{ "id": 8550169, "name": "ADA G. LOVE and JEFFREY L. LOVE v. ROBERT HARVEY PRESSLEY", "name_abbreviation": "Love v. Pressley", "decision_date": "1977-12-07", "docket_number": "No. 7626DC1005", "first_page": "503", "last_page": "517", "citations": [ { "type": "official", "cite": "34 N.C. App. 503" } ], "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": "218 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568140 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0303-01" ] }, { "cite": "459 Pa. 450", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 481001 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "820" } ], "opinion_index": 0, "case_paths": [ "/pa/459/0450-01" ] }, { "cite": "96 S.E. 2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "245 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613593 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/245/0492-01" ] }, { "cite": "233 S.E. 2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "899" } ], "opinion_index": 0 }, { "cite": "292 N.C. 311", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569627 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "316-17" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0311-01" ] }, { "cite": "169 S.E. 2d 43", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552256 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0586-01" ] }, { "cite": "194 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 434", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555860 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0434-01" ] }, { "cite": "234 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548910 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0233-01" ] }, { "cite": "225 S.E. 2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560962 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0286-01" ] }, { "cite": "192 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551859 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/16/0429-01" ] }, { "cite": "185 S.E. 2d 440", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "13 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553421 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/13/0351-01" ] }, { "cite": "468 F. 2d 64", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 247653 ], "year": 1972, "pin_cites": [ { "parenthetical": "since defendant failed to assert as grounds for directed verdict the sufficiency of the evidence of damages the question was not preserved for appeal by asserting such grounds in a motion after the jury's verdict" } ], "opinion_index": 0, "case_paths": [ "/f2d/468/0064-01" ] }, { "cite": "175 S.E. 2d 769", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 167", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548775 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0167-01" ] }, { "cite": "202 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564881 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0723-01" ] }, { "cite": "187 S.E. 2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 718", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573537 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0718-01" ] }, { "cite": "172 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561802 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0482-01" ] }, { "cite": "111 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "251 N.C. 630", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626770 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/251/0630-01" ] }, { "cite": "67 S.E. 2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "300" } ], "opinion_index": 0 }, { "cite": "234 N.C. 294", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621741 ], "year": 1951, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0294-01" ] }, { "cite": "47 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682717 ], "weight": 2, "year": 1855, "opinion_index": 0, "case_paths": [ "/nc/47/0391-01" ] }, { "cite": "234 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "parenthetical": "judge who entered pendente lite order for child support payments had presided at earlier criminal trial of defendant for failure to provide adequate child support" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548264 ], "year": 1977, "pin_cites": [ { "parenthetical": "judge who entered pendente lite order for child support payments had presided at earlier criminal trial of defendant for failure to provide adequate child support" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0139-01" ] }, { "cite": "210 S.E. 2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 N.C. App. 99", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549014 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/24/0099-01" ] }, { "cite": "65 S.E. 2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616062 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0699-01" ] } ], "analysis": { "cardinality": 1130, "char_count": 34102, "ocr_confidence": 0.799, "pagerank": { "raw": 1.168024426720157e-06, "percentile": 0.9870598633356616 }, "sha256": "e0566034a61bdea80aabcc9febf849f89e2cca66b93a59ab97a6b41f573de2cf", "simhash": "1:57ecc02277787557", "word_count": 5508 }, "last_updated": "2023-07-14T20:28:15.830309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRITT and MORRIS concur." ], "parties": [ "ADA G. LOVE and JEFFREY L. LOVE v. ROBERT HARVEY PRESSLEY" ], "opinions": [ { "text": "BROCK, Chief Judge.