Higgins v. Builders & Finance, Inc.

• Citation: 20 N.C.App. 1,200 S.E.2d 397
• Decision Date: 28 November 1973
• Docket Number: No. 733SC759,733SC759
• Court: North Carolina Court of Appeals
• Parties: Robert E. HIGGINS and wife, Margaret G. Higgins v. BUILDERS AND FINANCE INCORPORATED.

Page 397

200 S.E.2d 397

20 N.C.App. 1

Robert E. HIGGINS and wife, Margaret G. Higgins v. BUILDERS AND FINANCE INCORPORATED.

No. 733SC759.

Court of Appeals of North Carolina.

Nov. 28, 1973 Certiorari Denied by Supreme Court Jan. 9, 1974.

Lee & Hancock by C. E. Hancock, Jr., and Moses D. Lasitter, New Bern, for plaintiffs-appellees.

Dunn & Dunn by Raymond E. Dunn, New Bern, for defendant-appellant.

PARKER, Judge.

No reason or argument has been stated and no authority has been cited in appellant's brief in support of appellant's first four assignments of error. Accordingly, these will be taken as abandoned. Rule 28, Rules of Practice in the Court of Appeals.

At the close of the evidence the attorney for defendant moved under Rule 50 of the Rules of Civil Procedure for a 'directed verdict dismissing the plaintiffs' case.' Denial of this motion is the subject of appellant's fifth assignment of error. Directed verdicts are appropriate only in jury cases. Bryant v. Kelly, 279 N.C. 123, 181 S.E.2d 438. This case was tried without a jury. In nonjury civil cases the appropriate motion by which a defendant may test the sufficiency of the plaintiff's evidence to show a right to relief is a motion for involuntary dismissal under Rule 41(b). Though defendant's motion was incorrectly designated, we shall treat it as having been a motion for involuntary dismissal under Rule 41(b) and shall pass on the merits of the questions appellant seeks to raise by this appeal. Neff v. Coach Co., 16 N.C.App. 466, 192 S.E.2d 587; Mills v. Koscot Interplanetary, 13 N.C.App. 681, 187 S.E.2d 372.

G.S. 1A--1, Rule 52(a)(1) provides as follows:

'In all actions tried upon the facts without a jury or with an advisory jury the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.'

The trial judge in the present case, after denying defendant's motion to dismiss, properly complied with the requirements of Rule 52(a)(1) by entering judgment in which the court found the facts specially. While upon an appeal from an interlocutory order granting or denying injunctive relief the appellate court is not bound by the findings of fact made by the trial court but may review the evidence and make its own findings of fact, Board of Elders v. Jones, 273 N.C. 174, 159 S.E.2d 545, the rule is otherwise when, are here, the appeal is from a judgment which is a final determination of the rights of the parties. In such a case the trial court's findings of fact are binding on appeal, if supported by the evidence. Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149. 'The mere fact that equitable (injunctive) relief is granted gives us no authority to modify findings determinative of issues of fact raised by the pleadings.' Cauble v. Bell, 249 N.C. 722, 107 S.E.2d 557. In the present case, the judgment appealed from is a final determination of the rights of the parties. Therefore, in this case the trial court's findings of fact are conclusive on this appeal, just as would be the verdict of a jury in a case tried before judge and jury, if there be evidence to support them, and this is so even though the evidence might sustain findings to the contrary. Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29. Accordingly, the initial question presented by this appeal is whether the evidence was sufficient to support the trial court's findings of fact. If so, these findings are binding on this appeal and the only question remaining is whether the facts found by the trial court are, in turn, sufficient to support its conclusions of law and the judgment entered.

There was ample evidence to support the trial court's findings of fact. Defendant's witness, Guion E. Lee, who was the principal stockholder and an officer of defendant corporation, testified: 'I intended to build duplex houses when I started these in this case.' This witness had been one of the original developers of the North Hills Subdivision and as such had signed the instrument dated 28 April 1967 by which the restrictive covenants applicable in this case had been imposed. He testified that '(t)he restrictions in this subdivision preclude the use of duplex or multifamily dwellings,' but expressed the view that 'these restrictions are out-moded.' Indeed, appellant does not challange the trial court's finding, contained in Finding of Fact No. 7 in the judgment dated 19 April 1973, that 'at the time of the commencement of each of said dwellings they were intended by the defendant to be built as duplex houses. . . .' Nor does appellant challenge the detailed findings contained in subparagraphs (a) through (j) in Finding of Fact No. 12 as to the exact manner in which the buildings have actually been completed. On this appeal appellant challenges only that portion of Finding of Fact No. 7 in which the court found that the buildings 'were not constructed for use as single family residential dwellings,' and that portion of Finding of Fact No. 12 in which the court found that the completed buildings 'have not been modified so as to conform to the building conditions and restrictive covenants of North Hills.' Appellant contends that cutting a 3-foot wide...