{ "id": 8895838, "name": "MOHAMED SALEH ZUBAIDI and ABDO A. HAFEED, Plaintiffs v. EARL L. PICKETT ENTERPRISES, INC. and EARL L. PICKETT, Defendants", "name_abbreviation": "Zubaidi v. Earl L. Pickett Enterprises, Inc.", "decision_date": "2004-05-04", "docket_number": "No. COA03-685", "first_page": "107", "last_page": "120", "citations": [ { "type": "official", "cite": "164 N.C. App. 107" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4713937 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0523-01" ] }, { "cite": "328 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524781 ], "year": 1985, "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0413-01" ] }, { "cite": "201 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "903" } ], "opinion_index": 0 }, { "cite": "284 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563409 ], "year": 1974, "pin_cites": [ { "page": "584-85" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0576-01" ] }, { "cite": "76 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "pin_cites": [ { "page": "328" } ], "opinion_index": 0 }, { "cite": "238 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598575 ], "year": 1953, "pin_cites": [ { "page": "45" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0042-01" ] }, { "cite": "450 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "497", "parenthetical": "citing Hunt v. Wooten, 238 N.C. 42, 45, 76 S.E.2d 326, 328 (1953)" }, { "page": "497" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 152", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524631 ], "year": 1994, "pin_cites": [ { "page": "163", "parenthetical": "citing Hunt v. Wooten, 238 N.C. 42, 45, 76 S.E.2d 326, 328 (1953)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0152-01" ] }, { "cite": "511 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "346", "parenthetical": "concluding that there was no abuse of discretion by the trial court in denying a defendant's motion for a new trial where the jury awarded the plaintiff $1.00 in compensatory damages and $85,000.00 in punitive damages for criminal conversation" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 323", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237709 ], "year": 1999, "pin_cites": [ { "page": "328", "parenthetical": "concluding that there was no abuse of discretion by the trial court in denying a defendant's motion for a new trial where the jury awarded the plaintiff $1.00 in compensatory damages and $85,000.00 in punitive damages for criminal conversation" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0323-01" ] }, { "cite": "280 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 161", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520127 ], "year": 1981, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0161-01" ] }, { "cite": "514 S.E.2d 554", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "562", "parenthetical": "quoting Carawan v. Tate, 53 N.C. App. 161, 165, 280 S.E.2d 528, 531 (1981)" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219728 ], "year": 1999, "pin_cites": [ { "page": "375", "parenthetical": "quoting Carawan v. Tate, 53 N.C. App. 161, 165, 280 S.E.2d 528, 531 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0364-01" ] }, { "cite": "509 U.S.-, 125", "category": "reporters:federal", "reporter": "U.S.", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "452 S.E.2d 589", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "597" }, { "page": "597" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 468", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525809 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "478" }, { "page": "478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0468-01" ] }, { "cite": "499 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11317824 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/us/499/0001-01" ] }, { "cite": "378 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482087, 2482122, 2482350, 2485396, 2484925 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0246-03", "/nc/324/0246-05", "/nc/324/0246-01", "/nc/324/0246-04", "/nc/324/0246-02" ] }, { "cite": "373 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "468" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526351 ], "year": 1988, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0059-01" ] }, { "cite": "317 S.E.2d 372", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "311 N.C. 361", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4680376 ], "year": 