Appeal by defendant from judgment entered 4 March 2004 by
Judge J. Richard Parker in Dare County Superior Court. Heard in
the Court of Appeals 10 March 2005.
Aycock & Butler, PLLC, by Charlie Aycock and Betsy Butler, for
plaintiffs-appellees.
Sharp, Michael, Outten and Graham, LLP, by Robert L. Outten,
for defendant-appellant.
GEER, Judge.
Defendant Rapscallion Marine, Inc. appeals from a jury verdict
in the amount of $62,526.27 in favor of plaintiffs David and
Barbara Robinson and in the amount of $23,556.92 in favor of
plaintiffs Jack Endsley and Carol Geishecker. Based upon our
review of the record, we hold that defendant received a trial free
from prejudicial error.
Facts
The evidence presented at trial tended to show the following
facts. James J. Cleary, Jr. contracted with Robin Smith to buildCleary a charter boat to be called the "Rapscallion." According to
Smith, the two men originally agreed that Smith would build Cleary
a boat while Cleary would build Smith a boat facility. In 1996,
Cleary formed the defendant corporation Rapscallion Marine, Inc.
("Rapscallion") in order to purchase a boat yard located in
Wanchese, North Carolina. A credit application and credit sales
agreement between Rapscallion and Paxton Co., a marine supply
business, indicated that Rapscallion was a "boat building workshop
and marina." The agreement also indicated that Smith was
Rapscallion's vice-president.
The sign at the boat yard identified the boat yard as
"Rapscallion Marine." Smith testified that he managed the boat
yard for Rapscallion and reported to Cleary and Cleary's attorney,
Starkey Sharp. Cleary's accountant was responsible for the boat
yard's accounting. Smith rented boat slips, hauled out boats, and
rented bays for others to use in working on their boats. Smith
also continued to work on Cleary's personal boat. The Rapscallion
account with Paxton was used for the boat yard business, but not
for Cleary's boat. Although Cleary contended, contrary to Smith's
testimony, that Smith was operating the boat yard for Smith's own
business, Cleary admitted that he did not charge Smith any rent for
his use of the boat yard.
In the spring of 1999, Smith received a letter from Starkey
Sharp directing him to leave the boat yard. Cleary told Smith that
the only way Smith could stay was by making a deal with John
Schlegal. From the conversation with Cleary, Smith understood thatSchlegal would be managing the boat yard. When Smith left in May
1999, he turned over the Rapscallion checking account (containing
$10,000.00) to Rapscallion's secretary, Laura Catoe. John Schlegal
then began operating the boat yard under the name Sportsman
Boatworks and Marina ("Sportsman").
In a May 1999 letter, Schlegal reported to Cleary that he had
"proposed an agreement with Omie Tillett for him to sell us the
name SPORTSMANS for $1.00 and other consideration. He has agreed
. . . ." After noting that Tillett was a "local legend," Schlegal
explained: "My thought is that we use the name SPORTSMAN BOATWORKS
AND MARINA for the yard activities. Everyone knows the name and
the location. We can use the RAPSCALLION name for our new boat
marketing program or custom boats should we choose to build them."
In a letter dated 25 May 1999, Starkey Sharp reported to
Cleary that Schlegal was "proceeding to set up the boat yard" and
that Schlegal had "set[] up a post office box, arrang[ed] for the
utilities to be placed in the name of Rapscallion Marine and
otherwise [was] getting control of the facility." Sharp reported
that Schlegal was "running everything through my office for
approval" and that Sharp was advancing funds to cover miscellaneous
expenses of the boat yard until Cleary decided how to proceed in
the longer term.
Schlegal told boat yard employees that he was "working for
Rapscallion Marine" and that Cleary was "the boss." Schlegal also
told Robin Smith that he was working for Rapscallion. The phone at
the business was always answered with "Rapscallion and Sportsman." Ultimately, the Rapscallion checkbook and accounting records were
given to Schlegal and, in operating the boat yard, Schlegal drew
checks on Rapscallion's account. Plaintiffs offered evidence of a
signature card for Rapscallion's account signed by Schlegal and a
corporate resolution submitted to the bank naming Schlegal as
Rapscallion's secretary. Cleary's accountant continued to do the
business' accounting and prepared financial statements for
"Rapscallion Marine Inc. (Sportsmans Boatworks & Marina)." The
signage at the boat yard continued to identify it as "Rapscallion
Marine." Although, as with Smith, Cleary claimed at trial that
Sportsman was an independent business owned by Schlegal, neither
Sportsman nor Schlegal ever paid rent or made any other kind of
payment for use of the boat yard to Cleary or Rapscallion.
