An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                               NO. COA13-1439
                       NORTH CAROLINA COURT OF APPEALS

                            Filed: 16 September 2014


PAULA K. GREGORY, Administratrix
of the Estate of DARRYL TYRONE
GREGORY, JR.,
     Plaintiff-Appellant,

      v.                                      Forsyth County
                                              No. 10 CVS 8267
OLD REPUBLIC HOME PROTECTION
COMPANY, INC.
     Defendant-Appellee.


      Appeal by Plaintiff from judgment entered 24 May 2013 by

Judge Stuart Albright in Superior Court, Forsyth County.                      Heard

in the Court of Appeals 12 August 2014.


      Kennedy, Kennedy, Kennedy and Kennedy, LLP, by Harold L.
      Kennedy, III and Harvey L. Kennedy, for Plaintiff-
      Appellant.

      Moore & Van Allen PLLC, by Joshua D. Lanning and Melinda L.
      Vervais, for Defendant-Appellee.


      McGEE, Chief Judge.


                                   I.     Synopsis

      Paula K. Gregory (“Plaintiff”), the administratrix of the

estate of Darryl Tyrone Gregory, Jr. (“Gregory”),                       initiated

this wrongful death action against Old Republic Home Protection
                                    -2-
Company, Inc. (“Defendant”), following the 2008 carbon monoxide

poisoning death of Gregory.         Plaintiff has failed to properly

preserve the issue of whether the trial court erred in violation

of Rule 404(b) by admitting at trial certain convictions of

Gregory.       The trial court did not err in granting Defendant’s

motion     for    directed    verdict     on      Plaintiff’s    UDTP   claim.

Plaintiff has failed to make a proper argument concerning the

trial court’s grant of directed verdict on Plaintiff’s breach of

implied warranty claim and, therefore, Plaintiff has abandoned

this argument.      We find no error.

                                  II.     Facts

         Willie McKinney (“McKinney”) purchased a house at 2205

East Florida Street (“the house”) in Greensboro in the summer of

2007 as an investment rental property.               McKinney’s real estate

agent    and     property    manager,     Genevieve     Herbin    (“Herbin”),

obtained a home warranty (“the warranty”) for the house from

Defendant at that same time.            At trial, McKinney was asked the

following question concerning the warranty: “Did you even know

you had a policy before Ms. Herbin told you in the summer of

2008?”     Defendant answered in the negative.

    In June or July of 2008, Gregory began living in the house.

However,    Gregory’s   sister    actually     signed    the    lease   on   the

house. Shortly after moving into the house, Gregory informed
                                          -3-
McKinney    that   the     air    conditioning          system       was     not   working

properly.      McKinney, without involving Defendant, contacted a

technician recommended by Herbin.                  At the time, McKinney was

apparently    still   unaware       that    he     had    a    home        warranty    with

Defendant.     The technician advised McKinney that both the air

conditioning and the heating system might need to be repaired or

replaced.

      Herbin then informed McKinney of the warranty and Herbin

contacted     Defendant,         who     sent      one     of        its      independent

contractors,     Windham    Heating       and     Air    (“Windham         Heating”),    to

inspect the heating system.                Initially, in early November of

2008, a technician from Windham Heating diagnosed a cracked heat

exchange in the furnace. Cracks in the heat exchange could have

caused a dangerous release of carbon monoxide into the house.

Subsequently, the owner of Windham Heating, Paul Edward Windham

(“Windham”),     examined    the        heating    system       at     the    house,    and

determined     that   the        heat    exchange        was     not       cracked     and,

therefore, did not replace the heat                     exchange or the heater.

Windham did not identify any other problem with the heating

system.     Subsequent analysis by experts for both Plaintiff and

Defendant indicated that the heat exchange was leaking little,

if any, carbon monoxide.                Plaintiff’s and Defendant’s experts

had   slightly     differing       opinions       concerning         how     the     carbon
                                            -4-
monoxide got into the house, but all were in agreement that the

creation of negative pressure in the closet that contained the

furnace caused carbon monoxide to be sucked down the exhaust

pipe and into the house, rather than properly exhausting up and

out of the house.

    Gregory    and    Monique       Carpenter        were    found     in    the    house,

having died of carbon monoxide poisoning, on 14 November 2008.

