Plaintiff argues first that the trial court erred by directing
a verdict against plaintiff on her claim for punitive damages. We
conclude that plaintiff has failed to properly preserve this issue
'The standard of review of directed verdict is whether the
evidence, taken in the light most favorable to the non-moving
party, is sufficient as a matter of law to be submitted to the
jury.' Schenk v. HNA Holdings, Inc
., 170 N.C. App. 555, 559, 613
S.E.2d 503, 507 (quoting Davis v. Dennis Lilly Co.
, 330 N.C. 314,
322, 411 S.E.2d 133, 138 (1991)), disc. review denied
, 360 N.C.
177, 626 S.E.2d 649 (2005). A trial court's decision to grant or
deny a motion for directed verdict or a motion notwithstanding the
verdict will not be disturbed on appeal absent an abuse ofdiscretion. Crist v. Crist
, 145 N.C. App. 418, 422, 550 S.E.2d
260, 264 (2001)).
The criteria for an award of punitive damages are set out in
N.C. Gen. Stat. § 1D-15 (2005), which provides that:
(a) Punitive damages may be awarded only if the
claimant proves that the defendant is liable
for compensatory damages and that one of the
following aggravating factors was present and
was related to the injury for which
compensatory damages were awarded: (1) Fraud;
(2) Malice; (3) Willful or wanton conduct.
(b) The claimant must prove the existence of an
aggravating factor by clear and convincing
In addition, before punitive damages may be awarded against a
corporation, it must be shown that the officers, directors, or
managers of the corporation [must have] participated in or condoned
the conduct constituting the aggravating factor giving rise to
punitive damages. N.C. Gen. Stat. § 1D-15(c) (2005).
This Court's determination of whether the trial court erred by
granting defendant's motion for directed verdict requires us to
review the evidence presented at trial. However, plaintiff failed
to provide this Court with either a transcript or narrative of the
evidence presented. Moreover, we are unable to discern whether the
deposition excerpts and other discovery materials included in the
record on appeal were offered in evidence at trial.
Appellant's reliance on N.C.R. App. P. 9(c)(4) as somehow
proving that the materials were offered in evidence is
unpersuasive. Though not directly on point, this passage fromGlobal Circuits of N.C., Inc., v. Chandak
, 174 N.C. App. 797, 800-
801, 622 S.E.2d 643, 645-646 (2005), seems relevant:
As a necessary predicate to an evaluation of
plaintiffs' arguments, the record on appeal
must reflect what evidence was presented to
the arbitration panel. While the arbitration
agreement specifically afforded the parties
the ability to record the arbitration hearing,
this Court has not been provided a transcript
of the arbitration hearing. Nor have we been
provided a narrative of the proceedings; a
listing of the witnesses proffered by the
parties and a summary of their testimonies;
and/or an identification of the exhibits
actually presented to the arbitration panel. .
Because the record does not establish what
submissions from arbitration were offered by
plaintiffs in their motions to vacate, it is
exceedingly difficult for this Court to
evaluate whether the trial court itself erred
in denying plaintiffs' motions to vacate.
'It is the appellant's duty and responsibility to see that the
record is in proper form and complete.' McKyer v. McKyer
, __ N.C.
App. __, __, 642 S.E.2d 527, 532 (2007) (quoting State v. Alston
307 N.C. 321, 341, 298 S.E.2d 631, 644-45 (1983)). 'An appellate
court is not required to, and should not, assume error by the trial
judge when none appears on the record before the appellate court.'
(quoting State v. Williams
, 274 N.C. 328, 333, 163 S.E.2d 353,
357 (1968)). 'The record does not contain the oral testimony;
therefore, the court's findings of fact are presumed to be
supported by competent evidence.' . . . As defendant failed to
include a narration of the evidence or a transcript with the
record, we presume the findings at bar are supported by competent
evidence. Davis v. Durham Mental Health/Dev. Disabilities AreaAuth.
, 165 N.C. App. 100, 112, 598 S.E.2d 237, 245 (2004) (quoting
Fellows v. Fellows
, 27 N.C. App. 407, 408, 219 S.E.2d 285, 286
(1975)). This assignment of error is overruled.
Plaintiff also argues that the trial court erred by denying
her motion to tax costs and fees to defendant. Plaintiff asserts
that the trial court abused its discretion and that its denial was
based in part upon the court's erroneous order for directed verdict
on plaintiff's claim for punitive damages. Without a transcript of
the evidence or narrative summary of the trial evidence, we are
also unable to review this issue. Thus, this assignment of error
'This Court is bound by the record before it,' and where the
record is void of anything indicating otherwise, we will assume the
trial judge correctly applied the law[.] State v. Bell
, 166 N.C.
App. 261, 266, 602 S.E.2d 13, 16-17 (2004) (quoting State v.
, 304 N.C. 394, 415, 284 S.E.2d 437, 451 (1981)).
Accordingly, we conclude that the trial court's orders were not in
Judges MCGEE and STEPHENS concur.
Report per Rule 30(e).
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