CATHERINE L. VINCENT,
Administratrix of the Estate of
ROGER CRAIG VINCENT, III,
and BILLY ANDREW HANKS, SR.,
Administrator of the Estate of
JESSE EUGENE VINCENT, Guilford County
Plaintiffs No. 02 CVS 10110
JOHN THOMAS BILLINGSLEY,
BILLINGSLEY ASSOCIATES, LLC, and
BILLINGSLEY SEPTIC TANK COMPANY,
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by
Katherine A. Murphy, Derek J. Allen, Robert J. King, III, and
Teresa DeLoatch Bryant for plaintiffs-appellants.
Pinto, Coates, Kyre & Brown, P.L.L.C., by Richard L. Pinto and Nancy R. Meyers for defendants-appellees.
Catherine L. Vincent, administratrix of the estate of Roger
Craig Vincent, III, and Billy Andrew Hanks, Sr., administrator of
the estate of Jesse Eugene Vincent (plaintiffs) appeal the 8 June
2004 jury verdict and judgment in favor of John Thomas Billingsley(Billingsley), Billingsley Associates, LLC (Associates), and
Billingsley Septic Tank Company (Company) (collectively known as
defendants). Plaintiffs also appeal the 21 September 2004 order
denying their motions for judgment notwithstanding the verdict
(jnov) or, alternatively, a new trial. We affirm in part and
find no error in part.
On the afternoon of 16 July 2001, Roger Craig Vincent (Tripp), seventeen years of age, and his brother, thirteen-year- old Jesse Eugene Vincent (Jesse), drove westbound on N.C. Highway 150 (150) in a 1985 Chevrolet Blazer (the Blazer). At the same time, Billingsley, then sixty-seven years of age, drove a 1998 Ford dump truck (the dump truck) eastbound on 150. The Blazer driven by Tripp collided with Billingsley's dump truck. Both Tripp and Jesse died and Billingsley survived. Plaintiffs sued defendants alleging negligence and negligent entrustment on 13 September 2002.
At trial, plaintiffs presented the expert testimony of Michael Sutton (Mr. Sutton), a consulting engineer, that according to his independent analysis of the accident scene and the Blazer and the dump truck, the dump truck struck the Blazer head on and further, at the point of impact, the dump truck was in the Blazer's lane. Mr. Sutton also testified that due to the weight of the dump truck, if the two vehicles had been in Billingsley's lane at the point of impact, neither vehicle could have come to rest on Tripp's side of 150 as they did.
At trial, Billingsley testified on his own behalf that he drove within the speed limit in his lane when the Blazer crossedover the center line, hit his dump truck head-on, and angled back to the right at the point of impact. Trooper Michael Marshall (Trooper Marshall) of the North Carolina State Highway Patrol (N.C. Patrol), a collision reconstructionist in the accident reconstruction division of the N.C. Patrol, and Justin Dodson (Trooper Dodson) of the N.C. Patrol, each testified about the accident scene. Fred Tyner (Mr. Tyner), an accident reconstruction expert, testified the accident occurred when the Blazer driven by Tripp crossed the center line and collided with the dump truck driven by Billingsley. Mr. Tyner further testified consistently with Billingsley's account that the Blazer, while in the dump truck's lane, turned to the right in an attempt to return to its lane just prior to impact.
In addition to the instant suit, the collision also prompted a second legal action, No. 03 CVS 8778. This action involved Jesse's Estate suing Tripp's Estate in the event the jury found Tripp negligent. The attorney representing Jesse's Estate, Jeffrey K. Peraldo (Mr. Peraldo), filed a complaint alleging Tripp was negligent. This led plaintiff Hanks to dismiss Mr. Peraldo and file an amended complaint through attorney James A. Dickens. After voluntarily dismissing the suit, plaintiffs then attempted to exclude both the original and amended complaints from the trial in the instant case by a motion in limine. The trial court denied plaintiffs' motion.
On 30 April 2004, the jury returned a verdict and concluded the deaths of Tripp and Jesse were not negligently caused by Billingsley. Further, the jury determined Tripp was not negligent in damaging the dump truck owned by Associates. On 8 June 2004, plaintiffs moved for jnov or alternatively, a new trial. The court denied this motion. Plaintiffs appeal.
I. JNOV/NEW TRIAL:
Plaintiffs argue they are entitled to judgment on the issue of defendants' negligence, or, in the alternative, are entitled to a new trial. Plaintiffs specifically contend the following: the jury verdict is inconsistent with the evidence presented at trial; the trial court should have granted plaintiffs' motion for jnov; or, in the alternative, the trial court should have granted plaintiffs' motion for a new trial. We disagree.
