Chee v. Estes

• Court: North Carolina Court of Appeals
• Writing for the Court: ARNOLD
• Citation: Chee v. Estes, 451 S.E.2d 349, 117 N.C.App. 450 (N.C. App. 1994)
• Decision Date: 20 December 1994
• Docket Number: No. 9418SC561,9418SC561
• Parties: Manlin CHEE and Juan Forgay, Plaintiffs, v. Kenneth Eugene ESTES and Margaret Dudley Moses, Defendants.

Page 349

451 S.E.2d 349

117 N.C.App. 450

Manlin CHEE and Juan Forgay, Plaintiffs, v. Kenneth Eugene ESTES and Margaret Dudley Moses, Defendants.

No. 9418SC561.

Court of Appeals of North Carolina.

Dec. 20, 1994.

Harris & Iorio by Douglas S. Harris, Greensboro, for plaintiffs appellants.

Smith Helms Mulliss & Moore, L.L.P. by Stephen P. Millikin, Greensboro, for defendant appellee Kenneth Eugene Estes.

Henson Henson Bayliss & Sue by Perry C. Henson, Sr., Greensboro, for defendant appellee Margaret Dudley Moses.

ARNOLD, Chief Judge.

Plaintiff Manlin Chee and her husband, Juan Forgay, instituted this civil action seeking to recover damages arising from the alleged negligence of the defendants in operating their motor vehicles. Ms. Chee alleged that she was injured on 6 October 1987 when the vehicle in which she was a passenger ran off the road and overturned when its driver defendant Moses, attempted to avoid a collision with a vehicle driven by defendant Estes. Plaintiff Chee sought to recover damages for pain and suffering, bodily injury, medical expenses, and lost wages. Her husband sought to recover for loss of consortium. The jury determined that Chee was injured by the negligence of defendant Estes but not by any negligence on the part of defendant Moses and awarded Chee damages of $20,000. The jury further determined that Forgay was not entitled to any recovery for loss of consortium. By judgment rendered 13 August 1993 and filed 20 August 1993, the trial court entered judgment in accordance with the verdict.

On 23 August 1993, plaintiffs filed a motion pursuant to N.C.Gen.Stat. § 1A-1, Rule 59 (1990), seeking either a new trial or additur. As grounds for relief, plaintiffs alleged that: (1) there was irregularity depriving them of a fair trial in that defense counsel made a false representation in his closing argument; (2) there was misconduct at trial by the prevailing party in highlighting the alienage and national origin of plaintiff Chee, thereby playing to the prejudices of the jury; (3) there was jury misconduct in that several of the jurors expressed strong prejudice against persons of the national origin, race, and alienage of Chee during jury deliberations and lied about having any such prejudice during jury selection; (4) there was manifest disregard by the jury of the court's instructions to evaluate the evidence and render a verdict based on the evidence; (5) inadequate damages were awarded appearing to have been given under the influence of passion or prejudice; (6) there was insufficient evidence to justify the verdict; and (7) the jurors' disregard for plaintiffs' uncontradicted evidence was motivated by their racial, ethnic, and xenophobic prejudice. The record indicates that plaintiff Chee is of Chinese extraction and was a resident alien in the United States, rather than a naturalized citizen, at the time of trial. As support for the motion, plaintiffs submitted two affidavits from one of the jurors, Glenn Turner, in which Turner claimed that some of the other jurors had expressed prejudice against aliens residing in the United States and that such prejudice adversely affected the damages awarded.

By order filed 9 December 1993, the trial court denied the motion. On 17 December 1993, plaintiffs filed a notice of appeal, which reads as follows:

Plaintiffs ... hereby give notice of appeal to the North Carolina Court of Appeals from the judgment rendered by the Honorable F. Fetzer Mills on August 13, 1993, in Guilford County Superior Court in which judgment was entered in favor of defendant Margaret Dudley Moses, but in favor of the plaintiff Manlin Chee against the defendant Kenneth Eugene Estes in the amount of $20,000.00. Appeal is made against both defendants.

Said Notice of Appeal is timely, plaintiff Manlin Chee having filed a motion for a new trial pursuant to Rule 59 of the North Carolina Rules of Civil Procedure which motion was denied on December 14, 1993, by the Honorable F. Fetzer Mills.

Plaintiffs' sole argument on appeal concerns the denial of their motion for new trial. The threshold issue presented by this appeal then is whether or not plaintiffs' notice of appeal is sufficient to confer jurisdiction on this Court over the 9 December 1993 order denying the motion for new trial. We conclude that it is not.

The appellate rules require that the notice of appeal "designate the judgment or order from which appeal is taken." N.C.R.App.P. 3(d). Proper notice of appeal is a jurisdictional requirement that may not be waived. Farm Credit Bank v. Van Dorp, 110 N.C.App. 759, 431 S.E.2d 222 (1993); Von Ramm v. Von Ramm, 99 N.C.App. 153, 392 S.E.2d 422 (1990). As a general rule, the appellate court obtains jurisdiction only over the rulings specifically designated in the notice of appeal as the ones from which the appeal is being taken. Farm Credit, 110 N.C.App. 759, 431 S.E.2d 222; Rite Color Chemical Co. v....