First Union National Bank v. Bob Dunn Ford, Inc.

455 S.E.2d 453 (1995) 118 N.C. App. 444

FIRST UNION NATIONAL BANK OF NORTH CAROLINA, Plaintiff,
v.
BOB DUNN FORD, INC., Defendant.

No. 9418DC546.

Court of Appeals of North Carolina.

April 4, 1995.

Clontz, Clontz & Hunter, P.L.L.C. by Michael S. Hunter, Charlotte, for plaintiff-appellant.

Alspaugh & Carruthers by Thomas D. Carruthers, Greensboro, for defendant-appellee.

ARNOLD, Chief Judge.

Plaintiff brings forward one assignment of error: "The Court's Conclusion of Law Number 3, on the ground that the facts as found by the court and the applicable law do not support the Conclusion." Much of plaintiff's argument, however, is dedicated to another question—whether or not the evidence supports the findings. This question is not properly before us. Plaintiff did not assign error to any of the trial judge's findings. When no assignment of error is made to particular findings, they are "presumed to be supported by competent evidence and are binding on appeal." Anderson Chevrolet/Olds, Inc. v. Higgins, 57 N.C.App. 650, 653, 292 S.E.2d 159, 161 (1982). Even if the assignment of error could be read as challenging the sufficiency of the evidence, it would be ineffective to support plaintiff's argument. An assignment of error generally challenging the sufficiency of evidence to support numerous findings of fact is broadside and ineffective. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C.App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986); Wade v. Wade 72 N.C.App. 372, 325 S.E.2d 260, disc. review denied, 313 N.C. 612, 330 S.E.2d 616 (1985). Our review is therefore limited to whether or not the findings support the judge's conclusion of law number 3.

The primary issue at trial was the meaning of "repurchase agreement." The court found that the term repurchase is subject to multiple interpretations. The court also found facts related to each interpretation. Specifically, the court found the following:

That at trial Bob Dunn asserted the repurchase agreement is a trade term in the industry that requires the dealer to repurchase the vehicle from the bank if the bank tenders the vehicle to the dealer within 90 days of default by the purchaser. That Bob Dunn admitted there are some instances in which this 90 day period can be extended such as acts of war or bankruptcy of the defaulting purchaser. That First Union at trial asserted that a repurchase agreement acts as a full guaranty. That First Union also asserted that if a repurchase does not act as a full guaranty then the repurchase forms utilized by First Union control the terms of the agreement. That First Union asserted these forms provide for the 90 day period as described by Bob Dunn. that (sic) this 90 day period can be extended by acts of war or bankruptcy as described by Bob Dunn and that this 90 day period can also be extended if the defaulting purchaser "refuses to surrender possession" as stated in the First Union Form. Bob Dunn admitted that the First Union form, the Northwestern Bank form, and the agreement as he described it were typical of the industry even though each format differed as to specific exceptions to the 90 day period. Both parties agreed that Bob Dunn had not signed the First Union form nor was this form presented to Bob Dunn at any point prior signing (sic) of the agreement which is the basis of this lawsuit.

From these and other findings of fact the trial judge drew conclusion number 3:

That the agreement which is the basis of this lawsuit is ambiguous. That this agreement was a repurchase agreement. That a repurchase agreement is a trade term in the industry that requires the dealer to repurchase the vehicle from the bank if the bank tenders the vehicle to the dealer within 90 days of default by the purchaser. That there are some instances in which this 90 day period can be extended. That Bob Dunn's asserted exceptions to this 90 day period are reasonable and form the basis of the agreement. This 90 day period can be extended due to acts of war or bankruptcy of the defaulting purchaser. That First Union failed to tender the car to Bob Dunn within 90 days of default by the purchasers and failed to demonstrate it fell within any exceptions to the 90 day period. Thus Bob Dunn is not required to repurchase the vehicle from First Union.

The questions before the judge were (1) whether or not the agreement between plaintiff and defendant is ambiguous, and (2) if the agreement is ambiguous, what is the meaning of repurchase agreement. The trial judge's findings are relevant to these questions, and the findings fully support his conclusion of law. The order reflects a reasoned decision. We therefore affirm the judgment.

Affirmed.

WYNN and JOHN C. MARTIN, JJ., concur.