An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 16 August 2005
GRACE R. WALDON and ENVIRONMENTAL
WATER SOLUTIONS, INC., a North
No. 01 CVS 1455
DANNY L. BURRIS, JESSE JAMES
WALDON, JR. and ENVIRONMENTAL
WATER SOLUTIONS, INC., an
Appeal by defendants from judgment entered 30 September 2003
by Judge Christopher M. Collier in Union County Superior Court.
Heard in the Court of Appeals 31 January 2005.
Weaver, Bennett & Bland, P.A., by Michael David Bland, for
Wishart, Norris, Henninger & Pittman, P.A., by William A.
Navarro, for defendants-appellants.
MARTIN, Chief Judge.
Plaintiffs brought this action against defendants alleging
five separate claims for relief, including misappropriation of
corporate opportunity, constructive fraud, constructive trust,
unfair and deceptive trade practices, and violation of the Lanham
Act. These claims arose in connection with a contract procured by
defendants to operate a waste water treatment facility on the
Tinker Air Force Base in Oklahoma. The evidence at trial tended to show the following: from 1996
to 1998 plaintiff Grace Waldon and her husband, defendant Jesse
Waldon, were part owners of a company called Environmental Process
Systems, Inc. (EPSI) which manufactured water treatment equipment.
Grace Waldon was Vice President of Marketing, and Jesse Waldon was
Chairman of the Board of Directors. Defendant Dan Burris met the
Waldons in 1997 while attending a training course to become a
distributor for EPSI.
In early 1998, Grace and Jesse Waldon began an unincorporated
business to act as the sales and marketing arm of EPSI, using the
name Engineered Water Solutions, Inc. (EWS). They authorized Dan
Burris to act as a selling agent and representative for EWS in
Oklahoma. Burris wrote numerous letters on behalf of EWS seeking
to acquire a contract with Dynpar, a subsidiary of DynCorp, to
manage the industrial waste water treatment plant at Tinker Air
Force Base in Oklahoma (the contract). DynCorp was bidding on a
government contract at the base and needed a small company to
manage the water treatment plant. Meanwhile, Jesse Waldon
attempted to incorporate EWS in North Carolina. When the North
Carolina Secretary of State notified him that the corporate name
could not contain the word engineer, he changed the name to
Environmental Water Solutions, Inc. (EWSI-NC), which became
incorporated in North Carolina on 8 June 1998.
According to plaintiff Grace Waldon, in order to make EWSI-NC
a minority (female) owned corporation, she was issued 51% of the
shares and defendant Jesse Waldon was issued 49%. Grace Waldon wasalso Vice President of the corporation, and Jesse Waldon was
President. Dan Burris became a Vice President of EWSI-NC later
that summer. In March 1999, defendant Burris incorporated a
company in Oklahoma also called Environmental Water Solutions, Inc.
(EWSI-OK), issuing 51% of the shares to his wife and 49% of the
shares to himself. Defendant Burris claims that both Jesse Waldon
and Grace Waldon were aware of the formation of EWSI-OK because
they discussed merging the two companies. Grace Waldon, however,
alleges that defendant Burris incorporated EWSI-OK using the same
name as the North Carolina corporation without her knowledge or
In the spring of 2000, when it appeared the Tinker contract
was close to being accepted, defendants Burris and Jesse Waldon
held an organizational meeting for EWSI-NC. Grace Waldon claims
she was not aware this meeting took place. According to plaintiff
Waldon, defendants Burris and Waldon redistributed the shares of
EWSI-NC without her consent so that Jesse Waldon held 51% and Dan
Burris held 49%. Burris was named President and Treasurer and
Jesse Waldon was named Vice President and Secretary. The records
for this organizational meeting were dated retrospectively to 12
January 2000. Defendants contend that [t]here is no written
evidence that an Organizational Meeting of Directors was held . .
. or stock issued at any time prior to this meeting. The record
on appeal, however, contains a Dun & Bradstreet Business
Information Report dated 15 March 1999 stating that 49% of capitalstock [of EWSI-NC] is owned by Jesse J. Waldon, Jr. 51% of capital
stock is owned by Grace Waldon.
