{ "id": 8525822, "name": "CAROLYN T. COBLE v. RICHARDSON CORPORATION OF GREENSBORO", "name_abbreviation": "Coble v. Richardson Corp.", "decision_date": "1984-12-04", "docket_number": "No. 8418DC234", "first_page": "511", "last_page": "520", "citations": [ { "type": "official", "cite": "71 N.C. App. 511" } ], "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": "245 S.E. 2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550749 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0097-01" ] }, { "cite": "267 S.E. 2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562446, 8562319, 8562420, 8562390, 8562360 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0379-05", "/nc/300/0379-01", "/nc/300/0379-04", "/nc/300/0379-03", "/nc/300/0379-02" ] }, { "cite": "262 S.E. 2d 646", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "44 N.C. App. 685", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554814 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/44/0685-01" ] }, { "cite": "307 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762957, 4765550, 4763995, 4764923, 4761023 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0321-05", "/nc/309/0321-01", "/nc/309/0321-02", "/nc/309/0321-04", "/nc/309/0321-03" ] }, { "cite": "303 S.E. 2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "569" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 695", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524677 ], "year": 1983, "pin_cites": [ { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0695-01" ] }, { "cite": "266 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "300 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561020 ], "year": 1980, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0247-01" ] }, { "cite": "266 S.E. 2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 755", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553479 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0755-01" ] }, { "cite": "88 S.E. 2d 825", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "830-1" } ], "opinion_index": 0 }, { "cite": "242 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617903 ], "year": 1955, "pin_cites": [ { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0506-01" ] }, { "cite": "424 F. 2d 253", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2251104, 2251091 ], "year": 1970, "pin_cites": [ { "parenthetical": "rejecting plaintiffs argument that damages were inadequate where findings supported by \"substantial evidence\" and not \"clearly erroneous\"" } ], "opinion_index": 0, "case_paths": [ "/f2d/424/0253-02", "/f2d/424/0253-01" ] }, { "cite": "199 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560384, 8560483, 8560468, 8560407, 8560444 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0124-01", "/nc/284/0124-05", "/nc/284/0124-04", "/nc/284/0124-02", "/nc/284/0124-03" ] }, { "cite": "198 S.E. 2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "19 N.C. App. 253", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552312 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/19/0253-01" ] }, { "cite": "130 S.E. 635", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "pin_cites": [ { "parenthetical": "where contract substantially complied with, damages are to be \"reasonable cost\" of labor to remedy defects" } ], "opinion_index": 0 }, { "cite": "190 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611723 ], "year": 1925, "pin_cites": [ { "parenthetical": "where contract substantially complied with, damages are to be \"reasonable cost\" of labor to remedy defects" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0644-01" ] }, { "cite": "87 S.E. 2d 2", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "pin_cites": [ { "page": "4" } ], "opinion_index": 0 }, { "cite": "242 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611126 ], "year": 1955, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc/242/0152-01" ] }, { "cite": "173 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "7 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552274 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/7/0614-01" ] }, { "cite": "201 S.E. 2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "20 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552359 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/20/0318-01" ] }, { "cite": "193 S.E. 2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "715" } ], "opinion_index": 0 }, { "cite": "282 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566690 ], "year": 1973, "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0477-01" ] }, { "cite": "225 S.E. 2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "564-5", "parenthetical": "admitting evidence of statements