\nDefendant brings forth some 36 assignments of error in \u201cscatter bomb\u201d fashion. For organizational purposes, those of his arguments which we feel merit discussion will be loosely grouped in subdivisions of this opinion.\nI\nDefendant\u2019s first assignment of error is to the denial of his pretrial motion for the case to be heard before another judge. Defendant argues that as evidenced by an order entered by Judge Hicks in another case involving defendant and relating to practices similar to the conduct at issue in the instant case, Judge Hicks had preconceived opinions and was biased against the defendant. Defendant\u2019s argument is without merit. Although only a two-page excerpt from the order in the prior case is included in the record on appeal in this case, its contents, which defendant refers to as \u201cstatements\u201d, are in reality findings of fact, which are part of a written ruling based upon evidence received by Judge Hicks sitting without a jury in the prior proceeding.\nDefendant correctly states the law in this state that litigants are entitled to a fair trial before an unbiased judge. Ponder v. Davis, 233 N.C. 699, 65 S.E. 2d 356 (1951). Ponder involved a contested election for sheriff in which one of the litigants moved that the judge recuse himself due to his having actively supported and campaigned for the adverse party in the contested election. That type of personal interest in the outcome of litigation was considered by the Supreme Court to be sufficient grounds for recusation. No such personal interest or bias on the part of Judge Hicks appears from the record. This Court has held that the fact that a trial judge has repeatedly ruled against a party is not grounds for disqualification of that judge absent substantial evidence to support allegations of interest or prejudice. In re Custody of Cox, 24 N.C. App. 99, 210 S.E. 2d 223 (1974). C.f. Perry v. Perry, 33 N.C. App. 139, 234 S.E. 2d 449 (1977) (judge who entered pendente lite order for child support payments had presided at earlier criminal trial of defendant for failure to provide adequate child support).\nThe only evidence to support defendant\u2019s motion was that Judge Hicks had made findings of fact adverse to defendant in an earlier case. There has been no showing of bias in this case which would have required recusation of Judge Hicks.\nDefendant\u2019s first assignment of error is overruled.\nII\nThe next series of assignments of error deal with the admission of certain testimony which defendant contends was irrelevant and prejudicial.\nDefendant\u2019s third and sixth assignments of error relate to questions propounded by plaintiff on direct examination of the defendant and on cross-examination of defendant\u2019s employee, Melvin Soloman, which pertained to incidents involving the defendant and tenants other than the plaintiffs. Defendant argues that the evidence apparently was allowed for the purpose of impeaching the witnesses; that in at least one instance, the evidence did not appear to contradict defendant\u2019s earlier testimony; and that the evidence pertained to collateral matters and the witnesses\u2019 testimony was not properly subject to impeachment by extrinsic evidence. We disagree.\nThe underlying question appears to be whether any testimony relating to incidents involving other tenants of defendant could properly be elicited either as substantive evidence or for impeachment purposes. If plaintiffs could properly inquire into these matters in the first instance, they could then properly impeach defendant as an adverse witness pursuant to Rule 43(b), North Carolina Rules of Civil Procedure, and could properly impeach Mr. Soloman on cross-examination.\nIf such testimony is admissible for impeachment, it would arise from the following denial by the defendant:\n\u201cQ. Mr. Pressley, during December, 1974, did you or anyone acting under your control as an employee or agent clean out 3118 Cosby Place; the clothes, linen, dishes, or other personal effects of Ada Love or Jeffrey Love?\nA. Not that I know of.\u201d\nSubsequent to that exchange, plaintiffs\u2019 counsel was permitted to inquire over objection into defendant\u2019s and Mr. Soloman\u2019s \u201cclean-up\u201d of the personal possessions of tenants at three other residences in Charlotte during 1974 and 1975; plaintiffs\u2019 counsel was allowed to impeach defendant\u2019s testimony by inquiring over objection into statements made by defendant under oath in two other lawsuits involving similar circumstances; and was allowed to utilize interrogatories from one of these other lawsuits on cross-examination of Mr. Soloman.