In April 2000, Dynpar accepted EWSI's bid to manage the waste
water treatment plant at Tinker Air Force Base through September
2007. According to plaintiff, she and defendant Jesse Waldon
believed EWSI-NC had won the contract, but defendant Burris signed
the contract in the name of his company, EWSI-OK.
Plaintiff testified at trial that Jesse Waldon informed her in
August 2000 that he had issued her shares of EWSI-NC to himself and
the remaining shares to Burris. He told her he had taken all the
corporate records for EWSI-NC and sent them to Oklahoma. Plaintiff
testified she informed defendant Waldon his actions could incur
criminal penalties and they would lose the contract since the
business was no longer owned by a woman. Jesse Waldon then agreed
to have Burris mail the corporate records back to North Carolina.
In September, Jesse Waldon informed plaintiff he was leaving
her to live with his mistress in Vietnam. After he left, the
corporate records arrived from Burris by means of the Waldons'
joint Federal Express account. Plaintiff testified these records
indicated defendants Burris and Waldon conspired to cut her out of
her profits in the contract by taking control of EWSI-NC. She also
searched the corporate headquarters in North Carolina and
discovered the corporate books had been stripped and other files
Plaintiff hired an attorney to help her regain her shares of
EWSI-NC and the profits from the contract. In November 2000, herattorney received an e-mail from defendant Burris saying EWSI-NC
had never been a party to the contract. Instead, he had put the
contract in the name of EWSI-OK, and he believed EWSI-NC was
therefore bankrupt. Plaintiff informed Jesse Waldon in Vietnam of
Burris's claims, whose e-mailed responses indicated he wanted,
together with plaintiff, to bring civil and criminal charges
against Burris. Plaintiff testified, however, that despite having
the means and ability to do so, defendant Waldon made no effort to
come to North Carolina and help her locate missing files, file a
claim against Burris, or pay attorneys' fees.
Without the help of her husband, who was the sole Director of
EWSI-NC, plaintiff testified she believed she could not bring suit
against Burris on behalf of the company. Therefore, on the advice
of her attorney, she called a shareholders' meeting of EWSI-NC to
regain control of EWSI-NC. She sent a written notice of the
meeting to Dan Burris but not to Jesse Waldon. Using a power of
attorney granted to her by her husband in 1995, she signed the
notice Grace R. Waldon, as attorney-in-fact for Jessie J. Waldon,
Jr. The meeting was held on 7 March 2001 and attended by
plaintiff and an attorney for Dan Burris. In the meeting,
plaintiff used her power of attorney to vote her husband's shares
of EWSI-NC, removing Jesse Waldon and Dan Burris as officers and
electing herself sole Director of the company. She then filed suit
individually and on behalf of EWSI-NC against defendants Dan
Burris, Jesse Waldon, and EWSI-OK, claiming misappropriation of
corporate opportunity, constructive fraud, constructive trust,unfair and deceptive trade practices, and violation of the Lanham
Defendant Waldon did not file an answer to plaintiff's
complaint, and his default was entered. Defendants Burris and
EWSI-OK moved for summary judgment. The trial court granted
summary judgment in favor of defendants on the following claims of
the individual plaintiff Grace Waldon: misappropriation of
corporate opportunity, constructive trust, unfair and deceptive
trade practices, and violation of the Lanham Act. The trial court
denied defendants' summary judgment motion as to plaintiff Waldon's
individual claim of constructive fraud. Summary judgment was
denied as to all of the claims asserted on behalf of plaintiff
After trial on the remaining issues, the jury returned a
verdict in favor of plaintiffs on all claims. The jury found that
defendants Burris and Waldon conspired to deprive plaintiff of her
shares of EWSI-NC with the intent to deprive her of the profits
from the contract. The jury found defendant Dan Burris took
advantage of a position of trust and confidence with plaintiffs
EWSI-NC and Grace Waldon to bring about the contract and wrongfully
used the name Environmental Water Solutions, Inc. to procure the
contract. The jury found that defendants (1) wrongfully interfered
with the prospective contract between plaintiff EWSI-NC and Dynpar,
(2) did not act openly, fairly, and honestly in bringing about the
contract, (3) secretly diverted the contract from EWSI-NC to EWSI-
OK, (4) wrongfully obtained the contract by submitting supportingdocuments procured from or prepared by agents of EWSI-NC and
claiming EWSI-NC's skilled employees, and (5) violated the
provisions of 18 U.S.C. 1001. The jury also found that defendants'
conduct was in or affecting commerce and was a proximate cause of
plaintiffs' injury. The jury awarded damages, discussed infra, for
which the trial court held defendants jointly and severally liable.
