IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-887

Filed: 17 March 2020

Mitchell County, No. 16 CVS 229

MICHAEL STACY BUCHANAN, Plaintiff,

v.

NORTH CAROLINA FARM BUREAU MUTUAL INSURANCE COMPANY, INC., 

Defendant.

Appeal by plaintiff from orders entered 8 December 2017 and 21 June 2019 by 

Judges Mark E. Powell and Robert Bell, respectively, in Mitchell County Superior

Court. Heard in the Court of Appeals 3 March 2020.

Charlie A. Hunt, Jr. for plaintiff-appellant.

Marcellino & Tyson, PLLC, by Clay A. Campbell, for defendant-appellee.

TYSON, Judge.

Michael Stacy Buchanan (“Plaintiff”) appeals from the order granting, in part,

North Carolina Farm Bureau Mutual Insurance Company’s (“Defendant”) motion for 

summary judgment, and also from the order granting Defendant’s motion for a 

directed verdict. We affirm the trial court’s orders.

I. Background

Plaintiff applied for homeowner’s insurance with Defendant in December 2012. 

His application asserted his residence (“the Home”) was built in 1957. After 
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Defendant issued Plaintiff a homeowner’s policy (“the Policy”), it learned the Home 

had actually been built in 1933. Defendant sent Plaintiff a letter on 8 February 2013, 

cancelling the Policy effective as of the end of that month.

Plaintiff submitted a homeowner change application to Defendant on 20 

February 2013, requesting a decrease in coverage on the Policy. Defendant reissued 

the Policy to Plaintiff and backdated coverage to 19 December 2012. Plaintiff 

renewed the Policy on 19 December 2013.

The Home and some of Plaintiff’s personal property were damaged by fire on 

10 June 2014. Plaintiff reported the loss to Defendant. An employee of Defendant 

met with Plaintiff at the Home later that day. Plaintiff informed Defendant’s 

employee he could not enter the Home until the fire investigation was complete. 

Defendant’s employee issued Plaintiff a check for $2,000.00 towards Plaintiff’s living 

expenses.

Todd Kirby, a large-loss adjuster for Defendant, met with Plaintiff and 

inspected and photographed the damage to the Home on 12 June 2014, and again on 

28 June 2014. Kirby prepared an estimate of $76,877.72 to repair the damages. 

Kirby mailed the estimate to Plaintiff on 1 July 2014. Plaintiff sent Kirby a letter on 

5 August 2014, stating he would not be restoring or rebuilding the Home, objecting 

to Defendant requiring him to inventory his damaged personal property, wishing to 

conclude the settlement process, and requesting $217,000.00 to settle his claims.
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Kirby replied to Plaintiff with a letter sent 18 August 2014, and enclosed a 

section of the Policy outlining, among other duties, Plaintiff’s duty to prepare and

submit an inventory after a loss. On 25 August 2014, Defendant mailed Plaintiff a 

check for $4,800.00 to cover additional living expenses for six months. Plaintiff 

provided an initial personal property inventory to Defendant in late August 2014.

Kirby reviewed Plaintiff’s inventory and sent a letter to Plaintiff on 10 

September 2014 explaining the Policy provisions relating to the differences between

actual cash value (“ACV”) and replacement cost value (“RCV”) for losses. The letter 

included a check to Plaintiff for $9,066.16 for the ACV of the property listed in his 

inventory. Kirby discussed the estimate with Plaintiff on 15 September 2014 and 

advised Plaintiff he could submit his own estimate from a contractor of his choice. 

Defendant mailed Plaintiff a second living expenses check for $4,800.00 on 20 

November 2014.

Defendant mailed Plaintiff a check for the damage to the Home in the amount 

of $74,377.72, the amount of Kirby’s estimate less Plaintiff’s deductible, on 13 

January 2015. Plaintiff voided and returned that check to Defendant in a letter from 

his counsel on 22 May 2015, which also included an estimate prepared by a general 

contractor indicating $147,125.34 would be a reasonable cost for repairs. Defendant 

replied to Plaintiff’s counsel seeking supporting documentation for the estimate. 
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Plaintiff’s counsel submitted additional pages of inventory to Defendant on 31 July 

2015.

