IN THE COURT OF APPEALS OF NORTH CAROLINA

2022

- NCCOA

- 548

No. COA 21

- 653

Filed 16 August 2022

Durham County, No. 15 CVS 2972

LISA BIGGS, Individually a nd a s Administrator, ESTATE OF KELWIN BIGGS

, Plaintiff s

,

v.

DARYL BROOKS, NATHANI E L BROOKS, SR., KYLE OLLIS, Individually, and

BOULEVARD PRE

- OWNED, INC. , Defendant s

.

Appeal by plaintiff from order entered 4 May 2017 by Judge W. Osmond Smith,

III, in Durham County Superior Court. Heard in the Court of Appeals 27 April 2022

.

Couch & Associates, PC, by Finesse G. Couch and C. Destine A. Couch , for

plaintiff

- appellant.

Sue, Anderson & Bordman, LLP , by Stephanie W. Anderson , for defendant s

appellees

.

DIETZ , Judge.

¶ 1 In January 2015, Boulevard Pre

- Owned, Inc., a used car business, sold a 1995

Camaro to Nathaniel Brooks. Nathaniel Brooks and Boulevard executed a bill of sale;

signed and notarized title transfer forms ; and executed various other documents

typically accom panying the sale of an automobile, such as insurance and registration

paperwork . After executing this paperwork, an adult relative of Nathaniel Brooks,

Daryl Brooks, arrived at the dealership and drove the Camaro off the lot.B IGGS V

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Opinion of the Court

¶ 2 Shortly after the sale, t he North Carolina Division of Motor Vehicles rejected

the title transfer paperwork because Boulevard had misplaced its copy of Nathaniel

Brooks’ s driver’s license. Boulevard tried unsuccessfully to contact Nathaniel Brooks

multiple times between January an d March 2015 to obtain a replacement copy.

¶ 3 Later in March 2015, Daryl Brooks was driving the Camaro while impaired

and caused a serious automobile accident that led to the death of Kelwin Biggs.

¶ 4 Lisa Biggs, individually and as the representative of Kelwin Biggs, brought

claims for negligence and negligent entrustment against Boulevard and its owner,

Kyle Ollis. Biggs relied on a statute, N.C. Gen. Stat. § 20

- 71.1 , providing that proof

of ownership of a motor vehicle

— in this case the title and reg istration that had not

yet been transferred to Nathaniel Brooks

— was prima facie evidence that the motor

vehicle was being operated with the authority, consent, and knowledge of Boulevard,

the owner, and “ being operated by and under the control of a person for whose conduct

the owner was legally responsible .”

¶ 5 The trial court granted summary judgment for Boulevard and Ollis on these

negligence claims. Following entry of final judgment against other parties in the case,

Biggs appealed.

¶ 6 We affirm. As explained below, Boulevard and Ollis presented undisputed

evidence that Boulevard relinquished authority and control over the Camaro when it

completed the sale and released the Camaro to the buyer. Under controllingB IGGS V

. B ROOKS

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Opinion of the Court

precedent from this Court, because Biggs did not forecast any evidence that rebutted

Boulevard’s evidence and created a genuine issue of material fact on this issue,

Boulevard and Ollis were entitled to judgment as a matter of law on these negligen ce

claims. We therefore affirm the trial co urt’s summary judgment order.

Facts and Procedural History

¶ 7 Defendant Boulevard Pre

- Owned, Inc. is a used car dealership. Defendant Kyle

Ollis is the p resident and owner of Boulevard.

¶ 8 In January 2015, Boulevard sold a used 1995 Chevrolet Camaro to Nathaniel

Brooks . At the time of the sale, the parties executed a bill of sale; signed and notarized

reassignment of title paperwork on the form required by the North Carolina Division

of Motor Vehicles; and signed various other paperwork typically acco mpanying an

automobile sale such as an arbitration agreement governing the sale, and insurance

and vehicle registration paperwork.

¶ 9 Following the sale, Daryl Brooks

— who is an adult, younger relative of

Nathaniel Brooks according to the record

— arrived at the dealership and picked up

the Camaro.

