              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-887

                                Filed: 17 March 2020

Mitchell County, No. 16 CVS 229

MICHAEL STACY BUCHANAN, Plaintiff,

             v.

NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC.,
Defendant.


      Appeal by plaintiff from orders entered 8 December 2017 and 21 June 2019 by

Judges Mark E. Powell and Robert Bell, respectively, in Mitchell County Superior

Court. Heard in the Court of Appeals 3 March 2020.


      Charlie A. Hunt, Jr. for plaintiff-appellant.

      Marcellino & Tyson, PLLC, by Clay A. Campbell, for defendant-appellee.


      TYSON, Judge.


      Michael Stacy Buchanan (“Plaintiff”) appeals from the order granting, in part,

North Carolina Farm Bureau Mutual Insurance Company’s (“Defendant”) motion for

summary judgment, and also from the order granting Defendant’s motion for a

directed verdict. We affirm the trial court’s orders.

                                    I. Background

      Plaintiff applied for homeowner’s insurance with Defendant in December 2012.

His application asserted his residence (“the Home”) was built in 1957.         After
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Defendant issued Plaintiff a homeowner’s policy (“the Policy”), it learned the Home

had actually been built in 1933. Defendant sent Plaintiff a letter on 8 February 2013,

cancelling the Policy effective as of the end of that month.

      Plaintiff submitted a homeowner change application to Defendant on 20

February 2013, requesting a decrease in coverage on the Policy. Defendant reissued

the Policy to Plaintiff and backdated coverage to 19 December 2012.             Plaintiff

renewed the Policy on 19 December 2013.

      The Home and some of Plaintiff’s personal property were damaged by fire on

10 June 2014. Plaintiff reported the loss to Defendant. An employee of Defendant

met with Plaintiff at the Home later that day.            Plaintiff informed Defendant’s

employee he could not enter the Home until the fire investigation was complete.

Defendant’s employee issued Plaintiff a check for $2,000.00 towards Plaintiff’s living

expenses.

      Todd Kirby, a large-loss adjuster for Defendant, met with Plaintiff and

inspected and photographed the damage to the Home on 12 June 2014, and again on

28 June 2014. Kirby prepared an estimate of $76,877.72 to repair the damages.

Kirby mailed the estimate to Plaintiff on 1 July 2014. Plaintiff sent Kirby a letter on

5 August 2014, stating he would not be restoring or rebuilding the Home, objecting

to Defendant requiring him to inventory his damaged personal property, wishing to

conclude the settlement process, and requesting $217,000.00 to settle his claims.



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      Kirby replied to Plaintiff with a letter sent 18 August 2014, and enclosed a

section of the Policy outlining, among other duties, Plaintiff’s duty to prepare and

submit an inventory after a loss. On 25 August 2014, Defendant mailed Plaintiff a

check for $4,800.00 to cover additional living expenses for six months. Plaintiff

provided an initial personal property inventory to Defendant in late August 2014.

      Kirby reviewed Plaintiff’s inventory and sent a letter to Plaintiff on 10

September 2014 explaining the Policy provisions relating to the differences between

actual cash value (“ACV”) and replacement cost value (“RCV”) for losses. The letter

included a check to Plaintiff for $9,066.16 for the ACV of the property listed in his

inventory. Kirby discussed the estimate with Plaintiff on 15 September 2014 and

advised Plaintiff he could submit his own estimate from a contractor of his choice.

Defendant mailed Plaintiff a second living expenses check for $4,800.00 on 20

November 2014.

      Defendant mailed Plaintiff a check for the damage to the Home in the amount

of $74,377.72, the amount of Kirby’s estimate less Plaintiff’s deductible, on 13

January 2015. Plaintiff voided and returned that check to Defendant in a letter from

his counsel on 22 May 2015, which also included an estimate prepared by a general

contractor indicating $147,125.34 would be a reasonable cost for repairs. Defendant

replied to Plaintiff’s counsel seeking supporting documentation for the estimate.




