{
  "id": 8526976,
  "name": "HIGHWAY CHURCH OF CHRIST, INC. v. JOHN W. BARBER",
  "name_abbreviation": "Highway Church of Christ, Inc. v. Barber",
  "decision_date": "1985-02-05",
  "docket_number": "No. 8412SC549",
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  "casebody": {
    "judges": [
      "Judges Johnson and Martin concur."
    ],
    "parties": [
      "HIGHWAY CHURCH OF CHRIST, INC. v. JOHN W. BARBER"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nIn this action based on allegations of fraud, conversion, and breach of contract, plaintiff, Highway Church of Christ, Inc., seeks to recover a total of $44,617.97 from defendant, John W. Barber, Bishop of the Apostolic Faith Church of God Live Forever, Inc. Plaintiff alleges that Bishop John Barber knew of its interest in a church building and fund-raising program, and fraudulently induced Raymond Davis, Bishop of the Highway Church of Christ, Inc., to enter into a bond sales program which was to be financed through a sinking fund operated by Ambassador Church Finance, Inc. After Ambassador Church Finance, Inc. went into bankruptcy and other transactions between the parties failed, plaintiff filed this lawsuit. Defendant filed a counterclaim, in which he sought repayment of three loans made to plaintiff totalling $27,938.58.\nThe trial court, hearing the case without a jury, found against the plaintiff on all claims, found for the defendant upon his counterclaim on an $8,000 loan, and found against defendant on all other claims. On the basis of two assignments of error, brought forward on appeal, plaintiff argues: (1) that the trial court committed reversible error in denying plaintiffs motion for a new trial under Rule 59 of the North Carolina Rules of Civil Procedure; and (2) that the trial court committed reversible error in signing and entering the judgment. For the reasons that follow, we affirm the trial court\u2019s judgment.\nI\nAfter the entry of judgment, plaintiff filed a motion for a new trial under Rule 59 of the North Carolina Rules of Civil Procedure but did not refer to any of the nine grounds listed in Rule 59(a). N.C. Gen. Stat. Sec. 1A-1, Rule 59(a) (1983). Nevertheless, the trial court conducted an evidentiary hearing and considered plaintiffs evidence, which consisted primarily of an order and supplemental memorandum of a federal district court judge in Tennessee, who, in another case and prior to the entry of judgment in this case, found that defendant John Barber was \u201centitled to no credibility in this court\u201d because \u201c[n]ever in the legal experience of this court, which spans 41 years as a lawyer and judge, has there ever been such a display of fraud, evasion and deceipt.\u201d\nWe summarily reject defendant\u2019s contention that the trial court had to consider or refer to the Tennessee judge\u2019s order before denying plaintiffs motion for a new trial. Simply put, the Tennessee judge\u2019s order is not relevant in this case even as it relates to defendant\u2019s credibility. Plaintiff has not only failed to show an abuse of discretion in the trial judge\u2019s denial of his Rule 59 motion, but he has also not even alleged an abuse of discretion. See Worthington v. Bynum, 305 N.C. 478, 290 S.E. 2d 599 (1982). We hold that the trial judge\u2019s denial of the motion for a new trial was within his discretionary authority. The trial judge heard the evidence, examined the documents, weighed the credibility of witnesses, and found the facts. Further, plaintiff failed to rebut the presumption that the verdict is correct and failed to show by affidavit that he used due diligence to procure the evidence which he implicitly contends was not available at the time of trial.\nII\nIn its second argument, that the trial court committed reversible error in signing and entering the judgment, the plaintiff contends the trial court erred in three ways: (a) by failing to make separate findings of fact and conclusions of law; (b) by finding facts not supported by the evidence; and (c) by failing to rule on plaintiffs statute of limitations claim. Having carefully reviewed the trial court\u2019s five-page statement of verdict in open court and its four-page signed judgment, we reject defendant\u2019s contentions.\nA. Although it is true that the trial court did not formally separate and label its conclusions of law, they are clear and distinguishable. In this case, the trial court stated its conclusion of law with regard to each contention contained in the plaintiffs complaint immediately after finding the facts as to that contention. By way of example, after the trial court made its findings of fact with regard to the bond program the plaintiff entered into, it then stated:\nThe Plaintiff Corporation in the present lawsuit seeks to recover this $10,000.00 from the Defendant on several theories: (a) fraud, (b) conversion, (c) breach of contract, and (d) misrepresentation. The Plaintiff, however has shown no misrepresentation of any material fact by the Defendant concerning these transactions and no fraud on his part. There has been no conversion of anyone\u2019s property concerning these transactions by the Defendant and there was no contract concerning the $10,000.00 paid for the return of the Plaintiffs bonds either expressed or implied.