                                   NO. COA13-1450
                        NORTH CAROLINA COURT OF APPEALS
                              Filed:    5 August 2014
4U HOMES & SALES, INC.,
     Plaintiff

                                                Mecklenburg County
    v.
                                                No. 13 CVD 8008

HELEN EVETTE MCCOY,
     Defendant


    Appeal by plaintiff and defendant from order entered 13

August 2013 by Judge Ty Hands in Mecklenburg County District

Court.    Heard in the Court of Appeals 23 April 2014.

    Leslie C. Rawls for Plaintiff.

    Legal Aid of North Carolina, Inc., by Chadwick H. Crockford
    & Isaac W. Sturgill, and Legal Services of Southern
    Piedmont, by Edward P. Byron, for Defendant.

    ERVIN, Judge.

    Plaintiff      4U    Homes    &    Sales,    Inc.,      and   Defendant   Helen

Evette McCoy appeal from a judgment entered by the trial court

rejecting     Plaintiff’s        request   that        Defendant    be    summarily

ejected     from   a    rental    house    owned       by   Plaintiff,     awarding

Defendant $3,705.00 in compensatory damages for breach of the

implied   warranty      of   habitability,       and    finding    in    Plaintiff’s

favor with respect to the unfair and deceptive trade practice

and unfair debt collection practice claims that Defendant had

asserted against Plaintiff.            On appeal, Plaintiff contends that
                                         -2-
(1) the trial court’s determination that Plaintiff had breached

the implied warranty of habitability lacked adequate evidentiary

support, (2) the trial court erred by determining that the fair

rental value of the home as warranted was $495.00 per month, and

(3) the trial court erred by failing to account for outstanding

rent    in   calculating     the   amount      of   damages    to   be   awarded    to

Plaintiff.       Defendant, on the other hand,                 contends     that the

trial    court     erred    by     determining       that     Defendant      had    not

established that she was entitled to relief on the grounds that

Plaintiff had engaged in unfair and deceptive trade and unfair

debt collection practices.              After careful consideration of the

parties’ challenges to the trial court’s order in light of the

record and the applicable law, we conclude that the trial court

lacked       jurisdiction     to    hear      Defendant’s      appeal       from    the

magistrate’s      judgment,      that   the    trial   court’s      order    must   be

vacated for lack of jurisdiction, and that this case must be

remanded to the Mecklenburg County District Court for further

remand to the magistrate for reinstatement of the magistrate’s

original judgment.

                            I. Factual Background

                             A. Substantive Facts

                            1. Plaintiff’s Evidence
                                        -3-
       Cynthia Exum and her husband, Larry Exum, created Plaintiff

in 1994 for the purpose of selling and leasing real property.

At any given point in time, Plaintiff held from ten to twelve

tracts of rental property.

       Defendant lived across the street from a property located

on    Reliance    Street,     which    Plaintiff          had   acquired     in      2010.

Although Defendant made inquiry of the Exums about renting the

property,    they     initially       declined       to     enter    into       such     an

arrangement with Defendant because they were not ready to rent

the   property.       More    specifically,         the    Exums    wanted      to     have

certain cosmetic work done             prior to renting             the property in

order to get a higher monthly rent.

       After asking about the property for a year, Defendant told

the Exums that she needed to rent the property given that she

was about to become homeless due to a pending eviction.                              As a

favor to Defendant, the Exums agreed to rent the property.                             Once

Defendant indicated that she could only afford to pay $350.00

per month in rent, the Exums accepted Defendant’s offer given

that, in their opinion, the property was in good condition and

the    amount    of    rent    that    Defendant          proposed       appropriately

reflected the property’s value.              For that reason, the Exums told

Defendant   that      she    could    rent    the    property       in    its    current
                                      -4-
condition for $350.00 or rent it for $650.00 after all repairs

had been completed.1

     After considering Plaintiff’s offer, Defendant entered into

a lease agreement with Plaintiff under which she agreed to rent

the property for $350.00 per month from 6 July 2011 until 31

July 2012.       In addition, consistently with Plaintiff’s routine

practice, the lease agreement between Plaintiff and Defendant

provided for the payment of a $25.00 late fee.             A comparison of

the property in question with five other nearby properties on a

per square foot basis indicated that the amount of rent that

Plaintiff charged Defendant was comparable to that charged for

other properties in the area.

