{
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  "name": "JAMES COLLINS WILDER v. J. RALPH SQUIRES and VIVIAN HAWKINS",
  "name_abbreviation": "Wilder v. Squires",
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    "judges": [
      "Judges Johnson and Braswell concur."
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    "parties": [
      "JAMES COLLINS WILDER v. J. RALPH SQUIRES and VIVIAN HAWKINS"
    ],
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      {
        "text": "BECTON, Judge.\nDefendant appeals from a judgment awarding plaintiff treble damages and attorneys\u2019 fees based on defendant\u2019s unfair and deceptive acts or practices in the attempted sale of a house. We affirm.\nOn 26 June 1979, plaintiff, James Collins Wilder, negotiated through Realty World, a realtor, to purchase a house from defendant, J. Ralph Squires. The parties did not have any direct communication. Wilder signed a Realty World purchase agreement, which listed the total purchase price as $77,250.00. Under the terms of the agreement, Wilder deposited a $7,250.00 \u201c[bjinder and part payment to be held in escrow by Realty World. . . .\u201d Wilder was to seek financing by a \u201cconventional loan at current rate\u201d for $61,800. One condition of the agreement was:\n[T]he Purchaser will in good faith do all things necessary to procure said loan, and will cooperate to the fullest in obtaining such loan, if the loan cannot be obtained the binder will be returned. The binder will not be returned if the Purchaser takes any action that will prevent the loan being obtained.\nThe agreement stipulated that if Wilder defaulted in the performance of any of the conditions of the agreement, the $7,250 would be \u201cretained by, and become the property of Realty World.\nRealty World recommended that Wilder obtain financing at First Federal Savings and Loan Association. A loan officer at First Federal refused Wilder\u2019s $61,800 loan request because Wilder\u2019s income was insufficient. \u201c[W]ith the salary he gave me that he was presently making and the loan amount he was seeking, he was way out of line to qualify for the loan. . . .\u201d Wilder, a sales representative for a manufacturing company, had an annual income of $14,300 in 1979. Wilder did not attempt to obtain financing elsewhere. He notified Realty World that he had not qualified for the loan and, therefore, no longer wished to purchase the house.\nSquires discovered through co-defendant, Hawkins, the real estate broker who had listed the house for him, that Wilder had not qualified for the loan. He tried to reach Wilder several times \u201cto find out what he wanted to do.\u201d Finally, Squires hand-delivered a letter to Wilder on 29 July 1979. The letter stated that Squires had \u201cmade arrangements for [Wilder] to obtain financing as provided in the contract . . and urged Wilder to contact Squires at his home or office \u201cat his earliest convenience in order that we may obtain this financing and close this transaction. . .\nThe following day, 30 July 1979, Wilder met with Squires at Squires\u2019 office. Squires is the president and major stockholder of Ralph Squires Homes, one of the largest companies in Charlotte in the business of building and selling new homes. In addition, Squires and his wife buy and sell real estate separate and apart from Ralph Squires Homes. Squires told Wilder that he would guarantee Wilder\u2019s loan. The evidence is conflicting at this point. Wilder testified that he asked that his binder be returned. Squires testified that Wilder wanted \u201cto negotiate or work something out.\u201d Wilder testified that Squires threatened not to return any of the $7,250 \u201cunless [Wilder] went ahead and went along with what he wanted to do.\u201d According to Wilder, Squires talked about charging Wilder a percentage rate for the costs of keeping his house off the market. Squires admitted telling Wilder \u201caccording to the laws and rules of real estate, Mrs. Hawkins is entitled to a full commission because I\u2019m willing to finance the house for you.\u201d The parties did not reach a consensus. Wilder and Squires arranged to meet that afternoon at Realty World. In the meantime, Squires had an attorney draft a release which provided in part:\nFor and in consideration of the sum of two thousand four hundred sixty dollars ($2,460.00) paid by James Collins Wilder, the undersigned, does hereby agree that the contract attached hereto by and between Ralph Squires and James Collins Wilder is hereby declared null and void and of no other force and effect.\nAt the afternoon meeting, Squires, according to Wilder, again told Wilder that \u201c[he] would not get any of [the binder] back if [he] did not go ahead and sign the agreement.