\nThe obvious purpose of the above questions was to impeach defendant\u2019s denial that he or his employee acting within the scope of his employment \u201ccleaned-up\u201d the personal possessions of the plaintiffs. As such, evidence that defendant had acted in a certain manner regarding other tenants at other times does not constitute direct evidence that he so acted regarding plaintiffs. Rather, it is circumstantial evidence affecting the credibility of defendant\u2019s denial that he cleaned out the plaintiffs, and also indicating a practice of cleaning out the personal property of tenants. However, if the doing of one act has no other relevancy than that it indicates a disposition to indulge in that kind of conduct, from which the probability of the second act is inferable, then the evidence of the first act is not admissible. Holmesly v. Hogue, 47 N.C. 391 (1855). 1 Stansbury\u2019s North Carolina Evidence, (Brandis Rev. 1973), (hereinafter, Stansbury), \u00a7 91. Nevertheless, if \u201cthe doing of the first act has a logical tendency to prove some relevant fact other than mere character or disposition ... it may be shown by competent evidence, subject of course to the general rule excluding evidence that is too remote to be of substantial probative value.\u201d Stansbury, id. Thus, evidence of defendant\u2019s conduct towards other tenants, was admissible if it tended to prove any other fact relevant to the inquiry. Furthermore, plaintiffs were not bound by defendant\u2019s testimony and could discredit him by proof of prior specific statements or other conduct which related to a matter pertinent and material to the case. 1 Stansbury, \u00a7 48.\n\u201cTestimony is relevant if it reasonably tends to establish the probability or the improbability of a fact in issue. (Citations omitted.) For this reason, the relevancy of evidence in a civil action is to be tested by the pleadings, which define the facts put in issue by the parties. (Citations omitted.)\u201d State ex rel Freeman v. Ponder, 234 N.C. 294, 304, 67 S.E. 2d 292, 300 (1951). The facts put in issue by the pleadings in the instant case included, inter alia, whether there was an unauthorized entry by defendant or his agent or employee into the premises rented to the plaintiffs; whether there was a conversion of plaintiffs\u2019 personal property by defendant or his agent or employee; if there was indeed such an entry and conversion by Mr. Soloman, defendant\u2019s employee, whether he was acting within the scope of his employment with the defendant; and whether trespass and conversion were part of the conduct of defendant\u2019s business (see Part VI, infra).\nPlaintiff Ada Love testified that upon returning to the house at Cosby Place and discovering that the floors had been mopped and waxed and that her belongings were missing, she called Mrs. Betty Soloman, defendant\u2019s rental agent, who said that the cleanup man had been there. Thus the definition of \u201cclean-up\u201d was material to an explanation of the disappearance of plaintiffs\u2019 property. The questions put to defendant and Mr. Soloman, to which defendant excepts, concerning defendant\u2019s conduct and statements relating to other tenants, were material to the definition of clean-up. Defendant was asked if he had cleaned out or removed personal property belonging to other tenants. Evidence indicated that Cosby Place had been cleaned-up, and that the \u201cclean-up man\u201d had been there; therefore, the scope of \u201cclean-up\u201d on other occasions was competent as circumstantial evidence to indicate the scope of clean-up in the instant case.\nEvidence relating to clean-up by defendant or Mr. Soloman on other occasions was also competent circumstantial evidence that the removal of plaintiffs\u2019 personal property by Mr. Soloman was within the scope of his employment with the defendant; thus impeachment of Mr. Soloman on cross-examination relating to his removal of personal property during clean-up of other tenants was proper.\nBecause of the relevance of the evidence relating to the definition of \u201cclean-up\u201d to the issues in this case, assignments of error numbers 3 and 6 are overruled.\nIll\nThe next series of assignments of error deal with purported errors on the part of the trial court in limiting defendant\u2019s cross-examination of plaintiff Ada Love by sustaining objections to certain questions asked during the cross-examination. The first, assignment of error number 12, concerns the right of the trial judge to sustain an objection when none has been made by counsel. There is no merit to this assignment of error. See Greer v. Whittington, 251 N.C. 630, 111 S.E. 2d 912 (1960).\nDefendant\u2019s thirteenth, fourteenth, fifteenth, seventeenth and nineteenth assignments of error deal with questions asked by defendant which in substance had been answered by plaintiff at some point during her testimony. The limits of cross-examination are largely within the discretion of the trial judge, State v. McPherson, 276 N.C. 482, 172 S.E. 2d 50 (1970), and this includes the discretion to ban unduly repetitious and argumentative questioning. 