An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-585
                       NORTH CAROLINA COURT OF APPEALS
                              Filed:     4 March 2014
LORIE ANN PATTERSON,
     Plaintiff

                                              Durham County
      v.
                                              No. 11 CVS 2376

UNIVERSITY FORD, INC.,
     Defendant


      Appeal by plaintiff from judgment entered 19 October 2012

and orders entered 1 November 2012 and 25 March 2013 by Judge

Michael J. O’Foghludha in Durham County Superior Court.                       Heard

in the Court of Appeals 10 October 2013.

      Mario M. White, for Plaintiff.

      Poe Law Firm, PLLC, by G. Jona Poe, Jr., for Defendant.

      ERVIN, Judge.

      Plaintiff     Lorie    Ann    Patterson     appeals     from    a   judgment

entered based upon a jury verdict finding that Plaintiff and

Defendant did not enter into a contract and that Defendant did

not convert a 2010 Mustang that belonged to Plaintiff and from

orders denying Plaintiff’s motions for judgment notwithstanding

the verdict and for a new trial.                On appeal, Plaintiff argues

that the trial court erred by failing to instruct the jury that
                                           -2-
the Uniform Commercial Code controlled the transaction between

the   parties      and    by    denying    Plaintiff’s        motions       for   directed

verdict, judgment notwithstanding the verdict, and a new trial.

After    careful     consideration         of    Plaintiff’s     challenges         to   the

trial court’s judgment and orders in light of the record and the

applicable law, we conclude that the trial court’s judgment and

orders should be affirmed.

                                I. Factual Background
                                 A. Substantive Facts

       On     20   November        2010,        Plaintiff     drove     to        Defendant

University Ford’s place of business in Durham for the purpose of

purchasing a 2010 Ford Mustang.                   Prior to that date, Plaintiff

had    applied     for    automobile       financing        through     a    third-party

website which had, in turn, forwarded that request to several

entities, including Defendant.                  As a result, one of Defendant’s

employees contacted Plaintiff and requested that she fax a copy

of    her   pay    stub    to    Defendant       prior   to    her    arrival       at   the

dealership.        Plaintiff had been under the impression that she

would    be   able   to    get     the    vehicle      that   she    wanted       when   she

arrived at the dealership, and she became upset upon learning

during      discussions         with   Defendant’s       employees      that       certain

potential      issues      relating       to     her   credit       application       could

prevent her from making the purchase that she had in mind.
                                             -3-
       According        to    Plaintiff,      she   was    eventually    informed   by

Defendant’s       general         manager    that    she   had   been    approved   to

purchase a Mustang, picked out the vehicle she wanted, and took

it    for   a    test    drive.       After    driving     the   vehicle,   Plaintiff

signed several documents, including a retail installment sales

contract, or RISC, which specified the terms and conditions,

including the amount financed and the interest rate, under which

the    vehicle     sale       would   be    made.     Although     the   RISC   listed

Plaintiff as the buyer and Defendant as the seller/creditor, the

contract also stated that Defendant had “assign[ed] its interest

in this contract to C&F Finance Company (Assignee) under the

terms of Seller’s agreement(s) with Assignee.”1                    In addition, the

RISC stated that “[t]his contract contains the entire agreement

between     you    and       us   relating    to    this   contract,”    that   “[a]ny

change to this contract must be in writing and we must sign it,”

and that “[n]o oral changes are binding.”

       Simultaneously with the execution of the RISC, Plaintiff

signed a conditional delivery agreement, or CDA, which provided

that:

                University   Ford    is   delivering   this
                automobile based on the credit information
                received from the customer.  Final approval

       1
      Although Plaintiff originally testified that Defendant had
never informed her that C&F Finance Company would be financing
the sale, she later admitted on cross-examination that the RISC
provided that the purchase would be financed by C&F.
                                          -4-
            of the terms of a retail installment sales
            contract rests solely with a lender.          The
            terms    of   the   retail   installment    sales
            contract are not binding until accepted by a
            designated     lender.      This    contract   is
            cancelled if the terms are rejected by a
            lender.     If the contract is cancelled, the
            dealer will return the customer’s deposit
            and trade-in vehicle.      The customer agrees
            to   pay    for   any  damages    done   to   the
            automobile     during   the    time    they   had
            possession, and also agrees to indemnify
            University Ford for any damages caused to a
            third party.     If the contract is cancelled,
            the customer will return the vehicle to
            University Ford within 24 hours of being
            notified by the dealer.2

According    to       Defendant’s     controller,           Don     Colclough,    the

execution    of   a   CDA    along   with       an   RISC   is    standard   industry

practice as specifically authorized by North Carolina law.                         In

addition, Mr. Colclough testified that the CDA was part of the

RISC, that Defendant did not finance vehicle purchases, that an

agreement for the purchase of a vehicle was not finalized until

the necessary financing arrangements had been made, and that

Defendant    never     intended      to     accept     payments      directly     from

Plaintiff.