\u201d Wilder signed the release; Realty World distributed the $7,250.00 binder by checks among Wilder, Squires and Hawkins.\nOn 8 November 1979 Wilder filed an action against Squires and Hawkins to recover the portion of the binder withheld. Wilder\u2019s complaint alleged coercion, fraud and unfair trade practices in violation of N.C. Gen. Stat. \u00a7 75-1.1 (1981). At the close of Wilder\u2019s evidence, the trial court dismissed the action as to Hawkins under the provisions of Rule 50 of the North Carolina Rules of Civil Procedure. The trial court concluded that Squires\u2019 coercive conduct constituted an unfair and deceptive trade practice, after submitting the factual questions to the jury. Squires appeals.\nI\nSquires first contends that the trial court should have granted his motions for directed verdict because \u201c[t]here was insufficient evidence of any conduct on the part of the defendant which would support a finding of fact or conclusion of law that such conduct of the defendant constituted an unfair or deceptive act or practice in or affecting commerce\u201d in violation of G.S. \u00a7 75-1.1.\nA motion for directed verdict raises the question whether evidence, viewed in the light most favorable to the non-movant, is sufficient to go to the jury. Rappaport v. Days Inn of America, Inc., 296 N.C. 382, 250 S.E. 2d 245 (1979).\nA. \u201cIn or Affecting Commerce\u201d\nTo come within the scope of G.S. \u00a7 75-1.1, the unfair or deceptive act or practice must be \u201cin or affecting commerce.\u201d See Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E. 2d 610 (1980). Commerce, as defined in G.S. \u00a7 75-l.Kb), \u201cincludes all business activities, however denominated. . . .\u201d In his Answer, Squires admitted that he was \u201cinvolved in business activities relating to the buying and selling of residential real estate in and around Mecklenburg County, North Carolina.\u201d However, on appeal, Squires seeks to classify the attempted sale of this particular house as a non-business activity, because the house had been purchased with the funds from the sale of his personal residence. The source of the funds is not controlling. Squires\u2019 heavy reliance on this Court\u2019s reasoning in Rosenthal v. Perkins, 42 N.C. App. 449, 257 S.E. 2d 63 (1979), is misplaced.\nThe defendants in Rosenthal sold their own home through a realtor without disclosing a drainage and flooding condition. This Court, in denying plaintiffs recovery under G.S. \u00a7 75-1.1, held that the defendants, private homeowners, were not engaged in commerce. \u201cThey did not by the sale of their residence on this one occasion become realtors. It is clear from the cases involving violation of the Unfair Trade Practices Act that the alleged violators must be engaged in a business. . . .\u201d Rosenthal, 42 N.C. App. at 454, 257 S.E. 2d at 67. In Rosenthal the defendants were private homeowners, rather than realtors. The sale of their own home was an isolated transaction. See Aycock, North Carolina Law on Antitrust and Consumer Protection, 60 N.C. L. Rev. 207 (1982).\nThe Squires, on the other hand, were actively engaged in the real estate business. There is substantial evidence in the record suggesting that the acquisition and attempted sale of this house was a business activity. When asked why Mrs. Squires did not sign the release, Mr. Squires responded,\nBecause she doesn\u2019t usually get involved with releases and signing. It\u2019s my business and she\u2019s confident and comfortable with the way I transact business, . . . it\u2019s my house and her house but I\u2019m more familiar with the transactions in the business than she is \u2014 . . . .\nOn redirect:\nQ. Did you list the house with Mrs. Hawkins on a listing sheet as being owned by you individually or you and your wife?\nA. I don\u2019t remember, usually just put my name on it.\nQ. Whether it\u2019s owned by you or you and your wife? She does what you tell her to?\nA. In business\u2014\nWe, therefore, hold that there was sufficient evidence that Squires\u2019 conduct was \u201cin or affecting commerce\u201d to withstand a motion for directed verdict.\nB. \u201cUnfair or Deceptive Acts or Practices\u201d\nWe next evaluate whether the evidence of Squires\u2019 conduct was sufficient to constitute an \u201cunfair or deceptive act or practice\u201d under G.S. \u00a7 75-l.Ka). The terms \u201cunfair\u201d and \u201cdeceptive\u201d are not defined within the body of the statute. Our Supreme Court has relied on federal decisions interpreting the identically worded section 5 of the Federal Trade Commission Act in finding that a practice is unfair \u201cwhen it offends public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers,\u201d Johnson, 300 N.C. at 263, 266 S.E. 2d at 621, and deceptive \u201cif it has the capacity or tendency to deceive,\u201d id. at 265, 266 S.E. 2d at 622; see also Spiegel, Inc. v. Fed. Trade Comm'n, 540 F. 2d 287 (7th Cir. 1976). Therefore, coercive tactics are within the definition of unfair practices. 