     The Exums conducted a walkthrough with Defendant prior to

allowing   her    to   occupy   the   property.   During    that   process,

Defendant failed to find anything that would tend to render the

property unfit for human habitation.          A ruptured pipe found on

the premises was repaired before Defendant moved in.               Although

one of the windows was cracked, a replacement window was ordered

and installed after Defendant occupied the property.               Although




     1
      Although the Exums believed that the $350.00 amount
reflected the current value of the property, Ms. Exum asserted
that, if the home had simply been repainted and the carpet
replaced, the home’s rental value would have been $50.00 per
month higher.
                                   -5-
Defendant    acknowledged   that   the   home   was   “fit,”   she   also

indicated that it needed to be “fixed.”

       Any repair requests that Defendant made during the time

that she occupied the property were honored.          For example, when

Defendant made Mr. Exum aware in September 2011 that the hot

water heater needed repair, he ordered another one on the same

day.    In the course of fixing the water heater, Mr. Exum noticed

that someone had removed the fuse box cover and he made the

necessary repairs.      In March 2012, Defendant reported a loose

toilet to Mr. Exum.         After he removed the toilet, Mr. Exum

noticed that the subfloor did not suffice to support the toilet,

so he replaced and reattached the subfloor and related vinyl

tile.    In addition, the Exums repaired a broken storm door on

the same date.    All of these repairs were completed within a few

days of notification.

       Defendant was behind on her rent payments during the entire

lease period.     Although the Exums allowed her to make partial

payments, Defendant     never paid her rent on time.           Plaintiff

collected a $25.00 late fee from Defendant in February 2012.

The Exums declined to renew Defendant’s lease at the end of the

initial rental period and informed Plaintiff “from time to time”

that she would eventually need to move out.
                                       -6-
    In September 2012, Plaintiff initiated a summary ejectment

action against Defendant based upon her failure to make required

rental payments.       Although Plaintiff obtained a judgment against

Defendant,     the    Exums,    instead   of     taking   possession   of   the

property, informed Defendant that she would be evicted if she

failed    to   keep    her     rent   payments    current.     Subsequently,

Plaintiff forgave four late fees               that they were entitled to

assess against Defendant under the terms of the lease agreement.

However, Defendant failed to pay her rent for the following

month in a timely manner.

    In January of 2013, Defendant asked Mr. Exum to repair the

heater.    Two weeks later, the heater broke again.             Although the

Exums informed Defendant that they could come that Saturday to

make the needed repairs, Defendant never returned their phone

call.     As a result, Mr. Exum went by the home on the following

Monday to speak with Defendant and identify a time when he could

repair the heater.           However, Defendant replied that she would

not be home until Thursday and refused to allow Mr. Exum to

enter the premises in her absence.

    On Thursday, 7 February 2013, the building code inspector

inspected the home.          After the inspection had been completed,

Defendant gave Mr. Exum permission to fix the heater, a process

which Mr. Exum completed in thirty minutes.                  The Exums also
                                          -7-
spoke      with     the    inspector     after     the    inspection     had     been

completed.        On the same date, Plaintiff notified Defendant that

her month-to-month tenancy would be terminated and she would

have to vacate the property within 45 days.                   The Exums sent the

termination notice because of their belief that Defendant had

purposely blocked the making of the needed heater repair and

their conviction, in light of their experiences with Defendant,

that a continuing landlord-tenant relationship with her would

not   be    successful.          According    to   the    Exums,    Defendant    owes

$1,196.93 in past due rent.

