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DARVELLA JONES, Plaintiff, v. HARRELSON AND SMITH CONTRACTORS,
LLC, a North Carolina Corporation, and RODNEY S. TURNER d/b/a
RODNEY S. TURNER HOUSEMOVERS, Defendants
Filed: 19 December 2006
1. Appeal and Error--appealability_claims pending at time of appeal--subsequent
A motion to dismiss an appeal as interlocutory was denied where the motion was based
on claims that were pending at the time of the appeal, but were afterwards the subject of a default
judgment that left nothing to be resolved by the trial court as to that defendant.
2. Appeal and Error_assignments of error_overly broad_specific record pages not
Appellant's broad assignments of error and her failure to reference the specific record
pages to the order she purported to appeal from required dismissal of her appeal. Precedent
about broadside assignments of error from summary judgment does not extend to appeals from a
directed verdict and judgment n.o.v.
3. Appeal and Error_assignments of error_reasons and argument not stated
Plaintiff abandoned assignments of error by failing to state her reasons or argument or
cite any supporting authority.
Judge Geer dissenting.
Appeal by plaintiff from order entered 13 April 2005 and
judgment entered 10 May 2005 by Judge Jerry Braswell in Pamilco
County Superior Court. Heard in the Court of Appeals 29 March
William F. Ward, III, P.A., by William F. Ward, III, for
Hopf & Higley, P.A., by Donald S. Higley, II, for defendant-
appellee Harrelson and Smith Contractors, LLC.
No brief filed for defendant-appellee Rodney S. Turner d/b/a
Rodney S. Turner Housemovers.
Darvella Jones (plaintiff) appeals from order entered: (1)
granting a directed verdict and dismissed plaintiff's unfair and
deceptive trade practice claim; (2) granting Harrelson and Smith
Contractors, LLC's (defendant) motion for judgment
notwithstanding the verdict on plaintiff's fraud and conversion
claims; (3) denying plaintiff's request for specific findings of
fact and conclusions of law; and (4) denying plaintiff's unfair and
deceptive trade practice claim based upon plaintiff's conversion
claim. We dismiss plaintiff's appeal.
In September 1999, Hurricane Floyd flooded portions of Eastern
North Carolina. Following the hurricane, Pamlico County (the
County) instituted a flood acquisition program that allowed the
County to purchase property located in the 100 year flood plain.
The County purchased a house from Ray and Virginia Respers (the
Respers), located in the flood plain at 439 Jones Road in
Vandemere, North Carolina. The County paid approximately the
appraised value of $45,000.00 for the house.
The flood acquisition program included a demolition and
clearance project that required removal of improvements located in
the flood plain. The County solicited bids for the removal and/or
demolition of houses purchased, which were located in the flood
plain. During the bidding process, defendant submitted a
demolition bid in the amount of $60,797.00. The County awarded and
executed a contract with defendant to demolish or remove a group of
houses, including the Respers' former house. The contract allowed defendant an option to salvage the houses
scheduled for demolition, if the houses were severed from their
current lots and relocated to lots outside the flood plain.
In August 2002, plaintiff purchased the Respers' house from
defendant's agent John Harrelson (Harrelson) for $500.00.
Harrelson told plaintiff the house must be moved, but failed to
disclose the County's contract requirement to relocate the house
outside the flood plain. Plaintiff showed defendant a lot on Swan
Point Road where she intended to relocate the house. Defendant
recommended plaintiff contact defendant Rodney Turner (Turner) to
move the house. Plaintiff paid Turner $4,300.00 to move her house
from Jones Road to Swan Point Road.
On or about 20 September 2002, Pamlico County inspectors
learned that plaintiff's and two other houses had been relocated
from their original lots to other lots located inside the flood
plain. The North Carolina Division of Emergency Management gave
the County three possible ways to resolve this issue: (1) the
houses could be removed to another location outside of the flood
plain; (2) the houses could be demolished; or (3) the houses could
be removed from the buyout program by reimbursement of the County
for the full amount it had paid to the original owners.
The County informed defendant that the houses relocated to
other lots in the flood plain violated the terms of the demolition
and clearance contract, explained the three choices, and gave
defendant a deadline of 10 December 2002 to complete corrective
action. The County later threatened legal action againstdefendant if the provisions of the contract were not performed.
Defendant met with plaintiff and informed her the Swan Point
lot did not comply with the County's contract. Defendant told
plaintiff they had located a lot outside the flood plain on Water
Street in Bayboro, North Carolina and offered to relocate her house
at its expense. Defendant told plaintiff the lot owner had offered
to sell the lot for $12,000.00, and defendant agreed to pay for the
first two months. Plaintiff told defendant she did not want to
live on Water Street. She contacted a realtor and began to make
arrangements to purchase a lot in the Town of Reelsboro and move
the house there. On 5 December 2002, plaintiff provided defendant
with written certification that the Reelsboro lot was outside the
On 6 December 2002, four days before the County's deadline,
defendant hired Turner to move plaintiff's house from her Swan
Point lot to the Water Street lot that defendant had rented at its
own expense. Defendant acknowledged at trial that plaintiff never
gave permission to move the house, but testified defendant was
under pressure from the County to bring the contract into
compliance by 10 December 2002. Plaintiff discovered her house had
been moved on her drive to work.
On 9 December 2002, defendant sent a letter to the County
which requested payment on its contract with the County and stated:
Please consider this request and its urgency because [defendant]
has incurred considerable expense in trying to resolve these
issues. The County was not satisfied because the house was stillin a potential movable position, still had steel underneath of it,
. . . and could still easily be moved back into the flood zone.