¶ 10 Although the parties undisputedly intended to transfer title of the Camaro as

part of this sale, that transfer did not happen. When Boulevard submitted the title

transfer paperwork to the Division of Motor Vehicles, Boulevard misplaced its copy

of Nathaniel Brooks’ s driver’s license

, and the DMV rejected the title transfer forB IGGS V

. B ROOKS

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Opinion of the Court

insufficient documentation. From late January through early March, Boulevard

called Nathaniel Brooks eight times seeking a replacement copy of his driver’s license

but never heard back.

¶ 11 Two months after the sale, on 11 March 2015, Daryl Brooks was driving the

Camaro. He was impaired at the time. At a speed of approximately 80 miles per hour,

Brooks collided with the bac k of a vehicle occupied by Lisa and Kelwin Biggs. The

crash pushed the Biggs’ s vehicle into oncoming traffic and Kelwin Biggs suffered fatal

injuries.

¶ 12 At the time of the collision, Daryl Brooks was driving with a suspended license

due to earlier off

enses of driving while impaired, driving while license re voked, and

failure to appear.

¶ 13 As part of the crash investigation, the State notified Boulevard that a vehicle

still titled and registered with the company had been involved in an accident. The

DMV’s License and Theft Bureau later investigated and cited Boulevard for failure

to timely deliver title as part of the sale.

¶ 14 After obtaining a copy of Nathaniel Brooks’ s driver’s license, DMV ultimately

transferred title of the Camaro to Nathanie l Brooks in late April 2015, long after the

collision involving the Camaro

.

¶ 15 Lisa Biggs, individually and as representative of her husband’s estate, sued

Boulevard and its owner, Kyle Ollis, for negligence, negligent entrustment, emotionalB IGGS V

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Opinion of the Court

distress, gross negligence, and punitive damages. Biggs also brought claims against

both Daryl Brooks and Nathaniel Brooks

.

¶ 16 At summary judgment, the trial court dismissed all claims against Boulevard

and Ollis. Biggs sought to immediately appeal that ruling

, but this Court dismissed

that interlocutory appeal for lack of jurisdiction. Biggs v. Brooks , 261 N.C. App. 773,

818 S.E.2d 643 (2018) (unpublished).

¶ 17 The case against the remaining defendants was stayed repeatedly over the

next several years because of Daryl Brooks’ s pending criminal trial. In 2017, Brooks

was convicted and sentenced for second degree murde r and other related offenses in

connection with the crash.

¶ 18 Following exhaustion of the criminal appeal process, the civil case against

Daryl Brooks proceeded to trial. After the trial court entered judgment finding Daryl

Brooks liable for wrongful death in causing the fatal collision, t he court conducted a

bench trial on compensatory and punitive damages and awarded $10,000,000 in

damages

.

¶ 19 In June 2021, following entry of final judgment on all remaining claims in this

case, Biggs appealed the trial court’s May 2017 order granting summary judgment in

favor of Boulevard and Kyle Ollis.

Analysis

¶ 20 Biggs challenges the trial court’s order granting summary judgment in favorB IGGS V

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Opinion of the Court

of Defendants Boulevard Pre

- O wned, Inc. and Kyle Ollis. We review that order de

novo

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

¶ 21 Summary judgment is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show 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.” N.C. R. Civ. P. 56(c) . To survive a motio n for summary

judgment, the non

- movant must forecast sufficient evidence to create a genuine issue

of material fact on a ll essential elements of the asserted claims

. Waddle v. Sparks

,

331 N.C. 73, 82, 414 S.E.2d 22, 27 (1992)

.

I. Agency theory of liability

¶ 22 We begin by addressing the various negligence claims that depend on an

agency relationship between Daryl Brooks and Boulevard Pre

- O wned, Inc.

¶ 23 Biggs asserts that Boulevard is liable for Daryl Brooks’ s ne gligence under an

agency theory that stems from a statutory provision governing ownership of motor

vehicles. By law, proof of ownership of a motor vehicle at the time of a collision is

prima facie evidence that the motor vehicle was being operated with the authority,

consent, and knowledge of the owner and “ being operated by and under the control of

a person for whose conduct the owner was legally responsible ”:

(a) In all actions to recover damage s for injury to the person

or to property or for the death of a person, arising out of an

accident or collision involving a motor vehicle, proof ofB IGGS V

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Opinion of the Court

ownership of such motor vehicle at the time of such

accident or collision shall be prima facie evidence that said

motor vehicle was being operated and used with the

authority, consent, and knowledge of the owner in the very

transaction out of which said injury or cause of action

arose.

