                                      NO. COA13-1180

                         NORTH CAROLINA COURT OF APPEALS

                                Filed:      5 August 2014

GRE PROPERTIES THOMASVILLE LLC,
     Plaintiff-Appellee,

      v.                                         Davidson County
                                                 No. 10CVD1417
LIBERTYWOOD NURSING CENTER, INC.,
     Defendant-Appellant.


      Appeal by defendant from judgment entered 28 December 2012

by   Judge   April       C.    Wood    in   Davidson    County    District      Court.

Cross-appeal by plaintiff from order entered 28 January 2013 by

Judge   Mary   F.    Covington         in   Davidson    County    District      Court.

Heard in the Court of Appeals 19 March 2014.


      Robinson Bradshaw & Hinson, P.A., by Julian H. Wright, Jr.,
      and Cary B. Davis, and Barnes, Grimes, Bunce & Fraley,
      PLLC, by D. Linwood Bunce, II, for plaintiff-appellee and
      cross-appellant.

      Nexsen Pruet, PLLC, by David                 S.   Pokela,    for    defendant-
      appellant and cross-appellee.


      McCULLOUGH, Judge.


      Libertywood        Nursing      Center,    Inc.    (“defendant”),        appeals

from the judgment in favor of GRE Properties Thomasville LLC

(“plaintiff”)       in     this     summary     ejectment     action.      Plaintiff

cross-appeals       from      the   order    denying    its   motion     for   summary
                                        -2-
judgment.      For the following reasons, we find no error.

                                   I. Background

      This case arises out of plaintiff’s lease of a premises

located at 1028 Blair Street in Thomasville, North Carolina, to

defendant for the operation of a nursing home.                  The lease, dated

25   August     2000   and   executed       by    plaintiff’s    predecessor     in

interest,     Ganot    Corporation,     and      defendant,     provided   for   an

initial ten year term commencing 1 October 2000 with options for

defendant     to   extend    the    lease   for    two   additional   five     year

terms.

      Particularly relevant to this appeal, the lease contained

the following provisions:

              SECTION 5.5 Waste Lessee shall not commit,
              or suffer to be committed, any waste on the
              Leased Premises nor shall Lessee maintain,
              commit   or   permit     the   maintenance     or
              commission of any nuisance on the Leased
              Premises or use the Leased Premises for any
              unlawful purpose.       For purposes of the
              Article 5.5 “waste” as used herein includes,
              but is not limited to, loss, or serious and
              imminent   threat   of    loss   as    reasonably
              determined   in    good    faith    by    Lessor,
              Regarding:   (i) the license to operate the
              leased premises as a nursing home; (ii) any
              certificate of need rights; or (iii) any
              other governmental license or certification
              material to the operation of the Leased
              Premises as a nursing home, including but
              not    limited     to,     certification      for
              participation    in    the    Medicare     and/or
              Medicaid Programs under Titles XVIII and XIX
                      -3-
of the Social Security Act, as amended. . .
.

SECTION 8.1 Lessee assumes the full and sole
responsibility      for      the     condition,
furnishing,      operation,      repair      and
maintenance of the Demised Premises and
every portion thereof from and after the
Commencement Date of the Term of this Lease
and (except as expressly set forth in
Section 2.1) Lessor shall not under any
circumstances    be    responsible    for    the
performance of any repairs, replacements,
changes or alterations whatsoever or the
furnishing of any services in or to the
Demised Premises or the Buildings and Lessor
shall not be liable for the cost thereof.
Lessee and Lessor agree that, throughout the
Term of this Lease, Lessee, at Lessee’s sole
cost and expense, shall maintain and repair
the Demised Premises, the Buildings, and the
sidewalks and curbs adjacent or appurtenant
thereto, and shall keep or cause the same to
be maintained in good order and condition,
and promptly at Lessee’s own cost and
expense,    make    all   necessary     repairs,
replacements thereto, interior and exterior,
structural and non-structural, ordinary as
well as extraordinary, foreseen as well as
unforeseen, and shall keep and maintain all
portions of the Demised Premises and the
Buildings and the sidewalks adjoining the
same in a clean and orderly condition, free
of accumulation of dirt, rubbish, snow and
ice.   When used in this Article VIII or in
Article IX, the Term “repairs” shall include
all    necessary     replacements,    renewals,
alterations, additions and betterments. All
repairs made by Lessee shall be at least
equal in quality and class to the original
work.    The necessity for and adequacy of
repairs to the Buildings pursuant to this
Section 8.1 shall be measured by the
standard which is appropriate for buildings
                    -4-
of similar construction, use, class and
location, provided that Lessee shall in any
event make all repairs necessary to avoid
any structural damage or injury thereto.

