Poor v. Hill, COA98-1494.

• Docket Nº: No. COA98-1494.
• Citation: 530 S.E.2d 838, 138 NC App. 19
• Case Date: May 16, 2000
• Court: Court of Appeal of North Carolina (US)

530 S.E.2d 838
138 NC App. 19

Carl William POOR and wife, Ruby N. Poor, and Carl A. Rose and wife, Marie K. Rose, Plaintiffs,
v.
Beverly J. HILL and husband, Gary A. Hill, Sr., and Sea Gate Enterprises, Defendants

No. COA98-1494.

Court of Appeals of North Carolina.

May 16, 2000.

530 S.E.2d 841

Byrant & Stanley, P.A., by Richard L. Stanley, Beaufort, for plaintiffs

James W. Thompson, Morehead City, for defendants.

JOHN, Judge.

At the outset, we observe that the appeals of both plaintiffs and defendants are subject to dismissal, see Northwood Homeowners Assn. v. Town of Chapel Hill, 112 N.C.App. 630, 632, 436 S.E.2d 282, 283 (1993), in that the parties' appellate briefs violate the North Carolina Rules of Appellate Procedure (the Rules) by failing to support their respective summary of the facts with sufficient "references to pages in the transcript of proceedings, the record on appeal, or exhibits," N.C.R.App. P. 28(b)(4). Notwithstanding, in view of the errors identified herein, we elect in our discretion to address the instant appeals. See N.C.R.App. P. 2 (Court may suspend operation of the Rules "[t]o prevent manifest injustice").

In this dispute concerning contracts for the sale of real property, plaintiffs and defendants appeal the trial court's judgment (the judgment) awarding plaintiffs $15,000.00 in damages for breach of contract and unfair and deceptive trade practices as well as $7,500.00 in counsel fees. We affirm the judgment in part, reverse in part, and vacate the award of counsel fees.

Pertinent facts and procedural history include the following: In 1993, defendants Gary and Beverly Hill (Mr. and Mrs. Hill) purchased approximately 150 lots in Sea Gate Subdivision, located in Carteret County, North Carolina. Operating and doing business under the trade name "Sea Gate Enterprises," defendants later sought to resell the lots for profit.

Plaintiffs Carl and Ruby Poor (Mr. and Mrs. Poor) and Carl and Marie Rose (Mr. and Mrs. Rose) contacted defendants in the fall of 1993 concerning three Sea Gate lots located on the Intracoastal Waterway. On 16 October 1993, defendants entered into three contracts for sale (the contracts) with plaintiffs. Defendants agreed to sell Lot 129 to Mr. and Mrs. Rose for the price of $27,000.00, Lot 130 to Mr. and Mrs. Poor for $36,000.00, and Lot 128 to the four plaintiffs jointly for $27,000.00. Plaintiffs advanced the sums of $810.00, $1,080.00, and $810.00, respectively, as earnest money for each lot.

The contracts, each signed by both Mr. and Mrs. Hill on 16 October 1993, were conditioned upon defendants' procurement of "a septic permit" for each lot, "an unclouded deed from Weyerhaeuser Timber Company" for each lot, and Coastal Area Management Act (CAMA) permits allowing docks on lots 128 and 130. Defendants disputed the claim of Weyerhaeuser, an adjoining property owner, to ownership of nearly two-thirds of the acreage covered by the lots, thereby prompting the quitclaim deed condition. The contracts specified a closing date of 1 May 1994.

Between 16 October 1993 and October 1994, Mr. Rose exchanged numerous telephone calls with Mr. Hill. Mr. Rose also contacted defendants' attorney during the same period seeking information regarding closing, but was told defendants had not obtained the requisite quitclaim deeds from Weyerhaeuser. However, by mid-June 1994, septic tank permits for each lot and one CAMA dock permit had been secured.

Mr. Hill and plaintiffs met in early June 1994 to discuss closing, but the transaction did not take place. On 15 September 1994, Mr. Rose wrote Mr. Hill inquiring about closing and referencing an earlier discussion of modifying financing arrangements for the purchase of lot 130. Mr. Rose also requested "copies of the deeds from Weyerhaeuser to you to know for sure that you have these lots in order to close with us."

In his 22 September 1994 written reply, Mr. Hill maintained he had previously assured plaintiffs that Weyerhaeuser was prepared to issue deeds, but that he had not heard from plaintiffs thereafter. Accordingly, Mr. Hill continued,

[a]s far as we are concerned, any contracts we have had with you and the Poor's are in default. I have spoken with my attorney concerning this matter ... [and] he feels

530 S.E.2d 842

that we had an enforceable contract and that we are quite possibly entitled to damages due to the fact that those three lots had been taken off of the available real estate market....

Those lots have since been re-established on the real estate market and are now for sale with the asking price of $35,000 for lot [128], $40,000.00 for lot [129] and $45,000.00 for lot [130]. If you would still like to purchase them, it will require $2000.00 in earnest money on each lot, up front....

