{ "id": 8554179, "name": "STATE OF NORTH CAROLINA ex rel RUFUS L. EDMISTEN, Attorney General, Plaintiff v. J. C. PENNEY COMPANY, INC., Defendant", "name_abbreviation": "State ex rel. Edmisten v. J. C. Penney Co.", "decision_date": "1976-08-04", "docket_number": "No. 7610SC164", "first_page": "368", "last_page": "372", "citations": [ { "type": "official", "cite": "30 N.C. App. 368" } ], "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": "190 S.E. 2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 634", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553416 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0634-01" ] }, { "cite": "411 F. 2d 874", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2191414 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/411/0874-01" ] }, { "cite": "316 F. 2d 423", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 168898 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/f2d/316/0423-01" ] }, { "cite": "145 F. 2d 751", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3673261 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/f2d/145/0751-01" ] }, { "cite": "200 F. 2d 362", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1281186, 3755378 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/f2d/200/0362-01" ] }, { "cite": "200 F. 2d 865", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1281012 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/f2d/200/0865-01" ] }, { "cite": "272 F. 2d 401", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1962899 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/f2d/272/0401-01" ] }, { "cite": "218 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568140 ], "year": 1975, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0303-01" ] }, { "cite": "15 U.S.C. \u00a7 45", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 474, "char_count": 8318, "ocr_confidence": 0.689, "pagerank": { "raw": 5.456954848847313e-08, "percentile": 0.3427665087810139 }, "sha256": "cc21356c85d530bbf5b02c31b145d295fb39eac7b43faa4a5dc539d857dccd94", "simhash": "1:afb071e730771853", "word_count": 1330 }, "last_updated": "2023-07-14T18:42:34.327987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Hedrick concurs.", "Judge Parker dissents." ], "parties": [ "STATE OF NORTH CAROLINA ex rel RUFUS L. EDMISTEN, Attorney General, Plaintiff v. J. C. PENNEY COMPANY, INC., Defendant" ], "opinions": [ { "text": "ARNOLD, Judge.\nG.S. 75-1.1 provides in pertinent part as follows:\n\u201c\u00a7 75-1.1. Methods of competition, acts and practices regulated; legislative policy.\u2014 (a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.\n(b) The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State.\u201d\nG.S. 75-1.1 is a part of Chapter 833 of the 1969 Session Laws entitled An Act to Amend Chapter 75 of The General Statutes to Provide Civil Remedies Against Unfair Methods of Competition and Unfair or Deceptive Acts or Practices in Trade or Commerce. The only question presented by this appeal is whether G.S. 75-1.1 is applicable to the debt collection activities alleged in this action.\nThe intent of the General Assembly in enacting Chapter 833 was to enable a person damaged by deceptive acts or practices to recover treble damages from the wrongdoer, and to declare deceptive acts or practices in the conduct of any trade or commerce to be unlawful, and to provide civil legal means to maintain ethical standards of dealings between persons in business and the consuming public of North Carolina.\nIn determining the scope of G.S. 75-1.1 consideration must be given to the intent and purpose for which the legislation was enacted. G.S. 75-1.1 should be interpreted to grant broad relief against \u201cunfair or deceptive acts or practices in the conduct of any trade or commerce.\u201d See 6 Wake Forest Intra. L. Rev. 1, 18-20 (1969).\nTo give effect to the intent and purpose for which G.S. 75-1.1 was enacted it should apply to all unfair and deceptive acts in the conduct of trade or business, including practices involved in the collection of debts. The argument presented by appellees that the phrase \u201ctrade or commerce\u201d does not encompass debt collection activities is rejected. Black\u2019s Law Dictionary explains that the \u201cwords \u2018trade\u2019 and \u2018commerce,\u2019 when used in juxtaposition impart to each other enlarged signification, so as to include practically every business occupation carried on for subsistence or profit, and into which the elements of bargain and sale, barter, exchange, or traffic, enter.\u201d\nFurther guidance can be obtained by reviewing federal decisions on appeals from the Federal Trade Commission, \u201csince the language of G.S. 75-1.1 closely parallels that of the Federal Trade Commission Act, 15 U.S.C. \u00a7 45(a) (1) (1973 Ed.), which prohibits \u2018unfair or deceptive acts or practices in commerce.\u2019 \u201d Hardy v. Toler, 288 N.C. 303, 308, 218 S.E. 2d 342 (1975). The federal courts have consistently applied the Federal Trade Commission Act to unfair or deceptive acts in the collection of debts. Mohr v. FTC, 272 F. 2d 401 (1959); Dejay Stores v. Federal Trade Commission, 200 F. 2d 865 (1952); Bennett v. Federal Trade Commission, 200 F. 2d 362 (1952); Silverman v. Federal Trade Commission, 145 F. 2d 751 (1944); In re Floersheim, 316 F. 2d 423 (1963); Floersheim v. FTC, 411 F. 2d 874 (1969).