Waters v. Pumphrey

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-688
No. COA20-816

Filed 18 October 2022

Mecklenburg County, No. 19CVD16822

SCOTT WATERS, Plaintiff,

v.

WILLIAM PUMPHREY, Defendant.

Appeal by Defendant from order entered 2 December 2019 by Judge Michael

Stading in Mecklenburg County District Court. Heard in the Court of Appeals 25

August 2021.

Essex Richards, P.A., by John C. Woodman and David DiMatteo, for Plaintiff-
Appellee.

Legal Aid of North Carolina, Inc., by Isaac W. Sturgill, Jonathan Perry,
Andrew Eichen, and Celia Pistolis, for Defendant-Appellant.

CARPENTER, Judge.

¶1 Defendant seeks review of the trial court’s grant of Plaintiff’s Motion for

Summary Judgment, entered on 2 December 2019, allowing the summary ejectment

of Defendant. After careful review, we affirm.

I. Factual and Procedural Background

A. Establishment of Periodic Tenancy
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¶2 In July 2015, William Pumphrey (“Defendant”) entered into an oral

agreement with Scott Waters (“Plaintiff”) to lease a room in Plaintiff’s property

located in Charlotte, North Carolina (the “Property”).1 The terms of the lease

agreement obligated Defendant to pay $125.00 per week to Plaintiff, due each

Friday. Plaintiff collected $500.00 for four weeks of rent from Defendant’s Social

Security benefit checks each month.

B. First Summary Ejectment Action

¶3 In the winter of 2017, Defendant notified Plaintiff of maintenance issues with

the Property, such as a non-functional heating system, decaying floors, a lack of

smoke or carbon monoxide detectors, and pests. Defendant and another tenant

ultimately contacted the City of Charlotte Code Enforcement Division (“Code

Enforcement”) to report housing code violations concerning the Property. On 6

March 2018, Code Enforcement officials inspected the Property, and on 12 March

2018, they sent a notice of thirty-three alleged Charlotte Housing Code violations to

Plaintiff. Three violations, including lack of operable heating equipment, lack of

carbon monoxide detectors, and lack of smoke detectors, rendered the Property

“imminently dangerous” under Section 11-45(e) of the Charlotte Housing Code.

1 The Court did not consider any statements in Plaintiff’s brief which lacked
objective support in the Record on Appeal. See N.C. R. App. P. 28(b).
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¶4 On 7 December 2018, Plaintiff initiated his first2 Complaint in Summary

Ejectment against Defendant, stating Defendant’s lease terminated on 30

November 2018, Defendant owed $125.00 in past due rent, and the Property was

damaged by “graffiti [and] excessive junk accumulation . . . .” Defendant, through

counsel, filed an answer to Plaintiff’s complaint and asserted he had not received

proper notice to vacate pursuant to N.C. Gen. Stat. § 42-14. Additionally,

Defendant filed counterclaims alleging: (1) Breach of Implied Warranty of

Habitability pursuant to N.C. Gen. Stat. § 42-42 (2019); (2) Unfair and Deceptive

Trade Practices pursuant to N.C. Gen. Stat. § 75-1.1 (2019); and (3) Unfair Debt

Collection pursuant to N.C. Gen. Stat. § 75-54(4) (2019).

¶5 On 14 January 2019, Defendant testified during trial. The magistrate found

in favor of Defendant for Breach of Implied Warranty of Habitability and Unfair

and Deceptive Trade Practices, awarding him $5,000.00 in damages and counsel

fees. Conversely, Plaintiff’s claim was dismissed, and Plaintiff filed notice of appeal

to district court. On 24 July 2019, Plaintiff withdrew his appeal.

C. Second Summary Ejectment Action

2Plaintiff evidently initiated one prior pro se summary ejectment action in the fall of
2018, which did not proceed to hearing. Our analysis focuses on the summary ejectment
proceedings which were tried to conclusion.
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¶6 Also on 24 July 2019, Plaintiff, through counsel, notified Defendant and his

attorney by certified mail that Defendant’s lease was terminated effective 8 August

2019. Despite adequate notice to quit, Defendant did not vacate the Property, and

Plaintiff filed his second Complaint in Summary Ejectment against Defendant on

14 August 2019. On 27 August 2019, the magistrate found for Plaintiff in this

action, and on 30 August 2019, Defendant appealed for a de novo hearing in district

court. Pending Defendant’s appeal to district court, a stay of summary ejectment

was granted on 3 September 2019.

¶7 On 8 October 2019, Plaintiff filed a Motion for Summary Judgment. In his 28

October 2019 affidavit, Defendant asserted his belief that the current eviction

lawsuit was filed “in substantial response to [him] standing up for [his] rights in

court and testifying against [Plaintiff] on January 14, 2019.” The district court

granted Plaintiff’s Motion for Summary Judgment on 2 December 2019, finding the

protected act covered under the retaliatory eviction statute was “the complaint and

notice from the City of Charlotte Code Enforcement dated 12 March 2018.” Since

the protected act occurred more than twelve months before the second summary

ejectment action, the judge reasoned the retaliatory eviction statute “does not

provide for tolling of this period of time pending subsequent litigation or dismissal

of an appeal.” Further, the trial court found no genuine issue of material fact, as

both Plaintiff’s and Defendant’s affidavits “acknowledge the oral lease, the same
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rent amount, as well as the lease termination letter sent on July 24, 2019.”