The jury's verdict, filed on 3 September 2003, subjected the
profits from the Tinker contract to a constructive trust in favor
of EWSI-NC. However, on 20 September 2003, defendant Burris sent
a letter to Dynpar tendering EWSI-OK's resignation to its
obligations under the contract. Judgment was entered on 30
September 2003. Plaintiff filed a motion to show cause and for
relief under the Uniform Fraudulent Transfer Act, claiming
defendants' resignation rendered EWSI-OK insolvent and prevented
plaintiffs from recovering the profits under the contract.
Plaintiffs also claimed that Burris persuaded Dynpar to move the
contract from EWSI-OK to a new company Burris had formed called
Water Resources Corporation. The trial court issued a mandatory
injunction awarding EWSI-NC a constructive trust against any
proceeds of Water Resources Corporation from the contract and
requiring defendants to (1) assign all rights and interests in the
contract back to EWSI-OK, and (2) turn over all records, documents,
files, computers, assets, vehicles, and property of every kind
belonging to EWSI-OK to the appointed receiver for EWSI-NC. The
court also required Dynpar to pay all funds due under the contractto the receiver, or in the alternative, enabled the receiver to
operate the contract.
From the judgment entered and the mandatory injunction,
defendants Burris and EWSI-OK (defendants) appeal. Defendant
Waldon did not give notice of appeal.
The record on appeal contains thirty-two assignments of error.
In their appellants' brief, defendants have brought forward, in the
manner required by N.C.R. App. P. 28(b), proper arguments in
support of thirteen of these assignments of error. The remaining
assignments of error are deemed abandoned and are dismissed. N.C.
R. App. P. 28(b)(6). The assignments of error argued on appeal
raise issues relating to the admission of evidence, the denial of
defendants' motion for directed verdict as to plaintiff Waldon's
individual claims, the jury instructions, the trebling of certain
damages awarded by the jury, and the trial court's grant of
injunctive relief. For the reasons which follow, we affirm in
part, reverse in part, and remand to the trial court for re-
calculation of the damage award.
The first argument in defendants' brief does not identify or
refer to the assignments of error pertinent to the argument, as is
required by N.C.R. App. P. 28(b)(6). As the North Carolina Supreme
Court has recently instructed in Viar v. N.C. Dept. Of
, 359 N.C. 400, 610 S.E.2d 360 (2005), the Rules ofAppellate Procedure are mandatory, and a failure to follow them
subjects an appeal to dismissal. While dismissal of defendants'
first argument may seem a harsh sanction, the Rules of Appellate
Procedure are meaningless unless they are consistently applied, and
it is not the role of the appellate courts . . . to create an
appeal for an appellant. Id.
at 402, 610 S.E.2d at 361.
Therefore, we dismiss, without further consideration, the first
argument contained in defendant-appellants' brief. See Hines v.
, 103 N.C. App. 31, 37-38, 404 S.E.2d 179, 183 (1991) (Court
declined to address merits of argument, and dismissed that portion
of appeal, where appellant failed to reference assignment of error
Defendants argue that the trial court should have submitted,
in accordance with their request, the issue of whether plaintiff
Waldon owned stock in EWSI-NC, and, if so, the amount of such stock
in order to determine whether she had standing to bring a
derivative suit as a minority shareholder. However, the trial
court need not have reached the question of whether plaintiff had
standing to sue derivatively. Plaintiff became President and sole
Director of EWSI-NC after voting defendant Waldon's shares pursuant
to the power of attorney granted her by defendant Waldon, which,
according to the evidence before us, at no time prior had been
revoked. This power of attorney specifically granted plaintiff the
power to vote any investment; and to act as [Jesse Waldon's]
attorney-in-fact or proxy with respect to any such investment. After plaintiff became President and sole Director of the
corporation, she had authority to bring suit on behalf of the
corporation. This argument is overruled.
