An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-883


Filed: 19 July 2005



v .                         Onslow County
                            No. 01 CVS 788
HOMES, INC., individually and


    Appeal by defendant from judgment entered 16 December 2003 by Judge Jack W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 12 April 2005.

    Jeffrey S. Miller for defendant-appellant Sweetwater, Inc.

    Patterson, Dilthey, Clay, Bryson & Anderson, L.L.P., by Scott Lewis and Ellen J. Persechini, for defendant-appellee Oscar White d/b/a East Coast Mobile Homes.

    Stith & Stith, P.A., by F. Blackwell Stith, for defendant- appellee Outlaw Mobile Homes, Inc., individually and d/b/a East Coast Mobile Homes and Haywood Outlaw d/b/a East Coast Mobile Homes.

    ELMORE, Judge.

    In December 1999 John and Christine Brode (plaintiffs) negotiated with defendant Oscar White at an East Coast Mobile Homes lot for the purchase of a manufactured home. During the negotiations, Oscar White provided plaintiffs warranty literaturepublished by defendant Sweetwater, Inc. (Sweetwater). In these publications, Sweetwater represented that the products manufactured by them were well-constructed and free from defects in materials and workmanship. Oscar White then represented to plaintiffs that the manufactured home would be properly installed and set up on plaintiffs' property. Thereafter, plaintiffs purchased a 2000 model Sweetwater manufactured home.
    Plaintiffs paid a purchase price of $117,783.50, which included 8.01 acres of land where the home would be located. This price also included delivery and set-up of the home, a heat pump, septic system, water well, electrical hook-up, brick foundation, poured concrete footers, grading of the property, and construction of a garage. East Coast transported the home from Sweetwater's factory in Oscilla, Georgia to plaintiff's property in Jacksonville, North Carolina. During the delivery, the house became detached from the trailer and was dragged by employees of East Coast a distance of 784 feet along a dirt road leading up to plaintiffs' driveway.
    In March 2000 plaintiffs moved into the home and discovered many defects. Sweetwater sent a crew of employees to plaintiffs' home to make repairs. Oscar White observed the Sweetwater employees cut the support beams of the home with a blow torch and then weld the beams back together in an attempt to correct the camber of the steel frame.
    On 1 March 2001 plaintiffs filed a suit alleging that there continued to be substantial structural defects in the manufacturedhome and that the conduct of the defendants amounted to fraud, unfair and deceptive trade practices, and breach of warranty. All defendants except Sweetwater settled the suit with plaintiffs at a mediated settlement conference on 2 August 2002. The total amount paid to plaintiffs was $160,000.00. Sweetwater did not attend the mediated settlement conference and paid no monies towards the settlement.
    Defendants Oscar White d/b/a East Coast Mobile Homes and Haywood Outlaw d/b/a Outlaw Mobile Homes each filed a cross-claim against Sweetwater for indemnity or contribution for monies paid to plaintiffs.   (See footnote 1)  Sweetwater waived its right to a jury trial, and the action was heard by Judge Jack W. Jenkins in Onslow County Superior Court on 25 August 2003. The trial court entered judgment in favor of cross-claim plaintiffs in the amount of $37,787.00, which represents the original price of the home minus the $2,000.00 value of the furnishings therein. The judgment was entered on 15 December 2003, and Sweetwater filed notice of appeal on 13 January 2004.
    Sweetwater sets forth a number of assignments of error challenging the findings and conclusions entered by the trial court. First, Sweetwater assigns error to finding of fact (FOF) number twelve.
        12. There were serious defects in material and workmanship in the steel frame of the home, floor framing and subfloor of the home, theplumbing systems of the home, and the exterior walls of the home. These serious defects in material and workmanship were attributable to the manner in which the Home was manufactured and not to the manner in which the Home was delivered.