1984, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0361-01" ] }, { "cite": "297 S.E.2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "307 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561451 ], "year": 1982, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0258-01" ] }, { "cite": "313 S.E.2d 603", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "606", "parenthetical": "quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982)" }, { "page": "606" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526967 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "626", "parenthetical": "quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982)" }, { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0622-01" ] }, { "cite": "225 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "808-09", "parenthetical": "internal citations omitted" }, { "page": "809" } ], "opinion_index": 0 }, { "cite": "290 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560682 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "136", "parenthetical": "internal citations omitted" }, { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0118-01" ] }, { "cite": "522 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "76" } ], "opinion_index": 0 }, { "cite": "351 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155673 ], "year": 1999, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0166-01" ] }, { "cite": "272 S.E.2d 357", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "360" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 642", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523168 ], "year": 1980, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0642-01" ] }, { "cite": "350 S.E.2d 103", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "106" }, { "page": "106" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358444 ], "year": 1986, "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0289-01" ] }, { "cite": "215 S.E.2d 573", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564778 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0053-01" ] }, { "cite": "231 S.E.2d 591", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "595", "parenthetical": "quoting Accord Rose v. Motor Sales, 288 N.C. 53, 215 S.E.2d 573 (1975)" }, { "page": "595" } ], "opinion_index": 0 }, { "cite": "291 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558884 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "653", "parenthetical": "quoting Accord Rose v. Motor Sales, 288 N.C. 53, 215 S.E.2d 573 (1975)" }, { "page": "653" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0646-01" ] } ], "analysis": { "cardinality": 987, "char_count": 28295, "ocr_confidence": 0.74, "pagerank": { "raw": 1.0154121788870884e-07, "percentile": 0.5433166180731 }, "sha256": "5ccc2ee7d962aaa21a6b4a63a2797fed65e1dbde688b473bc7b808c8ec29b26c", "simhash": "1:01eee171385c097e", "word_count": 4433 }, "last_updated": "2023-07-14T17:15:16.246957+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and HUNTER concur." ], "parties": [ "MOHAMED SALEH ZUBAIDI and ABDO A. HAFEED, Plaintiffs v. EARL L. PICKETT ENTERPRISES, INC. and EARL L. PICKETT, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nEarl L. Pickett Enterprises, Inc. and Earl L. Pickett (\u201cPickett\u201d) (collectively, \u201cdefendants\u201d) appeal from a judgment entered after a jury\u2019s verdict finding defendants guilty of breaching the lease/ purchase agreement and awarding Mohamed Saleh Zubaidi and Abdo A. Hafeed (collectively, \u201cplaintiffs\u201d) compensatory and punitive damages.\nI. Background\nOn 10 July 1998, plaintiffs and defendants entered into a lease/purchase agreement. Under this agreement, plaintiffs acquired business assets from defendants, including the right to operate a convenience store and gas station known as the Town N\u2019 Country Superette (\u201cthe' store\u201d). The purchase price for the sale was $235,000.00. Plaintiffs paid $100,000.00 at closing and executed a promissory note for $135,000.00 for the balance. The parties also entered into a five-year lease for the real estate and fixtures located on the property, including \u201cthe right to use all adjoining parking areas, driveways, sidewalks, roads, alleys and means of ingress and egress ....\u201d The lease contained options to renew for three additional five-year terms.