{ "id": 12170351, "name": "LAWRENCE EDWARD OVERSTREET, JR. and wife, RITA PORTERFIELD OVERSTREET v. BROOKLAND, INCORPORATED", "name_abbreviation": "Overstreet v. Brookland, Inc.", "decision_date": "1981-06-16", "docket_number": "No. 809SC970", "first_page": "444", "last_page": "454", "citations": [ { "type": "official", "cite": "52 N.C. App. 444" } ], "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": "167 S.E. 72", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "opinion_index": 0 }, { "cite": "203 N.C. 825", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621217 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/203/0825-01" ] }, { "cite": "15 L.Ed. 2d 67", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1965, "opinion_index": 0 }, { "cite": "86 S.Ct. 50", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1965, "opinion_index": 0 }, { "cite": "382 U.S. 822", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6211431, 6211657, 6212301, 6211952, 6212562, 6211223 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/us/382/0822-02", "/us/382/0822-03", "/us/382/0822-05", "/us/382/0822-04", "/us/382/0822-06", "/us/382/0822-01" ] }, { "cite": "140 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "263 N.C. 677", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572593 ], "year": 1965, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0677-01" ] }, { "cite": "276 S.E. 2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "168 S.E. 2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 136", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548401 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0136-01" ] }, { "cite": "10 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614354 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0129-01" ] }, { "cite": "72 S.E. 2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "236 N.C. 208", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623999 ], "year": 1952, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0208-01" ] }, { "cite": "117 S.E. 2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "762" } ], "opinion_index": 0 }, { "cite": "253 N.C. 778", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627163 ], "year": 1961, "pin_cites": [ { "page": "781" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0778-01" ] }, { "cite": "266 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "616" }, { "page": "621" } ], "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] }, { "cite": "18 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "366-67" } ], "opinion_index": 0 }, { "cite": "220 N.C. 806", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11309838 ], "year": 1942, "pin_cites": [ { "page": "810-811" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0806-01" ] }, { "cite": "209 S.E. 2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "286 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563771 ], "year": 1974, "pin_cites": [ { "page": "139" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0130-01" ] }, { "cite": "197 S.E. 2d 15", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 371", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550014 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0371-01" ] }, { "cite": "135 S.E. 2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1964, "pin_cites": [ { "page": "35-36" } ], "opinion_index": 0 }, { "cite": "261 N.C. 414", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573855 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0414-01" ] }, { "cite": "209 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "286 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564488, 8564458, 8564526, 8564434, 8564405 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/286/0212-04", "/nc/286/0212-03", "/nc/286/0212-05", "/nc/286/0212-02", "/nc/286/0212-01" ] }, { "cite": "208 S.E. 2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "213" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547705 ], "year": 1974, "pin_cites": [ { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0058-01" ] }, { "cite": "75 S.E. 2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "628" } ], "opinion_index": 0 }, { "cite": "237 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614893 ], "year": 1953, "pin_cites": [ { "page": "512" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0502-01" ] }, { "cite": "270 S.E. 2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562983, 8562966, 8563063, 8563096, 