An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordan ce
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1439
NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
PAULA K. GREGORY, Administratrix
of the Estate of DARRYL TYRONE
GREGORY, JR.,
Plaintiff-Appellant,
v. Forsyth County
No. 10 CVS 8267
OLD REPUBLIC HOME PROTECTION
COMPANY, INC.
Defendant-Appellee.
Appeal by Plaintiff from judgment entered 24 May 2013 by
Judge Stuart Albright in Superior Court, Forsyth County. Heard
in the Court of Appeals 12 August 2014.
Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L.
Kennedy, III and Harvey L. Kennedy, for Plaintiff-
Appellant.
Moore & Van Allen PLLC, by Joshua D. Lanning and Melinda L.
Vervais, for Defendant-Appellee.
McGEE, Chief Judge.
I. Synopsis
Paula K. Gregory (“Plaintiff”), the administratrix of the
estate of Darryl Tyrone Gregory, Jr. (“Gregory”), initiated
this wrongful death action against Old Republic Home Protection
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Company, Inc. (“Defendant”), following the 2008 carbon monoxide
poisoning death of Gregory. Plaintiff has failed to properly
preserve the issue of whether the trial court erred in violation
of Rule 404(b) by admitting at trial certain convictions of
Gregory. The trial court did not err in granting Defendant’s
motion for directed verdict on Plaintiff’s UDTP claim.
Plaintiff has failed to make a proper argument concerning the
trial court’s grant of directed verdict on Plaintiff’s breach of
implied warranty claim and, therefore, Plaintiff has abandoned
this argument. We find no error.
II. Facts
Willie McKinney (“McKinney”) purchased a house at 2205
East Florida Street (“the house”) in Greensboro in the summer of
2007 as an investment rental property. McKinney’s real estate
agent and property manager, Genevieve Herbin (“Herbin”),
obtained a home warranty (“the warranty”) for the house from
Defendant at that same time. At trial, McKinney was asked the
following question concerning the warranty: “Did you even know
you had a policy before Ms. Herbin told you in the summer of
2008?” Defendant answered in the negative.
In June or July of 2008, Gregory began living in the house.
However, Gregory’s sister actually signed the lease on the
house. Shortly after moving into the house, Gregory informed
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McKinney that the air conditioning system was not working
properly. McKinney, without involving Defendant, contacted a
technician recommended by Herbin. At the time, McKinney was
apparently still unaware that he had a home warranty with
Defendant. The technician advised McKinney that both the air
conditioning and the heating system might need to be repaired or
replaced.
Herbin then informed McKinney of the warranty and Herbin
contacted Defendant, who sent one of its independent
contractors, Windham Heating and Air (“Windham Heating”), to
inspect the heating system. Initially, in early November of
2008, a technician from Windham Heating diagnosed a cracked heat
exchange in the furnace. Cracks in the heat exchange could have
caused a dangerous release of carbon monoxide into the house.
Subsequently, the owner of Windham Heating, Paul Edward Windham
(“Windham”), examined the heating system at the house, and
determined that the heat exchange was not cracked and,
therefore, did not replace the heat exchange or the heater.
Windham did not identify any other problem with the heating
system. Subsequent analysis by experts for both Plaintiff and
Defendant indicated that the heat exchange was leaking little,
if any, carbon monoxide. Plaintiff’s and Defendant’s experts
had slightly differing opinions concerning how the carbon
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monoxide got into the house, but all were in agreement that the
creation of negative pressure in the closet that contained the
furnace caused carbon monoxide to be sucked down the exhaust
pipe and into the house, rather than properly exhausting up and
out of the house.
Gregory and Monique Carpenter were found in the house,
having died of carbon monoxide poisoning, on 14 November 2008.
Plaintiff filed her complaint against Defendant and Windham
Heating on 15 November 2010, alleging, inter alia, negligence,
punitive damages, Unfair and Deceptive Trade Practices (“UDTP”),
and breach of implied warranty. The record is unclear as to how
Plaintiff’s claims against Windham and Windham Heating were
concluded, but by the time the Order on Final Pre-Trial
Conference was filed on 7 May 2013, Windham and Windham Heating
were no longer named defendants.
