Wiggins v. Triesler Co.

ARNOLD, Chief Judge. Although plaintiff filed a timely notice of appeal, he failed to provide any assignments of error for review and present those arguments in his brief. Because this Court’s scope of review on appeal is [371] limited to a consideration of those assignments of error set out in the record on appeal, plaintiff’s appeal is deemed abandoned. N.C.R. App. P. 10(a) (1994); see also N.C.R. App. P. 28 (1994). Defendant’s first assignment of error is that the trial court erred in ruling defendant violated the provisions of G.S. § 66-98 entitled “Prohibited acts.” G.S. § 66-98 provides, in part, the following: Business opportunity sellers shall not: (1) Represent that the business opportunity provides income or earning potential of any kind unless the seller has documented data to substantiate the claims of income or earning potential and discloses this data to the prospective purchaser at the time such representations are made .... G.S. § 66-98(1). In his complaint, plaintiff alleged violations of this and one other statutory provision, N.C. Gen. Stat. § 66-95(10), which require disclosure of certain information by the franchisor. After the trial court had dismissed plaintiff’s claim that defendant violated G.S. § 66-95(10), and defendant had begun to put on evidence regarding its counterclaim, plaintiff made a motion for the court to review its ruling under Rule 41(b). Plaintiff informed the court that it had not ruled on the G.S. § 66-98(1) violation alleged in his complaint. Over defendant’s objection, the court allowed plaintiff’s motion, concluding in its order that “[t]he Defendant violated the provisions of N.C. Gen. Stat. § 66-98(1) by failing to provide the information required by the statute in the Disclosure Statement.” However, the court nevertheless concluded that plaintiff failed to show damages and was not entitled to anything under N.C. Gen. Stat. § 66-100(b). Defendant contends, inter alia, that the trial court made no specific finding of fact to support its conclusion of law. We agree. In order to determine whether defendant violated G.S. § 66-98(1), the court first had to find that defendant represented to plaintiff that the janitorial franchise offered “provides income or earning potential of any kind,” and second, that defendant failed to disclose documented data substantiating its claims of income or earning potential. We hold the trial court erred by failing to make such findings. When an action is tried upon the facts without a jury, the court is required to make findings of fact and conclusions of law. N.C. Gen. Stat. § 1A-1, Rule 52(a) (1990); City of Statesville v. Roth, 77 N.C. App. 803, 336 S.E.2d 142 (1985). Findings of fact made by the trial judge must be “sufficiently specific to enable an appellate court to [372] review the decision and test the correctness of the judgment.” Chemical Realty Corp. v. Home Fed’l Savings & Loan, 65 N.C. App. 242, 249, 310 S.E.2d 33, 37 (1983), disc. review denied, 310 N.C. 624, 315 S.E.2d 689, cert. denied, 469 U.S. 835, 83 L. Ed. 2d 69 (1984) (quoting Quick v. Quick, 305 N.C. 446, 451, 290 S.E.2d 653, 657 (1982)). Rule 52(a)(1) does not require a recitation of all evidentiary facts, but it does require specific findings on the ultimate facts established by the evidence, which are determinative of the issues involved in the action and essential to support the conclusions of law reached. Id. In the case at bar, not only were the ultimate facts relevant to a violation of G.S. § 66-98(1) not specific, but they were absent. Nowhere in its ten findings of fact did the court make any mention of representations made by defendant to plaintiff of the franchise’s income or earning potential, or defendant’s failure to disclose to plaintiff data substantiating those claims. Such findings are necessary to a valid judgment in this action. By failing to make findings of fact as to whether defendant made representations of income or earning potential and whether it further failed to disclose information substantiating those representations, meaningful appellate review is not possible. See Coble v. Coble, 300 N.C. 708, 268 S.E.2d 185 (1980). We have reviewed defendant’s remaining assignments of error and find no error. We remand for the entry of findings solely on the evidence offered at the trial. Vacated and remanded. Judges GREENE and McCRODDEN concur.