Dobbins v. Paul , 71 N.C. App. 113 ( 1984 )

321 S.E.2d 537 (1984)

Julia Jean DOBBINS, Plaintiff-Appellant,
v.
Sam PAUL and wife, Dorothy Paul, Defendants-Appellees.

No. 8322DC1172.

Court of Appeals of North Carolina.

November 6, 1984.

Legal Aid Society of Northwest North Carolina, Inc. by Gwyneth B. Davis, Winston-Salem, for plaintiff.

No brief for defendants.

WELLS, Judge.

This is a civil pauper appeal. Plaintiff gave notice of appeal 27 May 1983, and the trial court did not enter its order allowing the appeal until 12 July 1983. We are aware that in the past such orders had to issue within ten days after notice of appeal, failing which the appellate division lacked jurisdiction to consider the appeal. N.C.Gen.Stat. § 1-288 (1968); Powell v. Moore, 204 N.C. 654, 169 S.E. 281 (1933). However, the General Assembly deleted the statutory provision in 1971, requiring only that the affidavit of indigency and certificate of counsel be submitted within the ten-day period. 1971 N.C.Sess. Laws, c. 268, s. 12; G.S. § 1-288. The record on appeal does not contain the affidavit and certificate; nor need it. Rule 9(b)(1) of the Rules of Appellate Procedure. Where the record is silent on a particular point, we will presume that the trial court acted correctly and regularly. State v. Dew, 240 N.C. 595, 83 S.E.2d 482 (1954). Accordingly, we presume that the trial court relied upon valid filings and therefore hold that the appeal is properly before us.

The principle question presented by this appeal is the correctness of the directed verdicts for defendants. A directed verdict should not be allowed unless it appears as a matter of law that plaintiff cannot recover upon any view of the facts which the evidence reasonably tends to establish. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977); Koonce v. May, 59 N.C.App. 633, 298 S.E.2d 69 (1982). Internal conflicts in the evidence are resolved in the plaintiff's favor. Husketh v. Convenient Systems, 295 N.C. 459, 245 S.E.2d 507 (1978). If, taking plaintiff's evidence as true, reasonable minds could differ as to its import, the matter should go to the jury. Id.

Applying this standard, the trial court clearly erred in granting defendants' motion for directed verdict dismissing Sam Paul as a party defendant. Defendants admitted that the house was owned by the entireties. At the time the lease was signed in 1981, Mr. Paul accordingly enjoyed an exclusive right to rental income from the property. Board of Architecture v. Lee, 264 N.C. 602, 142 S.E.2d 643 (1965).^[1] He therefore was a real party in interest. N.C.Gen.Stat. § 1A-1, Rule 17 of the Rules of Civil Procedure (1983); Insurance Co. v. Walker, 33 N.C.App. 15, 234 S.E.2d 206, disc. rev. denied, 293 N.C. 159, 236 S.E.2d 704 (1977) (Rule 17 applies to defendants). Moreover, there was plenary evidence that Mr. Paul actively took part in removing plaintiff from the house and was in fact responsible for any repayments to her. Plaintiff more than satisfied her burden on this issue.

Likewise, the trial court clearly erred in granting defendants' motion for a directed verdict on the claim under the Tenant Security Deposit Act, N.C.Gen.Stat. § 42-50 to -56 (Supp.1983). The trial court apparently accepted defendants' contention that the deposit was not a security deposit, but was simply to "hold the house." However, defendants unequivocally admitted in their answer that they did "accept a security deposit." This constituted a judicial admission conclusively establishing the fact. Downey v. Downey, 29 N.C.App. 375, 224 S.E.2d 255, disc. rev. denied, 290 N.C. 550, 226 S.E.2d 509 (1976); 2 Brandis, Brandis on N.C. Evidence § 177 (2d rev. ed. 1982). Defendants' conduct in retaining $75.00, allegedly to pay for exterminator work, would itself suffice to defeat directed verdict on this ground. See G.S. § 42-51 (purposes of deposit). The trial court's suggestion that the Deposit Act did not apply due to failure of notice within 30 days after the beginning of the lease term relates to the landlord's obligation to notify the tenant of the location of trust accounts or bond, G.S. § 42-50, and is entirely irrelevant to this case.

We turn now to the central issue, whether the trial court correctly granted directed verdicts on the wrongful eviction and breach of covenant claims. When a wrongful demand or notice to quit or vacate leased premises is made by a lessor, or landlord, and is followed by immediate surrender of possession by the lessee, or tenant, a constructive eviction has been accomplished. 52 C.J.S. Landlord And Tenant § 458 (1968). Under our Ejectment Of Residential Tenants Act (the Act), N.C. Gen.Stat. §§ 42-25.6,^[2] -25.9 (1983 Cum. Supp.), defendants' exclusive remedy to regain possession of their house was by means of statutory summary ejectment proceedings pursuant to N.C.Gen.Stat. §§ 42-26 to -36.1 (1976). Plaintiff's evidence having shown that she was wrongfully evicted on Monday, 26 October after her lease was in effect, plaintiff's statutory remedy for damages under G.S. § 42-25.9(a)^[3] attached. It is clear that the trial court erred in granting defendants' motion for a directed verdict on plaintiff's claim for relief under the Act.

In that the statute expressly disallows treble or punitive damages in such cases, it is clear that the trial court correctly allowed defendants' motion for a directed verdict as to plaintiff's claims for relief in which she alleged and sought such damages.

It was also error for the trial court to dismiss plaintiff's claim for breach of her right of quiet enjoyment. In the absence of a provision to the contrary, plaintiff's lease carried with it an implied covenant that she would have the quiet and peaceable possession of the leased premises during the term of the lease. See generally Produce Co. v. Currin, 243 N.C. 131, 90 S.E.2d 228 (1955); see also Marshall v. Miller, 47 N.C.App. 530, 268 S.E.2d 97 (1980), modified and affirmed, 302 N.C. 539, 276 S.E.2d 397 (1981). Plaintiff having been constructively evicted, it is clear her right to quiet enjoyment or possession was breached. We are careful to point out, however, that even so, under explicit language of the Act, plaintiff can recover only her actual damages.

As to the trial court's order dismissing Sam Paul as a party defendant,

Reversed.

As to the trial court's granting defendants' motion for directed verdict on plaintiff's claim for relief under the Tenant Security Deposit Act,

New trial.

As to plaintiff's claims for relief for wrongful statutory eviction and for breach of her covenant of peaceful possession,

New trial.

In all other respects, the judgment of the trial court is

Affirmed.

HILL, J., concurs.

ARNOLD, J., concurs in result.

NOTES

[1] N.C.Gen.Stat. § 39-13.6 (Supp.1983), which gave husband and wife equal right to rental income from entireties property, did not become effective until 1 January 1983. 1981 N.C. Sess.Laws (Reg.Sess.1982) c. 1245, s. 2.

[2] § 42-25.6. Manner of ejectment of residential tenants. It is the public policy of the State of North Carolina, in order to maintain the public peace, that a residential tenant shall be evicted, dispossessed or otherwise constructively or actually removed from his dwelling unit only in accordance with the procedure prescribed in Article 3 of this Chapter.

[3] § 42-25.9. Remedies. (a) If any lessor, landlord, or agent removes or attempts to remove a tenant from a dwelling unit in any manner contrary to this Article, the tenant shall be entitled to recover possession or to terminate his lease and the lessor, landlord or agent shall be liable to the tenant for damages caused by the tenant's removal or attempted removal. Damages in any action brought by a tenant under this Article shall be limited to actual damages as in an action for trespass or conversion and shall not include punitive damages, treble damages or damages for emotional distress.