1 Stansbury, \u00a7 35. Furthermore, in no instance covered by assignments of error numbers 13-19 does the record show what the witness would have said had she been permitted to answer; nor does it appear from the record that defendant requested that a record be made of the answers the witness would have given pursuant to Rule 43(c) of the Rules of Civil Procedure. Exclusion of testimony cannot be held prejudicial on appeal unless appellant shows what the witness would have testified if permitted. State v. Robinson, 280 N.C. 718, 187 S.E. 2d 20 (1972).\nDefendant\u2019s assignments of error numbers 12-19 are overruled.\nIV\nDefendant\u2019s assignments of error numbered 21, 36 and 37 relate to the trial court\u2019s denial of defendant\u2019s Rule 50(a) and (b) motions for directed verdict and judgment notwithstanding the verdict testing the sufficiency of the evidence to go to the jury. The specific grounds asserted by defendant to support his motions for a directed verdict at the close of plaintiffs\u2019 evidence and again at the close of all the evidence were that there was insufficient evidence to show that the plaintiffs were lawfully occupying the house or that the defendant removed the property. In his motion styled as a motion for judgment notwithstanding the verdict defendant sought to have the verdict set aside as against the greater weight of the evidence, and to have the verdicts as to damages for conversion of personal property and for mental suffering set aside on the grounds that they were excessive. The asserted grounds are proper grounds for a motion for a new trial under Rules 59(a)(7) and 59(a)(6) respectively; however, no such motion appears in the record. For this reason, and the reasons set out below, these questions are not properly presented for review on appeal of the denial of defendant\u2019s motion for judgment notwithstanding the verdict.\nSince the North Carolina and Federal Rules 50 are substantially similar, federal interpretations are instructive to supplement the North Carolina decisions. Rule 50(a) requires that a motion for directed verdict state specific grounds, and this provision is mandatory. Anderson v. Butler, 284 N.C. 723, 202 S.E. 2d 585 (1974); Wheeler v. Denton, 9 N.C. App. 167, 175 S.E. 2d 769 (1970). Upon failure to state specific grounds, an appellant cannot question on appeal the insufficiency of the evidence to support the verdict. Wheeler v. Denton, id. The motion for judgment notwithstanding the verdict is technically only a renewal of the motion for a directed verdict made at the close of all the evidence, and thus the movant cannot assert grounds not included in the motion for directed verdict. House of Koscot Development Corp. v. American Line Cosmetics, Inc., 468 F. 2d 64 (5th Cir., 1972) (since defendant failed to assert as grounds for directed verdict the sufficiency of the evidence of damages the question was not preserved for appeal by asserting such grounds in a motion after the jury\u2019s verdict). The rationale for this rule is that otherwise, a judgment notwithstanding the verdict might be entered on grounds which could have been met with proof at trial if such grounds had been suggested in the motion for directed verdict. 2B Barron and Holtzoff, Federal Practice and Procedure (Wright ed., 1961) \u00a7 1073.\nThus defendant has waived appellate review of the sufficiency of plaintiffs\u2019 evidence to support the verdicts as to damages in this case. The only questions relating to the sufficiency of the evidence which are before this Court are those raised by defendant\u2019s motions for directed verdict. Therefore we are confronted only with the question of whether plaintiffs\u2019 evidence showing (1) that plaintiffs were lawfully occupying the house at Cosby Place, and (2) that defendant removed plaintiffs\u2019 property, was sufficient to go to the jury.\nIt is the well-established rule that in determining the sufficiency of evidence to withstand a defendant\u2019s motions for directed verdict and for judgment notwithstanding the verdict, all the evidence which supports the plaintiffs\u2019 claim must be taken as true and considered in the light most favorable to them, giving them the benefit of every reasonable inference which may legitimately be drawn therefrom, and resolving contradictions, conflicts and inconsistencies in their favor. Supply Co. v. Murphy, 13 N.C. App. 351, 185 S.E. 2d 440 (1971). Applying the above test to the facts of the instant case, it is clear that there was sufficient evidence to go to the jury and from which the jury could find (1) that the plaintiffs were lawfully occupying the house at 3118 Cosby Place, and (2) that the defendant or his employee Mr. Soloman entered the premises and removed the personal property of the plaintiffs.