Jones v. Harrelson & Smith Contractors, LLC

638 S.E.2d 222, 180 N.C. App. 478, 2006 N.C. App. LEXIS 2521

• Court: Court of Appeals of North Carolina
• Decided: December 19, 2006
• Docket: COA05-1183
• Status: Published

Opinions

TYSON, Judge.

Darvella Jones (“plaintiff’) appeals from order entered: (1) granting a directed verdict and dismissed plaintiffs unfair and deceptive trade practice claim; (2) granting Harrelson and Smith Contractors, LLC’s (“defendant”) motion for judgment notwithstanding the verdict on plaintiffs fraud and conversion claims; (3) denying plaintiffs request for specific findings of fact and conclusions of law; and (4) denying plaintiff’s unfair and deceptive trade practice claim based upon plaintiff’s conversion claim. We dismiss plaintiff’s appeal.

I. Background

In September 1999, Hurricane Floyd flooded portions of Eastern North Carolina. Following the hurricane, Pamlico County (“the County”) instituted a flood acquisition program that allowed the County to purchase property located in the 100 year flood plain. The County purchased a house from Ray and Virginia Respers (the “Respers”), located in the flood plain at 439 Jones Road in Vandemere, North Carolina. The County paid approximately the appraised value of $45,000.00 for the house.

The flood acquisition program included a demolition and clearance project that required removal of improvements located in the flood plain. The County solicited bids for the removal and/or demolition of houses purchased, which were located in the flood plain. During the bidding process, defendant submitted a demolition bid in the amount of $60,797.00. The County awarded and executed a contract with defendant to demolish or remove a group of houses, including the Respers’ former house.

The contract allowed defendant an option to salvage the houses scheduled for demolition, if the houses were severed from their current lots and relocated to lots outside the flood plain.

In August 2002, plaintiff purchased the Respers’ house from defendant’s agent John Harrelson (“Harrelson”) for $500.00. Harrelson told plaintiff the house must be moved, but failed to disclose the County’s contract requirement to relocate the house outside the flood plain. Plaintiff showed defendant a lot on Swan Point Road where she intended to relocate the house. Defendant recommended plaintiff contact defendant Rodney Turner (“Turner”) to move the house. Plaintiff paid Turner $4,300.00 to move her house from Jones Road to Swan Point Road.

On or about 20 September 2002, Pamlico County inspectors learned that plaintiffs and two other houses had been relocated from their original lots to other lots located inside the flood plain. The North Carolina Division of Emergency Management gave the County three possible ways to resolve this issue: (1) the houses could be removed to another location outside of the flood plain; (2) the houses could be demolished; or (3) the houses could be removed from the buyout program by reimbursement of the County for the full amount it had paid to the original owners.

The County informed defendant that the houses relocated to other lots in the flood plain violated the terms of the demolition and clearance contract, explained the three choices, and gave defendant a deadline: of 10 December 2002 to “complete corrective action.” The County later threatened legal action against defendant if the provisions of the contract were not performed.

Defendant met with plaintiff and informed her the Swan Point lot did not comply with the County’s contract. Defendant told plaintiff they had located a lot outside the flood plain on Water Street in Bayboro, North Carolina and offered to relocate her house at its expense. Defendant told plaintiff the lot owner had offered to sell the lot for $12,000.00, and defendant agreed to pay for the first two months. Plaintiff told defendant she did not want to live on Water Street. She contacted a realtor and began to make arrangements to purchase a lot in the Town of Reelsboro and move the house there. On 5 December 2002, plaintiff provided defendant with written certification that the Reelsboro lot was outside the flood plain.

On 6 December 2002, four days before the County’s deadline, defendant hired Turner to move plaintiff’s house from her Swan Point lot to the Water Street lot that defendant had rented at its own expense. Defendant acknowledged at trial that plaintiff never gave permission to move the house, but testified defendant was under pressure from the County to bring the contract into compliance by 10 December 2002. Plaintiff discovered her house had been moved on her drive to work.

On 9 December 2002, defendant sent a letter to the County which requested payment on its contract with the County and stated: “Please consider this request and its urgency because [defendant] has incurred considerable expense in trying to resolve these issues.” The County was not satisfied because “the house was still in a potential movable position, still had steel underneath of it, . . . and could still easily be moved back into the flood zone.”

