               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1424

                              Filed: 18 September 2018

Forsyth County, No. 16-CVS-2377

BURTON CONSTRUCTION CLEANUP & LANDSCAPING, INC. and CHARLES
BURTON, Plaintiffs,

              v.

OUTLAWED DIESEL PERFORMANCE, LLC, and WILLIAM DANIEL BROWN,
and GRANT BROWN, Defendants.

        Appeal by plaintiffs from judgment entered 1 September 2017 by Judge Susan

E. Bray in Forsyth County Superior Court. Heard in the Court of Appeals 9 August

2018.


        Smith Law Group, PLLC, by Matthew L. Spencer, for plaintiffs-appellants.

        Bennett & Guthrie, P.L.L.C., by Joshua H. Bennett, for defendants-appellees.


        BERGER, Judge.


        Burton Construction Cleanup & Landscaping, Inc. and Charles Burton

(collectively “Plaintiffs”) appeal from a directed verdict judgment entered September

1, 2017 in favor of Outlawed Diesel Performance, LLC, William Daniel Brown, and

Grant Brown (collectively “Defendants”). Plaintiffs assert that the trial court erred

by (1) denying their motion for summary judgment which was filed and heard prior

to trial, (2) granting Defendants’ motion for directed verdict, and (3) granting

Defendants’ motion for costs and attorney’s fees. We disagree.
                   BURTON CONST. INC. V. OUTLAWED DIESEL, LLC

                                  Opinion of the Court



                        Factual and Procedural Background

      On April 27, 2016, Plaintiffs filed a complaint in Forsyth County Superior

Court against Defendants. The complaint was related to repairs Defendants were to

undertake on a vehicle owned by Plaintiffs. Plaintiffs alleged that they were initially

provided an estimate of $5,300.00 for the repairs, but Defendants submitted a bill in

the amount of $8,258.21 for work performed on the vehicle. Defendants refused to

release the vehicle until full payment was made by Plaintiffs.

      Plaintiffs eventually obtained the vehicle, but had concerns about the quality

of work done. Plaintiffs had the vehicle towed to a local dealership for inspection.

Plaintiffs claimed that many of the repairs had not been completed.

      Defendants filed a motion for summary judgment on April 21, 2017.

Defendants’ motion was denied, and the case was tried in Forsyth County Superior

Court in May 2017. At trial, Plaintiff Charles Burton admitted that he lied in an

affidavit concerning the condition of the vehicle, and Plaintiffs were also unable to

provide evidence of damages to support their claims.       The trial court entered a

directed verdict in favor of Defendants as to all of Plaintiffs’ claims for relief. In

deciding Defendants’ counterclaims, the jury found that Plaintiffs failed to perform

as required by the contract, and awarded Defendants the sum of $5,677.03.

      On June 2, 2017, Defendant filed a motion for attorney’s fees and costs,

accompanied with an affidavit by a Forsyth County attorney attesting to the skill



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level required to handle this type of civil case and the customary hourly rate for

comparable attorneys in Forsyth County. There was also attached to the motion an

affidavit from attorney Joshua H. Bennett attesting to the time he dedicated to

Defendants’ case, his hourly rate, and the total expense incurred by Defendants in

legal fees defending Plaintiffs’ claims through entry of the directed verdict.

      The trial court ordered Plaintiffs to pay costs associated with mediation in the

amount of $495.00, and awarded $21,692.50 in attorneys’ fees. (R p 124) Plaintiffs

appeal.

                                       Analysis

      Initially, we note that Plaintiffs are not entitled to appellate review of the trial

court’s denial of their motion for summary judgment. Plaintiffs have failed to include

a copy of the order denying summary judgment in the record on appeal, which

precludes review by this Court. N.C.R. App. 9(a)(1)(h); see also Beneficial Mtge. Co.

v. Peterson, 163 N.C. App. 73, 79, 592 S.E.2d 724, 728 (2004) (“The omission from the

record on appeal of any order denying summary judgment thus precludes review.”).

      Even if Plaintiffs’ motion for summary judgment was improperly denied, a trial

court’s ruling

             [on] a motion for summary judgment is not reversible error
             when the case has proceeded to trial and has been
             determined on the merits by the trier of the facts, either
             judge or jury.
                    To grant a review of the denial of the summary
             judgment motion after a final judgment on the merits


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                                        Opinion of the Court



               would mean that a party who prevailed at trial after a
               complete presentation of evidence by both sides with cross-
               examination could be deprived of a favorable verdict. This
               would allow a verdict reached after the presentation of all
               the evidence to be overcome by a limited forecast of the
               evidence. In order to avoid such an anomalous result, we
               hold that the denial of a motion for summary judgment is
               not reviewable during appeal from a final judgment
               rendered in a trial on the merits.