\nA material condition of the sale was for plaintiffs to be approved as distributors for the Cary Oil Company under \u201cterms and conditions satisfactory\u201d to plaintiffs. Prior to the filing of the lawsuit, defendants refused to assist in the transfer of the distributorship to plaintiffs. On or about 8 March 2000, Pickett entered the store and removed the alcohol and tobacco sales licenses. Plaintiffs ceased operation of their business until they obtained new licenses.\nOn or about 12 March 2000, Pickett forcibly entered and operated the store and sold plaintiffs\u2019 inventory. On 15 March 2000 the trial court issued a temporary restraining order (\u201cTRO\u201d) directing defendants to vacate the premises and prohibiting them from taking any further action regarding the store. On 21 March 2000, the trial court issued a preliminary injunction finding that defendants \u201cfailed to provide adequate notice and an adequate basis for the retaking of possession of the leased premises\u201d and leaving the TRO in place. On 23 March 2000, plaintiffs arrived at the store and found Pickett removing inventory in violation of the preliminary injunction. Plaintiffs contacted the Durham County Sheriffs Department, and Pickett was ordered to return all items that he had removed. Upon further inspection of the store, plaintiffs found numerous items to be missing, including cash, merchandise, and equipment.\nPlaintiffs brought suit against defendants alleging breach of the lease/purchase agreement, conversion, unfair and deceptive trade practices, and seeking compensatory and punitive damages. Plaintiffs also prayed for a permanent injunction enjoining further interference with their operation of the store. The jury found defendants breached the lease/purchase agreement, that plaintiffs had not breached the lease/purchase agreement, and awarded plaintiffs compensatory and punitive damages. The trial court denied defendants\u2019 motion for judgment notwithstanding the verdict and motion to set aside the verdict and for a new trial. Defendants appeal.\nII. Issues\nThe issues are whether the trial court erred in: (1) allowing plaintiffs\u2019 verbal motion to further amend the complaint to allege a claim for punitive damages, (2) submitting the issue of punitive damages to the jury, (3) charging the jury on the issue of punitive damages, (4) failing to charge the jury that plaintiffs\u2019 burden of proof was by clear and convincing evidence on the issue of punitive damages, (5) entering final judgment for plaintiffs for punitive damages without conducting a judicial review of the award, (6) denying defendants\u2019 motion for directed verdict, (7) using unintelligible language to charge the jury regarding whether plaintiffs substantially performed their obligations arising out of the contract, (8) instructing the jury on the issue of whether defendants were entitled to possession of the leased premises, (9) denying defendants\u2019 motion in limine and allowing evidence showing plaintiffs had obtained a TRO and preliminary injunction against defendants, and (10) denying defendants\u2019 motions for judgment notwithstanding the verdict and to set aside the verdict and for new trial.\nIII. Allowing Plaintiffs to Amend Their Complaint\nDefendants contend that the trial court erred in allowing plaintiffs to verbally amend their complaint to allege punitive damages. They argue plaintiffs did not give notice that they were seeking punitive damages until the day of the trial. We disagree.\nA pleading setting forth a claim of relief must contain \u201c[a] short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief. . . .\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 8(a)(1) (2003).\nA pleading complies with the rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and \u2014 by using the rules provided for obtaining pretrial discovery \u2014 to get any additional information he may need to prepare for trial.\nVernon v. Crist, 291 N.C. 646, 653, 231 S.E.2d 591, 595 (1977) (quoting Accord Rose v. Motor Sales, 288 N.C. 53, 215 S.E.2d 573 (1975)). Rule 9(k) of the North Carolina Rules of Civil Procedure requires aggravating factors justifying punitive damages to be pled with particularity. N.C. Gen. Stat. \u00a7 1A-1, Rule 9(k) (2003).\nIn their original and amended complaints, plaintiffs alleged defendants\u2019 actions in breaching the lease/purchase agreement and seizing their property were deceitful, malicious, and willful. In their amended complaint, plaintiffs set forth facts to support unfair and deceptive trade practices, conversion, and punitive damages claims, specifically stating that these allegations were \u201ccommon to all claims.