On 13 January 2003, defendant’s attorney sent a letter to plaintiffs attorney, which requested, “that your client make satisfactory arrangements for governmental approval of the location of this house by securing approval at its current location, by moving it to an appropriate location, or otherwise, putting the controversy to rest before January 29, 2003.” The letter also stated that “[a]bsent governmental approval, [defendant] must have the house removed by February 6, 2003. The time period between January 29, 2003, and February 6, 2003 will be used to raze the house if your client fails to make arrangements as set forth above.” Plaintiff or her counsel failed to respond. Defendant demolished the house where it sat on the Water Street lot on 4 February 2003.

On 10 November 2003, plaintiff filed a complaint against defendant and defendant Rodney Turner d/b/a Rodney S. Turner House-movers, asserting claims for fraud, negligent misrepresentation, conversion, and unfair and deceptive trade practices (“UDTP”). Defendant filed an answer on 20 January 2004. After Turner failed to file an answer and made no appearance, plaintiff obtained an entry of default on 2 March 2004.

Both plaintiff and defendant unsuccessfully moved for summary judgment, and the case was set for trial in February 2005. Defendant moved to bifurcate the compensatory and punitive damages stages of the trial, pursuant to N.C. Gen. Stat. § ID-30. At the conclusion of plaintiffs evidence in the liability phase of the trial, defendant moved for a directed verdict on all issues. The trial court denied defendant’s motion, and the case proceeded with defendant’s evidence.

At the close of all the evidence, the trial court denied defendant’s renewed motion for a directed verdict. At that time, plaintiff voluntarily dismissed her negligent misrepresentation claim, leaving her claims for fraud, conversion, and UDTP before the court. During the charge conference, however, the trial judge stated that he was revisiting his decision on defendant’s motion for a directed verdict and granted that motion with respect to plaintiff’s UDTP claim.

Plaintiff’s claims for fraud and conversion were submitted to the jury. The verdict sheet returned by the jury read as follows:

We, the jury, by unanimous verdict, find as to the Issues as follows:

ISSUE ONE: Was the plaintiff damaged by the fraud of the Defendant? Answer: Yes

ISSUE TWO: What amount of damages is the Plaintiff entitled to recover? Answer: $31,815

ISSUE THREE: Did the Defendant convert the house relocated at Swan Point Road by the Plaintiff? Answer: Yes

ISSUE FOUR: Did the Plaintiff abandon the home? Answer: No

ISSUE FIVE: What amount is the Plaintiff entitled to recover for the damages for the conversion of the property of the Plaintiff? Answer: $30,000

Defendant moved: (1) for judgment notwithstanding the verdict (“JNOV”) as to both claims; (2) for “judgment as a matter of law on the issue of punitive damages;” or (3) in the alternative, for a new trial on all issues. The trial court orally granted defendant’s motion for JNOV, dismissing the fraud claim, but denied defendant’s motion regarding the conversion claim. The court also entered judgment for defendant dismissing plaintiff’s claim for punitive damages and denied both defendant’s and plaintiff’s motions for a new trial.

On 18 March 2005, plaintiff filed a motion pursuant to N.C.R. Civ. P. 52(a)(2) and requested the trial court make specific findings of fact and conclusions of law with respect to its rulings. The court denied plaintiff’s motion and, instead, on 10 May 2005, entered a short judgment, specifying the jury’s verdict, setting forth the court’s rulings on the parties’ various motions, and entered judgment in favor of plaintiff in the amount of $30,000.00. Plaintiff appeals.

II. Defendant’s Motion to Dismiss the Appeal

Defendant has filed a motion to dismiss plaintiff’s appeal as interlocutory on the grounds the default judgment against Turner was not entered until after plaintiff had appealed to this Court. “An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy” Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Defendant is correct that, at the time of plaintiff’s notice of appeal, her appeal was interlocutory. Plaintiff’s notice of appeal was filed 1 June 2005, and the default judgment was not entered until 8 December 2005. Plaintiff’s claims against Turner were still pending at the time of her appeal.

