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  "name": "TAMITHA SHEPARD, BEATRICE PERRY, WILLIAM GMOSER, and DEBRA ROSSETER, Plaintiffs v. BONITA VISTA PROPERTIES, L.P.; VICKIE L. SAFELY-SMITH, as General Partner of BONITA VISTA PROPERTIES, L.P.; VICKIE L. SAFELY-SMITH, Trustee of FVS Trust, General Partner of BONITA VISTA PROPERTIES, L.P; and, VICKIE L. SAFELY-SMITH, Individually, Defendants",
  "name_abbreviation": "Shepard v. Bonita Vista Properties",
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      "TAMITHA SHEPARD, BEATRICE PERRY, WILLIAM GMOSER, and DEBRA ROSSETER, Plaintiffs v. BONITA VISTA PROPERTIES, L.P.; VICKIE L. SAFELY-SMITH, as General Partner of BONITA VISTA PROPERTIES, L.P.; VICKIE L. SAFELY-SMITH, Trustee of FVS Trust, General Partner of BONITA VISTA PROPERTIES, L.P; and, VICKIE L. SAFELY-SMITH, Individually, Defendants"
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      {
        "text": "STEPHENS, Judge.\nDefendants appeal from the district court\u2019s judgment awarding $46,210.37 in .damages and attorney\u2019s fees to Plaintiffs on claims of breach of North Carolina\u2019s Public Utilities Act, unfair and deceptive trade practices, and breach of contract. We affirm the awards of damages but remand for additional findings of fact concerning the award of attorney\u2019s fees.\nWhen the trial court sits without a jury, as it did in this case, \u201cthe 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.\u201d Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (citation omitted). The trial court\u2019s conclusions of law are reviewed de novo. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980). In this case, Defendants did not assign error to any of the trial court\u2019s findings, and, thus, the findings are presumed to be supported by competent evidence. Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991); N.C. R. App. P. 10(a) (\u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal. . . .\u201d). The findings establish the facts which follow.\nIn 2002, Defendant Vickie L. Safely-Smith, \u201cas General Partner, and as Trustee of [Defendant] FVS Trust[,]\u201d formed Defendant Bonita Vista Properties, L.P., in California. In October 2004, Bonita Vista acquired ownership of the Pine Lake RV Resort (\u201ccampground\u201d) located in Scotland County, North Carolina. Among other services, the campground rented spaces on which recreational vehicle (\u201cRV\u201d) operators could park and live in their RVs. The RV spaces were available to, among others, \u201cmonthly tenants.\u201d The campgrotmd also furnished electrical service to RV operators requiring such service, charging the operators \u201cat the rate of .0971 per kilowatt hour.\u201d The campground received its electrical service from the Lumbee River Electric Membership Corporation (\u201cLumbee River EMC\u201d). Lumbee River EMC charged the campground \u201c.0858 per kilowatt hour for the first 800 hours of use and .0689 per kilowatt hour for the next 4200 hours of use.\u201d Safely-Smith was the campground\u2019s property manager.\nOn 3 May 2003, Plaintiffs William GMoser and Debra Rosseter, a married couple, \u201cmoved into [the campground,]\u201d and lived there continuously through the time Bonita Vista became the campground\u2019s owner. The couple maintained \u201ca single 40.5' by 9.5' RV mobile home\u201d at the campground as their permanent and sole residence, paying $245.00 per month to Bonita Vista in \u201clot rent.\u201d Rosseter and GMoser plugged their RV into one of the campground\u2019s power sources and paid for electricity. When they moved in, Rosseter and GMoser gave Bonita Vista $30.00 as a deposit for two \u201cgate openers[.]\u201d Bonita Vista agreed to return the deposit if the openers were returned in working condition. Rosseter and GMoser told Safely-Smith that they intended to remain at the campground indefinitely.\nPlaintiff Beatrice Perry \u201cmoved into [the campground]\u201d on 23 October 2004. Perry lived in a \u201cfifth-wheel\u201d RV, a \u201ctrailer\u201d which \u201crequire[s] a large pick-up truck to move or haul it.\u201d Perry\u2019s RV was her permanent and sole residence. Like Rosseter and GMoser, Perry paid Bonita Vista $245.00 per month as \u201clot rent[,]\u201d plugged her RV into one of the campground\u2019s power sources, and told Safely-Smith that she intended to live at the campground indefinitely. Perry gave Bonita Vista $60.00 as a deposit for three gate openers.\nPlaintiff Tamitha Shepard moved into the campground \u201cwith her family\u201d on 31 March 2005. Like Perry, Shepard lived in a fifth-wheel RV which was her permanent residence. Like all of the other Plaintiffs, Shepard plugged her RV into one of the campground\u2019s power sources and paid a deposit for gate openers. Unlike the others, Shepard required daily use of the campground\u2019s bath house because the bathroom in her RV was not functioning properly. Initially, Shepard paid $245.00 in \u201clot rent[,]\u201d but, on 1 July 2005, Shepard began paying $265.00 per month after she moved her RV to a different space at the campground. Shepard moved primarily due to \u201cthe availability of electricity and access to the bath house.\u201d Shepard told Safely-Smith that she intended to live at the campground for one to three years.\nAll Plaintiffs \u201cavailed themselves of utilities and amenities\u201d provided by the campground and received mail at the campground. Also, throughout their tenancies, Plaintiffs used propane from tanks located on the campground\u2019s property. Plaintiffs paid for the propane in the tanks at the beginning of their tenancies.\nIn November 2004, Rosseter began working as the campground\u2019s office manager. She agreed to work eighty-six hours per month in exchange for her monthly lot rent. In December 2004,- Rosseter worked 102 hours. In 2005, Rosseter worked the following hours: January\u201480.5; February\u2014166; March\u2014142; April\u2014281.5; May- 87.5; June \u2014 67. In all, Rosseter worked 324.5 hours more than was required. Rosseter and Safely-Smith had several conversations concerning how Rosseter would be compensated for the extra time. In January 2005, \u201cit was noted that another tenant was being paid [$6.00] per hour\u201d for working at the resort, and Safely-Smith told Rosseter, \u201cand that is what you will be paid.\u201d The parties intended that this rate of pay would be applied as a credit for electricity charges and lot rent. For the three months of April, May, and June 2005, Rosseter received a total of $250.01 as electricity credit. Rosseter\u2019s employment was terminated on 9 June 2005, but she received lot rental credit of $490.00 for July and August 2005.\nAround 1 July 2005, Shepard began to notice that the conditions in the campground\u2019s bath house were deteriorating. On 19 August 2005, Shepard expressed her concerns over the bath house\u2019s conditions to Perry and Rosseter and then reported the conditions to the Scotland County Health Department. Following an inspection by the Health Department, Safely-Smith became upset and told Shepard that she would \u201cfix\u201d her and that she had to leave the campground.\nThe Scotland County Sheriff\u2019s Department responded to several calls in August 2005 from the campground regarding electricity \u201cissues.\u201d On 18 August, Safely-Smith\u2019s husband placed a zip-tie on the power box supplying power to Rosseter\u2019s RV. On 28 August, Safely-Smith turned off Rosseter\u2019s power \u201cat the main power box,\u201d and placed a padlock on the \u201cpedestal.