An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1652


Filed: 17 February 2004


v .                         Mecklenburg County
                            No. 00 CVS 1962

    Appeal by defendant from order and judgment entered 16 April 2002 by Judge Robert P. Johnston in Superior Court in Mecklenburg County. Heard in the Court of Appeals 17 September 2003.

    Price, Smith, Hargett, Petho & Anderson, by Wm. Benjamin Smith, for plaintiff-appellees.

    Golding, Holden & Pope, L.L.P., by John E. Spainhour and John G. Golding, for defendant-appellant.

    HUDSON, Judge.

    Defendant Andrew A. Dumbrose appeals an order granting plaintiff a new trial on the sole issue of damages. Although this order is interlocutory it affects a substantial right of defendant and is immediately appealable.
    The pertinent procedural background follows. On 8 February 2000, plaintiffs Christopher B. Murphy and his mother Joanne Murphy filed a negligence action against defendant Andrew A. Dumbrose for personal injuries and medical expenses sustained in a motor vehicle accident on 8 October 1997. At the 3 December 2001 civil term of superior court in Mecklenburg County, the jury returned a verdict finding defendant wilfully or wantonly negligent and plaintiffChristopher Murphy contributorily negligent, but not wilfully or wantonly so, and it awarded plaintiff damages of $1.00. The jury also awarded plaintiff Joanne Murphy $40,914.90 for medical expenses she incurred.
    Plaintiff Christopher Murphy moved for a partial new trial on the sole issue of his damages. Defendant opposed plaintiff's motion, and moved for judgment notwithstanding the verdict or for a new trial on all issues. Following arguments of counsel, on 16 April 2002, the trial judge ordered a new trial on plaintiff Christopher Murphy's damages and entered judgment for plaintiff Joanne Murphy in the amount rendered by the jury. The trial judge denied defendant's motions, and defendant appealed.
    Plaintiff filed a “Motion to Dismiss Appeal as Interlocutory.” “Interlocutory orders are those made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court in order to settle and determine the entire controversy.” Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (citations omitted), reh'g denied, 350 N.C. 385, 536 S.E.2d 70 (1999). “The policy behind this rule is to avoid fragmentary, premature and unnecessary appeals by allowing the trial court to completely and finally adjudicate the case before the appellate courts review it.” Romig v. Jefferson-Pilot Life Ins. Co., 132 N.C. App. 682, 685, 513 S.E.2d 598, 600 (1999) (internal quotation marks omitted), aff'd, 351 N.C. 349, 524 S.E.2d 804 (2000).
    G.S. . 1-277(a) provides that “[a]n appeal may be taken fromevery judicial order or determination of a judge of a superior or district court . . . which . . . grants or refuses a new trial.” G.S. . 1-277(a) (2001). This Court has held, however, that the aforementioned portion of G.S. . 1-277(a) does not apply to an order granting a partial new trial on the issue of damages. Insurance Co. v. Dickens, 41 N.C. App. 184, 187, 254 S.E.2d 197, 198 (1979). Thus, the trial court's order here is interlocutory and of a type not ordinarily subject to immediate appellate review. Johnson v. Garwood, 49 N.C. App. 462, 463, 271 S.E.2d 544, 544-45 (1980).
    In general, there is no right to appeal from an interlocutory order. See, e.g. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). A party may appeal an interlocutory order “where the order represents a final judgment as to one or more but fewer than all of the claims or parties and the trial court certifies in the judgment that there is no just reason to delay the appeal,” or “where delaying the appeal will irreparably impair a substantial right of the party.” Hudson-Cole Dev. Corp. v. Beemer, 132 N.C. App. 341, 344, 511 S.E.2d 309, 311 (1999) (internal quotation marks omitted); see N.C. Gen. Stat. §§ 1A-1, Rule 54(b), 1-277, 7A-27(d) (1999). Here, the trial court did not certify a right to appeal, and defendant must, therefore, demonstrate that the order affects a substantial right in order to proceed with this appeal. See N.C. R. App. P. 28(b)(4). The burden is on the appellant “to present appropriate grounds for this Court's acceptance of an interlocutory appeal and our Court'sresponsibility to review those grounds.” Jeffreys, 115 N.C. App. at 379, 444 S.E.2d at 253.
