              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                 No. COA16-750-2

                              Filed: 6 November 2018

Watauga County, Nos. 14 CVS 81, 14 CVS 502

BOONE FORD, INC., d/b/a BOONE FORD LINCOLN MERCURY, INC., a Delaware
Corporation, Plaintiff,

             v.

IME SCHEDULER, INC., a New York Corporation, Defendant.

            and

CASH FOR CRASH, LLC, a New Jersey Limited Liability Company, Plaintiff,

             v.

BOONE FORD, INC. d/b/a BOONE FORD LINCOLN MERCURY, INC., a Delaware
Corporation, Defendant.


      Appeal by IME Scheduler, Inc., and Cash for Crash, LLC (“appellants”), from

judgment entered 1 March 2016 by Judge William H. Coward and order entered 21

April 2015 by Judge Jeff Hunt in Watauga County Superior Court. Originally heard

in the Court of Appeals 25 January 2017. By opinion issued 18 April 2017, a divided

panel of this Court, ___ N.C. App. ___, 800 S.E.2d 94 (2017), vacated Judge Hunt’s 21

April 2015 consolidation order and remanded to the superior court for two separate

trials, therefore declining to reach appellants’ arguments as to Judge Coward’s 1

March 2016 judgment. By opinion issued 17 August 2018, our Supreme Court, ___

N.C. ___, 817 S.E.2d 364 (2018), reversed and remanded the case to this Court to

address those remaining arguments.
                     BOONE FORD, INC. V. IME SCHEDULER, INC.

                                  Opinion of the Court



      Miller and Johnson, PLLC, by Nathan A. Miller, for defendant-appellant IME
      Scheduler, Inc., and plaintiff-appellant Cash for Crash, LLC.

      Walker Di’Venere Wright, by Anné C. Wright, for plaintiff-appellee and
      defendant-appellee Boone Ford, Inc.


      ELMORE, Judge.


      Previously, a divided panel of this Court, Boone Ford, Inc. v. IME Scheduler,

Inc., ___ N.C. App. ___, 800 S.E.2d 94 (2017) (“Boone Ford I”), vacated Judge Hunt’s

pretrial consolidation order, which effectively set aside the jury verdict and vacated

Judge Coward’s final judgment, and “remand[ed] the cases to superior court[,]” id. at

___, 800 S.E.2d at 98, for two separate trials. The majority panel thus determined its

“holding and disposition render[ed] moot the other issues [as to the propriety of Judge

Coward’s judgment] raised on appeal.” Id. The dissenting judge reasoned that

because Judge Hunt’s pretrial consolidation order was interlocutory, it was not

binding when Judge Coward presided over the jury trial, and because neither

appellants moved to sever the cases but proceeded with the consolidated trial, they

failed to preserve their argument for appellate review and awarding them a new trial

was unwarranted. Id. at ___, 800 S.E.2d at 99 (Dillon, J., dissenting).

      On 17 August 2018, our Supreme Court reversed our decision in Boone Ford I

and remanded “to consider other issues that [our] decision did not reach.” Boone

Ford, Inc. v. IME Scheduler, Inc., ___ N.C. ___, ___, 817 S.E.2d 364, 368 (2018).

Appellants’ remaining arguments were that (1) “the trial court and the trier of fact

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erred in denying C[ ]ash for Crash, LLC’s motions in regards to the conversion

allegation and in determining that Boone Ford, Inc. had not converted C[ ]ash for

C[r]ash, LLC’s money”; (2) “[t]he jury’s finding in paragraph 25(1) of the Judgment

and Order for Costs [was] inconsistent with the entirety of paragraph 25 of the

Judgment and Order for Costs”; and (3) “[t]he trial court erred in granting . . . Boone

Ford, Inc.’s motion for a directed verdict denying . . . IME Scheduler, Inc.’s negligent

misrepresentation claim under N.C. R. Civ. P. 50.” After careful review, we affirm

Judge Coward’s judgment.

                                    I. Background

      The facts and trial procedure of this case are more fully discussed in our prior

opinion. Relevant for addressing the remaining issues on remand, after Boone Ford

sued IME Scheduler for the failed Raptor transaction, IME Scheduler filed

counterclaims against Boone Ford alleging, inter alia, unfair and deceptive trade

practices (“UDTP”) and negligent misrepresentation. Cash for Crash also sued Boone

Ford alleging, inter alia, a claim of conversion.

