{ "id": 8353103, "name": "STEPHAN J. WILLEN and ELIZABETH P. WILLEN, Plaintiffs v. SUSANNAH L. HEWSON, Defendant", "name_abbreviation": "Willen v. Hewson", "decision_date": "2005-12-06", "docket_number": "No. COA05-81", "first_page": "714", "last_page": "723", "citations": [ { "type": "official", "cite": "174 N.C. App. 714" } ], "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": "617 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633745 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "671", "parenthetical": "quoting Freese v. Smith, 110 N.C. App. 28, 35, 428 S.E.2d 841, 846 (1993)" }, { "page": "671" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0664-01" ] }, { "cite": "614 S.E.2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633179 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "558" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/se2d/614/0555-01" ] }, { "cite": "601 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631720, 12631721 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0535-02", "/se2d/601/0535-01" ] }, { "cite": "358 N.C. 732", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631713, 12631746, 12631745, 12631716, 12631717, 12631720, 12631721, 12631704 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/601/0531-02", "/se2d/601/0859-01", "/se2d/601/0859-02", "/se2d/601/0532-01", "/se2d/601/0533-01", "/se2d/601/0535-02", "/se2d/601/0535-01", "/se2d/601/0527-03" ] }, { "cite": "435 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "116", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "112 N.C. App. 243", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521058 ], "year": 1993, "pin_cites": [ { "page": "247", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/112/0243-01" ] }, { "cite": "358 S.E.2d 83", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "85" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133470 ], "year": 1987, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0446-01" ] }, { "cite": "443 S.E.2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1994, "pin_cites": [ { "page": "110" }, { "page": "110" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528002 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "781" }, { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0777-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-16.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2003, "opinion_index": 0 }, { "cite": "606 S.E.2d 412", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2005, "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 735", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8413887 ], "year": 2005, "pin_cites": [ { "page": "739" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0735-01" ] }, { "cite": "218 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "346" } ], "opinion_index": 0 }, { "cite": "288 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568140 ], "year": 1975, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0303-01" ] }, { "cite": "400 S.E.2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "442", "parenthetical": "quoting Hardy v. Toler, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975)" }, { "page": "442", "parenthetical": "emphasis added" }, { "page": "444" } ], "opinion_index": 0 }, { "cite": "328 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541708 ], "year": 1991, "pin_cites": [ { "page": "243", "parenthetical": "quoting Hardy v. Toler, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975)" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0240-01" ] }, { "cite": "140 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "314" } ], "opinion_index": 0 }, { "cite": "263 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572921 ], "year": 1965, "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0754-01" ] }, { "cite": "428 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "846" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524614 ], "year": 1993, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0028-01" ] }, { "cite": "172 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320345 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "438", "parenthetical": "quoting Freese v. Smith, 110 N.C. App. 28, 35, 428 S.E.2d 841, 846 (1993)" }, { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0427-01" ] }, { "cite": "577 S.E.2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "356 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511136, 1511237, 1511563, 1511181, 1511416 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/356/0694-01", "/nc/356/0694-03", "/nc/356/0694-02", "/nc/356/0694-05", "/nc/356/0694-04" ] }, { "cite": "574 S.E.2d 180", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2002, "pin_cites": [ { "page": "186" }, { "page": "186" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 65", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9248972 ], "year": 2002, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0065-01" ] }, { "cite": "171 N.C. App. 368", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437072 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "369" }, { "page": "376-77" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0368-01" ] }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527276 ], "year": 1992, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0154-01" ] }, { "cite": "594 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "799" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920472 ], "pin_cites": [ { "page": "707" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0703-01" ] } ], "analysis": { "cardinality": 900, "char_count": 22641, "ocr_confidence": 0.746, "pagerank": { "raw": 3.4727569387075386e-07, "percentile": 0.8813241621422716 }, "sha256": "e97975978201b61367f04d6f8e7ca31c61a98db2f8f1bff62c1ce3ce6a866692", "simhash": "1:a5ebc722179e8d56", "word_count": 3602 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STEELMAN concur." ], "parties": [ "STEPHAN J. WILLEN and ELIZABETH P. WILLEN, Plaintiffs v. SUSANNAH L. HEWSON, Defendant" ], "opinions": [ { "text": "HUNTER, Judge.\nSusannah Hewson (\u201cdefendant\u201d) appeals from a judgment and an order of the trial court awarding $322,753.59 to Stephan Willen (\u201cStephan\u201d) and Elizabeth Willen (collectively \u201cplaintiffs\u201d) on their claims against defendant for fraud and unfair and deceptive practices, and from the trial court\u2019s granting of attorneys\u2019 fees in the amount of $55,000.00 and costs in the amount of $3,284.18. Defendant contends on appeal the trial court erred in concluding that she committed fraud or unfair and deceptive practices. Plaintiffs also appeal, arguing the trial court failed to award appropriate attorneys\u2019 fees. For the reasons stated herein, we affirm the judgment and order of the trial court.\nPlaintiffs presented evidence at trial tending to show the following, as found by the trial court: On or about 2 May 2000, plaintiffs read an advertising circular featuring for sale property owned by defendant in Mecklenburg County, North Carolina. Plaintiffs subsequently viewed the property, an estate of approximately twenty-two acres of land with a large house, known as \u201cDeverill,\u201d and received marketing material advertising Deverill as \u201cpeaceful\u201d and \u201cserene.\u201d Plaintiffs subsequently met with defendant at Deverill and informed her of their desire to have a rural setting in which to raise their four small children. Defendant had been raised at Deverill and had resided on property adjacent to Deverill for more than forty years. Defendant had purchased Deverill only two months earlier at a partition proceeding for $685,000.00. She informed plaintiffs that Deverill was suitable for raising children and told them stories of her own upbringing on the property to encourage their belief as to the property\u2019s suitability. Defendant never informed plaintiffs that Deverill was not, in fact, peaceful or serene.\nIn reliance upon defendant\u2019s representations concerning Deverill, including her description of the property as peaceful and serene, plaintiffs executed two purchase agreements with defendant: One for the house and surrounding eight acres at a purchase price of $700,000.00, and the other for the remaining approximately fourteen acres at a purchase price of $238,165.00. The contracts provided that plaintiffs would be excused from closing on the property if they were unable to sell their existing residence by 30 August 2000. The contracts also provided plaintiffs the right to inspect the property and to walk away from the transaction.\nDuring an inspection of the property on 1 July 2000, plaintiffs encountered defendant\u2019s niece, Sherry Langevin (\u201cLangevin\u201d). Langevin had resided on property adjacent to Deverill since 1987. During their, conversation, Langevin mentioned that there had been problems with \u201ckids coming onto the property after high school football games around Halloween.\u201d Stephan subsequently telephoned defendant and specifically inquired whether Deverill suffered from a trespass problem. Defendant denied any trespass problem existed, and stated that such incidents had only happened once or twice. Defendant told Stephan that Langevin often exaggerated, and that her statement about the trespassing was one such example.\nPlaintiffs were unable to sell their home by 30 August 2000. They did not elect to terminate their contract, however, as was their right, and eventually closed on the purchase of Deverill on 29 September 2000.