{ "id": 11916425, "name": "ANTOINETTE DENISE TORRANCE, Plaintiff-Appellee v. AS & L MOTORS, LTD., Defendant-Appellant", "name_abbreviation": "Torrance v. AS & L Motors, Ltd.", "decision_date": "1995-07-18", "docket_number": "No. COA94-1069", "first_page": "552", "last_page": "556", "citations": [ { "type": "official", "cite": "119 N.C. App. 552" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "36 ALR3d 125", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "443 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "110" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528002 ], "year": 1994, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0777-01" ] }, { "cite": "436 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "847" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523565 ], "year": 1993, "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0700-01" ] }, { "cite": "343 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "180" } ], "opinion_index": 0 }, { "cite": "316 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694338 ], "year": 1986, "pin_cites": [ { "page": "470-71" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0461-01" ] }, { "cite": "365 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "664" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521966 ], "year": 1988, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0335-01" ] }, { "cite": "276 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "403", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "383 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "677" }, { "page": "677" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521850 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "553" }, { "page": "553" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0549-01" ] } ], "analysis": { "cardinality": 580, "char_count": 10901, "ocr_confidence": 0.74, "pagerank": { "raw": 2.3734587839731927e-07, "percentile": 0.7960216985623486 }, "sha256": "ff17a46e945564faa9d57ed8f4a18132698313d7f3d1c2f0912a89e288a196c4", "simhash": "1:2fef55a2346f49f6", "word_count": 1748 }, "last_updated": "2023-07-14T17:09:59.579385+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and GREENE concur." ], "parties": [ "ANTOINETTE DENISE TORRANCE, Plaintiff-Appellee v. AS & L MOTORS, LTD., Defendant-Appellant" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant brings forward three assignments of error. After careful review of the record and briefs, we affirm in part, reverse in part and remand.\nI.\nDefendant first contends that the trial court erred in admitting parol evidence concerning oral statements made to plaintiff by defendant\u2019s sales manager prior to plaintiffs execution of the \u201cAs Is-No Warranty\u201d Statement. We disagree. Terms set forth in a writing intended to be the final expression of an agreement between two parties may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement. G.S. 25-2-202. The general rule of contracts is that parol evidence cannot be admitted to vary, add to, or contradict the express terms of a written contract. Love v. Keith, 95 N.C. App. 549, 553, 383 S.E.2d 674, 677 (1989). In the course of purchasing the vehicle, plaintiff signed the following \u201cAs Is- No Warranty\u201d statement:\nYou will pay all costs for any repairs. The dealer assumes no responsibility for any repairs regardless of any oral statements about the vehicle.\nPlaintiff testified that defendant\u2019s sales manager, Mike Edwards, told her that the vehicle had not been \u201cwrecked,\u201d and that the vehicle was in \u201cgood condition.\u201d Defendant contends that these statements should have been excluded. G.S. 25-2-316(3) provides:\n(a) [U]nless the circumstances indicate otherwise, all implied warranties are excluded by expressions like \u201cas is,\u201d \u201cwith all faults\u201d or other language which in common understanding calls the buyer\u2019s attention to the exclusion of warranties and makes plain that there is no implied warranty; and\n(b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed to him.\nAlthough defendant\u2019s oral statements concerning the condition of the automobile were parol evidence and inadmissible to contradict the terms of a written contract, the evidence here was not offered to contradict the contract, but rather to prove an unfair or deceptive practice. Love v. Keith, 95 N.C. App. 549, 553, 383 S.E.2d 674, 677 (1989). The parol evidence rule does not bar the evidence in these situations. Id.