Plaintiff    filed    her    complaint        against       Defendant       and    Windham

Heating on 15 November 2010, alleging, inter alia, negligence,

punitive damages, Unfair and Deceptive Trade Practices (“UDTP”),

and breach of implied warranty.               The record is unclear as to how

Plaintiff’s    claims       against    Windham       and     Windham    Heating       were

concluded,    but    by     the     time     the     Order    on     Final    Pre-Trial

Conference was filed on 7 May 2013, Windham and Windham Heating

were no longer named defendants.

    Trial commenced on 6 May 2013 on Plaintiff’s claims against

Defendant of negligent retention, vicarious liability, breach of

warranty,    and    UDTP.      At     the    close    of     Plaintiff’s      evidence,

Defendant moved for directed verdicts on all charges.                         The trial

court   granted     Defendant’s       motions      for      directed    verdict      with

respect to the UDTP claim and the breach of warranty claim, and

denied Defendant’s motions for directed verdict on Plaintiff’s

remaining claims.
                                           -5-
    The trial continued on the charges of negligent retention

and vicarious liability.           Following closing arguments, the trial

court instructed the jury and presented it with three issues to

decide: (1) “Was Darryl Tyrone Gregory Jr.’s death caused by the

negligence      of   Paul   Edgar       Windham     doing    business     as   Windham

Heating and Air Conditioning?”                  (2) “Was Darryl Tyrone Gregory

Jr.’s   death    caused     by    the     negligence      of   . . . Defendant       in

retaining Paul Edgar Windham doing business as Windham Heating

and Air Conditioning?”           (3) “What amount is the estate of Darryl

Tyrone Gregory Jr. entitled to recover for wrongful death?”                        The

jury answered “no” to the first issue, finding that Gregory’s

death was not caused by negligence on the part of Windham and,

therefore,   did     not    address       the    remaining     issues.      Plaintiff

appeals.

                                      III. Issues

                                    A. Rule 404(b)

    In Plaintiff’s first argument, she contends the trial court

erred   by   admitting      part     of    Gregory’s        criminal     record    into

evidence in violation of N.C. Gen. Stat. § 8C-1, Rule 404(b).

We disagree.

    Plaintiff’s        argument     on     appeal    is     that   the   trial    court

erred by allowing evidence at trial of some of Gregory’s prior

convictions in violation of Rule 404(b) of the North Carolina
                                       -6-
Rules of Evidence, which prohibits admitting prior bad acts “to

prove the character of a person in order to show that he acted

in conformity therewith.”         N.C. Gen. Stat. § 8C-1, Rule 404(b)

(2013).     However, Plaintiff did not make this argument at trial.

     At trial, Plaintiff moved in limine to exclude any evidence

related     to   Gregory’s     prior    criminal    convictions,       criminal

charges, or criminal activity, pursuant to N.C. Gen. Stat. § 8C-

1,   Rule    609,    “[i]mpeachment     by    evidence    of   conviction   of

crime[,]” and       further argued that,        even if the evidence was

admissible pursuant to Rule 609, it should be excluded because

its probative value was substantially outweighed by the danger

of unfair prejudice under N.C. Gen. Stat. § 8C-1, Rule 403.

Plaintiff    later    argued   that    the    evidence   should   be   excluded

pursuant to Rule 608(b), which states: “Specific instances of

conduct.--Specific instances of the conduct of a witness, for

the purpose of attacking or supporting his credibility, other

than conviction of crime as provided in Rule 609, may not be

proved by extrinsic evidence.”               N.C. Gen. Stat. § 8C-1, Rule

608(b) (2013).

     The trial court initially ruled: “With regard to criminal

charges and criminal activity, [Plaintiff’s] motion is allowed.

[Defendant’s] sole request, should it become relevant, would be

criminal convictions?”         Defendant agreed, and the trial court
                                      -7-
deferred ruling on the admissibility of any criminal convictions

of Gregory:

            I   certainly  understand   the   plaintiff's
            contention.    However, I do believe the
            plaintiff can open the door to the testimony
            the plaintiff wants to keep out. So if the
            plaintiff opens the door, I will consider
            any   evidence   of    the   defendant,   any
            convictions.   Again, I can't give you an
            advisory opinion past what I've already
            said. I am taking it under advisement. The
            plaintiff is certainly entitled to prove, in
            fact, what type of person the decedent was,
            to prove what type of care and assistance
            and society and companionship and comfort.
            But if the plaintiff opens the door to that
            line of questioning, the defendant is going
            to be allowed to rebut the fact that he was
            a good person.     If the plaintiff puts in
            evidence that he was a good person and that
            he did good things, I will consider it.
                 It doesn't mean any convictions will be
            automatically admissible, however. It means
            it's under advisement, and I will consider
            it. Everybody is on notice that if you open
            the door to this testimony with regard to
            the type of person the decedent was, the
            door will be open.

