{ "id": 8550218, "name": "W. O. GREEN v. DEWEY E. LYBRAND", "name_abbreviation": "Green v. Lybrand", "decision_date": "1978-12-05", "docket_number": "No. 7812DC72", "first_page": "56", "last_page": "60", "citations": [ { "type": "official", "cite": "39 N.C. App. 56" } ], "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": "42 S.E. 2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 347", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624890 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0347-01" ] }, { "cite": "143 S.E. 7", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1928, "opinion_index": 0 }, { "cite": "195 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630875 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/nc/195/0607-01" ] }, { "cite": "61 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "opinion_index": 0 }, { "cite": "232 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611370 ], "year": 1950, "opinion_index": 0, "case_paths": [ "/nc/232/0617-01" ] }, { "cite": "130 S.E. 156", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "opinion_index": 0 }, { "cite": "190 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609952 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/nc/190/0563-01" ] }, { "cite": "152 S.E. 2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "159" } ], "opinion_index": 0 }, { "cite": "269 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562594 ], "year": 1967, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0218-01" ] }, { "cite": "188 S.E. 2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "14 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550081 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/14/0441-01" ] } ], "analysis": { "cardinality": 442, "char_count": 9236, "ocr_confidence": 0.802, "pagerank": { "raw": 7.317852702137001e-08, "percentile": 0.4388518403968726 }, "sha256": "4d2b1d35f16e6af3e9b7e874566b2ee234dfcdbfdc5cb2d3bfa609073ea16da2", "simhash": "1:ee12a97dc0df3b0e", "word_count": 1557 }, "last_updated": "2023-07-14T17:57:00.834910+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MORRIS and Erwin concur." ], "parties": [ "W. O. GREEN v. DEWEY E. LYBRAND" ], "opinions": [ { "text": "ARNOLD, Judge.\nPlaintiff urges that the proceedings should not have been dismissed because he was not seeking repossession of the premises solely on the basis of nonpayment of rent. Plaintiffs complaint is set out in essence as follows:\nFirst Claim for Relief: The lease provided that the rent was payable in advance on or before the first day of each month; the rent for the third month was not paid by the seventh of the month; the October rent check was tendered on the 12th of the month; and on 16 October \u201cthe plaintiff . . . notified the defendant . . . that the defendant\u2019s lease was terminated due to failure of the defendant to pay the rent on or before the.first day of the month on a number of occasions.\u201d\nSecond Claim for Relief: That the leased building was damaged due to defendant\u2019s negligence and defendant had failed to repair it as the lease required; and \u201c[t]hat the continuation of the use of the building without its being repaired by the defendant is a breach of the terms of the contract by the defendant. . . . The building has been damaged in the amount of $150.00, due to these specific damages.\u201d\nThird Claim for Relief: That defendant allowed trash to accumulate on the premises, resulting in a reduction in value of the premises; this was \u201ca violation of the spirit and letter- of the contract, resulting in damage to the plaintiff.\u201d\nFourth Claim for Relief: That defendant used a piece of plaintiff\u2019s equipment included in the lease without having it repaired, which resulted in damage to the equipment.\nThe relief prayed for included: that defendant vacate the premises; that he pay the agreed rent for each month he continues in possession; and that he be required to pay \u201c$3,000 for damages to the bathroom, the wall of the building and the pollution of the premises with trash and debris.\u201d\nIn its order dismissing the action, the trial court found as fact: \u201cThat plaintiff\u2019s action is brought to recover possession of demised premises upon a forfeiture for the nonpayment of rent under a written lease agreement as alleged in the plaintiff\u2019s First Claim for Relief; [and] that the plaintiff\u2019s Second, Third and Fourth Claims for Relief are for money damages. . . .\u201d The trial court\u2019s findings of fact are conclusive on appeal if supported by any competent evidence. McMichael v. Borough Motors, Inc., 14 N.C. App. 441, 188 S.E. 2d 721 (1972); 1 Strong\u2019s N.C. Index 3d, Appeal & Error \u00a7 57.2. Here the wording of the complaint clearly supports the court\u2019s findings. Moreover, even had it been found that plaintiff was seeking repossession on the basis of the other alleged contract breaches, the plaintiff could not have prevailed. \u201c[A] breach of the conditions of a lease between a landlord and tenant cannot be made the basis of summary ejectment unless the lease itself provides for termination of [sic] such breach or reserves the right of re-entry for such breach.\u201d Morris v. Austraw, 269 N.C. 218, 222, 152 S.E. 2d 155, 159 (1967).\nHaving determined that this is an action to repossess for nonpayment of rent, we conclude that the matter was properly dismissed. The lease is silent as to forfeiture for nonpayment of rent, and generally \u201c[i]n the absence of a stipulation for a forfeiture, a lessee does not forfeit his term by the nonpayment of rent. . . .\u201d 49 Am. Jur. 2d, Landlord and Tenant \u00a7 1020. This rule is changed by G.S. 42-3, which provides that where the parties have failed to write the forfeiture into their lease, \u201cthere shall be an implied forfeiture of the term upon failure to pay the rent within 10 days after a demand is made. . . .