Action on Account Stated
An account stated is a contract between parties whereby one agrees a certain total of money is owed to the other based upon prior transactions between them. The elements required to establish a successful action on an account stated are: (1) a calculation of the balance due; (2) Submission of a statement to defendant; (3) Acknowledgement of the correctness of the statement by the defendant; and (4) A promise, express or implied, to pay the balance due. Woodruff v. Shuford, 82 N.C. App. 260, 346 S.E.2d 173 (1986). The remedy for an action on account stated is the balance due plus any interest the court might direct.
Action for Money Had/Received
This action covers mistaken payments that unjustly enriches another person. Elements necessary to establish a claim for money had/received are: (1) the defendant has money in his or her hands that belongs to the plaintiff; and (2) in equity and good conscience, the defendant ought to pay that money to the plaintiff. Wilson v. Lee, 211 N.C. 434, 436, 190 S.E. 743, 743 (1937).
Misrepresentations and Fraud
North Carolina law protects an individual who justifiably and detrimentally relies on information prepared without reasonable care by another who owed a duty of care to the individual. The tort of negligent misrepresentation covers this situation. It is primarily a fraud-based claim and involves the making of a false assertion of a material fact. The elements required to establish a claim for negligent misrepresentation are: (1) the defendant supplied information to the plaintiff; (2) the defendant intended for the plaintiff to rely on that information; (3) the information was false; (4) the defendant failed to use reasonable care or competence in obtaining or communicating the information; (5) the plaintiff actually relied on the information; and (6) the reliance caused financial damage to the plaintiff. Taylor v. Gore, 161 N.C. App. 300, 588 S.E.2d 51 (2003), review denied, 358 N.C. 380, 597 S.E.2d 775 (2004) (to prove claim of negligent misrepresentation, plaintiffs must show, in course of business or other transaction in which individual has pecuniary interest, that defendants supplied false information for guidance of others without exercising reasonable care in obtaining or communicating information).
Constructive Fraud
A constructive fraud claim is based on a confidential or fiduciary relationship rather than a specific misrepresentation. That distinguishes constructive fraud from actual fraud. In addition, while the elements for constructive fraud often overlap with an action for breach of fiduciary duty, a claim for constructive fraud is a separate and distinct tort because a plaintiff must allege that there is a wrongful benefit conferred to defendant to establish a claim for constructive fraud. White v. Consol. Plan. Inc., 166 N.C. App. 283, 603 S.E.2d 147, 156 (2004) (affirming the elements for constructive fraud are: (1) a relationship of trust and confidence; and (2) the use of the relationship to the detriment of the plaintiff and the benefit of the defendant).
Breach of Fiduciary Duty
Hastings Law has experience with conflicts involving relationships of trust. That includes fiduciary litigation and ensuring the proper and faithful administration of trusts. North Carolina law holds those in a position of trust to a high standard with statutory duties.
Duty to Administer Trust: Pursuant to N.C. Gen. Stat. § 36C-8-801, “a trustee shall administer the trust in good faith upon acceptance of a trusteeship in accordance with the terms and purposes of the interests of the beneficiaries, in addition to in accordance with the North Carolina Uniform Trust Code.”
Prudent Administration: Pursuant to N.C. Gen. Stat. § 36C-8-804, “a trustee shall administer the trust as a prudent person would, by considering the purposes, terms, distributional requirements, and other circumstances of the trust. In satisfying this standard, the trustee shall exercise reasonable care, skill, and caution.”
Duty to Use Special Skills/Experience: Pursuant to N.C. Gen. Stat. § 36C-8-806, a trustee who has special skills or expertise, or is named trustee in reliance upon trustee’s representation that the trustee has special skills or expertise, shall use those special skills or expertise while in the administration of the trust and in the best interests of the beneficiary.
Breach of Fiduciary Duty: In order for a plaintiff to establish a prima facie case for breach of fiduciary duty, they must show (1) the existence of a fiduciary relationship; (2) that defendant breached the duty it owed them by virtue of that relationship; and (3) that said breach directly and proximately caused them to suffer damages.
Unfair Debt Collection
The North Carolina Debt Collection Act (N.C. Gen. Stat. §§ 75-50, et seq.) generally prohibits creditors from using unfair tactics to collect on a debt. The NCDCA works alongside its federal counterpart, the Fair Debt Collection Practices Act, and within the framework of North Carolina’s Unfair and Deceptive Trade Practices Act. A plaintiff must first establish three threshold elements to state a claim under the NCDCA: (1) the alleged obligation is a debt; (2) the claimant owing the obligation is a consumer; and (3) the party attempting to collect the obligation is a debt collector. If a plaintiff meets that threshold, then the court will consider whether the elements of a claim for unfair and deceptive trade practices are met: (1) unfair and deceptive practice; (2) in or affecting commerce; (3) that proximately causes plaintiff to incur injury.
Unfair and Deceptive Trade Practices
N.C. Gen. Stat. § 75-1.1 et seq. is the North Carolina Unfair and Deceptive Trade Practices Act. It declares "[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce" to be unlawful. It also forbids monopolies and any act, contract, combination in the form of trust, or conspiracy in restraint of trade or commerce which violates the principles of the common law. Its purpose was to create a private cause of action for consumers.