      After IME Scheduler’s case-in-chief, the trial court granted Boone Ford’s

motion for a directed verdict on IME Scheduler’s negligent misrepresentation claim.

After the presentation of all evidence, the jury rendered a verdict finding that Boone

Ford did not convert the money wired from Cash for Crash and thus found Boone

Ford not liable on Cash for Crash’s conversion claim. The trial court later denied



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Cash for Crash’s oral motion for a judgment notwithstanding the verdict (“JNOV”) on

that claim. In its verdict sheet in response to questions concerning IME Scheduler’s

UDTP claim, the jury also found that Boone Ford had wrongfully retained $40,385.50

from IME Scheduler, that this act was in and affecting commerce, but that Boone

Ford’s conduct did not proximately cause injury to IME Scheduler. Additionally, in

response to the question “[i]n what amount has IME been injured?” the jury answered

“$0.00.”

      Based on the jury’s findings that Boone Ford was entitled to $20,000.00 in

compensatory damages from IME Scheduler due to fraud, and that Boone Ford was

entitled to $50,000.00 in punitive damages from IME Scheduler due to UDTP, the

trial court on 1 March 2016 entered a final judgment and order for costs awarding

Boone Ford $70,000.00 in total damages from IME Scheduler.

                                    II. Analysis

      In Boone Ford I, appellants raised the following three issues we declined to

address based upon our disposition of their first issue: (1) whether the trial court

erred by denying Cash for Crash’s motion for JNOV on its conversion claim against

Boone Ford, (2) whether the jury’s findings on IME Scheduler’s UDTP claim against

Boone Ford were inconsistent, and (3) whether the trial court erred by granting Boone

Ford’s directed verdict motion on IME Scheduler’s negligent misrepresentation claim.

A. Cash for Crash’s Motion for JNOV as to its Conversion Claim



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      Appellants first contend the jury erroneously found that Boone Ford did not

unlawfully convert the $206,596.00 wired from Cash for Crash and, on this basis, that

the trial court erred by denying Cash for Crash’s motion for JNOV on its conversion

claim. This argument is not preserved for appellate review.

      North Carolina Civil Procedure Rule 50(b)(1) requires a party to move for a

directed verdict at the close of evidence to preserve the right to move for JNOV. N.C.

Gen. Stat. § 1A-1, Rule 50(b)(1) (2017); see also id. official cmt. (“[M]aking an

appropriate motion for a directed verdict is an absolute prerequisite for the motion for

judgment NOV.” (emphasis added) (citations omitted)). Stated differently, “a motion

for [JNOV] must be preceded by a motion for directed verdict at the close of all the

evidence.”   Graves v. Walston, 302 N.C. 332, 338, 275 S.E.2d 485, 489 (1981)

(interpreting N.C. Gen. Stat. § 1A-1, Rule 50(b)(1) (1979)).

      Here, although Cash for Crash made an oral motion for JNOV on its conversion

claim immediately after the jury returned its verdict, the transcript reveals it never

moved for a directed verdict on that claim and thus waived its right to move for JNOV.

See, e.g., Graves, 302 N.C. at 338, 275 S.E.2d at 489 (“In the present case, plaintiffs

did not move for directed verdict at the close of plaintiffs’ evidence or at the close of

all the evidence. Plaintiffs thus had no standing after the verdict to move for [JNOV]

and for that reason the trial court was without authority to enter [JNOV] for

plaintiffs.”). Therefore, Cash for Crash’s “JNOV arguments are waived on appeal.”



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Martin v. Pope, ___ N.C. App. ___, ___, 811 S.E.2d 191, 195 (2018); see also Tatum v.

Tatum, 318 N.C. 407, 408, 348 S.E.2d 813, 813 (1986) (“Plaintiff failed to move for a

directed verdict at the close of all the evidence. Therefore, plaintiff failed to preserve

her right to move for [JNOV].” (citing Graves, 302 N.C. at 338, 275 S.E.2d at 489)).