\u201d However, in the situation before us G.S. 42-3 must be read in conjunction with G.S. 42-33. Ryan v. Reynolds, 190 N.C. 563, 130 S.E. 156 (1925). G.S. 42-33 provides that if \u201cin any action brought to recover the possession of demised premises upon a forfeiture for the nonpayment of rent, the tenant, before judgment . . . , pays or tenders the rent due and the costs of the action, all further proceedings in such action shall cease.\u201d Here, the court found that the defendant tendered all rent due and all costs incurred by depositing the money with the Clerk of Court, and, according to G.S. 42-33, the action was properly dismissed. See Hoover v. Crotts, 232 N.C. 617, 61 S.E. 2d 705 (1950); Coleman v. Carolina Theatres, Inc., 195 N.C. 607, 143 S.E. 7 (1928).\nWe disagree with plaintiff\u2019s contention that G.S. 42-33 is inapplicable simply because it is included in the statutes under the general heading of summary ejectment. The wording of the statute makes clear that it applies not just to summary ejectment actions, but to \u201cany action brought to recover the possession of demised premises upon a forfeiture for the nonpayment of rent.\u201d And this was the conclusion of our Supreme Court in Seligson v. Klyman, 227 N.C. 347, 42 S.E. 2d 220 (1947).\nThe plaintiff also argues that the court should have awarded attorney\u2019s fees to him as the \u201cprevailing party\u201d pursuant' to the lease agreement. The lease provides that \u201cin the event it shall become necessary for either party to enforce the provisions of this Lease by legal action or employ attorneys for the collection of any monies due herein, then the prevailing party shall be entitled to recover its reasonable attorney\u2019s fees. . . .\u201d We consider only whether the \u201cFirst Claim for Relief\u201d falls within this provision, since it is the only claim which has been finally adjudicated.\nIt appears from the complaint that rent through October 1976 was accepted by the plaintiff, and from the reply that rent for the months since October has been tendered to plaintiff but refused, on the ground that the lease was terminated in October. Clearly this claim is not an action \u201cfor the collection of any monies due\u201d under the lease. Neither is it an action \u201cto enforce the provisions of the Lease,\u201d since the lease does not provide for termination in the event of default or breach. We find that the plaintiff is not entitled by the lease agreement to collect attorney\u2019s fees.\nWe note that the trial court ordered that \u201call further proceedings\u201d be stayed and the matter dismissed, without prejudice to the plaintiff\u2019s right to proceed in a separate action on the second, third and fourth claims for relief. We see no need to dismiss the entire action and require plaintiff to begin again in a separate proceeding. Accordingly, the order of the trial court is hereby modified to dismiss only the first claim for relief.\nModified and affirmed.\nJudges MORRIS and Erwin concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Seavy A. Carroll for plaintiff appellant.", "Marland C. Reid for defendant appellee." ], "corrections": "", "head_matter": "W. O. GREEN v. DEWEY E. LYBRAND\nNo. 7812DC72\n(Filed 5 December 1978)\n1. Landlord and Tenant \u00a7\u00a7 18, 20\u2014 action to recover possession for nonpayment of rent \u2014 claims for money damages \u2014 tender of rent and costs\nThe trial court properly found that plaintiff\u2019s first claim for relief was to recover possession of demised premises upon a forfeiture for nonpayment of rent and that plaintiff\u2019s other claims were for money damages for negligent damage to the leased building, pollution of the premises with trash and debris, and negligent failure to repair plaintiffs equipment on the premises. Therefore, the court properly dismissed the claim for repossession for nonpayment where defendant tendered all rent due and all costs incurred by depositing the money with the clerk of court pursuant to G.S. 42-33.\n2. Landlord and Tenant \u00a7 18\u2014 tender of rent \u2014 applicability of statute\nG.S. 42-33 applies not just to summary ejectment actions but to \u201cany action brought to recover the possession of demised premises upon a forfeiture \u2022 for the nonpayment of rent.\u201d\n3. Attorneys at Law \u00a7 7.4; Landlord and Tenant \u00a7 18\u2014 action for possession for nonpayment of rent \u2014no attorney fees under lease\nAn action to recover possession of demised premises upon a forfeiture for nonpayment of rent was not an action \u201cfor the collection of any monies due\u201d under the lease within the meaning of a lease provision relating to the recovery of attorney fees where rent through October 1976 was accepted by plaintiff, and rent for the months since October was tendered to plaintiff but refused on the ground that the lease was terminated in October; nor was it an action \u201cto enforce the provisions of the Lease\u201d within the meaning of the provision relating to attorney fees where the lease did not provide for termination in the event of default or breach.\nAppeal by plaintiff from Guy, Judge. Judgment entered 10 October 1977 in District Court, CUMBERLAND County. Heard in the Court of Appeals 23 October 1978.\nPlaintiff brought this action to recover possession of premises leased to defendant, and for damages. He alleged late payment of rent, negligent damage to the building, pollution of the premises, and negligent failure to repair plaintiffs equipment on the premises. Defendant filed a motion in limine for a stay of further proceedings, on the ground that he had tendered all rent due and court costs pursuant to G.S. 42-33. The court made findings of fact, granted defendant\u2019s motion, and dismissed the matter without prejudice to plaintiff\u2019s right to proceed for damages in a separate action. Defendant was taxed with costs of the action. Plaintiff appeals.\nSeavy A. Carroll for plaintiff appellant.\nMarland C. Reid for defendant appellee." }, "file_name": "0056-01", "first_page_order": 84, "last_page_order": 88 }