{ "id": 4174702, "name": "LUTHER G. BURTON, Administrator of the Estate of Walter Nicks Burton, Sr., Plaintiff v. TONY A. WILLIAMS, Defendant", "name_abbreviation": "Burton v. Williams", "decision_date": "2010-01-19", "docket_number": "No. COA09-582", "first_page": "81", "last_page": "89", "citations": [ { "type": "official", "cite": "202 N.C. App. 81" } ], "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": "600 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631528, 12631529 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/600/0469-02", "/se2d/600/0469-01" ] }, { "cite": "358 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12631456, 12631529, 12631527 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/se2d/599/0407-01", "/se2d/600/0469-01", "/se2d/600/0468-02" ] }, { "cite": "633 S.E.2d 691", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636471 ], "year": 2006, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/se2d/633/0691-01" ] }, { "cite": "389 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523136 ], "year": 1990, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0134-01" ] }, { "cite": "334 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "65" } ], "opinion_index": 0 }, { "cite": "314 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696235 ], "year": 1985, "pin_cites": [ { "page": "426" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0423-01" ] }, { "cite": "289 S.E.2d 600", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 622", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523129 ], "year": 1982, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0622-01" ] }, { "cite": "310 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 821", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760840, 4760428, 4763068, 4769085, 4761054 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0821-03", "/nc/309/0821-01", "/nc/309/0821-02", "/nc/309/0821-04", "/nc/309/0821-05" ] }, { "cite": "303 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 711", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524759 ], "year": 1983, "pin_cites": [ { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0711-01" ] }, { "cite": "248 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567048, 8567019, 8567088, 8566961, 8566931 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0646-04", "/nc/295/0646-03", "/nc/295/0646-05", "/nc/295/0646-02", "/nc/295/0646-01" ] }, { "cite": "246 S.E.2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "148" } ], "opinion_index": 0 }, { "cite": "37 N.C. App. 73", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550678 ], "pin_cites": [ { "page": "78-79" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0073-01" ] }, { "cite": "374 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "394" } ], "opinion_index": 0 }, { "cite": "323 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2565485 ], "year": 1988, "pin_cites": [ { "page": "573" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0559-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "586 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "803", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8958518 ], "year": 2003, "pin_cites": [ { "page": "699", "parenthetical": "quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0697-01" ] }, { "cite": "179 N.C. App. 104", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8234469 ], "year": 2006, "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/nc-app/179/0104-01" ] }, { "cite": "136 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "119", "parenthetical": "per curiam" } ], "opinion_index": 0 }, { "cite": "261 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575648 ], "year": 1964, "pin_cites": [ { "page": "781", "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0780-01" ] }, { "cite": "334 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4695669 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0528-01" ] }, { "cite": "326 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "283" }, { "page": "282", "parenthetical": "finding new agreement was not supported by consideration and defendant was entitled to judgment as a matter of law where plaintiff forced defendant to promise to pay referral commission in order to get plaintiff to pay pre-existing debt for goods received" } ], "opinion_index": 0 }, { "cite": "73 N.C. App. 291", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523511 ], "weight": 2, "pin_cites": [ { "page": "294" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc-app/73/0291-01" ] }, { "cite": "433 S.E.2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 630", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523242 ], "year": 1993, "pin_cites": [ { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0630-01" ] }, { "cite": "492 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "347 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551140, 551241, 551058, 551257, 551261 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/347/0141-04", "/nc/347/0141-03", "/nc/347/0141-05", "/nc/347/0141-02", "/nc/347/0141-01" ] }, { "cite": "488 S.E.2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "287" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 71", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11792139 ], "year": 1997, "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0071-01" ] }, { "cite": "274 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "212" } ], "opinion_index": 0 }, { "cite": "302 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564464 ], "year": 1981, "pin_cites": [ { "page": "215" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0207-01" ] }, { "cite": "188 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "345" } ], "opinion_index": 0 }, { "cite": "281 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574517 ], "year": 1972, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0191-01" ] }, { "cite": "461 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "364", "parenthetical": "stating conversely that a directed verdict for proponent is not improper where proponent's right to recovery does not depend on credibility of proponent's evidence and \"pleadings, evidence, and stipulations show that there is no issue of genuine fact for jury consideration\"" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914214 ], "year": 1995, "pin_cites": [ { "page": "109-10" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0106-01" ] }, { "cite": "553 S.E.2d 212", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138342, 138409, 138457, 138299, 138429 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0074-03", "/nc/354/0074-04", "/nc/354/0074-01", "/nc/354/0074-02", "/nc/354/0074-05" ] }, { "cite": "342 S.E.2d 896", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4702241, 4703432, 4699244, 4702833, 4704275 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0377-03", "/nc/316/0377-04", "/nc/316/0377-01", "/nc/316/0377-02", "/nc/316/0377-05" ] }, { "cite": "337 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "116" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522163 ], "year": 1985, "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0477-01" ] }, { "cite": "548 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "766" } ], "opinion_index": 0 }, { "cite": "144 N.C. App. 363", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434391 ], "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc-app/144/0363-01" ] }, { "cite": "581 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "436", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "357 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491656 ], "year": 2003, "pin_cites": [ { "page": "216-17", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0210-01" ] }, { "cite": "256 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1979, "pin_cites": [ { "page": "396", "parenthetical": "internal citation omitted" }, { "page": "536" }, { "page": "395" }, { "page": "396", "parenthetical": "cautioning that \"instances where credibility is manifest will be rare, and courts should exercise restraint in removing the issue of credibility from the jury\"" }, { "page": "396", "parenthetical": "citations and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "537", "parenthetical": "internal citation omitted" }, { "page": "538" }, { "page": "537-38" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0524-01" ] } ], "analysis": { "cardinality": 992, "char_count": 21421, "ocr_confidence": 0.754, "pagerank": { "raw": 5.298132930532853e-08, "percentile": 0.3334420269289831 }, "sha256": "1093dcf2652400061f90f2f6a64ce105f983cf385e4662561009f9f488e1bfd2", "simhash": "1:4751d422ac283c54", "word_count": 3467 }, "last_updated": "2023-07-14T21:18:34.741992+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and GEER concur." ], "parties": [ "LUTHER G. BURTON, Administrator of the Estate of Walter Nicks Burton, Sr., Plaintiff v. TONY A. WILLIAMS, Defendant" ], "opinions": [ { "text": "HUNTER, Robert C., Judge.\nDefendant Tony A. Williams appeals from the trial court\u2019s directed verdict in favor of plaintiff Luther G. Burton, the administrator of the estate of Walter Nicks Burton, Sr. Defendant\u2019s principal argument is that the trial court violated his constitutional right to a jury trial by granting plaintiff\u2019s motion for a directed verdict at the close of plaintiff\u2019s evidence because plaintiff was the party with the burden of proof at trial. Our Supreme Court, however, has held that the right to a jury trial is not absolute and is predicated on a preliminary determination by the trial court as to whether there exist genuine issues of fact and questions regarding the credibility of the evidence to be submitted to the jury. Because plaintiff established his claim through documentary evidence, which the parties stipulated was authentic and correct, the trial court properly directed the verdiet in favor of plaintiff despite plaintiff having the burden of proof at trial.\nFacts and Procedural History\nOn 20 February 1998, Mr. Burton and his wife Ruth Inez P. Burton (both now deceased) sold their home to defendant, providing owner-financing for $160,000.00 of the $185,000.00 purchase price. The Burtons conveyed the real estate to defendant by general warranty deed, which was secured by a purchase money deed of trust in the amount of $160,000.00. Both the general warranty deed and deed of trust were recorded. Defendant gave a promissory note to Mr. Burton, in which defendant agreed to pay $160,000.00 at 7% interest in 151 monthly payments of $1,240.48.