An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA04-218NORTH CAROLINA COURT OF APPEALSFiled: 5 July 2005TONY RAY MABE Plaintiff v. SUSAN T. MONTAGUE DefendantStokes County No. 02 CVS 164 Appeal by defendant from judgment dated 3 October 2003 by the Honorable W. Douglas Albright in Stokes County Superior Court. Heard in the Court of Appeals 21 October 2004. R. Michael Bruce for plaintiff-appellee/cross-appellant. Craige, Brawley, Liipfert & Walker, LLP, by William W. Walker, for defendant-appellant/cross-appellee. BRYANT, Judge. Tony Ray Mabe (plaintiff) and Susan T. Montague (defendant) both appeal from a judgment dated 3 October 2003 which ordered defendant to pay plaintiff $4,125.94 in damages and entitled defendant to have possession of approximately 13,487 pounds of tobacco. Plaintiff is a tobacco farmer who operated under the United States Department of Agriculture, Farm Service Agency (FSA)allotments of poundage and acreage of tobacco. Defendant owned a tract of land in Stokes County which had a tobacco allotment. Defendant rented the land to plaintiff starting in 1994 under an oral agreement. Rent was based on a division of gross proceeds from the sale of tobacco, with plaintiff receiving 75% the defendant receiving 25%. On 20 June 1994 defendant executed a power of attorney for plaintiff to act on defendant's behalf with respect to the crop allotment and the warehouse designated for the sale of the tobacco . The government issued marketing cards in the spring of each year to reflect the tobacco allotment. The parties operated under this agreement without incident until 2000. In June 2000, defendant discovered that checks had been written to plaintiff for the saleof the 1999 crop for 100% of gross proceeds from the sale of the tobacco rather than the agreed upon 75%. Consequently, defendant revoked plaintiff's power of attorney. On 13 December 2000, defendant's attorney sent a letter to plaintiff to terminate the tenancy. On 17 May 2001, plaintiff obtained a preliminary injunction enjoining defendantfrom interfering with plaintiff's tending of defendant's land during the 2001 crop year anddirecting defendant to sign any documents necessary for plaintiff to market the tobacco crop. The injunction was later modified to eliminate defendant's signature on the marketing cards. During 2001, plaintiff grew a crop of tobacco on defendant's land, harvested it, cured it and under FSA instructions, stored it because it could not be sold except on a marketing card issued to defendant's farm. For the first time, in 2001, plaintiffcontracted directly with Phillip Morris for the purchase of tobacco. The tobacco grown in 2001 could be sold with defendant's marketing cards to the extent of defendant's allotment during the 2002 or 2003 crop years. Plaintiff tendered the 2001 tobacco crop to defendant, demanding payment of 75% of his share of the crop. Defendant rejected plaintiff's offer; plaintiff filed suit, defendant filed a counterclaim. Defendant then discovered checks for the 2000 crop year for sale of defendant's tobacco had been written to plaintiff for 100% or $2,284.00, and that defendant should have received 25% or $571.00 from that sale. The trial was held 11 August 2003 in Stokes County, the Honorable W. Douglas Albright presiding. The trial court found plaintiff had been damaged in the amount of $19,259.94 based on 75% of the 2001 crop, and defendant had the following damages: $571.00 unpaid in 2001; $2,057.00 in legal fees paid by defendant to collect the amount due for 1999 crop; and $750.00 for emotional distress. Defendant's damages were trebled to $10,134.00 and defendant was awarded $5,000.00 attorney's fees for a total of$15,134.00. After setting off the damages awarded defendant for her claim of unfair and deceptive trade practices and attorney's fees, judgment was entered for plaintiff for $4,125.94 and defendant was permitted to take possession of the tobacco. Both parties appeal.______________________________ Defendant raises several issues on appeal, however we determine the dispositive issue to be whether the trial court erred in finding the agreement between the parties was a yearto year periodic tenancy . In his cross-appeal, plaintiff raises the issue of whether the trial court erred in concluding as a matter of law that N.C.G.S. § 75-1.1 applied to plaintiff. Because plaintiff has not cited any authority for his remaining assignments of error in his cross- appeal, they are deemed abandoned. N.C. R. App. P. 28 (b)(6). Standard of Review On appeal from a judgment entered after a non-jury trial, the standard of review is whether competent evidence exists to support the trial court's findings of fact, whether the findings support the conclusions and whether the conclusions support the judgment. Whitaker v. Earnhardt, 289 N.C. 260, 262-63, 221 S.E.2d 316, 318 (1976). The findings of fact are binding as long as competent evidence supports them, despite evidence to the contrary. Id. However, the appellate court decides whether the findings support the conclusions and the judgment. Id.Defendant's AppealDefendant argues the trial court erred in finding the agreement between plaintiff and defendant was a year to year periodic tenancy. When a tenant for a year or longer holds over and is recognized by the landlord without further agreement or other qualifying facts or circumstances, he becomes a tenantfrom year to year, and is subject to the payment of the rent and other stipulations of the lease as far as the same may be applied to existing conditions. Scheelky v. Koch, 119 N.C.80, 25 S.E. 713 (1896); Harty v. Harris, 120 N.C. 408, 27 S.E. 90 (1897); Holton v. Andrews, 151 N.C. 340, 66 S.E. 212 (1909); Murrill v. Palmer, 164 N.C. 50, 80 S.E. 55 (1913). “[B]y presumption of law. . . [s]uch a [year to year] tenancy may be terminated by either party at the end of any year thereof by giving notice of [either parties'] intent . . .to terminate it thirty days before the end of such year.” Kearney v. Hare, 265 N.C. 570, 573, 144 S.E.2d 636, 638-39 (1965); N.C. Gen. Stat. § 42-14 (2003). The Statute of Frauds (N.C.G.S. . 22-2) requires that “leases and contracts for leasing land exceeding in duration of
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