      A week later, the Exums received an inspection report that

contained a list of code violations, with the unrepaired heater

being      listed    as    the   most   critical    violation.        Although    the

report asserted that there were no smoke detectors in the home,

such devices had been installed before Defendant occupied the

residence.        Even so, Mr. Exum installed new smoke detectors at

the   time    that    he    repaired    the     heater.     After    receiving    the

inspection report, the Exums called Defendant to schedule the

making of the necessary repairs.                   However, Defendant did not

answer their calls.              In spite of the fact that the parties’

lease agreement allowed the Exums to enter the premises in order

to make repairs, Defendant refused to allow Mr. Exum to enter
                                        -8-
the   home   or   to    take   photographs     of    it.      Instead,     Defendant

slammed the door on Mr. Exum’s foot and called her attorney.

      In April and May, Plaintiff communicated with Defendant’s

attorney     in   an    attempt    to   obtain      permission       to    enter   the

residence in order         to make      needed     repairs.        After    Defendant

obtained     a    new     attorney      in     June,       the     Exums     received

authorization to enter the residence and replaced the ceiling,

which was sagging, and the windowsills, which were decaying.

                           2. Defendant’s Evidence

      Defendant moved into the rental property in July 2011 and

made her last rent payment in March 2013.                    At the time of the

initial walkthrough, the home was dirty and smelled of animal

urine and feces.          In addition, the shower was dripping, the

toilet was loose and unstable, and there appeared to be a hole

in the floor in the vicinity of the toilet.                  Defendant requested

that all of these conditions be repaired.                        Finally, Defendant

informed the Exums that the ceiling appeared to be about to cave

in;   however,    the    ceiling     was     not    repaired      until    after   the

February 2013 inspection.          Although Defendant informed the Exums

that there were no smoke or carbon monoxide detectors in the

home immediately after occupying the premises, this deficiency

was not rectified until after the February 2013 inspection as
                                     -9-
well.     In spite of these problems, Defendant agreed to rent the

property for a monthly amount of $350.00.

      Defendant called the inspector in February of 2013.                The

only violation identified by the inspector of which Defendant

had not been previously aware was the fact that the breaker box

did   not   comply   with   the   applicable    building   code.    On   the

evening following the inspection, Mr. Exum called Defendant to

ask what violations had been identified.               Although    Mr. Exum

stated that he had already known what the inspector’s findings

would be, he indicated that the owner2 would not pay for the

needed repairs given that the monthly rent was only $350.00.

      According to Defendant, a monthly rental payment of $350.00

did not reflect the fair market value of the home given the

number of code violations that existed at the beginning of her

tenancy.     Had Defendant been aware of all of the code violations

identified by the inspector, she would have only agreed to a

$300.00 monthly rental payment.            Although Defendant was charged

a $25.00 late fee on multiple occasions and although the Exums

claimed to have only collected one late fee, Plaintiff’s ledger

indicated that a late fee of $17.50 had been collected on six

occasions.     The first portion of any payment that Defendant made

was applied to rent, with the remainder being attributed to any
      2
      According to Defendant, the Exums consistently maintained
that they did not own the property.
                                           -10-
outstanding       late     fee    amounts.         In    view     of     the    fact        that

Defendant consistently failed to pay her rent on time, the late

fee amounts that she was assessed were never actually collected.

                                 B. Procedural History

       On 18 March 2013, Plaintiff filed a complaint seeking to

have    Defendant        summarily       ejected    from     the       property       on    the

grounds    that    she     had    held    over     after    the    expiration         of    her

tenancy and the recovery of $750.00 in past due rent.                                      On 1

April 2013, Defendant filed an answer in which she denied the

material allegations of the complaint and asserted counterclaims

for breach of the implied warranty of habitability, charging

illegal rent, charging illegal fees, and engaging in unfair debt

collection and unfair and deceptive trade practices.                                    On 26

April   2013,      the    magistrate       entered      a   judgment          finding      that

Plaintiff’s       summary    ejectment       claim      should     be    dismissed          with

prejudice, that Defendant had proven all of the counterclaims

alleged    in     her    responsive       pleading,        and    that    Defendant         was

entitled to recover a rent abatement in the amount of $5,000.00,

which was the maximum that the magistrate could allow by law,

and attorney’s fees from Plaintiff.

