An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1104

NORTH CAROLINA COURT OF APPEALS

Filed: 17 May 2005

HENRY LONZIA WOODARD, JR.,
    Plaintiff,

v .                         Wake County
                            No. 00 CVS 11122
VERONICA VAN HARREVELD and
PHILIP VAN HARREVELD,
    Defendants.

    Appeal by plaintiff from judgment entered 29 October 2003 and order entered 12 March 2004 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 14 April 2005.

    E. Gregory Stott and John A. Obiol for plaintiff-appellant.

    LARCADE & HEISKELL, P.L.L.C., by Chistopher N. Heiskell, for defendant-appellees Veronica Van Harreveld and Philip Van Harreveld.

    TEAGUE, CAMPBELL, DENNIS & GORHAM, by Jennifer B. Milak and Melissa R. Garrell, for unnamed defendant-appellee Continental Casualty Company.


    TIMMONS-GOODSON, Judge.

    Henry Lonzia Woodard, Jr., (“plaintiff”) appeals the trial court judgment in favor of defendants in a negligence action arising out of an automobile collision, and the trial court order denying plaintiff's motion for judgment notwithstanding the verdict and new trial. Because we conclude that the issues were properly presented to the jury for determination and the trial court did not abuse its discretion in deciding the post-trial motions, we affirmthe trial court's judgment and order.
    The facts and procedural history pertinent to the instant appeal are as follows: On 16 March 1999, plaintiff was driving his vehicle on N.C. 98 in Wake County. As plaintiff was attempting to enter a driveway located off N.C. 98, his vehicle collided with a vehicle driven by Veronica Van Harreveld (“Veronica”) and owned by Philip Van Harreveld (“Philip”) (collectively, “defendants”). As a result of the accident, plaintiff suffered injuries to his neck, head, back, and legs. On 27 September 2000, plaintiff filed a complaint against Veronica and Philip, alleging that Veronica and Philip's negligence was a proximate cause of plaintiff's injuries.
    The case proceeded to trial the week of 29 September 2003. At trial, plaintiff testified that prior to the accident, he was searching for a residence located on N.C. 98. Plaintiff testified that because he initially passed the residence, he “went down for about a half a mile or two and made a U-turn.” Plaintiff testified that as he approached the residence the second time, he “put [his] left turn signal on” and started to make a left turn into the residence's driveway. Plaintiff further testified that as he began the turn, Veronica's vehicle struck his vehicle near its driver's side door. Plaintiff asserted that he did not see Veronica's vehicle until the impact, and that the collision occurred in an area of N.C. 98 marked with “[d]ouble-yellow lines.”
    North Carolina State Highway Patrol Trooper J.W. Bright (“Trooper Bright”) testified that he interviewed the parties and witnesses following the collision. Trooper Bright testified thatthe collision occurred in a “no-passing zone,” and that following the collision, he observed “skid marks . . . coming from the eastbound lane over into the westbound lane” of N.C. 98. Trooper Bright asserted that the “point of impact” occurred in the westbound lane of N.C. 98, and that the damage to Veronica's vehicle was on the “front right quarter panel.” Although Trooper Bright could not locate her statement from the incident, he recalled Veronica informing him after the collision that “she was not at fault; it was not her fault that this had happened.” Trooper Bright also recalled “[s]omeone . . . mention something about a turn signal.” Following cross-examination, the trial court questioned Trooper Bright as follows:
        THE COURT: Okay. Now, do you recall whether either driver described to you how the accident happened?

        THE WITNESS: From what I recall, I believe [plaintiff] may have been looking for a particular place. He wasn't too sure where he was going. So he was going to come in this driveway to turn around, and when he was coming to this driveway, [Veronica] here -- she evidently came upon his maneuver and saw that he was going to go into this driveway here, and that's where we have the tire impression where she slammed on the brakes to avoid hitting him in the rear or hitting him at all, and that's where they came to a final -- that's where they came to impact here in this lane . . . .

        THE COURT: Okay. Did [Veronica] tell you how the accident happened, if you can recall?

