Webb v. Triad Appraisal & Adjustment Service, Inc.

352 S.E.2d 859 (1987)

Ann McCoy WEBB
v.
TRIAD APPRAISAL AND ADJUSTMENT SERVICE, INC. and Pat Scarlett, d/b/a Pat's Body Shop.

No. 8621SC720.

Court of Appeals of North Carolina.

February 17, 1987.

Kennedy, Kennedy, Kennedy and Kennedy by Harvey L. Kennedy and Harold L. Kennedy, III, Winston-Salem, for plaintiff-appellant.

Alexander, Wright & Parrish by Melvin F. Wright, Jr., Winston-Salem, for defendants-appellees.

ARNOLD, Judge.

Although the issue was not raised by defendants, we note that this appeal is interlocutory.

Appeals in civil actions are governed by G.S. 1-277, which permits an appeal from every judicial order involving a matter of law which affects a substantial right. Ordinarily, an appeal lies only from a final judgment, but an interlocutory order which will work injury if not corrected before final judgment is immediately appealable. State Highway Comm'n v. Nuckles, 271 N.C. 1, 155 S.E.2d 772 (1967).

A substantial right is involved in the present case. Cf. Oestreicher v. American Nat'l Stores, Inc., 290 N.C. 118, 225 S.E.2d 797 (1976). If plaintiff's claims were not subject to dismissal, she has a substantial right to have all three causes tried at the same time by the same judge and jury.

Plaintiff contends that the trial court erred in dismissing and striking her claims for fraud, bad faith, and unfair and deceptive trade practices. While we agree that the trial court properly dismissed plaintiff's second cause of action alleging bad faith, we find that the trial court erred in dismissing plaintiff's causes of action for fraud and unfair and deceptive trade practices.

To make out an actionable case of fraud, plaintiff must show that defendant made a representation relating to some material past or existing fact, that the representation was false, that defendant knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion, that defendant made the representation with the intention that it should be acted upon by the plaintiff, that the plaintiff reasonably relied upon the misrepresentation and acted upon it, and that the plaintiff suffered injury. See Odom v. Little Rock & I-85 Corp., 299 N.C. 86, 261 S.E.2d 99 (1980).

In her complaint, plaintiff alleged the following:

VI. That at the time that the defendants entered into the contract and represented that they would complete the repairs to the plaintiff's vehicle, they had no intention of completing said repairs and fully performing the contract. That these representations were materially false, that the defendants knew they were false, and they were made with the intent to deceive the plaintiff, and the plaintiff relied on defendants' misrepresentations to her detriment. That the actions and conduct of the defendant in taking money from the plaintiff and failing to perform the work, and using shoddy materials in the small amount of work that was done constituted fraudulent conduct.

The facts alleged by plaintiff, if proven, could support a finding of fraud. Therefore it was error for the trial court to dismiss and strike plaintiff's claim for fraud.

Unfair or deceptive acts or practices in or affecting commerce are unlawful. G.S. 75-1.1. Proof of fraud necessarily constitutes a violation of the prohibition against unfair and deceptive trade practices. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975).

Since plaintiff has alleged facts which, if proven, could support a finding of fraud, she has also alleged facts which could support a finding of unfair and deceptive trade practices. Therefore it was error for the trial court to dismiss plaintiff's claim for unfair and deceptive trade practices.

The order of the trial court is

Affirmed in part, reversed in part and remanded.

PHILLIPS and ORR, JJ., concur.