On 13 January 2003, defendant's attorney sent a letter to
plaintiff's attorney, which requested, that your client make
satisfactory arrangements for governmental approval of the location
of this house by securing approval at its current location, by
moving it to an appropriate location, or otherwise, putting the
controversy to rest before January 29, 2003. The letter also
stated that [a]bsent governmental approval, [defendant] must have
the house removed by February 6, 2003. The time period between
January 29, 2003, and February 6, 2003 will be used to raze the
house if your client fails to make arrangements as set forth
above. Plaintiff or her counsel failed to respond. Defendant
demolished the house where it sat on the Water Street lot on 4
On 10 November 2003, plaintiff filed a complaint against
defendant and defendant Rodney Turner d/b/a Rodney S. Turner
Housemovers, asserting claims for fraud, negligent
misrepresentation, conversion, and unfair and deceptive trade
practices (UDTP). Defendant filed an answer on 20 January 2004.
After Turner failed to file an answer and made no appearance,
plaintiff obtained an entry of default on 2 March 2004.
Both plaintiff and defendant unsuccessfully moved for summary
judgment, and the case was set for trial in February 2005.
Defendant moved to bifurcate the compensatory and punitive damages
stages of the trial, pursuant to N.C. Gen. Stat. § 1D-30. At theconclusion of plaintiff's evidence in the liability phase of the
trial, defendant moved for a directed verdict on all issues. The
trial court denied defendant's motion, and the case proceeded with
At the close of all the evidence, the trial court denied
defendant's renewed motion for a directed verdict. At that time,
plaintiff voluntarily dismissed her negligent misrepresentation
claim, leaving her claims for fraud, conversion, and UDTP before
the court. During the charge conference, however, the trial judge
stated that he was revisiting his decision on defendant's motion
for a directed verdict and granted that motion with respect to
plaintiff's UDTP claim.
Plaintiff's claims for fraud and conversion were submitted to
the jury. The verdict sheet returned by the jury read as follows:
We, the jury, by unanimous verdict, find as to
the Issues as follows:
ISSUE ONE: Was the plaintiff damaged by the
fraud of the Defendant? Answer: Yes
ISSUE TWO: What amount of damages is the
Plaintiff entitled to recover? Answer: $31,815
ISSUE THREE: Did the Defendant convert the
house relocated at Swan Point Road by the
Plaintiff? Answer: Yes
ISSUE FOUR: Did the Plaintiff abandon the
home? Answer: No
ISSUE FIVE: What amount is the Plaintiff
entitled to recover for the damages for the
conversion of the property of the Plaintiff?
Defendant moved: (1) for judgment notwithstanding the verdict
(JNOV) as to both claims; (2) for judgment as a matter of law onthe issue of punitive damages; or (3) in the alternative, for a
new trial on all issues. The trial court orally granted
defendant's motion for JNOV, dismissing the fraud claim, but denied
defendant's motion regarding the conversion claim. The court also
entered judgment for defendant dismissing plaintiff's claim for
punitive damages and denied both defendant's and plaintiff's
motions for a new trial.
On 18 March 2005, plaintiff filed a motion pursuant to N.C.R.
Civ. P. 52(a)(2) and requested the trial court make specific
findings of fact and conclusions of law with respect to its
rulings. The court denied plaintiff's motion and, instead, on 10
May 2005, entered a short judgment, specifying the jury's verdict,
setting forth the court's rulings on the parties' various motions,
and entered judgment in favor of plaintiff in the amount of
$30,000.00. Plaintiff appeals.
II. Defendant's Motion to Dismiss the Appeal
 Defendant has filed a motion to dismiss plaintiff's appeal
as interlocutory on the grounds the default judgment against Turner
was not entered until after plaintiff had appealed to this Court.
An interlocutory order is one made during the pendency of an
action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and determine
the entire controversy Veazey v. Durham
, 231 N.C. 357, 362, 57
S.E.2d 377, 381 (1950). Defendant is correct that, at the time of
plaintiff's notice of appeal, her appeal was interlocutory.
Plaintiff's notice of appeal was filed 1 June 2005, and the defaultjudgment was not entered until 8 December 2005. Plaintiff's claims
against Turner were still pending at the time of her appeal.
Although the appeal was interlocutory at the time it was
filed, judgment has since been entered against Turner, leaving
nothing to be resolved at the trial court. In such circumstances,
we have ruled:
the interests of justice would be furthered by
hearing the appeal. All claims and judgments
are final with respect to all the parties, and
there is nothing left for the trial court to
determine. Therefore, the rationale behind
dismissing interlocutory appeals, the
prevention of fragmentary and unnecessary
appeals, does not apply in this case. In
fact, any delay on our part would impede,
rather than expedite, the efficient resolution
of this matter.
Tarrant v. Freeway Foods of Greensboro, Inc.
, 163 N.C. App. 504,
508, 593 S.E.2d 808, 811 (case not dismissed as interlocutory when
plaintiff took voluntary dismissal of remaining claims pending in
the trial court after giving notice of appeal but before case was
heard in the Court of Appeals), disc. rev. denied
, 358 N.C. 739,
605 S.E.2d 126 (2004). We deny defendant's motion to dismiss
plaintiff's appeal as interlocutory.
III. Assignments of Error Numbered 1 through 5
 Plaintiff's assignments of error numbered 1 through 5
1. Did the Trial Court, . . . err in . . .
granting, . . . the defendant's prior Motion
for Directed Verdict on the plaintiff's unfair
and deceptive trade practice claim . . . ?
2. [D]id the Trial Court err:
(a) by . . . granting defendant's Motionfor Judgment Notwithstanding the Verdict as to
the fraud claim and award of compensatory
(b) by considering and allowing the
defendant's Motion to dismiss plaintiff's
claim for punitive damages for conversion[?]