WRI/Raleigh, L.P. v. Shaikh, 183 N.C. App. 249, 252, 644 S.E.2d 245, 246-47 (2007)

(purgandum1). Therefore we cannot consider Plaintiffs’ argument concerning the

trial court’s denial of their motion for summary judgment, and it is dismissed.

       Additionally, Plaintiffs have declined to include a transcript of the trial court

proceedings in the record.2 “The burden is on the appellant to commence settlement

of the record on appeal, including providing a verbatim transcript if available.” Li v.

Zhou, ___ N.C. App. ___, ___, 797 S.E.2d 520, 524 (2017) (purgandum). Plaintiffs’

failure to include the transcript is fatal to their arguments on appeal concerning entry

of directed verdict by the trial court.

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




       1  Our shortening of the Latin phrase “Lex purgandum est.” This phrase, which roughly
translates “that which is superfluous must be removed from the law,” was used by Dr. Martin Luther
during the Heidelberg Disputation on April 26, 1518 in which Dr. Luther elaborated on his theology
of sovereign grace. Here, we use purgandum to mean simply that there has been the removal of
superfluous items, such as quotation marks, ellipses, brackets, citations, and the like, for ease of
reading.
        2 Counsel for Plaintiffs included as part of the record a copy of a letter he sent counsel for

Defendants dated December 20, 2017. The letter states in relevant part, “[w]e have not ordered, nor
do we plan to order portions of the transcript to include with the record.”

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                                  Opinion of the Court



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) (citing Kelly v. Int’l Harvester Co., 278 N.C. 153, 179 S.E.2d 396

(1971)). In addition,

             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 Univ., 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989).

      Without the benefit of a verbatim transcript, this Court is not able to conduct

a review of the trial court’s directed verdict to determine if the evidence was

insufficient as Plaintiffs assert, and we must affirm the trial court. See N.C.R. App.

P. 9(a) (“In appeals from the trial division of the General Court of Justice, review is

solely upon the record on appeal, the verbatim transcript of proceedings, if one is

designated, and any other items filed pursuant to this Rule 9.”).

      Finally, Plaintiffs contend the trial court erred in granting Defendants’ motion

for attorney’s fees and costs pursuant to N.C. Gen. Stat. §§ 6-21.5 and 75-16.1.

             In any civil action, . . . the court, upon motion of the
             prevailing party, may award a reasonable attorney’s fee to
             the prevailing party if the court finds that there was a
             complete absence of a justiciable issue of either law or fact
             raised by the losing party in any pleading. The filing of a


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                                   Opinion of the Court



             general denial or the granting of . . . a motion for a directed
             verdict pursuant to G.S. 1A-1, Rule 50, . . . is not in itself a
             sufficient reason for the court to award attorney’s fees, but
             may be evidence to support the court’s decision to make
             such an award. A party who advances a claim or defense
             supported by a good faith argument for an extension,
             modification, or reversal of law may not be required under
             this section to pay attorney’s fees. The court shall make
             findings of fact and conclusions of law to support its award
             of attorney’s fees under this section.

N.C. Gen. Stat. § 6-21.5 (2017).

      In determining if an award of costs and attorney’s fees is proper under N.C.

Gen. Stat. § 6-21.5,

                    [f]irst, we must determine whether or not the
             Plaintiffs presented a justiciable issue in their pleadings.
             Our case law has held that “in reviewing an order granting
             a motion for attorneys’ fees pursuant to N.C. Gen. Stat.
             § 6-21.5, the presence or absence of justiciable issues in the
             pleadings is a question of law that this Court reviews de
             novo.
                    Second, the trial court’s decision to award or
             deny attorney’s fees under section 6-21.5 is a matter left to
             the sound discretion of the trial court. An abuse of
             discretion occurs when a decision is either manifestly
             unsupported by reason or so arbitrary that it could not
             have been the result of a reasoned decision.
                    Next, we examine the award of costs and expenses
             to the prevailing party. Whether a trial court has properly
             interpreted the statutory framework applicable to costs is
             a question of law. We therefore review the trial court’s
             interpretation de novo. However, the reasonableness and
             necessity of costs is reviewed for abuse of discretion.

McLennan v. Josey, 247 N.C. App. 95, 97-98, 785 S.E.2d 144, 147 (2016) (purgandum).

      The trial court found that Plaintiffs’ claims were not justiciable. We agree.


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                                 Opinion of the Court



             In order to find complete absence of a justiciable issue it
             must conclusively appear that such issues are absent even
             giving the pleadings the indulgent treatment they receive
             on motions for summary judgment or to dismiss. Under
             this deferential review of the pleadings, a plaintiff must
             either: (1) reasonably have been aware, at the time the
             complaint was filed, that the pleading contained no
             justiciable issue; or (2) be found to have persisted in
             litigating the case after the point where he should
             reasonably have become aware that pleading he filed no
             longer contained a justiciable issue. Section 6-21.5 was
             enacted to discourage frivolous legal action and that
             purpose may not be circumvented by limiting the statute’s
             application to the initial pleadings. Frivolous action in a
             lawsuit can occur at any stage of the proceeding and
             whenever it occurs is subject to the legislative ban.