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Plaintiff’s counsel submitted additional pages of inventory to Defendant on 31 July

2015.

        Kirby determined the ACV of the additional inventory was $8,870.82, and

Defendant issued a check to Plaintiff for that amount on 28 August 2015. Defendant

reiterated its request for supporting documentation in letters to Plaintiff’s counsel on

27 October 2015 and 16 February 2016.

        Plaintiff filed suit against Defendant on 15 November 2016, seeking damages

caused by the fire and alleging breach of the Policy contract and unfair and deceptive

trade practices.    Defendant filed a motion to stay the proceedings and compel

appraisal pursuant to the Policy on 9 December 2016.          The trial court granted

Defendant’s motion to stay and compelled appraisal by order entered on 2 March

2017.

        Plaintiff moved to terminate the stay on 30 May 2017, after retaining his own

appraiser, alleging dilatory inaction by Defendant. The trial court denied Plaintiff’s

motion and modified the order granting the stay to set a calendar for the appraisal.

The chosen umpire made his appraisal award in September 2017.

        Plaintiff appealed the order on 2 October 2017, and also filed a motion to stay

the proceedings pending its appeal. Defendant filed three motions with the trial court

on 10 October 2017: to dismiss Plaintiff’s appeal, for summary judgment, and to

confirm the appraisal award. The trial court entered a series of orders on 8 December



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2017: denying Plaintiff’s motion to stay, dismissing Plaintiff’s appeal, and granting

partial summary judgment in favor of Defendant on the issue of unfair and deceptive

trade practices.

      Plaintiff appealed the trial court’s grant of partial summary judgment. This

Court dismissed his appeal as interlocutory in an unpublished opinion on 16 April

2019. Buchanan v. N.C. Farm Bureau Mut. Ins. Co. __ N.C. App. __, 825 S.E.2d 704

(2019) (unpublished). The parties proceeded to trial in May 2019.

      Defendant made several motions in limine prior to trial, including to exclude

any information that arose after the appraisal award, specifically identifying a report

by Plaintiff’s proposed expert witness, Terry LaDuke, based on his inspection of the

Home in September 2018.       The trial court preliminarily reserved ruling on the

motion.

      Defendant’s counsel renewed his motion in limine prior to LaDuke taking the

stand as Plaintiff’s final witness.     The trial court heard arguments, allowed

Defendant’s motion, and excluded LaDuke’s proposed testimony and report from

evidence. Plaintiff rested his case, and Defendant moved for a directed verdict. The

trial court granted Defendant’s motion for a directed verdict and entered its order on

21 June 2019. Plaintiff filed timely notice of appeal.

                                   II. Jurisdiction




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      Plaintiff’s brief does not include a statement of the grounds for appellate

review, as required by N.C. R. App. P. 28(b)(4). “Compliance with the rules . . . is

mandatory.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C.

191, 194, 657 S.E.2d 361, 362 (2008) (citations omitted).

      However, “noncompliance with the appellate rules does not, ipso facto,

mandate dismissal of an appeal.” Id. at 194, 657 S.E.2d at 363 (citation omitted).

“Noncompliance with [Appellate Rule 28(b)], while perhaps indicative of inartful

appellate advocacy, does not ordinarily give rise to the harms associated with review

of unpreserved issues or lack of jurisdiction.” Id. at 198, 657 S.E.2d at 365.

      Plaintiff’s failure to comply with Appellate Rule 28(b)(4) is non-jurisdictional

and does not mandate dismissal. See id. Counsel is admonished that our Appellate

Rules are mandatory, compliance is expected therewith, and sanctions are available

for violation. Id.; N.C. R. App. P. 28(b)(4). This appeal is properly before us pursuant

to N.C. Gen. Stat. § 7A-27(b)(1) (2019).

                                       III. Issues

      Plaintiff argues the trial court erred by granting: (1) Defendant’s motion to

stay the trial proceedings and compel appraisal of the Home; (2) Defendant’s motion

for summary judgment in part, on the unfair and deceptive trade practices claim; (3)

Defendant’s motion in limine to exclude the testimony of his environmental expert;




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and, (4) Defendant’s motion for directed verdict on his breach of contract claim at the

close of Plaintiff’s evidence.

