{ "id": 8917007, "name": "RICKY PIERCE, Plaintiff v. TAMMY REICHARD, Defendant", "name_abbreviation": "Pierce v. Reichard", "decision_date": "2004-03-16", "docket_number": "No. COA02-1749", "first_page": "294", "last_page": "303", "citations": [ { "type": "official", "cite": "163 N.C. App. 294" } ], "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": "472 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "123 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8554748 ], "year": 1978, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0504-01" ] }, { "cite": "112 S.E. 257", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "pin_cites": [ { "page": "260" } ], "opinion_index": 0 }, { "cite": "183 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657295 ], "year": 1922, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/nc/183/0558-01" ] }, { "cite": "346 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4775585, 4775853, 4771860, 4771992, 4775065 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0333-01", "/nc/317/0333-05", "/nc/317/0333-03", "/nc/317/0333-02", "/nc/317/0333-04" ] }, { "cite": "340 S.E. 755", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1986, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "79 N.C. 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App.", "case_ids": [ 12170267 ], "year": 1987, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] } ], "analysis": { "cardinality": 893, "char_count": 22197, "ocr_confidence": 0.769, "pagerank": { "raw": 9.41204057805177e-08, "percentile": 0.5162432249911095 }, "sha256": "67759c531de1381751682f0536d89699be05315673ff46c0fb0b971af0dcc099", "simhash": "1:afbafdad7e4f0f58", "word_count": 3765 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and CALABRIA concur." ], "parties": [ "RICKY PIERCE, Plaintiff v. TAMMY REICHARD, Defendant" ], "opinions": [ { "text": "HUDSON, Judge.\nPlaintiff Ricky Pierce (\u201cPierce\u201d) owns a house located at 107 Beech Street, Roanoke Rapids, North Carolina. On 5 April 1999, defendant Tammy Reichard (\u201cMs. Reichard\u201d) signed a lease in which she agreed to rent the house from Pierce for $300 per month, plus a $300 security deposit. Approximately two weeks after Ms. Reichard moved into the house, the roof over the living room began to leak after a heavy rainfall. Ms. Reichard and her husband immediately taped up the ceiling to try to stop the leaking. After a period of disputing over the leaks and other matters, Pierce filed a complaint for summary ejectment, claiming that Ms. Reichard had not paid her rent, and also sought money damages for repairs to his truck. The Magistrate ruled in favor of Pierce on both issues. Ms. Reichard appealed to district court and filed a counterclaim seeking retroactive rent abatement for Pierce\u2019s breach of the implied warranty of habitability and compensation for personal and property damage. After a bench trial, the court awarded Ms. Reichard treble damages of $14,950, property damages of $200 for a broken windshield, a $200 refund of excessive late fees, the return of her $300 security deposit and attorney\u2019s fees of $4,085. The trial court awarded Pierce $318.07 for damage to his truck. Pierce appeals. For the reasons discussed here, we affirm in part, vacate in part and remand for further proceedings.\nMs. Reichard testified in district court that she notified plaintiff of the roof leaks right away and that plaintiff said he would get to it as soon as he could. However, Pierce\u2019s evidence tended to show that Ms. Reichard first complained about the leaks in August or September of 2000, and that he hired a repair person at that time to apply a coat of \u201cKoolseal\u201d to the roof. Ms. Reichard did not notice any reduction in the severity of the leaks after its application. Ms. Reichard further testified that she complained about the leaks and water damage each time she paid her rent. In August 2001, Pierce had the old roof removed and new shingles installed, but did not repair any of the water damage inside the house.\nDuring the time it took to repair the roof a dispute arose between the parties over damage to Pierce\u2019s dump truck, sustained when it was parked in front of the house to contain roof debris. Ms. Reichard admitted that her four-year-old son may have sprayed water into the truck\u2019s open gas tank. Ms. Reichard and her husband agreed to siphon all of the gas out of the tank, and put in enough gas to get the truck to a gas station. They also agreed to reimburse Pierce for the cost of refilling the tank, but Pierce claimed that the truck broke down within a few yards of leaving the house and that the repairs cost him over $300. Pierce demanded that Ms. Reichard pay the repair bill, and she refused.