\nShortly after moving into their new home, plaintiffs discovered that Deverill suffered from a material, long-standing, and year-round problem with trespass and vandalism. Over the ensuing two years, plaintiffs experienced frequent incidents of trespass and vandalism. Plaintiffs lost numerous items of personal property due to theft, suffered suspected arson at one of their buildings, were verbally accosted in their own yard, and had windows and lights shot out with guns. Stephan was physically assaulted. These incidents caused plaintiffs to develop a \u201csiege mentality\u201d which materially altered their lifestyle. In response to the trespass and vandalism problems, plaintiffs installed a new gate at the entrance of their driveway, a home security system, and a security fence around a portion of the perimeter of their home. For cost reasons, plaintiffs did not fully encircle their home or the entire twenty-two acres of property. The security measures taken by plaintiffs, however, failed to eliminate the trespass ' and vandalism problems.\nStephan wrote to defendant in March 2001 concerning her failure to inform plaintiffs of the trespass problems associated with Deverill and asked that she participate in appropriate security measures. Defendant responded to the letter by having her attorney meet with Stephan, through whom defendant denied knowledge of the problem and informed him that the rule of caveat emptor absolved her of responsibility.\nThe trial court found that defendant was aware of the scope and severity of the trespass and vandalism problems at Deverill, but purposely withheld this information from plaintiffs. In response to plaintiffs\u2019 specific inquiry, defendant denied the existence of any trespassing problem and represented Deverill as peaceful and serene, although she knew these representations were false. Further, defendant \u201cengaged in an artifice intended to discourage [plaintiffs] from making further inquiry about [the trespass and vandalism problems] by discrediting the Langevins . . . .\u201d The trial court also found that \u201cthere were not sufficient indicia of trespass and vandalism problems visible on or adjacent to Deverill in 2000 to have put reasonable persons in [plaintiffs\u2019] position on notice of the pervasive trespass problems associated with the property.\u201d\nThe trial court concluded that defendant\u2019s conduct constituted fraud and unfair and deceptive practices and entered judgment in favor of plaintiffs in the amount of $322,753.59. The trial court also awarded reasonable attorneys\u2019 fees in the amount of $55,000.00 and costs of $3,284.18. Defendant and plaintiffs appeal.\nI. Defendant\u2019s Appeal\nDefendant argues the trial court erred in concluding that she committed fraud. Specifically, defendant contends plaintiffs failed to demonstrate that they were denied the opportunity to investigate the property, or that they could not have discovered the trespass and vandalism problem through the exercise of due diligence. We find no merit to this argument.\n\u201c \u2018It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u2019 \u201d Keel v. Private Bus., Inc., 163 N.C. App. 703, 707, 594 S.E.2d 796, 799 (quoting Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)), disc. review dismissed, 358 N.C. 732, 601 S.E.2d 535 (2004). Where such competent evidence exists, this Court is bound by the trial court\u2019s findings of fact even if there is also other evidence in the record that would sustain findings to the contrary. Eley v. Mid/East Acceptance Corp., 171 N.C. App. 368, 369, 614 S.E.2d 555, 558 (2005). The trial court\u2019s conclusions of law, by contrast, are reviewable de novo. Id.\nIn the present case, defendant assigned error to numerous findings of fact by the trial court, but has failed to argue any of these assignments of error in her brief on appeal. Such assignments of error are therefore abandoned, and the trial court\u2019s findings are binding on appeal. See N.C.R. App. R 28(a). We must now determine whether the findings made by the trial court support its conclusion that defendant committed fraud and unfair and deceptive practices. We begin with an examination of fraud.\nAn actionable claim for fraud must include the following elements: (1) a false representation or a concealment of a material fact which is (2) reasonably calculated to deceive, (3) made with the intent to deceive, (4) which does in fact deceive, and (5) results in damage to the injured party. State Properties, LLC v. Ray, 155 N.C. App. 65, 72, 574 S.E.2d 180, 186 (2002), disc. review dismissed, 356 N.C. 694, 577 S.E.2d 889 (2003). A plaintiff\u2019s reliance on alleged false representations by the defendant must be reasonable. Id. Where a plaintiff fails to make any independent investigation, or if a plaintiff is informed of the true condition of the property, reliance is not reasonable. Id. at 73, 574 S.E.2d at 186. \u201cThe reasonableness of a party\u2019s reliance is a question for the jury, unless the facts are so clear that they support only one conclusion.