Defendants also assign error to the trial court's denial of
their motion for a new trial. On appeal, the trial court's
decision regarding a motion for a new trial pursuant to Rule 59 of
the North Carolina Rules of Civil Procedure is not reviewable
absent a manifest abuse of discretion. Britt v. Allen, 291 N.C.
630, 635, 231 S.E.2d 607, 611 (1977); see also In re Buck, 350 N.C.
621, 625, 516 S.E.2d 858, 861 (1999). An appellate court should
not disturb a discretionary Rule 59 order unless it is reasonably
convinced by the cold record that the trial judge's ruling probably
amounted to a substantial miscarriage of justice. Buck, 350 N.C.
at 625, 516 S.E.2d at 861 (internal citations omitted).
Rule 59(a)(8) of the North Carolina Rules of Civil Procedure
states that a party may be granted a new trial due to an [e]rror
in law occurring at the trial and objected to by the party making
the motion. N.C. Gen. Stat. § 1A-1, Rule 59(a)(8) (2003). This
Court has previously held that the moving party must have objected
to the error which is assigned as the basis for the new trial.
Barnett v. Security Ins. Co. of Hartford, 84 N.C. App. 376, 380,
352 S.E.2d 855, 858 (1987) (citing N.C. Gen. Stat. § 1A-1, Rule
59(a)(8)). On appeal, defendants argue the sole shareholders of
EWSI-NC are defendants Jesse Waldon and Dan Burris; therefore, the
action by EWSI-NC amounted to an action by a corporation to sueitself. Defendants, however, did not raise an objection at trial
on the grounds that the action by EWSI-NC was invalid as an action
by a corporation to sue itself, as required by Rule 59. Therefore,
we conclude the trial court did not abuse its discretion in denying
defendants' post-trial motion for a new trial on this basis. This
argument is overruled.
Defendants' next several arguments allege error in the trial
court's instructions on damages and the jury's damage awards.
First, they argue the trial court erred in instructing that if the
jurors found the Tinker contract to be subject to a constructive
trust in favor of EWSI-NC, they could also find EWSI-NC was
entitled to recover actual damages. We disagree. The relevant
issues submitted to the jury and the jury's findings are as
2. Did the Defendant wrongfully interfere
with a prospective contract between plaintiff
EWSI-NC and Dynpar for the Tinker AFB contract
to operate its wastewater treatment plant?
3. Did the Defendant Dan Burris take
advantage of a position of trust and
confidence with EWSI-NC to bring about the
contract between EWSI-OK and Dynpar?
4. Did the Defendant act openly, fairly and
honestly in bringing about the contract
between EWSI-OK and Dynpar?
5. Is the Tinker AFB contract subject to a
constructive trust in favor of the plaintiff
6. What amount of money damages is the
plaintiff EWSI-NC entitled to recover from the
A constructive trust is an equitable remedy to prevent the
unjust enrichment of the holder of title to, or of an interest in,
property which such holder acquired through fraud, breach of duty
or some other circumstance making it inequitable for him to retain
it against the claim of the beneficiary of the constructive trust.
Roper v. Edwards
, 323 N.C. 461, 464, 373 S.E.2d 423, 424-25
(1988)(quoting Wilson v. Development Co.
, 276 N.C. 198, 211, 171
S.E.2d 873, 882 (1970)). Here, the jury found EWSI-OK had
fraudulently acquired the contract; therefore, a constructive trust
in favor of EWSI-NC was proper to prevent defendants' unjust
enrichment. The award of a constructive trust does not preclude
the plaintiff from receiving damages; [e]quity applies the
principles of constructive trusts wherever it is necessary for the
obtaining of complete justice, although the law may also give the
remedy of damages against the wrongdoer. Speight v. Trust Co.
209 N.C. 563, 566, 183 S.E. 734, 736 (1936). At trial, the
evidence tended to show that the total historical and projected
profits from the contract were $2,228,000. Therefore, the jury
awarded actual damages of exactly one-half past and future profits.
