In re Will of Buck

• Decision Date: 23 July 1999
• Docket Number: No. 428PA98.,428PA98.
• Citation: 516 S.E.2d 858
• Court: North Carolina Supreme Court
• Parties: In the Matter of the WILL OF Calvin H. BUCK.

516 S.E.2d 858

In the Matter of the WILL OF Calvin H. BUCK.

No. 428PA98.

Supreme Court of North Carolina.

July 23, 1999.

Baker, Jenkins, Jones & Daly, P.A., by Bruce L. Daughtry and Roger A. Askew, Rocky Mount, for propounder-appellees Mallory, Kenneth, and Ronald Gene Buck.

George B. Currin, Raleigh, Herbert T. Mullen, Jr., Elizabeth City, and H. Spencer Barrow, Raleigh, for caveator-appellant Sandra Buck Jordan.

MITCHELL, Chief Justice.

This appeal requires that we reconsider the standard to be used by an appellate court in reviewing the evidence before the trial court at the time of its ruling on a motion for a new trial under Rule 59(a)(7) of the North Carolina Rules of Civil Procedure for insufficiency of the evidence to justify the verdict of a jury. N.C.G.S. § 1A-1, Rule 59(a)(7) (1990). Specifically, we must determine whether the appellate courts must apply a different standard for reviewing such evidence when the trial court grants a new trial than is to be applied when the trial court denies a new trial. We conclude that the evidentiary standard to be applied on appellate review is the same in each instance. Accordingly, we affirm the decision of the Court of Appeals, which applied the appropriate standard in this case.

Evidence presented at trial tended to show that Calvin H. Buck (testator) died on 23 December 1995 and was survived by his five children, Sandra Buck Jordan, Kenneth Buck, Mallory Buck, Ronald Gene Buck, and Joseph Buck. After Calvin Buck's death, his son Mallory presented for probate a paper writing dated 13 November 1995 (1995 Will), which was purported to be testator's last will and testament. The 1995 Will named Mallory as executor and divided testator's estate equally among three of his four sons, Mallory, Kenneth, and Ronald Gene. No provision was made in the 1995 Will for Sandra, who was the chief beneficiary of her father's estate under a will and codicil prepared in 1989 and 1990, respectively.

On 8 January 1996, Sandra filed a caveat to the 1995 Will, alleging that testator lacked testamentary capacity at the time the will was executed and that the will was procured by undue influence upon the testator by Kenneth, Mallory, and Ronald Gene. At the conclusion of a jury trial in the Superior Court, Gates County, the jury returned a verdict in favor of Sandra. The jury found that testator lacked sufficient mental capacity to execute the 1995 Will and that it had been procured by undue influence and was therefore invalid. Mallory, Kenneth and Ronald Gene Buck, propounders, moved for judgment notwithstanding the verdict and alternatively for a new trial. The trial court entered an order granting judgment notwithstanding the verdict, directing that the 1995 Will be admitted to probate, and conditionally allowing the motion for a new trial. Caveator appealed.

The Court of Appeals affirmed the trial court's entry of judgment notwithstanding the verdict as to the issue of testamentary capacity, reversed the trial court's entry of judgment notwithstanding the verdict as to the issue of undue influence, and affirmed the trial court's granting of propounders' alternative motion for a new trial on the issues of undue influence and devisavit vel non. The Court of Appeals denied caveator's petition for rehearing.

Caveator petitioned this Court for discretionary review, seeking review only of that part of the Court of Appeals' decision affirming the trial court's order conditionally granting a new trial on the issue of undue influence. On 4 February 1999, this Court allowed caveator's petition in order to review this single issue.

Caveator contends that the Court of Appeals erred by applying an incorrect standard for its appellate review of the trial court's order conditionally granting a new trial on the issue of undue influence. Pursuant to N.C.G.S. § 1A-1, Rule 50(b), a party who moves for judgment notwithstanding the verdict may also move, in the alternative, for a new trial. Rule 50(c)(1) provides:

If the motion for judgment notwithstanding the verdict, provided for in section (b) of this rule, is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate division has otherwise ordered.

