An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA05-921

NORTH CAROLINA COURT OF APPEALS

Filed: 16 May 2006


JERRY GIBBS, LARRY GIBBS, GARY
BARNETTE, ROLAND STOTESBERRY,
MATTIE BERRY, ANNA MAE GIBBS,
CHARLES GIBBS, REBECCA GIBBS,
REGINA GIBBS, ALISON ELLIS,
GARY ELLIS, BARBARA MEEKINS,
MACLYN GIBBS, ELLIS GIBBS,
JAMES GIBBS, MARK DODGE,
MARY GIBBS, BARBARA SPENCER,
SHERLIN SPENCER, JOHN HERINA,
PEGGY GRANT, GLENN JARVIS, ODESA
JARVIS, and CALVIN B. DAVIS,
individually and on behalf
of HYDE COUNTY,
    Plaintiffs,

v .                                 Hyde County
                                    No. 00 CVS 85
TROY LANE MAYO, D. SCOTT COBLE,
WAYNE TETTER, BARBARA DEESE, WILLIE
GIBBS, CALVIN GIBBS, JR. And NORTH
CAROLINA COUNTIES LIABILITY AND
PROPERTY INSURANCE POOL FUND,
    Defendants.

    Appeal by plaintiffs from judgment entered 12 July by Judge William C. Griffin, Jr., in Hyde County Superior Court. Heard in the Court of Appeals 7 February 2006.

    Carter, Archie, Hassell & Singleton, LLP, by Sid Hassell, Jr.; and Davis & Davis, by George Thomas Davis, Jr., for plaintiffs-appellants.

    The Twiford Law Firm, P.C., by Edward A. O'Neal, for defendant-appellee.

    Wayland Sermons, Jr., for intervenor Hyde County.

    LEVINSON, Judge.
    Plaintiffs appeal from judgment awarding $281,245.25 plus interest. The issue raised on appeal is the proper date from which interest should be calculated on the judgment. For the reasons that follow, we affirm.
    The relevant factual and procedural history of this case is summarized as follows: In November 2000, plaintiffs filed a complaint against defendant and several others. The complaint alleged, in pertinent part, that the defendant, an elected Commissioner for Hyde County, had entered into illegal contracts to repair the county courthouse and health center, for which he was paid more than $285,000. Plaintiffs sought a judgment voiding the contracts, and requiring defendant to repay Hyde County the total amount he had received. Following a jury trial, the jury on 19 August 2002 returned a verdict finding that defendant had violated the conflict of interest law, and awarding damages in the amount of $41,675.45. Plaintiffs appealed the denial of their motion for Judgment Notwithstanding the Verdict (JNOV) or for a new trial on the issue of damages; defendant cross-appealed from the judgment.
    This Court filed its opinion 17 February 2004, in Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, disc. review denied, 358 N.C. 543, 599 S.E.2d 45 (2004) (Gibbs I). The mandate was issued and the case certified to the superior court of Hyde County on 8 March 2004. The opinion held in relevant part that:
        Mayo 'must suffer the loss incident upon his breach' and is required to return to Hyde County the full amount of monies he received from both contracts as he was an elected commissioner and entered into these contracts for his own benefit in direct violation of theconflict of interest law of North Carolina. The trial court erred in failing to grant plaintiffs' motion for JNOV on the issue of damages towards Mayo individually.

Gibbs I, 162 N.C. App. at 557, 591 S.E.2d at 911, (quoting Insulation Co. v. Davidson County, 243 N.C. 252, 255, 90 S.E.2d 496, 498 (1955)).
    Following remand, the trial court on 12 July 2004 entered judgment against defendant, ordering in relevant part that:
         . . . .

    2.    Judgment in the amount of $281,245.25 is entered in favor of the Plaintiffs, acting on behalf of Hyde County, against the Defendant, Troy Lane Mayo plus interest thereon at the legal rate ($61.643 per day) from and after March 8, 2004 until paid.

