An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 7 February 2006
DOROTHY H. JOHNSON, A Sole
Proprietorship, d/b/a RIVERVIEW
CONSTRUCTION CO. and JAMES JOHNSON,
No. 02 CVD 237
DAVID HONEYCUTT, A Sole
Proprietorship, d/b/a HONEYCUTT
GRADING and EARL PONDER,
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.
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.
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
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)
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
, 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 ***