3. Did the Trial Court err by refusing to make
specific findings of fact and conclusions of
law in its Judgment and order addressing the
rulings on the defendant's Motion for Directed
Verdict, Judgment Notwithstanding the verdict,
and plaintiff's request to find the conversion
by the defendants of plaintiff's house to be
an unfair and deceptive trade practice after
plaintiff had specifically moved, pursuant to
North Carolina Rules of Civil Procedure
52(a)(2) and N.C. General Statute § 1D-50, for
4. Did the Trial Court err by refusing to find
the conversion of plaintiff's house by the
defendant, in commerce, to be an unfair and
deceptive trade practice, as a matter of law,
and refusing to award treble damages and
consider plaintiff's request for attorney's
5. Did the Trial Court err by refusing to
award, in its judgment, interest from the date
of the conversion of the plaintiff's house?
A. Appellate Rule Violations
The scope of appellate review is limited to issues presented
by an assignment of error in the record on appeal. N.C.R. App. P.
10(a) (2006); see State v. Trull, 349 N.C. 428, 438, 509 S.E.2d
178, 186 (1998) (the appellant failed to preserve issue when the
appellant failed to assign error), cert. denied, 528 U.S. 835, 145
L. Ed. 2d 80 (1999); see also State v. Johnson, 320 N.C. 746, 754,
360 S.E.2d 676, 681 (1987) (the appellant failed to preserve an
issue without an assignment of error).
1. Failure to State Legal Basis for Error
Under Rule 10 of the North Carolina Rules of Appellate
Procedure, [e]ach assignment of error shall, . . . be confined to
a single issue of law; and shall state plainly, concisely and
without argumentation the legal basis upon which error is
assigned. N.C.R. App. P. 10(c)(1) (2006) (emphasis supplied); see
State v. Clark, 165 N.C. App. 279, 283, 598 S.E.2d 213, 217 (even
though the defendant objected to the admission of certain evidence
at trial, when he did not assign error to the admission of this
evidence, the appellate court could not review this issue), disc.
rev. denied, 358 N.C. 734, 601 S.E.2d 866 (2004). [A]ssignments
of error [that are] . . . broad, vague, and unspecific . . . do not
comply with the North Carolina Rules of Appellate Procedure.
Walker v. Walker, 174 N.C. App. 778, 781, 624 S.E.2d 639, 641
(2005) (quoting In re Appeal of Lane Co., 153 N.C. App. 119, 123,
571 S.E.2d 224, 226-27 (2002)), disc. rev. denied, 360 N.C. 491,
632 S.E.2d 774 (2006); see Stann v. Levine, 180 N.C. App. ___, ___,
___ S.E.2d ___, ___ (7 November 2006) (No. COA05-1269) (The
appellant's assignment of error violated Appellate Rule 10(c)(1)
when it stated the trial court commit[ted] reversible error by
dismissing the action of the plaintiff for lack of jurisdiction.);
Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988)
(where the plaintiff assigned error to the denial of her motion to
set aside the jury's verdict without stating the grounds upon which
the errors were assigned, the plaintiff's exceptions were deemed
abandoned); State v. Hart, 179 N.C. App. 30, 38-09, 633 S.E.2d 102,107-08 (2006) (assignment of error that challenged testimony
otherwise violated the N.C. Rules of Evidence was broad, vague,
and unspecific, and [failed] to identify the issues on appeal).
The dissenting opinion's reliance on Ellis v. Williams, 319
N.C. 413, 355 S.E.2d 479 (1987) is misplaced. In Ellis, our
Supreme Court held that Rule 10(a) of the North Carolina Rules of
Appellate Procedure [does not require] a party against whom summary
judgment has been entered to place exceptions and assignments of
error into the record on appeal. 319 N.C. at 413, 355 S.E.2d at
480 (emphasis supplied). Ellis is inapplicable to plaintiff's
appeal. Plaintiff appeals from a JNOV, and her appeal must comply
with the Rules of Appellate Procedure. Neither this Court nor our
Supreme Court has ever applied the reasoning in Ellis to appeals
from directed verdicts or judgments notwithstanding the verdict.
Plaintiff, as appellant, is not exempted from the Appellate Rule
requirement to state plainly, concisely and without argumentation
the legal basis upon which error is assigned. N.C.R. App. P.
10(c)(1); see Viar v. N.C. DOT, 359 N.C. 400, 402, 610 S.E.2d 360,
360 (2005) (failure to follow the Rules of Appellate Procedure will
subject an appeal to dismissal). It is elementary that this Court
is bound by holdings of the Supreme Court. Rogerson v.
Fitzpatrick, 121 N.C. App. 728, 732, 468 S.E.2d 447, 450 (1996).
The dissenting opinion erroneously extends precedent applicable
only to a summary judgment to appeals from a directed verdict and
judgment notwithstanding the verdict, and fails to cite any
authority to support this extension.
2. Clear and Specific Record or Transcript References
Under Appellate Rule 10, [a]n 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. N.C.R. App. P.
10(c)(1) (emphasis supplied). In Walsh v. Town of Wrightsville
Beach Bd. of Alderman, this Court dismissed the petitioner's appeal
when the only assignment of error in the record on appeal failed to
reference the record or transcript in violation of Rule 10(c)(1).
179 N.C. App. 97, 99, 632 S.E.2d 271, 272-73 (2006). An assignment
of error violates Appellate Rule 10(c)(1) if it does not: (1)
state without argumentation; (2) specify the legal basis upon
which error is assigned; and (3) direct the attention of the
appellate court to the particular error about which the question is
made, with clear and specific transcript references. Bustle v.
Rice, 116 N.C. App. 658, 659, 449 S.E.2d 10, 10-11 (1994). The
purpose of an assignment of error is to limit the scope of the
appeal, N.C.R. App. P. 10(a), and to put the other party on notice
of the issues to be presented. Broderick v. Broderick, 175 N.C.
App. 501, 502-03, 623 S.E.2d 806, 807 (2006).
3. Substantial Compliance
The dissenting opinion's argument that substantial compliance
precludes dismissal is misplaced and contrary to binding precedent.