made prior to signing of purchase contract" } ], "opinion_index": 0 }, { "cite": "290 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560755 ], "year": 1976, "pin_cites": [ { "page": "197", "parenthetical": "admitting evidence of statements made prior to signing of purchase contract" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0185-01" ] } ], "analysis": { "cardinality": 976, "char_count": 22175, "ocr_confidence": 0.78, "pagerank": { "raw": 3.054821681083844e-07, "percentile": 0.8561887198828967 }, "sha256": "b7c9a6fab5034e235a65eac6e88e0bfa625d2c3c9158196ff285b9f3fc70d6a5", "simhash": "1:efa772fa1fd09e74", "word_count": 3572 }, "last_updated": "2023-07-14T17:51:06.115640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Braswell and Eagles concur." ], "parties": [ "CAROLYN T. COBLE v. RICHARDSON CORPORATION OF GREENSBORO" ], "opinions": [ { "text": "VAUGHN, Chief Judge.\nI\nDefendant first argues that the trial court committed reversible error in concluding that defendant breached a duty to correct a drainage problem with plaintiffs house, which duty arose out of certain written and oral representations made by defendant. We overrule the assignments of error on which this argument is based.\nA\nAs to the written representations, the record contains a document entitled \u201cConstruction Warranty.\u201d This document is part of the entire, integrated contract; indeed, the defendant does not dispute that it was bound by the warranty, but rather that the trial court erred in interpreting the scope of coverage. The section titled \u201cNon-Warrantable Items\u201d includes the following provisions:\nWaterproof Foundation \u2014 Reasonable precautions have been taken to prevent water from entering the basement or crawl space. Always remember that the best assurance for a dry basement or crawl space is to see that surface water drains away from the foundation. Water that settles around the foundation will most likely leak underneath. The homeowner should be sure to fill any settling that often occurs around a new foundation. Keep perimeter drain pipe open at outfall end of pipe. This is part of the owner\u2019s maintenance.\nGrading \u2014 Your lot and surrounding lot grades were established to provide drainage away from the building. Should you wish to change the drainage pattern for some reason, be sure that a proper drainage slope is retained. Do not fill above the top of the foundation. Water may enter the typical joint between the foundation and brick or siding. Your builder assumes no responsibility for the grading if established patterns are altered or for water problems caused by improper drainage contrary to his recommendation.\nThe defendant contends that although the quoted provisions are found on its warranty form, because they appear in the section denominated \u201cNon-Warrantable Items,\u201d no obligations on defendant\u2019s part are created. We disagree. Despite the title of the section, and despite the fact the section distinguishes particular situations in which defendant will not be liable to the buyer under the warranty, its provisions clearly create obligations on defendant\u2019s part. Listed under \u201cNon-Warrantable Items\u201d are the following statements: \u201cWe warrant that shrubs will be alive and in healthy condition at the time the owner moves into the house\u201d; \u201cBuilder is responsible [for broken glass and torn screens] only if notified before or at time of \u2018walk through\u2019 inspection . . \u201c[W]e will resow and remulch any washed out spots [of the lawn] . . . once . . . within 12 months of the closing. . . .\u201d It is self-evident that those statements are express warranties creating affirmative obligations. Likewise do the statements relied upon by plaintiff, ie., \u201cReasonable precautions have been taken to prevent water from entering the basement or crawl space,\u201d and \u201cYour lot and surrounding lot grades were established to provide drainage away from the building,\u201d create obligations on defendant\u2019s part.\nThe defendant further argues that because the construction warranty contains a procedure for a \u201cwalk-through\u201d of the house before closing, with defects to be noted on a request for service form, the failure of plaintiff to mention the water drainage problem on this form precluded it from subsequently raising this claim under the one-year warranty. Again, the plain language of the warranty belies defendant\u2019s argument. Nowhere in the warranty is it indicated that a defect must be noted on the request for service form during the walk-through in order for a buyer to preserve any rights, or even that the three request for service forms provided by defendant are the exclusive means of notifying the defendant of problems arising under the warranty.