\u201d On 29 August, Rosseter \u201cplugged into an old 30 amp power source\u201d near her RV. Safely-Smith had Rosseter\u2019s power unplugged and had the old power source destroyed. On 30 August, Safely-Smith and an employee \u201cbegan flipping breakers at the [campground], resulting in the electric power being turned on and off at all [Plaintiffs\u2019 RVs].\u201d Each RV was damaged as a result of the electrical service interruptions, and Plaintiffs moved out of the campground that day.\nIn September 2005, Perry returned Plaintiffs\u2019 gate openers to Safely-Smith in good working condition, but Safely-Smith refused to refund Plaintiffs\u2019 deposits. Also that month, Plaintiffs contacted Lumbee River EMC and learned that the campground had charged Plaintiffs more for electrical service than Lumbee River EMC charged the campground. On 2 November 2005, Plaintiffs\u2019 attorney sent Safely-Smith a letter demanding repayment for the alleged overcharges. Safely-Smith did not respond to the attorney\u2019s letter.\nPlaintiffs filed a complaint on 17 January 2006. Plaintiffs alleged that Defendants committed unfair and deceptive trade practices, N.C. Gen. Stat. \u00a7 75-1.1 (2005), by: (1) interrupting and eventually disconnecting Plaintiffs\u2019 electrical service, (2) representing that the campground charged the same rate for electrical service as Lumbee River EMC charged the campground, and (3) refusing to refund Plaintiffs\u2019 gate opener deposits. Additionally, Plaintiffs alleged that Defendants\u2019 provision of electricity at a rate higher than the rate at which Defendants received the service from Lumbee River . EMC constituted a violation of North Carolina\u2019s Public Utilities Act. N.C. Gen. Stat. \u00a7\u00a7 62-1 to -333 (2005). Plaintiffs also set forth a claim for money owed for the value of the propane which Plaintiffs purchased but which remained in the campground\u2019s propane tanks. Finally, Rosseter alleged that Defendants breached their agreement to compensate her for the additional hours she worked as the campground\u2019s office manager.\nSafely-Smith filed a pro se answer on 16 February 2006 and appeared pro se at a bench trial conducted between 27-29 June 2006. After Safely-Smith and Plaintiffs\u2019 attorney presented their closing arguments, the trial court stated:\nI\u2019m gonna allow [Safely-Smith] ... to take all of [the evidence] ... to an attorney . . . then let an attorney research some of this law and file a brief with me about what [she] think[s] the law is and how it applies to [her] case.\nSafely-Smith filed a pro se brief on 17 July 2006. Plaintiffs filed a motion to strike Defendants\u2019 brief on 21 July 2006. On 16 October 2006, the trial court held a hearing and announced its decision in the case.\nIn its judgment, signed and filed 5 April 2007, the trial court made the following conclusions of law:\n1. That [] Rosseter and [] Safely-Smith had an oral agreement for additional compensation concerning hours worked beyond 86 . hours per month.\n2. . . . Rosseter is entitled to monetary damages for work done and not compensated.\n3. That considering all the circumstances of Plaintiffs\u2019 tenancies, Plaintiffs were residential tenants who leased living spaces as their primary residences and Plaintiffs are entitled to assert claims under Article 5 and Article 2A of Chapter 42 of [the] North Carolina General Statutes.\n4. That as a direct result of [] Safely-Smith\u2019s actions in cutting power to Plaintiffs\u2019 dwelling units, each Plaintiff suffered direct and consequential damages to their units.\n5. That [] Safely-Smith\u2019s acts in removing electric power to Plaintiffs who were lawful tenants constitute a retaliatory eviction as set forth in N.C.G.S. 42-37.1 \u2014 37.3.\n6. That in delivering and furnishing electricity to Plaintiffs and charging an amount in excess of the actual cost of the electricity supplied to Plaintiffs, Defendants operated as a public utility as defined by N.C.G.S. 62-3(23).\n7. That Defendants willfully charged Plaintiffs a rate for electricity in excess of that prescribed by Lumbee River EMC . . . and Defendants did not refund the same within thirty (30) days after written notice and demand by Plaintiffs\u2019 attorney.\n8. That pursuant to N.C.G.S. 62-139, Plaintiffs are entitled to receive double the electric overcharges, plus ten dollars ($10.00) per day penalties.\n9. That [] Safely-Smith\u2019s trespass, her attempts to wrongfully evict Plaintiffs without resort to judicial process and her willfully charging electric rates in excess of that prescribed by the North Carolina Utilities Commission pursuant to G.S. 62-139 constituted unfair or deceptive acts or practices in commerce within the meaning of N.C.G.S. 75-1.1.\n10. That pursuant to N.C.G.S. Chapter 75-16, et[] seq., Plaintiffs are entitled to an award of treble damages and attorney fees ....\n11. That Plaintiffs .. . are entitled to refunds of their deposits for gate openers returned in working condition ....\nOn Plaintiffs\u2019 Public Utilities Act claims, the trial court awarded double damages for the amount of overcharges paid by Plaintiffs. This award amounted to $72.14 for GMoser and Rosseter, $125.96 for Perry, and $59.50 for Shepard. The trial court also ordered Defendants to pay Plaintiffs $10.00 per day for every day between 2 December 2005 and 16 October 2006 as a penalty for the overcharges. This award amounted to $3,180.00 each to GMoser and Rosseter, Perry, and Shepard. On Plaintiffs\u2019 unfair and deceptive trade practices claims, the trial court awarded damages in the amounts of $889.79 to Rosseter and GMoser, $1,534.60 to Perry, and $3,223.27 to Shepard, ordered these amounts trebled, and awarded $18,112.50 to Plaintiffs, collectively, in attorney\u2019s fees. The damage awards were calculated by totaling the amounts of damage caused to Plaintiffs\u2019 RVs as a result of the electrical service interference. On Rosseter\u2019s breach of contract claim, the trial court awarded $1,206.99 in uncompensated wages. Finally, the trial court awarded Plaintiffs the amounts they paid Defendants as gate opener deposits. Defendants timely appealed.\nPLAINTIFFS\u2019 MOTION TO DISMISS APPEAL\nOn 4 January 2008, Plaintiffs filed a motion to dismiss Defendants\u2019 appeal for alleged violations of Rule 28(b) of the Rules of Appellate Procedure, a rule which \u201cgoverns the content of the appellant\u2019s brief.\u201d Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 198, 657 S.E.2d 361, 365 (2008). After Plaintiffs filed their motion to dismiss, our Supreme Court announced that a party\u2019s failure to comply with a nonjurisdictional rule of appellate procedure, such as Rule 28(b), \u201cnormally should not lead to dismissal of the appeal.\u201d Id. (citations omitted). Had Dogwood been announced before Plaintiffs filed their motion, we hazard to suggest that Plaintiffs would not have asked this Court to dismiss Defendants\u2019 appeal for the alleged violations. Surely Plaintiffs must agree that, to the extent Defendants failed to comply with Rule 28(b), Defendants\u2019 noncompliance does not approach the level of a \u201csubstantial failure\u201d or \u201cgross violation.\u201d Id. at 199, 657 S.E.2d at 366 (quotation marks omitted). Regardless, such is our opinion, and we, therefore, are not authorized to consider any sanction. Dogwood, 362 N.C. 191, 657 S.E.2d 361. Plaintiffs\u2019 motion is denied.