Although the appeal was interlocutory at the time it was filed, judgment has since been entered against Turner, leaving nothing to be resolved at the trial court. In such circumstances, we have ruled:

the interests of justice would be furthered by hearing the appeal. All claims and judgments are final with respect to all the parties, and there is nothing left for the trial court to determine. Therefore, the rationale behind dismissing interlocutory appeals, the prevention of fragmentary and unnecessary appeals, does not apply in this case. In fact, any delay on our part would impede, rather than expedite, the efficient resolution of this matter.

Tarrant v. Freeway Foods of Greensboro, Inc., 163 N.C. App. 504, 508, 593 S.E.2d 808, 811 (case not dismissed as interlocutory when plaintiff took voluntary dismissal of remaining claims pending in the trial court after giving notice of appeal but before case was heard in the Court of Appeals), disc. rev. denied, 358 N.C. 739, 605 S.E.2d 126 (2004). We deny defendant’s motion to dismiss plaintiff’s appeal as interlocutory.

III. Assignments of Error Numbered 1 through 5

Plaintiff’s assignments of error numbered 1 through 5 state:

1. Did. the Trial Court, . . . err in . . . granting, . . . the defendant’s prior Motion for Directed Verdict on the plaintiff’s unfair and deceptive trade practice claim . .. ?

2. [D]id the Trial Court err:

(a) by . . . granting defendant’s Motion for Judgment Notwithstanding the Verdict as to the fraud claim and award of compensatory damages; and

(b) by considering and allowing the defendant’s Motion to dismiss plaintiff’s claim for punitive damages for conversion!?]

3. Did the Trial Court err by refusing to make specific findings of fact and conclusions of law in its Judgment and order addressing the rulings on the defendant’s Motion for Directed Verdict, Judgment Notwithstanding the verdict, and plaintiff’s request to find the conversion by the defendants of plaintiff’s house to be an unfair and deceptive trade practice after plaintiff had specifically moved, pursuant to North Carolina Rules of Civil Procedure 52(a)(2) and N.C. General Statute § ID-50, for such findings?

4. Did the Trial Court err by refusing to find the conversion of plaintiffs house by the defendant, in commerce, to be an unfair and deceptive trade practice, as a matter of law, and refusing to award treble damages and consider plaintiffs request for attorney’s fees?

5. Did the Trial Court err by refusing to award, in its judgment, interest from the date of the conversion of the plaintiffs house?

(Emphasis supplied).

A. Appellate Rule Violations

The scope of appellate review is limited to issues presented by an assignment of error in the record on appeal. N.C.R. App. P. 10(a) (2006); see State v. Trull, 349 N.C. 428, 438, 509 S.E.2d 178, 186 (1998) (the appellant failed to preserve issue when the appellant failed to assign error), cert. denied, 528 U.S. 835, 145 L. Ed. 2d 80 (1999); see also State v. Johnson, 320 N.C. 746, 754, 360 S.E.2d 676, 681 (1987) (the appellant failed to preserve an issue without an assignment of error).

1. Failure to State Legal Basis for Error

Under Rule 10 of the North Carolina Rules of Appellate Procedure, “[e]ach assignment of error shall, ... be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned.” N.C.R. App. P. 10(c)(1) (2006) (emphasis supplied); see State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (even though the defendant objected to the admission of certain evidence at trial, when he did not assign error to the admission of this evidence, the appellate court could not review this issue), disc. rev. denied, 358 N.C. 734, 601 S.E.2d 866 (2004). “[Assignments of error [that are]... broad, vague, and unspecific ... do not comply with the North Carolina Rules of Appellate Procedure.” Walker v. Walker, 174 N.C. App. 778, 781, 624 S.E.2d 639, 641 (2005) (quoting In re Appeal of Lane Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002)), disc. rev. denied, 360 N.C. 491, 632 S.E.2d 774 (2006); see Stann v. Levine, 180 N.C. App. 1, 5, 636 S.E.2d 214, 217 (2006) (The appellant’s assignment of error violated Appellate Rule 10(c)(1) when it stated the trial court “commit[ted] reversible error by dismissing the action of the plaintiff for lack of jurisdiction.”); Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988) (where the plaintiff assigned error to the denial of her motion to set aside the jury’s' verdict without stating the grounds upon which the errors were assigned, the plaintiffs exceptions were deemed abandoned); State v. Hart, 179 N.C. App. 30, 38-09, 633 S.E.2d 102, 107-08 (2006) (assignment of error that challenged testimony “otherwise violated the N.C. Rules of Evidence” was “broad, vague, and unspecific, and [failed] to identify the issues on appeal”).