Trial commenced on 6 May 2013 on Plaintiff’s claims against
Defendant of negligent retention, vicarious liability, breach of
warranty, and UDTP. At the close of Plaintiff’s evidence,
Defendant moved for directed verdicts on all charges. The trial
court granted Defendant’s motions for directed verdict with
respect to the UDTP claim and the breach of warranty claim, and
denied Defendant’s motions for directed verdict on Plaintiff’s
remaining claims.
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The trial continued on the charges of negligent retention
and vicarious liability. Following closing arguments, the trial
court instructed the jury and presented it with three issues to
decide: (1) “Was Darryl Tyrone Gregory Jr.’s death caused by the
negligence of Paul Edgar Windham doing business as Windham
Heating and Air Conditioning?” (2) “Was Darryl Tyrone Gregory
Jr.’s death caused by the negligence of . . . Defendant in
retaining Paul Edgar Windham doing business as Windham Heating
and Air Conditioning?” (3) “What amount is the estate of Darryl
Tyrone Gregory Jr. entitled to recover for wrongful death?” The
jury answered “no” to the first issue, finding that Gregory’s
death was not caused by negligence on the part of Windham and,
therefore, did not address the remaining issues. Plaintiff
appeals.
III. Issues
A. Rule 404(b)
In Plaintiff’s first argument, she contends the trial court
erred by admitting part of Gregory’s criminal record into
evidence in violation of N.C. Gen. Stat. § 8C-1, Rule 404(b).
We disagree.
Plaintiff’s argument on appeal is that the trial court
erred by allowing evidence at trial of some of Gregory’s prior
convictions in violation of Rule 404(b) of the North Carolina
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Rules of Evidence, which prohibits admitting prior bad acts “to
prove the character of a person in order to show that he acted
in conformity therewith.” N.C. Gen. Stat. § 8C-1, Rule 404(b)
(2013). However, Plaintiff did not make this argument at trial.
At trial, Plaintiff moved in limine to exclude any evidence
related to Gregory’s prior criminal convictions, criminal
charges, or criminal activity, pursuant to N.C. Gen. Stat. § 8C-
1, Rule 609, “[i]mpeachment by evidence of conviction of
crime[,]” and further argued that, even if the evidence was
admissible pursuant to Rule 609, it should be excluded because
its probative value was substantially outweighed by the danger
of unfair prejudice under N.C. Gen. Stat. § 8C-1, Rule 403.
Plaintiff later argued that the evidence should be excluded
pursuant to Rule 608(b), which states: “Specific instances of
conduct.--Specific instances of the conduct of a witness, for
the purpose of attacking or supporting his credibility, other
than conviction of crime as provided in Rule 609, may not be
proved by extrinsic evidence.” N.C. Gen. Stat. § 8C-1, Rule
608(b) (2013).
The trial court initially ruled: “With regard to criminal
charges and criminal activity, [Plaintiff’s] motion is allowed.
[Defendant’s] sole request, should it become relevant, would be
criminal convictions?” Defendant agreed, and the trial court
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deferred ruling on the admissibility of any criminal convictions
of Gregory:
I certainly understand the plaintiff's
contention. However, I do believe the
plaintiff can open the door to the testimony
the plaintiff wants to keep out. So if the
plaintiff opens the door, I will consider
any evidence of the defendant, any
convictions. Again, I can't give you an
advisory opinion past what I've already
said. I am taking it under advisement. The
plaintiff is certainly entitled to prove, in
fact, what type of person the decedent was,
to prove what type of care and assistance
and society and companionship and comfort.
But if the plaintiff opens the door to that
line of questioning, the defendant is going
to be allowed to rebut the fact that he was
a good person. If the plaintiff puts in
evidence that he was a good person and that
he did good things, I will consider it.
