Hammers v. Lowe's Companies, Inc.

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268 S.E.2d 257 (1980)

48 N.C. App. 150


No. 793SC352.

Court of Appeals of North Carolina.

August 5, 1980.

*259 Robert H. Shaw, III, and Michael P. Flanagan, New Bern, for plaintiff-appellant.

Gaither M. Keener, Jr., North Wilkesboro, for defendant-appellee.

PARKER, Judge.

Plaintiff attempted to state three claims for relief: first, a claim for damages for breach of contract; second, a claim for damages, including punitive damages, for conduct of the defendant which plaintiff characterized as "tortious in nature; " and third, a claim for treble damages for violation of G.S. 75-1.1. We agree with the trial judge that plaintiff failed to state any claim upon which relief can be granted. Accordingly, we affirm the judgment dismissing plaintiff's action on the grant of defendant's motion made under Rule 12(b)(6).

As to the claim for breach of contract, plaintiff in paragraph 10 alleged that defendant's agent "told plaintiff that defendant would be responsible for procuring the final plans for the house, retaining a building contractor, and constructing plaintiff's house complete with appliances . . for a total `turn-key' cost of `approximately $35,000.00.'" In paragraph 11 plaintiff alleged that "[p]laintiff accepted defendant's proposal," and in paragraph 25 plaintiff alleged that "[d]efendant never carried out the obligations existing under the contract entered into between plaintiff and defendant." Considered in isolation from the remaining paragraphs of the complaint, these allegations might be sufficient under the "notice" theory of pleadings, see Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970), to withstand a Rule 12(b)(6) motion. They set forth an offer by defendant (though to do exactly what and for what price is left somewhat vague), an acceptance by plaintiff, and a breach on the part of the defendant. Therefore, had these been the only allegations in the complaint, it is possible that the motion to dismiss plaintiff's first claim should have been denied. We need not decide that question, however, since these were not the only allegations in the complaint, and when all of plaintiff's allegations are taken into account and considered together, it becomes abundantly clear that no contract ever resulted from the negotiations which took place between the parties. No final plans for the house which plaintiff wanted and no fixed price were ever agreed upon between the parties. All that occurred was that extended negotiations took place, during the course of which defendant continued to propose plans and prices which plaintiff continued to find unacceptable. When, as here, the complaint discloses facts showing that no contract was ever made between the parties, such disclosure necessarily defeats plaintiff's claim for breach of contract, and that claim was properly dismissed.

As to plaintiff's second claim for relief, although plaintiff alleged in general terms that defendant engaged in "negligent, willful, and deceptive negotiations and tactics," and characterized defendant's actions as being "tortious in nature," such general allegations do not serve to create an actionable tort where the specific facts alleged show none to exist. The specific facts which plaintiff alleged show no more than that he continued to be disappointed in negotiations which failed to produce from the defendant an offer to build a house in accordance with plans which plaintiff would approve and at a price which plaintiff would agree to pay. Defendant's continued failure to make a proposal to plaintiff's liking gave rise to no actionable claim for relief, and plaintiff's second claim was properly dismissed.

Finally, as to plaintiff's third claim, we find in the facts alleged no violation of G.S. 75-1.1. Admittedly, the language of that statute, proscribing as it does "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices *260 in or affecting commerce," is extremely broad, so broad and vague, indeed, as to render the triple damage penalty provided by G.S. 75-16 in a private action brought for violation of the vague language of G.S. 75-1.1 at least of questionable validity.[1] On the present record, however, we do not reach that constitutional question. As broad as the language of G.S. 75-1.1 is, we find it does not embrace a situation such as is disclosed by the allegations in plaintiff's complaint. We hold that defendant's failure to negotiate an agreement on terms satisfactory to plaintiff simply did not constitute a violation of G.S. 75-1.1. Defendant's third claim for relief was properly dismissed.


MORRIS, C. J., and HILL, J., concur.


[1] It should be noted that no private right of action for treble damages similar to that provided by G.S. 75-16 is available for enforcement of the equally broad language of § 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, Federal Trade Commission v. Klesner, 280 U.S. 19, 50 S. Ct. 1, 74 L. Ed. 138 (1929), enforcement of the Federal Act being by procedures which, in general, put the person accused of violating that Act on notice before penalties or sanctions are applied. See Marshall v. Miller, 47 N.C.App. 530, 268 S.E.2d 97 (1980). Unlike the Federal Act, G.S. 75-16 confers upon the plaintiff in a private action the right to recover treble damages, which are punitive in nature, on proof he has been damaged by a violation of the vague language of G.S. 75-1.1 by a defendant who has not knowingly and willfully violated G.S. 75-1.1 and who has had no notice that his conduct may have violated that statute other than such notice as is contained in the vague language of the statute itself. In Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975), the only case in which our Supreme Court has approved an award of treble damages under G.S. 75-16 for a violation of G.S. 75-1.1, no question of constitutionality of the penalty provision was raised; in addition, stipulations of the parties and uncontradicted evidence in that case established that the defendants had engaged in conduct which at least three members of the Court considered to be "outrageous" and to constitute aggravated fraud, clearly a willful violation of G.S. 75-1.1.

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