\nOn the first question, there was evidence which tended to show that at the time in question, December 1974, Mrs. Betty Soloman was the rental agent for defendant and that she was charged with renting various pieces of property for defendant, including the residence at 3118 Cosby Place; that on Saturday, 7 December 1974, the plaintiffs saw an ad in the newspaper and contacted Mrs. Soloman about the possibility of renting an apartment; that the advertised apartment was unavailable but that Mrs. Soloman suggested that the plaintiffs look at the unit at 3118 Cosby Place; that the plaintiffs looked at the unit and liked it; that they returned to Mrs. Soloman and paid her a deposit in the amount of $65.00; that they returned to Mrs. Soloman\u2019s house on the following Monday and paid the first week\u2019s rent of $40.00, and received a key to the premises; and that they signed a lease covering the premises either on Saturday, 7 December 1974, or Monday, 9 December 1974. It was stipulated by the parties that Mr. Pressley did not evict plaintiffs from 3118 Cosby Place pursuant to any court action or judicial process. This evidence, considered in the light most favorable to the plaintiffs, was clearly sufficient to go to the jury and from which the jury could find that the plaintiffs were lawfully occupying the premises at 3118 Cosby Place after 9 December 1974.\nAs to defendant\u2019s second purported grounds for directed verdict, to wit, insufficient evidence that the defendant removed the femme plaintiffs property from the house at Cosby Place, the evidence considered in the light most favorable to the plaintiffs tends to show that Melvin Soloman was, at all times pertinent to this controversy, the employee of the defendant; that Mr. Soloman was the maintenance and clean-up man for defendant\u2019s rental property; that the defendant watched his rental units closely, visiting them as many as three times a week; that defendant kept duplicate keys to his rental units and a master key to all the units; that no one except defendant had access to these duplicate and master keys; that defendant, upon determining that a unit had been vacated by a tenant, would give his maintenance man a key to the unit for purposes of cleaning it up; that sometimes Mr. Pressley worked with his clean-up man; that \u201cclean-up\u201d of rental units involved restoration of units after a tenant had left so that it could be re-rented; that this entailed, among other things, cleaning and buffing floors; that \u201cclean-up\u201d on other occasions had included removal of personal property belonging to tenants without their prior approval; that plaintiffs returned to 3118 Cosby Place on 19 December 1974, after some four days absence, and discovered that the house had been cleaned and that the floors had been cleaned; that they also found, upon their return, that the personal belongings of plaintiff Ada Love were missing but that the furniture belonging to defendant was still there; that plaintiffs called Mrs. Soloman and were told \u201cthat the clean-up man had been there.\u201d All of the evidence, considered in the light most favorable to the plaintiffs was sufficient to allow the jury to infer that the defendant, either personally or through his employee Melvin Soloman acting within the scope of his employment with defendant, removed the personal property belonging to plaintiff Ada Love from the premises at 3118 Cosby Place.\nDefendant\u2019s assignments of error numbered 21, 36 and 37 are overruled.\nv_\nDefendant\u2019s assignment of error number 22 is feckless. Defendant contends that the trial court erred in refusing to grant a request for a jury instruction pertaining to the definition of \u201cthe greater weight of the evidence.\u201d Defendant\u2019s brief argument would seem to imply that the trial judge gave no instruction on greater weight. The record discloses that the court did indeed define greater weight, using the precise language as set out in North Carolina Pattern Jury Instructions \u2014 Civil \u00a7 101.10. The court is not required to charge the jury in the precise language requested so long as the substance of the request is included. Faeber v. E.C.T. Corp., 16 N.C. App. 429, 192 S.E. 2d 1 (1972). Defendant does not attempt to show any prejudice from the refusal of the court to give the instruction as requested.\nDefendant further contends in assignment of error number 23 that the court erred in (1) refusing to adopt issues submitted by defendant for the jury, and (2) in failing to make any distinction between the defendant\u2019s and his agent\u2019s alleged conversion in the issues submitted to the jury. As to the first point, defendant\u2019s brief is utterly void of argument or authority. App. R. 28(a) requires that a question be presented and argued in the brief in order to obtain appellate review. State v. McMorris, 290 N.C. 286, 225 S.E. 2d 553 (1976); State v. Brothers, 33 N.C. App. 233, 234 S.E. 2d 652 (1977). \u201cQuestions raised by assignments of error in appeals from trial tribunals but not then presented and discussed in a party\u2019s brief, are deemed abandoned.\u201d App. R. 28(a).