                                     IV. Appraisal

                                 A. Standard of Review

       “A trial court’s denial of a motion to stay is subject to an abuse of discretion

standard of review.” Park East Sales, LLC v. Clark-Langley, Inc., 186 N.C. App. 198,

209, 651 S.E.2d 235, 242 (2007).

                                      B. Analysis

       Our Supreme Court has stated, “an insurance policy is a contract and its

provisions govern the rights and duties of the parties thereto.” N.C. Farm Bureau

Mut. Ins. Co., Inc. v. Sadler, 365 N.C. 178, 182, 711 S.E.2d 114, 117 (2011) (citation

omitted). Plaintiff argues the trial court erred in granting Defendant’s motion to stay

the trial and compelling an appraisal of the Home. Defendant argued, and the trial

court agreed, such appraisal was compelled by the terms of the Policy and this Court’s

precedent. See Patel v. Scottsdale Ins. Co., 221 N.C. App. 476, 482-83, 728 S.E.2d 394,

398-99 (2012) (interpreting insurance policy language as requiring appraisal process

as condition precedent to filing suit against insurer).

       Plaintiff argues the reasoning in Patel is inapplicable to this case, because the

Policy at bar states the amount of loss payment “may be determined by . . . [e]ntry of

a final judgment.”       Plaintiff argues this provision necessarily provides for



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determining the amount of loss by filing suit. Plaintiff cites two cases, neither of

which are binding upon this Court, to distinguish Patel.

      Plaintiff cites Hayes v. Allstate Ins. Co., as persuasive authority to support its

argument. Hayes v. Allstate Ins. Co., 722 F.2d 1332 (7th Cir. 1983). The policy under

review in Hayes did not expressly provide that no action could be maintained upon it

until after the loss was determined by appraisal. Id. at 1335.

      The Policy before us expressly provides: “No action can be brought against us

unless there has been full compliance with all of the terms under Section I of this

policy.” Section I of the Policy includes an appraisal clause: “If you and we fail to

agree on the value or amount of any item or loss, either may demand an appraisal of

such item or loss.” Plaintiff’s reliance on Hayes is unsupported and without merit.

      Plaintiff also cites Otto Indus. N. Am. v. Phx. Ins. Co., No. 3:12-CV-717-FDW-

DCK, 2013 WL 2124163 (W.D.N.C. May 15, 2013). The federal trial court in Otto

distinguished the Court’s holding in Patel, because the interpretation and application

of the terms and conditions of the policy at issue “includ[ed] the number of

occurrences, the existence and scope of coverage for equipment breakdowns[,] and

whether repair or replacement coverage is appropriate.” Otto, 2013 WL 2124163, at

*2. The court also noted the case before it “involves allegations concerning [the

insurer’s] bad faith conduct that are not subject to appraisal.” Id.




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      Plaintiff argues the trial court erred in following Patel, because his allegations

against Defendant assert bad faith conduct. Plaintiff failed to allege any issues

concerning the interpretation and application of the terms and conditions of the

policy, as were raised in Otto.    Although Plaintiff alleges bad faith conduct by

Defendant, such conduct alone does not justify disregarding the plain language of the

Policy, which requires appraisal as a condition precedent to suit when the loss

amount is disputed.

      Plaintiff has failed to show the trial court abused its discretion by granting

Defendant’s motion to stay. Plaintiff’s argument is overruled.

                      V. Unfair and Deceptive Trade Practices

                               A. Standard of Review

      “Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows that there is no genuine issue

as to any material fact and that any party is entitled to a judgment as a matter of

law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and

internal quotation marks omitted).

      When reviewing a trial court’s entry of summary judgment, “[a]ll facts asserted

by the adverse party are taken as true, and their inferences must be viewed in the

light most favorable to that party.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829,

835 (2000) (citations omitted). “The showing required for summary judgment may be



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accomplished by proving an essential element of the opposing party’s claim does not

exist, cannot be proven at trial, or would be barred by an affirmative defense.” Id.