    After executing the RISC and CDA and trading in her 2007

Mustang,    Plaintiff       left   Defendant’s        facility     driving    a   2010


    2
      Plaintiff originally testified that she did not remember
signing the CDA and that Defendant did not explain the
conditional nature of the transaction to her.         However,
Plaintiff admitted on cross-examination that she read and went
over the CDA before signing it on 20 November 2010.
                                              -5-
Mustang.            Defendant maintained insurance on the 2010 vehicle

throughout the entire time that the 2010 Mustang remained in

Plaintiff’s possession and never made any effort to transfer the

vehicle’s title to Plaintiff.

      A few days after Plaintiff obtained possession of the 2010

Mustang, Defendant contacted Plaintiff and asked her to provide

proof of additional income given that the information that she

had   provided         did     not    suffice       to     support   approval    of     the

financing necessary to support the vehicle purchase.                             At that

point, Plaintiff told Defendant that she was receiving an extra

$1,000     a    month     “under      the     table”       from   her   ex-husband      and

workers’        compensation         benefits.           Although    Defendant    made    a

number of attempts to contact Plaintiff’s ex-husband for the

purpose        of    obtaining       proof    of    the     payments    that    Plaintiff

claimed        to    be   receiving,         it    never     received   the     requested

documentation.            As    a     result,      Defendant      eventually     informed

Plaintiff that her request for credit had been denied and that

Defendant was going to come pick up the vehicle.                          Subsequently,

one   of   Defendant’s          employees         went     to   Plaintiff’s     place    of

employment, took possession of the 2010 Mustang, and returned

the 2007 Mustang that Plaintiff had traded in.

                                B. Procedural History
                                           -6-
       On 10 December 2010, Plaintiff filed a complaint in which

she sought to recover damages from Defendant based upon unfair

and    deceptive      trade    practices,        conversion,       and   breach    of

contract claims.        On 11 February 2011, Defendant filed an answer

in    which   it   sought     to    have   Plaintiff’s     complaint      dismissed,

denied the material allegations of Plaintiff’s complaint, and

asserted a number of affirmative defenses.                  The issues raised by

Plaintiff’s complaint came on for trial at the 17 September 2012

civil session of the Durham County Superior Court.                        After the

presentation of the evidence, the arguments of counsel, and the

trial court’s instructions, the jury returned a verdict finding

that Plaintiff and Defendant had not entered into a contract and

that Defendant had not converted the 2010 Mustang.

        On    28   September       2012,    Plaintiff      filed    a    motion   for

judgment notwithstanding the verdict or, in the alternative, for

a new trial.          On 19 October 2012, the trial court entered a

judgment      based   upon    the    jury’s      verdict   which    provided      that

“Plaintiff take nothing by this action and that it be dismissed

with prejudice.”        On 1 November 2012, the trial court entered an

order denying Plaintiff’s motion for judgment notwithstanding

the verdict.       On 25 March 2013, the trial court entered an order

denying Plaintiff’s motion for a new trial.                   Plaintiff noted an

appeal to this Court from the trial court’s judgment and from
                                           -7-
the     orders         denying        Plaintiff’s         motion      for         judgment

notwithstanding the verdict and for a new trial.

                         II. Substantive Legal Analysis
                                A. Jury Instructions

      In her initial challenge to the trial court’s judgment,

Plaintiff contends that the trial court erred by                              failing to

instruct the jury that the Uniform Commercial Code controlled

the transaction between the parties.                    We do not find Plaintiff’s

argument persuasive.

      On     appeal,         arguments     “challenging       the     trial        court’s

decisions regarding jury instructions are reviewed de novo by

this Court.”           State v. Osorio, 196 N.C. App. 458, 466, 675

S.E.2d 144, 149 (2009).               “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 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)).                        “When reviewing

the   refusal     of     a    trial    court     to    give   certain      instructions

requested by a party to the jury, this Court must decide whether

the evidence presented at trial was sufficient to support a
                                           -8-
reasonable inference by the jury of the elements of the claim.

If the instruction is supported by such evidence, the trial

court’s failure to give the instruction is reversible error.”