\nDuring her tenancy, Ms. Reichard complained to Pierce about a rotten tree on the property that she thought endangered her and her family. After Pierce failed to address this issue, a limb broke off the tree during a storm and damaged Ms. Reichard\u2019s car.\nPierce first argues that the trial court erred by denying his 12(b)(6) motion to dismiss. For the following reasons, we overrule this assignment of error.\nThe issue before the trial court on a 12(b)(6) motion to dismiss is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not. Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). However, \u201cwhere an unsuccessful motion to dismiss is grounded on an alleged insufficiency of the facts to state a claim for relief, and the case thereupon proceeds to judgment on the merits, the unsuccessful movant may not on appeal from the final judgment seek review of the denial of the motion to dismiss.\u201d Concrete Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 682, 340 S.E. 755, 758, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). Here, the trial court denied Pierce\u2019s motion to dismiss Ms. Reichard\u2019s counterclaims pursuant to Rule 12(b)(6), and the case was tried on the merits. Thus, Pierce may not now seek review of the denial of his motion to dismiss.\nPierce next argues that the trial court\u2019s findings of fact 20 and 28 are not supported by competent evidence.\nFinding of fact 20 reads as follows:\nDefendant notified Plaintiff of the severe leaks in the back bedroom and the living room during the first month of the tenancy. The leak in the bedroom rendered that room uninhabitable. Defendant and her family attempted to keep the water out of said bedroom by applying duct tape to the ceiling panels. This effort was not effective. The dwelling has two (2) bedrooms. Allowing Plaintiff until July 1, 1999 to repair the leaks, the Fair Market Rental Value of said dwelling from July 1, 1999 until March 31, 2002 was $150.00.\nAfter reviewing the entire record, we find competent evidence to support this finding of fact. Ms. Reichard testified that about two weeks after she moved into the two bedroom house, water leaked through the ceiling in the back bedroom and portions of the living room during a strong rain storm. In an effort to stop the leaks, she and her husband put contact paper and duct tape over the leaks, and notified Pierce about the ceiling\u2019s condition. Ms. Reichard also testified that ceiling debris often fell through holes in the ceiling where the water leaked, and that when they took down the old tape to replace it, rotten wood fell from the ceiling. Water leaked into the back bedroom, causing mold on the carpets and ruining a mattress. Ms. Reichard was forced to move her daughter out of that bedroom, which she then used to store \u201cjunk.\u201d\nThe portion of finding of fact 20 that assigns the house a fair rental value of $150.00 per month is also supported by the evidence. The fair rental value of property may be determined \u201cby proof of what the premises would rent for in the open market, or by evidence of other facts from which the fair rental value of the premises may be determined.\u201d Brewington v. Loughran, 183 N.C. 558, 565, 112 S.E. 257, 260 (1922). The \u201cother facts\u201d of which Brewington speaks include the dilapidated conditions of the premises. Here, the record includes substantial testimonial and photographic evidence of the dilapidated conditions caused by the leaks in the ceiling. This assignment of error is overruled.\nFinding of fact 28 reads as follows: \u201cDefendant\u2019s counsel is entitled to be compensated at the rate of $125.00 per hour and she should be compensated at that rate for 33 hours.\u201d We agree that this finding is not supported by evidence in the record before us.\nWe note that, although this sentence in the trial court\u2019s order is denominated a finding of fact, we are not bound by the label used by the trial court. See Wachacha v. Wachacha, 38 N.C. App. 504, 507, 248 S.E.2d 375, 377 (1978). Finding 28 is more aptly considered a conclusion of law. Thus, we review it as such, to determine whether it is supported by sufficient findings of fact in the trial court\u2019s order. The remaining findings of fact on the issue of attorney\u2019s fees are as follows:\n25. Defendant made a motion, based on her Counterclaims, for the Court to award attorney\u2019s fees pursuant to NCGS 75-16.1.\n26. Defendant\u2019s counsel expended time and expenses for the prosecution of this action for Defendant.\n27. Defendant\u2019s counsel has been licensed to practice law since 2000 and she is licensed in the state of North Carolina.\nWe conclude that these findings are insufficient to support the conclusion of law that defendant\u2019s attorney is \u201centitled to be compensated at the rate of $125.00 per hour and she should be compensated at that rate for 33 hours.