Ismail v. Hussein

Opinions

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA25-1064

Filed 20 May 2026

Dare County, No. 24CV001493-270

MISHAEL LATIF HUSAIN ISMAIL and CHADMAN ALI RAFINO, Plaintiffs,

v.

AHMED LAFEET HUSSEIN, Defendant.

Appeal by Defendant from judgment entered 9 June 2025 by Judge Wayland

J. Sermons, Jr., in Dare County Superior Court. Heard in the Court of Appeals 22

April 2026.

Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis, for Plaintiffs- Appellees.

Sharp, Graham, Baker & Varnell, L.L.P., by Casey C. Varnell, for Defendant- Appellant.

GRIFFIN, Judge.

Defendant Ahmed Lafeet Hussein appeals from a judgment requiring

conveyance of real property to Plaintiff Mishael Latif Husain Ismail. Defendant

argues the evidence Plaintiffs Ismail and Chadman Ali Rafino presented at trial was

insufficient to support the jury’s verdict as a matter of law. We decline to review

Opinion of the Court

Defendant’s argument pursuant to Rules 2 and 10 of the North Carolina Rules of

Appellate Procedure after Defendant’s failure to preserve the issue at trial.

I. Facts and Procedural History

Plaintiffs and Defendant are brothers who immigrated to the United States

and now live in Kill Devil Hills, North Carolina. Plaintiffs and Defendant own and

operate a series of Subway franchises in the Outer Banks. Plaintiff Rafino used his

earnings from this joint business venture to purchase real property located at 1722

Aztec Street, Kill Devil Hills (the “Aztec Property”), on 4 February 2000. Plaintiff

Ismail subsequently moved into the Aztec Property. Before 2004, Plaintiff Rafino

purchased and moved into a second property located at 603 Canal Drive, Kill Devil

Hills (the “Canal Property”). After the purchase, Plaintiff Ismail continued living in

the Aztec Property.

In or about August 2004, Plaintiff Rafino sought to refinance the mortgage on

the Canal Property. As part of a deal to accomplish this goal, Plaintiff Rafino

conveyed the Aztec Property to Defendant because Defendant’s credit rating was

better. The parties orally agreed the Aztec Property would be held by Defendant for

the sole use and benefit of Plaintiff Ismail.1

Around 2010, the parties could no longer effectively operate the joint business

venture. Plaintiffs agreed to sell one Subway franchise to Defendant, and Defendant

1 Defendant wholly denies the existence of this agreement but does not contest such an agreement

would have been oral in nature.

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agreed to allow Plaintiff Ismail to remain in the Aztec Property. In 2021, Plaintiff

Ismail requested Defendant convey the Aztec Property to Plaintiff Ismail via recorded

deed. Defendant refused. Plaintiffs commenced an action in Stokes County Superior

Court to compel Defendant to convey the Aztec Property to Plaintiff Ismail.

The matter went to trial on 27 May 2025. At the close of Plaintiffs’ evidence,

Defendant moved to dismiss pursuant to the statute of frauds and for the

insufficiency of Plaintiffs’ evidence. Defendant failed to renew these motions at the

close of all evidence. The jury found, by clear, strong, and convincing evidence, the

Aztec Property was subject to a constructive trust for Plaintiff Ismail. The trial court

ordered the Aztec Property be conveyed to Plaintiff Ismail and that the order be

recorded in the Register of Deeds of Dare County. Defendant timely appeals.

II. Analysis

Defendant argues the trial court erred as a matter of law by imposing a

constructive trust over the Aztec Property. Defendant recognizes he failed to preserve

this issue under Rule 10 of the North Carolina Rules of Appellate Procedure,

specifically by failing to renew his motion to dismiss for insufficient evidence at the

close of all evidence and by failing to move for judgment notwithstanding the jury’s

verdict. Despite these defects, Defendant argues real property is so significant that

related appellate disputes warrant this Court’s invocation of Rule 2. Plaintiffs

respond the Rules are mandatory, and failure to follow the Rules mandates dismissal

of appeal.

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For an appellant to preserve an issue for appeal, he must raise the issue before

the trial court and the trial court must rule on the issue. N.C. R. App. P. 10(a)(1). An

issue that is not timely raised is considered waived and cannot be raised on appeal.

Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 195–96, 657

S.E.2d 361, 364 (2008). Rule 10 “prevent[s] unnecessary new trials caused by errors

. . . that the court could have corrected if brought to its attention at the proper time.”

Wall v. Stout, 310 N.C. 184, 188–89, 311 S.E.2d 571, 574 (1984).

“The appellate courts of this state have long and consistently held that the . . .

Rules of Appellate Procedure[] are mandatory and that failure to follow these rules

will subject an appeal to dismissal.” Steingress v. Steingress, 350 N.C. 64, 65, 511

S.E.2d 298, 299 (1999) (citations omitted). “[N]oncompliance with the [Rules] does

not, ipso facto, mandate dismissal of an appeal. Whether and how a court may excuse

noncompliance with the [R]ules depends on the nature of the default.” Dogwood, 362

N.C. at 194, 657 S.E.2d at 363 (internal citation omitted).

This Court may, at its discretion, suspend or vary the requirements or

provisions of the Rules to prevent manifest injustice to a party. N.C. R. App. P. 2.

This Court has recognized manifest injustice where the trial court made an erroneous

assumption regarding a matter of law. See Potter v. Homestead Pres. Ass’n, 330 N.C.

569, 576, 412 S.E.2d 1, 5 (1992) (holding manifest injustice warranted invocation of

Rule 2 in a case where constructive trust of mutual property was an available

remedy). Application of Rule 2 must be done cautiously—the circumstances must be

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exceptional, and the issues must be of significant importance to the public interest.

State v. Hart, 361 N.C. 309, 315–16, 644 S.E.2d 201, 205 (2007). Rule 2 is often

invoked in circumstances when a substantial right is affected. State v. Sanders, 312

N.C. 318, 320, 321 S.E.2d 836, 837 (1984). The exercise of discretion to invoke Rule

2 “should only be undertaken with a view toward the greater object of the rules.”

Hart, 361 N.C. at 316, 644 S.E.2d at 205.

Here, Defendant is challenging the sufficiency of Plaintiffs’ evidence.

Defendant failed to renew his objection to the sufficiency of Plaintiffs’ evidence during

trial, failed to object to the jury’s verdict thereafter, and concedes that he waives this

issue for failure to preserve the issue at trial. However, Defendant now requests this

Court to invoke Rule 2 “to prevent manifest injustice[.]” Plaintiffs respond “there is

nothing in the record or in [Defendant’s] Brief that any way demonstrates ‘any

exceptional circumstances to suspend or vary the [R]ules in order to prevent manifest

injustice to a party or to expedite decisions in the public interest.’” We agree.

Though the trial court gave no explanation for denying the motion to dismiss,

the decision was well within the court’s discretion and likely not erroneous as a

matter of law. See Potter, 330 N.C. at 576, 412 S.E.2d at 5; see also Overman v. Gibson

Prods. Co. of Thomasville, Inc., 30 N.C. App. 516, 519, 227 S.E.2d 159, 161 (1976)

(stating motions to dismiss should be judged in the light of the case as it stands at

that time). Defendant’s subsequent failure to renew his motion waives the issue on

appeal. N.C. R. App. 10(a)(1). We decline to invoke Rule 2 in this case.

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III. Conclusion

We do not find Defendant’s arguments sufficiently persuasive for review under

Rule 2.

DISMISSED.

Judges ZACHARY and FREEMAN concur.

Report per Rule 30(e).

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