An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 18 April 2006
No. 03 CVD 2360
HOME BUILDING CENTER,
Appeal by plaintiff from judgment entered 29 March 2005 by
Judge Albert A. Corbett in Harnett County District Court. Heard in
the Court of Appeals 7 February 2006.
Stewart Law Firm, by Christopher D. Munz, for plaintiff
Hayes, Williams, Turner & Daughtry, P.A., by Gerald W. Hayes,
Jr., for defendant appellee.
Plaintiff Ann Johnson appeals from a district court order
finding in favor of defendant Home Building Center on Johnson's
claim for payment of money owned. We affirm the challenged order.
Defendant Home Building Center is in the business of selling
building supplies. On 18 October 2003, Home Building Center held
a customer appreciation breakfast, which the company advertised in
a local paper. The advertisement listed a breakfast consisting of
biscuits, doughnuts, and coffee, a drawing for a $250 gift
certificate, and a [d]rawing for FREE Glidden Paint as reasonsfor customers to come. This advertisement did not mention the
quantity or type of Glidden paint that the winner would receive.
The plaintiff Ann Johnson attended the customer appreciation
breakfast. While at the event, she enjoyed free ham biscuits and
coffee, and she registered for the Glidden paint drawing. The
registration form which Johnson completed and entered neither
specified the particular type of paint at stake, nor indicated that
the selected registrant would be permitted to choose the type of
paint she received. However, at the time Johnson entered the
drawing, Glidden interior ceiling paint was on display in the
store. Further, just before drawing the winning ticket, the store
owner announced that the lucky winner would be receiving four
gallons of Glidden interior ceiling paint. Johnson was not present
for this announcement which came at the end of the customer
Johnson won the drawing, but, in her view, not the prize.
When she arrived at the Home Building Center to claim her paint,
Johnson was told that she was entitled to four gallons of Glidden
interior ceiling paint. She protested that she wanted exterior
paint rather than ceiling paint. The proprietor of the Home
Building Center told Johnson that she was only entitled to ceiling
paint, but he offered to sell Johnson four gallons of exterior
paint for the difference in cost between the exterior paint and the
less expensive ceiling paint. The difference in cost between
exterior paint and interior ceiling paint at Home Building Center
is approximately $8.00, and four gallons of exterior paint costapproximately $84.00.
Johnson filed a claim against Home Building Center in the
Small Claims Division of Harnett County District Court, seeking
damages equal to the cost of her preferred paint. A magistrate
ruled in favor of Johnson. Home Building Center then appealed to
the Harnett County District Court.
Without making any factual findings, the district court judge
ruled in favor of Home Building Center. On an appeal by Johnson,
this Court filed an unpublished opinion remanding the case to the
district court for entry of an appropriate order which contained
findings of fact. Johnson v. Home Building Center, No. COA04-596,
slip op. at 3 (N.C. Ct. App. Mar. 1, 2005).
On remand, the district court made written findings and
conclusions, and entered a judgment in favor of Home Building
Center on the grounds that (1) there was no consideration given by
Johnson in exchange for her participation in the drawing and,
therefore, no contract between the parties; (2) there was no
meeting of the minds between the parties concerning the subject
matter of the drawing; and (3) Home Building Center was not
contractually bound to supply Johnson with a prize of her choice,
and Johnson could not legally demand the type or quality of the
paint that she was to receive. Johnson again has appealed to this
Standard of Review
This Court reviews a judgment entered after a bench trial for
whether the trial court's factual determinations are supported bythe record and whether the court's legal conclusions are supported
by adequate findings of fact and are grounded in the law. Cartin
v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176, disc.
review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). Further,
because the district court has denominated several of its findings
of fact as legal conclusions, we note that an appellate court will
apply the appropriate standard of review to a trial court's
determinations regardless of how such determinations are
denominated. Long v. Morganton Dyeing & Finishing Co., 321 N.C.
82, 86, 361 S.E.2d 575, 577 (1987).
In her first argument on appeal, Johnson contends that the
district court erred by concluding that she gave no consideration
for participating in the prize drawing such that there was no
agreement between the parties as a matter of law. We agree that
the district court erred in this regard.