Schlegal hired Captain Bobby Sullivan to repair and build
boats at the Rapscallion property. Sullivan was paid by
Rapscallion. Shortly after being employed, Sullivan told Schlegal
that his friends, plaintiffs Jack Endsley and Carol Geishecker,
needed their boat repaired. Sullivan identified Schlegal to
Endsley and Geishecker as the manager of Rapscallion Marine boat
yard. As a result of Sullivan's referral, Schlegal also met with
plaintiffs David and Barbara Robinson. In the Robinsons' presence,
Schlegal repeatedly referred to Cleary as his "boss."
In October 1999, Schlegal entered into a contract on Sportsman
letterhead with Endsley and Geishecker to refurbish their boat,
while in November 1999, Schlegal entered into another contract,
also on Sportsman letterhead, with the Robinsons to repair theirboat. Both contracts provided for staggered payments to be made as
work was completed. In January 2000, in order to make a payment,
Endsley wired money into the Rapscallion bank account.
In February 2000, after learning of a complaint by Woody
Smith, who was having his boat repaired, Cleary called Schlegal and
told him to "get Woody Smith's boat out of the yard." Schlegal in
turn told Endsley that Cleary was requiring him to complete repairs
on another boat and, as a result, repairs on Endsley's boat would
be delayed. Likewise, Schlegal told the Robinsons _ who lived on
their boat _ that repairs were "running behind schedule." The
repairs were never completed on either boat and plaintiffs
ultimately made other arrangements for repair of their boats.
By 24 March 2000, Cleary had lined up a buyer for the yard,
and Cleary's attorney directed Schlegal to vacate the premises. In
April 2000, Schlegal left the boat yard. At that point, the work
on plaintiffs' boats was still unfinished. Plaintiffs filed suit
against "Rapscallion Marine, Inc., d/b/a Sportsman Boatworks and
Marina" on 17 April 2000, asserting claims for breach of contract,
unfair and deceptive trade practices, and negligence.
After conducting discovery, defendant moved for summary
judgment. The trial court granted the motion on the grounds that
plaintiffs had failed to forecast sufficient evidence either of an
agency relationship between Schlegal and Rapscallion or of
ratification by Rapscallion. Plaintiffs appealed to this Court.
In an unpublished opinion filed 12 September 2002, this Court
reversed the grant of summary judgment, holding that plaintiffs hadpresented sufficient evidence of actual authority, ratification,
and apparent authority and remanding the case for trial.
Robinson
v. Rapscallion Marine, Inc., No. 01_1513, 2003 N.C. App. LEXIS 453
(Feb. 18, 2003) (unpublished).
Following a trial in Dare County Superior Court, the jury
rendered a verdict in plaintiffs' favor and found, in answers to
special interrogatories, that (1) Schlegal was an agent of
Rapscallion at the time of the acceptance of the contracts with the
plaintiffs, (2) Schlegal was authorized to enter into boat repair
contracts on behalf of Rapscallion, (3) Schlegal entered into boat
repair contracts between plaintiffs and Rapscallion, (4)
Rapscallion breached its contract with the plaintiffs, and (5)
Rapscallion was liable to Jack Endsley and Carol Geishecker in the
amount of $23,556.92 and to David and Barbara Robinson in the
amount of $62,526.27. Judgment was entered on this verdict and
defendant Rapscallion appealed.
I
Defendant first assigns error to the trial court's admission,
over defendant's objection, of the credit application and credit
sales agreement between defendant Rapscallion and Paxton Co. dated
23 October 1997. Defendant argues that the credit agreement should
have been excluded under Rules 401 and 402 of the Rules of Evidence
because it was irrelevant. We disagree.