\nDefendant\u2019s challenge to the trial court\u2019s failure to distinguish between defendant\u2019s and his agent\u2019s alleged conversion of plaintiffs\u2019 property in the issues submitted to the jury is without merit. There is absolutely no evidence in the record to indicate that defendant\u2019s agent, Melvin Soloman, had any access to the premises at 3118 Cosby Place other than under the directions of defendant. Furthermore, the trial court properly charged the jury with respect to the doctrine of respondeat superior. Therefore, to the extent that assignment of error number 23 presents any question for review, it is overruled.\nDefendant also contends in assignment of error number 33 that the court failed to give a balanced summary of the evidence. Defendant assails the court\u2019s apparent failure to recognize the defendant\u2019s contentions and to review the evidence in support of these contentions, and refers to the so-called \u201cPreliminary Argument\u201d at the beginning of his brief. This preliminary argument, which presents contentions to the effect that the plaintiffs surreptitiously moved into 3118 Cosby Place with the intent to defraud the defendant, is nothing more than a jury argument. A contention is not evidence. Bodenheimer v. Bodenheimer, 17 N.C. App. 434, 194 S.E. 2d 375 (1973). The record reveals that in the instructions on the several issues, the court gave a balanced summary of the contentions of the parties based on the evidence which had been elicited during the trial.\nAs to the alleged unbalanced summary of the evidence, suffice it to say that where one party presents substantially more evidence than the other, it is not error for the court\u2019s recapitulation of the first party\u2019s evidence to be longer than the recapitulation of the second party\u2019s evidence. State v. Crutchfield, 5 N.C. App. 586, 169 S.E. 2d 43 (1969). The plaintiffs in this case called five witnesses; the defendant called two. Plaintiffs\u2019 evidence covered some 55 pages of the record; defendant\u2019s evidence covered approximately seven pages. Assignment of error number 33 is overruled.\nWe have reviewed the balance of defendant\u2019s assignments of error pertaining to the court\u2019s instructions to the jury, and find them, as to all parties, a fair and appropriate summary of the evidence and the law arising from the evidence. There is nothing in the instructions which would justify a new trial in this case. Likewise we have reviewed the balance of defendant\u2019s assignments of error, not discussed herein, pertaining to the conduct of the trial itself, and in our opinion defendant received a fair trial, free from prejudicial error.\nVI\nFinally, defendant\u2019s assignments of error numbered 20, 34 and 35 present the question of whether the trial court erred in holding as a matter of law that the trespass and conversion as found by the jury constituted unfair trade practices by defendant under G.S. 75-1.1, entitling plaintiffs to treble damages pursuant to G.S. 75-16.\nAt the time this case arose, G.S. 75-1.1 read in pertinent part as follows: \u201c(a) Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful, (b) The purpose of this section is to declare, and to provide civil legal means to maintain, ethical standards of dealings between persons engaged in business, and between persons engaged in business and the consuming public within this State, to the end that good faith and fair dealings between buyers and sellers at all levels of commerce be had in this State.\u201d\nIn State ex rel Edmisten v. J. C. Penney Co., 292 N.C. 311, 233 S.E. 2d 895 (1977), our Supreme Court held that \u201cthe unfair and deceptive acts and practices forbidden by G.S. 75-l.l(a) are those involved in the bargain, sale, barter, exchange or traffic\u201d between buyers and sellers. 292 N.C. at 316-17, 233 S.E. 2d at 899. In 1977, our Legislature rewrote the statute, (Session Laws \u2014 1977, Chapter 747), and greatly broadened its scope. However, the 1977 revisions were expressly declared inapplicable to pending litigation. Thus we review the trial court\u2019s ruling under the pre-1977 version of G.S. 75-1.1.\nFirst we must determine whether \u201ctrade or commerce\u201d under the statute, as interpreted in the J. C. Penney case, supra, encompasses the business of providing rental housing. Although we have been unable to find any North Carolina cases directly on point, our Supreme Court, in another context, has held that a lease is a chattel real and as such is a species of intangible personal property. Investment Co. v. Cumberland County, 245 N.C. 492, 96 S.E. 2d 341 (1957).\nIt is our conclusion that for purposes of G.S. 75-1.1, a lease is a sale of an interest in real estate. The Supreme Court of Pennsylvania so stated in Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A 2d 812 (1974). In that case, it was held that Section 3 of the Pennsylvania Consumer Protection Law, which was identical to the pre-1977 version of G.S. 75-1.1(a), covered unfair or deceptive practices in connection with the leasing of housing. As noted in the opinion:\n\u201cFunctionally viewed, the modern apartment dweller is a consumer of housing services. The contemporary leasing of residences envisions one person (landlord) exchanging for periodic payments of money (rent) a bundle of goods and services, rights and obligations.