\nDefendant further contends that even if the statements made by defendant\u2019s sales manager are admissible, the trial court erred in holding that those statements amounted to an unfair and deceptive practice. We disagree. In Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981), our Supreme Court addressed the question of what acts constituted an unfair and deceptive practice pursuant to G.S. 75-1.1.\nWhether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace. 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. ... [A] practice is deceptive if it has the capacity or tendency to deceive; proof of actual deception is not required.\nId. at 548, 276 S.E.2d at 403 (citations omitted). A purchaser does not have to prove fraud, bad faith or intentional deception to sustain unfair and deceptive practice claim. Myers v. Liberty Lincoln-Mercury, 89 N.C. App. 335, 337, 365 S.E.2d 663, 664 (1988). Plaintiff must only show that defendant\u2019s statements had the capacity or tendency to deceive and that plaintiff suffered injury as a proximate result of defendant\u2019s statements. Pearce v. American Defender Life Ins. Co., 316 N.C. 461, 470-71, 343 S.E.2d 174, 180 (1986).\nThe trial court, sitting without a jury, found that, \u201c [Defendant, by its employee, made statements to the plaintiff that lead [sic] the plaintiff to believe the 1989 BMW had not been wrecked. Said statements were material to the parties\u2019 transaction and could have mislead the plaintiff and did mislead the plaintiff into purchasing the 1989 BMW.\u201d Based on this finding, the trial court concluded as a matter of law that defendant\u2019s misleading statements to the plaintiff were an unfair trade practice and that plaintiff was damaged in the amount of $2,500. The trial court\u2019s findings of fact in a bench trial have the weight of a jury verdict and are conclusive on appeal if supported by competent evidence. Foster v. Foster Farms, Inc., 112 N.C. App. 700, 707, 436 S.E.2d 843, 847 (1993). This is true even though the evidence might also sustain findings to the contrary. Id. We conclude that the trial court\u2019s finding in this regard is supported by competent evidence in the record.\nFinally, defendant contends that the trial court erred in awarding plaintiff $4,750 in attorneys\u2019 fees. G.S. 75-16.1 allows the trial court to assess a reasonable attorneys\u2019 fee against the losing party. The trial court may award attorneys\u2019 fees in its discretion upon a finding that:\n(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; or\n(2) The party instituting the action knew, or should have known, the action was frivolous and malicious.\nG.S. 75-16.1.\nDefendant contends that there is no finding by the trial court that defendant willfully engaged in the practice of making misleading statements or that defendant made an unwarranted refusal to fully resolve plaintiff\u2019s complaint. We agree. To award attorney\u2019s fees under G.S. 75-16.1, the trial court must find that: (1) plaintiff is the prevailing party; (2) defendant willfully engaged in a deceptive act or practice; and (3) defendant made an unwarranted refusal to fully resolve the matter. Evans v. Full Circle Prods., Inc., 114 N.C. App. 777, 781, 443 S.E.2d 108, 110 (1994). Even if all three requirements are met, an award of attorneys\u2019 fees is within the trial court\u2019s discretion. Id. Since the trial court failed to make these required findings, we remand to the trial court for additional findings as to whether defendant willfully engaged in the deceptive act at issue here and whether defendant made an unwarranted refusal to fully resolve this issue.\nAccordingly, we affirm the trial court\u2019s judgment that defendant committed an unfair and deceptive practice in violation of G.S. 75-1.1 and awarding plaintiff treble damages of $7,500. We reverse the award of attorneys\u2019 fees and remand to the trial court for additional findings pursuant to G.S. 75-16.1.\nAffirmed in part, reversed in part and remanded.