Kirby determined the ACV of the additional inventory was $8,870.82, and 

Defendant issued a check to Plaintiff for that amount on 28 August 2015. Defendant 

reiterated its request for supporting documentation in letters to Plaintiff’s counsel on 

27 October 2015 and 16 February 2016.

Plaintiff filed suit against Defendant on 15 November 2016, seeking damages 

caused by the fire and alleging breach of the Policy contract and unfair and deceptive 

trade practices. Defendant filed a motion to stay the proceedings and compel 

appraisal pursuant to the Policy on 9 December 2016. The trial court granted 

Defendant’s motion to stay and compelled appraisal by order entered on 2 March 

2017. 

Plaintiff moved to terminate the stay on 30 May 2017, after retaining his own 

appraiser, alleging dilatory inaction by Defendant. The trial court denied Plaintiff’s 

motion and modified the order granting the stay to set a calendar for the appraisal. 

The chosen umpire made his appraisal award in September 2017.

Plaintiff appealed the order on 2 October 2017, and also filed a motion to stay 

the proceedings pending its appeal. Defendant filed three motions with the trial court 

on 10 October 2017: to dismiss Plaintiff’s appeal, for summary judgment, and to 

confirm the appraisal award. The trial court entered a series of orders on 8 December 
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2017: denying Plaintiff’s motion to stay, dismissing Plaintiff’s appeal, and granting 

partial summary judgment in favor of Defendant on the issue of unfair and deceptive 

trade practices.

Plaintiff appealed the trial court’s grant of partial summary judgment. This 

Court dismissed his appeal as interlocutory in an unpublished opinion on 16 April 

2019. Buchanan v. N.C. Farm Bureau Mut. Ins. Co. __ N.C. App. __, 825 S.E.2d 704

(2019) (unpublished). The parties proceeded to trial in May 2019.

Defendant made several motions in limine prior to trial, including to exclude 

any information that arose after the appraisal award, specifically identifying a report 

by Plaintiff’s proposed expert witness, Terry LaDuke, based on his inspection of the 

Home in September 2018. The trial court preliminarily reserved ruling on the 

motion.

Defendant’s counsel renewed his motion in limine prior to LaDuke taking the 

stand as Plaintiff’s final witness. The trial court heard arguments, allowed

Defendant’s motion, and excluded LaDuke’s proposed testimony and report from 

evidence. Plaintiff rested his case, and Defendant moved for a directed verdict. The 

trial court granted Defendant’s motion for a directed verdict and entered its order on 

21 June 2019. Plaintiff filed timely notice of appeal.

II. Jurisdiction
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Plaintiff’s brief does not include a statement of the grounds for appellate 

review, as required by N.C. R. App. P. 28(b)(4). “Compliance with the rules . . . is 

mandatory.” Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 

191, 194, 657 S.E.2d 361, 362 (2008) (citations omitted).

However, “noncompliance with the appellate rules does not, ipso facto, 

mandate dismissal of an appeal.” Id. at 194, 657 S.E.2d at 363 (citation omitted). 

“Noncompliance with [Appellate Rule 28(b)], while perhaps indicative of inartful 

appellate advocacy, does not ordinarily give rise to the harms associated with review 

of unpreserved issues or lack of jurisdiction.” Id. at 198, 657 S.E.2d at 365.

Plaintiff’s failure to comply with Appellate Rule 28(b)(4) is non-jurisdictional 

and does not mandate dismissal. See id. Counsel is admonished that our Appellate 

Rules are mandatory, compliance is expected therewith, and sanctions are available 

for violation. Id.; N.C. R. App. P. 28(b)(4). This appeal is properly before us pursuant 

to N.C. Gen. Stat. § 7A-27(b)(1) (2019).

III. Issues

Plaintiff argues the trial court erred by granting: (1) Defendant’s motion to 

stay the trial proceedings and compel appraisal of the Home; (2) Defendant’s motion 

for summary judgment in part, on the unfair and deceptive trade practices claim; (3) 

Defendant’s motion in limine to exclude the testimony of his environmental expert; 
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and, (4) Defendant’s motion for directed verdict on his breach of contract claim at the 

close of Plaintiff’s evidence.