\nThe foregoing discussion disposes of defendant\u2019s suggestion that if it had any duty with respect to plaintiffs water problem, it was merely to reseed. Plaintiff timely notified defendant of a specific defect involving drainage covered by the warranty. Defendant was obligated to correct the problem. Clearly, defendant\u2019s duty was not limited to reseeding plaintiff s lawn if that failed to solve the problem.\nB\nThe trial court also based its conclusion that defendant breached its duty to plaintiff to correct the water problem on oral representations made by defendant\u2019s agents prior to and at the closing. Defendant argues that the oral representations were improperly admitted into evidence, relying on the parol evidence rule and on a merger clause in the contract of sale.\nDefendant has waived its right to assert the parol evidence rule, as the record reveals that defendant failed to object to the testimony at trial. Griffin v. Wheeler-Leonard & Co., 290 N.C. 185, 197, 225 S.E. 2d 557, 564-5 (1976) (admitting evidence of statements made prior to signing of purchase contract). Even if the testimony had been properly objected to, however, neither the parol evidence rule nor the merger clause operates to exclude the oral representations.\nThe parol evidence rule provides that when a contract is reduced to writing, parol evidence cannot be admitted to vary, add to, or contradict the same. Hoots v. Calaway, 282 N.C. 477, 486, 193 S.E. 2d 709, 715 (1973). The contract of sale between the parties contained the following provision, commonly referred to as a merger clause.\nBuyer hereby acknowledges that he has inspected the above described property, that no representations or inducements have been made other than those expressed herein, and that this contract contains the entire agreement between all parties herein.\nThis is not a case where a party relies on a merger clause in one document to exclude another from admission into evidence. See Loving Co. v. Latham, 20 N.C. App. 318, 201 S.E. 2d 516 (1974). Instead, what defendant asserts is that the oral representations plaintiff claims were made to her concerning the water problem are inconsistent with the written agreement and hence inadmissible. As discussed supra, however, the construction warranty did obligate the defendant to correct the water drainage problem. Therefore, the oral representations of defendant\u2019s agents did not \u201cvary, add to, or contradict\u201d the construction warranty, and the parol evidence rule does not exclude them. Likewise, the merger clause excludes representations or inducements \u201cother than those\u201d contained in the contract. The construction warranty was part of the integrated agreement, and as the representations of defendant\u2019s agents were consistent with its provisions, they were not barred by the merger clause.\nII\nDefendant next argues that the trial court erred in finding that $1,474.40 was the reasonable cost of correcting the water damage problem. Plaintiff testified that she hired Calvin Bryant to correct the drainage problem and to do other work, and that $1,474.40 was the portion of Bryant\u2019s total bill representing the amount she paid him to correct the water problem. Calvin Bryant testified that the cost of repairing the water problem was between $1,500 and $1,800, that this represented the reasonable cost of repair work, and that he would not have made the charges if they had not been necessary. Defendant offered evidence that a similar problem at plaintiffs neighbor was corrected for $300, and that an alternative method of repair cost $400. Based on this evidence, defendant contends that the award of damages was clearly excessive. We disagree.\nIn a suit for damages arising out of breach of contract, the injured party is to be placed in as near the position he or she would have occupied absent the breach. Meares v. Construction Co., 7 N.C. App. 614, 173 S.E. 2d 593 (1970). That is, the injured party is to be compensated \u201cfor the loss which fulfillment of the contract could have prevented or the breach of it has entailed.\u201d Norwood v. Carter, 242 N.C. 152, 155, 87 S.E. 2d 2, 4 (1955). See also, Moss v. Knitting Mills, 190 N.C. 644, 130 S.E. 635 (1925) (where contract substantially complied with, damages are to be \u201creasonable cost\u201d of labor to remedy defects).