Wilson v. Sutton , 124 N.C. App. 170 ( 1996 )

476 S.E.2d 467 (1996)

Fred G. WILSON, Jr. and Rachel Patricia Westbrook, Plaintiffs-Appellees,
v.
Robert SUTTON, Robert Sutton Motors, Inc., James W. Ham and James W. Ham d/b/a Ham's Used Cars and Ham's Body Shop, Defendants-Appellants.

No. COA95-824.

Court of Appeals of North Carolina.

October 15, 1996.

Braxton H. Bell, Rocky Mount, and Coleman and Perez by Mario E. Perez, Greenville, for plaintiffs-appellees.

Cecil P. Merritt, Goldsboro, and Aida Fayar Doss, Raleigh, for defendants-appellants.

JOHN C. MARTIN, Judge.

On appeal, the Sutton defendants assert in a single assignment of error that "[t]he trial court erred and abused its discretion by denying Defendant's [sic] motion for summary judgment, motion for judgment on the pleadings, motion to set aside the verdict, and motion for judgment notwithstanding the verdict because it misinterpreted and misapplied N.C.Gen.Stat. §§ 20-71.2 through 20-71.4 and 20-109.1." The trial court's denial of the Sutton defendants' motions for summary judgment and judgment on the pleadings is not reviewable on appeal because the trial court rendered a final judgment after a trial on the merits. Canady v. Cliff, 93 N.C.App. 50, 376 S.E.2d 505, disc. review denied, 324 N.C. 432, 379 S.E.2d 239 (1989). We find no error in the other rulings challenged by the Sutton defendants' assignment of error.

A motion for judgment notwithstanding the verdict is treated as a renewal of a prior motion for directed verdict. Munie v. Tangle Oaks Corp., 109 N.C.App. 336, 427 S.E.2d 149 (1993). The standard for granting a motion for judgment notwithstanding the verdict is the same as that for granting a motion for directed verdict, which is whether, as a matter of law, the evidence offered by the plaintiff, when considered in the light most favorable to the plaintiff, is sufficient for submission to the jury. Northern Nat'l Life Ins. Co. v. Lacy J. Miller Machine Co., 311 N.C. 62, 316 S.E.2d 256 (1984).

The Sutton defendants contend that the trial court erred in denying their motion for judgment notwithstanding the verdict because plaintiffs failed to establish a prima facie case that they violated G.S. § 20-71.4(a). G.S. § 20-71.4, as it was in effect at all times pertinent to this case provides in part:

(a) It shall be unlawful and constitute a misdemeanor for any transferor who knows or reasonably should know that a motor vehicle has been involved in a collision or other occurrence to the extent that the cost of repairing that vehicle exceeds twenty-five percent (25%) of its fair market retail value ... to fail to disclose that fact in writing to the transferee prior to transfer of any vehicle up to five model years old. Failure to disclose any of the above information will also result in civil liability under G.S. 20-348.

In order to establish a prima facie case under G.S. § 20-71.4(a), plaintiffs must show that: "(1) defendant was a transferor, (2) who knew or reasonably should have known that the [vehicle] had been involved in a collision or other occurrence to the extent that the cost of repair exceeded 25% of its fair market value, and (3) who failed to disclose that fact in writing to plaintiff prior to the transfer, and that the vehicle at the time of transfer (4) was not a vehicle more than five model years old." Payne v. Parks Chevrolet, Inc., 119 N.C.App. 383, 387, 458 S.E.2d 716, 719 (1995).

Considering the evidence in the light most favorable to plaintiffs, it shows that the van had been appraised as a total loss after the collision; that when defendant Sutton bought the van from defendant Ham, he received a Damage Disclosure Statement that the van had been damaged by collision to the extent that the damages exceeded twenty-five percent of its fair market retail value at the time of the collision; that defendant Sutton did not disclose to plaintiffs that the van had been damaged by collision; and that the van was not more than five model years old when plaintiffs purchased it in March 1992.

The Sutton defendants argue, citing Brandis, North Carolina Evidence, § 235, pp. 255-57 (3d ed. 1988), that the DMV inspector's examination of the van and verification as to the cost of defendant Ham's purchase of repair parts, and his use of those parts in the repair of the van, should create a conclusive presumption that the certification was correct, that the repairs did not exceed twenty-five percent of the van's fair market value, and that the Sutton defendants were, therefore, in complete compliance with the statutory process and were not required to make the damage disclosure.

The presumption that a public officer has performed his duty cannot be used as proof of an independent and material fact. Hall v. Fayetteville, 248 N.C. 474, 103 S.E.2d 815 (1958); see also Civil Service Bd. v. Page, 2 N.C.App. 34, 162 S.E.2d 644 (1968) (this Court holding that the presumption of the regularity of official acts is one of law, and not of fact, and may be rebutted or overthrown by competent evidence). Not only is the Sutton defendants' contention without merit, but the DMV inspector testified that he had no opinion as to whether the cost of defendant Ham's repairs to the van was reasonable.

We find the evidence, taken in the light most favorable to plaintiffs, was sufficient for the jury. Accordingly, the trial court properly denied the Sutton defendants' motion for judgment notwithstanding the verdict.

No error.

ARNOLD, C.J., and SMITH, J., concur.