\u201d Paragraph Nos. 17 through 23 of the amended complaint also set forth the fraudulent statements alleged of defendants regarding their inability to provide plaintiffs with access to their store. In both complaints, plaintiffs specifically requested that \u201cthe Court impose punitive damages against Defendants for their wanton, reckless and malicious actions in an amount in excess of $10,000.00.\u201d\nPlaintiffs\u2019 complaints gave \u201csufficient notice of the events or transactions which produced the claim\u201d of punitive damages. Vernon, 291 N.C. at 653, 231 S.E.2d at 595. Defendants\u2019 assignment of error is overruled.\nIV. Denial of Directed Verdict\nDefendants argue the trial court erred in denying their motion for directed verdict on plaintiffs\u2019 claims of breach of the lease/purchase agreement, conversion, and punitive damages. We disagree.\nOn motion for directed verdict, \u201cthe [non-moving] party is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence, and all conflicts must be resolved in their favor.\u201d Pemberton v. Reliance Ins. Co., 83 N.C. App. 289, 291, 350 S.E.2d 103, 106 (1986). \u201cA directed verdict is proper only when the plaintiff has failed to show a right to recover upon any view of the facts which the evidence reasonably tends to establish.\u201d Id. at 291-92, 350 S.E.2d at 106. On appeal, this Court reviews the denial of a motion for directed verdict on the same grounds asserted at the trial level. Hunt v. Montgomery Ward & Co., 49 N.C. App. 642, 644, 272 S.E.2d 357, 360 (1980).\nA. Breach of Lease/Purchase Agreement\nDefendants contend that insufficient evidence was introduced to send the issue of defendants\u2019 breach of the lease/purchase agreement to the jury. Defendants argue that the evidence shows that plaintiffs were in default of their payments under the lease/purchase agreement, which gave defendants the right of reentry into the store under the lease.\nThe burden of proof to show plaintiffs were in arrears of their payments under the lease rested with defendants. Plaintiffs\u2019 evidence showed that all rental payments had been made and accepted by defendants at the time of defendants\u2019 reentry into the store. Plaintiffs\u2019 evidence also showed all promissory note payments had been made and accepted by defendants at the time of their reentry. Plaintiffs presented evidence establishing that defendants failed to provide adequate notice of default prior to reentry into the store. Viewed in the light most favorable to plaintiffs, the trial court properly denied defendants\u2019 motion for directed verdict regarding defendants\u2019 breach of the lease/purchase agreement. Defendants\u2019 assignment of error is overruled.\nB. Conversion\nDefendants also argue the evidence was insufficient for the jury to decide whether defendants converted plaintiffs\u2019 property for their own benefit.\nPlaintiffs presented evidence showing that on 23 March 2000 defendants were caught in the act of removing plaintiffs\u2019 property from the store, in direct violation of a preliminary injunction issued two days earlier. The Durham County Sheriff\u2019s Department was summoned, and defendants returned the items taken from the store. However, upon detailed inspection of the store, plaintiffs discovered their inventory had been substantially reduced. Missing was $29,000.00 in cash, two cash registers, a printer, $1,500.00 in calling cards, and 350 cartons of cigarettes. Defendants also admitted entering plaintiffs\u2019 store and selling plaintiffs\u2019 inventory on 12 March 2000.\nViewed in the light most favorable to plaintiffs, the trial court properly denied defendants\u2019 motion to dismiss on the issue of conversion. Defendants\u2019 assignment of error is overruled.\nC. Punitive Damages\nDefendants contend insufficient evidence of punitive damages was presented to send that issue to the jury. N.C. Gen. Stat. \u00a7 1D-I5(a) (2003) states:\nPunitive damages may be awarded only if the claimant proves that the defendant is liable for compensatory damages and that one of the following aggravating factors was present and was related to injury for which compensatory damages were awarded:\n(1) Fraud.\n(2) Malice.\n(3) Willful or wanton conduct.