                                     B. Analysis

      Plaintiff argues the trial court erred in granting Defendant’s motion for

summary judgment on his unfair and deceptive trade practices claim.           Plaintiff

alleges Defendant violated N.C. Gen. Stat. §§ 58-63-15(11) and 75-1.1 (2019) in both

the issuance and handling of the Policy. Plaintiff alleges Defendant committed six of

the unfair claim settlement practices listed in § 58-63-15(11):

             a. Misrepresenting pertinent facts or insurance policy
                provisions relating to coverages at issue;

             ...

             c. Failing to adopt and implement reasonable standards
                for the prompt investigation of claims arising under
                insurance policies;
             d. Refusing to pay claims without conducting a reasonable
                investigation based upon all available information;

             ...

             f. Not attempting in good faith to effectuate prompt, fair
                and equitable settlements of claims in which liability
                has become reasonably clear;

             ...

             h. Attempting to settle a claim for less than the amount to
                which a reasonable man would have believed he was
                entitled;

             ...


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             l. Delaying the investigation or payment of claims by
                requiring an insured claimant, or the physician, of [or]
                either, to submit a preliminary claim report and then
                requiring the subsequent submission of formal proof-of-
                loss forms, both of which submissions contain
                substantially the same information

N.C. Gen. Stat. § 58-63-15(11).

      Although N.C. Gen. Stat. § 58-63-15(11) (2019) requires a plaintiff show the

alleged violations were committed “with such frequency as to indicate a general

business practice . . . . unfair and deceptive acts in the insurance area are not

regulated exclusively by Article 63 of Chapter 58, but are also actionable under N.C.

Gen. Stat. § 75-1.1.” Country Club of Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co.,

150 N.C. App. 231, 243-44, 563 S.E.2d 269, 277 (2002) (citations and internal

quotation marks omitted).

      A violation of N.C. Gen. Stat. § 58-63-15 constitutes a violation of N.C. Gen.

Stat. § 75-1.1. Id. at 244, 563 S.E.2d at 278 (citation omitted). It is also “unnecessary

to determine whether the plaintiffs had established that the acts occurred with such

frequency as to constitute a general business practice” in order to recover against an

insurer under N.C. Gen. Stat. § 75-1.1. Id. (citation omitted).

                                      1. Issuance

      Plaintiff first alleges Defendant violated N.C. Gen. Stat. § 58-63-15(11)(a) by

agreeing to insure the Home for $149,000.00 prior to inspecting the property, then

cancelling the policy and offering a lower coverage upon learning of the true

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construction date. Plaintiff argues he was then induced by Defendant’s agent to pay

an extra premium to get 25% more coverage. Plaintiff does not argue or allege any

misrepresentation of pertinent facts or insurance policy provisions by Defendant in

this assertion.

      Although Plaintiff and Defendant dispute who bears the responsibility for the

basis of 1957 being the Home’s construction year on the original application, this

purported issue does not raise a question of material fact.          Reviewing all facts

asserted by Plaintiff as true, with all inferences therefrom viewed in the light most

favorable to him, Plaintiff failed to show a misrepresentation of “pertinent facts or

insurance policy provisions relating to coverages at issue.” N.C. Gen. Stat. § 58-63-

15(11)(a).

      Between December 2012 and June 2014, when the Home burned, Plaintiff had

eighteen months to seek either coverage with another insurer or to propose

amendments or endorsements to the Policy with Defendant. Defendant informed

Plaintiff in February 2013 it was cancelling the Policy, in part because it was “unsure

of the year of construction and square footage” of the Home. The record on appeal

does not reflect any protest or challenge of this decision by Plaintiff. Instead, Plaintiff

submitted a homeowner change policy, which Defendant accepted.                 Defendant

reissued the Policy and backdated coverage to its original issuance date. Plaintiff

chose to renew the Policy for an additional year in December 2013.