\nPUBLIC UTILITIES ACT\nDefendants argue that the trial court erred in awarding damages pursuant to the Public Utilities Act. That Act provides:\nAny public utility in the State which shall willfully charge a fate for any public utility service in excess of that prescribed by the Commission, and which shall omit to refund the same within 30 days after written notice and demand of the person overcharged, unless relieved by the Commission for good cause shown, shall be liable to him for double the amount of such overcharge, plus a penalty of ten dollars ($10.00) per day for each day\u2019s delay after 30 days from such notice or date of denial or relief by the Commission, whichever is later.\nN.C. Gen. Stat. \u00a7 62-139(b). The Act defines a \u201cpublic utility\u201d as, among other things, a person or organization\n[producing, generating, transmitting, delivering or furnishing electricity, piped gas, steam or any other like agency for the production of light, heat or power to or for the public for compensation^]\nN.C. Gen. Stat. \u00a7 62-3(23)(a)(l) (2005). The Act continues:\nThe term \u201cpublic utility\u201d shall not include the resale of electricity by (i) a campground operated primarily to serve transient occupants,... provided that (i) the campground ... charges no more than the actual cost of the electricity supplied to it, (ii) the amount of electricity used by each campsite . . . occupant is measured by an individual metering device, (iii) the applicable rates are prominently displayed at or near each campsite . . ., and (iv) the campground . . . only resells electricity to campsite ... occupants.\nN.C. Gen. Stat. \u00a7 62-3(23)(h) (2005).\nDefendants first argue that the trial court erred in concluding that they were operating a \u201cpublic utility.\u201d Defendants do not dispute that they were furnishing electricity to the public for compensation. Rather, Defendants contend that the campground was excluded from the statutory definition because Plaintiffs presented no evidence of: (1) the actual costs Defendants incurred for the electricity supplied to the campground, (2) whether the amount of electricity used by each campsite occupant was measured by an individual metering device, and (3) whether the campground only resold electricity to campsite occupants. For the reasons set forth at the outset of this opinion, our review is limited to whether the trial court\u2019s findings of fact support its conclusion.\nThe trial court found:\n85. That [] Safely-Smith charged tenants for the electricity at the rate of .0971 per kilowatt Hour.\n87. That Lumbee River EMC provided electricity to the [campground] as a Phase Three property, charging Defendants .0858 per kilowatt hour for the first 800 hours of use and .0689 per kilowatt hour for the next 4200 hours of use.\nThese unchallenged findings negate Defendants\u2019 contention. A campground furnishing electricity for compensation is excluded from the statutory definition only if it does not charge more than the actual cost of electricity supplied to it. N.C. Gen. Stat. \u00a7 62-3(23)(h). Defendants charged more than the actual cost of electricity supplied to the campground by Lumbee River EMC. We note that these findings are supported by evidence in the record on appeal. Defendant\u2019s argument is overruled.\nSecond, Defendants argue that even if they were operating as a public utility, it cannot be said that they \u201cwillfully\u201d overcharged Plaintiffs for electricity because \u201cDefendants were ignorant of the proper way to calculate [Plaintiffs\u2019] electricity charges.\u201d This argument is meritless and, accordingly, is rejected.\nUNFAIR AND DECEPTIVE TRADE PRACTICES\nNext, Defendants argue that the trial court erred in awarding treble damages on Plaintiffs\u2019 unfair and deceptive 'trade practices (\u201cUDTP\u201d) claims. In both their appellate brief and their oral argument to this Court, Defendants argued at length that Plaintiffs\u2019 UDTP claims were dependent on an assertion that Plaintiffs were residential tenants entitled to the protections of North Carolina\u2019s landlord and tenant laws. N.C. Gen. Stat. ch. 42 (2005). Plaintiffs, however, before both the trial court and this Court, asserted that their UDTP claims were not dependent on proving violations of Chapter 42 and that the evidence supports their UDTP claims irrespective of any Chapter 42 violation. We agree with Plaintiffs.\nSection 75-1.1 creates a private cause of action for consumers. Gray v. North Carolina Ins. Underwriting Ass\u2019n, 352 N.C. 61, 529 S.E.2d 676, reh\u2019g denied, 352 N.C. 599, 544 S.E.2d 771 (2000). \u201cThe purpose of G.S. 75-1.1 is to provide a civil means to maintain ethical standards of dealings between persons engaged in business and the consuming public within this State and applies to dealings between buyers and sellers at all levels of commerce.\u201d United Virginia Bank v. Air-Lift Assocs., 79 N.C. App. 315, 319-20, 339 S.E.2d 90, 93 (1986) (citing Buie v. Daniel Int\u2019l Corp., 56 N.C. App. 445, 448, 289 S.E.2d 118, 119, disc. review denied, 305 N.C. 759, 292 S.E.2d 574 (1982)). See N.C. Gen. Stat. \u00a7 75-l.l(b) (2005) (\u201c \u2018[C]ommerce\u2019 includes all business activities . . . .\u201d). \u201cWhether a trade practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace.\u201d Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981) (citation omitted). \u201cIn order to establish a violation of N.C.G.S. \u00a7 75-1.1, a plaintiff must show: (1) an unfair or deceptive act or practice, (2) in or affecting commerce, and (3) which proximately caused injury to plaintiffs.\u201d Id. at 68, 529 S.E.2d at 681 (citing N.C. Gen. Stat. \u00a7 75-1.1(a) (1999); First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998)). A person damaged by another\u2019s unfair or deceptive acts or practices is entitled to treble damages. N.C. Gen. Stat. \u00a7 75-16 (2005).\nAs stated above and as the dissent reiterates, our review is limited to whether competent evidence supports the trial court\u2019s findings and whether the findings support the court\u2019s conclusions of law. Shear, 107 N.C. App. 154, 418 S.E.2d 841. In its fourth conclusion of law, unchallenged by Defendants on appeal, the trial court concluded:\n4. That as a direct result of [] Safely-Smith\u2019s actions in cutting power to Plaintiffs\u2019 dwelling units, each Plaintiff suffered direct and consequential damages to their units.\nThe trial court then concluded:\n10. That pursuant to N.C.G.S. Chapter 75-16, et[] seq., Plaintiffs are entitled to an award of treble damages and attorney fees against [Defendants].\nThe trial court\u2019s findings of fact support these conclusions, and we agree with the trial court that Defendants are entitled to damages on their UDTP claims. The trial court found that Defendants rented campground spaces to Plaintiffs on a monthly basis and charged Plaintiffs for electricity. These activities undoubtedly constituted business activities; thus, Defendants\u2019 acts were in or affecting commerce. Furthermore, Defendants\u2019 acts in interfering with and disconnecting Plaintiffs\u2019 electricity were, at a minimum, unfair. Marshall, 302 N.C. at 548, 276 S.E.2d at 403 (\u201cA 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.\u201d) (citation omitted). Finally, upon expert evidence presented by Plaintiffs, the trial court found that the electrical interruptions caused damage to Plaintiffs\u2019 RVs. Accordingly, the trial court properly awarded damages on Plaintiffs\u2019 UDTP claims regardless of whether Plaintiffs were residential tenants entitled to the protections of Chapter 42. Defendants\u2019 argument to the contrary is overruled.\nDefendants next argue that \u201c[e]ven if the trial court properly concluded that Defendants\u2019 actions amounted to unfair or deceptive trade acts or practices, Plaintiffs are not entitled to an award of attorneys\u2019 fees.