\u201d Id.\nDefendant contends plaintiffs\u2019 reliance upon her alleged misrepresentation that no trespass problem existed was unreasonable as a matter of law, in that plaintiffs failed to make a sufficient independent investigation. Further, defendant argues, plaintiffs had knowledge of potential trespassing problems from the information supplied them by Langevin. Defendant contends these factors are fatal to plaintiffs\u2019 claim. We disagree.\n\u201c \u2018Even if there is no duty to disclose information, if a seller does speak then he must make a full and fair disclosure of the matters he discloses.\u2019 \u201d Phelps-Dickson Builders, LLC v. Amerimann Partners, 172 N.C. App. 427, 438, 617 S.E.2d 664, 671 (2005) (quoting Freese v. Smith, 110 N.C. App. 28, 35, 428 S.E.2d 841, 846 (1993)). Even where a plaintiff\u2019s reliance is unreasonable,\nin close cases, sellers [who] intentionally and falsely represent[] material facts so as to induce a party to action \u201cshould not be permitted to say in effect, \u2018You ought not to have trusted me. If you had not been so gullible, ignorant, or negligent, I could not have deceived you.\u2019 \u201d\nId. (quoting Johnson v. Owens, 263 N.C. 754, 758, 140 S.E.2d 311, 314 (1965)).\nIn the instant case, the evidence tended to show, and the trial court found, that \u201c[plaintiffs] reasonably relied upon [defendant\u2019s] representations that Deverill was pe\u00e1ceful and serene and that it did not suffer from trespass problems.\u201d Further, the trial court found that \u201c[defendant] intended that [plaintiffs] rely on her representations concerning the peaceful and serene character of Deverill and her denial of a trespass problem and that they forego any further inquiry concerning the subject matter.\u201d The trial court found \u201cthat there were not sufficient indicia of trespass and vandalism problems visible on or adjacent to Deverill in 2000 to have put reasonable persons in the [plaintiffs\u2019] position on notice of the pervasive trespass problems associated with the property.\u201d Finally, the trial court found that \u201c[defendant] engaged in an artifice intended to discourage the [plaintiffs] from making further inquiry about such issues by discrediting the Langevins in her July 3, 2000 telephone call with [Stephan].\u201d\nWhen plaintiffs specifically inquired of defendant regarding a potential trespass problem, she denied that such problem existed, although she had full knowledge of the severity of the trespass and vandalism problem at Deverill. The trespass problem was a material fact which defendant deliberately concealed in order to realize a substantial profit on the sale of her property. The trial court found that plaintiffs would not have purchased the property had they known of the trespass and vandalism problem. We conclude the trial court properly determined that plaintiffs\u2019 reliance upon defendant\u2019s false representations was reasonable and not fatal to their claim of fraud. We overrule this assignment of error.\nBy further assignment of error, defendant argues the trial court erred in concluding her actions constituted unfair and deceptive practices. \u201cThe elements for a claim for unfair and deceptive trade practices are (1) defendants committed an unfair or deceptive act or practice, (2) in or affecting commerce and (3) plaintiff was injured as a result.\u201d Phelps-Dickson Builders LLC, 172 N.C. App. at 439, 617 S.E.2d at 671. Whether the facts that are proven at trial establish an unfair or deceptive practice is a question of law addressed by the court. Id. at 439, 617 S.E.2d at 672. \u201c \u2018Proof of fraud would necessarily constitute a violation of the prohibition against unfair and deceptive acts ....\u2019\u201d Bhatti v. Buckland, 328 N.C. 240, 243, 400 S.E.2d 440, 442 (1991) (quoting Hardy v. Toler, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975)). \u201cOnce the plaintiff has proven fraud, thereby establishing prima facie a violation of Chapter 75, the burden shifts to the defendant to prove that he is exempt from the provisions of N.C.G.S. \u00a7 75-1.1.\u201d Id. at 243-44, 400 S.E.2d at 442 (emphasis added) (citation omitted).\nDefendant argues she is exempt from Chapter 75, in that the sale of Deverill was an \u201cisolated occurrence\u201d which did not affect commerce. Our Supreme Court rejected this argument in Bhatti-.\nAssuming that a \u201chomeowner\u2019s exception\u201d exists, its application is limited to an individual involved in the sale of his or her own residence. . . .