"'Relevant evidence' means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than itwould be without the evidence." N.C.R. Evid. 401. Relevant
evidence is generally admissible, and irrelevant evidence is
generally inadmissible. N.C.R. Evid. 402. We note that since
Rapscallion does not argue that any probative value was outweighed
by its prejudice, N.C.R. Evid. 403, the sole issue on appeal is
whether the Paxton application and agreement constituted relevant
evidence as defined in Rule 401.
Based on our review of the record, we hold that the exhibit
tended to rebut Rapscallion's contention that it had never operated
the boat yard, but rather that first Smith and then Schlegal had
operated their own independent businesses rent-free on the
Rapscallion property. The exhibit, in which Rapscallion identified
itself as a boat building and marina business, suggests that
Rapscallion was established with the intent that it actively
operate the boat yard since, a jury could find, there would be no
other reason to have an account with a marine supply company.
Further, Schlegal ultimately used this account to purchase supplies
and listed this account as a credit reference for Sportsman,
suggesting that Sportsman and Rapscallion were one and the same.
Finally, although Cleary denied that Smith had any involvement in
Rapscallion, the application identified Smith as its vice-
president. A jury could rely upon this inconsistency to reject
Cleary's similar contention that Schlegel was not an employee or
officer of Rapscallion and that the bank signature card and
corporate resolution indicating otherwise were unauthorized. The
trial court thus did not err in admitting this exhibit.
II
Rapscallion next argues that the trial court erred (1) by
allowing Robin Smith to testify as to the content of an affidavit
that Smith had signed approximately three years before trial, and
(2) by admitting the affidavit as an exhibit. We hold that
Rapscallion has failed to demonstrate prejudicial error.
During the direct examination of Smith, plaintiffs' counsel
asked if Cleary had told Smith that Schlegal was taking over the
boat yard as manager. Smith responded: "I can't remember if he
told me that straight out or not but that's what I construed from
our conversations." The examination then proceeded as follows:
[Plaintiffs' counsel]: That's what you
put in your affidavit in 2001?
[Defendant's counsel]: Objection.
THE COURT: Do you have the affidavit
up there?
THE WITNESS: No, sir.
[Plaintiffs' counsel]: I'm not
trying to put it into evidence, Your
Honor.
THE COURT: Overruled.
After an off-the-record bench conference and apparently after
having handed the witness the affidavit, plaintiffs' counsel then
asked: "Mr. Smith, 2001 when you signed the affidavit _ and in the
affidavit you signed the affidavit under oath saying that Mr.
Cleary called you and told you that Schlegal was going to manage
the boat yard, is that right?" Smith responded "yes" and agreedthat it would "be fair to say" that three years earlier he "had a
better recollection of what occurred" than he did at trial.
Rapscallion argues that this questioning did not comply with
the requirements for refreshed recollection, N.C.R. Evid. 612,
while plaintiffs argue that the testimony was admissible as past
recollection recorded under N.C.R. Evid. 803(5). The distinction
between the two approaches is that
"[i]n present recollection
refreshed[,] the evidence is the testimony of the witness at trial,
whereas with a past recollection recorded[,] the evidence is the
writing itself."
State v. Gibson, 333 N.C. 29, 50, 424 S.E.2d 95,
107 (1992),
overruled on other grounds by State v. Lynch, 334 N.C.
402, 432 S.E.2d 349 (1993).
Under Rule 612, "the witness' memory is refreshed or jogged
through the employment of a writing, diagram, smell or even touch,
and he testifies from his memory so refreshed. The evidence
presented at trial comes from the witness' memory, not from the aid
upon which the witness relies . . . ."
State v. Mlo, 335 N.C. 353,
367, 440 S.E.2d 98, 104 (internal citations and quotation marks
omitted),
cert. denied, 512 U.S. 1224, 129 L. Ed. 2d 841, 114 S.
Ct. 2716 (1994). When the testimony of the witness purports to be
from a refreshed memory, but instead is actually a mere recitation
of the refreshing memorandum, then the testimony is not admissible
as present recollection refreshed and should be excluded by the
trial judge.
Id., 440 S.E.2d at 105.