Defendant filed a notice of appeal with this Court on 30 December 2019.

II. Jurisdiction

¶8 The trial court’s order granting summary judgment is a final judgment, and

jurisdiction therefore lies with this Court pursuant to N.C. Gen. Stat. § 7A-27(b)

(2021).

III. Issues

¶9 The issues on appeal are whether the trial court erred in determining: (1)

there was no genuine issue of material fact with respect to Defendant’s retaliatory

eviction defense, thus entitling Plaintiff to summary judgment; and (2) the sole

protected act covered by the retaliatory eviction statute was the complaint and

notice of hearing from Code Enforcement dated 12 March 2018.

IV. Standard of Review

¶ 10 “We review the trial court’s summary judgment order de novo.” Moore v.

Jordan, 259 N.C. App. 590, 593, 816 S.E.2d 218, 221 (2018). “‘Under a de novo

review, the court considers the matter anew and freely substitutes its own

judgment’ for that of the lower tribunal.” State v. Williams, 362 N.C. 628, 632–33,

669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd. P’ship, 356 N.C.

642, 647, 576 S.E.2d 316, 319 (2003)).

¶ 11 Summary judgment is appropriate “if the pleadings, depositions, answers to
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interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that any party is entitled

to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 56(c)

(2021). For an adverse party to overcome a motion for summary judgment, they

“may not rest upon the mere allegations or denials of [their] pleading, but [their]

response, by affidavits or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.” N.C. Gen. Stat. § 1A-1, N.C.

R. Civ. P. 56(c); see Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 204,

271 S.E.2d 54, 57–58 (1980) (recognizing that the nonmovant “must come forward

with facts, not mere allegations,” in order to survive summary judgment).

¶ 12 “A genuine issue of material fact has been defined as one in which the facts

alleged are such as to constitute a legal defense or are of such nature as to affect the

result of the action . . . .” Smith v. Smith, 65 N.C. App. 139, 142, 308 S.E.2d 504,

506 (1983). “[A]n issue is genuine if it is supported by substantial evidence, which

is that amount of relevant evidence necessary to persuade a reasonable mind to

accept a conclusion[,]” and requires “more than a scintilla or a permissible

inference.” Williamson v. Long Leaf Pine, LLC, 218 N.C. App. 173, 176, 720 S.E.2d

875, 877 (2012) (citations and internal quotations omitted). “Summary judgment is

appropriate when the non-movant fails to forecast substantial evidence

demonstrating that a genuine issue of material fact exists, requiring determination
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by the fact-finding body.” In re Will of Allen, 371 N.C. 665, 668, 821 S.E.2d 396, 400

(2018).

¶ 13 “When considering a motion for summary judgment, the trial judge must

view the presented evidence in a light most favorable to the nonmoving party. All

inferences of fact must be drawn against the movant and in favor of the

nonmovant.” Strickland v. Hedrick, 194 N.C. App. 1, 9, 669 S.E.2d 61, 67 (2008).

While summary judgment may be inappropriate for some determinations of

subjective intent, analysis is required on a case-by-case basis. See Little by Davis v.

Nat’l Servs. Indus., Inc., 79 N.C. App. 688, 695, 340 S.E.2d 510, 514–15 (1986).

V. Analysis

¶ 14 We first examine the parties’ oral lease agreement in order to contextualize

the issues on appeal for our de novo summary judgment review. See Moore, 259

N.C. App. at 593, 816 S.E.2d at 221.

A. Periodic Tenancy

¶ 15 A valid lease contains four essential elements: (1) identity of landlord and

tenant, (2) description of land to be leased, (3) a statement of the term of the lease,

and (4) rental or other consideration to be paid. Purchase Nursery, Inc. v. Edgerton,

153 N.C. App. 156, 161, 568 S.E.2d 904, 907 (2002) (citation omitted). Oral leases

for periodic tenancies renew “indefinitely until . . . terminated at the end of one of

the periods by a proper notice by either the lessor or the lessee in accordance with
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the law.” See Goler Metro. Apartments, Inc. v. Williams, 43 N.C. App. 648, 652, 260

S.E.2d 146, 149–50 (1979).

¶ 16 When a party to a periodic tenancy seeks to terminate the lease, a minimum

term of advance notice is required by statute based on the duration of the tenancy.

See N.C. Gen. Stat. § 42-14 (2019) (requiring seven days’ notice to terminate a

month-to-month lease, and two days’ notice to terminate a week-to-week lease).

“Any tenant or lessee of any house or land . . . who holds over and continues in the

possession of the demised premises . . . without the permission of the landlord, and

after demand made for its surrender, may be removed from such premises [by

summary ejectment].” N.C. Gen. Stat. § 42-26 (2019). Absent an agreement

between landlord and tenant, a tenant has neither a legal nor an equitable right to

renewal of a lease, Barnes v. Saleeby, 177 N.C. 256, 98 S.E. 708, 710 (1919), unless

otherwise provided by law.