\nAmple competent evidence supported the finding that $1,474.40 was the reasonable cost of correcting the drainage problem. We may not disturb this finding even though the evidence also supported a different conclusion, as findings of fact made by the trial court which resolve conflicts in the evidence are binding on appellate courts. Trotter v. Hewitt, 19 N.C. App. 253, 198 S.E. 2d 465, cert. denied, 284 N.C. 124, 199 S.E. 2d 663 (1973). Accord, Kane Realty Corp. v. Harllee-Quattlebaum Const. Co., 424 F. 2d 253 (4th Cir. 1970) (rejecting plaintiffs argument that damages were inadequate where findings supported by \u201csubstantial evidence\u201d and not \u201cclearly erroneous\u201d).\npH tH\nDefendant next argues that it was reversible error to find that the $400 check tendered to plaintiff by defendant was never accepted by her. Defendant contends that plaintiffs retention of the check from 11 June 1979 until she filed suit constituted an accord and satisfaction or compromise and settlement of any claims she may have had against defendant with respect to the water drainage problem. Again, we find defendant\u2019s argument to be without merit.\nAn \u201caccord\u201d is an agreement whereby one party undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, something other than or different from what the party is or considers him or herself entitled to, and the \u201csatisfaction\u201d is the execution or performance of such agreement. Allgood v. Trust Co., 242 N.C. 506, 515, 88 S.E. 2d 825, 830-1 (1955). Defendant offered evidence that plaintiff agreed $400 would compensate her for Mr. Bryant\u2019s work while plaintiff testified to exactly the opposite. Again, since the trial court\u2019s finding of no acceptance and hence no accord and satisfaction is supported by competent evidence, it is conclusive on appeal.\nThe defendant argues that because the plaintiff retained the check, albeit without cashing it, for an unreasonable period of time, a finding of accord and satisfaction was required as a matter of law. FCX, Inc. v. Oil Co., 46 N.C. App. 755, 266 S.E. 2d 388 (1980), is distinguishable. FCX involved a cashier\u2019s check, which is similar to cash and unlike defendant\u2019s draft, is not subject to countermand. Furthermore, the creditor in FCX retained possession of the check even after the debtor demanded its return.\nWe are aware that some jurisdictions have adopted a rule that retention of a check without cashing it for an unreasonable period of time constitutes an accord and satisfaction. See generally, 1 Am. Jur. 2d, Accord and Satisfaction \u00a7 23 (1962). In the case before us, however, even if Judge John had found an agreement between the parties, and we had occasion to consider adopting this rule, the facts do not support a constructive execution or \u201csatisfaction\u201d of the agreement under this rule. The words \u201cvoid after 60 days\u201d are printed on the check. The check was not cashed within the sixty days and in November 1979, defendant received a letter from plaintiffs counsel explicitly rejecting any offer to settle for $400.\nIV\nDefendant\u2019s final contention is that the trial court erred in finding that Richardson\u2019s failure to correct Coble\u2019s water drainage problem constituted an unfair trade practice. On this issue, we agree with the defendant, and find that damages were improperly trebled.\nThe trial court found:\n[t]hat the Defendant\u2019s acts constituted unfair acts or practices in the conduct of commerce; that the Plaintiff, as a new home vendee stood in an inequitable situation in regard to the Defendant, who was a developer and vendor of new homes, and was therefore oppressed and substantially injured by the activities of the Defendant.\nBased on this finding, the trial court concluded that defendant had violated G.S. 75-1.1, North Carolina\u2019s Unfair Trade Practice Act, and trebled the $1,474.40 in compensatory damages pursuant to G.S. 75-16.\nThe trial court based its conclusion of law on a finding that defendant\u2019s behavior was unfair, and not that it was fraudulent or deceptive. Although unfair conduct that is neither deceptive nor fraudulent may constitute an unfair trade practice, the evidence at bar did not rise to the level of unfairness as that concept has been defined by our courts. \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 Johnson v. Insurance Co., 300 N.C. 247, 263, 266 S.E. 2d 610, 621 (1980). \u201c[A] party is guilty of an unfair act or practice when it engages in conduct that amounts to an inequitable assertion of its power or position.\u201d Libby Hill Seafood Restaurants, Inc. v. Owens, 62 N.C. App. 695, 700, 303 S.E. 2d 565, 569, cert. denied, 309 N.C. 321, 307 S.E. 2d 164 (1983).\nThe case before us involves a breach of contract based on written warranties and oral representations that were essentially restatements of what defendant was already bound to do under the warranty. There is nothing so oppressive or overreaching about defendant\u2019s behavior in breaching the contract that would transform the case into one for an unfair trade practice.