\u201d See N.C. Gen. Stat. \u00a7 75-16.1 (2005) (allowing for an award of attorney\u2019s fees in Chapter 75 actions). Defendants contend that there is no evidence in the record on appeal that \u201cthere was an unwarranted refusal by [Defendants] to fully resolve the matter which constitutes the basis of [the] suit.\u201d N.C. Gen. Stat. \u00a7 75-16.1(1) (2005). Defendants also contend that there is no evidence in the record to support the trial court\u2019s award of $18,112.50 as a reasonable attorney\u2019s fee.\n\u201cThe purpose of attorneys fees in Chapter 75 ... is to \u2018encourage private enforcement\u2019 of Chapter 75.\u201d United Labs., Inc. v. Kuykendall, 335 N.C. 183, 192, 437 S.E.2d 374, 380 (1993) (quoting Marshall, 302 N.C. at 549, 276 S.E.2d at 404) (footnote omitted). The award or denial of attorney\u2019s fees under section 75-16.1 is within the sole discretion of the trial court, Borders v. Newton, 68 N.C. App. 768, 315 S.E.2d 731 (1984), and a trial court may be reversed for abusing its discretion \u201conly upon a showing that its actions are manifestly unsupported by reason.\u201d Castle McCulloch, Inc. v. Freedman, 169 N.C. App. 497, 504, 610 S.E.2d 416, 422 (citation omitted), aff\u2019d per curiam, 360 N.C. 57, 620 S.E.2d 674 (2005). \u201cThe court must make specific findings of fact that the actions of the party charged with violating Chapter 75 were willful, that he refused to resolve the matter fully, and that the attorney\u2019s fee was reasonable.\u201d Barbee v. Atl. Marine Sales & Serv., Inc., 115 N.C. App. 641, 648, 446 S.E.2d 117, 122, disc, review denied, 337 N.C. 689, 448 S.E.2d 516 (1994). For this Court to determine whether an award is reasonable, the record on appeal must contain findings of fact that support the award. Lapierre v. Samco Dev. Corp., 103 N.C. App. 551, 406 S.E.2d 646 (1991). \u201cAppropriate findings include findings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney.\u201d Id. at 561, 406 S.E.2d at 651 (citation omitted).\nIn the case at bar, the trial court found:\n107. That because [] Safely-Smith willfully committed unfair and deceptive trade acts or practices in commerce within the meaning of N.C.G.S. 75-1.1 and there was an unwarranted refusal by [] Safely-Smith to fully resolve the matter which constitutes the basis of this suit, Plaintiffs are entitled to an award of reasonable attorney fees pursuant to N.C.G.S. 75-16.1.\nThis finding satisfies the trial court\u2019s obligation to find that Defendants \u201crefused to resolve the matter fully[,]\u201d Barbee, 115 N.C. App. at 648, 446 S.E.2d at 122, and as Defendants did not assign error to this finding, we presume the finding is supported by competent evidence. Koufman, 330 N.C. 93, 408 S.E.2d 729; N.C. R. App. P. 10(a). Thus, the trial court did not abuse its discretion in awarding attorney\u2019s fees.\nHowever, we are unable to determine from the trial court\u2019s findings whether the amount of the award of attorney\u2019s fees was reasonable. The only findings that pertain to the reasonableness of the award are:\n108. That [Plaintiffs\u2019 trial counsel] expended 103.5 hours in the representation of his clients and for preparation of this matter for trial.\n109. That the amount of $18,112.50 is a reasonable amount for attorney fees considering the time and labor extended, the skill required to perform the legal services that were rendered and the experience and ability of [Plaintiffs\u2019 trial counsel], and said fee is the customary fee for like work.\nThese findings do not fully address the skill required to perform the legal services that were rendered or the experience and ability of Plaintiffs\u2019 trial counsel. The trial court\u2019s decision to award attorney\u2019s fees is affirmed, but this case is remanded for additional findings of fact concerning the reasonableness of the amount of the fee.\nFinally, we agree with Plaintiffs that \u201cthe trial court may include fees for services rendered at all stages of the litigation.\u201d Cotton v. Stanley, 94 N.C. App. 367, 370, 380 S.E.2d 419, 422 (1989) (citing City Fin. Co. of Goldsboro v. Boykin, 86 N.C. App. 446, 449, 358 S.E.2d 83, 85 (1987)). Because we remand this action to the trial court for additional findings, we also leave it to the trial court to address the issue of attorney\u2019s fees for the appeal.\nROSSETER\u2019S EMPLOYMENT\nFinally, Defendants argue the trial court erred in concluding that Rosseter was entitled to compensatory damages for the extra hours she worked as the campground\u2019s office manager. Defendants acknowledge in their brief that Rosseter worked more than was \u201crequired[,j\u201d but argue that the parties never had a meeting of the minds concerning how Rosseter would be compensated for the extra time. Thus, Defendants contend Rosseter is not entitled to anything more than she has already received.\n\u201cA contract is the agreement of two minds \u2014 -the coming together of two minds on a thing done or to be done.\u201d Williams v. Jones, 322 N.C. 42, 49, 366 S.E.2d 433, 438 (1988) (quotation marks and citation omitted). \u201cThere is no contract unless the parties assent to the same thing in the same sense.\u201d Id. In this case, the trial court\u2019s findings of fact establish that the parties assented to the same thing in the same sense: Defendants agreed to pay Rosseter $6.00 for each hour Rosseter worked after eighty-six hours per month. Rosseter initially accepted this compensation in the form of credits against her electricity charges and lot rental. Having been forced out of the campground by Defendants\u2019 disruption of her electrical service, Rosseter was no longer able to accept her due compensation in this form. Accordingly, by the express terms of the agreement, Rosseter is entitled to monetary compensation for hours worked for which she has not been compensated. Defendants\u2019 argument is overruled.\nThe awards granted pursuant to the Public Utilities Act for the overcharging of electricity are affirmed. The awards of damages pursuant to Plaintiffs\u2019 unfair and deceptive trade practices claims are affirmed. The award of damages on Rosseter\u2019s breach of contract claim is affirmed. This matter is remanded for additional findings of fact concerning the award of attorney\u2019s fees.\nAFFIRMED IN PART; REMANDED IN PART.\nJudge McGEE concurs.\nJudge TYSON concurs in part and dissents in part with separate opinion.\n. The Public Utilities Act allows a court to impose a $10.00 per day penalty \u201cfor each day\u2019s delay\u201d In refunding overcharges \u201c30 days after written notice and demand of the person overcharged!.]\u201d N.C. Gen. Stat. \u00a7 62439(b) (2005). Defendants received Plaintiffs\u2019 written notice and demand on 2 November 2005, thirty days before 2 December 2005. The trial court announced its judgment in open court on 16 October 2006.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      },
      {