\nPunitive damages cannot be awarded for breach of contract alone in North Carolina, except for a breach of contract to marry. Shore v. Farmer, 351 N.C. 166, 170, 522 S.E.2d 73, 76 (1999); see N.C. Gen. Stat. \u00a7 ID-15 (2003). In Oestreicher v. Stores, our Supreme Court held:\nIn cases involving fraud, our Court has consistently used language such as the following: Punitive damages are never awarded, except in cases where there is an element either of fraud, malice, ... or other causes of aggravation in the act or omission causing the injury .... In the so-called breach of contract actions that smack of tort because of the fraud and deceit involved, we do not think it is enough just to permit defendant to pay that which the lease contract required him to pay in the first place. If this were the law, defendant has all to gain and nothing to lose. If he is not caught in his fraudulent scheme, then he is able to retain the resulting dishonest profits. If he is caught, he has only to pay back that which he should have paid in the first place.\n290 N.C. 118, 136, 225 S.E.2d 797, 808-09 (1976) (internal citations omitted).\nPlaintiffs presented evidence to show the lease/purchase agreement required defendants to provide notice of default and an opportunity to cure prior to exercising any right to self-help. Defendants failed to show plaintiffs were in default or that plaintiffs were provided with the required notice. Defendants forcibly entered the store on 12 March 2000, and began operating the business as their own. Plaintiffs obtained a TRO that prohibited defendants from entering the premises or taking any action to \u201cfurther dissipate the assets and inventory\u201d of plaintiffs\u2019 store. On 21 March 2000, the trial court issued a preliminary injunction, finding that defendants \u201cfailed to provide adequate notice and an adequate basis for the retaking of possession of the leased premises.\u201d\nOn 23 March 2000, defendants again forcibly entered plaintiffs\u2019 store in willful violation of the preliminary injunction and removed inventory without plaintiffs\u2019 consent. The evidence showed that the Durham County Sheriff\u2019s Department was called, that a deputy read the injunction to Pickett, and that Pickett was ordered to return the inventory and to exit the premises. In response, Pickett told the officer that, \u201che didn\u2019t give a damn what that paper said.\u201d\nPlaintiffs presented further evidence to show that after the preliminary injunction was entered that required defendants to put plaintiffs back into possession of the store, Pickett falsely told plaintiffs that they could not get back into the store because he would be out of town. In fact, Pickett was at the store removing plaintiffs\u2019 inventory. Defendants\u2019 willful, wanton, and malicious conduct in breaching the lease/purchas\u00e9 agreement, violating the TRO and preliminary injunction, and converting plaintiffs\u2019 property \u201csmack of tort.\u201d Oestreicher, 290 N.C. at 136, 225 S.E.2d at 809. Viewed in the light most favorable to plaintiffs and in light of our previous holding that sufficient evidence was presented of defendants\u2019 conversion of plaintiffs\u2019 property, the evidence shows willful and wanton conduct by defendants in breaching the lease/purchase agreement and in converting plaintiffs\u2019 property. The trial court properly denied defendants\u2019 motion for a directed verdict on the issue of punitive damages. Defendants\u2019 assignment of error is overruled.\nV. Jury Instructions\nDefendants contend that the trial court erred in instructing the jury regarding the issues of punitive damages, substantial performance under the lease/purchase agreement, and possession of the leased premises. Defendants have waived their right to appellate review of these issues.\nRule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires that in order to preserve an issue for appellate review, a party must obtain a ruling upon that party\u2019s request, objection, or motion. N.C.R. App. P. 10(b)(1) (2004). Appellate Rule 10(b)(2) states, \u201c[a] party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection ....\u201d N.C.R. App. P. 10(b)(2) (2004). This Court held that \u201cRule 10(b)(2) of our Rules of Appellate Procedure requiring objection to the charge before the jury retires is mandatory and not merely directory.\u201d Wachovia Bank v. Guthrie, 67 N.C. App. 622, 626, 313 S.E.2d 603, 606 (1984) (quoting State v. Fennell, 307 N.C. 258, 263, 297 S.E.2d 393, 396 (1982)). Plain error review does not apply to civil cases and is limited to appeals in criminal cases. Durham v. Quincy Mutual Fire Ins. Co., 311 N.C. 361, 367, 317 S.E.2d 372, 377 (1984); Alston v. Monk, 92 N.C. App. 59, 66, 373 S.E.2d 463, 468 (1988), disc. rev. denied, 324 N.C. 246, 378 S.E.2d 420 (1989).