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       Plaintiff has not shown a misrepresentation by Defendant of any “pertinent

facts or insurance policy provisions relating to coverages at issue.” Id. Plaintiff has

also not shown any inducement by Defendant tending to show unfair and deceptive

trade practices. N.C. Gen. Stat. § 75-1.1. Plaintiff’s argument concerning Defendant’s

issuance of the Policy is overruled.

                                       2. Handling

       Plaintiff further argues Defendant committed several unfair claim settlement

practices listed in § 58-63-15(11) in its interactions with Plaintiff after the fire.

Specifically, Plaintiff alleges Defendant: (1) sent an unlicensed adjustor to conduct

its estimate, who (2) “made a very brief examination of the premises and offered

[Plaintiff] about half of the replacement cost” of the Home and personal property; (3)

forced Plaintiff to obtain at his own expense documentation of the damages; (4)

ignored Plaintiff’s submitted valuation; and, (5) only requested an appraisal two and

a half years after the fire.

       Plaintiff asserts Kirby was not a licensed insurance adjuster at the time of his

inspection of the Home. Plaintiff proffered as evidence a print-out of a North Carolina

Department of Insurance online licensee search showing no results for Kirby as of 15

October 2017. Kirby proffered as evidence a copy of his license from the Department

of Insurance and a print-out of an online search result from the North Carolina

Licensing Board for General Contractors showing his status as a licensee as of 25



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January 2017. Based upon the record before us, Plaintiff does not show Kirby was

unlicensed in June 2014.

      The remainder of Plaintiff’s arguments all arise from Defendant’s conduct

pursuant to the Policy, and Plaintiff’s displeasure with their handling and payments

of his claims. While Plaintiff clearly suffered from the fire and loss, he was advanced

multiple payments and tenders due for his losses and has failed to forecast evidence

Defendant engaged in any of the alleged unfair and deceptive trade practices he

asserts as grounds to show the trial court erred in granting Defendant’s motion for

summary judgment.

      Defendant has performed its duties under the provisions of the Policy.

Accepting all inferences asserted from Plaintiff’s facts in the light most favorable to

him, he cannot prove Defendant committed unfair and deceptive trade practices in

its handling of his claims under the Policy. See Dobson, 352 N.C. at 83, 530 S.E.2d at

835. Defendant’s argument is overruled.

                           VI. Exclusion of Expert Testimony

                                A. Standard of Review

      “A motion in limine seeks pretrial determination of the admissibility of

evidence proposed to be introduced at trial . . . . A trial court’s ruling on a motion in

limine will not be reversed absent an abuse of discretion.” Luke v. Omega Consulting




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Grp., LC, 194 N.C. App. 745, 750, 670 S.E.2d 604, 609 (2009) (citations and internal

quotation marks omitted).

                                      B. Analysis

      Plaintiff argues the trial court erred in refusing to allow the testimony and

report of his expert witness, Terry LaDuke.          Plaintiff sought to introduce this

evidence to show Defendant should have known possible contamination of the Home

posed a potentially dangerous threat to human occupancy, and Defendant should

have inspected the damage more thoroughly.

      Defendant objected to LaDuke’s proposed testimony and report on the grounds

that LaDuke had inspected the Home and prepared his report in 2018, long after the

loss and appraisal award had been entered. Under the Policy, the parties had already

conducted the appraisal process and settled upon the value of the Home without

LaDuke’s report.

      When Defendant renewed its motion in limine before LaDuke’s testimony, the

trial court asked Plaintiff’s counsel if Defendant knew about the contamination of the

Home when it made an offer to Plaintiff. Plaintiff’s counsel admitted he did not know

whether Defendant “knew the extent” of the contamination. The trial court further

asked if Plaintiff had raised the issue of potential contamination during the appraisal

process. Plaintiff’s counsel did not directly answer the trial court. Instead, Plaintiff’s




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counsel argued it would be unreasonable for Defendant to spend tens of thousands of

dollars to rebuild a home that would be purportedly uninhabitable.