        THE WITNESS: I think there was something said about -- from her that she may have thought he was going to turn this way, or something, or maybe use -- use the shoulder to -- to make a U-turn or go around. She may have thought, you know, he maybe was going to give up prettymuch ownership of this lane here, and when he didn't turn she couldn't do anything but slam on her brakes to avoid hitting him in this lane.

    Delilah Jackson Garrison (“Garrison”) testified that she witnessed the collision as she was in her driveway. Garrison stated that as she was walking to her mailbox, she saw plaintiff “going down” N.C. 98 in “a big white Disabled American Veteran truck.” Garrison stated that “a few minutes later” she “saw the truck go back up the road, turn around . . . . and come back down and put his signal on” in order to turn into her mother's driveway. Garrison further stated that as the vehicle was turning into the driveway, “a little red car” driven by Veronica approached the vehicle and, “instead of going behind him trying to avoid him, she went to her left and hit him right where you step up to get into the -- the truck[.]” Garrison testified that as she approached Veronica, Veronica told her that plaintiff “'didn't even put his signal on to turn.'” In response, Garrison testified that she informed Veronica that the “left turn signal was still blinking on the truck.”
    Veronica testified that prior to the collision, she “had a clear view of the road in front” of her, and she noticed plaintiff's vehicle “on the right side of the road on the right shoulder.” Veronica stated that the vehicle was parked beyond a mailbox, and that part of the vehicle was “on the gravel” of a nearby driveway. Veronica also stated that as she was proceeding down N.C. 98, plaintiff “suddenly and unexpectedly started his turn, and by doing so . . . . [h]e blocked both lanes” of travel onN.C. 98. Veronica asserted that plaintiff's vehicle “was like a wall in front” of her, and that in a “split second” she “had to decide a head-on collision or go to the left or to the right.” Veronica further asserted that she could not go to the right of plaintiff's vehicle because “there was a mailbox” in that direction, “and there was not enough space for [her] to go between the mailbox and the truck.” Veronica testified that she thought “the only thing I can do -- as I was driving alone; I had no passenger -- is to brake and get along side; that the impact will be on the side of my car.” Veronica further testified that “[a]t the moment just before [she] was going to hit the truck, [plaintiff] looked out the window with a surprised expression on his face.” Veronica stated that she did not speak to Garrison following the collision, but she remembered Garrison “going back and forth talking to everybody, talking to the trooper, giving her opinion, organizing.” Veronica also stated that she did not observe plaintiff's vehicle's turn signal blinking at any point during the incident.
    Following the close of plaintiff's evidence as well as the close of all the evidence, both parties made motions for directed verdicts in their favor. The trial court denied each of the motions and submitted the case to the jury. On 7 October 2003, the jury returned a verdict determining that plaintiff was not injured or damaged by the negligence of defendants. On 29 October 2003, the trial court entered judgment in the case, concluding that plaintiff should take nothing from defendants. On 30 October 2003,plaintiff filed a motion for judgment notwithstanding the verdict and new trial. On 12 March 2004, the trial court entered an order denying plaintiff's motion. Plaintiff appeals.



