PRINTING SERVICES OF GREENSBORO, INC. v. AMERICAN CAPITAL GROUP, INC.
No. COA06-190
IN THE COURT OF APPEALS
Filed 7 November 2006
[180 N.C. App. 70 (2006)]
PRINTING SERVS. OF GREENSBORO, INC. v. AMERICAN CAPITAL GRP., INC., [180 N.C. App. 70 (2006)]
617 S.E.2d 1, 30 (2005), cert. denied, — U.S. —, 164 L. Ed. 2d 523, 126 S. Ct. 1773 (2006).
Defendant contends that counsel provided ineffective assistance through inactivity during jury selection, through stipulation to the identity of the victim‘s remains in exchange for the exclusion of evidence defense counsel later introduced and through reference to an inadmissible polygraph examination during opening statements. In addition, defendant alleges ineffective assistance arising out of unrecorded bench conferences concerning evidentiary matters. Each of the specific areas in which defendant claims his counsel‘s performance was deficient involved counsel‘s trial strategy. In matters of trial strategy, counsel is given wide latitude and there is a presumption that counsel‘s performance is within the boundaries of reasonable professional assistance. The record before us is insufficient for us to determine whether counsel‘s conduct was objectively deficient, and, if so, whether it deprived defendant of a fair trial. See Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674 (1984). The merits of defendant‘s claim, if any, cannot be determined from the “cold record” and require further evidentiary development. Therefore, we dismiss defendant‘s assignments of error relating to his ineffective assistance of counsel claim, without prejudice to his right to assert them in a motion for appropriate relief pursuant to
No error.
Judges ELMORE and LEVINSON concur.
PRINTING SERVICES OF GREENSBORO, INC., PLAINTIFF V. AMERICAN CAPITAL GROUP, INC., DEFENDANT
No. COA06-190
(Filed 7 November 2006)
1. Venue— abuse of discretion standard—mandatory selection clause—exclusivity language required
The trial court did not abuse its discretion in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by denying defendant‘s motion for change of venue based on a clause in the lease agreement stat-ing the lease has been performed and entered into in the County of Orange, State of California, the parties consented to jurisdiction in Orange County, and the parties waived any rights to a trial by jury, because: (1) the general rule is when a jurisdiction is specified in a provision of a contract, the provision generally will not be enforced as a mandatory selection clause without some further language indicating the parties intended to make jurisdiction exclusive; and (2) the pertinent clause contained no language indicating the parties agreed to venue exclusively in California, but merely that a court in Orange County, California would have jurisdiction.
2. Brokers— loan broker—Loan Broker Act
The trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by determining that the Loan Broker Act is applicable to the instant case, because: (1) a loan broker promised to make or consider making a loan to a corporation, and in fact received consideration in exchange for the loan; (2) defendant is not precluded from being considered a loan broker governed by the Loan Broker Act simply based on the fact that the party for whom the loan is intended is a corporation and not an individual; (3) although the terms of the agreement provide that the lease was performed and entered into in California, not North Carolina, the language of the agreement is permissive rather than mandatory; and (4)
3. Broker— loan broker—breach of Loan Broker Act—summary judgment
The trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by granting summary judgment in favor of plaintiff, because: (1) defendant met the definition of a loan broker under
4. Damages and Remedies— calculation—failure to comply with loan broker statutes
The trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by its calculation of damages, because: (1)
5. Costs— attorney fees—reasonableness
Although the trial court did not err in an action seeking damages for failure to comply with the Loan Broker Act and for breach of contract by its award of attorney fees under
Judge GEER concurring in part and dissenting in part.
Appeal by defendant from judgment entered 8 November 2005 by Judge Catherine C. Eagles in Guilford County Superior Court. Heard in the Court of Appeals 23 August 2006.
The Wescott Law Firm P.C., by Lynanne B. Wescott, for defendant-appellant.
JACKSON, Judge.
American Capital Group, Inc. (“defendant“) appeals from orders of the Guilford County Superior Court denying its motion for change of venue and granting a motion for summary judgment and award brought by Printing Services of Greensboro, Inc. (“plaintiff“).