\nDefendants failed to object to the jury instructions before the jury retired to deliberate. Their right to appellate review of these issues is waived. Guthrie, 67 N.C. App. at 626, 313 S.E.2d at 606. We decline to apply Rule 2 of the North Carolina Rules of Appellate Procedure to reach the merits of defendants\u2019 assignments of error. N.C.R. App. P. 2 (2004).\nVI. Setting Aside the Punitive Damages Award\nDefendants contend that the trial court erred in failing to review and set aside the punitive damages awarded by the jury. We disagree.\n\u25a0 Defendants argue that the trial court was required to review the award of punitive damages under N.C. Gen. Stat. \u00a7 ID-50 and its failure requires the award of punitive damages to be reversed or vacated. N.C. Gen. Stat. \u00a7 ID-50 (2003) states:\nWhen reviewing the evidence regarding . . . the amount of punitive damages awarded, the trial court shall state in a written opinion its reasons for upholding or disturbing the ... award. In doing so the court shall address with specificity the evidence, or lack thereof, as it bears on . . . the amount of punitive damages ....\n(emphasis supplied). In Muse v. Charter Hospital of Winston-Salem, defendants argued that \u201cpursuant to Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 113 L. Ed. 2d 1 (1991), the trial court must articulate a detailed post-judgment analysis of a jury\u2019s award of punitive damages, and that the failure to do so violates due process.\u201d 117 N.C. App. 468, 478, 452 S.E.2d 589, 597 (1995). We held,\nin the recent case of TXO Production Corp. v. Alliance Resources Corp., 509 U.S.-, 125 L. Ed. 2d 366 (1993), decided after the trial of the instant case, the [United States Supreme] Court held that such an articulation is not required by the Constitution. Id. at -, 125 L. Ed. 2d at 383-84.\nMuse, 117 N.C. App. at 478, 452 S.E.2d at 597.\nFurthermore, N.C. Gen. Stat. \u00a7 lD-25(b) states that\n[p]unitive damages awarded against a defendant shall not exceed three times the amount of compensatory damages or two hundred fifty thousand dollars ($250,000), whichever is greater. If a trier of fact returns a verdict for punitive damages in excess of the maximum amount specified under this subsection, the trial court shall reduce the award and enter judgment for punitive damages in the maximum amount.\nWithin the statutory limits, the jury may award punitive damages in its sound discretion, arid the trial court should not disturb such an award unless the amount assessed is \u201c \u2018excessively disproportionate to the circumstances of contumely and indignity present in the case.\u2019 \u201d Hutelmyer v. Cox, 133 N.C. App. 364, 375, 514 S.E.2d 554, 562 (1999) (quoting Carawan v. Tate, 53 N.C. App. 161, 165, 280 S.E.2d 528, 531 (1981)). Nominal damages may support a substantial award of punitive damages. Horner v. Byrnett, 132 N.C. App. 323, 328, 511 S.E.2d 342, 346 (1999) (concluding that there was no abuse of discretion by the trial court in denying a defendant\u2019s motion for a new trial where the jury awarded the plaintiff $1.00 in compensatory damages and $85,000.00 in punitive damages for criminal conversation).\nHere, the jury awarded compensatory damages in the amount of $62,001.00 for breach of the lease/purchase agreement and conversion. The jury awarded punitive damages in the amount of $150,000.00. Although the trial court made no specific findings that the award was reasonable, it ultimately determined its reasonableness by listing that amount in its judgment. This amount is well within the boundaries provided in N.C. Gen. Stat. \u00a7 lD-25(b) and \u201cis not excessively disproportionate to the circumstances of contumely and indignity present in the case.\u201d Id.\nAs the language of the statute does not require judicial review of a punitive damage award to be mandatory and we find no case law holding judicial review to be mandatory except in cases where the award exceeds the statutory limits, the trial court did not err in failing to make specific findings of fact and failing to set aside the punitive damages awarded within statutory limits. Defendants\u2019 assignment of error is overruled.\nVII. Motion in Limine\nDefendants contend that the trial court erred in denying their motion in limine and allowing evidence that plaintiffs had obtained a TRO and preliminary injunction against defendants. Defendants argue that this evidence was irrelevant. We disagree.