Under Rule 803(5), an exception to the hearsay rule is made
for "[a] memorandum or record concerning a matter about which awitness once had knowledge but now has insufficient recollection to
enable him to testify fully and accurately, shown to have been made
or adopted by the witness when the matter was fresh in his memory
and to reflect that knowledge correctly." Pursuant to this
exception, "the memorandum or record may be read into evidence but
may not itself be received as an exhibit unless offered by an
adverse party."
Id.
In the present case, plaintiffs' counsel did not comply with
the requirements under either rule. He did not show the affidavit
to Smith in an attempt to refresh his recollection regarding the
details of his conversation with Cleary, as indicated by the fact
he never asked the witness whether the affidavit refreshed his
recollection.
Mlo, 335 N.C. at 367, 440 S.E.2d at 104. Nor did
counsel's questions lay the foundation required by Rule 803(5).
Even if Smith's testimony met the requirement of "insufficient
recollection to enable him to testify fully and accurately"
regarding what Cleary said, Smith never testified that the
affidavit was "made or adopted by [Smith] when the matter was
fresh
in his memory." N.C.R. Evid. 803(5) (emphasis added). Further,
counsel never had Smith read to the jury the pertinent portion of
the affidavit, as provided by Rule 803(5). Since plaintiffs'
counsel did not comply with either Rule 612 or Rule 803(5), we
conclude that the trial court improperly overruled defendant's
objection to this testimony.
Even though the trial court erred in overruling defendant's
objection, we must consider whether the error was harmless. "Theburden is on the appellant to not only show error, but also to show
that he was prejudiced and a different result would have likely
ensued had the error not occurred."
Suarez v. Wotring, 155 N.C.
App. 20, 30, 573 S.E.2d 746, 752 (2002),
disc. review denied, 357
N.C. 66, 579 S.E.2d 107 (2003). Here, defendant has offered no
argument as to why the jury would likely have reached a different
result in the absence of the improperly admitted testimony. Since
even in the absence of this testimony, the jury would have heard
Smith's testimony that he "construed from" his conversation with
Cleary that Schlegal was taking over as manager of the boat yard,
we can discern no prejudice. We, therefore, hold the error in
admitting the testimony to be harmless.
Subsequently, during plaintiffs' redirect examination of
Smith, the trial court admitted Smith's affidavit into evidence
over defendant's objection. Defendant argues on appeal that
documents used to refresh a witness' recollection may not be
admitted into evidence. We agree with plaintiffs, however, that
defendant opened the door to the affidavit's admission during the
cross-examination of Smith. Our Supreme Court has held that "the
introduction of evidence to dispel favorable inferences arising
from [the] cross-examination of a witness" is permissible even if
the evidence would otherwise constitute hearsay.
State v.
Johnston, 344 N.C. 596, 608, 476 S.E.2d 289, 296 (1996). Here,
defendant's counsel sought to undermine Smith's credibility by
suggesting that plaintiffs' counsel, and not Smith, was actually
the source of the information contained in the affidavit signed bySmith. Plaintiffs then offered the affidavit in order to rebut
this contention by showing the jury Smith's alterations and
additions to the affidavit. This affidavit was admissible for that
purpose.
Even if defendant had not opened the door to the admission of
the affidavit, defendant argues only generally, with respect to
harm, that "the writing is contrary to the witnesses [sic]
testimony and attempts to establish an agency relationship between
John Schlegal and Defendant by using the improperly admitted
affidavit." Defendant does not identify any information that was
contained in the affidavit that was not also included in Smith's
actual testimony. Based on our review of the affidavit and the
record, we hold that any error in admitting the affidavit was
harmless.
III
Defendant next argues that the trial court "commit[ted]
reversible error by admitting the statements and letters of John
Schlegal, the purported agent, as evidence of an agency
relationship with the Defendant and of Schlegal's apparent
authority to act for Defendant[.]" We first observe that defendant
has failed to comply with the Rules of Appellate Procedure. Rule
28(b)(6) provides with respect to the argument section of the
appellant's brief: "Immediately following each question shall be
a reference to the assignments of error pertinent to the question,
identified by their numbers and by the pages at which they appear
in the printed record on appeal." Defendant has failed toreference its assignments of error in the argument section of its
brief. In addition, the brief itself does not identify the
"statements and letters of John Schlegal" that it contends should
not have been admitted.