       On 1 May 2013, Defendant noted an appeal to the District

Court     from    the     magistrate’s       judgment.            On     14    June        2013,

Plaintiff filed a reply to the Defendant’s counterclaims.                                    The
                                         -11-
case came on for hearing before the trial court, sitting without

a jury, at the 15 July 2013 civil session of the Mecklenburg

County    District     Court.      On    13   August    2013,     the    trial   court

entered    a   judgment    dismissing         Plaintiff’s    claim      for    summary

ejectment,     finding      in    Plaintiff’s        favor      with     respect    to

Defendant’s counterclaims for unfair debt collection and unfair

and deceptive trade practices, and awarding Defendant $3,705.00

in compensatory damages for Plaintiff’s breach of the implied

warranty of habitability.            Both parties noted appeals to this

Court from the trial court’s judgment.

                                II. Legal Analysis

       In its briefs, Plaintiff argues that the trial court erred

by   finding    that     Plaintiff      breached     the   implied      warranty   of

habitability,      overruling      Plaintiff’s       objection     to    Defendant’s

testimony concerning the value of the leased premises as of the

date upon which her occupancy began, improperly calculating the

amount    of   damages    that    should      be   awarded   to    Defendant,      and

failing to find that Plaintiff’s summary ejectment claim had

been    rendered   moot    by    Defendant’s       surrender      of    the   premises

while Defendant contends that the trial court erred by refusing

to determine that Plaintiff had engaged in unfair and deceptive

trade    and   unfair    debt    collection        practices.      As    an    initial

matter, however, we must determine whether the trial court had
                                        -12-
the authority to enter the order from which both parties have

appealed.

      “A   universal       principle    as   old    as   the      law   is      that    the

proceedings    of    a     court   without     jurisdiction        of     the    subject

matter are a nullity.”         Burgess v. Gibbs, 262 N.C. 462, 465, 137

S.E.2d 806, 808 (1964).             Put another way, “[s]ubject                   matter

jurisdiction is the indispensable foundation upon which valid

judicial decisions rest, and in its absence a court has no power

to act.”     In re T.R.P., 360 N.C. 588, 590, 636 S.E.2d 787, 790

(2006).     In addition, “subject matter jurisdiction may not be

waived, and this Court has not only the power, but the duty to

address the trial court’s subject matter jurisdiction on its own

motion or ex mero motu.”           Rinna v. Steven B., 201 N.C. App. 532,

537, 687 S.E.2d 496, 500 (2009).                Although filing an action in

the   District      Court    Division    that      should    be    brought       in     the

Superior    Court     Division     or   vice     versa      does    not      ordinarily

deprive the court in which the action is filed of subject matter

jurisdiction in the absence of               the existence of a statutory

provision giving one or the other of these two components of the

General     Court     of     Justice    exclusive        jurisdiction            over     a

particular type of claim, see N.C. Gen. Stat. § 7A-257 (stating

that the “[f]ailure of a party to move for transfer within the

time prescribed is a waiver of any objection to the division”;
                               -13-
Peoples v. Peoples, 8 N.C. App. 136, 143, 174 S.E.2d 2, 7 (1970)

(stating that “no order of the district court may be overturned

merely because it was not the proper division to          enter the

order”), the same is not true of actions filed in the small

claims court.

    At the time that this case was pending in the trial courts,

a small claim action was defined as a civil action where:

         (1)    The amount in controversy, computed in
                accordance with [N.C. Gen. Stat. §] 7A-
                243, does not exceed five thousand
                dollars ($5,000); and

         (2)    The only principal relief prayed is
                monetary, or the recovery of specific
                personal    property,    or   summary
                ejectment, or any combination of the
                foregoing in properly joined claims;
                and

         (3)    The plaintiff has requested assignment
                to a magistrate in the manner provided
                in this Article.