\nDue to Mr. Burton\u2019s declining health, he executed a power of attorney on 9 March 2005, making plaintiff, his son, his attorney-in-fact. On 7 September 2005, defendant and Mr. Burton executed a promissory note addendum, which continued the monthly payments of $1,240.48 until 1 March 2018. In addition to the addendum, they both signed a payment agreement release on 8 September 2005 that provided that if Mr. Burton died prior to defendant completely repaying the promissory note, then the note became null and void and defendant would be \u201crelieved of any and all remaining financial obligations to or claims by the estate, beneficiaries, creditors, heirs, or assignees of [Mr. Burton].\u201d The addendum and release were recorded on 3 February 2006.\nMr. Burton moved to a nursing home after brain surgery in late 2006. Plaintiff found the release while cleaning out his father\u2019s home in April 2007. Plaintiff, as his father\u2019s attorney-in-fact, filed suit in Johnston County Superior Court, asserting that the addendum and release were void and unenforceable because (1) Mr. Burton lacked the mental capacity to assent to the addendum and release at the time of their execution; (2) they were procured through undue influence and duress; (3) they were procured through fraud; and (4) they were unsupported by consideration. Plaintiff sought to have the addendum and release stricken from the public record. Plaintiff also asserted claims for punitive damages and attorney\u2019s fees.\nDefendant filed an answer generally denying plaintiff\u2019s claims. Mr. Burton died on 7 July 2007, and plaintiff was substituted as the administrator of his estate by order entered 15 October 2007. By another order entered 15 October 2007, the action was removed to Durham County, where the property is located. Plaintiff filed a notice of lis pendens on 10 March 2008 and defendant filed a motion to set it aside on 19 March 2008. Defendant also moved for summary judgment. On 16 May 2008, plaintiff filed a motion to amend the complaint asserting a claim for breach of fiduciary duty and requesting imposition of a constructive trust on the property. After conducting a hearing on 27 May 2008 regarding the outstanding motions in the case, the trial court entered an order on 18 August 2008 (1) denying defendant\u2019s motion for summary judgment; (2) denying defendant\u2019s motion to set aside plaintiff\u2019s lis pendens-, and (3) allowing plaintiff\u2019s motion to amend his complaint.\nPrior to trial, both plaintiff and defendant filed motions in limine to exclude any testimony coming under the Dead Man\u2019s Statute, which the trial court granted. The jury trial began on 16 September 2008, and at the close of plaintiff\u2019s evidence, both plaintiff and defendant moved for directed verdicts. The next day, the trial court denied defendant\u2019s motion but granted plaintiff\u2019s on the ground that the release was void and unenforceable for lack of consideration. On 2 October 2008, the trial court entered a judgment and order reflecting its rulings and directing the verdict in favor of plaintiff. Defendant moved to stay the order of directed verdict and the trial court denied the motion. Defendant\u2019s motion for reconsideration was also denied. Defendant timely appealed to this Court.\nDiscussion\nDefendant first argues that the trial court erred by directing a verdict in favor of plaintiff on the issue of whether the release was supported by consideration when plaintiff had the burden of proof on this issue at trial. Defendant maintains that his constitutional right under N.C. Const, art. I, \u00a7 25 to a jury trial was violated because, by granting plaintiff\u2019s motion for \u00e1 directed verdict at the close of plaintiff\u2019s evidence, the trial court \u201cusurped the jury\u2019s responsibility\u201d by \u201cpreventing] him from presenting evidence and calling witnesses.\u201d\nContrary to defendant\u2019s contention, however, our Supreme Court, in addressing whether a verdict may properly be directed in favor of the party with the burden of proof, has held that \u201c[t]he constitutional right to trial by jury is not absolute; rather, it is premised upon a preliminary determination by the trial judge that there indeed exist genuine issues of fact and credibility which require submission to the jury.\u201d Bank v. Burnette, 297 N.C. 524, 537, 256 S.E.2d 388, 396 (1979) (internal citation omitted). The Court \u201cstressed\u201d that \u201cthere are neither constitutional nor procedural impediments to directing a verdict for the party with the burden of proof where the credibility of [the] movant\u2019s evidence is manifest as a matter of law.\u201d Id. The Court explained that \u201cif the evidence so clearly establishes the fact in issue that no reasonable inferences to the contrary can be drawn[,]\u201d it is proper to direct the verdict for the proponent notwithstanding a party\u2019s right to a jury trial. Id. at 536, 256 S.E.2d at 395.