    Plaintiff      put     on     evidence,        including    testimony     from

Gregory’s    children,     and    photographs       of   Gregory   coaching   his

son’s football team.            Defendant then sought to admit certain

criminal convictions Gregory had on his record.                 The trial court

stated:   “What   I'm    hearing    . . .     is    --   it's   not   necessarily

404(b).     It's offered to rebut the evidence that's been offered

by [P]laintiff.”         Defendant responded: “That's correct.”                The
                              -8-
trial court then stated that from its “point of view it’s a

different analysis [than Rule 404(b)].”   The trial court ruled:

              I am going to allow some of the
         criminal convictions in.     I find that the
         plaintiff has opened the door, and I
         understand the plaintiff disagrees with the
         court's ruling.     Nevertheless, I do find
         that the plaintiff has opened the door to
         the type of person they have put in issue in
         this case, the type of person Mr. Gregory is
         and was during the course of his life.
              And it appears that he has done many
         good things during the course of his life,
         including raising three beautiful children,
         being a good father, a good and fit parent
         for his children.     That is certainly the
         inference as to the testimony that was
         brought forth, including the five-year-old
         that testified that he was a very good
         parent to his children.
              I'm   specifically   also   looking  at
         Plaintiff's Exhibits 25 and 29 in which they
         show Mr. Gregory as a football coach in the
         year of 2003, Plaintiff's Exhibit 25, and
         the year 2006 -- it's right on that
         photograph that was admitted into evidence -
         - showing that he was a coach, not only to
         his own child, but to many other children.
         And I believe some of the questions involved
         that he was a coach of young people in
         general, not limited to just his son.
         Again, it was an inference of the type of
         person. Obviously, the inference is that he
         was a good person, not only to his own
         children but to other people as well.
              I think the criminal convictions from
         2004, one count of assault on a female, one
         count of assault with a deadly weapon, and a
         conviction from 2007, maintaining a dwelling
         place for storing narcotics and possession
         with intent to sell and deliver cocaine
         rebut the inference that he is a good
         person, and I think the defendant is going
         to be allowed to challenge that inference
                                -9-
          because the plaintiff has opened the door.
               They are also going to be allowed to
          challenge the inference that he's a fit and
          proper parent based on the arguments of the
          defendant.   I considered Rule 403, and I am
          excluding all the [pre-2004] convictions
          based on Rule 403[.]
               Nevertheless, with regard to these
          convictions from 2004 and 2007, especially
          in light of the evidence offered by the
          plaintiff in Plaintiff's 25 and 29, I find
          the probative value of those convictions are
          not substantially outweighed by the danger
          of   unfair   prejudice,  confusion   of   the
          issues, or misleading the jury.     Again, he
          is allowed to rebut the inference that I
          have discussed.

     Plaintiff excepted to the trial court’s ruling, but without

making any argument concerning Rule 404(b).      Plaintiff requested

a   limiting   instruction   “that    these   convictions   would   be

considered only on the issue of whether Mr. Gregory was a fit

parent or a good parent, something like that.”       The trial court

gave a limiting instruction in accord with what Plaintiff had

requested.

     The trial court instructed the jury that “[d]amages for

Darryl Tyrone Gregory Jr.'s death also include fair compensation

for the present monetary value of Mr. Gregory to his next of

kin.” Gregory’s next of kin were his children.       The trial court

further instructed:

          There is no fixed formula for determining
          the present monetary value of Mr. Gregory to
          his next of kin. You must determine what is
          fair compensation by applying logic and
                                -10-
         common sense to the evidence.        You may
         consider the services, protection, care, and
         assistance of Mr. Gregory, whether voluntary
         or obligatory, to his next of kin.      These
         words are to be given their ordinary
         meanings.
              You   may   consider  the   family   and
         personal relationships between Mr. Gregory
         and his next of kin, and what you find to be
         the reasonable value of the loss to them of
         these things over the life expectancy of Mr.
         Gregory. You may also consider the society,
         companionship,   comfort,  guidance,   kindly
         offices and advice of Mr. Gregory to his
         next of kin.    These words are also to be
         given their ordinary meaning.

