American Imports, Inc. v. G. E. Employees Western Region Federal Credit Union , 37 N.C. App. 121 ( 1978 )

245 S.E.2d 798 (1978) 37 N.C. App. 121

AMERICAN IMPORTS, INC.
v.
G. E. EMPLOYEES WESTERN REGION FEDERAL CREDIT UNION and Carolyn J. McQueen.

No. 775SC784.

Court of Appeals of North Carolina.

July 11, 1978.

Marshall, Williams, Gorham & Brawley by Lonnie B. Williams and Ronald H. Woodruff, Wilmington, for plaintiff-appellee, American Imports, Inc.; Rountree & Newton by William B. Harris III, Wilmington, for defendant-appellee, G. E. Employees Western Region Federal Credit Union.

Cherry & Wall by Frank D. Cherry, Jr., Wilmington, for defendant-appellant, Carolyn J. McQueen.

VAUGHN, Judge.

Defendant McQueen first assigns as error the court's imposition of sanctions for her failure to appear for her deposition. This question is properly reviewed on appeal of the entire case. While a default judgment on a cross-claim may be reviewed immediately under G.S. 1-277, it is not a "final judgment" until all claims made in the action are adjudicated, unless the court makes findings pursuant to G.S. 1A-1, Rule 54(b), that there is no just reason for delay and that the severed claim should be granted final judgment. Hamilton v. Hamilton, No. 7722DC511, filed 20 June 1978. Nevertheless, there is no merit in McQueen's position. G.S. 1A-1, Rule 37(d) allows a judge to default a claim as a sanction for failure to appear for a deposition after having been given proper notice. The imposition of sanctions under Rule 37(d) is in the sound discretion of the trial judge. Hammer v. Allison, 20 N.C.App. 623, 202 S.E.2d 307 (1974), cert. den., 285 N.C. 233, 204 S.E.2d 23. Although defendant McQueen contends that the court must find that her refusal to attend was willful before it imposes sanctions, the language of G.S. 1A-1, Rule 37(d) requires no such finding. We note that the cases cited by plaintiff date from a time when the Federal Rules of Civil Procedure did require that the offense be willful before imposition of sanctions. See 4A Moore's Federal Practice, § 37.05. McQueen can show no abuse of the court's discretion. She was given proper notice of the taking of her deposition. She did not notify the Credit Union's counsel that she would not attend until the day scheduled for the deposition. Moreover, neither she nor her counsel appeared at the hearing on the imposition of sanctions, and no explanation for her behavior was ever before the court.

"Imposition of sanctions that are directed to the outcome of the case, such as dismissals, default judgments, or preclusion orders, are reviewed on appeal from final judgment, and while the standard of review is often stated to be abuse of discretion, the most drastic penalties, dismissal or default, are examined in the light of the general purpose of the Rules to encourage trial on the merits." 4A Moore's Federal Practice, § 37.08 at 37-112, 13.

With all these factors in mind, we find that there was no abuse of discretion in entering judgment against McQueen on her note to the Credit Union.

McQueen also assigns as error the giving of peremptory instructions to the jury in plaintiff's favor on the action for the purchase price, contending that she raised questions of defenses under G.S. 25-1-103 and G.S. 25-2-607 which should properly have been considered by the jury. Plaintiff's proof of the sale and delivery of the car at an agreed price and defendant McQueen's admission that she took the car, executed the papers connected with the sale and then refused to pay the purchase price makes out a case entitling plaintiff to recover the amount due on the purchase price, nothing else appearing. See G.S. 25-2-301; Stevens Co. v. Mooneyham, 211 N.C. 291, 189 S.E. 780 (1937). We cannot agree with McQueen that there is any question about whether she accepted the car. Her actions in delivering the checks, signing all the paperwork, and taking delivery of the car were so inconsistent with the seller's ownership as to preclude any other interpretation. G.S. 25-2-606. For these reasons it was not error to give the jury peremptory instructions in plaintiff's favor.

McQueen also contends that her evidence raised questions both of fraud and of proper revocation of acceptance. It is clear that the evidence does not show any material misrepresentation on the part of plaintiff which might reasonably have been calculated to deceive McQueen. The mileage figure was clearly on the odometer, and plaintiff never represented that the car had fewer miles on it. In the absence of a misrepresentation, there can be no actionable fraud. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974). Nor does G.S. 25-2-608 give McQueen a right to revoke her earlier acceptance. The right to revoke acceptance of the car arises only if it was accepted

"(a) on the reasonable assumption that its nonconformity would be cured and it has not been seasonably cured; or

(b) without discovery of such nonconformity if his acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances." G.S. 25-2-608(1).

There was no evidence that the car was accepted with any knowledge of a nonconformity. There is no evidence that the mileage as shown on the odometer was not the actual mileage or that she was prevented from discovery by the seller. See Performance Motors, Inc. v. Allen, 280 N.C. 385, 186 S.E.2d 161 (1972). That two days after the sale the fan belt broke is insufficient to show such nonconformity as would allow her to revoke her acceptance. Nor can plaintiff show that she did not discover the mileage of the car due to the difficulty of discovery or due to the seller's assurances. She does not, therefore, qualify for relief under G.S. 25-2-608.

McQueen also contends that she offered evidence tending to show that defendant failed to give her a fully completed vehicle mileage statement in compliance with the Vehicle Mileage Act, G.S. 20-340 et seq. It is true that McQueen testified that the statement was in blank when she signed it. (She did not offer her copy at trial.) Plaintiff's copy was introduced at trial and showed the mileage figure as being the same as the figure on the odometer when the sale was made. Plaintiff's copy was incomplete, however, in other respects. Nevertheless, there must be more than a technical failure to comply in order to give rise to an action for damages under the act. The noncompliance must be accompanied by an intent to defraud. McQueen has offered no evidence of such intent. There is nothing to indicate that the mileage shown on the odometer was incorrect or that there was any other misrepresentation.

We have considered all of McQueen's arguments and conclude that she has failed to show prejudicial error.

No error.

MORRIS and MARTIN, JJ., concur.