8563038 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0556-02", "/nc/300/0556-01", "/nc/300/0556-04", "/nc/300/0556-05", "/nc/300/0556-03" ] }, { "cite": "264 S.E. 2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 276", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550220 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0276-01" ] } ], "analysis": { "cardinality": 982, "char_count": 25870, "ocr_confidence": 0.886, "pagerank": { "raw": 6.024919772898997e-07, "percentile": 0.9545909819452795 }, "sha256": "36af13f1c9fc6b8b241e0598d6a02b946b3a91e2969a09c117b7f4e59778d0f5", "simhash": "1:eb4ad06774b43cd5", "word_count": 4256 }, "last_updated": "2023-07-14T23:00:28.379499+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Clark concur." ], "parties": [ "LAWRENCE EDWARD OVERSTREET, JR. and wife, RITA PORTERFIELD OVERSTREET v. BROOKLAND, INCORPORATED" ], "opinions": [ { "text": "WELLS, Judge.\nThis appeal presents questions as to whether plaintiffs\u2019 evidence was sufficient to go to the jury on any of four causes of action: one, on breach of residential subdivision restrictive covenants, two, on breach of a contract to construct and maintain a residential subdivision street, three, on fraud in the inducement of the sale and purchase of a residential lot, and four, on unfair and deceptive trade practices in selling a residential lot.\nPlaintiffs\u2019 evidence, viewed in the light most favorable to plaintiffs and giving plaintiffs the benefit of every reasonable inference which can be drawn from it, Home Products Corp. v. Motor Freight, Inc., 46 N.C. App. 276, 264 S.E. 2d 774 (1980), disc. rev. denied, 300 N.C. 556, 270 S.E. 2d 105 (1980), tends to show the following. Defendant, the owner of the Brookland Subdivision, sold plaintiffs lot number ten on 9 May 1977. Prior to and at the time of agreement to purchase, defendant represented to plaintiffs that the subdivision would be restricted to residential use only and that the land could be used for no other purpose. These restrictions were not included in plaintiffs\u2019 deed, but were later entered into between defendant and plaintiffs, signed by plaintiffs and recorded on 12 August 1977. Before plaintiffs purchased their lot, plaintiff Lawrence Edward Overstreet went with defendant\u2019s agents to visit the property. To get to the property, they traveled along a state road for about 1/10 of a mile and then emerged onto an old farm path. Defendant\u2019s agents informed Overstreet that the old farm path was being used by the Oakleys to come onto the Brookland property to harvest crops, but that after the crops were out of the fields, the property would be restricted, no more farming would take place and the path would be closed off from the subdivision street so that Brunswick Lane would be a dead-end street. The restrictive covenants include a restriction that \u201c[n]o lot shall be used except for residential purposes\u201d and a provision that \u201c[n]o noxious or offensive trade shall be carried on upon any lot, nor shall any other occupant of any portion of the premises undertake any activity which may be or become any annoyance or nuisance to the neighborhood.\u201d The restrictions also included a paragraph as follows:\nEnforcement. If the parties hereto or any of them or their heirs, successors or assigns shall violate or attempt to violate any of the covenants and restrictions herein set forth before June 15, 1997, it shall be lawful for any person or persons owning any other portions of the premises in said development or subdivision to promote any proceeding at law or in equity against the person or persons violating or attempting to violate any such covenants or restrictions, and either to prevent the violator from doing so or to recover damages or other dues for such violation.\nAfter plaintiffs bought their lot, Mr. Overstreet met Harry Lee Oakley, who inquired if plaintiffs had bought lot number ten. When Overstreet replied in the affirmative, Oakley informed him that Oakley\u2019s father owned property beside lot ten, that they had a gate there and would like to continue to come through the property. Mr. Overstreet informed Oakley that defendant had agreed that Brunswick Lane would be closed off. Oakley was not satisfied with that, was still determined to come through the area, and intended to talk to defendant about the matter. Approximately three days after plaintiffs bought their lot, Oakley bulldozed a path from the Oakley farm across a corner of