\nThus the dispositive issue on appeal is whether, under the facts of this case, it was proper for the trial court to grant plaintiff\u2019s motion for a directed verdict at the close of plaintiff\u2019s evidence, plaintiff having the burden of proof on his claim that the release was not supported by consideration. When a party moves for a directed verdict, the trial court must determine\nwhether the evidence is sufficient to go to the jury. In passing upon such motion the court must consider the evidence in the light most favorable to the non-movant. That is, the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor. It is only when the evidence is insufficient to support a verdict in the non-movant\u2019s favor that the motion should be granted.\nDockery v. Hocutt, 357 N.C. 210, 216-17, 581 S.E.2d 431, 436 (2003) (internal citation and quotation marks omitted).\nWhile not unconstitutional, it is ordinarily not appropriate to direct a verdict in favor of the party with the burden of proof. See Burnette, 297 N.C. at 538, 256 S.E.2d at 396 (cautioning that \u201cinstances where credibility is manifest will be rare, and courts should exercise restraint in removing the issue of credibility from the jury\u201d). A directed verdict in favor of the party with the burden of proof is proper, however, \u201c \u2018when the proponent has established a clear and uncontradicted prima facie case and the credibility of [the proponent\u2019s] evidence is manifest as a matter of law.\u2019 \u201d Town of Highlands v. Edwards, 144 N.C. App. 363, 366, 548 S.E.2d 764, 766 (quoting Homeland, Inc. v. Backer, 78 N.C. App. 477, 481, 337 S.E.2d 114, 116 (1985), disc. review denied, 316 N.C. 377, 342 S.E.2d 896 (1986)), disc. review denied, 354 N.C. 74, 553 S.E.2d 212 (2001); accord Smith v. Carolina Coach Co., 120 N.C. App. 106, 109-10, 461 S.E.2d 362, 364 (1995) (stating conversely that a directed verdict for proponent is not improper where proponent\u2019s right to recovery does not depend on credibility of proponent\u2019s evidence and \u201cpleadings, evidence, and stipulations show that there is no issue of genuine fact for jury consideration\u201d). Although the determination of whether the credibility of the proponent\u2019s evidence is established as a matter of law \u201cdepends on the evidence in each case[,]\u201d there are three \u201crecurrent situations\u201d in which it may be established: (1) where the \u201cnon-movant establishes [the] proponent\u2019s case by admitting the truth of the basic facts upon which the claim of [the] proponent rests\u201d; (2) where \u201cthe controlling evidence is documentary and [the] non-movant does not deny the authenticity or correctness of the documents\u201d; or (3) where \u201cthere are only latent doubts as to the credibility of oral testimony and the opposing party has failed to point to specific areas of impeachment and contradictions.\u201d Burnette, 297 N.C. at 537-38, 256 S.E.2d at 396 (citations and quotation marks omitted).\nHere, the trial court determined that this case presented the second situation, noting that by stipulating to the evidence to be presented at trial,- \u201ceveryone has conceded that [the release] is the document that is the basis of the agreement and as a matter of law, it is not a valid contract, there being absolutely no consideration specified . . . .\u201d The trial court further observed that \u201c[b]ased on [the parties\u2019] stipulations as to the exhibits, there\u2019s no other exhibit that\u2019s going to be presented to the Court which would change the contract at all.\u201d Thus, the trial court granted plaintiff\u2019s motion for directed verdict on his claim that the release is an invalid contract and unenforceable due to a total absence of consideration.\nGenerally, \u201cfor a contract to be enforceable it must be supported by consideration.\u201d Investment Properties v. Norburn, 281 N.C. 191, 195, 188 S.E.2d 342, 345 (1972). \u201c[A]ny benefit, right, or interest bestowed upon the promisor, or any forbearance, detriment, or loss undertaken by the promisee, is sufficient consideration to support a contract.\u201d Brenner v. School House, Ltd., 302 N.C. 207, 215, 274 S.E.2d 206, 212 (1981). As a general rule, a \u201cpromise to perform an act which the promisor is already bound to perform cannot constitute consideration to support an enforceable contract.\u201d Virmani v. Presbyterian Health Services Corp., 127 N.C. App. 71, 76, 488 S.E.2d 284, 287, disc. review denied, 347 N.C. 141, 492 S.E.2d 38 (1997). When, however, \u201cthe new promise entails some additional benefit to be received by the [promisor] or some detriment to the promisee, the new promise is supported by consideration.\u201d Sam Stockton Grading Co. v. Hall, 111 N.C. App. 630, 632, 433 S.E.2d 7, 8 (1993). Where there is \u201cno genuine issue of material fact as to the lack of consideration,\u201d the trial court may enter judgment as a matter of law. Penn Compression Moulding, Inc. v. Mar-Bal, Inc., 73 N.C. App. 291, 294, 326 S.E.2d 280, 283 (holding trial court should have entered summary judgment for defendant where \u201cundisputed\u201d documentary evidence established that no new consideration was exchanged for plaintiff\u2019s renewed promise to pay pre-existing debt), aff\u2019d per curiam, 314 N.C. 528, 334 S.E.2d 391 (1985).