Homeland, Inc. v. Backer

337 S.E.2d 114 (1985)

HOMELAND, INC. v. Charles E. BACKER and Marie B. BACKER v. Carlos GOMEZ and wife, Barbara J. Gomez.

No. 8512SC572.

Court of Appeals of North Carolina.

December 17, 1985.

*116 McCoy, Weaver, Wiggins, Cleveland & Raper by John E. Raper, Jr., Fayetteville, for plaintiff-appellee.

MacRae, Perry, Pechmann, Boose & Williford by James C. MacRae and Reid, Lewis & Deese by Renny W. Deese, Fayetteville, for defendants-appellants.

HEDRICK, Chief Judge.

Defendants assign error to the trial court's granting plaintiff's motion for directed verdict on the issues of waste and nonpayment of rent.

On a motion for directed verdict the trial court must consider the evidence in the light most favorable to the non-moving party, and may grant the motion only if, as a matter of law, the evidence is insufficient to justify a verdict in favor of the non-moving party. Rappaport v. Days Inn, 296 N.C. 382, 250 S.E.2d 245 (1979). A directed verdict in favor of the party with the burden of proof is proper only when the proponent has established a clear and uncontradicted prima facie case and the credibility of his evidence is manifest as a matter of law. Bank v. Burnette, 297 *117 N.C. 524, 256 S.E.2d 388 (1979). Thus, the first question before us is whether plaintiff established a clear and uncontradicted prima facie case on the issue of defendants' waste.

Waste, at common law, was any permanent injury with respect to lands, houses, gardens, trees, or other corporeal hereditaments by the owner of an estate less than a fee. Fleming v. Sexton, 172 N.C. 250, 90 S.E. 247 (1916). Specifically in reference to the lessor-lessee situation, waste has been defined as an implied obligation in every lease on the part of the lessee to use reasonable diligence to treat the premises in such a manner that no injury is done to the property. Casualty Co. v. Oil Co., 265 N.C. 121, 143 S.E.2d 279 (1965). The remedy and judgment for waste, as set forth in G.S. 1-533 is that "the judgment may be for damages, forfeiture of the estate of the party offending, and eviction from the premises."

In the instant case the evidence does not conclusively show that defendants committed waste. On the contrary, there was plenary evidence that defendants made extensive improvements to all the rental units on the property. Since defendants had a thirty-year lease, they would be expected to change and improve the property in many ways. The two houses that Backer moved could be replaced in their original positions before the lease terminated. We find that plaintiff has failed to establish a clear and uncontradicted prima facie case on the issue of waste. Therefore the trial court erred in entering a directed verdict for plaintiff, and the question of whether defendants committed waste should be determined by the jury.

Additionally, we do not find that plaintiff's evidence was sufficient to justify a directed verdict on the issue of nonpayment of rent. Defendants introduced evidence which tended to contradict plaintiff's evidence, and raised a question of estoppel. Backer testified that he tendered his check for the May 1983 rent, and it was refused by plaintiff. Backer was told that plaintiff would not accept any further payments and he was subsequently notified that the lease was terminated. This evidence, that Backer attempted to tender the rent and his checks were refused by plaintiff, should have gone to the jury to determine whether plaintiff's refusal of defendants' check estopped plaintiff from terminating the lease on the grounds of nonpayment. Plaintiff has not established a clear and uncontradicted prima facie case on the issues of nonpayment and estoppel, and the trial court erred in granting plaintiff's motion for a directed verdict. Moreover, we find that the court erred in separating the issues of nonpayment of rent and estoppel, and they should be submitted to the jury as one issue.

In conclusion, we find that the trial court erred in granting plaintiff's motions for directed verdict and such error prejudiced defendants' case as to the remaining issues, requiring a new trial on all issues.

Reversed and remanded.

EAGLES and MARTIN, JJ., concur.