This case arises out of a June 1999 lease of commercial
property in Charlotte, North Carolina, between Plaintiff and its
lessee, Defendant West's Charlotte Transfer & Storage, Inc.
(“WCT”). On 15 August 2001, Plaintiff filed a complaint in
Mecklenburg County small claims court seeking summary ejectment
against David D. Rushing (“Rushing”) and John Clayton (“Clayton”),
allegedly doing business as West's Charlotte Metro Moving &
Storage. On 4 October 2001, the court entered judgment in favor of
Plaintiff against Rushing and West's Charlotte Metro Moving &
Storage. The court dismissed Clayton from the suit with prejudice.
Rushing appealed to district court, where his motion to dismiss
himself as a party and to add the actual lessee, Defendant WCT, was
allowed.
On 9 April 2002, Plaintiff filed a motion in Mecklenburg
County District Court for summary judgment against Defendant WCT in
the ejectment case. The court granted Plaintiff's motion for
possession of the property on 14 May 2002. Defendant WCT appealedto this Court from this order.
(See footnote 1)
Pending this appeal, the
Mecklenburg County Clerk of Superior Court issued an order
requiring Defendant WCT to pay into the Clerk's office $11,719.77
monthly to stay the district court's judgment. This sum
represented base rent and other common area expense amounts due
under the lease. The Clerk's office forwarded payment to
Plaintiff, less $2,200.00 per month which represented the portion
of the monthly payment Defendant WCT disputed. Defendant WCT
contested a portion of the common area operating expenses Plaintiff
alleged was owed. At the time this case was heard by the trial
court, the amount withheld by the Clerk totaled $48,400.00 in
contested expenses.
On 13 June 2002, Plaintiff filed a complaint in Mecklenburg
County Superior Court against the individual Defendants
(See footnote 2)
and WCT
seeking monetary damages for breach of the lease. Plaintiff also
sought to “pierce the corporate veil” against the individual
Defendants, claiming,
inter alia, that the individual Defendants
are and have always been the sole shareholders
and officers of West's[,] . . . commingled
their own funds with those of West's[,] . . .
caused West's to be inadequately
capitalized[,] . . . so dominated and
controlled West's as to make the corporation
their alter-ego, . . . caused distributions tobe made from West's which have caused the
corporation to be unable to pay its debts as
they come due in the usual course of
business[,] [and that] . . . the total assets
of [West's] did not exceed total liabilities
after the distributions occurred.
Plaintiff sought “damages in an amount in excess of $373,000.00,
plus attorney's fees and interest at the maximum legal rate from
the date of the breach until paid.” On 6 September 2002,
Defendants filed an answer to Plaintiff's complaint. In their
answer, Defendants moved to dismiss the suit against the individual
Defendants because “they have never entered into possession of the
premises.” Defendants also asserted that the only amounts “due and
owing to Plaintiff are the remaining amounts of common area
operating expenses that are an issue in the first lawsuit . . .
[and that] Plaintiff's claim for $300,000.00 for actual
consequential and incidental damages has no factual basis and
should be dismissed.” Finally, Defendants pled that the funds of
WCT and the individual Defendants were never commingled and that
WCT was not “an alter-ego and a mere instrumentality for the
individual Defendants.”
On 11 September 2002, Plaintiff served on Defendants a set of
interrogatories and requests for production of documents. On 4
October 2002, Defendants moved to enlarge the time to respond to
Plaintiff's discovery requests and, that same day, an order was
entered enlarging the response time to 13 November 2002.
Defendants nevertheless failed to respond and, on 10 December 2002,
Plaintiff moved to compel responses. By order filed 2 February 2003, the Honorable Robert P.
Johnston ordered Defendants to answer the interrogatories and
respond to the requests for production of documents on or before 21
February 2003. Defendants did not comply with Judge Johnston's
order and, on 3 March 2003, Plaintiff moved for sanctions. The
motion for sanctions was heard before the Honorable Yvonne Mims
Evans on 9 April 2003. By order entered 11 April 2003, Judge Evans
struck “those portions of each Defendants' [sic] Answer which
constitute a defense to or denial of liability to the Plaintiff[.]”
She further ordered that the civil action “shall proceed to
judgment solely on the issue of the amount of damages to be awarded
to Plaintiff[.]”
On 9 May 2003, Defendants gave notice of appeal from Judge
Evans's order. However, Defendants failed to timely perfect their
appeal and, on 15 October 2003, Plaintiff moved to dismiss. By
order filed 3 November 2003, the Honorable David S. Cayer dismissed
Defendants' appeal. Defendants did not appeal from Judge Cayer's
order.