N.C. Gen. Stat. § 7A-210 (2011).3     However, N.C. Gen. Stat. §7A-

219 provides that:

         [n]o counterclaim, cross claim or third-
         party claim which would make the amount in
         controversy exceed the jurisdictional amount
         established by [N.C. Gen. Stat. §] 7A-210(1)
         is permissible in a small claim action
         assigned to a magistrate.   No determination
         of fact or law in an assigned small claim

    3
      The   General   Assembly  increased   the   jurisdictional
limitation applicable to small claims actions to $10,000 for all
actions filed on or after 1 August 2013. 2013 N.C. Sess. L. c.
159 s. 1 & 6.
                                            -14-
               action estops a party thereto in any
               subsequent action which, except for this
               section, might have been asserted under the
               Code of Civil Procedure as a counterclaim in
               the small claim action.       Notwithstanding
               [N.C. Gen. Stat. §] 1A-1, Rule 13, failure
               by a defendant to file a counterclaim in a
               small   claims    action   assigned    to   a
               magistrate, or failure by a defendant to
               appeal a judgment in a small claims action
               to district court, shall not bar such claims
               in a separate action.

Unlike N.C. Gen. Stat. § 7A-243, which establishes the amount in

controversy necessary to make an action “proper” in either the

District or Superior Court divisions, N.C. Gen. Stat. § 7A-219

absolutely      bars   the   consideration          of    claims   that   exceed    the

“jurisdictional        amount”    in    small      claims    court,   rendering     the

amount    in    controversy      applicable        to    actions   assigned   to    the

magistrate      jurisdictional         in    nature.        See    also   Fickley    v.

Greystone Enters., 140 N.C. App. 258, 261, 536 S.E.2d 331, 333

(2000) (noting that the “plaintiffs [sought] damages in excess

of $10,000, which exceeds the $3,000 jurisdictional amount in

small claim actions pursuant to the provisions of N.C. Gen.

Stat. § 7A-210(1)” in effect at that time).

    The proper treatment of cases filed in the small claims

court in which counterclaims, some of which may be compulsory,

seeking    damages      in   excess     of    the       jurisdictional    amount    are

asserted, has been a source of legislative concern as well.                          In

order to address this issue, the General Assembly gave litigants
                                   -15-
two options.     First, N.C. Gen. Stat. § 7A-220 provides that “the

judge shall allow appropriate counterclaims” “[o]n appeal from

the   judgment   of   the   magistrate    for   trial   de   novo   before   a

district judge.”4      Secondly, N.C. Gen. Stat. § 7A-219 provides

that, “[n]othwithstanding [N.C. Gen. Stat. §] 1A-1, Rule 13,

failure by a defendant to file a counterclaim in a small claims

action assigned to a magistrate, or failure by a defendant to

appeal a judgment in a small claims action to district court,




      4
      We suggested this approach in Fickley, in which the
defendant had filed two successful summary ejectment proceedings
against the plaintiffs.     Fickley, 140 N.C. App. at 259, 536
S.E.2d at 332.    Instead of appealing the magistrate’s decision
in the summary ejectment actions, the plaintiffs instituted a
separate action seeking damages for retaliatory eviction and
unfair trade practices in the Superior Court.       Id.   In the
Superior Court action, the defendant successfully asserted that
the plaintiffs’ claims constituted compulsory counterclaims that
were barred because they had not been asserted before the
magistrate.   Id. at 259-60, 536 S.E.2d at 333.    After agreeing
that    the    plaintiffs’     claims   constituted    compulsory
counterclaims, id. at 260-61, 536 S.E.2d at 333, we noted that
they could not have been properly asserted before the magistrate
because the amount in controversy exceeded the jurisdictional
limit applicable in small claims court actions. Id. at 261, 536
S.E.2d at 333-34. As a result of the compulsory nature of the
plaintiffs’ claims and the fact that they could have been
litigated in an appeal from the magistrate’s decision, we
determined that the plaintiffs’ claims were barred and affirmed
the trial court’s order.    Id. at 261-62, 536 S.E.2d at 333-34;
see also Cloer v. Smith, 132 N.C. App. 569, 575, 512 S.E.2d 779,
782 (1999) (holding that the correct course of action for a
defendant who wishes to assert a counterclaim that exceeds the
jurisdictional limit applicable to matters heard in the small
claims court was to “file [the] action, if at all, with her
appeal from the magistrate’s decision to the district court”).
                              -16-
shall not bar such claims in a separate action.”5   As a result, a

