North Carolina Concrete Finishers, Inc. v. North Carolina Farm Bureau Mutual Insurance

688 S.E.2d 534, 202 N.C. App. 334, 2010 N.C. App. LEXIS 193
CourtCourt of Appeals of North Carolina
DecidedFebruary 2, 2010
DocketNo. COA09-687
StatusPublished
Cited by12 cases

This text of 688 S.E.2d 534 (North Carolina Concrete Finishers, Inc. v. North Carolina Farm Bureau Mutual Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
North Carolina Concrete Finishers, Inc. v. North Carolina Farm Bureau Mutual Insurance, 688 S.E.2d 534, 202 N.C. App. 334, 2010 N.C. App. LEXIS 193 (N.C. Ct. App. 2010).

Opinion

BEASLEY, Judge.

Plaintiff (North Carolina Concrete Finishers, Inc., d/b/a S&R Concrete) appeals from judgment on the pleadings entered in favor of Defendant (North Carolina Farm Bureau Mutual Insurance Company). We affirm.

Plaintiff is a North Carolina corporation. In 2008 Plaintiff purchased from Defendant “an Inland Marine Policy insuring a 2006 Bobcat Track Loader” that “provided coverage for the Track Loader [336]*336effective March 30, 2008 through March 30, 2011[.]” In July 2008 Plaintiff filed a claim under the policy for damages to the Bobcat. The parties agree that the policy was in effect on 17 July 2008, the date that Plaintiff alleges the Loader was damaged, and that the “perils covered” under the policy include, in relevant part, coverage for “direct physical loss to covered property caused by . . . Flood. This means the overflow of a river, stream or other body of water.” However, the parties disagree about whether the policy coverage for damage caused by “flood” includes the factual circumstances alleged by Plaintiff.

Defendant denied Plaintiff’s claim, and on 15 September 2008 Plaintiff filed suit against Defendant, alleging breach of contract and seeking damages. Defendant answered on 18 November 2008, denying the material allegations of Plaintiff’s complaint, asserting a counterclaim for declaratory judgment, and moving for judgment on the pleadings. On 13 March 2009 Plaintiff moved to amend its complaint. Following a hearing on Defendant’s motion for judgment on the pleadings, the trial court on 18 March 2009 entered an order granting judgment on the pleadings for Defendant. From this order, Plaintiff appeals.

Standard of Review

Defendant appeals from an order granting judgment on the pleadings. “A motion for judgment on the pleadings is authorized by Rule 12(c) of the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 12(c) [2009]. ‘The rule’s function is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit.’ ” Garrett v. Winfree, 120 N.C. App. 689, 691, 463 S.E.2d 411, 413 (1995) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974)). Judgment on the pleadings is properly entered only if “all the material allegations of fact are admitted[,] . . . only questions of law remain” and no question of fact is left for jury determination. Ragsdale, 286 N.C. 137, 209 S.E.2d at 499.

“In deciding such a motion, the trial court looks solely to the pleadings. The trial court can only consider facts properly pleaded and documents referred to or attached to the pleadings.” Reese v. Mecklenburg County, -N.C. App. -, -, 685 S.E.2d 34, 37-38 (2009) (citing Wilson v. Development Co., 276 N.C. 198, 206, 171 S.E.2d 873, 878 (1970)). “This Court reviews de novo a trial court’s ruling on motions for judgment on the pleadings. Under a de novo standard of review, this Court considers the matter anew and freely [337]*337substitutes its own judgment for that of the trial court.” Reese, — N.C. App. at-, 685 S.E.2d at 38 (citing Toomer v. Branch Banking & Trust Co., 171 N.C. App. 58, 66, 614 S.E.2d 328, 335 (2005)).

Scone of Review

The trial court entered judgment on the pleadings on 18 March 2009, and Plaintiff filed notice of appeal on 1 April 2009. Plaintiff served Defendant with its proposed Record on Appeal on 20 April 2009. On 22 May 2009 the parties “stipulate[d] that the documents submitted to the court constitute the full and complete Record on Appeal to the North Carolina Court of Appeals in this action.” Plaintiff filed its appellant brief in this Court on 13 July 2009. Plaintiff attached to its brief two documents that are not part of the record: (1) a copy of an unfiled memorandum prepared by the trial court, and (2) photocopies of two photographs. On 11 August 2009 Defendant filed a “Motion to strike documents improperly attached to plaintiff-appellant’s brief.” Defendant argues that Plaintiff violated N.C. R. App. P. 9, 11, and 28 of the North Carolina Rules of Appellate Procedure by attaching documents that “were not a part of the Record on Appeal which was settled between the parties.” We agree.

N.C. R. App. P. 9 provides in relevant part:
(a) In appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, . . . and any [other] items filed with the record on appeal pursuant to Rule 9© and 9(d). Parties may cite any of these items in their briefs and arguments before the appellate courts.

“Pursuant to the North Carolina Rules of Appellate Procedure, our review is limited to the record on appeal. .. and any other items filed with the record in accordance with Rule 9(c) and 9(d).” Kerr v. Long, 189 N.C. App. 331, 334, 657 S.E.2d 920, 922 (2008).

The Court of Appeals can judicially know only what appears of record. . . . Matters discussed in a brief but not found in the record will not be considered by this Court. It is incumbent upon the appellant to see that the record is properly made up and transmitted to the appellate court.

West v. Reddick, Inc., 48 N.C. App. 135, 137, 268 S.E.2d 235, 236 (1980), rev’d on other grounds, 302 N.C. 201, 274 S.E.2d 221 (1981) (citation omitted). In the instant case, the documents attached as [338]*338appendices to Plaintiffs brief are not part of the Record on Appeal. Accordingly we grant Defendant’s motion and do not consider these documents in our review of the trial court’s order.

We also observe that Plaintiff adds new factual allegations in its statement of facts and its arguments that were not a part of its complaint. Specifically, in its statement of facts Plaintiff asserts that water from a retention pond “overflowed into the construction site.” Plaintiff cites its proposed Amendment to its complaint as the basis for this allegation. However, the court did not grant Plaintiff’s motion to amend its complaint. Plaintiff’s complaint does not allege that any river, creek, or other body of water overflowed. Nor does Plaintiff allege that customarily dry land was covered or “inundated” with water. Nonetheless, in its brief, Plaintiff alleges that:

the construction site itself is not typically covered with water, but became so covered, or inundated with water, on the date of the. covered event. The overtopping of the retention pond that flows onto other properties, as seen in Appendix B, fits within the definition of a flood.

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Bluebook (online)
688 S.E.2d 534, 202 N.C. App. 334, 2010 N.C. App. LEXIS 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/north-carolina-concrete-finishers-inc-v-north-carolina-farm-bureau-ncctapp-2010.