The dissenting opinion’s reliance on Ellis v. Williams, 319 N.C. 413, 355 S.E.2d 479 (1987) is misplaced. In Ellis, our Supreme Court held that “Rule 10(a) of the North Carolina Rules of Appellate Procedure [does not require] a party against whom summary judgment has been entered to place exceptions and assignments of error into the record on appeal.” 319 N.C. at 413, 355 S.E.2d at 480 (emphasis supplied). Ellis is inapplicable to plaintiffs appeal. Plaintiff appeals from a JNOV, and her appeal must comply with the Rules of Appellate Procedure. Neither this Court nor our Supreme Court has ever applied the reasoning in Ellis to appeals from directed verdicts or judgments notwithstanding the verdict. Plaintiff, as appellant, is not exempted from the Appellate Rule requirement to “state plainly, concisely and without argumentation the legal basis upon which error is assigned.” N.C.R. App. P. 10(c)(1); see Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360, 360 (2005) (failure to follow the Rules of Appellate Procedure will subject an appeal to dismissal). “It is elementary that this Court is bound by holdings of the Supreme Court.” Rogerson v. Fitzpatrick, 121 N.C. App. 728, 732, 468 S.E.2d 447, 450 (1996). The dissenting opinion erroneously extends precedent applicable only to a summary judgment to appeals from a directed verdict and judgment notwithstanding the verdict, and fails to cite any authority to support this extension.

2. Clear and Specific Record or Transcript References

Under Appellate Rule 10, “[a]n assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.” N.C.R. App. P. 10(c)(1) (emphasis supplied). In Walsh v. Town of Wrightsville Beach Bd. of Alderman, this Court dismissed the petitioner’s appeal when the only assignment of error in the record on appeal failed to reference the record or transcript in violation of Rule 10(c)(1). 179 N.C. App. 97, 99, 632 S.E.2d 271, 272-73 (2006). An assignment of error violates Appellate Rule 10(c)(1) if it does not: (1) state “without argumentation;” (2) specify the “legal basis upon which error is assigned;” and (3) “direct the attention of the appellate court to the particular error about which the question is made, with clear and specific transcript references.” Bustle v. Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 10-11 (1994). The. purpose of an assignment of error is to limit the scope of the appeal, N.C.R. App. P. 10(a), and to put the other party on notice of the issues to be presented. Broderick v. Broderick, 175 N.C. App. 501, 502-03, 623 S.E.2d 806, 807 (2006).

3. Substantial Compliance

The dissenting opinion’s argument that substantial compliance precludes dismissal is misplaced and contrary to binding precedent. As noted above, “[i]t is elementary that this Court is bound by holdings of the Supreme Court.” Rogerson, 121 N.C. App. at 732, 468 S.E.2d at 450.

“Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the. same court is bound by that precedent, unless it has been overturned by a higher court.” In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). “While ... a panel of the Court of Appeals may disagree with, or even find error in, an opinion by a prior panel and may duly note its disagreement or point out that error in its opinion, the panel is bound by that prior decision until it is overturned by a higher court.” State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004). The dissenting opinion’s approach contradicts our Supreme Court’s holding in Viar, and this Court’s multiple precedents applying Viar.

“The North Carolina Rules of Appellate Procedure are mandatory and ‘failure to follow these rules will subject an appeal to dismissal.’ ” Viar, 359 N.C. at 402, 610 S.E.2d at 360 (quoting Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299 (1999)). “It is not the role of the appellate courts ... to create an appeal from an appellant,” and that if violations of the Rules of Appellate Procedure are overlooked by invoking Rule 2, “the Rules become meaningless.” Stann, 180 N.C. App. at 4, 636 S.E.2d at 216 (quoting Viar, 359 N.C. at 402, 610 S.E.2d at 361). “ ‘[T]his Court may not review an appeal that violates the Rules of Appellate Procedure even though such violations neither impede our comprehension of the issues nor frustrate the appellate process.’ ” Id. (quoting State v. Buchanan, 170 N.C. App. 692, 695, 613 S.E.2d 356, 357 (2005)). “[T]he lack of an ... assignment of error addressed to the issue attempted to be raised is a fatal defect.” State v. Smith, 50 N.C. App. 188, 190, 272 S.E.2d 621, 623 (1980).

