An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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
NORTH CAROLINA COURT OF APPEALS
Filed: 21 December 2004
No. 01 CVS 2655
STACEY CLARK EASTWOOD,
Individually and LIGHTNING
BOLT SERVICES UNLIMITED, INC.,
Appeal by plaintiff from order entered 5 January 2004 by Judge
Clifton W. Everett, Jr., in Pitt County Superior Court. Heard in
the Court of Appeals 17 November 2004.
Hugh D. Cox for plaintiff.
McDaniel & Anderson, L.L.P., by William E. Anderson and John
C. Lloyd for defendants.
On 21 January 1999, defendant Stacey Clark Eastwood was
driving the truck owned by his business, defendant Lightning Bolt
Services, Inc. At approximately 1:00 p.m. on that date, Eastwood's
vehicle collided with the vehicle being driven by plaintiff Sana
O'Beid. On 16 October 2001, O'Beid filed a complaint against
Eastwood and Lightning Bolt Services alleging negligence and
seeking damages for personal injuries alleged to consist of a mild
head injury and resulting post traumatic stress disorder.
Following a trial, the matter was submitted to a jury at 3:37 p.m.on 17 September 2003. The jury returned a verdict in defendants'
favor at 4:04 p.m. on the same day.
Plaintiff made a motion for a new trial pursuant to N.C.G.S.
§§ 1A-1, Rule 59(a)(1), (2), (5), and (9). The trial court denied
this motion by an order entered 5 January 2004 and entered a final
judgment in defendants' favor on 29 January 2004. Plaintiff
appeals from the 5 January 2004 order denying her motion for a new
trial. She has not given notice of appeal from the final judgment
entered 29 January 2004.
In her first argument on appeal, plaintiff contends that the
trial court erred in denying her motion for a new trial where,
during the trial, the trial court made some unintentional remarks
to the jury about an impending hurricane. According to plaintiff,
these remarks caused the jury to spend too little time deliberating
and prevented a fair and impartial verdict. Though the transcript
is devoid of any such remarks made by the trial judge in the
presence of the jury, plaintiff offers her husband's affidavit as
evidence that the trial court made the challenged comments and
insists that such remarks were inadvertently omitted by the court
reporter. We are unpersuaded that the trial court erred in denying
plaintiff's motion for a new trial.
N.C.G.S. § 1A-1, Rule 59(a) (2003) provides that
[a] new trial may be granted to all or any of
the parties . . . for any of the following
causes or grounds:
(1) Any irregularity by which any party was
prevented from having a fair trial;
(2) Misconduct of the jury or prevailing
. . . .
(5) Manifest disregard by the jury of the
instructions of the court;
. . . .
(9) Any other reason heretofore recognized as
grounds for new trial.
Our Supreme Court has described the standard of review of a trial
court's denial of a motion for a new trial as follows:
Appellate review is strictly limited to the
determination of whether the record
affirmatively demonstrates a manifest abuse of
discretion by the judge. The trial court's
discretion is practically unlimited. 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 appeal only in those
exceptional cases where an abuse of discretion
is clearly shown. A manifest abuse of
discretion must be made to appear from the
record as a whole with the party alleging the
existence of an abuse bearing that heavy
burden of proof. 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
Campbell v. Pitt County Memorial Hosp., 321 N.C. 260, 264-65, 362
S.E.2d 273, 275-76 (1987) (citations and internal quotation marks
omitted). In the criminal context, our Supreme Court has stated
shortness of time in deliberating a verdict .
. . in and of itself, simply does not
constitute grounds for setting aside a
verdict. The brevity of deliberation should
only be questioned if there is evidence of
some misconduct on the part of the jury or the
trial judge believes that the jury acted witha contemptuous or flagrant disregard of its
duties in considering the matters submitted to
it for decision.
State v. Spangler, 314 N.C. 374, 388, 333 S.E.2d 722, 731 (1985).
In the instant case, the trial court made the following
pertinent findings of fact with respect to plaintiff's motion for
a new trial:
(5) [Plaintiff submitted] an affidavit by the husband
of the plaintiff, stating that the Court made some
statement in the presence of the jury regarding the
anticipated arrival of Hurricane Isabel;
(6) Counsel for the plaintiff obtained a copy of the
court reporter's transcript to ascertain if there
was a basis for the assertions;
(7) The transcript page submitted by the plaintiff
shows that there was an inquiry of the Court to
counsel out of the presence of the jury and at
approximately 12:30 PM before the lunch break
regarding whether the plaintiff would have both an
opening and a closing argument, and regarding the
fact that the courthouse would be closed the
(8) No evidence was presented by the plaintiff of any
other information from the transcript showing
discussion of time constraints, weather, courthouse
closing or any similar matter;
. . . .
(10) The Court finds that there is no basis for the
assertion that the court reporter failed to record
any events which transpired in the presence of the
(11) The Court is satisfied from the Court's own
recollection that no statement relating to
Hurricane Isabel or any other similar statement
likely to prejudice the jury's deliberation was
made by the Court in the presence of the jury;
(12) At no time during the three days of trial did any
member of the jury express to the Court any concernregarding the anticipated arrival of the hurricane
. . . .
(13) The Court recollects that the jury took essentially
the entire morning session on Wednesday, September
17th, to review extensively the documentary
evidence tendered by the plaintiff and defendant. .
Even assuming arguendo that the court reporter failed to record the
alleged hurricane-related comments and the trial court failed to
recollect making them, plaintiff's brief expressly states that she
is not suggest[ing] that the [p]residing [j]udge's remarks to the
jury were anything but prudent and informative, but that the jury
could not have engaged in deliberations as instructed by the
[p]residing [j]udge in the very short time during which the jury
was sent to deliberate the case. However, plaintiff has provided
nothing more than a bald assertion that any alleged statement
affected the jury's deliberations or that the jury disregarded the
court's instructions in deciding the case.
We discern no abuse of discretion in the trial court's denial
of plaintiff's motion for a new trial. This assignment of error is
In her second argument on appeal, plaintiff contends that the
trial court erred by cautioning her attorney not to refer to
O'Beid's psychiatrist, Dr. Yongue, as an expert accepted by the
court. As we must, we treat this contention as an argument that
the trial court erred by failing to grant a new trial due to the challenged admonition.
(See footnote 1)
However, plaintiff did not assert the
trial court's cautionary comment as a basis for a new trial in the
motion she filed with the trial court. It is elementary that [a]
contention not raised in the trial court may not be raised for the
first time on appeal. Town of Chapel Hill v. Burchette
, 100 N.C.
App. 157, 159-60, 394 S.E.2d 698, 700 (1990); see also
P. 10(a). Moreover, even assuming arguendo
that it is properly
before this Court, plaintiff's second argument on appeal is
entirely without merit. The corresponding assignment of error is
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
As already indicated, plaintiff has not taken an appeal
from the final judgment. In addition, the assignment of error
that corresponds to her second argument on appeal references the
trial court's findings in the order denying a new trial.
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