Plaintiff appeals from judgment entered 29 June 2005, and from
orders entered 3 November 2005, all by Judge William C. Griffin,
Jr. in Martin County Superior Court. Defendant East Carolina Auto
Brokers, Inc. appeals from order entered 3 November 2005, also by
Judge William C. Griffin, Jr. in Martin County Superior Court.
Heard in the Court of Appeals 20 September 2006.
Braxton H. Bell, for plaintiff.
Collins & Moore, P.L.L.C., by George L. Collins, for defendant
Sander's Ford, Inc.
The Carroll Law Firm, by Heath Carroll, for defendant Jack
Gaylord McNally Strickland Snyder & Holscher, L.L.P., by Brian
R. Becker and Danny D. McNally, for defendants East Carolina
Auto Brokers, Inc. and Tommy Cooke.
Oscar Rojas Vega (plaintiff) appeals orders granting JNOV in
favor of defendants Sanders Ford and Jack Mewborn; an order setting
aside entry of default judgment and providing relief from finaljudgment as to defendant Tommy Cooke; and a judgment denying him,
pursuant to N.C. Gen. Stat. § 20-348, treble damages, attorney's
fees and costs. East Carolina Auto Brokers (ECAB) appeals an order
denying its motion to set aside entry of default judgment and to
provide it relief from final judgment. We affirm.
The pertinent facts may be summarized as follows: On 27 March
2000, John Z. Gaby purchased a 1999 Ford pickup truck from Holiday
Chrysler in Jacksonville, North Carolina. During the course of
Gaby's ownership of the vehicle, it was involved in an accident.
The truck left the road, clipped a 12-inch tree in two on the
passenger side . . . [and] jumped a 30-foot embankment into a creek
bed. Gaby had the vehicle repaired at a cost of approximately
$16,000.00. Despite the repairs, numerous problems with the
vehicle remained: faulty wiring of the headlamps, misalignment of
the front end of the cab, uneven tire wear, and overspray in the
door jambs. The misalignment of the vehicle prompted Gaby to trade
in the truck to Sanders Ford in April 2001.
At Sanders Ford, the truck was inspected by sales manager
Charles Chesser. Gaby was offered $20,400.00 towards the purchase
of another vehicle. Chesser thought the vehicle had paintwork but
nothing major[.] While completing the paperwork, Gaby
acknowledged that the vehicle had been in an accident resulting in
more than 25% damage. As a result, Gaby received a final trade in
allowance of $18,350.00. In Gaby's damage disclosure statement to
Sanders Ford, Gaby marked the Yes box, indicating that the pickup
truck had been damaged by the collision or other occurrence to theextent that damages exceed 25 percent of its value at the time of
the collision or other occurrence[.] A CARFAX Vehicle History
Report obtained by Sanders Ford on 19 April 2001 showed that the
truck did not have an accident history.
On 7 May 2001, Jack Mewborn purchased the vehicle from Sanders
Ford. Based upon information provided to him by Sanders Ford
employee Todd Martin, Mewborn explained, he had knowledge that the
truck had significant damage and was a salvaged vehicle. Mewborn
further testified that the title he received from Sanders Ford had
the No block checked in the damage disclosure section. Due to
conflicting information regarding the vehicle, Mewborn ordered a
CARFAX report, which revealed that the truck had no accident
history. Mewborn attempted to phone Sanders Ford for an
explanation, but his calls went unanswered. Sanders Ford General
Manager Matt C. Raymond, III, testified that although Sanders Ford
received written notice that the truck was damaged and disclosed
the same to Mewborn, when the title clerk was processing the
title, she made a mistake and checked the wrong box.
On 10 May 2001, Mewborn sold the vehicle to ECAB. Mewborn
dealt with Tommy Cooke, general manager of ECAB. Mewborn testified
that he and Cooke looked at the truck and both men observed that
the truck had previous paintwork. Cooke test drove the vehicle and
purchased it. Mewborn further testified that he marked the No
block in the damage disclosure section in the bill of sale to ECAB.