On 17 September 2004, Defendants moved to vacate Judge Evans's
order striking portions of their answer. By order filed 19 October
2004, Judge Evans denied Defendants' motion to vacate. The case
then proceeded to trial between 4 and 6 January 2005 before the
Honorable W. Robert Bell on the sole issue of the amount of damages
Plaintiff was entitled to receive for breach of its lease.
Following Judge Bell's denial of Plaintiff's motion for directed
verdict at the close of the evidence, the jury awarded Plaintiff$101,830.38 in actual, consequential, and incidental damages.
Based on this verdict Judge Bell entered judgment against
Defendants on 23 March 2005 in the amount of $101,830.38, with
“prejudgment interest at the maximum legal rate from June 9, 2001
[date of breach of the lease] to date of this Judgment on the
amount of $53,430.38[,]”
(See footnote 3)
and “an award of attorneys['] fee in the
amount of $15,274.55 representing 15% of the $101,830.38 amount the
jury determined to be the outstanding balance [owed under the
lease].”
On 4 April 2005, Plaintiff moved for judgment notwithstanding
the verdict, seeking damages in the amount alleged in its
complaint, or in the alternative a new trial. On 2 November 2005,
pursuant to Rule 52(a)(2) of the North Carolina Rules of Civil
Procedure, Plaintiff requested that the trial court make findings
of fact and conclusions of law in ruling on its 4 April 2005
motion. By order entered 30 November 2005, Judge Bell denied
Plaintiff's motion for judgment notwithstanding the verdict or new
trial, without making findings of fact or conclusions of law.
On 29 December 2005, Plaintiff filed notice of appeal from
Judge Bell's judgment entered 23 March 2005 and his order of 30
November 2005. On 30 December 2005, Defendants filed notice of
appeal from Judge Evans's 11 April 2003 order striking portions of
Defendants' answer, Judge Evans's 19 October 2004 order denyingDefendants' motion to vacate the 11 April 2003 order, and Judge
Bell's 23 March 2005 judgment. We affirm Judge Evans's orders and
uphold the judgment for Plaintiff, but remand for an additional
award of interest and an order containing findings of fact and
conclusions of law regarding Plaintiff's motion for a new trial.
A. DIRECTED VERDICT AND JUDGMENT NOTWITHSTANDING THE VERDICT
[1] By its first argument, Plaintiff contends the trial court
erred in failing to grant its motions for directed verdict and
judgment notwithstanding the verdict. Specifically, Plaintiff
argues that because “the lease itself was unambiguous and the
evidence was uncontroverted, [the amount due under the lease] was
not a factual issue that required jury determination[,]” and thus,
Plaintiff was entitled to judgment as a matter of law in the amount
of $154,340.55, plus prejudgment interest, attorneys' fees, and
costs. We disagree.
The standard of review of directed verdict is
whether the evidence, taken in the light most
favorable to the non-moving party, is
sufficient as a matter of law to be submitted
to the jury. When determining the correctness
of the denial for directed verdict or judgment
notwithstanding the verdict, the question is
whether there is sufficient evidence to
sustain a jury verdict in the non-moving
party's favor, or to present a question for
the jury. Where the motion for judgment
notwithstanding the verdict is a motion that
judgment be entered in accordance with the
movant's earlier motion for directed verdict,
this Court has required the use of the same
standard of sufficiency of evidence in
reviewing both motions.
Davis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133,
138 (1991) (internal citations and citations omitted). Generally,
when there is more than a scintilla of evidence to support the non-
movant's claim or defense, a motion for directed verdict and thus
a motion for judgment notwithstanding the verdict should be denied.
Turner v. Ellis, 179 N.C. App. 357, 633 S.E.2d 883 (2006),
disc.
review denied, 361 N.C. 370, 644 S.E.2d 564 (2007).
In this case, though Plaintiff offered documentary evidence
supporting its claim for damages, the evidence on which Plaintiff
relied and the amount of damages alleged by Plaintiff were in
dispute. During his testimony, Defendant Rushing stated that
Defendants contested some of the common expenses for which
Defendant WCT was charged because they “had issues with the
property management [fee of $24,175.00 for the year 2000] that was
being charged[.]” Defendants also believed Defendant WCT was being
charged “an exorbitant amount” for repairs to the premises.
Furthermore, Rushing testified that Defendant WCT was charged for
repairs to the parking lot and roadway but that the repairs were
not of a high quality. “It was a poor job that was done. There
was [sic] raises in the pavement, there were areas all throughout
the whole parking lot where you could see that it just wasn't a
good job that was done by this company.” Additionally, Rushing
testified that there were holes and cracks in the pavement that
appeared “all over the parking lot shortly after the paving job was
done.” In support of Rushing's testimony, Defendants offered inevidence photographs of the parking lot documenting the holes and
cracks that appeared after the repairs were completed.
