An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04_1001


Filed: 18 October 2005


v .                         Dare County
                            No. 00 CVS 248

    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.


    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.

    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.

    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.

    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).

    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.


    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.


    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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