defendant in a summary ejection action who wishes to assert

counterclaims that have a value greater than the jurisdictional

amount applicable in small claims court6 may either assert their




     5
      Although we need not address the validity of this approach
given that it was not used in this instance, another possible
resolution of the problem discussed in the text of this opinion
might be a request that the entire case be transferred from the
small claims court to the District Court. N.C. Gen. Stat. § 7A-
257 (stating that “[a]ny party may move for transfer between the
trial divisions”); see also Stanback v. Stanback, 287 N.C. 448,
457, 215 S.E.2d 30, 37 (1975) (providing that, “[a]lthough the
case allocations of Chapter 7A are [mostly] administrative
directives, a party may move, as a matter of right, for transfer
of a case in accordance with the proper statutory allocation”).
     6
      According to N.C. Gen. Stat. § 7A-210(1), the amount in
controversy in small claims actions is computed in accordance
with N.C. Gen. Stat. § 7A-243. According to N.C. Gen. Stat. §
7A-243(2), “[w]here monetary relief is prayed, the amount prayed
for is in controversy unless the pleading in question shows to a
legal certainty that the amount claimed cannot be recovered
under the applicable measure of damages.”    As a result of the
fact that Defendant alleged in her counterclaims that she was
entitled to receive a $4,000.00 penalty for each of Plaintiff’s
violations of the Fair Debt Collection Practices Act pursuant to
N.C. Gen. Stat. § 75-55 and claims that “numerous” such
violations occurred, it is clear from that portion of
Defendant’s counterclaims, without considering her additional
claims for breach of the implied warranty of habitability,
retaliatory eviction, the charging of illegal rents and fees,
and unfair and deceptive trade practices, that the value of
Defendant’s counterclaims exceeded the applicable jurisdictional
amount.    Blitz v. Agean, Inc., 197 N.C. App. 296, 310, 677
S.E.2d 1, 10 (2009) (using a similar process to calculate the
value of certain claims that a plaintiff attempted to assert in
small claims court), disc. review denied, 363 N.C. 800, 690
S.E.2d 530, (2010).      The validity of this conclusion is
reinforced by the fact that the magistrate found that he or she
                                       -17-
claims on appeal to the District Court from an adverse decision

by the magistrate or assert those claims in an entirely separate

action.7       However, neither of these options was applicable in

this case since Plaintiff did not appeal from the magistrate’s

adverse decision against it, and Defendant, instead, elected to

assert       counterclaims     that    the     magistrate    found     exceeded

applicable jurisdictional limits in the small claims court and

then       attempted   to   appeal    the    magistrate’s   judgment    to   the

District Court despite the fact that the magistrate found in her

favor and awarded her everything that he could have possibly

awarded her.



could not award Defendant the full value of the claims that she
presented at the summary ejectment hearing.
       7
      In Holloway v. Holloway, __, N.C. App. __, __, 726 S.E.2d
198, 200 (2012), the defendant filed an unsuccessful summary
ejectment action against the plaintiff. Although the defendant
appealed from the judgment in the small claims court to the
District Court, the jury returned a verdict in favor of the
plaintiff on appeal as well. Id. In a subsequent damage action
that the plaintiff filed against the defendant, the defendant
claimed that the claims the plaintiff sought to assert should
have been brought before the District Court on the theory that
they were compulsory counterclaims.   Id. at __, 726 S.E.2d at
200-01. After noting the tension between the relevant statutory
provisions in cases that involved compulsory counterclaims that
were actually appealed from the small claims court to the
District Court, id. at __, 726 S.E.2d at 201-02, we held that,
since the claims that the plaintiff sought to assert in the
separate action had not been ripe at the time that the
magistrate’s judgment was appealed to the District Court, they
were not required to be asserted before the District Court at
that time. Id. at __, 726 S.E.2d at 202.
                                        -18-
       “After final disposition before the magistrate, the sole

remedy for an aggrieved party [to a small claims action] is

appeal for trial de novo before a district court judge or a

jury.”     N.C. Gen. Stat. § 7A-228(a).                   As a result, the only

party    entitled     to    invoke     the   District        Court’s   jurisdiction

following a decision by the magistrate in small claims court is

an    “aggrieved    party.”         Although       neither    this   Court    nor   the

