Electronic World v Barefoot, et al, (04-1049) 06/07/2005

Appeal by Defendants from judgment entered 31 October 2003 by Judge B. Craig Ellis in Superior Court, Columbus County. Heard in the Court of Appeals 19 April 2005.

Marshall, Williams & Gorham, LLP, by John L. Coble and F. Murphy Averitt, III, for plaintiff-appellee.

Lee & Lee, by Junius B. Lee, III, for defendant-appellants.

    WYNN, Judge.

    A motion for a directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure presents the same question for both trial and appellate courts: whether the evidence, taken in the light most favorable to the plaintiff, is sufficient for submission to the jury. Helvy v. Sweat, 58 N.C. App. 197, 199, 292 S.E.2d 733, 734, disc. review denied, 306 N.C. 741, 295 S.E.2d 477 (1982). In this case, the record shows that there is evidence to support Plaintiff's claims for breach of lease and unfair and deceptive trade practices. Accordingly, we hold that the trialcourt did not err in denying Defendant's Motion for a Directed Verdict.
    This case stems from a commercial lease between Plaintiff Electric World, Inc., lessee, and Defendants, Rickey J. Barefoot and Katherine Barefoot, lessors. On 16 February 2000, Plaintiff filed a complaint against Defendants alleging breach of lease, trespass, civil conspiracy, and unfair and deceptive trade practices. Plaintiff also sought recovery for monies allegedly due from Barefoot for removal of the original and additional gasoline tanks from the property. The trial court granted Defendants' Motion for Summary Judgment, and Plaintiff appealed. This Court reversed the decision of the trial court and remanded the case for trial on the merits. Elec. World, Inc. v. Barefoot, 153 N.C. App. 387, 570 S.E.2d 225 (2002).   (See footnote 1)
    Plaintiff filed a Motion to Quash Subpoena and Defendants filed a Motion in Limine. Before the trial, the trial judge orally denied Defendants' Motion in Limine and granted Plaintiff's Motion to Quash Subpoena. Following trial, on 22 September 2003, the jury entered a verdict in favor of Plaintiff on all claims. On 29 September 2003, Plaintiff filed a Motion to Tax Costs. On 31 October 2003, the trial court entered an Order and Award of Costs and entered Judgment in favor of Plaintiff. Defendants appeal from the Judgment and the Award of Costs.
        __________________________________________    On appeal, Defendants argue that the trial court erred in (1) denying their motion in limine; (2) granting Plaintiff's motion to quash subpoena; (3) allowing Plaintiff's counsel to ask leading questions; and (4) denying their motion for a directed verdict. We disagree.
    Defendants assign error to the trial court's denial of their motion in limine and granting of Plaintiff's motion to quash the subpoena. However, Defendants did not designate these oral orders in their notice of appeal. Rule 3 of the North Carolina Rules of Appellate Procedure requires that the notice of appeal “. . . shall designate the judgment or order from which appeal is taken . . ..” N.C. R. App. P. 3(d). Rule 3 of the North Carolina Rules of Appellate Procedure is jurisdictional, and if the requirements of this rule are not complied with, the appeal must be dismissed. Currin-Dillehay Bldg. Supply, Inc. v. Frazier, 100 N.C. App. 188, 189, 394 S.E.2d 683, 683 appeal dismissed and cert. denied, 327 N.C. 633, 399 S.E.2d 326 (1990); Von Ramm v. Von Ramm, 99 N.C. App. 153, 156, 392 S.E.2d 422, 424 (1990) (notice of appeal from denial of a motion to set aside a judgment which does not also specifically appeal the underlying judgment does not properly present the underlying judgment for review). As the orders were not included in the notice of appeal, we dismiss assignments of error one and two.
    Next, Defendants argue that the trial court erred in allowing Plaintiff's counsel to ask leading questions on re-direct examination. We disagree.    “A leading question is generally defined as one which suggests the desired response and may frequently be answered yes or no.” State v. Britt, 291 N.C. 528, 539, 231 S.E.2d 644, 652 (1977). The general rule is that leading questions should be asked only on cross-examination. N.C. Gen. Stat. § 8C-1, Rule 611(c) (2004). However, a trial judge must “exercise reasonable control over the mode . . . of interrogating witnesses . . ..” N.C. Gen. Stat. § 8C-1, Rule 611(a) (2004). Leading questions should be permitted on direct examination when necessary to develop the witness's testimony. N.C. Gen. Stat. § 8C-1, Rule 611(c). Among other things, this means that it is within the discretionary power of the trial judge to allow leading questions on direct examination. State v. Riddick, 315 N.C. 749, 756, 340 S.E.2d 55, 59 (1986). Rulings by the trial judge on the use of leading questions are discretionary and reversible only for an abuse of discretion. See id.; State v. Smith, 290 N.C. 148, 160, 226 S.E.2d 10, 18, cert. denied, 429 U.S. 932, 50 L. Ed. 2d 301 (1976). A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision. Riddick, 315 N.C. at 756, 340 S.E.2d at 59.
