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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 06 November 2007
MELVIN CHARLES STRUM,
a/k/a CHUCK STRUM, an individual
and MARTIN KIMSEY and VICTORIA
d/b/a REMAX in the Mountains
v. Macon County
No. 04 CVS 451
GREENVILLE TIMBERLINE, LLC,
d/b/a TIMBERLINE LAND
COMPANY of GREENVILLE, NC LLC
Appeal by plaintiffs from judgment entered 31 October 2005
and orders entered 3 January 2006 by Judge James U. Downs in Macon
County Superior Court. Heard in the Court of Appeals 23 August
David A. Sawyer, for plaintiffs-appellants.
Ridenour, Lay & Earwood, P.L.L.C., by Eric Ridenour and J.
Hunter Murphy, for defendant-appellee.
The trial court did not abuse its discretion in denying
plaintiffs' motion for new trial or to alter or amend the verdict
where the jury's failure to follow the court's instructions did not
render the verdict improper, and where there was competent evidence
to support the verdict.
I. Factual Background
Plaintiff Melvin Charles Chuck Strum (Strum) is a realtor
associated with ReMax in the Mountains (ReMax), a real estate
company in western North Carolina owned by plaintiffs Marty and
Vickie Kinsey. On 4 December 2002, Strum and ReMax entered into a
Buyer Agency Agreement (Agreement) with Steve Lewis (Lewis).
The Agreement was signed by Lewis individually with no reference to
Timberline Land Company of Greenville, N.C., L.L.C. (defendant).
It related to 615 acres of land located in Carteret County, North
Carolina owned by Weyerhaeuser Company Foundation (Weyerhaeuser).
At the time that the Agreement was signed, Lewis was a Vice-
President of defendant. The services to be performed by Strum and
ReMax under the terms of the Agreement included negotiating a
reduction in Weyerhaeuser's asking purchase price of $3.6 million
for the property. Plaintiffs were to receive a 5% commission based
on the final purchase price. Approximately three months after the
Agreement was signed, Strum negotiated a reduction in the purchase
price from $3.6 million to $2.1 million. On 5 May 2003 an
agreement was entered into between defendant and Weyerhaeuser to
purchase the 615 acres for $2.1 million. No commission was paid by
defendant arising out of this transaction, which was consummated on
25 July 2003 .
On 25 August 2004, plaintiffs filed a complaint in the
Superior Court of Macon County seeking to recover a commission of
$105,000.00 from defendant. The case was heard 19 through 21
October 2005 before Superior Court Judge James U. Downs and a jury. On 21 October 2005 the jury returned a verdict in favor of
On 8 November 2005, plaintiffs filed a motion for a new trial
or to alter or amend the judgment. This motion was heard on 28
November 2005. On 3 January 2006, the trial court denied the
motion. Plaintiffs appeal.
II. Denial of Motion for New Trial or To Alter or Amend the
Plaintiffs contend that the trial court erred in denying their
motion for a new trial or to alter or amend the judgment under Rule
59(a)(5) or (7) of the North Carolina Rules of Civil Procedure. We
N.C. Gen. Stat. . 1A-1, Rule 59 (2005) states, in part:
New Trials; amendment of judgments.
(a) Grounds._A new trial may be granted to all
or any of the parties and on all or part of
the issues for any of the following causes or
. . .
(5) Manifest disregard by the jury of the
instructions of the court;
. . .
(7) Insufficiency of the evidence to justify
the verdict or that the verdict is
contrary to law[.]
The decision to grant a new trial pursuant to a Rule 59(a)
motion is within the discretion of the trial court. Young v. Lica,
156 N.C. App. 301, 304, 576 S.E.2d 421, 423 (2003) (citation
omitted). The court's decision will not be disturbed unless it is: [M]anifestly unsupported by reason, or so
arbitrary that it could not have been the
result of a reasoned decision. A trial
judge's decision only amounts to an abuse of
discretion if there is no rational basis for
State v. Mutakbbic, 317 N.C. 264, 274, 345 S.E.2d 154, 158-59
(1986) (internal citations omitted) (internal quotes omitted).
A. Manifest Disregard of Jury Instructions
Plaintiffs first argue that the jury disregarded the
instructions of the court, that the verdict on its face reflects
this disregard, and that they are entitled to a new trial under
It is well settled that a verdict should be liberally and
favorably construed with a view of sustaining it, if possible. . .