As noted above, [i]t is elementary that this Court is bound by
holdings of the Supreme Court. Rogerson, 121 N.C. App. at 732,
468 S.E.2d at 450. Where a panel of the Court of Appeals has decided the same
issue, albeit in a different case, a subsequent panel of the same
court is bound by that precedent, unless it has been overturned by
a higher court. In the Matter of Appeal from Civil Penalty , 324
N.C. 373, 384, 379 S.E.2d 30, 37 (1989). While . . . a panel of
the Court of Appeals may disagree with, or even find error in, an
opinion by a prior panel and may duly note its disagreement or
point out that error in its opinion, the panel is bound by that
prior decision until it is overturned by a higher court. State v.
Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004). The
dissenting opinion's approach contradicts our Supreme Court's
holding in Viar, and this Court's multiple precedents applying
The North Carolina Rules of Appellate Procedure are mandatory
and 'failure to follow these rules will subject an appeal to
dismissal.' Viar, 359 N.C. at 402, 610 S.E.2d at 360 (quoting
Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d 298, 299
(1999)). It is not the role of the appellate courts . . . to
create an appeal from an appellant, and that if violations of the
Rules of Appellate Procedure are overlooked by invoking Rule 2,
the Rules become meaningless. Stann, 180 N.C. App. at ___, ___
S.E.2d at ___ (quoting Viar, 359 N.C. at 402, 610 S.E.2d at 361).
'[T]his Court may not review an appeal that violates the Rules of
Appellate Procedure even though such violations neither impede our
comprehension of the issues nor frustrate the appellate process.'
Stann, 180 N.C. App. at ___, ___ S.E.2d at ___ (quoting State v.Buchanan, 170 N.C. App. 692, 695, 613 S.E.2d 356, 357 (2005)).
[T]he lack of an . . . assignment of error addressed to the issue
attempted to be raised is a fatal defect. State v. Smith, 50 N.C.
App. 188, 190, 272 S.E.2d 621, 623 (1980).
Plaintiff failed to state any legal basis for her assignments
of error numbered 1 through 5, inclusive. N.C.R. App. P. 10
(c)(1); see Hart, 179 N.C. App. at 37, 633 S.E.2d at 107 (issue not
addressed when assignment of error stated the challenged testimony
otherwise violated the N.C. Rules of Evidence because the
assignment of error was broad, vague, unspecific, and [failed] to
identify the issues on appeal). Plaintiff's broad and vague
assignments of error fail to comply with the Rules of Appellate
Procedure. Walker, 174 N.C. App. at 781, 624 S.E.2d at 641; see
Walsh, 179 N.C. App. at 98, 632 S.E.2d at 272-73 (appeal dismissed
when the petitioner's only assignment of error in the record on
appeal lacked references to the record or transcript).
In her assignments of error, plaintiff failed to cite any
record page reference to the order she purports to appeal from and
failed to comply with the Rules of Appellate Procedure. N.C.R.
App. P. 10(c)(1).
Plaintiff's broad assignments of error and her failure to
reference the specific record pages to the order she purports to
appeal from require dismissal of her appeal. These assignments of
error are not properly before us and are dismissed.
IV. Assignments of Error Numbered 6 and 7
 Plaintiff's assignments of error numbered 6 and 7 state:
6. Did the Court err in precluding the
plaintiff/owner, Darvella Jones, from
testifying as to her opinion of the fair
market value of her house on the date of
conversion by the defendants?
7. Did the Trial Court err in precluding the
building inspector, Skip Lee, from testifying
as to his opinion of the value of the
plaintiff's house, prior to the date of
conversion by the defendants?
Plaintiff failed to argue or present any reasons or authority
in support of these two assignments of error in her brief.
Assignments of error . . . in support of which no reason or
argument is stated or authority cited, will be taken as abandoned.
N.C.R. App. P. 28(b)(6) (2006); see State v. Walters, 357 N.C. 68,
85-86, 588 S.E.2d 344, 354-55 (a party's assignment of error is
deemed abandoned in the absence of citation to supporting
authority), cert. denied, 540 U.S. 971, 157 L. Ed. 2d 320 (2003).
Plaintiff abandoned her assignments of error numbered 6 and 7 by
failing to state her reasons or argument or cite to any authority
in support thereof.
Plaintiff's assignments of error numbered 1 though 5 are not
properly before this Court pursuant to Appellate Rule 10(c).
Plaintiff's assignments of error numbered 6 and 7 are not argued
and are abandoned pursuant to Appellate Rule 28(b)(6). No
assignment of error asserted in plaintiff's appeal is properly
The dissenting opinion's arguments are the same arguments setforth in the dissenting opinion in Stann
180 N.C. App. at ___, ___
S.E.2d at ___. This Court's majority opinion in Stann
upon later cases. See In the Matter of Appeal from Civil Penalty
324 N.C. at 384, 379 S.E.2d at 37 (Where a panel of the Court of
Appeals has decided the same issue . . . a subsequent panel of the
same court is bound by that precedent.); Jones
, 358 N.C. at 487,
598 S.E.2d at 134 (the [subsequent] panel is bound by [the prior
panel's] prior decision until it is overturned by a higher
court.). The dissenting opinion fails to follow the binding
precedent set forth in Stann
[A]d hoc application of the rules,
with inconsistent and arbitrary enforcement, could lead to
allegations of favoritism for one counsel over another. Stann
___ N.C. App. at ___, ___ S.E.2d at ___. We are bound to follow
the binding precedent set forth in Viar
and this Court's multiple
cases applying Viar
. Plaintiff failed to preserve any further
issues for appellate review. Plaintiff's appeal is dismissed.
Judge JACKSON concurs.
Judge GEER dissents by separate opinion.
GEER, Judge, dissenting.