plaintiffs\u2019 lot into Brunswick Lane. Mr. Overstreet complained to defendant\u2019s agents, who informed him that Oakley had not been given permission by them to come into Brunswick Lane. As Oakley continued to come through plaintiffs\u2019 lot, plaintiffs erected a blockade. Later, on 25 May 1978, Harry Lee Oakley purchased lot number nine in the subdivision and subsequently cut a roadway through lot nine to Brunswick Lane. Lot nine lies directly across Brunswick Lane from plaintiffs\u2019 lot. Oakley is using the path across lot nine as an access road to his farm property and continues to use Brunswick Lane for farm traffic. When Mr. Overstreet complained about this to defendant\u2019s agents, Overstreet was told by defendant\u2019s agents that defendant would agree to let Oakley come through the area and they would see how things worked out. Mr. Overstreet stated that he could not agree to these conditions and circumstances, whereupon defendant\u2019s agents told him that plaintiffs and Harry Lee Oakley would have to learn to get along.\nDefendant orally represented to plaintiffs that it would cut a sixty foot right-of-way to plaintiffs\u2019 lot, and would properly ditch, gravel and maintain a road to plaintiffs\u2019 lot. After plaintiffs purchased their lot, defendant confirmed their promise to maintain the road in a letter to Home Savings and Loan Association, the lender from whom plaintiffs borrowed the funds to construct their residence. Defendant has not maintained the road as promised, and in bad weather, the road becomes practically impassable for automobile traffic.\nWe first consider plaintiffs\u2019 cause of action for breach of the restrictive covenants. Restrictive convenants such as the ones under consideration here are servitudes imposed on the various lots or parcels of land in the subdivision and as such are treated as easements appendant or appurtenant to the lots or parcels within the subdivision. Craven County v. Trust Co., 237 N.C. 502, 512, 75 S.E. 2d 620, 628 (1953); Shipton v. Barfield, 23 N.C. App. 58, 62, 208 S.E. 2d 210, 213, cert. denied, 286 N.C. 212, 209 S.E. 2d 316 (1974). The effect of such negative easements created by such covenants is that, in the legal sense, each lot owes to all the other lots in the subdivision the burden of observing the covenants and each of the lots is invested with the benefits imposed by the burdens upon the others. Craven County v. Trust Co., supra. The law treats each landowner as a promisor, promising to abide by the restrictions for the benefit of the other landowners in the subdivision, giving them the right to sue inter se, but does not recognize a remedy against the subdivider unless he has expressly or impliedly undertaken responsibility for the enforcement of the various covenants. Shipton v. Barfield, supra. There are no provisions in the covenants under consideration here which impose a duty upon defendant to enforce them on behalf of plaintiffs against any other landowner in the subdivision. The evidence presented by plaintiffs shows no use by defendant of other lots or parcels in the subdivision in violation of the covenants. These circumstances compel us to conclude, and we so hold, that the trial court properly granted defendant\u2019s motion for a directed verdict as to plaintiffs\u2019 First and Second Causes of Action.\nWe next reach plaintiffs\u2019 cause of action based upon defendant\u2019s alleged fraudulent acts or representations inducing plaintiffs to buy lot number ten. Plaintiffs\u2019 evidence shows that defendant represented to them \u2014promised to them \u2014that the subdivision would be subject to covenants restricting it to residential use, that Oakley\u2019s farming operation would not affect Brunswick Lane, that Brunswick Lane would be and remain a dead-end street, and that the old farm path would be closed off. Soon after plaintiffs purchased their lot, the Oakleys started using Brunswick Lane for farm equipment traffic. Harry Lee Oakley later approached Mr. Overstreet and told Overstreet that they (the Oakleys) would like to continue to come through the property. Mr. Overstreet informed Oakley that before plaintiffs had bought their property, defendant had agreed that \u201cthe road would be closed off\u201d. Overstreet testified that \u201cOakley was not satisfied with that, was still determined to com\u00e9 through the area, and said he would talk with the realtors\u201d, i.e., the defendant\u2019s representatives. Soon thereafter, Oakley cut