\nThe defendant did not prove that the transaction was anything other than a business activity well within the banks of the stream of commerce as broadly defined by the General Assembly in N.C.G.S. \u00a7 75-1.1. As such, plaintiff is entitled to the protection of the statute.\nId. at 246, 400 S.E.2d at 444.\nDefendant here was not engaged in the sale of her own residence. In fact, she had purchased the property only two months earlier for $685,000.00. The trial court found that she \u201cwas motivated by the potential for profit, and she received actual gross profit in the amount of $253,165 from her conduct[.]\u201d As such, she has not carried her burden of demonstrating that the transaction was beyond the scope of Chapter 75. We overrule this assignment of error.\nFinally, defendant argues the trial court abused its discretion in awarding attorneys\u2019 f\u00e9es. \u201cA trial court\u2019s award for attorney\u2019s fees may only be overturned on appeal if the trial court abused its discretion.\u201d Reinhold v. Lucas, 167 N.C. App. 735, 739, 606 S.E.2d 412, 415 (2005). \u201cAbuse of discretion occurs where a trial court\u2019s determination cannot be supported by reason.\u201d Id. Section 75-16.1 of our General Statutes provides that:\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.\nN.C. Gen. Stat. \u00a7 75-16.1 (2003), In order to award attorneys\u2019 fees under this section,\nthe trial court must find: (1) plaintiff is the prevailing party; (2) defendant willfully engaged in the act at issue; and (3) defendant made an unwarranted refusal to fully resolve the matter. Even if the requirements are met, an award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 75-16.1 is in the trial court\u2019s discretion.\nEvans v. Full Circle Productions, 114 N.C. App. 777, 781, 443 S.E.2d 108, 110 (1994).\nThere is no evidence of an abuse of discretion by the trial court in the present case. The trial court made all of the necessary findings to support its award of attorneys\u2019 fees. It is clear from the detailed findings in its judgment and order that the trial court examined the record and made reasonable findings. Although defendant assigned error to the trial court\u2019s award of costs, she has made no argument regarding costs in her brief on appeal. Defendant has abandoned this assignment of error, and we therefore do not address it. We overrule defendant\u2019s final assignment of error.\nII. Plaintiffs\u2019 Appeal\nPlaintiffs also argue the trial court abused its discretion when it failed to award more than $55,000.00 in attorneys\u2019 fees. The trial court found that \u201cthe time spent by plaintiffs\u2019 counsel in the prosecution of this matter was reasonably warranted by the complexity of the case, the scope of the harm suffered by the [plaintiffs] and the defendant\u2019s refusal to resolve the matter before trial.\u201d The trial court also found that \u201c[plaintiffs\u2019 counsel were experienced lawyers within the community, and the hourly rates they and their staff charged were reasonable both in the context of their levels of experience and in relation to their peers.\u201d Plaintiffs\u2019 attorneys submitted affidavits showing the reasonable value of the legal services rendered to plaintiffs to be $112,869.50. Given that the trial court found that (1) the time and (2) the hourly rates by plaintiffs\u2019 attorneys were both reasonable, plaintiffs argue the trial court abused its discretion by failing to award any amount less than the sum of these two factors (in this case, $112,869.50). We disagree.\nAs noted supra, \u201c[e]ven if the requirements are met, an award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 75-16.1 is in the trial court\u2019s discretion.\u201d Evans, 114 N.C. App. at 781, 443 S.E.2d at 110. Thus, even where the trial court finds that the plaintiff is the prevailing party, and the defendant willfully engaged in unfair and deceptive practices and made an unwarranted refusal to resolve the matter, the trial court may still, in its discretion, refuse to award attorneys\u2019 fees. Given that the trial court may refuse to award any attorneys\u2019 fees, we cannot say that the decision to award approximately half of the amount requested by plaintiffs\u2019 attorneys constitutes an abuse of discretion, manifestly unsupported by reason. See id. We conclude there is no abuse of discretion by the trial court in its award of attorneys\u2019 fees.\nPlaintiffs have also requested attorneys\u2019 fees incurred during this appeal. \u201c \u2018Upon a finding that [appellees] were entitled to attorney\u2019s fees in obtaining their judgment [under N.C. Gen. Stat. \u00a7 75-16.1], any effort by [appellees] to protect that judgment should likewise entitle them to attorney\u2019s fees.