NO. COA01-1433
Defendants.
Appeal by plaintiff from order entered 10 May 2001 by Judge
Dennis J. Winner in Rutherford County Superior Court. Heard in the
Court of Appeals 9 September 2002.
Blanchard, Jenkins, Miller & Lewis, P.A., by Robert O.
Jenkins; Law Office of T. Kent Baldwin, by T. Kent Baldwin,
for plaintiff-appellant.
Northup & McConnell, P.L.L.C., by Isaac N. Northup, Jr., and
Anna R. Hamrick, for defendant-appellees.
MARTIN, Judge.
Debi Evans, as administratrix of the estate of Johnny B. Evans
(“plaintiff”) appeals the denial of her motion for a new trial
against Rutherford Hospital Inc., Rutherford Internal Medicine
Associates, P.A., and Gary R. Schafer, M.D. (“defendants”). We
affirm the trial court's denial of plaintiff's motion.
Plaintiff initiated this wrongful death medical negligence
action on 3 August 1999, alleging defendants' failure to provideproper medical care to her husband, Johnny Evans, resulting in his
death from coronary atherosclerosis. Prior to trial, defense
counsel informed plaintiff's counsel that Dr. Brian Hearon, a
defense witness, would be unable to appear and testify as an expert
witness at trial due to the recent death of his son in an
automobile accident. Defendants filed an affidavit from Dr. Hearon
to this effect on 12 February 2001. Upon receiving this
information, plaintiff filed a motion to use Dr. Hearon's 19 July
2000 deposition at trial pursuant to Rule 32 of the Rules of Civil
Procedure. The trial court considered the motion and concluded Dr.
Hearon was unable to testify, and that both plaintiff and
defendants would be permitted to use Dr. Hearon's deposition at
trial.
Although it does not appear from the record, both parties
agree the trial court informed defense counsel that he could share
with the jury that Dr. Hearon would not be testifying due to the
recent death of his son, and that defense counsel made reference to
Dr. Hearon's situation in his opening statement. Prior to
plaintiff's reading portions of Dr. Hearon's deposition into
evidence, the trial court told the jury that “because of a tragic
automobile accident . . . the witness was just not capable of
appearing as a live witness; and that's why deposition evidence is
being introduced.”
The trial proceeded, and on 22 February 2001, a jury returned
a verdict in favor of defendants. Plaintiff filed a motion for a
new trial on 2 March 2001 based, in part, on the assertion thatdefense counsel made statements during his closing argument which
were “grossly improper,” “intentionally calculated to inflame and
unfairly prejudice the jury,” and a violation of the rules of court
and professional conduct in that he “misled the jury as to the
nature of certain evidence and why it was presented.” Although
closing arguments were not transcribed, and thus do not appear in
the record, the motion was supported by four affidavits, including
those of plaintiff's counsel, co-counsel, and an employee of co-
counsel, all of whom testified that during closing arguments,
defense counsel commented that plaintiff's counsel was “making
things up;” thought the jury “would believe anything;” had engaged
in a “dirty lawyer trick” by presenting Dr. Hearon's deposition
testimony; was “taking advantage of” Dr. Hearon's inability to
appear due to the death of his son; and was unfairly using the
testimony of a witness unable to appear because of “his dead son.”
In addition, Shirley Bailey, Assistant Clerk of Superior Court of
Rutherford County, submitted an affidavit stating that she was in
the courtroom during defense counsel's closing argument, and that
she heard him use the phrases “dirty lawyer trick” and that
plaintiff's counsel was “taking advantage of” Dr. Hearon's
unavailability due to his “dead son.”
Defendants submitted an affidavit from Anna Hamrick, an
attorney for Dr. Schafer, to the effect that defense counsel did
not use the phrase “dirty lawyer trick” during his closing
argument; that based on discussions with the jury foreman it was
evident the jury reached a verdict based on the evidence and thelaw; and that at no time during closing arguments did plaintiff's
counsel object to any statements made by defense counsel. In
addition, defendants tendered an affidavit of the jury foreman,
which the trial court refused to consider.
Following a hearing on plaintiff's motion, the trial court
entered an order in which it found that during his closing
argument, defense counsel had made the statement that plaintiff's
counsel had used a “dirty lawyer trick” and that the statement was
inappropriate; that plaintiff's counsel failed to object to
anything in the closing argument; and that plaintiff's counsel had
attempted to respond to the allegation in his closing argument for
plaintiff. While noting its disapproval of defense counsel's
statement, the trial court determined it was not prejudicial and
denied plaintiff's motion for a new trial. Plaintiff appeals.
Plaintiff's sole argument on appeal is that the trial court
abused its discretion in denying her motion for a new trial because
defense counsel's argument was grossly improper and calculated to
prejudice the jury. Defendants cross-assign as error the trial
court's failure to consider the affidavit of the jury foreman in
ruling upon plaintiff's motion.