        "text": "TYSON, Judge,\nconcurring in part and dissenting in part.\nI concur with that portion of the majority\u2019s opinion to affirm the trial court\u2019s award of double damages to Tamitha Shepard, Beatrice Perry, William GMoser, and Debra Rosseter (collectively, \u201cplaintiffs\u201d) for willful violations of the Public Utilities Act by Bonita Vista Properties, L.P. and Vickie Safely-Smith, as General Partner of Bonita Vista Properties, L.P., Trustee of FVS Trust, and individually, (collectively, \u201cdefendants\u201d). I also concur with that portion of the majority\u2019s opinion to affirm the trial court\u2019s award to Debra Rosseter for wages she earned for hours worked as the campground\u2019s office manager and for which she was not compensated.\nI disagree with that portion of the majority\u2019s opinion which affirms the trial court\u2019s award of treble damages and attorney\u2019s fees based upon plaintiffs\u2019 unfair and deceptive trade practices (\u201cUDTP\u201d) claims. The trial court\u2019s conclusion of law stating that \u201c[defendants\u2019] trespass, [] attempts to wrongfully evict Plaintiffs without resort to judicial process and [] willfully charging electric rates in excess of that prescribed by the North Carolina Utilities Commission pursuant to G.S. 63-139 constituted unfair or deceptive trade practices in commerce within the meaning of N.C.G.S. 75-1.1\u201d is erroneous as a matter of law. I vote to reverse the trial court\u2019s order in part and respectfully dissent.\nI. Standard of Review\n\u201cThe standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court\u2019s findings of fact and whether the findings support the conclusions of law and ensuing judgment.\u201d Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176 (citation and quotation omitted), disc. rev. denied, 356 N.C. 434, 572 S.E.2d 428 (2002). The trial court\u2019s conclusions of law are reviewed de novo. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980).\nII. Unfair and Deceptive Trade Practices\nThe majority\u2019s opinion holds plaintiffs are entitled to treble damages and an award of attorney\u2019s fees based upon their UDTP claims, regardless of whether plaintiffs were residential tenants entitled to protections under Article 2A and Article 5 of Chapter 42, commonly known as the Residential Rental Agreement Act (\u201cRRAA\u201d). I disagree.\nHere, plaintiffs alleged four separate UDTP claims, three of which pertain to each individual plaintiff. Plaintiffs specifically alleged: (1) a landlord-tenant relationship existed between defendants and plaintiffs; (2) defendants\u2019 \u201c self help\u2019 actions amounted to a constructive eviction!;]\u201d (3) \u201c[defendants\u2019 self-help actions to remove or attempt to remove [plaintiffs] from Pine Lake RV Resort, were contrary to the manner prescribed by North Carolina statute, and therefore [defendants are liable to [plaintiffs] for damages caused by [plaintiffs] removal or attempted removal[;]\u201d and (4) \u201c[defendants\u2019 eviction of [plaintiffs] from the leased premises without resort to judicial process constituted unfair and deceptive acts or practices in commerce.\u201d Plaintiffs also argued extensively to the trial court and in their appellate brief that N.C. Gen. Stat. \u00a7 42, et seq., is applicable, plaintiffs are entitled to the protections contained therein, and violations thereof trigger recovery under the UDTP statute.\nPlaintiffs alternatively purport to argue in their appellate brief that their UDTP claims \u201cwere not based upon the allegation that Plaintiffs were residential tenants protected under North Carolina landlord-tenant laws.\u201d Clearly, this assertion is incredulous after review of the allegations listed above and expressly asserted within plaintiffs\u2019 complaint.\nIt is well established that \u201c[a] party is bound by his pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader. He cannot subsequently take a position contradictory to his pleadings.\u201d Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E.2d 33, 34 (1964). Our Supreme Court has also stated: \u201cIt is axiomatic with us that a litigant must be heard here on the theory of the trial below and he will not be permitted to switch horses on his appeal. Nor may he ride two horses going different routes to the same destination.\u201d Graham v. Wall, 220 N.C. 84, 94, 16 S.E.2d 691, 697 (1941). Plaintiffs are barred from arguing on appeal that defendants\u2019 actions constituted UDTP based upon a legal theory not asserted in plaintiffs\u2019 complaint and tried in the district court. Id.\nThe majority\u2019s opinion asserts plaintiffs argued their UDTP claims were not dependent upon proving violations of Chapter 42 before the trial court. I disagree. Although plaintiffs\u2019 counsel made the bare statement to the trial court that \u201ceven if the Court would decide that there wasn\u2019t [a landlord-tenant relationship], that does not mean that the Plaintiff\u2019s [sic] case has now failed[,]\u201d the substance and totality of plaintiffs\u2019 arguments are based upon defendants\u2019 violation of the RRAA. Even after plaintiffs\u2019 counsel made this statement, he extensively argued to the trial court that defendants\u2019 actions constituted \u201cself-help constructive eviction\u201d and presented the trial court with case law supporting the assertion that a violation of the RRAA equated to UDTP.\nFurther, the trial court expressly concluded as a matter of law:\n3. That considering all the circumstances of Plaintiffs\u2019 tenancies, Plaintiffs were residential tenants who leased living spaces as their primary residences and Plaintiffs are entitled to assert claims under Article 5 and Article 2A of Chapter 42 of [t]he North Carolina General Statutes.\n9. That Defendant Safely-Smith\u2019s trespass, her attempts to wrongfully evict Plaintiffs without resort to judicial process and her willfully charging electric rates in excess of that prescribed by the North Carolina Utilities Commission pursuant to G.S. 63-139 constituted unfair or deceptive acts or practices in commerce within the meaning of N.C.G.S. 75-1.1.\nUnder the applicable standard of review, this Court must only determine: (1) if competent evidence supports the trial court\u2019s findings of fact; (2) whether the findings of fact support the trial court\u2019s conclusions of law; and (3) whether the trial court\u2019s conclusions are erroneous as a matter of law. Cartin, 151 N.C. App. at 699, 567 S.E.2d at 176; Humphries, 300 N.C. at 187, 265 S.E.2d at 190.\nDefendants failed to except to any of the trial court\u2019s findings of fact. Without exceptions taken, the dispositive issue on de novo review is whether the trial court\u2019s conclusions are correct as a matter of law. See State v. Pickard, 178 N.C. App. 330, 333, 631 S.E.2d 203, 206 (2006) (\u201cWhere an appellant fails to assign error to the trial court\u2019s findings of fact, the findings are presumed to be correct. . . . However, the trial court\u2019s conclusions of law are reviewed de novo and must be legally correct.\u201d (Citation and quotation omitted)). The trial court awarded plaintiffs treble damages and attorney\u2019s fees on three alternative bases: (1) defendants\u2019 trespass; (2) defendants\u2019 violation of the RRAA; and (3) defendants\u2019 violation of the Public Utilities Act. We unanimously agree that defendants violated the Public Utilities Act, plaintiffs are entitled to double damages under this statute, and a violation of. the Public Utilities Act cannot also serve as a basis to award treble damages and attorney\u2019s fees on plaintiffs\u2019 UDTP claims. As such, plaintiffs\u2019 UDTP claims must be based upon either defendants\u2019 alleged trespass or violation of the RRAA. On the record before us, neither of these claims, nor other alleged conduct, supports an award of treble damages or attorney\u2019s fees under the UDTP statute.\nA. Trespass\nOur Supreme Court has stated, \u201c[i]t is elementary that trespass is a wrongful invasion of the possession of another. Furthermore, a claim of trespass requires: (1) possession of the property by plaintiff when the alleged trespass was committed; (2) an unauthorized entry by defendant; and (3) damage to plaintiff.\u201d Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 627, 588 S.E.2d 871, 874 (2003) (internal citations and quotations omitted).