SECTION 19.1 If during    the   Term   of   this
Lease Lessee shall:

    . . . .

    (c) default in fulfilling any of the
    covenants of this Lease (other than the
    covenants for the payment of Basic
    Rent, additional rent and other charges
    payable   by    Lessee   hereunder),  and
    Lessee shall not within twenty (20)
    days after the giving to Lessee by
    Lessor   of   written   notice   of  such
    default, have cured such default (or,
    in the case of default which cannot
    with due diligence be cured by Lessee
    within such twenty (20) day period,
    then provided Lessee in good faith
    commences    such   curing   within  said
    twenty (20) day period, within such
    extended period as may be necessary to
    complete the curing of same with all
    due diligence); . . . .

    . . . .

Lessor, at its option, may give to Lessee a
notice of intention to Terminate this Lease,
effective as of the date of the occurrence
of an Event of Default, whereupon this Lease
and all right, title and interest of Lessee
hereunder shall Terminate as fully and
completely as if that day were the date
herein specifically fixed for the expiration
of the Term, and Lessee will then quit and
surrender the Demised Premises to Lessor,
but   Lessee    shall   remain   liable   as
hereinafter provided.
                                            -5-
       When defendant took possession of the premises, it did so

“as is” with the roof in poor condition and in need of repair.

As leaks occurred, defendant would repair them.                                However, in

2009 defendant began receiving complaints from plaintiff about

the condition of the premises.                    Specifically, on 19 November

2009,      defendant    received      a    letter      from        plaintiff    requesting

defendant       provide   a    plan       to   address           alleged   violations     of

Article VIII of the lease.                These alleged violations included “a

number of roof leaks” and “moisture in the walls” that could

“develop into serious damage to the building[,]” “deficiencies

noted in recent surveys[,]” repairs needed to the parking and

roadway,      and    repairs    to    the      brick    veneer.            Defendant    then

received a follow-up letter from plaintiff on 10 December 2009

that    noted     the   dreadful     condition         of    the    premises.      In    the

second letter, plaintiff stated the following:

              Within thirty days the roof must be renewed
              as well as the gutters and downspouts.

              All asphalt must be renewed in thirty days.
              Also a suitable scheduled replacement of all
              the worn-out furnishings must be approved.

              You must diligently tend to a possible mold
              problem.    Brick mortar must be replaced
              where required as does caulking around
              windows and doors.

To   end    the     letter,    plaintiff       noted        it    “look[ed]    forward    to

[defendant’s] response before January 10, 2010.”
                                            -6-
      On 2 February 2010, counsel for plaintiff sent defendant a

notice of default.            The notice also informed defendant of an

inspection and offered defendant the opportunity to submit and

implement a plan to cure the defaults and bring the premises

into compliance with the terms of the lease.                     On 23 February

2010, defendant gave notice to plaintiff of its intent to extend

the lease for an additional five year term and, on 18 March

2009, responded through counsel to plaintiff’s 2 February 2010

notice of default.           In defendant’s response, defendant denied it

was in default of the lease.

      By    letter    dated    1    April    2010,   plaintiff   terminated     the

lease      and    demanded     that     defendant       immediately   vacate    the

premises.

      When       defendant    did     not   vacate   the    premises,      plaintiff

initiated this summary ejectment action to remove defendant from

the     premises.       Plaintiff       filed     its     Complaint   in    Summary

Ejectment in Davidson County Small Claims Court                       on 14 April

2010.      Following a hearing, the magistrate entered a Judgment in

Action for Summary Ejectment in favor of plaintiff on 22 April

2010.      Defendant appealed that judgment to District Court.
                                       -7-
    Once        in   District   Court,      defendant     filed        an   Answer   &

Counterclaim on 14 May 2010 to which plaintiff replied on 11

June 2010.

