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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