(b) Proof of the registration of a motor vehicle in the name

of any person, firm, or corporation, shall for the purpose of

any such action, be prima facie evidence of ownership and

that such motor vehicle was then being operated by and

under the control of a person for whose conduct the owner

was legally responsible, for the owner ’s benefit, and within

the course and scope of his employment.

N.C. Gen. Stat. § 20

- 71.1.

¶ 24 “T he purpose of the section is to facilitate proof of ownership and agency where

a vehicle is operated by one other than the owner.” Winston v. Brodie

, 134 N.C. App.

260, 266, 517 S.E.2d 203, 207 (1999)

. Proof of ownership under Section 20

- 71.1

“ creates a prima facie case of agency that permits, but does not compel a finding for

plaintiff.” Id

. Importantly, Section 20

- 71.1 is “ a rule of evidence and not subst antive

law. ” Id

. This means that the plaintiff “ continues to carry the burden of proving an

agency relationship between the driver and owner at the time of the driver ’ s

negligence. ” Id

. The defendant “ at no point carries the burden of proof. ” Id

.

¶ 25 As a result, when a plaintiff relies on proof of ownership through this statute,

“ the defendant may offer positive, contradicting evidence which, if believed, would

establish the absence of an agency relationship. ” Id

. This contradictory evidenceB IGGS V

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Opinion of the Court

entitles the defendant to “a peremptory instruction that if the jury does believe the

contrary evidence, it must find for defendant on the agency issue. ” Id

. In other words,

when the defendant presents evidence contradicting this statutory agency principle,

the “ statu tory presumption is not weighed against defendant ’ s evidence by the trier

of facts .” DeArmon v. B. Mears Corp.

, 312 N.C. 749, 756, 325 S.E.2d 223, 228 (1985)

.

Instead, the plaintiff must present affirmative evidence supporting the agency

theory. Id

.

¶ 26 This, in turn, means that, at the summary judgment stage, when a defendant

forecasts undisputed evidence that rebuts the agency relationship described by

Section 20

- 71.1, the plaintiff must forecast at least some evidence, beyond the statute

itself, that creates a genuine issue of material fact on this question. See Thompson v.

Three Guys Furniture Co

., 122 N.C. App. 340, 345, 469 S.E.2d 583, 586 (1996)

. The

plaintiff cannot rely solely on the statute in the face of undisputed counter

- evidence,

because the statutory provision alone cannot be weighed against competing evidence

at trial. DeArmon

, 312 N.C. at 756, 325 S.E.2d at 228

.

¶ 27 So, for example, in Thompson

, this Court held that summary judgment for the

defendant was inappropriate after the defendant presented evidence refuting an

agency relationship because “ plaintiff has submitted affidavits pursuant to Rule

56(e), and thus has presented evidence in addition to the prima facie showing of

agency provided by G.S. § 20

– 71.1. ” Thompson

, 122 N.C. App. at 345, 469 S.E.2d atB IGGS V

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Opinion of the Court

586 (emphasis added). Without that affidavit, raising credibility questions with

defendant’s own evidence, the statute alone would have been insufficient to survive

summary judgment. Id

.

¶ 28 Here, the unique facts of this case make it one of the rare cases where there

are no genuine issues of fact

, and thus the trial court properly entered summary

judgment in favor of the defendants. It is undisputed that, on 8 January 2015,

Nathaniel Brooks and Boulevard Pre

- Owned, Inc. signed vario us documents

collectively representing the sale and intended transfer of ownership of the Camaro

from Boulevard to Nathaniel Brooks. These included a bill of sale for a total purchase

price of $7,500 signed by both Brook s and Boulevard; a dealer’s reassign ment of title

on the form issued by the North Carolina Division of Motor Vehicles, signed and

notarized by both Brooks and Boulevard; vehicle registration information necessary

to register the vehicle in Brooks’ s name; and various other fully executed pape rwork

that often accompanies the purchase of an automobile, such as an arbitration

agreement concerning the sale transaction, and various loan and insurance

paperwork.