\nFurthermore, cases in this area have laid down a rule that breach of express and implied warranties alone do not constitute a violation of Chapter 75. See Trust Co. v. Smith, 44 N.C. App. 685, 262 S.E. 2d 646, review denied, 300 N.C. 379, 267 S.E. 2d 685 (1980); Stone v. Homes, Inc., 37 N.C. App. 97, 245 S.E. 2d 801 (1978). The evidence in this case was that defendant breached express warranties it made to the plaintiff. Defendant is thus liable to plaintiff in compensatory damages, but there being no basis in law for a finding of an unfair trade practice, the trial court erred in trebling the damages.\nModified and affirmed.\nJudges Braswell and Eagles concur.", "type": "majority", "author": "VAUGHN, Chief Judge." } ], "attorneys": [ "Douglas, Ravenel, Hardy, Crihfield & Lung, by G. S. Crih-field and James W. Lung, for plaintiff-appellee.", "Adams, Kleemeier, Hagan, Hannah & Fonts, by M. Jay De-Vane y and Thomas W. Brawner, for defendant-appellant." ], "corrections": "", "head_matter": "CAROLYN T. COBLE v. RICHARDSON CORPORATION OF GREENSBORO\nNo. 8418DC234\n(Filed 4 December 1984)\n1. Sales \u00a7 6.4\u2014 warranties on sale of house \u2014 binding despite label\nIn an action for breach of warranty and unfair and deceptive trade practices arising from drainage problems around a newly built house, defendant was bound by a section of the contract labeled \u201cNon-Warrantable Items\u201d because that section clearly created obligations on defendant\u2019s part.\n2. Sales \u00a7 6.4\u2014 warranties on sale of house \u2014 effect of \u201cwalk through\u201d inspection form\nAlthough plaintiff did not mention a water drainage problem in her newly purchased house on a \u201cwalk-through\u201d before closing, defendant is bound by its construction warranty because the warranty does not indicate that a defect must be noted on the form for a buyer to preserve rights or that the form is the exclusive means of notifying defendant of problems arising under the warranty.\n3. Evidence \u00a7 32.2\u2014 parol evidence \u2014 warranty on house \u2014 no inconsistency with contract\nOral representations regarding a water drainage problem made by defendant developer\u2019s agents prior to and at closing were properly admitted, despite a merger clause in the contract of sale and the parol evidence rule, because the statements did not \u201cvary, add to, or contradict\u201d the construction warranty contained in the contract.\n4. Contracts \u00a7 29.2\u2014 damages \u2014 correction of drainage problem in newly built house\nIn an action arising from a drainage problem in a newly constructed house, there was ample competent evidence to support the trial court\u2019s finding that $1,474.40 was the reasonable cost of correcting the problem where plaintiff testified that she had hired an independent contractor to correct the drainage problem and to do other work, and that $1,474.40 was the portion of his total bill representing the amount she paid him to correct the problem, and where the contractor testified that the cost of repairing the problem was between $1,600 and $1,800 and that this was a reasonable and necessary amount. Findings of fact made by the trial court which resolved conflicts in the evidence are binding on appeal, even though the evidence also supported a different conclusion.\n5. Accord and Satisfaction 8 1\u2014 finding that no accord and satisfaction existed\u2014 no error\nIn an action arising from a drainage problem in a newly constructed house, the trial court did not err in finding that plaintiff had not entered into an accord and satisfaction where plaintiff testified that the amount tendered by defendant would not compensate her for correcting the problem, a check sent to plaintiff by defendant which contained the words \u201cvoid after 60 days\u201d was not cashed within the 60 days, and plaintiffs counsel sent defendant a letter explicitly rejecting any offer to settle.\n6. Unfair Competition 8 1\u2014 sale of house \u2014 breach of warranty \u2014 no unfair trade practice\nIn an action arising from a drainage problem in a newly constructed house, the trial court erred by finding that defendant\u2019s failure to correct the problem constituted an unfair trade practice. Breach of express and implied warranties alone does not constitute a violation of Chapter 76, and there was nothing so oppressive or overreaching about defendant\u2019s behavior that it would transform the case into one for an unfair trade practice.\nAppeal by defendant from John, Judge. Judgment entered 21 September 1983 in District Court, Guilford County. Heard in the Court of Appeals 14 November 1984.