    Following a period of discovery, on 11 July 2012, plaintiff

moved for summary judgment.              In both the motion and a brief

filed in support of the motion, plaintiff argued defendant was

in default of Section 5.3 of the lease when it gave notice of

its intention to exercise the renewal                 option on 23 February

2010.    Thus, plaintiff argued the notice was void and without

effect, resulting in the expiration of the lease at the end of

the initial 10 year term on 31 October 2010.                 On 29 August 2012,

plaintiff’s motion for summary judgment came on for hearing in

Davidson    County     District     Court    before   the    Honorable       Mary    F.

Covington, who announced her decision to deny the motion at the

conclusion of the hearing.

    By Notice of Voluntary Dismissal filed 20 November 2012,

defendant dismissed its counter-claim against plaintiff.

    On     26    November   2012,    the    case   came     on   for    a   pre-trial

hearing, during which the court considered a motion in limine by

plaintiff to strike the deposition testimony of Mr.                          John M.

Underwood, a former employee of plaintiff’s parent company who

was deposed in both his individual capacity and as plaintiff’s
                                      -8-
corporate designee      pursuant to N.C. Gen. Stat. §              1A-1, Rule

30(b)(6).     At the conclusion of the hearing, the trial court

denied plaintiff’s motion in limine and entered a Final Order on

Pre-trial Conference.

       The following day, 27 November 2012, the case was called

for jury trial in Davidson County District Court, the Honorable

April C. Wood, Judge presiding.

       At the conclusion of the trial on 12 December 2012, the

jury    returned   verdicts   in   favor    of   plaintiff   finding:         (1)

defendant violated provisions of the lease and failed to cure

those    violations   after   being     provided   written   notice     and   an

opportunity to cure; and (2) plaintiff did not waive defendant’s

defaults.    The trial court then entered judgment for plaintiff

ordering    defendant   be    removed    from    and   plaintiff   be   put    in

possession of the premises.

       On 4 January 2013, defendant filed post-trial motions for

judgment notwithstanding the verdict and, alternatively, a new

trial.     Those motions were denied by order of the trial court

filed 18 January 2013.         An additional order memorializing the

prior denial of plaintiff’s 11 July 2012 motion for summary

judgment was subsequently filed on 28 January 2013.
                                           -9-
       Defendant      filed    Notice      of    Appeal    on    8    February       2013.

Plaintiff filed Notice of Cross-Appeal shortly thereafter on 13

February 2013.

                                  II. Discussion

       On appeal, defendant contends the trial court erred in (1)

failing to instruct the jury that a breach of a commercial lease

must     be    material   to     warrant        forfeiture      of    the    lease     and

ejectment; and (2) denying                it the right to call plaintiff’s

counsel       as   witnesses   at    trial.        On     cross-appeal,       plaintiff

contends the trial court erred in denying its motion for summary

judgment prior to the jury trial.                   We address these issues in

order.

                                 Jury Instruction

       During the charge conference, the parties agreed that the

trial judge should instruct the jury pursuant to N.C.P.I.--Civil

845.00, the pattern instruction for summary ejectment when there

has been a violation of a provision in a lease.                              Defendant,

however,       proposed   that      the    trial     judge      add    the    following

instruction on materiality to the pattern instruction:

               Fifth, that [d]efendant’s default under
               Section 19.1(c), Section 8.1 and/or Section
               5.5 of the Lease was so material that it
               justified a termination of the Lease[.]
                                 -10-
Upon considering defendant’s request, the trial judge declined

to   include   the   special   instruction   and   noted   defendant’s

objection to the omission prior to instructing the jury.           The

trial judge then proceeded to issue the following instructions

to the jury:

          The first issue reads, is the landlord, GRE,
          entitled   to   possession   of  the  leased
          premises on the ground tenant, Libertywood,
          violated provisions of the lease and failed
          to   cure   those   violations  after  being
          provided written notice by GRE and an
          opportunity to cure.