It doesn't mean any convictions will be
automatically admissible, however. It means
it's under advisement, and I will consider
it. Everybody is on notice that if you open
the door to this testimony with regard to
the type of person the decedent was, the
door will be open.
Plaintiff put on evidence, including testimony from
Gregory’s children, and photographs of Gregory coaching his
son’s football team. Defendant then sought to admit certain
criminal convictions Gregory had on his record. The trial court
stated: “What I'm hearing . . . is -- it's not necessarily
404(b). It's offered to rebut the evidence that's been offered
by [P]laintiff.” Defendant responded: “That's correct.” The
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trial court then stated that from its “point of view it’s a
different analysis [than Rule 404(b)].” The trial court ruled:
I am going to allow some of the
criminal convictions in. I find that the
plaintiff has opened the door, and I
understand the plaintiff disagrees with the
court's ruling. Nevertheless, I do find
that the plaintiff has opened the door to
the type of person they have put in issue in
this case, the type of person Mr. Gregory is
and was during the course of his life.
And it appears that he has done many
good things during the course of his life,
including raising three beautiful children,
being a good father, a good and fit parent
for his children. That is certainly the
inference as to the testimony that was
brought forth, including the five-year-old
that testified that he was a very good
parent to his children.
I'm specifically also looking at
Plaintiff's Exhibits 25 and 29 in which they
show Mr. Gregory as a football coach in the
year of 2003, Plaintiff's Exhibit 25, and
the year 2006 -- it's right on that
photograph that was admitted into evidence -
- showing that he was a coach, not only to
his own child, but to many other children.
And I believe some of the questions involved
that he was a coach of young people in
general, not limited to just his son.
Again, it was an inference of the type of
person. Obviously, the inference is that he
was a good person, not only to his own
children but to other people as well.
I think the criminal convictions from
2004, one count of assault on a female, one
count of assault with a deadly weapon, and a
conviction from 2007, maintaining a dwelling
place for storing narcotics and possession
with intent to sell and deliver cocaine
rebut the inference that he is a good
person, and I think the defendant is going
to be allowed to challenge that inference
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because the plaintiff has opened the door.
They are also going to be allowed to
challenge the inference that he's a fit and
proper parent based on the arguments of the
defendant. I considered Rule 403, and I am
excluding all the [pre-2004] convictions
based on Rule 403[.]
Nevertheless, with regard to these
convictions from 2004 and 2007, especially
in light of the evidence offered by the
plaintiff in Plaintiff's 25 and 29, I find
the probative value of those convictions are
not substantially outweighed by the danger
of unfair prejudice, confusion of the
issues, or misleading the jury. Again, he
is allowed to rebut the inference that I
have discussed.
Plaintiff excepted to the trial court’s ruling, but without
making any argument concerning Rule 404(b). Plaintiff requested
a limiting instruction “that these convictions would be
considered only on the issue of whether Mr. Gregory was a fit
parent or a good parent, something like that.” The trial court
gave a limiting instruction in accord with what Plaintiff had
requested.
The trial court instructed the jury that “[d]amages for
Darryl Tyrone Gregory Jr.'s death also include fair compensation
for the present monetary value of Mr. Gregory to his next of
kin.” Gregory’s next of kin were his children. The trial court
further instructed:
There is no fixed formula for determining
the present monetary value of Mr. Gregory to
his next of kin. You must determine what is
fair compensation by applying logic and
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common sense to the evidence. You may
consider the services, protection, care, and
assistance of Mr. Gregory, whether voluntary
or obligatory, to his next of kin. These
words are to be given their ordinary
meanings.
You may consider the family and
personal relationships between Mr. Gregory
and his next of kin, and what you find to be
the reasonable value of the loss to them of
these things over the life expectancy of Mr.
Gregory. You may also consider the society,
companionship, comfort, guidance, kindly
offices and advice of Mr. Gregory to his
next of kin. These words are also to be
given their ordinary meaning.