\nPlaintiff filed this action for damages resulting from breach of warranty and unfair and deceptive trade practices in connection with the sale of a single family residence.\nThe case was tried by the court without a jury. The plaintiff testified as follows: Sometime before March 1978, plaintiff and her fiance were shown the home in question, which had been built on a lot owned by defendant, a real estate development company. At that time she noticed washed-out spaces in the yard, gullies, and very little grass. She expressed concern about the yard and she was told that there was a water problem but that it would be resolved upon purchase. At the closing, plaintiff was assured by the head of defendant\u2019s residential department that the water problem would be taken care of. Plaintiff moved into the house in March 1978. The yard was in bad shape, and water was accumulating under the house. Because her fiance had died, plaintiff did not contact defendant about correcting the drainage problem until autumn. The result of her telephone conversations was that defendant sent workers to reseed plaintiffs lawn on three separate occasions, the last of which was in November 1978. Plaintiff continued to communicate with defendant, but the problem remained unsolved. In May 1979 she contacted Calvin Bryant, an independent landscaping contractor. Bryant performed work to correct the drainage problem, and did other landscaping work as well.\nCalvin Bryant testified for the plaintiff that to solve the drainage problem, he installed french drains, a terrace, lowered the soil in the back of the house, built a retaining wall with cross-ties, and placed some photinia plants in the yard to prevent erosion. Plaintiff testified that after Bryant completed his work, she requested $1,474.40 from defendant, and received a check from them for $400. She states she never cashed the check, but gave it to her attorney. Plaintiff testified that she had virtually no water drainage problems after Bryant\u2019s work, except for a water pipe which broke in the winter of 1981. Bryant testified that he visited the house several times after he worked on it, and that there was no dampness under the house.\nDefendant presented the following evidence: Bill Osborne, a landscaping contractor, testified that he corrected a similar water problem at the house next door to plaintiffs for $300. He also described another method to correct such problems which would cost about $400.\nMargaret Dudley testified that she purchased plaintiffs house in April 1981. She stated that due to a problem with water collecting in the crawl space underneath the house plaintiff left $300 in escrow from the closing proceeds to cover the cost of rectifying the problem. She further testified that when it rains, water accumulates next to the foundation.\nTwo of Richardson\u2019s employees also testified for the defendant: Wayman Merrill, currently manager of defendant\u2019s construction department, and Anna Maser, a real estate broker for defendant who sold plaintiff the house. Merrill testified as follows: He accompanied plaintiff on a walk-through of the house before plaintiff purchased it. No water problem was discussed. He spoke with plaintiff in February or March of 1979 and told her that although matters related to landscaping were not covered by the warranty, he would take a look at her property after the yard dried out from winter rains. He next spoke with plaintiff in May 1979, when she told him she had contracted with Calvin Bryant. He subsequently examined the yard, concluded that $400 constituted a fair amount to solve the drainage problem, and upon plaintiffs agreement to accept $400 as a settlement, he had a check in that amount mailed to her. He had no further communication with plaintiff until he received a demand letter from her attorney in November 1979.\nAnna Maser testified that she originally showed plaintiff and her fiance the house, that they requested the yard be reseeded, but never mentioned the water drainage problem. She testified that no water problems were discussed at the closing, and that after the closing she wrote a memorandum to defendant\u2019s landscaping department after speaking with plaintiff. One of the items on the memorandum was that plaintiff was concerned over defendant\u2019s failure to reseed the lawn.\nJudge John awarded plaintiff $1,474.40 in compensatory damages, and based on his conclusion that defendant\u2019s actions constituted an unfair trade practice, trebled the damages. Defendant appeals.\nDouglas, Ravenel, Hardy, Crihfield & Lung, by G. S. Crih-field and James W. Lung, for plaintiff-appellee.\nAdams, Kleemeier, Hagan, Hannah & Fonts, by M. Jay De-Vane y and Thomas W. Brawner, for defendant-appellant." }, "file_name": "0511-01", "first_page_order": 545, "last_page_order": 554 }