Phelps v Korbach, (05-593) 01/17/2006

Appeal by plaintiff from order entered 7 January 2005 by Judge William C. Griffin in Dare County Superior Court. Heard in the Court of Appeals 8 December 2005.

Donald J. Dunn, for plaintiff.

Hedrick, Eatman, Gardner & Kincheloe, L.L.P., by Jeffery H. Blackwell and Shelley W. Coleman, for defendants.

    HUDSON, Judge.

    This case arises from a collision between plaintiff's motorcycle and defendants' car. On 24 May 2002, plaintiff Glenn Allen Phelps filed his complaint alleging negligence by Cedric Scout Korbach (“Scout”) in driving the car, Brenda Korbach in supervising Scout, and Charles Korbach as owner of the car. Defendants denied negligence and alleged contributory negligence. In a pretrial order, the parties stipulated to the amount of damages, leaving only liability to be determined at trial. Both parties moved for summary judgment pretrial, which motions the court denied. On 10 May 2004, the case was tried to the jury. Defendants moved for directed verdict at the close of plaintiff'sevidence, plaintiff moved for the same at the close of defendants' evidence, and both parties renewed the motions at the close of all evidence, all of which motions the court denied. The jury returned a verdict denying that plaintiff was injured by defendants' negligence. The court denied plaintiff's motion for judgment not withstanding the verdict (“JNOV”) on 21 December 2004 following a hearing. Plaintiff appeals. For the reasons discussed below, we affirm.
    On 19 August 2001, plaintiff was seriously injured when his motorcycle struck the rear of a car being driven by then-fifteen- year-old Scout who had stopped suddenly on Highway 64/264 in Manteo. Plaintiff was traveling at thirty-five miles per hour in a fifty miles-per-hour zone, approximately four to five car lengths behind defendants. Plaintiff suddenly realized that defendants had stopped, though he saw no brake-lights on the car. Plaintiff attempted to stop, but the rear tire of his motorcycle struck the left rear of defendants' car throwing him to the ground. Scout was a provisional licensee who had been driving under a permit for three months. Scout testified that she braked upon seeing the car ahead (driven by Don Wiles) stop suddenly, but that she was unable to avoid rear-ending the car. Scout's mother, Brenda Korbach, testified that she called out for Scout to brake. A passenger in Wiles' car who was looking out the rear window at the time of the collision testified that Scout failed to slow down until defendants' car was a single car-length away.        Plaintiff first argues that the trial court erred in failing to grant his motion for summary judgment on the issue of defendants' negligence and on the issue of contributory negligence. We dismiss these assignments of error.
    The denial of a motion for summary judgment after a final judgment on the merits is not reviewable on appeal:
        The purpose of summary judgment is to bring litigation to an early decision on the merits without the delay and expense of a trial when no material facts are at issue. McNair v. Boyette, 282 N.C. 230, 192 S.E. 2d 457 (1972). After there has been a trial, this purpose cannot be served. Improper denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts, either judge or jury.

Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985). These assignments of error are dismissed.
    Plaintiff next argues that the trial court erred in denying his motions for directed verdict. We disagree.
    The standard of review of a denial of a motion for directed verdict is whether the evidence, considered in a light most favorable to the non-moving party, is sufficient to be submitted to the jury. Di Frega v. Pugliese, 164 N.C. App. 499, 505, 596 S.E.2d 456, 461 (2004). Here, plaintiff fails to argue insufficiency of the evidence in the light most favorable to defendants. Instead, he cites Pintacuda v. Zuckeberg for his assertion that reasonable minds could not have differed as to the foreseeability of injury to plaintiff on the facts here. 159 N.C. App. 617, 583 S.E.2d 348 (2003), reversed, 358 N.C. 211, 593 S.E.2d 776 (2004). InPintacuda, as here, a motorcyclist was injured when he struck a car that stopped suddenly in front of him. Id. at 618-19, 583 S.E.2d at 349-50. In reversing, the Supreme Court adopted the reasoning of the dissent that “defendant's act of stopping his vehicle was merely a circumstance of the accident and not the proximate cause of plaintiff's injuries.” Id. at 624, 583 S.E.2d at 353 (Timmons- Goodson, J., dissenting). In addition, plaintiff's citation of this Court's reasoning, were it not overruled by the Supreme Court, would not support his argument. The plaintiff in Pintacuda was appealing the grant of summary judgment to the defendant, and thus this Court considered whether a jury could reasonably find defendant's actions negligent, concluding that a jury could so find. Id. at 623, 583 S.E.2d at 352. This analysis does not support plaintiff's argument that reasonable minds must agree as to the foreseeability of his injury. This assignment of error is without merit.
    Plaintiff also argues that the trial court erred in submitting the issue of contributory negligence to the jury. We disagree.
    Here, because the jury found no negligence on the part of defendants, they never reached the issue of plaintiff's contributory negligence. Briggs v. Morgan, 70 N.C. App. 57, 63, 318 S.E.2d 878, 882-83 (1984). Thus, even if the court erred in submitting the issue to the jury, any error was harmless. This Court “will not consider exceptions and assignments of error arising upon the trial of other issues, when one issue decisive of appellant's right to recover has been found against him.” Reid v.Reid, 206 N.C. 1, 4, 173 S.E. 10 (1934); see also Bullin v. Moore, 256 N.C. 82, 86, 122 S.E.2d 765, 768 (1961). We overrule this assignment of error.
    Plaintiff next argues that the trial court erred in denying his motion for JNOV and for a new trial. We do not agree.
     “A trial court's decision to grant or deny . . . a motion notwithstanding the verdict will not be disturbed on appeal absent an abuse of discretion.” Crist v. Crist, 145 N.C. App. 418, 422, 550 S.E.2d 260, 264 (2001). This Court also reviews the denial of a motion for new trial for abuse of discretion. Garrison v. Garrison, 87 N.C. App. 591, 594, 361 S.E.2d 921, 923 (1987). As discussed supra, plaintiff fails to argue abuse of discretion in his brief and we conclude the trial court did not abuse its discretion in denying his motion for JNOV and for a new trial.
    Affirmed.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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