Clouse v. Chairtown Motors, Inc., 7222SC136

• Decision Date: 29 March 1972
• Docket Number: No. 7222SC136,7222SC136
• Citation: 187 S.E.2d 398,14 N.C.App. 117
• Parties: Alice Jeannie Hawley CLOUSE v. CHAIRTOWN MOTORS, INC.
• Court: North Carolina Court of Appeals

Page 398

187 S.E.2d 398

14 N.C.App. 117

Alice Jeannie Hawley CLOUSE v. CHAIRTOWN MOTORS, INC.

No. 7222SC136.

Court of Appeals of North Carolina.

March 29, 1972.

John Randolph Ingram, Asheboro, for plaintiff appellant.

Lambeth and Rogers by Charles F. Lambeth, Jr., Thomasville, for defendant appellee.

VAUGHN, Judge.

Rule 19 of the Rules of Practice in this Court requires, among other things, that 'every pleading, motion, affidavit, or other document included in the record on appeal shall plainly show the date on which it was filed and, if verified, the date of the verification and the name of the person who verified it.' The record on appeal filed in this case does not comply with this rule and the appeal is subject to dismissal.

Rule 6 of the General Rules of Practice for the Superior and District Courts requires that any motion shall state the rule number or numbers under which the movant is proceeding. Defendant's 'Motion to Strike' which the court allowed presumably was that 'Motion' appearing in the record at page 14 with no indication as to when it was filed or so to under which rule movant was proceeding. Ordinarily Rule 12(f) requires that a 'Motion to Strike' be made before responding to a pleading.

We will treat defendant's motion as a motion to dismiss under Rule 12(b)(6) and, in our discretion, consider the appeal on its merits so as to determine the correctness of the order entered.

The question of recovery of punitive damages in an action for fraud was discussed in considerable detail in Swinton v. Savoy Realty Co., 236 N.C. 723, 73 S.E.2d 785. In that case the Court said:

'. . . (I)t has been uniformly held with us that punitive damages may be awarded in the sound discretion of the jury and within reasonable limits, though the right to such an award does not follow as a conclusion of law because the jury has found an issue of fraud against the defendant. There must be an element of aggravation accompanying the tortious conduct which causes the injury. Smart money may not be included in the assessment of damages as a matter of course simply because of an actionable wrong, but only when there are some features of aggravation, as when the wrong is done willfully or under circumstances of rudeness, oppression, or in a manner which evinces a reckless and wanton disregard of the plaintiff's rights.'

The Court then concluded:

'. . . (W)e think the rule is that the facts in each case must determine whether the fraudulent...