B. Damage Calculation as to IME Scheduler’s UDTP Claim

      Appellants next challenge the jury’s verdict as to IME Scheduler’s UDTP claim

against Boone Ford and, relatedly, the amount of compensatory damages awarded to

Boone Ford. They argue that because “[t]he jury found that Boone Ford, Inc. had

wrongfully retained IME Scheduler’s $40,385.50 and that Boone Ford, Inc.’s act was

in and affecting commerce[,]” the jury’s finding that Boone Ford’s conduct was not a

proximate cause of injury to IME Scheduler was “inconsistent . . . and should be

overturned.” Appellants contend further that because the jury found Boone Ford was

entitled to $32,000.00 in actual damages from IME Scheduler, “the only appropriate

judgment would be to award IME Scheduler, Inc. at least the difference between the

amount wrongly retained by Boone Ford, Inc. and the amount awarded to Boone Ford,

Inc. which at a minimum would be $8,385.50.” Thus, appellants request on appeal

that this Court

             reverse the jury’s conclusion that IME Scheduler, Inc. was
             damaged as a result of Boone Ford Inc.’s wrongful
             retention of IME Scheduler Inc.’s money and either make
             a finding that IME Scheduler, Inc. should be awarded the
             amount of $8,385.50 or that a new trial limited to the exact
             amount of damages due to IME Scheduler, Inc. pursuant to


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             IME Scheduler, Inc.’s claim for [UDTP] be held.

      Appellants have failed to cite to any relevant legal authority to support these

arguments. N.C. R. App. P. 28(b)(6). Nonetheless, we disagree with their contentions

and decline their requests for appellate relief.

      The challenged portion of the verdict sheet reads as follows:

             25. [ ]Did Boone do or commit at least one of the following:

                    1. [W]rongly retain IME’s $40,385.50 or any portion
                    thereof? (if “yes”, answer the following question)

                           Answer: Yes.

                    - Was that conduct in commerce or affecting
                    commerce? (if “yes”, answer the following question)

                                  Answer: Yes.

                           ● Was that conduct a proximate cause of
                           injury to IME?

                                  Answer: No.

Additionally, in response to the related verdict sheet question on this claim “[i]n what

amount has IME been injured?” the jury answered “$0.00.”

      “Where the jury’s answers to the issues are allegedly contradictory, a motion

for a new trial under Rule 59 is the appropriate motion.” Walker v. Walker, 143 N.C.

App. 414, 421, 546 S.E.2d 625, 630 (2001) (citing Palmer v. Jennette, 227 N.C. 377,

379, 42 S.E.2d 345, 347 (1947)). Here, because IME Scheduler never moved for a new

trial on its UDTP claim, “the question of whether the [jury’s] verdict was inconsistent


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was not properly preserved for review on appeal.” Id. at 422, 546 S.E.2d at 630; see

also N.C. R. App. P. 10(a)(1). Further, a jury finding that a party committed an UDTP

act does not compel a finding that that act proximately caused injury. IME Scheduler

does not challenge the trial court’s proximate cause instruction and, as reflected, the

jury neither found that Boone Ford’s conduct proximately caused injury to IME

Scheduler nor that IME Scheduler suffered any monetary damages as to its UDTP

claim. IME Scheduler’s failed UDTP claim provides neither a basis for offsetting the

compensatory damages awarded to Boone Ford, nor for ordering a new trial on the

issue of damages as to that claim. Accordingly, we overrule this argument.

C. Directed Verdict of Cash for Crash’s Negligent Misrepresentation Claim

      Last, appellants assert the trial court erred by granting Boone Ford’s directed

verdict motion on IME Scheduler’s negligent misrepresentation claim. We disagree.

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

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

be submitted to the jury.” Scarborough v. Dillard’s, Inc., 363 N.C. 715, 720, 693

S.E.2d 640, 643 (2009) (quoting Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411

S.E.2d 133, 138 (1991)). A directed verdict is proper only where “it appears, as a

matter of law, that a recovery cannot be had by the plaintiff upon any view of the

facts which the evidence reasonably tends to establish.” Id. (quoting Manganello v.

Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977)). Recovery in tort



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arising out of a breach of contract is generally barred by North Carolina’s economic

loss rule:

             [A] tort action does not lie against a party to a contract who
             simply fails to properly perform the terms of the contract,
             even if that failure to perform was due to the negligent or
             intentional conduct of that party, when the injury resulting
             from the breach is damage to the subject matter of the
             contract. It is the law of contract and not the law of
             negligence which defines the obligations and remedies of
             the parties in such a situation.

