ELEANOR S. MACFADDEN,
No. 04 CVS 741
DOROTHEA S. LOUF, HOME
INSPECTION SERVICES OF
NEW BERN, INC., and
JOHN G. AUDILET,
Harvell and Collins, P.A., by Wesley A. Collins and Amy C.
Shea, for Plaintiff-appellant.
Harris, Creech, Ward and Blackerby, P.A., by Thomas M. Ward, Charles E. Simpson, Jr., and Jay C. Salsman, for Defendant- appellee.
This is a companion appeal to MacFadden v. Louf, ___ N.C. App. ___, ____ S.E.2d. __ (April 17, 2007)(No. 06-647). In that decision, we addressed the issues arising from an action by home buyer, Eleanor MacFadden (Plaintiff), against the home seller, Dorothea S. Louf (Defendant), for alleged undisclosed defects in the property. After careful review of the record, we upheld the trial court summary judgment against Plaintiff's claims of unfair and deceptive trade practices, fraud and negligent misrepresentation. This appeal arises from the trial court's determination thatDefendant Louf's Motion for Summary Judgment on Counterclaim should be and is GRANTED and Motion for Sanctions is GRANTED. The trial court made findings of fact and concluded that,
4. Pursuant to N.C.G.S. § 75-16.1, this Court has the discretionary authority to allow a reasonable attorney fee for the attorneys representing Defendant Louf as Plaintiff MacFadden instituted an action for unfair and deceptive trade practices pursuant to N.C.G.S. § 75-1.1 when Plaintiff MacFadden knew or should have known the action was frivolous and malicious.
5. Plaintiff MacFadden knew or should have known as a matter of law that Defendant Louf was selling her residence and therefore not subject to the provisions of North Carolina's Unfair and Deceptive Trade Practices Act at the time Plaintiff MacFadden filed her Complaint.
Accordingly, the trial court, after considering evidence that Defendant incurred attorney fees in the amount of $32,822.75, ordered Plaintiff to pay counsel for Defendant a sanction of $7,500.00.
Plaintiff appeals contending that the trial court erred by (I) finding that her claim for unfair and deceptive trade practices were frivolous and malicious; and (II) granting Ms. Louf's motion for sanctions and awarding attorney's fees.
It is well established in North Carolina that
. . .private homeowners selling their private
residences are not subject to unfair and
deceptive practice liability. Davis v.
Sellers, 115 N.C. App. 1, 7, 443 S.E.2d 879,
883 (1994); see also
Stolfo v. Kernodle, 118
N.C. App. 580, 455 S.E.2d 869 (1995);
v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672
(1988); Rosenthal v. Perkins, 42 N.C. App. 449,
257 S.E.2d 63 (1979). Here, the undisputed
evidence shows that the house sold to Plaintiff
was Defendant's private residence.
The record on appeal shows that Ms. MacFadden knew that the home was Defendant's private residence because she lived with Defendant from approximately 25 August 2002 until the home closed on approximately 16 September 2002. Moreover, Plaintiff presented no evidence to support her contention that Ms. Louf was in the business of buying and fixing houses as a commercial business or realtor. Under Plaintiff's reasoning, vast number of home sellers would be subject to the application of the unfair and deceptive trade practices statute. We do not believe the trial court abused its discretion in determining that Plaintiff did not pose a good faith argument for the extension of existing law. Accordingly, we reject this assignment of error.
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