An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1399

NORTH CAROLINA COURT OF APPEALS

Filed: 5 July 2005

PAUL J. MATHEWSON,
            Plaintiff,

     v .                                 Moore County
                                        No. 01 CVS 1255
STEPHEN CARTER, HOLDEN FARM PROPERTY
MANAGEMENT PARTNERSHIP,
            Defendants.

    Appeal by defendant Stephen Carter from an order entered 17 March 2003 by Judge Michael E. Helms and an order entered 15 April 2004 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 12 May 2005.

    Rodney W. Robinson for plaintiff appellee.

    Bruce T. Cunningham, Jr., for Stephen Carter defendant appellant.

    McCULLOUGH, Judge.

    Defendant appeals from judgments in plaintiff's favor with respect to the existence of a partnership between the parties and the amount of partnership profits owed to plaintiff. We affirm.
    In October 2001, plaintiff Paul Mathewson filed a complaint in Moore County Superior Court against Stephen Carter, Elizabeth Holden, and Holden Farm Property Management Partnership for breach of contract and fraud in the misappropriation of partnership funds. The complaint alleged that Mathewson, Carter, and Holden had entered into a verbal agreement by which they became partners ofHolden Farm Property Management, and that Mathewson had been denied his share of the partnership profits.
    At trial, Mathewson's evidence tended to show that only he and Carter were partners of Holden Farm Property Management and that Holden was not a partner in the business. Therefore, the trial court granted a motion to dismiss Mathewson's claims against Holden. The remaining claims were submitted to a jury.
    The jury found that there was a verbal partnership agreement between Mathewson and Carter pursuant to which each of them was to receive fifty percent of the profits of Holden Farm Property Management. The trial court entered a judgment consistent with the jury's verdict, and pursuant to the consent of the parties, entered an order referring the case to a referee to make a final accounting and submit a report stating the profits made by the partnership. The order of reference provided that the referee was not required to conduct a hearing, receive evidence, or make findings of fact.
    In conducting his accounting, the referee met separately with Mathewson and Carter. Mathewson alleged that $22,000.00 of the listed partnership expenses were, in fact, personal expenses made for Carter's benefit. Because of poor record-keeping by Carter, the referee was unable to independently verify Mathewson's assertion. Furthermore, Carter did not dispute the allegation that $22,000.00 of the listed partnership expenses were personal expenditures for his benefit, but instead continued to contest the existence of a partnership. The referee submitted a report that contained two different estimates of the partnership profits. Oneestimate attributed the $22,000.00 to personal expenditures by Carter and found that Mathewson was entitled to $43,913.48. The other estimate allocated the expenditures to the business and found that Mathewson was entitled to $32,687.68.
    On 20 January 2004, the referee filed his report with the Moore County Clerk of Court. Neither party filed an exception within thirty days of the filing of the referee's report as is required by N.C. Gen. Stat. § 1A-1, Rule 53(g)(2). On 16 March 2004, the trial court held a hearing on Mathewson's motion to adopt the referee's report. Following the hearing, the trial court adopted the higher estimate of partnership profits and entered judgment for Mathewson consistent with this estimate.
    Carter now appeals, contending that the trial court erred by (1) denying his motion for a directed verdict, and (2) adopting one of the alternative amounts set forth in the referee's report. These contentions lack merit.

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    We first address Carter's argument that the trial court erred by denying his motion for a directed verdict. Specifically, Carter insists that dismissal was required because the complaint alleged that Mathewson, Carter, and Holden were partners of Holden Farm Property Management, but Mathewson admitted at trial that only he and Carter were partners.
    In his brief to this Court, Carter has cited no legal authority for his position that a variation between the complaint and the evidence at trial requires dismissal where, as here, thecontradiction does not affect the allegations against the defendant whose motion to dismiss was denied. Furthermore, Carter's brief is bereft of any rationale in support of his assignment of error beyond the bald assertion that the contradiction between the complaint and Mathewson's evidence necessitated dismissal. Pursuant to Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure, an appellant's brief must contain:
        An argument, to contain the contentions of the appellant with respect to each question presented. Each question shall be separately stated. 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. Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.

        The body of the argument shall contain citations of the authorities upon which the appellant relies.

(Emphasis added.) Pursuant to Rule 28, Carter's first assignment of error is abandoned to the extent it asserts that a discrepancy between the pleading and the evidence at trial required dismissal of Mathewson's action.
    However, Carter has cited authority for the hornbook proposition that a motion for a directed verdict tests whether a plaintiff's evidence is sufficient to be submitted to a jury. See DeHart v. R/S Financial Corp., 78 N.C. App. 93, 98, 337 S.E.2d 94, 98 (1985), disc. review denied, 316 N.C. 376, 342 S.E.2d 893 (1986). After carefully reviewing the record, we conclude thatplaintiff's evidence was sufficient to warrant submission of his case to the jury.
    This assignment of error is overruled.
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    We next address Carter's argument that the trial court erred by adopting one of the alternative amounts set forth in the referee's report. We do not agree.
    N.C. Gen. Stat. § 1A-1, Rule 53(g)(2) (2003) provides that “[a]ll or any part of [a referee's] report may be excepted to by any party within 30 days from the filing of the report.” In the absence of timely exceptions, “the factual findings of the referee . . . are conclusive.” State ex rel. Gilchrist v. Cogdill, 74 N.C. App. 133, 136, 327 S.E.2d 647, 649 (1985).
    In the instant case, the trial court did not err by adopting the referee's report because no exception was filed within the time period established by N.C. Gen. Stat. § 1A-1, Rule 53(g)(2). Furthermore, the evidence presented at the hearing on Mathewson's motion to adopt the referee's report amply supported the trial court's decision to adopt the higher estimate of partnership profits stated in the report.
    This assignment of error is overruled.
    Affirmed.
    Judges TIMMONS-GOODSON and STEELMAN concur.
    Report per Rule 30(e).

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