\nHere, no evidence in the record shows defendants trespassed on any real property or chattel owned by plaintiffs. Nor is there any evidence that plaintiffs reimbursed defendants for the electricity they consumed during August 2005 when their occupancy at the campground ended. Record evidence tends to show that plaintiffs were billed in arrears for electricity consumed the previous month after defendants were billed by the electric company. Part of Rosseter\u2019s duties, as defendants\u2019 employee, was to invoice plaintiffs and others at the campground to reimburse defendants for electricity consumed the previous month.\nDefendants merely disconnected plaintiffs\u2019 plug-in power drop cords from defendants\u2019 meter base and shut off the electricity to those connections at the end of the month. All plaintiffs left the campground the following day. Defendants were under no legal obligation to provide free electricity to plaintiffs. Defendants never entered any of plaintiffs\u2019 camper trailers, nor kept or converted any of plaintiffs\u2019 property or equipment. Defendants\u2019 actions on their private property and privately owned equipment cannot be construed as a trespass to plaintiffs\u2019 chattel or any other legally protected property interest. Further, camper trailers generally contain an independent and self-contained means to generate electricity. Plaintiffs have failed to show all of the requisite elements to establish a claim of trespass.\nPresuming arguendo a trespass in fact occurred, no North Carolina case law or statute supports the notion that an alleged trespass can be bootstrapped to support plaintiffs\u2019 UDTP claims and an award of treble damages and attorney\u2019s fees. The only remaining notion upon which plaintiffs\u2019 UDTP claims may rest is defendants\u2019 alleged violation of the RRAA.\nB. Residential Rental Agreement Act\nThe RRAA was enacted in response to our Supreme Court\u2019s decision in Spinks v. Taylor, 303 N.C. 256, 278 S.E.2d 501 (1981), which specifically held that at common law, a landlord was permitted to employ peaceable self-help measures in repossessing leased premises. See Robert S. Thompson, Landlord Eviction Remedies Act-Legislative Overreaction to Landlord Self-Help, 18 Wake Forest L. Rev. 25, 25 (1982) (\u201cRecently, . . . the North Carolina General Assembly altered the common-law rule in response to a court of appeals decision applying the Mosseller doctrine.\u201d (Citing Spinks v. Taylor, 47 N.C. App. 68, 266 S.E.2d 857 (1980), rev\u2019d in part, 303 N.C. 256, 278 S.E.2d 501 (1981)).\nOur General Assembly enacted Article 2A and Article 5 of Chapter 42 in order to \u201cdeterminen the rights, obligations, and remedies under a rental agreement for a dwelling unit within this State.\u201d N.C. Gen. Stat. \u00a7 42-38 (2005) (emphasis supplied). The plain and unambiguous language of the Act expressly limits the statute\u2019s applicability to \u201ca rental agreement for a dwelling unit within this State\u201d and enunciates the manner of ejectment residential landlords must employ when regaining possession of \u201ca dwelling unit\u201d from residential tenants, who breach their lease, or who hold over after their lease has expired. See N.C. Gen. Stat. \u00a7 42-25.6 (2005) (\u201cIt is the public policy of the State of North Carolina, in order to maintain the public peace, that a residential tenant shall be evicted, dispossessed or otherwise constructively or actually removed from his dwelling unit only in accordance with the procedure prescribed in Article 3 or Article 7 of this Chapter.\u201d). The RRAA expressly excludes \u201ctransient occupancy in a hotel, motel, or similar lodging\u201d as well as \u201cvacation rentals\u201d from Chapter 42 summary ejectment protections. N.C. Gen. Stat. \u00a7 42-39 (2005).\nThe central issue then becomes whether paying for a recreational vehicle lot space at a campground constitutes \u201ca rental agreement for a dwelling unit in this State\u201d pursuant to N.C. Gen. Stat. \u00a7 42-38, which would entitle plaintiffs to the protections accorded to residential tenants under the RRAA. (Emphasis supplied). In making this determination, this Court must recognize the Founding principle that \u201c[sjtatutes in derogation of the common law . . . should be strictly construed\u201d particularly where the \u201cstatute infringes upon common law property rights of others.\u201d Wise v. Harrington Grove Cmty. Ass\u2019n, 357 N.C. 396, 401, 584 S.E.2d 731, 736 (2003) (quoting Stone v. N.C. Dep\u2019t of Labor, 347 N.C. 473, 479, 495 S.E.2d 711, 715, cert. denied, 525 U.S. 1016, 142 L. Ed. 2d 449 (1998) and Turlington v. McLeod, 323 N.C. 591, 594, 374 S.E.2d 394, 397 (1988)); see also Bell v. Page, 2 N.C. App. 132, 137, 162 S.E.2d 693, 696 (1968).\nThe term \u201cdwelling unit\u201d is not specifically defined within the RRAA. See N.C. Gen. Stat. \u00a7 42-40 (2005). However, the term \u201c[premises\u201d is defined as \u201ca dwelling unit, including mobile homes or mobile home spaces, 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 N.C. Gen. Stat. \u00a7 42-40(2). Plaintiffs argue that recreational vehicle lot spaces in a transient campground are analogous to \u201cmobile home spaces.\u201d I disagree. The logical extension of plaintiffs\u2019 argument is that a person, who is sleeping in their motor vehicle as their \u201cprinciple residence\u201d and who parks that vehicle on someone else\u2019s property, cannot be compelled to vacate that parking space, unless the property owner, under the threat of treble damages and attorney\u2019s fees, resorts to judicial ejectment to remove them from the property. This arcane result cannot be what the General Assembly intended when it enacted the RRAA.\nPlaintiffs cite Baker v. Rushing in support of their assertion that plaintiffs were residential tenants pursuant to the RRAA. 104 N.C. App. 240, 409 S.E.2d 108 (1991). In Baker, this Court found genuine issues of material fact existed regarding whether occupants of a hotel could be considered \u201cresidential tenants.\u201d Baker, 104 N.C. App. at 247, 409 S.E.2d at 112. This Court concluded that \u201c[w]hether the plaintiffs . . . were residential tenants must be determined by looking at all of the circumstances [.]\u201d Id.\nHowever, the factual scenario in Baker is clearly distinguishable from the facts at bar. In Baker, the plaintiffs resided in an \u201capartment\u201d which contained \u201ceither one or two bedrooms, a kitchen/living room and a separate bath\u201d which clearly constitutes a \u201cdwelling unit.\u201d Id. Here, plaintiffs parked their recreational vehicle in a designated space on defendants\u2019 property.\nWhether a recreational vehicle lot space can be equated to \u201ca dwelling unit\u201d under the RRAA appears to be an issue of first impression in North Carolina. In Comeau v. Vergato, the New Hampshire Supreme Court resolved a similar controversy. 823 A.2d 764 (N.H. 2003). In Comeau, the defendant was a vehicle campground owner, who rented parking spaces, equipped with utilities to campers on a year-round basis. 823 A.2d at 765. The plaintiff rented a space and lived on the defendant\u2019s property in a camper/trailer from March 2001 through January 2002. Id. Plaintiff allegedly owed back rent and the defendant, the defendant\u2019s son and a campground employee: (1) entered plaintiff\u2019s camper; (2) removed some of the plaintiff\u2019s property; and (3) placed a \u201cFor Sale\u201d sign on the plaintiff\u2019s camper. Id.