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  "name": "M. A. BHATTI, Plaintiff-Appellant v. CARL D. BUCKLAND, Defendant-Appellee",
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    "judges": [
      "Judge ORR concurs.",
      "Judge Greene dissents."
    ],
    "parties": [
      "M. A. BHATTI, Plaintiff-Appellant v. CARL D. BUCKLAND, Defendant-Appellee"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nPlaintiff appeals the denial of treble damages and attorney\u2019s fees pursuant to G.S. Chapter 75. G.S. \u00a7 75-1.1 makes it unlawful to engage in \u201cunfair or deceptive acts or practices in or affecting commerce.\u201d G.S. \u00a7 75-16 and \u00a7 75-16.1 provide for the award of treble damages and attorney\u2019s fees for violations of Chapter 75. Defendant has violated Chapter 75. \u201cProof of fraud would necessarily constitute a violation of the prohibition against unfair and deceptive acts. . . .\u201d Hardy v. Toler, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975); Rosenthal v. Perkins, 42 N.C. App. 449, 455, 257 S.E.2d 63, 67 (1979). Therefore, the issue before us is whether appellee .Buckland\u2019s activities were \u201cin or affecting commerce.\u201d G.S. \u00a7 75-1.1.\nDefendant argues that because he is a private individual, his actions were not \u201cin or affecting commerce.\u201d In support of this proposition he cites Rosenthal v. Perkins, supra, and Robertson v. Boyd, 88 N.C. App. 437, 363 S.E.2d 672 (1988). Both of these cases dealt with private individuals who engaged realtors to sell their residences. The Court, in Rosenthal, stated \u201cThe defendants Goldberg [individuals] were not engaged in trade or commerce. They 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, a commercial or industrial establishment or enterprise.\u201d 42 N.C. App. at 454, 257 S.E.2d 67 (citations omitted). The Court went on to find that the defendants\u2019 realtor was engaged in commerce within the meaning of G.S. \u00a7 75-1.1. Id. Similarly, in Robertson, the Court stated, \u201cDefendants Boyd, being private parties engaged in the sale of a residence, were not involved in trade or commerce and cannot be held liable under the statute.\u201d 88 N.C. App. 443, 363 S.E.2d 676. The Court found the realtors to be within the meaning of the statute and reversed dismissal of the plaintiff\u2019s claims against the realtors. Id. In the present case the defendant was a private individual who engaged a realtor to auction a residence on his behalf. There is no evidence in the record that defendant was in the business of buying and selling residential real estate. See Wilder v. Squires, 68 N.C. App. 310, 315 S.E.2d 63, disc. rev. denied, 311 N.C. 769, 321 S.E.2d 158 (1984) (substantial evidence in record that sale of residential real estate was a business activity). Rosenthal and Robertson control our decision in this case. Accordingly, we do not find that his actions were in or affecting commerce for purposes of G.S. \u00a7 75-1.1.\nAffirmed.\nJudge ORR concurs.\nJudge Greene dissents.",
        "type": "majority",
        "author": "LEWIS, Judge."
      },
      {
        "text": "Judge Greene\ndissenting.\nThe majority determines that the Rosenthal and Robertson decisions dictate the holding that the trial court correctly found that defendant\u2019s sale of a residence was not \u201cin or affecting commerce.\u201d I disagree.\nI read the Rosenthal and Robertson decisions to exempt only individual homeowners selling their own homes from operation of the Unfair and Deceptive Trade Practices Act. This court noted that for defendants in the Rosenthal decision, the \u201csale of their own home was an isolated transaction.\u201d Wilder v. Squires, 68 N.C. App. 310, 314, 315 S.E.2d 63, 66, disc. rev. denied, 311 N.C. 769, 321 S.E.2d 158 (1984). For defendant to take advantage of the homeowners exception created by Rosenthal and Robertson, he must raise and prove as an affirmative defense his status as a homeowner selling his own home in an isolated transaction. Here, no record evidence supports a finding that defendant was a homeowner selling his own home. On the contrary, defendant\u2019s pleadings indicate that the property in question was not his home. Therefore, I would reverse the trial court\u2019s denial of treble damages, and remand for trebling of the damages. See Marshall v. Miller, 302 N.C. 539, 547, 276 S.E.2d 397, 402 (1981). I would also remand for the court\u2019s reconsideration of plaintiff\u2019s plea for attorney fees according to N.C.G.S. \u00a7 75-16.1.\nEven if this defendant were a homeowner selling his home, no language in N.C.G.S. \u00a7 75-1.1 indicates that the legislature intended to insulate from liability homeowners who engage in unfair and deceptive acts, since a house sale always is \u2018in commerce\u2019 or \u2018affects commerce.\u2019 See Johnson v. Beverly-Hanks & Associates, 97 N.C. App. 335, 350-52, 388 S.E.2d 584, 592-93 (1990) (Greene, J., concurring in part and dissenting in part).",
        "type": "dissent",
        "author": "Judge Greene"
      }
    ],
    "attorneys": [
      "Latham, Wood, Eagles & Hawkins, hy B.F. IVood and William A. Eagles, for plaintiff-appellant.",
      "Douglas R. Hoy for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "M. A. BHATTI, Plaintiff-Appellant v. CARL D. BUCKLAND, Defendant-Appellee\nNo. 8915SC1148\n(Filed 7 August 1990)\nUnfair Competition \u00a7 1 (NCI3d)\u2014 sale of residence \u2014 public auction \u2014individual\u2019s fraud not unfair trade practice\nFraud by an individual in the sale of a residence through a realtor at a public auction did not constitute an unfair trade practice in violation of N.C.G.S. \u00a7 75-1.1 since the individual defendant\u2019s actions were not \u201cin . or affecting' commerce,\u201d\nAm Jur 2d, Monopolies, Restraints of Trade, and Unfair Trade Practices \u00a7 735.\nJudge Greene dissenting.\nAPPEAL by plaintiff from an Order entered 18 August 1989 by Judge George M. Fountain denying plaintiff\u2019s motion to amend judgment to treble damages and award attorney\u2019s fees. Heard in the Court of Appeals 2 May 1990.\nDefendant owned real property on Williamson Avenue in Elon College, North Carolina. He offered this property for sale at public auction on 27 June 1987. Defendant employed Teague Auction and Realty, Inc. (\u201cTeague\u201d) as his agent and it advertised the auction through flyers, circulars and newspaper advertisements.\nThe plaintiff was the highest bidder at the auction, bidding $105,000.00. As required by the terms of the sale, he deposited $10,500.00 with Teague. Shortly after the auction, plaintiff discovered that the property was not as advertised. He immediately notified defendant and Teague that he was rescinding and revoking his bid and demanded return of his deposit. Defendant refused.\nOn 12 August 1987, plaintiff filed an action for breach of contract, fraud, treble damages and attorney\u2019s fees pursuant to G.S. Chapter 75. Fraud and damages were found by the jury in the amount of $10,500.00. The trial court refused to award treble damages pursuant to G.S. Chapter 75. Plaintiff appeals.\nLatham, Wood, Eagles & Hawkins, hy B.F. IVood and William A. Eagles, for plaintiff-appellant.\nDouglas R. Hoy for defendant-appellee."
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