    The issues on appeal are whether the trial court erred by: (I) denying plaintiff's motion for directed verdict on the issue of defendants' negligence; (II) denying plaintiff's motion for directed verdict on the issue of plaintiff's contributory negligence; (III) signing and entering the judgment in favor of defendants; and (IV) denying plaintiff's motion for judgment notwithstanding the verdict and new trial.
    We note initially that defendants contend plaintiff has not preserved issues I and II for appeal because plaintiff failed to offer specific grounds for his motions to dismiss at trial. N.C. Gen. Stat. § 1A-1, Rule 50(a) (2003) provides that a motion for directed verdict “shall state the specific grounds therefor.” Our courts have previously held that this requirement is mandatory, and this Court has concluded that, in making a motion for directed verdict, “[t]he better practice is to set forth the specific grounds in a written motion. 'If the movant relies upon an oral statement for such specific grounds, a transcript thereof must be incorporated in the case on appeal.'” Pallet Co. v. Truck Rental, Inc., 49 N.C. App. 286, 288, 271 S.E.2d 96, 97 (1980) (quoting Hensley v. Ramsey, 283 N.C. 714, 726, 199 S.E.2d 1, 8 (1973)), disc. review denied, 301 N.C. 722, 276 S.E.2d 282 (1981). In Pallet Co., we “elect[ed] to waive the Rule 50(a) violation and toconsider the appeal on its merits” where the transcript of the defendant's motion for directed verdict did not appear in the record on appeal but the parties conceded that the defendant stated only one ground for his motion for directed verdict. 49 N.C. App. at 289, 271 S.E.2d at 97. In the instant case, the record on appeal contains no transcript from those portions of the trial in which plaintiff made his motions for directed verdict, and there is no indication in the record that plaintiff filed written versions of the motions. Although the parties do not concede that plaintiff offered specific grounds for the motions, the record contains a list of appellate stipulations of the parties, one such stipulation providing that “at the end of the plaintiff's evidence and at the end of all the evidence, both parties made Motions for Directed Verdicts, which were denied by the trial court.” Furthermore, while there is no indication in the record that plaintiff provided specific grounds when making his motions, there is likewise no indication that defendants objected at trial to the lack of specificity of the motions. See Byerly v. Byerly, 38 N.C. App. 551, 553, 248 S.E.2d 433, 435 (1978) (“[W]hen a motion for a directed verdict is granted, the adverse party who did not make a specific objection at trial to the movant's failure to state specific grounds therefor is precluded from raising the objection on appeal.”). In light of the circumstances of the instant case, we elect to overlook the alleged Rule 50(a) violation and to consider plaintiff's appeal on its merits.
    Plaintiff first argues that the trial court erred by denyinghis motion for directed verdict on the issue of defendants' negligence. Plaintiff asserts that there is insufficient evidence in the record to support the trial court's decision to submit the issue to the jury. We disagree.
    The purpose of a motion for directed verdict is “to test the legal sufficiency of the evidence to take the case to the jury and to support a verdict for [the nonmoving party].” Wallace v. Evans, 60 N.C. App. 145, 146, 298 S.E.2d 193, 194 (1982). “When considering a motion for directed verdict, the trial court must consider all the evidence in the light most favorable to the nonmoving party and the nonmoving party is to receive the benefit of every reasonable inference that can be drawn from the evidence.” Bass v. Johnson, 149 N.C. App. 152, 155, 560 S.E.2d 841, 844 (2002). “The heavy burden carried by the movant is particularly significant in cases . . . in which the principal issues are negligence and contributory negligence.” Taylor v. Walker, 320 N.C. 729, 734, 360 S.E.2d 796, 799 (1987).
    In the instant case, plaintiff contends that the trial court should have granted his motion for directed verdict on the issue of defendants' negligence because “[i]t is physically impossible for the accident to have occurred as [] defendant contends.” Plaintiff asserts that the maneuver Veronica testified plaintiff was making at the time of the collision could not have been executed in the vehicle he was driving. However, after considering Veronica's testimony in the light most favorable to defendants and resolving all conflicts in testimony in their favor, we are unable toconclude that plaintiff is entitled to judgment as a matter of law.
