An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1236


Filed: 1 July 2003


v .                         New Hanover County
                            No. 01 CVD 1525

    Appeal by defendant from judgment entered 19 March 2002 by Judge J.H. Corpening, II, in New Hanover County District Court. Heard in the Court of Appeals 5 June 2003.

    Carlton S. Prickett, Jr., and Johnson, Lambeth & Brown, by Anna Johnson Averitt, and Robert White Johnson, for plaintiff- appellee.

    Mast, Schulz, Mast, Mills, Stem & Johnson, P.A., by Bradley N. Schulz, for defendant-appellant.

    CALABRIA, Judge.

    Walter Hughes (“plaintiff”) and Dianne Hughes (“defendant”)
knew each other for over thirty years when they rekindled a romance in 1998. Plaintiff lived in Wilmington; defendant lived in Charlotte. After months of dating, the parties discussed marriage, and defendant planned to move to Wilmington. In November 1999, defendant bought a home in Wilmington. The parties were married on 1 January 2000. They separated on 9 September 2000.    In April 2001, plaintiff filed a complaint against defendant asserting, inter alia, breach of promise to pay and seeking the return of $110,291.91. Plaintiff alleged he loaned defendant $2,000.00 for the earnest money deposit and $108,291.91 towards the downpayment and closing costs for the purchase of the home in Wilmington.
    Before trial, defendant moved for summary judgment. On the evening before the summary judgment hearing, plaintiff served on defendant an affidavit by Mildred Smith (“Smith”), a mutual friend of the parties. Smith was present in September 1999 when plaintiff paid the $2,000.00 earnest money towards the purchase of the home and when plaintiff agreed to pay over $100,000.00 to prevent delay of the November closing. The court denied summary judgment, and trial proceeded. The jury found defendant had not loaned plaintiff $2,000.00, but had loaned plaintiff $108,291.91. The jury further found defendant had not repaid the money, and determined defendant owed plaintiff $85,000.00. Following the verdict, plaintiff moved for the $85,000.00 to be stricken, and for the court to enter a judgment for $108,291.91; the court denied the motion.
    Defendant appeals asserting the trial court erred by: (I) considering Smith's affidavit which was served in violation of North Carolina Rule of Civil Procedure 56 (c); (II) not permitting defendant to cross-examine Smith regarding judgments against her; (III) failing to give requested jury instructions; and (IV) not entering a judgment not withstanding the verdict for defendant.
I. The Affidavit    Defendant asserts the affidavit of Smith, filed in response to defendant's motion for summary judgment was not served at least two days before the hearing as required by the North Carolina Rules of Civil Procedure. N.C. Gen. Stat. § 1A-1, Rule 56 (c) (2001).
    We are first faced with whether defendant preserved the issue for appellate review. We hold she did not.
        In order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context... [and] obtain a ruling upon the party's request, objection or motion.

N.C. R. App. 10(b)(1) (2003).
    The transcript reveals no explicit objection and only the following interaction regarding the admissibility of the affidavit:
        DEFENSE COUNSEL: I'd just like to put as an exhibit, their transmittal of [the affidavit] to me. And I have nothing further to say.
        THE COURT: I'll be glad to receive that, Mr. Mast.
        DEFENSE COUNSEL: This is a defendant's exhibit.
        THE COURT: And based on the representations of all counsel for both parties, and my review of the file, that I'll deny the motion for summary judgment. . . .