Ellison v. Gambill Oil Co., 186 N.C. App. 167, 169, 650 S.E.2d

819, 821 (2007) (citations omitted), aff’d per curiam and disc.

review    improvidently         allowed,     363    N.C.     364,   677   S.E.2d     452

(2009).        However, the party seeking relief on appeal based upon

an allegedly erroneous jury instruction must establish that the

jury     was    misled     or   that   the       verdict     was    affected   by       an

improperly       omitted    instruction.           Robinson    v.   Seaboard   System

Railroad, 87 N.C. App. 512, 524, 361 S.E.2d 909, 917, disc.

review    denied,    321    N.C.    474,     364    S.E.2d    924    (1988).       As    a

result, “it is not enough for the appealing party to show that

error occurred in the jury instructions; rather, it must be

demonstrated that such error was likely, in light of the entire

charge, to mislead the jury.”                Id.     “[W]here a party fails to

object to jury instructions, ‘it is conclusively presumed that

the    instructions      conformed     to    the    issues     submitted    and     were

without legal error.’”            Madden v. Carolina Door Controls, Inc.,

117 N.C. App. 56, 62, 449 S.E.2d 769, 773 (1994) (quoting Dailey

v. Integon Gen. Ins. Corp., 75 N.C. App. 387, 399, 331 S.E.2d

148, 156, disc. review denied, 314 N.C. 664, 336 S.E.2d 399

(1985)).
                                             -9-
       In    this    case,        the    trial     court         instructed          the    jury     in

accordance         with    N.C.    Gen.     Stat.       §    20-72(b)         that,        “[i]n    the

context of automobile sales, no title to any motor vehicle shall

pass    or    vest       until    an    assignment          and    warranty          of    title     is

executed by the owner on the reverse certificate of title.”

Although      Plaintiff          has    argued     in       her    brief       that       the   trial

court’s instruction to this effect was erroneous, we note that

Plaintiff did not object to the challenged instruction at trial.

In fact, when the trial court indicated its intention to deliver

the     challenged          instruction           during          the        jury     instruction

conference,         Plaintiff          admitted    that          the    instruction          was     “a

statement of the law, I can’t argue about the law,” and stated,

“that’s fine[,] I’m not going to fight much of that.”                                              As a

result, since Plaintiff failed to object to this instruction at

trial,       “it    is     conclusively          presumed         that       the     instructions

conformed to the issues submitted and were without legal error.”

Madden, 117 N.C. App. at 62, 449 S.E.2d at 773.

       At trial, Plaintiff did object to the trial court’s refusal

to    include      additional          UCC-based    language            in    its    instructions

concerning         the    conversion       issue.           Although          the    trial      court

instructed         the    jury     with    respect          to    the        issue    of     whether

Defendant converted Plaintiff’s 2010 Mustang in accordance with

NCPJI 806.00, Plaintiff also contended that the jury should be
                                           -10-
instructed that “[t]itle, and therefore ownership, passes to the

buyer at the time and place at which the seller completes his

performance         with   reference      to     the    physical        delivery     of   the

goods, despite any reservation of a security interest and even

though a document of title is to be delivered at a different

time or place” in reliance                upon N.C. Gen. Stat. § 25-2-401(2).

However, we note that Plaintiff’s requested instruction was not

a correct statement of the applicable law given that it omitted

any reference to the fact that the language from N.C. Gen. Stat.

§   25-2-401(2)        upon    which      Plaintiff          relies    begins      “[u]nless

otherwise explicitly agreed . . . .”                     As a result, particularly

given   Defendant’s        contention       that       the    parties       had,   in   fact,

agreed that title did not pass to Plaintiff at the time of

delivery, the omission of this caveat from Plaintiff’s requested

instruction         rendered      that    instruction         legally       erroneous     and

obviated      the    necessity      for    the     delivery       of    the    instruction

requested by Plaintiff.             See State v. Munoz, 141 N.C. App. 675,

688,    541   S.E.2d       218,    226    (stating       that,        “if   the    requested

instruction is not a correct statement of the law, the trial

court can properly refuse to give it”), cert. denied, 353 N.C.

454, 548 S.E.2d 534 (2001).