    The trial court therefore ruled that, because Plaintiff had

introduced evidence of Gregory’s good character as a father,

including specific instances such as coaching his son’s football

team, Plaintiff had “opened the door”          and made character an

issue for the jury to consider when valuing the loss of Gregory

to his children.

    Plaintiff   did   not   challenge   this   basis   for   the   trial

court’s ruling at trial and, therefore, has abandoned any such

challenge.   N.C.R. App. P. 10(a)(1) (“In order to preserve an

issue for appellate review, a party must have presented to the

trial court a timely request, objection, or motion, stating the

specific grounds for the ruling the party desired the court to

make if the specific grounds were not apparent from the context”

and must have “obtain[ed] a ruling upon the party's request,

objection, or motion.”).
                                        -11-
       The trial court did not base its ruling on Rule 404(b), and

Plaintiff does not challenge the actual basis for the trial

court’s ruling on appeal.          Plaintiff has therefore abandoned any

such   challenge,    and   we    must   affirm    the   ruling    of   the   trial

court.    State v. Hodges, 195 N.C. App. 390, 396, 672 S.E.2d 724,

729 (2009) (the defendant abandoned argument pursuant to N.C.R.

App. P. 28(b)(6) because the defendant did not make the argument

in his brief).

       Finally, Plaintiff contends in her brief that

            [o]nce the criminal convictions of the
            deceased   were   admitted    into   evidence,
            Plaintiff had no chance of prevailing in
            this   action.     The   admission   of   drug
            offenses,   including   those   dealing   with
            cocaine, was highly prejudicial and created
            a substantial risk that the jury decided the
            case based on the deceased’s character and
            not upon an objective determination of the
            facts[.]

Plaintiff then stated: “The trial court abused its discretion in

not excluding evidence of [Gregory’s] criminal convictions where

the    danger   of   unfair     prejudice      substantially     outweighed    any

probative value.”      These conclusory statements, without any true

argument or citation to authority, violate Rule 28(b)(6) of the

North Carolina Rules of Appellate Procedure, and subject this

argument to dismissal.          Hodges, 195 N.C. App. at 396, 672 S.E.2d

at 729.    Because it was Plaintiff’s duty in the first instance

to argue prejudice in her initial brief, it was improper for
                                          -12-
Plaintiff to use her reply brief as a means of introducing some

evidence related to prejudice.               N.C.R. App. P. 28 (2013); Hardin

v. KCS Int'l, Inc., 199 N.C. App. 687, 707-08, 682 S.E.2d 726,

740 (2009) (citations omitted) (this Court “‘will not entertain

what    amounts    to    a     new   argument        presented       in     th[e]        reply

brief’”).

       Plaintiff fails in her burden of showing that the trial

court    abused    its       discretion      in    ruling     that        the    contested

evidence    was    admissible        under    Rule     403,    and        that     she    was

materially prejudiced thereby.                    State v. Stevenson, 169 N.C.

App. 797, 800-01, 611 S.E.2d 206, 209 (2005) (the ruling on Rule

403 “is within the sound discretion of the trial court, whose

ruling will be reversed on appeal only when it is shown that the

ruling was so arbitrary that it could not have resulted from a

reasoned decision”).

       Importantly,       Gregory’s          prior     convictions              were     only

introduced into evidence for the purpose of assisting the jury

in determining damages, assuming the jury reached the issue of

damages.        The     trial    court       instructed       the    jury        that     the

convictions were not to be considered for any other purpose.

“This   Court     presumes      that     jurors      follow    the        trial     court's

instructions.”        State v. Cummings, 352 N.C. 600, 623, 536 S.E.2d

36, 53 (2000) (citations omitted).                   Because the jury found that
                                      -13-
Gregory’s death was not caused by negligence on the part of

Windham,    it   did   not   reach    the    issue   of   Defendant’s   alleged

negligent hiring or retention of Windham, and did not reach the

issue of damages.       This argument is without merit.

                  B. Unfair or Deceptive Trade Practices

    In Plaintiff’s second argument, she contends that the trial

court   erred    in    directing     verdict   in    favor   of   Defendant   on

Plaintiff’s claim for unfair and deceptive trade practices.                   We

disagree.

    Even assuming arguendo the trial court erred in directing

verdict    for   Defendant    on     Plaintiff’s     UDTP    claim,   Plaintiff

cannot show prejudice pursuant to N.C. Gen. Stat. § 1A-1, Rule

61, which states:

            No error . . . or defect in any ruling or
            order . . . is ground[s] for granting a new
            trial or for setting aside a verdict or for
            vacating, modifying, or otherwise disturbing
            a judgment or order, unless refusal to take
            such action amounts to the denial of a
            substantial right.

