Graham v. Mid-State Oil Co.

79 N.C. App. 716 | N.C. Ct. App. | 1986

JOHNSON, Judge.

Plaintiff first contends that it was error for Judge Stevens to dismiss plaintiffs second cause of action based on Judge Stevens’ conclusion that Judge Llewellyn’s order implicitly precluded plaintiff from litigating the cause of action regarding an allegedly unfair trade practice. We affirm Judge Stevens’ order to dismiss, but we arrive at this result on appeal for reasons other than those stated in Judge Stevens’ order.

A review of the record discloses that although plaintiff assigned error to the entry of partial summary judgment by Judge Llewellyn, plaintiff failed to present and discuss this assignment of error in his brief. Hence, this exception is deemed abandoned and Judge Llewellyn’s ruling that summary judgment for defendant on plaintiff’s first cause of action, conversion, and summary judgment for defendant on its counterclaim are conclusive on appeal. Rule 28(a), N.C. Rules App. P. Regarding plaintiff s conversion claim, plaintiff alleged in the complaint that “defendant did wrongfully assume and exercise the right of ownership over these two accounts which were the property of the plaintiff and has refused to return said property to the plaintiff and has wrongfully deprived the plaintiff owner of his right to the property.” In defendant’s counterclaim defendant alleged that $19,006.64 “was due and owing to defendant after defendant had applied all credits lawfully due and owing to plaintiff and all payments made by plaintiff.” (Emphasis added.) In granting partial summary judgment Judge Llewellyn made a judicial determination that no material issue of fact existed as to either of these two claims. Rule 56, N.C. Rules Civ. P. Accepting as given that (1) summary judgment for defendant on plaintiffs first cause of action and summary judgment for defendant on defendant’s counterclaim are conclusive and (2) there is no factual dispute regarding the above allegations, we hold that it necessarily follows that plaintiff cannot prevail as a matter of law on his second cause of action. The following facts, which are conclusive on this appeal, necessarily arise from the entry of summary judgment on plaintiffs first cause of action and defendant’s counterclaim: (1) defendant did not wrongfully assume and exercise the right of ownership of plaintiffs “savings”; (2) defendant did not wrongfully deprive plaintiff of his right to the “savings”; and (3) defendant applied all credits lawfully due and owing plaintiff and all payments made by plaintiff. Therefore, defendant’s withholding and appropriation of the “savings” cannot be a wrongful act upon which to base an unfair trade practice claim as alleged by plaintiff. To hold otherwise would result in an inconsistent judgment. Inconsistent judgments are erroneous. 8 Strong’s N.C. Index 3d Judgment sec. 4 (1977). Plaintiff’s second cause of action should have been dismissed.

Because the issue raised by plaintiff in his first Assignment of Error is dispositive of the case, we need not address plaintiff s second and only other Assignment of Error.

Dismissal by Judge Stevens of the second cause of action of plaintiffs complaint is

Affirmed.

Judges WHICHARD and PHILLIPS concur.