Opinion
No. COA09-74
Filed 15 June 2010 This case not for publication
Appeal by plaintiff from order entered 25 September 2008 by Judge Yvonne M. Evans in Macon County Superior Court. Heard in the Court of Appeals 16 November 2009.
Creighton W. Sossomon for plaintiff-appellant. Law Offices of Leonard F. Baer, PLLC, by Leonard F. Baer, for defendant-appellee.
Macon County No. 06 CVS 493.
This appeal arises out of a contract dispute between plaintiff Carolina Homes by Design, Inc. and defendant Lee Lyons. Plaintiff appeals from an order, following a jury verdict, denying its motion to amend the verdict and judgment or, in the alternative, to set aside the verdict and order a new trial. Plaintiff argues on appeal that the trial court erred in concluding that its motion was untimely under Rule 59(e) of the Rules of Civil Procedure.
Even assuming arguendo that the trial court erred in concluding that the motion was untimely, we hold that the motion was still properly denied. Plaintiff's motion, supported only by affidavits of jurors, sought to impeach the verdict in violation of N.C.R. Evid. 606(b), which provides that such evidence may not be received during an inquiry into the validity of a verdict. Accordingly, we affirm.
Facts
In September 2004, plaintiff, a duly licensed general contractor operating in North Carolina, and defendant entered into a contract for the construction of a home on defendant's property. On 3 August 2006, plaintiff filed a complaint against defendant, alleging that although plaintiff had substantially completed construction in July 2005, defendant had failed to make the final payment of $35,021.00. In response, defendant filed an answer denying the allegations and asserting counterclaims for breach of contract, breach of express warranty, breach of implied warranty of constructability, breach of implied warranty of good faith and fair dealing, negligence, constructive fraud and breach of fiduciary duty, and negligent misrepresentation.
The case went to trial in May 2008. The verdict form required the jury to provide answers to 10 issues:
ISSUE ONE: Did the Defendant, Lee Lyons breach the contract by non-performance?
ANSWER: Yes.
. . . .
ISSUE TWO: What amount is the Plaintiff, Carolina Homes by Design, Inc. entitled to recover from the Defendant for breach of contract?
ANSWER: $15,000.
ISSUE THREE: Did the Plaintiff, Carolina Homes by Design, Inc., breach the contract by non-performance?
ANSWER: Yes.
. . . .
ISSUE FOUR: Was Plaintiff's failure to perform or abide by a material term of the contract caused by the conduct of Defendant?
ANSWER: No.
ISSUE FIVE: What amount is the defendant, Lee Lyons entitled to recover from the Plaintiff for breach of contract?
ANSWER: $8,750.
ISSUE SIX: Was the Defendant, Lee Lyons, damaged by the negligence of the Plaintiff?
ANSWER: Yes.
. . . .
ISSUE SEVEN: What amount is the defendant entitled to recover for damages proximately caused by the negligence of the plaintiff?
ANSWER: $6,527.
ISSUE EIGHT: Was an implied warranty created that the defendant's home would meet the prevailing standard of workmanlike quality?
ANSWER: Yes.
. . . .
ISSUE NINE: Did the plaintiff breach the implied warranty of workmanlike quality?
ANSWER: Yes.
. . . .
ISSUE TEN: What amount of money damages is the defendant entitled to recover from the plaintiff for breach of warranty?
ANSWER: $4,744.
The trial court entered judgment in accordance with the verdict form on 3 June 2008. Defendant served the judgment on 5 June 2008 by mail, but failed to attach a certificate of service to the judgment.
Subsequently, on 18 June 2008, plaintiff, pursuant to Rule 59(e) of the Rules of Civil Procedure, filed a "Motion to Amend Verdict and Judgment or, in the Alternative to Set Aside Verdict and for New Trial." Plaintiff attached affidavits from two jurors and sought to amend the judgment in order "to truly reflect the intention of the jury as follows: By providing that the sums entered as answers to `Issue Five: $8750.00', `Issue Seven, $6527.00' and `Issue Ten, $4744.00', be treated as intended by the jury as credits against the total final bill submitted by the Plaintiff to the Defendant in the amount of $35,021.00, and the amount inserted in answer to `Issue Two, $15,000.00' be ordered paid by the Defendant to the Plaintiff." Plaintiff asked, in the alternative, that the trial court set aside the judgment and grant a new trial because, plaintiff argued, the judgment was "clearly inconsistent with the intention of the jury as stated in its verdict and explained in the attached affidavits, contrary to the verdict of the jury, and, if allowed to stand, defective and excessive, not justified by the evidence presented."