This testimony and documentation provides more than a
scintilla of evidence supporting Defendants' assertion that
Plaintiff's claims for damages were exaggerated. Accordingly, the
question of the extent of Plaintiff's damages was for the jury to
determine, and thus, the trial court did not err in denying
Plaintiff's motion for directed verdict. Similarly, because the
standard of review is the same, the trial court did not err in
denying Plaintiff's motion for judgment notwithstanding the
verdict. Plaintiff's argument is therefore overruled.
B. CONTRACTUAL LATE FEES
[2] Plaintiff next argues the trial court erred in ruling that
Plaintiff was not entitled to contractual late fees on sums that
Defendant WCT paid to the Mecklenburg County Clerk of Superior
Court. Plaintiff contends the Clerk lacked authority to issue an
order superceding the terms of the original lease and, because
Defendant WCT failed to make payments under the Clerk's order in a
manner which would allow timely payment to Plaintiff pursuant to
the provisions of its lease, the trial court erred in failing to
award late fees required by the lease. Again, we disagree.
As noted
supra, after the district court granted summary
judgment in favor of Plaintiff in the ejectment action, Defendant
WCT appealed to this Court. Pursuant to section 42-34.1 of our
General Statutes, “[i]f the judgment in district court is against
the defendant appellant and the defendant appellant appeals thejudgment, it shall be sufficient to stay execution of the judgment
if the defendant appellant posts a bond as provided in G.S. 42-
34(b).” N.C. Gen. Stat. § 42-34.1(b) (2005). Section 42-34(b)
provides that
it shall be sufficient to stay execution of a
judgment for ejectment if the defendant
appellant pays to the clerk of superior court
any rent in arrears . . . and signs an
undertaking that he or she will pay into the
office of the clerk of superior court the
amount of the tenant's share of the contract
rent as it becomes due periodically after the
judgment was entered[.]
N.C. Gen. Stat. § 42-34(b) (2005). This section provides further
that
[a]ny magistrate, clerk, or district court
judge shall order stay of execution upon the
defendant appellant's paying the undisputed
rent in arrears to the clerk and signing the
undertaking.
If either party disputes the
amount of the payment or the due date in the
undertaking, the aggrieved party may move for
modification of the terms of the undertaking
before the clerk of superior court or the
district court. Upon such motion and upon
notice to all interested parties, the clerk or
court shall hold a hearing within 10 calendar
days of the date the motion is filed and
determine what modifications, if any, are
appropriate.
Id. (Emphasis added.) An undertaking is a “promise, pledge, or
engagement.”
Black's Law Dictionary 1562 (8th ed. 2004).
In this case, in order to stay the judgment of the district
court pending Defendant WCT's appeal of the court's summary
ejectment order, on 19 August 2002, the Mecklenburg County Clerk of
Superior Court ordered Defendants to pay “to the Clerk's
office . . . $11,719.77, on or before the 5
th day of each month (ornext business day if the 5
th day of each month falls on a Saturday,
Sunday or a court holiday).” This sum represented base rent and
other common area expense amounts due under the lease. The order
filed by the Clerk substantially complied with N.C. Gen. Stat. §
42-34 because it determined the amount Defendant WCT owed in
arrears, the amount of prospective monthly rent, and the dates upon
which the monthly rent was due to the Clerk's office. Further, the
Clerk ordered that the stay of the summary ejectment judgment would
be dissolved if Defendant WCT failed to make timely payments. Upon
receipt of these payments, the Clerk's office disbursed to
Plaintiff the amount of monthly fees owed under the lease
($11,719.77), less the expenses contested by Defendants
($2,200.00). Plaintiff does not contend that WCT failed to make
payments timely under the terms of the Clerk's order, only that
such payments were not timely under the terms of the lease.
There is no evidence before us that Defendant WCT signed an
“undertaking” to make payments required by the Clerk's order as
contemplated by the statute. However, based on Defendant WCT's
compliance with the order and the absence of evidence demonstrating
that Plaintiff or WCT objected to its terms, we conclude that both
Plaintiff and WCT intended to be bound by the order, and that the
order satisfied the statutory requirements for an “undertaking” on
WCT's part.
(See footnote 4)
Thus, the lease terms regarding late fees were nolonger applicable. Additionally, although Plaintiff contends it
was harmed because the payments it received were late under the
terms of the lease, there is no evidence that Plaintiff made a
motion to the Clerk to have the payment date changed, as was
Plaintiff's right under N.C. Gen. Stat. § 42-34(b). Accordingly,
the trial court did not err in determining that Plaintiff was not
entitled to late fees. This argument is overruled.
