Concrete Service Corp. v. Investors Group, Inc.

Decision Date18 March 1986
Docket NumberNo. 8514DC935,8514DC935
Citation79 N.C.App. 678,340 S.E.2d 755
CourtNorth Carolina Court of Appeals
PartiesCONCRETE SERVICE CORP. v. INVESTORS GROUP, INC., C. Paul Roberts, Timothy E. Oates, and Barbara Summey.

Powe, Porter and Alphin by Edward L. Embree, III, Durham, for plaintiff-appellee.

B.J. Sanders, Durham, for defendant-appellant Timothy E. Oates.

EAGLES, Judge.


Defendant first assigns error to the denial of his motion to dismiss the action for failure to state a claim against him, made at the beginning of trial. Defendant urges that we view the motion to dismiss as a "freeze-frame," considering it in light of the pleadings as they stood at the time the motion was made.

The Supreme Court recently held that the denial of a motion for summary judgment is not reviewable on appeal from final judgment:

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. [Citation.] After there has been a trial, this purpose cannot be served. 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.

The denial of a motion for summary judgment is an interlocutory order and is not appealable. An aggrieved party may, however, petition for review by way of certiorari. [Citation.] To grant a review of the denial of the summary judgment motion after a final judgment on the merits, however, would mean that a party who prevailed at trial after a complete presentation of evidence by both sides with cross-examination could be deprived of a favorable verdict. This would allow a verdict reached after the presentation of all the evidence to be overcome by a limited forecast of the evidence.

Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985); see also MAS Corp. v. Thompson, 62 N.C.App. 31, 302 S.E.2d 271 (1983) (identical result). This same logic should apply to denials of motions to dismiss based on an alleged failure to give notice of facts stating a claim.

A motion to dismiss under G.S. 1A-1, R.Civ.P. 12(b)(6) generally tests the legal sufficiency of the complaint: Has the pleader given notice of such facts as will, if true, support a claim for relief under some legal theory? See Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). An incorrect choice of legal theory should not result in dismissal where the pleader has given sufficient notice of facts concerning the wrong complained of. Jones v. City of Greensboro, 51 N.C.App. 571, 277 S.E.2d 562 (1981). The motion does not present the merits, but only whether the merits may be reached. See Wilkes v. N.C. State Bd. of Alcoholic Control, 44 N.C.App. 495, 261 S.E.2d 205 (1980). As the United States Supreme Court has stated with respect to the similar provisions of F.R.Civ.P. 12(b), "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 96 (1974). When following denial of the motion the court has proceeded to the merits and the fact-finder has found they support the claim, whether the initial ruling was technically correct becomes insignificant. The policy behind the Rules of Civil Procedure is to resolve controversies on the merits, not on technicalities of pleading. Johnson v. Johnson, 14 N.C.App. 40, 187 S.E.2d 420 (1972). This is especially true in light of the liberal pleading now allowed, the relatively free availability of amendments, and the affirmative duty of the opponent to object to evidence as outside the pleadings. G.S. 1A-1, R.Civ.P. 15; Sutton v. Duke, supra; Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972).

Other jurisdictions support our view. "It is an almost universal rule that a verdict will cure defects in the pleadings unless the substantial rights of the adverse party have been prejudiced." 5 Am.Jur.2d Appeal & Error Section 795 (1962). This rule was applied in Morgan v. Roper, 250 S.C. 280, 157 S.E.2d 572 (1967), the court holding that defendants could not complain that the trial court overruled their demurrer following judgment on the merits against them. See also McDonald v. Morley, 15 Cal.2d 409, 101 P.2d 690 (1940) ("immaterial" whether complaint stated cause of action where evidence supported judgment); Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529 (3d Cir.) (no basis or logic for reviewing interlocutory denial of motion; in fact, review might violate Seventh Amendment where case had gone to jury), cert. denied sub nom. Wilson Freight Forwarding Co. v. Baughman, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976).

A majority of this court followed analogous reasoning in Sharpe v. Park Newspapers of Lumberton, Inc., 78 N.C.App. 275, 337 S.E.2d 174 (1985). There we considered whether a controversy arose from the pleadings and the evidence, holding that to limit our consideration to the pleadings alone, and to ignore subsequent discovery, could lead to wasteful results.