\u201d 329 A 2d at 820.\nThus we hold that the rental of residential housing is \u201ctrade or commerce\u201d under G.S. 75-1.1. We now must determine whether the trial court properly concluded that defendant\u2019s conduct constituted \u201cunfair or deceptive acts or practices in the conduct of\u201d said trade or commerce.\nIn cases under G.S. 75-1.1 and 75-16, it is ordinarily the province of the jury to find the facts, and based on the jury\u2019s findings the court must then determine as a matter of law whether the defendant\u2019s conduct violated G.S. 75-1.1. Hardy v. Toler, 288 N.C. 303, 218 S.E. 2d 342 (1975). In the instant case, the jury properly found facts that the defendant or his agent trespassed upon the premises rented to the plaintiffs and converted the personal property of the femme plaintiff. Implicit in the verdict as to conversion is the finding that defendant refused to return the property upon demand. Also, it was stipulated that defendant did not evict plaintiffs from the premises pursuant to any judicial process.\nG.S. 75-l.l(b) states that the purpose of the section is to provide means of maintaining \u201cethical standards of dealings ... between persons engaged in business and the consuming public\u201d and to promote \u201cgood faith and fair dealings between buyers and sellers ...\u201d Defendant is clearly a person engaged in business \u2014 he was renting around seventy-six units at the time the lawsuit was commenced \u2014 and plaintiffs were part of the consuming public.\nWe hold that defendant\u2019s conduct constituted unfair or deceptive acts or practices in commerce contrary to the provisions of G.S. 75-1.1 and affirm the award of treble damages to plaintiffs pursuant to G.S. 75-16. We regard as surplusage the independent findings of fact made by the trial judge.\nNo error.\nJudges BRITT and MORRIS concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Theodore Fillette and Donald S. Gillespie, Jr., for plaintiffs.", "Walker & Walker, by Frank H. Walker, for defendant." ], "corrections": "", "head_matter": "ADA G. LOVE and JEFFREY L. LOVE v. ROBERT HARVEY PRESSLEY\nNo. 7626DC1005\n(Filed 7 December 1977)\n1. Judges \u00a7 5 \u2014 similar earlier case before judge \u2014 no bias \u2014 recusation unnecessary\nThere was no showing of bias in this case which would have required recusation of the trial judge where the only evidence to support defendant\u2019s motion for the case to be heard by another judge was that the trial judge had made findings of fact adverse to defendant in an earlier case involving similar issues.\n2. Evidence \u00a7 19; Trespass \u00a7 6\u2014 \u201cclean-up\u201d of plaintiff\u2019s premises \u2014 questions about prior \u201cclean-ups\u201d \u2014admissibility of evidence\nIn an action for damages arising from alleged trespass and conversion, breach of covenant of quiet enjoyment, and mental suffering where plaintiffs alleged that they rented a house from defendant, gave notice that they were moving out of the house, after four days absence went into the house to remove the feme plaintiff\u2019s belongings, discovered they were missing, and were told that the \u201cclean-up\u201d man had already been to the house, the trial court did not err in allowing plaintiffs to question defendant and his \u201cclean-up\u201d man with respect to incidents involving defendant and tenants other than plaintiffs, since the evidence was admissible to impeach defendant\u2019s denial that he or his employee acting within the scope of his employment \u201ccleaned-up\u201d the personal possessions of the plaintiffs, and since the evidence which indicated the scope of \u201cclean-up\u201d on other occasions was competent as circumstantial evidence to indicate the scope of \u201cclean-up\u201d in the instant case.\n3. Rules of Civil Procedure \u00a7 50\u2014 motion for directed verdict \u2014 specific grounds \u2014 necessity for stating\nG.S. 1A-1, Rule 50(a) requires that a motion for directed verdict state specific grounds; this provision is mandatory, and, upon failure to state specific grounds, an appellant cannot question on appeal the insufficiency of the evidence to support the verdict.\n4. Trespass \u00a7 7; Landlord and Tenant \u00a7 6.2; Trover and Conversion \u00a7 2 \u2014 landlord\u2019s unauthorized entry into leased premises \u2014 conversion of personal property \u2014 sufficiency of evidence\nIn an action for damages arising from alleged trespass and conversion, breach of covenant of quiet enjoyment, and mental suffering, plaintiffs\u2019 evidence that they were lawfully occupying premises rented to them by defendant and that defendant or his employee removed plaintiff\u2019s personal property from the premises was sufficient to be submitted to the jury where such evidence tended to show that plaintiffs had paid a deposit and the first week\u2019s rent on the premises and had received a key; defendant did not evict plaintiffs from the premises pursuant to any court action or judicial process; defendant closely watched his rental properties and, upon determining that a unit had been vacated by a tenant, would give his maintenance man a key for the purpose of cleaning up the unit so that it could be rented again; on some occasions \u201cclean-up\u201d had included removal of personal property belonging to tenants without their prior approval; plaintiffs returned to their rented premises after a four day absence to find that feme plaintiffs belongings were missing; and plaintiffs were told by defendant\u2019s rental agent \u201cthat the clean-up man had been there.