Rountree v. Chowan Cty., ___ N.C. App. ___, ___, 796 S.E.2d 827, 830 (2017) (quoting

Lord v. Customized Consulting Specialty, Inc., 182 N.C. App. 635, 639, 643 S.E.2d 28,

30–31 (2007); other citation omitted). Where parties were privy to a contract, a viable

tort action “must be grounded on a violation of a duty imposed by operation of law,

and the right invaded must be one that the law provides without regard to the

contractual relationship of the parties, rather than one based on an agreement

between the parties.” Croker v. Yadkin, Inc., 130 N.C. App. 64, 69, 502 S.E.2d 404,

407–08 (1998) (quoting Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329,

342, 303 S.E.2d 365, 373 (1983)).

       Here, the trial court submitted both IME Scheduler’s and Boone Ford’s breach

of contract and fraud claims to the jury but granted both parties’ motions for directed

verdict on their negligent misrepresentation claims.           “The tort of negligent

misrepresentation occurs when (1) a party justifiably relies, (2) to his detriment, (3)

on information prepared without reasonable care, (4) by one who owed the relying


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party a duty of care.” Walker v. Town of Stoneville, 211 N.C. App. 24, 30, 712 S.E.2d

239, 244 (2011) (quoting Simms v. Prudential Life Ins. Co. of Am., 140 N.C. App. 529,

532, 537 S.E.2d 237, 240 (2000)). The evidence, taken in the light most favorable to

IME Scheduler, failed to establish that Boone Ford owed IME Scheduler any separate

duty of care beyond that of the contractual relationship. IME Scheduler’s negligent

misrepresentation claim was barred by the economic loss rule. Accordingly, we affirm

the trial court’s ruling.

       As a secondary matter, we note that even had the trial court erred by directing

verdict on IME Scheduler’s negligent misrepresentation claim, it would not be

grounds for appellate relief in this case. N.C. Gen. Stat. § 1A-1, Rule 61 (2017) (“[N]o

error . . . in any ruling . . . is ground[s] for granting a new trial or setting aside a

verdict . . . , unless refusal to take such action amounts to the denial of a substantial

right.”). Boone Ford’s trial position was that the parties contracted for the Raptor

with the VIN number ending in 6435, while IME Scheduler’s position was that they

contracted for the Raptor with the VIN number ending in 7953. To prevail on its

negligent misrepresentation claim, IME Scheduler was required to prove as alleged

that, inter alia, it justifiably relied on Boone Ford’s alleged false representation as to

which Raptor was under contract. Walker, 211 N.C. App. at 30, 712 S.E.2d at 244.

       The jury’s finding that “the parties enter[ed] a contract with the terms

contended by Boone” establishes that IME Scheduler’s reliance on Boone Ford’s



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alleged false representation would have been unjustified. Cf. Rayle Tech, Inc. v.

DEKALB Swine Breeders, Inc., 133 F.3d 1405, 1410 (11th Cir. 1998) (“In most cases,

the question of justifiable reliance is a jury question, but where a representation is

controverted by the express terms of a contract, a plaintiff will be unable, as a matter

of law, to establish that his reliance is justifiable.” (citations omitted)). Accordingly,

even if IME Scheduler’s negligent misrepresentation claim should have been

submitted to the jury, any error arising from the ruling was harmless. See, e.g.,

Sledge v. Miller, 249 N.C. 447, 453–54, 106 S.E.2d 868, 874 (1959) (holding the trial

court’s refusal to submit the issue of damages for trespass [was] harmless where

“[t]he finding of the jury that defendants were the owners of the land from which the

timber was cut negatived plaintiff's claim of trespass and defeated his claim for

damages”).

                                    III. Conclusion

      Because the trial court properly denied Cash for Crash’s motion for JNOV on

its conversion claim against Boone Ford, the compensatory damages awarded Boone

Ford were supported by the jury’s verdict, and the trial court properly granted Boone

Ford’s directed verdict motion on IME Scheduler’s negligent misrepresentation claim,

we affirm the trial court’s judgment.

      AFFIRMED.

      Judges DILLON and ZACHARY concur.



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