a path from the old farm road to Brunswick Lane. Oakley was in dispute with defendant about his rights to continue to use the old farm path, and about a year later, he purchased lot nine to use for a connector road between his property and Brunswick Lane. Before purchasing lot nine Oakley informed defendant that he would continue to drive on those portions of the old farm path which ran across lot nine. This evidence would establish facts from which a jury could reasonably infer that defendant promised that Brunswick Lane would remain a dead-end street, that no part of the subdivision would be used for non-residential purposes, and that at about a year after these promises were made, defendant sold a lot to Oakley which they knew he intended to use for non-residential purposes, Realty Co. v. Hobbs, 261 N.C. 414, 135 S.E. 2d 30 (1964); Franzle v. Waters, 18 N.C. App. 371, 197 S.E. 2d 15 (1973), the intended use of which would have the effect of making Brunswick Lane a through street. It thus becomes clear that plaintiffs have not shown that defendant misrepresented to them a subsisting fact, as distinguished from a representation relating to future prospects. Ragsdale v. Kennedy, 286 N.C. 130, 139, 209 S.E. 2d 494, 500 (1974). Our Supreme Court has held that while the general rule is that mere unfulfilled promises cannot be made the basis of an action for fraud, if a promise is made fraudulently \u2014that is, with no intention to carry it out \u2014such is a misrepresentation of the state of the promisor\u2019s mind at the time of the promise, i.e., a preexisting material fact. Williams v. Williams, 220 N.C. 806, 810-811, 18 S.E. 2d 364, 366-67 (1942); see also, Johnson v. Insurance Co., 300 N.C. 247, 255, 266 S.E. 2d 610, 616 (1980) and cases cited therein; Hoyle v. Bagby, 253 N.C. 778, 781, 117 S.E. 2d 760, 762 (1961); Davis v. Davis, 236 N.C. 208, 211, 72 S.E. 2d 414, 415 (1952). Cf., Harding v. Insurance Co., 218 N.C. 129, 10 S.E. 2d 599 (1940); Whitley v. O\u2019Neal, 5 N.C. App. 136, 168 S.E. 2d 6 (1969). Plaintiffs\u2019 evidence in this case does not establish facts upon which a jury could reasonably infer that at the time defendant sold plaintiffs their lot, defendant had no intent of restricting the subdivision to residential use and purpose or no intent that Brunswick Lane would be and continue to be a dead-end street. The trial judge properly granted defendant\u2019s motion for a directed verdict of this cause of action.\nWe find that our decision as to the issue of fraud in this case is substantially dispositive of plaintiffs\u2019 alleged cause of action based upon unfair or deceptive trade practices in violation of G.S. 75-1.1. While our Supreme Court has held that to succeed under G.S. 75-1.1, it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception, plaintiff must, nevertheless, show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception. Marshall v. Miller, 302 N.C. 539, 276 S.E. 2d 397 (1981). A trade practice is actionable if it is unfair, and \u201c[t]he concept of \u2018unfairness\u2019 is broader than and includes the concept of \u2018deception\u2019.\u201d Johnson v. Insurance Co., supra, at 263, 266 S.E. 2d at 621. \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 Marshall v. Miller, supra, at 548, 276 S.E. 2d at 403. We do not find that plaintiffs have shown that defendant\u2019s acts in this case meet any of these criteria, and therefore, we hold that the trial judge properly granted defendant\u2019s motion for a directed verdict on this cause of action.\nFinally, we consider plaintiffs\u2019 cause of action for breach of defendant\u2019s promise to properly construct and maintain a road to plaintiffs\u2019 lot. As indicated in the factual summary, the trial court dismissed this cause on the grounds that defendant\u2019s promise came within the statute of frauds, that it was not in writing when plaintiffs purchased their lot, and that the written confirmation of the promise having been made subsequent to plaintiffs\u2019 purchase, it was a separate agreement which would not sustain the original oral agreement. We hold that the trial court erred in this aspect of the case. The pleadings disclose that plaintiffs alleged and defendant admitted that plaintiffs\u2019 deed contained a reference to the subdivision plat on which Brunswick Lane is shown as a street and that subdivision plat was duly recorded in the Person County Registry. Thus, plaintiffs obtained an easement in the streets shown on that plat