       Finally, Plaintiff simply did not argue at trial that the

trial court should have instructed the jury to the effect that
                                           -11-
the UCC, instead of the statutory provisions governing motor

vehicle    transactions,          governed        the    relationship        between       the

parties    as      she     does   on    appeal.         In    fact,       Plaintiff    never

objected      to     the    trial       court’s    instructions           concerning       the

contract formation issue, all of which rested on the statutory

provisions         governing      motor    vehicle       transactions.              Instead,

Plaintiff       acknowledged            that     the     trial       court’s        proposed

instructions based on N.C. Gen. Stat. §§ 20-75.1 and 20-3-3(a)

were correct statements of the law and stated, instead, that she

could “make that work in [the] closing argument.”                                 As result,

given that the only UCC-based argument that Plaintiff advanced

in the court below related to her conversion claim, given that

the   trial     court      instructed      the    jury       in   accordance       with   the

relevant    sections        of    the    NCPJI,    given      that    Plaintiff       merely

argued at trial that the UCC applied to the conversion issue,

and since the trial court instructed the jury concerning the

conversion issue in accordance with the relevant pattern jury

instruction,        Henry    v.    Knudsen,       203    N.C.     App.     510,    519,    692

S.E.2d    878,      884     (stating      that    the     applicable        pattern       jury

instructions         “provide[d]         the     jury     with       an    understandable

explanation of the law”), disc. review denied, 364 N.C. 602, 703

S.E.2d 446 (2010), we hold that none of Plaintiff’s challenges
                                             -12-
to   the     trial       court’s    instructions         provide       any        basis    for

overturning the trial court’s judgment.

         B. Denial of Motions for Directed Verdict, Judgment
            Notwithstanding the Verdict, and a New Trial

      Secondly, Plaintiff argues that the trial court erred by

denying her motion for directed verdict at the close of all

evidence     and     her     motions     for        judgment       notwithstanding         the

verdict and a new trial.                In essence, Plaintiff contends that

the undisputed evidence in the record, when considered in light

of   what    she     believes      to   be    the     relevant       legal    principles,

required     the     trial   court      to    grant    the     motions       in    question.

Although Defendant contends that Plaintiff’s challenge to the

denial of her motion for a directed verdict was not properly

preserved for review by this Court, we need not address this

issue in light of our determination that none of the arguments

that Plaintiff has advanced in the course of challenging the

denial of these motions have merit.

                              1. Standard of Review
                     a. Motions for Directed Verdict and
                     Judgment Notwithstanding the Verdict

      A party is entitled to seek a directed verdict in his or

her favor at the conclusion of an opponent’s evidence and at the

conclusion of all of the evidence.                   N.C. Gen. Stat. § 1A-1, Rule

50(b).      Overman v. Gibson Prods. Co., 30 N.C. App. 516, 519, 227

S.E.2d     159,    161    (1976).       In    addition,        a   party     who    made    an
                                         -13-
unsuccessful motion for a directed verdict at the conclusion of

all    of   the   evidence     “may    move   to   have   the   verdict    and    any

judgment entered thereon set aside and to have judgment entered

in accordance with his motion for a directed verdict[.]”                         N.C.

Gen.   Stat.      §   1A–1,   Rule    50(b)(1).     “A    motion   for    [judgment

notwithstanding the verdict] provides the trial court with an

opportunity to reconsider the question of the sufficiency of the

evidence after the jury has returned a verdict and permits the

court to enter judgment ‘in accordance with the movant’s earlier

motion for a directed verdict and notwithstanding the contrary

verdict actually returned by the jury.’”                     Primerica Life v.

James Massengill & Sons, 211 N.C. App. 252, 256-57, 712 S.E.2d

670, 675 (2011) (quoting Ace, Inc. v. Maynard, 108 N.C. App.

241, 245, 423 S.E.2d 504, 507 (1992) (internal quotation marks

and citation omitted), disc. review denied, 333 N.C. 574, 429

S.E.2d 567 (1993)).

       “A   motion      for   judgment    notwithstanding       the   verdict      is

essentially a renewal of the motion for directed verdict, and

the same standard of review applies to both motions.”                       Zubaidi

v. Earl L. Pickett Enterprises, Inc., 164 N.C. App. 107, 119,

595 S.E.2d 190, 197, disc. rev. denied, 359 N.C. 76, 605 S.E.2d

151 (2004).           As a result, the standard of review utilized in

reviewing an appellate challenge to a trial court’s ruling with
                                            -14-
respect    to    a   motion    for     directed        verdict          or    a     motion    for

judgment     notwithstanding            the     verdict            is    “‘whether            upon

examination of all the evidence in the light most favorable to

the nonmoving party, and that party being given the benefit of

every    reasonable      inference       drawn     therefrom,           the        evidence    is

sufficient to be submitted to the jury.’”                          Branch v. High Rock

Realty, Inc., 151 N.C. App. 244, 250, 565 S.E.2d 248, 252 (2002)

(quoting Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 429,

531 S.E.2d 476, 479 (2000)), disc. review denied, 356 N.C. 667,

576 S.E.2d 330 (2003).             “In determining the sufficiency of the

evidence    to    withstand        a   motion      for    a     directed           verdict     [or

judgment notwithstanding the 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).        A     motion      for      directed         verdict     or

judgment notwithstanding the verdict “should be denied if more

than a scintilla of evidence supports each element of the non-

moving party’s claim.”             Weeks v. Select Homes, Inc., 193 N.C.