Defendants argue that the contract was for a term of eighty-fourmonths, forty of which had passed by the date of trial. The trial
court instructed the jury it could award the plaintiff the profit
that would have been gained from full performance of the contract,
plus incidental damages. By awarding half the profits in damages
and preserving future profits in a constructive trust, the jury, in
effect, awarded plaintiff 100% of the profits from the contract in
two distinct forms of recovery, plus incidental damages. The
evidence does not indicate plaintiffs received a double recovery.
This argument is overruled.
Next, defendants argue that, as worded, Issue One implied to
the jury that Grace Waldon could individually recover the lost
profits of the contract. Issue One
asks whether defendants Burris
and Waldon conspired to deprive the individual plaintiff Grace
Waldon of her shares in EWSI-NC with the intent to deprive her of
the profits of the Tinker Contract. Because defendants did not
object to the wording of Issue One at trial, they have not properly
preserved this question for review. Under our Rules of Appellate
Procedure, [i]n 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. N.C.R. App. P. 10(b)(1). We
therefore decline to review defendants' argument regarding the
wording of Issue One.
Defendants also assign error to the submission of Issue One to
the jury on the basis that the trial court erred in denying theirmotion for a directed verdict on the individual plaintiff's claim
for constructive fraud. The question raised by [a motion for
directed verdict] is whether the evidence is sufficient to go to
the jury. Dockery v. Hocutt
, 357 N.C. 210, 216, 581 S.E.2d 431,
436 (2003) (citations omitted). The court must consider the
evidence in the light most favorable to the non-moving party. All
conflicts in the evidence must be resolved in favor of the
non-movant, and she is entitled to every reasonable inference to be
drawn therefrom. Id.
at 216-17, 581 S.E.2d at 436. The party
seeking a directed verdict bears a heavy burden under North
Carolina law. Martishius v. Carolco Studios, Inc.
, 355 N.C. 465,
473, 562 S.E.2d 887, 892 (2002) (citation omitted).
Issue One was submitted to the jury and answered as follows:
1. Did Dan Burris and Jesse Waldon conspire
to deprive Grace Waldon of her shares in EWSI-
NC with the intent to deprive her of the
profits of the Tinker contract?
The evidence at trial tended to show that Grace Waldon originally
owned 51% of the shares in EWSI-NC as evidenced by the 15 March
1999 Business Information Report; that at some later date,
defendants Burris and Waldon redistributed the shares such that
Jesse Waldon owned 51% of the shares of EWSI-NC and Dan Burris
owned 49%; and that Grace Waldon was not aware of the
redistribution of the shares or the existence of EWSI-OK. We
conclude there was sufficient evidence to support the existence of
a conspiracy between defendants Burris and Waldon, and the trial
court did not err in submitting Issue One to the jury. Defendants also contend that by not offering evidence at trial
regarding the value of her stock in EWSI-NC, plaintiff Waldon
failed to prove actual damages suffered as a result of defendants'
conspiracy to deprive her of those shares. Therefore, the trial
court should have granted their motion for directed verdict on
plaintiff's individual claim for constructive fraud. However, the
trial court instructed the jury only on the issue of conspiracy
under Issue One, not on constructive fraud. The trial court
instructed as to constructive fraud in Issue Thirteen, actual
damages for constructive fraud in Issue Fourteen, and punitive
damages for constructive fraud in Issue Fifteen. Defendants,
however, have not presented arguments with respect to Issues
Thirteen, Fourteen, or Fifteen. The trial court instructed, in
Issue Fourteen, that actual damages for constructive fraud could
include monies expended in pursuit of and in preparation for the
Tinker contract, and lost opportunities including loss of income.
Defendants do not argue plaintiff has failed to prove these
particular damages, and we will not create an argument for them on
appeal. Viar v. N.C. Dept. Of Transportation
, 359 N.C. 400, 402,
610 S.E.2d 360, 361 (2005). This argument is dismissed.
Defendants' final argument on the issue of damages is that the
trial court erred in trebling the damages awarded in Issue Six as
those were not the damages determined by the jury to be a proximate
result of a violation of N.C. Gen. Stat. § 75-1.1. We agree. N.C.
Gen. Stat. § 75-1.1(a) states that [u]nfair methods of competition
in or affecting commerce, and unfair or deceptive acts or practicesin or affecting commerce, are declared unlawful. N.C. Gen. Stat.
