The six issues presented by this appeal are whether the trial court
erred in (I) denying defendant's motion for summary judgment; (II)
restricting defendant's attempts to impeach plaintiff on cross-examination;
(III) denying defendant's motion for a directed verdict and for judgment
notwithstanding the verdict; (IV) granting plaintiff's motion for travel
expenses; (V) granting plaintiff's motion for attorneys' fees; (VI) failing
to accept the jury's initial verdict. For the following reasons, we affirm
in part and reverse in part.
[1]Defendant first argues that the trial court erred in denying
defendant's motion for summary judgment based on plaintiff's answers to
defendant's interrogatories. It is well settled in North Carolina that the
denial of a motion for summary judgment is not reviewable on appeal from a
final judgment on the merits.
Harris v. Walden, 314 N.C. 284, 333 S.E.2d 254
(1985). This is so because:
[t]he purpose of summary judgment is to bring litigation
to an early decision on the merits without the delay and
expense of a trial when no material facts are at issue
. . . . After there has been a trial, this purpose cannot
be served. Improper denial of a motion for summary
judgment is not reversible error when the case has
proceeded to trial and has been determined on the merits
by the trier of the facts, either judge or jury.
Id. at 286, 333 S.E.2d at 256. Even if the trial court erred in denying
summary judgment, we would not reverse the judgment because a final judgment
on the merits has already been rendered.
Id. We therefore do not address
whether it was error to deny summary judgment.
[2]Defendant's second argument is that the trial court unreasonably
restricted defendant's attempt to impeach plaintiff on cross examination by
means of plaintiff's prior statements. We disagree.
Cross-examination is a matter of right, but “the trial court has broad
discretion in controlling the scope of cross-examination, and such a rulingmay . . . not be disturbed absent abuse of discretion and a show
ing the
ruling was so arbitrary it could not have been the product of a reasoned
decision.”
Fallis v. Watauga Medical Ctr., Inc., 132 N.C. App. 43, 62, 510
S.E.2d. 199, 211 (1999).
In the instant case, defendant spent many hours conducting a thorough
cross-examination of plaintiff. Defendant additionally attempted to read the
transcript of a telephone conversation in order to impeach plaintiff. The
trial court sustained plaintiff's objection to defendant's verbatim reading
of the telephone transcript as it had not been entered into evidence. The
trial court, however, allowed defendant to ask plaintiff questions related to
the telephone conversations. Furthermore, the trial court indicated that
defendant would be allowed to enter the transcripts into evidence, though a
court recess would be necessary in order to give time for plaintiff to review
the transcripts. Defendant did not pursue this option. Instead, defendant
continued cross-examination subject to the limitations imposed by the trial
court. Based on these facts, we are satisfied that the trial court did not
abuse its discretion. We therefore overrule this assignment of error.
[3]Defendant's third argument is that the trial court erred by denying
defendant's motions for a directed verdict and for judgment notwithstanding
the verdict. We disagree.
A motion for directed verdict is appropriately granted only when by
looking at the evidence in the light most favorable to the nonmovant, and
giving the nonmovant the benefit of every reasonable inference arising from
the evidence, the evidence is insufficient for submission to the jury.
Streeter v. Cotton, 133 N.C. App. 80, 514 S.E.2d 539 (1999). A motion for
judgment notwithstanding the verdict represents a renewal, after a verdict is
issued, of a motion for directed verdict, and the standards of review for
both motions are the same.
Bryant v. Thalhimer Brothers, Inc., 113 N.C. App.
1, 437 S.E.2d 519 (1993). A “motion for a directed verdict shall state thespecific grounds therefor.” N.C.G.S. § 1A-1, Ru
le 50(a). A trial court's
decision to grant or deny a motion for directed verdict or a motion
notwithstanding the verdict will not be disturbed on appeal absent an abuse
of discretion.
G.P. Publications, Inc. v. Quebecor Printing-St. Paul, Inc.,
125 N.C. App. 424, 481 S.E.2d 674 (1997).
Defendant asserts that the trial court erred in not granting the motions
for directed verdict or judgment notwithstanding the verdict, because the
evidence produced at trial failed to establish consideration for the
promissory note. We disagree. While there was evidence presented by
defendant that the promissory note was without consideration, there was also
evidence presented that the promissory note was under seal, which raises a
presumption of consideration.