          On this issue the burden of proof is on GRE.
          This means that GRE must prove by the
          greater weight of the evidence several
          things.     First,   that   Libertywood   took
          possession of the premises under a lease
          with GRE.    A lease is a contract for the
          exclusive possession of a premises. A lease
          may be written or verbal. Second, that the
          parties agreed that as part of the lease
          tenant, Libertywood, . . . A. [w]ould . . .
          maintain[]   the   premises   and   make   all
          necessary   repairs   and    replacements   in
          accordance with section eight point one
          (8.1) of the lease, and B. would not permit
          waste as set forth [in] section five point
          five (5.5) of the lease.

          Third, that the parties agreed that the
          lease would terminate in the event the
          tenant, Libertywood, violated – sections
          eight point one (8.1) or five point five
          (5.5) of the lease and the[n] failed to cure
          or commence in good faith to cure the
          violations    within  twenty    days    after
          receiving   written  notice   from   GRE   as
          required by section nineteen point one
                                          -11-
               (19.1) of the lease.

               Four, that Libertywood violated sections
               eight point one (8.1), and five point five
               (5.5) of the lease an[d] failed to cure or
               commence   in   good  faith   to    cure   the
               violations    within   twenty    days    after
               receiving written notice from GRE.

               Fifth, that GRE terminated the lease as
               provided by the lease by giving Libertywood
               written notice of termination on April the
               first, two thousand ten (4/1/2010) and
               Libertywood did not vacate the premises.

               Finally, as to this issue on which GRE has
               the burden of proof, if you find that by the
               greater weight of the evidence, that the
               landlord is entitled to possession of the
               leased premises then it would be your duty
               to answer this issue yes in favor of GRE.
               If, on the other hand, you fail to so find
               then it would be your duty to answer this
               issue no, in favor of Libertywood.

These    instructions      closely       mirror   N.C.P.I.--Civil        845.00   and

exclude an instruction on materiality.

      Now,      on   appeal,    defendant    first    argues   the   trial    court

erred     in    failing    to     issue     the   requested     instruction       on

materiality.

      This Court has recognized a four part test to determine if

the     trial    court    erred     in     refusing    to   give     a    requested

instruction.

               A specific jury instruction should be given
               when “(1) the requested instruction was a
               correct statement of law and (2) was
               supported by the evidence, and that (3) the
                                       -12-
            instruction   given,   considered  in   its
            entirety, failed to encompass the substance
            of the law requested and (4) such failure
            likely misled the jury.”

Outlaw v. Johnson, 190 N.C. App 233, 243, 660 S.E.2d 550, 559

(2008) (quoting Liborio v. King, 150 N.C. App. 531, 534, 564

S.E.2d 272, 274, disc. review denied, 356 N.C. 304, 570 S.E.2d

726 (2002)).      In addition, “[f]ailure to give a requested and

appropriate jury instruction is reversible error [only] if the

requesting party is prejudiced as a result of the omission.”

Id.

      Defendant first contends the law requires breaches of a

lease to be material to justify summary ejectment.                     Thus, in

accordance with the test set forth in Outlaw, defendant asserts

the requested instruction on materiality was a correct statement

of the law.       In support of its argument, defendant cites this

Court’s decision in Loomis v. Hamerah, 140 N.C. App. 755, 538

S.E.2d 593 (2000), as well as cases and treatises that are not

binding on this Court.

      In Loomis, this Court reviewed the trial court’s grant of

summary judgment in favor of a landlord who brought a summary

ejectment    action.     As     this   Court   explicitly     stated    in   the

opinion,    the   dispositive    issue    in   Loomis   was   “whether    there

[was] a genuine issue of material fact as to [the d]efendant’s
                                               -13-
breach of the [l]ease[.]”                     Loomis, 140 N.C. App. at 760, 538

S.E.2d at 596.         Upon review, this Court agreed with the tenants

and held genuine issues of material fact existed as to whether

the tenants breached the lease.                      Id. at 761, 538 S.E.2d at 596-

97.      As a result, this Court reversed the grant of summary

judgment in favor of the landlord and remanded the case to the

trial court.        Id. at 761, 538 S.E.2d at 597.

