An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-459


Filed: 16 January 2007


v .                         Wilkes County
                            No. 04-CVS-2348

    Appeal by Plaintiff from judgment entered 12 December 2005 by Judge Michael E. Helms in Wilkes County Superior Court. Heard in the Court of Appeals 14 November 2006.

    Timothy D. Welborn, P.A., by Timothy D. Welborn and John R. Smerznak, Jr., for Plaintiff-Appellant.

    Willardson Lipscomb & Miller, L.L.P., by William F. Lipscomb, for Unnamed Defendant-Appellee.

    STEPHENS, Judge.

    On 15 June 2003, at approximately 2:30 p.m., Defendant Eliseo Benjamine Ramirez Garcia (“Defendant Garcia”) was operating a 1996 Chevrolet vehicle and traveling west on U.S. Highway 421 in Wilkes County, North Carolina. The vehicle was owned by Defendant Isidro Rangel-Rodriquez (“Defendant Rodriquez”). Defendant Garcia lost control of the vehicle and ran off the road to the left, striking a post and cable median barrier, and eventually coming to a complete stop on the shoulder of the road.     At the same time and place, Robin Nelsen Jones (“Decedent”) was a passenger in a 1995 Ford Windstar owned and operated by Rose Campbell, traveling east on U.S. Highway 421. Upon seeing the accident, Mrs. Campbell stopped her vehicle on the side of the road, but left the motor running. Decedent exited Mrs. Campbell's vehicle and crossed U.S. Highway 421 on foot in order to reach Defendant Garcia's vehicle and render assistance.
    As Decedent exited Mrs. Campbell's automobile, Defendant Oscar Ruiz Velazquez (“Defendant Velazquez”) was driving east on U.S. Highway 421 in a 1989 Nissan owned by Defendant Patricia Leandro Cruz (“Defendant Cruz”). As Defendant Velazquez approached the scene, he swerved off the road and onto the median where Decedent was standing. Defendant Velazquez struck Decedent, throwing her into the air and onto the guard wires located in the median. He then swerved back onto the road and fled the scene of the accident. Decedent died as a result of the injuries she sustained.
    In a complaint dated 24 August 2004, Plaintiff sought damages from Defendants Garcia, Rodriquez, Velazquez, and Cruz, resulting from their alleged negligence that led to Decedent's death. Plaintiff also submitted a claim for uninsured motorist (“UM”) coverage to the North Carolina Farm Bureau Mutual Insurance Company (“Defendant”), the company that provided liability insurance for the car in which Decedent was traveling prior to her death. By an answer filed 3 December 2004, Defendant, as an unnamed party in the lawsuit filed by Plaintiff, claimed that Decedent “was not using amotor vehicle covered by [Defendant] when the accident in question occurred.”
    The issue of whether Decedent was “using” the vehicle was tried by a jury in Wilkes County Superior Court between 30 November and 1 December 2005 before the Honorable Michael E. Helms. Before closing arguments on 1 December 2005, Judge Helms prohibited counsel for Plaintiff from referring to certain North Carolina appellate decisions during his summation. The jury then returned a verdict that Decedent was not “using” the automobile insured by Defendant at the time of her death. On 12 December 2005, based on this verdict, Judge Helms entered a judgment denying Plaintiff coverage from Defendant. Plaintiff timely filed notice of appeal to this Court.
    By his only argument, Plaintiff contends that the trial court erred in limiting the case law from which his counsel could argue during his closing argument. Specifically, Plaintiff argues that Judge Helms erred when he prohibited Plaintiff's counsel from arguing to the jury from Sutton v. Aetna Casualty & Surety Co., 325 N.C. 259, 382 S.E.2d 759, reh'g denied, 325 N.C. 437, 384 S.E.2d 546 (1989), and Nationwide Mut. Ins. Co. v. Davis, 118 N.C. App. 494, 455 S.E.2d 892, disc. review denied, 341 N.C. 420, 461 S.E.2d 759 (1995), and that absent this error, the jury would have reached a different result. We disagree.
    Under North Carolina law, “[i]n jury trials the whole case as well of law as of fact may be argued to the jury.” N.C. Gen. Stat. § 7A-97 (2005). “It is well settled that this statute permitscounsel, in his argument to the jury, to state his view of the law applicable to the case on trial and to read, in support thereof, from the published reports of decisions of [our appellate courts].” Wilcox v. Glover Motors, Inc., 269 N.C. 473, 479, 153 S.E.2d 76, 81 (1967) (citing Brown v. Vestal, 231 N.C. 56, 55 S.E.2d 797 (1949), and Howard v. Western Union Telegraph Co., 170 N.C. 495, 87 S.E. 313 (1915)). At times, in order to assist the jury in understanding the rule of law, counsel may need to recount some of the facts the court had before it when it pronounced the rule in question. “For this purpose, counsel, in his argument in a subsequent case, may not only read the rule of law stated in the published opinion in the former case but may also state the facts before the court therein.” Wilcox, 269 N.C. at 479, 153 S.E.2d at 81 (citing Cashwell v. Fayetteville Pepsi-Cola Bottling Works, 174 N.C. 324, 93 S.E. 901 (1917), and Harrington v. Commissioners of Wadesboro, 153 N.C. 437, 69 S.E. 399 (1910)). However, counsel's broad right to argue the law and the facts of prior cases is limited in that N.C. Gen. Stat. § 7A-97 “does not authorize counsel to argue law which is not applicable to the issues, for such arguments 'could only lead to confusion in the minds of the jury.'” In re Will of Farr, 277 N.C. 86, 93, 175 S.E.2d 578, 583 (1970) (quoting State v. Crisp, 244 N.C. 407, 412, 94 S.E.2d 402, 406 (1956)).
    Although trial counsel is permitted and encouraged to zealously represent his client, arguments to the jury are within the control of, and may be limited within the discretion of, thetrial court. State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000). A trial court's decision to limit the closing argument of a party will only be disturbed upon a showing of a “gross abuse of discretion.” State v. Little, 126 N.C. App. 262, 268, 484 S.E.2d 835, 839 (1997) (citation omitted). Our appellate courts have determined that under an “abuse of discretion” standard, the trial court's ruling “will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” Leary v. Leary, 152 N.C. App. 438, 441, 567 S.E.2d 834, 837 (2002) (citation omitted).
    In the case sub judice, the trial court limited the case law that Plaintiff's counsel could argue to the jury. In particular, Judge Helms prohibited Plaintiff's attorney from reading to the jury from Sutton, 325 N.C. at 265, 382 S.E.2d at 763 (citations omitted), that “[t]he avowed purpose of the Financial Responsibility Act . . . is to compensate the innocent victims of financially irresponsible motorists.” In support of his decision, Judge Helms reasoned that
        it is misleading under the facts of this case to allow you to read some language from the case that would tend to tell the jury that it is okay to do whatever is necessary to implement the will of the legislature to compensate innocent victims from irresponsible motorists if I allow you to read that language from the Supreme Court where they are using that language to justify the action that they intend to take in a particular case.