When we turn to the assignments of error in the record on
appeal, the assignment of error that appears to relate to this
argument references 25 pages of transcript and 26 pages of
exhibits. While these references may comply with the requirement
of N.C.R. App. P. 10(c)(1) ("An assignment of error is sufficient
if it directs the attention of the appellate court to the
particular error about which the question is made, with clear and
specific record or transcript references."), defendant does not
then explain in its brief what portions of those pages of evidence
were inadmissible or attempt to apply the precedent it discusses in
its brief to those portions. The cited pages involve different
witnesses and numerous exhibits containing a multitude of
statements, regarding a variety of subjects.
See N.C.R. App. P.
28(b)(6) ("Assignments of error . . . in support of which no reason
or argument is stated . . . will be taken as abandoned.").
Further, contrary to N.C.R. App. P. 28(d)(1), defendant has
not reproduced in an appendix to its brief "those portions of the
transcript showing the pertinent questions and answers when a
question presented in the brief involves the admission or exclusion
of evidence." It is not the responsibility of this Court to create
an appeal for defendant by poring through the pages referenced in
the record on appeal, attempting to discern which portions theappellant deems objectionable, and then, without assistance from
the appellant, determining the applicability of the principles
cited in appellant's brief.
Because of defendant's failure to distinguish among the
numerous pieces of evidence, we also cannot address its argument
that the trial court should have given a limiting instruction with
respect to the purpose for which the evidence could be considered.
In contending that the trial court erred in not giving a limiting
instruction, defendant relies exclusively on its contention that
all of the evidence cited in its assignment of error should have
been excluded wholesale.
Even if we overlook the failure to comply with the Rules of
Appellate Procedure, this Court previously determined that "the
numerous communications from Schlegal to Cleary" were relevant to
the question of ratification and this Court relied upon various
letters of Schlegal in finding sufficient evidence of apparent
agency to defeat summary judgment.
Robinson, 2003 N.C. App. LEXIS
453 at *6-7. We cannot revisit that determination.
In re Appeal
from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989).
IV
Defendant next contends that the trial court erred (1) by
denying its motion, pursuant to N.C.R. Civ. P. 15(b), at the close
of the evidence, to amend its pleadings to include the defense of
a failure to mitigate damages and (2) by refusing to instruct the
jury on the issue of mitigation. Failure to mitigate is an
affirmative defense.
See, e.g.,
Pinckney v. Baker, 130 N.C. App.670, 672, 504 S.E.2d 99, 101 (1998) (defendant "pleaded as
affirmative defenses the doctrines of sudden emergency, . . . and
failure to mitigate damages"). A failure to allege an affirmative
defense in an answer constitutes a waiver of that defense.
Purchase Nursery, Inc. v. Edgerton, 153 N.C. App. 156, 162, 568
S.E.2d 904, 908 (2002). Accordingly, the trial court was not
required to instruct on the mitigation defense unless it allowed
defendant's motion to amend its pleadings.
Although motions such as defendant's are ordinarily allowed
for the purpose of "conform[ing] the pleadings to the evidence and
rais[ing] issues tried by the express or implied consent of the
parties," a trial court's ruling is reviewable only for an abuse of
discretion.
Mosley & Mosley Builders, Inc. v. Landin Ltd., 87 N.C.
App. 438, 447, 361 S.E.2d 608, 614 (1987),
cert. denied, 322 N.C.
607, 370 S.E.2d 416 (1988). For amendment to be proper under
N.C.R. Civ. P. 15, "'there must be evidence of an unpleaded issue
introduced without objection, and it must appear that the parties
understood, or at least reasonably should have understood, that the
evidence was aimed at an issue not expressly pleaded.'"
Peed v.
Peed, 72 N.C. App. 549, 556, 325 S.E.2d 275, 281 (quoting
Evans v.
Craddock, 61 N.C. App. 438, 444, 300 S.E.2d 908, 913 (1983)),
cert.
denied, 313 N.C. 604, 330 S.E.2d 612 (1985).
The general rule relating to the injured party's duty to
mitigate with respect to a breach of contract situation is that
"the injured party must do what fair and reasonable prudence
requires to save himself and reduce the damage; or the damage whicharises from his own neglect will be considered too remote for
recovery."