App. 725, 730, 668 S.E.2d 638, 641 (2008) (citation omitted).
                                     -15-
     We review orders ruling on a motion for directed verdict or

judgment notwithstanding the verdict de novo.                Austin v. Bald

II, L.L.C., 189 N.C. App. 338, 342, 658 S.E.2d 1, 4, disc.

review denied, 362 N.C. 469, 665 S.E.2d 737 (2008).                 “‘Under a

de novo [standard of] review, the court considers the matter

anew and freely substitutes its own judgment’ for that of the

lower tribunal.”       State v. Williams, 362 N.C. 628, 632-33, 669

S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen, Ltd.

P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).

                           b. New Trial Motion

     A challenge to the denial of a motion for a new trial is

reviewed for an abuse of discretion.           Worthington v. Bynum, 305

N.C. 478, 482, 290 S.E.2d 599, 602 (1982).                   An “[a]buse of

discretion     results    where    the    court’s   ruling    is    manifestly

unsupported by reason or is so arbitrary that it could not have

been the result of a reasoned decision.”               State v. Hennis, 323

N.C. 279, 285, 372 S.E.2d 523, 527 (1988).

                       2. Substantive Legal Issues
                       a. Breach of Contract Claim

     In her brief, Plaintiff contends that the trial court erred

by   denying     her     motions    for     directed     verdict,     judgment

notwithstanding the verdict, and a new trial with respect to her

breach of contract claim.          More specifically, Plaintiff asserts

that the undisputed evidence establishes that the parties had a
                                                 -16-
contract          which       Defendant      breached          by        refusing          to    accept

Plaintiff’s monthly payments and repossessing the vehicle prior

to the date upon which Plaintiff’s first payment was even due.

Plaintiff’s argument lacks merit.

       “‘The elements of a claim for breach of contract are (1)

existence of a valid contract and (2) breach of the terms of

that contract.’”              Ahmadi v. Triangle Rent A Car, Inc., 203 N.C.

App. 360, 362, 691 S.E.2d 101, 103 (2010) (quoting Poor v. Hill,

138    N.C.       App.       19,   26,     530    S.E.2d       838,       843    (2000)).              The

existence of an agreement to which at least two parties manifest

an intent to be bound is an essential prerequisite to the making

of a valid contract.                 Croom v. Goldsboro Lumber Co., 182 N.C.

217, 220, 108 S.E. 735, 737 (1921) (stating that mutual assent

between       the       parties       is    an         “essential         element”          of       every

contract); see also Kirby v. Stokes Cty. Bd. of Educ., 230 N.C.

619, 626, 55 S.E.2d 322, 327 (1949) (stating that “[a] contract

is an agreement between two or more persons or parties [based]

on    sufficient          consideration           to    do    or    refrain       from          doing   a

particular         act”).          “There    is    no     meeting        of     the    minds,         and,

therefore,         no     contract,        when    ‘in       the    contemplation               of   both

parties       .    .     .    something      remains         to     be    done        to    establish

contract[ual] relations.’”                       Parker v. Glosson, 182 N.C. App.

229, 232, 641 S.E.2d 735, 737 (2007) (quoting Fed. Reserve Bank
                                      -17-
v. Neuse Mfg. Co., Inc., 213 N.C. 489, 493, 196 S.E. 848, 850

(1938)).     As a result, if the agreement between the parties is

subject to the occurrence of some other event, no contract is

formed     until   this   condition     precedent      has    been   satisfied.

Parker, 182 N.C. App. at 232, 641 S.E.2d at 737.                          “Whether

mutual assent is established and whether a contract was intended

between     parties   are    questions       for     the     trier   of    fact.”

Nationwide Mut. Fire Ins. Co. v. Mnatsakanov, 191 N.C. App. 802,

805, 664 S.E.2d 13, 15 (2008) (quoting Creech v. Melnik, 347

N.C. 520, 527, 495 S.E.2d 907, 911 (1998)).