\nThe plaintiff filed a petition with the district court requesting the return of her property and argued that the defendant was a landlord subject to a statute, which prohibited \u201cwillfully seizing, holding or otherwise directly or indirectly denying a tenant access to and possession of such tenant\u2019s property, other than by proper judicial process.\u201d Id. (quoting RSA 540-A:3, III (Supp. 2002)). In New Hampshire, \u201c[l]andlord\u201d is statutorily defined as \u201can owner, lessor or agent thereof who rents or leases residential premises including manufactured housing or space in a manufactured housing park to another person.\u201d Id. at 766 (quoting RSA 540-A:l) (emphasis supplied). The district court found a landlord-tenant relationship based upon the duration of plaintiff\u2019s stay at the campground. Id. The dis-positive issue before the New Hampshire Supreme Court was \u201cwhether the plaintiff\u2019s premises were \u2018residential\u2019 within the meaning of the statute.\u201d Id.\nIn determining this issue, the New Hampshire Supreme Court was required to engage in statutory construction. Id. The Court stated:\nthe trial court overlooked the last clause of the definition for both \u201clandlord\u201d and \u201ctenant,\u201d which states that \u201cresidential premises\u201d includes \u201cmanufactured housing or space in a manufactured housing park.\u201d The inclusion of this phrase indicates that the legislature considered the form of the housing relevant in determining whether it is \u201cresidential.\u201d If the legislature intended the duration of the stay to be sufficient to establish a residence, it would be superfluous to include a specific form of housing within the ambit of the statute. Thus, the mere fact that the plaintiff lived on the defendant\u2019s property for a certain length of time did not establish a landlord-tenant relationship, and the trial court erred as a matter of law in ruling otherwise.\nMoreover, the definitions of both \u201clandlord\u201d and \u201ctenant\u201d specifically mention only one type of residential premises \u2014 manufactured housing. We believe it unlikely that the legislature intended \u201cmanufactured housing\u201d to be just one of many examples of trailer and camper units encompassed within \u201cresidential premises.\u201d Elsewhere in the statutes, the legislature describes \u201cmanufactured housing\u201d in exclusive terms, defining \u201cmanufactured housing\u201d not to embrace \u201ccampers\u201d and \u201crecreational vehicles.\u201d Surely, if the legislature had intended campers and trailers to be residential premises, it would not have included as the sole example a type of residence that specifically excludes campers and trailers from its ambit.\nId. at 766-67 (emphasis original) (internal citations omitted).\nThe reasoning and holding in Comeau is particularly instructive to the case at bar. Here, our General Assembly specifically included mobile homes and mobile home spaces within the definition of \u201c[premises\u201d which is defined as \u201ca dwelling unit.\u201d N.C. Gen. Stat. \u00a7 42-40(2). As the New Hampshire Supreme Court stated in Comeau, I also \u201cbelieve it unlikely that the legislature intended [\u2018mobile homes\u2019] to be just one of many examples of trailer and camper units encompassed within [the term \u2018dwelling unit\u2019].\u201d 823 A.2d at 767. Further, the definition of mobile homes for taxation purposes expressly excludes \u201ctrailers and vehicles required to be registered annually pursuant to Part 3, Article 3 of Chapter 20 of the General Statutes.\u201d N.C. Gen. Stat. \u00a7 105-316.7 (2005). A recreational vehicle is required to be registered under Part 3, Article 3 of Chapter 20. N.C. Gen. Stat. \u00a7 20-50 (2005). If the General Assembly intended for recreational vehicle lot spaces in a campground to be considered a \u201cdwelling unit\u201d pursuant to the RRAA, it would have expressly stated so in the statute.\nStrictly construing Chapter 42 as in derogation of the common law, plaintiffs are not residential tenants under \u201ca rental agreement for a dwelling unit\u201d as provided in the RRAA and are not entitled to the judicial ejectment protections contained therein. N.C. Gen. Stat. \u00a7 42-38. Plaintiffs\u2019 \u201cright\u201d to park their recreational vehicle on defendants\u2019 campground was arguably nothing more than a revocable license. See 1 James A. Webster, Jr., Webster\u2019s Real Estate Law in North Carolina \u00a7 15-39, at 753 (Patrick K. Hetrick & James B. McLaughlin, Jr. eds., 5th ed. 1999) (\u201cA license is the least important of the rights in the lands of another. As a matter of fact, a license does not create \u2018rights\u2019 in land but gives one only a personal, revocable privilege to do an act or series of acts upon the land of another without conferring any estate or interest in the land. Hence, licenses are, in general, freely revocable by the licensor.\u201d). This assertion is supported by a registration card and not a lease being issued to each of the plaintiffs which stated the \u201cproperty is privately owned and the management reserves the right to refuse service to anyone[.]\u201d\nEven if plaintiffs\u2019 stay on the campgrounds was construed to be a month-to-month tenancy, defendants provided plaintiffs with the statutorily required notice to quit their possession of defendants\u2019 property and were entitled to use peaceful self-help to unplug plaintiffs\u2019 electrical extension cords from defendants\u2019 meter bases and to shut off the power to those connections. See N.C. Gen. Stat. \u00a7 42-14 (providing in relevant part that a month-to-month tenancy may be terminated by a notice to quit of seven days); see also Spinks, 303 N.C. at 263, 278 S.E.2d at 505 (\u201c[W]hile a landlord is permitted to use peaceful means to reenter and take possession of leased premises subject to forfeiture, he may not do so against the will of the tenant.\u201d). A party\u2019s lawful actions or peaceful self-help conduct is not an unfair and deceptive act and does not support recovery under the UDTP statute. The trial court erred as a matter of law by concluding plaintiffs were entitled to an award of treble damages and attorney\u2019s fees based upon a violation of the RRAA or any other claim alleged in plaintiffs\u2019 complaint.\nIII. Conclusion\nI concur with that portion of the majority\u2019s opinion to affirm the trial court\u2019s award of double damages to plaintiffs based upon defendants\u2019 willful violations of the Public Utilities Act. I also concur with that portion of the majority\u2019s opinion to affirm the trial court\u2019s award of compensatory damages to Debra Rosseter based upon her breach of contract claim.\nThe trial court\u2019s conclusion of law that defendants\u2019 actions violated the UDTP statute based upon either: (1) defendants\u2019 alleged trespass; (2) a violation of the RRAA; or (3) a violation of the Public Utilities Act is erroneous as a matter of law. I vote to reverse the portion of the trial court\u2019s order awarding treble damages under the UDTP statute. Because the trial court\u2019s order awarding attorney\u2019s fees is predicated upon plaintiffs\u2019 UDTP claims, that award must also be reversed. The majority\u2019s opinion correctly notes that the trial court\u2019s order and award of attorney\u2019s fees to plaintiffs is also fatally defective. I concur in part and respectfully dissent in part.",
        "type": "concurring-in-part-and-dissenting-in-part",
        "author": "TYSON, Judge,"
      }
    ],
    "attorneys": [
      "Kurtz and Blum, PLLC, by Timothy E. Wipperman, for Plaintiffs-Appellees.",
      "Van Camp, Meacham & Newman, PLLC, by Evelyn Mackrella Savage, for Defendants-Appellants."
