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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1085


Filed: 4 September 2007


v .                         Pitt County
                            No. 05 SP 116
SHELBY HOLT, Individually
and as former Executor of
the Estate of Lois Garrison
and as Trustee for Jacquelyn
Faith Garrision; JIMMIE E.
JAMES, Individually and as
Executor of the Estate of
Lois Garrison;

    Appeal by Respondent Shelby Holt from orders entered 28 March 2006 and 24 May 2006 by Judge Thomas D. Haigwood in Pitt County Superior Court. Heard in the Court of Appeals 15 March 2007.

    David W. Silver for Petitioner-Appellee.

    Poyner & Spruill LLP, by Gregory S. Camp and Jenny L. Matthews, for Respondent-Appellant.

    STEPHENS, Judge.

    Respondent-Appellant Shelby Holt (“Respondent”) appeals from a decision of the Pitt County Superior Court   (See footnote 1)  concluding that she had breached her fiduciary duties to Petitioner and had “failed to act in an open, fair and honest manner.” We affirm.
    Evidence before the trial court tended to show that Petitioner Jacquelyn Faith Garrison (“Petitioner”) was the only child of LoisJames Garrision (“Lois”). Before her death on 12 May 2000, Lois executed a will which directed that the residue and remainder of her estate be passed in fee simple to a trust (“the trust”) for the benefit of Petitioner. The will appointed Respondent co-Trustee of the trust and co-Executor of the estate. On 8 December 2000, the Pitt County Clerk of Court removed Respondent as co-Executor of the estate and appointed Respondent's brother and Petitioner's uncle, Jimmie E. James (“James”), as the new Executor.
    Over the course of Respondent's stewardship, the fund in the trust dwindled considerably. Respondent received $102,644.46 from Northwestern Mutual Life on 15 June 2000, and as of 31 December 2005, $30,399.77 remained.   (See footnote 2)  Evidence of similar diminution in the value of several other accounts was also presented to the trial court. The trial court found, inter alia, that Respondent had repeatedly commingled funds on behalf of Petitioner with her personal funds and had paid improper expenses with the trust funds. For Respondent's “failure to use the standard of judgment and care which an ordinary prudent person of discretion and intelligence, who is a fiduciary of the property of others, would observe as such fiduciary[,]” the court assessed actual total damages against Respondent in the amount of $75,176.94. Based on “the aggravating factor of fraud and willful or wanton conduct . . . related to the injury” for which actual damages were assessed, the court awardedpunitive damages against Respondent in the amount of $225,000.00. Respondent appeals.

    At the outset, we address Respondent's argument that the trial court's findings of fact are not supported by the evidence presented at trial. Respondent's assignment of error on this issue states the following:
        2.    The trial court's award of punitive damages to Petitioner [is erroneous] on the ground that to the extent any finding of fact does support the conclusion of law that an aggravating factor of fraud and willful or wanton conduct was present, there was insufficient evidence to support such a finding.

            R. pp. 55-64; T. p. 1-235.

By this assignment of error, Respondent seeks to preserve for our review every finding of fact made by the trial court. Furthermore, through her broad assignment of error, Respondent places the burden on this Court to sift through the Record and transcript to determine which findings of fact are supported by the evidence. Respondent's attempt is unsuccessful.
    “Where findings of fact are challenged on appeal, each contested finding of fact must be separately assigned as error, and the failure to do so results in a waiver of the right to challenge the sufficiency of the evidence to support the finding.” Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525 S.E.2d 481, 484 (2000) (citations omitted). “Where an appellant fails to assign error to the trial court's findings of fact, the findings are 'presumed to be correct.'” Id. (quoting Inspirational Network,Inc. v. Combs, 131 N.C. App. 231, 235, 506 S.E.2d 754, 758 (1998)). We are thus left to consider whether the trial court's findings of fact support Judge Haigwood's conclusion that punitive damages were warranted. See Taylor v. N. C. Dep't of Transp., 86 N.C. App. 299, 302, 357 S.E.2d 439, 441 (1987) (holding that where an appellant did not properly preserve an argument regarding the sufficiency of the evidence to support the trial court's findings of fact, “[t]he only question thus presented is whether the findings of fact support the conclusions of law and the conclusions support the judgment”) (citation omitted).   (See footnote 3) 
    Pursuant to N.C. Gen. Stat. § 1D-1, punitive damages are designed “to punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.” N.C. Gen. Stat. § 1D-1 (2005). Punitive damages may be awarded against a defendant who is liable for compensatory damages if the claimant also proves the presence of at least one of the following factors: (1) fraud, (2) malice, or (3) willful or wanton conduct. N.C. Gen. Stat. § 1D-15(a) (2005). Since it is undisputed that Respondent is liable for compensatory damages, the remaining issue is whether one of the aggravating factors is supported by the trial court's findings of fact. In this case, the trial court concluded that
        [p]unitive damages against Respondent Holt is [sic] appropriate as there is clear and convincing evidence that Respondent Holt is liable for compensatory damages to Petitionerand that the aggravating factor of fraud and willful or wanton conduct is present and is related to the injury for which compensatory damages should be awarded in accordance with NCGS § 1D-15.