    In this case, Plaintiff and Defendant signed an RISC which

detailed the terms and conditions contained in the agreement

between the parties and included provisions to the effect that

Plaintiff was the buyer and Defendant was the seller/creditor,

that the sale would be made subject to a specific price and

payment terms, and that Defendant had assigned its interest in

the contract to C&F Finance Company.               In addition, both parties

executed a CDA which, as we have already noted, provided that:

            University     Ford     is   delivering    this
            automobile based on the credit information
            received from the customer.     Final approval
            of the terms of a retail installment sales
            contract rests solely with a lender.        The
            terms   of   the    retail  installment   sales
            contract are not binding until accepted by a
            designated    lender.      This   contract   is
            cancelled if the terms are rejected by a
            lender.    If the contract is cancelled, the
                                           -18-
               dealer will return the customer’s deposit
               and trade-in vehicle.      The customer agrees
               to   pay   for   any  damages    done   to the
               automobile    during   the    time    they had
               possession, and also agrees to indemnify
               University Ford for any damages caused to a
               third party.    If the contract is cancelled,
               the customer will return the vehicle to
               University Ford within 24 hours of being
               notified by the dealer.

As a result of the fact that “separate contracts relating to the

same   subject        matter    and   executed         simultaneously      by    the    same

parties may be construed as one agreement,” with this being

“true even where one contract states that there are no other

agreements between the parties,” Zinn v. Walker, 87 N.C. App.

325,   334,     361     S.E.2d     314,    319    (1987)      (citing     3     Corbin       on

Contracts §578 (1960 and 1984 supplement)), the trial court had

ample justification for allowing the jury to treat the CDA as

part of the contract between the parties.

       According       to    the   undisputed      record     evidence,       the   lender

rejected Plaintiff’s request for the extension of the credit

needed    to    support      the   purchase       of    the   2010    Mustang.          As    a

result, acting pursuant to the CDA, Defendant repossessed the

2010     Mustang      that     Plaintiff     had       intended      to   purchase       and

returned       both    the     deposit    that    Plaintiff       had     paid    and    the

vehicle that she had traded in as part of the sale transaction.

Although Plaintiff vigorously asserts that the execution of the

RISC created a binding contract and that the trial court erred
                                        -19-
by    allowing   the    jury    to   make       a    contrary   determination,     the

record     clearly       contained         ample        evidence      permitting     a

determination that the CDA constituted a part of the agreement

between the parties, that the CDA was a conditional delivery

agreement rather than a conditional sales contract, and that

there was no binding agreement between the parties in the event

that the proposed lender declined to extend credit to Plaintiff.

As a result, given that “[w]hether mutual assent is established

and    whether   a     contract      was    intended        between    parties     are

questions for the trier of fact,” Nationwide Mut. Fire Ins. Co.,

191 N.C. App. at 805, 664 S.E.2d at 15, and given that there

was, at a minimum, a genuine issue of material fact concerning

the extent, if any, to which the agreement embodied in the RISC

ever became effective, we see no error in the trial court’s

decision    to   allow    the    jury      to       determine   whether   a   binding

contract between the parties existed.

       In an attempt to persuade us to reach a different result,

Plaintiff argues that the trial court should have refrained from

allowing the jury to give effect to the CDA on the theory that

the RISC contained a merger clause and that a decision to allow

the jury to consider the CDA in determining whether a contract

between the parties existed resulted in a violation of the parol

evidence rule.         However, as we have already noted, the record
                                            -20-
would have supported a determination that the RISC and the CDA

were both components of an overall agreement between the parties

despite the fact that the RISC contained a merger provision.

Zinn,    87   N.C.     App.    at    334,    361      S.E.2d   at    319    (1987).     In

addition,      according       to     well-established         North       Carolina   law,

“parol    evidence      is    admissible         to    show    conditions      precedent,

which relate to the delivery or taking effect of the instrument,

as that it shall only become effective on certain conditions or

contingencies[.]”            Bailey v. Westmoreland, 251 N.C. 843, 845,

112 S.E.2d 517, 520 (1960).                  Thus, since the record contained

ample evidence supporting a conclusion that the RISC and the CDA

were part of a single overall contract despite the presence of a

merger    provision      in     the       RISC   and    since       parol    evidence   is

admissible for the purpose of showing that a condition precedent

has not been satisfied, we do not find Plaintiff’s argument

persuasive.         As a result, the trial court did not err by denying

Plaintiff’s         motions         for     a      directed      verdict,        judgment

notwithstanding the verdict, and a new trial.

                                b. Conversion Claim

     In addition, Plaintiff argues that the trial court erred by

denying       her     motions        for     a     directed         verdict,     judgment

notwithstanding the verdict, and a new trial with respect to her

conversion claim.             More specifically, Plaintiff contends that
                                         -21-
all of the evidence tends to show that an unlawful conversion

occurred.          Once again, we conclude that Plaintiff’s argument

lacks merit.