In re Foreclosure of Blue Ridge Holdings Ltd.
Part., 129 N.C. App. 534, 500 S.E.2d 446 (1998). Evidence was also presented
that plaintiff detrimentally relied on defendant's promise, and that the
benefit the son would receive from the house was valid consideration to bind
defendant. There was ample evidence, sufficient to go to the jury, that
defendant owed plaintiff money on a valid promissory note that was executed
by defendant. Thus, the trial court did not abuse its discretion in denying
the motions for directed verdict and judgment notwithstanding the verdict.
[4]Defendant also asserts that the trial court erred in denying the
motions for directed verdict and judgment notwithstanding the verdict,
because plaintiff's testimony amounted to an admission that she had
fraudulently procured the promissory note. However, defendant did not assert
at trial that fraud was a ground for his motion for directed verdict or
judgment notwithstanding the verdict. Defendant “cannot assert this on
appeal because [he] failed to raise this issue before the trial court on
[his] motions for directed verdict and judgment notwithstanding the verdict.”
Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 650, 535 S.E.2d 55, 64
(2000),
disc. review denied, 353 N.C. 370, 547 S.E.2d 2 (2001).
See alsoBroyhill v. Coppage, 79 N.C. App. 221, 225,
651 S.E.2d 32, 36 (1986)
(“grounds not asserted in the trial court may not be asserted on appeal");
N.C.R. App. P. 10(b)(1) (“to preserve a question for appellate review, a
party must have presented to the trial court a . . . motion, stating the
specific grounds for the ruling . . . desired"). We therefore decline to
address the argument that plaintiff fraudulently induced defendant to sign
the promissory note.
[5]Defendant's fourth argument on appeal is that the trial court
improperly granted the plaintiff's motion for travel expenses after dismissal
of the jury. We agree.
N.C. Gen. Stat. section 6-20 provides for the trial court to allow
“costs” in its discretion. N.C.G.S. § 6-20 (1999). Assessable costs in
civil cases, however, are limited to those items listed in section 7A-305.
Sara Lee Corp. v. Carter, 129 N.C. App. 464, 474, 500 S.E.2d 732, 738 (1998),
reversed on other grounds, 351 N.C. 27, 519 S.E.2d 308 (1999). In addition
to those costs enumerated in section 7A-305, the trial court is permitted to
“assess costs as provided by law.” N.C.G.S. § 7A-305(e) (1999);
Sara Lee,
129 N.C. App. at 474, 500 S.E.2d at 738. The trial court, however, is
prohibited from assessing costs in civil cases which are neither enumerated
in section 7A-305 nor “provided by law.”
Sara Lee, 129 N.C. App. at 474, 500
S.E.2d at 739.
In the case
sub judice, the trial court ordered defendant to pay
plaintiff $2,007.00 for travel expenses. Travel expenses of a party,
however, are not an assessable cost enumerated in section 7A-305 and are not
otherwise an assessable cost “as provided by law.”
See City of Charlotte v.
McNeely, 281 N.C. 684, 694, 190 S.E.2d 179, 187 (1972) (no statute allows for
travel expenses, such as “an allowance . . . for mileage and . . . for meals
and hotel bills,” as part of costs). Accordingly, as the trial court lackedthe authority to assess plaintiff's travel expenses as a c
ost, we reverse on
this issue and remand to the trial court to modify its award of costs to
exclude travel expenses.
[6]Defendant next argues that the trial court erred in awarding
attorneys' fees to plaintiff, because defendant was not notified of
plaintiff's intention to demand attorneys' fees. We disagree.
The trial court's decision to award attorneys' fees is reviewed under
the abuse of discretion standard.
Culler v. Hardy, 137 N.C. App. 155, 526
S.E.2d 698 (2000). As such, the trial court's order will not be disturbed
absent a showing that the order was manifestly unsupported by reason or that
it was so arbitrary that it could not have been the result of a reasoned
decision.
Id.
N.C.G.S. section 6-21.2 governs the imposition of attorneys' fees in
notes and other evidences of indebtedness. The statute mandates, in relevant
part, that:
the holder of an unsecured note . . . shall, after
maturity of the obligation by default or otherwise,
notify the maker . . . on said obligation that the
provisions relative to payment of attorneys' fees in
addition to the 'outstanding balance' shall be enforced
and that such maker . . . has five days from the mailing
of such notice to pay the 'outstanding balance' without
the attorneys' fees.