The trial court therefore ruled that, because Plaintiff had
introduced evidence of Gregory’s good character as a father,
including specific instances such as coaching his son’s football
team, Plaintiff had “opened the door” and made character an
issue for the jury to consider when valuing the loss of Gregory
to his children.
Plaintiff did not challenge this basis for the trial
court’s ruling at trial and, therefore, has abandoned any such
challenge. N.C.R. App. P. 10(a)(1) (“In order to preserve an
issue for appellate review, a party must have presented to the
trial court a timely request, objection, or motion, stating the
specific grounds for the ruling the party desired the court to
make if the specific grounds were not apparent from the context”
and must have “obtain[ed] a ruling upon the party's request,
objection, or motion.”).
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The trial court did not base its ruling on Rule 404(b), and
Plaintiff does not challenge the actual basis for the trial
court’s ruling on appeal. Plaintiff has therefore abandoned any
such challenge, and we must affirm the ruling of the trial
court. State v. Hodges, 195 N.C. App. 390, 396, 672 S.E.2d 724,
729 (2009) (the defendant abandoned argument pursuant to N.C.R.
App. P. 28(b)(6) because the defendant did not make the argument
in his brief).
Finally, Plaintiff contends in her brief that
[o]nce the criminal convictions of the
deceased were admitted into evidence,
Plaintiff had no chance of prevailing in
this action. The admission of drug
offenses, including those dealing with
cocaine, was highly prejudicial and created
a substantial risk that the jury decided the
case based on the deceased’s character and
not upon an objective determination of the
facts[.]
Plaintiff then stated: “The trial court abused its discretion in
not excluding evidence of [Gregory’s] criminal convictions where
the danger of unfair prejudice substantially outweighed any
probative value.” These conclusory statements, without any true
argument or citation to authority, violate Rule 28(b)(6) of the
North Carolina Rules of Appellate Procedure, and subject this
argument to dismissal. Hodges, 195 N.C. App. at 396, 672 S.E.2d
at 729. Because it was Plaintiff’s duty in the first instance
to argue prejudice in her initial brief, it was improper for
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Plaintiff to use her reply brief as a means of introducing some
evidence related to prejudice. N.C.R. App. P. 28 (2013); Hardin
v. KCS Int'l, Inc., 199 N.C. App. 687, 707-08, 682 S.E.2d 726,
740 (2009) (citations omitted) (this Court “‘will not entertain
what amounts to a new argument presented in th[e] reply
brief’”).
Plaintiff fails in her burden of showing that the trial
court abused its discretion in ruling that the contested
evidence was admissible under Rule 403, and that she was
materially prejudiced thereby. State v. Stevenson, 169 N.C.
App. 797, 800-01, 611 S.E.2d 206, 209 (2005) (the ruling on Rule
403 “is within the sound discretion of the trial court, whose
ruling will be reversed on appeal only when it is shown that the
ruling was so arbitrary that it could not have resulted from a
reasoned decision”).
Importantly, Gregory’s prior convictions were only
introduced into evidence for the purpose of assisting the jury
in determining damages, assuming the jury reached the issue of
damages. The trial court instructed the jury that the
convictions were not to be considered for any other purpose.
“This Court presumes that jurors follow the trial court's
instructions.” State v. Cummings, 352 N.C. 600, 623, 536 S.E.2d
36, 53 (2000) (citations omitted). Because the jury found that
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Gregory’s death was not caused by negligence on the part of
Windham, it did not reach the issue of Defendant’s alleged
negligent hiring or retention of Windham, and did not reach the
issue of damages. This argument is without merit.
B. Unfair or Deceptive Trade Practices
In Plaintiff’s second argument, she contends that the trial
court erred in directing verdict in favor of Defendant on
Plaintiff’s claim for unfair and deceptive trade practices. We
disagree.
Even assuming arguendo the trial court erred in directing
verdict for Defendant on Plaintiff’s UDTP claim, Plaintiff
cannot show prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule
61, which states:
No error . . . or defect in any ruling or
order . . . is ground[s] for granting a new
trial or for setting aside a verdict or for
vacating, modifying, or otherwise disturbing
a judgment or order, unless refusal to take
such action amounts to the denial of a
substantial right.