After a thorough review of the trial court's order, it is clear that Judge Haigwood made no findings of fact which would support his conclusion regarding the existence of fraud. Therefore, we examine whether the findings of fact support his determination regarding the existence of willful or wanton conduct on the part of Respondent.
    “'Willful or wanton conduct' is defined as 'the conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.'” Richardson v. Bank of Am., N.A., ___ N.C. App. ___, ___, 643 S.E.2d 410, 427 (2007) (quoting N.C. Gen. Stat. § 1D-5(7)). “'An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others.'” Yancey v. Lea, 354 N.C. 48, 52, 550 S.E.2d 155, 157 (2001) (quoting Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929)).
    In this case, the trial court's findings of fact establish that the diminution of value of Lois's life insurance attributable solely to Respondent's investment choices was approximately $59,000.00. The trial court found that Respondent “paid improper expenses with some of these funds [life insurance policies] and improperly transferred some of these funds to her personal account.” In addition, the trial court found that:        37. [Respondent] transferred funds intended by Lois to be used for [Petitioner's] benefit into [Respondent's] personal accounts in an amount in excess of $128,000.00.
        38. [Respondent] repeatedly commingled funds held on behalf of [Petitioner] with her personal funds.

These findings, in conjunction with Respondent's inability at trial to give an accounting for her handling of the trust funds, despite repeated efforts and admonitions of the trial judge, support the trial court's conclusion that Respondent's conduct was sufficiently egregious as to constitute willful or wanton misconduct. This conclusion, in turn, supports the award of punitive damages. Accordingly, Respondent's assignment of error is overruled.
    Respondent next argues that the trial court awarded punitive damages for an improper purpose. Specifically, Respondent contends that “[i]t is clear from the trial transcript that the trial court in this case did not award punitive damages for the purpose of punishment or deterrence as provided in the statute. Rather, the trial court entered punitive damages for the improper compensatory purpose of awarding Petitioner her attorney's fees.” This argument is not properly before this Court.
    Rule 10 of the North Carolina Rules of Appellate Procedure provides that “[a] listing of the assignments of error upon which an appeal is predicated shall be stated at the conclusion of the record on appeal[.]” N.C. R. App. P. 10(c)(1). The rule provides further that “the scope of review on appeal is confined to a consideration of those assignments of error set out in the recordon appeal[.]” N.C. R. App. P. 10(a). “One purpose of Rule 10 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.” Rogers v. Colpitts, 129 N.C. App. 421, 422, 499 S.E.2d 789, 790 (1998) (quoting Kimmel v. Brett, 92 N.C. App. 331, 335, 374 S.E.2d 435, 437 (1988)). In State v. Hart, 361 N.C. 309, 311, 644 S.E.2d 201, 202 (2007) (quotation marks and citations omitted), our Supreme Court recognized that “[i]t is well settled that the Rules of Appellate Procedure are mandatory and not directory.” However, the Court concluded that not “every violation of the rules . . . require[s] dismissal of the appeal or the issue, although some other sanction may be appropriate, pursuant to Rule 25(b) or Rule 34 of the Rules of Appellate Procedure.” Id.
    Here, the assignments of error set out in the Record on Appeal are void of any reference to an “improper purpose” allegedly used by the trial court as the basis for awarding punitive damages. Rather, the assignments of error question the findings of fact and conclusions of law made by the trial court and challenge the court's denial of Respondent's motion for a new trial and for relief from judgment.   (See footnote 4)  Therefore, Respondent's assignments oferror did not put Petitioner on notice that Respondent may assert this “improper purpose” argument on appeal. This omission placed Petitioner at a disadvantage when attempting to protect her interests during the preparation of the Record on Appeal. Accordingly, because Respondent argues outside the scope of her assignments of error, we do not reach this argument in this opinion.
    For the reasons stated, the order of the trial court is affirmed.
    Judges McGEE and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1
    Judge Haigwood also entered this order against Respondent Jimmie E. James. However, James did not appeal to this Court.
Footnote: 2
    By his 28 March 2006 order, Judge Haigwood removed Respondent as trustee of the trust containing the Northwestern Mutual Life proceeds.
Footnote: 3
    Respondent's first assignment of error sufficiently raises this issue for our review.
Footnote: 4
    Although Respondent assigns error to the trial court's denial of her Motion for New Trial and for Relief from Judgment and mentions Rule 59 and Rule 60 of the North Carolina Rules of Civil Procedure in the “Standard of Review” and “Conclusion” sections of her brief, she asserts no argument on these grounds in the body of her brief. Therefore, the assignment of error addressing Rule 59 and Rule 60 is deemed abandoned. See N.C. R. App. P. 28(b)(6) (“Assignments of error not set out in the appellant's brief, or in support of which no reason or argument is stated or authoritycited, will be taken as abandoned.”).

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