\nAs can be seen, the conclusion of law above, while not separately labeled, is nevertheless clearly stated and easily distinguishable from the findings of fact. And although it is the better practice to separately label the findings of fact and conclusions of law, we find no error, for as our Supreme Court has said: \u201cthe judge complies with [the requirement of N.C. Gen. Stat. Sec. 1A-1, Rule 52(a)(1) (1983) ] if he separates the findings and conclusions in such a manner as to render them distinguishable, no matter how the separation is effected.\u201d Williams v. Pilot Life Ins. Co., 288 N.C. 338, 342, 218 S.E. 2d 368, 371-2 (1975).\nB. We also reject defendant\u2019s contention that there is no evidence to support the trial court\u2019s finding (1) that there was no contract between the plaintiff and the defendant as to the bonds given to Messrs. Atkinson and Winters of Ambassador Church Finance, Inc.; (2) that the defendant secured loans totalling $21,500 from banks in Alabama for plaintiff; and (3) that the defendant loaned plaintiff $8,000. We have reviewed the record and there is evidence to support these findings.\nThere is also evidence that conflicts with the findings. For example, some evidence suggests that plaintiff only owed defendant $5,000 as opposed to $8,000. However, \u201c[w]hen a jury trial is waived, the trial court\u2019s findings of fact have the force and effect of a verdict by a jury, and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary.\u201d Blackwell v. Butts, 278 N.C. 615, 619, 180 S.E. 2d 835, 837 (1971). Finding that there was competent evidence to support each of the trial judge\u2019s findings of facts excepted to, we reject this portion of defendant\u2019s argument.\nC. With regard to plaintiffs argument that the statute of limitations had run on the $8,000 loan counterclaim, we find no error. The statute of limitations on a liability arising out of a contract, N.C. Gen. Stat. Sec. 1-52(1) (1983), does not run from the time the contract is made. It does not begin to run until the date the contractual promise to pay is broken. Pickett v. Rigsbee, 252 N.C. 200, 113 S.E. 2d 323 (1960).\nFor the foregoing reasons, the judgment of the trial court is\nAffirmed.\nJudges Johnson and Martin concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Nance, Collier, Herndon & Wheless, by James B. Wheless, Jr., and Teague, Campbell, Conely & Dennis, by John Wishart Campbell, for plaintiff appellant.",
      "McGeachy and Hudson, by N. Hector McGeachy, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "HIGHWAY CHURCH OF CHRIST, INC. v. JOHN W. BARBER\nNo. 8412SC549\n(Filed 5 February 1985)\n1. Rules of Civil Procedure \u00a7 59\u2014 new trial \u2014 no consideration given to another court\u2019s judgment\nIn ruling on plaintiffs motion for a new trial, the trial court was not required to consider or refer to an order and supplemental memorandum of a federal district court judge in Tennessee who, in another case and prior to entry of judgment in this case, found that defendant was \u201centitled to no credibility in this court\u201d because \u201c[njever in the legal experience of this court, which spans 41 years as a lawyer and judge, has there ever been such a display of fraud, evasion and deceipt,\u201d since the Tennessee judge\u2019s order was not relevant in this case, even as it related to defendant\u2019s credibility.\n2. Rules of Civil Procedure \u00a7 52\u2014 findings and conclusions not labeled \u2014 no error\nAlthough it is the better practice to label separately the findings of fact and conclusions of law, the trial court in this case did not commit reversible error where the findings and conclusions were clear and distinguishable.\n3. Limitation of Actions \u00a7 4.3\u2014 action on note \u2014 accrual of action from date promise to pay is broken\nThere was no merit to plaintiff s contention that the statute of limitations barred defendant\u2019s counterclaim on an $8,000 note, since the statute does not run from the time the contract is made but instead from the date the contractual promise to pay is broken. G.S. 1-52(1).\nAPPEAL by plaintiff from Samuel E. Britt, Judge. Judgment entered 28 November 1983 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 16 January 1985.\nNance, Collier, Herndon & Wheless, by James B. Wheless, Jr., and Teague, Campbell, Conely & Dennis, by John Wishart Campbell, for plaintiff appellant.\nMcGeachy and Hudson, by N. Hector McGeachy, for defendant appellee."
  },
  "file_name": "0481-01",
  "first_page_order": 507,
  "last_page_order": 510
}