C. PREJUDGMENT INTEREST
[3] By its third argument, Plaintiff contends the trial court
erred by denying Plaintiff prejudgment interest on the monthly
payments of $2,200.00 withheld by the Mecklenburg County Clerk of
Superior Court pending this litigation.
(See footnote 5)
We agree.
Section 24-5 of our General Statutes provides in relevant part
that, in an action for breach of contract, “the amount awarded on
the contract bears interest
from the date of breach.” N.C. Gen.
Stat. § 24-5(a) (2005) (emphasis added). “'Interest is the
compensation allowed by law, or fixed by the parties, for the use,
or forbearance, or detention of money.'”
Parker v. Lippard, 87 N.C.
App. 43, 49, 359 S.E.2d 492, 496 (1987) (quoting
Ripple v. Mortgage
& Acceptance Corp., 193 N.C. 422, 424, 137 S.E. 156, 157 (1927)).
“Put simply, interest . . . means compensation allowed by law as
additional damages for the
lost use of money during the timebetween the accrual of the claim and the date of the judgment.”
Members Interior Constr., Inc. v. Leader Constr. Co., 124 N.C. App.
121, 125, 476 S.E.2d 399, 402 (1996) (quotation marks and citations
omitted),
disc. review denied, 345 N.C. 754, 485 S.E.2d 56 (1997).
A judgment is “the final amount of money due to the plaintiff,
consisting of the verdict, costs, fees, and interest.”
Brown v.
Flowe, 349 N.C. 520, 522, 507 S.E.2d 894, 896 (1998) (citations
omitted). “[A] valid tender of payment for the full amount, plus
interest to date, will be effective to stop the running of interest
. . . .”
Thompson-Arthur Paving Co. v. Lincoln Battleground
Assoc., Ltd., 95 N.C. App. 270, 282, 382 S.E.2d 817, 824 (1989)
(citation omitted). However, “unconditional payment offers are, by
definition, not tender offers as tender offers are made in full and
final settlement of a claim[.]”
Members, 124 N.C. App. at 125, 476
S.E.2d at 403 (citations omitted).
In this case, Defendant WCT's monthly payments to the Clerk of
the contested $2,200.00 were not valid tenders of payment to
Plaintiff. Rather, these payments were part of the undertaking
required by the Clerk to stay execution of the summary ejectment
judgment against Defendant WCT. Because (1) the payments did not
include interest and were not a final settlement of the claim, and
(2) Plaintiff was deprived of the use of this money during the
period it was retained by the Clerk, Defendant WCT's payment of the
disputed amount to the Clerk did not stop the running of interest.
See id.;
see also Thompson-Arthur,
supra. Accordingly, the trialcourt erred in not awarding prejudgment interest on the $48,400.00
withheld by the Clerk.
D. ATTORNEYS' FEES
[4] Next, Plaintiff argues the trial court erred in
calculating the amount of attorneys' fees due Plaintiff from
Defendants. This argument is without merit.
The trial court awarded Plaintiff $15,274.55 in attorneys'
fees, based on a calculation of fifteen percent of $101,830.38, the
amount that the jury determined to be the outstanding balance due
on the lease of the property. Citing N.C. Gen. Stat. § 6-21.2,
Plaintiff argues the trial court erroneously used the amount of
damages as determined by the jury to calculate the attorneys' fees
when, instead, the court should have awarded attorneys' fees under
the “time price balance” method set out in the statute.
Section 6-21.2 of our General Statutes provides in relevant
part as follows:
Obligations to pay attorneys' fees upon any
note, conditional sale contract or other
evidence of indebtedness, in addition to the
legal rate of interest or finance charges
specified therein, shall be valid and
enforceable, and collectible as part of such
debt, if such note, contract or other evidence
of indebtedness be collected by or through an
attorney at law after maturity, subject to the
following provisions:
(1) If such note, conditional sale contract
or other evidence of indebtedness
provides for attorneys' fees in some
specific percentage of the “outstanding
balance” as herein defined, such
provision and obligation shall be valid
and enforceable up to but not in excess
of fifteen percent (15%) of said
“outstanding balance” owing on said note,contract or other evidence of
indebtedness.
(2) If such note, conditional sale contract
or other evidence of indebtedness
provides for the payment of reasonable
attorneys' fees by the debtor, without
specifying any specific percentage, such
provision shall be construed to mean
fifteen percent (15%) of the “outstanding
balance” owing on said note, contract or
other evidence of indebtedness.
(3) As to notes and other writing(s)
evidencing an indebtedness arising out of
a loan of money to the debtor, the
“outstanding balance” shall mean the
principal and interest owing at the time
suit is instituted to enforce any
security agreement securing payment of
the debt and/or to collect said debt.