Elements necessary to establish a claim under the UDTPA are: (1) an unfair or deceptive act or practice, or unfair method of competition; (2) in or affecting commerce; and (3) that proximately caused actual injury to the plaintiff or his or her business. Cent. Carolina Bank & Trust Co. v. Sec. Life of Denver Ins. Co., 247 F. Supp. 2d 791, 799-800 (M.D.N.C. 2003); DaimlerChrysler Corp. v. Kirkhart, 148 N.C. App. 572, 561 S.E.2d 276 (2002).
A practice is unfair if it is unethical or unscrupulous, offending public policy and when it is substantially injurious to consumers. Meanwhile, the state Supreme Court has said "a practice is deceptive if it has the capacity or tendency to deceive; proof of actual deception is not required.” Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). Some acts or practices are per se unfair or deceptive because the legislature has deemed the violation of certain statutes to be violations of the unfair trade practices statute. They include as follows:
- Falsely obtaining, selling or soliciting telephone records;
- Filing or recording in a public record or a private record generally available to the public a false lien or encumbrance against the real or personal property of a public officer, a public employee, or an immediate family member of the public officer or public employee on account of the performance of the public officer or public employee's official duties.
- Ticket-purchasing software
- Selling or holding for sale certain packages of cigarettes
- Delay, refusal, or failure to deliver motor vehicles or motor vehicle parts or accessories in reasonable quantities after receipt of an order from a dealer having a franchise for the retail sale of any new motor vehicle
- Making certain "high-cost home" loans
- Making certain consumer home loans
- Statutory credit or charge card disclosure requirements
- Disclosure requirements for charge cards
- Certain violations of the Retail Installment Sales Act
- Statutory requirements for sale of an art print
- Execution by a real estate broker of a vacation rental agreement that does not conform to the Vacation Rental Act or failure to execute a vacation rental agreement
- Failure of a landlord to comply with statutory requirements for transfer of property subject to a vacation rental agreement
- Eviction of a tenant by a landlord or real estate broker pursuant to an expedited eviction proceeding under the Vacation Rental Act without a good faith belief that grounds for eviction exist
- Failure of the seller or issuer of a gift card to conspicuously disclose any maintenance fee charges at the time of purchase
- Denial of access to service by a cable service provider to any group of potential residential subscribers because of race or income
- Requirement that providers of cable service over a cable system comply with the customer service requirements of the Federal Communications Commission
- Business opportunities
- Loan brokers
- Prepaid entertainment contracts
- Discount buying clubs
- Rental referral agencies
- Rental car advertising and sales practices
- Credit Repair Services Act
- Membership Camping Act
Telephonic seller registration and bond requirements
- Truthful advertisements of the costs of servicing or repairing private passenger vehicles
- Prohibiting advertising, offering, or providing free insurance for damage, loss, or theft as an inducement to the purchase, sale, or rental of consumer goods or services
- Unsolicited checks to secure loans
- Improper use of the term "wholesale"
- Prohibiting excessive pricing during states of disaster
- Restricting municipality or other provider of water or sewer services from conditioning their services on electric services
- Regulating consumer rebates
- Prohibiting misrepresentation of the of the geographical location of a business supplying a perishable product
- Regulating solicitation of a fee in exchange for providing a copy of a record available at the register of deeds office
- Protecting social security numbers
- Allowing consumers to place a security freeze on their credit report
- Requiring consumer reporting agencies to place a protected consumer security freeze on a protected consumer's credit report or on a protected consumer's file
- Requiring businesses that maintain or possess personal information of a resident of North Carolina to take reasonable measures to protect against unauthorized access to, or use of, the information in connection with or after its disposal
- Requiring businesses to provide notice of a security breach to affected persons
- Prohibiting the sending of unsolicited advertisements to telephone facsimile machines
- Regulating foreclosure rescue transactions
- North Carolina Truth in Music Advertising Act
- Requiring that, prior to charging or collecting any fee or compensation from a consumer for obtaining, providing, or monitoring the consumer's credit report on behalf of the consumer, a credit monitoring service must provide a clear and conspicuous written description of a consumer's right to one free credit report per year pursuant to the federal Fair Credit Reporting Act
- Stated provisions of the Trademark Registration Act
- Representing oneself as a Certified Safety Professional or Associate Safety Professional when not authorized to do so
- Statutory protections against unfair debt collection practices
Products Liability
A plaintiff may base a products liability action on a breach of a contractual warranty.
A product liability action is "any action brought for or on account of personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formulation, development of standards, preparation, processing, assembly, testing, listing, certifying, warning, instructing, marketing, selling, advertising, packaging or labeling of any product." N.C.G.S. § 99B-1(3).
As such, an action for breach of implied warranty of merchantability under the Uniform Commercial Code is a "product liability action" within the meaning of the Products Liability Act when the action is for injury to person or property resulting from a sale of a product.
The elements necessary to establish a claim under the Products Liability Act are: (1) The goods bought and sold were subject to an implied warranty of merchantability; (2) The goods did not comply with the warranty in that the goods were defective at the time of sale; (3) The injury was due to the defective nature of the goods, and (4) Damages were suffered as a result. Goodman v. Wenco Foods, Inc., 333 N.C. 1, 10, 423 S.E.2d 444, 447 (1992).