Opinion
No. COA11–1456.
2012-06-5
Anita R. LEVEAUX–QUIGLESS, Plaintiff, v. Heather Nicole PILGRIM, Katie Elizabeth Hampton, and John William Hampton, Defendants.
E. Gregory Scott, for Plaintiff-appellee. Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jeffrey T. Ammons and O. Drew Grice, Jr., for Defendant-appellant.
Appeal by Defendants from order entered 18 February 2011 by Judge Abraham Penn Jones in Wake County Superior Court. Heard in the Court of Appeals 21 March 2012. E. Gregory Scott, for Plaintiff-appellee. Walker, Allen, Grice, Ammons & Foy, L.L.P., by Jeffrey T. Ammons and O. Drew Grice, Jr., for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
I. Factual & Procedural Background
On 4 February 2006, Anita Leveaux–Quigless (“Plaintiff”) was leaving church in her Isuzu Trooper after a Saturday evening mass. Plaintiff turned onto Leesville Road and then stopped to allow other cars out of the church parking lot. While stopped, Plaintiff's vehicle was hit in the rear by a vehicle driven by Heather Nicole Pilgrim. It has been stipulated that Ms. Pilgrim's vehicle was propelled into Plaintiff's vehicle after it was struck by a vehicle driven by Katie Elizabeth Hampton and owned by John William Hampton (collectively “Defendants”). It has also been stipulated that the actions of Ms. Hampton were the proximate cause of the automobile accident.
Plaintiff testified that she felt some pain following the accident, but she did not tell anyone about that pain at the scene of the accident. On the following Monday afternoon at the end of the work day, Plaintiff visited an urgent care facility with complaints of pain in her neck. Plaintiff subsequently visited a physical therapist, starting with three visits per week. Plaintiff was also seen by a general practitioner for her pain. Over the course of treatment, Plaintiff was prescribed pain medications related to her neck injury. Plaintiff's general practitioner and physical therapist testified that her pain was caused by the automobile accident and that her symptoms were consistent with whiplash.
During cross-examination, Plaintiff testified that the only damage to her vehicle consisted of a dent in the bumper which she had not repaired by the time of trial. Plaintiff also testified that she ran in the Boston marathon two months after the accident and had run in another marathon between the accident and the Boston marathon.
On 5 December 2008, Plaintiff filed a complaint in Wake County District Court alleging negligence. On or about 13 February 2009, Defendants filed an answer and cross-claim. On 24 March 2009, the case was transferred to Wake County Superior Court by a consent order. On 30 November 2009, the parties stipulated that Defendant Katie Hampton's actions were the proximate cause of the automobile accident and submitted two issues for the jury: (1) “Was the plaintiff ... injured by the negligence of the defendants ... ?” and (2) “What amount is the plaintiff ... entitled to recover for her personal injuries?”
A jury trial was held before Judge Abraham Penn Jones starting 30 November 2009. The jury answered “No.” to the first question, “Was the plaintiff ... injured by the negligence of the defendants ... ?” and therefore did not provide an amount of damages. On or about 19 February 2010, Plaintiff filed a motion for judgment notwithstanding the verdict on the issue of negligence and a new trial on the issue of damages. On 18 February 2011, the trial court granted Plaintiff's motion for judgment notwithstanding the verdict and granted a new trial on the issue of damages. Defendants appeal.
II. Jurisdiction
Defendants appeal the granting of a new trial, and appeal lies of right with this Court according to N.C. Gen.Stat. § 7A–27 (d)(4) (2011).
III. Analysis
Defendants assert that the trial court erred in granting Plaintiff's motion for judgment notwithstanding the verdict and for a new trial. We find that the trial court lacked authority to enter the judgment notwithstanding the verdict and that the new trial for damages is no longer appropriate.
A motion for judgment notwithstanding the judgment is appropriate “[w]henever a motion for a directed verdict made at the close of all the evidence is denied or for any reason is not granted.” N.C. Gen.Stat. § 1A–1, Rule 50(b)(1) (2011) (emphasis added).
Clearly, from the plain meaning of this Rule, a motion for judgment notwithstanding the verdict cannot be allowed unless a proper motion for directed verdict was entered earlier in the trial.... Further, the motion for directed verdict must be made “at the close of all the evidence.” The rationale behind these timing and specificity requirements is to give the opposing side a chance to correct any curable errors of proof. Therefore, it is important that the directed verdict be in its proper form and at the proper time in order to serve the purpose of allowing for any corrections in the record by the opposing party.
Enns v. Zayre Corp., Inc., 116 N.C.App. 687, 690, 449 S.E.2d 478, 480 (1994), aff'd,342 N.C. 406, 464 S.E.2d 298 (1995) (citations omitted).
Plaintiff's appellee brief asserts that “plaintiff's counsel's notes reflect a Motion For Directed Verdict at the close of the plaintiff's evidence and at the close of all the evidence.” The record does not disclose whether a motion was made at the close of Plaintiff's evidence, as the trial court stated, “We argued motions,” but the court did not explain what motions were argued. However, a motion by Plaintiff for directed verdict would not have been appropriate following Plaintiff's evidence. See 2 G. Gray Wilson, North Carolina Civil Procedure § 50–2, at 50–5 (3d ed. 2007) (“While Rule 50(a) does not specifically state when a motion for directed verdict must be made, it cannot be raised until the close of the evidence offered by an opposing party.”). The transcript does not show any motion for directed verdict made at the close of all the evidence. As a motion for directed verdict was not made at the close of all the evidence, the trial court had no authority to enter judgment notwithstanding the verdict. See Graves v. Walston, 302 N.C. 332, 338–39, 275 S.E.2d 485, 489 (1981) (“Plaintiffs thus had no standing after the verdict to move for judgment notwithstanding the verdict and for that reason the trial court was without authority to enter judgment notwithstanding the verdict for plaintiffs.”). We therefore vacate the judgment notwithstanding the verdict.
Plaintiff's motion requested “Judgment notwithstanding the Verdict on the issue of negligence and a new trial on the issue of damages.” (Emphasis added.) The trial court's order specifically granted the new trial “on the issue of damages.” As we have vacated the judgment notwithstanding the verdict, the jury verdict that Plaintiff was not injured by the negligence of Defendants is reinstated, and a new trial on the issue of damages is no longer necessary.
IV. Conclusion
For the reasons stated above, we vacate the granting of judgment notwithstanding the verdict and the granting of a new trial on the issue of damages. We remand this case for reinstatement of the jury verdict in favor of Defendants.
Vacated and remanded. Judges BRYANT and BEASLEY concur.
Report per Rule 30(e).