First, in North Carolina the standard for jnov is well established. In ruling on a motion for judgment notwithstanding the verdict, the trial court must be guided by the same principles and standards applicable to motions for directed verdict. Page v. Tao, 56 N.C. App. 488, 491, 289 S.E.2d 910, 912-13 (1982) (citations omitted). The trial court must determine whether plaintiff has made out a prima facie case by presenting evidence sufficient to justify a verdict in [plaintiff's] favor. Id. 56 N.C. App. at 492, 289 S.E.2d at 913 (quotation marks and citation omitted) (emphasis added). Consequently, the trial court's ultimate inquiry is whether the evidence would reasonably satisfy an impartial mind of the truth of the proposition sought to be proved. Id. In so doing, the trial court uses the following well known test. All the evidence supporting the nonmovant's claim must be taken as true and considered in the light most favorable to the nonmovant; all contradictions, conflicts, and inconsistencies must be resolved in the nonmovant's favor; and the nonmovant must be given the benefit of every reasonable inference which may be legitimately drawn from the evidence.
Id. (emphasis added). Additionally, whether to grant or deny a motion for judgment notwithstanding the verdict...is within the sound discretion of the trial court and absent a manifest abuse of discretion, the trial court's ruling will not be disturbed. Osetek v. Jeremiah, __ N.C. App. __, __, 621 S.E.2d 202, 206 (2005).
Here, plaintiffs' jnov motion questions the sufficiency of the evidence by expressly alleging the evidence is inconsistent with the verdict. However, defendants' evidence, considered in the light most favorable to defendants as nonmovants, was sufficient to support the jury's verdict that the deaths of Tripp and Jesse were not negligently caused by Billingsley.
Billingsley presented testimony of two key witnesses: himself and accident reconstructionist Tyner. Both testified consistently the accident was caused when the Blazer driven by Tripp crossed the center line and hit the dump truck driven by Billingsley. Further, each testified consistently the Blazer turned back to the right at the point of impact indicating an attempt by Tripp to pull the Blazer back into the right lane. Though plaintiffs produced evidence through consulting engineer Sutton that Billingsley crossed the center line and caused the accident, the jury determined based upon all the evidence presented that Billingsley did not negligentlycause the deaths of Tripp and Jesse. From their verdict it is apparent that the jury determined that the defendant's rather than plaintiff's version was established by the evidence. Ramsey v. Christie, 19 N.C. App. 255, 257, 198 S.E.2d 470, 471 (1973). The trial court did not abuse its discretion by denying plaintiffs' motion for jnov.
Second, in North Carolina the standard for new trial motions is well established. An appellate court's review of a trial judge's discretionary ruling denying a motion to set aside a verdict and order a new trial is limited to a determination of whether the record clearly demonstrates a manifest abuse of discretion by the trial judge. Pittman v. Nationwide Mut. Fire Ins. Co., 79 N.C. App. 431, 434, 339 S.E.2d 441, 444 (1986). Furthermore, [i]t is well-established that a 'trial court's decision to exercise its discretion to grant or deny a Rule 59(a)(7) motion for a new trial for insufficiency of the evidence must be based on the greater weight of the evidence as observed firsthand only by the trial court.' City of Charlotte v. Whippoorwill Lake, Inc., 150 N.C. App. 579, 583, 563 S.E.2d 297, 299 (2002) (emphasis added) (quoting In re Buck, 350 N.C. 621, 629, 516 S.E.2d 858, 863 (1999)).
As previously stated regarding plaintiffs' jnov motion, there was sufficient evidence presented by defendants, including eyewitness and expert testimony that Tripp and not Billingsley caused the accident, and a unanimous jury concluded the deaths of Tripp and Jesse were not caused by the negligence of Billingsley. Consequently, the trial court did not abuse its discretion indenying plaintiffs' new trial motion. Thus, we overrule plaintiffs' assignment of error regarding motions for jnov or, alternatively, a new trial.
II. MOTION IN LIMINE:
Plaintiffs next argue the trial court erred in denying their motion in limine to exclude the complaint and the amended complaint filed in 03 CVS 8778. Plaintiffs contend these allegations are unauthorized, unfounded, and have no probative value. Though plaintiffs objected to the court's admission of the complaints during the motion in limine, plaintiffs failed to object to the same at trial. Thus, the question before this Court is whether the plaintiffs' argument is preserved under the North Carolina Rules of Appellate Procedure. For the following reasons, we determine it is not preserved.
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