    “Whether an order or judgment affects a substantial right is to be determined on a case-by-case basis.” Loy v. Martin, 144 N.C. App. 414, 418, 547 S.E.2d 843, 846, disc. review denied, 354 N.C. 218, 554 S.E.2d 340 (2001). A “substantial right” is one that is not only substantial, but also could be lost, prejudiced or less than adequately protected by exception to entry of the interlocutory order. Id. (citations and quotation marks omitted).
    Defendant argues as a basis for our review that “if this appeal is not allowed now, there is a significant risk that the Defendant will face three trials on this matter.” In Patterson v. DAC Corp, 66 N.C. App. 110, 310 S.E.2d 783 (1984), this Court noted that “[e]xamples of when a substantial right is affected include cases where there is a possibility of a second trial on the same issues, and where there is a possibility of inconsistent verdicts.” Id. at 112-13, 310 S.E.2d 785 (citations omitted). Defendant cites Bowden v. Latta, 337 N.C. 794, 448 S.E.2d 503 (1994), in support of his argument that a substantial right is affected. There, the jury considered issues of negligence on the part of defendants, contributory negligence on the part of the plaintiff, gross negligence on the part of one of the defendants, and the amount of damages to be awarded the plaintiff. The jury found that the defendant was negligent but not grossly negligent, and that the plaintiff was negligent and therefore should not recover damages. The plaintiff filed a motion for JNOV and for a new trial as todamages. The trial court set aside the verdict as to the plaintiff's contributory negligence, granted the plaintiff's motion for JNOV as to contributory negligence, and granted a new trial as to damages. This Court held that the appeal was interlocutory and that no substantial right was affected. Our Supreme Court reversed, stating the following:
    Plaintiffs have already completed one trial, and if this appeal is not allowed, they will undergo a second trial on defendant's counterclaim. Then, if plaintiffs' exceptions are meritorious, they will undergo a third trial to relitigate plaintiffs' original action because the second trial will not include the issues of the extent and amount of plaintiffs' injuries or property damages.
Id. at 796, 448 S.E.2d at 505 (quoting LaFalce v. Walcott, 76 N.C. App. at 569-70, 334 S.E.2d at 239 (1985)). The Court further held that:
    a determination of the underlying substantive appeal at this time . . . will significantly shorten the process and clear the path toward finality for all concerned. If the appellate court upholds the judge's ruling as to contributory negligence, the necessity of going to trial on damages becomes immediately clear. On the other hand, if the court rules in favor of the defendant on the issue of contributory negligence, reinstating the jury verdict as to that issue, a trial on damages and the appeal that could follow would be avoided entirely. Regardless of whether an appellate court undertakes a substantive appeal now or after the parties have gone through a trial on damages, the issue of whether the trial judge was correct in overturning the jury verdict on contributory negligence remains central and will, in any event, need to be addressed. Deciding the matter now would streamline the process by delineating, as well as limiting, the remaining issues that could be litigated and appealed.
Id. at 797, 448 S.E.2d at 505.
    Based on Bowden, we conclude that addressing the issues raised by defendant now “will significantly shorten the process and clearthe path toward finality for all concerned.” Were we to dismiss this appeal, the case would be remanded for a trial on plaintiff Christopher Murphy's damages, after which defendant could appeal, raising the issues we consider today. If at that time we were to agree with defendant that the trial court erred by denying his motion for a new trial on all issues we would remand for another trial. Thus, in accordance with Bowden and in the interest of judicial economy, we conclude that this appeal affects a substantial right of defendant and that this appeal is properly before us.