N.C. Gen. Stat. § 1A-1, Rule 61 (2013).              In order to prove UDTP,

Plaintiff had to prove, inter alia, that Plaintiff “‘suffered

actual injury as a proximate result of defendant’s deceptive

statement or misrepresentation.’”              McLamb v. T.P., Inc., 173

N.C. App. 586, 593-54, 619 S.E.2d 577, 582 (2005) (citations

omitted).    On these facts, Plaintiff had to prove, inter alia,
                                      -14-
that    Defendant      misrepresented        Windham’s      qualifications        by

withholding    vital       information     from     McKinney,   and      that   this

misrepresentation       proximately        caused    the    death   of    Gregory.

However, the jury found that Gregory’s death was not “caused by

the negligence of Paul Edgar Windham doing business as Windham

Heating and Air Conditioning[.]”             This determination necessarily

breaks the chain of proximate cause Plaintiff was required to

prove   in   order    to    prevail   in    her     UDTP   claim.      Absent    any

proximate cause linking Defendant’s alleged misrepresentations

and Gregory’s death, Plaintiff’s UDTP claim could not survive.

Because Plaintiff could not have prevailed on her UDTP claim,

Plaintiff    cannot    show    prejudicial        error.     This     argument    is

without merit.       See McKay v. Parham, 63 N.C. App. 349, 353, 304

S.E.2d 784, 787 (1983).

                       C. Breach of Implied Warranty

       In Plaintiff’s final argument, she contends the trial court

erred in granting directed verdict                  in favor of Defendant on

Plaintiff’s breach of implied warranty claim.                We disagree.

             “The function of all briefs required or
             permitted by [the Appellate R]ules is to
             define clearly the issues presented to the
             reviewing court and to present the arguments
             and authorities upon which the parties rely
             in support of their respective positions
             thereon.”  N.C.R. App. P. 28(a) (“The scope
             of review on appeal is limited to issues so
             presented in the several briefs.”).   “It is
             not the duty of this Court to supplement an
                                    -15-
            appellant's brief with legal authority or
            arguments not contained therein.”       [S]ee
            also Viar v. N.C. Dep't of Transp., 359 N.C.
            400, 402, 610 S.E.2d 360, 361 (“It is not
            the role of the appellate courts . . . to
            create an appeal for an appellant.”) (2005).

Eaton v. Campbell, __ N.C. App. __, __, 725 S.E.2d 893, 894

(2012) (citations omitted).

    In this appeal, Plaintiff makes factual and legal arguments

without providing any citation to authority in support of those

arguments.    Plaintiff does cite, absent pinpoint citations, two

opinions at the end of her one-and-a-quarter page argument, as

support for her claim that “Plaintiff clearly had a viable claim

for breach of implied warranty.”           However, both those opinions,

though    containing    general   law   related    to   breach    of   implied

warranty,    do   not   support   Plaintiff’s     argument.       Jackson   v.

Housing Authority of High Point, 73 N.C. App. 363, 326 S.E.2d

295 (1985), concerned an implied warranty of habitability claim.

An implied warranty of habitability “stands for the proposition

that a landlord impliedly warrants to his tenant that leased or

rented residential premises are fit for human habitation, at

least to the extent of being free from observable conditions

that render the premises unsafe or unsanitary.”            Id. at 372, 326

S.E.2d at 300 (citations omitted).           Plaintiff is not making an

implied     warranty    of   habitability     claim     against    Gregory’s

landlord in the present case.
                                   -16-
    DeWitt v. Eveready Battery Co., 144 N.C. App. 143, 550

S.E.2d 511 (2001), is a products liability case.               DeWitt does

include a claim for breach of an implied warranty, but it is for

breach of an implied warranty of merchantability.              Id. at 149,

550 S.E.2d at 515.     Plaintiff fails to make a proper appellate

argument   and   further   fails   to     cite   to   any   authority   that

supports her contention that the trial court erred in granting

Defendant a directed verdict on Plaintiff’s breach of implied

warranty claim.    Eaton, __ N.C. App. at, __, 725 S.E.2d at 894.

This argument is without merit.

    No error.

    Judges BRYANT and STROUD concur.

    Report per Rule 30(e).