Credigy Receivables, Inc. v. Whittington, 202 N.C. App. 646, 655, 689 S.E.2d 889, 895

(purgandum), review denied, 364 N.C. 324, 700 S.E.2d (2010).

      Here, the trial court found that Plaintiffs had instituted an action against

Defendants for failure to make necessary repairs which caused Defendants’ vehicle

to be undriveable. Plaintiffs subsequently filed a motion for summary judgment

which included an affidavit by Plaintiff Charles Burton asserting the truck was

undriveable and had sustained $22,750.00 in damages. The trial court specifically

found, “[b]ased on the issues of fact surrounding Plaintiffs’ damages, whether the

truck was driveable or not, the Court denied Defendants’ Motion for Summary

Judgment on the issue of Plaintiffs’ damages.”.

      Without the benefit of a verbatim transcript, we are only able to review the

documents in the record, which include the trial court’s directed verdict judgment


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                                   Opinion of the Court



and the order for attorney’s fees and costs. A review of the record establishes, at a

minimum, that Plaintiffs persisted in litigating the case after the point where they

should have reasonably been aware that the pleadings no longer contained a

justiciable issue.

       The trial court found that at trial, “Plaintiff Charles Burton admitted during

cross-examination that he knew the truck was ‘driveable’ when it left Defendants’

shop” and that his statement in the affidavit that the truck was “undriveable” was

incorrect. The trial court also found that Plaintiffs’ false affidavit was the only reason

they were able to proceed to trial, and ultimately found Plaintiffs’ claims to be

frivolous and malicious. Moreover, the trial court found Plaintiffs were unable to

prove their purported damages with any “reasonable certainty.”

       In awarding attorney’s fees and costs, the trial court found

                     An award of attorney’s fees against the Plaintiffs in
              this case would not amount to sanctioning a party for
              pursuing a good faith claim simply because they ultimately
              did not prevail. In this case, the Plaintiffs knew or should
              have known before they instituted this action that they
              lacked – and could not obtain – evidence to support the
              crucial element of their claim that they had been damaged
              in any way by any act or omission of the Defendants.
              Plaintiffs provided the sworn affidavit of Plaintiff Burton
              to defeat summary judgment in which he claimed his truck
              was ‘undriveable’ when it left the Defendants’ shop.
              However, under cross-examination at trial, Burton
              admitted that allegation – which was the basis for
              Plaintiffs’ damages claim – was false.

              ...


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                                 Opinion of the Court



                   [T]he Plaintiffs’ claim was not simply unmeritorious,
            but also frivolous and malicious under N.C.G.S. §75-16.1.

            ...

                   Defendants have provided evidentiary support
            indicating that their fees were reasonable, including the
            Affidavit of their lead counsel Joshua H. Bennet and the
            affidavit of . . . a leading litigator in Forsyth County and
            the surrounding area. . . .

                   The services performed by Bennett & Guthrie, PLLC
            on behalf of the Defendants in this litigation were highly
            skilled, reasonable[,] and necessary.

                   Bennett & Guthrie, PLLC attorneys, paralegals, and
            legal assistants worked a total of 116.9 hours and billed
            $21,692.50 during the defense of the litigation. The
            requested fees do not include any amounts that the
            Defendants incurred after the entry of directed verdict on
            May 23, 2017, including those fees incurred in the recovery
            of their attorney’s fees and costs. This amount was
            appropriate, reasonable[,] and necessary.


      Based upon the record before us, the trial court did not abuse its discretion by

awarding attorney’s fees and costs to Defendants.

      In an action for unfair and deceptive trade practices,

            the presiding judge may, in his discretion, allow a
            reasonable attorney fee to the duly licensed attorney
            representing the prevailing party, such attorney fee to be
            taxed as a part of the court costs and payable by the losing
            party, upon a finding by the presiding judge that:
            (1) The party charged with the violation has willfully
            engaged in the act or practice, and there was an
            unwarranted refusal by such party to fully resolve the
            matter which constitutes the basis of such suit; or


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             (2) The party instituting the action knew, or should have
             known, the action was frivolous and malicious.

N.C. Gen. Stat. § 75-16.1 (2017).

      Again, based upon the findings of the trial court and the limited record before

us, the trial court did not abuse its discretion by awarding attorney’s fees to

Defendants pursuant to N.C. Gen. Stat. §75-16.1.

                                        Conclusion

      The trial court’s directed verdict is affirmed. We affirm the award of attorney’s

fees and costs by the trial court because the Plaintiffs have failed to demonstrate the

trial court abused its discretion.



      AFFIRMED.

      Judges DIETZ and TYSON concur.




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