Jones v. Harrelson & Smith
| Citation | 638 S.E.2d 222 |
| Decision Date | 19 December 2006 |
| Docket Number | No. COA05-1183.,COA05-1183. |
| Court | Court of Appeal of North Carolina (US) |
| Parties | Darvella JONES, Plaintiff, v. HARRELSON AND SMITH CONTRACTORS, LLC, a North Carolina Corporation, and Rodney S. Turner d/b/a Rodney S. Turner Housemovers, Defendants. |
William F. Ward, III, P.A., by William F. Ward, III, New Bern, for plaintiff-appellant.
Hopf & Higley, P.A., by Donald S. Higley, II, Greenville, for defendant-appellee Harrelson and Smith Contractors, LLC.
No brief filed for defendant-appellee Rodney S. Turner d/b/a Rodney S. Turner Housemovers.
Darvella Jones ("plaintiff") appeals from order entered: (1) granting a directed verdict and dismissed plaintiff's unfair and deceptive trade practice claim; (2) granting Harrelson and Smith Contractors, LLC's ("defendant") motion for judgment notwithstanding the verdict on plaintiff's fraud and conversion claims; (3) denying plaintiff's request for specific findings of fact and conclusions of law; and (4) denying plaintiff's unfair and deceptive trade practice claim based upon plaintiff's conversion claim. We dismiss plaintiff's appeal.
In September 1999, Hurricane Floyd flooded portions of Eastern North Carolina. Following the hurricane, Pamlico County ("the County") instituted a flood acquisition program that allowed the County to purchase property located in the 100 year flood plain. The County purchased a house from Ray and Virginia Respers (the "Respers"), located in the flood plain at 439 Jones Road in Vandemere, North Carolina. The County paid approximately the appraised value of $45,000.00 for the house.
The flood acquisition program included a demolition and clearance project that required removal of improvements located in the flood plain. The County solicited bids for the removal and/or demolition of houses purchased, which were located in the flood plain. During the bidding process, defendant submitted a demolition bid in the amount of $60,797.00. The County awarded and executed a contract with defendant to demolish or remove a group of houses, including the Respers' former house.
The contract allowed defendant an option to salvage the houses scheduled for demolition, if the houses were severed from their current lots and relocated to lots outside the flood plain.
In August 2002, plaintiff purchased the Respers' house from defendant's agent John Harrelson ("Harrelson") for $500.00. Harrelson told plaintiff the house must be moved, but failed to disclose the County's contract requirement to relocate the house outside the flood plain. Plaintiff showed defendant a lot on Swan Point Road where she intended to relocate the house. Defendant recommended plaintiff contact defendant Rodney Turner ("Turner") to move the house. Plaintiff paid Turner $4,300.00 to move her house from Jones Road to Swan Point Road.
On or about 20 September 2002, Pamlico County inspectors learned that plaintiff's and two other houses had been relocated from their original lots to other lots located inside the flood plain. The North Carolina Division of Emergency Management gave the County three possible ways to resolve this issue: (1) the houses could be removed to another location outside of the flood plain; (2) the houses could be demolished; or (3) the houses could be removed from the buyout program by reimbursement of the County for the full amount it had paid to the original owners.
The County informed defendant that the houses relocated to other lots in the flood plain violated the terms of the demolition and clearance contract, explained the three choices, and gave defendant a deadline of 10 December 2002 to "complete corrective action." The County later threatened legal action against defendant if the provisions of the contract were not performed.
Defendant met with plaintiff and informed her the Swan Point lot did not comply with the County's contract. Defendant told plaintiff they had located a lot outside the flood plain on Water Street in Bayboro, North Carolina and offered to relocate her house at its expense. Defendant told plaintiff the lot owner had offered to sell the lot for $12,000.00, and defendant agreed to pay for the first two months. Plaintiff told defendant she did not want to live on Water Street. She contacted a realtor and began to make arrangements to purchase a lot in the Town of Reelsboro and move the house there. On 5 December 2002, plaintiff provided defendant with written certification that the Reelsboro lot was outside the flood plain.
On 6 December 2002, four days before the County's deadline, defendant hired Turner to move plaintiff's house from her Swan Point lot to the Water Street lot that defendant had rented at its own expense. Defendant acknowledged at trial that plaintiff never gave permission to move the house, but testified defendant was under pressure from the County to bring the contract into compliance by 10 December 2002. Plaintiff discovered her house had been moved on her drive to work.
On 9 December 2002, defendant sent a letter to the County which requested payment on its contract with the County and stated: "Please consider this request and its urgency because [defendant] has incurred considerable expense in trying to resolve these issues." The County was not satisfied because "the house was still in a potential movable position, still had steel underneath of it, ... and could still easily be moved back into the flood zone."
On 13 January 2003, defendant's attorney sent a letter to plaintiff's attorney, which requested, "that your client make satisfactory arrangements for governmental approval of the location of this house by securing approval at its current location, by moving it to an appropriate location, or otherwise, putting the controversy to rest before January 29, 2003." The letter also stated that Plaintiff or her counsel failed to respond. Defendant demolished the house where it sat on the Water Street lot on 4 February 2003.
On 10 November 2003, plaintiff filed a complaint against defendant and defendant Rodney Turner d/b/a Rodney S. Turner Housemovers, asserting claims for fraud, negligent misrepresentation, conversion, and unfair and deceptive trade practices ("UDTP"). Defendant filed an answer on 20 January 2004. After Turner failed to file an answer and made no appearance, plaintiff obtained an entry of default on 2 March 2004.
Both plaintiff and defendant unsuccessfully moved for summary judgment, and the case was set for trial in February 2005. Defendant moved to bifurcate the compensatory and punitive damages stages of the trial, pursuant to N.C. Gen.Stat. § 1D-30. At the conclusion of plaintiff's evidence in the liability phase of the trial, defendant moved for a directed verdict on all issues. The trial court denied defendant's motion, and the case proceeded with defendant's evidence.
At the close of all the evidence, the trial court denied defendant's renewed motion for a directed verdict. At that time, plaintiff voluntarily dismissed her negligent misrepresentation claim, leaving her claims for fraud, conversion, and UDTP before the court. During the charge conference, however, the trial judge stated that he was revisiting his decision on defendant's motion for a directed verdict and granted that motion with respect to plaintiff's UDTP claim.
Plaintiff's claims for fraud and conversion were submitted to the jury. The verdict sheet returned by the jury read as follows:
We, the jury, by unanimous verdict, find as to the Issues as follows:
Defendant moved: (1) for judgment notwithstanding the verdict ("JNOV") as to both claims; (2) for "judgment as a matter of law on the issue of punitive damages;" or (3) in the alternative, for a new trial on all issues. The trial court orally granted defendant's motion for JNOV, dismissing the fraud claim, but denied defendant's motion regarding the conversion claim. The court also entered judgment for defendant dismissing plaintiff's claim for punitive damages and denied both defendant's and plaintiff's motions for a new trial.
On 18 March 2005, plaintiff filed a motion pursuant to N.C.R. Civ. P. 52(a)(2) and requested the trial court make specific findings of fact and conclusions of law with respect to its rulings. The court denied plaintiff's motion and, instead, on 10 May 2005, entered a short judgment, specifying the jury's verdict, setting forth the court's rulings on the parties' various motions, and entered judgment in favor of plaintiff in the amount of $30,000.00. Plaintiff appeals.
Defendant has filed a motion to dismiss plaintiff's appeal as interlocutory on the grounds the default judgment against Turner was not entered until after plaintiff had appealed to this Court. "An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy" Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377,...
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