Seafare Corp. v. Trenor Corp.
| Decision Date | 19 January 1988 |
| Docket Number | No. 871SC398,871SC398 |
| Citation | 363 S.E.2d 643,88 N.C.App. 404 |
| Court | North Carolina Court of Appeals |
| Parties | , 1988-1 Trade Cases P 68,043 SEAFARE CORPORATION v. TRENOR CORPORATION, Fred J. Bender and wife, Judy H. Bender. |
Trimpi, Thompson and Nash by C. Everett Thompson, II, and John G. Trimpi, Elizabeth City, for plaintiff-appellee.
Cherry, Cherry, Flythe and Overton by Larry S. Overton, and Taylor and McLean by Mitchell S. McLean, Ahoskie, for defendants-appellants.
Defendants appeal on numerous grounds set out in twenty assignments of error. Plaintiff makes two cross-assignments of error. Plaintiff first assigns error to the trial court's crediting of the judgment with the amount received by plaintiff in exchange for dismissals. Plaintiff also contends that the court erred in crediting this amount before rather than after the damage award was trebled. We first consider defendants' appeal.
Defendants first assign error to the trial court's failure to dismiss plaintiff's complaint because it was not timely filed. Plaintiff obtained an order extending the time to file its complaint until 16 September 1984, but the complaint was not filed until 17 September 1984. 16 September 1984 fell on a Sunday, however, and we may take judicial notice of that fact. State v. Brunson, 285 N.C. 295, 302, 204 S.E.2d 661, 665 (1974). Plaintiff therefore had an extra day in which to file its complaint, and the complaint was timely filed. Rule 6(a), N.C.Rule Civ.Proc.
Defendants next assign error to the failure of the trial court to dismiss plaintiff's complaint for insufficiency of service of process. Defendant Fred J. Bender was served by leaving a copy of the complaint with his wife at his office. Defendants may be correct in arguing that this service is defective because a copy of the complaint was not left at defendant Fred Bender's dwelling house or usual place of abode as required by Rule 4(j)(1) of the N.C.Rules of Civil Procedure. Defendants failed, however, to raise this defense in the manner provided by Rule 12 of the N.C.Rules of Civil Procedure and thus waived the defense. Rule 12(h)(1), N.C.Rule Civ.Proc.
Defendants' third assignment of error states that the trial court erred in submitting issues to the jury which were not supported by sufficient relevant and competent evidence. Defendants have excepted to all eight issues that were submitted, but made no objection to any of them at trial. If a party does not object to the submission of issues at trial, he cannot make the objection on appeal. Baker v. Construction Corp., 255 N.C. 302, 307, 121 S.E.2d 731, 735 (1961); Hendrix v. Casualty Co., 44 N.C.App. 464, 467, 261 S.E.2d 270, 272-73 (1980). Even if we were to consider this issue on appeal, we find no merit in defendants' argument that the court should not have submitted an issue as to whether a fiduciary relationship existed between plaintiff and Stafford. Plaintiff presented sufficient evidence to support the submission of this issue to the jury. Defendants contend that plaintiff's evidence shows that the property was transferred to Stafford in order to deceive plaintiff's creditors. The evidence clearly shows, however, that plaintiff hoped that Stafford would sell the property for a good price, thus enabling plaintiff to pay its debts.
Defendants also assign error to the trial court's instructions to the jury concerning the presumption of fraud when a fiduciary sells property held in trust for another. Specifically, defendant objects to the trial court's supplemental instructions on this issue after the jury foreman indicated that the jury could find no evidence of fraud on the part of Stafford. Again, defendants may not raise this issue on appeal because they failed to object to the instructions at trial. Rule 10(b)(2), N.C. Rule App.Proc. In any event, the trial judge properly instructed the jury that once plaintiff had shown the existence of a confidential relationship and a transfer of the property, fraud was presumed and plaintiff was not required to present direct evidence of fraud. Sanders v. Spaulding and Perkins, Ltd., 82 N.C.App. 680, 681, 347 S.E.2d 866, 867 (1986).