B. Analysis

Plaintiff failed to state any legal basis for her assignments of error numbered 1 through 5, inclusive. N.C.R. App. P. 10 (c)(1); see Hart, 179 N.C. App. at 37, 633 S.E.2d at 107 (issue not addressed when assignment of error stated the challenged testimony “otherwise violated the N.C. Rules of Evidence” because the assignment of error was “broad, vague, unspecific, and [failed] to identify the issues on appeal”). Plaintiff’s broad and vague assignments of error fail to comply with the Rules of Appellate Procedure. Walker, 174 N.C. App. at 781, 624 S.E.2d at 641; see Walsh, 179 N.C. App. at 98, 632 S.E.2d at 272-73 (appeal dismissed when the petitioner’s only assignment of error in the record on appeal lacked references to the record or transcript).

In her assignments of error, plaintiff failed to cite any record page reference to the order she purports to appeal from and failed to comply with the Rules of Appellate Procedure. N.C.R. App. P. 10(c)(1).

Plaintiff’s broad assignments of error and her failure to reference the specific record pages to the order she purports to appeal from require dismissal of her appeal. These assignments of error are not properly before us and are dismissed.

IV. Assignments of Error Numbered 6 and 7

Plaintiff’s assignments of error numbered 6 and 7 state:

6. Did the Court err in precluding the plaintiff/owner, Darvella Jones, from testifying as to her opinion of the fair market value of her house on the date of conversion by the defendants?

7. Did the Trial Court err in precluding the building inspector, Skip Lee, from testifying as to his opinion of the value of the plaintiff’s house, prior to the date of conversion by the defendants?

Plaintiff failed to argue or present any reasons or authority in support of these two assignments of error in her brief. “Assignments of error ... in support of which no reason or argument is stated or authority cited, will be taken as abandoned.” N.C.R. App. P. 28(b)(6) (2006); see State v. Walters, 357 N.C. 68, 85-86, 588 S.E.2d 344, 354-55 (a party’s assignment of error is deemed abandoned in the absence of citation to supporting authority), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003). Plaintiff abandoned her assignments of error numbered 6 and 7 by failing to state her reasons or argument or cite to any authority in support thereof.

V. Conclusion

Plaintiffs assignments of error numbered 1 though 5 are not properly before this Court pursuant to Appellate Rule 10(c). Plaintiffs assignments of error numbered 6 and 7 are not argued and are abandoned pursuant to Appellate Rule 28(b)(6). No assignment of error asserted in plaintiffs appeal is properly before us.

The dissenting opinion’s arguments are the same arguments set forth in the dissenting opinion in Stann, 180 N.C. App. at 14, 636 S.E.2d at 222. This Court’s majority opinion in Stann is binding upon later cases. See In the Matter of Appeal from Civil Penalty, 324 N.C. at 384, 379 S.E.2d at 37 (“Where a panel of the Court of Appeals has decided the same issue ... a subsequent panel of the same court is bound by that precedent.”); Jones, 358 N.C. at 487, 598 S.E.2d at 134 (“the [subsequent] panel is bound by [the prior panel’s] prior decision until it is overturned by a higher court.”). The dissenting opinion fails to follow the binding precedent set forth in Stann. “[A]d hoc application of the rules, with inconsistent and arbitrary enforcement, could lead to allegations of favoritism for one counsel over another.” Stann, 180 N.C. App. at 6-7, 636 S.E.2d at 217. We are bound to follow the binding precedent set forth in Viar and this Court’s multiple cases applying Viar. Plaintiff failed to preserve any further issues for appellate review. Plaintiffs appeal is dismissed.

Dismissed.

Judge JACKSON concurs. Judge GEER dissents by separate opinion.