Borders v. Newton

315 S.E.2d 731 (1984)

Belinda BORDERS and Benjamin Cox
v.
P.J. NEWTON, Craig V. Murray, Walter V. Murray, Martha Ann Murray, Annie Mae Laughorn, and Newton Brothers Real Estate Company.

No. 8321DC897.

Court of Appeals of North Carolina.

June 5, 1984.

Legal Aid Society of Northwest North Carolina, Inc. by Jane R. Wettach and Ellen W. Gerber, Winston-Salem, for plaintiffs-appellants.

Allman, Spry, Humphreys & Armentrout and Clyde C. Randolph, Jr., Winston-Salem, for defendants-appellees.

HILL, Judge.

The plaintiffs first argue the court erred in granting a directed verdict in favor of P.J. Newton and Newton Brothers Real Estate Company, contending there was sufficient evidence for the jury to consider that the defendants committed fraud. We disagree. Although plaintiffs technically presented sufficient evidence of fraud, defendants were nonetheless entitled to judgment as a matter of law.

In the present case, the same course of conduct gave rise to causes of action for fraud and unfair trade practices under G.S. 75-1.1. When the same course of conduct gives rise to a traditional cause of action as well as a cause of action for violation of G.S. 75-1.1, damages may be recovered either for the traditional cause of action or for violation of G.S. 75-1.1, but not both. Marshall v. Miller, 47 N.C.App. 530, 268 S.E.2d 97 (1980), modified on other grounds and affirmed, 302 N.C. 539, 276 S.E.2d 397 (1981). Having recovered treble damages for defendants' violation of G.S. 75-1.1, plaintiffs were thereby barred from recovering additional damages for fraud. Id., see Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975) (Huskins, J., concurring in result).

Plaintiffs contend the court erred in denying their claim for attorneys' fees. The award of attorneys' fees under G.S. 75-16.1 is within the sound discretion of the trial judge. We find no abuse of that discretion.

We have examined the remaining assignments brought forth by plaintiffs and find them without merit.

The judgment of the trial court is

Affirmed.

WEBB and WHICHARD, JJ., concur.