Sweetwater argues that the evidence does not support this finding. However, Sweetwater has failed to include with its appeal a transcript of all evidence relevant to the challenged finding by the trial court. This failure on the part of Sweetwater, as the appellant, is a violation of our Rules of Appellate Procedure. See N.C.R. App. P. 7(a)(1) (“If the appellant intends to urge on appeal that a finding or conclusion of the trial court is unsupported by the evidence or is contrary to the evidence, the appellant shall file with the record on appeal a transcript of all evidence relevant to such finding or conclusion.”); see also N.C.R. App. P. 9(a)(1)(e) (record must contain “so much of the evidence . . . as is necessary for an understanding of all errors assigned[.]”). Although Sweetwater's brief includes excerpts of testimony by two lay witnesses, it fails to include the testimony of expert witness George Barbour. According to cross-claim plaintiffs, Mr. Barbour was qualified by the trial court as an expert in structural engineering and testified on the issue of whether the problems with plaintiffs' home were primarily caused by manufacturing defects as opposed to damage from the delivery process. As Sweetwater failed to include this relevant evidence with the record, we presume that the court's finding was supported by competent evidence. See Davis v. Durham Mental Health/Dev. Disabilities Area Auth., 165 N.C. App.100, 111-12, 598 S.E.2d 237, 245 (2004). Accordingly, we overrule Sweetwater's assignment of error challenging FOF number twelve.
    Next, Sweetwater assigns error to Conclusion of Law (COL) number five.
        5. When goods are sold to a dealer with a warranty, it is assumed that the dealer can resell them to his customers with a similar warranty. Simpson v. Hatteras Island Gallery Restaurant, Inc. v. Willie E. Etheridge Seafood Co., Inc., 109 N.C. App. 314, 427 S.E.2d 131 (1993). In the event that the supplier (manufacturer) breaches this warranty, and the customer recovers damages from the dealer, the dealer has a prima facie right to recover damages against the original supplier of the goods. Id.

In Simpson v. Hatteras Island Gallery Restaurant, this Court discussed a doctrine of tort law permitting a joint tortfeasor who is secondarily liable to seek indemnification from the joint tortfeasor who is primarily liable. 109 N.C. App. 314, 321-22, 427 S.E.2d 131, 136, disc. review denied, 333 N.C. 792, 431 S.E.2d 27 (1993). Sweetwater argues that the trial court erroneously applied this doctrine to the facts of the case sub judice. We disagree.
    The doctrine of primary-secondary liability provides that “'a party secondarily liable is entitled to indemnity from the party primarily liable even where both parties are denominated joint tort-feasors.'” Id. (quoting Insurance Co. v. Chantos, 293 N.C. 431, 442, 238 S.E.2d 597, 604 (1977)). In COL number two, not challenged on appeal, the trial court stated that Sweetwater breached its express warranty to plaintiffs in that the home had severe structural defects attributable solely to Sweetwater. As the trial court concluded that Sweetwater's negligence was primary,the court properly applied the doctrine of primary-secondary liability here. Thus, we overrule Sweetwater's assignment of error concerning the right of cross-claim plaintiffs to recover based upon the primary negligence of Sweetwater.
    Sweetwater's remaining assignments of error are not properly preserved for appeal. As Sweetwater failed to assign error to FOF number nine below, it may not challenge this finding on appeal. See Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000). Next, Sweetwater provides no argument in support of its assignment of error concerning the amount of damages awarded to cross-claim plaintiffs. This assignment of error is, therefore, deemed abandoned. See N.C.R. App. P. 28(b)(6). Finally, Sweetwater argues that there was a lack of evidence that it breached any warranty to plaintiffs, and therefore the trial court erred in denying its motion to dismiss. However, Sweetwater failed to submit the relevant transcript evidence in support of its challenge to the trial court's ruling. As this Court may not presume error where none is shown by the record evidence, Sweetwater's argument must fail. See Faulkenberry v. Faulkenberry, ___ N.C. App. ___, ___, 610 S.E.2d 237, 239 (2005) (“Without evidence in the record of error by a trial judge, the appellate court is not required to and should not assume error on the part of the trial judge.”).
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

Footnote: 1
     We will hereinafter refer to these two defendants as “cross-claim plaintiffs,” as they are the plaintiffs in the action for indemnity or contribution underlying this appeal.

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