Preview:

NO. COA02-378 NORTH CAROLINA COURT OF APPEALS Filed: 31 December 2002 BLAIR GAYNOR, Plaintiff, v. GORDON and MARY MELVIN, individually; and doing business as MILL DIRECT SALES; and MILL DIRECT SALES, INC., a New York Corporation, Defendants. Appeal by plaintiff from order filed 25 October 2001 by Judge Marvin K. Gray in Mecklenburg County Superior Court. Court of Appeals 12 November 2002. Paul L. Whitfield & Associates, PA, by Paul L. Whitfield, for plaintiff appellant. Haynesworth Baldwin Johnson & Greaves LLC, by Stephen D. Dellinger, for defendant appellees. GREENE, Judge. Blair Gaynor (Plaintiff) appeals from an order filed 25 October 2001 granting judgment for Gordon and Mary Melvin, Heard in the

individually, and doing business as Mill Direct Sales and Mill Direct Sales, Inc. (collectively, Defendants). Plaintiff filed a complaint claiming breach of contract, fraud, and defamation and also demanding a jury trial. The

complaint alleged the parties entered into an oral agreement (the agreement) on or about April 1997, whereby Plaintiff would open and manage an office in Charlotte, North Carolina (the office) to sell lumber on behalf of Defendants. Under the agreement, Plaintiff was to receive a salary and a commission based on the sales and profits

-2of the office. When Plaintiff resigned in September 1999,

Plaintiff claimed, he was still owed salary, sales commissions, and a commission for the office's net profits. Defendants fraudulently induced him to Plaintiff also alleged maximize profits and

doctored records to reduce Plaintiff's commissions. On 1 December 1999, Plaintiff filed a motion for the

appointment of a referee on the breach of contract and fraud claims, and Defendants later filed their objection to the

appointment of a referee.

By order dated 26 January 2000, Judge

Jesse Caldwell (Judge Caldwell) granted Plaintiff's motion and appointed a referee to determine if: (1) any salary, sales

commission, or commission on the net profits was owed to Plaintiff and (2) net profits had been calculated correctly, including any changes in net profits caused by reselling inferior quality lumber rejected by other customers. the following: [T]his compulsory reference does not deprive any of the parties of their rights to a trial by jury, which may be preserved by objecting to the order of compulsory reference at the time it is made or by filing specific exceptions to particular findings of fact made by the referee within thirty (30) days after the referee files his report . . . . Plaintiff did not object to the order of reference. subsequently filed answers to Plaintiff's complaint Defendants and made Judge Caldwell included in his order

various counterclaims against Plaintiff. The original referee report) filed a report dated 22 December owed some 2000 form (the of

finding

Plaintiff

was

-3commissions in the amount of $126,819.33.1 apparently determined the amount of loss The referee also from the resale of

rejected lumber.

Both parties entered a timely exception to the Judge Marcus L. Johnson

referee's determination on commissions.

(Judge Johnson), after considering the exceptions and arguments asserted by both parties, remanded the case to the referee for reconsideration of the calculation of the commissions and the loss attributed to the costs of the resale of rejected lumber. The referee filed a supplemental report dated 5 September 2001 (the supplemental report) increasing the sales commissions owed to Plaintiff to $126,926.14. The supplemental report reserved for the jury the issue of the amount of loss from the resale of some rejected lumber. Plaintiff and Defendants filed exceptions to this supplemental report. Plaintiff did not, however, except to the

determination by the referee that the rejected timber issue be resolved by a jury. Defendant did except to this determination.

After a 25 October 2001 hearing, Judge Marvin K. Gray (Judge Gray) entered as judgment for Plaintiff on the amount of commissions owed in the supplemental report but rejected the

calculated

supplemental report on the issue of the rejected lumber and adopted the original report on this issue. In making his ruling, Judge

Gray indicated "it appeared to [him] from the argument . . . [he] could simply . . . take [the Defendants'] proposed order . . . and The referee's specific findings on the other issues, including salary owed and net profits, are not included in the record on appeal, and we are thus unable to address those findings. See State v. Moore, 75 N.C. App. 543, 548, 331 S.E.2d 251, 254-55 (1985) (appellate review limited to contents of the record).
1

-4incorporate the referee's report by reference." Judge Gray then

entered judgment for Defendants on Plaintiff's remaining breach of contract and fraud claims, denied Defendants' summary judgment motion on Plaintiff's defamation claim, and did not rule on

Defendants' counterclaims. _______________________________ The issues are whether: (I) Plaintiff preserved his right to a jury trial on the breach of contract and fraud claims; and (II) Judge Gray erred in modifying the supplemental report without considering the evidence.2 I Plaintiff argues Judge Gray erred in granting judgment to Defendants on the breach of contract and fraud claims because these claims should have been submitted to a jury. We disagree.

In order to preserve the right to a jury trial where a compulsory reference has been ordered, a party must, among other things, object to the order of reference at the time it is made. See Porter Bros., Inc. v. Jones, 11 N.C. App. 215, 224, 181 S.E.2d 177, 182-83 (1971) (Rule 53(b)(2) sets out steps to be followed to preserve right to jury trial); N.C.G.S.

Download 02-378-6.pdf

South Carolina Law