Accordingly, even if defense counsel intended for his request for the admission of the facsimile as a defense exhibit to be an objection, defense counsel did not assert violation of Rule 56(c) occurred, and defense counsel neither requested nor obtained a ruling from the court on its implied objection as required by Rule 10(b)(1). Moreover, defense counsel never requested the court cure the violation of timeliness, as provided for in the statute: by acontinuance, consideration of the motion without the affidavit, or any “such other action as the ends of justice require[d].” N.C. Gen. Stat. § 1A-1, Rule 56 (c). Therefore, we hold defense counsel did not properly preserve this question for appellate review, and overrule this assignment of error.
II. Cross-examination of Smith
    Defendant asserts the trial court abused its discretion in not permitting defendant to cross-examine Smith regarding an IRS lien, bankruptcy and other judgments against her, arguing that these issues relate to her veracity.
    “[T]he trial court has broad discretion in controlling the scope of cross-examination, and such a ruling may likewise not be disturbed absent abuse of discretion and a showing 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). “An abuse of discretion occurs only when a court makes a patently arbitrary decision, manifestly unsupported by reason.” Buford v. General Motors Corp., 339 N.C. 396, 406, 451 S.E.2d 293, 298 (1994).
    In the case at bar, when defendant attempted to cross-examine Smith regarding an IRS lien, bankruptcy and prior judgments, the trial court sustained plaintiff's objection. Defendant asserts the cross-examination directly related to the witness' veracity because the witness testified the debts were her husband's and defendant sought to show the judgments were in her name. However, the witness explained although the debts were incurred by her husband,she was jointly responsible for them because they were “man and wife.” After her husband's death the judgments were solely in her name. Plaintiff objected. After arguments, the court found “[t]he proper scope for impeachment of a witness includes questions that are probative of. . . truthfulness or untruthfulness [pursuant to N.C. Gen. Stat. § 8C-1, Rule 608(b)(2001)], and I don't think that civil judgments have any probative value on [truthfulness or untruthfulness].” We do not find the trial court's decision to prevent cross-examination of Smith on these matters was “patently arbitrary.” Accordingly, we hold the court did not abuse its discretion.
III. Jury Instructions
    Defendant asserts the trial court erred in failing to instruct the jury on release, estoppel and the burden of proof. We hold the trial court did not err.
    “When a party's requested jury instruction is correct and supported by the evidence, the trial court is required to give the instruction.” Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 464, 553 S.E.2d 431, 441 (2001), disc. rev. denied, 356 N.C. 315, 571 S.E.2d 220 (2002). “To prevail on appeal, plaintiffs must show 'that (1) the requested instruction was a correct statement of law and (2) was supported by the evidence, and that (3) the instruction given, considered in its entirety, failed to encompass the substance of the law requested and (4) such failure likely misled the jury.'” Barringer v. Mid Pines Dev. Grp., L.L.C., 152 N.C. App. 549, 552-53, 568 S.E.2d 648,651 (2002) (quoting Liborio v. King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274, disc. rev. denied, 356 N.C. 304, 570 S.E.2d 726 (2002)).
    Defendant requested the court to instruct on the doctrine of release on the basis of the premarital agreement the parties signed in December 1999. The agreement provided, inter alia,: “the parties agree that all separately owned property. . . shall remain his or her separate property” and in the event of divorce “neither party shall have any right to, claim upon, or interest in the property of the other spouse. . . .” Defendant asserts these provisions operated as a release of any interest plaintiff had in the home by providing the $108,291.91 in November 1999. However, these provisions do not encompass the downpayment provided by plaintiff for the purchase of the house. Moreover, the general release provision for “[a]ll other rights and interest in property” was stricken by the parties prior to signing the agreement. Accordingly, we agree with the trial court that defendant was not entitled to an instruction on release.
    Defendant requested the court instruct on the doctrine of estoppel. Equitable estoppel requires evidence of the following elements:
        '(1) conduct on the part of the party sought to be estopped which amounts to a false representation or concealment of material facts; (2) the intention that such conduct will be acted on by the other party; and (3) knowledge, actual or constructive, of the real facts. The party asserting the defense must have (1) a lack of knowledge and the means of knowledge as to the real facts in question;and (2) relied upon the conduct of the party sought to be estopped to his prejudice.'

Thomas & Howard Co. v. Trimark Catastrophe Servs., Inc., 151 N.C. App. 88, 92, 564 S.E.2d 569, 572 (2002) (quoting Parker v. Thompson-Arthur Paving Co., 100 N.C. App. 367, 370, 396 S.E.2d 626, 628-29 (1990)). Defendant asserts when plaintiff told her that he would get the downpayment for her and not to worry about it, he misrepresented to her the money was a gift rather than a loan. The trial court found that the jury would either believe it was a gift or a loan, but that it was not a case for application of estoppel. We agree. Defendant's assertion that plaintiff said he would get the money cannot fairly be construed as a misrepresentation the money was a gift and not a loan. Defendant testified she believed it was a gift; plaintiff testified he believed it was a loan. The trial court was correct in finding that whether the money was a gift or a loan was the essential question of fact for the jury, and this case did not require an instruction on estoppel.
    Finally, defendant requested the court instruct on a heightened burden of proof based upon the existence of a fiduciary relationship and the marital gift presumption. The marital gift presumption provides: “when a spouse uses separate funds to furnish consideration for property conveyed to the marital estate. . . a presumption of a gift of separate property to the marital estate arises, which is rebuttable by clear, cogent, and convincing evidence.” McLean v. McLean, 323 N.C. 543, 546, 374 S.E.2d 376, 378 (1988). “Our Supreme Court has held that the marital gift presumption is appropriate as an aid in construing N.C. Gen. Stat.§ 50-20(b)(2).” Holterman v. Holterman, 127 N.C. App. 109, 113-14, 488 S.E.2d 265, 268 (1997). Defendant urges this Court to extend the marital gift presumption to engaged couples based on the existence of a fiduciary relationship. Defendant offers no supporting case law or policy argument. We find the trial court properly declined to extend the marital gift presumption to the case at bar. Accordingly, the trial court correctly found this case “is a contract action. . . requir[ing] the burdens be greater weight of the evidence.”
    We overrule these assignments of error.
IV. Denial of Directed Verdict
    Defendant asserts the trial court erred by not granting her motions for a directed verdict made at the close of plaintiff's evidence and the close of all the evidence. However, our Court “may not direct entry of judgment in accordance with the motion unless the party who made the motion for a directed verdict also moved for judgment in accordance with Rule 50(b)(1). . . .” N.C. Gen. Stat. § 1A-1, Rule 50(b)(2)(2001). Rule 50(b)(1) permits a party who has moved for a directed verdict to move for a judgment notwithstanding the verdict within ten days after entry of the judgment. N.C. Gen. Stat. § 1A-1, Rule 50(b)(1)(2001). Neither the transcript nor the record on appeal evidences that defendant moved for a judgment notwithstanding the verdict as permitted by N.C. Gen. Stat. § 1A-1, Rule 50(b)(1) and as required for our action by N.C. Gen. Stat. § 1A-1, Rule 50(b)(2). Accordingly, we do not address this assignment of error.    Affirmed.
    Judges McGEE and TYSON concur.
    Report per Rule 30(e).

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