Southern Furn. Hardware v. BRANCH BANKING
| Decision Date | 07 March 2000 |
| Docket Number | No. COA99-181.,COA99-181. |
| Citation | 526 S.E.2d 197,136 NC App. 695 |
| Court | North Carolina Court of Appeals |
| Parties | SOUTHERN FURNITURE HARDWARE, INC., and Joe W. Reynolds, Plaintiffs, v. BRANCH BANKING AND TRUST COMPANY d/b/a BB & T, Defendant. |
C. Gary Triggs, P.A., by C. Gary Triggs, Morganton, for plaintiff-appellants/appellees.
Adams Kleemeier Hagan Hannah & Fouts, by W. Winburne King, III, and Benjamin A. Kahn, Greensboro, for defendant-appellee/appellant.
Plaintiff Joe W. Reynolds (Reynolds) is the president and sole shareholder of plaintiff Southern Furniture Hardware (SFH), a North Carolina corporation. In March 1990, Reynolds began discussing with T. Scott Bain (Bain), Vice-President of defendant Branch Banking and Trust Company (BB & T), the possibility of obtaining a loan for SFH in the amount of $1,000,000. Part of this loan would be used to pay off SFH's existing indebtedness to Figgie Acceptance Corporation (Figgie), and the remainder would be earmarked for working capital.
During their discussions, Reynolds informed Bain that time was of the essence because Figgie was discontinuing its assetbased lending. On 20 June 1990, Bain delivered a loan commitment letter to Reynolds, and on 13 July 1990, Reynolds signed an acceptance of the terms and conditions of the commitment letter. During the next three and one-half weeks, Reynolds provided to Bain all requisite information and documentation and obtained the pay-off amount necessary to extinguish its loan from Figgie. On 7 September 1990, Bain was notified by Don B. Beam, Jr. (Beam), BB & T's vice president who had authority to approve the loan, that Beam had decided not to issue final co-approval of the loan. As a result, by January 1991, even though Bain repeatedly had assured Reynolds that the loan was being processed without complications, no closing date had been set, and the loan from Figgie had not been funded within the time prescribed in the estoppel letter Reynolds received from Figgie.
The loan was still unfunded in May 1991. Figgie performed an audit and increased pressure on Reynolds to complete payment on the loan. Plaintiffs employed counsel, who contacted Bain requesting immediate response from BB & T. Bain answered with further assurances the loan was proceeding smoothly. On 22 July 1991, BB & T requested a second mortgage on Reynolds' home in order to complete the loan processing. Reynolds accepted the new terms, which included a requirement of substantially more collateral. On 22 August 1991, defendant finally funded plaintiffs' loan, which was to mature on 1 September 1992. On 26 August 1991, plaintiffs' obligation to Figgie was paid off.
Although Bain repeatedly had assured plaintiffs they would be able to renew the loan on more favorable terms, as the time to renew the loan approached, on 10 August 1992, plaintiffs received from BB & T a letter of commitment substantially different from the original agreement between the parties, including a higher interest rate, increased collateral, and only a six-month extension of credit terms. Plaintiffs agreed to the unfavorable terms. Although Bain assured plaintiffs in a 22 January 1993 letter that the parties were in a long-term relationship, on 14 September 1993, BB & T called plaintiffs' note.
On 15 April 1994, plaintiffs filed suit against BB & T alleging inter alia fraud, negligent or intentional misrepresentation, breach of contract, unfair and deceptive trade practices, negligence, and intentional or negligent infliction of emotional distress. Defendant answered on 15 June 1994, asserting the defenses of contributory negligence, lack of consideration, misrepresentation, statute of limitations, and antecedent breach of contract. On 22 August 1995, defendant moved for summary judgment. On 3 January 1996, the trial court entered an order granting defendant's motion as to plaintiffs' claims of tortious interference with contract and breach of contract, and denying defendant's motion as to the remainder of plaintiffs' claims.
Trial began on 11 August 1997. At the close of plaintiffs' evidence, defendant moved for a directed verdict. The trial court orally granted defendant's motion as to plaintiffs' claim for intentional and/or negligent infliction of emotional distress and denied the motion on the remaining claims. Defendant presented no evidence, and the following issues were presented to the jury:
On 28 August 1997, the jury answered the issues as indicated above, awarding plaintiffs $520,000 in compensatory and $325,000 in punitive damages.
On 5 September 1997, defendant filed a "Motion For Judgment Notwithstanding The Verdict, Together With Conditional Grant Of New Trial, Or, In The Alternative, For A New Trial," pursuant to N.C. Gen.Stat. § 1A-1, Rules 50 and 59 (1999). In an order dated 27 March 1998, the trial court granted defendant's motion with respect to jury issues 2, 3, and 4, relating to plaintiffs' claims on the 1991 loan agreement. On the remaining issues, the trial court's order stated:
[T]he Court, in its discretion, is prepared to enter a judgment for Plaintiff Southern Furniture Hardware awarding a total amount of $360,000 (representing $120,000 in actual damages and $240,000 in punitive damages). Plaintiffs shall have twenty days from the date of this order to notify the Court and Defendant in writing if it accepts or rejects entry of judgment in the amount of $360,000. If Plaintiffs decline to accept entry of a judgment in that amount, the Court will set the verdict aside and order a new trial pursuant to Rule 59. The Court will enter a further order with regard to the grounds for new trial of these issues, if necessary. If Plaintiffs accept entry of judgment in the amount of $360,000, Defendant shall have ten days in which to notify the Court whether it will pay the judgment. If Defendant declines to pay the judgment, the motion for new trial will be denied and Judgment entered with respect to these issues on the jury's verdict.
Plaintiffs rejected the trial court's proposed remittitur, and the court, on 7 May 1998, ordered a new trial on the remaining issues. Plaintiffs filed notices of appeal with respect to both orders. Defendant filed notice of appeal as to the trial court's orders partially denying its motion for summary judgment, motion for directed verdict, and motion for judgment notwithstanding the verdict.
We first address the issue that arose prior to trial. On 13 January 1997, defendant filed a motion in limine to exclude testimony of J. Finley Lee, Ph.D., a witness for plaintiffs who was expected to provide expert testimony as to plaintiffs' losses. The trial court granted the motion, and Dr. Lee prepared a new analysis to address the concerns that had led the trial court to grant defendant's motion. Before trial began, defendant again objected to Dr. Lee's testimony, and the trial court again ruled that Dr. Lee would not be permitted to testify.
Plaintiffs contend the trial court erred in granting defendant's motion in limine. However, North Carolina appellate courts have held that motions in limine are not appealable:
While the North Carolina Rules of Evidence do not explicitly provide for motions in limine, their use in North Carolina is well recognized. Rulings on these motions, however, are merely preliminary and subject to change during the course of trial, depending upon the actual evidence offered at trial and thus an objection to an order granting or denying the motion "is insufficient to preserve for appeal the question of the admissibility of evidence." A party objecting to an order granting or denying a motion in limine, in...
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