Because I do not believe that dismissal is warranted in this
case in light of Ellis v. Williams, 319 N.C. 413, 355 S.E.2d 479
(1987), I respectfully dissent. I would instead address the merits
of this appeal, reverse the trial court's grant of JNOV as to the
fraud claim, reinstate the jury verdict finding Harrelson and SmithContractors, LLC ("H&S") liable for fraud in the amount of
$31,815.00, reverse the trial court's entry of judgment as to
Jones' unfair and deceptive trade practices ("UDTP") claim, and
remand the case for entry of judgment in the amount of $95,445.00
and for the court to consider, in its discretion, whether to award
attorney's fees under N.C. Gen. Stat. § 75-16.1 (2005).
Appellate Rules Violations
The majority opinion orders dismissal of Jones' appeal based
on its conclusion that Jones' assignments of error fail to comply
with Rule 10 of the Rules of Appellate Procedure. I cannot agree.
In any event, any violation of Rule 10 is purely technical and
cannot justify the sanction of dismissal under Rules 25 and 34 of
the Rules of Appellate Procedure.
A. Jones' Compliance with the Appellate Rules
The majority opinion states that Jones' assignments of error
regarding the grant of the directed verdict on the UDTP claim and
the entry of JNOV as to the fraud claim do not comply with Rule 10
because they fail to state the legal basis for Jones' contention
that the trial court erred in making these rulings.
(See footnote 1)
In doing so,
the majority disregards the nature of the rulings that are being
challenged. With respect to Jones' assignments of error that the
trial court erred in granting H&S' motion for JNOV as to the fraud
claim and in granting a directed verdict as to Jones' UDTP claim,the only legal ground that could be relied upon is that sufficient
evidence existed for those claims to go to the jury. See Alberti
v. Manufactured Homes, Inc.
, 94 N.C. App. 754, 758, 381 S.E.2d 478,
480 (1989) ("Motions for directed verdict or judgment
notwithstanding the verdict are properly granted only if the
evidence is insufficient to support a verdict for the nonmovant as
a matter of law."), aff'd in part, reversed in part, and vacated in
part on other grounds
, 329 N.C. 727, 407 S.E.2d 819 (1991).
Unlike other appeals that have been dismissed for inadequate
assignments of error, there is no other legal ground that could be
applicable with respect to these assignments of error. To dismiss
Jones' appeal for failure to include language necessarily implicit
in the assignment of error itself _ or, in other words, for failing
to state the obvious _ is to elevate form over substance to an
extent that our Supreme Court could not have intended in Viar
Indeed, the majority's approach cannot be reconciled with our
Supreme Court's analysis of assignments of error with respect to
orders granting summary judgment, in which the trial courts
similarly weigh the sufficiency of the evidence to go to the jury.
In Ellis v. Williams
, 319 N.C. 413, 355 S.E.2d 479 (1987), the
Supreme Court reversed the Court of Appeals when it dismissed an
appeal because the appellant had failed to list any exceptions or
assignments of error to a summary judgment order at all. The
Supreme Court held:
The purpose of summary judgment is to
eliminate formal trial when the only questions
involved are questions of law. Thus, although
the enumeration of findings of fact andconclusions of law is technically unnecessary
and generally inadvisable in summary judgment
cases, summary judgment, by definition, is
always based on two underlying questions of
law: (1) whether there is a genuine issue of
material fact and (2) whether the moving party
is entitled to judgment. On appeal, review of
summary judgment is necessarily limited to
whether the trial court's conclusions as to
these questions of law were correct ones. It
would appear, then, that notice of appeal
adequately apprises the opposing party and the
appellate court of the limited issues to be
reviewed. Exceptions and assignments of error
This result does not run afoul of the
expressed purpose of Rule 10(a). Exceptions
and assignments of error are required in most
instances because they aid in sifting through
the trial court record and fixing the
potential scope of appellate review. We note
that the appellate court must carefully
examine the entire record
in reviewing a grant
of summary judgment. Because this is so, no
preliminary "sifting" of the type contemplated
by the rule need be performed. Also, as
previously observed, the potential scope of
review is already fixed; it is limited to the
two questions of law automatically raised by
summary judgment. Under these circumstances,
exceptions and assignments of error serve no
useful purpose. Were we to hold otherwise,
plaintiffs would be required to submit
assignments of error which merely restate the
obvious; for example, "The trial court erred
in concluding that no genuine issue of
material fact existed and that defendants were
entitled to summary judgment in their favor."
At best, this is a superfluous formality.
at 415-416, 355 S.E.2d at 481 (internal citations omitted).
The Supreme Court reversed the Court of Appeals and remanded for
this Court to review the case on its merits. Id.
at 417, 355
S.E.2d at 482.
The majority opinion in this case likewise requires Jones to
restate the obvious _ a "superfluous formality," id.
at 416, 355S.E.2d at 481 _ when it dismisses this appeal simply because Jones
failed to specify in her assignments of error that the evidence was
sufficient to support her claims for fraud and UDTP. As with
summary judgment decisions, a directed verdict or entry of JNOV
involves only a single question of law
: whether the evidence was
sufficient to support the claim. I see no meaningful distinction
between this case and Ellis
. As this Court recently pointed out in
Nelson v. Hartford Underwriters Ins. Co.
, 177 N.C. App. 595, 602-
630 S.E.2d 221, 227 (2006) (applying Ellis
to hold that appeal
should not be dismissed when assignment of error challenged a
summary judgment order without specifying a specific legal basis),
we are bound to follow Ellis
just as we are bound to follow Viar
With respect to the prejudgment interest assignment of error,
also condemned by the majority opinion, it is difficult to
determine what is inadequate about that assignment of error. It
reads: "Did the Trial Court err by refusing to award, in its
judgment, interest from the date of the conversion of the
plaintiff's house?" What more could be added? The majority
opinion does not answer that question. Perhaps, Jones could have
asserted that the failure to award prejudgment interest was
contrary to the law set forth in Lake Mary Ltd. P'ship v. Johnston
145 N.C. App. 525, 551 S.E.2d 546, disc. review denied
, 354 N.C.