IV. Appraisal

A. Standard of Review

“A trial court’s denial of a motion to stay is subject to an abuse of discretion 

standard of review.” Park East Sales, LLC v. Clark-Langley, Inc., 186 N.C. App. 198, 

209, 651 S.E.2d 235, 242 (2007).

B. Analysis

Our Supreme Court has stated, “an insurance policy is a contract and its 

provisions govern the rights and duties of the parties thereto.” N.C. Farm Bureau 

Mut. Ins. Co., Inc. v. Sadler, 365 N.C. 178, 182, 711 S.E.2d 114, 117 (2011) (citation 

omitted). Plaintiff argues the trial court erred in granting Defendant’s motion to stay 

the trial and compelling an appraisal of the Home. Defendant argued, and the trial 

court agreed, such appraisal was compelled by the terms of the Policy and this Court’s 

precedent. See Patel v. Scottsdale Ins. Co., 221 N.C. App. 476, 482-83, 728 S.E.2d 394, 

398-99 (2012) (interpreting insurance policy language as requiring appraisal process 

as condition precedent to filing suit against insurer).

Plaintiff argues the reasoning in Patel is inapplicable to this case, because the 

Policy at bar states the amount of loss payment “may be determined by . . . [e]ntry of 

a final judgment.” Plaintiff argues this provision necessarily provides for 
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determining the amount of loss by filing suit. Plaintiff cites two cases, neither of 

which are binding upon this Court, to distinguish Patel. 

Plaintiff cites Hayes v. Allstate Ins. Co., as persuasive authority to support its 

argument. Hayes v. Allstate Ins. Co., 722 F.2d 1332 (7th Cir. 1983). The policy under 

review in Hayes did not expressly provide that no action could be maintained upon it 

until after the loss was determined by appraisal. Id. at 1335.

The Policy before us expressly provides: “No action can be brought against us 

unless there has been full compliance with all of the terms under Section I of this 

policy.” Section I of the Policy includes an appraisal clause: “If you and we fail to 

agree on the value or amount of any item or loss, either may demand an appraisal of 

such item or loss.” Plaintiff’s reliance on Hayes is unsupported and without merit.

Plaintiff also cites Otto Indus. N. Am. v. Phx. Ins. Co., No. 3:12-CV-717-FDWDCK, 2013 WL 2124163 (W.D.N.C. May 15, 2013). The federal trial court in Otto

distinguished the Court’s holding in Patel, because the interpretation and application 

of the terms and conditions of the policy at issue “includ[ed] the number of 

occurrences, the existence and scope of coverage for equipment breakdowns[,] and 

whether repair or replacement coverage is appropriate.” Otto, 2013 WL 2124163, at 

*2. The court also noted the case before it “involves allegations concerning [the 

insurer’s] bad faith conduct that are not subject to appraisal.” Id.
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Plaintiff argues the trial court erred in following Patel, because his allegations 

against Defendant assert bad faith conduct. Plaintiff failed to allege any issues 

concerning the interpretation and application of the terms and conditions of the 

policy, as were raised in Otto. Although Plaintiff alleges bad faith conduct by 

Defendant, such conduct alone does not justify disregarding the plain language of the 

Policy, which requires appraisal as a condition precedent to suit when the loss 

amount is disputed.

Plaintiff has failed to show the trial court abused its discretion by granting 

Defendant’s motion to stay. Plaintiff’s argument is overruled.

V. Unfair and Deceptive Trade Practices

A. Standard of Review

“Our standard of review of an appeal from summary judgment is de novo; such 

judgment is appropriate only when the record shows that there is no genuine issue 

as to any material fact and that any party is entitled to a judgment as a matter of 

law.” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation and 

internal quotation marks omitted).

When reviewing a trial court’s entry of summary judgment, “[a]ll facts asserted 

by the adverse party are taken as true, and their inferences must be viewed in the 

light most favorable to that party.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 

835 (2000) (citations omitted). “The showing required for summary judgment may be 
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accomplished by proving an essential element of the opposing party’s claim does not 

exist, cannot be proven at trial, or would be barred by an affirmative defense.” Id.