¶ 17 Here, the record supports and the parties do not dispute the existence of the

oral lease or its essential terms. Defendant’s property interest under the oral lease

consisted of weeklong periods, which renewed each week that proper notice of

termination was not provided by either party. On 24 July 2019, when Plaintiff

provided Defendant notice to vacate the premises on or before 8 August 2019, the

lease was “terminated at the end of one of the periods by a proper notice by . . . the

lessor . . . in accordance with the law[,]” and Defendant had no right to renew. See
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Goler Metro Apartments, 43 N.C. App. at 652, 260 S.E.2d at 149–50; see also N.C.

Gen. Stat. § 42-14. In fact, Plaintiff provided two weeks’ advance notice to

Defendant, when only two days was required by statute. See N.C. Gen. Stat. § 42-

14.

¶ 18 As Plaintiff served proper notice of termination and demand for possession,

Defendant’s interest in the Property expired on 8 August 2019, at which point he

became a holdover tenant, subject to summary ejectment proceedings by Plaintiff.

See N.C. Gen. Stat. § 42-14; see also N.C. Gen. Stat. § 42-26.

B. Propriety of Summary Judgment.

¶ 19 Defendant asserts he pled a prima facie retaliatory eviction defense and thus,

the trial court erred in entering summary judgment. Plaintiff, on the other hand,

argues Defendant’s affidavit failed to forecast sufficient evidence of retaliation to

survive a motion for summary judgment. Furthermore, even if Defendant pled a

prima facie retaliatory eviction defense, Plaintiff maintains he is nevertheless

entitled to summary judgment under N.C. Gen. Stat. § 42-37.1(c) (2019). We agree

with Plaintiff.

¶ 20 Summary judgment allows the Court to jettison disputes with “a fatal

weakness in [their] claim or defense” to their legally inevitable conclusion. Gray v.

Hager, 69 N.C. App. 331, 333, 317 S.E.2d 59, 61 (1984). Only “specific facts showing

that there is a genuine issue for trial” are sufficient for a non-movant to prevail on
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summary judgment, meaning statements of opinion which fail to “express[ ]

certainty about a thing” are inadequate under this standard. N.C. Gen. Stat. § 1A-

1, N.C. R. Civ. P. 56(e); Omnicare, Inc. v. Laborers Dist. Council Constr. Indus.

Pension Fund, 575 U.S. 175, 183, 135 S. Ct. 1318, 1325 (2015).

¶ 21 Defendant’s assertion of retaliatory eviction fails. The retaliatory eviction

statute provides several exclusions to its application, even where a prima facie case

of retaliatory eviction is successfully pled. See N.C. Gen. Stat. § 42-37.1(c). The

exclusion relevant to the instant analysis provides, “[a] landlord may prevail in an

action for summary ejectment if: In a case of a tenancy for a definite period of time

where the tenant has no option to renew the lease, the tenant holds over after the

expiration of the term.” N.C. Gen. Stat. § 42-37.1(c)(2). It is therefore apparent

that the retaliatory eviction statute does not permit the affirmative defense’s shield

to be used as a sword by holdover tenants to unilaterally extend lease terms beyond

the bargained-for period. In other words, the plain language of subsection (c)(2)

conditions the availability of a remedy for a residential retaliatory eviction upon the

tenant’s possession of an otherwise valid property interest under the lease in

question. See id.

¶ 22 Based on our analysis of the parties’ oral lease, Defendant’s tenancy for a

definite period of time—one week—expired on 8 August 2019. Defendant could not,

therefore, prevail on a retaliatory eviction defense where he had no option to renew
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the lease, and he held over after the expiration of the term. See id. As the material

facts pertaining to the terms of the lease and notice to vacate are not in dispute, the

trial court’s entry of summary judgment was proper. See In re Will of Allen, 371

N.C. at 668, 821 S.E.2d at 400.

¶ 23 Finally, we need not determine whether the sole protected act covered by the

retaliatory eviction statute was the complaint and notice of hearing from Code

Enforcement dated 12 March 2018. Based on our determination that Defendant

was a holdover tenant, had no option to renew the lease, and thus could not prevail

under the retaliatory eviction statute, see N.C. Gen. Stat. § 42-37.1, there were no

facts alleged constituting a legal defense which would affect the result of the instant

action. See Smith, 65 N.C. App. at 142, 308 S.E.2d at 506. Having concluded

Defendant’s affirmative defense suffers from “a fatal weakness” based on the facts

before us, we affirm the trial court’s grant of summary judgment to Plaintiff. See

Gray v. Hager, 69 N.C. App. at 333, 317 S.E.2d at 61.

VI. Conclusion

¶ 24 Viewing all evidence in the light most favorable to Defendant, we conclude

Plaintiff was entitled to summary judgment on his second summary ejectment

action, as no genuine issue of material fact was shown with respect to Defendant’s

retaliatory eviction defense. We therefore affirm the trial court’s order.

AFFIRMED.
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Judges TYSON and GRIFFIN concur.