¶ 29 Boulevard and Kyle Ollis also submitted an affidavit from Ollis describing the

sa le of the Camaro to Nathaniel Brooks on 8 January 2015 and testifying that Daryl

Brooks had no connection to Boulevard and was not an employee or agent of

Boulevard at any time.B IGGS V

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Opinion of the Court

¶ 30 This undisputed evidence demonstrates, as a matter of law, that there was no

agency relationship between Boulevard and Daryl Brooks. Although the formal

transfer of title to the Camaro did not occur because Boulevard misplaced its copy of

Nathaniel Brooks’ s driver’s license

— and thus was unable to complete the title

transfer through the DMV

— Boulevard relinquished authority and control over the

Camaro when it completed the sale and released the Camaro to the buyer.

Accordingly, the trial court properly entered summary judgment in favor of

Boulevard and Ollis on all claims that depended on the agency theory of liability. 1

II. Negligent entrustment theory

¶ 31 We next examine the negligent entrustment claim. Biggs contends that she

forecast sufficient evidence of the direct negligence of Boulevard based on the

company’s negligent entrustment of the Camaro to Daryl Brook s

, who had a

suspended license and a history of driving while impaired.

¶ 32 “ Negligent en trustment occurs when the owner of an automobile entrusts its

operation to a person whom he knows, or by the exercise of due care should have

1 Biggs also argues that under “North Carolina General Statutes § 20

- 279.21(b)(2),

the owner of the vehicle is liable for the negligent conduct of the driver where the victim’s

damages were ‘caused by an accident and resulting from the ownership, maintenance or use

of ' the owner’s vehicle.”

Section 20

- 279.21 is not a liability provision; it is an insurance coverage provision.

Bi ggs did not raise this insurance coverage issue in the trial court and cannot assert it for

the first time on appeal. N.C. R. App. P. 10. We therefore reject this argument as

unpreserved.B IGGS V

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Opinion of the Court

known, to be an incompetent or reckless driver who is likely to cause injury to others

in its use. ” Thompson

, 122 N.C. App. at 346, 469 S.E.2d at 586

– 87

.

¶ 33 There are two fatal flaws with this negligent entrustment theory. First, as

explained above, undisputed evidence demonstrates that Boulevard relinquished

authority and control over the Camaro when it completed the sale and title transfer

paperwork on 8 January 2015

, and that Daryl Brooks, when he drove the Camaro off

Boulevard’s lot, was doing so on behalf of his relative, Nathaniel Brooks, who was the

buyer of the Camaro and now had authority and control over the vehicle. Thus, the

undisputed evidence demonstrates t hat it was not Boulevard who entrusted Daryl

Brooks with the use of the Camaro at that time, but instead Nathaniel Brooks, who

had recently purchased the vehicle.

¶ 34 Moreover, the collision at issue in this case did not occur when Daryl Brooks

drove the Camaro off Boulevard’s lot following the sale. It occurred more than two

months later, on 11 March 2015. There is no evidence in the record that Boulevard

entrusted Daryl Brooks with the use of the Camaro

— over which it relinquished

authority and control t wo months earlier

— at the time of the collision. Accordingly,

the trial court did not err in granting summary judgment in favor of Boulevard and

Ollis on the negligent entrustment claim as well.

III. Remaining claims, legal theories, and requests for damages

¶ 35 Having determined that the trial court properly entered summary judgmentB IGGS V

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Opinion of the Court

in favor of Boulevard and Ollis on all of Biggs’ s negligence and negligent entrustment

claims, we need not address Biggs’ s other arguments on appeal

— including issues of

piercing t he corporate veil and the award of costs

— because these issues necessarily

depended on rejection of the trial court’s summary judgment ruling on the negligence

claims. We therefore affirm the trial court’s order in its entirety.

Conclusion

We affirm the trial court’s order.

AFFIRMED

.

Judge s GRIFFIN and JACKSON concur

.