       In    citing     Loomis,          defendant         relies     on    the        following

language that this Court reduced to a footnote:

              To the extent there has been a breach of any
              provision of the [l]ease, not every breach
              “justifies a cancellation and rescission” of
              the contract.    Childress v. Trading Post,
              247 N.C. 150, 156, 100 S.E.2d 391, 395
              (1957).   To justify termination of a lease,
              the breach “must be so material as in effect
              to defeat the very terms of the contract.”
              Id. (citations omitted)[.]

Id. at 761 n.3, 538 S.E.2d at 597 n.3.                               Upon review of the

Loomis      opinion,    it       is    clear    to    us    that    the    above       footnoted

language      was    merely           dicta    and    unnecessary          to    the     Court’s

determination that genuine issues of material fact existed as to

whether the tenants breached the lease.                            Thus, the language is

not authoritative.               Moreover, we note the case cited in the

footnote in Loomis is not a summary ejectment case resulting

from   a    breach     of    a    lease,       but    a    construction         contract    case

involving alleged breaches of and variations from an agreement
                                      -14-
between builder and owner.           See Childress, 247 N.C. at 156, 100

S.E.2d    at   395   (“Not   every   breach    of   a   contract   justifies   a

cancellation and rescission. The breach must be so material as

in effect to defeat the very terms of the contract.”).

    Upon review of Loomis, Childress, and the other non-binding

authorities cited by defendant, we are not persuaded the trial

court erred in refusing to issue the requested instruction on

materiality.

    In     North     Carolina,    “[s]ummary    ejectment    proceedings    are

purely statutory[.]”         Marantz Piano Co., Inc. v. Kincaid, 108

N.C. App. 693, 696, 424 S.E.2d 671, 672 (1993).                    Among other

events,    North     Carolina’s    General    Statutes    allow    for   summary

ejectment “[w]hen the tenant or lessee . . . has done or omitted

any act by which, according to the stipulations of the lease,

his estate has ceased.”           N.C. Gen. Stat. § 42-26(a)(2) (2013).

“Under [N.C. Gen. Stat. § 42-26(a)(2)], a breach of the lease

cannot be made the basis of summary ejectment unless the lease

itself provides for termination by such breach or reserves a

right of reentry for such breach.”             Stanley v. Harvey, 90 N.C.

App. 535, 537, 369 S.E.2d 382, 384 (1988).               In the present case,

Section 19.1 of the lease provided for termination of the lease

upon breach of Sections 5.5 and 8.1.
                                         -15-
    Upon     review       of     the      pattern          instructions         and     the

instructions      provided      in    this    case,       stated     above,      we     hold

N.C.P.I.--Civil 845.00, as applied in this case, sufficiently

addressed   the    required      elements       for       summary    ejectment        under

North Carolina law.          Therefore, the trial court did not err in

denying   defendant’s     request       to    add     a    special    instruction        on

materiality.

    Moreover,       assuming         arguendo    the       trial     court      erred     in

failing     to    issue        defendant’s       requested           instruction         on

materiality, we are not convinced that defendant was prejudiced.

The instructions to the jury specifically identified Sections

5.5 and 8.1 as the relevant provisions for deciding whether a

breach of the lease occurred.                Upon review of the lease, it is

clear that Sections 5.5 and 8.1 are not insignificant to the

agreement   between    plaintiff        and     defendant;         thus,   we    find    it

unlikely that a breach of either section would be immaterial.

Accordingly, even if the requested instruction on materiality

was a correct statement of North Carolina law, defendant was not

prejudiced by the omission and the error does not amount to

reversible error.

                             Counsel as a Witness
                                             -16-
       As noted in the background, during discovery Mr. Underwood,

the     former       director     of        construction       and    development      for

plaintiff’s parent company, was deposed in both his individual

capacity and as plaintiff’s corporate designee pursuant to N.C.

Gen.    Stat.    §     1A-1,    Rule    30(b)(6).        Certain      portions    of    Mr.

Underwood’s testimony were favorable to defendant.

       Although        plaintiff       did     not   raise      concerns     about     Mr.

