{
  "id": 8527477,
  "name": "WILLIAM M. ADAMS and wife, ANN C. ADAMS, Plaintiffs v. JIM JONES and AUTO MART, INC. a/k/a SMITHFIELD FORD LINCOLN MERCURY, INC., Defendants",
  "name_abbreviation": "Adams v. Jones",
  "decision_date": "1994-04-05",
  "docket_number": "No. 9311SC652",
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    "judges": [
      "Judges ORR and WYNN concur."
    ],
    "parties": [
      "WILLIAM M. ADAMS and wife, ANN C. ADAMS, Plaintiffs v. JIM JONES and AUTO MART, INC. a/k/a SMITHFIELD FORD LINCOLN MERCURY, INC., Defendants"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nInitially, we note that the judgment appealed from is interlocutory because, by reserving judgment on the issues of punitive damages and attorney\u2019s fees, the trial court\u2019s judgment fails to dispose of the entire case. Veazey v. Durham, 231 N.C. 357, 57 S.E.2d 277, reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). Since the judgment appealed from does not affect a substantial right, defendants\u2019 appeal is subject to dismissal. N.C. Gen. Stat. \u00a7\u00a7 1-277 and 7A-27. However, to expedite a decision in this case in order to promote judicial economy, pursuant to Rule 2 of the Rules of Appellate Procedure, we suspend the appellate rules and treat defendants\u2019 appeal as a petition for certiorari under Rule 21(a)(1) and grant it. Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 404 S.E.2d 176, rev. denied, 329 N.C. 497, 407 S.E.2d 534 (1991).\nThe forecast of evidence reveals that Alfred Coats embezzled $54,000 from Smithfield while he was employed as the credit manager. Paragraph ten of the contract provides:\nThat in consideration of Coats and Adams paying said monies as noted hereinabove, Smithfield Ford agrees to abstain from pursuing any legal remedies available to it including both civil and criminal prosecution. However, it is clearly understood and agreed by the parties that in the event that either Coats or Adams fail to make timely payments as set forth hereinabove, Smithfield Ford is free to pursue all remedies available to it including both civil and criminal.\nOn 10 August 1988, plaintiffs began repaying their debt as set forth in the contract and promissory note. Plaintiffs made 31 payments, 25 to defendant Jim Jones and 6 to defendant Smithfield, totaling $10,043.37. Plaintiffs made their last payment on 10 October 1991. On 6 November 1992, the attorney for defendant Jones notified plaintiffs that unless they made all past due payments foreclosure proceedings would be commenced.\nThe well-settled law in this State is that \u201cexecutory agreements . . . made in consideration of preventing, refraining, or suppressing prosecution of a crime are void as against public policy.\u201d See Gillikin v. Whitley, 66 N.C. App. 694, 311 S.E.2d 677 (1984) and cases cited and relied upon therein. As the foregoing language from the contract discloses, plaintiffs signed the contract, note, and deed of trust in exchange for Smithfield\u2019s promise not to pursue criminal action against Alfred Coats. We therefore hold that the contract, note, and deed of trust are void as against public policy.\nG.S. \u00a7 75-1.1 declares unlawful \u201cunfair or deceptive acts or practices in or affecting commerce.\u201d For plaintiffs to be entitled to recover damages under \u00a7 75-16, they must show that defendants\u2019 conduct was \u201cin or affecting commerce\u201d and \u201cunfair.\u201d A .practice is unfair if it offends established public policy. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981). Based on our holding that the contract, note, and deed of trust executed by plaintiffs are void as against public policy, the only remaining question is whether defendants\u2019 conduct was \u201cin or affecting commerce.\u201d For purposes of G.S. \u00a7 75-1.1, commerce \u201cincludes all business activities, however denominated, but does not include professional services rendered by a member of a learned profession.\u201d Since defendants\u2019 purpose in executing the contract, note, and deed of trust was to recover the money embezzled by Alfred Coats and thereby to protect the financial interests of Smithfield, defendants\u2019 acts were \u201cin or affecting commerce.\u201d\nThe trial court properly granted partial summary judgment in favor of plaintiffs because, on the basis of the materials presented to the trial court, there existed no genuine issues of material fact, and plaintiffs were entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56 of the Rules of Civil Procedure. We note that should plaintiffs succeed in their claim to recover punitive damages they will be required to elect between that recovery and the recovery allowed by the partial summary judgment we have affirmed. See Mapp v. Toyota World, Inc., 81 N.C. App. 421, 344 S.E.2d 297, rev. denied, 318 N.C. 283, 347 S.E.2d 464 (1986).\nAccordingly, the order appealed from is\nAffirmed.\nJudges ORR and WYNN concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for plaintiffs-appellees.",
      "Hewett and Hewett, by Alan B. Hewett, for defendants-appellants."