    Veronica testified that at the time of the collision, she was traveling below the speed limit and keeping a clear lookout of the road ahead. She further testified that although plaintiff's vehicle was stopped on the right shoulder of the road in front of her, as she approached his vehicle, plaintiff “suddenly and unexpectedly” turned in front of her and left her no choice but to maneuver her vehicle to the left or right to avoid a “head-on” collision. Veronica also testified that she did not speak to Garrison at the scene and did not observe plaintiff's turn signal being on at any point during the incident. Although rejected by plaintiff and Garrison, Veronica's version of the incident was corroborated in part by Trooper Bright, who testified that Veronica told him following the collision that “she . . . thought [plaintiff] was going to . . . maybe use -- use the shoulder to -- to make a U-turn or go around. . . . [A]nd when he didn't turn she couldn't do anything but slam on her brakes to avoid hitting him” in the roadway. We note that in his brief, plaintiff makes several arguments calling into question the veracity and plausibility of Veronica's verison of the collision. However, the weight and credibility of the evidence provided by the parties is a question for the jury to consider rather than the trial court. See Benfield v. Costner, 67 N.C. App. 444, 449, 313 S.E.2d 203, 207 (1984) (“[I]n considering [a] motion for a directed verdict, the trial court does not pass upon the weight or credibility of the evidence, the sole duty of the court being to determine whether there issufficient evidence upon which a jury could base a verdict.”). In light of the foregoing, we conclude that the trial court did not err by denying plaintiff's motion for directed verdict and submitting the issue of defendants' negligence to the jury. Accordingly, plaintiff's first argument is overruled.
    Plaintiff next argues that the trial court erred by denying his motion for directed verdict on the issue of contributory negligence. Plaintiff asserts that defendants failed to satisfy their burden in the affirmative defense, in that defendants failed to demonstrate that plaintiff's negligence contributed to the collision. However, the record reflects that after finding that plaintiff was not “injured or damaged by the negligence of [] defendants,” the jury concluded their deliberations and submitted the verdict sheet to the trial court. Thus, the jury did not reach the question of whether plaintiff was contributorily negligent in the collision, and therefore plaintiff has failed to demonstrate how he was prejudiced by the trial court's denial of his motion for directed verdict and submission of the issue to the jury. Accordingly, we overrule plaintiff's second argument.
    Plaintiff's third argument is that the trial court erred by signing and entering its judgment in favor of defendants. In support of this argument, plaintiff reasserts his contentions regarding the propriety of the denial of his motions for directed verdict. However, we note that “[a]n assignment of error concerning the signing and entry of a judgment 'presents only the question of whether an error of law appears on the face of therecord, which includes whether the facts found or admitted support the judgment and whether the judgment is regular in form.'” Griffis v. Lazarovich, 161 N.C. App. 434, 442-43, 588 S.E.2d 918, 924 (2003) (quoting Green v. Maness, 69 N.C. App. 403, 407, 316 S.E.2d 911, 913, disc. review denied, 312 N.C. 622, 323 S.E.2d 922 (1984)), disc. review denied, 358 N.C. 375, 598 S.E.2d 135 (2004). After reviewing the record in the instant case, we conclude that the trial court's judgment contains no such error. Accordingly, plaintiff's third argument is overruled.
    Plaintiff's final argument is that the trial court erred by denying his motion for judgment notwithstanding the verdict and new trial. Plaintiff asserts that the trial court should have granted the motion because the jury's verdict was contrary to the evidence and defied “the laws of mechanics, physics and reason.” We disagree.
    “The same standard is to be applied by the courts in ruling on a motion for [judgment notwithstanding the verdict] as is applied in ruling on a motion for a directed verdict.” Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986). “In ruling on the motion, the trial court must consider the evidence in the light most favorable to the nonmoving party, giving him the benefit of all reasonable inferences to be drawn therefrom and resolving all conflicts in the evidence in his favor.” Taylor, 320 N.C. at 733-34, 360 S.E.2d at 799. “The party moving for judgment notwithstanding the verdict, like the party seeking a directed verdict, bears a heavy burden under North Carolina law.” Id. at733, 360 S.E.2d at 799. “Generally, a motion for new trial is addressed to the sound discretion of the trial court, and its ruling will not be disturbed absent a manifest abuse of that discretion.” Kinsey v. Spann, 139 N.C. App. 370, 372, 533 S.E.2d 487, 490 (2000)).
    In the instant case, plaintiff contends that the trial court should have granted his motion for judgment notwithstanding the verdict and new trial for the same reasons the trial court should have granted his motions for directed verdict. However, plaintiff had the burden of proving negligence on the part of defendants, and, as discussed above, the evidence introduced at trial was conflicting regarding the circumstances giving rise to the collision. The parties had differing versions of the events leading up to the collision, and the jury was entitled to weigh the credibility of the evidence and parties at trial. Therefore, after reviewing the record in the instant case, we are unable to conclude that the trial court abused its discretion by denying plaintiff's motion for judgment notwithstanding the verdict and new trial. Accordingly, plaintiff's final argument is overruled.
    In light of the foregoing, we affirm the trial court's entry of judgment in favor of defendants and the trial court's denial of plaintiff's motion for judgment notwithstanding the verdict and new trial.
    Affirmed.
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

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