's findings are supported by competent evidence in the record and whether the trial court's conclusions of law are supported by appropriate findings of fact), disc. review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). Furthermore, given that the record supports the trial court's conclusion that the Johnsons had not waited an unreasonably long time to collect the truck bed, the trial court was not required to rule that title to the truck bed had revested in Mr. Honeycutt before he sold it to Mr. Ponder.
    In the alternative, Mr. Honeycutt insists that the trial court should have dismissed the Johnsons' claims because he was entitledto sell the truck bed pursuant to another provision of the U.C.C., section 25-2-703 of the General Statutes, which sets forth the remedies available to a seller when a buyer is in breach of contract. See N.C. Gen. Stat. § 25-2-703 (2005). However, the evidence at trial did not permit a finding that the Johnsons were in breach of contract.
    Accordingly, the trial court did not err by denying Mr. Honeycutt's motions to dismiss. The corresponding assignments of error are overruled.
    Mr. Honeycutt next contends that the trial court erred by concluding that he committed unfair and deceptive acts or practices giving rise to liability under the North Carolina Unfair and Deceptive Trade Practices Act. We disagree.
    The elements of a claim for unfair and deceptive trade practices in violation of section 75-1.1 of the General Statutes are: “(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.” Spartan Leasing v. Pollard, 101 N.C. App. 450, 460-61, 400 S.E.2d 476, 482 (1991). An act or practice is unfair “'when it offends established public policy as well as when [it] is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.'” Gray v. N.C. Ins. Underwriting Ass'n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (citation omitted), reh'g denied, 352 N.C. 599, 544 S.E.2d 771 (2000). An act or practice isdeceptive “if it has the tendency to deceive.” Id. The issue of whether a defendant's conduct amounts to an unfair or deceptive act or practice that violates section 75-1.1 of the General Statutes is a question of law, which is reviewable de novo by this Court. Id.
    In the instant case, there was evidence which tended to show that Mr. Honeycutt intentionally resold the truck bed that he had already sold to the Johnsons and declined to refund the money he had received from the Johnsons in the first sale. This conduct qualifies as an unfair and deceptive act or practice which affected commerce and injured the Johnsons. The corresponding assignment of error is overruled.
    Judges ELMORE and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***