    ],
    "corrections": "",
    "head_matter": "WILLIAM M. ADAMS and wife, ANN C. ADAMS, Plaintiffs v. JIM JONES and AUTO MART, INC. a/k/a SMITHFIELD FORD LINCOLN MERCURY, INC., Defendants\nNo. 9311SC652\n(Filed 5 April 1994)\n1. Appeal and Error \u00a7 119 (NCI4th)\u2014 action on note \u2014summary judgment \u2014punitive damages and attorney fees reserved \u2014 interlocutory \u2014appeal heard to promote judicial economy\nAn appeal was treated as a petition for certiorari in order to promote judicial economy where plaintiff filed an action seeking to enjoin foreclosure under a note, to have the contract, note, and deed of trust cancelled, and to recover damages under N.C.G.S. \u00a7 75-1.1; and the trial court granted partial summary judgment for plaintiff but expressly reserved the issues of punitive damages and attorney\u2019s fees for future determination. The judgment was interlocutory because it failed to dispose of the entire case.\nAm Jur 2d, Appeal and Error \u00a7 104.\n2. Contracts \u00a7 43 (NCI4th)\u2014 foreclosure on note \u2014given in forbearance of criminal prosecution \u2014void\nA contract, note, and deed of trust given in exchange for a promise not to pursue a criminal embezzlement action were void as against public policy.\nAm Jur 2d, Contracts \u00a7\u00a7 272-274, 278.\n3. Unfair Competition \u00a7 1 (NCI3d)\u2014 note \u2014given in forbearance of criminal prosecution \u2014Chapter 75 violation\nThe trial court properly granted partial summary judgment for plaintiffs on a claim for unfair or deceptive acts under N.C.G.S. \u00a7 75-1.1 where plaintiffs entered into a contract and executed a note and deed of trust in consideration of defendant abstaining from criminal or civil remedies for embezzlement. A practice is unfair if it offends established public policy, as this does, and defendants\u2019 acts were in or affecting commerce since their purpose in executing the note was to recover embezzled money and to protect the financial interest of their business.\nAm Jur 2d, Contracts \u00a7 292.\nAppeal by defendants from order signed 23 March 1993 in Johnston County Superior Court by Judge William C. Gore, Jr. Heard in the Court of Appeals 9 March 1994.\nOn 13 June 1988, Alfred Coats and plaintiffs, Ann C. Adams, his mother, and William M. Adams, his step-father, entered into a contract with Smithfield Ford, Lincoln, Mercury, Incorporated (hereinafter Smithfield). The terms of the contract obligate plaintiffs to pay, over a period of time, a total of $25,000 to Smithfield. Plaintiffs executed a promissory note in the amount of $25,000 in favor of Smithfield. Smithfield is also the beneficiary of a deed of trust executed by plaintiffs to secure their debt. Defendant Jim Jones is the president and sole shareholder of defendant Auto Mart, Incorporated, formerly called Smithfield.\nPlaintiffs filed this action on 29 December 1992 seeking to: (1) enjoin defendants from foreclosing under the terms of the note and deed of trust; (2) have the contract, note, and deed of trust cancelled; and (3) recover damages for defendants\u2019 violation of G.S. \u00a7 75-1.1. Plaintiffs moved for summary judgment. On 23 March 1993, the trial court granted partial summary judgment cancelling the contract, note, and deed of trust and awarding plaintiffs compensatory damages which it then trebled under G.S. \u00a7 75-16. The trial court expressly reserved the issues of punitive damages and attorney\u2019s fees for future determination. Defendants appeal.\nArmstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr., for plaintiffs-appellees.\nHewett and Hewett, by Alan B. Hewett, for defendants-appellants."
  },
  "file_name": "0256-01",
  "first_page_order": 284,
  "last_page_order": 288
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