Defendants' next two assignments of error are that the trial court erred in failing to set aside the verdict and in denying defendants' motions for a new trial. Defendants argue that the trial court should have directed a verdict in their favor, yet they made no motions for a directed verdict or for judgment notwithstanding the verdict at trial. The exceptions listed under this assignment of error are exceptions to the judgment. An exception to the judgment does not question the sufficiency of the evidence. Norman v. Royal Crown Bottling Co., 64 N.C.App. 200, 201, 306 S.E.2d 828, 829 (1983). It raises only two questions of law: (i) whether the facts found support the conclusions of law and the judgment, and (ii) whether error appears on the face of the record. Id. In this case the jury's findings of fact clearly support the judgment and no error appears on the face of the record.
Defendants contend that the trial court erred in denying their motions for new trial. The trial court found that it did not have jurisdiction to hear the motions because defendants had filed notices of appeal at the same time they filed their motions for new trial. The trial court correctly held that it had no jurisdiction to grant a new trial when notices of appeal were filed the same day. Homes, Inc. v. Peartree, 24 N.C.App. 579, 211 S.E.2d 457, cert. denied, 286 N.C. 722, 213 S.E.2d 722 (1975). Defendants argue that the trial court retained jurisdiction because defendants had filed motions for stay of proceedings one minute before filing their notices of appeal. This argument has no merit because, even if one minute would make a difference, the motions to stay proceedings were made for the purpose of staying execution of the judgment pending disposition of the motions for new trial. The motions to stay proceedings had no effect on the trial court's jurisdiction once notice of appeal was filed and the motions for new trial were denied. Defendants also argue that the trial court should have retained jurisdiction under the reasoning of the Supreme Court in Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975). Defendants' reliance on that case is misplaced because the court in Sink did not consider a motion for a new trial but a motion for relief from judgment under Rule 60(b) of the N.C.Rules of Civil Procedure. The Supreme Court's reasoning in Sink was based in part on the fact that the time for making a motion under Rule 60(b) continues to run while the case is pending on appeal. Sink, 288 N.C. at 199, 217 S.E.2d at 542-43. The same reasoning would not apply to a motion for new trial because such a motion must be made within 10 days after entry of judgment, which is the same time by which notice of appeal must be filed. Rule 59(b), N.C.Rule Civ.Proc. Moreover, Rule 3(c) of the N.C. Rules of Appellate Procedure tolls the time for giving notice of appeal when a timely motion for new trial has been made.
Defendants next contend that the trial court erred in failing to grant defendants a continuance. Defendants' principal argument in this respect is that they were unfairly surprised by the previous settlements by and dismissals of the other original codefendants. Defendants apparently had no knowledge of these settlements and had been relying on their codefendants' counsels to represent their interests. Defendants had not been represented in this action since their original counsel died on 4 February 1985. A copy of the order setting trial on 3 November 1986 was mailed to defendants on 17 June 1986.
Rulings on motions to continue rest in the sound discretion of the trial judge and will not be reversed absent abuse of discretion. Southern of Rocky Mount v. Woodward Specialty Sales, 52 N.C.App. 549, 553, 279 S.E.2d 32, 35 (1981). Although we find it somewhat disturbing that defendants were apparently unaware of the settlement negotiations of their codefendants, the trial court can only consider facts in the record when ruling on a motion to continue. See Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976). The record here shows that defendants failed to obtain counsel even when they were notified that the case was going to trial. Defendants were obviously mistaken in assuming that their codefendants would protect their interests. Given defendants' gross neglect in obtaining representation, the trial court did not abuse its discretion in denying defendants' request for a continuance.
Defendants also contend that the trial court erred in not inquiring as to the whereabouts of defendant Judy Bender and in entering judgment against her in her absence. This Court has held that a judgment may be entered against a defendant in a civil case whose failure to appear is inexcusable. Chris v. Hill, 45 N.C.App. 287, 262 S.E.2d 716, disc. rev. denied and appeal dismissed, 300 N.C. 371, 267 S.E.2d 674 (1980). The Court in Chris specifically held that the trial court is not required to inquire as to the whereabouts of an absent defendant. Id. In this case, Judy Bender has not offered any excuse for her absence, and the trial court cannot be faulted for lack of concern with her whereabouts when her husband appeared at trial.
Defendants next assign error to the trial court's denial of their motion under Rule 12(b)(6) of the N.C.Rules of Civil Procedure without giving defendants an opportunity to be heard on the motion. The record shows that defendants did not object when the trial court summarily denied the motion. Defendants' discussion of this assignment of error in their brief merely restates their argument that plaintiff's complaint was not timely filed. We have already determined that this argument has no merit.
Defendants also assign error to the trial court's calling the matter to trial without a pre-trial...
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