\nThis Court held that\n[t]o obtain a new trial based upon an error of the trial court in admitting evidence, the appellant must establish that: (1) he objected to the admission of the evidence at trial; (2) the evidence was inadmissible in law because it was incompetent, immaterial, or irrelevant; and (3) the evidence was prejudicial to appellant\u2019s cause of action or defense.\nVandervoort v. McKenzie, 117 N.C. App. 152, 163, 450 S.E.2d 491, 497 (1994) (citing Hunt v. Wooten, 238 N.C. 42, 45, 76 S.E.2d 326, 328 (1953)). Rule 401 of the North Carolina Rules of Evidence defines relevant evidence as \u201cevidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 401 (2003).\nDefendants contend that the existence of a preliminary injunction and TRO were irrelevant to the issues in the case. While defendants properly objected to this evidence at trial, they fail to show this evidence was irrelevant. Defendants\u2019 willful, wanton, and malicious disregard and violation of the preliminary injunction and TRO gave rise to the aggravating factors establishing breach of the lease/purchase agreement, conversion, and punitive damages. This conduct made the preliminary injunction and TRO relevant. Defendants failed to show that the evidence was \u201cincompetent, immaterial, or irrelevant.\u201d McKenzie, 117 N.C. App. at 163, 450 S.E.2d at 497. The trial court properly denied defendants\u2019 motion in limine and allowed evidence of the preliminary injunction and TRO to be presented to the jury. Defendants\u2019 assignment of error is overruled.\nVIII. Judgment Notwithstanding the Verdict\nDefendants contend that the trial court erred in denying their motions for judgment notwithstanding the verdict. We disagree.\nA motion for judgment notwithstanding the verdict is essentially a renewal of the motion for directed verdict, and the same standard of review applies to both motions. See N.C. Gen. Stat. \u00a7 1A-1, Rule 50(b) (2003); see Dickinson v. Pake, 284 N.C. 576, 584-85, 201 S.E.2d 897, 903 (1974); see also Smith v. Price, 74 N.C. App. 413, 418, 328 S.E.2d 811, 815, (1985), aff\u2019d in part, rev\u2019d in part, 315 N.C. 523, 340 S.E.2d 408 (1986). For reasons set forth in Section IV of this opinion explaining the trial court\u2019s denial of directed verdict, defendants\u2019 assignment of error is also overruled.\nIX. Conclusion\nDefendants failed to show that the trial court erred in allowing plaintiffs to amend their complaint at the beginning of trial. Defendants have waived their right to appellate review of the trial court\u2019s jury instructions. Defendants failed to show error in the trial court\u2019s denial of their motions for directed verdict, judgment notwithstanding the verdict, and to set aside the verdict and new trial. Defendants also failed to show error in the trial court\u2019s denial of their motion in limine and in the failure to review and set aside the punitive damage award.\nNo error.\nJudges WYNN and HUNTER concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Wardell & Associates, PLLC, by Bryan E. Wardell, for plaintiffs-appellees.", "Loflin & Loflin, by Thomas F. Loflin III, for defendants-appellants." ], "corrections": "", "head_matter": "MOHAMED SALEH ZUBAIDI and ABDO A. HAFEED, Plaintiffs v. EARL L. PICKETT ENTERPRISES, INC. and EARL L. PICKETT, Defendants\nNo. COA03-685\n(Filed 4 May 2004)\n1. Pleadings\u2014 verbal amendment to complaint \u2014 punitive damages\nThe trial court did not err in an action for breach of a lease/purchase agreement, conversion, and unfair and deceptive trade practices by allowing plaintiffs\u2019 motion to further amend the complaint to allege a claim for punitive damages, because plaintiffs\u2019 complaints gave sufficient notice of the events or transactions which produced the claim of punitive damages.\n2. Landlord and Tenant\u2014 breach of lease/purchase agreement \u2014 right of reentry \u2014 motion for directed verdict\nThe trial court did not err by denying defendants\u2019 motion for directed verdict on plaintiffs\u2019 claim of breach of the lease/purchase agreement even though defendants contend the evidence shows that plaintiffs were in default of their payments under the agreement which gave defendants the right of reentry into the store under the lease, because: (1) plaintiffs\u2019 evidence showed that all rental payments had been made and accepted by defendants at the time of defendants\u2019 reentry into the store; (2) plaintiffs\u2019 evidence showed all promissory note payments had been made and accepted by defendants at the time of their reentry, and (3) plaintiffs presented evidence establishing that defendants failed to provide adequate notice of default prior to reentry into the store.