Appeal by plaintiff from judgments entered 10 June 2005 and 15
November 2005 by Judge Napoleon B. Barefoot, Jr., Columbus County
District Court. Heard in the Court of Appeals 13 December 2006.
Manning, Fulton, & Skinner, by Michael S. Harrell and Evan B.
Horwitz, for plaintiff-appellant.
No brief filed by defendant-appellee.
Wellonton Limited Partnership (plaintiff) appeals from
judgments entered 10 June 2005 and 15 November 2005, denying
plaintiff's motion for summary judgment and the judgment consistent
with a jury verdict denying plaintiff's possession of the leased
premises (action for summary ejectment).
Plaintiff owns and operates an apartment complex called
Wellonton Apartments in Chadbourn, North Carolina. Yvette Huins
(defendant) entered into a written lease with plaintiff on 4
October 2002. On 12 April 2004, defendant signed a lease addendum
which extended her lease through 1 June 2005. In February of 2005, Detective W. H. Little of the Columbus
County Sheriff's Office investigated defendant on suspicion of
narcotics distribution. During that investigation, Detective
Little conducted surveillance of defendant in and around her
apartment. As part of the investigation, Detective Little
conducted a controlled purchase whereby law enforcement uses a
reliable informant to purchase drugs or contraband. Thereafter,
Detective Little followed the informant to defendant's apartment
and observed the informant and defendant engage in an alleged
controlled purchase of marijuana. Based upon this information,
Detective Little obtained a search warrant for defendant's
apartment. During the search of defendant's apartment, an odor of
recently smoked marijuana was detected.
On 29 April 2005, plaintiff sent a letter entitled Notice Of
Non-Renewal Of Lease/Termination of Tenancy giving defendant
notice that her lease would not be renewed for good cause and
material non-compliance with the substantial provisions of [the]
lease: Section Eight, par. 11, where [defendant] agreed not to use
the premises for unlawful purposes; not to engage in or permit
guests to engage in unlawful activities in the unit, or in the
common areas and Section Eighteen, Provisions for Drug-Free
Housing. The letter noted defendant's alleged conduct related to
Detective Little's investigation. Plaintiff informed defendant she
must vacate her apartment at the end of her lease term, 1 June
2005. Plaintiff filed a magistrate's complaint against defendant in
the Small Claims Division of Columbus County District Court on 7
June 2005. On 10 June 2005, the presiding magistrate granted
possession of the premises to plaintiff. Defendant filed notice of
appeal to the Columbus County District Court. Plaintiff then moved
for summary judgment and plaintiff's motion was denied.
Subsequently, the case was tried before a jury which returned a
verdict in favor of defendant. The trial court entered judgment on
15 November 2005. Plaintiff appeals.
On appeal plaintiff argues the trial court erred by: (I)
denying plaintiff's motion for summary judgment; (II) denying the
admission of the search warrant and application for the search
warrant; and (III) denying plaintiff's motion for a directed
verdict or, in the alternative, denying plaintiff's motion for
judgment notwithstanding the verdict. For the foregoing reasons,
Plaintiff argues the trial court erred by denying the motion
for summary judgment. Plaintiff contends summary judgment as a
matter of law should have been granted to Wellonton Limited
Partnership because [d]efendant failed to raise any factual
dispute in opposition to the summary judgment motion. We
The standard of review on appeal from summary judgment is
whether there is any genuine issue of material fact and whether themoving party is entitled to a judgment as a matter of law. Gattis
v. Scotland County Bd. of Educ.
, 173 N.C. App. 638, 639, 622 S.E.2d
630, 631 (2005) (alteration and citation omitted). On appeal, an
order allowing summary judgment is reviewed de novo
. Howerton v.
Arai Helmet, Ltd.
, 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).
The purpose of summary judgment is to bring litigation to an early
decision on the merits without the delay and expense of a trial
when no material facts are at issue. After there has been a trial,
this purpose cannot be served. Beneficial Mortg. Co. v. Peterson
163 N.C. App. 73, 78-79, 592 S.E.2d 724, 728 (2004) (quotation
In this case, plaintiff argues because defendant failed to
rebut evidence that defendant had allegedly violated her lease
terms, the trial court erred in granting its motion for summary
judgment. The trial court denied the motion and proceeded to trial
on the merits. Even if the trial court improperly denied the
summary judgment motion based on allegations of defendant's breach
and defendant's failure to present rebuttal evidence, a trial on
the merits ensued. Where a jury trial ensued and determined the
issue of who was entitled to possession of the apartment,
plaintiff's challenge of the denial of the summary judgment fails.
(Improper denial of a motion for summary judgment is not
reversible error when the case has proceeded to trial and has been
determined on the merits by the trier of the facts, either judge or
jury.). This assignment of error is overruled.