N.C. Gen. Stat. § 1A-1, Rule 61 (2013). In order to prove UDTP,
Plaintiff had to prove, inter alia, that Plaintiff “‘suffered
actual injury as a proximate result of defendant’s deceptive
statement or misrepresentation.’” McLamb v. T.P., Inc., 173
N.C. App. 586, 593-54, 619 S.E.2d 577, 582 (2005) (citations
omitted). On these facts, Plaintiff had to prove, inter alia,
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that Defendant misrepresented Windham’s qualifications by
withholding vital information from McKinney, and that this
misrepresentation proximately caused the death of Gregory.
However, the jury found that Gregory’s death was not “caused by
the negligence of Paul Edgar Windham doing business as Windham
Heating and Air Conditioning[.]” This determination necessarily
breaks the chain of proximate cause Plaintiff was required to
prove in order to prevail in her UDTP claim. Absent any
proximate cause linking Defendant’s alleged misrepresentations
and Gregory’s death, Plaintiff’s UDTP claim could not survive.
Because Plaintiff could not have prevailed on her UDTP claim,
Plaintiff cannot show prejudicial error. This argument is
without merit. See McKay v. Parham, 63 N.C. App. 349, 353, 304
S.E.2d 784, 787 (1983).
C. Breach of Implied Warranty
In Plaintiff’s final argument, she contends the trial court
erred in granting directed verdict in favor of Defendant on
Plaintiff’s breach of implied warranty claim. We disagree.
“The function of all briefs required or
permitted by [the Appellate R]ules is to
define clearly the issues presented to the
reviewing court and to present the arguments
and authorities upon which the parties rely
in support of their respective positions
thereon.” N.C.R. App. P. 28(a) (“The scope
of review on appeal is limited to issues so
presented in the several briefs.”). “It is
not the duty of this Court to supplement an
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appellant's brief with legal authority or
arguments not contained therein.” [S]ee
also Viar v. N.C. Dep't of Transp., 359 N.C.
400, 402, 610 S.E.2d 360, 361 (“It is not
the role of the appellate courts . . . to
create an appeal for an appellant.”) (2005).
Eaton v. Campbell, __ N.C. App. __, __, 725 S.E.2d 893, 894
(2012) (citations omitted).
In this appeal, Plaintiff makes factual and legal arguments
without providing any citation to authority in support of those
arguments. Plaintiff does cite, absent pinpoint citations, two
opinions at the end of her one-and-a-quarter page argument, as
support for her claim that “Plaintiff clearly had a viable claim
for breach of implied warranty.” However, both those opinions,
though containing general law related to breach of implied
warranty, do not support Plaintiff’s argument. Jackson v.
Housing Authority of High Point, 73 N.C. App. 363, 326 S.E.2d
295 (1985), concerned an implied warranty of habitability claim.
An implied warranty of habitability “stands for the proposition
that a landlord impliedly warrants to his tenant that leased or
rented residential premises are fit for human habitation, at
least to the extent of being free from observable conditions
that render the premises unsafe or unsanitary.” Id. at 372, 326
S.E.2d at 300 (citations omitted). Plaintiff is not making an
implied warranty of habitability claim against Gregory’s
landlord in the present case.
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DeWitt v. Eveready Battery Co., 144 N.C. App. 143, 550
S.E.2d 511 (2001), is a products liability case. DeWitt does
include a claim for breach of an implied warranty, but it is for
breach of an implied warranty of merchantability. Id. at 149,
550 S.E.2d at 515. Plaintiff fails to make a proper appellate
argument and further fails to cite to any authority that
supports her contention that the trial court erred in granting
Defendant a directed verdict on Plaintiff’s breach of implied
warranty claim. Eaton, __ N.C. App. at, __, 725 S.E.2d at 894.
This argument is without merit.
No error.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).