(4) As to conditional sale contracts and
other such security agreements which
evidence both a monetary obligation and a
security interest in or a lease of
specific goods, the “outstanding balance”
shall mean the “time price balance” owing
as of the time suit is instituted by the
secured party to enforce the said
security agreement and/or to collect said
debt.
N.C. Gen. Stat. § 6-21.2 (2005).
The lease
(See footnote 6)
between the parties here provides:
If any Party or Broker brings an action or
proceeding to enforce the terms hereof or
declare rights hereunder, the Prevailing Party
. . . [i]n any such proceeding, action, or
appeal thereon, shall be entitled to
reasonable attorneys' fees. . . . The
attorneys' fee award shall not be computed in
accordance with any court fee schedule, but
shall be such as to fully reimburse all
attorneys' fees reasonably incurred.
The terms of the lease contemplate a recovery of all
attorneys' fees by Plaintiff. However, section 6-21.2 limits
recovery to fifteen percent of the “outstanding balance” owing on
the lease. Plaintiff contends the “outstanding balance” under the
lease is the amount of damages sought in its complaint,
i.e., the
amount owed on the lease at the time suit was filed, not the amount
awarded by the jury. We disagree. Because Defendants presented
testimonial and documentary evidence that raised doubts about the
extent of Plaintiff's damages under the contract, the “outstanding
balance” due under the lease was a question for the jury.
See G.
L. Wilson Bldg. Co. v. Thorneburg Hosiery Co., 85 N.C. App. 684,
688, 355 S.E.2d 815, 818 (“The 'outstanding balance' due on the
contract . . . consists of the amount awarded by the arbitrator for
any of the items requested . . . .),
disc. review denied, 320 N.C.
798, 361 S.E.2d 75 (1987).
Plaintiff argues further, however, that the jury's verdict
“was a measure of damages due for the breach of the lease, not a
measure of the outstanding balance to be used for determination of
allowable attorney's fees under N.C.G.S. § 6-21.2.” Therefore,
according to Plaintiff, the trial court should have used the “time
price balance” method as described by subparagraph (4) of section
6-21.2 to determine the “outstanding balance” due on its lease and
awarded attorneys' fees based on that calculation. This argument
ignores the plain language of the statute which unambiguously
limits the “time price balance” method of determining the
“outstanding balance” of indebtedness to “conditional salecontracts and other such security agreements which evidence both a
monetary obligation and a security interest in or a lease of
specific goods[.]” N.C. Gen. Stat. § 6-21.2(4) (emphasis added)
.
Since the contract at issue in this case concerns the lease of real
property and not goods, this provision of the statute is
inapplicable here. Furthermore, it is clear to us that because the
lease is for real property and does not specify a percentage of the
“outstanding balance” to be awarded as attorneys' fees, Judge Bell
correctly chose to apply section 6-21.2(2). Under this section,
Judge Bell properly awarded Plaintiff attorneys' fees in the amount
of fifteen percent of the “outstanding balance” as determined by
the jury. Therefore, Plaintiff's argument is without merit.
[5] Plaintiff also asserts that the trial court abused its
discretion by not awarding attorneys' fees in the underlying
summary ejectment action. Citing
Coastal Production Credit Ass'n
v. Goodson Farms, Inc., 70 N.C. App. 221, 319 S.E.2d 650,
disc.
review denied, 312 N.C. 621, 323 S.E.2d 922 (1984), Plaintiff
argues that because the summary ejectment action was “reasonably
related” to the breach of contract action for which the court
awarded fees, the trial court was required to award fees in the
underlying action. Again, we disagree.
In
Coastal Production, this Court held that it was not an
abuse of discretion to allow “fees for participation in other
proceedings to expedite collection or preserve assets[.]”
Id. at
228, 319 S.E.2d at 656. However, the Court recognized that “the
burden remains on the claimant to present evidence that the otherproceedings are reasonably related” to the principal proceeding
before the trial court.
Id. (Citation omitted). Further, this
Court held only that the trial court
may award fees when a
reasonable relationship between the proceedings is proved; it did
not hold that the court is required to award fees.
Id. “Our
result[] [is] that participation in other proceedings
may be
allowed as costs . . . .”
Id. (Emphasis added).
“A judge is subject to reversal for abuse of discretion only
upon a showing by a litigant that the challenged actions are
manifestly unsupported by reason.”
Clark v. Clark, 301 N.C. 123,
129, 271 S.E.2d 58, 63 (1980) (citation omitted). After a thorough
review of the record on appeal herein, we cannot conclude that
Plaintiff has proved the trial judge abused his discretion in not
awarding Plaintiff attorneys' fees in the underlying ejectment
action. This argument is overruled.