      The trial court granted Defendant’s motion and disallowed LaDuke from

testifying. Considering the sole issue remaining before the court was the breach of

contract, and the parties had settled the value of the Home in the appraisal process,

LaDuke’s testimony would have been irrelevant. Plaintiff has failed to show the trial

court erred in granting Defendant’s motion for summary judgment.           Plaintiff’s

argument is overruled.

                                VII. Directed Verdict

                                A. Standard of Review

      “The standard of review of directed verdict is whether the evidence, taken in

the light most favorable to the non-moving party, is sufficient as a matter of law to

be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d

133, 138 (1991) (citation omitted).

             In determining the sufficiency of the evidence to withstand
             a motion for a directed verdict, all of the evidence which
             supports the non-movant’s claim must be taken as true and
             considered in the light most favorable to the non-movant,
             giving the non-movant the benefit of every reasonable
             inference which may legitimately be drawn therefrom and
             resolving contradictions, conflicts, and inconsistencies in
             the non-movant’s favor.

Turner v. Duke University, 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989) (citation

omitted).


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                                        B. Analysis

         Plaintiff does not argue his claim for breach of contract withstands Defendant’s

motion for a directed verdict. Instead, he argues different superior court judges ruled

upon Defendant’s motions for summary judgment and directed verdict, and because

Defendant had argued in both motions that the appraisal of the Home resolved the

contract issues in this case, the judge who entered the directed verdict did not have

the authority to overrule the previous judge’s summary judgment ruling on this same

issue.

         This Court has previously rejected this argument. “[A] pretrial order denying

summary judgment has no effect on a later order granting or denying a directed

verdict on the same issue or issues.” Clinton v. Wake County Bd. of Education, 108

N.C. App. 616, 621, 424 S.E.2d 691, 694 (1993).

         In Clinton, the appellant asserted error in the trial judge’s entry of directed

verdict on claims, which a different judge had previously denied summary judgment.

Id. This Court declined to review the appellant’s arguments based upon the prior

denial of summary judgment. Id. The “denial of a motion for summary judgment is

not reviewable during appeal from a final judgment rendered in trial on the merits.”

Id. (quoting Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)).

Plaintiff’s argument is overruled.

                                     VIII. Conclusion



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      Plaintiff has failed to show the trial court abused its discretion in granting

Defendant’s motion to stay the trial proceedings and to compel an appraisal of the

Home. The appraisal process was required by the Policy as a condition precedent to

Plaintiff filing suit against Defendant.

      Accepting all facts asserted by Plaintiff on his unfair and deceptive trade

practices claim as true, and viewing all inferences therefrom in the light most

favorable to him, Plaintiff failed to show a misrepresentation by Defendant of

“pertinent facts or insurance policy provisions relating to coverages at issue” in the

issuance of the Policy. N.C. Gen. Stat. § 58-63-15(11)(a).

      Plaintiff failed to show Kirby was an unlicensed contractor when he inspected

the Home. All of Plaintiff’s other allegations of unfair and deceptive trade practices

arise from Defendant’s asserted conduct pursuant to the provisions of the Policy.

Defendant performed its duties and exercised it rights reserved under the Policy.

Plaintiff cannot show a genuine issue of material fact exists to support his unfair and

deceptive trade practices claims.

      The trial court did not abuse its discretion in granting Defendant’s motion in

limine to exclude Plaintiff’s proffered expert witness. The proposed evidence did not

and could not relate to the remaining issue of breach of contract at trial.

      Denial of a motion for summary judgment is not reviewable on appeal from a

directed verdict and judgment rendered after trial on the merits. Clinton, 108 N.C.



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App. at 621, 424 S.E.2d at 694. Plaintiff’s argument asserting the trial court erred in

directing a verdict in favor of Defendant on the same issue, where a previous superior

court judge had denied summary judgment, is precluded by precedent. See id.

      The trial court’s orders are affirmed. It is so ordered.

      AFFIRMED.

      Chief Judge MCGEE and Judge YOUNG concur.




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