Plaintiffs have appealed from this judgment.

______________________
    Plaintiff argues that the trial court erred by ordering defendant to pay interest on the judgment against him from 8 March 2004 until the judgment is paid. Plaintiffs assert that interest is owed from either (1) the dates on which defendant received each payment under the illegal contracts or, at the latest, from (2) the date the complaint was filed. We disagree.
    Interest on judgments is governed by N.C. Gen. Stat. § 24-5 (2005), which provides in relevant part that:
    (a)    Actions on Contracts. _ In an action for breach of contract . . . the amount awarded on the contract bears interest from the date of breach. . . .

    . . . .
    (b)    . . . In an action other than contract, any portion of a money judgment designated by the fact finder as compensatory damages bears interest from the date the action is commenced until the judgment is satisfied. Any other portion of a money judgment in an action other than contract, except the costs, bears interest from the date of entry of judgment under G.S. 1A-1, Rule 58, until the judgment is satisfied. . . .

N.C. Gen. Stat. § 24-5(a) and (b) (2005) (emphasis added).
    Plaintiffs argue first that common law precedent entitles them to prejudgment interest. “It is well settled that the common law of England is in force in this State to the extent that it is not destructive of, repugnant to, or inconsistent with our form of government, and to the extent that it has not been abrogated or repealed by statute or has not become obsolete; however, when the General Assembly legislates in respect to the subject matter of any common law rule, the statute supplants the common law and becomes the public policy of this State in respect to that particular matter.” Christenbury v. Hedrick, 32 N.C. App. 708, 711, 234 S.E.2d 3, 5 (1977) (citation omitted). As discussed above, a plaintiff's entitlement to interest on a judgment is governed by G.S. § 24-5, which has supplanted earlier common law on the issue.     Plaintiffs next argue that G.S. § 24-5(a) is applicable to the present case, which they characterize as an action on a contract. However, plaintiffs' complaint neither made a claim for breach of contract, nor sought enforcement of the contract's terms. Rather, plaintiffs expressly asked the court to declare that the contracts at issue were “void and of no effect.” We conclude that this isnot an action for breach of contract, and thus that the provisions of G.S. § 24-5 are not applicable.
    Finally, plaintiffs assert that, under G.S. § 24-5(b), they are entitled to interest from the date that their lawsuit was filed. In support of their position, plaintiffs quote the statutory language providing that “any portion of a money judgment designated by the fact finder as compensatory damages bears interest from the date the action is commenced[.]” “G.S. 24-5, which authorizes prejudgment interest in certain instances, is limited to sums due by contract and to sums designated by the jury or other fact finder as compensatory damages in certain non-contract cases[.]” Appelbe v. Appelbe, 76 N.C. App. 391, 394, 333 S.E.2d 312, 313 (1985). “Accordingly, for [plaintiffs] to receive prejudgment interest pursuant to § 24-5, [they] must demonstrate (1) that the judgment below is compensatory damages and (2) that the superior court designated the damages as compensatory damages.” Medical Mut. Ins. Co. of N.C. v. Mauldin, 157 N.C. App. 136, 139, 577 S.E.2d 680, 682 (2003). In the instant case, the verdicts returned by the jury do not recite any findings regarding plaintiffs' entitlement to compensatory damages. In addition, plaintiffs failed to include in the Record on Appeal the judgment entered by the trial court following the jury's return of a verdict; thus, there is no way for this Court to determine whether the trial court designated a portion of the damage award as compensatory. Further, neither this Court's opinion in Gibbs I, nor the judgment entered by the trial court on remand address thisissue, or indicate whether the monies that defendant was ordered to return to Hyde County were in the nature of compensatory damages.
    We conclude that plaintiffs failed to demonstrate either that they were awarded compensatory damages, or that the trial court designated the damages as compensatory, and therefore failed to show that the trial court erred by awarding interest from the date that judgment was entered by this Court. Accordingly, the trial court's judgment is
    Affirmed.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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