Each of the attached juror affidavits stated:
Neither of the "affidavits" included in the record is actually notarized.
3. It was the intention of the jury that Plaintiff recover the amount of $15,000.00 from the Defendant. The amount written in answer to the question on" [sic] Issue Two" is intended to be the net amount payable by Defendant to Plaintiff.
4. The amounts written in response to "Issue Five", "Issue Seven" and "Issue Ten" were understood by the jury to be amounts deducted from the total final billing of $35,021.00 submitted by Plaintiff to Defendant, resulting in the net payment by Defendant to Plaintiff of $15,000.00 as reflected in the answer to "Issue Two".
The affidavits further stated that "[i]t was not the intention of the jury that the Defendant be paid any amount by the Plaintiff."
Following a hearing on the motion, the trial court found that in order to be timely filed under Rule 59(e), plaintiff was required to file its motion no later than 13 June 2008. Since plaintiff did not file the motion until 18 June 2008, the trial court denied the motion as untimely in an order entered 25 September 2008. On 6 October 2008, plaintiff filed a motion pursuant to Rules 59 and 60 to set aside the 25 September 2008 order. The record on appeal does not contain any order deciding that motion. On 27 October 2008, plaintiff filed a notice of appeal of the 25 September 2008 order. Plaintiff has not appealed from the underlying judgment.
Discussion
On appeal, plaintiff argues that the trial court erred in denying its motion on the grounds that it was untimely under Rule 59(e). Under Rule 59(e), a motion to alter or amend a judgment "shall be served not later than 10 days after entry of the judgment." Plaintiff does not dispute that its motion was not filed within 10 days of the entry of judgment, but argues that its motion was timely under Rule 58 of the Rules of Civil Procedure. Rule 58, in pertinent part, provides:
The party designated by the judge or, if the judge does not otherwise designate, the party who prepares the judgment, shall serve a copy of the judgment upon all other parties within three days after the judgment is entered. Service and proof of service shall be in accordance with Rule 5. If service is by mail, three days shall be added to the time periods prescribed by Rule 50(b), Rule 52(b), and Rule 59. All time periods within which a party may further act pursuant to Rule 50(b), Rule 52(b), or Rule 59 shall be tolled for the duration of any period of noncompliance with this service requirement, provided however that no time period under Rule 50(b), Rule 52(b), or Rule 59 shall be tolled longer than 90 days from the date the judgment is entered.
(Emphasis added.)
Plaintiff does not dispute that it was served with the judgment by mail two days after the entry of the judgment. Plaintiff argues, however, that because Rule 5 of the Rules of Civil Procedure requires that any document being served have attached a certificate of service, and because defendant failed to attach a certificate of service, defendant failed to comply with Rule 58's service requirement. According to plaintiff, it was, therefore, entitled to the 90-day period set out in Rule 58 for filing its Rule 59 motion.
We need not, however, address whether a failure to attach a certificate of service to a timely served judgment tolls the deadline for filing a Rule 59 motion. Even assuming arguendo that the trial court erred in concluding that the motion was untimely, the motion was required to be denied on other grounds.
The question presented by plaintiff's motion is whether it amounts to an impermissible attempt to impeach the jury's verdict based on the affidavits of jurors. Because this issue raises a question of law, Selph v. Selph, 267 N.C. 635, 638, 148 S.E.2d 574, 577 (1966), we review it de novo. Although the purported affidavits contained in the record on appeal are not sworn, we assume solely for purposes of our analysis that plaintiff did file sworn and notarized copies of the documents with the trial court.
Rule 606(b) of the Rules of Evidence restricts the evidence that a court may receive when inquiring into the validity of a verdict:
Upon an inquiry into the validity of a verdict . . ., a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
(Emphasis added.)
Applying this principle, this Court has explained, "It is well settled that `[a]fter their verdict has been rendered and received by the court, and they have been discharged, jurors will not be allowed to attack or overthrow it, nor will evidence from them be received for such purpose.' If any evidence is to be admitted to impeach, attack or overthrow a verdict, it must come from a source other than from the jurors themselves." Craig v. Calloway, 68 N.C. App. 143, 150, 314 S.E.2d 823, 827 (1984) (internal citation omitted) (quoting Selph, 267 N.C. at 637, 148 S.E.2d at 576).