\u201d\nIn order for us to determine if the award of attorney\u2019s fees is reasonable, the record must contain findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney. Cotton v. Stanley, 94 N.C. App. 367, 369, 380 S.E.2d 419, 421 (1989). Where these necessary findings are absent from the trial court\u2019s order awarding attorney\u2019s fees, we must remand the case to the trial court to take further evidence if necessary and make appropriate findings as to these facts and then make conclusions of law based thereon. Id. at 370, 380 S.E.2d at 421. Even if we were to accept the trial court\u2019s label of finding 28, the record does not include sufficient evidence to support a finding that Ms. Reichard\u2019s attorney spent 33 hours prosecuting this case and that $125.00 per hour is a reasonable rate for the prosecution of a case of this nature. Indeed, the record contains no sworn motion, affidavit or testimony detailing counsel\u2019s time spent or hourly rate.\nFurther, these findings, even if supported by the evidence, are not adequate to justify an award of fees under G.S. \u00a7 75-16.1, which reads as follows:\nIn any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such attorney fee to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge 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. \u00a7 75-16.1 (2001). The court\u2019s findings do not address either of the grounds for attorney fees specified in the statute.\nWe therefore vacate finding of fact 28, conclusion of law number 10, and decretal paragraph number 5, and remand for further proceedings in accordance with this opinion.\nIn a related issue, Ms. Reichard filed with this Court a motion for attorney\u2019s fees during appeal. In City Finance Co. v. Boykin, 86 N.C. App. 446, 358 S.E.2d 83 (1987), we granted defendant\u2019s motion for attorney\u2019s fees during appeal in an action based upon G.S. \u00a7 75-1.1. Id. at 450, 358 S.E.2d at 85. There, we noted that an award of attorney\u2019s fees is in the sound discretion of the trial court and we remanded \u201cto the trial court for a determination of the hours spent on appeal and a reasonable hourly rate and for the entry of an appropriate attorney\u2019s fee award.\u201d Id.; see also Messina v. Bell, 158 N.C. App. 111, 581 S.E.2d 80 (2003). In accordance with City Finance, we could grant Ms. Reichard\u2019s motion for attorney\u2019s fees during appeal and remand for the trial court to determine the appropriate award. However, since we must remand the matter of attorney\u2019s fees to the trial court as discussed above, we deem it more appropriate to have the trial court address the matter of attorneys\u2019 fees on appeal at the same time. Thus, we dismiss the motion without prejudice to the Reichard\u2019s right to re-file it in the trial court.\nPlaintiff next argues that the trial court erred by awarding defendant treble damages for rent abatement on her claim of unfair and deceptive trade practices. We disagree.\nA trade practice is unfair within the meaning of G.S. \u00a7 75-1.1 \u201cwhen it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d Greekside Apartments v. Poteat, 116 N.C. App. 26, 36, 446 S.E.2d 826, 833 (citations omitted), disc. review denied, 338 N.C. 308, 451 S.E.2d 632 (1994). Chapter 75 applies to residential rentals because the rental of residential housing is commerce pursuant to \u00a7 75-1.1. Love v. Pressley, 34 N.C. App. 503, 516, 239 S.E.2d 574, 583 (1977), cert. denied, 294 N.C. 441, 241 S.E.2d 843 (1978).\nIn Allen v. Simmons, 99 N.C. App. 636, 394 S.E.2d 478 (1990), this Court held that a jury could find that plaintiff committed an unfair trade practice where defendant\u2019s evidence was that plaintiff leased defendant a house which contained numerous defects throughout defendant\u2019s tenancy and which rendered the house uninhabitable. Id. at 645, 394 S.E.2d at 484. Plaintiff failed to respond to numerous notices about the uninhabitable state of the house. Despite the condition of the house, plaintiff attempted to collect rent after defendant discontinued payments. We held that plaintiff\u2019s behavior can be considered \u201cimmoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u201d Id. at 645, 394 S.E.2d at 484. See also, Greekside Apartments, 116 N.C. App. 26, 36, 446 S.E.2d 826, 833; Foy v. Spinks, 105 N.C. App. 534, 414 S.E.2d 87 (1992).