Williams v. HomEq Servicing Corp.

JACKSON, Judge

concurring in part and dissenting in part.

I concur with sections I, II, and IV of the majority’s opinion. However, I must dissent from the majority’s analysis found in section III of the opinion, in which the majority disagrees with defendant’s argument that plaintiffs section 75-50 claims must be dismissed because they have failed to prove they suffered actual damages. I would hold there was no genuine issue of material fact with respect to plaintiff’s section 75-52(3) and section 75-52(4) claims.

The majority relies upon the holdings in Bryant v. Thalhimer Bros., Inc., 113 N.C. App. 1, 437 S.E.2d 519 (1993) and Waddle v. Sparks, 331 N.C. 73, 414 S.E.2d 22 (1992), in support of its conclusion that plaintiff Mr. Williams may present évidence of incidents occurring outside of the statute of limitations period in support of his claims under section 75-52(3). Neither of these cases relate to Chapter 75 claims, and they have not been used previously in the Chapter 75 context to support an extension of the statute of limitations time period. I would decline to extend the reasoning in Bryant and Waddle to this case.

I believe Poor v. Hill, 138 N.C. App. 19, 530 S.E.2d 838 (2000), is controlling in the instant case, with respect to defendant’s argument that plaintiffs have failed to plead and prove actual damages. Poor discusses the trial court’s award of attorney damages, but the portion of the opinion upon which defendant relies does not relate to an award of attorney’s fees. Instead, the portion of Poor defendant relies upon discusses the types of damages a plaintiff may be entitled to for a Chapter 75 claim which arises out of a breach of contract claim. See id. at 34, 530 S.E.2d at 848. The Court in Poor specifically states that the plaintiffs in the case, on retrial, “must prove they ‘suffered actual injury as a proximate result of defendants’ misconduct.” Id. at 34, 530 S.E.2d at 848. From my reading of Poor, a plaintiff must at least allege to have suffered actual injury as a result of the defendant’s conduct, which I believe plaintiff in the instant case has failed to do.

In the instant case, the record demonstrates that defendant began calling plaintiffs several times per day in 1997. Defendant’s earliest documentation of the calls is from December 1998, during which time, according to defendant’s records, plaintiffs’ phone was disconnected. Defendant was unable to contact plaintiff from 12 June 2000 until 1 August 2000. Plaintiff Harry Williams, who stated that he received calls from defendant at work until the day before he retired, retired from his employment in September 2000. Plaintiff also testified at deposition on 19 December 2005 that the last time he had received a telephone call at home was the day before he retired. Subsequently, on 29 December 2005, plaintiff filed an affidavit dated 28 December 2005 stating that, “[ujntil my counsel intervened in about early 2005, defendant HomEq continued to make harassing telephone calls to me and my wife on an approximately daily basis.” This conflict is problematic, however, because as we previously have ruled, “a party opposing a motion for summary judgment cannot create a genuine issue of material fact by filing an affidavit contradicting his prior sworn testimony.” Pinczkowski v. Norfolk S. Ry. Co., 153 N.C. App. 435, 440, 571 S.E.2d 4, 7 (2002). Thus we must credit plaintiff’s deposition testimony, rather than his affidavit.

Defendant’s “Communication History” records show over 2,000 entries related to communications with plaintiff between 8 December 1998 and 11 February 2005. However, this record shows only one outgoing call to plaintiff from 1 October 2002 through 11 February 2004.

Thus, although the statute of limitations for defendant’s alleged violations of Chapter 75 may have renewed each time a call was placed, each week that the violation continued constituted a separate offense. See N.C. Gen. Stat. § 75-16.2. The statute of limitations for defendant’s violations of sections 75-52(3) and 75-52(4) remains four years. Based upon the record before us, defendant may have called plaintiff numerous times throughout the years, however I believe evidence of, at most, a single call during the applicable statute of limitations period cannot be sufficient to constitute an actual injury. While defendant’s conduct may have constituted a continuing wrong, plaintiff may not use calls placed more than four years ago as evidence to support harassment and actual injury. As noted by the majority, there is no existing caselaw interpreting section 75-52, and I believe we should not extend the application of Bryant and Waddle to incidents such as this where the evidence is lacking, and the plaintiff has failed to allege facts and forecast evidence sufficient to survive summary judgment.

As such, I would hold that plaintiff failed to allege that they suffered actual injury as a result of the defendant’s conduct, and thus the trial court acted properly in granting defendant’s motion for summary judgment on these claims.