N.C.G.S. § 6-21.2(5).
It is not disputed that the promissory note in the instant case
contained a “provision[] relative to payment of attorneys' fees” sufficient
to trigger the imposition of attorneys' fees should proper notification be
made.
Id. The note stated, in pertinent part, that:
[u]pon default the holder of this Note may employ an
attorney to enforce the holder's rights and remedies and
the maker, principal, surety, guarantor and hereby agree
to pay the holder reasonable attorney's fees not
exceeding a sum equal to fifteen percent (15%) of the
outstanding balance owing on said Note, plus all other
reasonable expenses incurred by the holder in exercising
any of the holder's rights and remedies upon default. The issue in dispute is whether plaintiff satisfied the requir
ement of
notifying defendant that she would be enforcing the attorneys' fees provision
of the promissory note. “[C]ase law is clear that a party seeking to collect
attorneys' fees incurred in the enforcement of a note must notify in writing
the opposing party of this intent.”
Thomas v. Miller, 105 N.C. App. 589,
592, 414 S.E.2d 58, 60 (1992). Where the record fails to contain any
evidence of such notice to the debtor, attorneys' fees are improperly
granted.
Northwestern Bank v. Barber, 79 N.C. App. 425, 339 S.E.2d. 452
(1986). Plaintiff claims to have sent the letter to defendant's attorney.
Defendant claims to have never received notice. These two contentions are
not mutually exclusive. Defendant's attorney could have received the demand
letter without defendant ever having notice of the demand. In fact, the
evidence at trial and the arguments in the brief indicate that this is what
happened. The question then becomes whether the receipt of the demand letter
by defendant's attorney is deemed to satisfy the notice requirement of
section 6-21.2(5).
An attorney is in an agency relationship with a client. "North Carolina
law has long recognized that an attorney-client relationship is based upon
principles of agency . . . . Two factors are essential in establishing an
agency relationship: (1) The agent must be authorized to act for the
principal; and (2) The principal must exercise control over the agent.”
Johnson v. Amethyst Corp., 120 N.C. App. 529, 532-33, 463 S.E.2d 397, 400
(1995). It is generally accepted that an attorney may act on behalf of his
or her client.
See e.g. McGowen v. Rental Tool Co., 109 N.C. App. 688, 691,
428 S.E.2d 275 (1993) (finding an offer can be accepted through an attorney).
In the case at bar, it is not disputed that defendant was represented by
an attorney and that the attorney was authorized to act on defendant's
behalf. In fact, the attorney represented defendant throughout the trial and
in connection with post-trial motions. Accordingly, defendant was placed onnotice when his attorney received the letter from plaintiff ass
erting
plaintiff's intent to seek attorneys' fees from defendant. We find support
for our holding in
Trust Co. v. Larson, 22 N.C. App. 371, 206 S.E.2d 775
(1974). In
Trust Co., a letter mailed from plaintiff's attorney to
defendant's attorney was deemed sufficient to satisfy the requirements of 6-
21.2(5). The issue debated in
Trust Co. centered around the
date that the
letter was sent; the ability of the plaintiff's
attorney to directly send the
demand letter to the defendant's
attorney was not questioned by either party.
Thus, in the case at bar, defendant had five days from the mailing of
such notice to pay the outstanding balance without incurring attorneys' fees.
N.C.G.S. § 6-21.2(5). Defendant failed to do so. We therefore hold that
attorneys' fees were properly awarded.
[7]Defendant's final argument on appeal is that the trial court erred
in refusing to accept the jury's initial verdict of $2500. Defendant argues
that this refusal invaded the province of the jury. The argument is wholly
without merit. The transcript of the trial indicates that the jury had a
question about completing the verdict form. The $2500 figure may have been
written on the verdict form, but the jury did not submit an initial verdict
at that time. The jury merely had a point of clarification. The judge re-
read the instructions to the jury and the jury completed their deliberations.
There is no indication that the jury had submitted a $2500 verdict.
Consequently, the argument that the trial court erred in refusing to accept
a $2500 verdict has no merit.
Having carefully reviewed defendant's arguments on appeal, we reverse on
the issue of travel expenses and remand to the trial court to modify its
award of costs to exclude travel expenses, and we affirm on all other
issues.
Affirmed in part and reversed and remanded in part.
Judges Greene and Bryant concur.
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