\nHere, as evidenced by the trial court\u2019s pre-trial order, the parties stipulated that, along with other documents, the (1) 20 February 1998 deed of trust, (2) 20 February 1998 promissory note, (3) 7 September 2005 addendum, and (4) 8 September 2005 release are \u201cgenuine\u201d and \u201cauthentic.\u201d According to these documents, the original agreement between the Burtons and defendant in 1998 consisted of the Burtons\u2019 deeding their property to defendant in exchange for a deed of trust and promissory note providing for the $160,000.00 purchase price plus interest to be paid over 20 years in 151 monthly installments of $1,240.48. The addendum to the promissory note executed on 7 September 2005 continues repayment under the terms of the original note. The release, which was executed the day after the addendum, provides in pertinent part:\n1. That should [Mr. Burton] expire prior to the completion of the terms and provisions of that certain Promissory Note . . . and any amendments thereto, then and in that event [defendant] shall be relieved of any and all remaining financial obligations to or claims by the estate, beneficiaries, creditors, heirs, or assignees of [Mr. Burton]. It is further agreed that the aforementioned Promissory Note and attendant amendments as such, shall become a nullity upon the death of [Mr. Burton], and that no presentment of negotiable instruments shall be made to [defendant] or his assigns, beneficiaries, creditors or heirs.\n2. BENEFIT: This agreement shall be binding upon and inure to the benefit of the parties hereto and their legal representatives, successors and assigns.\n3. ENTIRE AGREEMENT: This agreement contains the entire understanding of the parties. It may not be changed orally. This agreement may be amended or modified only in writing that has been executed by both parties hereto.\n4. INTERPRETATION: This agreement shall be interpreted under the laws of the State of North Carolina.\n(Emphasis added.)\nThe release fails to recite any consideration for the new agreement to release defendant from having to continue to make payments on the promissory note in the event that Mr. Burton died prior to the debt being paid off in full. The release, moreover, provides that it reflects the \u201centire understanding of the parties.\u201d Thus, according to the \u201cunderstanding of the parties,\u201d no consideration was exchanged in support of the new agreement, making it void and unenforceable. See Chemical Corp. v. Freeman, 261 N.C. 780, 781, 136 S.E.2d 118, 119 (1964) (per curiam) (holding agreement not to compete signed 15 days after employment contract was new contract and thus required \u201cnew consideration\u201d); Haynes v. B & B Realty Grp., LLC, 179 N.C. App. 104, 110, 633 S.E.2d 691, 695 (2006) (concluding real estate agent\u2019s services to start-up agency in exchange for addendum to independent contractor agreement giving agent interest in agency was not new consideration to support addendum where agent had pre-existing duty under original agreement to provide agency with same services); Penn Compression Moulding, 73 N.C. App. at 294, 326 S.E.2d at 282 (finding new agreement was not supported by consideration and defendant was entitled to judgment as a matter of law where plaintiff forced defendant to promise to pay referral commission in order to get plaintiff to pay pre-existing debt for goods received).\nNeither in opposition to plaintiff\u2019s motion for a directed verdict nor on appeal does defendant argue that if allowed, he would have presented evidence showing that the release was, in fact, supported by consideration. Instead, defendant argued at trial that the release was a \u201cgratuitous transfer\u201d requiring no consideration. As the trial court noted, however, any parol evidence that the release was intended to be a gift conveyance would have been excluded under the Dead Man\u2019s Statute, N.C. R. Evid. 601, and the parties had stipulated that there would be no documentary evidence other than what plaintiff had presented that would \u201cchange the contract at all.\u201d More importantly though, while defendant made this argument at trial, nowhere in his appellate brief has he argued that the release was a gift conveyance. By not carrying forward this contention on appeal, it is deemed abandoned under N.C. R. App. P. 28(b)(6).\nDefendant also argued in opposition to plaintiff\u2019s motion for directed verdict that the notary public\u2019s acknowledging the release constituted the release being executed \u201cunder seal,\u201d which created a presumption that the release was supported by consideration. On appeal, however, defendant argues that the addendum to the promissory note, which was executed under seal, \u201cprovided a presumption of consideration.\u201d It is fundamental that \u201c \u2018the law does not permit parties to swap horses between courts in order to get a better mount,\u2019 meaning, of course, that a contention not raised and argued in the trial court may not be raised and argued for the first time in the appellate court.