\u2019 \u201d Eley v. Mid/East Acceptance Corp., 171 N.C. App. at 376-77, 614 S.E.2d at 562 (quoting City Finance Co. v. Boykin, 86 N.C. App. 446, 449, 358 S.E.2d 83, 85 (1987)); see also Garlock v. Henson, 112 N.C. App. 243, 247, 435 S.E.2d 114, 116 (1993) (citations omitted) (\u201c[b]ecause plaintiff is entitled to attorney fees for time spent protecting his judgment, we remand this case for a determination and award of a reasonable attorney fee for time spent defending this appeal\u201d). Accordingly, because plaintiffs were entitled to attorneys\u2019 fees for hours expended at the trial level, plaintiffs are entitled to attorneys\u2019 fees on appeal. We remand to the trial court for a determination of the hours spent on appeal and a reasonable hourly rate and for the entry of an appropriate attorneys\u2019 fee award.\nThe judgment and order of the trial court are affirmed. We remand for a determination of entry of an appropriate attorneys\u2019 fee award.\nAffirmed and remanded.\nChief Judge MARTIN and Judge STEELMAN concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Bishop, Capitano & Moss, P.A., by A. Todd Capitano; Robinson, Bradshaw & Hinson, P.A., by A. Ward McKeithen, for plaintiff-appellants.", "Jones, Hewson & Woolard, by Lawrence J. Goldman, for defendant-appellant." ], "corrections": "", "head_matter": "STEPHAN J. WILLEN and ELIZABETH P. WILLEN, Plaintiffs v. SUSANNAH L. HEWSON, Defendant\nNo. COA05-81\n(Filed 6 December 2005)\n1. Fraud\u2014 trespass and vandalism problem on property \u2014 reasonable reliance upon representations\nThe trial court did not err by concluding that defendant committed fraud even though defendant contends plaintiffs failed to demonstrate that they were denied the opportunity to investigate the pertinent property or that they could not have discovered the trespass and vandalism problem through the exercise of due diligence, because: (1) even if there is no duty to disclose information, if a seller does speak then he must make a full and fair disclosure of the matters he discloses; (2) plaintiffs reasonably relied upon defendant\u2019s representations that the property was peaceful and serene and that it did not suffer from trespass problems; (3) when plaintiffs specifically inquired of defendant regarding a potential trespass problem, she denied that such problem existed although she had full knowledge of the severity of the trespass and vandalism problem at the property; (4) the trespass problem was a material fact which defendant deliberately concealed in order to realize a substantial profit on the sale of her property; and (5) plaintiffs would not have purchased the property had they known of the trespass and vandalism problem.\n2. Unfair Trade Practices\u2014 fraud \u2014 sale of property\nThe trial court did not err by concluding that defendant\u2019s actions of representing that the pertinent property was peaceful and serene and that it did not suffer from trespass problems constituted unfair and deceptive trade practices, because: (1) proof of fraud necessarily constitutes a violation of the prohibition against unfair and deceptive acts and the burden shifts to defendant to prove he is exempt from the provisions of N.C.G.S. \u00a7 75-1.1; (2) defendant was not engaged in the sale of her own residence; and (3) defendant was motivated by the potential for profit, and she received actual gross profit of $253,165 from her conduct.\n3. Costs\u2014 attorney fees \u2014 no showing of abuse of discretion\nAlthough defendant contends the trial court abused its discretion in awarding attorney fees in a fraud and unfair and deceptive trade practices case, this assignment of error is overruled because there is no evidence of an abuse of discretion by the trial court and the trial court made all of the necessary findings to support its award of attorney fees.\n4. Costs\u2014 attorney fees \u2014 appeal\nAlthough the trial court did not abuse its discretion by failing to award more than $55,000 in attorney fees for the trial of a fraud and unfair and deceptive trade practices case, the case is remanded for a determination of the hours spent on appeal, for a reasonable hourly rate, and for the entry of an appropriate attorney fee award. Plaintiffs are entitled to attorney fees on appeal since plaintiffs were entitled to attorney fees for hours expended at the trial level.\nAppeal by defendant and plaintiffs from judgment entered 17 June 2004, and appeal by defendant from an order entered 25 June 2004 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 October 2005.\nBishop, Capitano & Moss, P.A., by A. Todd Capitano; Robinson, Bradshaw & Hinson, P.A., by A. Ward McKeithen, for plaintiff-appellants.\nJones, Hewson & Woolard, by Lawrence J. Goldman, for defendant-appellant." }, "file_name": "0714-01", "first_page_order": 744, "last_page_order": 753 }