B. Analysis

Plaintiff argues the trial court erred in granting Defendant’s motion for 

summary judgment on his unfair and deceptive trade practices claim. Plaintiff 

alleges Defendant violated N.C. Gen. Stat. §§ 58-63-15(11) and 75-1.1 (2019) in both 

the issuance and handling of the Policy. Plaintiff alleges Defendant committed six of 

the unfair claim settlement practices listed in § 58-63-15(11):

a. Misrepresenting pertinent facts or insurance policy 

provisions relating to coverages at issue; 

. . .

c. Failing to adopt and implement reasonable standards 

for the prompt investigation of claims arising under 

insurance policies; 

d. Refusing to pay claims without conducting a reasonable 

investigation based upon all available information; 

. . .

f. Not attempting in good faith to effectuate prompt, fair 

and equitable settlements of claims in which liability 

has become reasonably clear; 

. . .

h. Attempting to settle a claim for less than the amount to 

which a reasonable man would have believed he was 

entitled; 

. . .
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l. Delaying the investigation or payment of claims by 

requiring an insured claimant, or the physician, of [or] 

either, to submit a preliminary claim report and then 

requiring the subsequent submission of formal proof-ofloss forms, both of which submissions contain 

substantially the same information

N.C. Gen. Stat. § 58-63-15(11).

Although N.C. Gen. Stat. § 58-63-15(11) (2019) requires a plaintiff show the

alleged violations were committed “with such frequency as to indicate a general 

business practice . . . . unfair and deceptive acts in the insurance area are not 

regulated exclusively by Article 63 of Chapter 58, but are also actionable under N.C. 

Gen. Stat. § 75-1.1.” Country Club of Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co., 

150 N.C. App. 231, 243-44, 563 S.E.2d 269, 277 (2002) (citations and internal 

quotation marks omitted).

A violation of N.C. Gen. Stat. § 58-63-15 constitutes a violation of N.C. Gen. 

Stat. § 75-1.1. Id. at 244, 563 S.E.2d at 278 (citation omitted). It is also “unnecessary 

to determine whether the plaintiffs had established that the acts occurred with such 

frequency as to constitute a general business practice” in order to recover against an 

insurer under N.C. Gen. Stat. § 75-1.1. Id. (citation omitted).

1. Issuance

Plaintiff first alleges Defendant violated N.C. Gen. Stat. § 58-63-15(11)(a) by

agreeing to insure the Home for $149,000.00 prior to inspecting the property, then 

cancelling the policy and offering a lower coverage upon learning of the true 
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construction date. Plaintiff argues he was then induced by Defendant’s agent to pay 

an extra premium to get 25% more coverage. Plaintiff does not argue or allege any

misrepresentation of pertinent facts or insurance policy provisions by Defendant in 

this assertion.

Although Plaintiff and Defendant dispute who bears the responsibility for the 

basis of 1957 being the Home’s construction year on the original application, this 

purported issue does not raise a question of material fact. Reviewing all facts 

asserted by Plaintiff as true, with all inferences therefrom viewed in the light most 

favorable to him, Plaintiff failed to show a misrepresentation of “pertinent facts or 

insurance policy provisions relating to coverages at issue.” N.C. Gen. Stat. § 58-63-

15(11)(a).

Between December 2012 and June 2014, when the Home burned, Plaintiff had 

eighteen months to seek either coverage with another insurer or to propose 

amendments or endorsements to the Policy with Defendant. Defendant informed 

Plaintiff in February 2013 it was cancelling the Policy, in part because it was “unsure 

of the year of construction and square footage” of the Home. The record on appeal 

does not reflect any protest or challenge of this decision by Plaintiff. Instead, Plaintiff

submitted a homeowner change policy, which Defendant accepted. Defendant 

reissued the Policy and backdated coverage to its original issuance date. Plaintiff 

chose to renew the Policy for an additional year in December 2013.
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Plaintiff has not shown a misrepresentation by Defendant of any “pertinent 

facts or insurance policy provisions relating to coverages at issue.” Id. Plaintiff has 

also not shown any inducement by Defendant tending to show unfair and deceptive 

trade practices. N.C. Gen. Stat. § 75-1.1. Plaintiff’s argument concerning Defendant’s

issuance of the Policy is overruled.