    ],
    "corrections": "",
    "head_matter": "TAMITHA SHEPARD, BEATRICE PERRY, WILLIAM GMOSER, and DEBRA ROSSETER, Plaintiffs v. BONITA VISTA PROPERTIES, L.P.; VICKIE L. SAFELY-SMITH, as General Partner of BONITA VISTA PROPERTIES, L.P.; VICKIE L. SAFELY-SMITH, Trustee of FVS Trust, General Partner of BONITA VISTA PROPERTIES, L.P; and, VICKIE L. SAFELY-SMITH, Individually, Defendants\nNo. COA07-1095\n(Filed 5 August 2008)\n1. Appeal and Error\u2014 appellate rules violations \u2014 dismissal not required\nThe Court of Appeals denied plaintiffs\u2019 motion to dismiss defendants\u2019 appeal based on alleged violations of N.C. R. App. R 28(b) because: (1) our Supreme Court has held that a party\u2019s failure to comply with a nonjurisdictional rule of appellate procedure, such as Rule 28(b), normally should not lead to dismissal of the appeal; and (2) to the extent defendants failed to comply with Rule 28(b), their noncompliance does not approach the level of a substantial failure or gross violation, and thus the court was not authorized to consider any sanction.\n2. Utilities\u2014 campground furnishing electricity \u2014 public utility \u2014 overcharges\nAn RV campground owner was operating a public utility, and the trial court properly awarded damages to former tenants of the campground under the Public Utilities Act, where: (1) the owner charged the tenants more than the actual cost of electricity supplied to the campground by a power company; and (2) the owner\u2019s argument that the overcharges for electricity were not \u201cwillful\u201d because the owner was ignorant of the proper way to calculate electricity charges was without merit. N.C.G.S. \u00a7 62-3(23) (h).\n3. Unfair Trade Practices\u2014 treble damages \u2014 rental of campground spaces \u2014 disconnecting electricity \u2014 damage to EVs\nThe trial court did not err by awarding treble damages on plaintiffs\u2019 unfair and deceptive trade practices (UDTP) claims for damages to their RVs when defendant RV campground owner disconnected electrical service to the RVs, regardless of whether plaintiffs were residential tenants entitled to the protections of Chapter 42, because: (1) plaintiffs\u2019 UDTP claims were not dependent on proving violations of Chapter 42 and the evidence supported their UDTP claims irrespective of any Chapter 42 violations; (2) the trial court\u2019s findings of fact supported its conclusions when defendant rented campground spaces to plaintiffs on a monthly basis and charged plaintiffs for electricity, these activities constituted business activities, defendant\u2019s acts were in or affecting commerce, and defendant\u2019s acts in interfering with and disconnecting plaintiffs\u2019 electricity were unfair at a minimum; and (3) plaintiffs\u2019 expert evidence showed the electrical interruptions caused damage to plaintiffs\u2019 RVs.\n4. Costs; Unfair Trade Practices\u2014 attorney fees\u2014 reasonableness\nAlthough the trial court did not abuse its discretion in an unfair and deceptive trade practices case by awarding attorney fees under N.C.G.S. \u00a7 75-16.1, the case is remanded for a determination of the reasonableness of the award because: (1) in order for the Court of Appeals to determine whether an award is reasonable, the record on appeal must contain findings of fact that support the award including findings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney; and (2) the Court of Appeals was unable to determine from the trial court\u2019s findings whether the amount of the award was reasonable when the findings did not fully address the skill required to perform the legal services that were rendered or the experience and ability of plaintiffs\u2019 trial counsel. On remand, the trial court may include fees for services rendered at all stages of the litigation, including the appeal.\n5. Contracts\u2014 breach of contract \u2014 compensatory damages\u2014 extra hours worked\nThe trial court did not err in a breach of contract case by concluding that plaintiff Rosseter was entitled to compensatory damages for the extra hours she worked as office manager for defendant\u2019s RV campground because: (1) the trial court\u2019s findings of fact established that the parties assented to the same thing in the same sense including that defendant agreed to pay Rosseter $6.00 for each hour Rosseter worked after eighty-six hours per month, and Rosseter initially accepted this compensation in the form of credits against her electricity charges and lot rental; (2) having been forced out of the campground by defendants\u2019 disruption of her electrical service, Rosseter was no longer able to accept her due compensation in this form; and (3) by the express terms of the agreement, Rosseter was entitled to monetary compensation for hours worked for which she has not been compensated.\nJudge TYSON concurring in part and dissenting in part.\nAppeal by Defendants from judgment entered 5 April 2007 by Judge William C. Mcllwain in Scotland County District Court. Heard in the Court of Appeals 5 March 2008.\nKurtz and Blum, PLLC, by Timothy E. Wipperman, for Plaintiffs-Appellees.\nVan Camp, Meacham & Newman, PLLC, by Evelyn Mackrella Savage, for Defendants-Appellants."
  },
  "file_name": "0614-01",
  "first_page_order": 646,
  "last_page_order": 669
}