Plaintiff applied for financing with defendant by signing a proposed sixty-month lease agreement on 10 October 2003 and surrendering a deposit of $1,447.72. Said agreement was never signed by defendant and did not contain a description of the equipment to be leased. No equipment was ever delivered
Plaintiff filed suit on 15 November 2004, seeking damages for failure to comply with
Plaintiff filed a motion for summary judgment on 31 August 2005, seeking damages in the amount of $1,447.72, treble damages, and attorney‘s fees. The motion for summary judgment was heard on 31 October 2005, and in an order entered 8 November 2005, the motion was granted in favor of plaintiff, with damages assessed at $4,343.16 and attorney‘s fees ordered in the amount of $4,707.76. Defendant filed a notice of appeal on 5 December 2005.
Defendant argues five issues on appeal: 1) the trial court erred in denying defendant‘s motion for change of venue; 2) the trial court erred in determining that the Loan Broker Act applied to defendant; 3) the trial court erred in granting summary judgment; 4) the trial court erred in its calculation of damages; and 5) the trial court erred in the award of attorney‘s fees. For the reasons stated below, we affirm in part, and reverse and remand in part.
[1] Defendant first argues the trial court erred in denying its motion for change of venue. With respect to the trial court‘s decision concerning clauses on venue selection, this Court applies an abuse of discretion standard of review. Mark Grp. Int‘l Inc. v. Still, 151 N.C. App. 565, 566, 566 S.E.2d 160, 161 (2002). “Under the abuse-of-discretion standard, we review to determine whether a decision is manifestly unsupported by reason, or so arbitrary that it could not have been the result of a reasoned decision.” Id.
The clause in question in the instant case reads, “YOU AGREE THAT THIS LEASE HAS BEEN PERFORMED AND ENTERED INTO IN THE COUNTY OF ORANGE, STATE OF CALIFORNIA, YOU CONSENT TO JURISDICTION IN ORANGE COUNTY, YOU EXPRESSLY WAIVE ANY RIGHTS TO A TRIAL BY JURY.”
[T]he general rule is when a jurisdiction is specified in a provision of contract, the provision generally will not be enforced as a mandatory selection clause without some further language that indicates the parties’ intent to make jurisdiction exclusive. Indeed, mandatory forum selection clauses recognized by our appellate courts have contained words such as “exclusive” or “sole” or “only” which indicate that the contracting parties intended to make jurisdiction exclusive.
Id. at 568, 566 S.E.2d at 162 (internal citations omitted). The clause in question contains no such language indicating the parties agreed to venue exclusively in California, merely that a court in Orange County, California would have jurisdiction. Therefore, the trial court did not abuse its discretion in denying defendant‘s motion for change of venue.
[2] Defendant next contends the trial court erred in determining that the Loan Broker Act is applicable in the instant case. Specifically, defendant argues that: 1) defendant is not a “loan broker;” 2) plaintiff is not a “person;” and 3) the actions attendant upon the agreement were not conducted in North Carolina. As defendant‘s first and second arguments are intertwined, we address them together.
“Questions of statutory interpretation are questions of law, which are reviewed de novo by an appellate court.” In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App. 558, 559, 589 S.E.2d 179, 180 (2003). “The cardinal principle of statutory interpretation is to ensure that legislative
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.
We are guided in our review by several principles of statutory construction.
[T]he judiciary must give “clear and unambiguous” language its “plain and definite meaning.” However, strict literalism will not be applied to the point of producing “absurd results.” When the
plain language of a statute proves unrevealing, a court may look to other indicia of legislative will, including: “the purposes appearing from the statute taken as a whole, the phraseology, the words ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied, the remedy, the end to be accomplished, statutes in pari materia, the preamble, the title, and other like means.” The intent of the General Assembly may also be gleaned from legislative history. Likewise, “later statutory amendments provide useful evidence of the legislative intent guiding the prior version of the statute.” Statutory provisions must be read in context: “Parts of the same statute dealing with the same subject matter must be considered and interpreted as a whole.” “Statutes dealing with the same subject matter must be construed in pari materia, as together constituting one law, and harmonized to give effect to each.”
Proposed Assessments, 161 N.C. App. at 560, 589 S.E.2d at 181 (internal citations omitted).