2. Handling

Plaintiff further argues Defendant committed several unfair claim settlement 

practices listed in § 58-63-15(11) in its interactions with Plaintiff after the fire. 

Specifically, Plaintiff alleges Defendant: (1) sent an unlicensed adjustor to conduct 

its estimate, who (2) “made a very brief examination of the premises and offered 

[Plaintiff] about half of the replacement cost” of the Home and personal property; (3) 

forced Plaintiff to obtain at his own expense documentation of the damages; (4)

ignored Plaintiff’s submitted valuation; and, (5) only requested an appraisal two and 

a half years after the fire.

Plaintiff asserts Kirby was not a licensed insurance adjuster at the time of his 

inspection of the Home. Plaintiff proffered as evidence a print-out of a North Carolina 

Department of Insurance online licensee search showing no results for Kirby as of 15 

October 2017. Kirby proffered as evidence a copy of his license from the Department 

of Insurance and a print-out of an online search result from the North Carolina 

Licensing Board for General Contractors showing his status as a licensee as of 25 
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January 2017. Based upon the record before us, Plaintiff does not show Kirby was 

unlicensed in June 2014. 

The remainder of Plaintiff’s arguments all arise from Defendant’s conduct 

pursuant to the Policy, and Plaintiff’s displeasure with their handling and payments 

of his claims. While Plaintiff clearly suffered from the fire and loss, he was advanced 

multiple payments and tenders due for his losses and has failed to forecast evidence 

Defendant engaged in any of the alleged unfair and deceptive trade practices he 

asserts as grounds to show the trial court erred in granting Defendant’s motion for 

summary judgment.

Defendant has performed its duties under the provisions of the Policy. 

Accepting all inferences asserted from Plaintiff’s facts in the light most favorable to 

him, he cannot prove Defendant committed unfair and deceptive trade practices in 

its handling of his claims under the Policy. See Dobson, 352 N.C. at 83, 530 S.E.2d at

835. Defendant’s argument is overruled.

VI. Exclusion of Expert Testimony

A. Standard of Review

“A motion in limine seeks pretrial determination of the admissibility of 

evidence proposed to be introduced at trial . . . . A trial court’s ruling on a motion in 

limine will not be reversed absent an abuse of discretion.” Luke v. Omega Consulting 
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Grp., LC, 194 N.C. App. 745, 750, 670 S.E.2d 604, 609 (2009) (citations and internal 

quotation marks omitted).

B. Analysis

Plaintiff argues the trial court erred in refusing to allow the testimony and 

report of his expert witness, Terry LaDuke. Plaintiff sought to introduce this 

evidence to show Defendant should have known possible contamination of the Home 

posed a potentially dangerous threat to human occupancy, and Defendant should 

have inspected the damage more thoroughly.

Defendant objected to LaDuke’s proposed testimony and report on the grounds 

that LaDuke had inspected the Home and prepared his report in 2018, long after the 

loss and appraisal award had been entered. Under the Policy, the parties had already 

conducted the appraisal process and settled upon the value of the Home without 

LaDuke’s report.

When Defendant renewed its motion in limine before LaDuke’s testimony, the 

trial court asked Plaintiff’s counsel if Defendant knew about the contamination of the 

Home when it made an offer to Plaintiff. Plaintiff’s counsel admitted he did not know 

whether Defendant “knew the extent” of the contamination. The trial court further 

asked if Plaintiff had raised the issue of potential contamination during the appraisal 

process. Plaintiff’s counsel did not directly answer the trial court. Instead, Plaintiff’s 
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counsel argued it would be unreasonable for Defendant to spend tens of thousands of 

dollars to rebuild a home that would be purportedly uninhabitable.