363, 557 S.E.2d 538-39 (2001), but our courts have never required
the citation of legal authority in an assignment of error.
The majority opinion also states that "[p]laintiff's
assignments of error failed to cite any record page reference tothe order she purports to appeal from . . . ." The assignments of
error as to the fraud and UDTP claim specifically refer to the
appropriate page of the transcript at which the trial court orally
rendered its ruling. See
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
added)). Thus, as to the fraud and UDTP assignments of error,
there has been no violation of the rules sufficient to warrant the
extreme sanction of dismissal.
With respect to the prejudgment interest assignment of error,
Jones does cite to the wrong page of the record _ she mistakenly
refers to a page other than that of the judgment setting forth the
ruling as to prejudgment interest. Nevertheless, I would not
refuse to address that assignment of error based on a typographical
error when it is clear that Jones intended to refer to the final
judgment that appears three pages later in the record on appeal.
Finally, as to Jones' other assignments of error, I agree with
the majority opinion that Jones has abandoned those relating to the
omission of certain evidence by failing to bring those assignments
of error forward in her brief. See
N.C.R. App. P. 28(b)(6). With
respect to the remaining assignments of error, I do not believe
that those questions need to be resolved on appeal and, therefore,
it is unnecessary to consider whether those assignments of error
comply with the Appellate Rules.
B. Substantial Compliance Precludes Dismissal
Even if Jones could be viewed as having violated the appellate
rules, the violations would at best be merely technical ones that
in no way affect the ability of the appellee or this Court from
addressing the questions that she has raised on appeal. Only three
years ago, this Court wrote: "This Court has held that when a
litigant exercises 'substantial compliance' with the appellate
rules, the appeal may not be dismissed for a technical violation of
." Spencer v. Spencer
, 156 N.C. App. 1, 8, 575 S.E.2d
780, 785 (2003) (emphasis added). Today, in direct opposition to
this proposition, certain panels of this Court hold that appeals
must be dismissed even for technical violations of the rules. For
the reasons stated in my dissent in Stann v. Levine
, 180 N.C. App.
__, __, 636 S.E.2d 214, 222 (2006), I do not believe that this
approach is mandated _ or even intended _ by Viar
I am not unmindful of the fact that the current state of
affairs is the result, to a large extent, of the somewhat casual
attitude adopted by many in the North Carolina Bar towards North
Carolina's appellate courts and the Rules of Appellate Procedure.
Apparently, not all attorneys necessarily experience the same
degree of urgency with respect to state court appeals. This
perspective is troubling and cannot be ignored. Nevertheless, as
I indicated in my dissent in Stann
, I would address violations of
the rules that do not impact this Court's ability to decide issues
properly preserved for review by imposing sanctions on counsel
under Rules 25 and 34 of the Rules of Appellate Procedure. In
addition to not punishing parties for the mistakes of theirattorneys, this approach would also ensure that counsel for
appellants and appellees alike are subjected to the same scrutiny.
I believe such an approach is mandated by Rules 25 and 34 of
the Rules of Appellate Procedure. Rule 25(b) provides:
A court of the appellate division may, on its
own initiative or motion of a party, impose a
sanction against a party or attorney or both
when the court determines that such party or
attorney or both substantially failed to
comply with these appellate rules
. The court
may impose sanctions of the type and in the
manner prescribed by Rule 34 for frivolous
Dismissal of an appeal is the ultimate sanction and is
authorized by Rule 34(b)(1) ("A court of the appellate division may
impose one or more of the following sanctions: (1) dismissal of the
appeal . . . ."). Yet, Rule 34 expressly limits the instances in
which sanctions may be imposed:
(a) A court of the appellate division
may, on its own initiative or motion of a
party, impose a sanction against a party or
attorney or both when the court determines
that an appeal or any proceeding in an appeal
was frivolous because of one or more of the
. . . .
(3) a petition, motion, brief, record,
or other paper filed in the appeal was so
grossly lacking in the requirements of
propriety, grossly violated appellate court
rules, or grossly disregarded the requirements
of a fair presentation of the issues to the
N.C.R. App. P. 34(a)(3) (emphasis added).
In short, the Appellate Rules themselves seem to limit thisCourt's ability to dismiss an appeal for rules violations to those
when the party or attorney has "substantially failed to comply" or
when there has been a gross violation of the rules. I do not
believe that we should disregard the plain language of the
appellate rules. Under those rules, because Jones has not
substantially failed to comply and there has been no gross
violation of the rules, I do not believe dismissal is a permissible
I would also point out that although the majority opinion
states that the Rules of Appellate Procedure are mandatory, it is
silent with respect to violations by the appellee. Under Rule
28(c), an appellee is not required to include a statement of facts
in its brief, but if it does so, it must be "a non-argumentative
summary of all material facts underlying the matter in controversy
which are necessary to understand all questions presented for
review, supported by references to pages in the transcript of
proceedings, the record on appeal, or exhibits, as the case may
be." N.C.R. App. P. 28(b)(5). H&S' statement of facts is replete
with argument _ indeed, it is almost entirely argument. See Stann,
__ N.C. App. at __, 636 S.E.2d at 216-17 (dismissing appeal in part
because appellant included insufficient citations to the record in
the statement of facts). Further, in the final section of H&S'
brief, H&S urges this Court to grant it a new trial rather than
simply reverse the trial court's rulings. H&S, however, in
violation of Rule 10, did not cross-assign error to the trial
court's denial of its motion for a new trial, and, in violation ofRule 28(b)(6), did not cite any authority at all supporting the
grant of a new trial to H&S.
In sum, I do not believe that Jones has substantially violated
the Rules of Appellate Procedure. I would address the merits and,
for the reasons, set out below, I would reverse the trial court as
to the fraud and UDTP claims.