It is noteworthy that the resource used by many in North Carolina‘s legal community includes no reference to whom a loan is made or contemplated in its recitation of the definition of a loan broker. “For purposes of N.C. Gen. Stat. Chapter 66, Article 20, a ‘loan broker’ is any person, firm, or corporation who, with certain exceptions, in return for any consideration, promises to procure or assist in procuring a third party loan, or considers whether or not it will make the loan.” 4 Strong‘s North Carolina Index 4th Brokers and Factors § 20 (2001). There is little case law interpreting the term “loan broker,” however, we find the recent case of 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), to be instructive.
In Johnson, Mr. Wornom, an alleged “loan broker,” agreed to guarantee a Capital Bank loan of $82,000.00 to Dexter Sports Supplements, Inc. and Powerstar, Inc., both North Carolina “corporations.” Id. at 790, 606 S.E.2d at 373. As consideration, Wornom was granted, inter alia, management rights in the two businesses. Id. Charles Johnson (“Johnson“), the founder of Dexter Sports Supplements, Inc. and Powerstar, Inc., brought suit against Wornom, alleging that Wornom failed to fulfill his obligations as a loan broker, pursuant to
Defendant also contends the provisions of
[3] In its next argument, defendant questions whether the trial court erred in granting summary judgment in plaintiff‘s favor. ” ‘We review the trial court‘s grant of summary judgment de novo.’ ” Johnson, 167 N.C. App. at 791, 606 S.E.2d at 374 (quoting White v. Consolidated Planning, Inc., 166 N.C. App. 283, 296, 603 S.E.2d 147, 157 (2004)).
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” “A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party‘s claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim.” “If the moving party satisfies its burden of proof, then the burden shifts to the non-moving party to ‘set forth specific facts showing that there is a genuine issue for trial,’ or, alternatively, must produce an excuse for not doing so. ‘The nonmoving party may not rest upon the mere allegations of his pleadings.’ ” Thus where, “the moving party by affidavit or otherwise presents materials in support of his motion, it becomes incumbent upon the opposing party to take affirmative steps to defend his position by proof of his own. If he rests upon the mere allegations or denial of his pleading, he does so at the risk of having judgment entered against him.”
Wall v. Fry, 162 N.C. App. 73, 76-77, 590 S.E.2d 283, 285 (2004) (internal citations omitted). The material facts of this case involve: 1) whether defendant was a loan broker; 2) if so, whether defendant failed to fully comply with the Loan Broker Act; and 3) if so, whether defendant failed to fully refund plaintiff‘s advanced funds.
A “loan broker” includes 1) any corporation who, 2) in return for any consideration, 3) promises to consider whether or not it will make 4) a loan. See
The Loan Broker Act requires loan brokers to provide a disclosure statement and surety bond or trust account. See
The Loan Broker Act entitles the borrower to receive a refund of all sums paid to the broker upon written notice. Defendant further provided no evidence in dispute of the fact that plaintiff paid $1,447.72 to defendant upon signing the lease agreement and that plaintiff requested a refund in writing. Defendant provided no evidence to dispute the fact that it failed to refund the full $1,447.72 to plaintiff. In fact, in support of its contention that the calculation of damages was erroneous, defendant argued the fact that it had proffered a partial refund. Therefore, there is no genuine issue of material fact as to defendant‘s failure to fully refund plaintiff‘s advanced funds.
As there were no genuine issues of material fact in dispute, we hold the trial court did not err in granting summary judgment in plaintiff‘s favor.
[4] In its fourth argument, defendant contends that the trial court erred in its calculation of damages.
Defendant argues that the proffered $697.72 refund should have been credited prior to trebling. However, in Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 416, 363 S.E.2d 643, 652 (1988), this Court held that it was error to credit monies received by plaintiff in settlement prior to trebling the actual award. In addition, in its answer to the complaint, defendant denied the allegation in plaintiff‘s complaint which alleged that defendant had mailed a check for $697.72 to plaintiff as a partial refund. Defendant cannot deny the check existed, and then argue the check was proffered and should be credited to it.