In Craig, the plaintiff's motion for new trial was denied when the "[p]laintiff's counsel informed the court that one of the jurors had told him that the jurors were confused as to the issues, and that the legal effect of the verdict was not the effect intended by the jury." Id. On appeal, this Court affirmed the denial of a new trial, holding that the plaintiff was "attempting to do exactly that which is forbidden: impeach the verdict." Id. Neither the jurors' own affidavits nor testimony from the plaintiff's counsel as to what the jurors had told him was competent to impeach the verdict. Id., 314 S.E.2d at 828.
Further, the Court held that even if the plaintiff's counsel's testimony had been admissible and found to be true, it "would not affect the conclusiveness of the verdict." Id. at 151, 314 S.E.2d at 828. The Court noted that the verdict was unanimous, and "[i]f in fact any juror misconceived or misconstrued the legal effect of the verdict, as plaintiff's counsel suggest[ed], this [was] not grounds for a new trial." Id. See also Selph, 267 N.C. at 637-38, 148 S.E.2d at 576 (upholding verdict where juror did not suggest any clerical error in verdict or confusion by jurors as to law or facts, but juror indicated he and other jurors "had simply been mistaken as to the legal effect of their findings of fact"); Coxe v. Singleton, 139 N.C. 361, 362-63, 51 S.E. 1019, 1020 (1905) (upholding verdict even though jurors signed statement "to the effect that they did not fully understand the issues and the legal effect of their findings").
In addition, the Eighth Circuit's decision in Craig Outdoor Adver., Inc. v. Viacom Outdoor, Inc., 528 F.3d 1001, 1021 (8th Cir. 2008), cert. denied, ___ U.S. ___, 173 L. Ed. 2d 292, 129 S. Ct. 1000 (2009), involved very similar facts to those presented in this appeal. In Craig Outdoor Advertising, the jury returned verdict forms bearing identical verdicts for each of the three plaintiffs' claims with identical actual damages set out for each of the plaintiffs' three theories. Id. Afterwards, the defendant moved for "formation of the judgment," arguing that "`entering judgment on the jury's separate damages findings would create impermissible double recovery.'" Id. The plaintiffs' response included affidavits from each juror purporting to "`clear[] up any possible ambiguity created by the form of the verdict.'" Id. The plaintiffs contended that the forms had confused the jurors, and the damages listed for each theory must be totaled "[t]o give the jury's true intentions effect. . . ." Id. The district court refused to consider the jurors' affidavits and rejected the plaintiffs' arguments. Id. at 1022.
On appeal, the plaintiffs argued that "the District Court erred by refusing to harmonize the damages awards to reflect the jury's true intentions." Id. at 1021. The Eighth Circuit, citing the federal equivalent to North Carolina's Rule 606(b), upheld the district court's decision. Id. at 1022. The court explained that a juror's testimony may not be offered to indicate an error in the "`"validity" of the verdict.'" Id. (quoting Karl v. Burlington N. R. Co., 880 F.2d 68, 74 (8th Cir. 1989)). Because the affidavits at issue "purport[ed] to explain what the jury meant by its verdict and how the jury determined what numbers to transcribe onto the verdict forms," and the affidavits were admissible under none of the Fed.R.Evid. Rule 606(b) exceptions, the Court concluded the affidavits were properly excluded. Id. We believe the reasoning in Craig Outdoor Advertising is persuasive here.
Plaintiff's motion, which argued to the trial court as to how the verdict sheet should be amended "to truly reflect the intention of the jury," constituted an attempt to impeach the verdict. The supporting affidavits of two jurors do not address any of the types of information set out in Rule 606(b) as permissible subjects of juror testimony. Instead, the affidavits address "the intention of the jury" and how the jury "understood" that the amounts set out in the verdict sheet would be applied. This testimony relates to the mental processes of the jury in reaching its verdict and is impermissible under Rule 606(b). There is no meaningful distinction between this case and this Court's decision in Craig or the Eighth Circuit's decision in Craig Outdoor Advertising. We, therefore, hold that even if plaintiff's Rule 59 motion was timely, the trial court was required to deny that motion.
Affirmed.
Chief Judge MARTIN and Judge ELMORE concur.
Report per Rule 30(e).