N.C.G.S. § 1A-1, Rule 50(c)(1) (1990). When a party joins a motion for judgment notwithstanding the verdict with an alternative motion for a new trial, the trial court is required to rule on both. Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 379, 329 S.E.2d 333, 343 (1985).

The trial court, acting in its discretion, granted propounders' alternative motion for a new trial as to the issue of undue influence, stating that "the jury's verdict was contrary to the weight of the credible evidence." This is the only portion of the trial court's order at issue before this Court on appeal.

At the outset, we note that the Court of Appeals expressed confusion concerning this Court's prior decisions regarding the proper standard for appellate review of trial court orders granting new trials for insufficiency of the evidence to justify the verdict. In Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973), and Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974), this Court reversed orders granting judgment notwithstanding the verdict and vacated orders which conditionally granted new trials based upon the insufficiency of the evidence. In those cases, we indicated that a trial court's rulings on motions for a directed verdict at the close of the evidence and on motions for judgment notwithstanding the verdict after the jury had returned a verdict present only a question of law; that question is whether substantial evidence introduced at trial would support a verdict in favor of the nonmoving party. We did not mean to imply in either of those cases that a trial court's discretionary ruling granting or denying a motion for a new trial is to be reviewed on appeal as a question of law governed by whether substantial evidence introduced at trial supports the verdict returned by the jury. Neither Dickinson nor Summey should be read as supporting such a proposition.

We have often reiterated this Court's long-standing position that an order granting judgment notwithstanding the verdict, on the one hand, and an order granting a new trial for insufficiency of the evidence, on the other, present two different questions and require different standards of appellate review. In Bryant v. Nationwide, we stated that the questions concerning the sufficiency of the evidence to withstand a Rule 50 motion for directed verdict or judgment notwithstanding the verdict present an issue of law, while a motion for a new trial for insufficiency of the evidence pursuant to Rule 59(a)(7) is addressed to the discretion of the trial court. 313 N.C. at 379-81, 329 S.E.2d at 343-44. This position is consistent with our prior decisions over many years which have held uniformly that in the absence of an abuse of discretion, a trial court's ruling on a motion for a new trial due to the insufficiency of evidence is not reversible on appeal. See, e.g., Investors Title Ins. Co. v. Herzig, 330 N.C. 681, 696, 413 S.E.2d 268, 276 (1992)

; Worthington v. Bynum, 305 N.C. 478, 482, 290 S.E.2d 599, 602 (1982) (plurality opinion).

We take this opportunity to reemphasize the proper standard of appellate review with regard to a trial court's grant of a new trial for insufficiency of the evidence. Rule 59(a)(7) authorizes the trial court to grant a new trial based on the "insufficiency of the evidence to justify the verdict." N.C.G.S. § 1A-1, Rule 59(a)(7). We have previously indicated that, in this context, the term "insufficiency of the evidence" means that the verdict "was against the greater weight of the evidence." Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246, 252, 258 S.E.2d 334, 338 (1979). The trial court has discretionary authority to appraise the evidence and to "`order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony.'" Britt v. Allen, 291 N.C. 630, 634, 231 S.E.2d 607, 611 (1977) (quoting Roberts v. Hill, 240 N.C. 373, 380, 82 S.E.2d 373, 380 (1954)). Like any other ruling left to the discretion of a trial court, the trial court's appraisal of the evidence and its ruling on whether a new trial is warranted due to the insufficiency of evidence is not to be reviewed on appeal as presenting a question of law. Id. at 635, 231 S.E.2d at 611. As we stated in Worthington:

It has been long settled in our jurisdiction that an appellate court's review of a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates an abuse of discretion by the [trial] judge.

305 N.C. at 482, 290 S.E.2d at 602 (emphasis added). This Court has long recognized this standard for appellate review of trial court orders granting new trials. See, e.g., Dixon v. Young, 255 N.C. 578, 122 S.E.2d 202 (1961)

; Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312 (1944); Bird v. Bradburn, 131 N.C. 488, 42 S.E. 936 (1902); Brink v. Black, 74 N.C. 329 (1876). We recently reaffirmed the application of this standard of review to rulings on Rule 59 motions. "`[A]n appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice.'" Anderson v. Hollifield, 345 N.C. 480,...