Defendant further argues that credit should have been given for payments proffered even if they were refused. However, in Washburn v. Vandiver, 93 N.C. App. 657, 379 S.E.2d 65 (1989), the holding of Seafare Corp. was applied where the purchasers of a truck refused a refund that was less than all sums paid for the truck. In that case, the purchasers had not yet paid for the truck in full. Defendant successfully brought a counterclaim for the unpaid balance. This Court upheld the trial court‘s trebling of the full award to plaintiffs, despite the offer of partial refund, followed by an offset for the money remaining due to defendant. Id. at 664, 379 S.E.2d at 69-70. There is no evidence showing that plaintiff in the instant case has retained any money in settlement of this matter which could serve to offset any money due to plaintiff. Therefore, we hold the trial court did not err in calculating plaintiff‘s damages, and defendant‘s assignment of error is overruled.
[5] Finally, defendant argues the trial court erred in the award of attorney‘s fees. Attorney‘s fees are authorized in this case pursuant to two statutes:
The decision whether or not to award attorney fees under section 75-16.1 rests within the sole discretion of the trial judge. And if fees are awarded, the amount also rests within the discretion of the trial court and we review such awards for abuse of discretion. However, when awarding fees pursuant to N.C. Gen. Stat. § 75-16.1, the court must make specific findings of fact that the actions of the party charged with violating Chapter 75 were willful, that it refused to resolve the matter fully, and that the attorney fee was reasonable. . . . On appeal, the record must also contain findings regarding the attorney fees, such as: “findings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney.”
Blankenship v. Town & Country Ford, Inc., 174 N.C. App. 764, 771, 622 S.E.2d 638, 643 (2005) (citation omitted). The trial court in the instant case found the following as fact: defendant willfully collected an advance fee in violation of section 66-108(c); defendant refused to fully resolve the matter; and the attorney‘s fees were reasonable.
It is well-settled that a trial court‘s findings of fact are binding upon appeal if they are supported by competent evidence, even when there may be evidence to the contrary. See Mason v. Town of Fletcher, 149 N.C. App. 636, 639, 561 S.E.2d 524, 526 (2002). As there was no record of the summary judgment hearing, we have little to guide us in determining if the findings made were supported by competent evidence. However, it is clear that in October 2003, defendant accepted $1,447.72 from plaintiff in advance of its acceptance of the lease agreement. Six months later, an agreement had not yet been reached. We hold this to be evidence that defendant acted willfully, and not by accident or mistake.
Although there is some evidence that defendant attempted to resolve the matter, any attempt was only in partial satisfaction of defendant‘s obligations under the Loan Broker Act. Defendant argues that in addition to the proffered $697.72, an offer to settle was made on 19 July 2004 as evidenced by an entry in plaintiff‘s affidavit for attorney‘s fees which reads, “Receive offer from PSG and advise client.” Defendant contends that presumably the attorney meant “ACG” rather than “PSG” because PSG could not make itself an offer. However, nowhere in the affidavit does the attorney refer to defend-ant as “ACG.” Rather, twice he refers to defendant as “American Capital.” Further, defendant offers no proof that such an offer was made on that date in an amount of full satisfaction. Plaintiff‘s affidavit reflects that in March 2005, plaintiff‘s attorney was engaged in drafting a settlement letter to opposing counsel. This letter may have been
Although the order included a statement of the hourly billing rates, it did not include “findings regarding the time and labor expended, the skill required to perform the services rendered, the customary fee for like work, and the experience and ability of the attorney.” See Blankenship, 174 N.C. App. at 771, 622 S.E.2d at 643. Without these findings, we are unable to determine the reasonableness of the trial court‘s award.
Having determined that defendant failed to fully comply with the Loan Broker Act, the trial court was obligated pursuant to
We hold there is no error at the trial court level, with the exception of the reasonableness of the attorney‘s fees. We therefore remand this cause for entry of findings of fact regarding the award of attorney‘s fees, including attorney‘s fees for this appeal.
Affirmed in part; Reversed and remanded in part.
Judge CALABRIA concurs.
Judge GEER concurs in part and dissents in part by separate opinion.
GEER, 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,
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.
“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
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
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-
struction 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
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
Second, I read
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 (1993) (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.