At about the same time, defendants transferred plaintiffs' earnest money from Sea Gate's trust account into an operating account.

In a letter to Mr. Hill dated 17 October 1994, Mr. Rose asserted plaintiffs were "ready, willing, and able to close in May," but were unable to do so because of defendants' failure to secure quitclaim deeds from Weyerhaeuser. Mr. Rose reiterated that plaintiffs remained ready to close on the contracts as written if defendants had indeed obtained the deeds. Quitclaim deeds from Weyerhaeuser on all three lots were recorded 12 December 1994.

In the meantime, however, Mr. Hill had executed sales contracts with Richard and Joyce Cross (Mr. and Mrs. Cross) for lot 128 on 12 September 1994 and with Roy Davis (Davis) for lot 129 on 4 November 1994. Closing on these contracts was held 7 April 1995 and 3 February 1995, respectively, and lot 130 was sold 27 September 1995 to Edward and Jo Ann Chadwick (Mr. and Mrs. Chadwick).

As late as 16 February 1995, plaintiffs, through their lawyer, informed defendants they still wished to close on the contracts. Plaintiffs thereafter filed the instant suit 18 July 1995 alleging (1) breach of contract and (2) unfair or deceptive acts or practices in violation of N.C.G.S. § 75-1—75-35 (1999) (Chapter 75).

Defendants filed answer 18 September 1995 asserting as an affirmative defense that

[a]t all times, the Defendants were ready, willing and able to close on the purchase of the three lots pursuant to the contracts sued upon. The Defendants would have closed at any time the Plaintiffs were prepared to close, but the Plaintiffs never came forward to tender their performance. . . . By virtue of [their] conduct, the Plaintiffs themselves breached their own contract and therefore have no rights in it.... In fact, the Plaintiffs had a falling out between themselves over the contract and gave every indication to the Defendants that they had lost interest in the contracts....

At trial, following presentation of all the evidence, defendants renewed an earlier motion for directed verdict as to both claims against Mrs. Hill based upon the "absolute lack of evidence regarding [her] liability for default." Plaintiffs objected, asserting that "nothing in their evidence ... absolve[d] her from liability." The trial court, after questioning why Mrs. Hill had not been called as a witness, allowed defendants' motion. However, defendants' renewed directed verdict motion addressed to plaintiffs' claims against Mr. Hill was denied.

By its verdict, the jury determined Mr. Hill, but not plaintiffs, had breached and repudiated the contracts, and awarded Mr. and Mrs. Rose $3,000.00 in damages and $2,000.00 to Mr. and Mrs. Poor. The jury also answered special interrogatories submitted by the trial court as follows:

11. Did the defendant, Gary A. Hill, Sr. commit any one or more of the following acts:

a. Did the defendant, knowing that he was not in a position to perform his contract with the plaintiffs, ... intentionally terminate his contracts with the plaintiffs on September 22, 1994, retain their down payment, and increase the sales price?

ANSWER: Yes

b. At the time of the termination of the contracts, had the defendant, ... already entered into a contract to sell any one or more of the lots to third parties?

ANSWER: Yes

c. Did the defendant ... retain plaintiffs'... earnest money, not having met the contract terms and resell the three lots to third parties for an increased price?

530 S.E.2d 843

ANSWER: Yes

d. Was the [defendant's] conduct in commerce or did it affect commerce?

ANSWER: Yes

e. Were the plaintiffs ... injured as a proximate result of the [defendant's] conduct?

ANSWER: Yes

f. What amount, if any, have the plaintiffs... been injured?

ANSWER: $30,000

In the judgment entered 22 May 1998, the trial court set aside the jury's award of damages in issue 11f, and trebled the remaining damage award, see G.S. § 75-16, thereby increasing to $9,000.00 the damages of Mr. and Mrs. Rose and to $6,000.00 the damages of Mr. and Mrs. Poor; the court also awarded counsel fees to plaintiffs in the amount of $7,500.00, see G.S. § 75-16.1. Defendants subsequently moved to set aside the jury's verdict, for judgment notwithstanding the verdict (JNOV), and for new trial (collectively, defendants' post-trial motions), which motions were denied by the trial court 9 June 1998.

We first note defendants have expressly abandoned two assignments of error relating to the jury instructions given in the instant case. We therefore turn to defendants' arguments concerning denial of their directed verdict and post-trial motions, in particular that for JNOV, as to Mr. Hill on both the breach of contract and Chapter 75 claims. In challenging the trial court's denial of said motions, defendants maintain the evidence was insufficient to send either claim to the jury. We disagree.

A JNOV motion constitutes renewal of an earlier motion for directed verdict, Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 368-69, 329 S.E.2d 333, 337 (1985), and similarly tests the legal sufficiency of the evidence to take the case to the jury. Taylor v. Walker, 84 N.C.App. 507, 509, 353 S.E.2d 239, 240, rev'd on other...