Decisions by a jury are intended to be based on the evidence presented and the jury's application of the law to that evidence,not on equity, as the language from Sutton could have encouraged the jury to do. Based on a review of the exchange between the trial court and Plaintiff's counsel, and the rationale that Judge Helms employed in making his decision, we hold that he did not abuse his discretion. That is, his decision to limit Plaintiff's closing argument was not arbitrary and was clearly the result of a well-reasoned decision. Therefore, Plaintiff's contention is without merit.
    Plaintiff's counsel also desired to argue to the jury by referencing Davis, 118 N.C. App. at 497-98, 455 S.E.2d at 894-95, to support his position that the jury should adopt a similar liberal definition of the word “use.” However, because Davis dealt with liability insurance and not UM coverage, Judge Helms did not permit this reference, reasoning that, “because it deals with totally different language . . . under that other type of insurance, the liability insurance[,] . . . I think that is too misleading to allow you to get into [it].” Once again, after a review of the interaction between Plaintiff's counsel and Judge Helms, and the rationale employed by the trial court in making its decision, we hold that Judge Helms did not abuse his discretion. Moreover, his decision is supported by our Supreme Court's holding in Farr which limited arguments to applicable law that would not “'lead to confusion in the minds of the jury.'” Farr, 277 N.C. at 93, 175 S.E.2d at 583 (quoting Crisp, 244 N.C. at 412, 94 S.E.2d at 406). Accordingly, this portion of Plaintiff's argument is overruled.     For the reasons stated, the judgment of the trial court is
    Judges WYNN and HUDSON concur.
    The judges concurred prior to 31 December 2006.
    Report per Rule 30(e).

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