\u201d Wood v. Weldon, 160 N.C. App. 697, 699, 586 S.E.2d 801, 803 (2003) (quoting Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)), disc. review denied, 358 N.C. 550, 600 S.E.2d 469 (2004).\nDefendant nonetheless mistakes the effect of a notary public\u2019s acknowledging a document as opposed to a party\u2019s executing an agreement \u201cunder seal.\u201d The purpose of the notarial seal is to \u201cauthenticate the document to which it is duly affixed and to provide prima facie evidence of the notary\u2019s official character.\u201d 58 Am. Jur. 2d Notaries Public \u00a7 42 (2009). A notary public, however, \u201cdoes not swear to the truth of the information in the document being notarized.\u201d Myers & Chapman, Inc. v. Thomas G. Evans, Inc., 323 N.C. 559, 573, 374 S.E.2d 385, 394 (1988). In contrast, when a party executes an agreement under seal, \u201cthe presence of [the] seal render[s] the document to which it [i]s affixed indisputable as to the terms of the underlying obligation . ...\u201d 58 Am. Jur. 2d Seals \u00a7 2 (2009). See generally Garrison v. Blakeney, 37 N.C. App. 73, 78-79, 246 S.E.2d 144, 148 (setting out history of use of \u201cseal\u201d in England and America), disc. review denied, 295 N.C. 646, 248 S.E.2d 251 (1978). In North Carolina, an instrument under seal \u201cimports consideration\u201d to support that instrument, Justus v. Deutsch, 62 N.C. App. 711, 715, 303 S.E.2d 571, 573, disc. review denied, 309 N.C. 821, 310 S.E.2d 349 (1983), or, stated differently, the presence of a seal raises a presumption that the instrument is supported by consideration, Supply Co. v. Dudney, 56 N.C. App. 622, 624, 289 S.E.2d 600, 602 (1982). \u201c[T]he determination of whether an instrument is a sealed instrument... is a question for the court.\u201d Square D Co. v. C. J. Kern Contractors, 314 N.C. 423, 426, 334 S.E.2d 63, 65 (1985).\nThe addendum at issue here was executed under seal, with the word \u201cSEAL\u201d appearing beside defendant\u2019s signature at the end of the document. The word \u201cSEAL,\u201d however, does not appear next to either defendant\u2019s or Mr. Burton\u2019s signature on the release; it is only acknowledged with the notary\u2019s official stamp. Defendant cites no authority, and we have found none, suggesting that a notary public\u2019s acknowledgment is equivalent to a party\u2019s execution of an instrument under seal. Since the release was not executed under seal, the presumption that it is supported by consideration was not triggered.\nBecause plaintiff established his claim that the release was unsupported by consideration through documentary evidence, which the parties stipulated as being genuine and authentic, and defendant made no argument at trial or on appeal that the release was, in fact, supported by consideration, the trial court properly directed the verdict in favor of plaintiff despite the fact that plaintiff had the burden of proof on this issue at trial. See Merrill, Lynch v. Patel, 98 N.C. App. 134, 137, 389 S.E.2d 604, 606 (1990) (affirming trial court\u2019s directed verdict for broker who had burden of proof on claim to collect on overdue investment account where investor admitted existence of account and calculation of debt and did not challenge authenticity or correctness of documentary evidence establishing these facts).\nAffirmed.\nJudges CALABRIA and GEER concur.\n. In the release, Mr. Burton is erroneously named the \u201cpayor\u201d and defendant the \u201cpayee.\u201d\n. The Supreme Court adopted new rules of appellate procedure on 2 July 2009, with an effective date of 1 October 2009 and \u201capplies to all cases appealed on or after that date.\u201d Because defendant noticed appeal prior to that date, the newly adopted rules do not govern this appeal.", "type": "majority", "author": "HUNTER, Robert C., Judge." } ], "attorneys": [ "Woodruff, Reece & Fortner, by Gordon C. Woodruff, for plaintiff-appellee.", "Ta-Letta Bryant Saunders for defendant-appellant." ], "corrections": "", "head_matter": "LUTHER G. BURTON, Administrator of the Estate of Walter Nicks Burton, Sr., Plaintiff v. TONY A. WILLIAMS, Defendant\nNo. COA09-582\n(Filed 19 January 2010)\nRelease\u2014 directed verdict in favor of party with burden of proof \u2014 documentary evidence\nThe trial court properly directed verdict in favor of plaintiff despite the fact that plaintiff had the burden of proof at trial because plaintiff established his claim that the release was unsupported by consideration through documentary evidence, which the parties stipulated as being genuine and authentic. Further, defendant made no argument at trial or on appeal that the release was, in fact, supported by consideration. Defendant failed to cite authority, and none was found, suggesting that a notary public\u2019s acknowledgment was equivalent to a party\u2019s execution of an instrument under seal.\nAppeal by defendant from order entered 2 October 2008 by Judge Kenneth C. Titus in Durham County Superior Court. Heard in the Court of Appeals 4 November 2009.\nWoodruff, Reece & Fortner, by Gordon C. Woodruff, for plaintiff-appellee.\nTa-Letta Bryant Saunders for defendant-appellant." }, "file_name": "0081-01", "first_page_order": 109, "last_page_order": 117 }