§ 75-1.1(a) (2003). To prevail on a claim of unfair and deceptive
trade practices, plaintiff must show (1) defendant committed an
unfair or deceptive act or practice, (2) the action in question was
in or affecting commerce, and (3) the act proximately caused injury
to the plaintiff. Tucker v. Blvd. at Piper Glen, L.L.C.
, 150 N.C.
App. 150, 153-154, 564 S.E.2d 248, 251 (2002) (quoting Pleasant
Valley Promenade v. Lechmere, Inc.
120 N.C. App. 650, 664, 464
S.E.2d 47, 58 (1995)). The verdict sheet submitted to the jury
9. Did the defendant do ( at least one of
(1) Secretly take the Tinker AFB
contract from EWSI-NC and divert the
contract to EWSI-OK, or
(2) Wrongfully obtain the Tinker AFB
contract by submitting supporting
documents either procured from or
prepared by agents of EWSI-NC,
(3) Wrongfully obtain the Tinker AFB
contract by claiming EWSI-NC's
skilled employees, or
(4) Violate the provisions of 18 U.S.C.
10. Was the defendant's conduct in commerce
or did it affect commerce?
11. Was the defendant's conduct a proximate
cause of the plaintiff's injury?
12. In what amount, if any, has the plaintiff
EWSI-NC been injured?
This series of questions establishes a prima facie case of unfair
and deceptive practices, and by its verdict, the jury determined
that defendants' conduct was in or affecting commerce, that such
conduct proximately caused damage to EWSI-NC, and that the amount
of damages was $75,000. Therefore, the damages awarded under Issue
Twelve were the proper damages for unfair and deceptive practices,
and it was these damages which should have been trebled. N.C. Gen.
Stat. § 75-16 (2003)(if damages are assessed for a violation of
Chapter 75, the verdict of the jury shall be trebled); Pinehurst,
Inc. v. O'Leary Bros. Realty, 79 N.C. App. 51, 61, 338 S.E.2d 918,
924, disc. review denied, 316 N.C. 378, 342 S.E.2d 896 (1986)
(damages assessed pursuant to N.C. Gen. Stat. § 75-1.1 are trebled
automatically). Instead of trebling the $75,000 awarded under
Issue Twelve, however, the trial court trebled $1,114,000, the
damages awarded under Issue Six, supra. We therefore remand to the
trial court for an adjustment of plaintiff's award consistent with
Defendants' next two arguments allege error in the trial
court's decision to admit several items of evidence over their
objection. First, defendants argue the trial court should not haveadmitted plaintiff's Exhibits 38 and 59 into evidence as these
exhibits were not properly authenticated and constituted
inadmissible hearsay. Exhibit 38 purports to be a letter from
Jesse Waldon to Dan Burris, which plaintiff alleges is proof of
their conspiracy to deprive her of her shares in EWSI-NC. Exhibit
59 is the group of documents plaintiff Waldon claims to have
received in the Federal Express package from defendant Burris after
Jesse Waldon left for Vietnam. The documents contained in Exhibit
59 include (1) a Shareholders' Agreement listing Jesse Waldon and
Dan Burris as the sole shareholders, (2) a blank stock certificate
for Environmental Water Solutions, Inc., and (3) the alleged letter
of conspiracy from Jesse Waldon to Burris, also entered into
evidence as Exhibit 38.
Prior to opening arguments, defendants moved in limine to
exclude Exhibit 38 for lack of authentication and relevance.
Defendants also moved, by a separate motion in limine, to exclude
hearsay statements of Jesse Waldon. At trial, upon plaintiff's
offer of Exhibits 38 and 59 into evidence, defendants objected only
on the grounds of authentication and relevance. Therefore, we will
limit our review to the question of authentication. See State v.
Roache, 358 N.C. 243, 292, 595 S.E.2d 381, 413 (2004) (stating that
'a motion in limine is not sufficient to preserve for appeal the
question of admissibility of evidence if the defendant does not
object to that evidence at the time of trial'); see also State v.