This Court has held that advertising a promotional contest to
the public is in the nature of an offer. An enforceable contract is
formed when a party accepts that offer and consideration is
provided by entering the contest and complying with all of the
terms of the offer. Jones v. Capitol Broadcasting Co., 128 N.C.
App. 271, 274, 495 S.E.2d 172, 174 (1998). In such situations, the
registrant gives consideration by submitting an entry form in
exchange for an opportunity to have it drawn as the winning
ticket. Id. In the case sub judice, it is undisputed that Johnson
submitted an entry form in exchange for an opportunity to win the
free Glidden paint being offered by Home Building Center.
Accordingly, Johnson gave valid consideration, and the district
court erred by concluding otherwise.
In her second argument on appeal, Johnson contends that the
district court erred by finding that there was no valid contract
between the parties because there was no meeting of the minds with
respect to the subject matter of the drawing. Again, we agree that
the district court made erroneous findings and conclusions in this
[I]n order that there may be a valid and enforceable contract
between parties, there must be a meeting of the minds of the
contracting parties upon all essential terms and conditions of the
contract. O'Grady v. Bank, 296 N.C. 212, 221, 250 S.E.2d 587, 594
(1978). Whether there has been a meeting of the minds and thus a
contract is a question fact. See Goeckel v. Stokely, 236 N.C. 604,
607, 73 S.E.2d 618, 620 (1952) (holding that issues of fact
concerning terms of a contract are for the jury to consider). Once
there has been a meeting of the minds with respect to a particular
term, the proper interpretation of that term presents a question of
law, which is reviewed de novo by this Court. Sears Roebuck & Co.
v. Avery, 163 N.C. App. 207, 211, 593 S.E.2d 424, 428 (2004).
In the instant case, the undisputed evidence tended to show
that, by advertising a drawing in a local paper, Home BuildingCenter offered to give a selected registrant free Glidden paint,
that the registration form specified that four gallons of such
paint would be given away, and that Glidden ceiling paint was on
display in the store. Further, Johnson's testimony established
only that she entered the drawing with aspirations of winning and
that she wanted exterior paint; her testimony did not establish a
belief that exterior paint was the only type of paint that she was
eligible to win.
On these facts, the district court was compelled to find that
there was a meeting of minds as to the essential terms of the
contract. Specifically, the parties reached an agreement that Home
Building Center had to give paint to the winner of its customer
appreciation drawing; this paint had to be free, and it had to be
Glidden paint. The proper legal construction of this agreement is
that Home Building Center was permitted to select the type and
quality of Glidden paint that it gave away, so long as the paint
was not of lesser quality than interior ceiling paint. Likewise,
although Home Building Center had the option of giving away higher
quality paint at the request of the prizewinner, it was under no
legal duty to do so.
The trial court's determination that there was no meeting of
the parties' minds as to the essential terms of the drawing
agreement is in conflict with the foregoing discussion.
Accordingly, this determination is erroneous.
Significantly, however, although the district courterroneously determined that there had been no meeting of the minds
between the parties, the district court ruled, as an alternative
basis for its judgment, that Home Building Center was not
contractually bound to supply Johnson with a prize of her choice
and that Johnson could not legally demand the type or quality of
her prize. Though this ruling is clearly proper in light of our
analysis in section II of this opinion, Johnson has not challenged
it by asserting a related assignment of error and articulating a
corresponding argument in her brief. Accordingly, even assuming
arguendo that this alternative basis for judgment is erroneous, it
is nevertheless binding because it has not been appealed. See N.C.
R. App. P. 10(a) (2006) (providing that the scope of this Court's
review is limited to considering assignments of error enumerated in
the record on appeal); N.C. R. App. P. 28(b)(6) (2006) (providing
that an assignment or error which is not argued in an appellant's
brief or in support of which the appellant provides no argument or
authority is abandoned). Therefore, the proper disposition is for
this Court to affirm the trial court's order.
The district court's order is affirmed. Johnson's assignments
of error are overruled.
Judges ELMORE and LEVINSON concur.
Report per Rule 30(e).
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