The trial court granted Defendant’s motion and disallowed LaDuke from 

testifying. Considering the sole issue remaining before the court was the breach of 

contract, and the parties had settled the value of the Home in the appraisal process, 

LaDuke’s testimony would have been irrelevant. Plaintiff has failed to show the trial 

court erred in granting Defendant’s motion for summary judgment. Plaintiff’s 

argument is overruled.

VII. Directed Verdict

A. Standard of Review

“The standard of review of directed verdict is whether the evidence, taken in 

the light most favorable to the non-moving party, is sufficient as a matter of law to 

be submitted to the jury.” Davis v. Dennis Lilly Co., 330 N.C. 314, 322, 411 S.E.2d 

133, 138 (1991) (citation omitted).

In determining the sufficiency of the evidence to withstand 

a motion for a directed verdict, all of the evidence which 

supports the non-movant’s claim must be taken as true and 

considered in the light most favorable to the non-movant, 

giving the non-movant the benefit of every reasonable 

inference which may legitimately be drawn therefrom and 

resolving contradictions, conflicts, and inconsistencies in 

the non-movant’s favor.

Turner v. Duke University, 325 N.C. 152, 158, 381 S.E.2d 706, 710 (1989) (citation 

omitted).
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B. Analysis

Plaintiff does not argue his claim for breach of contract withstands Defendant’s 

motion for a directed verdict. Instead, he argues different superior court judges ruled 

upon Defendant’s motions for summary judgment and directed verdict, and because 

Defendant had argued in both motions that the appraisal of the Home resolved the 

contract issues in this case, the judge who entered the directed verdict did not have 

the authority to overrule the previous judge’s summary judgment ruling on this same 

issue.

This Court has previously rejected this argument. “[A] pretrial order denying 

summary judgment has no effect on a later order granting or denying a directed 

verdict on the same issue or issues.” Clinton v. Wake County Bd. of Education, 108 

N.C. App. 616, 621, 424 S.E.2d 691, 694 (1993).

In Clinton, the appellant asserted error in the trial judge’s entry of directed 

verdict on claims, which a different judge had previously denied summary judgment. 

Id. This Court declined to review the appellant’s arguments based upon the prior 

denial of summary judgment. Id. The “denial of a motion for summary judgment is 

not reviewable during appeal from a final judgment rendered in trial on the merits.” 

Id. (quoting Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)). 

Plaintiff’s argument is overruled.

VIII. Conclusion
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Plaintiff has failed to show the trial court abused its discretion in granting 

Defendant’s motion to stay the trial proceedings and to compel an appraisal of the 

Home. The appraisal process was required by the Policy as a condition precedent to 

Plaintiff filing suit against Defendant.

Accepting all facts asserted by Plaintiff on his unfair and deceptive trade 

practices claim as true, and viewing all inferences therefrom in the light most 

favorable to him, Plaintiff failed to show a misrepresentation by Defendant of 

“pertinent facts or insurance policy provisions relating to coverages at issue” in the 

issuance of the Policy. N.C. Gen. Stat. § 58-63-15(11)(a).

Plaintiff failed to show Kirby was an unlicensed contractor when he inspected 

the Home. All of Plaintiff’s other allegations of unfair and deceptive trade practices 

arise from Defendant’s asserted conduct pursuant to the provisions of the Policy. 

Defendant performed its duties and exercised it rights reserved under the Policy. 

Plaintiff cannot show a genuine issue of material fact exists to support his unfair and 

deceptive trade practices claims.

The trial court did not abuse its discretion in granting Defendant’s motion in 

limine to exclude Plaintiff’s proffered expert witness. The proposed evidence did not 

and could not relate to the remaining issue of breach of contract at trial.

Denial of a motion for summary judgment is not reviewable on appeal from a 

directed verdict and judgment rendered after trial on the merits. Clinton, 108 N.C. 
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App. at 621, 424 S.E.2d at 694. Plaintiff’s argument asserting the trial court erred in 

directing a verdict in favor of Defendant on the same issue, where a previous superior 

court judge had denied summary judgment, is precluded by precedent. See id.

The trial court’s orders are affirmed. It is so ordered.

AFFIRMED.

Chief Judge MCGEE and Judge YOUNG concur.