Guy v. Gould, 202 N.C. 727, 729, 164 S.E. 120, 121 (1932) (citation
omitted). Courts have held that where a jury's answers to issues
are are so contradictory as to invalidate the judgment, the
practice of the Court is to grant a new trial. . . because of the
evident confusion. Palmer v. Jennette, 227 N.C. 377, 379, 42
S.E.2d 345, 347 (1947) (citations omitted).
In the instant case, eight issues were submitted to the jury:
1. Did the Plaintiffs and Steve Lewis enter
into a real estate agency contract
regarding the purchase of a tract of land
in Carteret County known as Weyerheuser
[sic] Carteret Number 15?
If you answered Issue One Yes then
proceed to Issue Two. If you answer
Issue One No then move to Issue
2. Was Steve Lewis at and in respect of that
time authorized to act and contract on
behalf of the Defendants?
If you answer Issue Two No then do
not answer Issue Three.
3. Did the Defendants breach the contract
with the Plaintiffs?
4. What amount of damages are the Plaintiffs
entitled to recover from the Defendants?
5. Did the Plaintiffs render services as
real estate agents for Steve Lewis under
such circumstances that the said Steve
Lewis should be required to pay for them?
6. Was Steve Lewis at and in respect of time
authorized to receive and engage the
Plaintiffs' services on behalf of the
7. If the answer to Issue Number Six is no,
did the Defendants ratify the agreement
to pay for the Plaintiffs' services
entered into by Plaintiffs and Steve
8. What amount of damages are the Plaintiffs
entitled to recover from Defendants?
The court instructed the jury that the first four issues
pertained to plaintiffs' claim for breach of contract, and that the
second four issues dealt with plaintiffs' claims for implied
contract, and that plaintiffs could not recover under both
theories. The jury was instructed that if it answered the first
four issues in favor of the plaintiff, they should not consider
issues five through eight. The jury was further instructed that if
it answered the first issue no, then it should skip issues two
through four and proceed to issue five. Finally, the court
instructed the jury that a negative answer to issue two ended thelawsuit and the jury was not to consider the remaining issues.
The jury answered the first issue yes and the second issue
no. The jury then proceeded to answer issues five through eight
Issue Five: Yes.
Issue Six: No.
Issue Seven: No.
Issue Eight: $0.
Although the trial court noted the inconsistency in the jury's
verdict, it treated the answers to issues five through eight as
We hold that the answers to issues five through eight were
mere surplusage. After answering issue two no, the lawsuit was
over. See Nicholson v. Dean, 267 N.C. 375, 378, 148 S.E.2d 247,
250 (1966) (finding the legal effect of a jury's answer to the
first issue determinative).
We note that even though the jury ignored the judge's
instructions in answering issues five through eight, the verdict
was consistent; each of the six issues that was answered by the
jury was answered in favor of defendant. It is clear from the
verdict on its face that the jury believed that plaintiffs should
not prevail. The trial court did not abuse its discretion in
denying plaintiffs' motion for a new trial due to the jury's
disregard of the court's instructions.
B. Insufficiency of the Evidence to Justify the Verdict
Plaintiffs further argue that the jury verdict is contrary tothe greater weight of the evidence, and that they are entitled to
a new trial pursuant to Civil Procedure Rule 59(a)(7).
Rule 59(a)(7) permits a new trial to be granted for
[i]nsufficiency of the evidence to justify the verdict. The term
insufficiency of the evidence means that the verdict is against
the greater weight of the evidence. In re Will of Buck
, 350 N.C.
621, 624, 516 S.E.2d 858, 860 (1999) (citation omitted). It is
the jury's function to weigh the evidence and to determine the
credibility of witnesses, Anderson v. Hollifield
, 345 N.C. 480,
483, 480 S.E.2d 661, 664 (1997), and the trial court should set
aside a jury verdict only in those exceptional situations where
the verdict. . . will result in a miscarriage of justice. Buck
350 N.C. at 628, 516 S.E.2d at 862. Appellate review of a court's
granting or denying a motion for a new trial is limited to whether
the record demonstrates an abuse of discretion by the court. Id.
at 625, 516 S.E.2d at 861. (citation omitted).
The record reveals that competent evidence was presented at
trial to support the jury's finding that Lewis was not an agent of
defendant. Lewis individually executed the Agreement, without any
reference to any representative capacity. Defendant's name does
not appear on the document. One of defendant's officers, Auddie
Cliff Brown, testified that Lewis lacked the requisite authority
to bind defendant to the Agreement.
The trial court did not abuse its discretion in denying
plaintiffs' motion for a new trial or to alter or amend the
judgment. This argument is without merit.
Judges ELMORE and STROUD concur.
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