We therefore hold that the denial of defendant's motion to dismiss is not properly presented by this appeal. We are careful in so doing to distinguish cases in which the trial court denies motions based on jurisdictional or similar grounds, and there is no right of immediate appeal. In those cases the adverse party must, absent a successful petition for certiorari, submit to trial on the merits. Only then will that party have a chance to appeal denial of the original motion. See Duke Univ. v. Bryant-Durham Electric Co., Inc., 66 N.C.App. 726, 311 S.E.2d 638 (1984) (denial of motion to dismiss for lack of subject matter jurisdiction; appeal dismissed); Henredon Furniture Industries, Inc. v. Southern Ry. Co., 27 N.C.App. 331, 219 S.E.2d 238 (1975) (refusal to join parties; appeal dismissed), disc. rev. denied, 289 N.C. 298, 222 S.E.2d 697 (1976). Our holding is limited: we hold only that where an unsuccessful motion to dismiss is grounded on an alleged insufficiency of the facts to state a claim for relief, and the case thereupon proceeds to judgment on the merits the unsuccessful movant may not on an appeal from the final judgment seek review of the denial of the motion to dismiss. We therefore overrule defendant's first assignment of error.


Defendant assigns error to the exclusion of certain documentary evidence. Defendant claimed that the list in question (typewritten and unsigned, with no indicia of origin) stated all bank accounts of Investors Group and allied entities and the authorized signatories. He argues that the document was properly authenticated by his testimony, and therefore should have been admitted. See G.S. 8C-1, R.Ev. 901(b)(1). Authentication under Rule 901 is only one prerequisite to admissibility, however. The document still must satisfy other pertinent evidentiary standards. See 11 J. Moore, Moore's Federal Practice Section 901.04 (2d ed. 1985) (discussing identical federal rule). One of these is that to prove the content of a writing, the original is usually required. G.S. 8C-1, R.Ev. 1002. Defendant sought not only to introduce the document, but to prove that its contents were what he claimed they were, i.e. a list of bank accounts with the names of the persons authorized to sign on them. For this purpose the original signature cards clearly were the best evidence. No reason was given for their non-production and the court did not err in excluding the document. Id.; see United States v. Alexander, 326 F.2d 736 (4th Cir.1964).


Plaintiff originally raised unfair trade practices claims only against Investors Group and Roberts. By motion at the close of the evidence, plaintiff moved to amend its pleadings to add Oates as a defendant on those claims. He now argues that the court erred in allowing the motion. Under G.S. 1A-1, R.Civ.P. 15(b), a party attempting to limit the trial of issues by implied consent must object specifically to evidence outside the scope of the original pleadings; otherwise, allowing an amendment to conform the pleadings to the evidence will not be error, and, in fact, is not even technically necessary. Mangum v. Surles, supra; Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48, 187 S.E.2d 721 (1972). Defendant made no such objection. Moreover, the complaint gave defendant ample notice of the transactions at issue. The amendment merely added another legal theory of liability on the very same facts. Defendant has failed to show any prejudice. Estrada v. Jacques, 70 N.C.App. 627, 321 S.E.2d 240 (1984). On the authority of Estrada, and also on the ground that the record does not reflect that the statute of limitations was raised below, we also reject defendant's contention that the amendment does not relate back. We also reject defendant's argument that an earlier amendment somehow negated the original complaint: that amendment made allegations "in addition to" those originally made. There is no requirement that all claims be legally consistent. G.S. 1A-1, R.Civ.P. 8(e)(2). These assignments are overruled.


Defendant next argues that the evidence against him was insufficient, and that the court should have allowed his motion, made at the conclusion of the evidence, to dismiss under G.S. 1A-1, R.Civ.P. 41(b).


Where as here the court sits as finder of fact, if it allows a Rule 41(b) motion it must find facts just as it would in entering judgment without allowing the motion. Id.; R.Civ.P. 52(a); W & H Graphics, Inc. v. Hamby, 48 N.C.App. 82, 268 S.E.2d 567 (1980). There is therefore little point in making such a motion at the close of all the evidence. Helms v. Rea, 282 N.C. 610, 194 S.E.2d 1 (1973).


On appeal from a judgment containing findings of fact and conclusions of law, the appellant must except and assign error separately to each finding or conclusion that he or she contends...

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