The Merits of the Appeal
A. Grant of JNOV on Fraud Claim
Jones' first argument is that the trial court erred in
granting H&S' motion for JNOV on the fraud claim. A motion for
JNOV is a renewal of an earlier motion for a directed verdict, and
the standards of review are the same. Bryant v. Nationwide Mut.
Fire Ins. Co.
, 313 N.C. 362, 368-69, 329 S.E.2d 333, 337 (1985).
In considering a motion for directed verdict, "the trial court must
view all the evidence that supports the non-movant's claim as being
true and that evidence must be considered in the light most
favorable to the non-movant, giving to the non-movant the benefit
of every reasonable inference that may legitimately be drawn from
the evidence with contradictions, conflicts, and inconsistencies
being resolved in the non-movant's favor." Id.
at 369, 329 S.E.2d
"The essential elements of actionable fraud are: '(1) [f]alse
representation or concealment of a material fact, (2) reasonably
calculated to deceive, (3) made with intent to deceive, (4) which
does in fact deceive, (5) resulting in damage to the injured
party.'" Becker v. Graber Builders, Inc.
, 149 N.C. App. 787, 793,561 S.E.2d 905, 910 (2002) (quoting Ragsdale v. Kennedy
, 286 N.C.
130, 138, 209 S.E.2d 494, 500 (1974)). In this case, the parties
centered their arguments around the third element of fraud, the
intent to deceive. The required scienter for fraud is not present
without both knowledge and an intent to deceive, manipulate, or
defraud. Myers & Chapman, Inc. v. Thomas G. Evans, Inc.
, 323 N.C.
559, 568, 374 S.E.2d 385, 391 (1988).
Here, when the evidence is viewed in the light most favorable
to Jones, with all inferences drawn in her favor, both knowledge
and intentional deception can be ascribed to H&S. There is no
dispute that H&S had knowledge of the requirement that the houses
be relocated outside the flood plain. Further, Jones showed
Harrelson, a principal of H&S, where she planned to move the house,
which would permit a jury to infer that H&S knew she intended to
move the house within the flood plain. Jones offered evidence
that, despite this knowledge, Harrelson said nothing about the
requirement that the house be moved outside of the flood plain, but
rather helped her find a house-mover to move the house to the new
Jones' evidence also indicated that once H&S learned that the
county was aware that the salvaged house had not been moved outside
the flood plain, H&S falsely told the county's agent that it had
written contracts requiring the new owners to comply with the flood
plain requirement. H&S then, according to Jones' evidence, created
after-the-fact "contracts" designed to cover-up H&S' failure to
disclose the flood plain requirement and failure to have writtencontracts. Finally, there was evidence in the record that H&S
fabricated documents pertaining to other elements of its contract
with the county and similarly misled two other purchasers of houses
_ evidence from which the jury could conclude that H&S had an
overall scheme of deceit with respect to the contract with the
county in order to maximize its profit. A jury could infer an
intent to deceive from this evidence.
Apart from challenging the sufficiency of the evidence to
prove an intent to deceive, H&S argues on appeal that the form
signed by Jones, stating that it was her responsibility to move the
house outside the flood plain, amended the parties' contract.
(See footnote 2)
According to H&S, Jones was, therefore, limited to suing for breach
of contract. H&S, however, cites no authority supporting its
assumption that a plaintiff cannot sue for fraud if she has a
breach of contract claim. The law is, in fact, to the contrary: a
plaintiff may assert both claims, although she may be required to
elect between her remedies prior to obtaining a verdict. See First
Atl. Mgmt. Corp. v. Dunlea Realty Co.
, 131 N.C. App. 242, 256-57,
507 S.E.2d 56, 65 (1998) (individual who had been fraudulently
induced to purchase property may elect between a contract or a tort
Moreover, Jones contends that the form represented an attemptby H&S to cover up its fraud in the sales of the three houses,
including Jones' house, and, therefore, is evidence of H&S' intent
to deceive. Our courts have acknowledged that evidence
insufficient to establish a breach of contract may nonetheless be
admissible to prove that a contract was fraudulently induced or
that the defendant committed unfair and deceptive trade practices.
See McNamara v. Wilmington Mall Realty Corp.,
121 N.C. App. 400,
413, 466 S.E.2d 324, 333 (holding that evidence of the parties'
negotiations was inadmissible on the breach of contract claim, but
was admissible to prove fraud and unfair and deceptive trade
practices), disc. review denied
, 343 N.C. 307, 471 S.E.2d 72
(1996). It was for the jury to decide what inferences should be
drawn from the form and what weight to give it. Accordingly, I
would reverse the trial judge's entry of JNOV with respect to the
jury's fraud verdict.
I disagree with Jones, however, as to what amount of damages
should be awarded based on the conversion and fraud verdicts.
Jones' fraud claim arose out of H&S' failure to inform Jones that
she would need to move the house outside the flood plain, while her
conversion claim arose out of H&S' removal and eventual destruction
of her house. Jones argues that she is entitled to recover both
the damages awarded for conversion and the damages awarded for
fraud, for a total amount of $61,815.00. I cannot agree.
As to Jones' damages from the fraud, the trial court
instructed the jury: "The plaintiff's actual damages are equal to
the fair market value of the property . . . at the time that theplaintiff was defrauded." It then instructed the jury to award
damages for conversion based on the "fair market value of the
property at the time it was converted." It is apparent from these
instructions that the jury's awards of $31,815.00 for fraud and
$30,000.00 for conversion _ each involving the fair market value of
the same property at a different time _ represent overlapping
Jones is not entitled to recover the fair market value of the
house twice. The doctrine of the election of remedies prevents
"'double redress for a single wrong.'" United Labs., Inc. v.
, 335 N.C. 183, 191, 437 S.E.2d 374, 379 (1993) (quoting
Smith v. Gulf Oil Corp.
