Wilder v. Hodges

342 S.E.2d 57, 80 N.C. App. 333, 1986 N.C. App. LEXIS 2175

Opinion

PHILLIPS, Judge.

The verdict against defendant is supported by evidence tending to show, in gist, that though he only had an option to buy the lot involved, with no right to rent it, defendant nevertheless induced plaintiff into signing a written lease and into paying him $360 a month for using the lot. Even so, defendant contends that the evidence does not support the unfair or deceptive trade practices verdict and judgment. The argument is that the leasing of the one lot involved was neither in commerce nor had any effect on it, as G.S. 75-1.1 requires. The contention has no merit. G.S. 75-l.l(b) defines commerce to include “all business activities, however denominated,” and leasing a piece of real estate for use as a restaurant parking lot is certainly a business activity. Actually, this is no longer an open question, as we held earlier that the leasing of just one commercial lot satisfies the Chapter 75 requirement of being in or affecting commerce. Kent v. Humphries, 50 N.C. App. 580, 275 S.E. 2d 176, modified on other grounds and aff’d, 303 N.C. 675, 281 S.E. 2d 43 (1981).

Defendant’s contentions that the court erred in charging the jury in certain respects cannot be considered because he made no objection to the charge. Rule 10(b)(2), N.C. Rules of Appellate Procedure. But the defendant’s contention that the judgment erroneously permits a double recovery for one injury is well taken. When the same course of conduct supports claims for fraud and for an unfair or deceptive trade practice under Chapter 75, recovery can be had on either claim, but not on both. Borders v. Newton, 68 N.C. App. 768, 315 S.E. 2d 731 (1984). Thus, in entering judgment against defendant for $3,240 on the Chapter 75 claim and also for $3,000 on the fraud claim, for $6,240 altogether, the court went too far, and the judgment is modified to provide for the recovery of $3,240 along with the costs and attorneys fees as properly taxed under G.S. 75-16.1.

No error in trial; judgment modified.

Judges Arnold and Eagles concur.