While Mewborn acknowledged in his pre-trial answers to
interrogatories that Sanders Ford had indicated at the time ofpurchase that there was significant damage to the vehicle, Mewborn
testified at trial that he did not tell Mr. Cooke that. Cooke
testified that the truck looked as if it had some paintwork, but
that it did not seem damaged to the extent of 25 percent. It
was, Cooke explained, a very sharp truck and didn't look that
bad. Cooke also obtained a CARFAX report that revealed no
accident history on the vehicle.
On 22 May 2001, ECAB sold the vehicle to plaintiff for
$22,995.00. Plaintiff testified that during his negotiations with
ECAB, no one disclosed that the truck was damaged or that it had
been in a serious accident. Cooke testified that he had a clean
title and a clean CARFAX to show when we [ECAB] sold [the vehicle]
to Mr. Vega in good faith. After purchasing the vehicle,
plaintiff noticed that the truck would pull to the left side;
that the tires would wear easily; and that the paint would fall
off. Plaintiff phoned Cooke, who responded that it was not his
fault and that he was unable to correct the situation. Plaintiff
then phoned Sanders Ford, which offered to buy the truck for
$16,000.00. Plaintiff refused this offer. Plaintiff testified
that if he had known that the truck had been damaged greater than
25% of its value he would not have made the purchase. Finally,
plaintiff testified that before purchasing the truck he had not
spoken with or seen any documents produced by Sanders Ford, and had
not spoken with or seen any documents produced by Mewborn.
Plaintiff sued all named defendants for fraud under N.C. Gen.
Stat. §§ 20-71.4 and 20-348, and unfair and deceptive tradepractices pursuant to N.C. Gen. Stat. § 75-1.1. ECAB and Cooke did
not answer plaintiff's complaint. Therefore, entry of default was
entered against ECAB and Cooke on 29 December 2004. In addition,
upon motion of Greenville Auto Brokers, the trial court dismissed
it from the lawsuit on the basis that it did not exist as a
juridical entity at the time of the subject transaction.
After trial, a jury found that plaintiff was injured by
defendants in the amount of $6,868.74. The trial court trebled
these damages in the amount of $20,606.22 pursuant to N.C. Gen.
Stat. § 75-16, and awarded costs of $1,037.06. In the same
judgment, the trial court denied plaintiff's motion, made pursuant
to G.S. § 20-348, for attorney's fees, costs and treble damages.
Mewborn filed a motion for JNOV on 8 July 2005, and Sanders
Ford moved orally for JNOV on 3 October 2005. The trial court
granted these JNOV motions on 3 November 2005. Additionally, ECAB
and Cooke moved on 4 October 2005 pursuant to (1) N.C. Gen. Stat.
§ 1A-1, Rule 55(d) to set aside entry of default; and (2) N.C. Gen.
Stat. § 1A-1, Rule 60(b)(6) for relief from final judgment. On 3
November 2005, the trial court granted Cooke's motions, reasoning
that (1) Tommy Cooke was not in the chain of title of the vehicle
at issue . . . and was not a transferor . . . and (2) Tommy Cooke
was not involved in the negotiations with the Plaintiff for the
purchase of the vehicle at issue. The trial court denied the same
4 October 2005 motions by ECAB. Plaintiff and ECAB appeal, and we
address only the specific issues and grounds argued by them on
Plaintiff first contends that the trial court erred by
granting JNOV in favor of Sanders Ford and Mewborn because
plaintiff presented prima facie
evidence to support his claims for
(See footnote 1)
A ruling on a motion for JNOV is a question of law for which
we provide de novo
review. Bahl v. Talford
, 138 N.C. App. 119,
122, 530 S.E.2d 347, 350 (2000). When considering a motion for
all the evidence must be considered in the
light most favorable to the nonmoving party.
The nonmovant is given the benefit of every
reasonable inference . . . from the evidence
and all contradictions are resolved in the
nonmovant's favor. If there is more than a
scintilla of evidence supporting each element
of the nonmovant's case, the motion for . . .
judgment notwithstanding the verdict should be
Ace Chemical Corp. v. DSI Transports, Inc.
, 115 N.C. App. 237, 242,
446 S.E.2d 100, 103 (1994) (citations omitted).
The essential elements of fraud are: '(1) False
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.' Rowan County Bd. of Education v. U.S. Gypsum Co.
