Walker v. Fleetwood Homes of North Carolina, Inc.

JACKSON, Judge

concurring in part, dissenting in part.

For the reasons stated below, I must respectfully dissent from the majority’s conclusion that the trial court acted properly in allowing Staten to maintain her claim for unfair and deceptive trade practices. I concur, however, with the majority’s conclusion that the trial court acted properly in denying defendant’s motions as to the claims of plaintiff Walker. I also concur with the majority’s conclusion that the trial court erred in submitting to the jury the issues of Walker’s damages based on loss of privacy and mental and emotional distress, and that defendant failed to preserve for appeal the issue of whether the trial court erred in failing to reduce plaintiffs’ damages.

Defendant’s motion for judgment notwithstanding the verdict specifically stated that one of the grounds for its motion was that “Plaintiff Staten was not a buyer of the mobile home and therefore cannot maintain a cause of action for unfair and deceptive trade practices pursuant to G.S. § 143-143.8, et seq. and G.S. § 75-16.” The facts of this case are largely undisputed, in that Walker purchased the mobile home for Staten, and that Walker’s name appeared on all paperwork involved in the sale and manufacture of the home. In addi*676tion, Walker paid all monies which were exchanged as a result of the contract. At no point during the manufacture of this home was defendant made aware of Staten’s existence or that the home was being built for her use.

Article 9A of our General Statutes sets forth provisions pertaining to enforcement of warranties for manufactured homes purchased in North Carolina. N.C. Gen. Stat. § 143-143.8 (2001). As found by the jury, and upheld by the majority, defendant was found to have engaged in acts in violation of North Carolina General Statutes, section 143-143.13. North Carolina General Statutes, section 143-143.12(c) (2001) provides that “[a]ny buyer of a manufactured home who suffers any loss or damage by any act of a licensee that constitutes a violation of this Article may institute an action to recover against the licensee and the surety.” (Emphasis added). However, a “buyer” is defined as “[a] person who purchases at retail from a dealer or manufacturer a manufactured home for personal use as a residence or other related use.” N.C. Gen. Stat. § 143-143.9(2) (2001). In the instant case, plaintiff Staten was not the person who purchased the mobile home or who paid money for the home. Therefore, she can not be considered to be a “buyer” who would be entitled to bring a cause of action based upon violations of North Carolina General Statutes, section 143-143.13, and thus she did not have standing to bring an action based on violations of this statute.

As noted by the majority, a plaintiff may maintain a claim for unfair and deceptive trade practices under North Carolina General Statutes, section 75-1.1, however, I believe plaintiff Staten was without standing under this statute as well. Our courts permit consumers not in privity to the original contract to recover when they are injured as a result of unfair and deceptive trade practices. Hyde v. Abbott Laboratories, 123 N.C. App. 572, 584, 473 S.E.2d 680, 688, disc. review denied, 344 N.C. 734, 478 S.E.2d 5 (1996) (“allowing indirect purchasers to sue for Chapter 75 violations will best advance the legislative intent that such violations be deterred, and that aggrieved consumers have a private cause of action to redress Chapter 75 violations” (emphasis added)). Under North Carolina General Statutes, section 75-16 (2001), “any person” who is injured by the acts of another person, firm or corporation, which were done in violation of Chapter 75, has a right of action to recover for their injury.

Staten argues that the words “any person” should permit her to recover for defendant’s unfair and deceptive trade practices. As the *677majority has held, and I concur, the trial court properly concluded that defendant committed acts constituting unfair and deceptive trade practices in violation of North Carolina General Statutes, section 75-1.1. However, I would hold Staten is not entitled to the use of the broad classification of “any person” based on our well-settled canons of statutory construction.

Our Supreme Court has held that “ ‘a statute dealing with a specific situation controls, with respect to that situation, [over] sections which are general in their application.’ ” In re Charnock, 358 N.C. 523, 529, 597 S.E.2d 706, 710 (2004) (quoting State ex rel. Util. Comm’n v. Lumbee River Elec. Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969)). “In such situation the specially treated situation is regarded as an exception to the general provision.” State ex rel. Util. Comm., 275 N.C. at 260, 166 S.E.2d at 670 (citation omitted). “This rule of construction is especially applicable where the specific provision is the later enactment.” Id. North Carolina General Statutes, section 75-16 was originally enacted in 1913, and was amended in 1969 to include the language “[i]f any person shall be injured.” However, North Carolina General Statutes, section 143-143.12 originally was enacted in 1981. When two statutes “ ‘deal with the same subject matter, they must be construed in pari materia and harmonized to give effect to each.’ ” State ex rel. Util. Comm., 275 N.C. at 260, 166 S.E.2d at 670 (quoting Gravel Co. v. Taylor, 269 N.C. 617, 620, 153 S.E.2d 19, 21 (1967)). However, when the statute “dealing with a specific matter is clear and understandable on its face, it requires no construction.” Id. (citing Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967); Davis v. Granite Corporation, 259 N.C. 672, 131 S.E.2d 335 (1963); Long v. Smitherman, 251 N.C. 682, 111 S.E.2d 834 (1960)).

As previously noted, Chapter 143 of Article 9A of our General Statutes specifically provides remedies for individuals injured as a result of the purchase of a manufactured home in our State. As such, I believe the specificity of North Carolina General Statutes, section 143-143.12, which provides a cause of action for buyers injured by violations of Chapter 143 of Article 9A, should be controlling in the instant case over the general requirements for an unfair and deceptive trade practice claim pursuant to North Carolina General Statutes, section 75-16. As Staten lacks standing to maintain a claim under North Carolina General Statutes, section 143-143.12, then she also cannot be entitled to maintain a claim entitling her to treble damages under North Carolina General Statutes, section 75-16. See Smith v. *678King, 52 N.C. App. 158, 161, 277 S.E.2d 875, 877 (1981) (court held that where plaintiff was unable to satisfy the statutory requirements in order to maintain a claim for unfair and deceptive trade practices under N.C. Gen. Stat. § 58-54.4(11), plaintiff therefore was not entitled to treble damages under N.C. Gen. Stat. § 75-16).

The majority argues that this position is inconsistent with this Court’s holding in Hyde, however I cannot agree that it is. In Hyde, the plaintiffs actually were purchasers, in that they each spent monies and purchased infant formula through parties other than the defendant manufacturer. The Court concluded plaintiffs were indirect purchasers based on the fact that they actually purchased the infant formula themselves, and that they were alleged to have been damaged as a result of paying higher prices for the formula than they would have absent the illegal conduct. Hyde, 123 N.C. App. at 574, 473 S.E.2d at 681-82. In the instant case, Staten did not purchase the mobile home, nor did she expend any of her own monies to assist in the purchase. Therefore, I do not believe that a finding that Staten was without standing to maintain her claim for unfair and deceptive trade practices would be inconsistent with Hyde or the broad remedial purpose behind Chapter 75.

Accordingly, I would hold Staten was without standing to bring her claim for unfair and deceptive acts. Therefore, I must respectfully dissent from the majority’s opinion to the extent that it finds the trial court acted properly in denying defendant’s motion for judgment notwithstanding the verdict as to Staten’s claim for unfair and deceptive trade practices.