2 Trade Reg. Rep. (CCH) \u00a7 7906 (1971); Craswell, The Identification of Unfair Acts and Practices by The Federal Trade Commission, 1981 Wise. L. Rev. 107, 143 (1981). \u201c[A]n essential element of duress or coercion is a wrongful act or threat.\u201d Link v. Link, 278 N.C. 181, 194, 179 S.E. 2d 697, 705 (1971).\nUnder the terms of the agreement, Wilder was entitled to the return of his entire binder, if, after a good faith effort, he was unable to obtain financing. Whether a prospective home buyer has indeed made a good faith effort is a question for the jury. Smith v. Currie, 40 N.C. App. 739, 253 S.E. 2d 645, disc. rev. denied, 297 N.C. 612, 257 S.E. 2d 219 (1979). The home buyer need not search for financing indefinitely until he finds a willing lender, nor must he accept financing under oppressive financing terms. He must make a reasonable effort. See Mezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E. 2d 410 (1973), cert. denied, 284 N.C. 616, 201 S.E. 2d 689 (1974).\nFrom the evidence presented, a jury could find that Wilder had made a good faith effort. Squires, however, threatened Wilder with the loss of his entire binder because he would not accept Squires\u2019 financing scheme. Squires had no right to threaten Wilder. Further, Squires\u2019 assertion that he was only doing what he thought he had a right to do \u2014 negotiate\u2014does not excuse his conduct considering the test enunciated by our Supreme Court: \u201cIf unfairness and deception are gauged by consideration of the effect of the practice on the marketplace, it follows that the intent of the actor is irrelevant. Good faith is equally irrelevant. What is relevant is the effect of the actor\u2019s conduct on the consuming public.\u201d Marshall v. Miller, 302 N.C. 539, 548, 276 S.E. 2d 397, 403 (1981). Moreover, Squires admitted, on direct examination, that he was not entitled to damages under the terms of the contract.\nQ. How were you entitled to it then?\nA. Because he agreed to it.\n\u201cDuress or coercion may take the form of unlawfully inducing one to make a contract or to perform some other act against his own free will. It may be manifested by threats. . . .\u201d Fletcher v. Fletcher, 23 N.C. App. 207, 210, 208 S.E. 2d 524, 527 (1974). Wilder entered Squires\u2019 office and asked for the return of his binder. When Squires repeatedly told him that Squires was entitled to damages and that Wilder would not get any of the binder back unless he agreed to Squires\u2019 terms, Wilder acquiesced and signed the release. On cross-examination, Wilder exposed the coercive element in the exchange:\nQ. Why did you just have blind faith and believe everything Mr. Squires told you at the time?\nA. I\u2019m not in the real estate business, he is.\nQ. Were you afraid of Mr. Squires?\nA. When he\u2019s got $7,200 of my money, I am.\nQ. Now, how do you say Mr. Squires coerced you?\nA. He threatened me if I didn\u2019t sign this, I wouldn\u2019t get my money back.\nWe conclude that there was sufficient evidence of Squires\u2019 coercive conduct to constitute an unfair act or practice and withstand a motion for directed verdict.\nThe same evidence supports a deceptive act or practice \u201cwith the capacity or tendency to deceive.\u201d Johnson, 300 N.C. at 265, 266 S.E. 2d at 622. Viewed in the light most favorable to Wilder, the evidence tends to show that Squires misrepresented the legal positions of the parties. Squires, himself, testified that he told Wilder: \u201cWell, according to the laws and rule of real estate, Mrs. Hawkins is entitled to a full commission because I\u2019m willing to finance the house for you.\u201d Squires testified further that he told Wilder: \u201cI\u2019ll figure up what kind of interest after I talk with Mrs. Hawkins.\u201d Squires explained that the $2,460 figure included the interest paid on the house since Squires had taken it out of multiple listings and damages for the time it might take to sell it. Simply put, Wilder was led to believe that his refusal to accept Squires\u2019 offer to guarantee the loan entitled Squires to damages. We hold that the evidence of a deceptive act or practice was sufficient to withstand a motion for directed verdict.\nTherefore, the trial court did not err in denying Squires\u2019 motions for directed verdict.