Turner Halsey Co. v. Lawrence Knitting Mills, Inc., 38
N.C. App. 569, 572, 248 S.E.2d 342, 344 (1978) (internal quotation
marks omitted). Defendant bore the burden of proving that
plaintiffs failed to mitigate their damages.
Tripps Rests. of
N.C., Inc. v. Showtime Enters., Inc., 164 N.C. App. 389, 393, 595
S.E.2d 765, 768 (2004).
Here, the only evidence that implicated a possible defense of
mitigation was the testimony of Schlegal and Cleary that they had
attempted to make arrangements for Paul Spencer, the purchaser of
the boat yard, to fix plaintiffs' boats. Schlegal claimed that
Spencer had agreed to finish repairing plaintiffs' boats for the
remaining amount due under their contracts. Although Cleary
initially testified that he and Spencer had reached an agreement
that Spencer would fix the Robinsons' boat without any additional
cost to the Robinsons, during a recess after this testimony, Cleary
became aware that Spencer was in the courtroom. When he returned
to the stand, Cleary admitted that Spencer had actually only said
"he would look into it or something along those lines." Plaintiffs
subsequently called Spencer as a rebuttal witness. Spencer
testified that he did not remember discussing anything with Cleary
about making boat repairs and that he never agreed with anyone to
repair the plaintiffs' boats without cost.
Although the trial court refused to amend the pleadings to
allow the mitigation of damages defense and, therefore, refused to
give an instruction on the duty to mitigate, we believe that anyerror in failing to give the requested instruction was harmless.
See State v. Hood, 332 N.C. 611, 617, 422 S.E.2d 679, 682 (1992)
("The [appellant] in the present case bears the burden of showing
a reasonable possibility that, absent the error [in failing to gave
a requested instruction], a different result would have been
reached at trial."),
cert. denied, 507 U.S. 1055, 123 L. Ed. 2d
659, 113 S. Ct. 1955 (1993). The trial court specifically
permitted defendant to argue to the jury the evidence it contended
related to the failure to mitigate. The court then gave the jury
the following instructions regarding damages:
If you have answered the fourth (4th)
issue, yes, in favor of the Plaintiffs, the
Plaintiffs are entitled to recover nominal
damages even without proof of actual damages.
Nominal damages consist of some trivial amount
such as $1 in recognition of the technical
damage resulting from the breach.
The Plaintiffs may also be entitled to
recover actual damages. On this issue, the
burden of proof is on the Plaintiffs. This
means that the Plaintiffs must prove by the
greater weight of the evidence the amount of
actual damages sustained as a result of the
breach.
. . . .
. . . In this case, you will determine
direct damages, if any, by determining the
reasonable costs to the Plaintiffs of labor
and materials and other costs necessary to
complete the repairs on their boats in
conformity with the requirements of the
contract.
To the amount of direct damages, add all
consequentially [sic] damages, if any,
sustained by the Plaintiffs. Consequential
damages conclude [sic] any loss resulting from
the Plaintiffs' circumstances of which the
Defendant knew or should have known at thetime the parties entered into the contract and
which the Plaintiffs could not have reasonably
prevented.
(Emphases added.)
This instruction allowed the jury to award nominal damages,
which provided the jury with a means to give effect to defendant's
claim that plaintiffs could have had their boats repaired by
Spencer at no further cost. In addition, the instruction
emphasized that plaintiffs could only recover "reasonable costs,"
"costs necessary to complete the repairs," or damages for losses
that "the Plaintiffs could not have reasonably prevented." These
limitations, especially in light of the nominal damages charge,
gave defendant much of the benefit that it would have received from
a more formal instruction on the mitigation defense. See Champs
Convenience Stores, Inc. v. United Chem. Co., 329 N.C. 446, 463,
406 S.E.2d 856, 866 (1991) (holding that the trial court did not
err in failing to give the defendant's proposed instruction on
mitigation of damages when the court instructed the jury that
plaintiff could be compensated only for "reasonable" losses); cf.
Hood, 332 at 618, 422 S.E.2d at 682 (holding that defendant was not
prejudiced by failure to give required alibi instruction when "the
trial court's charge afforded the defendant the same benefits a
formal charge on alibi would have afforded").