, 239 N.C. 360, 368, 79 S.E.2d 880, 885
(1954)). "[T]he underlying basis" of this rule is "the maxim which
forbids that one shall be twice vexed for one and the same cause."
, 239 N.C. at 368, 79 S.E.2d at 885. Accordingly, I would
hold that Jones is entitled to judgment in the amount of
$31,815.00, the greater of the two overlapping amounts entered by
Unfair and Deceptive Trade Practices
Jones next assigned error to the trial court's entry of a
directed verdict on Jones' UDTP claim. The basis of that ruling is
not entirely clear since the trial judge stated that he was
dismissing only Jones' independently pled UDTP claim, but would
still allow Jones to argue, during the punitive damages stage of
the bifurcated trial, that UDTP principles should apply in the
calculation of damages, if the jury found liability on the basis ofeither fraud or conversion.
The court's ruling appears to reflect a misunderstanding of
the nature of a Chapter 75 claim brought under N.C. Gen. Stat. §
75-1.1 (2005). A UDTP claim is a substantive claim, the remedy for
which is treble damages. N.C. Gen. Stat. § 75-16 (2005). Chapter
75 is not a remedial scheme for other substantive claims. See
Bhatti v. Buckland
, 328 N.C. 240, 245, 400 S.E.2d 440, 443 (1991)
(noting that N.C. Gen. Stat. § 75-1.1 "was enacted to establish an
effective private cause of action for aggrieved consumers in this
State" (internal quotation marks omitted)). As this Court has
stated, "[p]laintiffs can assert both UDTP violations under N.C.
Gen. Stat. § 75-1.1 and fraud based on the same conduct or
transaction. Successful plaintiffs may receive punitive damages or
be awarded treble damages, but may not have both." Compton v.
, 157 N.C. App. 1, 21, 577 S.E.2d 905, 918 (2003). The
approach followed by the trial court, in this case, of dismissing
the UDTP claim, but allowing counsel to argue it in connection with
punitive damages, was in error.
With respect to the trial court's dismissal of Jones'
substantive UDTP claim, it is well-settled that "a plaintiff who
proves fraud thereby establishes that unfair or deceptive acts have
, 328 N.C. at 243, 400 S.E.2d at 442. See also
Hardy v. Toler
, 288 N.C. 303, 309, 218 S.E.2d 342, 346 (1975)
("Proof of fraud would necessarily constitute a violation of the
prohibition against unfair and deceptive acts . . . ."); State
Props., LLC v. Ray
, 155 N.C. App. 65, 74, 574 S.E.2d 180, 187(2002) ("[A] finding of fraud constitutes a violation of N.C. Gen.
Stat. § 75-1.1."), disc. review denied
, 356 N.C. 694, 577 S.E.2d
889 (2003). Once the plaintiff has proven fraud, "thereby
establishing prima facie a violation of Chapter 75, the burden
shifts to the defendant to prove that he is exempt from the
provisions of N.C.G.S. § 75-1.1." Bhatti
, 328 N.C. at 243-44, 400
S.E.2d at 442 (internal citation omitted).
Because the jury found in favor of Jones on the fraud claim
and because H&S made no attempt to argue that it is exempt from the
provisions of N.C. Gen. Stat. § 75-1.1, I would hold that Jones is
entitled, under Bhatti
, to recover treble damages under N.C. Gen.
Stat. § 75-16. I would, therefore, remand for entry of judgment in
favor of Jones on her UDTP claim and for trebling of her fraud
damages. Upon remand, the trial court would also be required to
consider whether to exercise its discretion to award attorney's
fees under N.C. Gen. Stat. § 75-16.1. Bhatti
, 328 N.C. at 247, 400
S.E.2d at 444.
(See footnote 3)
In this case, the majority has chosen to dismiss thismeritorious appeal because the appellant failed to state the
obvious in her assignments of error. Even if this is viewed as a
technical violation of the appellate rules, it cannot be deemed a
lack of substantial compliance or a gross violation as required by
Rules 25 and 34 of the Appellate Rules. Because I disagree with
the majority opinion as to whether Jones violated the Rules of
Appellate Procedure, and I disagree with the majority opinion's
implicit conclusion that it has authority under those rules to
dismiss an appeal that is in substantial compliance, this dissent
represents a different scenario from that presented in Steingress
, 350 N.C. 64, 67, 511 S.E.2d 298, 300 (1999), in
which the Supreme Court limited its review under N.C. Gen. Stat. §
7A-30(2) (2005) to the dissent's assertion that the majority
opinion erred in failing to exercise its discretion under Rule 2 of
the Rules of Appellate Procedure.
This is not a case in which the appellant has argued in her
brief a contention not contained in her assignment of error, such
as occurred in Viar v. N.C. Dep't of Transp.
, 359 N.C. 400, 610
S.E.2d 360 (2005) (per curiam).
This form was sent by H&S after the houses had been moved and
after H&S had falsely sent a letter to the county's consulting firm
stating: "We would like to assure you that the three owners that
purchased the houses . . . were informed with a written contract
that the houses were to be relocated above the 100-year floodplain
and they were to accept all expense & responsibility." (Emphasis
Although Jones also challenged the trial court's entry of
judgment on her punitive damages claim, Jones stated on appeal that
she elected to receive treble damages under her UDTP claim rather
than punitive damages. See Compton
, 157 N.C. App. at 21, 577
S.E.2d at 918 ("Successful plaintiffs may receive punitive damages
or be awarded treble damages [under Chapter 75], but may not have
both."). Jones has, thereby, rendered the punitive damages issue
moot. With respect to the prejudgment interest issue, I agree with
H&S that the trial court properly applied Lake Mary Ltd. P'ship
awarded interest from the date the action was commenced as required
by N.C. Gen. Stat. § 24-5(b) (2005).
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