Printing Services of Greensboro, Inc. v. American Capital Group, Inc.

*83GEER, Judge,

concurring in part and dissenting in part.

I concur with the majority’s holding regarding the motion for change of venue. Because, however, I believe the Loan Broker Act, N.C. Gen. Stat. §§ 66-106 through -117 (2005), only operates to protect natural persons, I would reverse the judgment of the trial court awarding the corporate plaintiff summary judgment. Accordingly, I respectfully dissent from the remaining portions of the majority opinion.

The critical question on appeal is whether defendant is a “loan broker” within the meaning of the Loan Broker Act. That Act defines loan broker as follows:

A “loan broker” is any person, firm, or corporation who, in return for any consideration from any person, promises to (i) procure for such person, or assist such person in procuring, a loan from any third party; or (ii) consider whether or not it will make a loan to such person.

N.C. Gen. Stat. § 66-106(a)(1) (2005) (emphases added). The majority construes the word “person” in this definition to include corporations. I do not believe that this view is consistent with principles of statutory construction.

“In matters of statutory construction the task of the Court is to determine the legislative intent, and the intent is ascertained in the first instance ‘from the plain words of the statute.’ ” N.C. Sch. Bds. Ass’n v. Moore, 359 N.C. 474, 488, 614 S.E.2d 504, 512 (2005) (quoting Elec. Supply Co. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)). It is well established that “where a statute is intelligible without any additional words, no additional words may be supplied.” State v. Camp, 286 N.C. 148, 151, 209 S.E.2d 754, 756 (1974). Absent a showing that giving effect to the literal wording of a statute would produce absurd results or contravene the manifest purpose of the legislature, we may not disregard a statute’s plain language. Union v. Branch Banking & Tr. Co., 176 N.C. App. 711, 716-17, 627 S.E.2d 276, 279 (2006).

I recognize that N.C. Gen. Stat. § 12-3(6) (2005) provides, with respect to statutes, that “[t]he word ‘person’ shall extend and be applied to bodies politic and corporate, as well as to individuals, unless the context clearly shows to the contrary.” Here, I believe that the context clearly shows to the contrary. The definition of “loan broker” includes “any person, firm, or corporation” who engages in cer*84tain conduct with respect to “any person.” If the General Assembly had intended that the Loan Broker Act apply with respect to loans to corporations, it surely would have said so. It defined the entity engaging in the loan brokerage activity as encompassing persons, firms, or corporations, but, eight words later, chose not to reference firms or corporations when discussing potential borrowers.

To construe the statute, as the majority does, so as to encompass firms and corporations within the phrase “any person” would lead to curious results. After substituting the majority’s broader definition of “person,” the definition of “loan broker” would then read: “A ‘loan broker’ is any person, [firm, or corporation], firm, or corporation who, in return for any consideration from any person, [firm, or corporation], promises to (i) procure for such person, [firm, or corporation,] or assist such person[, firm, or corporation] in procuring, a loan from any third party; or (ii) consider whether or not it will make a loan to such person[, firm, or corporation].” Because the statute’s language is plain and not ambiguous, I do not believe that we need — or are permitted — to add additional words to the statute, especially when the result is such an odd redundancy.

The majority cites Johnson v. Wornom, 167 N.C. App. 789, 606 S.E.2d 372, disc. review denied, 359 N.C. 411, 612 S.E.2d 321 (2005), as supporting its conclusion that a corporation may seek relief under the'Loan Broker Act. I respectfully believe the majority has misread Johnson. Johnson involved loan procurement services to an individual and not a corporation. As the caption and text of Johnson indicates, the action under N.C. Gen. Stat. § 66-107 (2005) was brought by an individual, Charles Dexter Johnson, and not by a corporation. Id. at 790-91, 606 S.E.2d at 373-74 (reciting that “Johnson filed an action” under the Loan Broker Act and that the trial court dismissed “Johnson’s loan broker claim,” a decision that “Johnson appealed”).1 Further, in the recitation of the facts, the opinion states that “Johnson defaulted on [the] loan” procured by the defendant, who was alleged to be a loan broker.