\n3. Conversion\u2014 motion for directed verdict \u2014 dispute involving lease/purchase agreement\nThe trial court did not err by denying defendants\u2019 motion for directed verdict on plaintiffs\u2019 claim of conversion arising out of a dispute involving a lease/purchase agreement, because: (1) plaintiffs presented evidence showing that on 23 March 2000 defendants were caught in the act of removing plaintiffs\u2019 property from the store, in direct violation of a preliminary injunction issued two days earlier; and (2) defendants also admitted entering plaintiffs\u2019 store and selling plaintiffs\u2019 inventory on 12 March 2000.\n4. Damages and Remedies\u2014 punitive damages \u2014 motion for directed verdict\nThe trial court did not err by denying defendants\u2019 motion for directed verdict on plaintiffs\u2019 claim for punitive damages arising out of the breach of a lease/purchase agreement, because: (1) plaintiffs presented evidence that the lease/purchase agreement required defendants to provide notice of default and an opportunity to cure prior to exercising any right to self-help; (2) defendants failed to show plaintiffs were in default or that plaintiffs were provided with the required notice; and (3) the evidence showed willful and wanton conduct by defendants in breaching the lease/purchase agreement and in converting plaintiffs\u2019 property.\n5. Appeal and Error\u2014 preservation of issues \u2014 failure to object\nDefendants waived appellate review of issues as to whether the trial court erred in an action for breach of a lease/purchase agreement, conversion, and unfair and deceptive trade practices by instructing the jury regarding the issues of punitive damages, substantial performance under the lease/purchase agreement, and possession of the leased premises, because: (1) defendants failed to object to the jury instructions before the jury retired to deliberate; and (2) plain error review does not apply to civil cases and is limited to appeals in criminal cases.\n6. Damages and Remedies\u2014 punitive damages \u2014 judicial review\nThe trial court did not err in an action for breach of a lease/purchase agreement, conversion, and unfair and deceptive trade practices by failing to review and set aside the punitive damages awarded by the jury, because: (1) N.C.G.S. \u00a7 ID-50 does not require judicial review of a punitive damage award to be mandatory; and (2) there was no case law holding judicial review to be mandatory except in cases where the award exceeds the statutory limits, and the award in this case was within the statutory limits provided in N.C.G.S. \u00a7 lD-25(b).\n7. Injunction\u2014 preliminary injunction \u2014 temporary restraining order \u2014 motion in limine\nThe trial court did not err in an action for breach of a lease/purchase agreement, conversion, and unfair and deceptive trade practices by denying defendants\u2019 motion in limine and allowing evidence that plaintiffs had obtained a temporary restraining order (TRO) and preliminary injunction against defendants, because: (1) defendants\u2019 willful, wanton, and malicious disregard and violation of the TRO and preliminary injunction gave rise to the aggravating factors establishing breach of the lease/purchase agreement, conversion, and punitive damages, thus making the preliminary injunction and TRO relevant; and (2) defendants failed to show that the evidence was incompetent, immaterial, or irrelevant.\n8. Trials\u2014 motion for judgment notwithstanding verdict\u2014 motion for directed verdict\nThe trial court did not err in an action for breach of a lease/purchase agreement, conversion, and unfair and deceptive trade practices by denying defendants\u2019 motions for judgment notwithstanding the verdict, because: (1) a motion for judgment notwithstanding the verdict is essentially a renewal of the motion for directed verdict, and the same standard of review applies to both motions; and (2) the Court of Appeals already concluded the trial court did not err by denying defendants\u2019 motions for directed verdict.\nAppeal by defendants from judgment entered 12 September 2001 by Judge Stafford Bullock in Durham County Superior Court. Heard in the Court of Appeals 2 March 2004.\nWardell & Associates, PLLC, by Bryan E. Wardell, for plaintiffs-appellees.\nLoflin & Loflin, by Thomas F. Loflin III, for defendants-appellants." }, "file_name": "0107-01", "first_page_order": 139, "last_page_order": 152 }