N.C. 1, 17, 418 S.E.2d 648, 658 (1992) (quoting Terry v. Terry
, 302N.C. 77, 83, 273 S.E.2d 674, 677 (1981)) (citations omitted)
essential element of fraud is the false representation or
concealment of a material fact. Id.
Proof of fraud necessarily
constitutes a violation of the prohibition against unfair and
deceptive trade practices. Webb v. Triad Appraisal and Adjustment
, 84 N.C. App. 446, 449, 352 S.E.2d 859, 862 (1987).
If plaintiff fails to offer proof of any misrepresentation or
reliance on the same, the claim for fraud must be dismissed.
Horack v. Southern Real Estate Co.
, 150 N.C. App. 305, 313, 563
S.E.2d 47, 53 (2002).
In the instant case, as plaintiff concedes, neither Sanders
Ford nor Mewborn made a false representation or concealed a
material fact to plaintiff. Before purchasing the vehicle,
plaintiff had no contact with these parties, and had not seen any
documents produced by them. Plaintiff nonetheless argues that,
because these parties made false representations to previous
persons and entities in the chain-of-title, they are liable to him,
a subsequent purchaser, under a theory of fraudulent
misrepresentation. Plaintiff relies largely on Ramsey v. Keever's
92 N.C. App. 187, 374 S.E.2d 135 (1988), and Raritan
River Steel Co. v. Cherry, Bekaert & Holland
, 322 N.C. 200, 367
S.E.2d 609 (1988), in making this argument. However, we need not
address the applicability of these authorities or answer whether
they support plaintiff's argument because even assuming arguendo
that plaintiff's argument has merit, plaintiff cannot show on this
record that he relied upon such representations and acted uponthem. Indeed, the record is bereft of any evidence that plaintiff
even knew that Mewborn made any representations whatsoever until
after this litigation began. Plaintiff also had no knowledge of
any representations by Sanders Ford at the time he purchased the
vehicle. The relevant assignments of error are overruled.
Plaintiff next contends that the trial court erred by denying
his motion for treble damages, attorney's fees and costs under G.S.
§ 20-348. Because plaintiff has not properly preserved this issue
for appellate review in accordance with the North Carolina Rules of
Appellate Procedure, we do not address it.
N.C.R. App. P. 10(c)(1) provides, in pertinent part, that:
Each assignment of error shall, so far as
practicable, be confined to a single issue of
law; and shall state plainly, concisely and
without argumentation the legal basis upon
which error is assigned. 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. . . .
One purpose of this rule is to 'identify for the appellee's
benefit all the errors possibly to be urged on appeal . . . so that
the appellee may properly assess the sufficiency of the proposed
record on appeal to protect his position.' State v. Baggett &
, 133 N.C. App. 47, 48, 514 S.E.2d 536, 537 (1999) (quoting
Kimmel v. Brett
, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437
(1988)). '[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, 641-42 (2005) (quoting In Re Appeal of Lane Co.
153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002)).
With respect to this argument, plaintiff relies on
of error 8: The trial court's denial of Plaintiff's Motion to
impose civil liability on Defendants under N.C.G.[S.] § 20-348 on
the grounds that it is an error of law. Like the assignment of
error asserted in Walker
, this amounts to no more than an
allegation that the court erred because its ruling was erroneous.
, 174 N.C. App. at 783, 624 S.E.2d at 642. T
he assignment of
error fails to adequately state a sufficiently specific legal
ground upon which it is based, and plaintiff's argument is
therefore not properly preserved for review.
Defendant ECAB also appeals, contending that the trial court
erred by denying its motions to reconsider [its] prior motion to
set aside entry of default judgment pursuant to Rule 55(d), and to
relieve it of final judgment under Rule 60(b)(6).
(See footnote 2)
N.C. Gen. Stat. § 1A-1, Rule 55(d) (2005) provides that [f]or
good cause shown the court may set aside an entry of default. . .