       A conversion occurs when there has been “an unauthorized

assumption and exercise of the right of ownership over goods or

personal chattels belonging to another, to the alteration of

their condition or the exclusion of an owner’s rights.”                             Mace v.

Pyatt, 203 N.C. App. 245, 256, 691 S.E.2d 81, 90 (quoting Myers

v. Catoe Construction Co., 80 N.C. App. 692, 695, 343 S.E.2d

281, 283 (1986)), disc. review denied, 364 N.C. 614, 705 S.E.2d

354 (2010).         “There are, in effect, two essential elements of a

conversion      claim:          ownership       in    the    plaintiff    and       wrongful

possession          or     conversion    by          the     defendant.”             Variety

Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365

N.C.   520,    523,       723   S.E.2d   744,        747     (2012).      As    a    result,

Plaintiff was required to show that she possessed an ownership

interest      in    the     2010   Mustang      that        is   the   subject      of   this

litigation in order to successfully maintain a conversion claim.

       In attempting to persuade us that the trial court erred by

denying       her        motions   for      a        directed      verdict,         judgment

notwithstanding the verdict, and a new trial, Plaintiff contends

that ownership of the 2010 Mustang passed to her at the time of

delivery.          However, the undisputed evidence contained in the
                                            -22-
present record tends to show that no certification of title

evidencing Defendant’s ownership was ever issued.                               In addition,

Defendant presented testimony, based upon the language of the

CDA,   to    the     effect     that      the    parties       did   not    intend      for   a

transfer       of    ownership       to    occur        until     financing       had    been

obtained, an event which never occurred.                         As a result, in light

of the evidentiary dispute with respect to this issue, we have

no   trouble        agreeing    with      the     statement       made     by    Plaintiff’s

counsel at trial to the effect that “ownership is the issue for

the jury” and hold that the trial court did not err by denying

Plaintiff’s          motions        for     a         directed       verdict,       judgment

notwithstanding the verdict, and a new trial with respect to

Plaintiff’s conversion claim.

               c. Unfair and Deceptive Trade Practices Claim

       Next,    Plaintiff       contends         that    the     trial   court     erred      by

denying      her       motion       for      a        directed       verdict,       judgment

notwithstanding the verdict, and a new trial with respect to her

unfair and deceptive trade practices claim.                          In support of this

contention, Plaintiff argues that CDAs like the one at issue

here   are     inherently       unfair       and      deceptive.         Once     again,      we

conclude that Plaintiff’s argument lacks merit.

       “To   prevail      on    a    claim       of     unfair    and    deceptive      trade

practices, a plaintiff must show:                       (1) defendant[] committed an
                                           -23-
unfair   or      deceptive     act    or    practice;     (2)   in     or   affecting

commerce; and (3) that plaintiff was injured thereby.”                         Carcano

v. JBSS, LLC, 200 N.C. App. 162, 171, 684 S.E.2d 41, 49 (2009)

(quoting First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C.

App. 242, 252, 507 S.E.2d 56, 63 (1998)).                  “A practice is unfair

when it offends established public policy as well as when the

practice    is      immoral,   unethical,         oppressive,   unscrupulous,      or

substantially injurious to consumers.”                   Marshall v. Miller, 302

N.C. 539, 548, 276 S.E.2d 397, 403 (1981).                        “A practice is

deceptive      if    it   ‘possesse[s]        the    tendency     or   capacity    to

mislead, or create[s] the likelihood of deception.’”                        Poor, 138

N.C. App. at 28-29, 530 S.E.2d at 845 (quoting Overstreet v.

Brookland, Inc., 52 N.C. App. 444, 453, 279 S.E.2d 1, 7 (1981)).

    According to Plaintiff, the use of a CDA results in a “spot

delivery”     or     “Yo-Yo”   sale,       transactions    that      are    inherently

unfair and deceptive and that have been held to be unlawful in

other jurisdictions.           Acceptance of Plaintiff’s argument would,

however,    require       us   to    overlook      the   fact   that    the   General

Assembly has explicitly authorized the use of CDAs in N.C. Gen.

Stat. § 20-75.1, which states that:

              Notwithstanding [N.C. Gen. Stat. §§] 20-
              52.1, 20-72, and 20-75, nothing contained in
              those sections prohibits a dealer from
              entering into a contract with any purchaser
              for the sale of a vehicle and delivering the
              vehicle to the purchaser under terms by
                                         -24-
            which the dealer’s obligation to execute                     the
            manufacturer’s certificate of origin or                      the
            certificate of title is conditioned on                       the
            purchaser   obtaining   financing  for                       the
            purchase of the vehicle.