leading to plaintiffs\u2019 lot, Wofford v. Highway Commission, 263 N.C. 677, 683, 140 S.E. 2d 376, 381 (1965), cert. denied, 382 U.S. 822, 86 S.Ct. 50, 15 L.Ed. 2d 67 (1965); Realty Co. v. Hobbs, supra, at 421, 135 S.E. 2d at 35-36, and it is clear that plaintiffs are not seeking through the promise as to maintenance of the road to establish or enforce an easement, which would of course fall within the statute of frauds, but are seeking only to enforce defendant\u2019s promise to construct and maintain the road, which does not involve a contract to sell or convey land or any interest in land. Defendant\u2019s promise to construct and maintain the road does not come within the statute of frauds. See, Baucom v. Bank, 203 N.C. 825, 167 S.E. 72 (1933). Plaintiffs\u2019 evidence was clearly sufficient to take this cause of action to the jury. On this cause, the judgment of the trial court allowing defendant\u2019s motion for a directed verdict is reversed. Our decision makes it unnecessary to reach plaintiffs\u2019 argument that the subsequent written memorandum (letter) was sufficient to meet the requirement of the statute of frauds.\nAffirmed in part, reversed in part.\nJudges Vaughn and Clark concur.\n. Methods of competition, acts and practices regulated; legislative policy. \u2014(a) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.\n(b) For purposes of this section, \u201ccommerce\u201d includes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.\n. G.S. 22-2. Contract for sale of land; leases. \u2014All contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them, and all leases and contracts for leasing land for the purpose of digging for gold or other minerals, or for mining generally, of whatever duration; and all other leases and contracts for leasing lands exceeding in duration three years from the making thereof, shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Watson, King & Hofler, by Wilfred F. Drake and R. Hayes Hofler, III, for plaintiff appellants.", "Ramsey, Hubbard & Galloway, by James E. Ramsey, for defendant appellee." ], "corrections": "", "head_matter": "LAWRENCE EDWARD OVERSTREET, JR. and wife, RITA PORTERFIELD OVERSTREET v. BROOKLAND, INCORPORATED\nNo. 809SC970\n(Filed 16 June 1981)\n1. Deeds \u00a7 20.7\u2014 subdivision restrictive covenant \u2014 action against developer \u2014 insufficient evidence\nPlaintiffs\u2019 evidence was insufficient to be submitted to the jury on the issue of defendant subdivision developer\u2019s breach of a covenant restricting use of lots in the subdivision to residential purposes where the basis of plaintiffs\u2019 action was a third party\u2019s use of a subdivision lot, the restrictive covenants contained no provision imposing a duty upon defendant to enforce the restrictions on behalf of plaintiff against any other landowner in the subdivision, and there was no evidence of any use by defendant of other lots or parcels in the subdivision in violation of the covenants.\n2. Fraud \u00a7 12.1\u2014 failure to show misrepresentation of subsisting fact\nPlaintiffs\u2019 evidence was insufficient for the jury on the issue of defendant subdivision developer\u2019s fraud in the inducement of the sale of a residential lot to plaintiffs where it tended to show that defendant promised that a street in front of the lot sold to plaintiffs would remain a dead-end street and that no part of the subdivision would be used for nonresidential purposes, that defendant thereafter sold a lot to a third party which he knew the third party intended to use for access to adjoining property, and that the intended use of the lot would have the effect of making the street in front of plaintiffs' lot a through street, since plaintiffs\u2019 evidence failed to show that defendant misrepresented to them a subsisting fact in that their evidence failed to establish that, at the time defendant sold plaintiffs their lot, defendant had no intention of restricting the subdivision to residential use and no intention that the street in front of plaintiffs\u2019 lot would continue to be a dead-end street.\n3. Unfair Competition \u00a7 1\u2014 unfair trade practices in sale of subdivision lot \u2014insufficient evidence\nPlaintiffs\u2019 evidence was insufficient for the jury on the issue of defendant subdivision developer\u2019s unfair and deceptive trade practices in the sale of a residential lot to plaintiffs where it tended to show only that defendant promised that a street in front of plaintiffs\u2019 lot would remain a dead-end street and that no part of the subdivision would be used for nonresidential purposes, that defendant thereafter sold a lot to a third party which it knew the third party intended to use for the nonresidential purpose of access to adjoining property, and that the intended use would have the effect of making the street in front of plaintiffs\u2019 lot a through street. G.S. 75-1.1.