An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-1712


Filed: 21 October 2003


         v.                        Mecklenburg County
                                No. 00 CVS 1795

    Appeal by defendant from order entered 25 July 2002 by Judge Forrest Bridges in Superior Court in Mecklenburg County, granting plaintiff's motion for a new trial. Heard in the Court of Appeals 6 October 2003.

    Baucom, Claytor, Benton, Morgan & Wood, P.A., by James F. Wood, III, for plaintiff-appellee.

    Morris, York, Williams, Surles & Barringer, L.L.P., by Christa C. Pratt, for defendant-appellant.

    HUDSON, Judge.

    On 25 July 1998, a rainy day, Connie Lynn Dotson (plaintiff) and David Musick (defendant) were drivers of vehicles involved in an automobile accident. Plaintiff was traveling from South Carolina to West Virginia on Interstate 77 in stop-and-go traffic, at speeds of approximately fifty or fifty-five miles per hour. As the traffic in front of her stopped, plaintiff brought her 1998 Camaro to a gradual stop. Defendant's 1998 Plymouth then hit her vehicle from behind. Plaintiff's back bumper was hit and the front of defendant's vehicle was “smashed up pretty badly.”     As plaintiff sat in her car, defendant came to plaintiff's window to determine whether she was injured and apologize for not stopping in time. The highway patrol arrived at the scene of the accident approximately thirty minutes later and spoke with both parties. Plaintiff told Trooper Poole that she had a headache, her shoulder hurt, and her knee hurt. Plaintiff did not seek medical treatment and drove her car home to South Carolina after the accident.
    Two days after the accident, Monday, 27 July 1998, plaintiff sought treatment at Arboretum Urgent Care and received medication. Plaintiff went to her family doctor, Dr. Wrinkle, approximately two weeks after the accident to have her knee examined since it continued to cause her pain. Dr. Wrinkle referred plaintiff to Dr. Thomas Buter, an orthopedist. Plaintiff underwent an MRI, which revealed a torn meniscus in her left knee. On 16 October 1998, plaintiff had arthroscopic surgery on her left knee to correct the problem. Plaintiff testified that she incurred medical bills in the amount of $11,374.31 to treat her injuries.
    Plaintiff testified that she missed three days of work (27 to 29 July 1998) immediately after the accident and she missed a week of work (19 to 24 October 1998) following the surgery, for a total of nine days. She could not perform certain job duties that required kneeling and could not walk for extended periods of time. Plaintiff lost a total of $897.12 in wages due to the accident.
    Plaintiff testified that she had been injured in two previous automobile accidents. Plaintiff injured her left knee in anaccident in 1990, and had surgery at that time. Plaintiff also injured her back in an accident in 1993.
    The deposition of Dr. Thomas Buter, plaintiff's orthopaedic surgeon, was read at trial. Dr. Buter stated that he initially diagnosed plaintiff with dashboard knee, which he explained is a contusion or sprain type injury to the knee. But, after the MRI, Dr. Buter diagnosed the plaintiff with a torn meniscus and performed surgery on plaintiff's left knee. Dr. Buter testified that the tear was more likely than not the result of the automobile accident. Although plaintiff disclosed the prior surgery on her medical history sheet, Dr. Buter testified that he was not aware of plaintiff's prior accidents or her knee surgery in 1990 when he treated her. After this information had been brought to his attention, Dr. Buter agreed that plaintiff had some impairment to her knee before this automobile accident. Even taking into account the prior accident, Dr. Buter stated that plaintiff suffered a five percent (5%) permanent partial disability to her left knee attributable to the 25 July 1998 automobile accident.
    Defendant stipulated that his negligence caused the crash, but denied that it was the proximate cause of plaintiff's injuries. He did not present any evidence.
    The jury found the plaintiff was injured by defendant's negligence, and awarded her one thousand ($1,000.00) in damages. Plaintiff filed a motion for a new trial, or alternatively, judgment notwithstanding the verdict, on the grounds that the verdict reflected a manifest disregard by the jury of the juryinstructions, the jury awarded inadequate damages under the influence of passion or prejudice, or the verdict ran contrary to the weight of the evidence and/or applicable law.
    Judge Forrest Bridges set aside the jury verdict and granted the plaintiff's motion for a new trial on 22 July 2002. In his order, Judge Bridges stated that the jury awarded “inadequate damages . . . under the influence of passion or prejudice” and that the verdict “represents a substantial injustice.” The order recited the disparity between the medical expenses and lost wages plaintiff claimed to have incurred, $12,274, and defendant's settlement offer prior to trial, $18,500, versus the jury verdict of $1,000 as factors for granting a new trial.
    Defendant first contends that the trial court erred by granting plaintiff's motion for a new trial on the grounds that the jury awarded inadequate damages on the basis of passion or prejudice and that the verdict represented a substantial injustice to plaintiff. Defendant claims that the trial court invaded the jury's province as fact finder by awarding a new trial and erred and/or abused its discretion in concluding as a matter of law that the jury awarded inadequate damages. Defendant also contends the findings of fact do not support the conclusions of law in the order granting the new trial. Defendant alleges that the trial judge failed to make findings of fact that supported or explained the conclusions of law in the order.
    A discretionary order pursuant to N.C.G.S. § 1A-1, Rule 59 for or against a new trial upon any ground may be reversed on appealonly in those exceptional cases where an abuse of discretion is clearly shown. Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663 (1997). The trial court's discretion is “practically unlimited.” Id. An 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. Findings, when requested, should be made in support of the ultimate conclusion that the damages appear to have been inadequate and given under the influence of passion or prejudice in order to facilitate meaningful appellate review of an order setting aside a verdict on damages. Andrews v. Peters, 318 N.C. 133, 347 S.E.2d 409 (1986).
    Here, the trial judge explicitly stated that he exercised discretion, considering each factor set forth in Rule 59 and balancing the interests of the parties, when deciding this motion. The trial judge found the award of damages inadequate after he considered the disparity between expenses incurred by plaintiff, the settlement offer made by defendant prior to trial, and the jury verdict. All of the evidence of plaintiff's expenses and the amount of damages is included in the record on appeal. Defendant presented no evidence at trial. As such, the testimony of plaintiff, Dr. Buter, and the evidence of plaintiff's medical expenses and lost wages stand unrebutted. There is no evidence of abuse of discretion in the record. The evidence supports the factual statements which in turn support the conclusions of law inthe trial court's order. Therefore, these arguments have no merit.
    Judges MCGEE and GEER concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***