\nIn his amended order dissolving the temporary restraining order and denying the preliminary injunction the trial judge concluded that \u201cassuming without deciding that all the allegations of the Complaint are true, the Court will not enter a Preliminary Injunction because it is of the opinion that such conduct does not fall within the purview of G.S. 75-1.1. . . .\u201d His Honor found however that \u201cthere is ample evidence to support a finding that the conduct complained of did occur.\u201d\nAppellant correctly contends that the court\u2019s finding of \u201cample evidence to support a finding that the conduct complained of did occur\u201d is probable cause for supposing that plaintiff will be able to sustain its allegations at trial. See Automobile Dealer Resources, Inc. v. Insurance Co., 15 N.C. App. 634, 190 S.E. 2d 729 (1972). Since there is ample evidence that the conduct alleged did occur, and the conduct complained of does fall within the scope prohibited by G.S. 75-1.1, it was error for the trial court to dissolve the restraining order and to deny the preliminary injunction. Judgment is vacated and the cause is remanded with directions to enter the preliminary injunction.\nReversed and remanded.\nJudge Hedrick concurs.\nJudge Parker dissents.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Alan S. Hirsch, for plaintiff appellant.", "Smith, Anderson, Blount & Mitchell, by Henry A. Mitchell, Jr., and M. E. Weddington, for defendant appellee." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA ex rel RUFUS L. EDMISTEN, Attorney General, Plaintiff v. J. C. PENNEY COMPANY, INC., Defendant\nNo. 7610SC164\n(Filed 4 August 1976)\nUnfair Competition\u2014 unfair acts in conduct of trade or commerce \u2014 collection practices\nThe statute prohibiting \u201cunfair or deceptive acts or practices in the conduct of any trade or commerce,\u201d G.S. 75-1.1, applies to repeated abusive or harassing telephone calls by a department store chain to its delinquent customers and their employers.\nJudge Parker dissents.\nAppeal by plaintiff from Bailey, Judge. Judgment entered 23 December 1975 in Superior Court, Wake County. Heard in the Court of Appeals 27 May 1976.\nPlaintiff filed complaint alleging that defendant violated G.S. 75-1.1 by using unfair and deceptive acts in the conduct of commerce. It was alleged that defendant makes repeated abusive, threatening and harassing telephone calls to its delinquent credit customers. It was also alleged that telephone calls are made to defendant\u2019s customers at their places of employment even after the customer makes repeated requests that he be contacted only at home, and that calls are also \u201cplaced to credit customer\u2019s employer, informing the employer of the debt and attempting to use the employer\u2019s influence and position to force payment of the debt.\u201d\nA temporary order was entered restraining defendant from making abusive or harassing contacts with its credit customers, and from contacting its customers at their place of employment after being instructed not to do so, and from contacting anyone except the customer himself concerning the debt. The order also provided for a further hearing on plaintiff\u2019s request for a preliminary injunction against the alleged conduct until final hearing on the matter.\nAt the hearing on the request for a preliminary injunction plaintiff presented affidavits by various credit customers and their employers concerning telephone calls by defendant\u2019s agents seeking to collect debts. These affidavits tended to show that frequent and repeated calls were made, and that threats were made concerning the placement of liens on debtor\u2019s property and garnishment of wages. It was also avowed by the affiants that defendant\u2019s agents called their employers and co-workers to discuss the debts, and that these calls were made by defendant\u2019s agents after being requested not to do so.\nDefendant responded with an affidavit from its manager of the Atlanta credit office asserting that defendant employed people to contact delinquent debtors by telephone, and that defendant issued a manual describing the manner in which these contacts were to be conducted and forbidding threats and harassment. The manager avowed that he supervised adherence to the manual, that calls were not made until an account was 60 days overdue, that accommodations were made for hardship cases, and that defendant had been given no advance warning of this lawsuit.\nUpon reviewing the evidence presented at the hearing the temporary restraining order was dissolved and a preliminary injunction was denied. Defendant filed answer denying the material allegations of the complaint.\nThe trial court allowed plaintiff\u2019s motion to amend its order to include findings of fact and conclusions of law. In its amended order the trial court concluded that \u201cassuming without deciding that all the allegations of the Complaints are true, the Court will not enter a Preliminary Injunction because it is of the opinion that such conduct does not fall within the purview of G.S. 75-1.1. . . .\u201d From the entry of the amended order the State appealed to this Court.\nAttorney General Edmisten, by Associate Attorney Alan S. Hirsch, for plaintiff appellant.\nSmith, Anderson, Blount & Mitchell, by Henry A. Mitchell, Jr., and M. E. Weddington, for defendant appellee." }, "file_name": "0368-01", "first_page_order": 396, "last_page_order": 400 }