\nJudges COZORT and GREENE concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Craige, Brawley, Liipfert, Walker & Searcy, L.L.P., by Ronald J. Short, for plaintiff-appellee.", "Larry L. Eubanks and Robin R. Setzer for defendant-appellant." ], "corrections": "", "head_matter": "ANTOINETTE DENISE TORRANCE, Plaintiff-Appellee v. AS & L MOTORS, LTD., Defendant-Appellant\nNo. COA94-1069\n(Filed 18 July 1995)\n1. Evidence and Witnesses \u00a7 2008 (NCI4th)\u2014 sale of car\u2014 parol evidence \u2014 admissibility to show unfair and deceptive practices\nAlthough defendant\u2019s oral statements concerning the condition of the automobile sold to plaintiff were parol evidence and inadmissible to contradict the terms of a written contract, the evidence here was not offered to contradict the contract, but rather to prove an unfair or deceptive practice, and the parol evidence rule does not bar the evidence in these situations.\nAm Jur 2d, Evidence \u00a7\u00a7 1108-1110.\n2. Unfair Competition or Trade Practices \u00a7 39 (NCI4th)\u2014 statement that vehicle was not wrecked \u2014 unfair and deceptive practice\nThe trial court did not err in holding that defendant\u2019s statements that an automobile sold to plaintiff had not been wrecked amounted to an unfair and deceptive practice.\nAm Jur 2d, Consumer and Borrower Protection \u00a7\u00a7 302 et seq.\nLiability for representations and express warranties in connection with sale of used motor vehicle. 36 ALR3d 125.\n3. Unfair Competition or Trade Practices \u00a7 54 (NCI4th)\u2014 unfair and deceptive practices \u2014 award of attorney fees\u2014 failure to make required findings\nThe trial court erred in awarding attorney fees in an unfair and deceptive practices case where the trial court failed to make required findings as to whether defendant willfully engaged in the deceptive act at issue here and whether defendant made an unwarranted refusal to fully resolve this issue. N.C.G.S. \u00a7 75-16.1.\nAm Jur 2d, Consumer and Borrower Protection \u00a7 302.\nAppeal by defendant from judgment entered 25 April 1994 by Judge Chester C. Davis in Forsyth County Superior Court. Heard in the Court of Appeals 25 May 1995.\nThis case is based on the sale of a used BMW automobile. Plaintiff alleges claims based on fraud and unfair and deceptive trade practices in violation of Chapter 75 of the North Carolina General Statutes. On 15 June 1992, plaintiff purchased a 1989 BMW automobile from defendant. Several days prior to purchasing it, plaintiff made a visual inspection and drove the vehicle on a road test. Plaintiff testified that she asked defendant\u2019s sales manager, Mike Edwards, whether the car had ever been involved in a car accident and his response was that the car had never been involved in an auto accident. Defendant also advised plaintiff that she could have the car inspected by any mechanic or automotive specialist of her choice, but it appeared to him that the right rear quarterpanel of the car had been painted.\nPlaintiff purchased the vehicle on 15 June 1992 for the sum of $13,181.00. Defendant agreed to finance $1,100 of the purchase price at a rate of $50 per month. The remainder of the purchase price was financed by plaintiffs credit union. As part of the purchasing agreement, plaintiff executed a statement acknowledging that the vehicle was being sold \u201cas is,\u201d without a warranty.\nThree weeks after purchasing the vehicle, plaintiff discovered red paint on the windshield of the car and suspected that the vehicle had been involved in an accident. Plaintiff took the car to Ron Lewendowski, an auto body repairman, who advised plaintiff that the vehicle had been substantially damaged on its right side and that it would cost approximately $2,500 to satisfactorily repair the vehicle. Plaintiff returned the vehicle to defendant\u2019s premises and demanded a refund of her purchase price or another comparable vehicle that had not been involved in an accident. When defendant refused, plaintiff filed suit against defendant alleging claims of fraudulent misrepresentation and unfair and deceptive trade practices.\nThe trial court, sitting without a jury, found that although defendant did not commit fraud upon plaintiff, defendant\u2019s misleading statements constituted an unfair and deceptive trade practice under G.S. 75-1.1. The trial court awarded plaintiff $2,500 in damages which the trial court trebled to $7,500 pursuant to G.S. 75-16. Defendant appeals.\nCraige, Brawley, Liipfert, Walker & Searcy, L.L.P., by Ronald J. Short, for plaintiff-appellee.\nLarry L. Eubanks and Robin R. Setzer for defendant-appellant." }, "file_name": "0552-01", "first_page_order": 586, "last_page_order": 590 }