\nHere, Ms. Reichard testified that she complained about significant leaks in the back bedroom and living room of the house for more than two years and that Pierce continued to collect rent until the day he demanded she vacate the house. Pierce\u2019s argument that he had no notice of damage to the interior of the house is to no avail. \u201c[W]here a tenant\u2019s evidence establishes the residential rental premises were unfit for human habitation and the landlord was aware of needed repairs but failed to honor his promises to correct the deficiencies and continued to demand rent, then such evidence would support a factual finding ... that the landlord committed an unfair or deceptive trade practice.\u201d Foy, 105 N.C. App. at 540, 414 S.E.2d at 89-90. Here, Pierce was aware that the roof was leaking and that repairs were necessary, yet did not perform necessary repairs until approximately two years after the defective condition was brought to his attention. Thus, as in Allen and Foy, the trial court correctly concluded that plaintiff\u2019s actions in collecting rent after having knowledge of the uninhabitable nature of part of the house constituted unfair trade practices and was thus a violation of G.S. \u00a7 75-1.1.\nPlaintiff argues next that the trial court erred by awarding defendant $200.00 for damage to the windshield of her car caused by a falling tree limb. We find no error.\nBy enactment of the Residential Rental Agreements Act, the General Assembly mandated that a landlord shall \u201c[m]ake all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition.\u201d G.S. \u00a7 42-42(a)(2). Under the Act, premises is defined as \u201ca dwelling unit. . . and the structure of which it is a part and facilities and appurtenances therein and grounds, areas, and' facilities normally held out for the use of residential tenants.\u201d Thus, the yard surrounding a rental unit are deemed part of the premises and are warranted to be fit and habitable.\nHere, Ms. Reichard informed Pierce that the tree was rotten and that it posed a danger to her and her family. Thereafter, Pierce took no action to remove the defective tree from the property, and during a storm, a limb broke off the tree and damaged the windshield of defendant\u2019s car. Thus, the trial court did not err when it awarded damages for the broken windshield.\nPlaintiff next argues that the trial court erred by allowing a defense witne\u2019ss to testify to his opinion that the rental house was in substandard condition. We disagree.\nN.C. R. Evid. 702(a) provides that an expert, qualified by knowledge, skill, experience, training, or education, may testify in the form of opinion if his specialized knowledge will assist the trier of fact to determine a fact in issue. The trial judge is afforded wide discretion when making a determination about the admissibility of expert testimony. State v. Bullard, 312 N.C. 129, 140, 322 S.E.2d 370, 376 (1984). \u201cFor expert testimony to be admissible, the witness need only be better qualified than the [finder of fact] as to the subject at hand, and the witness\u2019 testimony must be helpful to the [finder of fact].\u201d Conner v. Continental Industrial Chemicals, 123 N.C. App. 70, 77, 472 S.E.2d 176, 181 (1996). \u201cA finding by the trial judge that the witness qualifies as an expert is exclusively within the discretion of the trial judge and is not to be reversed on appeal absent a complete lack of evidence to support his ruling.\u201d Id.\nThe witness here, Mr. R. J. Burke, is a licensed general contractor and licensed home inspector in North Carolina. He has been in the construction industry for approximately thirty years and has been performing home inspections for nearly ten years. Thus, we conclude the trial court did not abuse its discretion by accepting Mr. Burke as an expert on the subject of home inspections and whether the rental house met general standards of fitness and habitability.\nAffirmed in part, vacated in part, and remanded.\nMotion for attorney\u2019s fees under G.S. \u00a7 75-16.1 dismissed without prejudice.\nJudges McGEE and CALABRIA concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Jesse F. Pittard, Jr., for plaintiff-appellant.", "Janet B. Dudley, for defendant-appellee." ], "corrections": "", "head_matter": "RICKY PIERCE, Plaintiff v. TAMMY REICHARD, Defendant\nNo. COA02-1749\n(Filed 16 March 2004)\n1. Appeal and Error\u2014 appealability \u2014 denial of motion to dismiss \u2014 judgment on the merits\nAlthough plaintiff landlord contends the trial court erred in an action seeking summary ejectment by denying his N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) motion to dismiss defendant tenant\u2019s counterclaims seeking retroactive rent abatement for plaintiff\u2019s alleged breach of implied warranty of habitability and compensation for personal and property damage, this assignment of error is dismissed because where an unsuccessful motion to dismiss is grounded on an alleged insufficiency of the facts to state a claim for relief and the case thereupon proceeds to judgment on the merits, the unsuccessful movant may not on appeal from the final judgment seek review of the denial of the motion to dismiss.