in the Court of Appeals 7 August 2019
by Plaintiff from order entered 21 November 2017 and judgment
entered 12 January 2018 by Judge Anderson D. Cromer in
Forsyth County Superior Court. Cross-appeal by Defendant from
order entered 28 March 2018 by Judge R. Stuart Albright in
Forsyth County Superior Court No. 15 CVS 7727.
Spilman Thomas & Battle, PLLC, by Matthew W. Georgitis
and Steven C. Hemric, and Cartledge Law Firm, by Kevin B.
Cartledge, for the Plaintiff-Appellant/Cross-Appellee.
Mullins Duncan Harrell & Russell PLLC, by Alan W. Duncan
and Stephen M. Russell, Jr., and Carruthers & Roth, P.A.,
by J. Patrick Haywood and Mark K. York, for the
Long Brothers of Summerfield, Inc., and Defendant Hilco
Transport, Inc., are businesses owned by members of the same
family and engaged in the commercial trucking industry. A
number of years ago, Defendant purchased several commercial
trucks and leased them to Plaintiff, giving Plaintiff the
option to purchase the trucks at the end of the lease term.
At the end of the lease term, Plaintiff sought to exercise
its option, but a dispute arose concerning the purchase
price. Plaintiff paid Defendant the amount Defendant claimed
to be the correct price. Later though, Plaintiff learned that
Defendant had documentary evidence in its possession all
along tending to prove that the purchase price should have
been the amount Plaintiff had thought it should be. Plaintiff
brought this action against Defendant to recover the amount
it claims it overpaid for the trucks.
entered a verdict in favor of Plaintiff, though the jury did
not treble the damages based on Plaintiff's unfair and
deceptive trade practices ("UDTP") claim. However,
subsequent to the verdict, the trial court not only denied
Plaintiff's motion to treble the award, but also granted
Defendant's motion for judgment notwithstanding the
verdict. Plaintiff entered a notice of appeal from the
Plaintiff noticed its appeal, Defendant moved the trial court
to dismiss Plaintiff's appeal, contending that the notice
was untimely. The trial court entered an order denying that
motion. Defendant cross-appeals from that order.
Formation of the Parties
is a family-owned company that has been active in the
commercial trucking industry for a number of years. In 2003,
Charles Long and his brother Gurney were the primary owners
and officers of Defendant. That year, Charles Long helped his
daughter, Wendi Brewer, create Plaintiff, in part, as a means
for a family member to bid on trucking contracts where
woman-owned businesses were favored in the bidding process.
the beginning of Plaintiff's existence in 2003, Defendant
worked closely with Plaintiff, often sharing their truck
fleets to fulfill contract obligations. Also, during this
time, Plaintiff paid Defendant to provide accounting,
bookkeeping, record-storing, and other managerial services to
Plaintiff. Nine years later, though, Plaintiff and Defendant
terminated this arrangement, as their relationship soured.
Lease/Option to Purchase Contract for the Trucks
early 2005, Plaintiff developed a need to grow its own fleet
of trucks, as its business continued to grow. Ms. Brewer,
however, did not want her company to take on the debt
necessary to purchase new trucks. Therefore, she and her
father came to an agreement whereby Defendant would purchase
several new trucks and then lease them to Plaintiff for four
years. They agreed that after the four-year term, Plaintiff
would have the option to purchase the trucks from Defendant
for a bargain price.
is no evidence that Ms. Brewer and her father signed a
written agreement concerning this transaction. But there is
evidence that certain notes were made by them concerning the
terms of the agreement. In any event, Ms. Brewer has always
maintained that the agreement gave Plaintiff the option to
purchase the trucks from Defendant at the end of the lease
term at a discount, rather than for the full market value,
based on the four years of rental payments it would have
time later, in June 2005, before Defendant had actually
purchased the trucks to lease to Plaintiff, Ms. Brewer's
father died unexpectedly and his brother, her uncle, Gurney
Long assumed control of Defendant.
August 2005, Ms. Brewer, for Plaintiff, and her uncle, for
Defendant, entered into a written contract for the lease of
the various trucks for four years (the "Lease
Contract"). The Lease Contract did not expressly mention
Plaintiff's option to purchase the trucks. The Lease
Contract, though, did state that "Schedule 1 and Lease
Notes shall be effective at the date of this agreement."
"Schedule 1" was a document attached to the Lease
Contract and described the trucks. However, there was no
"Lease Notes" document attached, at least on the
copy that was in Plaintiff's possession.
2009, the lease term ended, and Plaintiff sought to exercise
its option to purchase the trucks. Defendant agreed to sell
the trucks to Plaintiff but sent an invoice stating the price
of $620, 000, the then-full market value of the trucks. Ms.
Brewer disagreed on the purchase price, insisting that she
and her father had agreed that Plaintiff would be allowed to
purchase the trucks based on a formula which called for the
price to be approximately $220, 000. Defendant - who at the
time still maintained many of Plaintiff's business
records and provided accounting and other managerial services
to Plaintiff - assured Ms. Brewer that the correct price was
$620, 000. Plaintiff purchased the trucks, paying Defendant
$620, 000 as reflected in Defendant's invoice, though
still believing that the correct purchase price was a lower
"Lease Notes" Resurface
2012, three years after Plaintiff purchased the trucks from
Defendant, Plaintiff and Defendant essentially cut all
business ties. Plaintiff requested that Defendant turn over
all of its corporate records that Defendant had maintained
for Plaintiff over the years, which Defendant purportedly
next year, in 2013, Defendant's departing chief financial
officer uncovered additional business files belonging to
Plaintiff and turned them over to Plaintiff. Among them was
the "Lease Notes" document, the document
purportedly referenced in the Lease Contract. This
"Lease Notes" document essentially confirmed Ms.
Brewer's memory of her agreement with her father, that
Plaintiff would have the option to "purchase the
[trucks] at the end of the 48 month lease at 20% of the
[trucks'] original cost." There is evidence that,
based on this formula, Plaintiff should have paid only
approximately $220, 000, rather than the $620, 000 that
Defendant invoiced, for the trucks.
summary, Plaintiff was formed in 2003 at which time Defendant
began providing accounting and other services for Plaintiff.
In 2005, Plaintiff entered into a written agreement to lease
several trucks from Defendant, an agreement which made
reference to "Lease Notes." In 2009, Plaintiff
purchased the trucks from Defendant for approximately $620,
000, based on Defendant's invoice and assurances that
$620, 000 was the correct price. In 2013, Defendant's
departing CFO provided Plaintiff with the "Lease
Notes" document which confirmed Ms. Brewer's
understanding that Plaintiff should have only paid $220, 000
for the trucks. And in 2015, Plaintiff filed this action to
recover the overpayment.
conclusion of the trial in the matter, the jury returned a
verdict awarding $450, 000 to Plaintiff. The trial court
immediately entered judgment on the jury's verdict.
moved to have the jury award trebled, based on its UDTP
claim. Defendant, though, moved for Judgment Notwithstanding
the Verdict ("JNOV"). In November 2017, the trial
court entered an order denying Plaintiff's motion to
treble the jury award and an order granting Defendant's
motion for JNOV (the "JNOV Order"), which
essentially nullified the jury award. The JNOV Order
contained language recognizing that the trial court would
consider a motion to tax costs.
months later, on 12 January 2018, following a hearing on
costs, the trial court entered an order which taxed costs
against Plaintiff and reiterated that ...