Shepard v. Bonita Vista Properties, LP

664 S.E.2d 388, 191 N.C. App. 614, 2008 N.C. App. LEXIS 1489
CourtCourt of Appeals of North Carolina
DecidedAugust 5, 2008
DocketCOA07-1095
StatusPublished
Cited by29 cases

This text of 664 S.E.2d 388 (Shepard v. Bonita Vista Properties, LP) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shepard v. Bonita Vista Properties, LP, 664 S.E.2d 388, 191 N.C. App. 614, 2008 N.C. App. LEXIS 1489 (N.C. Ct. App. 2008).

Opinions

STEPHENS, Judge.

Defendants appeal from the district court’s judgment awarding $46,210.37 in .damages and attorney’s fees to Plaintiffs on claims of breach of North Carolina’s Public Utilities Act, unfair and deceptive trade practices, and breach of contract. We affirm the awards of damages but remand for additional findings of fact concerning the award of attorney’s fees.

When the trial court sits without a jury, as it did in this case, “the standard of review on appeal is whether there was competent evidence to support the trial court’s findings of fact and whether its conclusions of law were proper in light of such facts.” Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992) (citation omitted). The trial court’s conclusions of law are reviewed de novo. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980). In this case, Defendants did not assign error to any of the trial court’s findings, and, thus, the findings are presumed to be supported by competent evidence. Koufman v. Koufman, 330 N.C. 93, 408 S.E.2d 729 (1991); N.C. R. App. P. 10(a) (“[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal. . . .”). The findings establish the facts which follow.

In 2002, Defendant Vickie L. Safely-Smith, “as General Partner, and as Trustee of [Defendant] FVS Trust[,]” formed Defendant Bonita Vista Properties, L.P., in California. In October 2004, Bonita Vista acquired ownership of the Pine Lake RV Resort (“campground”) located in Scotland County, North Carolina. Among other services, the campground rented spaces on which recreational vehicle (“RV”) [617]*617operators could park and live in their RVs. The RV spaces were available to, among others, “monthly tenants.” The campgrotmd also furnished electrical service to RV operators requiring such service, charging the operators “at the rate of .0971 per kilowatt hour.” The campground received its electrical service from the Lumbee River Electric Membership Corporation (“Lumbee River EMC”). Lumbee River EMC charged the campground “.0858 per kilowatt hour for the first 800 hours of use and .0689 per kilowatt hour for the next 4200 hours of use.” Safely-Smith was the campground’s property manager.

On 3 May 2003, Plaintiffs William GMoser and Debra Rosseter, a married couple, “moved into [the campground,]” and lived there continuously through the time Bonita Vista became the campground’s owner. The couple maintained “a single 40.5' by 9.5' RV mobile home” at the campground as their permanent and sole residence, paying $245.00 per month to Bonita Vista in “lot rent.” Rosseter and GMoser plugged their RV into one of the campground’s power sources and paid for electricity. When they moved in, Rosseter and GMoser gave Bonita Vista $30.00 as a deposit for two “gate openers[.]” Bonita Vista agreed to return the deposit if the openers were returned in working condition. Rosseter and GMoser told Safely-Smith that they intended to remain at the campground indefinitely.

Plaintiff Beatrice Perry “moved into [the campground]” on 23 October 2004. Perry lived in a “fifth-wheel” RV, a “trailer” which “require[s] a large pick-up truck to move or haul it.” Perry’s RV was her permanent and sole residence. Like Rosseter and GMoser, Perry paid Bonita Vista $245.00 per month as “lot rent[,]” plugged her RV into one of the campground’s power sources, and told Safely-Smith that she intended to live at the campground indefinitely. Perry gave Bonita Vista $60.00 as a deposit for three gate openers.

Plaintiff Tamitha Shepard moved into the campground “with her family” on 31 March 2005. Like Perry, Shepard lived in a fifth-wheel RV which was her permanent residence. Like all of the other Plaintiffs, Shepard plugged her RV into one of the campground’s power sources and paid a deposit for gate openers. Unlike the others, Shepard required daily use of the campground’s bath house because the bathroom in her RV was not functioning properly. Initially, Shepard paid $245.00 in “lot rent[,]” but, on 1 July 2005, Shepard began paying $265.00 per month after she moved her RV to a different space at the campground. Shepard moved primarily due to “the availability of electricity and access to the bath house.” Shepard told [618]*618Safely-Smith that she intended to live at the campground for one to three years.

All Plaintiffs “availed themselves of utilities and amenities” provided by the campground and received mail at the campground. Also, throughout their tenancies, Plaintiffs used propane from tanks located on the campground’s property. Plaintiffs paid for the propane in the tanks at the beginning of their tenancies.

In November 2004, Rosseter began working as the campground’s office manager. She agreed to work eighty-six hours per month in exchange for her monthly lot rent. In December 2004,- Rosseter worked 102 hours. In 2005, Rosseter worked the following hours: January—80.5; February—166; March—142; April—281.5; May- 87.5; June — 67. In all, Rosseter worked 324.5 hours more than was required. Rosseter and Safely-Smith had several conversations concerning how Rosseter would be compensated for the extra time. In January 2005, “it was noted that another tenant was being paid [$6.00] per hour” for working at the resort, and Safely-Smith told Rosseter, “and that is what you will be paid.” The parties intended that this rate of pay would be applied as a credit for electricity charges and lot rent. For the three months of April, May, and June 2005, Rosseter received a total of $250.01 as electricity credit. Rosseter’s employment was terminated on 9 June 2005, but she received lot rental credit of $490.00 for July and August 2005.

Around 1 July 2005, Shepard began to notice that the conditions in the campground’s bath house were deteriorating. On 19 August 2005, Shepard expressed her concerns over the bath house’s conditions to Perry and Rosseter and then reported the conditions to the Scotland County Health Department. Following an inspection by the Health Department, Safely-Smith became upset and told Shepard that she would “fix” her and that she had to leave the campground.

The Scotland County Sheriff’s Department responded to several calls in August 2005 from the campground regarding electricity “issues.” On 18 August, Safely-Smith’s husband placed a zip-tie on the power box supplying power to Rosseter’s RV. On 28 August, Safely-Smith turned off Rosseter’s power “at the main power box,” and placed a padlock on the “pedestal.” On 29 August, Rosseter “plugged into an old 30 amp power source” near her RV. Safely-Smith had Rosseter’s power unplugged and had the old power source destroyed. On 30 August, Safely-Smith and an employee “began flipping breakers at the [campground], resulting in the electric power being turned on [619]*619and off at all [Plaintiffs’ RVs].” Each RV was damaged as a result of the electrical service interruptions, and Plaintiffs moved out of the campground that day.

In September 2005, Perry returned Plaintiffs’ gate openers to Safely-Smith in good working condition, but Safely-Smith refused to refund Plaintiffs’ deposits. Also that month, Plaintiffs contacted Lumbee River EMC and learned that the campground had charged Plaintiffs more for electrical service than Lumbee River EMC charged the campground.

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Bluebook (online)
664 S.E.2d 388, 191 N.C. App. 614, 2008 N.C. App. LEXIS 1489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shepard-v-bonita-vista-properties-lp-ncctapp-2008.