\u201d\n5. Trial \u00a7 38\u2014 requested instructions not given verbatim \u2014 no error\nThe trial court was not required to give verbatim defendant\u2019s requested instruction defining \u201cthe greater weight of the evidence.\u201d\n6. Appeal and Error \u00a7 45.1\u2014 failure to argue question in brief \u2014 no appellate review\nApp. R. 28(a) requires that a question be presented and argued in the brief in order to obtain appellate review.\n7. Principal and Agent \u00a7 9\u2014 agent\u2019s actions directed by principal \u2014 respondeat superior \u2014 jury instructions proper\nDefendant\u2019s contention that the trial court erred in failing to distinguish between defendant\u2019s and his agent\u2019s alleged conversion of plaintiffs\u2019 property in the issues submitted to the jury is without merit, since there was no evidence in the record to indicate that defendant\u2019s agent had any access to the premises rented by plaintiffs other than under the directions of defendant, and the trial court properly charged the jury with respect to the doctrine of respondeat superior.\n8. Trial \u00a7 33\u2014 jury instructions \u2014 recapitulation of evidence \u2014 unequal time given to parties\u2019 evidence \u2014 no error\nWhere one party presents substantially more evidence than the other, it is not error for the court\u2019s recapitulation of the first party\u2019s evidence to be longer than the recapitulation of the second party\u2019s evidence.\n9. Unfair Competition \u2014 unfair trade practices \u2014 rental of residential housing\nThe rental of residential housing is \u201ctrade or commerce\u201d within the meaning of former 6.S. 75-1.1 declaring unfair trade practices unlawful.\n10.Unfair Competition \u2014 rented premises \u2014 conversion of personal property \u2014 unfair trade practices \u2014 treble damages proper\nWhere the jury properly found that defendant or his agent trespassed upon premises rented to plaintiffs and converted the personal property of the feme plaintiff, the trial court properly concluded that defendant\u2019s conduct constituted unfair or deceptive acts or practices in commerce contrary to the provisions of G.S. 75-1.1 and plaintiffs were entitled to treble damages.\nAPPEAL by defendant from Hicks, Judge. Judgment entered 18 May 1976 in District Court, MECKLENBURG County. Heard in the Court of Appeals 31 August 1977.\nThis is an action for damages arising from alleged trespass and conversion, breach of covenant of quiet enjoyment, and mental suffering. Plaintiffs also alleged that defendant\u2019s conduct constituted unfair trade practices under G.S. 75-1.1 entitling them to treble damages.\nAt the time this lawsuit was instituted, the defendant owned and rented to others about 76 rental units in the City of Charlotte, North Carolina. On 7 December 1974, plaintiffs paid a deposit to Mrs. Betty Soloman, defendant\u2019s rental agent, and subsequently moved into a house at 3118 Cosby Place. On 16 December 1974, the plaintiffs had a personal quarrel. The femme plaintiff returned to her mother\u2019s home in Concord; her husband returned to Cosby Place the next day (17 December), removed his personal belongings, called Mrs. Soloman, and informed her that they (plaintiffs) were moving out of Cosby Place. On 19 December, the plaintiffs returned to Cosby Place and discovered that personal property belonging to the femme plaintiff was missing. Upon calling Mrs. Soloman, plaintiffs were informed that the clean-up man had been to Cosby Place and were given defendant\u2019s telephone number. They never were able to contact the defendant, and he did not return their phone calls.\nIt was stipulated that defendant did not evict plaintiffs from Cosby Place pursuant to any judicial action or process.\nFurther pertinent facts will be brought out in the discussion of the issues.\nThe jury returned verdicts of guilty and awarded damages to plaintiffs for trespass, conversion, breach of the covenant of quiet enjoyment, and mental suffering. The trial judge, upon his conclusion that defendant\u2019s conduct constituted unfair trade practices under G.S. 75-1.1, proceeded to treble the damages as awarded by the jury for trespass, conversion, and mental suffering, pursuant to G.S. 75-16.\nFrom the verdicts and judgments entered thereon, defendant appealed.\nTheodore Fillette and Donald S. Gillespie, Jr., for plaintiffs.\nWalker & Walker, by Frank H. Walker, for defendant." }, "file_name": "0503-01", "first_page_order": 531, "last_page_order": 545 }