In short, as the opinion indicates, Johnson involved services being rendered to an individual (even if for the benefit of a corporation), and a claim being filed by an individual and not by a corporation. The result in Johnson — which did not, in any event, address the issue in this case — is entirely consistent with my con*85struction of the Loan Broker Act. Here, in contrast to Johnson, services were rendered solely to a corporation, and the claim was filed by a corporation.

The majority also looks to N.C. Gen. Stat. § 66-106(b), which provides that N.C. Gen. Stat. § 66-106(a)(1)(ii) of the Loan Broker Act “shall not apply to any lender whose loans or advances to any person, firm or corporation in North Carolina aggregate more than one million dollars ($1,000,000) in the preceding calendar year” regardless whether the lending entity would otherwise fall within the definition of a loan broker under N.C. Gen. Stat. § 66-106(a)(1). (Emphasis added.) Plaintiff argues on appeal, and the majority apparently agrees, that under the principle of in pari materia, this provision necessarily indicates that lendees under the Loan Broker Act may also be “firm[s]” or “corporation[s].” See, e.g., Rhyne v. K-Mart Corp., 358 N.C. 160, 188, 594 S.E.2d 1, 20 (2004) (“[W]e construe statutes in pari materia, giving effect, if possible, to every provision.”).

I believe, to the contrary, that this provision further supports my view that the plain language of the Loan Broker Act only allows claims by natural persons and not by borrowers who are firms or corporations. First, the fact that the General Assembly referred to “any person, firm, or corporation” in both N.C. Gen. Stat. § 66-106(a)(1) and in N.C. Gen. Stat. § 66-106(b) while elsewhere referring only to “any person” strongly suggests that the omission of “firm” and “corporation” in other portions of the statute was intentional. See Univ. of N.C. at Chapel Hill v. Feinstein, 161 N.C. App. 700, 704, 590 S.E.2d 401, 403 (2003) (“A statute that provides a clear enumeration of its inclusion is read to exclude what the General Assembly did not enumerate.”), disc. review denied, 358 N.C. 380, 598 S.E.2d 380 (2004).

Second, I read N.C. Gen. Stat. § 66-106(b) as excepting in part from the Loan Broker Act’s coverage large lenders: those whose loans in North Carolina to any party (i.e., “person, firm or corporation”) exceed $1,000,000.00 are exempt from N.C. Gen. Stat. § 66-106(a)(1)(ii). In other words, even if a transaction would otherwise come within the scope of the Loan Broker Act (e.g., an individual person seeking loan services from a corporate lender), the lender would not be a “loan broker” so long as all of the lender’s loans to North Carolina borrowers aggregated to more than $1,000,000.00, regardless whether those loans were made to a “person, firm or corporation.” Thus, under N.C. Gen. Stat. § 66-106(b), large lenders are *86not “loan broker[s]” if the only act they take, in return for consideration from any person, is to promise to “consider whether or not [they] will make a loan to [any] person.” N.C. Gen. Stat. § 66-106(a)(1)(ii). This limited exception for large lenders makes sense and does not, to me, suggest an expansion of the coverage of the Loan Broker Act to corporate borrowers.

In short, based on the language of the statute itself, I would hold that corporations — as opposed to individual borrowers — may not assert claims under the Loan Broker Act. See N.C. Ass’n of Elec. Tax Filers, Inc. v. Graham, 333 N.C. 555, 567, 429 S.E.2d 544, 551 (observing that the Loan Broker Act was enacted “for consumer protection purposes”), cert. denied, 510 U.S. 946, 126 L. Ed. 2d 336, 114 S. Ct. 388 (1993); Black’s Law Dictionary 206 (8th ed. 2004) (defining “loan broker” as “[a] person who is in the business of lending money, usu. to an individual, and taking as security an assignment of wages or a security interest in the debtor’s personal property” (emphasis added)). I would, therefore, reverse the trial court’s decision and remand for consideration of plaintiff’s breach of contract claim.

. Indeed, according to the caption of the opinion, the corporations cited by the majority — and for the benefit of whom Johnson apparently individually obtained the loan — were, in fact, co-defendants with the alleged loan broker.