    Defendant first argues that the trial court erred in denying his motions for directed verdict and judgment notwithstanding the verdict, contending that “plaintiff's conduct was negligent and reckless to the same degree as the conduct of the defendant as a matter of law” because plaintiff knew or should have known the level of intoxication of the defendant at all relevant times leading up to the collision. We disagree.
    In ruling on a motion for directed verdict, the trial court is to consider all the evidence in the light most favorable to the non-movant, giving to the non-movant the benefit of every reasonable inference that may legitimately be drawn from the evidence with contradictions, conflicts, and inconsistencies being resolved in the non-movant's favor. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 337-38 (1985). A directed verdict may be granted only if, as a matter of law, theevidence is insufficient to justify a verdict for the non-movant. Watkins v. Hellings, 321 N.C. 78, 81, 361 S.E.2d 568, 570 (1987). Thus, a directed verdict for the defendant here could only have been granted if the evidence, taken in the light most favorable to the plaintiff, established willful or wanton contributory negligence so clearly that no other reasonable inference or conclusion could have been drawn. See Ayscue v. Weldon, 118 N.C. App. 636, 639, 456 S.E.2d 344, 347 (1995).
    This Court has held that “[i]f the facts are such that reasonable men could differ upon whether the negligence amounted to willful and wanton conduct, the question is generally preserved for the jury to resolve.” Berrier v. Thrift, 107 N.C. App. 356, 361, 420 S.E.2d 206, 209, disc. review denied, 333 N.C. 254, 424 S.E.2d 918 (1993). Indeed, the issue of whether defendant was wilfully or wantonly negligent and whether plaintiff was wilfully or wantonly contributorily negligent were presented to the jury, which found that the defendant's conduct was willful or wanton but that plaintiff's was not. Thus, the trial court correctly denied defendant's motion for directed verdict and we overrule this assignment of error.
    Defendant next argues that the trial court erred by ordering a new trial solely on the issue of plaintiff Christopher Murphy's damages. In its order, the trial court found as fact that:
    the Plaintiff, Christopher B. Murphy offered uncontradicted evidence that he suffered multiple fractures to his face proximately caused by the accident which was the subject of the lawsuit and that the treating physician, a plastic surgeon, was required to perform extensive facial reconstruction surgery includingthe placement of metal hardware permanently into the Plaintiff's face, and further the Plaintiff demonstrated to the Jury that he had suffered some scarring in the area of his nose as a result of this accident.

    Based upon the foregoing finding of fact, as well as the jury's verdict that the plaintiff did not contribute to his own injuries by willful or wanton conduct, the trial court concluded that the plaintiff “was entitled to reasonable compensation from the Jury for pain and suffering and permanent injury” and that “the Jury arbitrarily ignored the evidence of [plaintiff's] pain and suffering and entered an inconsistent verdict not in accordance with the law.” Thus, the trial court concluded that plaintiff was entitled to a new trial on the issue of his damages pursuant to N.C. R. Civ. P. 59(a)(5) and (6).
    A motion for a new trial is addressed to the sound discretion of the trial judge, and our review is “strictly limited to whether the record affirmatively shows a manifest abuse of discretion by the trial judge.” Thomas v. Dixson, 88 N.C. App. 337, 342, 363 S.E.2d 209, 212 (1988). Rule 59 allows the court to order a new trial when it is apparent that there was a “manifest disregard by the jury of the instructions of the court” or where the jury awarded “[e]xcessive or inadequate damages appearing to have been given under the influence of passion or prejudice.” N.C. R. Civ. P. 59(a)(5) and (6).
    Our Courts have consistently upheld a trial court's grant of a new trial where the award of damages appeared to be inadequate or where the jury has disregarded the court's instructions. See, e.g., Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974)(new trial ordered where evidence of liability and injury was clear and jury awarded only nominal damages); Marsh v. Trotman, 96 N.C. App. 578, 386 S.E.2d 447, disc. review denied, 326 N.C. 483, 392 S.E.2d 91 (1990) (“In awarding plaintiff less than her hospital and medical expenses and nothing at all for her injuries and their consequences, the jury could not have followed the court's instructions and it was error not to set the award aside”).
    After reviewing the entire record, including the testimony of the witnesses and trial exhibits, including photographs of plaintiff's injuries, and considering the line of cases on this issue, we cannot conclude that the trial judge abused his discretion in ordering a new trial.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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