Russell v. Taylor

• Decision Date: 15 August 1978
• Docket Number: No. 7726SC762,7726SC762
• Citation: 246 S.E.2d 569,37 N.C.App. 520
• Court: North Carolina Court of Appeals
• Parties: Helen J. RUSSELL v. Jack W. TAYLOR.

Page 569

246 S.E.2d 569

37 N.C.App. 520

Helen J. RUSSELL v. Jack W. TAYLOR.

No. 7726SC762.

Court of Appeals of North Carolina.

Aug. 15, 1978.

In her complaint plaintiff alleges that defendant sold a mobile home to her and her husband; that thereafter defendant wrongfully took possession of and converted the mobile home and its entire contents; and that she is entitled to recover actual and punitive damages from defendant pursuant to G.S. 99A-1. Plaintiff's husband did not join in the action but assigned his cause of action to plaintiff.

Defendant answered, asserting that he rented the mobile home to plaintiff and her husband but never sold it to them; and that he took possession of the property when plaintiff and her husband became delinquent in their rental payments. Defendant also filed a counterclaim, alleging that plaintiff had wrongfully caused him to be arrested for his taking possession of the mobile home and that no probable cause had been found for his arrest.

Following a trial without a jury, the court made findings of fact summarized in pertinent part as follows:

On or about 1 September 1971 plaintiff and defendant entered into an agreement whereby defendant agreed to sell to plaintiff a 1966 Mascot mobile home in consideration of plaintiff paying the nineteen remaining payments thereon in amount of $72.19 each and also paying plaintiff $2,000.00. Plaintiff took possession of the mobile home and removed it to Boiling Springs Lakes, N.C., where it was placed on a lot which plaintiff had purchased. Plaintiff spent approximately $1,295.43 for improvements to the lot.

On or about 29 September 1972 plaintiff executed to defendant a note (for $4,000) and as security therefor executed a second deed of trust on plaintiff's residence in Charlotte. In return, defendant paid plaintiff $2,000 in cash and applied the remaining $2,000 to payment of the $2,000 due defendant on the mobile home.

Plaintiff paid the 19 installments on the mobile home, either to the bank holding the security instrument thereon or to defendant in reimbursement for payments made by him, but defendant never delivered the title to the mobile home to plaintiff.

During the fall of 1973 plaintiff failed to make payments on the note secured by the second deed of trust aforesaid and defendant instituted foreclosure proceedings against plaintiff's residence in Charlotte. At the foreclosure sale defendant bid $3,750 on said property and thereafter he was given a deed for the same by the trustee named in the deed of trust.

In early December 1973 defendant demanded that plaintiff return and surrender the mobile home located at Boiling Springs Lakes; plaintiff informed defendant that under no circumstances could he have the mobile home as it was serving as a permanent residence for her and three of her children who were attending school at Boiling Springs Lakes. Plaintiff told defendant that she owned the mobile home free and clear of all liens.

On or about 2 January 1974, while plaintiff and her family were in Charlotte, defendant, without the knowledge or consent of plaintiff, moved said mobile home and all of its contents to Myrtle Beach, South Carolina.

Upon learning of said act by defendant, plaintiff's husband, on 18 January 1974, obtained a warrant for defendant charging him with feloniously breaking into and entering the mobile home with intent to steal property located therein. Defendant was subsequently arrested and at a trial held on 18 February 1974 the court found no probable cause.

The value of the contents of the mobile home moved by defendant was approximately $2,069.25 and defendant has not returned said personal property or mobile home to plaintiff.

Upon said findings of fact, the court concluded as a matter of law that plaintiff was entitled to the immediate possession of the mobile home and all contents therein; that defendant had converted the mobile home and contents to his own use; that pursuant to G.S. 99A-1 plaintiff could recover actual and punitive damages from defendant; that the measure of actual damages for conversion of the property was its fair market value at the time and place of conversion; and that defendant was not entitled to recover anything from plaintiff because of his counterclaim.

The court adjudged that plaintiff recover of defendant $4,000 compensatory damages and $2,500 punitive damages; that defendant's counterclaim be dismissed; and that defendant pay the costs of the action.

Defendant appealed.

Davis & Postlethwait by Raymond W. Postlethwait, Jr., Charlotte, for plaintiff-appellee.

James B. Ledford and C. B. Merryman, Jr., Charlotte, for defendant-appellant.

BRITT, Judge.

By his first assignment of error defendant contends the court erred in failing to grant his motions for dismissal as to compensatory damages and punitive damages interposed at the close of plaintiff's evidence and at the close of all the evidence. This assignment has no merit.

Plaintiff's motions for dismissal purportedly were made pursuant to G.S. 1A-1, Rule 41(b), which provides in pertinent part:

". . . After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. . . ."

In Helms v. Rea, 282 N.C. 610, 619, 194 S.E.2d 1, 7 (1973), Justice (now Chief Justice) Sharp, speaking for the court regarding Rule 41(b) said: "The judge is not compelled to make determinations of facts and pass upon a motion for involuntary dismissal at the close of plaintiff's evidence. He may decline to render any judgment until the close of all the evidence and, as suggested by Phillips, 'except in the clearest cases' he should defer judgment until the close of all the evidence. . . ." The court further stated that "(t)here is little point in such a motion at the close of all the evidence, since at that stage the judge will determine the facts in any event . . . ."

In Reid v. Midgett, 25 N.C.App. 456, 213 S.E.2d 379 (1975), this court held that Rule 41(b) does not provide for a motion for involuntary dismissal made at the close of all the evidence.

Furthermore, since the questions which defendant attempts to raise by his first assignment are hereinafter considered under another rule, we perceive no prejudice in the denial of his motions for involuntary dismissal.

In his second assignment of error defendant contends that the evidence does not support the findings of fact and the judgment "pronounced thereon". This assignment is supported by Exception No. 6 which is at most an exception to the signing of the judgment. In 1 Strong's N.C. Index 3d, Appeal and Error § 28, p. 253, we find: "An exception to the findings of fact and conclusions of law and the judgment of the court, without exception to a particular finding, is a broadside exception which does not present for review the admissibility of the evidence on which the findings were made or the sufficiency of the evidence to support the findings. . . ."

We hold that the question of sufficiency of the evidence to support the findings of fact is not presented.

Nevertheless, Rule 10 of the Rules of Appellate Procedure, 287 N.C. 679, 699, provides, Inter alia, that when an appeal is duly taken from a final judgment, any party to the appeal may present for review, by properly raising them in his brief, the questions whether the judgment is supported by the findings of fact and conclusions of law, notwithstanding the absence of an exception or assignment of error in the record on appeal. Since defendant discusses the sufficiency of the findings of fact and conclusions of law to support the judgment awarding compensatory damages and punitive damages, we proceed to pass...