Underwood’s      competence        during      the   deposition       held   in   October

2010,    months        later,    after       learning    Mr.    Underwood     had      been

diagnosed with a neurological condition affecting his memory,

plaintiff filed a motion in limine pursuant to N.C. Gen. Stat. §

8-81 to exclude his deposition testimony from trial.                         In support

of its motion, plaintiff argued unfair prejudice and lack of

personal knowledge under Rules 403 and 602 of the North Carolina

Rules of Evidence.             Upon considering arguments made during a 26

November     2012       pre-trial        hearing,       the     trial    court      denied

plaintiff’s motion in limine.

       Thereafter, defendant introduced Mr. Underwood’s deposition

testimony       into    evidence       at    trial   and      read   portions     of    the

testimony to the jury.                 In response, plaintiff introduced the

deposition       testimony        of     Mr.     Underwood’s         neurologist       into

evidence in order to attack the credibility of Mr. Underwood’s
                                     -17-
deposition testimony.        Portions of the deposition testimony by

Mr. Underwood’s neurologist called Mr. Underwood’s memory at the

time his deposition was taken into question.             Specifically, Mr.

Underwood’s   neurologist      stated   he   believed   Mr.   Underwood    was

suffering from mild dementia in October 2010.

      In order to rebut plaintiff’s assertions that Mr. Underwood

was   not   competent   at     the   time    of   his   deposition,   during

discussions in chambers, defendant requested it be able to call

Julian Wright and Cary Davis, counsel for plaintiff, to testify

regarding their preparation of Mr. Underwood for his deposition.

The trial judge, however, denied the request in chambers.                 As a

result, defendant was not able to question plaintiff’s counsel

on Mr. Underwood’s competence.          Defendant did, however, attempt

to make an offer of proof to preserve its right to appeal.

      Now, on appeal, defendant argues the trial court erred in

denying its request to call plaintiff’s counsel as witnesses of

Mr. Underwood’s competence in order to bolster Mr. Underwood’s

deposition testimony.        Yet, defendant cites only State v. Kirby,

206 N.C. App. 446, 456, 697 S.E.2d 496, 503 (2010), for the

proposition that issues of relevance are reviewed de novo and

fails to cite any further legal authority in support of its

argument.     As a result, we find defendant has abandoned this
                                    -18-
argument.    See N.C. R. App. P. 28(b)(6) (2014) (“The body of the

argument and the statement of applicable standard(s) of review

shall   contain   citations    of    the    authorities      upon   which   the

appellant relies.”) (emphasis added).

    Although defendant’s argument is abandoned, we take this

opportunity to note

            [t]here is . . . a natural reluctance to
            allow attorneys to appear in a case as both
            advocate   and  witness.     Therefore,   the
            decision of whether to permit [it] is within
            the discretion of the trial court.        The
            circumstances under which a court will
            permit a lawyer for a party . . . to take
            the witness stand must be such that a
            compelling reason for such action exists.

State v. Simpson, 314 N.C. 359, 373, 334 S.E.2d 53, 62 (1985)

(citations omitted).

    Where    other    witnesses     could    testify    to   Mr.    Underwood’s

competence, the trial court did not abuse its discretion in

denying defendant’s request to call plaintiff’s counsel as a

witness.

                            Directed Verdict

    In     addition   to   responding       to    defendant’s   arguments    on

appeal, plaintiff asserts, as an alternative basis in the law

supporting the judgment, that the trial court erred in denying

its motion for a directed verdict.               Because we find no error in
                                           -19-
the   trial    below,     we    do   not    address   plaintiff’s      alternative

argument.

                                 Summary Judgment

      In the event we reversed the judgment based on the jury’s

verdict,    plaintiff     filed      a   cross-appeal    contending     the   trial

court erred in denying its motion for summary judgment.                     Because

the   judgment    based    on    the     jury’s   verdict    stands,   we   do   not

address plaintiff’s cross-appeal.                 Furthermore, an appeal of a

denial    of   summary    judgment         is   ordinarily   not   reviewable    on

appeal from a final judgment rendered in a trial on the merits.

See Harris v. Walden, 314 N.C. 284, 286-87, 333 S.E.2d 254, 256

(1985).

                                 III. Conclusion

      For the reasons discussed, we find no error in the trial

below.

      No error.

      Judges ELMORE and DAVIS concur.
