Oxendine v. Moss

WELLS, Judge. In their sole assignment of error, defendants contend that the trial court erred in denying their motion for a directed verdict at the close of all the evidence, on the grounds that there was insufficient evidence to permit the jury to find existence of an account stated. Although plaintiff’s complaint alleged and plaintiff’s evidence tended to support two separate theories of recovery for his services, i.e., work performed and an account stated, defendants, the moving party, failed to state to the trial court any specific grounds for their motion for a directed verdict, as required by G.S. 1A-1, Rule 50(a) of the Rules of Civil Procedure. Under such circumstances, defendants have failed to preserve the trial court’s denial of their motion for our review. Johnson v. Dunlop, 53 N.C. App. 312, 280 S.E. 2d 759 (1981); Builders Supplies Co. of Goldsboro, N.C. v. Gainey, 10 N.C. App. 364, 178 S.E. 2d 794 (1971); Pergerson v. Williams, 9 N.C. App. 512, 176 S.E. 2d 885 (1970); Compare Anderson v. Butler, 284 N.C. 723, 202 S.E. 2d 585 (1974). Defendants also failed to include in the record on appeal their motion for a directed verdict or the trial court’s order denying their motion, but merely referred in their brief to the pages of the trial transcript where these transactions might be found. This does not comply with the requirements of Rule 9(b)(1)(viii) and (x) of the Rules of Appellate Procedure. [207] Appeal dismissed. Judges Hedrick and Phillips concur.