    We assume arguendo that the questions asked by Plaintiff's counsel to Mr. Watts and assigned as error were leading. The record shows that Mr. Watts had trouble understanding questions with regard to his deposition statements. When questioned, he responded, “I don't understand the, I don't understand the meaningof that.” A trial judge may allow leading questions if they are necessary to develop a witness's testimony. N.C. Gen. Stat. § 8C- 1, Rule 611(c). A trial court may be reversed for abuse of discretion only upon a showing that its ruling was manifestly unsupported by reason and could not have been the result of a reasoned decision. Riddick, 315 N.C. at 756, 340 S.E.2d at 59. We find no such abuse of discretion by the trial court in allowing the questions to be asked and answered.
    Finally, Defendants argue that the trial court erred in denying their motion for a directed verdict as Plaintiff's evidence failed to establish a claim for breach of lease and unfair and deceptive trade practices.   (See footnote 2) We disagree.
    A motion for a directed verdict under Rule 50(a) of the North Carolina Rules of Civil Procedure presents the same question for both trial and appellate courts: whether the evidence, taken in a light most favorable to the plaintiff, was sufficient for submission to the jury. Helvy, 58 N.C. App. at 199, 292 S.E.2d at 734. The question of the evidence's sufficiency is a matter of law, and the denial of the motion should be upheld if there is more than a scintilla of evidence to support all the elements of the plaintiff's prima facie case. S. Ry. Co. v. O'Boyle Tank Lines, Inc., 70 N.C. App. 1, 4, 318 S.E.2d 872, 875 (1984). Therefore, this Court reviews the record and transcript de novo, affirmingupon a finding of more than a scintilla of evidence supporting each element of the plaintiff's prima facie case. Whitt v. Harris Teeter, Inc., 165 N.C. App. 32, 46, 598 S.E.2d 151, 160, disc. review on additional issues denied, 359 N.C. 75, 605 S.E.2d 151 (2004).
    Plaintiff's evidence shows that it entered into a lease agreement with Defendants in 1996 for the area known as Shorty's Convenient Mart. At the time the lease was signed, Plaintiff had already been in possession of the property for approximately ten years. During that time, Plaintiff had made improvements including the addition of two underground gas tanks. The underground gas tanks were in place at the time the 1996 lease was signed. Plaintiff presented testimony that starting in 1997 the Barefoots authorized the Chandlers to park cars in the area over the underground gas tanks, preventing refill of the tanks and delaying their removal. Since this is at least a scintilla of evidence that Defendants breached the lease, we affirm the trial court's denial of the directed verdict. Whitt, 165 N.C. App. at 46, 598 S.E.2d at 160.
    To prevail on a claim of unfair and deceptive trade practices, a plaintiff must show: (1) the defendants committed an unfair or deceptive act or practice; (2) in or affecting commerce; and (3) that the plaintiff was injured thereby. See N.C. Gen. Stat. § 75-1.1 (2004); Canady v. Mann, 107 N.C. App. 252, 260, 419 S.E.2d 597, 602 (1992). This Court has held that the renting of commercial property satisfies the statutory requirement of“commerce” under this section. See Kent v. Humphries, 50 N.C. App. 580, 589, 275 S.E.2d 176, 183, aff'd as modified, 303 N.C. 675, 281 S.E.2d 43 (1981). Plaintiff also presented evidence that Defendants attempted to coerce Watts into selling Shorty's through hostile and threatening behavior. The record shows that after signing their lease with one another, both Barefoot and Chandler pressured Watts to sell Shorty's. When Plaintiff refused to sell the business, Barefoot and Chandler acted in an openly hostile manner towards Watts. Thereafter, Chandler began parking used vehicles on Plaintiff's property and refused to remove the vehicles. These actions forced Plaintiff to discontinue its sale of gasoline at Shorty's, causing Plaintiff economic damages. When Watts requested Barefoot's assistance in the matter, Barefoot verbally abused him and refused to take any action to prevent Chandler from parking his vehicles on Plaintiff's property. These actions provide more than a scintilla of evidence to support the elements of an unfair and deceptive trade practice claim. Whitt, 165 N.C. App. at 46, 598 S.E.2d at 160. Therefore, the trial court did not err in denying Defendants' Motion for a Directed Verdict.
    Affirmed.
    Judges BRYANT and JACKSON concur.
    Report per Rule 30(e).

Footnote: 1