\n4. Frauds, Statute of \u00a7 6.1\u2014 promise to construct and maintain road\nDefendant's promise to construct and maintain a road in front of a residential lot sold to plaintiffs did not come within the Statute of Frauds.\nAppeal by plaintiffs from Farmer, Judge. Judgment entered 24 May 1980 in Superior Court, PERSON County. Heard in the Court of Appeals 9 April 1981.\nPlaintiffs\u2019 original complaint contains allegations under the headings of First, Second, and Third Cause of Action. In their \u201cFirst Cause of Action\u201d, plaintiffs allege that defendant owns a subdivision known as \u201cBrookland Section A\u201d, as described in a plat recorded in the Person County Registry. All of the land in the subdivision is subject to and bound by restrictive and protective covenants recorded in the Person County Registry. Plaintiffs and defendant are bound by said covenants and the covenants provide that the land in the subdivision shall be used for residential purposes only. The covenants were placed on record on 14 June 1977. On 25 May 1978, defendant sold lot number nine in the subdivision to Harry Lee Oakley. Defendant violated the covenants in that it knew Oakley intended to use the property for access to adjoining property, defendant knew that Oakley\u2019s access road would create a nuisance and would be annoying to plaintiffs, and defendant knew that Oakley\u2019s intended use would violate the plan or scheme of development for the subdivision. Plaintiffs were damaged by defendant\u2019s violation of the covenants in that plaintiffs have been harassed and have had to put up with loud vehicles driving back and forth in front of their home at all hours of the day and night and plaintiffs cannot enjoy the planned quiet residential community protected by the covenants. Plaintiffs\u2019 home is located on a through road and not on a dead-end private drive as set out on the plat and as contemplated by the plan or scheme of development. Plaintiffs\u2019 home has not appreciated in value as it otherwise would have. These matters have damaged plaintiffs in the sum of $5,000.00.\nIn their \u201cSecond Cause of Action\u201d, plaintiffs incorporate the allegations set out in their First Cause, and additionally allege that plaintiffs will sustain irreparable harm, damage, and injury unless defendant is permanently restrained and enjoined from \u201cselling property to buyer for forbidden purposes\u201d and that plaintiffs have no adequate remedy at law to prevent the harm and damage which will continue to occur if defendant is \u201callowed to continue to sell property for purposes forbidden by the restrictive covenants.\u201d\nIn their \u201cThird Cause of Action\u201d, plaintiffs incorporate the allegations set forth in their First Cause and additionally allege that defendant contracted with plaintiffs at the time of purchase and sale of lot number ten in the subdivision to provide a two-lane road \u201cto and from\u201d plaintiffs\u2019 home made with a \u201ccrush and run\u201d base and a gravel surface, that defendant has failed and refused to finish the road according to the contract, and that the minimal cost of surfacing the road according to the contract would be $1,200.00.\nDefendant answered admitting ownership of the subdivision, the existence and recording of the plat, the existence and recording of the covenants, the sale of the lot to Oakley, and denying all other essential allegations in the complaint. Following defendant\u2019s answer, plaintiffs were allowed to amend their complaint to set out a Fourth and Fifth Cause of Action.\nIn their \u201cFourth Cause of Action\u201d plaintiffs incorporate the allegations set out in their First Cause of Action, and additionally allege that defendant represented the subdivision to be residential in nature and fully protected by residential restrictive covenants. Defendant represented that Brunswick Lane would be a residential street ending in front of plaintiffs\u2019 home. Defendant knew that Brunswick Lane was going to be used for farm traffic and had made an agreement with Harry Oakley or Frank Oakley, adjoining land owners and farmers, for the extension of Brunswick Lane and for its ese as a thoroughfare and access to the Oakley property. The representations of defendant were false and known to be false by defendant when made. Plaintiffs reasonably relied on defendant\u2019s representations and bought lot number ten and invested in a home on the lot. Plaintiffs do not have a home located in a residential neighborhood on a dead-end street and have been damaged in the sum of $71,500.00.