\nII\nSquires next assigns error to issues number 1 and 2 as submitted to the jury:\n1. Did the Defendant, J. Ralph Squires, cause $2,460.00 of the funds held in escrow to be paid to him without consent of the Plaintiff?\n2. Was the Defendant\u2019s conduct in commerce or did it affect commerce?\nSquires argues that issue number 1 is too general and does not support the theory upon which recovery is sought. We disagree. Squires also contends that issue number 2 is not supported by the evidence. We have disposed of Squires\u2019 second argument in our discussion on Squires\u2019 motions for directed verdict.\nReturning to Squires\u2019 first argument, we note that Squires has neither assigned error to nor included a copy of the jury instructions in the record on appeal. We, therefore, are left to assume that there was no error in the jury instructions. Since an issue is to be construed in the context of the pleadings, the evidence presented, and the pertinent jury instructions, we must assume that the trial court instructed the jury adequately on (a) the elements of a good faith effort; (b) the law of coercion; and (c) the interplay between a good faith effort and the law of coercion. See Clinard v. Town of Kernersville, 217 N.C. 686, 9 S.E. 2d 381 (1940). A finding that Squires\u2019 conduct was coercive presupposes that Wilder had made a good faith effort to obtain financing. We conclude that the language of issue number 1 adequately supports the theory of coercion, as defined in I, supra, the theory relied upon to prove unfair acts or practices.\nIll\nSquires contends that the issues submitted to the jury do not support any of the trial court\u2019s findings of fact or conclusions of law. We disagree.\nAfter the jury determined that Squires\u2019 conduct was indeed coercive, the trial court found that:\nDefendant J. Ralph Squires\u2019 refusal to allow the return of the $2,460.00 portion of the binder to the Plaintiff, James Collins Wilder, was unwarranted and that the Defendant, J. Ralph Squires had no right to cause the withholding of said funds from the Plaintiff.\nFURTHER, the Court determines that Plaintiff was entitled to the return of the total $7,250.00 binder upon his inability to qualify for the conventional loan.\nFurther, the Court finds that pursuant to the terms of the real estate purchase and sales contract, the Defendant, J. Ralph Squires was not entitled under any circumstances to any portion of the binder.\n2. The Court further determines that the action of the Defendant, J. Ralph Squires offends established public policy, was unethical, unscrupulous, oppressive and substantially injurious to the consumer, i.e. Plaintiff, James Collins Wilder. Further, Defendant, J. Ralph Squires\u2019 actions were deceptive and misleading to the Plaintiff and constitutes an unfair and deceptive trade practice in violation of NCGS 75-1.1.\nThe trial court concluded that Squires\u2019 conduct constituted an unfair and a deceptive trade practice.\nThe trial court\u2019s findings reflect the issues inherent in the jury\u2019s findings of coercion discussed in II, supra. As discussed earlier, coercive conduct is an adequate basis for an \u201cunfair act or practice.\u201d Consequently, whether coercive conduct is also an adequate basis for a deceptive trade practice need not be addressed. An unfair act or practice is a sufficient ground, in and of itself, upon which to assess treble damages under N.C. Gen. Stat. \u00a7 75-16 (1981).\nSquires also argues that the trial judge erred in finding facts based on the evidence, because the factfinding lay within the sole province of the jury. Squires relies on Hardy v. Toler, 288 N.C. 303, 218 S.E. 2d 342 (1975), in which our Supreme Court held that in an action under G.S. \u00a7 75-1.1, the jury determines the facts and the trial court then determines as a matter of law whether the defendant engaged in unfair or deceptive trade practices. However, as accurately explained in N.C.P.I. Civil 813.05: \u201cwhether a defendant\u2019s conduct constitutes an unfair or deceptive trade practice is a question of law for the judge. The jury decides what acts were committed . . ., whether these acts . . . occurred in or affected commerce . . ., whether these acts had an impact on plaintiff . . ., and the amount of damages.\u201d The jury decides that the acts were committed, and the judge decides whether these acts violated G.S. \u00a7 75-1.1, and trebles the damages pursuant to G.S. \u00a7 75-16, if the jury assessed damages. Here, the trial judge recorded in the judgment the findings of fact based on the issues addressed in the absent jury instructions, which were inherent in the jury determination of coercive conduct. The trial judge simply documented the matters that led him to conclude and decide as a matter of law that Squires committed an unfair act or practice. The judge acted according to law, and we find no error.