. A Rule 55 motion to set aside entry of default is addressed to
the sound discretion of the court[,] Old Salem Foreign Car Serv.,
Inc. v. Webb
, 159 N.C. App. 93, 97, 582 S.E.2d 673, 676 (2003),
whose decision will not be disturbed on appeal absent a showing of
abuse of that discretion. Security Credit Leasing, Inc. v. D.J.'sof Salisbury, Inc.
, 140 N.C. App. 521, 528, 537 S.E.2d 227, 232
(2000) (citations omitted
). Further, defendant has the burden of
establishing good cause to set aside entry of default. RC
Associates v. Regency Ventures, Inc.
, 111 N.C. App. 367, 374, 432
S.E.2d 394, 398 (1993) (citation omitted). Our courts use three
factors in conducting this analysis: (1) was defendant diligent
in pursuit of this matter; (2) did plaintiff suffer any harm by
virtue of the delay; and (3) would defendant suffer a grave
injustice by being unable to defend the action. Automotive
Equipment Distributors, Inc. v. Petroleum Equipment & Service,
., 87 N.C. App. 606, 608, 361 S.E.2d 895, 896-97 (1987). A
judge is subject to a reversal for abuse of discretion only upon a
showing by a litigant that the challenged actions are manifestly
unsupported by reason. RC Associates,
111 N.C. App. at 374, 432
S.E.2d at 398.
Under N.C. Gen. Stat. § 1A-1, Rule 60(b)(6) (2005), a trial
court may grant relief from a judgment where such relief is not
available pursuant to the first five subsections of Rule 60(b). In
the Matter of Oxford Plastics v. Goodson
, 74 N.C. App. 256, 259,
328 S.E.2d 7, 9 (1985). The test for whether relief may be given
under Rule 60(b)(6) is whether '(1) extraordinary circumstances
exist and (2) there is a showing that justice demands it.' Id.
(quoting Baylor v. Brown
, 46 N.C. App. 664, 670, 266 S.E.2d 9, 13
(1980)). In determining whether to grant relief under Rule
60(b)(6), courts should consider:
(1) the general desirability that a final
judgment not be lightly disturbed, (2) whererelief is sought from a judgment of dismissal
or default, the relative interest of deciding
cases on the merits and the interest in
orderly procedure, (3) the opportunity the
movant had to present his claim or defense,
and (4) any intervening equities.
, 46 N.C. App. at 670, 266 S.E.2d at 13 (citation omitted
The decision whether to grant relief from judgment pursuant to Rule
60(b)(6) is within the sound discretion of the trial court and the
trial court's decision will not be disturbed absent an abuse of
that discretion[.] Oxford Plastics
, 74 N.C. App. at 259, 328
S.E.2d at 9.
ECAB was served with the summons and complaint on 25 August
2004. ECAB did not file an answer, and never sought leave to do
so. An entry of default was entered as to Cooke and ECAB on 29
December 2004. After a trial on the merits necessitated by the
inclusion of other defendants, Cooke and ECAB hired counsel that
filed a Notice of Appearance on 8 August 2005. In support of its
Rule 55(d) and Rule 60(b) motions, ECAB argues that the evidence
at trial overwhelmingly confirmed that Tommy Cooke (individually
and as the agent of ECAB) was not informed orally or in writing
that the vehicle at issue had 'salvaged' status or had been damaged
in excess of 25% of its fair market value. ECAB argues that it
was duped because of paperwork accidents by Sanders Ford and
other evidence that it was not evident to Cooke that the vehicle
had been substantially damaged. Plaintiff counters, arguing that
it proceeded to trial with the understanding that the allegations
against ECAB were deemed admitted, and points to evidence showingthat ECAB, through its agent, knew or should have known the vehicle
was damaged in excess of 25% of its retail value.
With regard to ECAB's Rule 55(d) and Rule 60(b)(6) motions, we
conclude the trial court's rulings did not amount to an abuse of
discretion. ECAB was not diligent in defending the subject action
and, on these facts, the trial court could properly conclude that
ECAB would not suffer a grave injustice by not being allowed to
defend and that extraordinary circumstances are lacking. The
trial court's denial of ECAB's motions is not manifestly
unsupported by reason, and the relevant assignments of error are
We have considered and rejected the remaining arguments.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).