\n2. Landlord and Tenant\u2014 summary ejectment \u2014 findings of fact \u2014 severity of leaks \u2014 fair market rental value\nThe trial court did not err in a residential rental dispute action by its finding of fact concerning the severity of leaks in the rental dwelling\u2019s roof and the determination of the fair market rental value, because: (1) there was competent evidence to support this finding including that defendant testified about her family\u2019s efforts to stop the leaks and the damage caused by the leaks, as well as the fact that she was forced to use one of the bedrooms to store junk; and (2) the record includes substantial testimonial and photographic evidence of the dilapidated conditions caused by the leaks in the ceiling.\n3. Costs\u2014 attorney fees \u2014 time and labor expended \u2014 skill required \u2014 customary fee \u2014 experience or ability of attorney\nThe trial court erred in a residential rental dispute action by its finding of fact stating that defendant\u2019s counsel was entitled to be compensated at a rate of $125.00 per hour and she should be compensated at that rate for 33 hours, because: (1) the finding is actually a conclusion of law, and the record does not contain findings of fact as to the time and labor expended, the skill required, the customary fee for like work, and the experience or ability of the attorney to support this conclusion of law; (2) even if it were a finding of fact, the record does not include sufficient evidence to support a finding that the rate is reasonable for the prosecution of a case of this nature, and there was no sworn motion, affidavit, or testimony detailing counsel\u2019s time spent or hourly rate; and (3) the court\u2019s findings do not address either of the grounds for attorney fees under N.C.G.S. \u00a7 75-16.1.\n4. Costs\u2014 attorney fees on appeal \u2014 dismissal without prejudice\nDefense counsel\u2019s motion for attorney fees during appeal is dismissed without prejudice to her right to refile it in the trial court, because: (1) the matter of attorney fees is remanded to the trial court; and (2) it is more appropriate to have the trial court address the matter of attorney fees on appeal at the same time.\n5. Unfair Trade Practices\u2014 treble damages \u2014 rent abatement\nThe trial court did not err by awarding defendant tenant treble damages for rent abatement on her claim of unfair and deceptive trade practices, because: (1) plaintiff landlord was aware that the roof was leaking and that repairs were necessary, yet he did not perform the necessary repairs until approximately two years after the defective condition was brought to his attention; and (2) plaintiff\u2019s actions in collecting rent after having knowledge of the uninhabitable nature of part of the house constituted unfair trade practices in violation of N.C.G.S. \u00a7 75-1.1.\n6. Landlord and Tenant\u2014 residential rental \u2014 yard part of premises warranted fit and habitable\nThe trial court did not err by awarding defendant tenant $200 for damages to the windshield of her car caused by a falling tree limb on the rental property, because: (1) the yard surrounding a rental unit is deemed part of the premises and is warranted to be fit and habitable; (2) defendant informed plaintiff landlord that the tree was rotten and that it posed a danger to her and her family; and (3) plaintiff thereafter took no action to remove the defective tree from the property, and during a storm, a limb broke off the tree and damaged the windshield of defendant\u2019s car.\n7. Evidence\u2014 expert testimony \u2014 general standards of fitness and habitability of rental house\nThe trial court did not abuse its discretion in a residential rental dispute action by allowing a defense witness to testify as an expert on the subject of home inspections and whether the rental house met general standards of fitness and habitability, because: (1) for expert testimony to be admissible, the witness need only be better qualified than the finder of fact as to the subject at hand, and the witness\u2019s testimony must be helpful to the finder of fact; and (2) the defense witness was a licensed general contractor and licensed home inspector in North Carolina who has been in the construction industry for approximately 30 years and has been performing home inspections for nearly ten years.\nAppeal by plaintiff from judgment entered 25 June 2002 by Judge Alma Hinton in the District Court in Halifax County. Heard in the Court of Appeals 16 October 2003.\nJesse F. Pittard, Jr., for plaintiff-appellant.\nJanet B. Dudley, for defendant-appellee." }, "file_name": "0294-01", "first_page_order": 324, "last_page_order": 333 }