N.C. Gen. Stat. § 20-75.1.              In view of the fact that the use of

CDAs is expressly authorized in this jurisdiction, we hold that

there was ample justification for the trial court’s decision to

deny    Plaintiff’s    motions      for       a    directed      verdict,       judgment

notwithstanding the verdict, and a new trial with respect to the

unfair and deceptive trade practices issue.

                         d. Punitive Damages Claim

       Finally, Plaintiff contends that the trial court erred by

denying     her   motions         for     a       directed      verdict,        judgment

notwithstanding the verdict, and a new trial with respect to her

claim for punitive damages.              According to Plaintiff, the record

shows that Defendant never intended to abide by the terms of the

contract    between    the   parties,         that    Defendant    had     engaged     in

similar conduct for more than two decades, and that Defendant’s

conduct    constituted    fraud     sufficient         to    support     an    award    of

punitive    damages.         We    do     not        find    Plaintiff’s        argument

persuasive.

       Punitive   damages    “are       awarded      as     punishment    due    to    the

outrageous nature of the wrongdoer’s conduct.”                      Juarez–Martinez

v. Deans, 108 N.C. App. 486, 495, 424 S.E.2d 154, 159-60, disc.
                                       -25-
review denied, 333 N.C. 539, 429 S.E.2d 558 (1993).                          For that

reason,    punitive     damages      are    “not    allowed      as    a    matter    of

course;” instead, “they may be awarded only when there are some

features of aggravation, as when the act is done wilfully and

evidences     a   reckless     and     wanton       disregard     of       plaintiff’s

rights.”    Scott v. Kiker, 59 N.C. App. 458, 462, 297 S.E.2d 142,

146    (1982).     As   a   general        proposition,     a    punitive      damages

recovery is not available as the result of a breach of contract,

with the exception of a breach of contract to marry.                        Newton v.

Standard Fire Insurance Co., 291 N.C. 105, 111, 229 S.E.2d 297,

301 (1976).       “Nevertheless, where there is an identifiable tort

even though the tort also constitutes, or accompanies, a breach

of    contract,   the   tort   itself       may    give   rise   to    a    claim    for

punitive damages.”       Id.   As a result of the fact that actionable

fraud     inherently    involves       intentional        wrongdoing,         punitive

damages are available in the event that a litigant is harmed by

fraudulent conduct on the part of the opposing party.                          Newton,

291 N.C. at 113, 229 S.E.2d at 302.

       Actual fraud consists of a “(1) [f]alse representation or

concealment of a material fact, (2) reasonably calculated to

deceive, (3) made with intent to deceive, (4) which does in fact

deceive, (5) resulting in damage to the injured party.”                        Mancuso

v. Burton Farm Dev. Co. LLC, __ N.C. App. __, __, 748 S.E.2d
                                         -26-
738,   749,     disc.    review      denied,     __    N.C.    __,    752    S.E.2d      149

(2013).       The evidence contained in the present record simply

does   not      establish     any    fraudulent        conduct       on   the    part    of

Defendant.        On    the   contrary,     the       undisputed      record     evidence

tends to show that Defendant believed that the CDA rendered the

RISC ineffective in the event that Plaintiff’s application for

credit    was    not    approved      and   that      Defendant       would      not   have

repossessed the 2010 Mustang had the relevant lender made a

different       determination.          Thus,     Plaintiff’s         contention        that

Defendant never intended to honor the RISC notwithstanding, the

record     contains         no      indication        that     any        “(1)    [f]alse

representation or concealment of a material fact, [that was] (2)

reasonably calculated to deceive, [and] (3) made with intent to

deceive,” Mancuso, __ N.C. App. at __, 748 S.E.2d at 749, was

ever made or that Defendant acted in such a manner as to exhibit

“a reckless and wanton disregard of plaintiff’s rights.”                           Scott,

59 N.C. App. at 462, 297 S.E.2d at 146.                      As a result, the trial

court did not err by denying Plaintiff’s motions for a directed

verdict, judgment notwithstanding the verdict, or a new trial

with respect to the punitive damages issue.

                                    III. Conclusion

       Thus, for the reasons set forth above, we conclude that

none of Plaintiff’s challenges to the trial court’s judgment and
                              -27-
orders have merit.   As a result, the trial court’s judgment and

orders should, and hereby do, remain undisturbed.

    NO ERROR.

    Judges ROBERT N. HUNTER, JR., and DAVIS concur.

    Report per Rule 30(e).