[6] Finally, Plaintiff argues that Judge Bell erred in failing
to award attorneys' fees without considering the application of
N.C. Gen. Stat. § 6-20. Section 6-20 provides that “[i]n other
actions, costs may be allowed or not, in the discretion of the
court, unless otherwise provided by law.” N.C. Gen. Stat. § 6-20
(2005). Plaintiff's reliance on this statute is misplaced. In
Lee
Cycle Ctr., Inc. v. Wilson Cycle Ctr., Inc., 143 N.C. App. 1, 13,
545 S.E.2d 745, 752,
aff'd per curiam, 354 N.C. 565, 556 S.E.2d 293
(2001), this Court determined that “section 6-20 does not authorize
a trial court to include attorney's fees as a part of the costs
awarded under that section, unless specifically permitted byanother statute.” Plaintiff does not provide citation to any
statute and our research reveals none that allows an award of
attorneys' fees in breach of contract cases. We thus hold that the
trial court did not err in failing to award attorneys' fees under
section 6-20.
Plaintiff's assignments of error challenging the attorneys'
fees as calculated and awarded by Judge Bell are overruled.
E. FINDINGS OF FACT IN ORDER DENYING JUDGMENT NOTWITHSTANDING THE
VERDICT AND NEW TRIAL
[7] Plaintiff's final argument is that the trial court erred
in failing to make findings of fact and conclusions of law, as
requested by Plaintiff, in its order denying Plaintiff's motion for
judgment notwithstanding the verdict or new trial.
“Findings of fact and conclusions of law are necessary on
decisions of any motion or order ex mero motu only when requested
by a party and as provided by Rule 41(b).” N.C. Gen. Stat. § 1A-1,
Rule 52(a)(2) (2005). Generally, a trial court's compliance with
a Rule 52(a)(2) motion is mandatory and, once requested, “the
findings of fact and conclusions of law on a decision of a motion,
as in a judgment after a non-jury trial, must be sufficiently
detailed to allow meaningful review.”
Andrews v. Peters, 75 N.C.
App. 252, 258, 330 S.E.2d 638, 642 (1985) (citations omitted),
aff'd, 318 N.C. 133, 347 S.E.2d 409 (1986).
When considering a trial court's ruling on a motion for
judgment notwithstanding the verdict, our standard of review is
de
novo.
See Davis,
supra. “'Under a
de novo review, the court
considers the matter anew and freely substitutes its own judgmentfor that of the [trial court].'”
Penninsula Prop. Owners Ass'n,
Inc. v. Crescent Resources, LLC, 171 N.C. App. 89, 92, 614 S.E.2d
351, 353 (quoting
In re Appeal of the Greens of Pine Glen Ltd.
P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)),
appeal
dismissed and disc. review denied, 360 N.C. 177, 626 S.E.2d 648
(2005).
Since our review of the trial court's denial of Plaintiff's
motion for judgment notwithstanding the verdict is
de novo, the
purpose for requiring findings of fact and conclusions of law under
Rule 52 _ to allow meaningful appellate review _ does not arise in
this case. That is, “we consider[] the matter anew” and would
freely substitute our judgment for that of the trial court
regardless of whether the trial court made findings of fact and
conclusions of law.
Id. Therefore, it was not necessary for Judge
Bell to make findings of fact and conclusions of law in his order
denying Plaintiff's motion for judgment notwithstanding the
verdict. Accordingly, Plaintiff's argument is overruled.
We next address Plaintiff's alternative motion for a new
trial. On 4 April 2005, Plaintiff moved for a new trial pursuant
to Rule 59(a)(5) (“[m]anifest disregard by the jury of the
instructions of the court”), Rule 59(a)(6) (“inadequate damages
appearing to have been given under the influence of passion or
prejudice”), Rule 59(a)(7) (“[i]nsufficiency of the evidence to
justify the verdict or that the verdict is contrary to law”), Rule
59(a)(8) (“[e]rror in law occurring at the trial and objected to by
the party making the motion”), and Rule 59(a)(9) (“[a]ny otherreason heretofore recognized as grounds for a new trial”). On 2
November 2005, Plaintiff requested findings of fact and conclusions
of law in the trial court's ruling on its motion for a new trial.
“Generally, a motion for new trial is addressed to the sound
discretion of the trial court, and its ruling will not be disturbed
absent a manifest abuse of that discretion.”
Kinsey v. Spann, 139
N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000) (citing
In re Will
of Herring, 19 N.C. App. 357, 198 S.E.2d 737 (1973)). “[W]hen
requested, findings of fact and conclusions of law must be made
even on rulings resting within the trial court's discretion.”
