An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1611


Filed: 6 April 2004

Administrator of the ESTATE


v .                         Yadkin County
                            No. 98 CVS 816


    Appeal by defendant from judgment entered 4 March 2002 by Judge Steve Balog in Yadkin County Superior Court. Heard in the Court of Appeals 17 September 2003.

    Franklin Smith, and R. Lewis Alexander, for the plaintiff- appellee.

    W. David White, and Sharon H. Lowe, for the defendant- appellant.

    ELMORE, Judge.

    Jimmy Sides (defendant) appeals from a judgment entered on a jury verdict finding defendant in breach of contract and granting the estate of Wilborn Carson Shoemake (plaintiff) an award of $65,500.00.
    Pursuant to an oral agreement, plaintiff borrowed from defendant $15,307.43 to pay off the bank for his tractor trailer, which defendant kept as collateral. When plaintiff failed to pay $18,500.00 in thirty days, defendant kept the vehicle. Plaintiff contends that he asked for two extensions of time to repay, andthat defendant granted the extensions. No additional consideration was given for this. Plaintiff alleged that he had obtained the necessary funds five days after the original time frame, and that he called and told defendant he “had the money” in an effort to tender the funds to defendant. Defendant refused to accept payment.
    The original complaint was filed in 1998 alleging fraud and breach of contract. The trial court granted summary judgment for the defendant. Plaintiff appealed, and this Court reversed as to breach of contract, and affirmed as to fraud. The trial court then submitted the issues of contract and breach to a jury, which rendered a verdict in favor of the plaintiff. Damages of $65,500.00 were awarded to the plaintiff. Defendant brings this appeal. Defendant argues on appeal that the trial court should have granted his directed verdict motion at the close of plaintiff's evidence, at the close of all the evidence, and judgment notwithstanding the verdict after the judgment of the jury.
    The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict, the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, Smith v. VonCannon, 283 N.C. 656, 197S.E.2d 524 (1973), or to present a question for the jury. In re Housing Authority, 235 N.C. 463, 70 S.E.2d 500 (1952). Where the motion for judgment notwithstanding the verdict is a motion that judgment be entered in accordance with the movant's earlier motion for directed verdict, this Court has required the use of the same standard of sufficiency of evidence in reviewing both motions. Davis v. Dennis Lilly Co., 330 N.C. 314, 411 S.E.2d 133 (1991); Snider v. Dickens, 293 N.C. 356, 237 S.E.2d 832 (1977).
    In ruling on these motions, “the trial court must view the evidence in the light most favorable to the nonmovant, resolving all conflicts in his favor and giving him the benefit of every inference that could reasonably be drawn from the evidence in his favor.” Summer v. Allran, 100 N.C. App. 182, 183, 394 S.E.2d 689, 690 (1990). Motions for directed verdict and judgment notwithstanding the verdict should be denied where there is more than a scintilla of evidence to support each element of a plaintiff's case. Clark v. Moore, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580-81 (1983).
    All three assignments of error allege insufficient evidence of a breach of contract.
    The previous unpublished opinion from this Court in this case reasoned thus:
        Here, the parties did not reduce their contract to writing so that the terms could be interpreted beyond mere oral allegations. Thus, such genuine issues of fact are more likely to occur. As a result of the factual discrepancies existing in the case sub judice, we find that genuine issues of material fact exist as to plaintiff's breach of contractclaim. Accordingly, we reverse the trial court's grant of summary judgment as to breach of contract.

Shoemake v. Sides, 145 N.C. App. 204, 550 S.E.2d 50 (2001).
    When reviewing the denial of a motion for summary judgment, this Court determines whether, prior to trial, “there [was] no genuine issue as to any material fact and [whether the] party [was] entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A- 1, Rule 56(c) (2003). Our review of the trial court's decision only takes into consideration those materials supplied to the trial court by the parties before trial. Summey v. Barker, 357 N.C. 492, 586 S.E.2d 247 (2003). Rule 56(c) describes those materials as “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). In Shoemake I, we examined these materials and concluded that there was a genuine issue as to a material fact remaining in the case. Thus, we reversed the trial court's decision to grant summary judgment and the case proceeded to trial. While the Court of Appeals employed a proper analysis in Shoemake I, we must apply a different analysis in the present case.
    When reviewing the denial of a motion for a directed verdict, this Court must decide whether there was sufficient evidence presented at trial to present a question to the jury. Best v. Duke University, 337 N.C. 742, 448 S.E.2d 506 (1994). “The same standard is used in determining the sufficiency of the evidence for . . . [a] judgment notwithstanding the verdict because such a motion is essentially 'a renewal of the movant's prerequisitemotion for a directed verdict.'” Id. at 749, 448 S.E.2d at 510 (quoting Abels v. Renfro Corp., 335 N.C. 209, 214, 436 S.E.2d 822, 825 (1993)). During review of both motions, this Court must give “probative force” to “all relevant evidence admitted by the trial court, whether competent or not.” Jenkins v. Starret Corp., 13 N.C. App. 437, 441, 186 S.E.2d 198, 201 (1972). Furthermore, “[t]he trial court must examine the evidence in a light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that may be drawn therefrom.” Best, 337 N.C. at 749, 448 S.E.2d at 510. Therefore, neither a motion for directed verdict nor a motion for judgment notwithstanding the verdict should be granted where there is more than a scintilla of evidence to support the elements of the claim. Hummer v. Pulley, Watson, King & Lischer, P.A., 157 N.C. App. 60, 577 S.E.2d 918 (2003).
    In the case before us, plaintiff claims breach of contract. “The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of [the] contract.” Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000). After reviewing the record, we conclude that there was sufficient evidence presented at trial to permit a jury to find that plaintiff and defendant entered into a valid oral contract during June of 1998, that this oral contract was modified by subsequent oral agreements between the defendant and the plaintiff, and that defendant failed to perform on the contract.    In his deposition, admitted at trial, plaintiff testified that a July 1998 meeting between plaintiff and defendant produced a valid oral agreement, whereby defendant agreed to pay a $15,307.43 outstanding debt owed by plaintiff and hold a truck belonging to plaintiff in trust for thirty days. Plaintiff further testified that upon plaintiff's repayment of the $15,307.40 debt, the vehicle would be returned to plaintiff. If, however, plaintiff failed to repay the amount within thirty days, defendant would acquire title to the vehicle. The trial transcript also contains evidence that the contract was orally modified. In his deposition, plaintiff testified that prior to the thirtieth day, defendant orally agreed to extend plaintiff's deadline for repayment, in consideration of plaintiff agreeing to pay defendant a larger sum of $18,500.00. Two witnesses at trial corroborated this testimony. Finally, evidence was presented from which a jury could find that defendant breached his duty under the contract. In his deposition, plaintiff testified that defendant sold the vehicle to another individual before giving plaintiff a chance to tender his payment. Two witnesses corroborated this testimony, and defendant did not deny selling the vehicle.
    Viewing the evidence in the light most favorable to the plaintiff, there is more than a scintilla of evidence establishing that a valid, oral contract existed between the parties, that the contract was subsequently modified by the parties, and that defendant breached his duty under the contract. Therefore, thetrial court did not err in denying defendant's motions for directed verdict and judgment notwithstanding the verdict.
    Judges TIMMONS-GOODSON and HUDSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***