Our standard of review of the denial of a motion for a new
trial pursuant to G.S. § 1A-1, Rule 59 (2001) is strictly limited
to a determination of whether the trial court manifestly abused its
discretion.
Leftwich v. Gaines, 134 N.C. App. 502, 517, 521 S.E.2d
717, 728,
disc. review denied, 351 N.C. 357, 541 S.E.2d 713 (1999). “The trial court's discretion is '“practically unlimited,”'” and an
order denying a motion under Rule 59 should be reversed “'only in
those exceptional cases where an abuse of discretion is clearly
shown.'”
Id. at 517-18, 521 S.E.2d at 728 (citations omitted).
“'[A]n appellate court should not disturb a discretionary Rule 59
order unless it is reasonably convinced by the cold record that the
trial judge's ruling probably amounted to a substantial miscarriage
of justice.'”
Id. at 518, 521 S.E.2d at 728 (citation omitted).
We first note the trial court found only that defense counsel
made the statement that plaintiff's counsel had engaged in a “dirty
lawyer trick.” The trial court made no findings as to whether
defense counsel made any of the other statements alleged in
plaintiff's supporting affidavits, such as the statement that
plaintiff's counsel took advantage of Dr. Hearon's unavailability
due to his “dead son.” Plaintiff has not assigned error to the
absence of such additional findings. Therefore, we may not
consider any additional statements allegedly made by defense
counsel, as the trial court did not determine whether, in fact,
such statements were actually made. Our decision may only be based
on the finding that defense counsel accused plaintiff's counsel of
employing a “dirty lawyer trick.”
Where a plaintiff fails to object to an allegedly improper
argument at trial, “our review is limited to discerning whether the
statements were so grossly improper that the trial court abused its
discretion in failing to intervene
ex mero motu.”
O'Carroll v.
Texasgulf, Inc., 132 N.C. App. 307, 315, 511 S.E.2d 313, 319,
disc.review denied, 350 N.C. 834, 538 S.E.2d 198 (1999). “'“[T]he
impropriety of the argument must be gross indeed in order for this
Court to hold that a trial judge abused his discretion in not
recognizing and correcting
ex mero motu an argument which defense
counsel apparently did not believe was prejudicial when he heard
it.”'”
State v. Trull, 349 N.C. 428, 451, 509 S.E.2d 178, 193
(1998) (citations omitted),
cert. denied, 528 U.S. 835, 145 L. Ed.
2d 80 (1999). Moreover, this Court “will not review the judge's
exercise of discretion unless there exists such gross impropriety
in the argument as would likely influence the jury's verdict.”
Burchette v. Lynch, 139 N.C. App. 756, 766, 535 S.E.2d 77, 84
(2000).
In
State v. Bowman, 349 N.C. 459, 509 S.E.2d 428 (1998),
cert.
denied, 527 U.S. 1040, 144 L. Ed. 2d 802 (1999), our Supreme Court
held that the prosecutor's comment during closing arguments that
“'reasonable doubt is not created or manufactured by lawyers
getting up here and arguing to you and trying to do those lawyer
trick things'” did not amount to misconduct so improper as to
prejudice the result of the trial.
Id. at 473, 509 S.E.2d at 437.
In so holding, the court noted that the comment appeared to be a
statement referenced to lawyers in general, and to the extent it
was directed at defense counsel, it was an isolated comment, and
not a repeated attempt to diminish defense counsel before the jury.
Id. at 473-74, 509 S.E.2d at 437.
In this case, we observe that had plaintiff believed at the
time that the remark was grossly improper and truly prejudicial,plaintiff could have immediately objected and requested a mistrial.
Instead, plaintiff's counsel failed to even object to the
admittedly improper remark, and then proceeded to give a closing
argument in which, according to the trial court, he attempted to
refute the accusation that he had engaged in a “dirty lawyer
trick.”
Although plaintiff argues defense counsel's argument was
grossly improper because it addressed issues not in evidence (i.e.,
the reasoning behind Dr. Hearon's failure to testify), the trial
court made no finding which would support plaintiff's argument. In
any event, we observe that the trial court did, in fact, address
before the jury the issue of Dr. Hearon's unavailability and the
reason therefor prior to introduction of his deposition testimony,
and thus, we do not agree that any reference by Northup to that
unavailability would necessarily have been improper in and of
itself.
We agree with the trial court that defense counsel's statement
characterizing plaintiff's counsel's use of the deposition as a
“dirty lawyer trick” was improper, however, the record fails to
reveal the required manifest abuse of discretion and substantial
miscarriage of justice in the trial court's conclusion that the
statement did not prejudice the result of the trial. We conclude
the trial court did not abuse its discretion in failing to
intervene
ex mero motu and in failing to grant plaintiff a new
trial. In light of this holding, we need not address defendants'
cross-assignment of error. Affirmed.
Chief Judge EAGLES and Judge HUNTER concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***