Supreme Court has addressed the issue of what constitutes an

“aggrieved party” for purposes of N.C. Gen. Stat. § 7A-228(a),

the    Supreme   Court      has    defined     a    “person      aggrieved”   in    the

appellate context as a person “‘adversely affected in respect of

legal rights, or suffering from an infringement or denial of

legal rights.’”          In re Halifax Paper Co., 259 N.C. 589, 595, 131

S.E.2d    441,     446    (1963)     (quoting       3   C.J.S.    Aggrieved    §    333

(1936)).    As a result of the fact that Defendant submitted her

counterclaims for the magistrate’s consideration in small claims

court and received the maximum amount of relief available in

that forum, we are unable to see how any of her legal rights

were adversely affected.              Admittedly, as Defendant notes, “a

party who prevails at trial may appeal from a judgment that is

only partly in its favor or is less favorable than the party

thinks it should be.”             Casado v. Melas Corp., 69 N.C. App. 630,

635, 318 S.E.2d 247, 250 (1984) (citing New Hanover Cnty. v.
                                               -19-
Burton, 65 N.C. App. 544, 547, 310 S.E.2d 72 74 (1983), and

McCullock v. N.C. R.R. Co., 146 N.C. 316, 320, 59 S.E. 882, 884

(1907)).       However, this principal applies in situations in which

the court had the authority to grant the additional relief that

the plaintiff sought to obtain rather than in situations in

which the plaintiff requested the court to grant more relief

than   the     court      had    power    to    award.          In    addition,       Defendant

argues        that    Plaintiff’s         challenge          to       the   trial         court’s

jurisdiction over this case ignores the fact that a tenant is

required       to    assert      the     breach       of   the       implied    warranty       of

habitability         as   a     defense    in     the      summary      ejectment         action.

Patrick K. Hetrick & James B. McLaughlin, Webster’s Real Estate

Law in North Carolina § 6.04[3] (6th ed. 2012) (stating that a

“tenant who is in default in making rent payments can raise the

landlords’ breach of the statutory warranty of habitability by

way of recoupment, counterclaim, defense, or setoff”).                                   However,

Defendant’s argument overlooks the fact that the use of a breach

of   the      warranty     of    habitability         as    a     defense      in    a    summary

ejectment action does not preclude the assertion of that breach

as a counterclaim on appeal to the District Court for a trial de

novo     in    the    event      that     the     landlord           prevails       before    the

magistrate or in a separate action.                         As a result, neither of

Defendant’s attempts to explain why a party who pleads damages
                                         -20-
in excess of the amount available in a small claims action and

then obtains all of the relief that he or she is able to obtain

in the small claims court is an “aggrieved party” with standing

to seek additional relief on appeal to the District Court.

       As a result, the record clearly reflects that Defendant had

no standing to appeal the magistrate’s judgment in small claims

court.        In view of that fact, we have no choice except to

conclude that the District Court had no authority to hear and

decide    this    case,    a   determination          that     renders    the    District

Court’s       judgment    void,    requires          us   to    vacate    the    District

Court’s judgment, e.g., Hart v. Thomasville Motors, Inc., 244

N.C.    84,    90,   92   S.E.2d    673,    678       (1956)     (holding       that    “[a]

judgment is void, when there is a want of jurisdiction by the

court over the subject matter of the action”), and necessitates

a conclusion that the judgment entered by the magistrate was

never    properly     challenged.          As    a    result,     the    trial    court’s

judgment must be vacated and this case remanded to the District

Court    for    further    remand   to     the       small     claims    court    for    the

reinstatement of the magistrate’s judgment.

                                  III. Conclusion

       Thus, for the reasons set forth above, we conclude that the

trial court lacked jurisdiction over this case.                           As a result,

the trial court’s order should be, and hereby is, vacated and
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this case should be, and hereby is, remanded to the Mecklenburg

County District Court for further remand to the magistrate with

instructions   that   the   original   magistrate’s   judgment   be

reinstated.

    VACATED and REMANDED.

    Judges GEER and STEPHENS concur.