Tutt, __ N.C. App. __, __ S.E.2d __ (July 19, 2005) (COA04-821)
(although the North Carolina Legislature amended Rule 103(a)(2) ofthe N.C. Code of Evidence to state that [o]nce the court makes a
definitive ruling on the record admitting or excluding evidence,
either at or before trial, a party need not renew an objection or
offer of proof to preserve a claim of error for appeal, where such
amendment directly conflicts with N.C.R. App. P. 10(b), the amended
statute must fail as the procedure and practice of the Appellate
Division lies within the exclusive authority of our Supreme
At trial, plaintiff testified that upon receipt of the Federal
Express package, she immediately called Dan [Burris], who
acknowledged having sent the package. With respect to Exhibit 38,
the alleged letter between Burris and Waldon, she testified Burris
told her it was something that he and Jesse had discussed. Under
Rule 901 of the North Carolina Rules of Evidence, the requirement
of authentication can be satisfied by the Testimony of a Witness
with Knowledge . . . [who states] that a matter is what it is
claimed to be. N.C. Gen. Stat. § 8C, Rule 901(b)(1) (2003). We
conclude plaintiff demonstrated sufficient knowledge of the
contents of the package she received from defendant Burris to
authenticate those contents. The trial court did not err in
admitting Exhibits 38 and 59 into evidence, and defendants'
argument is overruled.
Second, defendants argue the trial court erred by allowing
Exhibits 87 and 88 into evidence. Plaintiff Waldon testified these
exhibits were deposit slips showing, respectively, one $40,000
deposit made on 31 July 2001 and one $50,000 deposit made on 2August 2001 into Jesse Waldon's bank account. Plaintiff testified
the deposits were made around the time dividends or profits would
have been paid out under the contract. Defendants argue Exhibits
87 and 88 were not properly authenticated and plaintiff failed to
lay a sufficient foundation for their admission.
At trial, defendants made general objections to the admission
of Exhibits 87 and 88. However, defendants failed to provide any
specific grounds for these objections. Rule 10(b)(1) of the North
Carolina Rules of Appellate Procedure requires that [i]n 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. N.C.R. App. P. 10(b)(1) (emphasis added). Upon careful
review of the trial transcript, the grounds for defendants'
objections were not apparent from the context at the time the
exhibits were admitted. This Court has said that a general
objection, if overruled, is ordinarily not effective on appeal.
State v. Hamilton, 77 N.C. App. 506, 509, 335 S.E.2d 506, 508-09
(1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986)
(stating that a general objection to specific opinion testimony
will not suffice to preserve the question of [an] expert's
qualifications to state his opinion as to the cause of death); see
also N.C. Gen. Stat. § 8C-1, Rule 103(a)(1) (2003). This
assignment of error is dismissed.
Defendants' final argument is that the trial court erred in
granting a mandatory injunction awarding EWSI-NC a constructive
trust against any proceeds from the contract of Water Resources
Corporation, the corporation allegedly formed by Burris after the
verdict in the trial court. The mandatory injunction required
defendants to assign all rights and interests in the contract back
to EWSI-NC and turn over all records, documents, and property of
any kind belonging to EWSI-OK to the appointed receiver for EWSI-
NC. The court also required Dynpar to pay all funds due under the
contract to the receiver, or in the alternative, enabled the
receiver to operate the contract.
Plaintiffs claim defendants' argument regarding the mandatory
injunction is now moot because the contract was terminated in
January 2004 by Computer Sciences Corporation, d/b/a Dynpar.
Although there is nothing in the record before us to confirm
plaintiffs' contention, both parties agree that the contract at
issue has been terminated. Defendants contend the contract was
terminated before the mandatory injunction was issued on 12
December 2003. It appears from the record that defendants
wrongfully terminated the contract themselves to avoid payment to
plaintiffs. However, because plaintiffs concede that there is no
contract to be returned to either party, and because defendants'
argument regarding the mandatory injunction is based on the non-
existence of the contract, we conclude there is no controversy for
this Court to resolve. Bizzell v. Insurance Co.
, 248 N.C. 294,
296, 103 S.E.2d 348, 350 (1958) (holding that [w]henever in thecourse of litigation it becomes apparent that there is an absence
of a genuine adversary issue between the parties, the court should
withhold the exercise of jurisdiction and dismiss the action).
Therefore, this argument is dismissed.
Affirmed in part, reversed in part, and remanded for re-
calculation of the damage award.
Judges MCCULLOUGH and ELMORE concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***