\nIV\nSquires\u2019 final argument relates to the trial court\u2019s award of attorneys\u2019 fees to Wilder pursuant to N.C. Gen. Stat. \u00a7 75-16.1 (Supp. 1983), which states, in pertinent part:\nIn any suit instituted by a person who alleges that the defendant violated G.S. 75-1.1, the presiding judge may, in his discretion, allow a reasonable attorney fee to the duly licensed attorney representing the prevailing party, such attorney fee to be taxed as a part of the court costs and payable by the losing party, upon a finding by the presiding judge that:\n(1) The party charged with the violation has wilfully engaged in the act or practice, and there was an unwarranted refusal by such party to fully resolve the matter which constitutes the basis of such suit. . . .\nThe findings by the trial court, although they do not specifically track the language of the statute, are sufficient to support the trial court\u2019s award of attorneys\u2019 fees to Wilder. The trial court found that \u201cSquires\u2019 refusal . . . was unwarranted\u201d; that \u201cSquires had no right to cause the withholding of said funds from\u201d Wilder; that \u201cSquires was not entitled under any circumstances to any portion of the binder\u201d; and \u201cthat the action of . . . Squires offends established public policy, was unethical, unscrupulous, oppressive and substantially injurious to\u201d Wilder. We therefore affirm the award of attorneys\u2019 fees.\nV\nFor the above reasons, the judgment of the trial court is\nAffirmed.\nJudges Johnson and Braswell concur.\n. N.C. Gen. Stat. \u00a7 75-1.1. Methods of competition, acts and practices regulated; legislative policy.\n(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.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Parham, Helms & Kellam, by James H. Morton, for defendant appellant.",
      "Byrum, Byrum & Burris, by Robert N. Burris, for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "JAMES COLLINS WILDER v. J. RALPH SQUIRES and VIVIAN HAWKINS\nNo. 8226SC1099\n(Filed 15 May 1984)\n1. Unfair Competition \u00a7 1\u2014 attempted sale of home \u2014 failure to return binder without signing release \u2014 unfair trade practice\nThe trial court properly failed to grant defendant\u2019s motions for directed verdict in an action for unfair and deceptive acts or practices in the attempted sale of a house where the evidence tended to show that when plaintiff was unable to obtain financing through conventional means after signing a binder on a home, defendant Squires repeatedly told plaintiff that Squires was entitled to damages and that plaintiff would not get any of the binder back unless he agreed to Squires\u2019 terms (leaving $2,460 with Squires), and that plaintiff acquiesced and signed the release. This threatening conduct and the fact that defendant was actively engaged in real estate business was sufficient to constitute a violation of G.S. 75-1.1.\n2. Unfair Competition \u00a7 1\u2014 unfair trade practices \u2014 jury issues \u2014 proper\nAn issue submitted to the jury which stated \u201cdid the defendant, J. Ralph Squires, cause $2,460 of the funds held in escrow to be paid to him without consent of the plaintiff?\u201d adequately supported the theory of coercion which was the theory which plaintiff relied upon to prove unfair acts or practices.\n3. Unfair Competition \u00a71\u2014 unfair or deceptive trade practices \u2014 findings of fact by court supported by issues submitted to jury\nIn an action for unfair or deceptive acts or practices, the issues submitted to the jury supported the trial court\u2019s findings of fact and conclusions of law, and the trial judge properly documented the matters that led him to conclude and decide as a matter of law that defendant committed an unfair act or practice pursuant to G.S. 75-1.1.\n4. Unfair Competition \u00a7 1\u2014 unfair act or practice \u2014attorneys\u2019 fees properly awarded\nIn an action for an unfair act or practice, the trial court properly awarded attorneys\u2019 fees to plaintiff pursuant to G.S. 75-16.1.\nAppeal by defendant Squires from Sitton, Judge. Judgment entered 24 May 1982 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 2 September 1983.\nParham, Helms & Kellam, by James H. Morton, for defendant appellant.\nByrum, Byrum & Burris, by Robert N. Burris, for plaintiff appellee."
  },
  "file_name": "0310-01",
  "first_page_order": 342,
  "last_page_order": 352
}