\nIn their \u201cFifth Cause of Action\u201d plaintiffs incorporate the allegations set out in their First and Fourth Causes and additionally allege that defendant, by representing the subdivision to be protected by restrictive covenants and representing Brunswick Lane to be a dead-end residential lane when defendant had made a prior agreement for the use of Brunswick Lane as a farm road and thoroughfare or access road to the Oakley property, was engaging in unfair or deceptive trade practices in violation of G.S. 75-1.1, to plaintiffs\u2019 damage. Plaintiffs sought treble damages and attorney\u2019s fees.\nDefendant answered the amendment by denial and motion to dismiss.\nAt trial, plaintiffs presented extensive evidence, which will be dealt with in the body of this opinion. At the close of plaintiffs\u2019 evidence, defendant moved for a directed verdict on all counts. Following argument of defendant\u2019s counsel on the motion for directed verdict, there ensued lengthy discussion between counsel for both parties and the trial judge. During this episode of the trial, the trial judge first ruled in defendant\u2019s favor on plaintiffs\u2019 Third Cause of Action, on the grounds that plaintiffs\u2019 complaint alleged an oral agreement to build and maintain the road, made prior to plaintiffs\u2019 purchase of the lot and that such an agreement would come within the statute of frauds. Plaintiffs then moved that they be allowed to amend their complaint to conform it to evidence produced at trial of a later written agreement. The trial judge denied this motion. The trial judge then ruled in defendant\u2019s favor on plaintiffs\u2019 Fourth and Fifth Causes of Action. Before ruling on the motion as to plaintiffs\u2019 First (and remaining) Cause of Action as to violation of the restrictive covenants, the trial judge stated that it was necessary to determine as a matter of law a question relating to the existence of an old public road near plaintiffs\u2019 property. At the request and suggestion of counsel for defendant, the trial judge heard the testimony of several witnesses offered by defendant on voir dire \u2014 ie., out of the presence of the jury \u2014on the question of the existence of the old public road. Following the testimony of these witnesses, the trial judge indicated a ruling favorable to defendant. The judgment contains the following entry:\n[T]he Court having reserved its ruling on Defendant\u2019s Motion for directed verdict at the close of Plaintiff\u2019s [sic] evidence as to the remaining issues, and the Defendant having introduced evidence and renewed its Motion for directed verdict at the close of all the evidence as to the remaining issues, and the Court being of the opinion that the Motion should be granted;\nAnd The Court Specifically Determining in the light of the evidence most favorable to the Plaintiff, all the evidence disclosed and the Court concludes as a matter of law that there exists a public road across the lands of the Defendant and through the lands of the adjoining landowner, Frank Oakley; and that the said public road has not been proven abandoned. The Court further finds as a matter of law by the evidence in the light most favorable to the Plaintiff, that the Restrictive Covenants are not applicable to the public road and that this specific finding of fact and conclusion of the law is not intended as a complete set of findings of fact and conclusions of law inasmuch as the directed verdict granted herein is based on all evidence before the Court.\nIt Is Therefore Ordered, Adjudged And Decreed that Plaintiff take nothing from the Defendant and that this action be dismissed with prejudice at the cost of the Plaintiff.\nFrom entry of the judgment, plaintiffs have appealed.\nWatson, King & Hofler, by Wilfred F. Drake and R. Hayes Hofler, III, for plaintiff appellants.\nRamsey, Hubbard & Galloway, by James E. Ramsey, for defendant appellee." }, "file_name": "0444-01", "first_page_order": 472, "last_page_order": 482 }