In light of the instructions actually given, Cleary's changed
testimony, and Spencer's rebuttal testimony, we do not believe
there is a reasonable possibility the jury would have reached a
different result had the court included a formal instruction onmitigation of damages. We, therefore, overrule these assignments
of error.
V
Defendant challenges the trial court's refusal to give the
following requested jury instruction on the meaning of reliance in
connection with apparent authority: "Apparent authority may not be
relied upon to assert that a principal authorized a certain
transaction between its purported agent and a third party unless
the third party actually relied upon the assertions of the
principal regarding the purported agent's power at the time of the
transaction." As defendant acknowledges, a trial court is required
to give a requested instruction only if it is an accurate statement
of the law and is supported by the evidence.
Millis Constr. Co. v.
Fairfield Sapphire Valley, Inc., 86 N.C. App. 506, 510, 358 S.E.2d
566, 568 (1987).
Under N.C.R. App. P. 28(b)(6), "[a]ssignments of error . . .,
in support of which no reason or argument is stated
or authority
cited, will be taken as abandoned." (Emphasis added.) In support
of this assignment of error, defendant cites
Millis for the general
principle, but cites no authority to support its contention that
the requested instruction was an accurate statement of the law.
Because defendant has not established that its proposed instruction
correctly stated the law, we decline to consider this assignment of
error.
VI
In his final argument, defendant asserts that the trial court
erred by denying defendant's motions for a directed verdict and for
judgment notwithstanding the verdict. Defendant contends that the
record contains insufficient evidence to permit a jury to find
Rapscallion liable for Schlegal's acts based on either actual
agency or apparent authority.
When considering a motion for a directed verdict, a trial
court must view the evidence in the light most favorable to the
non-moving party, giving that party the benefit of every reasonable
inference arising from the evidence.
Clark v. Moore, 65 N.C. App.
609, 610, 309 S.E.2d 579, 580 (1983). Any conflicts and
inconsistencies in the evidence must be resolved in favor of the
non-moving party.
Davis and Davis Realty Co. v. Rodgers, 96 N.C.
App. 306, 308-09, 385 S.E.2d 539, 541 (1989),
disc. review denied,
326 N.C. 263, 389 S.E.2d 112 (1990). If there is more than a
scintilla of evidence supporting each element of the non-moving
party's claim, the motion for a directed verdict should be denied.
Clark, 65 N.C. App. at 610, 309 S.E.2d at 580. The same standard
applies to motions for judgment notwithstanding the verdict.
Smith
v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986).
We note that in this Court's prior opinion in this case, the
Court concluded that the evidence submitted on summary judgment was
sufficient to give rise to "a genuine issue of material fact as to
whether Schlegal was acting under the actual or apparent authority
of Rapscallion."
Robinson, 2003 N.C. App. LEXIS 453 at *5. Werecognize that a denial of a summary judgment motion does not
necessarily bar a subsequent directed verdict.
Edwards v.
Northwestern Bank, 53 N.C. App. 492, 495, 281 S.E.2d 86, 88 (noting
that the motions involved different procedural postures and that
the evidence presented at trial was different),
disc. review
denied, 304 N.C. 389, 285 S.E.2d 831 (1981). Nevertheless, in this
case, the summary judgment motion and the directed verdict motion
addressed the same factual issues and almost identical evidence.
In order to accept defendant's argument, we would, in effect, have
to overrule our prior opinion.
See Headley v. Williams, 162 N.C.
App. 300, 306, 590 S.E.2d 443, 447 (recognizing holding of
Edwards,
but observing similarly that the prior summary judgment ruling
involved the same factual issues as the directed verdict motion),
disc. review denied, 358 N.C. 375, 598 S.E.2d 136 (2004).
In any event, based on our independent review, we hold that
the evidence, as summarized earlier, constitutes more than a
scintilla of evidence supporting liability on the part of
Rapscallion based on either actual agency or apparent authority.
The trial court, therefore, properly denied defendant's motions for
a directed verdict and judgment notwithstanding the verdict.
No error.
Judges TIMMONS-GOODSON and CALABRIA concur.
Report per Rule 30(e).
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