Alexvale Furniture, Inc. v. Alexander & Alexander of the Carolinas

93 N.C. App. 478 | N.C. Ct. App. | 1989

PHILLIPS, Judge.

Correctly recognizing that the order appealed from is interlocutory and its appealability questionable, G.S. 1-277, G.S. 7A-27(d), plaintiff also filed a petition for certiorari which we have granted. Not because the appeal has merit, though, for it has none; but because the appeal cannot ever be won and the ends of justice, as well as judicial economy, require that it be disposed of now, rather than a year or two from now after this process is repeated to the inconvenience of parties and courts alike.

As plaintiff has recognized, all but one of the court’s actions addressed by this appeal — refusing to compel discovery and sanctioning for its abuse; refusing to permit plaintiff to amend the complaint and to rehear and reconsider the previous orders — were discretionary. American Telephone and Telegraph Co. v. Griffin, 39 N.C. App. 721, 251 S.E. 2d 885, disc. rev. denied, 297 N.C. 304, 254 S.E. 2d 921 (1979); Williams v. State Farm Mutual Automobile Insurance Co, 67 N.C. App. 271, 312 S.E. 2d 905 (1984); Rule 60(b), N.C. Rules of Civil Procedure; Burwell v. Wilkerson, 30 N.C. App. 110, 226 S.E. 2d 220 (1976). To upset such an act clear abuse must be shown. Clark v. Clark, 301 N.C. 123, 271 S.E. 2d 58 (1980). Judicial action supported by reason is not an abuse of discretion. White v. White, 312 N.C. 770, 324 S.E. 2d 829 (1985). It is also the law that a trial court’s unchallenged findings of fact are binding upon appeal, In re Sterling, 63 N.C. App. 562, 305 S.E. 2d 769 (1983), and the order appealed from contains unchallenged findings of fact and conclusions of law that clearly support all the discretionary rulings made. Among the findings plaintiff has not assailed, and that are now unassailable, are that plaintiff’s motion to produce “sought the production of the very documents” Judge Allen had denied by a prior order; that plaintiff’s second set of interrogatories and third request to produce to IRI were “beyond the scope of permissible discovery” and were “not reasonably calculated to lead to discoverable matters”; that plaintiff’s motion to amend the complaint had been considered and ruled upon twice and was not “offered in good faith” and would serve “primarily to delay these actions and prejudice the defendants.” These and other facts which support the order having been judicially established as a matter of law, plaintiff’s arguments that the court’s actions constituted an abuse of discretion have no foundation.

Though we have addressed the correctness of the court’s discretionary rulings and will address the correctness of the ruling that was not, these questions were not really raised by plaintiff’s appeal. Since the court’s findings of fact and conclusions of law were not challenged in any authorized way, the only questions that plaintiff’s appeal really raised are whether the facts found support the order, and whether error of law appears on the face of the order, Motor Inn Management, Inc. v. Irvin-Fuller Development Co., Inc., 46 N.C. App. 707, 266 S.E. 2d 368, disc. rev. denied, appeal dismissed, 301 N.C. 93, 273 S.E. 2d 299 (1980); questions that have already been answered adverse to the appellant. In getting the appeal underway plaintiff merely wrote numbered exceptions next to findings of fact and other parts of the order, not one of which, though, was followed by an assignment of error stating that a finding of fact or conclusion of law was invalid for any reason whatever. Writing in a numbered exception next to a finding of fact or conclusion of law does not raise a legal issue as to its validity; to raise a legal issue on appeal as to the validity of a finding of fact or conclusion of law, in addition to excepting to it it is also necessary to state by an assignment of error why the finding or conclusion is claimed to be erroneous. Rule 10(c), N.C. Rules of Appellate Procedure. Furthermore, plaintiff has not argued in the brief that any of the findings were invalid, or that the findings do not support the conclusions and order, but has argued that the various actions of the court were erroneous or an abuse of discretion for reasons irrelevant to the foundation upon which the actions rest.

The court’s one nondiscretionary action — dismissing the unfair or deceptive practice claim against Alexander & Alexander— was entirely proper. For even if the claim was not dismissed by Judge Allen’s order dismissing that claim against IRI, as it arguably was since the claim against both defendants was stated in the same three paragraphs, and Judge Allen ruled that the allegations failed to “state a claim . . . upon which relief may be granted,” Judge Snepp did not err in dismissing it. Because a necessary element of a claim for unfair or deceptive practices in the business of insurance, which must be alleged according to Marshburn v. Associated Indemnity Corp., 84 N.C. App. 365, 354 S.E. 2d 752, disc. rev. denied, 319 N.C. 673, 356 S.E. 2d 779 (1987), is that the forbidden act complained of was done “with such frequency as to indicate a general business practice,” G.S. 58-54.4(11); and the only factual allegation bearing thereon in this claim was that defendants “knowingly misrepresented the plaintiff’s insurance coverage and failed to act with reasonable promptness in response to plaintiff’s claim.”

Affirmed.

Judges JOHNSON and Cozort concur.