Andrews, 318 N.C. at 139, 347 S.E.2d at 413. “However, where the
motion involves a question of law or legal inference, our standard
of review is
de novo.”
Kinsey, 139 N.C. App. at 372, 533 S.E.2d at
490 (citing
In re Will of Herring,
supra).
Here, as with the motion for judgment notwithstanding the
verdict, Plaintiff's motion for a new trial pursuant to Rule
59(a)(7) and Rule 59(a)(8) presents questions of law which receive
de novo review on appeal. Accordingly, as discussed
supra,
findings of fact and conclusions of law will not aid our review and
thus are not required. However, because the trial court's ruling
on Plaintiff's motion under Rule 59(a)(5), Rule 59(a)(6), and Rule
59(a)(9) is evaluated for an abuse of discretion, findings of fact
and conclusions of law are necessary to effectuate meaningful
appellate review. Therefore, the trial court erred in failing to
make findings and conclusions as requested by Plaintiff.
Accordingly, this matter is remanded to the trial court for theentry of an order containing appropriate findings of fact and
conclusions of law on Plaintiff's motion for a new trial under Rule
59(a)(5), (a)(6), and (a)(9).
A. ORDER STRIKING ANSWERS DENYING LIABILITY
[8] We now turn our attention to Defendants' assignments of
error. Defendants first contend the trial court erred by striking
their answers denying liability, leaving only damages to be
determined by the jury. Because Defendants did not properly
preserve this argument for our review, it is dismissed.
During the early stages of this case, Defendants failed to
cooperate with Plaintiff regarding certain discovery matters.
After unsuccessful and repeated attempts to obtain responses to
interrogatories and requests for production of documents from
Defendants, on 13 December 2002 Plaintiff filed a motion to compel
discovery. Following a hearing, on 29 January 2003 Judge Johnston
entered an order compelling discovery. When Defendants did not
comply with this order, on 3 March 2003 Plaintiff filed a motion
for sanctions. After determining that “there was no good cause or
justification” for the failure to comply with the trial court's 29
January 2003 order, by order filed 11 April 2003, Judge Evans
struck “those portions of each Defendants' [sic] Answer which
constitute a defense to or denial of liability to the Plaintiff[.]”
On 9 May 2003, Defendants appealed from Judge Evans's order.
After filing notice of appeal, Defendants failed to timely
perfect their appeal, and by order filed 3 November 2003, JudgeCayer dismissed Defendants' appeal. Defendants did not appeal from
this order. Instead, after final judgment was entered, Defendants
gave notice of appeal purporting,
inter alia, to appeal from Judge
Evans's 11 April 2003 order striking their defenses.
Once Defendants' right to appeal from Judge Evans's 11 April
2003 order was lost for failure to timely perfect that appeal, the
appropriate action would have been to petition this Court for
certiorari.
See N.C. R. App. P. 21(a)(1) (“[C]ertiorari may be
issued in appropriate circumstances by either appellate court to
permit review of the judgments and orders of trial tribunals when
the right to prosecute an appeal has been lost by failure to take
timely action . . . .”). Here, Defendants did not petition for
certiorari. Because Defendants failed to follow the proper
procedure to have the merits of this argument considered, this
argument is dismissed.
Furthermore, although Defendants assigned
error to Judge Evans's 19 October 2004 order denying their motion
to vacate the 11 April 2003 order, they present no argument in
their brief addressing this assignment of error. Therefore, this
assignment of error is deemed abandoned.
See N.C. R. App. P.
28(b)(6) (noting that 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”).
B. RETRYING DEFENDANT CLAYTON
[9] By their next argument, Defendants contend the trial court
erred in “retrying” Defendant Clayton because he had been dismissed
with prejudice from the underlying summary ejectment case. Specifically, Defendants contend that Clayton's dismissal with
prejudice in the ejectment action operated as
res judicata or
collateral estoppel on Clayton's liability in the breach of
contract case. We do not agree.
Generally, “[t]he doctrine of
res judicata applies where there
are two actions involving the same parties and the same claims or
demands; the doctrine of collateral estoppel operates where there
are two actions involving the same parties, but where the second
action arises from a different claim or demand.”
Chrisalis
Properties, Inc. v. Separate Quarters, Inc., 101 N.C. App. 81, 87-
88, 398 S.E.2d 628, 633 (1990) (citations omitted),
disc. review
denied, 328 N.C. 570, 403 S.E.2d 509 (1991). Section 42-28 of the
General Statutes provides in relevant part that
[w]hen the lessor or his assignee files a
complaint [for summary ejectment] . . . [t]he
plaintiff may claim rent in arrears, and
damages for the occupation of the premises
since the cessation of the estate of the
lessee, . . . but if he omits to make such
claim, he shall not be prejudiced thereby in
any other action for their recovery.