Plaintiff argues the trial court erred by denying the
admission of the search warrant and application for search warrant
based on the fact that defendant opened the door upon cross-
examination of Detective Little. Specifically, plaintiff sought to
question Detective Little as to defendant's alleged drug activity
in and around her apartment.
Written materials sought to be admitted at trial must be
properly authenticated, and must satisfy the requirements of the
best evidence rule. N.C. Gen. Stat. § 8C-1, Rule 1002 (2005).
Furthermore, if offered for a hearsay purpose, the writing must
fall within one or more of the exceptions to the hearsay rule
pursuant to N.C. Gen. Stat. § 8C-1, Rules 803 and 804. FCX, Inc.
, 85 N.C. App. 272, 354 S.E.2d 767 (1987).
Plaintiff sought to introduce both the application of the
search warrant and the search warrant itself. However, outside the
presence of the jury, the trial court determined the application
for the search warrant was not verified and sworn to in front of
the magistrate, which it has to be in order . . . to serve it. And
. . . it is all hearsay. The trial court stated that
[Detective Little] can testify as to what he
saw and what went on with him at [defendant's
apartment], but he can't testify as to what
somebody else told him[.] . . . [Detective
Little] can certainly testify [that he did get
a search warrant based on the information in
the application] . . . [b]ut as to the
information that's included in that search
Plaintiff's brief correctly states that in questioning Detective
Little [d]efendant only referenced items in the search warrant andapplication for search warrant that related to things that
Detective Little did not do or did not find in relation to the
Defendant's alleged drug activity. This did not open the door
to the admission of evidence which was not properly authenticated.
The trial court properly found and concluded that the search
warrant and search warrant application did not comport with the
best evidence rule and were therefore inadmissible. This
assignment of error is overruled.
Plaintiff argues the trial court erred in denying its motion
for directed verdict or, in the alternative, denying plaintiff's
motion for judgment notwithstanding the verdict. Plaintiff argues
the evidence compels such result based on the ground that the
evidence as a matter of law established that defendant violated
material terms of her lease thereby allowing plaintiff to terminate
defendant's tenancy. 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 quotations omitted). The party
moving for a directed verdict bears a heavy burden in North
Carolina. Edwards v. West
, 128 N.C. App. 570, 573, 495 S.E.2d
920, 923 (internal quotations and citations omitted), cert. denied
348 N.C. 282, 501 S.E.2d 918 (1998). When the decision to grant a
motion for directed verdict is a close one, the better practice is
for the trial judge to reserve his decision on the motion and
submit the case to the jury. Id.
Plaintiff cites to the lease agreement provisions that state
defendant is [n]ot to use the premises for unlawful purposes and
that plaintiff may terminate the lease agreement for defendant's
material noncompliance with the lease terms. Plaintiff contends
by virtue of Detective Little's controlled purchase and a search of
defendant's apartment, plaintiff is justified in the termination of
defendant's lease. However, the testimony presented in this case
raised a question of fact as to whether defendant breached her
lease. On cross-examination, defendant elicited the following
testimony from Detective Little:
DEFENDANT: Are you familiar with this search
warrant here? Is this your signature where you
signed off, [stating you] did not seize any
items in my home?
DETECTIVE: Yes, ma'am.
DEFENDANT: Okay. Thank you. You say that you
sent an informant in my home, according to
this search warrant, with traceable money.
DETECTIVE: That's correct.
DEFENDANT: Okay, Did you recover that
DETECTIVE: No, ma'am.
. . .
DEFENDANT: Okay. What is the purpose of
. . .
DETECTIVE: What it is, in general we'll take
down serial numbers when we send the informant
in, and if we recover it, that shows an actual
transaction was done.
Whether a controlled purchase had in fact been completed in
defendant's apartment and whether the ensuing search of defendant's
apartment (which was premised on the alleged controlled purchase)
were sufficient evidence of a breach of defendant's lease terms was
a question for the jury. Viewed in the light most favorable to the
non-movant, the evidence was insufficient to show defendant
breached her lease terms. The trial court properly denied
plaintiff's motion for directed verdict.
Furthermore, [a] motion for judgment notwithstanding the
verdict is essentially a renewal of the motion for directed
verdict, and the same standard of review applies to both motions.
Zubaidi v. Earl L. Pickett Enters.
, 164 N.C. App. 107, 119, 595
S.E.2d 190, 197, disc. rev. denied
, 359 N.C. 76, 605 S.E.2d 151
(2004). As stated above, the trial court properly denied
plaintiff's motion for directed verdict. The trial court also
properly denied plaintiff's motion for judgment notwithstanding the
verdict. This assignment of error is overruled.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
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