N.C. Gen. Stat. § 42-28 (2005). A plain reading of this statute
establishes that “the summary ejectment statute specifically allows
a lessor to bring an action to regain possession of the premises
separate from an action for damages[.]”
Chrisalis Properties, 101
N.C. App. at 88, 398 S.E.2d at 633. Therefore, the disposition of
the underlying case would have no
res judicata or collateral
estoppel effect on Plaintiff's subsequent suit for recovery of
damages. Furthermore, because
res judicata and collateral estoppel
are affirmative defenses that must be pled,
In re D.R.S., ___ N.C.App. ___, 638 S.E.2d 626 (2007), and although they were properly
pled in Defendants' answer, Judge Evans struck these defenses.
They thus have no application here. This argument is overruled.
C. TESTIMONY OF PAUL KAPLAN
[10] By their final argument, Defendants contend the trial
court erred by allowing Paul Kaplan (“Kaplan”), a person
responsible for the management of the premises which are the
subject of this litigation, to testify regarding the extent of
damages incurred by Plaintiff because Kaplan had no personal
knowledge of the matters to which he was testifying. We disagree.
“Admission of evidence is 'addressed to the sound discretion
of the trial court and may be disturbed on appeal only where an
abuse of such discretion is clearly shown.'”
Gibbs v. Mayo, 162
N.C. App. 549, 561, 591 S.E.2d 905, 913 (quoting
Sloan v. Miller
Bldg. Corp., 128 N.C. App. 37, 45, 493 S.E.2d 460, 465 (1997)),
appeal dismissed and disc. review denied, 358 N.C. 543, 599 S.E.2d
45 (2004). “A trial court abuses its discretion only when its
ruling is 'manifestly unsupported by reason or one so arbitrary
that it could not have been the result of a reasoned decision.'”
Lane v. American Nat'l Can Co., 181 N.C. App. 527, 532, 640 S.E.2d
732, 736 (2007) (quoting
Briley v. Farabow, 348 N.C. 537, 547, 501
S.E.2d 649, 656 (1998)).
Defendants argue the trial court erred in admitting Kaplan's
testimony because when “a witness does not possess the required
personal knowledge of the matters to which he or she is testifying,
then such testimony constitutes inadmissible hearsay.” Generally,a “witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that he has personal
knowledge of the matter.” N.C. Gen. Stat. § 8C-1, Rule 602 (2005).
However, in
U.S. Leasing Corp. v. Everett, Creech, Hancock &
Herzig, 88 N.C. App. 418, 423, 363 S.E.2d 665, 667 (citation
omitted),
disc. review denied, 322 N.C. 329, 369 S.E.2d 364 (1988),
this Court determined that even though the knowledge of the witness
may be “limited to the contents of plaintiff's file with which he
had familiarized himself, he could properly testify about the
records and their significance so long as the records themselves
were admissible under the business records exception to the hearsay
rule[.]” The business records exception provides
[a] memorandum, report, record, or data
compilation, in any form, of acts, events,
conditions, opinions, . . . made at or near
the time by, or from information transmitted
by, a person with knowledge, if kept in the
course of a regularly conducted business
activity, and if it was the regular practice
of that business activity to make the
memorandum, report, record, or data
compilation, all as shown by the testimony of
the custodian or other qualified witness,
unless the source of information or the method
or circumstances of preparation indicate lack
of trustworthiness[,]
is not excluded by the hearsay rule. N.C. Gen. Stat. § 8C-1, Rule
803(6) (2005).
In this case, it is clear that throughout his testimony Kaplan
was referring to documents from Plaintiff's file and that he did
not have personal knowledge of the matters contained in those
documents. However, it is also clear that the documents to which
Kaplan referred were admissible in evidence under the businessrecords exception to the hearsay rule. Specifically, Kaplan
testified that the documents were “maintained during the normal
course of business[,]” that he was “one of the custodians of [the]
business records[,]” and that he was “familiar with the
contents . . . [of the] business records relating to [the]
property” that is the subject of this litigation. Based on this
testimony, Kaplan's subsequent testimony about the matters
contained in the business records was admissible under our holding
in
U.S. Leasing Corp. Accordingly, Defendants' argument is
overruled.
For the reasons stated, the judgment and orders of the trial
court are affirmed in part, reversed in part, and the case is
remanded for the entry of an order on prejudgment interest and
findings of fact and conclusions of law on Plaintiff's motion for
a new trial consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Judges TYSON and STROUD concur.
Footnote: 1